TESTAMENTARY DISPOSITION UNDER HINDU LAW

(V. Sivaswamy, B.A., B.L., Advocate, Crangannore)

Testamentary disposition is nothing but the product of a necessity felt by man to divert the natural course of succession. Apart from the Seven Wonders of the World so widely spoken of in this material world, there is an equally great wonder seen recorded in the famous stanza contained in the Mahabharatha -”Day by Day, creature after creature doth enter Yama’s abode and yet, those who remain, seek to live forever. What is there still more wonderful?” (1) Man is dust; to dust he should return. Can he on such return take with him the material fruits of his life’s labour? This apparent disability, he has not failed to feel; yet he does not lose heart. He goes on with the question-who should enjoy his wealth when he is no more?

All schools of Hindu Law have waxed eloquent in discussing the question-Who should inherit a person’s estate in the event of his death? Elaborate rules are found in the various texts, to determine the person or persons to whom the estate of a man should go on his death. But the ancient texts seem to be silent with respect to the question, whether the porosities himself without reference to these rules, can during his life-time itself, determine the person to inherit his estate. In other words, the idea of a testament as something effective to divert the course of succession prescribed by law seems to have been unknown to the ancient fathers of Hindu Law.

The history of the development of Hindu Law will reveal that testamentary disposition first gained currency in Bengal and it was slow to be recognized in the south. The Bengal school of thought headed by Jimutha-vahana who was for absolute proprietorship seems to have been more congenial to the development of testamentary disposition. The south, adopting as it did, the Mithakshara propounded by Yagnavalkya, who maintained the right by birth given to the son, apparently ought to have found some difficulties in readily conceding the right of testamentary disposition. The leading case on the point pertaining to the southern school is Nagalutchmee v. Gopoo (2) where the right of testamentary disposition was confirmed by the Privy Council. Commenting upon this decision John D. Mayne observes: “...there can be little doubt that the decision was in unconscious conformity with the popular feeling-a feeling which aimed at increased liberty in regard to property, and which showed itself by attempts to alienate it in ways unknown to the law of the Mithakshara, In fact, the people of Southern India, were trying perhaps with-out knowing what they did, to take upon themselves the powers which Jimutha-vahana and his disciples had conferred upon the Hindus of Bengal”. (3)

Consistent with the consciousness of the community and perhaps consistent also with the freedom of disposal of property guaranteed as a fundamental right to all citizens under our Constitution, our Parliament has provided achapter on Testamentary Succession as Chapter III in the Hindu Succession Act of 1956. (4). Clause (1) of Section 30, the only section contained in that chapter gives to every Hindu the right of disposing any property by will or other testamentary disposition. The essential condition precedent to the exercise of this right is that the property should be capable of being so disposed of by him in accordance with the provisions of the Indian Succession Act, 1925 (5) or any other law for the time being in force applicable to Hindus.

It is clear therefore from Section 30 clause (1) that the right of testamentary disposition granted thereby is not an absolute or unqualified right, but is only a qualified one, the extent and limits of which are to be determined with reference to the Indian Succession Act and pristine Hindu Law in the light of legislative enactments, if any bearing thereon.

Part VI of the Indian Succession Act deals with testamentary succession & though as per Section 57 of the said Act, most of the provisions of that Part are made applicable to Hindus, one of the restrictions imposed upon such application is that no testator should bequeath property which he could not have alienated inter vivos or to deprive any person of any right of maintenance of which, but for the application of those sections, he could not deprive them by will. The same was the result brought about by the Hindu Wills Act, 1870 (6) and the Probate and Administration Act 1881 (7). The indefeasibility of the right of maintenance by testamentary disposition is of course expressly declared in clause (2) of Section 30 of the new Act.

