A Hindu cannot bequeath a property which he could not have transferred during his lifetime. He can also not transfer by will any property by which he affects the legal right of his wife or the right of maintenance of any other person.
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Any Hindu can bequeath following properties by will—
ADVERTISEMENTS:
According to Mitakshara—
(i) Separate and sell acquired property;
(ii) Property of the sole surviving coparcener;
(iii) Saudayiki Stridhan, and other Stridhan with the permission of her husband. But because after the passing of Hindu Succession Act vide Section 14 she has been given absolute right, she can now transfer it by will without any constraint;
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(iv) The whole Stridhan in case of widow;
(v) Impartible estate, unless it has not been prohibited by tradition.
However any coparcener even if he may be father, cannot transfer his coparcenary interest by will. Though father may make a gift of a small part of ancestral property yet he cannot transfer it by will.
Where a coparcener, transfers by wills his impartible coparcenary interest to a third party and his separate property to successive coparceners and if the coparcener chooses to accept separate property, they cannot object to the validity of will. In the same manner, the will by coparceners relating to family property will be valid, because when they jointly write a will, they do this as joint owners.
ADVERTISEMENTS:
When a coparcener transfers by will the coparcenery property with the permission of other coparceners the will shall be valid. The Supreme Court has held in Raghavamma v. Chechamma, that where a coparcener executes a will with respect to his share in the coparcenary property and later on separates from the coparcenary, in that case the will turns to be valid as he became competent to execute such a will at the time of his death”.
Now under present law even Mitakshara coparcener has become competent to transfer his undivided coparcenary interest by will according to Section 30 of Hindu Succession Act, 1956. Any will executed with respect to coparcenary property by a coparcener prior to the enforcement of this Act was not legally valid (if the testator had died prior to the commencement of this Act). Where the other members of the family give their consent or impliedly continue to act as per the conditions of will then it will be treated as family arrangement but not will.
According to Dayabhag:
Under the Dayabhag law two more properties have been included—
(i) Coparcenary interest can be transferred by will;
(ii) Father can transfer by will, his self acquired and the whole ancestral property.
Revocation and Alteration of Will:
Where a person becomes competent to execute a will relating to his property, then the will can be altered or revoked. But marriage does not revoke a will or codicil. Similarly birth of a son after execution of a will does not amount to revocation of will.