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Succession and Wills

l. SUCCESSION

1.1 The manner of distribution of a persons 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

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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.

li. 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 testators 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

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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

a. 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

b. 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

c. 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

a. 'Testator : a person making a Will.

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

c. Legacy : a benefit under the Will.

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

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

f. 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.

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

h. Codicil : a document which modifies or alters the provisions of the original Will and forms part of it.

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

j. 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

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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

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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 Assurances 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 :

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

b. 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

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

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

iii. 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)]

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

v. 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)]

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

vii. 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

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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 classmates 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]

viii. 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].

ix. 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).

x. 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)].

xi. 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)]

xii. 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)]

xiii. Hindu Succession Act Father-in-law of the widow governed by Mitakshara school died intestate.
Sub-section (2) of section 3 of the Hindu Womens 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]

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xiv. 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].

xv. 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]

xvi. 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].

xvii. 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]

xviii. 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.

xix. 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]

xx. 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

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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]

xxi. 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]

xxii. 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]

xxiii. 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]

xxiv. 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)]

xxv. 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]

xxvi. 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]

xxvii. 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]

xxviii. 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
fathers 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]

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xxix. 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 Widows
Remarriage Act, 1856.
Cherotte Sugathan (Dead) Through LRS. and Others v. Cherotte Bharathi and Others [(2008) 2 SCC
610]

xxx. The Testators 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]

xxxi. 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]

xxxii. 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 courts 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]

xxxiii. 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]

xxxiv. 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]

xxxv. In a case where the testators 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 testators 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

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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]

xxxvi. 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]

xxxvii. 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]

xxxviii. 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]

xxxix. 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]

xl. 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]

xli. 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]

xlii. 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]

xliii. Right of a Hindu woman for possession of her husbands property cannot arise after her husbands
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]

xliv. 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
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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]

xlv. 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]

xlvi. 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

xlvii. The Honble 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 Honble 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.]

xlviii. 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.)]

xlix. 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.

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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 Actas 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.

l. 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 theIndian 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 theIndian 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.

li. 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

Indian Succession Act Hindu Succession Act

To whom The IS Act, 1925, is applicable to
applicable : all Indians other than Muslims.
However certain provisions of the
Indian Succession Act are not
applicable to Hindus and apply
only to non-Hindus such as
The Hindu Succession Act, 1956, applies to any person
who is a Hindu, Buddhist, Sikh, Jain and to any other
person who is not a Muslim, Christian, Parsi or Jew by
religion. Clause (i) of section 5 of the Hindu Succession
Act provides that the said Act does not apply to any
property, succession of which is regulated by the IS Act