The limits of testamentary capacity with reference to the nature of the property, sought to be derived as gathered from the uncodified Hindu Law in the light of judicial pronouncements are also the same. Whatever property is so completely under the control of the testator that he may give it away in specie during his life-times, he may so devise by will. Hence a man may bequeath his separate or his self-acquired property. Even a sole surviving co-parcener may be queath the family estate which comes to vest in him exclusively on the death of all the other co-parceners, for that is property over which he comes to have absolute control. A woman may dispose of by will such parts of her Sthridhanam as Aare during her life-time absolutely under her own control. She could not thus devise by will property inherited from a male, because the estate that she gets thereby is only a limited estate. A member of an undivided family having an interest in the joint family could not yet bequeath it by will for “at the moment of his death, the right by survivorship is at conflict with the right by devise. Then the title by survivorship, being the prior title, takes precedence to the exclusion of that by. Devise” (8).

The question is how far the present Hindu Succession Act has modified the prior law relating to wills. So far as property inherited by a woman is concerned, what was once only a limited estate is rendered under Section 14 an absolute one over which she gets absolute powers of control, provided she is possessed of the estate on the date of commencement of the‘Act (9) with the advent of the Act, property inherited by a female from a male, becomes her absolute property capable of being devised by her by will.

But what about the interest of a co-parcener in co-parcenary property? The distinct attribute of the Mithakshara School is the propounding of the theory of devolution by survivorship as distinct from devolution by succession-a theory which is perhaps a logical consequence of the allied theory of right by birth. The Mithakshara Law as propounded by Yagnavalkya probably knew no such thing as succession properly so called in a Hindu co-parcenary. To quote the classical words of Lord Westbury, “no individual member of the family, whilst it remains undivided, can predicate of the joint and undivided property that he, that particular member has a definite share, one-third or one-fourth”. (10) His is a fluctuating interest capable of being enlarged by deaths and liable to be diminished by births in the family.

As is seen from section 6 of the new Act, it can be seen that the law of Mithakshara relating to devolution of property by survivorship is not completely abrogated. It is expressly preserved to operate in all cases except in the case of the existence of a female heir or a male heir claiming through such female as specified in class 1 of the Schedule. Clause (1) of section 30, if it had stood above, would not have authorized devise by will of a co-parcener’s undivided interest in co-parcenary property. But trouble is caused by the explanation appended thereto declaring that notwithstanding anything contained in the Act or in any other law for the time beieg in force, the interest of a male Hindu in a Mithakshara co-parcenary property shall be deemed to be property capable of being disposed of by him within the meaning of the sub-section.

The wide language in which the evplanation is couched and the presence of the non-obstante clause therein raises at least apparently a conflict with section 6 providing for devolution by survivorship of the co-parcener’s interest. But a close analysis of the various provisions contained in the statute may resolve the apparent conflict.

Section 6, it may noted, does not deal with succession at all. It is concerned with devolution of interest in co-parcenary property and provides that such interest shall on the death of the co-parcener devolve by survivorship upon the surviving members of the co-parcenary and not in accordance with the provisions of the Act. Full respect has been given to the theory, that a co-parcener acquires a right by birth in the co-parcenary property immediately on his becoming a member thereofan interest not at all capable of being predicated, but at the same time a fluctuating interest liable to be diminished by births and enhanced by deaths of members in the co-parcenary. Devolution by survivorship is incompatible with the right of testamentary disposition in respect of co-parcenary interest, because as observed earlier, at the moment of the co-parcener’s death, “the right by survivorship will be at conflict with the right by devise”. In ordering devolution by survivorship in section 6, the legislature has been wise enough to use also the words-”and not in accordance with thisAct”, The Act deals with succession-both testate and intestate. It is for purposes of section 30 dealing with testate succession that the explanation is given that the interest of a male Hindu in co-parcenary property is devisable by will. The words “within the meaning of this sub-section” occurring at the end of the explanation are not without significance. When such interest is to devolve by survivorship as per section 6, no question of succession at all arises; the provisions of the Act including section 30 and the explanation are not attracted at all. Much effort is not required to see that it is only when the devolution by survivorship as contemplated by the main part of section 6 is ruled out, that the freedom of testamentary disposition given by section 30 read along with its explanation can be exercised.

