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NAGALUTCHMEE UMMAN V.

GOPOO NADAAJU CHETTY
6 MIA 309

Subject: Transfer of Property Act

Submitted to: Prof. Vepa P. Sarathi &
Mr. Shaik Nazim Ahmed Shafi
Submitted by: Abhishek K. Singh
ID NO: 2009-01 B.A., LL.B (Hons.)
IInd Year IVth Semester

NALSAR University of Law, Hyderabad

........................................................................3 1..........................iii CHAPTER I.2 Issues...........................................................2 1................................................ ..............2 Scope and Limitations..................................1 1..............10 3.................................4 Disinheritance...........................................................................................................................7 2............................................1 Appellant...................1 Aims and Objectives......................................5 1...............................................................2 Research Methodology....................TABLE OF CONTENTS INDEX OF AUTHORITIES................6 2..................................................1 Will........................................................INTRODUCTION...........................3...........1 1..................................................................7 2.........................................5 1.........i Table of Cases .................................................1.....3 1.................................3 Research Plan.............................................................................i Table of Statutes.........6 2...2 Burden of Proof...............................................................ii Table of Abbreviations.........................................................................................1 1.......................................................3........................................................iv ............................3.............................................1............................................................................................................5 CHAPTER II NAGALUTCHMEE UMMAL v...........................................................................................10 BIBLIOGRAPHY..................................3.........................................................................................................................1 Reasons to take a Different View.......8 CHAPTER III ANALYSIS OF THE JUDGMENT..........................................5 Intention of Testator......................................................................................3 Contentions......................................................................7 2.......................4 Judgement..............................................................................................1...........................................................................................................................................................3 What property may be bequeathed by will?................................................... GOPOO NADARAJA CHETTY........................................................................................8 2................................................2 Respondents.................5 1...........................................................................................................................................................................................1 Facts....1...

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......4 Thyagasundaradoss v.........2 Hammant v.................................................................. Ramabai................................................................................................................................................................................................. Gopi Narain.............................................4 Madhavayya v....10 Rani Raghubans v.....................4 Harwood v............... Gopi Ballav.......2 Lachho Bibi v.........4 Brij Mohan v...................... Yamenmma................ Satyavathi. Ishar Das.......................................................................................4 Parvatibai v......................5 Vijayaratnam v........................................................................... Chalekany...................................2 Vitla Butten v..........................3 Bodi v......................3 i ... Girdharilal.......... Bhagwant....4 Vasantkumar Basu v...................................4 Beer Pertab v........................................................................3 Sasanka Bhusan v.............................................................................................................................................................................................................................................................................................................2 Mahalinga v..............................................................5 Lalita Devi v...........................4 Prosunno v.............................................................4 Sartaj v...........5 Venkatakrishna Rao v..................................................................... Ramshankar Roy.................................................................................................................................................................................................................................... Rungopaul Mullick........................................................... R Ramier..................................................................................................................................2 Murlraz v............................................................................................................................................................................................................................................................................. Venkataswami......................... Sudarsana Rao.............................................................................................. Tagore.......................................... Rajinder Pertab........... Kali Das....................5 Tagore v...........................3 Lakshmanna Nadar v............................................................................................................................................................4 Ramtoonoo Mullick v............................................ Deoraj........................... Baker.................................................................................................................................................................. Bhimacharya................................ Anilandi...... Raghuraj Singh................... Achamma..... Pandia........TABLE OF CASES Amulya v..................5 Toaram v............................................ Tarrucknath................................

