3.

WILLS

‘WILL’

According to sec. 2(h) of the Indian Succession Act, 1925, ‘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.

Under the General Clauses Act will includes a codicil and every writing making a
voluntary posthumous disposition of property. According to Halsbury, a will or
testament is the declaration in a prescribed manner of the intention of the person
making it, with regard to the matters which he wishes to take effect upon or after his
death.

A will differs from a deed in the following respects:

1. A deed operates eo instanti, from the date of its execution. A will comes into operation
on the death of the testator.

2. A deed is ordinarily irrevocable, unless there is an express power of revocation. A will

can be revoked at any time by the testator during his lifetime. It becomes irrevocable
on the death of the testator.

3. In case of mistake in a deed, the Court has power to rectify it. A will cannot be
rectified by any Court of law.

CODICIL

According to sec. 2(b) of the Indian Succession Act, 1925, ‘codicil’ means an instrument
made in relation to a will, and explaining, altering or adding to its dispositions, and shall
be deemed to form part of the will.

This definition is practically the same as in the Act of 1865, except that the words “and
shall be deemed to form a part of the will” are substituted for the words “it is considered
as forming an additional part of the will.” Under the General Clauses Act a will includes
a codicil.

Therefore, a codicil is ordinarily an instrument made in relation to a will, but it may

operate by itself as a will and probate can be granted of the codicil alone.

The definition of ‘codicil’ as given by Halsbury is, “A codicil is of similar nature to a will,
and in general is supplemental to and considered as annexed to a will previously made,
and executed for the purpose of adding to, varying, or revoking the provisions of that
will, though it is capable of independent existence.”
344 3. Wills

A codicil duly executed will give effect and operation to unattested alterations in a
will. A defective bequest in a will may stand cured by a codicil.

Before the English Wills Act it was held that a codicil depended on the will and a
revocation of the will was an implied revocation of the codicil. This provision was
later amended. Under the provisions of sec. 70 of the Indian succession Act, 1925
it is now settled that a codicil is not deemed to be revoked merely by implication of
the revocation of the will, but the codicil will remain effectual unless it is shown
that the testator while intending to revoke the will also intended to revoke the
codicil as well.

PURPOSE OF A WILL

A will may be made for the purpose

1. of appointing an executor,

2. for appointing a testamentary guardian,

3. for exercising a power of appointment, and

4. for revoking or altering a previous will.

ESSENTIAL CHARACTERISTICS OF A WILL

The Essential characteristics of a Will are:

1. There must be a legal declaration.

2. The declaration must be with respect to the property of the testator.

3. The declaration must be to the effect that it is to operate after the death of the
testator, i.e., it is revocable during the life of the testator.

If any of the three essentials is lacking the document is not a will.

1. LEGAL DECLARATION

The document purporting to be a will or testament must be legal, i.e., in

conformity with the provisions as regards the execution and attestation as
provided by sec. 63 of the Act, and must be by a person competent to make it. A
minor is legally incompetent to make a will and a will by a minor is not a legal
declaration. The mere use of the word “will” cannot make it a will if it does not
amount to a testamentary declaration disposing of the property.
 Essential Characteristics of a Will 345

2. IN RESPECT OF PROPERTY

The declaration should relate to the property of the testator which he wants to
dispose of. If the declaration contains no reference to the disposal of the property
but merely appoints a manager to manage the property or gives merely an
authority to his widow to adopt it is not a will.

Brijraj vs. Sheodan

An old Hindu executed a document styled “Will” whereby he partitioned his property
amongst his sons. It contained the following clause, “If I at any time come back from
pilgrimage and find mismanagement or the character of any one bad, then I shall
have the power to cancel this will.” Held, it was not a will but a family agreement.

Bheema Deo vs. Behari Das

A Hindu executed the following document, “I have consented to your adopting a son
at your pleasure and conducting the management of the estate in the best manner.
None of my heirs shall have cause to raise disputes touching this matter. This will
has been executed by my consent.” Held, that the document was not a will.

Ramchandra vs. Ramabai

A Hindu member of a joint family consisting of himself and his nephew executed a
deed called Vyavastha Patra (Deed of Settlement). He made a declaration that he had
separated from the nephew from that date but it was not possible to effect by metes
and bounds but he had made a symbolical partition of the property. He then made a
disposition of his property giving a half share of the income of his property to his
widow, etc. The document was also signed by the nephew. Held, that the deed was a
will and entitled to probate.

3. DISPOSAL OF PROPERTY AFTER TESTATOR’S DEATH

The declaration as regards the disposal of the property of the testator must be
intended to take effect after his death. Some disposition of property by will is
necessary. If the declaration is not to that effect or if the declaration is to carry
into effect the intention of the writer immediately, i.e., inter vivos then it is not a
will. The essence of every testamentary instrument is that it is revocable during
the life of the testator. In this respect a will differs from a deed which takes effect
during life and is irrevocable. Hence a will is said to be ambulatory until the death
of the testator. One of the tests to ascertain whether an instrument is a will or a
deed is to see if it is revocable. A document which is plainly intended to be
operative immediately and to be final and irrevocable is a non-testamentary
instrument. But a deed not intended to have any effect till the settlor’s death is
testamentary.
346 3. Wills

The mere fact that the testator calls it irrevocable or covenants not to revoke it
does not alter its quality and it is nevertheless revocable except only in case of a
joint will.

Nor does the fact that the writer of the instrument calls it a “will” make it a
testamentary document if it does not amount to testamentary disposition. What is
necessary is that the will must make a disposition of the testator’s property and
the declaration regarding the disposition must be in accordance with the
provisions of the law.

Another test is to ascertain whether the dispositions made by the instrument are
intended to take effect immediately on execution or during any period in the life of
the executant or whether the dispositions are to take effect after his death. An
instrument which reserves a life interest to the maker is not a will.

An instrument may be partly of a testamentary character and partly a deed and

probate may be granted of a part of the will. In the case, however, of an
instrument of which one part is proved to be of a testamentary character, the
Court may presume that the remainder is also intended to be testamentary.

FORM OF WILL

Will may be in any form, but to be effective it must be in the form required by the
Indian Succession Act, 1925. It is not necessary that it should be of a
testamentary form in order to operate as a will, but there must in all cases be the
animus testandi, i.e., the intention that the writing should operate as a will.

Thus agreements, letters, bills of exchange, powers-of-attorney, a Vyavasta Patra

(deed of settlement), a Sambandha Nirnaya Patra (a matrimonial arrangement
deed), a Tamliknama (assignment), an Ekrarnama (deed of agreement) and other
instruments may take effect as wills, if duly executed, where a testamentary
intention can be collected, and the dispositions are not to take effect until after the
death of the person making them.

It is very often contended that a deed and especially a deed of gift or a deed of
family settlement, which is inoperative for want of stamp or registration or other
prescribed formalities should operate as a will.

But in order that a document should have the effect of a will, it must satisfy the
following two tests:
 Form of Will 347

1. That it was the intention of the writer of the paper to convey the benefits by the
instrument which would be conveyed by it, if considered as a will, the writer
had the animus testandi. A will though formally executed as such, will not be
valid, if there were no animus testandi, e.g., if it was written in jest.

2. That death was the event that was to give effect to it. If the writing confers or is
intended to confer benefits inter vivos, without any reference to the death of the
party conferring it, it cannot be established as a will.

LANGUAGE OF WILL
A will may be written in any language and no technical words are necessary. Only
the wording shall be such that the intention of the testator can be known
therefrom (sec. 74). A will may be written with any material—ink or pencil. It may
be partly in ink and partly in pencil. But if the will is once written in ink and there
are pencil alterations therein, there will be a presumption that the alterations are
deliberative. If the will written in ink contains blank portions which are filled up in
pencil before execution the pencil additions will be included in probate; if in ink
they are final and absolute.

It is also not necessary that the testator himself should write the will. It may be
written by any person. But if it is written by a person who himself benefits by it,
the rule in Barry vs. Butlin must be borne in mind. It is a suspicious circumstance

REGISTRATION AND STAMP DUTY

Under sec. 18 of the Registration Ac, 1908, registration of will is optional. Further,
wills may deposited with the Registrar in sealed covers. The cover will be opened
after the death of the testator. Thus, it will be safe and also confidential.

Wills and codicils are not required to be stamped. They are exempt from stamp
duty.

DIFFERENT KINDS OF WILLS

The Act mentions only two kinds of wills— a privileged will and an unprivileged
will. There are other types of wills, some are valid under the Indian Succession
Act, 1925, while others are not.
348 3. Wills

1. Privileged Will

‘A Privileged Will’ is a will made by a soldier employed in an expedition, or engaged

in actual warfare or by an airman so employed or by a mariner at sea.

2. Unprivileged Will

An ‘Unprivileged Will’ is a will made by a person, not being a soldier or airman

employed in an expedition or engaged in actual warfare or a mariner at sea. This is
the ordinary will.

3. Oral or Nuncupative Will

An ‘oral or nuncupative will’ is a will declared by a testator before a sufficient

number of witnesses. The word “nuncupative” is derived from nuncupando
meaning naming, because when a man makes a nuncupative will he must name
his executor and declare his whole mind before witnesses.

There is no scope for this kind of will under the Succession Act but in place where
the act does not apply a will can be made orally. It is, therefore, not competent for
any person governed by this Act to make a nuncupative will.

4. Holograph Will

A holograph will is a will which is written by the testator himself. Such a will is
included in the definition of an unprivileged will. A holograph will may show
indication that the testator was fully conscious of what he was doing and will not
be easily set aside.

5. Inofficious Will

A will which is not consonant with the testator’s natural affection and moral
duties is called an inofficious will. An inofficious will may throw some light upon
the question of testator’s condition of mind.
 Different Kinds of Wills 349

6. Mutual Will

A mutual will is one of two testamentary documents made respectively by two

persons giving each other similar rights in each other’s property. It implies two
separate wills executed on the same day containing similar provisions.

