50. SUCCESSION

    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.

    1.3 Relevance of domicile/location of a property
    
    For purposes of determining applicability of laws in case of a succession, it is necessary to determine the domicile of the deceased. In case of an immovable property located in India, the laws of succession prevailing in India would determine the successors of such property. In case of movable properties, the laws governing the country of domicile of the deceased would determine the successors of the property. Domicile is relevant for movable properties while location is relevant for immovable property.

    1.4 Intestate succession as per personal laws

    1.4.1 Hindus/Jains/Buddhists/Sikhs
    
    Hindu Succession Act, 1956, applies to persons following the above faiths. A distinction is made between a male and a female for the purposes of deciding the manner of distribution of their estates. Heirs are defined as class I, class II, Agnates and Cognates for a male Hindu while for female they are provided in S. 15 and S. 16 of the Act.

    S. 21 of the Special Marriage Act, 1954 provides that any person whose marriage is solemnised under the Special Marriage Act, 1954, succession of property of such person shall be regulated by the provisions of the IS Act. However, the Marriage Laws (Amendment) Act, 1976, inserted S. 21A in the Special Marriage Act which provides that where the marriage is solemnised under the Special Marriage Act of any person who professes the Hindu, Buddhist, Sikh or Jain religion, with a person who professes the Hindu, Buddhist, Sikh or Jain religion, S. 21 of the Special Marriage Act shall not apply. In conclusion, even in case of the marriage of a Hindu, Buddhist, Sikh or Jain solemnised with another Hindu, Buddhist, Sikh or Jain under the Special Marriage Act, such person's succession will be governed by the Hindu Succession Act, and not by the IS Act.

    Male : His property devolves upon his widow, children (including heirs of a predeceased child through such child) and mother in equal shares – each taking one share. In case where none of them are present, the property will pass to his father if he is alive and failing which to his brother, sister and other relatives specified in class II.

    Female : Her property devolves upon her husband and children (including children of a predeceased child through such child) in equal shares — each taking one share. In case where none of them are present, property will pass to heirs of her husband and failing them to her mother and father, so however, a distinction is made in such a case between the properties received from the parents of the female and those which are received from the husband and the father-in-law. The latter property will pass to heirs of her husband while the former will pass upon the heirs of her father.

    1.4.2 Mohammedans – Property of a Mohammedan devolves on his or her successors as per his or her personal law. However, estate of persons married under the Special Marriages Act, 1954, shall devolve as per the provisions of the Indian Succession Act.

    1.4.3 Others – Properties of persons following any faith other than the Hindus, Jains, Sikhs, Buddhists and Mohammedans and Parsis shall devolve as per the provisions of the Indian Succession Act.

51. WILL

    2.1 What is it ?

    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);
       
       Provided that marriage shall not revoke any such Will or codicil.

    2.2 Certain terms

    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 and forms part of it.

    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 and where letter of administration or probate is not compulsory.

    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.

    a) Name, age, address, religion	b) Revocation of earlier Will
    c) List of relatives	d) Appointment of executor
    e) Discharge of obligations	f) Legacies and bequests to persons
    g) Residual estate	h) Testimonium
    i) Execution	j) Witness
    k) 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 ₹ 75,000 is payable in the state of Maharashtra for obtaining a probate. View taken that there is exemption in the said State where the Will is to be administered by an executrix (a lady executor) is a grey area. 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)]

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

    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 (2001 AIR 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 farfetched 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. ₹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. ₹(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. ₹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]

    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. (2006-8)-SCC -581]

    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. Ezilarasan [(2010) 5 SCC 770]

    36. Statement of the attestator of the will that he was scribe of the will without admitting that he could remember the names of the witnesses of the will, in such circumstances the signature of the scribe could not be taken as a proof of attestation. The execution of a will can be held to have been proved only when the statutory requirements for providing the will are satisfied.
        
        Where execution of a will is shrouded by suspicious circumstances, it is necessary for the propounder of will to explain the same. Here registration of will is not by itself sufficient to remove the suspicious.
        
