Case Summary
| Citation | N. Ramaiah v. Nagaraj S. AIR 2001 Kant. 395 |
| Keywords | sec 5 tpa, transfer of property , will |
| Facts | A person died leaving behind his wife W, and his brother’s son, his nephew Br S. The nephew applied to the court for grant of letters of administration and claiming that the deceased had left his total properties in his favour under a Will. This claim was contested by the widow W, on the ground that the Will was a forged document, and she, as the legally wedded wife of the deceased was entitled to the total properties. The nephew sought and obtained a temporary injunction from the court to the effect, preventing or restraining the widow from transferring or alienating the suit properties till the case was decided by the court on merits. The widow was therefore asked to maintain the status quo with respect to these properties. Six months later, the widow executed a Will of these properties in favour of her brother and died three months later. Her brother applied for substitution of his name in the place of the testatrix. Br S, objected to this substitution on the ground, that as the widow was specifically directed by the court not to transfer or alienate the property and was to maintain the status quo, a transfer of property, under a Will, so as to create rights in a third party would be against the order of the court and hence void, and such a transferee therefore would have no locus standi to be substituted in place of the deceased testatrix. |
| Issues | Whether execution of a Will amounts to a ‘transfer’ or alienation within the meaning of the TP Act? |
| Contentions | |
| Law Points | ➢ A Will is not included as a mode of transfer within the meaning of s. 5, the legatee under this valid Will, would be entitled to step into the shoes of the testatrix, and continue the litigation. ➢ The court held that by making a Will, a testator neither changes title or possession in regard to a property. ➢ Neither is the nature or situation of the property altered, nor is anything removed or added to the property, by such Will. ➢ A transfer is a conveyance of an existing property by one living person to another (that is transfer inter vivos). On the other hand, a Will does not involve any transfer, nor effects any transfer inter vivos, but is a legal expression of the wishes and intention of a person in regard to his properties which he desires to be carried into effect after his death. ➢ The concept of transfer by a living person is wholly alien to a Will. When a person makes a Will, he provides for testamentary succession and does not transfer any property. While a transfer is irrevocable and comes into effect either immediately or on the happening of a specified contingency, a Will is revocable and comes into operation only after the death of the testator. |
| Judgement | The court therefore, held that a Will does not amount to a ‘transfer’ within the meaning of s. 5 of the TP Act, and allowed the legatee to pursue the litigation on behalf of the testatrix. |
| Ratio Decidendi & Case Authority |
Full Case Details
R.V. RAVEENDRAN, J. – 2. The Appellant (N. Ramaiah) is the brother of one Anjanamma. The
said Anjanamma was the widow, and the respondent herein (S. Nagaraj) is the nephew (brother’s
son), of one Muni Narayanappa. The respondent herein (S. Nagaraj) filed Probate C.P.No.8/1998 for
grant of letters of administration in regard to a will dated 11-1-1998 said to have been executed by the
Muni Narayanappa. The said Will was contested by Anjanamma, widow of Muni Narayanappa, inter
alia on the grounds that the said Will was a got up document, and that she had succeeded to the
properties of Muni Narayanappa as his sole legal heir.
3. In the said proceedings, the said S. Nagaraj filed I.A.I. on 16-3-1998 seeking a temporary
injunction to restrain Anjanamma from alienating/encumbering the properties, or withdrawing the
amounts from the Banks, mentioned in the schedule therein on the ground that the said properties
were bequeathed to him under the will dated 11-1-1998 by Muni Narayanappa. Item A of the schedule
to the said application (IAI) is land and building in Khata No. 280-6-4B, Hennur, Bangalore with the
running business of Cauvery Service Station. Item B in the Schedule was the house in the occupation
of Anjanamma and the Building in the Occupation of Sitaram Agencies. Item C related to Bank
Balances/deposits. The learned single Judge made an order on the said application on 18-6-1998
directing the Respondent therein (Anjanamma) to maintain status quo in regard to the properties until
further orders.
4. Subsequently, the said Anjanamma died on 11-12-1998 and the appellant herein filed an
application (IA VIII) for impleading himself as the respondent in Prob CP. 8/1998 in place of the
deceased Anjanamma, by claiming to be the legatee under the registered Will dated, 15-9-1998 of the
said Anjanamma. He claimed that Anjanamma had bequeathed her properties described in the
schedule to her Will dated 15-9-1998 of the said Anjanamma. He claimed that Anjanamma had
bequeathed her properties described in the schedule to her Will dated 15-9-1998 to him and his
children and therefore he is one of the co-owners of the properties which were the subject matter of
Prob. C.P. 8/1998. Schedule `A’ to the said Will dated 15-9-1998 relates to property bearing Sy. No.
