Supreme court :Immovable Property can not be transferred by general power of attorney,will,or agreement of sale

Therefore, a SA/GPA/WILL transaction does not convey any title nor create any interest in an immovable property. The observations by the Delhi High Court, in Asha M. Jain v. Canara Bank MANU/DE/1304/2001 : 94 (2001) DLT 841 that the "concept of power of attorney sales have been recognized as a mode of transaction" when dealing with transactions by way of SA/GPA/WILL are unwarranted and not justified, unintended misleading the general public into thinking that SA/GPA/WILL transactions are some kind of a recognized or accepted mode of transfer and that it can be a valid substitute for a sale deed. Such decisions to the extent they recognize or accept SA/GPA/WILL transactions as concluded transfers, as contrasted from an agreement to transfer, are not good law.

16. We therefore reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance. Transactions of the nature of 'GPA sales' or 'SA/GPA/WILL transfers' do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immoveable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property. They cannot be recognized as deeds of title, except to the limited extent of Section 53A of the Transfer of Property Act. Such transactions cannot be relied upon or made the basis for mutations in Municipal or Revenue Records. What is stated above will apply not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered Assignment of Lease. It is time that an end is put to the pernicious practice of SA/GPA/WILL transactions known as GPA sales.

IN THE SUPREME COURT OF INDIA

Special Leave Petition (C) No. 13917 of 2009

Decided On: 11.10.2011

Suraj Lamp and Industries Pvt. Ltd. Vs. State of Haryana and Anr.

Hon'ble Judges/Coram:

R.V. Raveendran, A.K. Patnaik and H.L. Gokhale, JJ.

Citation: (2012) 1 SCC 656

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Whether person claiming ownership on basis of will is to be impleaded in landlord tenant suit?

 I have given my thoughtful consideration to the arguments advanced by learned Counsel for the petitioner but I have not been able to persuade myself to agree with the same. The question as to who is entitled to rent from respondent No. 1 has necessarily to be decided by the Trial Court. Since respondent No. 2, Om Prakash Sharma, is claiming to have inherited the property by virtue of Will alleged to have been executed by Prem Devi, the question as to whether or not there was a relationship of landlord and tenant between the plaintiff and respondent No. 2 has to be decided by the Trial Court. In case, it is held by the Court that petitioner is not the landlord, his suit may have to be dismissed. In my view, without the presence of respondent No. 2, it may not be possible for the Court to decide the question as to whether there was a relationship of landlord and tenant between the parties. Learned Trial Court has, Therefore, rightly allowed the application since the presence of respondent No. 2 was material and necessary for deciding the matters in controversy between the parties in the suit. In my view, the Trial Court has neither exceeded its jurisdiction in allowing the application of respondent No. 2 nor there is any jurisdictional error in the impugned order.

IN THE HIGH COURT OF DELHI

Civil Revision No. 181 of 1994

Decided On: 18.01.2001

 Gayatri Devi Vs. Mangat Singh and Anr.

Hon'ble Judges/Coram:

S.K. Mahajan, J.

Citation: 2001(2) RCJ 616.

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What is doctrine of dependant relative revocation relating to proof of will?

 This Court had occasion to consider the doctrine of dependant relative revocation in Vadakkayil Gopalan v. Vadakkayil Paru and others [MANU/KE/0669/2013 : 2013 (3) KLT 69], wherein it has been held as follows:-

"The doctrine of dependent relative revocation is explained by Jarman on Wills, as follows:

"Where the act of destruction is connected with the making of another will, so as fairly to raise the inference that the testator meant the revocation of the old to depend upon the efficacy of the new disposition intended to be substituted, such will be the legal effect of the transaction and therefore, if the will intended to be substituted is inoperative from defect of attestation or any other cause, the revocation fails also, and the original will remains in force. The doctrine, which has been described as somewhat overloaded with unnecessary polysyllables, applies whenever the intention to revoke a will is conditional only and the condition is not fulfilled, and the doctrine may apply although the later will is partially effective."

Of course, this Court has held that even in cases wherein the doctrine of dependent relative revocation can be applied, it does not mean that the genuineness of the contents of the earlier will have to be swallowed and taken as granted without proof of the contents of the Will as contemplated under Section 63 of the Indian Succession Act read with Section 68 of the Indian Evidence Act.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

RSA No. 779 of 2011 (A)

Decided On: 07.03.2017

K.C. Bindu and Ors. Vs.Leela Kollandi and Ors.

Hon'ble Judges/Coram:

B. Kemal Pasha, J.

Citation: AIR 2017(NOC)1119 Kerala

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Whether amount can be withdrawn from bank account of deceased on basis of will only?

