According to Section 30 of the Hindu Succession Act, 1956, any Hindu can dispose of, by Will or other testamentary disposition, any property, which is capable of being so “disposed of by him or by her”
I am a Hindu and I have inherited a house from my father (self-acquired) as per his Will. I have two children. Can I choose to leave the house only to one of my children in my Will? If I decide to sell the house, can I do so on my own terms, without taking no-objection statements from my children? If I sell this house and buy another one from the proceeds, will my children have automatic rights of inheritance over the new property?
—Baldev
According to the facts provided by you, the house that you have inherited from your father under his Will was his self-acquired property and accordingly it did not form part of Hindu Undivided Family (HUF) property.
I have assumed that your father’s Will was validly made under the provisions of the Indian Succession Act, 1925 and that the house has vested in you under the Will as the sole beneficiary/legatee thereof and not jointly with any other person.
According to Section 30 of the Hindu Succession Act, 1956, any Hindu can dispose of, by Will or other testamentary disposition, any property, which is capable of being so “disposed of by him or by her", in accordance with the provisions of the Indian Succession Act, 1925, or any other law for the time being in force and applicable to Hindus.
Based on the assumption that you are now the sole legal owner of the house pursuant to the Will of your father, this means that you may dispose of the house to any person or persons you deem fit at your discretion, which can also be to one of your children, while excluding your other child, by way of a Will.
If you are the sole and absolute owner of the house inherited by you from your father as aforesaid, then you are also entitled to sell the house to any third person. You will not need the consent or “no-objection" of your children in order to do so. If, however, you hold the house along with any other owner(s) as tenants-in-common, you are only free to sell your share in that house to any person.
In the event that you sell the house (or your share in the house, as the case may be) and buy another property from the sale proceeds thereof, and if you do not execute a Will, then assuming that your sons are alive at the time of your death, they will acquire a share in your property on your death as “Class 1 heirs" under the provisions of Section 8 of the Hindu Succession Act, 1956, along with the other heirs falling under Class 1.
However, if you want to leave your properties to any other person, you could execute a Will in the manner set out under the Indian Succession Act, 1925 and bequeath your properties in such manner and to the persons as you deem fit under your Will.
You may note, however, that in the event that your sons are minors (or daughters are unmarried) at the time of your death, as per the provisions of the Indian Succession Act, 1925, if a Hindu dies leaving behind any “dependant" as defined under Section 22 (2) of the Hindu Adoptions And Maintenance Act, 1956, and if the dependant has not obtained, by testamentary or intestate-succession, any share in the estate of a Hindu (whose death occurs after the commencement of the Indian Succession Act, 1925), the dependant shall be entitled, subject to the provisions of this Act, to maintenance from those who take the estate.
As a result of this, while you can bequeath your property to any person you deem fit, your dependants who have not obtained, by testamentary or intestate-succession, any share in the estate shall be entitled to maintenance from and out of your estate from those who have inherited your estate.
Marylou Bilawala is partner, Wadia Ghandy & Co. Advocates, Solicitors and Notaries.
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