The Hindu Wills Act, 1870 – Historical Evolution, Judicial Interpretation, and Contemporary Relevance

The Hindu Wills Act, 1870 – Historical Evolution, Judicial Interpretation, and Contemporary Relevance

Introduction

The Hindu Wills Act, 1870 (Act XXI of 1870) constituted the first targeted legislative attempt of the colonial Government of India to bring Hindu testamentary practice within the fold of the Indian Succession Act, 1865. Although formally repealed and subsumed by the Indian Succession Act, 1925, its limited territorial and temporal regime continues to cast a long doctrinal shadow. Contemporary probate litigation frequently invokes its statutory successors—particularly section 57 of the 1925 Act—to determine the validity of Hindu wills, the necessity of probate, and the scope of testamentary freedom. This article critically analyses the Act’s legislative scheme, traces its judicial construction, and evaluates its continuing influence, drawing upon leading authorities such as Jatindra Mohan Tagore v. Ganendra Mohan Tagore[1], Alangamonjori Dabee v. Sonamoni Dabee[2], Janki Narayan Bhoir v. Narayan Namdeo Kadam[3], and the recent Supreme Court exposition of caveatable interest in Krishna Kumar Birla v. Rajendra Singh Lodha[4].

Historical Context

Pre-1870 Testamentary Capacity under Hindu Law

Classical Hindu law eschewed wills; devolution followed ordained rules of succession. Nonetheless, by the nineteenth century colonial courts had recognised testamentary dispositions by Hindus on the pragmatic ground of long-standing practice.[5] The Privy Council in Tagore (1872) firmly held that while Hindus possessed a power of bequest, the substantive incidents of Hindu law—such as the prohibition on creating an estate in tail male or gifting to an unborn person—remained paramount.[1]

Legislative Impetus

Two factors precipitated legislation: (i) the desire to assimilate probate procedure for Hindus with that applicable to Christians and Europeans; and (ii) uncertainty created by divergent High Court rulings on the formal requirements of Hindu wills. The Hindu Wills Act, 1870 answered both concerns by selectively applying specified provisions of the Indian Succession Act, 1865 to certain Hindu wills, while deliberately restricting the Act’s territorial sweep to the presidency towns and the Lieutenant-Governor’s provinces of Bengal, Madras, and Bombay.[6]

Legislative Scheme of the Hindu Wills Act, 1870

Section 2 was the Act’s fulcrum. It extended forty-six designated sections of the 1865 Act—including those on execution, attestation, revocation, lapse, election, construction of bequests, and the absolute bar against bequest to persons not in existence at the testator’s death—to:

  • (a) all wills and codicils made by any Hindu on or after 1 September 1870 within the presidency towns of Calcutta, Madras, and Bombay and the territories under the Lieutenant-Governor of Bengal;
  • (b) all such wills and codicils made elsewhere insofar as they disposed of immovable property situated within the said territories.

Crucially, the Act neither altered substantive Hindu succession law nor mandated probate. Section 5 preserved the testator’s right to make an oral (nuncupative) will outside the Act’s geographical reach, thereby perpetuating the dichotomy later highlighted in Sunita Shivdasani v. Geeta Gidwani[7].

Repeal and Continuity

The Indian Succession Act, 1925 repealed the 1870 Act, but section 57 substantially re-enacted its scheme. Clauses (a) and (b) replicate the presidency-town regime, while clause (c) extends the relevant provisions of Part VI to all wills by Hindus, Buddhists, Sikhs, and Jains executed on or after 1 January 1927 regardless of situs, thus standardising formalities such as attestation under section 63.[8]

Judicial Construction

Substantive Limits on Testamentary Disposition

Gifts to unborn persons. Alangamonjori Dabee (1882) held that, despite the 1870 Act, a bequest to a person not in existence at the testator’s death remained void because section 100 of the 1865 Act (now section 113 of the 1925 Act) had not been incorporated by the Hindu Wills Act.[2] The decision reaffirmed Tagore and underscored that the Act incorporated only specified sections, not the entire English doctrine of future interests.

Estates in tail male. The Privy Council in Tagore invalidated such estates as repugnant to Hindu law. Later, Jatindra Mohan Tagore reiterated that the 1870 Act did not empower testators to create new forms of estate inconsistent with Hindu law.[1]

Widow’s vested estate. The Full Bench in Moniram Kolita v. Keri Kolitani (1880) applied orthodox Hindu principles to hold that a widow’s inheritance could not be divested for unchastity, reflecting the substantive constraints that continued to operate notwithstanding the advent of testamentary powers.[9]

Formal Validity and Proof of Hindu Wills

Attestation. After section 63 of the 1925 Act became universally applicable (1 January 1927), the Supreme Court in Janki Narayan Bhoir strictly enforced the dual-attestation requirement, rejecting reliance on section 71 of the Evidence Act to cure omissions.[3] The judgment directly affects wills falling within section 57(c) but also influences those within clauses (a) and (b), which incorporate identical attestation provisions.