Two persons may agree to make mutual wills which remain revocable during their
joint lives by either of them with notice to the other. The peculiar characteristic of
this kind of wills is, that they become irrevocable after the death of one of them, if
the survivor takes advantage of the provisions made by the other.

7. Joint Will

A joint will is a will made by two or more testators contained in a single

instrument duly executed by each testator disposing either of their separate
properties or their joint property. By a joint will is meant a single instrument by
which two persons give effect to their testamentary wishes. Such a will is not a
single will and is revocable at any time by either of them or by the survivor. But in
certain cases it will be enforced in equity as contracts.

8. Contingent Will and Conditional Will

Will may be made contingent upon the happening of an event, so that if the event
does not happen the will has no effect. For example, where the will contained the
following clause, "should anything happen to me during my passage to Wales or
during my stay” it was held to be a will. It will take effect only if the contingency
happens; if the contingency does not happen the will is not entitled to probate.

In order that a will should be regarded as conditional or contingent it must plainly

appear from the terms of the will that its provisions were intended to take effect
only in the event of the happening of the contingency and not otherwise.

PERSONS CAPABLE OF MAKING WILLS

Sec. 59 of the Indian Succession Act, 1925 provides that every person of sound
mind and not a minor may dispose of his property by will. Generally speaking,
therefore, all persons who have sufficient discretion and free will are capable of
disposing of their property by will. There are two grounds of incapacity:

1. the want of sufficient legal discretion;

2. the want of liberty or free-will.

350 3. Wills

SOUND DISPOSING MIND

It is essential for the validity of a will that the testator should be of sound mind,
memory and understanding. This is described by the expression “sound and
disposing mind”. A sound and disposing mind connotes that the testator must be
conscious of the various claims persons have upon his property and must also be
capable of realising the extent of the property disposed of under the will.

It is essential that while signing the will, the testator should be mentally
competent to understand both these things. Where the mind was too weak due to
illness or old age and infirmity arising from the approach of death, the protection
of law is more important.

Mere ability to sign one’s name, nor mere consciousness, nor the fact that the
testator was able to maintain ordinary conversation and to answer familiar and
easy questions is enough to constitute a sound and disposing mind.

MINORITY

Minors i.e., persons who have not completed the age of 18 years are not capable of
making wills. Wills made by such persons during minority shall be null and void,
though the person may have died after attaining majority.

FRAUD, COERCION OR UNDUE INFLUENCE

Sec. 61 provides that a will or any part of a will, the making of which has been
caused by fraud or coercion or by such importunity as takes away the free agency
of the testator, is void.

EXPLANATION I – MARRIED WOMAN

A married woman is capable of disposing by will of any property which she could
alienate during her life. The effect of this Explanation is to declare that a married
woman can dispose of by will any property which she can alienate by her own act
during her life without any consent of her husband. Earlier, married women were
not competent to make wills. That position is altered by this explanation.
 Persons Capable of Making Wills 351

EXPLANATION II – DEAF, DUMB AND BLIND

This Explanation refers to the case of persons who are deaf or dumb or blind. The
explanation omits the case of a person who is deaf and dumb and blind who is
held incapable of making a will.

This Explanation makes it clear that a person deaf and dumb by birth can make a
will if he is able to know what he does by it.

Mere blindness will not incapacitate a person from making a will provided he is
able to know what he does. It will, therefore, be sufficient if there is satisfactory
proof of the knowledge and approval of the will by the blind man.

EXPLANATION III – LUNATICS AND INSANE PERSONS

A lunatic is a person usually of unsound mind but having intervals of reason.

Such a person cannot make a will during his insanity.

If a person whilst he is of sound mind makes a will and subsequently becomes

insane the will is not revoked by subsequent insanity. This Explanation enacts
that a lunatic may make a will during a lucid interval.

Delirium and Insanity

Delirium is a fluctuating state of mind created by temporary excitement in the

absence of which the patient is most commonly really sane and the difficulty of
proving a lucid interval is less. In order to constitute insane delusion it must be
shown that the testator’s belief in it was unfounded but that it was so destitute of
foundation that no one except an insane person would have entertained it.

Mere existence of a delusion or a partial unsoundness of mind, not affecting the

general faculties and not affecting the mind of the testator in regard to
testamentary disposition, will not be sufficient to deprive a person of the power of
disposing of his property. The result is that a person subject to delusions may
make a valid will, if the delusions under which he labours be such that they could
not be supposed to have affected the dispositions made by the will.

Lucid Interval

It is an interval during which there is entire absence of the malady and the
interval must be substantial, though it may be temporary. In such cases the order
352 3. Wills

of proof and of presumption is reversed, if the man is habitually insane, the proof
of lucid interval will be on the party alleging the same.

In cases of inofficious wills, i.e., when a testator gives away his property to
strangers forgetting his natural duty to his children, there is no presumption of
insanity, but it may throw some light upon the question of the testator’s capacity.

EXPLANATION IV – INTOXICATION, ILLNESS, INFIRMITY ETC.

A will made by a person when he is so excessively drunk that he is utterly

deprived of the use of reason and understanding is null and void. It is called
delirium tremens. But a person who is habitually addicted to drink but is not
insane or deranged may make a valid will.

Illness which impairs the mind of a person in such a manner as to deprive him of
the power of understanding the nature of the instrument or the effect of its
provision will invalidate the will. But mere debility unaccompanied by any mental
incapacity will not deprive a person from making a will.

Infirmity is of two kinds, physical and mental. Wills made during those infirmities
are looked upon with suspicion. Physical infirmity results from old age or severe
illness. Mere old age does not deprive a man of the capacity of making a will. Yet if
a man in his old-age becomes a very child again in his understanding or by reason
of extreme old age or other infirmity he becomes so forgetful that he does not know
his own name, he is not fit to make a will.

PRIVILEGED WILLS

A ‘Privileged Will’ is a will made by a soldier employed in an expedition, or engaged

in actual warfare or by an airman so employed or by a mariner at sea.

Sec. 65 provides that any soldier being employed in an expedition or engaged in

actual warfare or an airman so employed or engaged or any mariner being at sea,
may, if he has completed the age of eighteen years, dispose of his property by a
will made in the manner provided in sec. 66. Such wills are called privileged wills.

There are six illustrations to sec. 65.

Illustrations

(i) A, a medical officer attached to a regiment is actually employed in an expedition.

He is a soldier actually employed in an expedition, and can make a privileged
will.
 Privileged Wills 353

(ii) A is at sea in a merchant-ship, of which he is the purser. He is a mariner, and,

being at sea, can make a privileged will.

(iii) A, a soldier serving in the field against insurgents, is a soldier engaged in actual
warfare, and as such can make a privileged will.

(iv) A, a mariner of a ship, in the course of a voyage, is temporarily on shore while

she is lying in harbour. He is, for the purposes of this section, a mariner at sea,
and can make a privileged will.

(v) A, an admiral who commands a naval force, but who lives on shore, and only
occasionally goes on board his ship, is not considered as at sea, and cannot
make a privileged will.

(vi) A, a mariner serving on a military expedition, but not being at sea, is considered
as a soldier, and can make a privileged will.

MODE OF MAKING A PRIVILEGED WILL

Sec. 66(1) provides that privileged wills may be in writing, or may be made by word
of mouth.

The execution of privileged wills shall be governed by the following rules given in
sec. 66(2).

(a) The will may be written wholly by the testator, with his own hand. In such case
it need not be signed or attested.

(b) It may be written wholly or in part by another person, and signed by the
testator. In such case it need not be attested.

(c) If the instrument purporting to be a will is written wholly or in part by another

person and is not signed by the testator, it shall be deemed to be his will, if it
is shown that it was written by the testator’s directions or that he recognised it
as his will.

(d) If it appears on the face of the instrument that the execution of it in the
manner intended by the testator was not completed, the will is invalid.

However, if it is shown that he had the intention to make a will, but his non-
execution of it was due to some cause, the will is valid in spite of its incomplete
execution.

(e) If the testator has written instructions for the preparation of his will, but has
died before it could be prepared and executed, such instructions shall be
considered to constitute his will.
354 3. Wills

(f) If the testator has, in the presence of two witnesses, given verbal instructions
for the preparation of his will, and they have been reduced into writing in his
lifetime, but he has died before a written will could be prepared and executed,
such instructions shall be considered to constitute his will, although they may
not have been reduced into writing in his presence, nor read over to him.

(g) The testator may make a will by word of mouth by declaring his intentions
before two witnesses present at the same time.

(h) A will made by word of mouth shall be null at the expiration of one month after
the testator, being still alive, has ceased to be entitled to make a privileged will.

In other words, the testator of a privileged will, shall make an unprivileged will
within one month after the circumstances entitling him to make privileged will
cease, if he is alive.

UNPRIVILEGED WILLS

An ‘Unprivileged Will’ is a will made by a person, not being a soldier or airman

employed in an expedition or engaged in actual warfare or a mariner at sea. This is
the ordinary will.

Sec. 63 provides for the mode of making an unprivileged will. Accordingly, there
are three requirements for the valid execution of a will.

1. Execution i.e., signing of the will by the testator;

2. Place of signature is such as to show an intention to execute the will; and

3. Attestation by at least two witnesses.

EXECUTION OF THE WILL BY TESTATOR

The first requirement is that the will has to be executed by the testator. There are
different modes of signing.

1. by writing one’s own name

2. by affixing left thumb mark (LTM)

3. by putting a mark

4. through another person

Normal way of signing a document is by writing one’s own name. This is possible
where the executant is literate.
 Unprivileged Wills 355

An illiterate person affixes his left thumb mark (LTM).

