9911796707
|
Home
Issues Involved:
1. Whether a bequest of a property under a Will is a transfer of the property. 2. Whether a direction to maintain status quo in regard to a property prohibits making a testamentary disposition and whether a Will made during the operation of an order of status quo regarding a property is void and non est. Issue-wise Detailed Analysis: Re: Point (i): Whether a bequest of a property under a Will is a transfer of the property. The Transfer of Property Act, 1882 deals with transfers inter vivos, which means the act of a living person conveying property to another living person. Testamentary successions, governed by the Indian Succession Act, 1925, are not covered under this Act. Section 2(h) of the Indian Succession Act defines a 'Will' as a legal declaration of the testator's intention regarding his property to be carried into effect after his death. The judgment highlights the differences between a transfer and a Will. A transfer is a conveyance of an existing property by one living person to another, whereas a Will is a legal expression of a person's wishes regarding his properties to be executed after his death. A Will does not involve any transfer inter vivos and does not create any right, title, or interest during the testator's lifetime. Therefore, the execution of a Will does not violate an order of status quo. The first point is answered in the negative. Re: Point (ii): Whether a direction to maintain status quo in regard to a property prohibits making a testamentary disposition and whether a Will made during the operation of an order of status quo regarding a property is void and non est. In this case, the petitioner filed an application seeking a temporary injunction to restrain Anjanamma from alienating or encumbering the property. The Court directed Anjanamma to maintain status quo with regard to the properties. The judgment clarifies that no Court has the power to make an order restraining an individual from executing a Will. A direction to maintain status quo does not bar making a testamentary disposition. By making a Will, the testator does not change the title or possession of the property, nor does he alter its nature or situation. The judgment also addresses the respondent's contention based on Section 30 of the Hindu Succession Act, 1956, and Section 59 of the Indian Succession Act, 1925. These sections deal with the legal capacity to make a Will and clarify that a married woman can only dispose of by Will any property she could alienate during her lifetime. The bar under Explanation 1 to Section 59 refers to a permanent inability under personal law or statute, not a temporary prohibition arising from a Court's injunction. Therefore, these sections are not relevant in this context. Both parts of point (ii) are answered in the negative. Conclusion: The appellant is a necessary party to the proceedings in Probate C.P. No. 8 of 1998 since he claims to be the legatee in possession of the property contested under the Will of Muni Narayanappa. The appeal is allowed, and the order dated 6-1-1999 on I.A. No. VIII in Probate C.P. No. 8 of 1998 is set aside. The appellant is permitted to come on record, and the respondent is ordered to pay Rs. 2,500.00 as costs to the appellant.
|
