1.1 The manner of distribution of a person’s property after his death is determined by the fact whether the deceased has made a Will or not. All civilised societies have recognised the right of an individual to acquire, hold and dispose of property. This right of disposal includes the right to dispose properties in a manner so as to take effect after the death of a person. Such a right can be exercised by making an instrument known as Will, during the lifetime of a person. Person making a Will in such a case is known as 'testator’ and distribution taking place after death of the testator as per his Will is known as 'Testamentary' succession.

1.2 In case of a person who dies without making a Will, the property passes by inheritance as per the personal law of the deceased. Devolution of property of such a person after his death is known as 'Intestate’ succession. In India, laws governing such intestate succession are the Indian Succession Act, 1925, (I.S. Act) Hindu Succession Act, 1956 and Mohammedan Law. These laws by and large provide for the manner of devolution of the properties of the deceased who has died without making a Will, amongst his legal heirs. They provide amongst other things, rules as to who are the persons entitled to receive the estate of the deceased and in what proportion. They also lay down the manner in which the estate of the deceased is to be administered.

2.1.1 S. 2(h) of the IS Act defines a 'Will’ as a legal declaration of the intention of the testator with respect to his property which he desires to be carried into effect after his death. Accordingly, a Will made during the lifetime of a person becomes effective only on his death. It is for this reason that a Will can be revoked any time during the life of the person making a Will — a testator.

2.1.2 The procedure governing the Wills in India is laid down by the IS Act, 1925. The Act provides the procedure for making, execution and administration of a Will. It applies to all the persons of any faith (except Mohammedans). The following sections of the Indian Succession Act are not applicable to Wills executed by Hindus/Jains/Buddhists and Sikhs.

S. 60 Testamentary guardian

Ss. 65 & 66 Execution of privileged Wills

S. 67 Effect of gift to attesting witness

S. 69 Revocation of Will by testator’s marriage

S. 72 Revocation of privileged Will or codicil

S. 91 Power of appointment executed by general bequest

S. 92 Implied gift to objects of power in default of appointment

S. 93 Bequests to heirs, etc. of particular person without qualifying terms

S. 94 Bequest to representatives, etc. of particular person

S. 97 Effect of words describing a class added to bequest to person

S. 99 Construction of terms

S. 100 Words expressing relationship denote only legitimate relatives or failing such relatives reputed legitimate

S. 118 Bequest to religious or charitable uses

2.1.3 Section 57 of the IS Act, 1925 provides that sections listed in Schedule III to the IS Act shall apply –

1. to all Wills and codicils made by any Hindu, Buddhist, Sikh or Jain within the territories which at the said date were subject to the Lieutenant Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras and Bombay; and

2. to all such Wills and codicils made outside those territories and limits so far as relates to immovable property situate within those territories or limits; and

3. to all Wills and codicils made by any Hindu, Buddhist, Sikh or Jain on or after the first day of January, 1927, to which these provisions are not applied by clauses (a) and (b);

1. 'Testator’ : a person making a Will.

2. Legatee or beneficiary : a person to whom property is given under the Will.

3. Legacy : a benefit under the Will.

4. Executor : a person appointed by the testator to execute the Will as per the provisions of the Will.

5. Attestation : an act of witnessing the execution of the Will.

6. Administrator : a person appointed by a competent authority to administer the estate when no executor is appointed or an executor appointed refuses to act as an executor.

7. Probate : a copy of a Will certified under the seal of a Court of competent jurisdiction with a grant of administration to the estate.

8. Codicil : a document which modifies or alters the provisions of the original Will.

9. Letter of Administration : a letter of the court appointing an administrator to the estate.

10. Succession Certificate : as issued by a Civil Court of competent jurisdiction in respect of the property of a person who has died intestate, that is without making a Will.

2.3 Who can make it — S. 59 of IS Act provides that every person of sound mind not being a minor may dispose of his property by a Will. Persons who are deaf, dumb, blind and even an insane person during his sanity can make a Will. However, any person in an improper state of mind due to intoxication, illness, etc. cannot make a Will where he does not know what he is doing. Subsequent incapacity will not invalidate a Will.

2.4 Form — Except in cases of Mohammedans, a Will has to be in writing and oral dispositions are not recognised. However, a soldier on a war front can make an oral Will known as a Privileged Will. No specific form is prescribed under Indian Succession Act nor any specific language insisted upon. It can be handwritten or typed. It can be made on a plain paper.

2.5 Execution — A Will should be executed by the testator by signing or putting his mark on Will in a manner so as to clarify his intent. The act of execution by the testator should be witnessed by at least two persons acting as attesting witnesses, who must sign or put their marks in the presence of the testator. It is preferable that the signature is placed at the end of the Will. Subject to the Will being made by a competent person in writing, executed by testator and attested by at least two witnesses no other legal requisites are provided for in the Indian Succession Act.

2.6 Who can be legatees —  A testator can give his estate or part thereof to any person, whether born or unborn (subject to rule against perpetuity where ultimate legatee is preceded by a vesting in a living person), of his choice Estate can be given under a Will to trusts, organisations, etc. also. An executor appointed for administration can also be a beneficiary under a Will. A bequest to a non existent person fails. However, where it was made in favour of a person who is dead at the time of the death of the testator, estate will devolve on the legal heirs of dead person.

2.7 What can be Willed — Properties which are self acquired can be disposed of under a Will. Properties acquired by inheritance or gift, etc. and held exclusively can also be subject matter of Will. It is also possible for a member of a HUF to transfer his share in the properties of HUF under Will. Tenancy rights not being transferable should not be made a subject matter of Will. A Mohammedan under Will can bequeath only 1/3rd of his property, the remaining 2/3rds part shall devolve on legal heirs as per the Mohammedan Law. Notwithstanding this rule, a Mohammedan may bequeath his entire property under a Will provided his legal heirs otherwise entitled to his estate consent to such a disposition after his death — their consent before death is not valid.

2.8 Executors — He is a person entrusted with the duty to carry out instructions of the testator and has the power to collect, realise and distribute the estate of the deceased. There is no restrictions on number of executors but their number should be restricted to four considering the court practice. Unless otherwise empowered an executor has to invest the realised estate as per the provisions of Indian Trust Act and is also not entitled to any remuneration. On refusal of the appointed person to act as an executor, the competent court is authorised to appoint an appropriate person.

2.9 Common Clauses — Though no form is prescribed following clauses are commonly found in a Will.

1. Name, age, address, religion

2. Revocation of earlier Will

3. List of relatives

4. Appointment of executor

5. Discharge of obligations

6. Legacies and bequests to persons

7. Residual estate

8. Testimonium

9. Execution

10. Witness

11. Safe custody

2.10 Revocation/Alteration —A Will can be revoked at any time by the testator during his life. A Will as per S. 69 of Indian Succession Act is revoked on marriage of the testator. This rule however, does not apply to a Will made by a Hindu or a Muslim. It is possible to alter a Will by a codicil as explained above or by correcting the original Will itself as per S. 71 of the Indian Succession Act which takes effect only if alterations were executed in the same manner as a Will was executed.

2.11 Codicil — A Will can be changed by the testator during his life time either by making a new Will after revoking an old Will or by amending the old Will by separate instrument made with the intention to make such an instrument a part of it. This new instrument is known as Codicil. S. 2(d) defines it as an instrument made in relation to a Will and explaining, altering or adding to its dispositions which shall be deemed to form part of the Will

2.12 Stamp duty — No stamp duty is payable on execution of a Will. A Will can be made on a plain paper.

2.13 Registration — Registration of a Will is optional. If desired it can be registered with the Sub-Registrar of Assurance’s office as per the provisions of S. 40 of the Indian Registration Act. A revocation of a registered Will should be registered. It is preferable to register Wills made subsequent to a registered Will. Registration grants protection and secrecy to a Will.

2.14 Deposit — Will can be deposited at option of the testator with any person of his choice including Sub-Registrar of Assurances as per the provisions of S. 42 of Indian Registration Act.

2.15 Probate — A probate is the grant of administration of the estate by the court of competent jurisdiction on the basis of Will. A probate provides the conclusive evidence (i) of the execution of a Will (ii) of the legacies and (iii) of the legal character of legatees by confirming validity of a Will. It can be granted only to an executor.

