A question of law needs no proof. It is applied to a fact and if the fact fits in law, it is declared proved. The legal principle as has been enunciated with regard to execution of document of Will in respect of its due execution, vis-à-vis provisions as contained under Section 63 of the Indian Succession Act and its proof under Section 68 of the Indian Evidence Act, it is to be seen as to the fact in respect of suspicious circumstances surrounding the Will has been proved in the negative to dispel all the doubts regarding execution of such document or not. A mere fulfillment of statutory requirement of proof of the Will, will not automatically result in ruling out suspicious circumstance surrounding the Will. In Lalitaben Jayantilal Popat v. Pragnaben Jamnadas Kataria, AIR 2009 SC 1389, it was held as under: “Whether a Will is surrounded by suspicious circumstances or not is essentially a question of fact. It is trite law that execution of a Will must be held to have been proved not only when the statutory requirements for proving the Will are satisfied but the Will is also found to be ordinarily free from suspicious circumstances. When such evidence are brought on record, the Court may take aid of the presumptive evidence also.” Shyam Sundar v. Kanti Prasad, 2018 (127) ALR 377.
In Nagulapati Lakshmamma v. Mupparaju Subbaiah, (1998) 5 SCC 285, after referring to Section 63 of the Indian Succession Act, 1925 it was held as under: “The section makes a vital distinction between the testator and the attestors in the matter of signing the Will. The testator may sign or affix his mark himself or direct some other person to sign in his presence. The reason for such a provision is quite obvious. Many a time, people who are desirous of making testamentary dispositions may be physically incapacitated from signing their names or affixing their marks on account of illness or other causes. Such persons should not be deprived of an opportunity of making a Will. Such persons can instead of signing or affixing their marks themselves can direct some other person to sign in their presence. But in the case of attestors such an enabling provision is absent. The section expressly states that each of the witnesses shall sign the Will in the presence of the testator. The privilege or power of delegation, if we may say so, is not available to the attesting witnesses under the section. When the same section makes a distinction expressly between a testator and an attestor it is not possible to accept the contention that an attestor can also direct some other person to sign or make a mark on his behalf. If a witness to the execution of the Will chooses to do so, he is not an attesting witness as there is no attestation by him as contemplated by Section 63(c) of the Indian Succession Act. Consequently, he will not be an attesting witness for the purpose of Section 68 of the Indian Evidence Act. Laxmi Kant v. Smt. Ganga Devi, 2018 (5) AWC 5141.
In Mauleshwar Mani v. Jagdish Prasad, (2002) 2 SCC 468 it was held as under:
“From the decisions referred to above, the legal principle that emerges, inter alia, are:
(1) where under a will, a testator has bequeathed his absolute interest in the property in favour of his wife, any subsequent bequest which is repugnant to the first bequeath would be invalid; and
(2) where a testator has given a restricted or limited right in his property to his widow, it is open to the testator to bequeath the property after the death of his wife in the same will. In view of the aforesaid principles that once the testator has given an absolute right and interest in his entire property to a devisee it is not open to the testator to further bequeath the same property in favour of the second set of persons in the same will, a testator cannot create successive legatees in his will. The object behind is that once an absolute right is vested in the first devisee the testator cannot change the line of succession of the first devisee. Where a testator having conferred an absolute right on anyone, the subsequent bequest for the same property in favour of other persons would be repugnant to the first bequest in the will and has to be held invalid.” M.S. Bhavani v. M.S. Raghu Nandan, Civil Appeal Nos. 1798-1799 of 2014 (SC)
A will is the testament of the testator. It is a posthumous disposition of the estate of the testator directing the distribution of his estate upon his death. It is not a transfer inter vivos. The two essential characteristics of a will are that it is intended to come into effect only after the death of the testator and is revocable at any time during the lifetime of the testator. It is said that so long as the testator is alive, a will is not worth the paper on which it is written, as the testator can at any time revoke it. If the testator, who is not married, marries after making the will, by operation of law, the will stands revoked. Registration of a will does not make it any more effective. Shiv Kumar v. Union of India, (2019) 10 SCC 229.
The law relating to a
Joint Hindu Family governed by the Mitakshara law has undergone unprecedented
changes. The said changes have been brought forward to address the growing need
to merit equal treatment to the nearest female relatives, namely, daughters of
a coparcener. The section stipulates that a daughter would be a coparcener from
her birth, and would have the same rights and liabilities as that of a son. The
daughter would hold property to which she is entitled as a coparcenary
property, which would be construed as property being capable of being disposed
of by her either by a will or any other testamentary disposition. These changes
have been sought to be made on the touchstone of equality, thus seeking to
remove the perceived disability and prejudice to which a daughter was
subjected. The fundamental changes brought forward about in the Hindu
Succession Act, 1956 by amending it in 2005, are perhaps a realisation of the
immortal words of Roscoe Pound as appearing in his celebrated treaties, The
Ideal Element in Law, that “the law must be stable and yet it cannot stand
still. Hence all thinking about law has struggled to reconcile the conflicting
demands of the need of stability and the need of change”.
Section 6 of the
Hindu Succession Act, as amended, stipulates that on and from the
commencement of the amended Act, 2005, the daughter of a coparcener shall by
birth become a coparcener in her own right in the same manner
as the son. It is apparent that the status conferred upon sons under the
old section and the old Hindu Law was to treat them as coparceners since
birth. The amended provision now statutorily recognises the rights of coparceners
of daughters as well since birth. The section uses the words in
the same manner as the son. It should therefore be apparent that both the
sons and the daughters of a coparcener have been conferred the right of
becoming coparceners by birth. It is the very factum of
birth in a coparcenary that creates the coparcenary, therefore the
sons and daughters of a coparcener become coparceners by virtue of
birth. Devolution of coparcenary property is the later stage of and a
consequence of death of a coparcener. The first stage of a coparcenary is
obviously its creation and is well recognised. One of the incidents of
coparcenary is the right of a coparcener to seek a severance of status. Hence,
the rights of coparceners emanate and flow from birth (now including daughters)
as is evident from sub-sections (1)(a) and (b). Danamma v. Amar, (2018) 3 SCC 343
Will is an instrument whereunder a person makes a disposition of his properties to take effect after his death and which is in its own nature ambulatory and revocable during his lifetime. It has three essentials:
(1) It must be a legal declaration of the testator’s intention;
(2) That declaration must be with respect to his property; and
(3) The desire of the testator that the said declaration should be effectuated after his death.
The essential quality of a testamentary disposition is ambulatoriness of revocability during the executants lifetime. Such a document is dependent upon executants death for its vigour and effect.
Section 2(h) of the Indian Succession Act says “Will” means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death.
Gift/Settlement is the transfer of existing property made voluntarily and without consideration by one person called the donor to another called the done. Gift takes effect by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. Section 122 of the Transfer of Property Act defines the “gift” as a voluntary transfer of property in consideration of the natural love and affection to a living person. Mathai Samuel v. Eapen Eapen (Dead) by LRs and others, 2013 (118) RD 606.