Simple query
chandrish
(Querist) 14 April 2013
This query is : Resolved
previous question in simple form
a person "A" executes a will in favour of "B"AND "B" enters into an agreement to sell with "C" .A and B dies property continuing in name of A.
Query: ARE LEGAL HIRES OF "B" LEGALLY BOUND BY AGREEMENT TO SELL OF "B" WITH "C" ?
PLEASE, RESPOND ONLY IF YOU HAVE AN ANSWER.
Dr V. Nageswara Rao
(Expert) 15 April 2013
1.At the time B entered into an agreement with C, B has not yet become the owner of the property as the will takes effect only on the death of the testator.
2. On the death of A, B succeds to the property and becomes the owner.
3. Though B has not entered into agreement with C after B became the owner, B is legally bound to abide by the agreement under the Doctrine of Feeding the Grant by Estoppel under S. 43 of Transfer of Property Act.
Guest
(Expert) 15 April 2013
My simple answer to your simple query is that your query is incomplete, as you have not mentioned whether B died before or after the death of A. A question of legality of the agreement arises in the absence of the requisite information? Needless to mention, there would not have been any relevance of the agreement to sell by B with anyone if the same was entered in to by B during the life time of A. Unless B actually happened to inherit the property after death of A, he was not entitled to enter in to any agreement with anyone to sell the property to which he had not acquired any ownership. The agreement itself would become invalid.
Devajyoti Barman
(Expert) 15 April 2013
yes, mention the date of death of A. Whether it was before or after the death of B.
Dr V. Nageswara Rao
(Expert) 15 April 2013
1.The interest of the legatee under a will is not contingent interest but a vested interest as A's desth is a certainty.
2.B's interest is not spes successionis but vested interest.
3. Irrespective of whether B survived A, B's successors will get the property under the will on A death.
Guest
(Expert) 15 April 2013
Dear Shri Rao,
I agree with your views expressed in your latest post, but due to insufficient information provided by the querist, a question arises about validity of the agreement entered in to by B, if that was made prior to the death of A.
Another legal question would arise, irrespective of whether the heirs of B get the property under the will on A's death, whether the heirs of B are legally bound to honour the agreement, if made by B during the life-time of A, or even if made after the death of A? The querist has also asked solution on this very aspect.
So, the information about event of death was quite crucial to be provided by the querist.
Raj Kumar Makkad
(Expert) 15 April 2013
Dear Shri Rao & Dhingra Ji,
If B executed agreement prior to death of A in favour of C and if A changes his will and cancels favouring B then what shall be its effect?
Similarly if B dies prior to A then what shall be its consequences?
Guest
(Expert) 15 April 2013
Dear Makkad ji,
I would like to reply your query after the querist supplies the information sought in my reply to him and Shri Rao provides clarification on my points as addressed to him.
Dr V. Nageswara Rao
(Expert) 15 April 2013
Shri Dhingra:
1. B must be deemed to have acquired vested interest in the bequest. B's enjoyment of the bequest is postponed till after the death of the testator.
2. B's agreement will bind the persons who derived their interest from B just as it would bind B if he was alive.Nemodat quod non habet.
3.Whether B survived A or not is irrelevant.
Shri. Makkad:
1. If A alters his will and disinherits B, that is the end of the story for B as the will takes effect only after A's death.
2. If A dies without altering his will,B's agreement will bind B, if he is alive, and will bind B's successors if B dies.
3. It is immaterial whether B dies during A's life time or after his death as the will creates a vested interest and not contingent interest. Death of A is a certainty and any interest that takes effect on the happening of a certain event is a vested interest under the TP Act.
4. B's interst can be defeated only in the event of A disinherting B by altering the will.In such an event, B's agreement becomes null and void and B is bound to return any benifits (like earnest money etc) to his transferee.
Adv k . mahesh
(Expert) 15 April 2013
query has become very interesting
Guest
(Expert) 15 April 2013
Dear S/Shri Rao and Makkad ji,
It seems, either the querist has put an hypothetical query or he is not ready to divulge complete information to solve his problem. Contrarily, the issue seems to have become a matter of controversial discussion between the experts only, which can be discuss even privately for our own academic knowledge.