The   submission   of   the   learned   counsel   appearing   for   the
petitioner is that in view of the express provisions of the Indian
Succession Act, 1925 (for short “the Succession Act”) and the law
laid down by this Court, it is not mandatory for the petitioner to
obtain Letters of Administration or Probate on the basis of the

Will as the deceased was not a resident of Mumbai and the Will
does not affect any property in Mumbai.   The learned counsel
appearing for the petitioner placed reliance on the decisions of
this Court which hold that in such cases, Probate or Letters of
Administration is not mandatory in view of the express provisions
of Section 57 of the Succession Act.  He would, therefore, submit
that   the   Banks   cannot   insist   on   production   of   a   Succession
Certificate as the petitioner is making a claim on the basis of the
Registered  Will  of   the     account  holder.    The  learned  counsel
appearing for the respondent no.1 supported the stand taken in
the letter dated 1st July, 2014.
6. We   have   perused   a   copy   of   the   alleged   Will   of   deceased
Shevantibai.   The Will itself discloses that though her husband
pre­deceased her,  she was survived by her son and six married
daughters.  
7. Under Section 370 of the Succession Act, on production of a
Succession Certificate, the Banks will get a valid discharge.   In
the   present   case,   admittedly,   the   petitioner   is   not   a  nominee
appointed by the deceased account holder. The petitioner is not a
natural legal heir who is entitled to succeed to the assets of the
deceased as per the provisions of the Hindu Succession Act, 1956.

8. Therefore,   the   respondent   no.1   called   upon   the   petitioner   to
produce a Succession Certificate to facilitate the speedy disposal
of his claim.  We find no error in the approach adopted by the
bank when it insisted on the  petitioner producing a Succession
Certificate.     This   will   enable   the   Banks   to   obtain   a   valid
discharge.       We   may,  however,   hold  that   on   production  of  a
Succession Certificate under Section 370 of the Succession Act
issued by the Competent Court to the petitioner, the respondents
Banks will have to release to the petitioner the amounts standing
to   the   credit   of   the   accounts   held   by   deceased   Shevantibai
without insisting upon complying with other formalities such as
production of an indemnity bond, consent of the natural heirs
etc.   The reason is that if the Banks pay the amounts to the
petitioner on production of the Succession Certificate issued by
the Competent Court, the Banks will get a valid discharge.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.12350 OF 2015
Amol Rajgonda Patil vs.The Manager,Canara Bank & Anr. 
CORAM : A.S.OKA, & A. K. MENON, JJ.
                   DATE : 20th APRIL, 2017

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Whether title to immovable property can be transferred on basis of power of attorney or will?

Three Judge Bench of this Court in Suraj Lamp & Industries Pvt. Ltd.(2) vs. State of Haryana & Anr., (2012) 1 SCC 656, considered the validity of such SA/GPA/WILL transaction and observed thus:

"23. Therefore, an SA/GPA/WILL transaction does not convey any title nor creates any interest in an immovable property. The observations by the Delhi High Court in Asha M. Jain v. Canara Bank, (2001) 94 DLT 841, that the "concept of power-of-attorney sales has been recognised as a mode of transaction" when dealing with transactions by way of SA/GPA/WILL are unwarranted and not justified, unintendedly misleading the general public into thinking that SA/GPA/WILL transactions are some kind of a recognised or accepted mode of transfer and that it can be a valid substitute for a sale deed. Such decisions to the extent they recognise or accept SA/GPA/WILL transactions as concluded transfers, as contrasted from an agreement to transfer, are not good law.

24. We therefore reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance. Transactions of the nature of "GPA sales" or "SA/GPA/WILL transfers" do not convey title and do not amount to transfer, nor can they be recognised or valid mode of transfer of immovable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property. They cannot be recognised as deeds of title, except to the limited extent ofSection 53-A of the TP Act. Such transactions cannot be relied upon or made the basis for mutations in municipal or revenue records. What is stated above will apply not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered assignment of lease. It is time that an end is put to the pernicious practice of SA/GPA/WILL transactions known as GPA sales."
Reportable

Supreme Court of India

D.D.A vs Gaurav Kukreja on 24 March, 2015

Bench: V. Gopala Gowda, R. Banumathi

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Whether court can grant probate on basis of compromise?

