Mathai Samuel & Ors vs Eapen Eapen (dead) by Lrs. & Ors CA No 8197 of 2012
11. ...basic and fundamental difference between a testamentary disposition and a settlement. Will is an instrument whereunder a person makes a disposition of his properties to take effect after his death and which is in its own nature ambulatory and revocable during his lifetime.
It has three essentials:
1) It must be a legal declaration of the testator’s intention;
2) That declaration must be with respect to his property; and
3) The desire of the testator that the said declaration should be
effectuated after his death.
12. The essential quality of a testamentary disposition is ambulatoriness of revocability during the executants’ lifetime. Such a document is dependent upon executants’ death for its vigour and effect.
13. Section 2(h) of the Indian Succession Act says “Will” means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death”.
16. ....A document which operates to dispose of properly in praesenti in respect of few items of the properties is a settlement and in future in respect of few other items after the deeds of the executants, it is a testamentary disposition. That one part of the document has effect during the life time of the executant i.e. the gift and the other part disposing the property after the death of the executant is a Will.
17. In a composite document, which has the characteristics of a Will as well as a gift, it may be necessary to have that document registered otherwise that part of the document which has the effect of a gift cannot be given effect to. ...The document which may serve as evidence of the gift, falls within the sweep of Section 17 of the Registration Act. Where an instrument evidences creation, declaration, assignment, limitation or extinction of any present or future right, title or interest in immovable property or where any instrument acknowledges the receipt of payment of consideration on account of creation, declaration, assignment, limitation or extinction of such right, title or interest, in those cases alone the instrument or receipt would be compulsorily registrable under Section 17(1) (b) or (c) of the Registration Act. A ‘Will’ need not necessarily be registered. But the fact of registration of a ‘Will’ will not render the document a settlement.
Intention – Guiding Factor:
18. The primary rule of construction of a document is the intention of the executants, which must be found in the words used in the document. The question is not what may be supposed to have been intended, but what has been said. We need to carry on the exercise of construction or
interpretation of the document only if the document is ambiguous, or its meaning is uncertain. If the language used in the document is unambiguous and the meaning is clear, evidently, that is what is meant by the executants of the document. Contemporary events and circumstances
surrounding the execution of the document are not relevant in such situations.
30. ....we have .....no hesitation in holding that so far as that item is concerned, the document in question cannot be construed as a settlement or a gift because there is no provision in the document transferring any interest in immovable property in praesenti in favour of settlees
11. ...basic and fundamental difference between a testamentary disposition and a settlement. Will is an instrument whereunder a person makes a disposition of his properties to take effect after his death and which is in its own nature ambulatory and revocable during his lifetime.
It has three essentials:
1) It must be a legal declaration of the testator’s intention;
2) That declaration must be with respect to his property; and
3) The desire of the testator that the said declaration should be
effectuated after his death.
12. The essential quality of a testamentary disposition is ambulatoriness of revocability during the executants’ lifetime. Such a document is dependent upon executants’ death for its vigour and effect.
13. Section 2(h) of the Indian Succession Act says “Will” means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death”.
16. ....A document which operates to dispose of properly in praesenti in respect of few items of the properties is a settlement and in future in respect of few other items after the deeds of the executants, it is a testamentary disposition. That one part of the document has effect during the life time of the executant i.e. the gift and the other part disposing the property after the death of the executant is a Will.
17. In a composite document, which has the characteristics of a Will as well as a gift, it may be necessary to have that document registered otherwise that part of the document which has the effect of a gift cannot be given effect to. ...The document which may serve as evidence of the gift, falls within the sweep of Section 17 of the Registration Act. Where an instrument evidences creation, declaration, assignment, limitation or extinction of any present or future right, title or interest in immovable property or where any instrument acknowledges the receipt of payment of consideration on account of creation, declaration, assignment, limitation or extinction of such right, title or interest, in those cases alone the instrument or receipt would be compulsorily registrable under Section 17(1) (b) or (c) of the Registration Act. A ‘Will’ need not necessarily be registered. But the fact of registration of a ‘Will’ will not render the document a settlement.
Intention – Guiding Factor:
18. The primary rule of construction of a document is the intention of the executants, which must be found in the words used in the document. The question is not what may be supposed to have been intended, but what has been said. We need to carry on the exercise of construction or
interpretation of the document only if the document is ambiguous, or its meaning is uncertain. If the language used in the document is unambiguous and the meaning is clear, evidently, that is what is meant by the executants of the document. Contemporary events and circumstances
surrounding the execution of the document are not relevant in such situations.
30. ....we have .....no hesitation in holding that so far as that item is concerned, the document in question cannot be construed as a settlement or a gift because there is no provision in the document transferring any interest in immovable property in praesenti in favour of settlees
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