WILL & HINDU LAW
A will or testament is a legal document by which a person, the testator, expresses their wishes as to how their property is to be distributed at death, and names one or more persons, the executor, to manage the estate until its final distribution. For the devolution of property not disposed of by will.
Though it has at times been thought that a "will" was historically limited to real property while "testament" applies only to dispositions of personal property (thus giving rise to the popular title of the document as "Last Will and Testament"), the historical records show that the terms have been used interchangeably. Thus, the word "will" validly applies to both personal and real property. A will may also create a testamentary trust that is effective only after the death of the testator.
Definition
S. 2(h) of Indian Succession Act, 1925 provides that Will means the legal declaration of the intention of a person with respect to his property, which he desires to take effect after his death Will has been defined in Corpus Juris Secundum as A ‘Will’ is the legal declaration of a man’s intention, which he wills to be performed after his death, or an instrument by which a person makes a disposition of his property to take effect after his death.
A last will and testament is a legal document that communicates a person's final wishes pertaining to possessions and dependents. A person's last will and testament outlines what to do with possessions, whether he is leaving them to another person or group or donating them to charity, and what happens to other things for which he is responsible, such as custody of dependents and accounts and interests management.
A will made by a Hindu, Buddhist, Sikh or Jain is governed by the provisions of the Indian Succession Act, 1925. However Mohammedan are not governed by the Indian Succession Act, 1925 and they can dispose their property according to Muslim Law.
Key ingredients of a Will are as follows:
Testator Details - Name, age, address details of the person making the Will
Legal declaration - A Will is a declaration. A Will is by which a living person (called testator) declares his desires or intentions. A Will is never an agreement or contract or settlement. It is for this reason that the beneficiaries of a Will should not be parties to the Will. The declaration must be legal. A declaration that is illegal either by way of the ultimate objective or in some other way will not be considered as a Will.
Intention of testator - A Will is a declaration of intention of the person making the Will. By definition, intention relates to the future and is different from statement of narration of facts as at present. A Will that only narrates the present state of affairs and does not carry a clear exposition of the intention of the testator is not a Will. Similarly, if a Will made by a wife stating what her deceased husband always desired before death is not a Will; since it carries intentions of the testator’s deceased husband and not of the testator.
With respect to his / her property - A Will can only be made with respect to the property that the testator owns or has rights over. The simple rule is that one can only give what one has. There is no way that one can give away something that one does not have.
The details of the properties which the testator wants to give to his beneficiaries under his Will like the description, the registration number, the date of registration and whether it is his self acquired property etc. If it is a movable property, then the details and description of each should be clearly and individually mentioned.
Beneficiary Details - In case of multiple beneficiaries, the details of each beneficiary like name, age, address, relationship of the beneficiary with the Testator.
Desires to be carried into effect after his / her death - The Will must state clearly that the testator desires that it comes into effect after his / her death. A renunciation during one’s lifetime does not amount to a Will. If the document desires to partition property among the testator’s sons while the testator is still living, the document cannot be called a Will.
Guardian for Minors - If the Testator wishes to give his property to any beneficiary who is a minor, then definitely he should appoint a guardian who will take care of the minor’s property till the minor attains majority.
Executor of the Will - The Testator should appoint an Executor to his Will. An Executor is a person who shall implement the Will after the Testator’s death.
Signature and Date - The Will should be clearly dated and signed by the Testator at the place in the document just below the last sentence in the document.
Exclusions - The Testator cannot give any property that is joint family property or ancestral property that is common to many other members too. Such a Will becomes void.
Further there is another principle, which says that the construction that postpones the vesting of legacy in the property disposed should be avoided. The intention of the testator should be decided after construing the Will as a whole and not the clauses in isolation.
In Gnanambal Ammal v. T. Raju Aiyar the Supreme Court held that the cardinal maxim to be observed by the Court in construing a Will is the intention of the testator. This intention is primarily to be gathered from the language of the document, which is to be read as a whole.
The primary duty of the court is to determine the intention of the testator from the Will itself by reading of the Will. The SC in Bhura v Kashi Ram held that a construction which would advance the intention of the testator has be favoured and as far as possible effect is to be given to the testator’s intention unless it is contrary to law. The court should put itself in the armchair of the testator. In Navneet Lal v. Gokul & Ors the SC held that the court should consider the surrounding circumstances, the position of the testator, his family relationships, the probability that he would use words in a particular sense. However it also held that these factors are merely an aid in ascertaining the intention of the testator. The Court cannot speculate what the testator might have intended to write. The Court can only interprete in accordance with the express or implied intention of the testator expressed in the Will. It cannot recreate or make a Will for the testator.
Why you should make a will?
Four reasons why you need a will:
1. A will makes it much easier for your family or friends to sort everything out when you die - without a will the process can be more time consuming and stressful.
2. If you don’t write a will, everything you own will be shared out in a standard way defined by the law – which isn’t always the way you might want.
3. A will can help reduce the amount of Inheritance Tax that might be payable on the value of the property and money you leave behind.
4. Writing a will is especially important if you have children or other family, who depend on you financially, or if you want to leave something to people outside your immediate family.
Types of wills :
Privileged Will
The only persons who can make a privileged Will are the following: (a) Soldier / airman employed in an expedition or engaged in actual warfare; and (b) mariner at sea. Relevant section of Indian Succession Act, 1925 reads as follows.
A privileged Will can be in writing or can be oral. A privileged Will written in his own hand by the Testator need not be signed. A privileged Will signed by the Testator does not need attestation by witnesses. Privileged Will is a special Will made in extraordinary circumstances like war or dangerous expedition. Most importantly, Hindus are not permitted to make privileged Wills since the relevant sections 65 and 66 of Indian Succession Act, 1925 are not listed in Schedule III of the Act. We shall, hence, not devote any attention to this special category of Wills.
Unprivileged Will
Every person who is not entitled to make a privileged Will can only make an unprivileged Will. In other words, Hindus can only make unprivileged Wills. Essential procedural requirements of an unprivileged Will can be summed up as follows:
- Must be in writing
- Signed by testator in the presence of witnesses
- Signed by two or more witnesses in presence of the testator
Relevant section of Indian Succession Act, 1925 reads as follows:
The most essential requirement for a Will as per Indian law is attestation by two or more witnesses. We shall discuss this aspect in more detail in the next chapter.
A person can take any plain paper and write the Will in his / her own hand putting down his / her wishes to paper without any need for assistance from a legal professional. Such a Will in one’s own handwriting is called Holograph Will. If a Holograph Will is duly attested by witnesses, there is strong presumption in favor of genuineness of the Will. So, if one has a clear mind and decent control on language, one should write out the Will in one’s own handwriting, sign it in front of two witnesses and get the signature of the two witnesses. For doing this, one may take help of the Model Wills given in the Annexures to this Guide.
It must be stressed that even when a Will is a Holograph Will, the requirements of signature of the testator and attestation by witnesses must be complied with. Any slip with respect to either the signature or the attestation will make the Will null and void. Assistance of a legal professional is not strictly required for making of a Will. A lawyer can, however, help avoid confusions caused by poor drafting or errors of language / grammar. An experienced and seasoned legal adviser can also help a testator clarify and crystallize his / her thoughts and wishes. A word of caution – there are instances when assisting professionals try to grind their own axe in the Will maliciously. So, it is advised that one must choose a professional who is not only competent and knowledgeable, he / she is also a person of highest level of integrity and ethics. And in case you cannot get such professional, please read this Guide carefully and do the making of Will on your own.
The lawyer or any other professional assisting with drafting of a Will should put his / her name, address and signature at the bottom along with a line describing the role played.
The line could read “Drafted by ………….” or “Document Writer -……….” Or “Scribe -………….”. Often when a Will is challenged, the testimony of the scribe or document writer is crucial for determining the genuineness of the Will and also about the roles played by different persons in getting the Will prepared.
For example, a Will was presented by one of the three sisters to court. Property of the deceased was given only to the sister who had approached the court to the exclusion of the other two sisters. During the proceedings at the court, it was disclosed that the husband of the beneficiary sister had approached the scribe and had got the Will prepared. The Will disclosed no reasons for exclusion of the other two sisters. Role of the husband of the beneficiary sister was held to be suspicious and the Will was not accepted. Noticeably, signature of the drafting lawyer / scribe / document writer does not amount to attestation as a witness.
Formal Wills : In every state, you can make a will by typing out your wishes and signing the document yourself, along with two witnesses. There are very few other requirements to make your will valid – you just need to be of sound mind and (in most states) at least 18 years old. Other than that, no official language or legalese is necessary. Just state your wishes clearly. You can use your formal will to distribute your property, name an executor, name guardians for children, and forgive debts.
Handwritten Wills : About half of the states recognize handwritten wills, also called holographic wills.
A holographic will must be in your own handwriting, and it doesn’t have to be witnessed. Although this might sound easier, holographic wills can cause problems after you die because the court will have to decipher and verify your handwriting. This can cause hassles for your family. Also, if you want to make a will of any significant length or complexity, it will be much easier to make a formal will on a computer, using software, or with a lawyer’s help.
That said, if you are in a pickle and need a will fast, by all means write your wishes down in a handwritten will. In many cases, a handwritten will is better than no will at all. However, if you have the means and opportunity, make a formal typed will – it will result in a more robust, precise, and easily probated document.
Oral Wills : Oral wills are valid in just a few states and under very limited circumstances. They usually require a present of fear of death and they can be used only to distribute personal property. Oral wills are unusual and uncertain. If you are planning to make a will, do not plan to make an oral will on your death bed. Instead, take some time to make a formal will.
Joint and Mutual Wills : A joint will distributes the property of two or more people, usually a married couple. Joint wills determine what will happen to the couple’s property after one spouse dies, and also what will happen to the property after the second spouse dies. lthough it may seem convenient to a couple to make just one will, joint wills can cause problems for the surviving spouse because it ties up property and restricts what he or she can do with it, forever. For example, if a couple makes a joint will and the husband dies in his forties, the wife may live another 40 or more years but she will still be bound by the terms of the will made earlier in her life. Joint wills are best used (if at all) by couples who have children in common and who want to ensure that property will go to those kids (instead of a subsequent spouse or child). But there are better ways to do this, like using children’s trusts.
Instead of making a joint will, consider making mutual wills (also called reciprocal or mirror wills). Mutual wills are two separate wills that are close mirrors of each other. They allow couples to “leave everything to each other” and any number of other similar wishes, but because each person has his or her own will, he or she is free to change it as needed after the first spouse dies.
Conditional and Contingent Wills : Conditional wills only go into effect when a certain act or condition happens. This means something other than the person who wrote the will's death. This could be a future event not closely related to writing the will, such as attaining a certain age. In the movie "Brewster's Millions," Richard Pryor only inherited after spending millions to learn how to appreciate money. This is an extreme example, but strange conditions have been know to apply. You need a lawyer to draft this type of will.
Statutory Wills : A statutory will is one that contains standard terms provided by state law. These state laws were created to allow people to make their own standard will that will be easily recognized and probated. Statutory forms can normally made without a lawyer by using the state’s fill in the blank forms. A few states have mandatory provisions considered part of the statutory will. In these states, the standard terms are implied, even if they weren't explicitly written in the will.
If you’re in a pinch or have very simple wishes, a statutory will can work well for you. However, these wills are not very flexible and you may not be able to tailor them to your needs.
Self-Proving Will : A self-proving will, (or a self-proving affidavit attached to a will), must be notarized, and certifies that the witnesses and testator properly signed the will. This type of will makes it easy for the court to accept the document as the true will of the person who has died, serving as testimony, and avoids the delay and cost of locating witnesses at the time of probate.
Advance Medical Directives (Living Will) : Unlike other types of wills, a living will does not distribute property after the death of the testator. Instead, it gives instructions on what type of medical treatment you wish to receive if you become too ill to communicate. For example, you might state that if you become terminally ill and unconscious, you don't want to be hooked up to a feeding tube even if you would die without it. The formal requirements for a living will are more flexible than for a testamentary will, but it should be clear and detailed.
Advance Medical Directives (AMD) is a set of instructions that are given by a person about the level of permissions that he / she is willing to give to doctors about his body. AMD has also been called as Living Will though the Honourable Supreme Court prefers the term Advance Medical Directives. AMD, even though called by some as Living Will, are not a part of a person’s Will. A Will is to dispose of one’s movable and immovable properties after one’s death, while AMD operates only during one’s life and has no relevance after death.
AMD relates to permissions that one grants or refuses to grant with regards to one’s body when one is moving towards death. Details about AMD are being included in this Guide only for the sake of completeness even though AMD has nothing to do with a person’s Will. The following extracts from a decision (quoted below) of the Honorable Supreme Court explain the concept of AMD. It has often been argued that one’s right to life includes one’s right to die or at least to die with dignity. Debate about right of life and death becomes important when a person is going through terminal illness, extreme pain and has no hope of survival. At times like these, death may seem like a boon. Modern medicine may not be able to cure, but can often only prolong the ordeal of pain and vegetative existence. Under such circumstances, many may choose a painless and quick death over medically supported expensive life support systems. The problem is that the person going through the ordeal is not in a position to take the decision or convey the decision. Hence, there is need for Advance Medical Directives which are written by one when one is in good health and are detailed instructions to doctors in case of such terminal illness.
India does not have legislation for AMD or any type of euthanasia. In the absence of any legislation, it has fallen upon the Honourable Supreme Court to lay down the law related to euthanasia and also AMD. Recent judgment (9 March 2018) in the matter of Common Cause versus Union of India is a landmark judgment that lays down the guidelines in this field.
Who can execute AMD & How?
Conditions for eligibility to execute AMD are identical to execution of a Will for testamentary succession of property. The following key points may be noted:
- Person must be adult
- Person to be of sound and healthy state of mind in a position to communicate, relate and comprehend the purpose of the document being executed
- Voluntarily executed without any coercion, inducement or compulsion
- AMD must be in writing
- AMD must lay down in clear terms (a) when medical treatment may be withdrawn and (b) when specific medical treatment shall not be given.
- Person executing the AMD must state clearly that the withdrawal / refusal of medical treatment will lead to the stoppage of processes that have the effect of delaying death.
- Person executing the AMD should understand that the purpose of withdrawal / refusal of medical treatment shall only be to spare him the agony of pain, anguish, suffering and state of indignity during the process of moving towards death which seems certain and imminent.
It must be emphasized here that AMD as a legally executed document can only be used for the purpose mentioned above. Honourable Supreme Court has been extremely sensitive that the provisions must not be misused. Hence, they have provided many safeguards, which we shall discuss as move further.
Contents of AMD
Drafting of an AMD can be tricky considering the fact that Indian legal professionals, generally speaking, do not have experience with such documents. In the absence of any commonly accepted draft of AMD, we put forth a draft which may be suitable for the purpose. Please refer to Annexure D for a Sample AMD.
Notably, like a Will, an AMD can be revoked or modified any time during the life of the person executing the AMD.
In case of a Will, the person executing the Will is called a testator and the person who has the responsibility of implementing the wishes of the testator is called “Executor”. In case of an AMD, the person executing the AMD has been called the Executor. In case of a Will, it is optional to nominate an executor, but in an AMD it is compulsory to appoint a guardian or close relative who will be asked to either give his / he consent to refuse or withdraw medical treatment when the need so arises. As in a Will, an AMD must be clear, unambiguous and state the wishes of the person executing the AMD in specific terms. General, broad-meaning statements should be avoided. AMD should read like a set of instructions and not like a philosophy book.
Procedural Requirements
Procedural requirements for executing an AMD have been made more onerous than applicable to a Will. In case of a Will, only two attesting witnesses are required and there is no involvement of any lawyer or notary or magistrate. In case of an AMD, in addition to two attesting witnesses countersignature by a Judicial Magistrate of First Class (JMFC) is compulsory.
There are no requirements about handing over copies of Will to any family member or any other person. In case of AMD, copies have to be given to each of the following:
• Office of JMFC in physical as well as digital format
• Registry of jurisdictional court
• Registry of District Court in digital format
• Immediate family members with confirmation from them that they have understood the document
• Competent officer of the local government (municipal corporation or council or
panchayat)
• Family physician, if any
Fortunately, there are no requirements of stamp duty or fees to be paid to the concerned officers mentioned above. Of course, we never know for how long this good fortune will last. Some overzealous government officials may soon see this as an opportunity to collect some form of duty or taxes.
Revocation / Modification of AMD
Procedure for revoking or modifying an AMD is the same as the one mentioned for executing an AMD. So, one will have to take two witnesses and go before a JMFC to either revoke or amend an AMD executed in the past.
Absence of AMD
Looking at the complications of executing AMD, one is tempted to ask – what happens if one has not executed an AMD and faces the situation of being terminally ill with no hope of survival. Well, there is not much difference. The doctors are obliged to follow the same procedure as in case of a patient with an AMD and take a decision with approval from immediate family members, hospital medical board, district collector medical board and also the JMFC.
For the sake of brevity, we are not reproducing here the procedure mentioned for cases without AMD since it is similar to the cases under AMD.
Active Euthanasia vs. Passive Euthanasia
It is important to note that AMD can only cover passive euthanasia and cannot be a justification for active euthanasia. The following extract from the judgment of Honourable Supreme Court makes it amply clear.
In simple terms, it can be said that under no circumstances a doctor is allowed to give a lethal injection to a patient who is crying with pain and pleads for mercy death to the doctor. But, if the patient is lying in a permanent vegetative state with no hope of living a normal life again, the doctor after following the procedure prescribed by the Honourable Supreme Court may remove the tubes that sustain life in the patient.
Euthanasia and Economic Considerations
Healthcare in India is expensive, as it is in almost every part of the world. The difference in India is that the burden of healthcare is almost completely on the individual and his / her family. Publicly funded medical facilities are either non-existent or are of extremely poor quality. Medical insurance is not very widespread and is generally not sufficient to take care of prolonged sustaining of life of a terminally ill patient. In such a situation, decision to withdraw life-sustaining medical systems is often an economic one. A family that delays such a decision may find itself pauperized. Doctors and hospitals are biased advisers who are seen as blood-suckers instead of performers of a humane function. Justice Dr. D.Y. Chandrachud has in his separate judgment in the above-referred case has pointed to this harsh reality of Indian society without offering any solution to the problem.