Where the testator cannot put his left thumb mark, he may put any other mark.
He may affix mark of any other finger or write any other mark. Even a literate
person may put his mark if he is unable to put his signature due to any reason.

Nirmal Chunder vs. Saratmoni

A rubber stamp impression where the testator was in the habit of using the rubber
stamp was held to be good.

But the mark must be made by the testator and not by some other person for the
testator. If a testator intentionally or unintentionally signs under a wrong or
assumed name still if he signs with animo tesiandi it is sufficient. Under the
General Clauses Act, 1897 the word ‘sign’ with reference to a person who is unable
to write his name shall include mark.

Where the testator is unable even to put any mark, he may request any other
person to put his signature. According to sec. 63(a) a will may be signed by some
other person,

1. in the testator’s presence and

2. by the testator’s direction.

Further that ‘some other person’ cannot be a beneficiary under the will. So also he
cannot attest his own signature. Therefore, there have to be two other persons in
addition to that some other person signing the will.

According to English practice when a person signs for the testator by his direction,
he may sign either the testator’s name or bis own name for the purpose of giving
effect to such directions. But according to sec. 63(a) when some other person signs
on behalf of the testator the proper form of signature is for the other person to sign
the name of the testator and not his own, as is held in Dasuredi vs.
Venkatasubbammal. This is. however, merely to furnish prima facie evidence of
due execution.

The section requires the signature and not the mark of the person signing on
behalf of the testator. However, in Theresa vs. Francis and in Nitya Gopal vs.
Nagendra Nath, mark of the person signing on behalf of the testator was held to be
good.
356 3. Wills

PLACE OF SIGNATURE

The normal and most appropriate place of signing any document is at the foot or
end thereof. But according to sec. 63(b) the signature or mark of the testator or
the signature of the person signing for him may be placed any where on the will.

According to this clause the signature need not necessarily be at the end of the
will. It does not matter in what part of the will the testator signs. What matters is
that it must be so placed that it shall appear that it was “intended to give effect to
the instrument as a will”.

It may be either at the commencement or at the end. In Amarendra vs. Kashi Nath
signature was at the commencement of the will. It was held to be valid.

If a will is written on several sheets of paper it is not necessary that all sheets
should be severally signed. One signature on the last sheet made with the
intention of executing the whole is sufficient.

ATTESTATION

The will shall be attested by two or more witnesses.

1. Each witness must have seen the testator sign or affix his mark, or

2. Each witness must have seen some other person sign the will in the presence
and by the direction of the testator, or

3. If the will is already signed each witness must have received from the testator a
personal acknowledgement of his signature or mark or of the signature of such
other person signing for him.

It is not, therefore, necessary, that both the witnesses should be present at one
and the same time.

The testator may sign in the presence of one witness and acknowledge his
signature before another witness. But, the attesting witness must sign in the
presence of the testator.

The fact that a witness is under-age does not disqualify him provided he has the
requisite understanding to testify as a witness (sec. 118 Indian Evidence Act). A
scribe can be an attesting witness but it must be shown that his signature was
put for attesting the will.
 Unprivileged Wills 357

The beneficiary under the will cannot attest the will. If a beneficiary under the will
attests the will, the attestation is valid, but he loses the legacy under the will.
Under sec. 67, any legacy or bequest given to a person who attests the will, or to
his wife or her husband, or to any person claiming under either of them shall be
null and void.

Explanation to sec. 67 provides that a legatee under a will does not lose his legacy
by attesting a codicil which confirms the will.

Sec. 67 does not apply to Hindus. Hence the attesting witness to the will of a
Hindu does not lose the legacy given to him by the will.

It is not necessary that the attesting witnesses should know contents of the will.
The testator need not disclose the nature or contents of the instrument. Mere
attestation is not enough to prove that the attesting witness had knowledge of the
contents of the will. Sometimes the contents of the will are covered by a paper, so
that the attesting witnesses should not read them. In such cases, one should be
careful that the signature of the testator is not covered up. If the signature is also
covered up so that the attesting witnesses do not see it, there would be no
sufficient acknowledgement, and the attestation will be invalid.

Personal Acknowledgement

When the testator does not execute the will in the presence of the attesting
witnesses, the attesting witnesses put their signatures on the personal
acknowledgement of the execution of the will by the testator.

It is not necessary that the testator should in express terms say, “That is my
signature.” It would be sufficient, if the testator produces a paper and makes his
witnesses understand that it is his will.

Sec. 68 requires the personal acknowledgement by the testator. Therefore, the

testator should personally make the acknowledgement. A request by a third party
to the witnesses to attest the will would not be a sufficient acknowledgement.

VOID BEQUESTS

Sections 112 to 118 list seven types of bequests as void. They are:

1. Bequest to a non-existent person (Sec. 112);

2. Bequest to an unborn person (Sec. 113);

358 3. Wills

3. Bequest in violation of rule against perpetuity (Sec. 114);

4. Bequest to a class some of whom may come under rules in sec. 113 or 114
(Sec. 115);

5. Bequest to take place on failure of a prior bequest on account of rules in sec.

113 or 114 (Sec. 116);

6. Bequest with direction for accumulation (Sec. 117); and

7. Bequest to religious or charitable uses in certain cases (Sec. 118).

1. BEQUEST TO A NON-EXISTENT PERSON

Where a bequest is made to a person by a particular description, and there is no

person in existence at the testator’s death who answers that description, the
bequest is void.

Sec. 112 has five illustrations:

Illustrations

(i) A bequeaths 1,000 rupees to the eldest son of B. At the death of the testator, B
has no son. The bequest is void.

(ii) A bequeaths 1,000 rupees to B for life, and after his death to the eldest son of C.
At the death of the testator, C had no son. Afterwards, during the life of B, a son
is born to C. Upon B’s death the legacy goes to C’s son.

(iii) A bequeaths 1,000 rupees to B for life, and after his death to the eldest son of C.
At the death of the testator, C had no son. Afterwards, during the life of B, a son,
named D, is born to C. D dies, then B dies. The legacy goes to the representative
of D.

(iv) A bequeaths his estate of Green Acre to B for life, and at his decease, to the
eldest son of C. Up to the death of B, C has had no son. The bequest to C’s eldest
son is void.

(v) A bequeaths Rs. 1,000 to the eldest son of C, to be paid to him after the death of
B. At the death of the testator C has no son, but a son is afterwards born to him
during the life of B and is alive at B’s death. C’s son is entitled to the Rs. 1,000.

2. BEQUEST TO UNBORN PERSON

Bequest to an unborn person is void. Sec.113 of Indian Succession Act, 1925

provides for transfer for the benefit of an unborn person.
 Void Bequests 359

For such a transfer there are three important requisites:

1. a prior interest for life has to be created in another person (who is an

intermediary);

2. the legatee, i.e., the unborn person must be born before the death of that
intermediary; and

3. the bequest must comprise of whole of the remaining interest of the testator.

The leading case on the point is Sopher vs. Administrator-General of Bengal.

Sopher vs. Administrator-General of Bengal

A grandfather made the bequest to his grandson who was yet to be born, by creating
a prior interest in his son and daughter in law. The Court upheld the transfer for the
benefit of an unborn person. As the vested interest was transferred when the
grandsons were born and only the enjoyment of possession was postponed till they
attained the age of twenty one the transfer was held to be valid.

The bequest must comprise of whole of the remaining interest of the testator. That
means that the interest transferred to the unborn person must be absolute. It
cannot be life interest, and it cannot be a limited interest. It cannot be conditional.

Girish Dutt vs. Datadin

The will stated that the property was to be transferred to a female descendant (who
was unborn) only if the person did not have any male descendant. The Court held
that since the transfer of property was dependent on the condition that there has to
be no male descendant, the transfer of interest was limited and not absolute and
thereby the transfer was void.

3. BEQUEST CREATING PERPETUITY

Sec. 114 of the Indian Succession Act, 1925 provides that no bequest is valid
whereby the vesting of the thing bequeathed may be delayed beyond the lifetime of
one or more persons living at the testator’s death and the minority of some person
who shall be in existence at the expiration of that period, and to whom, if he
attains full age, the thing bequeathed is to belong.

Sec. 114 provides that where an interest is created for the benefit of an unborn
person in accordance with the provisions of sec. 113, such interest shall not take
effect if the interest is to vest in such unborn person
360 3. Wills

1. after the life time of one or more persons living on the date of the transfer, i.e.,
the intermediaries in whose favour the prior interest is created as required
under sec. 13; and

2. the minority of such unborn person.

In other words, the interest created for the benefit of an unborn person shall take
effect only if the interest is to vest in such unborn person before he attains the age
of eighteen years.

The rule against perpetuity provides that the property cannot be tied for an
indefinite period. The property cannot be transferred in an unending way. The rule
is based on the considerations of public policy since property cannot be made
inalienable unless it is in the interest of the community.

4. BEQUEST TO A CLASS SOME OF WHOM MAY COME UNDER

ABOVE RULES

Sec. 115 provides that if a bequest is made to a class of persons with regard to
some of whom it is inoperative by reasons of the fact that the person is not in
existence at the testator’s death or to create perpetuity, such bequest shall be void
in regard to those persons only and not in regard to the whole class.

A number of persons are said to be a class when they can be designated by some
general name as grandchildren, children and nephews.

5. BEQUEST TO TAKE EFFECT ON FAILURE OF PRIOR TRANSFER

S. 116 provides that where by reason of any of the rules contained in sec.s 113
and 114 and bequest in favour of a person of a class of persons is void in regard to
such person or the whole of such class, any bequest contained in the same will
and intended to take effect after or upon failure of such prior bequest is also void.

Girish Dutt vs. Datadin

One S gave property to B for life and after her death if there be any descendants
whether born as son or daughter to them absolutely. In the absence of any issue,
whether male or female, living at the time of B’s death, the property was to go to C.