6/4B measuring I acre in Hennur Road. Bangalore with a residential house and a Petrol Bunk by name
Cauvery Service Station with all machineries, etc, Schedule B and C relate to amounts in Bank
Accounts and deposits.
5. It is stated that the property described in Schedule `A’ in the alleged will of Anjanamma is the
same as the properties described as Item A and B in the schedule to I.A.I. in Probate C.P. No. 8/1998,
which was the subject matter of the order of status quo.
6. The said application for impleading was resisted by S. Nagaraj. The learned single Judge,
accepting the objections, has dismissed the application for impleading, holding that the Will dated 15-
9-1998 was executed by Anjanamma, in breach and defiance of the order of status quo and therefore
non-est and of no legal consequence and will have to be ignored; and that the appellant who based his
right on such Will of Anjanamma, had no locus standi to apply for impleading and was not entitled to
come on record and contest the proceedings for letters of administration filed by the respondent, in
regard to the Will of Muni Narayanappa. The relevant portion of the order of the learned single Judge
is extracted below for ready reference:-
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“4. Dealing with the objection regarding the execution of the alleged Will on 15-9-1998
during the pendency of the prohibitory order passed by this Court, applicant’s learned
counsel contended that the status quo order only restricted alienations and its is his
contention therefore that the order in question does not come in the way of the parties
executing documents which is different from alienation. To my mind, this is virtually legal
hairsplitting; when a Court passes an order directing the parties to maintain status quo, the
order is a blanket prohibitory order whereunder the parties would be precluded not only from
effecting alienations or changes but more importantly by necessary implication from doing
any acts whereby the situation vis-à-vis that property gets altered. It would be downright
ridiculous to contend that the order only limits physical alienation because it would mean
that a party can completely alter the situation by executing documents which would create
rights in third parties and can still contend that merely because there is no physical alienation
or change that it is within the framework of the order. When a Court orders the maintenance
of status quo, it necessarily implies a prohibition on the creation of new right, title or interest
through the execution of any documents. If the need arises, it is open to the party to apply to
the Court either for vacating or modifying the order or obtaining the sanction of the Court for
doing any of the acts which the party desires to undertake. But in my considered view, the
execution of a document by a party to a proceeding in rank defiance of an interim order
cannot under any circumstances be construed as being outside the ambit, and scope of that
order. It only goes without saying that such a document even if executed would be wholly
non est because no right, title or interest of any type can flow from a document executed in
defiance of a prohibitory order of a Court because that document is virtually rendered
invalid. This to my mind is the essence of the issue that falls for determination before this
Court.”
7. Feeling aggrieved, the applicant in I. A. VIII in Prob. C. P. 8/1998, has filed this appeal
contending that an order of status quo in regard to a property did not bar the execution of a Will
bequeathing such property, nor affected the validity of the bequest made under such a Will; and that
on the death of Anjanamma, he ought to have been permitted to come on record to contest the alleged
Will of Muni Narayanappa.
8. On the other hand, learned counsel for the respondent supported the order of the learned single
Judge, by putting forth the following contentions:
The Learned Single Judge had directed Anjanamma to maintain status quo in regard to
the properties; that the said order was passed on an application filed by the petitioner in Prob.
C.P. 8/1998, seeking a direction to Anjanamma that she should not alienate or encumber the
properties mentioned in the schedule to the said application. The order of status quo would
therefore mean that the Court had barred her from transferring or alienating the property in
any manner. Section 5 of the Transfer of Property Act, 1882 defines `transfer of property’ as
an act by which a living person conveys property, in present or in future, to one or more other
living persons. Having regard to the said definition, a bequest under a Will is nothing but a
`transfer of property in future’. By executing a Will dated 15-9-1998 bequeathing the
property in favour of the appellant and his children, Anjanamma effected a future transfer of
the property, thereby violating the order of status quo. Therefore her Will, as also the bequest
of the property thereunder, are invalid.
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9. One Suguna has filed IA IV for impleading, in this appeal contending that she is the adopted
daughter of Muni Narayanappa and the will dated 15-9-1998 put forth by the Appellant was not
executed by Anjanamma and is a got up documents; and that she has filed a suit for partition against
Anjanamma in O.S. No. 2817/1998. It is not necessary to consider the claims of Suguna in this
appeal. If she has any grievance she can get herself impleaded in Prob. C.P. 8/1998 or independently
challenge the will dated 15-9-1998. Hence IA IV for impleading has no merit and is rejected.
