Family Law

Mamta Dinesh Vakil v. Bansi S. Wadhwa

(2012) 6 Bom CR 767

Facts

The judgment dealt with two testamentary suits raising questions under Sections 8 and 15 of the Hindu Succession Act.
In the first suit:
a Hindu male died;
his paternal aunt claimed priority over his maternal aunt under the Class II Schedule to Section 8;
the maternal aunt challenged the preference given to paternal relatives.
In the second suit:
Nimmi Wadhwa, a married Hindu woman, died without children;
she owned a self-acquired flat and other property;
she had executed a handwritten will dated 15 March 1995 benefiting her niece and sisters;
her deceased husband’s brother entered a caveat.
The brother-in-law claimed that, if the will failed, he and the other heirs of the husband would inherit before the woman’s own brothers and sisters under Section 15(1)(b).
This led to a constitutional challenge alleging that the statutory succession scheme discriminated against:
a married woman’s natal family;
maternal relatives;
women generally.

Whether Section 15(1), by preferring the husband’s heirs over a woman’s parents and siblings even for her self-acquired property, was discriminatory.
Whether the Class II Schedule under Section 8 unjustifiably preferred paternal over maternal relatives.
Whether Nimmi Wadhwa’s will was validly executed and proved.

Section 15(1) generally provides that where a female Hindu dies intestate, her property devolves:
upon her children and husband;
upon the heirs of the husband;
upon her mother and father;
upon heirs of the father;
upon heirs of the mother.
Section 15(2) contains source-based exceptions for property inherited from:
parents; or
husband or father-in-law.
Self-acquired property remains governed by Section 15(1).
A single judge cannot finally invalidate legislation where the matter must appropriately be considered by a larger Bench under the High Court’s procedure.
A will must satisfy:
testamentary capacity;
voluntary execution;
statutory attestation;
proof through an attesting witness.

The Court identified a serious inequality in Section 15(1).
A married woman may acquire property entirely through:
her own education;
employment;
savings;
assistance from her natal family.
Yet, if she dies childless and intestate, distant relatives of her husband may exclude:
her parents;
her brothers;
her sisters.
The Court observed that this preference was difficult to justify for self-acquired property because there was no question of returning the asset to its original source.
It also questioned the preference given in Class II succession to certain paternal relatives over corresponding maternal relatives.
However, the Court did not finally declare Sections 8 or 15 unconstitutional.
The constitutional questions were referred for consideration by a Division Bench.
On the will, the evidence showed that:
it was in the deceased’s own handwriting;
she had signed it several times;
an attesting sister gave evidence about execution;
the signatures and circumstances supported genuineness.
The brother-in-law’s objections did not establish forgery or lack of testamentary capacity.
The will was therefore proved on merits.
Since the constitutional issue concerned only intestate succession, a valid will allowed the deceased’s chosen beneficiaries to take the estate.

The will dated 15 March 1995 was held valid.
Letters of Administration with the will annexed were granted.
The constitutional validity of the succession provisions was referred to a Division Bench rather than finally decided.
Pending that determination, the estate was not to be depleted, although limited use of the flat was permitted subject to an undertaking against alienation.
Use this case for: judicial criticism of gender discrimination in Section 15, while remembering that the single judge did not finally strike the provision down.