1995 Supreme(MP) 788

A.K. Mathur and S.B. Sakrikar, JJ.
Anant Kumar v. Amit Kumar
L.P.A. No. 50 of 1987 (J); Decided on 11.9.1995.

Headnote:(1) Succession Act, 1925 -- S. 276 -- holder of life interest in the immovable property -- cannot alienate the property by will -- no probate can be granted in such case.

        (2) Hindu Law -- will -- person having life interest -- cannot alienate the property by will.

        (3) Will -- person having life interest -- cannot alienate the property by will.

       ¼1½ mRrjkf/kdkj vf/kfu;e] 1925 & /kkjk 276 & LFkkoj laifRr esa vkthou fgr dk /kkjd & foy }kjk laifRr dks vU;ladzkar ugha dj ldrk & ,sls ekeys esa izkscsV dk vuqnku ugha fd;k tk ldrkA

        ¼2½ fganw fof/k & foy & vkthou fgr j[kus okyk O;fDr & laifRr dks foy }kjk vU;ladzkar ugha dj ldrkA

        ¼3½ foy & vkthou fgr j[kus okyk O;fDr & laifRr dks foy }kjk vU;ladzkar ugha dj ldrkA

        Smt. Anjali bai, by her will (Ex. A-3) transferred some portion of the residential share in the house by way of Will in favour of Amit Kumar and Amit Kumar moved an application for grant of probate which was objected by Anant Kumar. In this application for grant of probate before the District Judge, Sagar, a plea taken by Anant Kumar was that the Will executed by Smt. Anjali bai is not genuine and secondly, she was only granted life interest in the Will (Annexure A/1) by late Shri Biharilal and she cannot alienate this property in favour of Amit Kumar. On the basis of pleading of the parties, eight issues were framed and the claimant, in support, examined Dinkar Rao (AW-1), Balkrishna Rai (AW-2), Sarbjeet Singh (AW-3), Dr. C.S. Bhargava (AW-4) as against this, non-applicant Anant Kumar examined himself and Gokul Prasad. After hearing the parties, the Court granted probate in favour of Amit Kumar of the Will executed by Smt. Anjali bai. The trial Court held that Mst. Anjali bai executed the Will fortnight before her death and Will is genuine.

        Held : So far as Will dated 11.10.1973 (Ex. A/3) in concerned, there is finding of fact that the Will was properly executed. Both the Courts below examined and found the will to be genuine and the objection of Amit Kumar was overruled. We are of the opinion that this finding of the fact is correct and there is no reason to take different view of this finding.

        The next question involved in the matter is regarding the right of Anjali bai to alienate this portion of the house which was given by her husband by his Will dated 14.7.1929.

        The Will clearly show that only life interest was created in the immovable property. Therefore, the question whether Anjali bai widow of Biharilal could alienate this property by way of Will in favour of Amit Kumar. The question is whether she could alienate this property in favour of Amit Kumar or not. Reading of the Will show that only life interest was created in Will and after her death, it will revert back to the trust which was created by late Shri Biharilal. This question was framed by the learned Single Judge but it was not answered. A proper scrutiny of will of late Biharilal shows that he only created a life interest in the immovable property, in favour of his wives out of his property. After death, she cannot will it to a third person. Her interest was to the extent of her life and she cannot alienate it by way of Will. This submission of the learned counsel appears to be justified. The Will (Ex. A/1) shows that Smt. Anjali bai became limited owner of the portion of this house and she only had life interest and she could not have willed it after her death to other person. The Will (Ex. A/1) starts in the beginning that life interest has been created in favour of the ladies. That shows that executant of the Will late Biharilal knew legal position and he has created only Life interest in the property by specifying that in the beginning of the will that a life interest is created in favour of the ladies though he also had one mistress who proved to be unfaithful to him during his life but he has provided something for her also. Therefore, he had clarified the interest of both the parties to the extent of life interest. The legal position is also very clear as laid down in the "Principles of Hindu Law" by Mulla 16th edition by Desai. Appeal allowed.