Gifts, Wills, and Testamentary Succession

1) Introduction: What these concepts mean #

Under Hindu law, property can pass from one person to another mainly in two ways:

• Inter vivos transfer (during lifetime): e.g., Gift
• Testamentary transfer (after death): e.g., Will (leading to testamentary succession)
  If a Hindu dies without a will, property devolves by intestate succession (mainly under the Hindu Succession Act, 1956).

2) Gifts under Hindu Law #

(A) Meaning and essentials #

A gift is a voluntary transfer of ownership without consideration, made during the donor’s lifetime, and accepted by the donee.

Legal basis: Gifts are governed primarily by the Transfer of Property Act, 1882 (TPA), Section 122 (definition) and related provisions.

Essentials of a valid gift

1. Donor must be competent to transfer (major, sound mind, title/authority).
2. Subject matter must be transferable property.
3. Voluntary intention (no coercion, fraud, undue influence).
4. No consideration.
5. Acceptance by donee during donor’s lifetime (and while donor is capable of giving).
6. Mode/Form:
   • Immovable property: must be by registered instrument signed by/for donor and attested by at least two witnesses.
   • Movable property: may be by registered deed or delivery.

(B) Revocation of gift #

A gift is generally irrevocable, except:

• By mutual agreement (express condition that gift can be revoked on specified event—valid only if not purely at donor’s will), or
• If it is vitiated by fraud/undue influence/coercion, etc.

(C) Special point in Hindu law: Gifts of coparcenary/ancestral property #

• A coparcener cannot ordinarily gift away joint family (coparcenary) property at his mere pleasure.
• Exception traditionally recognised: reasonable gifts for pious purposes and gifts of small portion on special occasions may be upheld depending on facts.
• After the Hindu Succession (Amendment) Act, 2005, daughters are also coparceners, so similar principles apply to them as well.

3) Wills under Hindu Law #

(A) Meaning #

A Will is the legal declaration of a person’s intention about disposal of property to take effect after death. It is revocable during the testator’s lifetime.

Legal basis: Indian Succession Act, 1925 (general law of wills), and for Hindus specifically, the capacity to make a will is clearly recognised in Section 30 of the Hindu Succession Act, 1956 (especially for a Hindu’s interest in coparcenary property).

(B) Essential requirements of a valid will #

1. Testator competent: major, sound mind, free will.
2. Testamentary intention: disposition to operate after death.
3. Property identifiable and legally disposable.
4. Execution & attestation:
   • Will must be signed/marked by the testator.
   • Must be attested by at least two witnesses (each witness saw the testator sign/acknowledge signature).
5. No compulsory registration (registration is optional but helps evidentiary value).

(C) Revocation and alteration #

• A will can be revoked by making a new will, codicil, burning/tearing, or any act showing intention to revoke, as per law.

(D) Proof of will #

When a will is disputed, the propounder must prove due execution and attestation; courts often look for absence of “suspicious circumstances” (like unnatural exclusion of heirs, shaky signature, weak mental condition, etc.).

4) Testamentary Succession in Hindus #

(A) Meaning #

Testamentary succession means succession as per a will (i.e., property passes according to the testator’s wishes).

(B) What property can a Hindu bequeath? #

• Self-acquired property: fully disposable by will.
• Separate property: disposable.
• Interest in coparcenary property: a Hindu can dispose of his/her undivided interest in Mitakshara coparcenary property by will (HSA, Section 30). The will operates on the share/interest that would belong to the testator.

(C) Effect of a will vs intestate rules #

• If there is a valid will, the normal intestate scheme under Sections 8–13 of HSA does not apply to property covered by the will.
• If the will covers only part of the property, then:
  • Will governs that part, and
  • Remaining property goes by intestate succession.

(D) Probate / Letters of Administration #

• Probate is court certification of the will.
• For Hindus, probate is not compulsory everywhere in India, but it is required in certain notified territories (historically, Presidency towns such as Mumbai/Chennai/Kolkata and specified areas).
• Where probate isn’t mandatory, a will can still be acted upon if proved, but probate adds strong legal confirmation.

5) Short conclusion #

In Hindu law, gifts are lifetime transfers governed largely by the TPA, requiring voluntariness, acceptance, and (for immovable property) registration. Wills are revocable testamentary instruments, governed mainly by the Indian Succession Act, and expressly recognised for Hindus under HSA Section 30, including for a person’s coparcenary interest. Testamentary succession gives primacy to the deceased’s intention, and where a valid will exists, property devolves accordingly; otherwise, it devolves by intestate succession under the Hindu Succession Act.