Testamentary Succession, Escheat and the Remaining Sections

That is the whole section, and the answer to "what is escheat" is the first clause: where a person dies intestate leaving no qualified heir, the property goes to the Government.

Three things earn the rest of the marks.

"No heir qualified to succeed." Escheat is the last resort, and it is reached only after Class I, Class II, agnates and cognates have all been exhausted for a male, or all five entries of section 15 for a female. Given how far the lists run, it is rare.

"Qualified." A person who exists but is disqualified under sections 25 or 26 is not a qualified heir, so a disqualification can, in principle, produce an escheat.

"Subject to all the obligations and liabilities to which an heir would have been subject." The Government does not take the property free. It takes it burdened with the debts and obligations that would have bound an heir, which is a real limit and the sentence most often left out of an answer.

Section 17: the marumakkattayam and aliyasantana communities

Section 17 provides that sections 8, 10, 15 and 23 shall have effect, in relation to persons who would have been governed by the marumakkattayam law or the aliyasantana law had the Act not been passed, as if certain modifications were made.

The modifications, in outline:

For section 8, sub-clauses (c) and (d) are replaced by a single clause: "thirdly, if there is no heir of any of the two classes, then upon his relatives, whether agnates or cognates." So for these communities the distinction between agnates and cognates disappears, and both take together at the third rung.

Sections 10, 15 and 23 are similarly adjusted to fit a matrilineal structure.

The section as printed still refers to section 23, which was itself omitted in 2005. The reference is therefore spent, and the Act carries it as a fossil.

The reason for section 17 is the point to make. Parliament could have applied the general scheme to these communities unchanged, and chose not to, because a list built on agnates, on descent through males, makes little sense for a family that traces itself through women. It is the same instinct that produced section 7, taken in [The Matrilineal Joint Family].

Section 31: repealed

Section 31 was the repealing section of the Act and has itself been repealed. The number is dead, and it is noted here so a reader who reaches the end of the Act knows nothing is missing.

How the module fits together

Worth one closing paragraph, because MU can ask a general question about the scheme of the Act.

Sections 1 to 5 say who and what the Act applies to, and displace the classical law.

Sections 6 and 7 deal with the two kinds of undivided interest, the Mitakshara coparcenary and the matrilineal family, and convert them into shares that can pass by succession.

Sections 8 to 13 are succession to a male: four rungs, the Schedule, and the rules of distribution.

Sections 14 to 16 are the woman's half: full ownership, and then the five entries and the source rule.

Sections 17 to 28 are the general provisions and the disqualifications.

Section 29 is escheat, the end of the line.

Section 30 is the way out of the whole of it, by will.

Put in one sentence: the Act is a default. It says what happens to a Hindu's property when he or she has not said so, and section 30 lets any Hindu say so instead.

A worked example

Vishnu is a coparcener in a Mitakshara joint family with his brother and their two sons. He is also a member of a marumakkattayam tarwad through his mother. He wants to leave his coparcenary interest to his daughter by will. He dies in 2024 leaving no heir at all except a nephew who converted to Christianity in 1990 and whose children were born after that.

Can he will away his coparcenary interest? Yes. Section 30 provides that any Hindu may dispose of by will any property capable of being disposed of by him, and its Explanation makes an undivided interest in Mitakshara coparcenary property capable of it, notwithstanding anything in the Act or any other law. The classical law did not allow it.

And his interest in the tarwad? The same Explanation covers the interest of a member in the property of a tavazhi, tarwad, illom, kutumba or kavaru.

What formalities? The Act supplies none. A Hindu's will is made under the Indian Succession Act 1925.

Suppose the will fails and there is no heir. Section 29: the property devolves on the Government, and the Government takes it subject to all the obligations and liabilities to which an heir would have been subject. That is escheat.

Does the nephew take? He is not disqualified himself by section 26; that section disqualifies the children born to a convert after the conversion. But whether he is an heir at all is decided by sections 8 to 13.

And if the family were marumakkattayam? Section 17 modifies sections 8, 10, 15 and 23 for the marumakkattayam and aliyasantana communities, merging agnates and cognates into one class of relatives.

What it does NOT mean

Section 30 does not prescribe how a will is made. The formalities come from the Indian Succession Act 1925.

It does not make everything disposable. It applies to property capable of being disposed of by the testator, and it is the Explanation that brings in the coparcenary interest.

Escheat is not a windfall. By section 29 the Government takes subject to all the obligations and liabilities to which an heir would have been subject.

Escheat is a last resort. It operates only where the intestate leaves no heir qualified to succeed under the Act.

Section 17 is not a separate code. It modifies sections 8, 10, 15 and 23 for two communities and leaves the rest of the Act standing.

Section 31 no longer exists. It was the repealing section and has itself been repealed.

Quick revision

• s.30: any Hindu may dispose of by will or other testamentary disposition any property capable of being disposed of by him, in accordance with the Indian Succession Act 1925 or any other law applicable to Hindus. The Explanation makes an undivided Mitakshara coparcenary interest, and a member's interest in a tavazhi, tarwad, illom, kutumba or kavaru, capable of disposal, which the classical law did not.
• s.29: where an intestate leaves no heir qualified to succeed under the Act, the property devolves on the Government, which takes it subject to all the obligations and liabilities of an heir.
• s.17: sections 8, 10, 15 and 23 apply with modifications to persons governed by the marumakkattayam and aliyasantana law, merging agnates and cognates into one class of relatives.
• s.31: repealed.

Test yourself

1. What does section 30 add to the law? It confirms that any Hindu may dispose of by will any property capable of being disposed of by him, and by its Explanation makes an undivided interest in Mitakshara coparcenary property, and a member's interest in the property of a tavazhi, tarwad, illom, kutumba or kavaru, capable of being so disposed of, which the classical law did not permit.

2. What is escheat, and on what terms does the Government take? Under section 29, where an intestate has left no heir qualified to succeed to his or her property under the Act, the property devolves on the Government, and the Government takes it subject to all the obligations and liabilities to which an heir would have been subject.

3. Which communities does section 17 deal with, and what does it do? Persons governed by the marumakkattayam and aliyasantana law. Sections 8, 10, 15 and 23 apply to them with modifications, the principal one being that agnates and cognates are merged into a single class of relatives.

4. Where do the formalities of a Hindu's will come from? From the Indian Succession Act 1925. The Hindu Succession Act confirms the power but prescribes no formalities of its own.