It was held that the gift in favour of C was dependent upon the failure of the prior
interest in the favour of daughter and hence the gift in favour of C was also invalid.
However alternative bequests were held to be valid.
 Void Bequests 361

6. BEQUEST WITH DIRECTION FOR ACCUMULATION

Sec. 117 provides that where the terms of a will direct that the income arising
from any property shall be accumulated either wholly or in part during any period
longer than a period of eighteen years from the death of the testator, such
direction shall be void to the extent to which the period during which the
accumulation is directed exceeds the aforesaid period. At the end of such period of
eighteen years the property and the income thereof shall be disposed of.

Example

A make a will by which he directs for accumulation of interest arising out of certain
property for a period ending 21 years after his death, and after that it should go to B.
The direction is valid only to the extent of 18 years after his death, and after the
expiry of 18 years from the death of A it will go to B.

Sec. 117 provides for three exceptions to the rule against accumulation. They are:

(i) the payment of the debts of the testator or any other person taking any interest
under the will,

(ii) the provision of portions for children or remoter issue of the testator or of any
other person taking any interest under the will,

(iii) the preservation or maintenance of any property bequeathed.

7. BEQUEST TO RELIGIOUS OR CHARITABLE USES

Sec. 118 provides that no man having a nephew or niece or any nearer relative
shall have power to bequeath any property to religious or charitable uses, except
by a will executed not less than twelve months before his death, and deposited
within six months from its execution in some place provided by law for the safe
custody of the wills of living persons. In John Vallamattom & Anr. vs. Union of
India Supreme Court has struck down sec. 118 as unconstitutional.

VOID WILLS
Wills not executed in accordance with the provisions of the Indian Succession Act,
1925 are void. Thus,

1. a privileged will executed by persons not entitled to make privileged wills is void.

2. An unprivileged will which is not signed by the testator or not attested as

required by the provisions of the Act is void.

In addition to this, there are other circumstances in which a will may be void.
362 3. Wills

1. WILLS VOID DUE TO FRAUD, COERCION OR UNDUE INFLUENCE

Sec. 61 provides that a will, or any part of will, which has been caused by fraud or
coercion, basically not by free will, will be void and the will would be set aside.

Fraud: Sec. 17 of the Indian Contract Act defines fraud. Fraud implies a wilful act
on the part of a person, whereby, another is sought to be deprived of something to
which he is entitled, by illegal or inequitable means.

Coercion: Sec. 15 of Indian Contract Act defines coercion. Any force or fear of
death, or of bodily hurt or imprisonment would invalidate a will.

Ammi Razu vs. Seshamma

A man threatening to commit suicide induced his wife and son to give him a release
deed. It was held that even though suicide was not punishable by the Indian Penal
Code yet it was forbidden by law and hence the release deed must be set aside as
having been obtained by coercion.

Undue Influence: Undue influence under sec. 16 of Indian Contract Act is said to
be exercised when the relations existing between the two parties are such that one
of the parties is in the position to dominate the will of the other and uses that
position to obtain an unfair advantage over the other.

However neither fiduciary relationship nor a dominating position would raise a

presumption of undue influence in case of wills as all influences are not unlawful.
Persuasion on the basis of affection or ties is lawful. The influence of a person in
fiduciary relationship would be lawful so long as the testator understands what he
is doing. Thus it can be said that a testator maybe led but cannot be driven.

2. WILLS VOID DUE TO UNCERTAINTY

S. 89 states that if the will is uncertain as regards either to the object or subject of
the will then it would be invalid.

The will may express some intention but if it is vague and not definite then it will
be void for the reason of uncertainty.

The will may depose of the property absurdly or irrationally i.e., the intention
maybe irrational or unreasonable, but that does not make it uncertain. For
uncertainty to be proved it has to be proved that the intention declared by the
testator in the will is not clear as to what is he giving or whom is he giving. Only if
the uncertainty goes to the very root of the matter, the will has to be held void on
the grounds of uncertainty.
 Void Wills 363

3. WILLS VOID DUE TO IMPOSSIBILITY OF CONDITION

Sec. 124 provides that a contingent legacy can take effect only on happening of
that contingency. A conditional will is that will which is dependent on the
happening of a specific condition the non-happening of which would make the will
inoperative. Sec. 126 provides that a bequest upon an impossible condition is void.
The condition may be a condition precedent or a condition subsequent.

4. WILLS VOID DUE TO ILLEGAL OR IMMORAL CONDITION

Sec. 127 provides that a bequest, which is based upon illegal or immoral
condition, is void. The condition which is contrary to, forbidden by, or defeats any
provision of law or is opposed to public policy, then the bequest would be invalid.
A condition absolutely restraining marriage would also make the bequest void.

Sec. 138 provides that the direction provided in the will as to the manner in which
the property bequeathed is to be enjoyed then the direction would be void though
the will would be valid.
 4. LEGACIES
Legacy is an amount of money or property left to someone in a will. A legacy may be
made in different languages.

Examples

A, who has only one gold ring, bequeaths to B,

1. “my gold ring”; or

2. “all my gold ornaments”; or

3. “a gold ring”.

In all the three cases, A had only one gold ring at the time of making the will. Later he got
that gold ring converted into a gold chain.

In the first case, B does not get anything. In the second case B will receive the gold chain.
In the third case A’s executor has to convert the gold chain into a gold ring or to buy a new
gold ring and give it to B.

KINDS OF LEGACIES

Depending upon language of the will or the legacy actually made, there are three classes
of legacies – general, demonstrative and specific.

A general legacy is a gift of something which, if the testator leaves sufficient assets, must
be raised by his executor out of his general personal estate. It is a legacy not of any
particular thing, but of something which is to be provided out of the testator’s general
estate. An example of a general legacy is “I give Rs. 1,00,000 to A”.

A specific legacy is a gift of some particular thing or of some interest, legal or equitable,
forming part of the testator’s estate. It must be identified by a sufficient description and
separated in favour of the particular legatee from the general mass of the testator’s
personal estate. In other words, a specific legacy is a gift of a distinguished part of the
testator’s property, thus showing an intention that the property shall pass to the legatee
in specie. An example of a specific legacy is “I give my dwelling house, Blackacre, to A” or
“I give my silver teaspoons to A”.

A demonstrative legacy shares characteristics of both general and specific legacies. It is

in the nature of a specific legacy in that it is a gift of a specified amount or quantity
which is directed to be satisfied primarily out of a particular fund or asset. It is in the
nature of a general legacy, in that it could be paid out of the general estate if the
specified fund falls short. An example of a demonstrative legacy is: “I give Rs. 1,00,000
to be raised out of the sale of my land.”
 Specific and Demonstrative Legacies 365

SPECIFIC AND DEMONSTRATIVE LEGACIES

Sec. 142 defines specific legacy as, “Where a testator bequeaths to any person a
specified part of his property, which is distinguished from all other parts of his
property, the legacy is said to be specific.”

Illustration to sec. 142 gives the following examples, among others: “the diamond
ring presented to me by C”, “my gold chain”, “a certain bale of wool”, “a certain
piece of cloth”, etc.

Sec.s 143 to 146 list the legacies which appear to be specific, but are not specific
legacies.

1. A certain sum bequeathed out of a specific stock, funds or securities in which it

is invested.

Example: “Rs. 10,000, at present secured by mortgage of Rampur factory”.

2. A bequest made in general terms of a certain amount of any kind of stock,

which was, at the date of his will, in the possession of the testator.

Example: “5% Government securities worth Rs. 5000”. The testator had at the
date of the will 5% Government securities for Rs. 5,000.

3. A money legacy, the payment of which is to be postponed until some part of the
property of the testator has been reduced to a certain form, or remitted to a
certain place.

Example: “Rs. 10,000 to be paid as soon as the testator’s property in India shall
be realised in England.

4. A bequest of the residue of the testator’s property along with an enumeration of

some items of property not previously bequeathed The articles enumerated shall
not be deemed to be specifically bequeathed.

Sec. 147 provides that a specific bequest of a property to two or more persons in
succession, it shall be retained in the form in which the testator left it, although it
may be of such a nature that its value is continually decreasing.

Sec. 150 defines demonstrative legacy as, “Where a testator bequeaths a certain
sum of money, or a certain quantity of any other commodity, and refers to a
particular fund or stock so as to constitute the same the primary fund or stock out
of which payment is to be made, the legacy is said to be demonstrative.”
366 4. Legacies

SPECIFIC AND DEMONSTRATIVE LEGACIES DISTINGUISHED

Explanation to sec. 150 provides that the distinction between a specific legacy and
a demonstrative legacy is that a demonstrative legacy is in its nature a general
legacy. The only distinction between a general legacy and a demonstrative legacy is
that where a specific property is indicated out of which the legacy is payable it
becomes a demonstrative legacy.

A general legacy is a portion of the entire estate of the testator. A demonstrative

legacy is a part of a specific property or a specific part of the estate of the testator.

Rajam Kant vs. Keki

An illustration of demonstrative legacy is in this case where the testator directed that
his land be sold and out of the sale proceeds Rs. 10,000 be paid to his wife and
Rs. 4,000 to his daughter. It was held that the legacies were demonstrative.

ADEMPTION OF LEGACIES

According to sec. 152, if anything which has been specifically bequeathed does
not belong to the testator at the time of his death, or has been converted into
property of a different kind, the legacy is adeemed, i.e., it cannot take effect, by
reason of the subject-matter having been withdrawn from the operation of the will.

Where stock which has been specifically bequeathed does not exist at the
testator’s death, the legacy is adeemed. Where stock which has been specifically
bequeathed exists only in part at the testator’s death, the legacy is partly adeemed
i.e., adeemed so far as regards that part of the stock which has ceased to exist.

