Keywords: Indian Succession Act, Hindu Succession, Self-acquired property, Family Law II, Testamentary Succession in India, Doctrine of representation
Very recently, in Angadi Chandranna v. Shankar & Ors., the Hon’ble Supreme Court held that post-partition, an individual’s share becomes their self-acquired property, making them its absolute owner. However, this raises the question of how the devolution of such ‘self-acquired property’ is to take place in the future.
For Hindus, if a person dies without making a will, their property devolves through intestate succession under the Hindu Succession Act, 1956. However, if a valid will exists, the property is distributed according to the will, governed by the Indian Succession Act, 1925 [Hereinafter, ISA].
Under the ISA, there is no restriction on giving away self-acquired property for Hindus, allowing a testator to completely exclude dependents and will away the property to anyone of their choice. This absolute freedom, however, is deeply problematic as it disregards the financial vulnerability of dependents and leaves them without any statutory protection or remedy. In contrast, Islamic law limits testamentary freedom to one-third of the estate, ensuring a balance between individual autonomy and the maintenance rights of legitimate dependents.
In Hindu law, the doctrine of representation plays an important role in governing rights over ancestral property. It allows family members to inherit jointly through their lineage. However, this doctrine applies only to ancestral property & not self-acquired property. In such a scenario, in cases where a family holds only self-acquired assets, immediate family members have no legal right if excluded from the will. The property owner, even if the head of the family, can will away the entire estate to a third party, leaving dependents without any legal remedy.
Under the ISA, the principle of testamentary freedom is paramount and hence, unlike certain foreign jurisdictions that impose restrictions to safeguard the financial security of dependents, it does not recognize the exclusion of dependents as a valid ground to challenge a will. Consequently, dependents who are disinherited are left without a direct statutory remedy under the ISA, which underscores the tension between absolute testamentary autonomy and the equitable protection of vulnerable family members.
This issue remains entirely unaddressed under Indian law. In contrast, evolved foreign jurisdictions place significant emphasis on maintenance obligations toward dependents. Indian law, however, relies on assumptions of joint family systems and the doctrine of representation, which do not apply to self-acquired property.
This article examines the seriousness of this gap, analyzes the global take on the issue and explores how India can adopt balanced legal measures to protect dependents without undermining testamentary freedom.
Why the Law Favours the Will: The Legislative Intent of Testamentary Freedom
The ISA vests individuals with absolute testamentary freedom for self-acquired property, rooted in the broader liberal philosophy that property ownership necessarily entails the right to its voluntary disposition. The underlying legislative intent has been to promote certainty in succession and respect individual autonomy while reducing state interference in private matters of a family. This method aligned with colonial legal philosophy, which treated testamentary freedom as an essential aspect of personal liberty and proprietary rights. Indian courts have consistently reinforced this principle through numerous cases. In Girja Datt Singh v. Gangotri Datt Singh, the SC affirmed that a valid will constitutes the clear and voluntary expression of the testator’s intent, and such intent must be given full effect by the courts, unless vitiated by fraud, coercion, or undue influence. Similarly, in Kanchana Nambiar v. Sivasankaran Nambiar, the Court reiterated that testamentary freedom must be upheld to give effect to the testator’s intentions regarding the disposition of their property, so long as the requisite procedural formalities are duly complied with.
The ISA reflects a jurisprudential commitment to private property and individual autonomy and views testamentary freedom as a logical extension of Article 300A of the Constitution. Since the Act was framed in a historical context where property guaranteed economic stability and upward mobility, it treated unrestricted testamentary power as extremely important to personal economic agency, family planning, and the orderly transfer of wealth across generations and according to the will of the testator.[1] The ISA intentionally omitted maintenance obligations within the framework of testamentary succession, relying on the assumption that familial relations, moral responsibilities, and cultural norms would sufficiently protect the interests of dependents.
This legislative framework, though appropriate in its historical context, was based on a patriarchal family structure that presumed informal support and considered formal legal safeguards almost unnecessary. Given the shift toward nuclear families, changing dependency dynamics, and rising elder financial insecurity, the foundational justification for unfettered testamentary freedom requires urgent legal reconsideration. Nevertheless, the original intent of the ISA remains clear, to preserve testamentary liberty as an expression of personal autonomy and respect for private property rights, subject only to procedural and public policy limitations.
The Unaddressed problem: When Dependents Fall Through the Cracks
Indian succession law provides individuals with extensive liberty to distribute their self-acquired property posthumously, subject only to minimal procedural protections. Judicial pronouncements have consistently reinforced this autonomy. In K.K. Verma v. Union of India, the SC has affirmed that testamentary freedom is intrinsic to property rights under Article 300A, upholding a liberal and individual-centric approach to inheritance and limiting state intervention in private estate matters.
Yet, such unbridled testamentary freedom carries significant costs. Disinheritance of dependents, particularly widows, minor children, and elderly parents, is neither hypothetical nor rare. Cases like Seth Beni Chand v. Kamla Kunwar acknowledge the moral failure involved in capricious disinheritance, though the absence of a statutory corrective leaves courts impotent to intervene meaningfully.