Justice Chandrachud has rightly observed that Indian families often resort to active / passive euthanasia as “an instrument of cost containment”. This is done without following any judicial or official procedures. Private hospitals want large sums of money to be deposited at regular intervals to continue with supporting life of the terminally ill patient.
As soon as the family indicates inability to pay further, the life-support systems are removed and the patient is discharged with instructions to the family to take the patient home or to some other hospital. The patient dies either on the way home or in the next few days at home.
Any family that goes through this has to face an extremely painful dilemma. On the one hand, there are emotional bonds with the patient and on the other hand there is long-term financial security of the family. It just does not make any sense for the family to sell off all properties and become a pauper trying to extend a family member’s vegetative life by a few weeks or months. In practical terms, an AMD is likely to help the family members resolve the painful dilemma and ease the burden of taking an emotionally tearing decision. Also from a Hindu perspective, a whole is always greater than the part. Sacrificing oneself for the welfare of the family is a fundamental duty for a Hindu.
Executing an AMD to issue directions to one’s family members regarding the level of interventions and life-extension-treatments is, hence, for a Hindu an act to ensure that his / her family continues to remain prosperous even after his soul has left the present body.
AMD in other countries
Most countries have laws regarding Advance Medical Directives. Even though one may be domiciled in India, if one is resident of a particular country one will be governed by laws of that country in matters related to life, medical treatment and death. It is hence, advised that all Hindus living outside India should check the local laws and comply with the same for executing an AMD even if they are Indian passport holders and declare their domicile to be Indian for the purpose of succession related matters.
Since the concept of AMDs is an evolving concept in India, I seek to review International cases, in order to point out that litigation in healthcare disputes particularly may not be the best option for a client.
As for the cases, where there existed a living will and still the will was disregarded by the medical practitioner, and legal action was threatened, there is the case of an 88-year-old woman suffering from dementia, who had given the Durable Power of Attorney to her daughter, which in turn was overruled by medical practitioner
Unsolemn Will : Where Will in which the executor is unnamed.
First, is the case of Terri Schiavo. The case amply illustrates the nature of dispute which may arise in making end-of-life decisions. Whereas, on one hand Terri’s husband Michael was convinced that Terri wouldn’t want to continue living in a PVS with little hope of recovery and insisted that she be taken off the feeding tubes, Terri’s parents on the other hand were positive that Terri wouldn’t want to be taken off feeding tubes due to her Roman Catholic affiliation. Since Terri lacked any living will, the dispute between her husband and her parents carried on over 10 years through multiple court battles. Even after the US Supreme Court denied the parent’s appeal, they were still petitioning to have her feeding tube reinserted. Even after pursuing the court battle until the very end, their last petition was denied the day before Terri died. Mediation, on the other hand, could have prevented the emotional trauma both the families had to suffer. While it is acknowledged that a win-win situation cannot be proffered by mediation in disputes which involve end-of-life decisions, the consideration for accommodating the need for an emotional quotient among the parties in such difficult times is sufficient enough to choose mediation over litigation.
Similar was the case of Nancy Cruzan, who did not have a living will and could never avail the benefit out of a litigation suit.
Unsolemn Will : Where Will in which the executor is unnamed.
Testamentary Trust Wills : A testamentary trust will is a will that puts at least some of your property into a trust. A trust distributes your assets to a beneficiary but is administered by a third person who controls when and how the property is distributed to the trust beneficiary. You might establish a spendthrift trust, for example, for the benefit of a financially irresponsible beneficiary. The trust administrator would distribute the trust assets gradually instead of presenting them to the beneficiary in lump sum. Although the estate executor and the trust administrator may be the same person, they do not have to be. The format of a testamentary trust will can be similar to that of a simple will.
Notarial Will : Will in public form and prepared by a civil-law notary (civil-law jurisdictions and Louisiana, United States).
Who can make will?
Every person who is competent to contract may make a will but he must be major, sound mind and willing to write a Will. Any person who is the sole owner of a self-acquired property can bequeath by way of will. A person of unsound mind can also make a will but only in lucid intervals. A Will cannot be made by some persons i.e. minors, insolvent, persons disqualified under any law by the court. A Will executed by a minor is void and inoperative though a testamentary guardian can be appointed for the minor to dispose off the property. A Will can be made by the deaf and dumb person by showing consent through writing or gestures in sign language. Nothing prevents a prisoner or alien in India from drawing a Will.
For whom the will can be made?
Any person capable of holding property can be a legatee under a will and therefore a minor, lunatic, a corporation, a Hindu deity and other juristic person can be a legatee. Sections 112 to 117 of ‘Indian Succession Act, 1925’ put some restrictions on the disposition of property by will in certain cases. Dispositions of property by will in some cases have been declared void. If the minor person has been named as legatee by a testator then a guardian should be appointed by the testator himself to manage the bequeathed property.
What properties covered by Wills
There can be no doubt that a person can only make a Will only about a property that is his / hers. The fundamental rule is that one can only pass on what one has. In case the testator’s rights on a property are non-existent, a Will about the property made by the testator will be null and void.
It should be noted that Indian laws do not recognize spousal rights on property. So, a husband has no right to make a Will about the property of his wife and vice versa. Even when the property is jointly owned and the husband pays entirely for the property, the husband cannot make a Will about the share of his wife in the jointly owned property.
Properties in Different Countries
The key issue that Hindus living outside India face is about properties outside India. Let us also consider the hypothetical case of a person, say Ramnath, who has spent three decades living in the UK, has acquired citizenship of the UK, and has properties both in India and in UK. Ramnath has returned to India for spending his last few years. Can he make a single Will as per Indian law for his properties, both, in India and UK?
Section 5 of Indian Succession Act, 1925 reads as follows :
Under the above provision of law which is confirmed by various Supreme Court judgments, as far as immovable properties are concerned, all matters relating to capacity to make Will, revocation of Will, power of disposition and all such related matters are governed by the lex situs or in other words, the law of the land where the property is situated.
Domicile and Movable Properties
Before deciding the issue related to movable properties, it is important to understand the concept of domicile. Broadly speaking it can be said that a person’s domicile is where a person’s heart is. A non-resident India may be a citizen of any country but may well remain domiciled in India. The following Kerala High Court case related to a doctor who migrated to UK from Kerala, became a citizen of UK but remained an Indian at heart is a classic one - [Sankaran Govindan vs. Lakshmi Bharathi and Ors. MANU/KE/0075/1964 dated 20th December 1963].
The key rule is that a person has the domicile that he / she had at the time of his / her birth unless there is clear action on the part of the person to change his / her domicile. For every non-resident Indian born in India who has migrated to a foreign land, the presumption will be that he / she has domicile in India unless he / she does something to indicate that he / she has changed domicile from India and has chosen the country of residence as his / her permanent home.
From the viewpoint of making a Will, the key point to be noted here is that Hindus born in India even after they have lived abroad for decades and have surrendered Indian passports long ago will be considered to have domicile in India unless they declare otherwise. So, Hindus living abroad face two options for making Will for movable properties (including cash, shares, bank deposits, ornaments, vehicles, etc.):
Make a Will as per Indian law related to Wills in respect of all movable properties irrespective of the location of the movable properties; OR
Make a Will as per the law of the foreign land of residence in respect of all movable properties irrespective of the location of the movable properties. The Will made as per the foreign law must affirm and declare that the testator has chosen his / her country of residence as his / her permanent home and has thus change his / her domicile from India (the country of birth) to the chosen country. In essence, deciding domicile is critical for preparing a Will related to movable properties.
For all Hindus born in India, the presumption is that their domicile remains India. So, they can make a Will as per Indian law for all their movable properties located across the globe. However, if a non-resident Hindu wishes to make a Will for his / her movable properties in accordance with the laws of a foreign country where he / she has been residing, he / she must make a clear declaration that he / she has changed his / her domicile.
What can be bequeath in a will?
Any movable or immovable property can be disposed off by a will by its owner, that property must be a self acquired property of that person and it should not be an ancestral property of the testator. According to Section: 30 of ‘Hindu Succession Act, 1956’ provides that any Hindu may dispose off by will or other testamentary disposition any property, which is capable of being so, disposed of by him in accordance with law.
Practices In Making A Will -
Keep your Will simple.
In general, the order of preference to distribute asset to legatees and their alternates is :
(1) Spouse
(2) Children
(3) Parent(s)
(4) Brothers/Sisters
(5) Other Relatives
(6) Friends. Many people prefer giving something to charity too.
Preferably don't give a asset to more than one person even if you specify their shares, since that can complicate distribution. You can describe more specifically some assets which don't change often, such as real estate, or which may be confused with others.
Don't describe more specifically some assets that change often, such as "shares of X company" or "Y Mutual Fund". Always select alternates to replace legatees. This is because death can come at any time and it's possible that a legatee has died before or along with you. You may therefore not have a chance to change your Will.
Certain persons are required to implement your Will after your death, such as Executors, Guardians, Witnesses etc. These people should preferably be younger than you, since their work starts after your death. After making your Will, if there is any addition to the family or a key legatee or Executor or Guardian or Witness has expired, you should change your Will. Any legatee (and an Executor, if you are a Christian or a Parsi) should not be made a Witness.
A Will should be signed by the Testator in the presence of atleast two Witnesses who have to attest the same. The full names and addresss of the Witnesses should be clearly indicated in the Will. It would be better if one of the Witnesses is a medical practitioner, but this is not essential. The practitioner should certify that the Testator is of sound mind (especially if the Testator is of an advanced age) and he or she should also note his or her registration number and degree (educational qualification). A Witness should not be a beneficiary of the Will. A Witness should also not be an Executor of the Will.
Keep the Will confidential. Nobody needs to read your Will, including Witnesses. They only witness your signature.
Intestate Succession versus Testamentary Succession
Intestate succession is the situation that arises when a person dies without making a Will. For Hindus, provisions of The Hindu Succession Act, 1956 (Act No. 30 of 1956) apply in case of intestate succession. The general rule in case of intestate succession is that descendants of the deceased person inherit the property of the deceased depending on the closeness of their relationship with the deceased. Under The Hindu Succession Act, male and female relatives are treated at par. In other words, son and daughter are equals.
Testamentary succession is division of property after a person’s death as per his wishes as contained in the Will prepared by him / her during his / her lifetime. The testator while preparing the Will is not constrained by the provisions of The Hindu Succession Act. So, he / she may decide to give all or some or none of his / her properties to any close relative(s). A son or daughter cannot claim any rights on the property / properties if the Will does not grant them any rights.
Will can be Registered?
In India, registration of documents is covered by Registration Act, 1908. Section 18 of Registration Act provides a list of documents for which registration is optional. Wills are covered under (e) of the said section 18. Relevant extract reads as follows:
Registration of Wills is not compulsory and depends on the choice of the testator. Typically, the testator will have to visit the office of the sub-registrar of the area for registration of his / her Will. The personal appearance of the testator before a government official with the original Will adds to the reliability and trustworthiness of the Will. A registered Will provides strong legal evidence against challenges about the mental capacity of the testator to make a Will (whether due to illness or due to influence of alcohol or medication etc.). It is presumed that there is little chance that a person in state of mental incapacity will have the ability to first make a Will and then go through the trouble of registering it.
Registration reduces the chances that the Will may be challenged as being a forgery. However, other challenges to a Will as being signed under undue influence etc. are still open. The other advantage of registration is that the Will is in safekeeping at the office of the Registrar. The Will may only be withdrawn from the Registrar by the testator or his agent during his lifetime. On the testator’s death, the Registrar may permit an applicant to take a copy of the Will. However, the original Will is still kept in the deposit with the Registrar. This ensures that the Will is not tampered with subsequent to the testator's death.
In case of a registered Will, all subsequent alterations or modifications (Codicils) should also be registered. Any non-registered alterations or modifications or explanations or deletions are not accepted by courts.
However, the testator may make a fresh Will revoking the registered Will and declaring the provisions of the fresh Will as his final desires. Even if the fresh Will is unregistered, (if it is of a date later than the registered Will), the fresh Will shall prevail over the registered Will.
Though the registration of a Will is not compulsory, it can be registered with the sub-registrar. If, at any time, the testator wishes to withdraw the Will, he can do so. A Will also can be sealed and kept in safe custody.
On the death of the testator, an executor of the Will or a heir of the deceased testator can apply for probate. The court will ask the other heirs of the deceased if they have any objections to the Will.
If there are no objections, the court will grant probate. A probate is a copy of a Will, certified by the court, and is conclusive evidence that the Will is genuine.
In essence, registration does strengthen the Will in some respects even though it does not make it cast in stone. Registration is advised if there is a possibility that the Will be challenged by a natural heir (who is denied in the Will what he would have inherited if the testator had died intestate). Registration is also advised if one or more of the beneficiaries are likely to be dissatisfied with the Will.
Most importantly, it should be remembered that the Registrar or sub-registrar does not attest the Will even though he / she may sign the Will in the presence of the testator. If the Will suffers from any defects or lacunae due to wrong or incomplete or absence of attestation, registration will not make the Will valid in any way.
A Testator Can Change Will
A testator can change his Will, at any time, in any manner he deems fit. Every person of sound mind, and not a minor, can make a Will. If a person is of unsound mind at the time of making a Will, the Will is not enforceable.
A Will, obtained by force, coercion or undue influence , is a void Will as it takes away the free agency of the person. A Will, made under influence of intoxication or in such a state of body or mind, sufficient to take away free agency of the testator, is void.
A Will can be made at any time in the life of a person. There is no restriction on how many times a Will can be made by a testator. However, only the last Will made before his death is enforceable. A Will has to be executed by the testator, by signing or affixing his thumb impression on it. It should be attested by two or more witnesses, each of whom should have seen the testator signing the Will.
Place of Making the Will
Place of making a Will is of no importance. Indian courts give importance to the intentions of the testator. The following extract of section 87 of Indian Succession Act, 1925 lays down the general principle followed by Indian courts.
A Hindu living in California, USA need not come to India to make a Will as per Indian laws. He / she can make a valid Will at his / her home in California. The only care that he / she ought to take is about movable and immovable properties as discussed above. A Hindu living in any part of the world but having Indian domicile may execute a Will at any place in the world under the laws of India for bequeathing his / her immovable properties in India and movable properties in every part of the globe. It may also be pointed out that the witnesses attesting a Will under Indian laws need not be Indian citizens or Indian residents or Hindus.
Codicil To The Will
If a testator intends to make a few changes to the Will, without changing the entire Will, he can do so by making a codicil to the Will. The codicil can be executed in a similar way as the Will. One must note that a Will or codicil is not unalterable or irrevocable. They can be altered or revoked at any time. In case any objections are raised by any of the heirs, a citation has to be served, calling upon them to consent. This has to be displayed prominently in the court. If no objection is received, the probate will be granted. It is only after this that the Will comes into effect.
Probate And Letters Of Administration Of Will
What is meant by Probate of a Will?
According to Section 2 of the Indian Succession Act, 1925, Probate means "the copy of a Will certified under the seal of a court of competent jurisdiction with a grant of administration of the estate of the testator". It is nothing but a decree passed by a competent court declaring the legality/correctness and genuineness of the Will of the deceased.
Is it necessary to Probate a Will : Under Section 219 of the Indian Succession Act, 1925, if the deceased has died intestate and was not a person belonging to any of the classes referred to in Section 218 (i.e, Hindu, Mohammedan, Buddhist, Sikh or Jain or an exempted person), those who are connected with him either by marriage or by consanguinity are entitled to obtain Letters of Administration of his estate and effects in the order and according to the rules framed in this section. Under Section 212(2) of the Indian Succession Act, 1925, Hindus, Muslims, etc. are not bound to apply for letters of administration (Probate). It is optional and not mandatory for these persons to seek probate of the Will.
What are the advantages of a Probated Will: Probate of a Will when granted, establishes the genuineness of Will from the death of the testator and renders valid all intermediate acts of the Executor as such. What will be the legal consequences if the Will is not Probated: If the Will which is required to be probated, under the Act, if not probated, has no legal sanctity and binding force.
What is the time frame within which a Will is to be probated?
There is no limitation for grant of letters of administration or probate. Where the estate is in the possession of administrator there is no question of the Probate Court delivering the possession to him but the probate will be decisive only with regard to the genuineness of the Will propounded and the right of the executor to represent the estate.
Which is the appropriate Court to file the suit for the Probate?
Principal Court of Original Jurisdiction as per the local City Civil Court Act. The High Court also enjoys concurrent jurisdiction to grant probate of the Will.
Who can apply for the Probate of a Will?
According to Section 222 of the Indian Succession Act, 1926, Probate shall be granted only to an Executor appointed by the Will. The appointment may be expressed or by necessary implication. In the absence of the Executor being named in the Will, the Legatees or the Beneficiaries under the Will could also seek probate of the Will.
What are the documents to be submitted for obtaining the Probate?
Following must be submitted:-
Original Will of the deceased.
Title Deeds pertaining to the immovable property mentioned in the Will, if any.
Documents pertaining to the movables, mentioned in the Will, if any.
What is the fee payable for a Probate?
Andhra Pradesh Court Fees and Suits Valuation Act, 1956, has several parameters for levy of court fees on probate application and the same is exhaustive.
What is the procedure for obtaining a Probate?
A petition has to be filed before the Principal Court of Original Jurisdiction or before the Hon'ble High Court under Section 374 of the Indian Succession Act. The Court in question will issue the court notices at the initial stage and a paper publication will be caused besides a Gazette publication as well. In case such a petition is contested, it will be converted into a regular suit and upon contest the same will be disposed of, by delivering the judgment and decree, in accordance with law.
Drafting a Will
There is no particular format for a Will. The most important requirement for a Will is that the intentions of the testator should be known clearly and unambiguously from a Will.
Section 74 of Indian Succession Act states the same in clear terms. Relevant section reads as follows:
A Will should be written in a manner that is easy to read and understand. As far as possible, the Will should avoid legalese and be worded in simple language. It should be specific and clear with respect to the intentions of the testator.
It is advisable to prepare and execute the Will in the language that the testator is most comfortable with. If a testator is comfortable in Hindi and has no knowledge of English, a Will prepared in English will suffer from an obvious defect. In such a case, it will be the responsibility of the propounder to prove in a court that there were valid reasons for preparing the Will in English and that the testator had understood the contents of the Will completely. Challenges like these can be avoided if the language of the Will is the usual language of the testator.
