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1991 Supreme(Del) 696
High Court Of Delhi
RAJRANI SEHGAL - Appellant
Versus
PARSHOTTAM LAL - Respondent
First Appeal Order 107 of 1986
Decided On : 12/18/1991
M.L.Lonial, S.L.CHAUDHARY, V.K.Makhija
A will that intends to pass on an absolute estate with subsequent restrictions on alienation will be valid, and the restrictions will be void as repugnant to the dominant intention of the testator.
Headnote:
INDIAN SUCCESSION ACT, 1925 - SECTION 114 - WILL - VALIDITY - PERPETUITY - RESTRICTION ON ALIENATION - REPUGNANCY - ABSOLUTE ESTATE - SECTION 138 - APPLICATION - PROBATE - EXECUTION OF WILL - PROOF - SUSPICIOUS CIRCUMSTANCES - BURDEN OF PROOF - ORIGINAL WILL - ANNEXATION WITH PETITION - NECESSITY.
Fact of the Case:
The appellant, one of the daughters of the deceased, challenged the grant of probate/letter of administration in favor of her brother, respondent No. 1, on the ground that the will offended the rule against perpetuity as contemplated by Section 114 of the Indian Succession Act, 1925. The appellant also raised objections regarding the execution of the will and the manner in which the probate petition was filed.
Finding of the Court:
The court held that the will did not offend the rule against perpetuity as the testator had intended to give an absolute estate to his son and the subsequent restrictions on alienation were repugnant to the dominant intention of the testator. The court also held that the objections regarding the execution of the will were not tenable as the will was duly proved in accordance with the law and there were no suspicious circumstances surrounding its execution. The court further held that the failure to annex the original will with the probate petition was not fatal as the certified copy of the will was equivalent to the original and the defect had been cured by the District Judge.
Issues: 1. Whether the will offended the rule against perpetuity under Section 114 of the Indian Succession Act, 1925? 2. Whether the execution of the will was duly proved? 3. Whether the probate petition was filed in accordance with the law? 4. Whether the failure to annex the original will with the probate petition was fatal?
Ratio Decidendi: 1. The court held that the will did not offend the rule against perpetuity as the testator had intended to give an absolute estate to his son and the subsequent restrictions on alienation were repugnant to the dominant intention of the testator. The court relied on the principle that where the testator's intention is to pass on an estate and then add a clause against alienation, only the clause against alienation would be void. 2. The court held that the execution of the will was duly proved as the requirements of Section 63 (e) of the Indian Succession Act and Section 68 of the Indian Evidence Act were satisfied. The court also held that there were no suspicious circumstances surrounding the execution of the will that would require the propounder to lead further evidence to prove its genuineness. 3. The court held that the probate petition was filed in accordance with the law as the certified copy of the will was equivalent to the original and the defect of not annexing the original will had been cured by the District Judge. 4. The court held that the failure to annex the original will with the probate petition was not fatal as the certified copy of the will was equivalent to the original and the defect had been cured by the District Judge.
Final Decision: The appeal was dismissed.
( 1 ) THE appellant Smt. Rajrani Sehgal is one of the daughters of deceased Shri Godar Mal, respondent No. I, Dr. Parshottam Lal, being the son. The said Shri Godar Mal died on 14th February, 1980 and shortly thereafter a petition for grant of probate/letter of administration under the provisions of Section 276/278 of the Indian Succession Act, 1925 (for short the Act ) was filed by respondent No. I on the basis of a will, dated 9th September, 1974 alleged to have been executed by his late father, bequeathing all his moveable and immoveable properties to him. All the daughters of the deceased including the present appellant were impleaded as respondents; two of whom, namely appellant Smt. Rajrani and Smt. Shakuntla, respondent No. 5 in the petition filed objections to the grant of probate/letter of administration in favour Dr. Parshottam Lal. The other two daughters Smt. Shanti Devi and Savitri Devi and legal heirs of a pre-deceased daughter named Smt. Bimla Devi did not, however, file any objections. The petition was allowed after rejection of all the objections by order dated 3rd March, 1986, and it is this order which is subject matter of the present appeal.
( 2 ) THE appellant contends that the will suffered from a legal infirmity inasmuch as it offended the rule against perpetuity as contemplated by Section 114 of the Act. The objection is elaborated by reference to the terms of the will, (Ex. P. 1) whereby as per appellant s contentions, the testator bad created perpetuity in his family and had tended to limit the absolute enjoyment of the estate for an indefinite period because the impugned will imposed restrictions on the legatee, namely, his son against alienation, sale or transfer and thereafter on son s sons, son s sons and so on. It is contended that this is tantamount to creation of successive life estates, which was prohibited by law, and was not permissible under the Hindu Law of Inheritance and thus the entire bequest by this will was void and inoperative, and the learned District Judge erred in holding the objections in this respect to be not tenable, and that it was a case where bequest in favour of the son was absolute, certain restrictions imposed, which being repugnant to the main purpose of the will, were liable to be ignored.
( 3 ) THE appellant has also reiterated other objections taken in her objections filed in the probate proceedings, namely, as to the execution of the will having not been proved and the will propounded by respondent No. I not being a genuine will of the deceased father and not in any case the last one, and that there was certain suspicious circumstances surrounding the will, which had not been explained by the propounder, and for that reason also, the order of grant of letter of administration was liable to be set aside.
( 4 ) ANOTHER objection set forth is as to the petition itself not having been filed in the manner required by law in as much as the will in original though in existence was not annexed with the petition and no case for filing a copy of the certified copy of the Registrar s office was made out.
( 5 ) DURING bearing, Mr. Lonial appearing for the appellant pressed all these contentions. In respect to the first objection, namely, the will being void and inoperative for reason of offending the rule against perpetuity, the learned Counsel argued that a bare reading of the will Ex. PI makes manifest the intention of the testator to restrict the bequest in favour of the son, only to a life estate, expressing a wish that "the said son shall not sell or mortgage or transfer or pawn the immoveable properties during his life timer". A similar desire was expressed in respect to the grandsons and daughter-in-law or sons or daughters of the grandsons. He contended that it was a case where the decdeased unmistakably intended each one of the heir in succession to enjoy only life estate and that this was nothing but creation of successive life estates or creating a pe