However, I partially agree with your views as my views are some what different when the question of validity of the agreement comes to the fore without Mr. B actually becoming eligible for the accession of property during the life time of A. The agreement itself is invalid, if made during the life time of A. I hope Shri Makkad would like to endorse my views.
Dr V. Nageswara Rao
(Expert) 15 April 2013
S. 19 of TP Act clearly says that "A vested interest is not defeated by the death of the transferee before he obtains possession." The doctrine of Feeding the rant by Estoppel under S. 43 is based on the concept that a person who enters into agreement even before he acquires the property may be bound by it. Under S. 19 of TP Act, the legatee acquires vested interest if vesting is dependent on the happening ofa certin event, i.e., death of the legatee in the query.Any good commentary on TP Act on this section will be helpful.If the areement is invalid, S. 43 has no meaning.
19. Vested interest.- Where, on a transfer of property, an interest therein is created in favour of a person without specifying the time when it is to take effect, or in terms specifying that it is to take effect forthwith or on the happening of an event which must happen, such interest is vested, unless a contrary intention appears from the terms of the transfer.A vested interest is not defeated by the death of the transferee before he obtains possession.
Explanation : An intention that an interest shall not be vested is not to be inferred merely from a provision whereby the enjoyment thereof is postponed, or whereby a prior interest in the same property is given or reserved to some other person, or whereby income arising from the property is directed to be accumulated until the time of enjoyment arrives, or from a provision that if a particular event shall happen the interest shall pass to another person.
chandrish
(Querist) 15 April 2013
respected sir(s), thank u for responding to my query.
I agree that i couldn't divulge complete information but the query/problem is real one .
the sequence of events that happened are as:
1 registered will by A in favour of B
2 agreement to sell between B and C
3 death of A
4 death of B
prabhakar singh
(Expert) 15 April 2013
a thing that origins with simplicity may also turn complexed is the proof this query.
Dr V. Nageswara Rao
(Expert) 15 April 2013
I am giving below what I consider to be correct statement of law in a website.
www.mukesh.myehome.in/law/TOP%20Act.doc
What is the meaning of vested interest? What is the difference between vested and contingent interest?
Section19 of the Act provides that where, on a transfer of property, an interest therein is created in favor of a person, without specifying the time when it is to take effect, or in terms specifying that it is to take effect forthwith or on the happening of an event which must happen, such interest is vested, unless a contrary intention appears in the terms of the transfer.
A vested interest is not defeated by the death of the transferee before he obtains possession. Thus, a gift to ''A'' on the death ''B'' creates a vested interest in A, even during B''s lifetime, for there is nothing more certain than his death. But, a gift to A on the marriage of B creates, only, a contingent interest, for, B may never marry; but, that contingent interest becomes vested if and when B marries.
A vested interest is different from a contingent interest as defined in Section 21. When an interest is vested, the transfer is complete, but when an interest is contingent, the transfer depends upon a condition precedent when that condition is fulfilled. When the transfer is complete, that interest becomes vested. If that condition refers to an event which is certain to occur, the interest, dependent upon it, is not contingent but vested. If, it is an uncertain event, it is contingent. For, the condition may never be fulfilled and the transfer may never take effect.
H.M.Patnaik
(Expert) 16 April 2013
Thanx Experts to throw light on the conceptual aspect of the issues involved.
Raj Kumar Makkad
(Expert) 16 April 2013
One thing is sure....this simple query was not so simple as was regarded simple just by reading its heading as simple query.
Guest
(Expert) 16 April 2013
Dear Dr. Rao,
Thanks for your views as well as the link of the article provided by you. But, I find that the paper you referred does not indicate anywhere who is the author or publisher of the paper. Even the related website does not contain any detail of the site and its contents.
For your kind information, even a commentary is merely a viewpoing of a single person, like you, me, Makkad ji, Prabhakar Singh ji, or Mahesh ji, but that cannot replace law on the issue. The commentary must be based on some logic and examples, as views differ from person to person.
Here, probably your theory is based on a single section 19 of the TP Act, not on totality of the issue. According to that probably you believe that B acquired vested interest, while I believe that in the case of a will it is a contingent interest. However, had A gifted the property to B, that could have been treated as having created a vested interest.