Any Will is concerned with the following: Testator, properties and beneficiaries. It is absolutely necessary that there be no confusion about either of the three in any way.
Descriptions of the three ought to take the following care:
Testator description - There should be no doubts whatsoever about the identity of the person who has executed the Will. The testator should write his full name, nicknames (if any), father’s name, approximate age and address. It is also advisable to put an identifying number such as PAN or AADHAAR or passport number. Since the law related to Will varies based on the testator’s religion, it is also preferable to mention one’s religion. If the testator is a Hindu resident outside India, it is worthwhile for him to state what his domicile is. For example, one of the following two sentences may be used:
I was born in India and moved to ……….. at the age of about ……………. I have acquired the citizenship of ……………. and have built a permanent home in the said country. As soon as I acquired the citizenship of the said country, I changed my domicile to that of the said country.
I was born in India and moved to ……….. at the age of about ……………. I have acquired the citizenship of ……………. Notwithstanding the fact of my surrender of citizenship of India, I still consider India to be my home and my domicile. I have Overseas Citizen of India card and I hope that sometime before my death I shall be able to move back to India.
Description of Properties - Each immovable property that is the subject of the Will must be described in as clear terms as possible. Vague descriptions like “that ancestral house in Varanasi” can make it very difficult for the beneficiaries to claim the property. If the reference is to movable properties like bank accounts and shares, one may either describe them in general terms like “all bank accounts and equity shares in my name” or may describe them in specific terms. If some of the movable properties go to one beneficiary and some to another, the specific descriptions should be such that a court does not have any confusion.
Often the problem is that properties change from the time of making the Will and death of the testator. To take care of such a situation, description of properties must be suitably drafted. For example, it may be added that “any and all properties acquired by me after the date of this Will shall go to A”.
In case the testator has partial rights on a property, he / she may bequeath only the partial rights. In such cases, the Will should clearly state the partial rights that the testator has. For example, if a property is jointly owned by the testator, he / she may bequeath his/ her share in the jointly owned property. Similarly, if the testator has tenancy or leasehold rights in a property, he / she may bequeath the tenancy or leasehold rights.
Description of Beneficiaries - Each beneficiary / legatee should be identified by the full name as well as by relation (if any) to the testator. Though it is not customary, it helps if more details about the beneficiary such as approximate age, address, father’s name and some identification number is also mentioned. Confusions arise in poorly drafted Will from statements like “The house should go to my son, Bittu”. In this case, the testator, an elderly lady, used to refer to her son by the nickname of Bittu. No one else referred to the son, a respected doctor of the town, by that nickname. It may be difficult for the son to claim the house since he will have no documents to show that he is indeed the Bittu that the elderly lady referred to in her Will.
Some points that may be kept in mind while drafting a Will are summed up as follows:
A. Date
Strictly legally speaking, date is not an essential requirement in a Will. An undated Will shall not be invalid. However, it is not only customary to date a Will, it is also an important piece of information as and when the Will has to be confirmed by a court. A date is the reference point for a court to determine the mental capacity of the testator. Other documents and witnesses may be brought before the court to prove that the testator was in good health on the date specified in the Will. In case of an undated Will, this becomes difficult. Hence, we recommend that a Will ought to always be dated. The date may appear either at the top or at the bottom, but not at both places. Putting date at more than one place opens up the possibility of two different dates on the same document leading to unnecessary questioning when presented before a court.
B. Numbering of paragraphs
This is again not a legal requirement. However, it is recommended to make the Will clear and avoid confusions. Initial descriptive paragraphs are not numbered. The paragraphs describing the bequest are generally numbered.
C. Revocation of previous Wills
If the testator has made any Will(s) in the past, the same should be mentioned in the Will. It is advisable that all previous Wills are revoked and the Will being made is a comprehensive document. A statement declaring that all previous Wills are revoked is sufficient to revoke previous Wills.
D. Denial of benefits to natural heirs
If a Will denies benefits of inheritance to one or more natural heirs, it is to be expected that the said natural heirs will challenge the Will. One must anticipate this and take all precautions. Two important recommendations in this regard are as follows:
Ensure that any beneficiary and his / her spouse are not involved with preparation of the Will or attesting it.
A short description of reason(s) for denial of benefits to the natural heirs may be given in the Will. For example, a testator may write - “I have two sons and a daughter. The sons have not taken any care of me in the past more than ten years. The sons have not even bothered to visit me once during the past ten years.
Hence, I do not wish to give anything from my properties and assets to my sons”. Two cases deserve attention in this regard. In the first case before Honourable Karnataka High Court, the propounder played an active role in the preparation of Will and there was no cogent reason for exclusion of two sisters.
In the second case before Honourable Delhi High Court, the testator gave clear cogent reasons for exclusion of his daughters and also there was no involvement of the propounder in preparation of the Will. In the latter case the Will was accepted, while in the former case the Will was rejected.
Can All wills can be revoked?
All Wills can be revoked, either impliedly or expressly, either by conduct or by a specific document. By conduct, the Will can be presented to be revoked by the testator. For example , a testator may make bequest of property in his Will to a person, but he may dispose of the said property even during his life time. This is called implied revocation. Suppose, the testator makes a bequest of a vacant land in his Will, but subsequently the testator himself constructs a dwelling house therein, in such circumstance, the Will can be deemed to have been expressly revoked by the testator. It has been experienced that when there is a Will, painful litigation in the family of the testator is prevented. Only in a very few cases, litigation crops up questioning the genuineness of the Will.
Restrictions On A Will
1. Transfer to unborn persons is invalid : Where a bequest is made to a person by a particular description, and there is no person in existence at the testator's death who answers that description, the bequest is void. S.113 of Indian Succession Act, 1925 provides that for a transfer to an unborn person, a prior interest for life has to be created in another person and the bequest must comprise of whole of the remaining interest of the testator. In Sopher v. Administrator-General of Bengal a grandfather made the bequest to his grandson who was yet to be born, by creating a prior interest in his son and daughter in law. The Court upheld the transfer to an unborn person and the Court held that since the vested interest was transferred when the grandsons were born and only the enjoyment of possession was postponed till they achieved the age of twenty one the transfer was held to be valid.
In Girish Dutt v. Datadin , the Will stated that the property was to be transferred to a female descendant (who was unborn) only if the person did not have any male descendant. The Court held that since the transfer of property was dependent on the condition that there has to be no male descendant, the transfer of interest was limited and not absolute and thereby the transfer was void. For a transfer to a unborn person to be held valid, absolute interest needs to be transferred and it cannot be a limited interest.
2. Transfer made to create perpetuity : S.114 of the Indian Succession Act, 1925 provides that no bequest is valid whereby the vesting of the thing bequeathed may be delayed beyond the lifetime of one or more persons living at the testator's death and the minority of some person who shall be in existence at the expiration of that period, and to whom, if he attains full age, the thing bequeathed is to belong.
The rule against perpetuity provides that the property cannot be tied for an indefinite period. The property cannot be transferred in an unending way. The rule is based on the considerations of public policy since property cannot be made inalienable unless it is in the interest of the community. The rule against perpetuity invalidates any bequest which delays vesting beyond the life or lives-in-being and the minority of the donee who must be living at the close of the last life. Hence property can be transferred to a unborn person who has to be born at the expiration of the interest created and the maximum permissible remoteness is of 18 years i.e the age of minority in India.
In Stanely v. Leigh it was laid down that for the rule of perpetuity to be not applicable there has to be 1)a transfer 2)an interest in an unborn person must be created 3)takes effect after the life time of one or more persons and during his minority 4)unborn person should be in existence at the expiration of the interest.
3. Transfer to a class some of whom may come under above rules : S.115 of ISA provides that if a bequest is made to a class of persons with regard to some of whom it is inoperative by reasons of the fact that the person is not in existence at the testator's death or to create perpetuity, such bequest shall be void in regard to those persons only and not in regard to the whole class.
A number of persons are said to be a class when they can be designated by some general name as grandchildren, children and nephews. In Pearks v. Mosesley defined gift to a class as a gift to all those who shall come within a certain category or description defined by a general or collective formula and who if they take at all are to take one divisible subject in certain proportionate shares.
4 Transfer to take effect on failure of prior Transfer : S.116 of ISA provides that where by reason of any of the rules contained in sections 113 and 114 and bequest in favour of a person of a class of persons is void in regard to such person or the whole of such class, any bequest contained in the same Will and intended to take effect after or upon failure of such prior bequest is also void.
The principle of this section is based upon the presumed intention of the testator that the person entitled at the subsequent limitation is not intended to be benefited except at the exhaustion of the prior limitation. In Girish Dutt case one S gave property to B for life and after her death if there be any male descendants whether born as son or daughter to them absolutely. In the absence of any issue, whether male or female, living at the time of B’s death, the gifted property was to go to C. it was held that the gift in favour of C was dependent upon the failure of the prior interest in the favour of daughter and hence the gift in favour of C was also invalid. However alternative bequests are valid.
TRANSFER THE PROPERTIES THROUGH WILL - MUSLIM LAW :
A Muslim can transfer his entire property through gift but, he has no right to make a will of his whole property. Under Muslim law, the testamentary right i.e. the right to transfer the properties through will, is restricted in two ways: Firstly, there is a restriction upon the quantity of property bequeathed. Secondly, in respect of the person (legatee) to whom the property is given.
When a person dies, first of all his funeral expenses and the debts, if any, are satisfied out of the property left by him. The property, which remains after payment of funeral expenses and debts incurred by a deceased person, is called the bequeathable property if the deceased had made any will. Under other systems of personal law e.g. under Hindu law or Christian law etc. a legator can make a will of the entire property.
Except under Muslim law, a testator has right to make a will of his total assets and there is no restriction either in respect of the quantity of property or in respect of the legatee. But, the right of a Muslim testator to dispose off his properties through will is restricted to one-third of his total assets. That is to say, where the testator is a Muslim, he is authorised to make will only of one-third of the bequeathable property i.e. one-third of what remains after payment of his funeral expenses and debts, if any.
General Procedure To Make A Will
A ‘Will’ should be prepared with utmost care and must contain several parts to make a complete Will though there is no defined format for making a Will but a general procedure should be adopted while writing a Will by the testator which includes:
1. Declaration In The Beginning : In the first paragraph, person who is making a Will, has to declare that he is making this Will in his full senses and free from any kind of pressure and undue influence and he has to clearly mention his full name, address, age, etc at the time of writing the Will so that it confirms that a person really wishes to write a Will.
2. Details of Property and Documents : The next step is to provide list of items and their current values, like house, land, bank fixed deposits, postal investments, mutual funds, share certificates owned by testator. He must also state the place where he has kept all the documents if the will documents are under safe custody of the bank then testator has to write details about the releasing of the Will from the bank. Here it is the most important duty of the testator to communicate the above matter to the executor of the Will or any other family members, which will make the Will valid after testator death.
3. Details of ownership By The Testator : A testator while making a original Will should specifically mention that who should own his entire property or assets so that it will not affect the interest of the successors after his death. If testator wishes the name of the minor as beneficiary then a custodian of the property should be appointed to manage the property.
4. Attestation of the ‘Will’ : At the end, once the testator complete writing his Will, he must sign the will very carefully in presence of at least two independent witnesses, who have to sign after his signature, certifying that the testator has signed the Will in their presence. The date and place also must be indicated clearly at the bottom of the Will. It is not necessary that a person should sign all the pages of the Will instrument but he must sign to avoid any legal disturbances.
5. Execution of A ‘Will’ : On the death of the testator, an executor of the Will or an heir of the deceased testator can apply for probate. The court will ask the other heirs of the deceased if they have any objections to the Will. If there are no objections, the court will grant probate .A probate is a copy of a Will, certified by the court. A probate is to be treated as conclusive evidence of the genuineness of a Will. In case any objections are raised by any of the heirs, a citation has to be served, calling upon them to consent. This has to be displayed prominently in the court. Thereafter, if no objection is received, the probate will be granted and It is only after that Will comes into effect.
Can a registered will, be challenged in a court of law?
A will although registered can be challenged in the court of law. The mere fact that a will has been registered will not, by itself, be sufficient to dispel all suspicions regarding it. A registered will may not be the last testament. A new will made, even if unregistered, if valid, will trump the registered will.
If there are any suspicious facts, the court will scrutinize the will even if it is registered.
Grounds For Challenging A Will, Registered Or Unregistered
A will irrespective of its registration can be challenged on the following grounds,
· Fraud
· Coercion
· Undue influence
· Suspicious nature
· Lack of due execution
· Lack of testamentary intention
· Lack of testamentary capacity
· Lack of knowledge and approval
· Forgery
· Revocation
A will containing any element of fraud, coercion or undue influence can be challenged.
A will or any part of the will, the making of which has been caused by fraud, coercion, undue influence is bad in the eyes of the law. It is well-settled law that once the execution of a will is proved, the burden to prove that it was fabricated or manufactured or was obtained by committing fraud, coercion or undue influence is upon the shoulder of objector of such will. Fraud can be said to be a willful act on the part of anyone, where another is sought to be deprived of illegal means of what he is entitled to.
S.61 of ISA provides that a Will, or any part of Will made, which has been caused by fraud or coercion, basically not by free will, will be void and the Will would be set aside.
Fraud: S.17 of the Indian Contract Act provides for fraud. Actual fraud can be committed through
1) misrepresentation
2) concealment . Fraud in all cases implies a willful act on the part of anyone whereby, another is sought to be deprived by illegal or inequitable means, of which he is entitled to.
Coercion : S.15 of Indian Contract Act defines coercion. Any force or fear of death, or of bodily hurt or imprisonment would invalidate a Will. In Ammi Razu v. Seshamma , a man threatening to commit suicide induced his wife and son to give him a release deed. It was held that even though suicide was not punishable by the Indian Penal Code yet it was forbidden by law and hence the release deed must be set aside as having been obtained by coercion.
Undue influence : Undue influence u/s.16 of Indian Contract Act is said to be exercised when the relations existing between the two parties are such that one of the parties is in the position to dominate the will of the other and uses that position to obtain an unfair advantage over the other. However neither fiduciary relationship nor a dominating position would raise a presumption of undue influence in case of Wills as all influences are not unlawful. Persuasion on the basis of affection or ties is lawful. The influence of a person in fiduciary relationship would be lawful so long as the testator understands what he is doing. Thus it can be said that a testator maybe led but cannot be driven.
Wills Void Due To Uncertaint
S.89 of ISA states that if the Will were uncertain as regards either to the object or subject of the Will then it would be invalid. The Will may express some intention but if it is vague and not definite then it will be void for the reason of uncertainty. The Will may depose of the property absurdly or irrationally i.e the intention maybe irrational or unreasonable, but that does not make it uncertain. For uncertainty to be proved it has to be proved that the intention declared by the testator in the Will is not clear as to what is he giving or whom is he giving. Only if the uncertainty goes to the very root of the matter, then only the Will has to be held void on the grounds of uncertainty.
Will Void Due To Impossibility Of Condition
S. 124 of ISA provides that a contingent legacy can take effect only on happening of that contingency. A conditional Will is that Will which is dependent on the happening of a specific condition the non-happening of which would make the Will inoperative. S.126 of ISA provides that a bequest upon an impossible condition is void. The condition maybe condition precedent or condition subsequent.
Will void due to illegal or immoral condition
S.127 of ISA provides that a bequest, which is based upon illegal or immoral condition, is void. The condition which is contrary, forbidden, or defeats any provision of law or is opposed to public policy, then the bequest would be invalid. A condition absolutely restraining marriage would also make the bequest void. S.138 of ISA provides that the direction provided in the Will as to the manner in which the property bequeathed is to be enjoyed then the direction would be void though the Will would be valid.
A will containing any element of suspicious nature can be challenged.
Wills having suspicious nature such as,
Execution of two wills at a time, the first being designed vaguely and the other supplementing it. Or,
Purchasing of number of stamps for writing out the will, or,
Too many thumb impressions, thereby confusing all with one another,
Giving the property to someone who not remotely close to the testator,
When the will is was executed in the hospital, and the same was not mentioned in the will,
Lack Of Due Execution
A will must be made by the testator and duly signed by him. Signature or thumb impression of the testator is not the only requirement. Along with the testator, the will must contain the signature or thumb impression of two witnesses, witnessing that the will belongs to the testator. If any if these is not present, there is a lack of due execution in the will and the same can be challenged in the court of law.
Lack Of Testamentary Intention
The wordings used in the will is to be followed religiously as it is the only desire left of the testator as to what is to be done with his property. It is the desire of the testator which is to be executed. If the will contains any element which shows that, any provision made in the will might be against the testamentary intention of the testator, the same can be challenged in the court of law.
Lack Of Testamentary Capacity
The testator while making a will
shall understand the nature of the act and its effects;
shall understand the extent of the property of which he is disposing;
shall be able to comprehend and appreciate the claims to which he ought to give effect and, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.
Consequences When No Will Is Made
When an individual dies without making a will he is said to have died intestate and in that case his property will be inherited by his heirs in accordance with the law of succession as applicable to that person.
Succession to the property of Hindus is governed by the provisions of the Hindu Succession Act, 1956. Succession to property of Muslims is governed by the Muslim Law. A person other than Hindus and Muhammedans viz Jain, Sikh or Buddhist is governed by the Indian Succession Act, 1925.
Selection of The Witnesses
Causal selection of the witnesses to the will should be avoided as it may create difficulty in proving the execution of the will in future. It should be kept in mind that the attesting witnesses may on some future occasion be required to appear as a witness in the Court to prove the execution of the will. In selection of the attesting witness the following points should be considered;
(1) The attesting witness as well as his wife or her husband must not be a beneficiary under the will because the bequest in their favour would be invalid. (Sec. 67 of the Indian Succession Act, 1925.) However the validity of other bequests made under the will are not affected.
(2) As far as possible select the attesting witnesses selected should be some years younger to testator because in such a case there is every likelihood that atleast one of the attesting witness would survive the testator and would be available for proving the execution of the will by the testator.
(3) If any of the attesting witness dies during testator's life time, it is better to execute a fresh will with new attesting witnesses.
(4) In the event the testator is aged, infirm or suffering from physical illness, it is advisable that the family doctor of the testator should be an attesting witness. It is also advisable that the advocate or the solicitor who has drafted the will should be an attesting witness.
