Vested Interest in Testator's Properties

Lakshmana Nadar And Others vs R. Ramier 1953 AIR 304, 1953 SCR 848

http://indiankanoon.org/doc/1622258/

Will conferred limited ownership on widow of testator with absolute ownership on the daughter after the death of the widow of testator - whether the widow acquired absolute estate on death of her daughter and her grandchildren?  

whether- the widow took under the will an absolute estate or an estate like the Hindu widow's estate and whether the daughter's interest therein was in the nature of a contingent remainder, or whether she got in the properties a vested interest.

It is now settled that a Hindu can confer by means of a will on his widow the same estate which she would get by inheritance. The widow in such a case takes as a demisee and not as an heir. The court's primary duty in such cases is to ascertain from the language employed by the testator "what were his intentions", keeping in view the surrounding circumstances, his ordinary notions as a Hindu in respect to devolution of his property, his family relationships etc.; in other words, to ascertain his wishes by putting itself, so to say, in his armchair. 

The widow cannot be held to have been given a full Hindu widow's estate under the will unless it can be said that under its terms she was given the power of alienation for necessary purposes, whether in express terms or by necessary implication.

Powers that a Hindu widow enjoys under Hindu law: Under that law she has the power to alienate the estate for the benefit of the soul of the husband, for pilgrimage and for the benefit of the estate and for other authorized purposes. It cannot be said that a Hindu widow can only alienate her husband's estate for payment of debts, to meet maintenance charges and for her own maintenance. She represents the estate in all respects and enjoys very wide power except that she cannot alienate except for necessity and her necessities have to be judged on a variety of considerations.

Held : the widow had complete control over the income of the property during her lifetime but she had no power to deal with the corpus of the estate and it had to be kept intact for the enjoyment of the daughter. Though the daughter was not entitled to immediate possession of the property it was indicated with certainty that she should get the entire estate at the proper time and she thus got an interest in it on the testator's death. She was given a present right of future enjoyment in the property. According to Jarman (Jarman on Wills), the law leans in favour of vesting of estates and the property disposed of belongs to the object of the gift when the will takes effect and we think the daughter got under this will a vested interest in the testator's properties on his death.

Effect of Heirs and Children Differentiated in Will of Testator

The expression "heir" would mean a legal heir. What is necessary for true, proper and effective construction of the Will in question is to give effect to the intention of the propounder of the Will.

M/s. Bay Berry Apartments Pvt. Ltd. & Anr vs Shobha & Ors
http://indiankanoon.org/doc/728989/

principal question before the court - what would be the meaning of expression 'heirs'

Held : "In relation to the male descendancy the executor had used the expression 'heirs' in regard to the succession of property after their death, which were bequeathed in their favour; the expression 'children' has been used in relation to the inheritance of the property bequeathed in favour of daughters and daughters in law."

The court had to give appropriate meanings to the expressions 'children', 'issue' and 'heirs' which would ordinarily be not synonymous but sometimes they may carry the same meaning.  

The court referred to P. Ramanatha Aiyar's Advanced Law Lexicon at page 2111 :

"There is doubtless a technical difference in the meaning of the two words "heirs" and "children", and yet in common speech they are often used as synonymous. The technical distinction between the terms is not to be resorted to in the construction of a will, except in nicely balanced cases.

"When the general term "heirs" is used in a will, it will be construed to mean 'child' or 'children', if the context shows that such was the intent of the testator."

Where the words "children" and "heirs" are used in the same instrument in speaking of the same persons, the word "heirs" will be construed to mean "children"; such usage being treated as sufficient evidence of the intention to use the word "heirs" in the sense of "children."

Also held "Heirs may be lineal or collateral. When we say that the Will was a carefully drafted document, evidently, the guarantor thereof was aware of the fact that as thence some of the sons having not been married; the question as to who would be their heirs was uncertain. If they did not have any issue, the properties in terms of the law as then existing might have passed on to their brothers."

In N. Krishnammal vs. R. Ekambaram & sons [(1979) 3 SCR 700 : (1979) 3 SCC 273], it was stated: "It is well settled that legal terms such as "heirs", used in a Will must be construed in the legal sense, unless a contrary intention is clearly expressed by the testator ".

In Angurbala Mullick vs. Debabrata Mullick [(1951) 2 SCR 1125], it was opined that the expression 'heirs' cannot normally be limited to issues and it must mean all persons who are entitled to the property held and possessed by/ or under the law of inheritance. In that case, the widow would not have been entitled to inherit the property of her husband as she was not an heir. However, she became an heir by reason of the provisions of the Hindu  Succession Act.