Where the stock specifically bequeathed is sold, and an equal quantity of the
same stock is afterwards purchased and belongs to the testator at his death, the
legacy is not adeemed.

Where the thing specifically bequeathed is the right to receive something of value
from a third party, and the testator himself receives it, the bequest is adeemed.
For example, A bequeaths to B “the debt which C owes me”. C repays the debt to A
during his lifetime. The legacy is adeemed.

The receipt by the testator of a part of an entire thing specifically bequeathed

operates as an ademption of the legacy to the extent of the sum so received. For
example, A bequeaths to B, “the debt due to me by C”. C owes Rs. 10,000 to A. C
pays Rs. 5,000 rupees to A. The legacy adeems to the extent of Rs. 5,000.
 Ademption of Legacies 367

Where a portion of a fund is specifically bequeathed to one legatee, and a legacy

charged on the same fund is bequeathed to another legatee, then, if the testator
receives a portion of that fund, and the remainder of the fund is insufficient to pay
both the specific and the demonstrative legacy, the specific legacy shall be paid
first, and the residue of the fund shall be applied in payment of the demonstrative
legacy. If the residue is not sufficient to pay the demonstrative legacy, the rest of
the demonstrative legacy shall be paid out of the general assets of the testator.

Sec. 160 clarifies that a specific bequest of goods under a description connecting
them with a certain place is not adeemed by reason that they have been removed
from such place for any temporary cause, or by fraud, or without the knowledge or
sanction of the testator.
Illustrations

(i) A bequeaths to B, “all my household goods which shall be in or about my

dwelling-house in Calcutta at the time of my death.” The goods are removed from
the house to save them from fire. A dies before they are brought back.

(ii) A bequeaths to B, “all my household goods which shall be in or about my

dwelling-house in Calcutta at the time of my death”. During A’s absence upon a
journey, the whole of the goods are removed from the house. A dies without
having sanctioned their removal.

Similarly, where the place is only referred to in order to complete the description of
what the testator meant to bequeath, the removal of the thing bequeathed from
the place in which it is stated in the will to be situated does not constitute an
ademption.

The same rule is applicable to the change to the subject-matter of the bequest.
Where a thing specifically bequeathed undergoes a change between the date of the
will and the testator’s death, without the knowledge or sanction of the testator, the
legacy is not adeemed.

Sec. 153 clarifies that a demonstrative legacy is not adeemed by reason that the
property on which it is charged by the will does not exist at the time of the death
of the testator, or has been converted into property of a different kind. It shall in
such case be paid out of the general assets of the testator.
 5. RULES OF CONSTRUCTION OF WILLS
Issues relating to construction of wills basically arise out of poor drafting. This is
particularly a problem with ‘home-made’ wills, but unfortunately it is also not
uncommon in the case of professionally drafted wills.

The fundamental principle in the construction of wills is to effectuate the testator’s

intention so far as it is consistent with law. The rules of construction of wills are based
on this principle.

The main principles of construction of wills at common law which are also applicable
under the Indian Succession Act, 1925 are as under:

1. Presumption that words are given their ordinary meaning;

2. The meaning of any clause in a will is to be collected from the entire instrument;

3. No part of a will is to be rejected as destitute of meaning;

4. ‘Last Word Rule’ in case of inconsistent clauses;

5. ‘Armchair Rule’;

6. A will speaks from the testator’s death;

7. Treatment of ambiguous expressions.

PRESUMPTION THAT WORDS ARE GIVEN THEIR ORDINARY MEANING

It is sufficient if the wording of a will is such that the intentions of the testator can be
known therefrom. No technical words or terms of art need necessarily be used. A will not
expressive of any definite intention is void for uncertainty.

There is a presumption in construing a will that the ‘ordinary and usual meaning of the
words’ should be applied. If the words are technical words, then prima facie they should
be given their ordinary technical meaning.

MEANING TO BE COLLECTED FROM THE ENTIRE INSTRUMENT

The meaning of any clause in a will is to be collected from the entire instrument, and all
its parts are to be construed with reference to each other; and for this purpose a codicil
is to be considered as part of the will.

This is because, the entire will creates a context in which any clause in that will is to be
understood. Often, words and sentences read in a particular context give a different
meaning from what they give when they are read in isolation.
 5. Rules of Construction of Wills 369

NO PART OF A WILL TO BE REJECTED AS DESTITUTE OF MEANING

No part of a will is to be rejected as destitute of meaning if it is possible to put a

reasonable construction upon it. Testator’s intention is not to be set aside because
it cannot take full effect, but is to be effectuated as far as possible.

Where any word material to the full expression of the meaning has been omitted, it
may be supplied by the context. Erroneous particulars in the description of the
subject-matter of a bequest shall be rejected. A part of the description, however,
shall not be rejected as erroneous, if any property answers the whole description.

‘LAST WORD RULE’ IN CASE OF INCONSISTENT CLAUSES

Where two parts of a will are mutually inconsistent there is theoretically an

arbitrary rule that the later clause prevails. The reason for the rule lies in the
somewhat suspect notion that the later clause is the last word of the testator.

Re Potter’s Will Trust

Lord Greene MR described the rule as as a ‘rule of despair’. Furthermore, a rule has
developed to the effect that where, looking at the will as a whole, it appears that the
testator intended the first clause to apply, the arbitrary presumption that the later
clause prevails should not be applied.

Re Alexander’s Will Trusts

It was held that where the inconsistency consists of giving the same property to
different persons in different clauses, the persons should both take an interest in the
property as joint tenants or tenants in common.

The Indian Succession Act, 1925 lays down four rules of construction where a will
purports to make two bequests to the same person, and nothing appears in the
will to show the testator’s intention whether the latter bequest was to be
cumulative or to be substitutional only.

First – The same specific thing is bequeathed twice to the same legatee in the
same will, or in the will and again in a codicil, he is entitled to receive that specific
thing only.

Second – Where one and the same will or one and the same codicil purports to
make, in two places, a bequest to the same person of the same quantity or amount
of anything, he shall be entitled to one such legacy only.

Third – Where two legacies of unequal amount are given to the same person in the
same will, or in the same codicil, the legatee is entitled to both.
370 5. Rules of Construction of Wills

Fourth – Where two legacies, whether equal or unequal in amount, are given to
the same legatee, one by a will and the other by a codicil, or each by a different
codicil, the legatee is entitled to both legacies.

‘ARMCHAIR RULE’

In construing the will, the court can put itself in the testator’s position at the time
he or she made their will, in order to understand the words of the will itself.

Boyes vs. Cook

James LJ said, “You may place yourself so to speak, in [the testator’s] armchair and
consider the circumstances by which he was surrounded, when he made his will to
assist you in arriving at his intention”.

The object of this exercise is so that the court can make itself aware of the facts
which were known to the testator at the time of the execution of the will.

The armchair rule is used most commonly to identify the beneficiary or the subject
matter of the gift. It is applied by the courts following two steps:

1. construing the will without reference to the surrounding circumstances;

2. applying the apparent effect of the will to the surrounding circumstances to

ascertain that the will is being construed in accordance with the circumstances
which prevailed at the time when the will was made.

It is essential to understand that the armchair rule can only be used to confirm
the apparent effect of a will or to shed light on vague terms. It cannot be used to
alter the effect of the words used in the will if those words are clear and
unambiguous.

A WILL SPEAKS FROM THE TESTATOR’S DEATH

A will speaks from the testator’s death. Where property is bequeathed to any
person, he is entitled to the whole interest of the testator therein, unless a
restricted interest appears to have been intended for him. In the case of a bequest
in the alternative, the legatee first named shall be entitled to the legacy, if he be
alive at the time when it takes effect; but if he be then dead, the person or class of
persons named in the second branch of the alternative shall take the legacy.
 5. Rules of Construction of Wills 371

TREATMENT OF AMBIGUITY

‘Ambiguity’ arises where an expression or a sentence is capable of giving more

than one meaning at the same time.

Examples

1. “When the accident took place, the vehicle was on the right side of the road”. Here,
‘right’ is the ambiguous word. It may mean ‘right hand side of the road’, or ‘proper
side of the road’, i.e., left side of the road.

2. “Pay by cheque only if the bill amount is more than Rs. 1,000”. This is an
ambiguous sentence. Does it mean that the bill may be paid by cheque only where
the amount is more than Rs. 1,000 and not less? Or does it mean that where the
bill amount is more than Rs. 1,000 it may be paid by cheque only and not in
cash?

Ambiguities, for the purpose of rules of construction of wills, are of two types:

1. patent ambiguity; and

2. latent ambiguity.

Patent ambiguity is ambiguity which is apparent on the face of the will. Mere
reading of the will shows that there is an ambiguity. Oral evidence is not admitted
to prove the correct meaning of the expression.

Example

A, by his will gives “my black horse or white horse to B”. The bequest is ambiguous.
It is not clear whether A intended to give white horse or black horse to B. Oral
evidence is not admitted to prove which of the horse was intended by A to be given to
B.

Latent ambiguity is ambiguity which is not apparent on the face of the will. Mere
reading of the will does not show that there is an ambiguity. Only when effect is to
be given to the will the ambiguity comes to the surface. Oral evidence is admitted
to prove the correct meaning of the expression.

Example

A, by his will gives “my horse to B”. There is no ambiguity in the bequest. But when
the effect is sought to be given to the bequest, it is known that A had two horse, one
black and one white. It is not clear whether A intended to give white horse or black
horse to B. Oral evidence is admitted to prove which of the horse was intended by A
to be given to B.
 6. ADMINISTRATION OF ESTATE OF A DECEASED
‘Estate’ includes all the moveable and immoveable property, of the deceased including
debts due to him.