        The basic aim of section 15(2) of the Hindu Succession Act, 1956, is to ensure that inherited property of an issueless female Hindu dying intestate goes back to the source. It was enacted to prevent inherited property falling into the hands of strangers. S.R. Srinivasa and Others v. S. Padmavathamma [(2010) 5 SCC 274]

    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 the Act. Gaddam Ramakrishnareddy & Ors. v. Gaddam Rami Reddy and Anr. [2010) 9 SCC 602]

    38. No will is said to be executed unless it is signed by testator in the presence of the attesting witnesses. Gopal Swaroop v. Krishna Murari Mangal & Ors. [(2010) 12 SCALE 470]

    39. In the absence of 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. v. Cherichi alias Padmini [(2010) 7 SCALE 495]

    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 & Anr. v. Kalla Surya Kantham & Anr. [(2010) 13 SCC 147]

    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 beneficing would come into picture only upon the cessation of occupancy rights of the sons. Dilip D. Chowdhari and Anr. v. Maharashtra Executor and Trustee and Anr. [(2010) 6 SCC 633]

    42. While interpreting an instrument to find out whether it is of a testamentary character, it 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 court is required to look into the substance thereof. P.K. Mohan Ram v. B.N. Ananthachary & Ors. [(2010) 4 SCC 161]

    43. Right of a Hindu woman for possession of her husband’s property cannot arise after her husband’s death. Even the constructive possession of a female Hindu is sufficient for the application of section 14(1) of the Hindu Succession Act. Shri Ramakrishna Mutt Rep. by Manager v. M. Maheshwaran and Ors. [(2011) 1 SCC 68]

    44. The distinction between a repugnant provision and a defeasance provision is sometimes subtle, but the general principle of law seems to be that where the intention of the donor is to maintain the absolute estate conferred on the donee but he simply adds some restrictions in derogation of the incidents of such absolute ownership, such restrictive clauses would be repugnant to the absolute grant and therefore void; but where the grant of an absolute estate is expressly or impliedly made subject to the defeasance on the happening of a contingency and where the effect of such defeasance would not be a violation of any rule of law, the original estate is curtailed and the gift over must be taken to be valid and operative. Siddamurthy Jayarami Reddy (d) by LRS, Appellants v. Godi Jaya Rami Reddy & Anr., Respondents [(2011)-(5)-SCC-65]

    45. The bequest in favour of a female Hindu, if it is a restricted one, shall remain a restricted one under sub-section (2) of section 14 of the Hindu Succession Act as the same is governed by the terms of the Will. Jagan Singh (dead) through LRS, Appellant v. Dhanwanti & Anr., Respondents. [(2012)-SC2-GJX-0040U-SC]

    46. The declaration in section 6 that the daughter of the coparcener shall have same rights and liabilities in the coparcenary property, as she would have been a son, is unambiguous and unequivocal. Thus, on and from September 9, 2005, the daughter is entitled to a share in the ancestral property and is a coparcener as if she had been a son. It was further observed that the right accrued to a daughter in the property of a joint Hindu family governed by the Mitakshara Law, by virtue of the 2005 Amendment Act, is absolute, except in the circumstances provided in the proviso appended to sub-section (1) of section 6. Further, as per sub-section (5) of section 6, this section shall not apply to the partition which has been effected before December 20, 2004. Ganduri Koteshwaramma & Anr., Appellants v. Chakiri Yanadi & Anr., Respondents. [2011-(9)-SCC -788] dated 12-10-2011

    47. The Hon’ble Supreme Court observed that section 14(2) of the Act provides for conversion of life interest into absolute title on commencement of the Act, 1956, however, sub-section (2) carves out an exception to the same as it provides that such right would not be conferred where a property is acquired by a Hindu female by way of gift or under a Will or any other instrument prescribing a restricted estate in that property.
        
