So far we have considered intestate succession only, and the power of
testamentary disposition is unknown to the true Hindu law. It was
introduced by the decisions of the British courts of justice. By a will
is meant a declaration by a man of his wishes as to the disposition of
his property after his death, taking no effect during his life. A will
is therefore by its very nature revocable. The general question whether
a Hindu could dispose of his property by will arose in Bengal when
Hindus began to attempt to dispose of their property after their death
according to the English method. At that time there was a doubt whether
the father was so completely absolute that he could dispose of his
property to the exclusion of his sons, even in his lifetime. As soon as
it was settled that he could do so, it was assumed that he could also
make a will. It seems never to have been asked why it was that up to
this time no Hindu had ever made a will, or to question the radically
false assumption that the power of alienation _inter vivos_ and the
power of testamentary alienation necessarily go together. A long series
of decisions confirmed by the legislature has, however, established that
a Hindu in modern times can dispose of any property of which he is the
sole owner. In other words, a Hindu can dispose by will of his
self-acquired property, and under the Dayabhaga a Hindu can dispose by
will of his share in family property. But the courts which created the
testamentary power have also limited it to disposition in favour of
persons living at the time of the testator's decease, thus avoiding many
of the fanciful dispositions of property to which testators in all
countries are so prone. But, curiously enough, this restriction,
salutary as it is, has also been based on the notion that a testamentary
disposition is a gift from the testator to the object of his bounty.
Debts.
Public-domain text, read in full here on John Shaqi.
Reviews
Reviews
No reviews yet
Be the first to share your thoughts on this work.
Elsewhere in the archive
Join the Discussion
Join the discussion
Sign in to leave a comment or review.
Sign InorCreate an account