What do you understand by testamentary succes­sion as mentioned in Hindu Succession Act?

Section 30 of the Act lays down the rule for testamentary succession. The section runs thus:

Image Source: mycfoweb.ca

(1) Any Hindu may dispose of by will or other testamentary disposition of any property, which is capable of being so disposed of by him 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.

Explanation: The interest of a male Hindu in a Mitakshara coparcenary property or the interest of a member of a tarwad, twazi, illom, Kutumba or Kavaru 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 by her within the meaning of this sub-section.

(2) For the removal of doubts it is hereby declared that noth­ing contained in sub-section (1) shall affect the right to mainte­nance of any heir specified in the schedule by reason only of the fact that under a will or other testamentary disposition made by the deceased the heir has been deprived of a share in the property to which he or she would have been entitled under this Act if the deceased had died intestate.

Mention must also be made of the relevant provisions of the Indian Succession Act, 1925. This Act consists of eleven parts. Part VI relates to testamentary succession and comprises of Sec­tions 57 to 191. Of these only some apply to Hindu wills, being those mentioned in Schedule III to this Act. But these, again, do not apply to all Hindu wills, but only to such wills as are speci­fied in section 57 of this Act. The section is as below:

The provisions of the Part (i.e. Part VI) Schedule III shall, subjects to the restrictions and modifications specified therein apply:

(a) to all wills and codicils made by any Hindu, Buddhist, Sikh, or Jain on or after the 1st day of September, 1870, within the territories which-at the said date were subject to the Lieutenant-Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the Hindu Courts of Judicature at Madras and Bombay;

(b) to all such wills and codicils made outside those territo­ries and limits so far as relates to immovable property situate within those territories or limits; and

(c) to all wills and codicils made by Hindu, Buddhist, Sikh, or Jain on or after the first day of January, 1927, to which those provisions are not applied by clauses (a) and (b).

It is thus clear that section 30 authorizes all Hindu, male or female, separate or a member of a joint family, to make testamen­tary disposition of his or her interest in a property, a male Hindu could dispose of her separate property, even prior to this Act, but he could not, however, do so in his interest in the coparcenary property, till he sought partition thereof from other members of the family, so also a female Hindu could not dispose of any property other than her Stridhan technically so called. Now both male and female Hindu can dispose of his or her interest by means of a will.

In K. Jwala Narasimha Reddy v. Narayan Reddy, A.I.R. 1979 NOC 41 (A.P.), it has been laid down that Hindu widow who becomes under section 41 of the Act, full owner of the property she inherited with limited interest from her husband prior to the coming into force of the Act, is entitled under section 30 of the Act to dispose of the property by will in accordance with the provisions of the Indian Succession Act, 1925.

This right of a person to dispose of his property by a will, will not affect the rights of the heirs mentioned in class 1 of the schedule to claim maintenance even if under the will they have been deprived of their shares in the property, to which they would have been entitled had the will not been executed.

In fact, this Act does not affect the Hindu Law of maintenance; and if there are other heir also under that law besides those mentioned in class I of the schedule, they too will be entitled to claim the same and create a charge on the estate disposed of by means of the will.

Under the Hindu law, an heir is legally bound to provide, out of the estate which has descended to him, maintenance for those persons whom the last proprietor was legally or normally bound to maintain. It is to remove this doubt that the Act does not affect the existing Hindu Law relating to maintenance that sub-section (2) has been inserted.