The right of a Hindu to dispose of by will (or other testamentary disposition) any property which is capable of so being disposed of by him or her, in accordance with the provisions of the Indian Succession Act is expressly recognised by Section 30 of the Act. Thus, S. 30 is merely an assertion of the general rule that a Hindu is capable of disposing of by will any properly, which is within his or her power to bequeath.
The Explanation to this Section provides that the interest of a male Hindu in a Mitakshara coparcenary property or the interest of a member of a tarwad, tavazhi, illom, kutumba or kavaru in the property of tarwad, tavazhi, illom, kutumba or kavaru is deemed to be property which he can dispose of by will notwithstanding any other rule of law to the contrary.
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ADVERTISEMENTS:
According to the ancient Mitakshara Law, no coparcener could dispose of by will, his undivided coparcenary interest, even if the other coparceners agreed to such a disposition. This rule of Mitakshara Law is now abrogated by this Section, because the Explanation to the Section makes it abundantly clear that the interest of a male Hindu in the coparcenary property of a Mitakshara coparcenary is now property which he is capable of disposing of by will notwithstanding any other rule of law to the contrary.
As seen earlier, according to the Dayabhaga law, a father can, by will, dispose of his entire property, whether ancestral or self- acquired. Likewise, a coparcener of a Dayabhaga coparcenary can, by will, dispose of a whole of his interest in joint family property. Now, after the passing of the Act in 1956, the same rules apply to Mitakshara Joint Family properties also.
The Madras High Court has clarified that what a coparcener can do is dispose of his interest in joint family property by will. There is still no power to do so by a gift. (M.S. B.Y. Board v. Subramania, A.I.R. 1973 Mad. 277)