• Testamentary inheritance

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 1 year ago in Property Law from Kochi, Kerala
Religion: Christian
1) it is necessary to peruse the will executed by testator to advice . 

2) under the will intentions of testator were that 54 acres of land should devlove on the 2 sons only . 

3) only nominal amount of 10,000 has been bequeathed to the daughters 

4)in the event of failure of the beneficiaries to pay the said sum of Rs 10,000 to daughters the daughters can recover the said amount with interest 

5) the will would not be void on grounds of failure to pay rs 10,000 to the 2 daughters  

6) you should rather challenge the will on grounds of undue influence as 54 acres of land has been bequeathed to the 2 sons and daughters given only 10,000 only 

7) contact a local lawyer .
Ajay Sethi
Advocate, Mumbai
23375 Answers
1225 Consultations
5.0 on 5.0
You say that the condition of the will has not been complied with by the beneficiaries even after the passage of 10 to 15 years, why did they keep quiet for such a long time without initiating any action to recover the same so far.
Even now they  can dispute the Will and its bequest in the court of law stating that the testator has no legal  rights or absolute title to bequeath the entire property  and since the girls also have rights in the ancestral property, they may file a partition suit claiming their respective share in the property according to their proportion and also can file a suit to declare the will as null and void. 
This suit will help for an amicable situation or a negotiable platform which will enable the girls to dictate terms. 
T Kalaiselvan
Advocate, Vellore
14158 Answers
127 Consultations
5.0 on 5.0
1. The will is conditional. Unless the sons discharged the obligations fastened on them by their father in his will they cannot be the beneficiaries of his testament. 

2. It is open to the sisters to challenge the will in the court which can declare it void.

3. The father was at liberty to discriminate among his children in the distribution of the property. Inequality in distribution is not a ground on which the sisters can lay a challenge to the will unless they can show that it is ancestral property for them. The only ground on which it can be challenged is the non performance of the conditions imposed on the sons.

4. The rule of bank interest can be adopted in the case of legal heirs also, but normally the courts do not.

Ashish Davessar
Advocate, Jaipur
18243 Answers
449 Consultations
5.0 on 5.0
1. The Will is the testament of the testator and expresses his wish. He is within his right to give his property to anybody he wishes for which he can not be blamed for discrmination and no body can be claimed to be deprived. The will is not at all a contitional will since bequeathing of the property was not made conditional on payment of Rs.10 K each to the sisters. It was a separate instruction.

3. The amount with  interest  can be claimed and the will can not be called as Void,

4. The non performance of the sons does not restrict their legacy vested upon them as per the Will,

5. Bank interest at compound rate is justified since the sisters are not legally considered as deprived.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
233 Consultations
5.0 on 5.0
1. You have changed your statement in your this post. In earlier post you had mentioned that the brothers should collect receipt of payment of Rs.10K. In this post you stated that the brothers pay Rs.10K and collect the release deed from the sisters. Both are different,

2. The will is not conditional though you are trying to put your argument for calling it a conditional will. The payment of Rs.10 K is a separate statement and wish of the testator. It has not been stated that unless the said amount is paid and receipts are collected the will shall not be in force. The will is defective from this angle,

3. It has not been mentioned what will be the effect in case Rs.10 k is not paid to the sisters each.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
233 Consultations
5.0 on 5.0
1)section 122 of indian succession act is based on principle that if you take benefit under will you must also bear the burden . testator has bequeathed 54 acres to sons with obligation annexed to it . sons were bound to pay Rs 10,000 with in the period stipulated in the will of 2 years 

2) under section 137 of indian succession act  act provides wherein performance of condition has to be done within stipulated period then the act  has to do within prescribed period . in your case payment of Rs 10,000 had to be made within period of 2 years . 

3)in view of provisions of section 122 , section 137 cited by you beneficaries would not be able to take the legacy as  payment of rs 10,000 as provided in will  has not been  made to the daughters . 



Ajay Sethi
Advocate, Mumbai
23375 Answers
1225 Consultations
5.0 on 5.0
Section 137 o the Indian succession act which referred to by you is the correct position  of law in this regard.
You can proceed with a suit for declaring the Will as null and void due to the operation of section 137 of the act as the legates failed to fulfill the condition of the Will and hence a legitimate share in the property may be allotted to you by partitioning the ancestral property with separate possession upon the Will is nullified by a decree . 
T Kalaiselvan
Advocate, Vellore
14158 Answers
127 Consultations
5.0 on 5.0
1. This is a conditional will as the amount was to be given with a period of 2 years. 

2. The daughters or their legal heirs (if they are demised) are free to challenge it in the court. 
Ashish Davessar
Advocate, Jaipur
18243 Answers
449 Consultations
5.0 on 5.0

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