Gifts, wills and testamentary succession

1. Gifts of separate property

A Hindu has full power to transfer his separate or self-acquired property by gift, subject to the Transfer of Property Act, 1882. Section 122 defines a gift as the transfer of existing movable or immovable property made voluntarily and without consideration, and accepted by the donee during the donor's lifetime. Section 123 requires a gift of immovable property to be made by a registered instrument signed by the donor and attested by at least two witnesses; movables may be gifted by registered instrument or by delivery. Under section 129 these rules do not affect Hindu law on gifts of movables in contemplation of death (donatio mortis causa).

Since section 14 of the Hindu Succession Act, a Hindu woman has the same power over property she owns absolutely.

2. Gifts of joint family property

The general rule. Under the Mitakshara, a coparcener cannot make a gift of his undivided interest in coparcenary property, whether to a stranger or to a relative, because his share is fluctuating and not defined until partition. Such a gift is void: Thamma Venkata Subbamma v. Thamma Rattamma, 1987 INSC 151, (1987) 3 SCC 294, AIR 1987 SC 1775. It cannot be saved by treating it as a renunciation in favour of the other coparceners unless it is in favour of all of them. Under the Dayabhaga, where shares are defined, a coparcener could always gift his share.

Exceptions. The Karta or father may make gifts out of joint family property in a few recognised cases:

• Movables, out of affection. Gifts of a small part of joint family movables within reasonable limits, for example on ceremonial occasions, to a wife, daughter or other member.
• Immovable property to a daughter. A reasonable portion of joint family immovable property may be gifted to a daughter on her marriage, or even later, in discharge of the family's moral obligation to provide for her: Guramma Bhratar Chanbasappa Deshmukh v. Malappa, 1963 INSC 174, AIR 1964 SC 510. Whether the portion is reasonable depends on the extent of the family property.
• Pious purposes. A Hindu father or Karta may gift a small part of joint family property for pious or charitable purposes, such as a temple, a dharmashala or a religious endowment. The gift must be reasonable in proportion to the family's means.

The exceptions are not to be stretched. In Ammathayee Ammal v. Kumaresan, 1966 INSC 167, AIR 1967 SC 569, a gift of joint family immovable property by a husband to his wife was held invalid. The Court explained that Guramma rested on the special obligation towards a daughter at marriage; there was no comparable rule permitting a gift of immovable joint family property to a wife.

3. Testamentary succession: section 30

Before 1956 a Mitakshara coparcener could not dispose of his undivided interest by will, since on his death it passed by survivorship. Section 30 of the Hindu Succession Act changed this. Any Hindu may dispose of by will or other testamentary disposition any property capable of being so disposed of by him or her, in accordance with the Indian Succession Act, 1925 or any other law in force applicable to Hindus. The Explanation provides that the interest of a Hindu in a Mitakshara coparcenary is deemed to be property capable of being disposed of by will. Since the 2005 Amendment the Explanation reads “him or her”, so a daughter coparcener can also will her interest.

Two consequences follow. First, intestate succession under sections 8 to 16 applies only to property not validly disposed of by will. Second, a will can cut out heirs entirely; Hindu law places no restriction on how much a person may leave away from the family, unlike Islamic law's one-third rule.

4. Wills and the Indian Succession Act

The Indian Succession Act, 1925 does not apply to intestate succession among Hindus, which is governed by the Hindu Succession Act. But section 57 and Schedule III apply many provisions of Part VI (testamentary succession) to wills made by Hindus: in the former provinces of Bengal, Madras and Bombay, and to all wills made anywhere on or after 1 January 1927. The key rules:

• Capacity (section 59). Any person of sound mind who is not a minor may dispose of his property by will. A person who is ordinarily insane may make a will in a lucid interval. A will made under intoxication, illness or other cause that deprives the testator of his understanding is invalid.
• Execution (section 63). An unprivileged will must be signed (or marked) by the testator, the signature must appear intended to give effect to the writing as a will, and it must be attested by two or more witnesses, each of whom has seen the testator sign or received his acknowledgment.
• Revocability (section 62). A will is ambulatory: it may be revoked or altered at any time while the testator is competent.
• Privileged wills (sections 65 and 66). Soldiers, airmen and sailors on actual service may make informal wills.
• Probate (section 213). Probate is required before an executor can establish rights in court only for wills covered by section 57(a) and (b), broadly wills of Hindus made in, or relating to immovable property in, the old presidency towns. Elsewhere a Hindu will may be proved in the ordinary way.

Because a will must be attested, section 68 of the Indian Evidence Act, 1872 (now carried into the Bharatiya Sakshya Adhiniyam, 2023) requires at least one attesting witness to be called to prove it. The leading case on proof is H. Venkatachala Iyengar v. B.N. Thimmajamma, 1958 INSC 98, AIR 1959 SC 443. The propounder must prove that the testator signed the will, that he was of sound disposing mind, and that he understood and approved its contents. Where there are suspicious circumstances, such as a shaky signature, an unnatural disposition excluding natural heirs, or the propounder taking a leading part in its making and a large benefit under it, the propounder must remove the suspicion to the satisfaction of the court's conscience.

5. Problem

A Karta of a Mitakshara family owning 40 acres gifts 2 acres to his married daughter five years after her marriage, and 10 acres to his wife. His sons challenge both gifts.

Issue. Can a Karta gift joint family immovable property to a daughter after marriage, and to his wife?

Law. A coparcener cannot gift joint family property (Thamma Venkata Subbamma), except within recognised limits. A reasonable portion may be gifted to a daughter, even after marriage (Guramma). No such exception exists for a wife (Ammathayee).

Application. Two acres out of forty is a reasonable portion, and the gift discharges the family's obligation to the daughter; the delay after marriage does not defeat it. The gift of ten acres to the wife falls outside the exception and is a gift of joint family property the Karta had no power to make.

Conclusion. The gift to the daughter stands; the gift to the wife is invalid and can be set aside at the sons' instance. The Karta could, however, have left his own undivided interest to his wife by will under section 30.

How this is examined

Usually as a short note: “Gifts for pious purposes”, “Testamentary succession under the Hindu Succession Act”, or “Section 30”. In an essay on the Karta's powers, the limits on gifts of joint family property are a necessary paragraph. The gift problem above can also be set as a Karta problem; answer with the same three cases.