‘Administration of estate’ means collecting all the properties and recovering debts and
distributing them among the legal heirs of the deceased in case of intestate succession
and among the legatees of the deceased in case of testamentary succession.

In case of testamentary succession, executor discharges the function of administration

of the estate of the testator, while in case of intestate succession, this task is done by the
administrator.

EXECUTOR

Sec. 2(e) defines ‘executor’ as “‘executor’ means a person to whom the execution of the
last will of a deceased person is, by the testator’s appointment, confided.”

Thus, executor is a person appointed by the testator through his will to administer his
estate after his death.

The above statement means three things:

1. Executor may be appointed by testator only. No other person or Court can appoint an
executor.

2. Executor may be appointed only through a will or a codicil.

3. Function of an executor is to administer the estate of the testator after his death.

PROBATE

Probate is nothing but the will on which the competent Court puts its seal. Once the
Court puts its seal on a will, the will is said to be probated, or that probate is granted for
the will. Under sec. 41 of the Indian Evidence Act, 1872, read with sec. 227 of the Indian
Succession Act, 1925, grant of probate is the conclusive proof that the will is genuine
and that the testator has sound deposing mind at the time of making the will.

Probate is the proof of the authority of the executor to collect his properties. Thus, if a
bank or a debtor has to pay money to a person claiming to the executor, there should be
come evidence that they are paying the money to a right person, and their liability will be
discharged by such payment. Probate is that evidence.
 Administrator 373

ADMINISTRATOR

Sec. 2(a) defines administrator as “‘administrator’ means a person appointed by

competent authority to administer the estate of a deceased person when there is
no executor.

Administrator is appointed by a competent Court, by issuing a letter of

administration. An administrator can only be appointed by a competent Court as
distinguished from an executor who can only be appointed by a person by his will
or codicil.

If a person dies intestate, letters of administration of his estate are granted under
secs. 218 and 219 to the person or persons as provided in those sections. Such
person is called an administrator.

LETTERS OF ADMINISTRATION

Letters of administration are also granted under sec. 232 when a person dies
leaving a will but

1. has not appointed an executor; or

2. if the executor appointed by the will

(a) is legally incapable;

(b) or refuses to act; or

(c) dies before the testator or before he has proved the will.

In these cases letters of administration with the will annexed are granted to the
person mentioned in that section. Such letters of administration are called ‘letters
of administration testamento annexo’ or ‘letters of administration with will
annexed’. This is because, grant of letter of administration is conclusive proof of
intestacy of the deceased. If the will is attached to the letter of administration,
then the presumption of intestacy is removed.

Under the same section if a proving executor dies without fully administering the
estate letters of administration with the will annexed are also granted.

There are also other cases when letters of administration are granted. (See sec.s
240-247, 249-254, 256, 258 and 260). A person to whom grant of letters of
administration is made under these sections is also called an administrator.
374 6. Administration of Estate of a Deceased

POWERS OF EXECUTORS AND ADMINISTRATORS

Sec.s 305 -315 of the Indian Succession Act, 1925 deal with the powers of
executors and administrators.

1. In respect of causes of action surviving deceased, and debts due at death;

2. In respect of demands and rights of action of or against deceased;

3. Power to dispose of property of the deceased;

4. General powers of administration of the estate of the deceased;

1. POWERS IN RESPECT OF CAUSES OF ACTION AND DEBTS

By virtue of sec. 211 all the property of the deceased vests in the executor or
administrator. Sec. 305 lays down that the executor or an administrator alone can
sue in respect of any cause of action which survives the deceased. Sec. 306 makes
clear what those causes of action are.

Hence an executor or an administrator completely represents the estate and all

the rights and liabilities of the deceased are in him and him alone. All the rights
which the deceased could have exercised in his lifetime and ail the liabilities to
which the deceased was subject vest in the executor or administrator.

Sec. 37 of the Indian Contract Act, 1872 provides that “Promises bind the
representatives of the promisors in case of the death of such promisors before
performance, unless a contrary intention appears from the contract.” Therefore, on
the death of a person all obligations, contracts, debts and other engagements
survive to and against his executors or administrators.

The causes of action which survive are either in contract or in tort and the liability
of the executors or administrators is not personal but to the extent of the assets of
the deceased which come to their hands.

2. POWERS IN RESPECT OF DEMANDS AND RIGHTS OF ACTION

Sec. 306 lays down that all the rights to prosecute or defend any action or
proceedings survive to and against his executors or administrators. This section
gives the right to an executor or administrator and not to an heir of the deceased.
The words ‘executors or administrators’ mean persons who are appointed by the
Court to administrator the estate of the deceased person.
 Powers of Executors and Administrators 375

3. POWER TO DISPOSE OF PROPERTY

Sec. 307 gives to the executor power to dispose of the property of the testator
wholly or in part. However, the extent of the power of the executor or
administrator depends upon the religion of the deceased.

If the deceased is a European, Parsi or Indian Christian, A transfer of the property

by an executor is valid without any reference to Court and without any reference
to the provisions of the will, even if the property is specifically bequeathed.

Illustrations

(i) The deceased has made a specific bequest of part of his property. The executor,
not having assented to the bequest, sells the subject of it. The sale is valid.

(ii) The executor in the exercise of his discretion mortgages a part of the immoveable
estate of the deceased. The mortgage is valid.

The transfer is valid unless it be established that the transfer was without
consideration or that the transferee had notice that the executor was acting in
breach of trust.

If the deceased was a Hindu, Muhammadan, Buddhist, Sikh, or Jaina, or an

exempted person, the general power conferred by Sec. 307(1) is subject to the
following restrictions and conditions.

The power of an executor to dispose of immoveable property so vested in him is

subject to any restriction which may be imposed in this behalf by the will
appointing him, unless probate has been granted to him and the Court which
granted the probate permits him by an order in writing, notwithstanding the
restriction, to dispose of any immoveable property specified in the order in a
manner permitted by the order.

An administrator may not, without the previous permission of the Court by which
the letters of administration were granted,

(a) mortgage, charge or transfer by sale, gift, exchange or otherwise any

immoveable property for the time being vested in him under sec. 211, or

(b) lease any such property for a term exceeding five years.

A disposal of property by an executor or administrator in contravention of relevant

clause is voidable at the instance of any other person interested in the property.
376 6. Administration of Estate of a Deceased

4. GENERAL POWERS OF ADMINISTRATION

Sec. 308 empowers an executor or administrator to, in addition to, and not in
derogation of, any other powers of expenditure lawfully exercisable by him, incur
expenditure

(a) on such acts as may be necessary for the proper care or management of any
property belonging to any estate administered by him, and

(b) with the sanction of the High Court, on such religious, charitable and other
objects, and on such improvements, as may be reasonable and proper in the
case of such property.

A legal representative has power to incur expenditure for the proper management
of the estate of the deceased. If the property is in disrepair he has power to incur
expenditure to put it in proper repairs. In all such acts with regard to the
management of the property entrusted to him, he must act with the same degree
of care as a man of ordinary prudence would in his own affairs.

An executor or administrator has the power to

1. perform contracts entered into by the deceased; and

2. carry on business of the deceased.

He may appoint agents subject to delegatus non potest delegare, and he may also
appoint servants for exercising his powers.

Other Aspects of Powers of Executors and Administrators

An executor or administrator shall not be entitled to receive or retain any commission or

agency charges at a higher rate than that for the time being fixed in respect of the
Administrator General.

If any executor or administrator purchases, either directly Or indirectly, any part of the
property of the deceased, the sale is voidable at the instance of any Other person
interested in the property sold.

When there are several executors or administrators, the powers of all may, in the absence
of any direction to the contrary, be exercised by any one of them who has proved the will
or taken out administration.

Upon the death of one or more of several executors or administrators, in the absence of
any direction to the Contrary in the will or grant of letters of administration, all the
powers of the office become vested in the survivors or survivor.
 Duties of Executors and Administrators 377

DUTIES OF EXECUTORS AND ADMINISTRATORS

Sec.s 316 -331 of the Indian Succession Act, 1925 deal with the duties of
executors and administrators.

1. In respect of deceased’s funeral;

2. In respect of inventory and account;

3. In respect of payment of expenses and debts;

4. In respect of payment of legacies.

1. IN RESPECT OF DECEASED’S FUNERAL

A man cannot dispose of his body by his ill and after death the custody and
possession of the body belong to his executors until it is buried. But it is the duty
of the executor to give effect to the wishes of the deceased and if the deceased has
left no directions, the executor must dispose of the body in the usual manner
prevailing in the community and the caste to which the deceased belonged.

The deceased should be buried in a manner suitable to the estate he leaves behind
and funeral expenses according to the degree and quality of the deceased are
allowed. Expenses for this purpose will have precedence over all other liabilities.

2. IN RESPECT OF INVENTORY AND ACCOUNT

Inventory: Sec. 317(1) places a statutory obligation upon the executors and
administrators to exhibit in Court an inventory of all the property moveable and
immoveable and of all credits and debts due to the estate of the deceased within
six months from the date of grant without any proceedings calling upon them to
do so.

Accounts: Sec. 317(1) does not make it obligatory on the Court to require an
executor or administrator to exhibit an inventory and account. It merely imposes a
duty on the executor or administrator to do so. If he does not do so the Court may
require him to do so.

A statutory obligation is also placed on the legal representatives to exhibit, within

one year from the date of grant, an account of the estate showing the assets come
to his hands and of the disbursements thereof. The account must show the assets
come to his hands and the manner in which they have been applied.
378 6. Administration of Estate of a Deceased

3. IN RESPECT OF PAYMENT OF EXPENSES AND DEBTS

Sec. 319 requires the executor or administrator to collect, with reasonsable

diligence, the property of the deceased and the debts that were due to him at the
time of his death.