(5) The attesting witnesses should be of integrity and sound status.
Safe Custody Of Will
After the execution of the will it may be deposited by the testator in some safe custody such as with his banker or solicitor or chartered accountant or any other person of his confidence. A person who is not desirous of registering his will is at liberty to deposit the same for safe custody with the Sub-Registrar so that such deposited will can be made available to his executors upon his death by the Sub-Registrar's office. Deposit of the will is also optional.
Once a Will has been made, it is important to ensure that the Will is kept in a safe place in a manner that the beneficiaries get it after the death of the Testator.
Some countries have a national depository for safekeeping of Wills. In some other countries, there are private systems of institutionalized safekeeping of Wills. India does not have any such facilities. It, hence, become responsibility of the testator to take care to ensure that there is no foul play after death.
Ideally, the Will should be made in as many copies as the number of beneficiaries. For example, if there are three beneficiaries the testator should hand over an original copy of the Will to each of the three beneficiaries. In such a case, it should be mentioned in the Will that “This Will has been prepared in three copies. Each copy is original and bears equal weight. Each beneficiary is being handed over a copy of the Will immediately after execution.”
Hindi films of last century often had a scene where immediately after the death of a rich man, a lawyer would come and read out the Will of the deceased. Keeping the Will safe with a trusted lawyer (while keeping it confidential from family members and beneficiaries) till the time of death is neither a legal requirement nor is a recommended course of action.
Finding a trustworthy lawyer in modern India is not easy. A crooked lawyer can easily substitute the original Will with a forged one. If for any reasons, a testator does not want his / her Will to be known to the beneficiaries during his / her lifetime, the following steps may be taken:
- Keep the original Will with a trusted friend / family member / lawyer / aw firm.
- Get the Will registered at the office of relevant Sub-Registrar
- Hand over self-certified copies of the Registered Will to all banks where the testator has accounts, lockers etc.
- Hand over self-certified copies of the Registered Will to more than one friend, family member etc.
Wills And Tax Planning
Quite often tax planning is resorted to by a testator through the medium of a Will. Also social aspects may require the testator not to give away property to one or more legatees specifically but to create the trust of the properties or part of the properties, mentioning the beneficiaries but providing indeterminate shares to the beneficiaries and leaving the distribution of income or corpus to the trustees of the trust considering the need or requirement of various persons mentioned in the trust deed as beneficiaries.
The obvious advantage in adopting this method is to see that the income or corpus of the property settled on trust is distributed to all or some of the beneficiaries as per the requirement of those beneficiaries such as education, marriage, settlement in life etc. The tax advantage will result if the trust created by Will does not give the income or corpus separately to one or more beneficiaries but provides indeterminate shares in the income or property at the discretion of the trustees. In case of such a trust created by Will it will be a separate taxable entity liable to tax at the appropriate rate and not at the highest tax rate which would be the position if such trust with indeterminate shares was created during his life time.
However, only one such trust with indeterminate shares can be created for getting the benefit of being taxed at appropriate rate. The advantage would be that the income distributed by trustees will not be taxable in the hands of the beneficiaries who receive the same but will be taxed in the hands of the trustees at the appropriate rate and not at the maximum rate. If a trust is created with specific shares to the beneficiaries income or corpus which a beneficiary is entitled to have, the income or wealth will be added to his/her income or wealth. This situation will be avoided by creating a trust by will with indeterminate shares.
Will as Trust Deed
Often one may wish to give money and assets to some loved ones but one is not sure if they will be able to take care of it. This is most often the case when the loved ones are either too young or are mentally / physically challenged. In such cases one may wish to create a trust naming the loved ones as beneficiaries of the trust. One may also wish to set aside a portion of one’s wealth for charitable purposes and may wish to create a public trust for the purpose.
Creating a trust can either be done during one’s lifetime by a Trust Deed or may be done through one’s Will.
A trust for the benefit of one’s loved ones is called a private trust and is governed by The Indian Trusts Act, 1882 (Act No. 2 of 1882). A trust for charitable object is governed by Public Trusts Act of the concerned state of India.
Noticeable points from the above sections for creation of Private Trust using a Will are as follows:
a) One may create a Private Trust using one’s Will with movable property only. One’s immovable property cannot be transferred to a private trust through a Will.
b) Intention to create Trust should be clearly mentioned.
c) Purpose of the Trust should be clearly stated.
d) The beneficiaries should be clearly named.
e) The movable property being moved to Trust should be clearly defined and there should be no confusion or uncertainty around it.
f) Trustee(s) should be clearly named and / or the process of appointing trustee(s) should be clearly specified. We also advise that the Will contains directions about dissolution of the Private Trust and distribution of assets among beneficiaries. In case the intention is to create a Public Trust for charitable, religious, educational or scientific purposes, one may do so also using one’s Will. For creating a Public Trust, the following points should be noted:
a) One may create a Public Trust using one’s Will with movable as well as immovable property.
b) Intention to create Public Trust should be clearly mentioned.
c) Purpose of the Trust should be clearly stated. Purpose must be charitable or educational or religious or scientific or social. Purpose should not include benefit
to any specific individuals.
d) The property being moved to Public Trust should be clearly defined and there should be no confusion or uncertainty around it.
e) Trustee(s) should be clearly named and / or the process of appointing trustee(s) should be clearly specified.
A Private Trust does not need to be registered, while a Public Trust needs to be registered. Relevant provision under Madhya Pradesh Public Trusts Act, 1951 reads as follows
Provisions of section 11 are for the state of Madhya Pradesh. Each state has its own law which is largely similar to the above for public trusts. Essentially, it is obligatory to get the Public Trust registered with the appropriate authorities. No such obligation exists in case of private trusts. If it is proposed to create either a Private Trust or a Public Trust through a Will, we recommend that professional help be taken for drafting of the Will.
Some Further Aspects Of Discretionary Trust By Will.
Discretionary trust by Will is the most commonly utilized mode of tax planning by reason of the second exception to Section 164 of the Income Tax Act. Section 164 and the corresponding provision of the Wealth Tax Act contained in Section 21 provide that where income or wealth is receivable under a trust declared by Will the maximum marginal rate is not applicable and only the appropriate rate will be attracted on the income or wealth on such a discretionary trust. Thus, it is most advantageous to create a discretionary trust both as regards income and wealth left by a testator to a group of legatees.
The requirement of the law is, therefore, satisfied when a trust is declared by a Will and the income or wealth is receivable under such a trust and such income or wealth is not specifically receivable on behalf of any one person or individual shares therein are indeterminate or unknown. If these requirements are satisfied, then discretionary trusts created by Will will be taxable as a separate unit of assessment under Section 164 qua income and Section 21(4) qua wealth and neither the income nor wealth will be includible in the assessment of the beneficiaries.
But see CIT v/s. Kamalini Khatau, 209 ITR 101 (SC) when it is held that if any beneficiary of a discretionary trust has received any income from the trust, it is open to the Income Tax Dept. to tax the beneficiary on the income received under s. 166 which permits such direct assessment. This mode of planning has certain obvious advantages: (1) the income or wealth is not includible in the assessment of any beneficiaries under such trust and (2) the trust will be taxed as an independent unit at an appropriate rate. Thus, the assessments of the beneficiaries are not disturbed unless income is received by any beneficiary in which event Dept. has option to directly tax the beneficiary on that income, coupled with his other income. (See CWT v/s. Arvind Narottam, 102 ITR 232 (Guj). (4).
The trustees would have discretion of distributing income and wealth amongst the beneficiaries in such proportion as they think necessary from time to time, thus enabling them to distribute the estate according to the needs of the beneficiaries. Even they can be empowered not to distribute but to accumulate income or distribute to some & not to other, further if long period is mentioned of the trust provision can be made to accelerate distribution period or extend it. Further future beneficiaries can also be provided for adding such as future spouse or children of existing beneficiaries.
Whether Trust Can Subsequently Receive Gifts/ Donations
Another question which has often arisen in the context of such a discretionary trust is whether such a trust can subsequently receive gifts or donations after they come into force on the death of the testator and if so, how the income from such subsequently gifted amounts is to be treated. The point is debatable. Every gift in fact, creates a new trust for the same purposes and, therefore, the income from such gifted amounts and the gifted amounts themselves cannot be said to be part of the trust declared by Will and they may not be entitled to the benefit of the appropriate rate of tax but may be liable to be taxed at a maximum marginal rate. It is also possible to contend that it amounts to a gift to an existing trust and a new trust does not come into being with every donation subsequently made. There is no decision of any Court on this point.
International Planning Options
For estate planning purposes, there are generally three different ways to address owning assets in multiple venues. This includes 1) multiple Wills, 2) an International Will, or, best of all, 3) an International Trust combined with one of the first two options.
With the first option, individual estate planning with different Wills in different countries acting simultaneously upon death is one solution. Each Will from each jurisdiction must be carefully drafted so it is limited only to property within that country and so it does not invalidate other, pre-existing Wills in other countries. If not co-ordinated correctly, some very unusual or unintended consequences could result.
Multiple Wills can be the most complex and difficult documents to write, especially where assets or beneficiaries are located across several jurisdictions. What makes them more challenging are the laws of different assets located in multiple venues. The issues become even more complicated when living in a country which might apply Sharia law to assets located in the country.
A second option is an International Will. Most people - including most lawyers – have never heard of an International Will. But in many situations this option could be far better than multiple Wills in multiple jurisdictions, that may or may not be properly coordinated to work together.
In 1973 in Washington, D.C., the International Institute for the Unification of Private Law (UNIDROIT) held a convention to provide for a uniform international law on the form and standard for an International Will. The purpose was to create an International Will that would make estate planning with international ramifications more straightforward, and without revoking or interfering with local sovereignties.
An International Will is relatively straight forward.
For an International Will to be effective, there is a list of requirements that must be met. For example, the Will must be for only one person (no joint Wills), and the Will must be in writing, but may be in any language. In addition, the Will must be witnessed and signed by two witnesses and an attorney (a notary is not sufficient), and all signatures must be at the end of the Will. If the Will is more than one page, each page must be numbered and must be signed on each page. And if the testator is unable to sign, the reason must be clearly noted in the Will.
In addition, a certificate must be attached to the end of the International Will, signed by an attorney, attesting that the requirements and procedures for drafting and execution have been satisfied. There are other formatting and signature concerns, but as to the actual content of the Will, the above generally satisfies the International Will requirements.
What is known as the Uniform International Will Act was enacted in Washington DC under the UNIDROIT convention. The greatest benefit to an International Will is knowing that when it is properly drafted it is valid in any jurisdiction that has signed or enacted the Uniform International Wills Act. To learn more about UNIDROIT, go here.
Some Prominent abridged case laws regarding "Will" given below.
INTERNATIONAL WILLS
In 1973 an international convention, the Convention providing a Uniform Law on the Form of an International Will, was concluded in the context of UNIDROIT. The Convention provided for a universally recognised code of rules under which a will made anywhere, by any person of any nationality, would be valid and enforceable in every country which became a party to the Convention. These are known as "international wills".
Belgium, Bosnia-Herzegovina, Canada (for 9 provinces, not Quebec), Cyprus, Ecuador, France, Italy, Libya, Niger, Portugal Slovenia, The Holy See, Iran, Laos, the Russian Federation, Sierra Leone, the United Kingdom, and the United States have signed but not ratified.International wills are only valid where the convention applies. Although the US has not ratified on behalf of any state, the Uniform law has been enacted in 23 States and the District of Columbia.
For individuals who own assets in multiple countries and at least one of those countries are not a part of the Convention, it may be appropriate for the person to have multiple wills, one for each country. In some nations, multiple wills may be useful to reduce or avoid taxes upon the estate and its assets. Care must be taken to avoid accidental revocation of prior wills, conflicts between the wills, to anticipate jurisdictional and choice of law issues that may arise during probate.
When individuals reside in one country and own assets in another, the laws of different countries can create unintended consequences if you pass away. This includes assets such as cash, real estate, stocks, bonds, and most other types of property.
Occasionally, some countries recognize Wills drafted in another jurisdiction. For example, a U.S. Will may be valid in a foreign country if it satisfies all formalities under the laws of the foreign jurisdiction. However, some countries will not recognize a Will drafted in another country under any circumstance, or only in a special situation.
Consider that in the U.S. an individual is typically free to dispose of their estate as they desire, subject to spousal rights. By comparison, France makes almost no provision in its succession laws for a surviving spouse. So, a U.S. individual passing away (with Will or no Will) and a solely owned property in France may leave the surviving spouse under French law with no claim to the foreign asset.
When an individual or family is “international” - with assets located in different venues - making provisions to dispose of property is essential.
There are different types of indispensable planning tools to protect you and your family assets. Estate planning for individuals living abroad - or with assets located in more than one country - can become exceedingly complex.
Estate or death taxes, and related generation skipping transfer taxes, are very convoluted areas of tax law, particularly in the U. S. A ‘quick-fix’ expatriate Will, just won’t solve the numerous tax or property issues involved in the international scenario.
And don’t be fooled into believing you have an enforceable Will simply because your local Consulate or Embassy in the new venue has notarized a Will or other legal document. Notarization simply ensures that the signatures on the document are authentic. That is all it does. The person notarizing the document is not giving legal advice, nor are they assuring that the document will serve the purpose for which it was intended. The notary simply affixes his official stamp and signature along with official registration number on the document while witnessing the signatures.
Supreme Court of India
1. Yash Vardhan Mall vs Tejash Doshi on 23 November, 2017
CIVIL APPEAL Nos.19635-19636 of 2017
(Arising out of S.L.P. (Civil ) Nos.28643-28644 of 2017)
A Will was executed by Smt. Shrutika Doshi on 01.03.2013 by which she appointed her husband, the sole Respondent herein, as the executor and trustee. Her minor daughters were made the beneficiaries. It was mentioned in the Will that in case the Respondent is unable to carry out or act as the sole executor by giving effect to the Will and testament, the Appellant shall become the sole executor. The Will dated 01.03.2013 was registered with the Sub-Registrar of Assurance at Calcutta on 25.05.2013. Smt. Shrutika Doshi died on 26.05.2013. Another Will executed by Smt. Shrutika Doshi on 22.04.2013 surfaced wherein the Respondent was appointed as the sole executor and in case he is unable to act as the sole executor his father would replace him. As the Respondent did not apply for grant of probate of the Will dated 01.03.2013 for two and half years, the Appellant applied for a probate of the Will. Thereafter, the Respondent filed P.L.A. No.123 of 2016 for grant of probate of the Will dated 22.04.2013 before the High Court at Calcutta. The Appellant filed a caveat on 15.06.2016 and on receipt of a notice of the filing of the P.L.A. No.123 of 2016, the Appellant filed an affidavit in support of the caveat on 10.01.2017. The Respondent filed an application G.A. No.888 of 2017 in P.L.A. No.123 of 2016 for discharge of the Appellant’s caveat.
2. The petition filed by the Appellant for grant of probate of the Will dated 01.03.2013 was dismissed by the District Judge, Alipore on 17.04.2017. An appeal has been filed against the said order which is pending in the High Court at Calcutta.
3. A learned Single Judge of the High Court at Calcutta heard G.A. No.888 of 2017 in P.L.A. No.123 of 2016 for discharge of caveat. By an order dated 28.06.2017, the learned Single Judge allowed the application filed by the Respondent and discharged the caveat. The appeal filed against the said order dated 28.06.2017 was disposed of by a Division Bench of the High Court holding that there was no reason to interfere with the order of the learned Single Judge, though the Appellant had a caveatable interest. Aggrieved thereby the Appellant has approached this Court.
4. The learned Single Judge referred to Chapter XXXV of the The Rules of The High Court At Calcutta (Original Side), 1914 (hereinafter referred to as the ‘Rules’) to hold that the affidavit filed in accordance with Rule 26 thereof did not disclose legal grounds of objection to the grant of probate. The learned Single Judge further held that the Appellant did not have caveatable interest and discharged the caveat. The Division Bench held that an executor of a previous Will cannot be denied a right to lodge a caveat in respect of a subsequent Will of the same testator. Even if the executor is not a legatee under the Will, his obligation is to obtain a probate of the Will and to administer the estate in accordance with the terms of the Will. As the execution of the Will dated 01.03.2013 was not disputed by the Respondent, the Division Bench held that the Appellant has sufficient interest in the estate and was entitled to lodge a caveat by virtue of his position as a trustee in respect of the trust created by the first Will. Having held that the Appellant has a right to object to the grant of probate of the Will dated 22.04.2017, the Division Bench refused to interfere with the order of the learned Single Judge for the reason that the affidavit filed in support of the caveat did not disclose any ground to doubt the due execution of the Will dated 22.04.2013.
5. The Rules relevant for the purpose of adjudication of the dispute in this case are as follows:
“24. Caveat. - Any person intending to oppose the issuing of a grant of probate or letters of administration must either personally or by his Advocate acting on the Original Side file a caveat in the Registry in Form No.12. Notice of the filing of the caveat shall be given by the Registrar to the petitioner or his Advocate acting on the Original Side. (Form No.13).
“25. Affidavit in support of caveat. - Where a caveat is entered after an application has been made for a grant of probate or letters of administration with or without the will annexed, the affidavit or affidavits in support shall be filed within eight days of the caveat being lodged, notwithstanding the long vacation. Such affidavit shall state the right and interest of caveator, and the grounds of the objections to the application.” “30. Trial of preliminary issue. - The Court may, on the application of the petitioner by summons to the caveator before making the order mentioned in Rule 28, direct the trial of an issue as to the caveator's interest. Whereupon the trial of such issue, if it appears that the caveator has no interest, the Court shall order the caveat to be discharged, and may order the issue of probate or letters of administration, as the case may be.”
6. An affidavit filed in support of the caveat according to Rule 25 shall state the right and interest of the caveator and the grounds of the objections to the application. The affidavit filed in support of the caveat by the Appellant mentions that Smt.Shrutika Doshi executed her last Will and testament on 01.03.2013 which was registered on 22.05.2013. There is a reference to the Will dated 22.04.2013 alleged to have been executed by Smt.Shrutika Doshi as her last Will and testament. It was further mentioned in the affidavit that the Will dated 01.03.2013 being registered on 22.05.2013 has to be treated as the last Will and testament of Smt.Shrutika Doshi. The Appellant did not doubt the execution of the Will dated 22.04.2013, but asserted that the Will dated 01.03.2013 which was registered on 22.05.2013 was her last Will.
