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K.S.RADHAKRISHNAN, DIPAK MISRA
MATHAI SAMUEL – Appellant
Versus
EAPEN EAPEN (DEAD) BY LRS – Respondent
The instrument in question exhibits several features characteristic of a will. It contains provisions that specify the transfer of property to designated beneficiaries upon the death of the testator, indicating an intention to dispose of assets through a testamentary act (!) . The language employed, including terms that suggest a future transfer of ownership and control after the testator's demise, aligns with the typical phrasing found in wills (!) .
Furthermore, the document appears to operate primarily upon the death of the individual, with clauses that direct the distribution of estate assets, which is a hallmark of testamentary instruments (!) . The inclusion of specific bequests and the formalities observed in the execution of the document reinforce its character as a will (!) .
Additionally, the timing of the transfer rights—deferred until the death of the testator—supports the view that the instrument functions as a will, designed to take effect only upon the testator's passing (!) . The language and purpose of the document clearly point towards its classification as a will rather than a deed operative during the lifetime of the parties involved.
JUDGMENT
K. S. Radhakrishnan, J.-Leave granted.
2. We are, in this appeal, called upon to determine the question whether the recitals in exhibit A1 concerning item No.1 of schedule No. 8 therein (item No. 1 of the plaint schedule) discloses a testamentary disposition or a settlement creating vested rights in favour of the plaintiffs and defendant Nos. 1 to 3 though possession and enjoyment stood deferred until the death of the executants.
3. O.S. No. 169 of 1990 was instituted before the court of Subordinate Judge, Thiruvalla by the original plaintiffs and one Eapen for partition and separate possession of various items of properties, of which, we are in this appeal concerned only with item No. 1 of the plaint schedule. The trial court passed a preliminary decree giving various directions, however with regard to the above mentioned item which relates to 3 acre 40 cents, it was held that exhibit A1 document did not preclude the executants’ rights for disposing the same during their lifetime. Consequently, the trial court held that so far as item No.1 in schedule No. 8 of exhibit A1 is concerned, the same has the characteristics of a testamentary disposition, therefore not available
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