Expenses to be Paid Before all Debts

Sec.s 320, 321 and 322 provide for the expenses to be paid before all debts:

1. (a) Funeral expenses to a reasonable amount, according to the degree and

quality of the deceased,

(b) death-bed charges, including fees for medical attendance, and

(c) board and lodging for one month previous to his death.

2. The expenses of obtaining probate or letters of administration, including the

costs incurred for or in respect of any judicial proceedings that may be
necessary for administering the estate, shall be paid next after the funeral
expenses and death-bed charges.

3. Wages due for services rendered to the deceased within three months next
preceding his death by any labourer, artisan or domestic servant shall next be
paid, and then the other debts of the deceased according to their respective
priorities.

4. IN RESPECT OF PAYMENT OF LEGACIES

Sec. 323 provides that Save as aforesaid, i.e., sec.s 320-322, no creditor shall have
a right of priority over another; but the executor or administrator shall pay all
such debts as he knows of, including his own, equally and rateably as far as the
assets of the deceased will extend.

There is no rule of law that it is the duty of executors to pay the debts of the
testator within a year of his death. Apart from any provisions contained in the will
which expressly or impliedly deal with the payment of debts, it is the duty of
executors as a matter of due administration of the estate, to pay the debts of the
testator with due diligence, having regard to the assets in their hands which are
properly applicable for the purpose. In determining whether due deligence has
been shown regard must be had to all the circumstances of the case.

An executor or an administrator may pay a debt barred by limitation.

 Succession Certificate 379

SUCCESSION CERTIFICATE

A succession certificate is issued by a civil court to the legal heirs of a deceased

person. If a person dies without leaving a will, a succession certificate can be
granted by the court to realise the debts and securities of the deceased.

It establishes the authenticity of the heirs and gives them the authority to have
securities and other assets transferred in their names as well as inherit debts. It is
issued as per the applicable laws of inheritance on an application made by a
beneficiary to a court of competent jurisdiction. A succession certificate is
necessary, but not always sufficient, to release the assets of the deceased. For
these, a death certificate, letter of administration and no-objection certificates will
be needed.

A succession certificate, strictly speaking, does not effect adjudication of title of

the deceased far less than that of the holder as regards the debts and securities
covered thereunder. Yet, simply to afford protection to the parties paying the
debts. The grant of succession certificate is conclusive against the debtor. A
succession certificate is conclusive as against the persons liable to whom full
indemnity is afforded for payments made.

But, despite the succession certificate is only conclusive of the representative title
of the holder thereof as against the debtors, a suit of declaration will not lie that
the holder of the certificate is not the legal representative of the deceased.

PROCEDURE FOR OBTAINING SUCCESSION CERTIFICATE

The beneficiary has to approach a competent court and file a petition for a
succession certificate.

The District Court within whose jurisdiction the deceased ordinarily resided at the
time of his death is the competent court. If deceased did not have any fixed place
of residence at the time of his death, the District Court, within whose jurisdiction
any part of the property of the deceased is situate, is the competent court.

The petition should mention important details such as the name of petitioner,
relationship with the deceased, names of all heirs of the deceased, time, date and
place of death. Along with the petition, death certificate and any other document
that the court may require should also be attached.

The court, after examining the petition, issues a notice to all concerned parties
and also issues a notice in a newspaper and specifies a time frame (usually one
380 6. Administration of Estate of a Deceased

and a half months) within which anyone who has objections may raise them. If no
one contests the notice and the court is satisfied, it passes an order to issue a
succession certificate to the petitioner.

If there is more than one petitioner, then the court may jointly grant them a
certificate but it will not grant more than one certificate for a single asset.

When the District Judge grants a succession certificate, he shall specify the debts
and securities set forth in the application for the certificate, and may thereby
empower the person to whom the certificate is granted

(a) to receive interest or dividends on the securities;

(b) to negotiate or transfer the securities;

(c) both to receive interest or dividends or negotiate or transfer the securities.

 7. PROTECTION OF PROPERTY OF THE DECEASED
Part VII of the Indian Succession Act, 1925 deals with the Protection of Property of
Deceased. Provisions of this Part do not apply to the case of a family governed by the
Mitakshara law.

The object of this Part is to provide a summary procedure for the protection of property
in cases of dispute as to succession. It is in the nature of an interlocutory proceeding
asking the Court to determine who has the right to possession pending the final
determination of the right of the parties in a regular suit.

Where the actual possession of a property, to which a person has a right of succession,
has been taken by another person, or when forcible means of seizing possession are
apprehended, may make application for relief under sec. 192, to the District Judge of the
district where any part of the property is situate.

The word ‘succession’ used in sec. 192 applies not only to intestate succession but also
applies to testamentary succession.

APPOINTMENT OF CURATOR

The necessary conditions before a curator is appointed under this Part are:

1. that the applicant must show that he has an interest in the property;

2. that there is danger of misappropriation or waste of the property;

3. that the applicant will be materially prejudiced if left to the ordinary remedy of a suit;

4. that the application is bona fide, (sec. 193); and

5. the application is made within six months of the death of the owner of the property,
(sec. 205).

All these conditions must be fulfilled before a curator can be appointed.

No curator can be appointed of a property of which there is a trust made or of any

direction in respect thereof made in a will by the deceased owner of the property to take
effect after his death (Sec. 206).

The section requires that before appointing a curator the District Judge should ask the
party in possession to give security. It is only when that party makes delay in providing
security or the security is found insufficient that the Judge can pass an order appointing
curator. When the party in possession was never asked to give any security, the order of
appointment of curator is liable to be set aside.
382 7. Protection of Property of the Deceased

POWERS AND DUTIES OF CURATOR

Curator shall have power

1. to take possession of the property,

2. to manage the property,

3. to recover debts and rents, and

4. to file and defend suits.

The order of appointment must expressly state that the curator is empowered to
recover debts and rents. The power to collect debts contains by implication a
power to sue for their recovery. All payments made to the curator shall be valid
and will discharge the person paying the same.

A curator is an officer of the Court and shall be subject to all orders of the District
Judge. If any suit is to be instituted by the curator he must do so after obtaining
the leave of the Court. If any person wants to bring a suit against the curator he
must also apply to the District Judge who appointed him for leave to institute the
suit against the curator. The suit should be instituted or defended in the name of
the curator. It is not necessary that the Curator must be specifically authorised by
the District Judge to institute or defend the suit.

Where, however, a succession certificate, probate, or letters of administration are

granted, the curator shall not have authority to exercise any power belonging to
the holder of the certificate or to the executor or administrator.

Curator must give security and render faithful account of his management. He
shall be subject to all the orders of the District Judge.

POSITION OF CURATOR

His position is analogous to that of a receiver appointed by Court under Oder XL,
R. 1 of the Code of Civil Procedure.

In Babasab vs. Narsappa it is stated that the curator appointed under Act is not a
person claiming the property of the deceased whose estate he is appointed to
manage. Therefore, he is not required to take out a certificate under it before he
can obtain a decree.

He is not a representative of the deceased but is merely entrusted by the Court

with certain powers over the estate for a temporary purpose.
 PART IV
FAMILY COURTS ACT, 1984
AND
UNIFORM CIVIL CODE
 1. FAMILY COURTS ACT, 1984
Until 1984, matrimonial and other family matters fell within the jurisdiction of the
ordinary civil courts of the country, where other civil matters were also litigated. It is
generally accepted that litigation in family matters needs to be less formal and less
adverserial. Courts should endeavour to save and stabilise the institution of marriage,
rather than destroy it.

Therefore, most western countries had established special courts, known as Family
Courts, to deal with diverse matters like divorce, separation, maintenance, custody of
children, etc. It was with these social objectives in mind that India opted for the
establishment of family courts by passing the Family Courts Act in 1984.

SALIENT FEATURES OF THE ACT

The following are the salient features of the Family Courts Act, 1984:

1. Family Courts are empowered to formulate their own procedures but till then they
have to follow the Civil Procedure Code.

2. Evidence need not be recorded in detail.

3. Judgement may be concise with statement of the case, points for determining decision
and reasons.

4. If the party desires, in camera proceedings can be conducted.

5. No party to a suit or proceeding under the Family Court shall be entitled to be

represented by a legal practitioner but the court may requisition the services of a legal
expert as amicus curiae.

6. Association of Social Welfare Agencies: The State Government may, in consultation

with the High Court, provide, by rules, for the association, in such manner and for
such purposes and subject to such conditions as may be specified in the rules, with a
Family Court of,

(a) institutions or organisations engaged in social welfare or the representatives

thereof;

(b) persons professionally engaged in promoting the welfare of the family;

(c) persons working the field of social welfare; and

(d) any other person whose association with a Family Court would enable it to exercise
its jurisdiction more effectively in accordance with the purposes of this Act.
386 1. Family Courts Act, 1984

‘FAMILY COURT’
Sec. 2(d) of the ‘Family Court’ means a Family Court established under sec. 3.

Sec. 3 provides that

(1) For the purpose of exercising the jurisdiction and powers conferred on a
Family Court by this Act, the State Government, after consultation with the
High Court, and by notification,

(a) shall, as soon as may be after the commencement of this Act, established
for every area in the State comprising of city or town whose population
exceeds one million, a Family Court;

(b) may establish Family Courts for such other areas in the State as it may
deem necessary.

(2) The State Government shall, after consultation with the High Court, specify, by
notification, the local limits of the area to which the jurisdiction of a Family
Court shall extend and may, at any time, increase, reduce or alter such limits.

CONSTITUTION

According to sec. 4, the State Government may, with the concurrence of the High
Court, appoint one or more persons to be the Judge or Judges of a Family Court.