7. After holding that the Appellant has a caveatable interest to object to the grant of probate of the Will dated 22.04.2013, the High Court refused to interfere with the order of the learned Single Judge on the basis that the affidavit filed in support of the caveat did not doubt the execution of the Will. As per Rule 25, the right and interest of the caveator and the grounds for objection to the application have to be mentioned in the affidavit filed in support of the caveat. The right and interest of the caveator as the executor of rival Will dated 01.03.2013 have been mentioned in the affidavit filed in support of the caveat and the High Court rightly upheld the contention on behalf of the Appellant that he has caveatable interest. The grounds for objection to the application for grant of probate have also been mentioned in the affidavit. On a detailed scrutiny of the affidavit filed in support of the caveat, we are satisfied that the Division Bench went wrong in not permitting the Appellant to contest the proceeding of probate of the Will dated 22.04.2013, especially after holding that he has a caveatable interest. It is relevant to mention that the petition filed by the Appellant for grant of probate of the Will dated 01.03.2013 was rejected by the District Judge, Alipore on the ground that the application for probate of the Will dated 22.04.2013 was pending and that the Appellant had lodged a caveat in that proceeding. It was further held in the said order passed by the District Judge on 17.04.2017 that the Appellant will have sufficient opportunity to prove his allegations against the Respondent in the said proceeding.
8. This Court in Krishna Kumar Birla v. Rajendra Singh Lodha and Ors. (2008) 4 SCC p.300 considered the point of caveatable interest in a detailed manner and held that no hard and fast rule can be laid down. The existence of a caveatable interest would depend upon the fact situation of each case. In the instant case, the High Court found that the Appellant has caveatable interest, but the caveat filed by the Appellant was discharged on the ground that the affidavit filed in support thereof was bereft of an averment doubting the due execution of the Will dated 22.04.2013. For the reasons stated supra, we are satisfied that the affidavit filed in support of the caveat fulfils the condition of Rule 25.
9. The appeals are allowed and the judgment passed by the Division Bench of the High Court is set aside. No order as to costs.
Supreme Court
2. Samir Chandra Das vs Bibhas Chandra Das & Ors on 7 May, 2010
CIVIL APPEAL NO. 4345 OF 2010
1. Leave granted.
2. Challenge in this appeal is to the Division Bench Judgment of the Calcutta High Court wherein the appeal filed by respondent herein, namely, Bibhas Chandra Das was allowed holding that no probate could be granted in favour of the present appellant, namely, Samir Chandra Das.
3. Following factual panorama would clarify the controversy herein:
One Jogesh Chandra Das was the testator. He expired on 13.01.1984 leaving his widow Parul Bala Das and four sons Samir Chandra Das, Subhash Chandra Das, Bibhas Chandra Das and Anjan Das. He had three daughters also, namely, Dipti, Jayanti and Sashwati. In his Will dated 14.08.1983, he named his widow Parul Bala Das and Samir Chandra Das as the executors. By this Will, however, Bibhas Chandra Das was not given any share. The house property at Harish Mukherjee Road was to go to his wife Parul Bala Das with life interest without any right to sell, mortgage etc., and after her death, to his three sons, namely, Samir Chandra Das, Subhash Chandra Das and Anjan Das. He had also desired that the right of residence would be available to his two unmarried daughters, namely, Jayanti and Sashwati. It was also mentioned in the Will that the testator had purchased a piece of land in the name of his wife and second daughter who was polio affected. This property was given to the widow for life and thereafter to the three sons of the testator excluding Bibhas Chandra Das on the condition that the three sons would bear the maintenance and marriage expenses of the two unmarried daughters for which the wife Parul Bala Das had specific authority to sell the land even during her life time to meet the expenses of maintenance and marriage of the two daughters, if the three sons did not bear the same.
4. Two sale deeds were executed by Parul Bala Das and Jayanti whereby 5 cottahs of land out of 7 cottahs purchased earlier by the testator in the `benami' of Parul Bala Das and Jayanti was sold on 10.10.1983. It is to be mentioned that these sale deeds were countersigned by Jogesh Chandra Das as also Samir Chandra Das. The remaining two cottahs of land was sold by Parul and Jayanti by sale deed dated 12.02.1988. The sale proceeds are alleged to have been used for running the Indian Oil Corporation Gas Dealership for Jayanti and Sashwati. On 17.07.1984 an application came to be made for probate by Samir Chandra Das and Parul Bala Das. However, during the pendency of the probate proceedings, Parul Bala Das expired on 18.01.1990. This probate application was supported by all excepting Bibhas Chandra Das, the respondent herein. Since the probate became contentious, the application for probate was refiled on 22.01.1986 and the proceedings were renumbered as Original Suit No. 6 of 1986.
5. As has been stated earlier, all the legatees supported the probate application. However, Bibhas Chandra Das opposed the same. During the pendency, as has already been stated, on 12.02.1988, Parul Bala Das along with her second daughter Jayanti had sold the remaining two cottahs approximately of the earlier mentioned land. On this, the appellant Samir Chandra Das had signed as a witness. Smt. Parul Bala Das died on 18.01.1990. The respondent herein opposed the grant of probate by filing a written statement dated 05.04.1990. The evidence was led and the Will was got proved.
6. In the written statement, respondent Bibhas Chandra Das mainly opposed the probate application on the grounds that the suit was not maintainable, Will was not genuine, Will was not legally executed and attested, Jogesh Chandra Das did not execute the Will out of his free will, it was brought about by undue influence and lastly that Bibhas Chandra Das had good relations with his father Jogesh Chandra Das and, therefore, it was unthinkable that he would be disinherited by Jogesh Chandra Das in his Will. It was also alleged that since the executer Samir Chandra Das was on inimical terms with Bibhas Chandra Das, he had exercised undue influence on his father. By amendment it was further alleged that the Will was not out of the free will of Jogesh Chandra Das who was very affectionate with defendant Bibhas Chandra Das and he was not the prodigal son. In short, the defendant never raised the plea regarding any acquired disability by renunciation as executor on the part of Samir Chandra Das to apply for probate. After the evidence was led, the trial Court framed the following six issues:
1. Is the application for probate maintainable in law and proper form?
2. Had the testator sound disposing state of mind to execute the Will i.e. whether the testator was physically fit and mentally sound and alert to execute the will.
3. Whether the will in question was validly executed and attested in accordance with law?
4. Whether the petitioner Samir Kumar Das obtained the alleged Will by exercising undue influence over the testator?
5. Whether the petitioner/plaintiff is entitled to an order of probate over the Will in question?
6. What other reliefs, if any is the petitioner entitled to?"
7. After the evidence, the trial Court came to the conclusion that the Will was genuine and the testator had the sound disposing state of mind to execute the same since he was physically fit and mentally sound and alert. It was also held that the Will in question was validly executed and attested. It was found that the Will was free from any undue influence much less from Samir Chandra Das. In that view, the Court ordered grant of probate.
8. An appeal was filed on various grounds. We scanned the grounds in appeal very carefully which mainly pertained to the grounds raised in the written statement. In the grounds raised in the appeal, we do not find a single ground to the effect that the executor Samir Chandra Das had, in any manner, acquired any disability or had, in any manner, renunciated the executorship.
9. The appellate Court, however, did not consider the matter on merits as is clear in the penultimate paragraph of the judgment. The Court, however, wrote a finding that the appellant herein having put his signatures as a witness along with his mother on the sale deed dated 12.2.1988 in effect renunciated his position as an executor. The appellate Court also wrote a finding that both the executors having espoused an interest over the subject matter of the Will which was adverse to the interest of the testator, no probate could be granted in their favour since by their conduct they had renounced the executorship. The appellate Court also made a reference to Sections 222, 223 and 230 of the Indian Succession Act and came to the conclusion that though Samir Chandra Das had not expressly renounced the executorship, yet he had asserted title which is hostile to that of the testator and/or acted contrary to the directions contained in the Will and/or had supported such claim or act or has even orally asserted before the Court any right adverse to that of the testator and supported such claim and such conduct of the executor amounted to "implied renunciation" of the executorship. It went on to further allege that if any such document signed by the executor as is proved before the probate Court having been knowingly signed by the executor, the probate Court will presume renunciation of the executorship and will refuse to grant probate to such executor. The appeal was thus allowed and the suit was dismissed.
10. It is this judgment which has fallen for our consideration in this appeal. Shri Jaydeep Gupta, Learned Senior Advocate questions the correctness of this judgment on various grounds. He firstly pointed out that this was not at all a case of renunciation. Learned Counsel pointed out that the renunciation can be only under Section 230 of the Act and such renunciation if made orally in the presence of a Judge, it may amount to a renunciation. As such the Learned Counsel pointed out that such renunciation has to be in writing duly signed by the person renouncing. Under these two conditions, the person renouncing is precluded from applying for probate of the Will in which he is appointed as an executor. He argued that the concept of "implied renunciation" is not known to the law or is not to be found anywhere in the Indian Succession Act. Learned counsel, therefore, argued that when the statute mandates through a specific provision the manner and the conditions for the renunciation, the Court could not have found out a different way of renunciation. Learned counsel argued that when the statute provides for the manner and the conditions for renunciation then the renunciation could be ordered only on the fulfillment of the conditions and not in any other manner. Learned counsel further argued that even on the facts the Court erred in holding that in putting the signatures as a witness to the sale deed of the property covered by the Will it can be said that the executor had acted hostile to the testator or had acted contrary to the directions contained in the Will. According to him, ultimately that property which was sold was to go under the Will to the daughters and the wife of the legatee Parul Bala, with rights to sell the property for the welfare of the two unmarried daughters. It was pointed out by learned counsel that in the two sale deeds dated 10.10.1983 even the testator had put his signatures along with the present executor Samir Chandra Das, though the Will had already come into existence on that date. According to the learned counsel, those two sale deeds, therefore, were absolutely innocuous. In so far as the third sale is concerned, the property was to go to Parul Bala and her daughters and further, Parul Bala had the authority under the Will to dispose of the property for the welfare and maintenance of the two daughters. Learned counsel was at pains to point out that the gas dealership of the IOC was arranged from the consideration in the name of the two unmarried daughters. He pointed out that, therefore, there was no question of the executor having acted hostile to the interests of the testator or even for that matter the other legatees who had no concern with such property. Learned counsel, therefore, argued that even on merits there was no question of such a finding.
11. As against this, Shri Pradip Kumar Ghosh, learned Senior Advocate and Shri Rauf Rahim, learned advocate argued that the judgment was correct. Three decisions were relied upon by Shri Ghosh, being Crystal Developers Vs. Asha Lata Ghosh (Smt.) (Dead) through L.Rs. & Ors. [2005 (9) SCC 375], Krishna Kumar Birla Vs. Rajendra Singh Lodha & Ors. [2008 (4) SCC 300] and Anil Kak Vs. Kumari Sharada Raje & Ors. [2008 (7) SCC 695]. Shri Ghosh also argued that we must give purposive interpretation to Section 230 of the Indian Succession Act. He also argued that though Section 223 specifically provides for the disqualification of the persons to whom the probate could be granted, we must read that Section along with Section 230 to hold that there could be a deemed renunciation and the Court could under the circumstances deny the probate to such an executor who had in fact impliedly renounced his character as an executor.
12. On these rival contentions, it has to be seen whether the judgment is correct.
13. In the first place, we must observe that the appellate Court should not have allowed this question to be argued as there was no plea raised in the written statement in support of the theory of renunciation by widow Parul Bala and the present executor Samir Chandra Das. This question was not argued before the Trial Court nor was it raised by way of a written statement nor was it raised even in the memo of appeal before the High Court. In our opinion, therefore, the High Court should not have entertained such a question.
14. On merits, it was the case of respondent herein that in the three sale deeds, two of which were executed before the death of the testator and one after his demise during the pendency of the probate proceedings the properties were claimed to be the self acquired properties of the widow and the second daughter. It was argued that, therefore, the widow who was an executor was claiming that this property never belonged to the testator. The further case was that since the surviving executor Samir Chandra Das had put his signatures as a witness to the sale deeds, he also must be deemed to have accepted the recitals in the sale deeds to the effect that it was a self acquired property of the widow and the second daughter thereby disputing the title of the testator.
15. The argument is absolutely incorrect, firstly, for the simple reason that at the time of first two sale deeds, even the testator had put his signatures as a witness and as he was alive on that day, the Will was irrelevant. Therefore, those two sale deeds will naturally go out of consideration. Probably realizing this, the High Court made a stray remark in the judgment to the effect that "one of it was executed during the pendency of the probate application". Now, if the earlier two sale deeds which were dated 10.10.1983 and were executed during the lifetime of the testator and he himself had acted as a witness, there was no question of any rival or hostile title being set up by Parul Bala and further by the present appellant who put his signatures as a witness along with his father, the testator on the sale deeds dated 10.10.1983. It cannot be presumed that there was any idea of setting up a hostile title. The remaining property which was sold on 12.02.1988 i.e. during the pendency of the probate application was admittedly a part of the aforementioned property, part of which was sold on 10.10.1983 by two sale deeds. Basically, on 10.10.1983, the Will had never become effective as the testator was alive. Therefore, the deduction of the High Court that Parul Bala Das and Samir Chandra Das had taken a stance against the testator is clearly faulty. On that day, this position was absolutely not available. This is apart from the fact that on that day, on those two sale deeds dated 10.10.1983, even the testator had signed as a witness. Insofar as the subsequent sale deed dated 12.02.1988 is concerned, also there will be no question of taking any hostile stance against the testator because the property which was sold was clearly given away in the Will in favour of Parul Bala Das and her daughters, and Parul Bala Das also was given the right to sell the property for the maintenance and marriage expenses of her two unmarried daughters.
Therefore, at least on that day, when the sale deed was executed, Parul Bala Das and her two daughters had inherited the property under the Will, which they sold and they were undoubtedly the owners of the properties. We must, therefore, hold that the High Court erred in taking the stand that the executor had taken a hostile stance against the testator. Once this position on facts is obtained, there is no question of further considering the correctness of the probate holding that there was an "implied renunciation" by the appellant herein.
16. However, since there is no authoritative pronouncement, we are proceeding to test the judgment.
17. Our attention was invited by Shri Jaideep Gupta, Learned Senior Counsel appearing on behalf of the appellant, firstly to a decision of the Madras High Court in (Thoppai) Venkataramier Vs. A Govindarayalier [AIR 1926 Mad. 605].
In that case, the District Judge had refused to grant the probate to the appellant. The appellant was one of the two executors. The Will was found to be genuine and it was found that prior to the probate proceedings, the appellant had indulged in wild statements that the Will was a forgery and he was never appointed as executor and that testator had never signed the Will. The appellant had also stated that his (appellant's) attestation on the Will itself was obtained by fraud. Relying on a decision in In the goods of Manick Lal Seal [(1908) 35 Cal. 156], the Madras High Court observed that it was open to the executor to openly assert outside the Court that he was renouncing his executorship, but it was by his statement in the Court that he will stand or fall. It was further observed that the appellant's statement in the Court that he did not admit the execution and validation of the Will or that it was a spurious document or that he never put his signatures to the Will and his attestation thereto was obtained by fraud, would be of no consequence in view of his end statement that if the Court considered the Will genuine and was prepared to grant probate, he was willing to act as the executor.
The Court did not consider whether such a statement would amount to renunciation. The Court further observed that it was quite open to the executor to take a position taken by the appellant. Further relying on a reported decision in Sarojini Dasi Vs. Rajalakshmi Dasi [AIR 1920 Cal. 874], the statements of the appellant were held not to be the renunciation. The other decision relied upon by the Learned Senior Counsel was Smt. Sailabala Dasi Vs. Baidya Nath Rakshit [1932 CWN 729], where the Calcutta High Court specifically held that:-
"disputing the Will by an executor is no ground for which the Court is authorized to refuse grant of probate to such executor when, later, he asks for it."
In this decision also, the appellant was joined as the opposite party as she, though was a named executor, did not apply for probate. She also filed a petition, but she did not admit the Will or the proper execution and attestation thereof. However, she had stated that if the Will was proved to have been properly executed and attested, she was willing and claimed to get the probate as executrix. The question regarding due execution of the Will was fought out. Even in her evidence, the appellant had disputed the genuineness of the Will. However, the Will was held to be a valid, duly executed and attested Will. On this ground, she was refused the probate. Even the appellate Court had taken a view that she had renounced her executorship. It was held by the appellate Court that after repudiating the Will, the person could not turn around and say that he was entitled to probate. Referring to Section 230 of the Indian Succession Act, it was held that even under these circumstances, Section 230 was not applicable and the said Section was bound to be read alongwith Section 229 and reading the two together, unless the executor has renounced his executorship, the probate cannot be refused to him/her.
It was clarified that Section 230 refers to the manner of renunciation in such a case. It was held that even under the circumstances of the case, the appellant was entitled for probate. When we consider the position obtained in the present case, one thing is clear that the situation here was nowhere comparable to the one obtained in the above two decisions. In fact, there was not even a trace of renunciation on the part of the appellant herein, not even remotely.
18. We have already explained the factual situation and in our opinion, the High Court completely misguided itself in stretching the theory of renunciation to its illogical end. The provision of Section 230 lays down specifically as to how the executor renounces his character as an executor. That is certainly not to be found here and when the law requires a thing to be done in a particular manner, it cannot be done in any other manner. The concept of deemed renunciation, as found by the High Court, does not appeal to us, much less on the factual background of the present case. There cannot be a deemed renunciation. However, we must hasten to add that we do not even for a moment say that the concerned Court has no power to deny the probate for good and valid reasons. However, in this case, we cannot subscribe to the opinion expressed by the High Court that there was a renunciation on the part of the appellant. In a proper case, the Court considering the probate application may, for good reasons, find it not possible to grant the probate to executor, but in this case that has not happened. Instead, the High Court wrote a finding that the executor had renounced himself and he is deemed to have renounced on account of the so-called hostile stand taken by him. We do not agree that there was any hostile stand. We do not further agree that there was any such renunciation or deemed renunciation. We further do not agree that there can be any concept of deemed renunciation.