If you go through the same article, the said article also speaks about the status of will. According to that, "will is a MERE DECLATION OF INTENTION, so long as the testator (i.e. person who makes the will) is alive; a declaration that may be revoked or varied according to the variations of his intention; a disposition that requires the testator''s death for its consummation; it is ambulatory and without any fixed effect until the happening of that event."
So, mere declaration of intention cannot be treated as vesting or transfer of interest. Intentions can change any time. By virtue of merely a will, B cannot acquire vested interest or absolute right to deal with the property till the death of the testator. He would acquire vested interest only on the event of death of the A, as the will always subject to and contingent upon change by testator, agreement to transfer by testator to some other person, actual transfer to some other person by gift or sale by the testator, happening of death of the testator, challenge by some one else about the validity of a will, and finally probate of the will after the death of the testator.
Not only that, even after the death of the testator, the vested interest of B would become valid only after he fulfills his obligations to pay any legitimate claims filed against the property, pay taxes, liquidate the property by paying debts or mortgage, if any due.
So, you can well appreciate that the case of a will is merely a contingent interest that can become vested only when obligations of the aforesaid contingencies, if arise, are fulfilled on the death of the testator.
About agreement by B to sell, that was quite invalid on his part if made before the occurence of death of A, as neither he got absolute right to that property, nor vested interest.
Dr V. Nageswara Rao
(Expert) 16 April 2013
With respect, I submit that you are entitled to the view that the settled law is not good.
I am submitting for your reconsideration the following paras in the judgment of Calcutta High Court:
Badal vs Kamal Kumar Banerjee And Ors.
AIR 1959 Cal 171
8.. That the disputed house was bequeathed to Jyotis by his father Joges, the testator, admits of no doubt. The question is what is the nature of the interest given to Jotis whether it was a vested interest which was to be operative immediately on the death of the testator, or whether it was a contingent bequest which would come into effect only after the estate of the testator had been fully administered and not earlier.
11. After having perused the entire will, we are of opinion that there is a good deal of substance in the contention put forth by Mr. Sen Gupta and that the contention of Mr. Janah that the bequest in favour of Jyotis was a contingent bequest should not be accepted. Term 15 is a later term than term 12. It does not restrict the bequest in favour of Jyotis. That being so, the earlier clause restricting the enjoyment of the property until the complete administration of the estate must be considered to be repugnant to the vested interest, and it should, therefore, be deemed to be void.
Guest
(Expert) 17 April 2013
Dear Dr. Rao,
Thanks for referring the judgment. However, from your post it reveals that the case was decided based on the spirit of the terms of the will. Since I am unable to lay hand on the referred judgment, you may kindly like to provide link of the judgment or reproduce the judgment as a whole, if that contains the text of terms 12 & 15 of the will, as I would like to see the said terms specifically.
Dr V. Nageswara Rao
(Expert) 17 April 2013
Dear Mr Dhingra,
Simply post the case and citation on google and the entire case is availble.In my humble opinion this proposition is not new and the principle of law is well settled beyond doubt.
Raj Kumar Makkad
(Expert) 17 April 2013
Calcutta High Court
Badal vs Kamal Kumar Banerjee And Ors. on 13 March, 1958
Equivalent citations: AIR 1959 Cal 171
Author: R Mukherjee
Bench: R Mukherjee, B Banerjee
JUDGMENT
Renupada Mukherjee, J.
1. This appeal arises out of a suit for partition, and the principal question involved in the appeal is the interpretation of some of the terms of a Will executed by one Rai Bahadur Jogesh Chandra Banerjee. The subject-matter of partition is a residential house at 10/2B, Sri Mohan Lane, P.S. Tollygunge which formerly bore No. 270/2B, Shanagar, Tollygunge P.S. The Will was executed on 22-1-1934, and was modified by a codicil, dated 9-3-1835.