Obtaining a probate is not compulsory in cases of a Hindu and a Mohammedan unless :—

1. the estate consists of an immovable property situated in the cities of Mumbai and Chennai and Kolkata.

2. Will is executed in the cities of Mumbai and/or Chennai and/or Kolkata and deals with an immovable property wherever located.

A maximum court fee of Rs. 75,000 is payable in the state of Maharashtra for obtaining a probate. However, a complete exemption is provided in that state where the Will is to be administered by an executrix (a lady executor). No time limit is prescribed for filing an application for probate. However, delay is required to be explained where filed beyond a period of three years of death.

2.16 Letter of Administration — A letter of administration can be obtained from the court of competent jurisdiction in cases where the testator had failed to appoint an executor under a Will or where the executor appointed under a Will refuses to act or where he has died before or after proving the Will but before administration of the estate.

2.17 Landmark decisions of the Supreme Court

1. Effect of nomination made under Government Saving Certificates and Life Insurance Policy. – [Vishin N. Khanchandani & Anr. v. Vidya Kachmandas Khanchandani & Anr. (246 ITR 306 SC)]

2. Hindu Succession Act – succession of property devolving from a female Hindu.– [Bhagat Ram v. Teja Singh (252 ITR 324 SC)]

3. Indian Succession Act sec. 213 and sec. 57 – Will – Does not operate only against Indian Christian – sec. 213 does not discriminate on basis of religion. – [Clarence Pais v. Union of India (AIR 2001 SC 1151)]

4. Will provided uneven distribution of assets is valid.
   – [S. Sundaresa Pai v. Mrs. Sumangal T. Pai (2001 (8) SCALE 309)]

5. Disposition intra vivos by gift of undivided share or interest in coparcenery property without consent of the coparceners : Gift does not partake character of Testamentary Succession u/s. 30 of Hindu Succession Act, 1956. – [Pavitri Devi & Anr. v. Darbari Singh & Other (1993 4 SCC 392)]

6. Interpretation of Will – Distinction between vested interest and contingent interest created by Will. – [Usha Subbarao v. B.N. Vishveswaraiah & Ors. (1996) 4 SCC 201]

7. Proving of Will — If evidence adduced is legal and convincing, satisfies the conscience of the court and there is nothing unnatural about the transaction, mere conjecture or unfounded suspicion should not be permitted to sway the verdict that the will has been proved — Witness being classmate of the son of the legatee would be interested in obliging his classmate’s mother so as to benefit her and go to the extent of falsely deposing was too far-fetched an inference to draw — There is no rule of law or of evidence which requires a doctor to be kept present when a Will is executed – [Madhukar D. Shende v. Tarabai Aba Shedage (2002) 2 SCC 85]

8. Bequest in favour of wife — Absolute interest or limited right bequeathed — If property is given with a right of alienation, held, bequest is a conferment of an absolute estate — Having granted absolute right or interest to a devisee it is not open to the testator to further bequeathed the same property in favour of someone else — Therefore, any subsequent bequest in the same Will in favour of someone else would be invalid — However, if the Will clearly indicates that only a limited or restricted right is being bequeathed to the wife, then a subsequent bequest, in favour of someone else to take effect after the death of the wife would be valid. – [Mauleshwar Mani & Ors. v. Jagdish Prasad & Ors. (2002) 2 SCC 468].

9. In view of section 63 and the proviso to sec. 68 of the Evidence Act, the requirement of law would be fully satisfied if only one of the attesting witnesses is examined to prove the Will – (Ramabai Padmakar Patil v. Rukminibai Vishnu Vekhande (2003 AIR SCW 4018).

10. Section 118 of the Indian Succession Act is discriminatory and violative of Article 14 of the Constitution. Therefore, restriction on an Indian Christian having a nephew or niece or any nearer relative to bequeath his property for religious or charitable use is struck down as unconstitutional. Their Lordships further observed that the word 'relative’ means legitimate relative and has no application to any relationship by marriage. Thus a wife of a person is not his relative but an adopted is. – [John Vallamattom v. Union of India (2003 AIR SCW 3536)].

11. Succession Act, 1925, Ss. 63, 70 – S. 68 Proviso – Codicil – Execution and attestation of – Must be in same manner as a Will – Since codicil is an instrument made in relation to a Will.
    
    Attestation of codicil – Registrar of deeds cannot be 'statutory attesting witness’ to codicil merely by discharging duties of registration – To be attesting witness to codicil Registrar should attest signature of testator in manner contemplated by S. 63(c) of the Indian Succession Act, 1925.
    
    Codicil dictated by testator of Will in presence of witness and Registrar – Signed by testator in presence of witness and Registrar – Both Registrar and witness put their signatures with a view to attest signature of testator – However, neither the Registrar nor the witness called in witness-box to depose attestation – Codicil not proved.
    
    Registration of document as codicil or Will – Does not dispense with need of proving execution and attestation of codicil/Will as per Evidence Act – Endorsements made by Registrar are relevant for registration purposes only. – [Bhagat Ram and Another v. Suresh and Others (2003 AIR SCW 6518)]

12. Succession Act, 1925, Ss. 220, 227 – Probate or Letters of Administration – Grant of – Does confer title to property – But merely enables administration of estate of deceased – Testamentary Court is only concerned with finding out whether or not testator executed the testamentary instrument of his free Will. – [Mrs. Vijay C. Gurshaney & Anr. v. Delhi Development Authority (2003 AIR SCW 4158)]

13. Hindu Succession Act — Father-in-law of the widow governed by Mitakshara school died intestate. Sub-section (2) of section 3 of the Hindu Women’s Right to Property Act, 1937 would apply in respect of joint family property but thereunder only widow of the said father-in-law and not widow of his son would be entitled to a claim. Hence the said widow of the son acquired no right under the Act. [Ram Vishal (Dead by L. Rs. and Others v. Jagan Nath and Another (2004) 9 SCC 302]

14. Hindu Adoptions and Maintenance Act (78 of 1956) — Adoption of son does not deprive adoptive mother of power to dispose of her separate property by transfer or by will. [Ugre Gowdav v. Nagegowda (D) by L. Rs. (2004) AIR SCW 4308].

15. Proving of Will — Onus to establish allegations of undue influence, fraud or coercion is on the persons making such allegations. Proof in either case should be one of satisfaction of a prudent man. [Sridevi and Others v. Jayaraja Shetty and Ors. (2005) 2 SCC 784]

16. Genuineness of unregistered will — The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and proof of the signature of the testator, as required by law, is sufficient to discharge the onus. Where, however, there are suspicious circumstances, the onus is on the propounder to explain all legitimate suspicions to the satisfaction of the court before it accepts the Will as genuine. [Meenakshiammal (dead) through L. Rs. v. Chandrsekaran & Another (2005) 1 SCC 280].

17. Primary evidence sufficient to discharge the onus — Will being a document has to be proved by primary evidence except where the court permits a document to be proved by leading secondary evidence.
    
    In order to assess as to whether the will has been validly executed and is a genuine document, the propounder has to show that the will was signed by the testator and that he had put his signatures to the testament of his own free will; that he was at the relevant time in a sound disposing state of mind and understood the nature and effect of the dispositions and that the testator had signed it in the presence of two witnesses who attested it in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged. [Daulat Ram and Others v. Sodha and Ors. (2005) 1 SCC 40]

18. Under section 263 of the Indian Succession Act, the grant of probate or letters of administration may be revoked if the proceedings to obtain the grant were defective in substance; or the grant being obtained fraudulently by making a false suggestion or by suppressing from the Court something material to the case or if the grant was obtained by means of untrue allegation or if the grantee has wilfully and without reasonable cause omitted to exhibit an inventory or account in accordance with the provisions of Chapter – VII of Part – IX of the Indian Succession Act.
    
    The Supreme Court in the case of Crystal Developers v. Asha Lata Ghosh [(2005) 9 SCC 375] held that reading sections 211, 227 along with section 263, it is clear that revocation of the grant shall operate prospectively and such revocation shall not invalidate the bona fide intermediate acts performed by the grantee during the pendency of the probate.