        The Hon’ble Supreme Court held that if a Hindu female has been given only a "life interest", through Will or gift or any other document referred to in section 14 of the Act, 1956, the said rights would not stand crystallised into the absolute ownership as interpreting the provisions to the effect that she would acquire absolute ownership/title into the property by virtue of the provisions of section 14(1) of the Act, 1956, the provisions of sections 14(2) and 30 of the Act, 1956 would become otiose. Shivdev Kaur & Ors., Appellants v. R. S. Grewal, Respondent. [Civil Appeal Nos. 5063- 5065 of 2005, decided on March 20, 2013.]

    48. A person, who for the time being is the sole surviving coparcener as in the present case Gulab Singh was, before the birth of the plaintiff, was entitled to dispose of the coparcenery property as if it were his separate property. Gulab Singh, till the birth of plaintiff Rohit Chauhan, was competent to sell, mortgage and deal with the property as his property in the manner he liked. Had he done so before the birth of plaintiff, Rohit Chauhan, he was not competent to object to the alienation made by his father before he was born or begotten. But the moment plaintiff was born, he got a share in the father's property and became a coparcener. Therefore, after the birth of the son the father could have alienated the property only as Karta for legal necessity. Hence, the sale deed and the release deed executed by Gulab Singh to the extent of entire coparcenery property were illegal, null and void. However, in respect of the property which would have fallen in the share of Gulab Singh at the time of execution of sale-deed and release deed, the parties can work out their remedies in appropriate proceeding. Rohit Chauhan, Appellant vs. Surinder Singh & Ors., Respondents [(Civil Appeal No. 5475 of 2013 (SLP (C) No.22388 of 2011, decided on July 15, 2013.)]

    49. Pemmada Prabhakar & Ors., vs. Youngmen's Vysya Association & Ors.Civil Appeal No. 7835 of 2014 (Arising out of SLP (C) No. 24653 of 2012), decided on August 20, 2014.

        “29. It is an undisputed fact that the suit schedule property is self acquired property by late Pemmada Venkateswara Rao as he had purchased the said property vide Sale-Deed Document No. 5174 of 1970 dated 24.11.1970 from his vendors. It is also an undisputed fact that the said property is intestate property. He is survived by his wife, 3 sons and 3 daughters. The said property devolved upon them in view of Section 8 of Chapter 2 of the Hindu Succession Act as the defendants are class I legal heirs in the suit schedule property. Undisputedly, the Agreement of Sale-Ex. A1 is executed only by defendant Nos. 1 and 2. The 3rd son, mother and 3 sisters who have got equal shares in the property have not executed the Agreement of Sale. In view of the matter, the Agreement of Sale executed by defendant Nos. 1 and 2 who have no absolute right to property in question cannot confer any right whatsoever upon the plaintiffs for grant of decree of specific performance of Agreement of Sale in their favour. The said agreement is not enforceable in law in view of Section 17 of the Specific Relief Act in view of right accrued in favour of defendant Nos. 3 to 6 under Section 8 of the Hindu Succession Act. The provisions of Section 17 of the Specific Relief Act in categorical term expressly state that a Contract to sell or let any immovable property cannot be specifically enforced in favour of a vendor or lessor who does not have absolute title and right upon the party.”

    50. Gaiv Dinshaw Irani & Ors.  Vs.  Tehmtan Irani & Ors.Civil Appeal No. 4887 of 2014 (Arising out of SLP (C) No. 22742 of 2005) with Civil Appeal No. 4888 of 2014 (Arising out of SLP (C) No. 22772 of 2005), decided on April 25, 2014.

        As per Section 213 of the Indian Succession Act, 1925, when a Will of a Parsi is not probated then no legatee can claim right by means of the same and such testator is treated to have died interstate. As per Section 52 of the Indian Succession Act, prior to the amendment of 1991, a Parsi female interstate's property shall be divided equally amongst her children and the statute does not distinguish between step-children and children.

    51. Leela Rajagopal & Ors.  Vs.  Kamala Menon Cocharan & Ors.Civil Appeal No. 9282 of 2010, 9286 of 2010, 7004 of 2012, decided on September 8, 2014.