2. It is an admitted fact that the testator left two houses bearing Nos. 270/2A and 270/2B Shanagar, besides a considerable amount of liquid money in the shape of postal cash certificates, shares of various companies, loans advanced to a son-in-law named Hiralal Mukherjee, and a life insurance policy. The testator died on 17-10-1944. He left two sons Jyotis Chandra Banerjee and Haripada Banerjee and six daughters at the time of his death, besides his wife Manmohini. Another daughter had predeceased the testator. In this appeal we are concerned with Nivanani, sixth daughter of the testator who is respondent No. 5 of this appeal and her two sons who are respondents Nos. 15 and 16. Nivanani had also another son at the date of the will. He has died since. The will shows, and it has not been disputed, that Nivanani had practically been deserted by her husband and she was living with her father under his care and protection with her children at the date of the will.
3. The testator made a bequest of various sums of money to various heirs of his from out of his liquid assets and he bequeathed the house at 270/2B Shanagar to his elder son Jyotis as a residuary legatee in addition to some shares and cash money. The other house at 270/2A Shanagar and the remaining money were bequeathed by the testator to the younger son Haripada under the terms of the original will. This bequest in favour of Haripada was, however, cancelled by the codicil, and arrangement was made for the residence and maintenance of his family, including Haripada himself. Jyotish and Manmohini were appointed executors under the will. The testator died on 17-10-1944 and after his death the executors applied for probate on 5-1-1945. Jyotis, one of the executors died on 20-12-1945, during the pendency of the probate proceedings. Manmohini was granted probate of the will, but after she had administered the estate only for a few years, she was removed on 28-6-1948, from her ex-ecutrixship at the instance of Kamal Kumar Banerjee, defendant No. 1 of the present suit. Appellant Badal alias Nabanna and defendant-respondent Kamal are two sons of Jyotis. After Manmohini was removed from executrixship Kamal applied for and obtained letters of administration in respect of the estate of Joges Banerjee on 5-1-1950. Some time thereafter Haripada applied for revocation of this grant, but was unsuccessful.
4. The present suit for partition of the residential house at 270/2B Shanagar was instituted on behalf of minor Badal by his certificated guardian mother Sm. Renurani Debi on 19-9-1951, on the allegation that the plaintiff and his brother Kamal had inherited this house in equal shares from their father Jyotis who had a vested interest in the house under the terms of the will. There was also a prayer for a declaration that the estate left by Rai Bahadur Joges Chandra Banerjee has been either fully administered or deemed to have been fully administered and that Kamal, defendant No. 1, has no longer any function to act as administrator in respect of the property in suit.
5. The Trial Court held upon a consideration of the evidence adduced before it that the estate of Joges Chandra Banerjee has not been fully administered, and the plaintiff and his brother, or for the matter of that, their father Jyotis, are not entitled to claim any interest in the disputed house until the estate of Joges has been fully administered in terms of the will. In view of this finding, the Trial Court dismissed the suit of the plaintiff in its entirety.
6. An appeal was preferred on behalf of the plaintiff, but the appeal was dismissed by the Lower Appellate Court on grounds similar to those given by the Trial Court. So the plaintiff has preferred this second appeal. This appeal was contested on behalf of respondents Nos. 9, 15 and 16. Learned Advocate for the Deputy Registrar who represented minor respondents Nos. 2 to 4 also opposed the appeal in so far as the plaintiffs prayer for a declaration that the estate of Joges Banerjee has been fully administered is concerned. There was no opposition on behalf of respondent No. 1 on whose behalf a vakalatnama was filed by Mr. Harendra Nath Haldar.
7. We may say at the very outset that on the materials before us we are not prepared to make a declaration that the estate of late Joges Chandra Banerjee has been fully administered. In fact respondent No. 1 Kamal Banerjee made an application for such a declaration and also for getting his discharge in the proceedings relating to the grant of letters of administration to Kamal. His application was rightly rejected by that Court, because there is no provision for discharging an administrator appointed by the Court for administering the estate of a deceased testator. After an administrator fully administers the estate of a deceased person, he can secure his own discharge by filing his accounts & getting them passed by the Court which has appointed him. In these circumstances, no question of making a declaration that the estate of Joges Banerjee has either been fully administered or should be deemed to have been fully administered arises in the present suit.
8. We now come to the only other question raised in this appeal, viz., whether a decree for partition should be made in favour of the plaintiff appellant as claimed by him. That the disputed house was bequeathed to Jyotis by his father Joges, the testator, admits of no doubt. The question is what is the nature of the interest given to Jotis whether it was a vested interest which was to be operative immediately on the death of the testator, or whether it was a contingent bequest which would come into effect only after the estate of the testator had been fully administered and not earlier.