19. All that the succession certificate purports to do is to facilitate the collection of debts, to regulate the administration of succession and to protect persons who deal with the alleged representatives of the deceased persons. Such a certificate does not give any general power of administration on the estate of the deceased. The grant of a certificate does not establish title of the grantee as the heir of the deceased. A succession certificate is intended as noted above to protect the debtors, which means that where a debtor of a deceased person either voluntarily pays his debt to a person holding a certificate under the Act, or is compelled by the decree of a court to pay it to the person, he is lawfully discharged. The grant of a certificate does not establish a title of the grantee as the heir of the deceased, but only furnishes him with authority to collect his debts and allows the debtors to make payments to him without incurring any risk. [Banarsi Dass v. Teeku Dutta (Mrs) & Another (2005) 4 SCC 449]

20. The Court empowered to grant letters of administration ordinarily may not go into the question of title in respect of property sought to be bequeathed by the testator; the situation would be different where the authority of the testator to execute a Will in relation to the subject matter thereof is in question.
    
    [Jayamma v. Maria Bai dead by proposed Lrs. & Anr. (2004) 7 SCC 459 SC]

21. Sec. 6 of Hindu Succession Act – when a coparcener dies leaving behind any female relative specified in Class I, his undivided interest in the Mitakshara coparcenary property would not devolve upon the surviving coparcener, by survivorship but upon his heirs by intestate succession.
    
    Anar Devi and Others, Appellants v. Parmeshwari Devi and Others, Respondents. [2006-(008)-SCC-0656 –SC]

22. Application of the Hindu Succession Act to the situation of a son being borne prior and subsequent to the enactment of the said Act.
    
    Sheela Devi & Ors. v. Lal Chand & Anr. [2006-(008)-SCC -0581–SC]

23. When the surviving heirs of the deceased had already partitioned the properties and became owners to the extent of their respective share, in such circumstances the property ceases to be joint family property. All the succeeding heirs succeed to their respective shares not as joint tenants but as tenants-in-common. The property devolves upon them not per strips but per capita with the right to alienate the share, particularly when the property has been partitioned and entries made in the revenue record of rights.
    
    Bhanwar Singh v. Puran and Others [(2008) 3 SCC 87]

24. When a Hindu female in lieu of her right to maintenance acquires property, it is in virtue of a pre-existing right. When her right as a co-owner by virtue of the provisions of the Act is crystallised, such acquisition would fall under section 14(1) and not under section 14(2), even if the instrument, decree, order or award allotting or recognising the acquisition of the property prescribes a restricted estate in the property. Therefore, on her death such property devolves on her heirs.
    
    Santosh and Others v. Saraswathibai and Another [(2008) 1 SCC 465)]

25. The heirs of a female Hindu include the agnates of her husband. The deceased had left properties in two different States in India. A probate petition was filed mentioning one property situated in Bombay and accordingly the probate was granted by the Bombay High Court. The Supreme Court held that the non-publication of citation in another State, in which the second property is situated, is a ground for revocation of the probate.
    
    Basanti Devi v. Ravi Prakash Ram Prasad Jaiswal [(2008) 1 SCC 267]

26. Where a terminally ill testator makes the will just two weeks before his death and minor children are disinherited in favour of the niece and also a number of suspicious circumstances remain unexplained, the genuineness of the will is doubtful.
    
    Adivekka and Others v. Hanamavva Kom Venkatesh (Dead) by Lrs and Another [(2007) 7 SCC 91]

27. Party raising plea of partition has to prove the same since in law there is presumption in regard to continuance of joint family. Even separate possession of portion of property by co-sharers itself would not lead to presumption of partition. Several other factors are required to be considered therefore.
    
    Chinthamani Ammal v. Nandgopal Gounder and Another [(2007) 4 SCC 163]

28. The legally wedded wife is not automatically entitled to succession certificate to the exclusion of the second de facto wife and her children, when the deceased had made nomination in favour of the second wife to receive terminal benefits of his employment. Though the second de facto wife was not legally wedded wife, yet her children were legitimate for the purpose of share in their father’s employment dues. Therefore, the Court divided the property between the first wife and four children through the second wife equally.
    
    Vidhyadhari and Others v. Sukhrana Bai and Others. [(2008) 2 SCC 238]

29. The son inherited 1/3rd share by will on death of his father in 1975. The son died in 1976. His widow remarried in 1979. Upon the death of her husband, his share vested absolutely in the widow by operation of section 14(1) of the Hindu Succession Act, 1956. Such absolute vesting cannot be subjected to divestment, save and except by reason of a statute. Sections 4 and 24 of the Hindu Succession Act, 1956 prevail over the provisions contained in section 2 of the Hindu Widow’s Remarriage Act, 1856.
    
    Cherotte Sugathan (Dead) Through Lrs. and Others v. Cherotte Bharathi and Others [(2008) 2 SCC 610]

30. The Testator’s intention to will has to be found out from the entire will. The will has to be read as a whole and endeavour should be made to give effect to each part of it. Only when one part cannot be given effect to, having regard to another part, the principles of purposive construction or general principles of construction of deeds may be applied. If a part is invalid, the entire document need not be invalidated.
    
    Anil Kak v. Sharada Raje [(2008) 7 SCC 695]

31. The Will should be construed by a court placing itself on the armchair of the testator. The endeavour of the court should be to give effect to his intention. The intention of the testator can be culled out not only upon reading the will in its entirety, but also the background facts and circumstances of the case.
    
    Shyamal Kanti Guha & Ors. v. Meena Bose [(2008) 8 SCC 115]

32. When a will is surrounded by suspicious circumstances, it would not be treated as the last testamentary disposition of the testator. Its proof ceases to be simple lis between the plaintiff and the defendant. An adversarial proceedings in such cases becomes a matter of court’s conscience and propounder of the will has to remove all suspicious circumstances to satisfy that the will was duly executed by the testator wherefor cogent and convincing explanation of suspicious circumstances shrouding the making of will must be offered.
    
    Bharpur Singh v. Shamsher Singh [(2009) 3 SCC 687]

33. S.63 of the Indian Succession Act deals with the execution of unprivileged wills. It lays down that the testator shall sign or shall affix his mark to the will or it shall be signed by some other person in his presence and by his direction. It further lays that the will shall be attested by two or more witnesses, each of whom has seen the testator signing or affixing his mark to the will or has seen some other person sign the will, in the presence and on the direction of the testator and each of the witnesses shall sign the will in the presence and on the direction of the testator. Section 68 of the Evidence Act mandates examination of one attesting witness in proof of a will, whether registered or not."
    
    Lalitaben Jayantilal Popat v. Pragnaben Jamnadas Kataria & Ors. [2009 (1) Scale 328]

34. Under Section 213 of the Indian Succession Act, the grant of probate is not a condition precedent for filing a suit in order to claim a right as an executor under the will. The vesting of right is enough for the executor or administrator to represent the estate in a legal proceeding.
    
    FGP Limited v. Saleh Hooseini Doctor And Another [(2009) 10 SCC 223]

35. In a case where the testator’s mind is feeble and he is debilitated and there is not sufficient evidence as to the mental capacity of the testator or where the deposition in the will is unnatural, improbable or unfair in the light of the circumstances or it appears that the bequest in the will is not the result of the testator’s free will and mind, the court may consider that the will in question is encircled by suspicious circumstances.

    When the execution of a will asserted by one party is denied by the other party, then the burden is on the party who relies on the will to prove its execution. But when the execution of the will is not denied then no burden is cast on the party who relies on a will to prove its execution.

    Balathandayutham and Another V. Ezhilarasan [(2010) 5 SCC 770]

    In this case the late Mr. M. Ramachandra, the father of the first appellant as also of the respondent-plaintiff, had three sons, namely, Balathandayutham (first appellant), Ezhilarasan (respondent-plaintiff) and one Gnanavoli and two daughters, Kalai Arasi and Isai Amudhu and his wife was Nachiar Ammal.

    It was not in dispute that Ramachandran acquired certain properties and in his lifetime he executed a will, which was registered on 25-9-1972. By the said will he bequeathed certain properties, from the income of which Seva Puja and maintenance of Shri Bala Murugan Temple was to be conducted. In respect of his other properties he bequeathed the same in favour of the respondent-plaintiff and his other son Gnanavoli and two daughters and giving his wife life interest. Insofar as the first appellant is concerned, no property was bequeathed to him, inter alia, on the ground that after education he was staying apart and had not shown any interest in the family members.