        “10. A Will may have certain features and may have been executed in certain circumstances which may appear to be somewhat unnatural. Such unusual features appearing in a Will or the unnatural circumstances surrounding its execution will definitely justify aclosescrutiny before the same can be accepted. It is the overall assessment of the Court on the basis of such scrutiny; the cumulative effect of the unusual features and circumstances which would weigh with the Court in the determination required to be made by it. The judicial verdict, in the last resort, will be on the basis of a consideration of all the unusual features and suspicious circumstances put together and not on the impact of any single feature that may be found in a Will or a singular circumstance that may appar from the process leading to its execution or registration. This, is the essence of the repeated pronouncements made by this Court on the subject including the decisions referred to and relied upon before us.”

    2.18 Section 58 of IS Act provides that the testamentary succession amongst the Hindus is to be governed by the general Hindu law modified by what has been provided for in section 57 and Schedule III of the Indian Succession Act.

Comparative Chart
 

Pemmada Prabhakar & Ors., vs. Youngmen's Vysya Association & Ors.

Civil Appeal No. 7835 of 2014 (Arising out of SLP (C) No. 24653 of 2012), decided on August 20, 2014.

“29. It is an undisputed fact that the suit schedule property is self acquired property by late Pemmada Venkateswara Rao as he had purchased the said property vide Sale-Deed Document No. 5174 of 1970 dated 24.11.1970 from his vendors. It is also an undisputed fact that the said property is intestate property. He is survived by his wife, 3 sons and 3 daughters. The said property devolved upon them in view of Section 8 of Chapter 2 of the Hindu Succession Act as the defendants are class I legal heirs in the suit schedule property. Undisputedly, the Agreement of Sale-Ex. A1 is executed only by defendant Nos. 1 and 2. The 3rd son, mother and 3 sisters who have got equal shares in the property have not executed the Agreement of Sale. In view of the matter, the Agreement of Sale executed by defendant Nos. 1 and 2 who have no absolute right to property in question cannot confer any right whatsoever upon the plaintiffs for grant of decree of specific performance of Agreement of Sale in their favour. The said agreement is not enforceable in law in view of Section 17 of the Specific Relief Act in view of right accrued in favour of defendant Nos. 3 to 6 under Section 8 of the Hindu Succession Act. The provisions of Section 17 of the Specific Relief Act in categorical term expressly state that a Contract to sell or let any immovable property cannot be specifically enforced in favour of a vendor or lessor who does not have absolute title and right upon the party.”

Gaiv Dinshaw Irani & Ors. Vs. Tehmtan Irani & Ors.

Civil Appeal No. 4887 of 2014 (Arising out of SLP (C) No. 22742 of 2005) with Civil Appeal No. 4888 of 2014 (Arising out of SLP (C) No. 22772 of 2005), decided on April 25, 2014.

As per Section 213 of the Indian Succession Act, 1925, when a Will of a Parsi is not probated then no legatee can claim right by means of the same and such testator is treated to have died interstate. As per Section 52 of the Indian Succession Act, prior to the amendment of 1991, a Parsi female interstate's property shall be divided equally amongst her children and the statute does not distinguish between step-children and children.

Leela Rajagopal & Ors. Vs. Kamala Menon Cocharan & Ors.

Civil Appeal No. 9282 of 2010, 9286 of 2010, 7004 of 2012, decided on September 8, 2014.

“10. A Will may have certain features and may have been executed in certain circumstances which may appear to be somewhat unnatural. Such unusual features appearing in a Will or the unnatural circumstances surrounding its execution will definitely justify a close scrutiny before the same can be accepted. It is the overall assessment of the Court on the basis of such scrutiny; the cumulative effect of the unusual features and circumstances which would weigh with the Court in the determination required to be made by it. The judicial verdict, in the last resort, will be on the basis of a consideration of all the unusual features and suspicious circumstances put together and not on the impact of any single feature that may be found in a Will or a singular circumstance that may appear from the process leading to its execution or registration. This, is the essence of the repeated pronouncements made by this Court on the subject including the decisions referred to and relied upon before us.”