19. Shri Pradip Kumar Ghosh, learned Senior Advocate and Shri Rauf Rahim, learned advocate urged that we must give a purposive interpretation to Section 230, so as to find that there can be a deemed renunciation in terms of that Section. We do not agree. The language of the Section is too clear to be tinkered with. There has to be a scrupulous adherence to the Section before an executor is refused the probate under Section 230. The Learned Advocates then tried to rely on a decision in Crystal Developers Vs. Asha Lata Ghosh (Smt.) (Dead) through L.Rs. & Ors. [2005 (9) SCC 375]. This case was entirely different on facts. It pertains to the subject of revocation of probate. The second decision in Krishna Kumar Birla Vs. Rajendra Singh Lodha & Ors. [2008 (4) SCC 300] is also of no consequence. It is basically regarding the subject of caveatable interest and mainly turns on the fact as to why the appellant could not be said to have a caveatable interest. It does not help the appellant in the present controversy in any manner. The third decision relied on by the learned Advocates was Anil Kak Vs. Kumari Sharada Raje & Ors. [2008 (7) SCC 695] to which one of us (Hon'ble Sirpurkar, J.) was a party. That was again the decision rejecting the two applications for grant of probate and letter of administration. We do not think that the controversy involved in the present appeal is even distantly touched by this case.
20. In the result, the appeal succeeds. The order of the appellate Court is set aside and the matter is remanded back to the appellate Court for decision on merits regarding the valid execution or attestation of the Will. The appeal succeeds with the costs of Rs.25,000/-.
Supreme Court of India
3. Jagjit Singh & Ors vs Pamela Manmohan Singh
CIVIL APPEAL NO.8031 OF 2001
10 March, 2010
1. Whether the appellants, who claim to have purchased the property described as 6-B, Jangpura, Mathura Road, New Delhi from Major K.V. Kohli (one of the two heirs of Mrs. Rasheel Kohli) are entitled to contest the application filed by the respondent - Mrs. Pamela Manmohan Singh (the other heir of Mrs. Rasheel Kohli) for grant of letter of administration is the question which arises for consideration in this appeal filed against order dated 22.1.2001 passed by the learned Single Judge of Delhi High Court in Civil Revision No.791 of 1994 whereby he set aside the order passed by Additional District Judge allowing an application filed by the appellants under Section 151 of the Code of Civil Procedure (CPC) for permission to file objections in Probate Case No.272 of 1993.
2. The property in question was leased out by the Government of India to Mrs. Rasheel Kohli sometime in 1957 for a period of 90 years. Mrs. Rasheel Kohli availed loans from Oriental Bank of Commerce and Grindlays Bank and mortgaged the suit property. Oriental Bank of Commerce filed Suit No.75 of 1979 in the High Court of Delhi against M/s. Zirconium, K.V. Kohli and Mrs. Rasheel Kohli for the recovery of their dues. Grindlays Bank also filed Suit No.259 of 1978 against K.V. Kohli and others for recovery of Rs.9,58,195/-. In the second suit, a statement was made by the counsel for the defendants that his clients will not alienate property No.198, Golf Links, New Delhi and plot No.6, Block - B, Jangpura, New Delhi or encumber the same till the next date. After taking note of the counsel's statement, the learned Single Judge directed the defendants in the suit not to alienate or encumber the property or realise or appropriate the rent.
3. In 1979, Mrs. Rasheel Kohli filed Suit No.180 of 1979 for eviction of Khairati Lal, who had been inducted as a tenant. During the pendency of the suit, Khairati Lal made a statement before the Court on 6.8.1984, the relevant portion of which is extracted below:
"A decree for possession of the plot in dispute be passed against me in favour of the plaintiff together with a decree for Rs.25,000/- as mesne profits upto 31st August, 1979. I may be allowed time to vacate the plot in dispute upto 31st October, 1986. I give an undertaking to the Court that I shall deliver vacant possession of the plot in dispute to the plaintiff on 1st November, 1986. I further give an undertaking that I will not alienate, transfer, in any manner, or part with its possession in favour of any one, nor shall create any charge till the vacant possession of the same is delivered by me to the plaintiff. I also agree to pay mesne profits at the rate of Rs.1250/- per month from 1st September, 1979 onwards."
4. However, instead of abiding by the undertaking given by him in the Court, Khairati Lal handed over possession of the suit property to the partners of M/s. Texla Service Center with whom Mrs. Rasheel Kohli is said to have entered into an agreement dated 30.8.1984 for sale of the suit property for a sum of Rs.11 lacs and received a sum of Rs.5 lacs in cash and Rs.6 lacs in the form of bank guarantee.
5. After taking possession from Khairati Lal, M/s. Texla Service Center filed Suit No.182 of 1986 for specific performance of the agreement for sale. In that suit, the High Court directed the parties to maintain status quo.
6. Mrs. Rasheel Kohli died on 11.10.1987. After about one month, Shri K.V. Kohli (son of the deceased) executed three registered sale deeds dated 6.12.1988 in favour of the appellants, though, at that time, warrant of attachment issued pursuant to order dated 2.11.1988 passed by the Bombay High Court in Suit No.2951 of 1987 was in force.
7. On 30.11.1987, K.V. Kohli filed application for grant of probate by claiming that his mother had executed Will dated 7.3.1986 in his favour. The same was registered as Suit No.379 of 1987. The respondent also filed an application dated 6.3.1989 for grant of letter of administration by claiming that her mother had executed Will dated 7.3.1987 in her favour. The application of the respondent was registered as P.C. No.106 of 1989. Later on, the same was re-numbered as P.C. No.272 of 1993. The appellants filed an application under Section 151 CPC for permission to file objections to the grant of letter of administration in favour of the respondent. By an order dated 26.3.1994, learned Additional District Judge allowed the application. The relevant portions of that order are extracted below:
"In the present case, deceased Smt. Raseel Kohli was the owner of the property. She died leaving a son K.V. Kohli and a daughter Pamela Manmohan Singh. Shri K.V. Kohli is alleged to have acquired right in the property by virtue of will of his mother dated 7.3.1986 and had sold one of the properties to the present applicants by means of a registered Sale-deeds dated 6.12.1988. Whereas the petitioner in the present case claims that her mother had executed another will dated 23.9.1987, which is a later will in her favour. The applicants who are the purchasers from the vendor legatee of the first will, would be affected if the later will is upheld, and as such they have locus standi to safeguard their interests.
It was then contended that the sale was made after the injunction order was granted. A perusal of the file shows that the present petition though purports to have been drafted on 30.9.1989 the respondent was restrained from transferring the property till further orders, then proceedings on 23.3.89. However, the present property has been transferred before 23.3.1989 and this circumstance will not affect the rights of the applicants.
As regards delay, no doubt it appears that some other litigation is pending between the parties, and the applicants had knowledge of the present proceedings as appears from the written statement dated November, 1990, filed by them in suit No.695 of 1990, pending in Delhi High Court, and it has been contended that the application is belated and mala fide. However, as held above, the applicants have locus standi to file caveat and to oppose the present proceedings and as such they will also be entitled to move later on for setting aside if the present petition for grant of probate is allowed as that will affect their rights if the decision is taken in their absence. That would unnecessarily involve the parties in fresh litigation. It is also seen that original objector Shri K.V. Kohli has since died and the proceedings against his LRs are ex-parte. However, an application for setting aside is pending. Otherwise, also the case is at initial stages and even issues have yet not been framed. The petitioner can be compensated by costs in delay."
8. The respondent challenged the aforementioned order in Civil Revision No.791 of 1994, which was allowed by the learned Single Judge on the following grounds:
(i) Probate case filed by K.V. Kohli was dismissed on 13.5.1992 in default and, therefore, there was no question of any Will being propounded by him.
(ii) The appellants had committed fraud in obtaining possession from Khairati Lal contrary to the undertaking given by him on 6.8.1984 and they effectively prevented Mrs. Rasheel Kohli from taking possession of the property.
(iii) K.V. Kohli executed the sale deed when there was an order of injunction restraining him from alienating the property in question and the whole case of the applicants is based on the possession of the property through fraud committed by them.
(iv) When the applicants' rights are under investigation, they cannot claim to have any caveatable interest in the estate of Mrs. Rasheel Kohli.
9. We have heard learned counsel for the parties. It is not in dispute that the parties are governed by the provisions of the Indian Succession Act, 1925 (for short, `the Act'). Section 283 of the Act reads as under:
"283. Powers of District Judge.- (1) In all cases the District Judge or District Delegate may, if he thinks proper,-
(a) examine the petitioner in person, upon oath;
(b) require further evidence of the due execution of the Will or the right of the petitioner to the letters of administration, as the case may be;
(c) issue citations calling upon all persons claiming to have any interest in the estate of the deceased to come and see the proceedings before the grant of probate or letters of administration.
(2) The citation shall be fixed up in some conspicuous part of the court-house, and also the office of the Collector of the district and otherwise published or made known in such manner as the Judge or District Delegate issuing the same may direct.
(3) Where any portion of the assets has been stated by the petitioner to be situate within the jurisdiction of a District Judge in another State, the District Judge issuing the same shall cause a copy of the citation to be sent to such other District Judge, who shall publish the same in the same manner as if it were a citation issued by himself, and shall certify such publication to the District Judge who issued the citation."
The term "caveatable interest" has not been defined in the Act, but the same has been used and interpreted in some of the judicial decisions. In Nobeen Chunder Sil and others v. Bhobosoonduri Dabee (1881) ILR 6 Cal 460, a two-Judge Bench of Calcutta High Court considered whether the persons who had obtained money-decree and got attached share of one of the heirs of the deceased and mortgagees of the immovable property left by the testator were entitled to oppose the grant of probate on the basis of Will executed by the owner in favour of his wife purporting to grant his entire property for her life and after her death to his sons. The respondent applied for grant of probate of the Will of Nobo Coomar Ganguli, who had died on 21.10.1877 leaving behind his widow and two sons.
The appellant Nobeen Chunder Sil, who had obtained money-decree against one of the sons and Brojo Mohun Ghose and Obhoy Churn Sen in whose favour mortgage was executed by two sons filed caveat against the grant of probate. The District Judge refused to allow them to take part in the proceedings or oppose the grant. The appeal preferred against the order of the District Judge was allowed by the High Court of Calcutta. White, J., who was member of two-Judge Bench referred to the judgments of Baijnath Shahai v. Desputty Singh ILR 2 Cal 208 and Komollochun Dutt v. Nilruttun Mundle ILR 4 Cal 360 and observed:
"It cannot be disputed that the appellants have a direct interest in disputing the will. They alleged that the will is a forgery, and has been concocted for the purpose of overriding their mortgage and attachment. The authorities show that, so long as the probate remains unrevoked, the attaching creditor could not bring the attached property to sale, nor could the mortgagees by any suit get the benefit of their mortgage. Their proceedings in each case would be defeated by the production of the probate, for they could not raise the issue that the will was forged. "A probate unrevoked," says Mr. Justice Williams in Vol. I Williams on Executors, 7th edition, p. 549, "is conclusive both in the Courts of law and equity, not only as to the appointment of executors, but as to the validity and contents of the will, so far as it extends to personal property." As a probate in India extends to immoveable property, the doctrine applies in this country to all the property left by the deceased. The only grounds on which the appellants could impeach the probate in a Civil Court would be those stated in the 44th section of the Indian Evidence Act, namely,-that the probate was granted by a Court not competent to grant it, or that it was obtained by fraud or collusion, which means fraud or collusion upon the Court, and perhaps also fraud upon the person disinherited by the will - Barnesly v. Powel; but they could not show that the will was never executed by the testator or was procured by a fraud practised upon him. It is obvious, therefore, that, unless the appellants have a locus standi in the Probate Court, they are without remedy, supposing their case against the will to be true.
Markby and Prinsep, JJ. in Komollochun Dutt v. Nilruttun Mundle have virtually decided the question before us, so far as the mortgagee-appellants are concerned. The plaintiff there had purchased from a widow an estate which she was supposed to have inherited from her husband. Afterwards the brother of the husband obtained and produced at the trial probate of a will of the husband, by which he bequeathed the whole property to his brother. The plaintiff sued to recover the property from the possession of the brother, alleging that the will was a forgery. This Court reversed a remand order of the District Judge, which directed the first Court to try the question of the genuineness of the will, and directed that the trial should be postponed in order that the plaintiff might apply to the Probate Court of the District Judge to revoke the grant of probate.
Markby, J. apparently based his decision upon the language of Section 242 of the Indian Succession Act. But that section, whilst stating that the probate shall be conclusive as to the representative title, is silent as to its effect with respect to the validity and contents of the will. Its conclusive effect in the latter respects is really the legal consequence of the exclusive jurisdiction of the Court of Probate, as stated by Mr. Justice Williams in Vol. I, Williams on Executors, p. 549. In the mofussil the District Judges are the sole Courts of Probate, and it would be obviously inconsistent with the exclusive jurisdiction conferred upon them, that probates until revoked should not be conclusive as to the due execution of the will to which the grants relate.
The mortgagee-appellants in the present case stand substantially in the same position as the plaintiff in Komollochun Dutt v. Nilruttun Mundle; they are purchasers pro tanto and assigns of the immoveable estate of the deceased, although only for the limited purpose of securing money which they have advanced to the testator's heirs. If, according to the authority just cited, they might apply to revoke the probate that has issued, it follows that they may also enter a caveat and oppose the grant.
The case of an attaching creditor of the next-of-kin was not before the Court in Komollochun Dutt v. Nilruttun Mundle, but Markby, J., intimated an opinion that an attaching creditor was also entitled to apply to revoke probate. This point has been, recently decided in favour of the attaching creditor in Umanath Mookhopadhya v. Nilmoney Singh.
I am of opinion, therefore, that the appellants claim respectively such interests in the estate of the deceased as entitle them, upon proof of their interests, to file a caveat and oppose the grant of probate of the will of Nobo Coomar Ganguli, deceased."
Field, J., who was the other member of the Bench referred to the law prevailing in England, the provisions of the Indian Succession Act, 1865 and observed:
".........I am, therefore, of opinion that, whether the persons interested came in the first instance to oppose the grant of probate, or subsequently to have a grant revoked or annulled, they must come to the Court of the District Judge; and as this Court has thus an exclusive jurisdiction, it must be careful not to deny all remedy to persons interested by refusing to allow them to be made parties to its proceedings. As to the text of what constitutes a sufficient interest to entitle any particular person to be made a party, according to the view which I have already stated, I think it comes to this, that any person has a sufficient interest who can show that he is entitled to maintain a suit in respect of the property over which the probate would have affect under the provisions of Section 242 of the Indian Succession Act."
10. In G. Jayakumar v. R. Ramaratanam A.I.R. 1972 Madras 212, the learned Single Judge referred to some earlier judgments including the judgment in Nobeen Chunder Sil and others v. Bhobosoonduri Dabee (supra) and observed:
"I shall therefore examine the language of the relevant sections of the Indian Succession Act in order to ascertain the competency of both or either of the caveators in these proceedings.
Section 283(1) of the Indian Succession Act provides as follows:-
"In all cases the District Judge or District Delegate may, if he thinks proper,......
(a) examine the petitioner in person, upon oath;
(b) require further evidence of the due execution of the will or the right of the petitioner to the letters of administration, as the case may be;
(c) issue citations calling upon all persons, claiming to have any interest in the estate of the deceased to come and see the proceedings before the grant of probate or letters of administration"
It follows from clause (c) of Section 283(1) that "all persons claiming to have any interest in the estate of the deceased" may be issued citations. "Any interest in the estate of the deceased" does not mean such interest in the estate as is claimed through the deceased or as heir of the deceased. The intention of the legislature as gatherable from the expression is that any interest in the estate in respect of which the deceased is alleged to have executed a testament would entitle the holder of that interest to attend and oppose the probate proceedings.
In my view, the words "of the deceased" have been used only to identify and describe the estate in respect of which the caveator claims interest and is not intended to limit the caveator's interest to or equate it with the interest which the deceased held in the estate. The provision of Section 283 is intended to give the widest possible publicity to the probate proceedings and to give an opportunity to any person having the slightest and even the bare possibility of an interest in the proceedings to challenge the genuineness of the will and place before the court all the relevant circumstances before a grant in rem is made in favour of the person claiming probate. If this is the proper interpretation to be placed upon Section 283(1)(c) of the Indian Succession Act, I have little doubt that both the caveators in this case are entitled to intervene in these proceedings and challenge the proponent of the will to give it in solemn form.
It is true that in that suit Ramaratnam claims the property of Ratnavelu Mudaliar in derogation of the settlement deed executed in favour of Amaravathi Ammal. In other words, he claims title paramount to Amaravathi Ammal and contends that the testament executed by Amaravathi Ammal in respect of the properties settled upon her by her husband cannot affect him. If the more liberal interpretation which I have put upon Section 283(1)(c) is correct, inasmuch as Ramaratnam claims an interest in the estate in respect of which Amaravathi Ammal is alleged to have executed the testament, he would be a person entitled to a citation.
Learned counsel for the petitioner, however, relied upon a Division Bench ruling of Ramesam and Cornish, JJ., reported in Komalngiammal v. Sowbhagiammal, ILR 54 Mad 24 = (AIR 1931 Mad 37) in support of the proposition that the interest which entitles a person to lodge a caveat in an application for the probate of a Will must be an interest in the estate of the deceased, that is to say, there must be no dispute as to the title of the deceased to the estate. It is true that this ruling would entail the dismissal of Ramaratnam's caveat because he claims title paramount and is not possessed of any interest in the estate of the deceased entitling him to oppose the grant of probate. But with great respect, I must say I am unable to follow this ruling, because it is in direct conflict with an earlier Division Bench ruling of this court reported in Hanmantha Rao v. Latchamma, ILR 49 Mad 960 = (AIR 1926 Mad 1193). There, Devadoss and Waller, JJ. construed the meaning of Section 69 of the Probate and Administration Act which ran as follows: "In all cases it shall be lawful for the District Judge, if he thinks fit, to issue citations calling upon all persons claiming to have any interest in the estate of the deceased to come and see the proceedings before the grant of probate or letters of administration." It may be noticed that Section 69 of the Probate and Administration Act, is identical with Section 283(1)(c) of the Indian Succession Act. Their Lordships, while construing Section 69 of the Act, observed as follows:
"The words of Section 69 are `claiming to have any interest in the estate of the deceased'. There is nothing in the wording of the section to show that the caveator should claim interest through the testator. All that is necessary to entitle a person to enter caveat is to claim interest in the estate of the deceased. The words "interest in the estate" do not necessarily convey the idea that the interest should be claimed through the testator. If that was the intention of the Legislature, the clause could have been differently worded so as to make the meaning clear."
