This matter relates to a dispute in a christian family at kerala
A has made a testament (will) which he has got by intestate inheritance from his father.
The will clearly shows gender discrimination ( the women have no or meager rights in the ancestral property). A having 2 sons & 2 daughters. A disposed his property through a registered will .
The main contents of the will as follows
Total 54 acres of land was divided among the two sons. The testator directs his elder son to give a sum of Rs 10,000/-( only) to one of his sister.similarly the younger son is directed to pay a sum of Rs 10,000/-(only) to the other sister. Also directs both of them to get signed receipt from their sisters after the money had paid to them. The testator directs his both sons to perform this obligations or act within a stipulated time period of 2 years from the date of effect of the will.Towards the end of the will the testator says that all concerned should strictly follow the conditions mentioned in the will, so that no disputes arise in future.
The said amount of Rs 10,000/- to each sisters is due since last 10-15 yrs. No such efforts were taken by the sons to disperse the amount. Now the question is
1. whether the Will mentioned above comes under the category of conditional/ contigent/ onerous will?
2. whether the will can be made void on the grounds of non performance of this obligations.
3. If the will is not conditional, whether the non performance or negligence of such act restrict the sons to the legacy vested upon them.
4. whether simple bank interest is sufficient enough to settle this issues between the legal heirs?? especially to the women who are deprived of their equal rights in their ancestral properties
Normally if the same incident happens between a person outside the lineal descendants , the court may order to settle the issue at simple bank interest from the date of default of payment.
whether same rule can be extended to the legal heirs??
With reference to the indian succession act( sec 120- sec140). the obligations or acts if so any must be performed within the stipulated time mentioned in the will.
on these grounds whether we can challenge the will as inoperative and claim for partial intestacy of the property??
Please do share your valuable suggestions as a timely help
Asked 9 years ago in Property Law
Religion: Christian
I don’t know whether the particulars mentioned below support my claim. May be law experts like you can give a better explanation.
As per the will, Rs 10,000/- is the share of the ancestral property. The testator at the time of death had no other property other than the said 54 acres of land. No bank deposits nor income from any other sources. So the testator directs his son to pay Rs 10,000/ within a time period of 2 years from the date of his death and should collect release deed from the sisters. So payment of Rs 10,000/- is an obligation or act that should be performed within the specified time. By upholding the testators will, it was his intention to bequeath his properties to his legal heirs Rs10,000/- each to his daughters and land to his sons out of the total property of 54 acres of land. At the same time it was his intention that the said amount should be given within a time period of 2 years from the date of his death.
The will may not come under the category of conditional will. But the will imposes a condition on the sons to settle the amount within a time period before they enjoy the legacy (because the property on which all the 4 heirs have rights is one and the same.) Here the beneficiary & executors of the will are the same
Indian succession act 1925 Section 128 ,137,122 may be read as
128. Fulfilment of condition precedent to vesting of legacy.-
Where a will imposes a condition to be fulfilled before the legatee can take a vested
Interest in the thing bequeathed, the condition shall be considered to have been fulfilled if it has been substantially complied with.
Illustrations;-
(vii) A legacy is bequeathed to A if he executes a certain document within a time specified in the will. The document is executed by A within a reasonable time, but not within the time specified in the will. A has not performed the condition, and is not entitled to receive the legacy.
137. Performance of condition, precedent or subsequent, within Specified time. Further time in case of fraud.-
Where the will requires an act to be performed by the legatee within a specified time, either as a condition to be fulfilled before the legacy is enjoyed, or as a condition upon the non-fulfillment of which the subject-matter of the bequest is to go over to another person or the bequest is to cease to have effect, the act must be performed within the time specified, unless the performance of it be prevented by fraud, in which case such further time shall be allowed as shall be requisite to make up for the delay caused by such fraud
122. Onerous bequests.-Where a bequest imposes an obligation on the legatee, he can take nothing by it unless he accepts it fully.
Illustration
A, having shares in (X), a prosperous joint stock company and also shares in (Y), a joint stock company in difficulties, in respect of which shares heavy calls are expected to be made, bequeaths to B all his shares in joint stock companies; B refuses to accept the shares in (Y). He forfeits the shares in (X).
Asked 9 years ago