What is more surprising is that the Probate application, although became contentious, was disposed of in terms of compromise which is not permissible under the law of the land. As pointed out by a Division Bench of this Court in the case of A.E.G. Carapiet vs. A.Y. Darderianreported in AIR 1961 Calcutta 559, the Probate Court being a Court of conscience, the Probate cannot be granted on the basis of compromise. In a proceeding for grant of Probate it is the duty of the Probate Court to see whether the Will was the last Will of the testator, whether he had full mental capacity to execute the Will, whether the same was executed and attested after compliance of the requirements of the Indian Succession Act and whether the same was executed without being vitiated by force, fraud, undue influence etc. Apart from those questions, a Probate Court cannot go into the question of title of the testator in the subject-matter of bequest nor can a Court grant a Probate which is at variance with the terms of the Will. (See: Uma Addhya vs. Biren Mondal and others reported in 2006(2) CHN 680).

Even if any compromise is recorded after actual grant of Probate on proof of the Will for keeping it on record, the same is never made part of the Probate and separate suit is to be filed for specific performance of such agreement if the same is not respected by the parties. (See:Saraswati Mondal vs. Sachidulal Saha reported in AIR 2005 Cal 257 ;) In the case before us, it appears from the certified copy of the relevant order-sheet that Probate was granted solely on compromise and the same was made part of the decree which is not permissible.

Calcutta High Court (Appellete Side)

Paresh Chandra Majhi & Ors vs Sri Biswanath Majhi & Ors on 10 July, 2009

Present:
 Mr. Justice Bhaskar Bhattacharya
                  And
 Mr. Justice Prasenjit Mandal

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Whether family pension can be bequeathed by will?

Thus, the payment of pension is strictly governed by the service
rules   and,   therefore,   it   cannot   be   an   'estate'   disposable   by   will.
Though the Government employee has right to receive the pension, itcannot be treated as a 'property'.  On this point, I rely on the case of
Jodh Singh (supra).   In the said case, the officer bequeathed his
movable and immovable property to his father during his life time
and nominated his parents for the Provident Fund, as his relation
with his wife was not cordial.   The Hon'ble Supreme Court while
dealing with the issue held that the pension is a retirement benefit
and is not payable in the life time of the employee and what is not
payable during the life time of the deceased over which he has no
power of disposition and cannot form part of his estate.   It is the
event   of   his   death   that   provides   the   eligibility   qualification   for
claiming special family pension.
24. In the case of Sundariya Bai Choudhary (supra), the Division
Bench of Madhya Pradesh High Court has taken a similar view that
the pension of deceased cannot be said to be an estate and it is not
transferable   and   cannot   be   bequeathed   by   Will.     However,   other
pensionary   benefits   like   Provident   Fund,   Gratuity   etc.   and   other

retiral dues or extra renumeration would be estate of the deceased
and that can be bequeathed by him.
25. In the case of Violet (supra), the Hon'ble Supreme Court had an
opportunity to deal with Railway Family Pension Rules and held that
pension cannot be bequeathed by will since it is not a part of estate of
the employee but it is for monetary benefit of wife and children.
26. After going through the facts of the cases and law laid down
therein which are referred above, it is pertinent to note that in these
cases, husbands have disposed of the property by will to other family
members by denying the claim of the wife and, therefore, the Courts
have taken a view that wife has prime claim over the pension of the
husband and that cannot be denied.  In the present case, Jaydeo has
bequeathed his pension to his first wife only.  It is a settled position of
law that pension is not a estate and so it cannot be bequeathed by
will, so to that extent, i.e., the portion of bequeath of pension in
favour of Draupada is bad in law, however, the statements made in
the   will   about   the   status   of   Draupada   and   his   final   wish   that
Draupada alone has right over his pension corroborates a fact of valid

nomination of Draupada as a first wife.
27. Thus, it is held that pension is not a estate or property and
cannot be disposed of and to that extent, the portion in the will

regarding bequeath is against the law.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.577 OF 2015
WITH
CIVIL APPLICATION NO.1770 OF 2015
Draupada @ Draupadi Jaydeo Pawar
and Others 
vs.
Indubai d/o. Kashinath Shivram Chavan
and Another 

CORAM : MRS.MRIDULA BHATKAR, J.

 Dated  : 10th FEBRUARY, 2016
Citation: 2017(1) ALLMR197

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Supreme Court: Golden rules for appreciation of evidence in case of will

There is a long line of decisions bearing on the nature and standard of evidence required to prove a will. Those decisions have been reviewed in an elaborate judgment of this Court in R. Venkatachala Iyengar v.B.N. Thirnmajamma & Others. [1959] Supp. I S.C.R. 426. The Court, speaking through Gajendragadkar J., laid down in that case the following positions :--

1. Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the ease of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty.

2. Since section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by section 63 of the Evidence Act, one attesting witness at least has .been called for the purpose of proving its execution, if there be an attesting witness alive and subject to the process of the court and capable of giving evidence.

3. Unlike other documents, the will speaks from the death o[ the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed.

This aspect introduces an element of solemnity in the deci- sion of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will.