    The case in the plaint was that the first appellant i.e the elder brother of the respondent-plaintiff, left the family after his education and married another woman belonging to some other caste without the consent of the parents, no provision in the will dated 25-9-1972 was made by the testator in favour of the first appellant. The Testator Ramachandran died on 23-5-1980 and after his death, the respondent-plaintiff was in exclusive possession of the property. At that stage the first appellant tried to disturb the possession of the respondent-plaintiff with the help of some anti-social elements, this led to the filing of the suit.

    In the suit, the stand of the first appellant was that the will dated 25-9-1972 was not genuine and the said will had been revoked by Ramachandran by another will dated 25-4-1980 and also thereafter by another will dated 2-5-1980. Both the appellants claimed their rights under the so-called subsequent wills.

    In his rejoinder, the respondent-plaintiff claimed that the so-called subsequent wills dated 25-4-1980 and 2-5-1980 were fabricated and at the relevant point of time Ramachandran was bedridden and did not have the capacity to execute any will as he died within a few days thereafter on 23-5-1980.

    The trial court dismissed the suit upholding the contention of the first appellant. The first appellate court, however, allowed the appeal and decreed the suit. The first appellate court held that when the execution of a will asserted by one party is denied by the other party, then the burden is on the party who relies on the will to prove its execution. But when the execution of the will is not denied then no burden is cast on the party who relies on a will to prove its execution.

    The High Court held that the finding given by the first appellate court that Ext. B-19 and Ext. B-20 cannot be said to have been proved in view of non-compliance with the mandatory requirement under Sections 68 and 69 of the Evidence Act was a correct finding. The High Court found that the first will which was executed in 1972 (Ext. A-1) was executed while the testator was residing with the plaintiff and his wife and another son in joint family in his residential house at Villupuram but the subsequent two wills Ext. B-19 and Ext. B-20 were executed at Cuddalore where the first appellant was residing. The facts remains that in the first will no provision was made for the first appellant but in the second two wills provisions were made in favour of the first appellant and they were allegedly executed when the testator was staying in the house of the first appellant. These two wills were also executed a couple of weeks prior to the death of the testator.

    The High Court also found on analysing the aforesaid facts that there were suspicious circumstances surrounding the execution of Ext. B-19 and Ext. B-20 and they were required to be dispelled by the appellant. The statutory requirements under section 68 of the Evidence Act and under section 63 of the Succession Act were to be fulfilled which have not been done. In this case not a single attesting witness of Ext. B-19 and Ext. B-20 was examined.

    Dismissing the appeal of the appellant and affirming the decision of the High court, the Hon’ble Supreme Court held that the appellant did not succeed in discharging its onus of removing the suspicious circumstances surrounding Exts. B-19 and B-20. As such there was no reason to find any error in the judgment of the High Court. Relying on the decisions of the H. Venkatachala, the Hon’ble Supreme Court affirmed the findings given in this decision that Section 68 deals with the proof of the execution of the document required by law to be attested and it provided that such document shall not be used as an evidence until one attesting witness has been called for the purpose of proving its execution. These provisions prescribed the requirements and the nature of proof, which was required to be satisfied by the party who relied on a document in a court of law. It was further held that Section 63 of the Succession Act required that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also required that the will; shall be attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator was to be decided in the light of those provisions.

36. Where the execution of the will is shrouded by suspicious circumstances, it is necessary for propounder of the will to explain the same. Mere registration of a will is not by itself sufficient to remove the suspicion.

    S. R. Srinivasa & Ors. Vs. S. Padmavathamma [(2010) 5 SCC 274]

    In this case one P, a widow had three daughters, L, K (hereinafter Defendant 4), I and a son. The son died issueless during lifetime of P, who as Class 1 heir, inherited the suit property. P had been living with I whereas L and K were living outside. After P’s death I continued to be in possession of the property. Later I died issueless and the son of P’s sister (hereinafter Defendant 1) took possession of the house as well as the movable properties. He refused to hand over possession thereof to L and K. L then filed a suit for declaration that L and K (Defendant 4) were the absolute owners of the suit schedule property and for possession thereof. The plaint made it clear that separate action would be taken for the movable properties. During the pendency of the suit, Defendant 4 died issueless and L also passed away. Therefore, the suit was pursued by legal heirs of L.

    In the written statement, Defendant 1 claimed that P had executed a will in favour of I. Consequently, there was no intestate succession and testamentary succession devolved on I. Therefore, neither the plaintiffs nor Defendant 4 could succeed to the properties of P.That children of the husband of I from his first wife would have preference over the plaintiff and Defendant 4.

    Noting that the plaintiffs had not seriously disputed the execution of the will, that Defendant 1 had examined the scribe of the will to prove the will, and that the plaintiffs had, in a subsequent suit, admitted the execution of the will, the trial court upheld the contention of Defendant 1 and dismissed the suit.

    The first appellate court, on evidence, held that the execution of the will was shrouded by suspicious circumstances. It further held that the plaintiffs had not admitted the execution of the will or the genuineness thereof in the subsequent suit. Therefore, it allowed the first appeal and decreed the suit.

    In second appeal, the High Court reversed the decision of the appellate court and confirmed the decision of the trial court. The legal heirs of L, then filed the present appeal by special leave.

    Allowing the appeal, the Supreme Court held that in the present case, none of the attesting witnesses have been examined. The scribe, who was examined as DW 2, has not stated that he had signed the will with the intention to attest. In his evidence, he has merely stated that he was the scribe of the will. He even admitted that he could not remember the names of the witnesses to the will. In such circumstances, the test that the witness should have put his signature animo attestandi, has not been satisfied. Therefore the signature of the scribe could not be taken as proof of attestation. The execution of a will can be held to have been proved when the statutory requirements for proving the will are satisfied. Thus, it is evident that the will has not been duly proved.

    There was no admission about the genuineness or legality of the will either in the plaint in the subsequent suit or in the evidence of PW 1. (Para 43)

    It was correct that a true and clear admission would provide the best proof of the facts admitted. It may prove to be decisive unless successfully withdrawn or proved to be erroneous. The legal position with regard to admissions and their evidentiary value has been dilated upon in many cases. On the basis of law stated therein, it was not possible to agree with the High Court that there was no need for independent proof of the will, in view of the admissions made in the subsequent suit and the evidence of PW 1. In fact there is no admission except that P had executed a will bequeathing only the immovable properties belonging to her in favour of I. The first appellate court has correctly observed that the aforesaid admission was only about the making of the will and not the genuineness of the will. Similarly, PW 1 only stated that he had come to know about the registration of the will of his grandmother favouring I through the written statement of Defendant 1. The statements contained in the plaint as well as in the evidence of PW 1 would not amount to admissions with regard to the due execution and genuineness of the will.

    The court further held that I was the sole beneficiary under the will. There was no convincing reason as to why her sisters, the original plaintiff and Defendant 4, that is, L and K had been excluded from inheritance. There was no convincing reason as to why they were excluded from the inheritance. The will did not specify which of the properties have been bequeathed to I although P had been allotted certain specific property. The will was signed by I, even though she was the sole beneficiary under the will. She was present in the Office of the Sub-Registrar at the time when the will was registered. There was also a question as to why the will was presented for registration on two different occasions. It appeared that on the date when the will was executed I also obtained a power of attorney from her mother, which would demonstrate her anxiety to come into possession of the property immediately. In such circumstances it was the duty of the High Court to carefully examine the findings recorded by the lower appellate court together with the relevant documents on the record to ensure that there is a proper explanation given by Defendant 1 of the aforesaid suspicious circumstances.

37. If a Hindu Woman has any existing interest in a property, prior to enactment of the Hindu Succession Act, same would blossom into a full-fledged right by virtue of operation of section 14(1) of Act.

    Gaddam Ramakrishnareddy & Ors V. Gaddam Rami Reddy and Anr. [(2010) 9 SCC 602]

    In this case the suit properties, along with certain other properties, formed the joint family properties of one G. Pullareddy and his two sons, G. Pitchireddy and Gaddam Ramireddy. The said properties were partitioned in 1947 into three equal shares and were separately enjoyed by the three co-sharers thereafter according to such partition.