Oral wills. Sunita Shivdasani clarified that, post-1927, a Hindu cannot make a nuncupative will in any territory to which section 57(c) applies, thereby extinguishing the latitude that had persisted under the 1870 Act.[7]

Probate and Caveatable Interest

Section 187 of the 1865 Act (probate as condition precedent) was imported into the 1870 Act but only within its territorial ambit. Courts repeatedly held that outside those limits probate was unnecessary for a Hindu executor to assert title—see Ahemad v. Ghisia Hira Teli[10]. The differential treatment endured under the 1925 Act: section 213 still exacts probate for wills governed by section 57(a) & (b) but not for those under clause (c), a dichotomy recently upheld in Clarence Pais v. Union of India[11].

Probate contests prompted a nuanced doctrine of caveatable interest. In Krishna Kumar Birla the Supreme Court held that a caveatrix must demonstrate a real, substantive interest in the estate, not merely familial curiosity.[4] Although the case arose under the Succession Act, 1925, its reasoning informs the administration of Hindu wills still subject to the presidency-town probate jurisdiction created by the 1870 Act.

Removal of Coparcenary Restrictions

Traditional Mitakshara doctrine denied a coparcener the power to bequeath his undivided interest. This disability was first lifted statutorily—not by the 1870 Act—but by section 30 of the Hindu Succession Act, 1956. Nevertheless, scholarly commentary (Mayne; Tek Chand case) traces the incremental evolution back to the enabling spirit of the 1870 legislation, which signalled a shift from rigid familial succession to individual autonomy.[12]

Contemporary Relevance

Despite its repeal, the Hindu Wills Act, 1870 remains doctrinally relevant because:

  • Section 57 of the 1925 Act is modelled on the Act’s geographical bifurcation, perpetuating the probate mandate only within former presidency towns.
  • Interpretative precedents under the 1870 Act—especially on substantive Hindu law constraints—continue to guide courts when construing Hindu wills executed today.
  • Litigation frequently involves wills straddling the temporal divide (e.g., executed in the 1920s) where the Act’s provisions still directly govern questions of validity.

Recent Supreme Court pronouncements—V. Kalyanaswamy v. L. Bakthavatsalam[13] and Krishna Kumar Birla—underscore that the formalism introduced by the 1870 Act (attestation, probate, limited territoriality) remains the cornerstone of modern probate jurisprudence.

Critical Evaluation

The Act achieved procedural uniformity at the cost of creating a complex mosaic of overlapping regimes. Probate requirements hinge upon the testator’s residence and the property’s situs, spawning needless litigation over preliminary jurisdictional objections. The Law Commission of India has repeatedly recommended repealing section 213 or extending it uniformly; yet Parliament has not acted. A unitary regime, either by universalising probate or abolishing compulsory probate altogether, would better serve the constitutional mandate of equality and the commercial need for certainty in title.

Substantively, the Act neither displaced Hindu succession principles nor addressed gender inequities. The enduring validity of Tagore and Moniram Kolita shows that patriarchal notions embedded in classical law continued unabated. Reform arrived only with the Hindu Succession Act, 1956 and its 2005 amendment conferring coparcenary rights on daughters. Yet, testamentary freedom still allows discrimination, a tension that modern courts must navigate with constitutional sensitivity.

Conclusion

The Hindu Wills Act, 1870 marked a seminal moment in the anglicisation of Hindu testamentary law, introducing formal requirements of execution and probate within limited territories while scrupulously preserving substantive Hindu succession rules. Its repeal in 1925 did not efface its influence; through section 57 of the Indian Succession Act, its architecture endures. Jurisprudence from Tagore to Krishna Kumar Birla reveals a consistent judicial endeavour: to balance individual testamentary autonomy with the protective ethos of Hindu family law. Future reform must confront the residual anomalies—territorial probate requirements, gender biases, and the reconciliation of testamentary freedom with constitutional values—thereby realising the Act’s original promise of coherent and equitable succession law.

Footnotes

  1. Jatindra Mohan Tagore v. Ganendra Mohan Tagore, 1872 SCC OnLine Cal 73 (Calcutta HC).
  2. Alangamonjori Dabee v. Sonamoni Dabee, (1882) ILR 8 Cal — see also the 1881 interlocutory decision.
  3. Janki Narayan Bhoir v. Narayan Namdeo Kadam, (2003) 2 SCC 91.
  4. Krishna Kumar Birla v. Rajendra Singh Lodha, (2008) 4 SCC 300.
  5. Gadadhur Mullick v. Official Trustee of Bengal, AIR 1940 PC 45; see also Sonam Topgyal Bhutia v. Gompu Bhutia, 1979 SCC OnLine SIKK 11.
  6. Preamble and s. 2, Hindu Wills Act, 1870.
  7. Sunita Shivdasani v. Geeta Gidwani, 2007 SCC OnLine Del 200.
  8. s. 57 & s. 63, Indian Succession Act, 1925; see V. Kalyanaswamy v. Bakthavatsalam, (2020) 14 SCC 565.
  9. Moniram Kolita v. Keri Kolitani, (1880) ILR 5 Cal 776 (FB).
  10. Ahemad v. Ghisia Hira Teli, 1944 SCC OnLine MP 45.
  11. Clarence Pais v. Union of India, (2001) 4 SCC 325.
  12. Tek Chand v. Mool Raj, (1997) 1 Himachal Pradesh LR …; Mayne, Hindu Law & Usage, 12th ed., pp. 996-997.
  13. V. Kalyanaswamy v. L. Bakthavatsalam, (2020) 14 SCC 565.