The consequences of this framework are stark. National data highlights the financial vulnerability of dependents in India, as evidenced by the Elderly in India Report (2021), which found that 49.4% of elderly rely financially on family. According to HelpAge India’s 2023 report, 34% face financial neglect post-bereavement. NFHS-5 reveals only 32% of women have independent access to inherited property.
These findings are not merely anecdotal, they expose a systemic fragility where testamentary freedom, when exercised without regard to dependents, can result in grave economic hardship.
The exclusion of dependents not only strips them of financial security but also heightens their susceptibility to poverty, social isolation, and gendered inequalities in property ownership. It can force vulnerable family members, particularly women and the elderly, into dependence on informal support networks or exploitative arrangements, thereby perpetuating cycles of economic marginalization and social invisibility.
In such a socio-economic landscape, the legal system’s failure to impose even a minimal duty of maintenance upon testators represents a profound abdication of constitutional obligations to protect dignity and substantive equality.
Lessons from Abroad: How Other Jurisdictions Balance Freedom and Duty
The experience of other jurisdictions vividly demonstrates that testamentary freedom can and must be balanced against familial obligations without fatally undermining property rights. Various scholars through the discourse recognize the need of responsibility while exercising testamentary freedom.
England and Wales serve as a leading example, through the Inheritance (Provision for Family and Dependents) Act 1975. Courts are empowered to alter testamentary dispositions where “reasonable financial provision” for dependents is absent, with judicial interpretation in Ilott v. The Blue Cross, affirming that testamentary wishes, while relevant, are not decisive where familial responsibilities have been disregarded. Australia similarly institutionalized family provision obligations through state-level statutes, with Singer v. Berghouse, emphasizing that claims must be adjudicated based on both financial need and the deceased’s moral duty.
The United States adopts a variant model through elective share regimes, particularly under the Uniform Probate Code § 2-202, ensuring that spouses receive a fixed portion of the estate regardless of testamentary instructions. Courts, such as in Estate of Cross, recognize marriage as creating enduring economic entitlements that persist beyond death.
Civil law jurisdictions impose even stricter controls through forced heirship doctrines. French law mandates that a portion of the estate be reserved for descendants under Articles 913–930 of the French Civil Code, while Germany’s Bürgerliches Gesetzbuch (BGB) guarantees Pflichtteil (compulsory portions) to heirs, ensuring familial economic continuity. In Italy, the legittima mandates fixed shares for close relatives, with disinherited heirs entitled to claw-back actions. Jurisdictions like Austria, Finland, and Hungary follow the German model, granting heirs a personal claim rather than ownership. The Netherlands allows only descendants a compulsory share, also as a monetary right. These models balance autonomy with dependents’ rights, unlike India, which permits total exclusion of dependents from self-acquired property.
At the same time, cautionary lessons do emerge. Juliet Brook’s empirical insights, reveal that family provision laws, particularly in England and Australia, have triggered a modest increase in probate litigation and attendant uncertainty. These risks have been effectively contained through procedural safeguards, such as strict limitation periods and promotion of mediation. Comparative jurisprudence thus affirms that well-structured statutory maintenance obligations advance justice without undermining the integrity of testamentary systems.
Proposed Legislative Framework: A Middle Path to Balancing Autonomy with Responsibility
A provision should be inserted into the ISA to impose a limited restriction on testamentary freedom. It would require testators to allocate a reasonable share for dependents and empower courts, upon application, to grant limited financial relief where a testator owning only self-acquired property has failed to provide for eligible dependents, without altering the overall testamentary scheme. The judicial role would be strictly supplemental, intervening only to prevent manifest hardship and destitution, not to rewrite the will.
In checking whether relief is warranted, the court must consider the financial position of the applicant, the obligations of other beneficiaries, the size and nature of the estate, any moral duties owed, and any provision made during the testator’s lifetime.
Importantly, the amendment could preserve testamentary autonomy by allowing judicial interference only where necessary, and any award would be limited, proportionate, and minimally intrusive. Where reasonable provision is already made, the testament remains undisturbed.
Conclusion
While the Indian Succession Act rightly protects a person’s freedom to decide how their property should be passed on after death, applying this freedom without limits, especially for self-earned property, can put dependents at a real financial risk. As family structures and dependency patterns continue to change, the absence of a legal duty to provide for dependents often leads to unnecessary hardship. Looking at other countries, it’s clear that well-balanced legal measures can ensure that this freedom is exercised responsibly, without ignoring the needs of close family members. Introducing a maintenance provision and a limit for testamentary freedom within the ISA framework would ensure that dependents are not left destitute, while still respecting the core of testamentary intent, striking a constitutionally sound and socially just balance.
This blog is written by Vedika Kulkarni, 3rd Year student, at Maharashtra National Law University Mumbai.
[1] Paras Diwan, Modern Hindu Law (25th ed. 2020).
