The law on the aspect of blending is well settled that property separate or self acquired of a member of a joint Hindu family may be impressed with the character of joint family property if it is voluntarily thrown by the owner into the common stock with the intention of abandoning his separate claim therein; but to establish such abandonment, a clear intention to waive separate rights must be established. Clear intention to abandon separate rights in the property must be proved. Even abandonment cannot be inferred from mere allowing other family members also to use the property or utilization of income of the separate property out of generosity to support the family members. S. Subramanian v. S. Ramasamay, (2019) 6 SCC 46.
Tag Archives: Succession
Probate of a will is not necessary outside the presidency towns of Bengal, Bombay and Madras as has been held in Bhaiya Ji v. Jageshwar Dayal Bajpai, AIR 1978 All 268 and Smt. Pitmo v. Shyam Singh, 1978 (4) ALR 173. The said decisions hold that a probate is not required to be obtained by a Hindu in respect of a Will regarding immovable properties in territories other than Bengal, Bombay and Madras. Thus, probate of will is not mandatory in respect of a Will concerning properties situate in the State of U.P. Ramjas (Dead) through LRs v. Smt. Sunder Devi (Dead) and another, 2014 (125) RD 376.
Will is an instrument whereunder a person makes a disposition of his properties to take effect after his death and which is in its own nature ambulatory and revocable during his lifetime. It has three essentials:
(1) It must be a legal declaration of the testator’s intention;
(2) That declaration must be with respect to his property; and
(3) The desire of the testator that the said declaration should be effectuated after his death.
The essential quality of a testamentary disposition is ambulatoriness of revocability during the executants lifetime. Such a document is dependent upon executants death for its vigour and effect.
Section 2(h) of the Indian Succession Act says “Will” means 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.
Gift/Settlement is the transfer of existing property made voluntarily and without consideration by one person called the donor to another called the done. Gift takes effect by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. Section 122 of the Transfer of Property Act defines the “gift” as a voluntary transfer of property in consideration of the natural love and affection to a living person. Mathai Samuel v. Eapen Eapen (Dead) by LRs and others, 2013 (118) RD 606.