Tag Archives: Testator

Children, Issue and Heirs

The expressions “children”, “issue” and “heirs” would ordinarily be not synonymous but sometimes they may carry the same meaning. All the aforementioned terms have to be given their appropriate meanings.

In P. Ramanatha Aiyar’s Advanced Law Lexicon at p. 2111, it is stated:

“There is doubtless a technical difference in the meaning of the two words ‘heirs’ and ‘children’, and yet in common speech they are often used as synonym. The technical distinction between the terms is not to be resorted to in the construction of a will, except in nicely balanced cases.

‘When the general term “heirs” is used in a will, it will be construed to mean “child” or “children”, if the context shows that such was the intent of the testator.’

Where the words ‘children’ and ‘heirs’ are used in the same instrument in speaking of the same persons, the word ‘heirs’ will be construed to mean ‘children’; such usage being treated as sufficient evidence of the intention to use the word ‘heirs’ in the sense of ‘children’.”

 Heirs may be lineal or collateral. When we say that the will was a carefully drafted document, evidently, the guarantor thereof was aware of the fact that as thence some of the sons having not been married, the question as to who would be their heirs was uncertain.

If they did not have any issue, the properties in terms of the law as then existing might have passed on to their brothers.

 Whether the expression “heirs” would, thus, mean legal heirs, the question specifically came up for consideration in N. Krishnammal v. R. Ekambaram, (1979) 3 SCC 273, wherein it was stated:

“It is well settled that legal terms such as ‘heirs’, used in a will must be construed in the legal sense, unless a contrary intention is clearly expressed by the testator.”

Referring to an earlier decision of the Hon’ble Supreme Court in Angurbala Mullick v. Debabrata Mullick, 1951 SCR 1125, it was  opined that the expression “heirs” cannot normally be limited to issues and it must mean all persons who are entitled to the property held and possessed by/or under the law of inheritance. In that case, the widow would not have been entitled to inherit the property of her husband as she was not an heir. However, she became an heir by reason of the provisions of the Hindu Succession Act.

The decision in N. Krishnammal v. R. Ekambaram, (1979) 3 SCC 273 is binding. The meaning of the expression “heir” in the context of the Hindu Succession Act has been considered therein. The expression “heir” would mean a legal heir. In construing a document, the Court cannot assign any other meaning. A document as is well known must be construed in its entirety.  When a document is not uncertain or does not contain an ambiguous expression it should be given its literal meaning. Only when the contents are not clear the question of taking recourse to the application of principles of construction of a document may have to be applied. It is also not a case where there exists any inconsistency between an earlier and later part of the document. What is necessary for a true, proper and effective construction of the will in question is to give effect to the intention of the propounder of the will. Bay Berry Apartments (P) Ltd. v. Shobha, (2006) 13 SCC 737.

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Will Surrounded by Suspicious Circumstances – Is a Question of Fact

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.

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Distinction Between – ‘Testator’ and ‘Attestors’

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.

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Testator – Cannot Create Successive Legatees in his Will

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)

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Scope of – A Will

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.

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Mode of Proving – A Will

In Shashi Kumar Banerjee v. Subodh Kumar Banerjee, AIR 1964 SC 529, it was held as under:

        “The mode of proving a Will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a Will by Section 63 of the Indian Succession Act. 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 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 them to the satisfaction of the Court before the Court accepts the will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no such pleas but the circumstances give rise to doubts, it is for the prpounder to satisfy the conscience of the Court. The suspicious circumstances may be as to the genuineness of the signature of the testator, the condition of the testator’s mind, the dispositions made in Will being unnatural, improbable or unfair in the light of relevant circumstances or there might be other indications in the Will to show that the testator’s mind was not free. In such a case the Court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes part in the execution of the Will which confers a substantial benefit on him that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances, the Court would grant probate, even if the Will might be unnatural and might cut off wholly or in part near relations.

A will is executed to alter the ordinary mode of succession and by the very nature of things it is bound to result in either reducing or depriving the share of natural heir. If a person intends his property to pass to his natural heirs, there is no necessity at all of executing a Will. It is true that a propounder of the Will has to remove all suspicious circumstances. Suspicion means doubt, conjecture or mistrust. But the fact that the natural heirs have either been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be a suspicious circumstance especially in a case where the bequest has been made in favour of an offspring. As held in PPK Gopalan Nambiar v. PPK Balakrishnan Nambiar, AIR 1995 SC 1852, it is the duty of the propounder of the Will to remove all the suspected features, but there must be real, germane and valid suspicious features and not fantasy of the doubting mind. It has been held that if the propounder succeeds in removing the suspicious circumstance, the Court has to give effect to the Will, even if the Will might be unnantural in the sense that it has cut off wholly or in part, near relations. Smt. Veena Chawla v. Mahendra Singh, 2019 (136) ALR 332.      

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Will and Gift/Settlement – Difference Between

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.

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