‘Absolute‘ Transfer of Property in a Will, with Stipulation: ‘If property Remains’ on Death of Transferee, it will Go to Another – If Valid?

Yes.

Taken from: Interpretation of Inconsistent Clauses in a Will

Saji Koduvath, Advocate, Kottayam

The following important points require consideration in this regard:

  1. In Indian practice, though the words used in the deeds might be ‘absolute transfer’, on a true construction, on a reading of the entire document, it might only be a salable/transferable right during lifetime; and the left-over property might be given to another.
  2. The common law in India requires reading the whole document altogether, and give effect to the document on a harmonious interpretation, rather than giving effect to the legal terms used in a deed.
  3. Illustrations in Sections 24 and 27 make it clear that Indian law recognises ‘vested remainder’ and ‘contingent remainder‘ (as detailed in the notes above).
  4. It is also beyond doubt that such a transfer is not hit by Sec. 10 and 11 of the TP Act; inasmuch as Sec. 10 and 11 cumber only when ‘conditions’ impose ‘Absolute Restraint’ or ‘Enjoyment in a Particular Manner’.
  5. First illustration in Sec. 88 of the Indian Succession Act reads as under:
    • “The testator by the first clause of his Will leaves his estate of Ramnagar “to A”, and by the last clause of his Will leaves to “to B and not to A”. B will have it.”

Various court decisions make it clear that one can validly transfer or bequeath a property to another, with absolute (in the sense, saleable) rights, with the stipulation that after that (first) transferee’s lifetime, if whole or any part remains, it (contingent remainder) may go to another.

In K. S.  Palanisami v. Hindu Community Citizens of Gobichettipalayam, AIR 2017  SC 1473 (Ashok Bushan, J.), Palaniappa Chettiar and his wife by registered Will created a Trust. The Will indicated that after the death of one of the testators, the survivor had Absolute right to deal with the property and there was no embargo on the right of survivor to dispose of the same.  Certain alienations were made by Rangammal after death of Palaniappa Chettiar.  It is held as under:

  • “49. The intention in testamentary disposition has to be primarily found out from the actual words used in the Will. The court is not entitled to ignore clear words or add something of its own or dilute the meaning of any clear word used in the Will. The solemn duty of the court is to find out the intention of testator and thereafter to give effect to such intention. On the reading of the Will, the intendment of testator/testatrix is clear that survivor shall have absolute right of enjoyment of properties. There is no reason not to give effect to said intendment on the ground that the testator and testatrix have mutually intended to set apart the property for charity and holding that survivor shall have right of disposition be not in the interest of the trust.”

Other Erudite Decisions on the Topic

In Sanford v. Sanford, (1901) 1 Ch. 939, the gift to the wife conferred a power of disposal limited explicitly to her lifetime. But, the gift-over to son was of a quite absolute estate. The gift did not include a power of disposition by will, but allowed power of disposition inter vivos. It was provided in the gift deed that if any property remained at her death it was to pass ‘from father to son, from generation to generation’.   Therefore, it was held that the widow was conferred with only a limited right; and the gift-over, which was ‘the will of the testator’ was to ‘settle its destination’. (This decision is referred to in Nataraja Mudaliar v. Panduranga Mudaliar, 1976-2 MLJ 381.)

In Nataraja Mudaliar v. Panduranga Mudaliar, (1976) 2 MLJ 381, the Madras High Court rendered a well-read decision in this topic. The facts of this case, in a nutshell, are as under:

  • (i) The settlement deed considered in the case provided:
    • (a)  the wife of the settlor should enjoy the properties with absolute (in the sense, saleable) rights.
    • (b) the respondent should take the properties remained at the time of her death, with absolute rights.
  • (ii) the appellant contended that the clause providing for the respondent taking absolutely such of the properties as at the time of the death of the settler’s wife was repugnant to the earlier clause conferring an absolute estate on her, and has, therefore, to be ignored as void.
  • (iii) the respondent contended that if the settlement deed had to be read as a whole  and the effect would be:
    • there was no absolute transfer to the wife of the settler as stated in Sec. 11 of the TP Act.

It is seen that the High Court accepted the contentions of the respondent that the settlement deed was to be read as a whole and that the respondent had taken absolutely such of the properties covered by the settlement deed as remained undisposed of by the settlee, the wife of the settlor; as she had only a right to enjoy the properties with absolute (in the sense, saleable) powers of disposal during her lifetime. The clause as to acquiring property by respondent was not repugnant and void.

The High Court relied on the following cases. The facts of these were ‘very near’ to the facts of that case.

  • Thayalai Achi v. Kannammal, AIR 1935 Mad 704,
  • S.M. Hara Kumari v. Mohim Chandra Sarkar, (1908) 12 CWN 412,
  • Anantnasayana v. Kondappe AIR 1940 Mad 479,
  • Lakshmi Ammal v. Allauddin Sahib, AIR 1962 Mad 247,
  • Ramasreenivasa Iyengar v. Padmasani Ammal, (1973) 1 MLJ 34.

In Lakshmi Ammal v. Allauddin Sahib, AIR 1962 Mad 247, it was held, as regards a Will, as under:

  • “After giving an absolute estate to his wife over the two items of scheduled properties, he provided that these scheduled properties, after the wife’s lifetime should devolve – item 1 on the first daughter and item 2 on the second daughter – who would have absolute rights. When the testator took care to indicate that the properties without any distinction even after his wife’s lifetime should go to each of the daughters, it should be presumed that it was clearly in his mind that the wife’s estate was only to be a limited estate or life estate, and not an absolute one.” (Quoted in: Nataraja Mudaliar v. Panduranga Mudaliar, (1976) 2 MLJ 381).

Reconcile all clauses in the Will, Even if an apparent Absolute Estate Given

In Sadhu Singh v. Gurdwara Sahib Narike, AIR 2006 SC 3282, 2006-8 SCC 75 (B.P. Singh & P.K. Balasubramanyan, JJ.), it is held as under:

  • “20. Thus the first attempt must be to reconcile all the clauses in the will and give effect to all of them. When we make that attempt in the context of what this Court had indicated in the decision quoted above, we find that the apparent absolute estate given to his wife by the testator is sought to be cut down by the stipulations that the property must go to his nephews after the death of the wife, that the wife cannot testamentarily dispose of the property in favour of any one else and the further interdict in the note that the wife during her life time would not be entitled to mortgage or sell the properties. Thus on reconciling the various clauses in the will and the destination for the properties that the testator had in mind, we have no hesitation in coming to the conclusion that the apparent absolute estate in favour of Isher Kaur has to be cut down to a life estate so as to accommodate the estate conferred on the nephews.
  • 21. Thus understood, it has necessarily to be held, as was held by the first appellate court, that Isher Kaur was not competent to gift away the properties in favour of the Gurdwara as she had done. Even if the gift were to be treated as valid, the donee thereunder cannot resist the claim for eviction by the legatees under the will, the nephews of Ralla Singh, on the cessation of the life estate of Isher Kaur. Admittedly, that life estate has ceased and once it is found that the plaintiff has acquired a title to the property as a legatee under the will, he would be entitled for and on behalf of himself and his brother to recover possession of the property from the Gurdwara in view of the death of Isher Kaur.”
  • Note: In Tej Bhan v. Ram Kishan,2024 INSC 945, the Apex Court referred this decision and various other decisions to a ‘larger bench for reconciling the principles laid down in various judgments of this Court and for restating the law on the interplay between sub-section (1) and (2) of Section 14 of the Hindu Succession Act, 1956.

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