    On 21st December, 1952, G. Pullareddy executed and registered a Deed of Gift giving a limited right in his share of the properties to his wife, Gaddam Sheshamma. In terms of the Gift Deed Sheshamma was given a limited right of enjoyment of the properties during her lifetime, without right of alienation, and the remainder was vested in G. Ramireddy. It was stipulated that after Sheshamma's death, the properties would devolve on G. Ramireddy. G. Pullareddy died in or about 1957. At about the same time, Sheshamma was said to have executed a Deed of Relinquishment in respect of 1.89 acres in R.S. Nos. 93/2 and 1/1 and also executed two sale deeds in favour of one Mukkala Chennareddi and Vintha Ramakotireddy in respect of some of the aforesaid properties. On 17th February, 1972, Sheshamma also executed and registered a Will in favour of her grandchildren through G. Pitchireddy, bequeathing the properties which were received by her through the Gift Deed dated 21st December, 1952, to them.Apparently, in view of all the aforesaid alienations by Sheshamma, G. Ramireddy filed O.S. No. 17 of 1975 against Sheshamma, Mukkala Chennareddi and Vintha Ramakotireddy before the District Munsif, Tituvur, for a declaration that the sale deeds dated 31st January, 1967 and 16th July, 1974, executed by his mother, Sheshamma, in favour of Mukkala Chennareddi and Vintha Ramakotireddy, who were made Defendant Nos. 5 and 6 in the suit, did not affect his rights in the properties. He also prayed for permanent injunction against the said Defendants from interfering with his possession in the said properties. The suit was contested by Sheshamma and Mukkala Chennareddi and was ultimately decreed on 31st January, 1979, in favour of G. Ramireddy, the Respondent No. 1 herein, holding that the sale deeds executed by Sheshamma in favour of the Defendant Nos. 5 and 6 were invalid, inasmuch as, Sheshamma had no right of alienation as she did not get an absolute right in the properties. No appeal appears to have been preferred against the said judgment.

    On 15th August, 1991, Sheshamma died and on 9th October, 1991, G. Ramireddy filed O.S. No. 111 of 1991, which was the present suit, in the Court of Subordinate Judge, Nuzvid, for a direction upon the Defendants to put him in possession of the suit properties and also for payment of mesne profits.

    The Trial Court by its judgment dated 30th July, 1997, decreed the suit and held that the properties were gifted to G. Ramireddy and not to Sheshamma, who had only been given a life estate therein without any link with her maintenance during or after Pullareddy's lifetime. It was also held that the judgment in O.S. No. 17 of 1975, in which it was held that the limited estate under the Deed of Gift executed by G. Pitchireddy did not ripe into an absolute estate as far as Sheshamma was concerned, had become final and any claim through her would be void.

    Aggrieved by the said judgment, the Defendant Nos. 1, 2 and 4 and the heirs of Defendant No. 3, Gaddam Madhavareddy, who had died in the meantime, preferred an appeal, being A.S. No. 1010 of 1997, before the Andhra Pradesh High Court on the ground that the properties had been given to Sheshamma for life in lieu of her maintenance and that the same ripened into an absolute estate under Section 14(1) of the Hindu Succession Act, 1956.

    During the pendency of the appeal, the High Court, by its order dated 23rd October, 2003, stayed the execution of the decree and permitted determination of mesne profits from 15.08.1991. The High Court, while dismissing both the appeals on the ground of res judicata in view of the judgment passed earlier in O.S. No. 17 of 1975, modified the cultivation expenses for the first 5 years from 1991.

    On further SLP filed in the Apex court , the court was confined to the issue whether the life-estate created by Pullareddy in favour of his wife, Sheshamma, by the Deed of Gift dated 21.12.1952 could be said to be an interest in lieu of maintenance which subsequently became enlarged into a full-fledged right of ownership under Section 14(1) of the Hindu Succession Act, 1956, or whether the same amounted only to a life estate for the purpose of managing the properties and enjoying the fruits thereof till G. Ramireddy, the second son of Pullareddy, who was then a minor, attained majority. The law in this regard has been crystallized in V. Tulasamma's case (supra) and the same has been consistently followed over the years. The ratio of the said decision in simple terms is that if a Hindu woman had any existing interest in a property, howsoever small, prior to the enactment of the Hindu Succession Act, 1956, the same would blossom into a full-fledged right by virtue of the operation of Section 14(1) thereof. On the other hand, if such a right was so acquired for the first time under an instrument, after the Act came into force, the provisions of Section 14(2) of the above Act would be attracted and would not convert such a right into a full-fledged right of ownership of the property.

    Dismissing the appeal filed by the Appellant and affirming the findings of the lower courts the Hon’ble Supreme Court held as under:

    “The aforesaid provision has been considered by both the Courts below which have concurrently held that the life-estate created by Pullareddy in favour of Sheshamma was not in lieu of her maintenance as she was already managing the properties in question and in no uncertain terms it was the Donee's desire that the said properties should ultimately go to his son Ramireddy, the Respondent No. 1 herein. Once that was established, apart from other surrounding circumstances, the immediate fallout was that Sheshamma's rights in the properties came to be governed by sub-section (2) of Section 14 of the Hindu Succession Act, 1956, and her right did not blossom into an absolute estate as contemplated under sub-section (1).”

38. No will is said to be executed unless it is signed by Testator in the presence of attesting witnesses.

    Gopal Swaroop Vs. Krishna Mangal Murari & Anr. [(2011) 12 SCALE 470]

    In this case respondent No. 1 i.e., the plaintiff in the suit claimed partition as joint family property with his father Shri Panna Lal - defendant No. 1 as the 'Karta' of the joint family. During the pendency of the suit Shri Panna Lal died giving rise to an additional issue as regards the devolution of the property left behind by him including his share in the joint family property. The appellant set up a Will allegedly executed by Shri Panna Lal according to which the share of the deceased testator was to devolve exclusively upon the former. The suit filed by the respondent was eventually decreed by the Trial Court holding plaintiff - respondent No. 1 entitled to 1/5th share in the joint family property and the goodwill of the joint family business. The Court also found that the Will set up by the appellant herein had been duly proved and that in terms thereof the property left behind by Shri Panna Lal would devolve exclusively upon the appellant.

    Both the parties filed appeals, which were heard by a learned Single Judge of the High Court of Madhya Pradesh. The High Court held that the service of a notice by the plaintiff about his intention to separate had brought about a division in joint family shares and that the plaintiff was entitled to have his share in the property in the joint family ascertained and partitioned. The High Court noted that while the plaintiff and his brothers had 1/5th share each, the plaintiff's claim for a larger share on account of the death of his father and devolution of the latter's estate upon all the brothers by succession had to be seen in the light of the Will propounded by defendant - appellant Gopal Swaroop. The High Court then proceeded to discuss the evidence relating to the execution of the Will by Shri Panna Lal including the deposition of DW - 2 Shri Vilas Tikhe in support thereof and recorded a finding that the execution of the Will had been satisfactorily established. The High Court also rejected the contention that there were any suspicious circumstances surrounding the Will which the High Court noted was a registered document. The High Court in conclusion held that the plaintiff had 1/5th share in the house in question and the goodwill of the business and affirmed the finding of the Trial Court to the effect that the plaintiff had 1/8th share in the jewellery items and the amount representing the share of Saraswatibai held in deposit in the firm.

    Dissatisfied with the view taken by the learned Single Judge respondent No. 1 preferred Letters Patent Appeal No. 75/1994 before a Division Bench of the High Court which was allowed in part and the judgment and decree passed by the Courts below modified. The Division Bench held that the execution of the Will by Shri Panna Lal had not been proved inasmuch as the solitary witness DW - 2 Vilas Tikhe did not prove that Shri Panna Lal had signed the Will in the presence of Manoj Kumar and that Manoj Kumar had also signed the Will as a witness. The High Court accordingly held that while the appellant - plaintiff and defendants 2 and 3 will get 1/4th plus 1/32nd i.e. 9/32nd share each in the joint family property the rest will go to the other legal heirs of Ghanshyamdas and Shyam Sunder and daughters of the deceased Panna Lal. The High Court also directed the partition of immovable properties with 9/32nd share each to the branch of Ghanshyamdas and Shyam Sunder and three sisters of the plaintiff - appellant herein.