Devolution by survivorship of the co-parcener’s interest is ruled out in case there is a female heir or a male heir related through a female. In such cases, the rule of survivorship as enunciated in the Mithakshara is given the goby; succession is substituted for survivorship. And when once succession is introduced, it can either be intestate succession as contemplated in chapter II of the Act or testamentary succession as provided for in Chapter III, section 30. It is when testamentary succession arises, that the freedom of testamentary disposition in respect of the co-parcenary interest envisaged in the explanation to section 30 gets projected into bold relief.

It may be noted that it is in answer to the call from the champions of the fairer sex clamouring for economic freedom for the woman that the rule of survivorship has been abrogated by the proviso to section 6 and daughters and other female heirs included as heirs within class I of the Schedule, In the case falling within the proviso, the interest of a deceased co-parcener as determined by a notional partition taking place between the co-parceners immediately before his death (see explanation I to section 6) instead of vesting by survivorship upon the other co-parceners is to descend on the heirs specified in class I of the Schedule. This descent of property by succession upon such heirs can very well be obviated by resorting to testamentary disposition, so that by one stroke of the pen, the testator can, if he wishes throw over-board all the new heirs introduced by the Act. He can throw over-board even sons, daughters and all others and ordain a complete stranger to inherit his property-a feat he could not perform under pristine Mithakshara law even after it came to countenance the effect of wills. In all cases where a man is able to dispose of his property he could do so by will. Thus he could devise by will even his interest in a co-parcenary, provided he left no other co-parcener behind. But he could not do so if he left behind a son or other co-parcener for such son or other co-parcener, immediately on his death, became a co-parcener with him, acquiring at the same time an interest potent enough to absorb to itself his interest on his death. This theory is adhered to by section 6 of the Act, to the extent to which the rule of survivorship is directed to exclude the rule of succession; but when once succession comes into play, which is a consequence of the introduction of new heirs, the power of testamentary disposition can also be exercised. The Act no doubt gives the right of inheritance to daughters and other female heirs; but at the same time, it has given the co-parcener the freedom of disposing of that interest by will-an instrument which he may use with effect to keep them at bay. The extent to which such testamentary disposition is resorted to will give us an inverse measure oi the popularity of the new law of succession introduced by the Act.

Foot Note:

(1) Ahanyahani Bhuthani Pravisanti Yamalayam; Seshah athavarami-chanti Kimaschayram Athah Param.

(2) 6. M. I. A. 309.

(3); Mayne’s “Hindu Law” 8th Ed. P. 564, Para 413.

(4) Central Act 30 of 1958.

(5) Central Act 39 of 1925.

(6) Central Act XXI of 1870.

(7) Central Act V of 1881.

(8) Per curiam Vitla Butten v. Yarnunamma 8. Mad. H. C R. 6.

(9). Kotturuswami v. Veeravva A. I. R. 1959 S. C. 577.

(10). Appoovier v. Ramasubbiar (1866) H,M- 1. A. 75

Recovery v. Discovery & 1979 K.L.T. 642

V.K. Sathyavan Nair, Advocate, Kottayam

Reformative suggestions, often lack realism. But the desire of the Bench to change the law springs out from legal reality and anxiety to do justice. An experienced judge is the fittest person to comment upon the failure of justice resulting from the application of certain provision of Statute or particular branch of law. It is not because of the official position, but for other reasons. There may be occasions where a Judge is compelled to take a decision that he knows to be unjust, under the weight of authority. The court has to solve so many difficult riders that may come before it arising out of the application of the law and from experience the court may be able to suggest what the law should be. But unfortunately such suggestions are very rarely given due consideration by the legislature. A close relationship between the courts and the legislature is necessary for effective law reform. G. W. Paton in his Text book of Juriprudence has stated that the judicial complaint is often buried in the reports and no action follows. In many countries the Judges are empowered as a body to make suggestions for the reform of the law, but for various reasons few changes can be ascribed to this source. If there is lacking a channel between the courts and the legislature, there may also be little co-operation between the legislature and a law revision committee.