9. The Lower Appellate Court is of opinion that Jyotis did not derive any interest in the house under the provisions of the will immediately after the death of the testator, and that his interest in the house would become effective only after the complete administration of the estate. In this connection reference may usefully be made to terms 11, 12 and 15 of the will. The relevant portion of term 11 of the will is that after the administration of the estate, according to the terms of the earlier provision of the will, Jyotis would get the house at 270/2B Shanagar as a residuary legatee besides some shares and some amount of money. Term 12 of the will says that the sons would not derive any interest in any of the properties before the completion of the administration of the estate, nor would they be entitled to alienate or charge any portion thereof. We may mention here incidentally that the bequest in favour of Haripada was subsequently cancelled by the codicil, but we are not concerned in the present suit about the bequest in favour of Haripada or his family. Term 15 of the will which is considered by Mr. Sen Gupta on behalf of the appellant to be the the most material term on the question at issue provides that the legatees and residuary legatees would get a vested interest in the legacies given to them under the will.
10. Mr. Janah contended on behalf of the contesting respondents, viz., respondents Nos. 9, 15 and 16 that if all the above terms of the will are read and construed together, then it will be clear that the bequest in favour of Jyotis in respect of the disputed house was a mere contingent bequest which could become effective only after the complete administration of the estate. Mr. Sen Gupta for the appellant contended, on the other hand, that term 15 of the will makes it clear that the testator gave a vested interest to Jyotis and that term 12 of the will, in so far as it purported to delay the bequest, is repugnant to term 15, and it should, therefore, be deemed to be void. In support of this contention he relied on the case of Cally Nath v. Chunder Nath, ILR 8 Cal 378.
11. After having perused the entire will, we are of opinion that there is a good deal of substance in the contention put forth by Mr. Sen Gupta and that the contention of Mr. Janah that the bequest in favour of Jyotis was a contingent bequest should not be accepted. Term 15 is a later term than term 12. It does not restrict the bequest in favour of Jyotis. That being so, the earlier clause restricting the enjoyment of the property until the complete administration of the estate must be considered to be repugnant to the vested interest, and it should, therefore, be deemed to be void. Of course, there are no materials in this case to show that the estate of the testator has been fully administered. The Lower Appellate Court has come to a positive finding on this issue, after having taken into its consideration the extent of the liquid assets set forth in the will, and after having considered the affidavit of assets sworn by Jyotis (exhibit C) which would show that the executors had received only Rs. 200/- in cash and a pension of Rs. 104/2as. in the shape of liquid assets. After having considered the description of the liquid assets, as given in the will, as compared with the affidavit of assets, the court below came to the conclusion that a substantial portion of the liquid assets must have been either suppressed or misappropriated by Jyotis. It should, however be remembered that the testator was alive for more than 10 years after the date of execution of the will. It should also be borne in mind that the respondents did not produce any material to show that any interested party raised any objection about the existence of the liquid assets during the pendency of the probate proceedings. In these circumstances, it would not be safe to infer from the materials existing on this record that Jyotis had intentionally suppressed or misappropriated any portion of the liquid assets. Still Mr. Sen Gupta submitted quite fairly on behalf of the appellant that the share of the appellant in the disputed house may be kept under charge for some period as a security for an amount of Rs. 4000/- which has been stated in the written statement of the contesting respondents, viz., respondents Nos. 9, 15 and 16 as being the amount of assets suppressed by the executors or the administrator. Mr. Sen Gupta submitted that if within a certain specified time, these respondents put forth a claim for that amount against the appellant in a proper suit, then their interest may be safeguarded by giving directions for keeping the share of the appellant in the disputed house under charge. We are of opinion that the interest of the contesting respondents would be sufficiently safeguarded, and there should be no objection to a partition of the disputed house subject to a charge of the appellant's share, as indicated above. The bequest in favour of Jyotis was an unconditional bequest and Jyotis got a vested interest in the disputed property. There is no reason why this partition should fail.
