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 in Property Law from Kochi, Kerala
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 .
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.
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.
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.
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.
(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.
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 2 years ago
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.
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 .
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 .
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.