Frequently we came across with, such reformative suggestions in reported cases. Recently our Kerala high Court has expressed its view and recommended, the deletion of S. 27 of the Evidence Act. (See. 1979 KLT. 337 and 1979 KLT. 642). The court has also given its reasoning for taking such a view. The decision reported in 1979 KLT. 642 is commendable in another respect also. The court has unhesitatingly undone the practice hitherto followed by the criminal courts in allowing indiscriminately the request by the police for the custody of the accused for the purpose of effecting recovery of the material objects. It is only fair and just to turn down such requests especially when the accused says that he has no information to be passed into the police in connection with the crime. The court did, and rightly too, give more weight to the principles under which a citizen's liberty is safeguarded than to the sub-telities of procedural rules.

'Recoveries' are usually coverted into 'discoveries' by the Police misusing S. 27 of the Evidence Act. Our courts have over and again deprecated "such practices. To the investigating agency the words 'recovery' and discovery are synonymous. The word 'discovered' in S. 27 is used in a peculiar sense. Discovery is the act of finding upon search something, the existence or the locality of which was unknown till then. The fact discovered must be discovered in the sense that the proof of the existence of that fact no longer rests on the credibility of the accused's statement, but rests on the credibility of the witnesses who depose to the existence of that fact. It has been held in a number of cases that the fact discovered must be such as the police had not previously discovered from other sources and that there must be a discovery in the sense that the knowledge of the existance of the fact was first of all derived from the information given by the accused. There is no discovery when the articles are not recovered from any hidden place and when in the normal course of investigation the investigating agency is bound to see them and take them in possession without the accused making any statement. In several cases there is really no discovery as in the case where the investigator recovers the thing first and then records a statement connecting the accused with the fact found out. There may be also cases of planting the articles of crime fpr availing the benefit of S. 27.

It is true that in spite of the several safeguards contained in S. 27, the provision is often misused by the investigating agency for supplying evidence. As our High Court has observed an artificial S. 27 recovery' taints the entire investigation. The court has further observed that it is only rarely that an accused person voluntarily gives information about such weapons.

The Judgment concludes with the following remarks. The blatant manner in which the investigating officer has made the request to the Chief Judicial Magistrate to make available the petitioner to custody of the Police for the purpose of an "effective recovery" speaks eloquently in favour of deletion of this section from Statute".

Certainly, the legislature should take note of the complaint of the judiciary and its desire to change the law by deleting S. 27 of Evidence Act. However, the evils of unfair and oppressive investigation is not confined to a particular Section alone.

The Evidence Act, is nothing but English Law of Evidence reduced to the form of express propositions. There are, of course some modifications rendered necessary by the peculiar circumstances of India. The English Law of Evidence is almost wholly Judge-made Law. The Evidence Act was drawn up chiefly from Taylor on 'Evidence'. S. 27 corresponds to paragraph 902 of his treatise and the introduction of the Section in the Evidence Act was an attempt to apply the English law of Evidence about information unduly obtained from a prisoner to information given by an accused while in the custody of a Police officer. Ss. 25 and 26 of the Evidence Act are peculiar to our country. The history of the Rules containing the law of confession would, no doubt, reveal the anxiety of the legislature in laying down stringent safeguards in the interest of accused persons against the malpractices of Police officers extending even to positive torture. The Indian Penal Code provided two special sections (330 and 331) directed against such malpractices. If the law does fail to protect jealously the prisoners against becoming the victim of their own delusions, or the machinations of others, the entire law of confession has to be overhauled in a reasonable and systamtic manner to cope with the changing times. Adequate safeguards can be provided including the right to counsel during interrogation and warnings to the suspect or accused of his right to counsel and to remain silent. Further, if the peculiar circumstances and the conduct of the police existed in our country at the time of drafting the Evidence Act, a centuary ago, had not been changed, no object will be achieved by changing the law alone. A thorough reorientation of the procedure of investigation is the only remedy.