4. Cases in which the execution of the will is surround- ed by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he re- ceives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disin- herited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator.

5. It is in connection with wills, the execution of which is surrounded by suspicious circumstance that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator.

6. If a caveator alleges fraud, undue influence, coer- cion etc. in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execu- tion' of the will may raise a doubt as to whether the testa- tor was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasona- ble doubts in the matter.

Supreme Court of India

Jaswant Kaur vs Amrit Kaur & Ors on 25 October, 1976

Equivalent citations: 1977 AIR 74, 1977 SCR (1) 925, 1977 SCC (1) 369

BENCH:
CHANDRACHUD, Y.V.
GOSWAMI, P.K.
GUPTA, A.C.

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Whether court can grant probate of will if there are suspicious circumstances?

Where suspicious circumstances are present, they do not ipso
facto preclude the grant of Probate. The Plaintiff must be given an
opportunity to dispel them.Kunvarjeet Singh Khandpur v Kirandeep Kaur and Ors., (2008) 8 SCC
463. This is only to satisfy the judicial
conscience that there is nothing untoward.Smt. Jaswant Kaur v Smt. Amit Kaur, (1977) 1 SCC 369. When more than one
such circumstance exists, the cumulative effect must be
considered.S.R Srinivasa Rao and Ors. v S. Padmavathamma (2010) 5 SCC 274.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY & INTESTATE JURISDICTION
TESTAMENTARY SUIT NO. 20 OF 2005
IN
TESTAMENTARY PETITION NO. 753 OF 2004
SHIRISH POPATLAL SHAH,

v
ARUN POPATLAL SHAH,

CORAM : G.S.Patel, J.

Dated : 8th July 2016
Citation: 2016(6) MHLJ 257

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Whether declaration by father that future disputes among sons should be settled by arbitrator will amount to arbitration agreement?

A reading of the aforementioned sections in
juxtaposition goes to show that in order to constitute a
valid, binding and enforceable arbitration agreement,

the requirements contained in Section 7 have to be
satisfied strictly. These requirements, apart from
others, are (1) there has to be an agreement (2) it has
to be in writing (3) parties must sign such agreement
or in other words, the agreement must bear the
signatures of the parties concerned and (4) such
agreement must contain an arbitration clause.
24) In other words, aforementioned four conditions
are sine qua non for constituting a valid and
enforceable arbitration agreement. Failure to satisfy
any of the four conditions would render the arbitration
agreement invalid and unenforceable and, in
consequence, would result in dismissal of the
application filed under Section 11 of the Act at its
threshold.
25) The question as to what are the conditions which
are necessary for constituting a valid and enforceable

arbitration agreement came up for consideration
before this Court in Vijay Kumar Sharma Alias
Manju vs. Raghunandan Sharma Alias Baburam &
Ors., 2010 (2) SCC 486. In this case, a question arose
in the context as to whether a clause in a Will, which
provides that in the event of any dispute arising in
relation to the properties bequeathed by the testator
would be settled by named arbitrator, can such a
clause or/and the Will be considered as an arbitration
agreement within the meaning of Section 2(b) read
with Section 7 of the Act for the purpose of invoking
the jurisdiction of the High Court under Section 11 for
appointment of an arbitrator for resolving the
disputes. This question arose on the following facts.
26) The father executed a Will in favour of his one
son whereby he bequeathed to him his one house. He
had another son to whom he did not give any share in

the said house. In the Will, father appointed two
executors and expressed that if any dispute arises in
relation to the bequeathed property, one named
arbitrator will decide such dispute. On the death of
the father, one son filed a suit for declaration of his
1/6th share in the bequeathed property and also
demanded partition whereas the other son filed a suit
on the strength of the Will and claimed his exclusive
ownership to the exclusion of all his brothers and
sisters. The suits were clubbed for trial.
27) The two executors, who were also made parties to
the suits, filed an application under Section 8 of the
Act contending therein that the testator had declared
in the Will as also in one separate declaration that in
the event of any dispute arising in relation to the
bequeathed house, the same will be referred to a
named arbitrator for his decision. It was, therefore,

contended that in the light of this, the two civil suits
filed by the parties are liable to be dismissed as being
not maintainable with a liberty to be granted to the
parties to submit themselves to the jurisdiction of the
named arbitrator so as to enable the arbitrator to
decide the disputes as per arbitration clause contained
in the Will/declaration.
28) The Trial Court allowed the application filed by
the executors under Section 8 of the Act and, in
consequence, dismissed the suits with a liberty
granted to the parties to approach the named
arbitrator. One party, accordingly, submitted himself
to the jurisdiction of the named arbitrator and filed his
claim whereas the other party objected to the
jurisdiction of the arbitrator. He contended that there
was neither any arbitration agreement between the
parties for appointment of any arbitrator and nor he