Coparcenary Property - Family Arrangement, Interest of Widow

Potti Lakshmi Perumallu vs Potti Krishnavenamma 1965 AIR 825, 1965 SCR (1) 26

http://indiankanoon.org/doc/694388/

Two issues set at rest in this case are :

1) Family Arrangement : "No doubt, a family arrangement which is for the benefit of the family generally can be enforced in a court of law. But before the court would do so, it must be shown that there was an occasion for effecting a family arrangement and that it was acted upon."

2) interest to which a Hindu widow is entitled under s. 3(2) of the Hindu Women's Rights to Property Act, 1937 : Apex court referred to past decisions by the high courts and held "the interest which the law has conferred upon the widow is a new kind of interest though in character it is what is commonly known as the Hindu widow's estate. This interest is in substitution of her right under the pre- existing Hindu law to claim maintenance. The decisions also recognise that though the widow does not, by virtue of the interest given to her by the new law become a coparcener she being entitled to claim partition of the joint family property is in the same position in which her deceased husband would have been in the matter of exercise of that right. That is to say, according to these decisions her interest is a fluctuating one and is liable to increase or decrease according as there were deaths in or additions to the members of the family or according as there are accretions to or diminutions of the property. 

..... Undoubtedly she does not become a coparcener, though her interest in the family property is to be the same as that of her deceased husband except that in extent it is to be that of a Hindu widow. (Now, of course , it has been enlarged by s. 14 of the Hindu Succession Act, 1956). But a coparcener has no defined interest in the joint family property and the right which he has is to claim for partition. The quantum of his interest would be determinable with reference to the date on which such member unequivocally declares his intention to separate and thus put an end to the coparcenary. It cannot even be suggested that the event of the death of a coparcener is not tantamount to an unequivocal declaration by him to separate from the family. According to the theory underlying the Hindu law the widow of a deceased Hindu is his surviving half and, therefore, as long as she is alive he must be deemed to continue to exist in her person. This surviving half had under the Hindu law texts no right to claim a partition of the property of the family to which her husband belonged. But the Act of 1937 has conferred that right upon her.When the Act says that she will have the same right as her husband had it clearly means that she would be entitled to be allotted the same share as her husband would have been entitled to had he lived on the date on which she claimed partition. 

... the interest devolving upon the widow need not necessarily be either by survivorship or by inheritance but could also be in a third way i.e., by statute and where the interest is taken by her under a statute no further difficulty arises."

Effect of Hindu Succession Act on Female Granted Limited Ownership of Property by the Testator by Execution of Will

http://indiankanoon.org/doc/1622720/

Gumpha vs Jaibai 1994 SCC (2) 511, JT 1994 (1) 535

A will was executed in 1941; death of the testator was in 1958; he had two wives, he willed one-half share to each till their life and the only daughter, was to be ultimate beneficiary. One wife died in 1966 and she had executed a will in favour of her domestic servant.  trial court and First Appellate Court held that the life estate created under the will stood converted into absolute estate under Section 14(1) of the Act as it was in recognition of pre-existing right. The High Court did not agree with this and held that the widow could not get larger interest than that was intended by the testator.

Apex court was faced with the question "What is the dichotomy between two sub-sections of Section 14 which forms the bedrock of revolutionary changes brought out in Hindu Law of Succession in 1956."

After noticing the decisions in S.S. Munna Lal v. S.S. Raj Kumar, Kalawatibai v. Soiryabai, Bai Vajia v. Thakorbhai Chelabhai, G. Appaswami Chettiar v. R. Sarangapani Chettiar, In Kothi Satyanarayana v. Galla Sithayya, Eramma v. Verrupanna; Kuldip Singh v. Surain Singh and Dindayal v. Rajaram, Apex court held :

A female Hindu could acquire rights under Section 14(1) only if she was possessed of the property and that possession was by some legal authority. To put it differently a trespasser or a female Hindu who cannot establish any right in the property of which she was possessed could not acquire any right. 

It necessarily follows that the possession must be founded on some basis which may be acceptable in law and the right that she acquires under Section 14 depends on the nature of possession she enjoyed over the property. Consequently if a female Hindu acquires possession after the enforcement of the Succession Act and that possession was traceable to an instrument or a document described in sub- section (2) then she could not get higher right than what is stipulated in the document itself. 

The purpose and the legislative intention which surfaces from a combined reading of the two sub-sections is that it attempts to remove the disability which was imposed by the customary Hindu Law on acquisition of rights by a female Hindu but it does not enlarge or enhance the right which she gets under a will giving her a limited estate under Section 30 of the Act.