    The question of law for adjudication before the Supreme Court was whether the Will propounded by the appellant and purporting to have been attested by two witnesses, namely, Manoj Kumar and Vilas Tikhe has been validly proved. It was an undisputed fact that one of the said witnesses namely, Vilas Tikhe was summoned and examined as a witness. What was to be examined by the Supreme Court was whether the examination of the said witness satisfies the requirements of Section 63 of the Evidence Act.

    Allowing the appeal the Apex Court held as under:

    “The deposition of Shri Vilas Tikhe clearly proved that Panna Lal had executed a Will in favour of the appellant, Gopal Swaroop had signed and affixed his signature in his presence. The Trial Court and the High Court have concurrently held that the Will had been signed by the Testator in the presence of the attesting witnesses. First and the foremost requirement prescribed under Section 63 of the Indian Succession Act, 1925 is, therefore, clearly satisfied.”

    The Apex Court further held that the signature of the Testator appeared at the right hand bottom part of the Will. The placement of the signature on the document is, therefore, appropriate and clearly suggestive of the fact that the document was intended to be given effect to as a Will. Also the deposition of Shri Vilas Tikhe in our opinion satisfied this requirement also inasmuch as the witness had in clear and unambiguous terms stated that not only he but Shri Manoj, the other attesting witness to the Will was also present at the time the Testator affixed his signature on the Will. It was noteworthy that, the above statement has not been questioned in cross-examination nor any suggestion made to the effect that while Shri Vilas Tikhe, the witness may have been present, Manoj was not so present at the time the Will was signed by the Testator. As a matter of fact, the witness has made a categoric statement that Manoj met the Testator in the Court and was taken along and that not only at the time of signing of the Will by the Testator, but even before the Registrar, Manoj Kumar was present in person. The witness while answering a question in cross-examination specifically stated that Manoj was present even at the time the witnesses signed the Will in question.

    The Apex Court further held that the deposition of Shri Vilas Tikhe DW - 2, the requirement of attestation of the Will by two witnesses each of whom has seen the Testator signing or affixing his mark has been satisfied in the present case. So also the fourth requirement that the attesting witnesses signed the Will in the presence of the Testator stands firmly established. In that view of the matter, the Division Bench of the High Court fell in error in holding that the requirement of Section 63 of the Indian Succession Act had not been satisfied in the instant case. The Will executed by Shri Panna Lal which was a duly registered document was not surrounded by any suspicious circumstances of any kind and is proved to have been duly and properly executed.

    The impugned judgment and order passed by the Division Bench of the High Court of Madhya Pradesh at Jabalpur, Gwalior Bench, was set aside and the judgment and order passed by the learned Single Judge of that Court was restored.

39. In the absence of a contrary intention in the will, the description of the properties in the Will shall be deemed to refer to and include the property answering that description at the death of the testator.

    Ittianam and Ors. Vs. Cherichi Alias Padmini [2010 (7) SCALE 495]

    The testator Ippuru's first wife Kunhiri died, leaving behind daughter Molutty and son Vareed who died on 8.1.86. The wife and children of Vareed, since deceased, are the plaintiffs. The second wife of Ippuru, Kunjila, is the 7th plaintiff. She has two daughters Mariyamma, the 8th plaintiff and the other daughter is Padmini @ Cherichi, the defendant and respondent herein.

    By a sale deed, being Exhibit B1, dated 2.5.67, Kunjila, the second wife of Ippuru, sold to Ippuru half of her rights in respect of item Nos. 4 to 7 of the properties in the Will bequeathed by Ippuru. The other half of the property belonged to her son Vareed. Both the sale deed and the Will were registered on 8.5.1967, Ippuru died on 20.7.71.

    In the Will of Ippuru, seven items of properties were bequeathed and out of which items 1 to 3 were given to one Molutty, daughter of the testator by his first wife. Items 4 to 7 of the properties were previously owned in equal moieties by Vareed and Kunjila, the second wife of Ippuru. Kunjila, as noted above, sold her share to Ippuru on 2.5.67 but the sale deed was registered on 8.5.67, the same day when the Will was registered.

    After the death of Vareed on 1.8.1986, his wife and children appellants, 1 to 5 herein, jointly applied under Section 278 of the Indian Succession Act (the Act) for grant of Letters of Administration of the Will of the testator. That petition was contested by the Padmini @ Cherichi, one of the daughters of the testator's second wife. Thus the proceeding became contentious and was registered as a suit being O.S. 10 of 1988 in the District Court, Thrichur.

    The District Judge granted the letters of administration in respect of all the items of property in the Will. An appeal was taken to the High Court whereupon by the impugned judgment the High Court upheld the genuineness of the Will but modified the grant of letters of administration only to items 1 to 3. The High Court declined to grant the letters of administration in respect of items 4 to 7 and the reasoning given by the High Court inter alia was that on the date of the Will i.e. 8.5.67 the testator's title to half of the property, namely over item Nos. 4 to 7 was not perfected. It was perfected only on the registration of sale deed, which is after the execution of the Will, even though the sale deed was executed on 2.5.1967. On further appeal in Supreme court, the court held as under:

    Allowing the appeal of the Appellant and reversing the decision of the High court and by affirming the view taken by the District Court, the Hon’ble Supreme Court held that admittedly, the parties were Christians and were governed by the Indian Succession Act. Along with the application for additional grounds a translated copy of the Will was also filed.

    The Supreme Court referred to section 90 of the Indian Succession Act, which reads as under:

    "90. Words describing subject refer to property answering description at testator's death. - The description contained in a Will of property, the subject of gift, shall, unless a contrary intention appears by the Will, be deemed to refer to and comprise the property answering that description at the death of the testator."

    The Supreme Court held that on a plain reading of the section, the meaning was clear. It was, that in the absence of a contrary intention in the Will, the description of the properties in the Will was deemed to refer to and include the property answering that description at the death of the testator.

    The Supreme Court further held that the High Court did not properly appreciate the purport of Section 90. In the context of the Will when it is common ground that the Will does not contain any contrary intention in respect of the bequest of items 4 to 7 of the properties.

    Further the Supreme Court held that on general principles a Will speaks only from the date of the death of the testator. The Court also held that assuming but not admitting that the testator had not acquired title in respect of half of the property, namely, items 4 to 7 of the property was bequeathed by him in the Will on 8.5.1967, but the sale deed having been registered on 8.5.1967, the title reverts back to the date of execution of the sale deed on 2.5.67 under Section 47 of the Registration Act and the testator died on 20.7.71. Therefore, much before his death, the testator has acquired full title over items 4 to 7 of the property. Therefore, the High Court was in clear error in not appreciating the effect of Section 90 on the interpretation of the Will.

40. Once an absolute right is vested in the first devisee, the testator cannot change the line of succession of the first devisee by further bequeathing very same property in favour of the second set of persons.

    Sadaram Suryanarayana and Anr Vs. Kalla Surya Kantham and Anr. [(2010) 13 SCC 147

    The appellants were the sons of late Smt. Sadaram Appalanarasamma while the respondents were her daughter and son-in-law. The property in dispute consisted of four eastern portions (two on the ground floor and two on the first floor) bearing door Nos. 44-23-35/7, 44-23-35/6, 44-23-35/1 and 44-23-35 situated at Railway New Colony, Visakhapatnam was originally owned by late Smt. Kalla Jaggayyamma, who passed away on 5^th July, 1981 leaving behind four sons besides two daughters named: Smt. Sadaram Appalanarasamma and Smt. Sadaram Ramanamma. It was not in dispute that in terms of a Will dated 4^th September, 1976 executed by the deceased Smt. Kalla Jaggayyamma, the property mentioned at item 2 in para 6 of will was bequeathed in favour of her two daughters mentioned above with a stipulation that the same shall after their death would devolve upon their female offsprings. Smt. Sadaram Appalanarasamma mother of the first plaintiff and defendants 1 to 6 (Sadaram Surayanarayana, Sadaram Eswararao, Sadaram Devanand, Sadaram Ramana, Sadaram Satyanarayana and Sadaram Ramu) died intestate on 11^th January, 1990. The case of the plaintiffs was that defendants 1 to 6 i.e. sons of late Appalanarasamma took possession of suit property comprising item No.2 of the Will executed by Smt. Kalla Jaggayyamma. The plaintiffs respondents, therefore, filed OS No.32/91 in which they sought a decree for declaration of title over the suit property and for recovery of possession thereof apart from other reliefs.