ever signed the Will or any declaration, if made, by his
late father and nor gave his consent for appointment
of any named arbitrator. He, therefore, challenged the
very initiation of arbitration proceedings before the
arbitrator as being without jurisdiction.
29) This led to named arbitrator withdrawing from
the arbitral proceedings which, in turn, gave rise to
the filing of the application by one son under Section
11 of the Act before the High Court of Rajasthan. He
prayed therein for appointment of new arbitrator in
place of earlier named arbitrator. The application was
contested by other son reiterating the same objection,
which he had raised earlier, namely, that there is no
valid and enforceable arbitration agreement between
the parties and neither the Will and nor the
declaration constitute any arbitration agreement for
deciding any dispute between them in relation to the
house in suit.
30) The learned designate of Chief Justice overruled
the objection and allowed the application and
appointed new arbitrator for deciding the disputes
arising between the parties to the application in
relation to the house. It is this order, which was
impugned in the special leave to appeal before this
Court. Allowing the appeal and setting aside of the
order of the High Court, this Court held that firstly,
the Will did not contain any such clause; Secondly,
even assuming that it had any such clause then also it
was merely an expression of the wish by the testator
that the disputes relating to bequeathed property
should be settled by the arbitrator and nothing more.
It was held that in no case the Will could be
considered as constituting an arbitration agreement;

Thirdly, even if there was some declaration made by
the testator subsequent to the execution of Will to this
effect yet since it was a unilateral declaration made by
the father and hence by no stretch of imagination
such declaration could be considered as an arbitration
agreement among his children. It was further held that
at best such declaration could be taken as an
expression of a fond hope of a father that his children
should get the disputes settled in case if they arise
between them by means of arbitration but certainly it
did not partake the nature of an arbitration agreement
within the meaning of Section 2(b) read with Section 7
of the Act. Justice Raveendran, speaking for the
Bench, succinctly dealt with this issue in paras 18 to
22 and held as under:
“18. In this case, admittedly, there is no
document signed by the parties to the
dispute, nor any exchange of letters, telex,
telegrams (or other means of

telecommunication) referring to or recording
an arbitration agreement between the
parties. It is also not in dispute that there is
no exchange of statement of claims or
defence where the allegation of existence of
an arbitration agreement by one party is not
denied by the other. In other words, there is
no arbitration agreement as defined in
Section 7 between the parties.
19. In Jagdish Chander v. Ramesh Chander,
(2007) 5 SCC 719, this Court held: (SCC p.
726, para 11)
“11. The existence of an arbitration
agreement as defined under Section 7 of the
Act is a condition precedent for exercise of
power to appoint an arbitrator/Arbitral
Tribunal, under Section 11 of the Act by the
Chief Justice or his designate. It is not
permissible to appoint an arbitrator to
adjudicate the disputes between the parties,
in the absence of an arbitration agreement or
mutual consent.”
20. While the respondents rely upon the will,
the appellant denies the existence of any
such will. The validity of the will is pending
consideration in the two civil suits filed by
the appellant and the first respondent,
referred to above. The alleged will,
admittedly, does not contain any provision
for arbitration, though the learned designate
has proceeded on an erroneous assumption
that the will provides for arbitration. Even if
the will had provided for reference of
disputes to arbitration, it would be merely an
expression of a wish by the testator that the
disputes should be settled by arbitration and

cannot be considered as an arbitration
agreement among the legatees.
21. In this case, according to the
respondents, the provision for arbitration is
not in the will but in a subsequent
declaration allegedly made by Durganarayan
Sharma, stating that if there is any dispute in
regard to his will dated 28-12-2003, it shall
be referred to his friend, U.N. Bhandari,
Advocate, as the sole arbitrator whose
decision shall be final and binding on the
parties. A unilateral declaration by a father
that any future disputes among the sons
should be settled by an arbitrator named by
him, can by no stretch of imagination be
considered as an arbitration agreement
among his children, or such of his children
who become parties to a dispute. At best,
such a declaration can be an expression of a
fond hope by a father that his children, in the
event of a dispute, should get the same
settled by arbitration. It is for the children, if
and when they become parties to a dispute,
to decide whether they would heed to the
advice of their father or not. Such a wish
expressed in a declaration by a father, even if
proved, cannot be construed as an agreement
in writing between the parties to the dispute
agreeing to refer their disputes to arbitration.
22. We are therefore of the view that there is
no arbitration agreement between the parties
and the learned designate committed a
serious error in allowing the application
under Sections 11 and 15(2) of the Act and
holding that there is an arbitration
agreement between the parties to the dispute
and appointing an arbitrator.”
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.8164 OF 2016
(ARISING OUT OF SLP(C) No. 13369 of 2013)
Shri Vimal Kishor Shah & Ors.
VERSUS
Mr. Jayesh Dinesh Shah & Ors. 

