Testator can make will only of those properties of which he is the owner #indianlaws

Will is to be executed with regard to the property which the testator possesses, and the dispute, if any, relating to the same is not to be scuttled down under proceeding brought under probate. 

An appeal was preferred under Section 299 of the Indian Succession Act against the judgment allowing grant of probate with regard to a will in question. The question before the Court was to decide on validity of will in question as presence of suspicious circumstances was contended.

It was observed that the law is well settled that mode of proving the Will does not differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a Will by Section 63 of the Indian Succession Act, 1925. The onus to prove the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and proof of the signature of the testator, as required by law, need be sufficient to discharge the onus. Where there are suspicious circumstances, the onus would again be on the propounder to explain them to the satisfaction of the court before the Will can be accepted as genuine. Proof in either case cannot be mathematically precise and certain and should be one of satisfaction of a prudent mind in such matters. In case the person contesting the Will alleges undue influence, fraud or coercion, the onus will be on him to prove the same. As to what are suspicious circumstances has to be judged in the facts and circumstances of each particular case. Suspicious circumstances thus have to be identified, and the applicant is under obligation to explain.

Court while deciding the issue made critical analysis of “Will” as a phenomenon whereunder executor is at liberty to settle his desire, intention relating to property possessed by him. Will, in terms of Indian Succession Act, happens to be of a typical nature in the back ground of possessing some sort of peculiar character. The first one, like other documents to be registered in case consideration exceeds more than Rs.100, it has got no such obligation. The other one with regard to creation of a Will, the executant has got his option opened till his death by way of revocation which other kinds of document did not permit, the next one, the other kind of documents become operative during the life time of executant while Will is always operative after death of executant. Therefore, its recognization always happens to be posthumous.

Indian Succession Act deals with the definition of will, requirement of will and further, having its acknowledgement in the eye of law by way of granting probate as well as letter of administration, according to desire of the executant, identifying the proper forum to entertain such prayer along with procedural law providing other kind of legal amenities. Section 2(h) of the Indian Succession Act defines “Will” as legal declaration of the intention of the testator with respect to his property which he desires to be carried into effect after his death.

Document, if to be considered as Will must fulfil the following ingredients:

  1. Legal declaration at the testator’s intention;
  2. That declaration must be with respect to his property;
  3. The desire of testator which should be effectuated after his death means that the legal declaration should be relating to the property belonging to testator, which happens to be volatile till it is finally settled.

Section 59 of the Indian Succession Act provides for person capable of making Wills. As per this, as apparent, it not only permits execution of will by the executant regarding his property, rather it also prescribes qualification thereto. The person having his incapability to perceive what he is going to do on account of intoxication or from illness or from any other cause, is further found complimented with illustration No. III and being so, evidence on that score must be brought up on record.

Not only the Indian Succession Act abandoned to define property, it also failed to incorporate whether the definition of property having in different text be taken into account while dealing with the subject. As per dictionary meaning, property means, as the right and interest which a man has in lands and chattels to the exclusion of others. The term “property” is a generic term of extensive application, and while strictly speaking, it means only the right which a person has in relation to something, or that dominion or indefinite right of user and dispossession which one may lawfully exercise over particular things or object, it is frequently used to denote the subject of the property, or thing itself which is owned or in relation to which the right of property exists. In the further sense, it extends to every species of valuable right and interest, in either real or personal property, or in easements, franchises and in corporal hereditaments, and in the latter to everything which is the subject of ownership in which the right of property may legally attach, or in other words every class of acquisitions which a man can own enhance an interest in.

Will is to be executed with regard to the property which the testator possesses, and the dispute, if any, relating to the same is not to be scuttle down under proceeding brought under probate.

[Mt. Kewala Devi & Anr. Vs. Sri Krishna Devi & Anr.]

(Patna HC, 15.12.2015) – MA No.172 of 2012