My father died nearly four years ago and I am a legatee along with my mother. The clause of the Will is that “I bequeath property to my wife for her life absolutely and, thereafter, to my son", to the exclusion of all. Is it possible for my mother to alienate the property by sale? Please advise.
—Name withheld on request
The general principle is that the document should be read as a whole, and it is the substance of the document that matters and not the form or the nomenclature the parties have adopted. As has been held by various high courts, including the Supreme Court, a Will has to be read as a whole and isolated clauses of the Will should not be relied upon for ascertaining the true and correct intention of the testator.
However, based on the information you have provided, it appears that your mother, the widow of the deceased testator, has been given a life interest in the property by your late father, which is limited to her enjoyment during her life time. A person with life interest generally (as we have not perused the Will) does not have the right to sell, transfer or alienate the property to the detriment of the absolute owner, which in your case is the son, i.e., you. It is a limited right to enjoy the property up to the death of the life holder.
You may refer to the Supreme Court judgment dated 12 December 2017 in the matter of Ranvir Dewan versus Rashmi Khanna & Ors. [(2018) 12 SCC 1], wherein it is explained that a life interest is a “restricted estate" which automatically ends upon the death of the life interest holder. It was inter-alia held that when a Hindu male validly disposes off his property by providing for a limited estate to his heir, i.e. to his wife, the wife or widow has to take it as a limited right. This limited right of life interest is not enlarged even by virtue of certain provisions under the Hindu Succession Act, 1956. What the Supreme Court meant is that conferment of a limited estate which is otherwise valid in law is reinforced by this Act. To clarify, the Supreme Court reinforces the view that a limited interest is incapable of being transferred by the life interest holder to others, being personal in nature, and ultimately it vests in the heirs of the testators absolutely and completely and, therefore, the heirs on account of being the ultimate beneficiaries were permitted to get their names mutated in the municipal records as absolute owners.
I am 38 years old. My brother (who is 52) wants to transfer one of his properties in my name. What should I keep in mind so that the same doesn’t get challenged at a later date by his wife or children?
—Name withheld on request
We have assumed that you are a Hindu and laws applicable to a Hindu apply to you.
We have further assumed that the property that your brother wishes to transfer to you is his self-acquired property and he is the absolute owner of the said property. In that case, we suggest that instead of a testamentary disposition i.e. a transfer by Will, your brother executes a transfer deed, in the nature of a gift deed, during his lifetime. Since under the gift deed it is mandatory to have two witnesses, you may request your brother to make his wife and children (if adults) to witness the execution and registration of the gift deed relating to the transfer in your favour. This would amply protect you in the future and there will be no chance of a dispute at a later date.
Also, such a gift deed will have to be registered and requisite stamp duty, as may be applicable, will have to be paid.
Aradhana Bhansali is partner, Rajani Associates