A gift deed is required to be compulsorily attested in terms of Section 123 of the Transfer of Property Act, 1882. Similar is the provision in respect of execution of a Will which is required to be attested in terms of Section 63 of the Succession Act, 1925. Section 68 of the Evidence Act makes it mandatory to examine one of the attesting witnesses for the purpose of proving of the execution of the Will but such limitation is not applicable in respect of proof of execution of any document which has been registered in accordance with the provisions of the Registration Act, 1908, unless the execution is specifically denied. Govindbhai Chhotabhai Patel v. Patel Ramanbhai Mathurbhai, (2020) 16 SCC 255.
Tag Archives: Hindu Succession Act
A will may contain several clauses and the latter clause may be inconsistent with the earlier clause. In such a situation, the last intention of the testator is given effect to and it is on this basis that the latter clause is held to prevail over the earlier clause. This is regulated by the well known maxim ‘cum duo inter se pugnantia reperiuntur in testamento ultimum ratum est’ which means that if in a will there are two inconsistent provisions, the latter shall prevail over the earlier. (see Hammond, In re, Hammond v. Treharne, (1938) ALL ER 308). It may, however, be pointed out that this rule of interpretation can be invoked only if different clauses cannot be reconciled. (See: Rameshwar Baksh Singh v. Balraj Kaur, AIR 1935 PC 187). M. S. Bhavani v. M.S. Raghu Nandan, (2020) 5 SCC 361.
Observing that in a suit for declaration of title, the respondent-plaintiffs are to succeed only on the strength of their own title irrespective of whether the appellants-defendants have proved their case or not, in Union of India v. Vasavi Coop. Housing Society Ltd., (2014) 2 SCC 269, it was held as under: “It is trite law that, in a suit for declaration of title, the burden always lies on the plaintiff to make out and establish a clear case for granting such a declaration and the weakness, if any, of the case set up by the defendants would not be a ground to grant relief to the plaintiff.” Jagdish Prasad Patel v. Shivnath, (2019) 6 SCC 82.
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)
Gift means to transfer certain existing movable or immovable property voluntarily and without consideration by one person called the donor to another called the donee and accepted by or on behalf of the donee as held by the Hon’ble Supreme Court in Naramadaben Maganlal Thakker v. Pranjivandas Maganlal Thakker, (1997) 2 SCC 255. As further held by the Hon’ble Court in Naramadaben Maganlal Thakker, (1997) 2 SCC 255:
“It would thus be clear that the execution of a registered gift deed, acceptance of the gift and delivery of the property together make the gift complete. Thereafter, the donor is divested of his title and the donee becomes absolute owner of the property.”
A conditional gift with no recital of acceptance and no evidence in proof of acceptance, where possession remains with the donor as long as he is alive, does not become complete during lifetime of the donor. When a gift is incomplete and title remains with the donor, the deed of gift might be cancelled.
In Renikuntla Rajamma v. K. Sarwanamma, (2014) 9 SCC 445, a Hindu woman executed a registered gift deed of immovable property reserving to herself the right to retain possession and to receive rent of the property during her lifetime. The gift was accepted by the donee but later revoked.
In Renikuntla Rajamma v. K. Sarwanamma, (2014) 9 SCC 445, it was held that the fact that the donor had reserved the right to enjoy the property during her lifetime did not affect the validity of the deed. The Court held that a gift made by registered instrument duly executed by or on behalf of the donor and attested by at least two witnesses is valid, if the same is accepted by or on behalf of the donee. Such acceptance must, however, be made during the lifetime of the donor and while he is still capable of making an acceptance. S. Sarojini Amma v. Velayudhan Pillai Sreekumar, (2019) 11 SCC 391.