10. The rival contentions give rise to the following points for consideration:
(i) whether a bequest of a property under a will is a transfer of the property.
(ii) whether a direction to a party to maintain status quo in regard to a property,
prohibits him from making a testamentary disposition; and whether a Will made during the
operation of an order of status quo regarding a property, is void and non-est in so far as the
bequest relating to such property.
11. Transfer of property Act, 1882 (TP Act’) deals with transfers intervivos, that is, the act of a
living person, conveying a property in present or in future, to one or more living persons. The
provisions of TP Act are inapplicable to testamentary successions which are governed by Indian
Succession Act, 1925. Section 2(h) of the Indian Succession Act defines `Will’ as the legal
declaration of the intention of a testator with respect to his property which he desires to be carried into
effect after his death.
12. The differences between a transfer and a Will are well recognised. A transfer is a conveyance
of an existing property by one living person to another (that is transfer intervivos). On the other hand,
a Will does not involve any transfer, nor effect any transfer intervivos, but is a legal expression of the
wishes and intention of a person in regard to his properties which he desires to be carried into effect
after his death. In other words, a Will regulates succession and provides for succession as declared by
it (testamentary succession) instead of succession as per personal law (non-testamentary Succession).
The concept of transfer by a living person is wholly alien to a Will. When a person makes a will, he
provides for testamentary succession and does not transfer any property. While a transfer is
irrevocable and comes into effect either immediately or on the happening of a specified contingency a
Will is revocable and comes into operation only after the death of the testator. Thus to treat a devise
under a will as a transfer of an existing property in future, is contrary to all known principles relating
to transfer of property and testamentary succession.
13. The learned single Judge proceeded on a wrong premise when he observed that execution of a
Will by a Testator devising his property, amounts to execution of a document creating new right, title
or interest in a property and therefore execution of a Will violates the order of status quo. By
execution of a Will, no right or title or interest is created in favour of any one during the life time of
the deceased. The first point is therefore answered in the negative.
14. In this case, Nagaraj, the petitioner in Prob. C.P. No. 8 of 1998, filed IA-I seeking a temporary
injunction restraining Anjanamma from alienating or encumbering the property or withdrawing the
amount from the bank, described in the schedule to the application. There was no dispute that
Anjanamma was in possession of the properties left by Muninarayanappa. The learned single Judge
merely directed Anjanamma to maintain status quo with regard to the properties. It was not clarified
as to whether she was required to maintain status quo in regard to the possession of the property or
title to the property.
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15. No Court has the power to make an order, that too an interim order restraining an individual
from exercising his right to execute a will and thereby regulate succession on his death. A direction to
a party to maintain status quo in regard to a property does not therefore bar him from making a
testamentary disposition in regard to such property. By making a will the testator neither changes title
nor possession in regard to a property nor alters the nature or situation of the property nor removes or
adds anything to the property. In short the testator, by making a will does not alter the existing state of
things in regard to the property. It follows therefore that making of a will in regard to a property does
not violate an order of status quo in regard to such property, and consequently the testamentary
disposition is neither void nor voidable.
16. The prayer in Prob. C.P. No. 8of 1998 and the context in which the status quo order dated 18-
6-1998 was granted, while considering the interlocutory application, make it evident that the order
merely directed Anjanamma not to alienate or convey the property and did not prohibit her from
executing a will making a testamentary disposition in regard to the property.
23. The petitioner in Prob CP No.8 of 1998 (respondent herein) seeks letters of administration in
regard to alleged will of Muni Narayanappa. That was challenged and resisted by Anjanamma, wife of
Muninarayanappa, by contending that she suceeded to the properties of Muninarayanappa. She died
and appellant claims to be the legatee in possession of the property which is claimed by the petitioner
in Prob C P No. 8 of 1998, under the will of Muninarayanappa. If the apellant is not permitted to
come on record, there will be no one to continue the contest put up by Anjanamma. We, therefore,
find that the appellant is a necessary party to the proceedings in Prob C.P. No. 8/1998.
24. The appeal is, therefore, allowed and the order dated 6-1-1999 on I.A VIII in probate C.
P.No8/1998 is set aside. I. A. VIII in probate C. P. 8/1998 shall stand allowed.