Citation:AIR 2016 SC 3889

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Whether employee can dispose of family pension by way of will?

 It is pertinent to note that in this case the pension is
to be given under the provisions of the Scheme and
therefore, only the person who is entitled to get the pension
as per the Scheme would get it. Similar issue had arisen
before this Court in the case of Violet Issaac (Smt.) v.
Union of India (1991) 1 SCC 725 and after considering
the relevant provisions, this Court came to the conclusion
that family pension does not form part of the estate of the
deceased and therefore, even an employee has no right to
dispose of the same in his Will by giving a direction that
someone other than the one who is entitled to it, should begiven the same. In the instant case, as per the provisions of
the Scheme, the appellant widow is the only family member
who is entitled to the pension and therefore, the respondent

mother would not get any right in the pension.

 NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.9823 OF 2016
(Arising out of S. L. P. (C) No.21187 of 2015)
NITU 
VERSUS
SHEELA RANI & ORS. …
Dated:SEPTEMBER 28, 2016.

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Whether interest in tenancy can be transferred by way of will?

The principal question that arises for consideration in these two appeals, preferred against the judgments of the High Court of Bombay, is whether tenancy rights under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as 'the Act') can be devised by a will. Ancillary thereto arises the question whether the words 'assign' and 'transfer' in Section 15 of the Act include 'bequest'. 

From a plain reading of Section 5(11)(c)(i) it is obvious that the legislative prescription is first to give protection to members of the family of the tenant residing with him at the time of his death. The basis for such prescription seems to be that when a tenant is in occupation of premises the tenancy is taken by him not only for his own benefit but also for the benefit of the members of the family residing with him. Therefore, when the tenant dies, protection should be extended to the members of the family who were participants in the benefit of the tenancy and for whose needs as well the tenancy was originally taken by the tenant. It is for this avowed object, the legislature has, irrespective of the fact whether such members are 'heirs' in the strict sense of the term or not, given them the first priority to be treated as tenants. It is only when such members of the family are not there, the 'heirs' will be entitled to be treated as tenants as decided, in default of agreement, by the court. In other words, all the heirs are liable to be excluded if any other member of the family was staying with the tenant at the time of his death. When Section 15, which prohibits sub-letting, assignment or transfer, is read in juxtaposition with Section 5(11)(c)(i)it is patently clear that the legislature intends that in case no member of the family as referred to in the first part of the clause is there the 'heir', who under the ordinary mode of succession would necessarily be a relation of the deceased, should be treated as a tenant of the premises subject, however, to the decision by the court in default of agreement. The words "as may be decided in default of agreement by the Court" as appearing in Section 5(11)(c)(i) are not without significance. These words in our view have been incorporated to meet a situation where there are more than one heirs. In such an eventuality the landlord may or may not agree to one or the other of them being recognised as a 'tenant'. In case of such disagreement the court has to decide who is to be treated as 'tenant'. Therefore, if 'heir' is to include a legatee of the will then the above-quoted words cannot be applied in case of a tenant who leaves behind more than one legatee for in that case the wishes of the testator can get supplanted, on the landlord's unwillingness to respect the same, by the ultimate decision of the court. In other words, in case of a testamentary disposition, where the wish or will of the deceased has got to be respected a decision by the court will not arise and that would necessarily mean that the words quoted above will be rendered nugatory. What we want to emphasise is it is not the heirship but the nature of claim that is determinative. In our considered view the legislature could not have intended to confer such a right on the testamentary heir. Otherwise, the right of the landlord to recover possession will stand excluded even though the original party (the tenant) with whom the landlord had contracted is dead. Besides, a statutory tenancy is personal to the tenant. In certain contingencies as contemplated in Section 5(11)(c)(i) certain heirs are unable to succeed to such a tenancy. To this extent, a departure is made from the general law.

15. The matter may be viewed from another angle also. If the word 'heir' is to be interpreted to include a 'legatee' even a stranger may have to be inducted as a tenant for there is no embargo upon a stranger being a legatee.

The contention of Mr Sorabjee that 'heir' under a will may be confined to only members of the family cannot be accepted for there is no scope for giving such a restrictive meaning to that word in the context in which it appears in the Act as earlier noticed, unlike in other Rent Acts.