12. Mr. Janah appearing on behalf of respondents Nos. 9, 15 and 16 submitted that his clients were given a right of residence under the will and that right should be respected if the property is partitioned between the appellant and respondent No. 1. The will provides that Nivanani and her sons would be entitled to reside in the disputed house under the care and supervision of the executors. The executors were also charged to provide a suitable small dwelling house for Nivanani and her sons. It is not known now whether the executors have been able to make any arrangement for such separate residence of the contesting respondents. We would, therefore, direct that Nivanani and her two sons would have a right of residence in the disputed property in terms of the will when that property is partitioned by metes and bounds. That right of residence should be limited to two living rooms besides a kitchen bath and privy. It will be for the partitioning commissioner to determine which portion of the disputed house would be most suitable for the residence of those contesting respondents.
13. In view of the foregoing observations, we allow the appeal and set aside the judgments and decrees passed by the Courts below. We decree the suit in part. The prayer of the plaintiff appellant for a declaration that the estate of deceased Joges Chandra Banerjee has been fully administered or should be deemed to be fully administered is refused. The prayer for partition of the disputed house by metes and bounds between the plaintiff appellant and defendant respondent No. 1 is decreed in a preliminary form. When partition is actually effected by a commissioner he will reserve a suitable portion for the residence of respondents Nos. 9, 15 and 16 in terms of the foregoing observations. The reserved portion will consist of two living rooms and a kitchen, bath and latrine. The share of the appellant in the house will remain under charge for a sum of Rs. 4000/- against any claim which respondents Nos. 9, 15 and 16 may put forth in a proper Court against the appellant within a year from this date. If such a suit is brought within a year from this date, then the charge will continue till a final decree is passed in that suit. If no such a suit is brought within a year from this date, then the charge will stand automatically released.
14. In view of the result of this litigation, we direct that all parties will bear their own costs in all the Courts including this Court.
B.N. Banerjee, J.
15. I agree.
chandrish
(Querist) 17 April 2013
respected sir(s)thank you for providing useful data/information through your experience and intellect.
though my field is not related to law yet i was trying to find solution to a (complicated)problem faced by C in parts through your expertise.
Sir(s) it would be disrespect to your efforts you have made to sort out my problem if i do not put forth complete picture.
sir respected sir(S)i am putting forth briefly complete fact before you,if you deem it fit to give solution.
A to B
(GPA,SPA to sell,registerd Will)all 3 with same date and same attesting witnesses and affidavit of selling by A
B to C
Agerrment to sell, Undated unregistered will with same attesting wtnesses
sequence of events remains same
1)as per law GPA, SPA becomes null and void after death of A, it is unclear if agreement to sell is not valid in present context,can will from A to B and susequently from B to C permit C to claim title?
2)can SPA to sell from A to B and Will from B to C permit C to claim title?
3) C claiming right to adverse possession C living in the house (continuous 20 yrs,genuine, openly, absolutely) legal hires opposin claim on fictitious grounds with no proof, C not pronounced hostile on the basis of agreement between B and C rather claiming it to be permissive, where as law says hostility should be proved between paper owner(ie legal hires of) A and C , how can hostility be proved ?
Dr V. Nageswara Rao
(Expert) 17 April 2013
We spent so much time on the prior query for learning from each other's scholarship and experience. That is all.
The querists should not think thay can take the experts for a ride.
ashutosh mishra
(Expert) 17 April 2013
Mr. chandrish!
It is LCI and not a CHANDU KHANA.
chandrish
(Querist) 17 April 2013
respected sir Sh. Nageswara Rao
i am greatful to you for putting in your valuable efforts,i was deeply impresses by your vast knowledge over the subject.
you are really an asset for LCI. My intent was just to find possible solution to my query through this platform and not hurt your feelings.
I am again greatful for your efforts to respond to my query even without knowing me. thank you with regards. chandrish.
chandrish
(Querist) 18 April 2013
Dear Sh Ashutosh Mishra,
i am in fully agreement with your opinion my intent was not to hurt anybody, i am sorry if hesitation to divulge complete information on my part has offended you.
with regards. chandrish.