When a Family Court consists of more than one Judge,

(a) each of the Judges may exercise all or any of the powers conferred on the
Court by this Act or any other law for the time being in force;

(b) the State Government may, with the concurrence of the High Court, appoint
any of the Judges to be the Principal Judge and any other Judge to be the
Additional Principal Judge;

(c) the Principal Judge may, from time to time, make such arrangements as he
may deem fit for the distribution of the business of the Court among the
various Judges thereof;

(d) the Additional Principal Judge may exercise the powers of the Principal Judge
in the event of any vacancy in the office of the Principal Judge or when the
Principal Judge is unable to discharge his functions owing to absence, illness
or any other cause.
 Constitution 387

Sec. 4(3) provides for the qualifications of the judges of Family Court: Accordingly,
a person shall not be qualified for appointment as a Judge unless he,

(a) has for at least seven years held a judicial office in India or the office of a
Member of a Tribunal or any post under the Union or a State requiring special
knowledge of law; or

(b) has for at least seven years been an advocate of a High Court or of two or more
such Courts in succession; or

(c) possesses such other qualifications as the Central Government may, with the
concurrence of the Chief Justice of India, prescribe.

Sec. 4(4) advises the Government to have the following considerations in mind
while appointing judges to the Family Courts:

In selecting persons for appointment as Judges,

(a) every endeavour shall be made to ensure that persons committed to the need
to protect and preserve the institution of marriage and to promote the welfare
of children and qualified by reason of their experience and expertise to promote
the settlement of disputes by conciliation and counselling are selected; and

(b) preference shall be given to women.

JURISDICTION

1. Family Court exercises all the jurisdiction exercisable by any District Court or
any subordinate civil court under in respect of suits and proceedings for

(a) (i) a decree of nullity of marriage; or

(ii) restitution of conjugal rights;

(iii) judicial separation; or

(iv) dissolution of marriage;

(b) declaration

(i) as to the validity of a marriage; or

(ii) as to the matrimonial status of any person;

(c) the property of the parties or of either of them;

(d) an order or injunction in circumstance arising out of a marital relationship;

388 1. Family Courts Act, 1984

(e) a declaration as to the legitimacy of any person;

(f) maintenance;

(g) the guardianship of the person or the custody of, or access to, any minor.

2. A Family Court shall also have and exercise the jurisdiction exercisable by a
Magistrate of the First Class relating to order for maintenance of wife, children
and parents under the Code of Criminal Procedure, 1973.

3. A Family Court shall also have such other jurisdiction as may be conferred on it
by any other enactment.

Jurisdiction of the Family Court in the matters enumerated above is exclusive, i.e.,
in respect of those matters, the jurisdiction of ordinary civil and criminal courts is
barred.
 2. UNIFORM CIVIL CODE
India has multiplicity of family laws. The Christians have their Christians Marriage Act
1872, the Indian Divorce Act, 1869 and the Indian Succession Act, 1925. The Jews have
their uncodified customary marriage law and in their succession matters they are
governed by the Indian Succession Act of 1925. The Parsis have their own Parsi Marriage
and Divorce Act, 1936, and their own separate law of inheritance contained in the Indian
Succession Act, 1925. Hindus and Muslims have their own separate personal laws.

Hindu law has by and large been secularized and modernized by statutory enactments.
On the other hand Muslim law is still primarily unmodified and traditional its content
and approach.

The law is communal insofar as each community or religious group has its own distinct
law to govern domestic relations. It is also personal insofar as each person carries his
own law wherever he goes in India. The family law is partly statutory and partly
customary. There in no lex loci in India in matters of marriage, succession and family-
relations.

MERITS OF UNIFORM CIVIL CODE

If a Common Civil Code is enacted and enforced:

1. It world help and accelerate national integration;

2. Overlapping provisions of law could be avoided;

3. Litigation due to personal law world decrease;

4. Sense of oneness and the national spirit would be roused, and

The country would emerge with new force and power to face any odds finally defeating
the communal and the divisionist forces. Israel, Japan, France and Russia are strong
today because of their sense of oneness which we have yet to develop and propagate.

According to the Committee on the Status of Women in India:

“The continuance of various personal laws which accept discrimination between men and
women violate the fundamental rights and the Preamble to the Constitution which promises
to secure to all citizens “equality of status, and is against the spirit of natural integration”.
The Committee recommended expeditious implementation of the constitutional directive in
art. 44 by adopting a Uniform Civil Code.
390 2. Uniform Civil Code

CONSTITUTIONAL ASPECT

With a view to achieve uniformity of law, its secularization and making it equitable
and non-discriminatory, the Constitution contains art. 44 of the Directive
Principles of State Policy which runs as follows; “The State shall endeavour to
secure for the citizens a uniform civil code throughout the territory of India”.

The secular activities, such as inheritance covered by personal laws should be

separated from religion. A uniform law thus prepared and made applicable to all
would on the contrary promote national unity. It was pointed out at that time that,

1. Common Civil Code would infringe the fundamental right of freedom of religion
as mentioned in art. 25 and

2. it would amount to a tyranny to the minority.

The first objection is misconceived because secular activity associated with

religious practice is exempted from this guarantee. Further, as personal laws
pertain to secular activities, they fall within the regulatory power of the state.

Regarding the second point, nowhere in advanced Muslim countries has the
personal law of each minority been recognized as so sacrosanct as to prevent the
enactment of a civil code. In Turkey and Egypt no minority is permitted to have
such rights.

If we look at the countries in Europe which have a civil code, everyone who goes
there from any part of the world and every minority has to follow the Civil Code. It
is not felt to be tyrannical to the minority. Our first problem and the most
important problem is to produce national unity in this country. We think we have
got national unity, but there are many important factors which still offer serious
dangers to our national consolidation.

Communalism breeds discrimination at two levels:

1. between people of different religions, and

2. between the two sexes.

This dangerous and ruinous effect should be done away with, possibly by
introducing a Uniform Civil Code. For women who constitute almost half the
population of India, the Uniform Civil Code provides with equality and justice in
courts of law irrespective of their religion in matters pertaining to marriage,
divorce, maintenance, custody of children, inheritance rights, adoption, etc.
 Constitutional Aspect 391

The only step taken forward in this direction was the codification of the Hindu law
in spite of great protest; but the codification of Muslim law or enacting a Common
Civil Code is a sensitive issue owing to its politicization. Enlightened Muslim
opinion however, is in favour of codification.

JUDICIAL APPROACH
Mohammad Ahmed Khan vs. Shah Bano Begum

The Supreme Court for the first time, directed the Parliament to frame a UCC in the
year 1985 in this case, popularly known as the Shah Bano case.

In this case, a penurious Muslim women claimed for maintenance from her husband
under sec. 125 of the Code of Criminal Procedure after she was given triple talaq
from him. The Supreme Court held that the Muslim woman have a right to get
maintenance from her husband under sec. 125. The Court also held that art. 44 of
the Constitution has remained a dead letter. The then Chief Justice of India Y. V.
Chandrachud observed that, “A common civil code will help the cause of national
integration by removing disparate loyalties to law which have conflicting ideologies”

After this decision, nationwide discussions, meetings, and agitation were held. The
then Rajiv Gandhi led Government overturned the Shah Bano case decision by
way of Muslim Women (Right to Protection on Divorce) Act, 1986 which curtailed
the right of a Muslim woman for maintenance under sec. 125, Cr.P.C. The
explanation given for implementing this Act was that the Supreme Court had
merely made an observation for enacting the UCC; not binding on the government
or the Parliament and that there should be no interference with the personal laws
unless the demand comes from within.

Mary Roy vs. State of Kerala

The question argued before the Supreme Court was that certain provisions of the
Travancore Christian Succession Act, 1916, were unconstitutional under art. 14.
Under these provisions, on the death of an intestate, his widow was entitled to have
only a life interest terminable at her death or remarriage. It was also argued that the
Travancore Act had been superseded by the Indian Succession Act, 1925. The
Supreme Court avoided examining the question whether gender inequality in matters
of succession and inheritance violated art.14, but, nevertheless, ruled that the
Travancore Act had been superseded by the Indian Succession Act

Mary Roy has been characterized as a “momentous” decision in the direction of

ensuring gender equality in the matter of succession.
392 2. Uniform Civil Code

Sarla Mudgal vs. Union of India

Finally, the Supreme Court issued a directive to the Union of India to “endeavour”
framing a Uniform Civil Code and report to it by August, 1996 the steps taken. The
Supreme Court opined that: “Those who preferred to remain in India after the
partition fully knew that the Indian leaders did not believe in two-nation or three-
nation theory and that in the Indian Republic there was to be only one nation and no
community could claim to remain a separate entity on the basis of religion”.

In Lily Thomas the Supreme Court observed that the directives as detailed in
Part IV of the Constitution are not enforceable in courts as they do not create any
justiciable rights in favour of any person. The Supreme Court has no power to give
directions for enforcement of the Directive Principles. Therefore to allay all
apprehensions, it is reiterated that the Supreme Court had not issued any
directions for the codification of a Uniform Civil Code.

John Vallamattom & Anr. vs. Union of India

In this case, a Christian priest John Vallamatton knocked the doors of the Court
challenging the Constitutional validity of sec. 118 of the Indian Succession Act,
1925. He made a writ petition in the year 1997 stating that sec. 118 of the said Act
was discriminatory against the Christians as it imposes unreasonable restrictions on
their donation of property for religious or charitable purpose by will. The Court
struck down the Section declaring it to be unconstitutional. Chief justice Khare
stated that,

“We would like to State that art. 44 provides that the State shall endeavour to secure
for all citizens a uniform civil code throughout the territory of India it is a matter of
great regrets that art. 44 of the Constitution has been given effect to. Parliament is
still to step in for framing a common civil code in the country. A common civil code
will help the cause of national integration by removing the contradictions based on
ideologies”.

Thus, as seen above, the apex court has on several instances directed the
government of realize the Directive Principle enshrined in our Constitution and the
urgency to do so can be inferred from the same.