Prior to the enactment of the Hindu Succession Act, a coparcener was not entitled to either gift or will his interest in the coparcenary property. This ban or embargo has been removed concerning wills. However, his inability to gift away his undivided interest in the coparcenary property remains unchanged, even after the codification of Hindu law.

Section 30 of the Hindu Succession Act explicitly states that a Hindu testator may dispose of any property capable of being disposed of by will or other testamentary disposition. However, the law prevailing at the date of the testator's death is applicable.

In the instant case, the date of execution of the alleged will and the death of the testator occurred after the 1956 Act came into force. Therefore, the testator was entitled to execute a will bequeathing his undivided share in the coparcenary property.

Section 30 of the Act empowers a Hindu possessing any property to execute a will and make a bequest in favor of another, either absolutely or to a limited extent, even to the extent of depriving his natural heirs of their right to the estate left by him.

In the instant case, there was no evidence on record to conclude that the disposition of the right of maintenance in the husband's will was in lieu of or in recognition of the wife’s right to maintenance. Therefore, the finding of the High Courtthat the wife had only a limited right, namely a life interest, in the suit propertywas justified. Consequently, the wife should not have created a long-term lease as she had purportedly done.

Ancestral Land  Disposition by Will  Validity

A Hindu male is competent to make a testamentary disposition of property in his hands, irrespective of it being ancestral, in view of the abrogation of the alleged custom by the Hindu Succession Act, 1956. Consequently, a will executed by the last male heir concerning ancestral land is valid.

Execution of the Will and Its Validity

An analytical examination of the evidence produced in the case establishes the following:

• The deceased was diagnosed with cancer in Bombay in February 1983 and was brought to Ludhiana on July 23, 1983.
• The propounders and alleged beneficiaries of the will, with whom the testator was living in Bombay, did not have any will-deed executed there.
• The testator was brought to Ludhiana, where he met his legally wedded wife and her daughters. A second woman, who claimed to be his wife, also accompanied him to Ludhiana.
• Approximately a month after reaching Ludhiana, the will was executed.

There is no evidence of extraneous influence by the daughter or her children on the testator. The evidence also indicates that the doctors had opined on the early death of the testator, which may have prompted or necessitated the execution of the will to settle his entire property.

At the time of the will’s execution, none of the legal heirs were shown to have been involved. The will was executed through an advocate and attested by another advocate, as well as by a notary public.

Held: The learned single judge did not properly appreciate the evidence while deciding the issue. The finding on the issue is therefore reversed. It is held that the deceased had legally and validly executed the will of his free will and accord at a time when he had a sound disposing mind.

In the instant case, the due execution of the will was established by the defendants. The plaintiff failed to establish the mental incapacity of the testator despite evidence of a paralysis attack suffered by the executant. Consequently, it was held that the will was valid.

Relevant Case Laws:

• Smt. Radhamma v. H.N. Muddukrishna, AIR 2006 Kant 68
• Sharad Subramanyan v. Soumi Mazumdar, 2007 (1) Civil LJ 497 (SC)
• Hashiar Singh v. Rajmal, 2000 (3) Civil LJ 173 at p. 175 (HP)
• Smt. Bhagya Wati Jain v. General Public, AIR 1995 P&H 201

Written By: S Kundu & Associates
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