    The Trial Court framed four issues, allowed the parties to adduce evidence in support of their respective cases, but eventually dismissed the suit. The Trial Court held that the execution of the Will by Smt. Kalla Jaggayyamma had been proved and that according to the said wills the property would devolve absolutely upon the legatee Smt. Sadaram Appalanarasamma. The plaintiffs’ claim to the property was based on the stipulation that upon the death of Sadaram Appalanarasamma , the property would devolve upon her female offsprings was thus negatived. Aggrieved, the plaintiffs appealed to the High Court of Andhra Pradesh who has by the impugned judgment, reversed the view taken by the Trial Court and decreed the suit.

    The English rendition of Para 6 of the will executed by Smt. Kalla Jaggayyamma was as under:

    “6. 2^nd item Tiled house situated in New colony out of which Eastern wing 2 room shall devolves to my 2^nd daughter Chandaram appalanarasamma and the Western wing rooms shall devolve upon my elder daughter Chandram Ramanamma with absolute rights of Sale, Gift, Mortgage etc. and this will come into force after my demise. After demise of my daughters the retained and remaining property shall devolve upon their female children only.”

    On further appeal the Supreme Court allowed the appeal of the appellant and reversed the decision of the High Court.

    The Supreme Court held that it was evident after reading the clause 6 of the will that the same makes an unequivocal and absolute bequest in favour of daughters of Testatrix. The use of the words like “absolute rights of sale, gift, mortgage etc.” employed by the Testatrix make the intention of the Testatrix abundantly clear. The Hon’ble court held that the intention of the Testatrix to make an absolute bequest in favour of her daughters was unequivocal. Secondly, the expression “after demise of my daughters the retained and remaining properties shall devolve on their females children only” did not amount to a bequest contrary to the one made earlier in favour of the daughters. All that the Testatrix intended to achieve by the latter part of clause 6 was the devolution upon the female offsprings all such property as remained available in the hands of the legatees at the time of the demise. There was no devolution of any such property upon the female offsprings in terms of the said clause if the legatees decided to sell or gift the property bequeathed to them as indeed they had every right to do under the terms of the bequest. There was no real conflict between the absolute bequest which the first part of clause 6 of the will makes and the second part of the said clause which deals with devolution of what and if at all anything that remains in the hands of the legatees. The two parts of clause 6 operate in different spheres, namely, one vesting absolute title upon the legatees with rights to sell, gift, mortgage etc. and the other regulating devolution of what may escape such sale, gift or transfer by them. The court further held that latter part was redundant by reason of the fact that the same was repugnant to the clear intention of the Testatrix in making an absolute bequest in favour of her daughters. It was redundant also because the legatees exercised their rights of absolute ownership and sale thereby leaving nothing that could fall to the lot of the next generation females or otherwise. The stipulation made in the second part of clause 6 did not in the least affect the legatees being the absolute owners of the property bequeathed to them. The corollary was that upon their demise, the estate owned by them would devolve by the ordinary law of succession on their heirs and not in terms of the Will executed by the Testatrix.

41. Where sons were given their occupancy rights and grandsons were made the ultimate beneficiaries, it was held that only after death of all sons, the grandsons would be entitled to joint/separate possession. Therefore the ultimate beneficiary would come in to picture only upon the cessation of occupancy rights of the sons.

    Dilip D. Chowdhari and another V. Maharashtra Executor Trustee & Anr. [(2010) 6 SCC 633]

    In this case the deceased, Shri Dattatraya Raghunath Chowdhari, the testator was the owner of the suit property having purchased the same under a registered sale deed. At that point of time, it had only a ground and two floors. The building also had two garages on the ground floor. The possession of the vacant second floor was given to the purchaser. The testator Shri. Dattatraya constructed a third floor as a single unit with one common entrance, hall, toilet block, two bedrooms and a separate master bedroom with a toilet block attached to it.

    The testator had four sons-Suryakant, Ashok, Dilip (the appellant) and Bapu. In addition to that, the testator had one married daughter. Ashok got married in 1968. The appellant got married on 29-1-1974. Bapu remained bachelor. On the ground floor there were two tenants.On the second floor there were two independent flats given out of Suryakant and his wife and Ashok and his wife respectively. The third floor laws occupied by the deceased testator alongwith his wife Smt. Mainabai and the appellant. Bapu, was given a separate room.

    Due to service exigencies, the appellant was required to shift to RBI official quarters at Byculla with his family. Meanwhile, a second son, Kaustubh was born to the appellant on 23-11-1981. After three months, the appellant’s family came back and stayed at the suit property on the third floor. The testator executed his last will, by which the right of residence was given to his wife and the right of occupation was given to his four sons. Suryakant and Ashok were given an independent flat each on the second floor. One room on the third floor was given to Bapu. The rest of the third floor was kept for occupation of the testator, his wife and the appellant.

    The will was duly probated by the executors, namely Maharashtra Executors and Trustees Company Limited, a company formed under the Companies Act, 1956, having its registered office at Lok Mangal, 1501, Shavaji Nagar, Pune having its branch office at Bombay, (Respondent 1). According to the contents of the will, the wife of the testator had right of residence in the house till her lifetime. In addition to that she was entitled to 30% of the income of the movable property of the testator. The remaining 70% income of the movable property of the appellant was to be divided and paid by the executors to his four sons and one daughter. The share of Bapu was given to the trust created for his benefit. The ultimate beneficiaries of the suit property were the four grandchildren of the testator, namely, Rajesh, Arjun, Vikram and Ojas. They were entitled to this right only when Ojas attains 21 years of age. During that period, they were entitled to only the income of the suit property. The overall property was under the control of the Trust Company.

    Shri Dattatray Raghunath Chowdhare, the testator died on 23-2-1982. On 30-6-1997, Ojas, the appellant’s son, was born on 30-6-1976 and he attained 21 years of age and, accordingly, the trusteeship came to an end. As there was a dispute between the respondents and the appellants regarding the occupation of the suit building, the executors of the will filed Originating Summons No.871 of 1999 under Rule 238 of the High Court (Original Side) Rules. The appellant was arrayed as Defendant 5 in the said originating summons. The widow of the testator was arrayed as Defendant 1, whereas Suryakant, Bapu and Ashok were arrayed as Defendants 2, 3 and 4 respectively. The grand children of the testator, namely Rajesh, Arjun, Vikram and Ojas were arrayed as Defendants 6, 7, 8 and 9 respectively. The daughter of the deceased, Kumudini was arrayed as defendant 10. The executors sought interpretation of certain covenants of the aforesaid will and the determination of certain questions that had arisen in the administration of the will.

    Disputes according to the plaintiff arose on the attainment of 21 years of age by Ojas, whereby the grandchildren were entitled to partition and division of the suit building. The plaintiff also contended that certain correspondence had ensued between Defendants 1, 3 and 5 on the one hand and the plaintiff on the other as Defendants 1,3 and 5 on the one hand and the plaintiff on the other as Defendants 1, 3 and 5 have been interpreting the clauses in the said will in the manner suited to each one of them. In the High Court, both the single judge and the division Bench restricted the appellant’s right to use and occupy the third floor of the suit building to only one right side last room with a right to jointly use the bathroom and the toilet with the widow of the testator.

    Dismissing the appeals of the appellant and reversing the decision of the Bombay High court, the Hon’ble Supreme Court held that the testator, Shri Dattatraya executed his last will, by which the right of residence was given to his wife and the right of occupation was given to his four sons by giving one independent flat each on the second floor to Shri Suryakant and one flat to Shri Ashok. The rest of the third floor except one room, which was given to Bapu, was kept for occupation for himself, his wife and the appellant and his family. The will specifically provided that the ultimate beneficiaries of the entire building were the four grandsons, namely, Rajesh, Arun, Vikram and Ojas. Since the right of occupation was given to all the four sons, during their lifetime the grandsons were not entitled to the joint or separate possession and only after the death of all the four sons, the grandsons was entitled to joint/separate possession of the suit property.

