Testamentary Succession, Escheat and the Remaining Sections

In one line

A Hindu may leave anything by will, including his coparcenary interest; where he leaves no heirs at all the property goes to the Government; and the marumakkattayam and aliyasantana communities have their own adjustments.

Section 30: testamentary succession

Any Hindu may dispose of by will or other testamentary disposition any property which is capable of being so disposed of by him or by her, in accordance with the provisions of the Indian Succession Act 1925, or any other law for the time being in force and applicable to Hindus.

The Explanation provides that the interest of a male Hindu in a Mitakshara coparcenary property, or the interest of a member of a tarwad, tavazhi, illom, kutumba or kavaru in the property of that body, shall, notwithstanding anything contained in this Act or in any other law for the time being in force, be deemed to be property capable of being disposed of by him or her within the meaning of the section.

Why the Explanation matters so much

Under the classical Mitakshara law an undivided coparcenary interest was not disposable by will. It passed by survivorship, and a will of it was simply ineffective. The Explanation reverses that in one sentence.

The practical consequence should be stated plainly, because it is often what a problem question is really about. A coparcener who makes a will of his interest defeats the whole scheme of section 6(3) for that property: there is no intestacy, so no notional partition distribution among his heirs, and the interest goes where the will sends it.

Two further points.

"In accordance with the Indian Succession Act 1925." The formalities of a Hindu's will, its execution, attestation, revocation and probate, come from that Act and not from this one. This Act confers the capacity; the other supplies the rules.

Section 14 and section 30 work together for a woman. Section 14(1) makes her a full owner, and section 30 lets a full owner will the property away. Before 1956 a widow holding a limited estate could do neither.

And the limit

Section 30 permits the disposal of property capable of being so disposed of. It does not create a power to dispose of what is not the testator's. A karta cannot will away the family property; he can will away his own interest in it, and no more.

Section 29: escheat

If an intestate has left no heir qualified to succeed to his or her property in accordance with the provisions of this Act, such property shall devolve on the Government; and the Government shall take the property subject to all the obligations and liabilities to which an heir would have been subject.