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Christians, Parsis and Jews.
Intestate succession to properties
of any person other than Hindu,
Mohammedan, Buddhist, Sikh or
Jain is governed by Part V (i.e.,
Intestate Succession) of the
Indian Succession Act. Rules for
Parsis are contained in sections
50 to 56 of the I. S. Act.
Attesting In case of Wills executed by
witness to a Christians, Jews and Parsis a
Will : person named as executor in the
Will can be an attesting witness.
Attestation by a legatee under
the Will is a good attestation. But
the bequest in favour of such a
legatee or his spouse becomes
void. A gift to an attesting
witness is void though there may
be a sufficient number of
attesting witnesses without him,
and the undisposed portion of the
devised property will devolve
according to the law of
inheritance. (Section 67 of Indian
Succession Act)
Probate : In the case of Wills made by
Christians and Jews and by
Hindus, Buddhists, Sikhs and Jains
[as provided in clauses (a) and (b)
of section 57 of the Indian
Succession Act,] no right as an
executor or a legatee can be
established in a Court of Justice
unless Probate is granted by a
Court of competent jurisdiction
u/s. 213 of the Indian Succession
Act. Wills executed outside the
cities of Calcutta, Madras and
Bombay in respect of immovable
properties situate outside these
cities are not subject to the
condition of obtaining probate
before getting advantage of any
such Will.
Letter of Where a person dies intestate
Administration: who was governed by the IS Act,
it is obligatory for the executors
or legatee to obtain a Letter of
Administration.
Revocation of Every Will shall be revoked on the
Will by marriage by the maker u/s. 69 of
testators Indian Succession Act. Revocation
marriage : results not only from first
marriage but any subsequent
marriage also. The exception to
this rule is that a Will made in
exercise of a power of
appointment, when the property
over which the power of
appointment is exercised would
not, in default of such
appointment, pass to his or her
executor or administrator or to
the person entitled in case of
intestacy.
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SuccessionandWills
by reason of the provisions contained in section 21 of the
Special Marriage Act, 1954. Sec. 21 of the Special
Marriage Act, 1954, reads as under: "Notwithstanding
any restrictions contained in the IS Act, 1925, with
respect to its application to members of certain
communities, succession to the property of any person
whose marriage is solemnized under this Act and to the
property of the issue of such marriage shall be regulated
by the provisions of the said Act and for the purposes of
this section that Act shall have effect as if Chapter III of
Part V (Special Rules for Parsi Intestates) had been
omitted therefrom.
In case of Wills executed by Hindus, Buddhists, Sikhs and
Jains, the bequest in favour of a legatee is valid though
he has attested the said Will. So a legatee under the Will
of a Hindu will not lose his legacy by attesting the Will.
No probate is required to establish right as an executor
or a legatee in case of Wills made by Hindus, Buddhists,
Sikhs and Jains. The exception to the above rule is
provided in clauses (a) and (b) of section 57 of the IS Act
which is to the following effect:
i. All Wills and codicils made by Hindus, Buddhists,
Sikhs and Jains within the territories of the
Lieutenant Governor of Bengal and within the local
limits of the ordinary original civil jurisdiction of the
High Courts at Madras and Bombay have to be
probated.
ii. All Wills and codicils made outside the territories or
limits mentioned in clause (i) above so far as
relates to immovable property situate within those
territories or limits have to be probated.
Where a Hindu dies intestate it is not necessary in every
case to obtain a Letter of administration to the estate of
the deceased to establish a right to any part of the
property of the deceased.
This provision does not apply to Hindus, Buddhists, Sikhs
and Jains who are governed by the Hindu Succession Act.
The statement of objects and reasons of the Hindu Wills
Act, 1870 (now repealed) brings out the reasons for a
marriage amongst the Hindus, Buddhists, Sikhs or Jains
not having the effect of revoking a Will as the marriage
does not create such a change in the testators condition
as to raise a presumption that he would not adhere to a
Will made previously. This presumption is based upon
the principle of monogamous marriage (the practice of
having only one husband or wife at any one time) in
England.
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Revocation of Under section 72 of IS Act, a Section 72 of IS Act, 1925 is not applicable to Hindus,
Privileged Will privileged Will or codicil may be Buddhists, Sikhs and Jains.
or Codicil : revoked by the testator by an
unprivileged Will or codicil, or by
any act expressing an intention to
revoke it and accompanied by
such formalities as would be
sufficient to give validity to a
privileged Will or by the burning,
tearing or destroying the same
with the intention of revoking the
same.
Construction of
terms/ Section 97 of IS Act lays down the Under Hindu Succession Act, 1956 following words are
definitions and general principles of defined and interpreted u/s. 3 of the Act:
interpretation : interpretation of Wills. Though
this section is not applicables to (a) agnate (b) aliyasantana law
Hindus, it can still be equally (c) cognate (d) custom and usage
applied to a Will by a Hindu, if the
(e) full blood, half blood (f) heir and uterine blood
clear intention of the testator
cannot be gathered from such (g) intestate (h) marumakkattayam law
Will. It may, however, be noted (i) nambudri law (j) related
that the principle of interpretation
enacted by this section, in terms,
is applicable to testamentary
dispositions and not to gifts or
settlement.

Bequest to Section 118 of IS Act provides
religious or that no person having nephew or
charitable use niece or any nearer relation, shall
: have power to bequeath any
property to religious or charitable
uses except the following two
conditions are satisfied:
Section 118 of the IS Act is not applicable in case of
Hindus, Buddhists, Sikhs and Jains. In other words, a Will
of a Hindu though not executed before twelve months of
his death and though not deposited within six months
from its execution for the safe custody, is a valid will
which is containing a bequest of his property for religious
or charitable uses.

a. a Will by which the testator

bequeathed his property to
religious or charitable uses
was executed not less than
twelve months before the
death of the testator, and
b. such Will was deposited
within six months from its
execution in some place
provided by law for the safe
custody.

Words Section 100 of the IS Act provides
expressing that in absence of any intimation
relationship : to the contrary in a Will the word
child, son or daughter would
mean legitimate child, son or
daughter. The principles laid
down in this section is that a
testator must be presumed to
intend his legitimate relations
unless the Will itself contains an
intimation to the contrary.
Testamentary A father, whatever his age may
guardian : be, may by Will appoint a
guardian or guardians for his
child during minority. This section
provides that a father though he
may be a minor may appoint a
guardian by Will for his child.
(Section 60 of IS Act, 1925)
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The word son, daughter or child means legitimate as well
as illegitimate child. The illegitimate son of a male Hindu
of any caste is entitled to claim maintenance from the
father and in case of death of the father from his heirs
out of his estate inherited by them so long as the
illegitimate son remains a minor and does not cease to
be a Hindu.
Under sec. 9 of the Minority and Guardianship Act, a
Hindu father, mother and widow may by Will appoint a
guardian for his minor legitimate as well as illegitimate
children or in respect of minors property or in respect of
both, subject to the conditions laid down in that section.
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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.

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