    After the death of the testator, there was a dispute between the appellant and other respondents regarding occupation of the third floor of the suit building. It is this dispute, which required the executors of the will to file Originating Summons No. 871 of 1999 before the Bombay High Court, inter alia, seeking interpretation of certain covenants of the will and also determination of certain questions that had arisen therein in the administration of the will. In the High Court, both the learned Single Judge and the Division Bench adopted a highly hypertechnical approach and gave a very narrow interpretation to the contents of the will and had restricted the appellant’s right to use and occupy the third floor of the suit building to only one right hand side last room with a right to jointly use the bathroom and the toiled with the widow of the testator.

    The Supreme Court further held that in order to do complete justice to the parties, who are none other than the testator’s own sons, while setting aside the impugned judgment, the Hon’ble Court held that the first appellant has the right of occupation of the third floor of the suit building alongwith the wife of the testator.

42. While interpreting an instrument to find out whether it is of a testamentary character, it will take effect after the lifetime of the executants or it is an instrument creating a vested interest in praesenti in favour of a person, the court has to very carefully examine the document as a whole, look into the substance thereof, the treatment of the subject by the settlor/executant, the intention appearing both by the express language employed in the instrument and by necessary implication and the prohibition, if any, contained against revocation thereof. The form or nomenclature of the instrument is not conclusive and the court is required to look into the substance thereof.

    P.K. Mohan Ram vs. B.N. Ananthachary and Others [(2010) 4 SCC 161]

    One K, owner of the suit property executed a settlement deed in favour of the appellant, Respondents 1 and 2 and thirteen others declaring that from the date of execution of the deed, K and the beneficiaries shall enjoy the suit property without creating any encumbrance or making any alienation. Reserving K’s right to income from the property during his life, the deed stipulated that after his death the property should be sold by all the said beneficiaries or those of them surviving at that time. That out of the sale proceeds; a religious trust should be crated by paying a certain amount to the temple specified. Stating the purpose of the trust, the deed added that the honours of the temple should be bestowed upon Beneficiaries 1 and 2 and, after them, upon their heirs. That from the surplus amount, the beneficiaries should purchase an immovable property of the value specified in the name of a charitable feeding institution. That is case of delay in purchasing of the property; the beneficiaries would be free to advance the money to earn interest for using the same for feeding. That the remainder amount should be divided among the sixteen beneficiaries in the manner specified. That all the said beneficiaries should meet the expenses of last rites of K from their personal funds. Specifying the amount of K’s debt, the deed required the said beneficiaries to discharge the undercharged portion thereof, if any. The settler finally recorded that he shall have no right to cancel the “settlement deed” or alter the terms thereof.

    The question before the Supreme Court was: whether the deed executed by K was a “settlement deed” and was therefore irrevocable and denuded K of any right to execute a subsequent will in favour of Respondents 1 and 2 as held by the trial court and first appellate court or it was merely a will as held by the High Court in the second appeal?

    The appellant contended that in view of Section 19 of the Transfer of Property Act, 1882, the transfer of the property rights in praesenti coupled with an unequivocal inhibition against cancellation/amendment thereof clearly showed that the document in question was a “settlement deed” and not a “will”.

    Contradicting the appellant, the respondents contended that the rights created in favour of the beneficiaries were contingent and were to become operative after the death of the settlor and, therefore, the said document was a will.

    Accepting the appellant’s contentions and allowing the appeal, the Supreme Court held that the plain language of Sections 19 and 21 of the Transfer of Property Act, 1882 makes it clear that an interest can be said to be a vested interest where there is immediate right of present enjoyment or a present right for future enjoyment. An interest can be said to be contingent if the right of enjoyment is made dependent upon some event, which may or may not happen. On the happening of the event, a contingent interest becomes a vested interest. Although, no straitjacket formula is evolved for construction of settlement deeds and wills, the consistent view of the Supreme Court and various High Courts is that while interpreting an instrument to find out whether it is of a testamentary character, which will take effect after the lifetime of the executant or it is an instrument creating a vested interest in praesenti in favour of a person, the court has to very carefully examine the document as a whole, look into the substance thereof, the treatment of the subject by the settlor/executant, the intention appearing both by the express language employed in the instrument and by necessary implication and the prohibition, if any, contained against revocation thereof. The form or nomenclature of the instrument is not conclusive and the court is required to look into the substance thereof.

    The Hon’ble Supreme Court further held that on a careful reading of the document in question showed that in the title itself the document has been described as a settlement deed. By executing that document, K expressed his intention, in no uncertain terms, to settle the property in favour of sixteen persons who were none else than his own relatives and declared that, “from this day onwards I and you shall enjoy the land and house without creating any encumbrance or making any alienation whatsoever”. That was an unequivocal creation of right in favour of sixteen persons in praesenti. Though, the beneficiaries were to become absolute owners of their respective shares after the death of the settlor, the language of the document clearly showed that all of them were to enjoy the property along with the settlor during his lifetime and after his death, each of the beneficiaries was to get a specified share. In the concluding portion, the settlor made it clear that he will have no right to cancel the settlement deed for any reason whatsoever or to alter the terms thereof. The court further held that mere fact that beneficiaries 1 and 2 and after them their heirs were to receive honours at the temple or that shares were to be divided after disposal of the property cannot lead to an inference that the document in question was a “will”. If the same is read as a whole, it becomes clear that it was a “settlement deed”.

43. Right of Hindu woman for possession of her husband’s property cannot be taken after her husband’ death. Even the constructive possession of a female Hindu is sufficient for the application of section 14(1) of the Hindu Succession Act.

    Sri Ramakrishna Mutt Rep. by Manager Vs. M. Maheswaran and ors. [(2011) 1 SCC 68]

    One Kannabiran Pillai had two wives. The name of his second wife was Kumudammal with whom he had got married before the advent of the Hindu Marriage Act, 1955. As such, she was a legitimate wife. She had no children. The respondents herein were the children, or as the case may be, the legal heirs of the children of the first wife of Kannabiran Pillai. Kannabiran died on 31.12.1956, while Kumudammal died on 18.3.1989. During his lifetime, Kannabiran had executed settlement deeds being Exhibits A-2, A-3 and A-4, wherein, he had created a life interest in favour of Kumudammal. The initial settlement deed was dated 20.10.1938. He created a supplementary deed on 4.3.1939 and a rectification deed dated 23.7.1943. Kumudammal remained in possession of the properties and enjoyed the same during her lifetime, inasmuch as, it was Kumudammal who used to recover the rents. Thus, she was in constructive possession of the property. In those settlement deeds, it was provided that after the demise of Kumudammal, the property would go in favour of the appellant/plaintiff Sri Ramakrishna Mutt.

    A civil suit, therefore, came to be filed against the respondents herein by the appellant/plaintiff for claiming the property and it was pleaded that since Kumudammal had only the life interest, after her death, the property would revert back to the appellant/plaintiff Sri Ramakrishna Mutt in terms of the settlement deeds.

    This claim was contested by the defendants including the tenants and the children from the first wife of Kannabiran on the ground that the property could not have gone back as per the settlement deeds, as Kumudammal had become full owner of the property on account of Section 14(1) of The Hindu Succession Act, 1956.

    Dismissing the appeal and affirming the findings of the High Court, the Supreme Court held as under:

    “These three deeds are the documents relied upon by the appellant/ plaintiff. The appellant/plaintiff, therefore, cannot travel away from these three settlement deeds. The position thus becomes clear that Kumudammal was given the possession of this property and was also given the right to enjoy the property by collecting rents of the same right from 4.3.1939 even during the lifetime of her husband Kannabiran Pillai who was only managing the properties on her behalf. Thus, these documents clearly proved the possession of Kumudammal right from 4.3.1939 and, therefore, the subsequent death of her husband Kannabiran on 31.12.1956 was of no consequence. Kumudammal was in possession of the property in pursuance of her pre-existing right of maintenance on 17.6.1956, the date on which the Hindu Succession Act came into force. That would clearly clinch the issue in favour of the original defendants, whose case is that thereby, Kumudammal's right of life interest ripened into full ownership.”

    It was further held by the Apex Court that it was clear in this case that Kumudammal was in such possession of the property on the date when the Hindu Succession Act came into force. Even the constructive possession of a female Hindu was held to be sufficient for the application of Section 14(1) of the Hindu Succession Act.