In support of this view, their Lordships quoted the observations of Field J., in the matter of the petition of Bhobosoonduri Dabee, ILR (1881) 6 Cal 460 to the following effect :-
"As to the test of what constitutes a sufficient interest to entitle any particular person to be made a party, according to the view which I have already stated, I think it comes to this that any person has a sufficient interest who can show that he is entitled to maintain a suit in respect of the property over which the probate would have effect under the provisions of Section 242 of the Indian Succession Act."
11. In Krishna Kumar Birla v. Rajendra Singh Lodha and others (2008) 4 SCC 300, a two-Judge Bench of this Court categorized caveatable interest, referred to the dictionary meanings of the words `caveat' and `interest' and large number of precedents including Elizabeth Antony v. Michel Charles John Chown Lengera (1990) 3 SCC 333, Kanwarjit Singh Dhillon v. Hardyal Singh Dhillon (2007) 11 SCC 357, Basanti Devi v. Ravi Prakash Ram Prasad Jaiswal (2008) 1 SCC 267 and held that the probate court exercises a limited jurisdiction and is not concerned with the question of title. If the probate is granted, an application for revocation can be filed. The Court then noticed the judgments of Calcutta and Madras High Courts to which reference has been made hereinabove and observed:
"77. To the same effect is a decision of the Calcutta High Court in Nabin Chandra Guha v. Nibaran Chandra Biswas. As would appear from the discussions made hereinafter, the said view, to our mind, is not entirely correct. A caveatable interest was claimed therein on the basis of acquisition of a subsequent interest from the daughter of the testator. The District Judge held that he did not have a caveatable interest. The Calcutta High Court, interpreting Section 283(1)(c) of the 1925 Act, held:
"... And `possibility of an interest' does not apply to possibility of a party filling a character which would give him an interest but to the possibility of his having an interest in the result of setting aside the will."
As the caveator acquired an interest from the daughter, he was said to have a caveatable interest."
The two-Judge Bench then referred to some judgments relating to caveatable interest of the reversioners and held:
"84. Section 283 of the 1925 Act confers a discretion upon the court to invite some persons to watch the proceedings. Who are they? They must have an interest in the estate of the deceased. Those who pray for joining the proceeding cannot do so despite saying that they had no interest in the estate of the deceased. They must be persons who have an interest in the estate left by the deceased. An interest may be a wide one but such an interest must not be one which would not (sic) have the effect of destroying the estate of the testator itself. Filing of a suit is contemplated inter alia in a case where a question relating to the succession of an estate arises.
85. We may, by way of example notice that a testator might have entered into an agreement of sale entitling the vendee to file a suit for specific performance of contract. On the basis thereof, however, a caveatable interest is not created, as such an agreement would be binding both on the executor, if the probate is granted, and on the heirs and legal representatives of the deceased, if the same is refused.
86. The propositions of law which in our considered view may be applied in a case of this nature are:
(i) To sustain a caveat, a caveatable interest must be shown.
(ii) The test required to be applied is: Does the claim of grant of probate prejudice his right because it defeats some other line of succession in terms whereof the caveator asserted his right?
(iii) It is a fundamental nature of a probate proceeding that whatever would be the interest of the testator, the same must be accepted and the rules laid down therein must be followed. The logical corollary whereof would be that any person questioning the existence of title in respect of the estate or capacity of the testator to dispose of the property by will on ground outside the law of succession would be a stranger to the probate proceeding inasmuch as none of such rights can effectively be adjudicated therein."
However, the propositions culled out in paragraph 86 were substantially diluted by making the following observations in paragraph 103:
"What would be the caveatable interest would, thus, depend upon the fact situation obtaining in each case. No hard-and- fast rule, as such, can be laid down. We have merely made attempts to lay down certain broad legal principles."
The Bench then discussed the judgments of Calcutta High Court and observed:
"92. In the context of the laws governing inheritance and succession, as they then stood, the widest possible meaning to the term "interest" might have been given in a series of decisions which the learned counsel for the appellants rely upon ranging from Nobeen Chunder Sil to Radharaman Chowdhuri v. Gopal Chandra Chakravarty so as to hold that a caveat would be maintainable even at the instance of a person who had been able to establish "some sort of relationship" and howsoever distant he may be from the deceased which per se cannot have any application after coming into force of the Hindu Succession Act. Ordinarily, therefore, a caveatable interest would mean an interest in the estate of the deceased to which the caveator would otherwise be entitled to, subject of course, to having a special interest therein.
106. The decisions which were rendered prior to coming into force of the Hindu Succession Act, thus, may not be of much relevance. Now, if on the interpretation of law, as it then stood, a reversioner or a distant relative who could have succeeded to the interest of the testator was entitled to file a caveat, they would not be now, as the law of inheritance and succession is governed by a parliamentary Act.
109. It is in that backdrop the question which is required to be posed is: Did the Calcutta High Court or the other High Court opine that even a busybody or an interloper having no legitimate concern in the outcome of the probate proceedings would be entitled to lodge a caveat and oppose the probate? The answer thereto, in our opinion, must be rendered in the negative. If anybody and everybody including a busybody or an interloper is found to be entitled to enter a caveat and oppose grant of a probate, then Sections 283(1)(c) and 284 of the 1925 Act would have been differently worded. Such an interpretation would lead to an anomalous situation. It is, therefore, not possible for us to accede to the submission of the learned counsel that caveatable interest should be construed very widely.
110. A caveatable interest is not synonymous with the word "contention". A "contention" can be raised only by a person who has a caveatable interest. The dictionary meaning of "contention", therefore, in the aforementioned context cannot have any application in a proceeding under the 1925 Act."
12. A little later another two-Judge Bench expressed an apparently contrary view in G. Gopal v. C. Baskar and others (2008) 10 SCC 489.
This is evinced from paragraph 5 of the judgment, which is reproduced below:
"The only question that was agitated before us by Mr Thiagarajan, learned counsel appearing for the appellant challenging the judgment of the High Court revoking the probate granted in respect of the will executed by the testator, was that the respondents having no caveatable interest in the estate of the deceased, the application for revocation filed by them could not be allowed. We are unable to accept these submissions made by Mr Thiagarajan, learned counsel appearing on behalf of the appellant only for the simple reason that admittedly the respondents were grandchildren of the testator and they have claimed the estate of the deceased on the basis of a settlement deed executed by the testator himself which admittedly was revoked by the testator. That being the position, we must hold that the respondents had caveatable interest in the estate of the testator and, therefore, they are entitled to be served before the final order is passed. It is well settled that if a person who has even a slight interest in the estate of the testator is entitled to file caveat and contest the grant of probate of the will of the testator.
13. It is thus evident that apparently conflicting views have been expressed by coordinate Benches of this Court on the interpretation of the expression "caveatable interest". In Krishna Kumar Birla's case, the Bench did not approve the judgments of Calcutta High Court in Bhobosoonduri Dabee's case and Madras High Court in G. Jayakumar's case wherein it was held that any person having some interest in the estate of the deceased can come forward and oppose the grant of probate. As against this, in G. Gopal's case, the dictum that a person who is having a slight interest in the estate of the testator is entitled to file caveat and contest the grant of probate has been reiterated. This being the position, we feel that the issue deserves to be considered and decided by a larger Bench.
14. The Registry is directed to place the matter before Hon'ble the Chief Justice for appropriate order.
Supreme Court of India
4. Maddineni Koteswara Rao vs Maddineni Bhaskara Rao & Anr on 5 May, 2009
4. Maddineni Koteswara Rao vs Maddineni Bhaskara Rao & Anr on 5 May, 2009
CIVIL APPEAL NO.3233 OF 2009
1. Leave granted.
2. This appeal by special leave is directed against the judgment and order dated 26th of October, 2006 of the High Court of Andhra Pradesh at Hyderabad, wherein the High Court had dismissed the Civil Revision Case being CRP No. 986 of 2006 filed before it by the appellant.
3. The relevant facts leading to the present appeal are as follows:
One M. Veera Raghavaiah, the father of the appellant (since deceased) and the respondents, had three sons and a daughter. M. Veera Raghavaiah, the deceased father of the appellant, was acting as a manager and karta of the joint family till 1966. Thereafter, he fell sick and became incapable of managing the joint family property and joint family debts. The appellant herein came forward and agreed to take up the responsibility. Accordingly, all the parties agreed to execute a power of attorney in favour of the appellant. But, the appellant insisted on executing a separate deed instead of a power of attorney saying that a power of attorney may not be effective and it can be terminated at any point of time. The respondents herein and the deceased father out of confidence signed on the said deed which was registered on 17th of May, 1966, without knowing its contents. However, they later came to know that the said deed was styled as a partition deed between the parties. On 21st of April, 1978, M. Bhaskara Rao, one of the sons of the deceased father and the respondent no.1 herein (hereinafter referred to as the respondent), filed a suit for partition of the plaint scheduled property claiming 1/4th share in the same and also for a declaration that the alleged deed of partition dated 17th of May, 1966 was sham, void and inoperative and for other incidental reliefs in the Court of Principal Subordinate Judge, Vijayawada. The suit was decreed by the Principal Subordinate Judge, Vijayawada and a preliminary decree dated 1st of October, 1986, was passed whereby all the parties including the deceased father of the parties were found to be entitled to 1/4th share each in respect of the plaint scheduled property. It was further declared by the trial court that the partition deed dated 17th of May, 1966 was inoperative, ineffective,void and a sham transaction.
4. When the aforesaid suit was pending, M. Veera Raghavaiah (since deceased) being the father of the parties, executed a registered Will on 21st of March, 1984 bequeathing his 1/4th share in respect of the plaint scheduled property in favour of the respondent and also a sum of Rs.10,000/- was allotted to his daughter/ respondent No.2 herein. M. Veera Raghavaiah died on 17th of January, 1985. While the suit was pending, more precisely on 25th of February, 1985, the respondent filed a Photostat copy of the Will in the trial court praying that the probate of the will bequeathing his 1/4th share in respect of the plaint scheduled property to the respondent and Rs. 10,000/- to his daughter be granted. When the Photostat copy of the Will was filed by the respondent for grant of probate, it was made clear by all the parties that the parties on record were sufficient and there was no need of impleading any other legal representatives. An endorsement to this effect was also made by the counsel for the appellant stating that "no L.Rs. need be added". In view of such stand taken by the parties before the trial Court and no objection having been raised up to this Court, we refrain from going into the question whether probate can be granted to the Will in question in the absence of any other heirs and legal representatives of the deceased, if there be any.
5. On 4th of November, 1986, the appellant went in appeal before the High Court of Andhra Pradesh at Hyderabad against the preliminary decree declaring 1/4th share each to the parties including the share in favour of the deceased father of the appellant before the High Court which came to be registered as A.S.No. 2879 of 1986 which was also dismissed by a learned Judge of the High Court that had confirmed the judgment and decree of the trial court. Feeling aggrieved, the appellant also filed a Letters Patent Appeal which came to be registered as LPA No.154 of 1997 before the Division Bench of the High Court. It would be evident from the record that while the LPA was pending, the respondent on 11th of February, 1988 filed an application for drawing up the final decree in respect of the plaint scheduled property in which he applied for appointment of a Commissioner to divide the plaint scheduled property into four equal shares and to allot two shares to the respondent as his father M.Veera Raghavaiah had executed a registered Will dated 21st of March, 1984. The appellant resisted the said application on numerous grounds.
6. After the LPA was dismissed by the Division Bench of the High Court, the trial court before whom the application for drawing up the final decree was pending, allowed the same filed by the respondent and passed a final decree allotting two shares in respect of the plaint scheduled property to the respondent after considering the Will executed by the deceased father of the parties. It may be kept on record that the trial court went into the question of the genuineness of the Will executed by the deceased father of the parties and after considering the evidence on record including examining the scribe and attester of the Will found the Will to be genuine and granted probate of the Will. The trial court also recorded the findings to the effect that the Will was duly proved as required in law.
7. On 18th of February, 2006, the appellant approached the High Court by filing a Civil Revision Case being CRP No. 986 of 2006 contending that the Trial Court erred in allotting two shares to the respondent relying on the Will of the deceased father of the parties which amounted to alteration of the preliminary decree passed by the trial court.
The High Court declined to accept this contention of the appellant. The High Court further observed that in a suit for partition more than one preliminary decree can be passed. The High Court also observed that a suit for partition stands disposed of, only with the passing of the final decree. It is competent for the court to examine the validity of the transfers, testate or intestate successions in the final decree proceedings, of which examination had not been done before the passing of the preliminary decree, to take into consideration the changes occurring on account of death of a party or transfer made by him. Therefore, the High Court and the trial court were justified in taking into account the Will of the deceased father while passing the final decree in the partition suit.
The High Court placed reliance on a decision of this Court in Phoolchand v Gopal Lal (AIR 1967 SC 1470). The High Court further held that alteration of the preliminary decree would occur only if the extent of shares allotted to each parties or the items identified for partition, were altered. No such alteration had taken place in the present case. A mere adjustment of the shares of the parties does not bring about any alteration in the preliminary decree. Accordingly, the High Court had refused to interfere with the order of the trial court in revision.
8. Feeling aggrieved, the appellant filed a special leave petition, which on grant of leave, was heard in the presence of the learned counsel for the parties.
9. The only question that needs to be decided in this appeal is whether the High Court as well as the trial court were justified in allotting two shares in favour of the respondent on the basis of the Will executed by the deceased father of the parties and whether the genuineness of the Will could be decided by the Court in a suit for partition or not or by a separate suit.
10. It is well settled that a suit for partition stands disposed of only with the passing of the final decree. It is equally settled that in a partition suit, the court has the jurisdiction to amend the shares suitably, even if the preliminary decree has been passed, if some member of the family to whom an allotment was made in the preliminary decree dies thereafter. The share of the deceased would devolve upon other parties to a suit or even a third party, depending upon the nature of the succession or transfer, as the case may be. The validity of such succession, whether testate or intestate, or transfer, can certainly be considered at the stage of final decree proceedings. An inference to this effect can suitably be drawn from the decision of this Court in the case of Phoolchand v Gopal Lal (AIR 1967 SC 1470). In that decision, it was observed as follows:
"There is nothing in the Code of Civil Procedure which prohibits the passing of more than one preliminary decree if the circumstances justify the same and that it may be necessary to do so particularly in partition suits when after the preliminary decree some parties die and shares of other parties are thereby augmented... it would in our opinion be convenient to the court and advantageous to the parties, specially in partition suits, to have disputed rights finally settled and specifications of shares in the preliminary decree varied before a final decree is prepared. If this is done there is a clear determination of the rights of the parties to the suit on the question in dispute and we see no difficulty on holding that in such cases there is a decree deciding these disputed rights, if so, there is no reason why a second preliminary decree correcting the shares in a partition suit cannot be passed by the court."
11. Therefore, relying on the decision of this Court and following the principles as aforesaid, both the courts below granted two shares to the respondent in respect of which we do not find any reason to differ. The courts below were also justified to hold that the two shares granted at the final stage could be treated as two preliminary decrees which are permissible in law. However, the learned counsel for the appellant pointed out that in Phoolchand's Case (supra), the death of two parties had taken place after the preliminary decree was passed. A new circumstance had emerged after the passing of the preliminary decree, that is why the court had passed a second preliminary decree modifying the shares of the other parties, accordingly, based on the Will executed by the deceased. But, in the present case their father had executed the Will and died before the passing of the preliminary decree. Therefore, no new circumstance has arisen after the passing of the preliminary decree. Accordingly, the appellant contended that the High Court as well as the trial court were not justified in taking into consideration the question regarding the genuineness of the Will of the deceased father of the parties and allot two shares to respondent in the final decree.
12. So far as the first question, as noted herein earlier, is concerned, we are of the view that such a contention of the learned counsel for the appellant was of no substance. According to the learned counsel for the appellant, as noted herein earlier, the genuineness of the Will of the deceased father of the parties not having been proved in a separate suit, the High Court as well as the trial Court had specifically considered this point before passing the final decree. As noted herein earlier, in Phoolchand vs. Gopal Lal (supra), this question has been squarely answered. In the said decision, the appellant also filed a suit for partition of the joint property in which a preliminary decree was passed before passing a final decree. The father and the mother of the appellant died and the brother of the appellant claimed that he was entitled to the share of the father as the same was declared by way of a Will executed by the father and the appellant claimed his right in the share of the mother as the same was sold to him by the mother. This question relates to the preliminary shares of the parties which were redistributed, however, the trial court did not prepare another formal preliminary decree on the basis of this re-distribution of shares.
The appeal was taken to the High Court by the brother of the appellant against distribution which finally came to this Court and this Court held that Will executed by the father in favour of the brother of the appellant was genuine and, therefore, the appellant was not entitled to take advantage of the share of the mother and the same must be distributed equally. In view of the aforesaid decision of this Court, it is clear that in a suit for partition, a party who is claiming share in the plaint scheduled property, is entitled to plead for grant of probate of the Will executed by the deceased father of the parties and for which no separate suit needed to be filed.
13. While re-allotting the shares of the parties, the trial court had framed the issues on the genuineness of the Will of the deceased father of the appellant and decided that the Will was genuine after considering the evidence on record including examining the evidence of the scribe and attestor in respect of the Will in question. This finding of fact regarding the genuineness of the Will of the father affirmed by the High Court was also not agitated before us in this appeal. That being the position, and considering the concurrent findings of fact it was also not open for us to interfere with the same if it is found not to be perverse or arbitrary. In view of our discussions made hereinabove and applying the principles laid down in the aforesaid decision of this Court, namely, Phoolchand vs. Gopal Lal (supra), we do not find any substance in the arguments of the learned counsel for the appellant.