16. Coming now to the meaning of the words 'assign' or 'transfer' as appearing in Section 15 we find that 'transfer' has been qualified by the words 'in any other manner' and we see no reason why it should be restricted to mean only transfer inter vivos. As has been rightly pointed out by the High Court in the impugned judgment the Transfer of Property Act limits its operation to transfer inter vivos and, therefore, the meaning of the word 'transfer' as contained therein cannot be brought in aid for the purpose of the Act. On the contrary, the wide amplitude of the words 'in any other manner' clearly envisages that the word 'transfer' has been used therein in a generic sense so as to include transfer by testament also.

Supreme Court of India

Vasant Pratap Pandit vs Dr Anant Trimbak Sabnis on 12 April, 1994

Equivalent citations: 1994 SCC (3) 481, JT 1994 (3) 267

Author: M M.K.

Bench: Mukherjee M.K. (J)

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Probate for will made outside specific territory by Hindus is not required

 The effect of Section 213(2) of the Act is that the requirement of probate or other representation mentioned in sub-section (1) for the purpose of establishing the right as an executor or legatee in a court is made inapplicable in case of a will made by Muhammadans and in the case of wills coming under Section 57(c) of the Act. Section 57(c) of the Act applies to all wills and codicils made by any Hindu, Buddhist, Sikh or Jain, on or after the first day of January, 1927 which does not relate to immovable property situate within the territory formerly subject to the Lieutenant-Governor of Bengal or within the local limits of the ordinary civil jurisdiction of the High Courts of Judicature at Madras and Bombay, or in respect of property within those territories. No probate is necessary in the case of wills by Muhammadans.

IN THE SUPREME COURT OF INDIA

Decided On: 22.02.2001

Appellants:Clarence Pais & Ors. etc.
vs.
Respondent:Union of India

Hon'ble Judges/Coram:
S. Rajendra Babu and R.C. Lahoti, JJ.

Citation:AIR 2001 SC 1151

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When adverse inference will be drawn against plaintiff as he has failed to produce original Will?

I do not find any substance in the contentions raised by the learned counsel for the appellant-defendant no.3. Defendant no. 3 has based his claim on the basis of the Will dated 06.10.1998(Ex.DW6/A/DW7/1). This is an admitted fact that the original Will was not produced in the Court. So, the original Will has not seen the day of the light. Only, the certified copy thereof has been produced in evidence by defendant no.3. No explanation has been given by the appellant as to why the original Will was not produced in evidence. It is also an admitted fact that no permission was taken by defendant no.3 to lead the secondary evidence to produce the certified copy of the Will dated 06.10.1998. Thus, the non production of the original Will raises the adverse inference against defendant no.3-appellant.

Punjab-Haryana High Court

Jai Singh vs Pavitra Devi & Ors on 7 January, 2016

CM No. 75-C of 2016 in/and R.S.A No. 31 of 2016 (O&M)       
CORAM : HON'BLE MR. JUSTICE DARSHAN SINGH

Citation;AIR 2016(NOC) 276 P&H

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How nomination differs from will?

There are additional problems too. The 'statutory testament' is not subject to the rigour of theSuccession Act. It does require witnesses, but not the discipline mandated by Section 63 of the Indian Succession Act. A nomination, though said to be a 'testament', requires no probate or other proof 'in solemn form'. Yet it is said to be a will. Witnesses need not be in the presence of the nominator. Yet it is said to be a will. Witnesses need not act at the instance of the nominator. Yet it is said to be a will. Witnesses need not see the nominator execute the nomination. Yet it is said to be a  will. No nomination can be assailed on the ground of importunity, fraud, coercion or undue influence;Section 61 of the Indian Succession Act is wholly defenestrated, as is Section 59. Yet it is said to be a will. There can be no codicil to a nomination. Yet it is said to be a will. In short, a nomination, in the Kokate formulation, is some sort of 'super-will', one that partakes of none of the defining traits of a properly executed will and none of the tests of its validity, one that is never displaced by a later, properly made will that deals with the very same property. Mr. Pai asks that we should place ourselves in the 'armchair of the nominator'. That, as it happens, is the same furniture used by a testator, and it simply cannot be that the view from that seat depends on the nature of the document before the executant. There is no particular form for a will, but there are requirements attendant to its proper making. These do not apply to all nominations: even the requirement of witnesses is a matter of prudence rather than statute. If that be so, no nomination per se requires attestation, and if that be so, it is admissible in evidence under Section 68 of the Evidence Act, 1872 without the evidence of any witness (simply because a witness to a nomination is not, in any sense, an 'attesting witness'). But no will can be so read in evidence without such evidence. From the fundamental definitions to the decisions cited, it is clear that a nomination only provides the company or the depository a quittance. The nominee continues to hold the securities in trust and as a fiduciary for the claimants under the succession law. Nominations under Sections 109Aand 109B of the Companies Act and Bye-Law 9.11 of the Depositories Act, 1996 cannot and do not displace the law of succession, nor do they open a third line of succession. This is the consistent view of the Supreme Court in Khanchandai, Shipra Sengupta and of our Court in Gustad Commissariat and Antonio Joao Fernandes, all decisions that preceded Kokate; and the submission made in paragraph 9 of Kokate was correctly placed and was in line with those decisions. Those decisions were all binding on the Kokate Court. They were neither noticed nor considered. The Kokate Court could not have taken a view contrary to those decisions. Kokate is, therefore, per incuriam.

