INTESTATE & TESTAMENTARY SUCCESSION
Write a short note on Testamentary Succession and Intestate Succession.
According to Mitakshara law school, a member of a joint Hindu family acquires two kinds of properties:-
• Joint family property
• Separate property
According to Mitakshara law school, joint family property is devolved upon members of joint Hindu family through partition. According to this school, coparceners have right to claim partition and whenever they claim partition then joint family property is devolved upon all the members according to the rules of Mitakshara law school whereas separate property is that property which is acquired by member because of his own efforts. He acquire this property without any aid or assistance of joint family property.
Whenever a member acquires any property whether joint family property or separate property, he acquires not only ownership but along with it he acquires other rights like right to have possession, right to alienate the property etc.
According to Hindu law, a property of a member can be devolved either by testamentary succession or by intestate succession.
The word testamentary has been derived from the word testament which means “Will” and the term “Will” has been defined under Section- 2(h) of Indian Succession Act, 1925 which states that “will” means a legal declaration of the intention of a person with respect to his property, which he desires to take effect after his death.
In testamentary succession, before the death of a person, he bequeaths his property through will.
Therefore it means before death, a person writes a will and in that will he states that after my death such property will be given to this particular person. Such will comes into effect only after the death of a testator.
Before the enactment of Hindu Succession Act, 1956, a person could alienated only separate property through will. He had no right to alienate his undivided share of joint family property. But due to the enactment of Hindu Succession Act, 1956, section 30 of the act gives power to a member of joint Hindu family to alienate his undivided share of joint family property through will.
So, it can be said that a member of joint Hindu family can alienate both separate property as well as undivided share of joint family property through will.
On the other hand, if a person dies without making a will, then in such a case his property is devolved through intestate succession. In this situation, if a person dies without making will then his property is devolved according to the provisions of Hindu Succession Act, 1956.
This act deals mainly with separate property of a person and in case of intestate succession, according to the provisions of this act, separate property of a person is devolved upon class- I heirs, class-II heirs, agnate or cognates.
In case of intestate succession, the property of person is devolved only upon his relatives but in this preference is given to one relative over the another because of near relationship. But in case of testamentary succession, a testator can bequeath his property either to a relative or even to a stranger.
If a person dies intestate, in such a situation, his property is governed by Hindu Succession Act, 1956 whereas in case of testamentary succession, it is purely his discretion and according to his choice, he can alienate his property to any person and he has no need to take consent of other family members.