14. A further contention was advanced by the learned counsel for the appellant that if certain entitlement of share even on the basis of the Will was available to the parties at the stage of preliminary decree, but such entitlement was given a go-by by one of the parties, the parties who have already given a go-by of such entitlement cannot have any adjudication at the final decree stage. In support of this contention, the learned counsel appearing on behalf of the appellant had drawn our attention to Section 97 of the CPC and also on a decision of this Court in the case of Venkata Reddy & Ors. vs. Pethi Reddy [AIR 1963 SC 992]. In our view, so far as the decision of this Court in Venkata Reddy's case is concerned, there is no applicability of the principles laid down in that decision in the present case. In that decision, the sale made by the Official Receiver during the insolvency of the father of the appellant was the subject matter of a final decision by a competent court inasmuch as the court had decided that the sale was of no avail to the purchaser as the Official Receiver had no power to that sale. Nothing more was required to be established by the appellants before being entitled to the protection of the first proviso to Section 28-A of the Provincial Insolvency Act. As noted herein earlier, we are unable to find any applicability of this decision in the facts of this case. It is true that a Will was executed by the deceased father when the suit was pending for passing a preliminary decree in respect of the plaint scheduled property of the parties and also for declaration that the alleged partition deed executed was sham, void and inoperative in law. Until and unless the partition deed is declared in operative, it is not open to one who claimed more shares on the basis of a Will in respect of the plaint scheduled property. In our view, it was also not open to the respondent to lead any evidence to prove the Will before passing the preliminary decree, since the suit itself was for a declaration that the partition deed was void, inoperative and a sham transaction and that being the factual position, there was no point in proving the Will before the said declaration was granted by the court.
If ultimately, the court comes to the conclusion that there was a partition as evidenced by the partition deed dated 17th of May, 1986, the evidence in respect of the Will would totally become irrelevant. It was only under those circumstances, the proof of the Will was withheld. That being the position, this decision is distinguishable on facts and also on law. So far as Section 97 of the CPC is concerned again, we do not find that the said provision is at all applicable to the present case. To understand the problem, it would be appropriate for us to produce Section 97 of the CPC which runs as under :-
"Appeal from final decree where no appeal from preliminary decree- Where any party aggrieved by a preliminary decree passed after the commencement of this Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree."
15. A plain reading of this provision would make it clear that a party aggrieved by a preliminary decree passed after the commencement of the CPC does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree. This is not the position in this case. Here admittedly, a preliminary decree was passed declaring the share of the parties including the share in favour of the deceased father of the parties. That preliminary decree is final, but on the death of the father of the parties, the shares allotted to the deceased father of the parties would fall either to the parties in equal shares or if by Will or by any form of transfer, such share has been given to one of the parties. Therefore, in that situation, the respondents could not have filed any appeal against the preliminary decree because (1) at this stage, the father was very much alive and only on the death of the father, the question of getting one more share that is the share of the father would come into play and (2) the declaration made in the preliminary decree by the Court was also accepted by the parties at that stage. Therefore, Section 97 of the CPC could not be an aid to the appellant and therefore, the submission of the learned counsel for the appellant in this Court cannot be accepted and therefore it is rejected.
16. Before parting with this judgment, we may refer to a decision of this Court in the case of Kaushalya Devi & Ors. vs. Baijnath Sayal (deceased) & Ors. [AIR 1961 SC 790] on which reliance was also placed by the learned counsel for the appellant. The learned counsel for the appellant also had drawn our attention to paragraph 9 of the said decision. At this stage, it would be appropriate if we reproduce Para 9 on which strong reliance was placed by the learned counsel for the appellant. Para 9 of the said decision runs as under :-
"If the preliminary decree passed in the present proceedings without complying with the provisions of Order 32 Rule 7(1) is not a nullity but is only voidable at the instance of the appellants, the question is ;can they seek to avoid it by preferring an appeal against the final decree ? It is in dealing with this point that the bar of Section 97 of the Code is urged against the appellants. Section 97 which has been added in the Code of Civil Procedure, 1908 for the first time provides that where any party aggrieved by a preliminary decree passed after the commencement of the Code does not appeal from such decree he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree."
17. We have already explained in this judgment that Section 97 of the CPC is not applicable to the facts and circumstances of the present case and, therefore, we do not find any applicability of Paragraph 9 of the decision thereof in this decision of this Court in the facts and circumstances of the present case.
18. No other point was raised by the learned counsel for the parties before us. Accordingly we do not find any merit in this appeal. The appeal is thus dismissed. There will be no order as to costs.
Supreme Court
5. Kanwarjit Singh Dhillon vs Hardyal Singh Dhillon And Ors on 12 October, 2007
5. Kanwarjit Singh Dhillon vs Hardyal Singh Dhillon And Ors on 12 October, 2007
Bench: Tarun Chatterjee, Dalveer Bhandari
CASE NO.:
Appeal (civil) 4890 of 2007
1. Delay condoned.
2. Leave granted.
3. This appeal is directed against the judgment and final order dated 22nd of March, 2004 passed by the High Court of Punjab and Haryana at Chandigarh in Civil Revision No.3861 of 2002 whereby an order dated 18th of January, 2000 of the learned Civil Judge, Jallandhar, dismissing a suit for declaration and permanent injunction of the appellant, was affirmed.
4. Originally, the suit properties stood in the name of Ishar Singh (paternal grandfather of the appellant) which was subsequently mutated in the name of his two sons, S.Hazara Singh and S.Kirpal Singh. Late S.Kirpal Singh was the father of the appellant. Late S.Kirpal Singh died leaving behind some properties, both movable and immovable comprising agricultural land measuring 48 Kanal 10 Marlas situated at Jallandhar, a residential house bearing No.148, Sector 27A, Chandigarh and two deposits of Rs.20,000/- and Rs.10,000/- respectively [hereinafter referred to as "the suit properties"]. According to the appellant, the suit properties left behind by late S.Kirpal Singh were their ancestral properties. After eight years of the death of late S.Kirpal Singh, the respondent No.1 propounded an unregistered Will left behind by late S.Kirpal Singh and applied for probate thereof in the High Court of Punjab and Haryana. As per the said Will executed by late S.Kirpal Singh, the suit properties, both movable and immovable, were bequeathed by late S.Kirpal Singh in favour of respondent No.1 herein. Only a right of residence was given in favour of the widow of late S.Kirpal Singh and his unmarried daughter. In the aforesaid probate proceeding, objections were, however, filed by the appellant alleging that the said Will was a forged and fabricated one.
However, the probate was granted to the respondent No.1 by the High Court and thereafter, the matter came up before this Court which also affirmed the order of the High Court granting probate in respect of the Will executed by late S.Kirpal Singh. Subsequent to the grant of probate of the Will of late S.Kirpal Singh in respect of the suit properties more precisely on 9th of March, 1995, the appellant instituted a civil suit for declaration and injunction wherein the appellant sought a declaration to the effect that the suit properties were joint Hindu family properties.
5. In the suit filed at the instance of the appellant, the respondent No.1 raised a preliminary issue by filing an application saying that after the probate having been granted of the Will executed by late S.Kirpal Singh, the Civil Court had no jurisdiction to proceed with the suit for declaration of title and permanent injunction and accordingly the suit should be dismissed. The preliminary issue framed by the Civil Court is to the following effect:
"Whether this Court has jurisdiction in view of the probate granted by the Hon'ble Punjab & Haryana High Court vide order dated April 5, 1991, confirmed by the Divisional Bench of Punjab & Haryana High Court on 1st December, 1993 and confirmed by the Hon'ble Supreme Court of India on 2.7.1994."
6. By an order dated 18th of January, 2000, the learned Civil Judge, Jallandhar dismissed the suit on a finding that once the probate was granted by a competent probate court, and in view of the fact that in the suit the appellant had not challenged the probate proceeding, the Civil Court cannot have any jurisdiction to entertain the suit on the aforesaid ground and the suit was dismissed.
7. Feeling aggrieved, a revision petition was filed before the High Court and the High Court by the impugned judgment and order had also affirmed the order of the Civil Court holding that the suit was not maintainable after the grant of probate by the competent probate court. The present special leave petition has been filed against the aforesaid order of the High Court in respect of which leave has already been granted.
8. In our view, the High Court as well as the Civil Court have acted illegally and with material irregularity in the exercise of their jurisdiction in dismissing the suit on the aforesaid preliminary issue by holding that after the probate having been granted by the competent probate court and affirmed by this Court, the Civil Court had no jurisdiction to proceed with the suit.
9. It is true that probate of the Will executed by late S. Kirpal Singh has been granted by the competent probate court which relates to the suit properties. But we have to look into the allegations made in the plaint. The plaint clearly states that the civil suit was for a declaration to the effect that the suit properties were joint Hindu family properties of the HUF of which the appellant and his two brothers Hardyal Singh Dhillon and Harbans Singh Dhillon, mother Surjit Kaur and unmarried daughter Amarjit Kaur were the members. Consequential relief for permanent injunction was also sought restraining the respondent No.1 from alienating the suit properties, in any manner, whatsoever. Besides claiming that the suit properties were the joint family properties, it was also averred in the plaint that late S.Kirpal Singh was the Karta of the aforesaid HUF and by utilizing the income from their ancestral agricultural land had acquired various properties including the suit properties.
10. The High Court by the impugned order, relying on a decision of this Court in the case of Smt. Rukmani Devi and Ors. v. Narendra Lal Gupta, [1985] 1 SCC 144 affirmed the order of the civil court by holding that a probate granted by a competent probate court was conclusive of the validity of the Will of late S.Kirpal Singh until it was revoked and no evidence could be admitted to impeach the said Will except in a proceeding taken for revoking the probate. According to the High Court, a decision of the probate court would be a judgment in rem which would not only be binding on the parties to the probate proceeding but would be binding on the whole world. Upon the aforesaid finding, the High Court had affirmed the order of the civil court holding that the suit must be dismissed in view of the fact that the probate court had already granted probate in respect of the Will executed by late S. Kirpal Singh relating to the suit properties. We are not in a position to agree with the views expressed by the High Court in the impugned order nor are we in agreement with the order passed by the civil court. As noted herein earlier, the suit for declaration of title and injunction has been filed by the appellant inter alia on the allegations that the suit properties are joint family properties of the HUF of which the appellant and his two brothers Hardyal Singh Dhillon and Harbans Singh Dhillon, mother Surjit Kaur and unmarried daughter Amarjit Kaur are members. It has also been claimed by the appellant in the suit that by utilizing the income from the ancestral agricultural land, various properties including the suit properties were acquired. Such being the allegations made in the plaint which can only be decided on trial after parties are permitted to adduce evidence in respect of their respective claims, it is difficult to hold that only because probate of the Will of late S.Kirpal Singh has been granted, the suit for title and injunction must be held to be not maintainable in law. It is well settled law that the functions of a probate court are to see that the Will executed by the testator was actually executed by him in a sound disposing state of mind without coercion or undue influence and the same was duly attested. It was, therefore, not competent for the probate court to determine whether late S.Kirpal Singh had or had not the authority to dispose of the suit properties which he purported to have bequeathed by his Will. The probate court is also not competent to determine the question of title to the suit properties nor will it go into the question whether the suit properties bequeathed by the Will were joint ancestral properties or acquired properties of the testator.
11. In Chiranjilal Shrilal Goenka v. Jasjit Singh and Ors., [1993] 2 SCC 507, this Court while upholding the above views and following the earlier decisions of this Court as well as of other High Courts in India observed in paragraph 15 at page 515 which runs as under :-
"In Ishwardeo Narain Singh v. Smt. Kamta Devi this Court held that the court of probate is only concerned with the question as to whether the document put forward as the last will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution the testator had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the probate court. Therefore, the only issue in a probate proceeding relates to the genuineness and due execution of the will and the court itself is under duty to determine it and perverse the original will in its custody. The Succession Act is a self-contained code insofar as the question of making an application for probate, grant or refusal of probate or an appeal carried against the decision of the probate court. This is clearly manifested in the fascicule of the provisions of the Act. The probate proceedings shall be conducted by the probate court in the manner prescribed in the Act and in no other ways. The grant of probate with a copy of the will annexed establishes conclusively as to the appointment of the executor and the valid execution of the will. Thus, it does no more than establish the factum of the will and the legal character of the executor. Probate court does not decide any question of title or of the existence of the property itself".
That being the position and in view of the nature of allegations made in the plaint, we do not find any reason as to how the High Court as well as the civil court could come to a conclusion that after the probate of the Will executed by late S.Kirpal Singh was granted, the suit for declaration for title and injunction on the above allegation could not be said to be maintainable in law. The High Court also while holding that the suit was not maintainable, in view of the probate granted of the Will of late S.Kirpal Singh had relied on a decision of this Court, as noted herein earlier, in the case of Rukmani Devi (supra). We are not in a position to agree with the High Court that this decision could at all be applicable in the facts and circumstances of the present case. A plain reading of this decision would not show that after the grant of probate by a competent court, the suit for title and permanent injunction cannot be said to be maintainable in law. What this Court held in that decision is that once a probate is granted by a competent court, it would become conclusive of the validity of the Will itself, but, that cannot be decisive whether the probate court would also decide the title of the testator in the suit properties which, in our view, can only be decided by the civil court on evidence. It is true that the probate of the Will granted by the competent probate court would be admitted into evidence that may be taken into consideration by the civil court while deciding the suit for title but grant of probate cannot be decisive for declaration of title and injunction whether at all the testator had any title to the suit properties or not.
12. Such being the position, we, therefore, hold that the High Court as well as the trial court had acted illegally in dismissing the suit of the appellant on the aforesaid sole ground after framing the preliminary issue. For the reasons aforesaid, the judgments of the High Court as well as of the trial court are set aside. The appeal is allowed to the extent indicated above. The trial court is now directed to decide the suit after framing issues, including the issue of maintainability of the suit after the probate being granted, if not already framed in the meantime and dispose of the same within a year from the date of production of a copy of this order before the trial court.
13. Before parting with this judgment, we may express one more aspect. As noted herein earlier, a suit was dismissed by the trial court which was affirmed by the High Court in revision after framing preliminary issue which we have already noted herein earlier. A question may arise whether the preliminary issue could be raised without deciding the other issues and the suit could be dismissed in view of Order XIV, Rule 2 of the Code of Civil Procedure. In view of our decision in this matter, we do not feel it proper to dwell on this aspect which is kept open for future consideration.
14. For the aforesaid reasons, the impugned order is set aside. The appeal is allowed. There will be no order as to costs.
WILL TEMPLATE
Sample Will by a Hindu Resident in India
I………………………., s/o Late ………………………. r/o ……………. ……………. …………; date of birth ……… …………; holder of Indian passport no. …………………. dated ……………. issued at…………..having PAN …………………….; do hereby make this Will, which is my first and last Will, and bequeath all my immovable and movable properties located in India to XXX,
s/o ……………. …………… …………, date of birth …………… holder of passport no. ……………… of ……………………. issued on …………… by ……………. r/o ………………… …………………..
The bequeathment in favour of XXX is being done by me out of genuine love and affection for the young boy and not under the burden of any relationship or obligation. My own children do not treat me well and I have no desire to give them anything during my lifetime or after my death. My wife has died two years ago. Without affecting the generality of the foregoing, I hereby declare the following as part of my Will:
A. The following immovable assets and properties owned by me shall bequeath to XXX:
1) Land, building, if any, and assets at …………………. admeasuring about ………. hectares.
2) Land, building, if any, and assets at ………….. ……………….. ……………. admeasuring about 4.180 hectares.
B. In case any of the above properties is sold or transferred by me before my demise, this Will shall not operate in respect of such sold or transferred property /
properties.
C. In case there are properties in India (other than the ones mentioned above) in which I have any rights including tenancy and / or ownership rights at the time of
my demise, all such rights shall pass to XXX.
D. In case I acquire any other property or properties or rights in any property or properties in India before my demise, all such properties and rights in properties
will also pass on to XXX after my demise.
E. All movable assets located in India including jewellery, household goods, furniture, fixtures, vehicles, shares (in listed and unlisted Indian companies), investments in mutual funds, deposits in banks (including balances in current accounts, saving accounts, fixed deposit accounts and any other accounts), contents of bank lockers, deposits with financial companies, moneys receivable from other parties, dues or claims from insurance companies and cash will pass to XXX after my demise.
F. All rights that vest with me due to membership of societies, clubs, associations and such other bodies will also pass to XXX after my demise.
G. All rights that vest with me due to contracts and agreements will also pass to XXX after my demise.
H. In case my death takes place before XXX attains the age of 21 (Twenty One) years, after my demise ……………… …………. s/o ………………, date of birth ……….…………….., holder of passport no. …………… of …………………. r/o ………………… shall act as Guardian and Caretaker of all assets and properties bequeathed by me to XXX till XXX attains the age of 21 (Twenty One) years.
I. Age limit of 21 (Twenty One) years mentioned above will apply notwithstanding the definition of “minor” contained in sub-section 4(a) of Hindu Minority and Guardianship Act, 1956 and sections 3 and 4 of The Indian Majority Act, 1875.
J. As Guardian and Caretaker, ……………………… will have all rights and privileges to sell or transfer or give on lease or mortgage or otherwise dispose of (excluding by gift and by Will) any of the assets and properties bequeathed to XXX in any manner that she / he considers in the best interests of XXX subject to the condition that all proceeds from the sale or transfer or lease or mortgage or disposal are strictly either used for the benefit of XXX or are invested in a prudent manner for the future benefit of XXX. Power and duties of Guardian and Caretaker will be as specified in respect of a Natural Guardian under section 8 of Hindu Minority and Guardianship Act, 1956 except to the extent specifically permitted or rohibited by the provisions of this Will.
K. This Will relates only to my assets and properties in India and does not affect any assets and properties outside India that I might have at the time of my demise.
L. I have made this Will out of my own free will. I am in good health at the time of making this Will. I have understood the contents of this Will in full. There was no force or coercion by anyone on me to execute this Will or to add any part to this Will.
M. This Will is being made in three (3) copies. One copy of the Will is being handed over to …………….., another copy is being handed over to ……………., and one copy is being kept with …………… ………………… All three copies are original and carry equal force.
IN WITNESS WHEREOF, I…………….. have executed this Will by signing on each page of this Will in front of the two below-named witnesses who have both signed in front of me.
Signature of Testator
Witnesses
We hereby attest that this Will has been signed by Shri………….as his last Will at ………(Place)……… in the joint presence of himself and us. The testator is in sound mind and made this Will without any coercion.
Signature of Witness (1) Signature of Witness (2)
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AS - 19122019
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