Bombay High Court

Jayanand Jayant Salgaonkar vs Jayashree Jayant Salgaonkar And 9 ... on 31 March, 2015

Bench: G.S. Patel

Citation;2015(5) MHLJ647

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Golden rules for appreciation of evidence for proof of execution of will

It is well-settled that even probate cannot be granted by mere proof of due execution of the Will by the testator and attestation thereof by the attesting witness by the propounder, unless the propounder succeeds in proving that there was no suspicious circumstances leading to the execution of the Will by the testator.

The Hon'ble Apex Court in the decision reported in AIR 1964 SC 529(SASHI KR. BANERJEE & ORS v SUBODH KUMAR BANERJEE) has been pleased to set out the example of suspicious circumstances to the following effect.

(i) That the suspicious circumstances may be as to the genuineness of the signature of the testator.

(ii) It may be the condition of the testator's mind.

(iii) The disposition made in the will have the un- natural, improbable or unfair in the light of relevant circumstances.

(iv) There might be other indications in the will to show that the testator's mind was not fit or free. In such a case the Court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as last will of the testator.

In fact, the Hon'ble Supreme Court in the case of Navneet Lal alias Rangi V. Gokul & Ors. reported in AIR 1976 SC 794 has given us the guidelines as to how the genuineness of the Will and the testator's mind set at the time of execution of the Will can be judged for ascertaining true intention of the testator for giving his estate to the beneficiaries of the Will and the reasons for exclusion of others from inheriting any part of his estate by way of testamentary succession. The following guidelines were given by the Hon'ble Supreme Court in the decision noted above.

(a) In construing a document whether in English or in vernacular the fundamental rule is to ascertain the intention from the words used; the surrounding circumstances being considered to find out the intended meaning of such words employed therein.

(b) In construing the language of the will the Court is entitled to put itself into the testator's armchair and is bound to bear in mind also other matters than merely the words used like the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense-all as an aid to arriving at a right construction of the will, and to ascertain the meaning of its language when used by that particular testator in that document.

(c) The true intention of the testator has to be gathered not by attaching importance to isolated expressions but by reading the will as a whole with all its provisions and ignoring none of them as redundant or contradictory.

(d) The Court must accept, if possible, such construction as would give to every expression some effect rather than that which would render any of the expression inoperative. The court will look at the circumstances under which the testator makes his will, such as the state of his property, of his family and the like.

Where apparently conflicting dispositions can be reconciled by giving full effect to every word used in a document, such a construction should be accepted instead of a construction which would have the effect of cutting down the clear meaning of the words used by the testator. Further, where one of the two reasonable constructions would lead to intestacy, that should be discarded in favour of a construction which does not create and such hiatus.

(e) It is one of the cardinal principles of construction of wills that to the extent that it is legally possible effect should be given to every disposition contained in the will unless the law prevents effect being given to it. Of course, if there are two repugnant provisions conferring successive interest, if the first interest created is valid the subsequent interest cannot take effect but a Court of construction will proceed to the farthest extent to avoid repugnancy, so that effect could be given as far as possible to every testamentary intention contained in the will.

It is therefore apparent from the principle laid down by the Hon'ble Apex Court that in construing the language of the Will the Court is required to put itself into the testator's arm chair and is also bound to bear in mind other matters than merely the words used like the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense all as an aid to arriving at a right construction of the Will, and to ascertain the meaning of its language when used by that particular testator in that document.

It is not the wisdom of the Judge that is necessary for actual construction of the Will but learned Judge should place himself in the arm chair of the testator in order to appreciate the desire and intention of the testator in making such Will.

Kolkata High Court (Appellete Side)

Sri Birendranath Paul @ Barendra ... vs Sri Sankar Paul @ Kali Krishna Paul on 26 June, 2015

Present:

The Hon'ble Justice Jyotirmay Bhattacharya
        And
The Hon'ble Justice Debi Prosad Dey

 F.A. 315 of 2005

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