Indian Succession Act, 1925

Section 95:

The Privy Council observed as far back as in the case of Md. Samsul Huda vs Suratram (1874) 2 IA 4 p.14 that, in construing the will of a Hindu, it is not proper to take into consideration what are known to be the ordinary notions and wishes of Hindus with respect to the devolution of property. It may be assumed that a Hindu generally desires that an estate, especially an ancestral estate, shall be retained in his family. It may also be assumed that a Hindu knows that, as a general rule, women do not take an absolute estate of inheritance which enables them to alienate the property.

The principle of law enunciated by the Privy Council in the above case was reviewed by various High Courts in recent years. It was held in Nagammal vs Subhalakshmi AIR 1947 Mad 319 that, at present, there is no warrant for the presumption that there is any difference between a male and female donee to make a gift any less absolute in the case of a female when words are sufficient to convey an absolute estate to a male.

In the case of a bequest of property by a Hindu testator to his wife and two brothers, there is no presumption that only a life estate is conferred on the wife.

Ultimately, the Supreme Court settled the matter in Ramgopal v Nandala AIR 1951 SC 139, followed by Nathoolal v Durga Prasad AIR 1954 SC 355, where it was decided that there is no basis for the proposition that in the case of a grant of immovable property to a female, she does not take an absolute or alienable interest unless such power is specifically conferred upon her.

In Indra v Bijai 27 CWN 221 (PC), however, the Privy Council held that there is a presumption that in the case of a gift to a Hindu woman, by will or otherwise, only a woman's estate is intended to be conveyed.

One of the tests for determining the ambit of the estate conveyed by the gift is the declaration of the purpose thereof. Thus, where a testator made a gift of immovable property to his widow, declaring it as 'for your maintenance' but included words indicating that the interest given was an estate of inheritance with the power of alienation, it was held that the gift was absolute and not for the limited purpose of maintenance ( Joggeswar v Ram Chandra ILR 23 Cal 670 (PC)).

Similarly, another important indicator for determining the quality of property that passed under a gift is the power of alienation conferred upon the donee, which is more consistent with the grant of an absolute estate ( Tulsidas v Madangopal ILR 28 Cal 499).

However, a mere grant of immovable property to a Hindu female, without more, and with no words conferring on her any power of alienation, was held to convey only a life interest in such property ( Nannu v Krishnaswami 14 Mad 274; Kalidas v Kanaiyalal ILR 11 Cal 121 (PC); see also Hirabai v Lakshmibai ILR 11 Bom 573).

The presumption of law that a mere gift to a Hindu woman, without more, confers only a life interest is no longer valid as far as the Presidency of Madras is concerned ( Chidambaram v Theveriya 54 IC 554; Rangaswami v Rangaswami 88 IC 249).

In Bundura v Koppala AIR 1961 Ori 49: ILR 1961 Cut 96, the testator made a bequest of his movable and immovable properties to his mother, coupled with the right of alienation. There was a subsequent provision in the will for the division of the property. It was held that an absolute estate was granted to the mother and that all subsequent directions inconsistent with such an estate were void.

However, as indicated earlier, the conflict of opinion was settled by the Supreme Court in Ramgopal v Nandalal AIR 1951 SC 139.

6. Surrender of interest by widow: Where a will grants a life interest to the testator's wife in house property with the direction that, upon her death, the property would go to the testator's heirs, and there is a restriction on alienation, the wife cannot surrender her rights in the property to accelerate the devolution. Furthermore, the surrender cannot form a part of the estate granted to the testator's wife ( Raj Kumari v Rajendra Nath AIR 1987 Del 0/2024).