Query on succession act
choudary
(Querist) 27 March 2013
This query is : Resolved
My grand fathers distant relative(cousin brother, but elder to him by 15years) did not have children. So asked my grand father to look after him and his properties but he did not adopt my grand father. At the age of 72 (My grand father's cousin) when his health got upset, he got a WILL registered.He has divided the WILL into 6 sections(A-F).
A is for his wife
B is for the elder son of my Grand father
C is for my father
D is for the younger son of my grand father
E is for my grand father
F is for the daughter of my grand father
He has passed away at the age of 74.
He has given full rights to his wife on the properties mentioned under section A. but for the sections(B,C,D,E) he has given life interest for himself ,his wife and after their death the respective person would get the property without having the power to sell or transfer.but the heirs(next generation) will get the property with full rights.But the problem here is my grand father and his younger son(he is married but his wife got married to a different person after his death and he doesnt have kids) passed away before the life interest of the testators wife.
So now who will get the rights on the property given to my grand father and his younger son since they have passed away before the person holding life interest?
As per the Hindu Succession Act section 14(2), if a female possess a property under a WILL she cant be the ultimate owner.but the testators wife alenated the property to the elder son of my grandfather.
who will get the rights on the property? is it testators wife or the legal heirs of my grand father and his younger son?
can we treat this as a conditional will?
The absolute rights for the property under section D of the will is given to the heirs of my grand fathers younger son.But he has passed away with out having class 1 heirs.Since the life interest holder of the property is alive and testator is her husband.will she get the absolute rights on the property? but he has never mentioned that property would be returned if any beneficiary passes away.
Thanks in advance
Adv k . mahesh
(Expert) 27 March 2013
here you have said that the wife of your grandfather has the full rights on the properties after her death the rights of the property will be distributed to remaining parties
if before that if any one party is no more without leaving any legal heirs then the court will distribute the property equally to other parties
prabhakar singh
(Expert) 27 March 2013
"but the heirs(next generation) will get the property with full rights" THEN if this next generation was not in existence at the time of the death of the testator then WILL would be treated VOID and shall not be given effect to(see provisions of Chapter VII – Void Bequests of the Indian Succession Act).
Ramesh
(Expert) 28 March 2013
I beg to differ from the views expressed by the other experts.
Section 113 of the Indian Succession act lays down that “Where a bequest is made to a person not in existence at the time of the testator's death, subject to a prior bequest contained in the will, the later bequest shall be void, unless it comprises the whole of the remaining interest of the testator in the thing bequeathed.”
That is to say that to make the bequest a valid one it is not necessary that the person to whom the property is absolutely bequeathed should be born as on the date of the death of the testator and it is sufficient if even a life interest holder is present as on the date of the death of the testator.
Therefore, in the present case the point for consideration is whether the brother’s children in whose favour a second life interest was created, were alive at the time of the testator’s death or not. If yes, then it is a valid will and the heirs of the respective brother’s children will take an absolute right to the property and in their absence it will pass on to their heirs.
The wife, being a life interest holder, shall not become absolute owner. Section 14(2) is not attracted in this case.
prabhakar singh
(Expert) 28 March 2013
Considering the facts stated about the Will
i would reiterate that looking into the provisions laid in s.13 of T.P.A and SS.112 to 114, of the Indian Succession Act, the Will is void in respect of disposition made in favour of unborn children. The testator's bequest in favour of unborn persons on the date of his death would be void subject to one exception when the gift is made to a class or series of persons, some of whom are in existence and some are not, it does not fail in its entirety and it is valid with regard to the persons who are in existence at the time of the testator's death and is invalid as to the rest, as laid down by the Supreme Court in the decision reported in AIR 1953 SC 7 (Bajrang Bahadur Vs. Bakhtraj Kuer).
choudary
(Querist) 28 March 2013
The deceased son of my grand father was alive at the time of testators death.the absolute rights are given to his sons but he doesnt have children and his wife got married to a different person.Since the purpose is not served(children who has to enjoy the absolute rights are not born) will the testators wife become the absolute owner? If not can his brothers claim for the property?
choudary
(Querist) 28 March 2013
The deceased son of my grand father was alive at the time of testators death.the absolute rights are given to his sons but he doesnt have children and his wife got married to a different person.Since the purpose is not served(children who has to enjoy the absolute rights are not born and he passed away before the testators wife) will the testators wife become the absolute owner? If not can his brothers claim for the property?
Sudhir Kumar, Advocate
(Expert) 29 March 2013
I can see the matter is too complicated to be described on net. Better consult nearest available lawyer with full papers.
prabhakar singh
(Expert) 29 March 2013
When a Will can not be given effect to for being void only personal law of succession shall apply.
It would be apt of you to visit a property law knowing lawyer.