Guest
(Expert) 19 April 2013
Mr. Chandrish,
I really wonder about your wisdom if you guide and advise your clients merely on fragment of information and not based on totality of the facts, by ignoring other most relevant facts. The instant case pertained to "sale of property by A through POA to B by virtue of which A also made a will as a part of sale" V/S the case of "adverse possession", while you tried to make that as a simple case pertaining to will.
Such a comlex case cannot be treated as a simple issue. Your effort can conveniently be treated as mockery of the facility provided by LCI. Had you not been aware of the facts, you must not have come forward with such a fabricated problem. WITH SUCH A FABRICATED PROBLEM, YOU HAVE JUST GOT THE OPINIONS SIDETRACKED OF THE REAL PROBLEM.
EVEN NOW, YOUR PRESENTLY QUOTED INFORMATION, "and Will from B to C permit C to claim title" GOES CONTRARY TO YOUR ORIGINALLY POSTED INFORMATION, "A executes a will in favour of B" IS CONTRARY TO THE
You must understand that any legal issue cannot be sorted out based on presentation of partial facts.
In fact, the case needs to be examined in detail and making proper analysis of their contents, as all that depends upon the conditions of the POA and the will.
Hope, in future, you would come forward only with full facts of the problems, if you feel to get appropriate advice from the experts.
Guest
(Expert) 19 April 2013
Dear Makkad ji,
Special thanks for reproducing the copy of the judgment, which I happened to see today after my return from outstation.
Guest
(Expert) 19 April 2013
Dear Shri Rao,
With reference to the context of the statement contained in para 8 of the judgment, "the question is what is the nature of the interest given to Jotis whether it was a vested interest which was to be operative immediately on the death of the testator, or whether it was a contingent bequest which would come into effect only after the estate of the testator had been fully administered and not earlier," you may like to refer to the contents of para 9 of the judgment, which clearly states that Term 15 readily provided for the vested interests, as that states, as under:
"Term 15 of the will which is considered by Mr. Sen Gupta on behalf of the appellant to be the most material term on the question at issue provides that THE LEGATEES AND RESIDUARY LEGATEES WOULD GET A VESTED INTEREST in the legacies given to them under the will."
So, I hope, you would like to agree with me that it all depends upon the conditions stipulated in the will, whether the will provides for vested interests or is dependent upon the contingencies of fulfillment of all the formalities to make that a contingent interest. If none of the condition specifies about the nature of interest, the vested interest cannot be treated as automatically implied.
Raj Kumar Makkad
(Expert) 19 April 2013
Thanks for appreciation for Sh. Dhingra g.
Raj Kumar Makkad
(Expert) 19 April 2013
Mr. Chandrish! I am sorry to point out that the relevant facts which you retained with you till last might have to be posted by you earlier in which you miserably failed. You should not deal with experts in such manner. Providing free of cost advice do not imply that you should misuse their energy just for flimsy and suppressed facts.
Guest
(Expert) 19 April 2013
You are welcome Makkad ji.
Dr V. Nageswara Rao
(Expert) 20 April 2013
1.The querist asked the questions (a)whether a bequest by A to B entitles B to sell the property to C during A's life time; and (b)whether B's agreement with C will bind B's succesors.My answer to both the questions was 'yes' as B's ineterst was vested and not contingent.
2.I refuted the contention that vested interest could not be created by a will as it is supposed to be contingent upon A's death and/or upon non-revocation of will by A, and that it can be created by a gift only.Calcutta decison clearly rejects that argument.
3.In the Calcutta judgment after referring to the rival contentions of the parties' advocates, the Court said emphatically: "After having perused the entire will, we are of opinion that there is a good deal of substance in the contention put forth by Mr. Sen Gupta and that the contention of Mr. Janah that the bequest in favour of Jyotis was a contingent bequest should not be accepted. Term 15 is a later term than term 12. It does not restrict the bequest in favour of Jyotis. That being so, the earlier clause restricting the enjoyment of the property until the complete administration of the estate must be considered to be repugnant to the vested interest, and it should, therefore, be deemed to be void." Judgment is relied upon for its ratio and not for the contentions of the party which is rejected.
4.The querist did not raise the question whether a will can create contingent interest.That was not discussed at all.
5.While the transfers under the TP Act are inter vivos, testamentary disposition takes effect after the death of the testator.Testamentary disposition is only a mode of transfer of the property. If the will says "property is given to B", it is automatically creating vested interes.As the standard example is given by treatises and judgments, if the will says "property to B on his attaining 21 years" it is automatically contingent interest becuase while A's death is certain, B attaining 21 years is uncertain. This issue was not raised by the querist at all.
6. The above propositions are well settled and as old as TP Act itself, and do not depend upon our commonsense opinions.
7. After dealing with legal principles for half a century as professor and legal consultant in India and abroad, I sincerely believe that we should bow before the Goddess of Law with humility and learn at her Lotus Feet.
H.M.Patnaik
(Expert) 20 April 2013
Mr. Rao ,
Deliberations on the subject has really been very refreshing and acquainted me with the subtle nuances of the legal complexities encompassing the issue in question.
I completely agree with you on the concluding remark on the Goddess of Law.
Guest
(Expert) 20 April 2013
Dear Shri Rao,
Rest assured, I do not challenge your experience as a Professor and consultant in India and abroad. I have full regard for that.
The issue is not what the querist asked, the issue now turned to be of universal applicability of a particular case law on all types and nature of wills in the context of the main provisions of law.
I also believe in Godess of Law so far as the main law is concerned. About case laws, that are always subject to change depending upon the circumstances and nature of the cases and also the logic that appeals to the competent court of law on case to case basis.
But, surprisingly, your concept was based on merely a single judgment, which cannot replace law in itself when the judgement, itself, stands based merely on the contents of a single document of some individual (the will).
Probably, you forgot that a singlemost judgment cannot replace the main law until incorporated suitably within the mainframe of the statute by consent of the President of India on being approved by both the houses of the Parliament of India.
I suppose, you have clearly noticed that the judgment is based specifically on the terms 12 & 15 of the individual will in question and consideration. You would also appreciate that contents of all the wills in India cannot also be the same, alike the will in question in the case law. From the referred case, it clearly reveals that the judgment revolves around the interpretation of a specific term # 15 of the will, as compared to the other term 12.
So, these were the compelling reasons that I ventured to differ with your ipinion, as any judgment based on a singlemost document of amy individual person cannot be applied universally in all the cases, unless the circumstances and the contents of the document are of similar nature and the presiding judge is also convinced on the plea of any of the party to the issue.
Needless to emphasize, where law is not clear logic prevails that too when the judge of the cause is convinced on that. Case laws are bound to be reversed by superior courts, while the law of the land still stands. You must have noticed that most of the lawyers quote case laws in several cases, but in only a few of the cases the judges become convinced on such plea of the lawyer, that too when the nature of the case and the circumstances are similar.
So, an individual case cannot at all become the solo source of guidelines to be applied universally, unless specifically ordered by the competnent authority to be made so.
Rest depends upon you whether you are convinced by my opinion or not.
Dr V. Nageswara Rao
(Expert) 20 April 2013
As I mentioned earlier, the law is settled long, long back and is as old as TP Act itself. I cannot say that I formed a certain opinion and I think that is it. I would have the humility to refer to standard treatises on the subject and the judgments referred to, and form an opinion in the light of that.
Hence, humbly I request you to mention one treatise or judgment that supports your opinion.
As far I am concerned, the discussion ends here.
Guest
(Expert) 21 April 2013
Dear Shri Rao,
It may be your personal belief that the law is settled long merely on a single judgment based on the contents of an individual will, but my belief is that the main law cannot be sidelined merely on the basis of the conditions stipulated in that single will and cannot become a source of broad guidelines for deciding all the cases of wills that are made in different circumstances and with altogether different conditions.
Anyway, if that is your belief that the law is setlled long by virtue of the that individual judgment of 1958, what would you like to say about the provisions contained in sections 104, 120 & 213 of the Indian Succession Act 1925? Have those sections to be treated as irrelevant in the wake of the judgment quoted by you?
Moreover, a question arises, if the law stands settled long, whether all the cases pertaining to disputes of wills for the last 55 years have been settled merely on the basis of that particular judgment? If so, you may kindly like to quote at least 5-6 such cases to make me also believe unquestionably that the law is being guided merely on the said individual judgment pronounced 55 years back by sidelining the detailed legal provisions of the statute of the Indian Succession Act.