8 Satyajeet Desai. p. 308. that: …. Mahalinga v. 1925. I.8 The second rule is.). Anilandi AIR 1974 SC 199. 3 Madhavayya v. Achamma (1949) 2 MLJ 716. 2007.INTRODUCTION 1. cannot execute a valid will.2 Burden of Proof As regards the onus of proof in case of wills. may dispose of his property by will. the rules of law are quite clear. not being a minor. 3 If it is executed by a testator while in sound and disposing state of mind it is valid even if it is not signed by the testator. or if any other circumstances exist which excite the suspicion of the Court. Baker (1880) 13 ER 117 PC. 1 In this regard it is also worthwhile to look into the definition of codicil which is defined in Section 2(b) of the Indian Succession Act. that: …. 1925. all the courts have held that a Hindu. Vol. 6 Vijayaratnam v. it is for those who propound the will to remove such suspicion. 1925.if a party writes or prepares a will under which he takes a benefit. 5 Section 59 of The Indian Succession Act. The first rule is. (rev.the onus probandi lies in every case upon the party propounding a will. PRINCIPLES OF HINDU LAW. and he must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator. Mulla DF. 646. Sudarsana Rao (1925) 52 IA 305. and to prove affirmatively that the 1 Section 2 (h) of The Indian Succession Act.1. 5 Apart from the Act.7 1. 4 Brij Mohan v. 2 1 . 7 Harwood v.6 A person who has not the capacity to comprehend the extent of his property and the nature of the claims of people whom he is excluding from participation has not a sound disposing mind. A nomination by a Mahant of his successor is not a will. and whatever their nature may be.4 Every person of sound mind. who has not attained the age of majority prescribed by the Indian Majority Act. Girdharilal AIR 1978 SC 1202. 20th ed. 2 Every will or codicil made by a Hindu is now required to be in writing and attested by at least two witnesses.1 Will A will is 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.CHAPTER I.

gave the residue to his son and the son took out the probate and carried out the wishes of the father. p.testator knew and approved the contents of the will. 1956. his undivided interest in the coparcenary property. Similarly a coparcener could dispose of by will.11 (ii) according to Dayabhaga law. would not change the nature of the joint family property. 13 Vitla Butten v. (3) As regards property which a Hindu could dispose of by will. and it only where this is done that the onus is thrown on those who oppose the will to prove the fraud or undue influence or whatever they rely on to displace the case for proving the will. so as to defeat the legal right of his wife or any other person to maintenance. 12 Sartaj v.3 What property may be bequeathed by will? (1) Prior to the coming into operation of the Hindu Succession Act 1956. Then the title by survivorship. Nagappa Chettiar 10.at the moment of death. not even a father.12 According to Mitakshara law. no coparcener. Yamenmma (1874) 8 Mad HC. Rajinder Pertab (1867) 12 MIA 1. 38. 14 Ibid.14 9 Lachho Bibi v. Deoraj (1888) 10 All 272. 11 Beer Pertab v. the whole of his interest in the joint family property. 10 2 .1. In the Vailliammai Achi v. Even after the Succession Act 1956. permits a member of a Mitakshara coparcenary to dispose of by will. a father could dispose of by will all his property. the right of survivorship (of the other coparceners) is in conflict with the right by devise. the following propositions are to be noted: (i) according to all the schools.9 1. Gopi Narain (1901) 23 All 472. so dispose of his property. being the prior title. a Hindu could dispose of by will his separate or self acquired property. it was a rule firmly established that a Hindu cannot by will. AIR 1928 Lah 967. whether ancestral or self acquired. bequeath property which he could not have alienated by gift inter vivos. the Supreme Court pointed out that a father in a Mitakshara family has a very limited right to make a will and the mere fact that the father after making some dispositions. takes precedence to the exclusion of that by devise. a Hindu cannot by will. could dispose of by will his undivided interest. the reason being that: …. (2) Section 30 of the Hindu Succession Act.13 even if the other coparceners consented to the disposition.

20 1. so far as it dealt with the coparcenary property. such as a son adopted by him16 a son subsequently born to him.15 Since the will operated from the date of the testator’s death. 21 Murlraz v. notwithstanding express direction in the will that he shall not take it. wife. Tagore (1872) 9 Beng LR 377. Ramabai AIR 1976 Bom 315.1. The Hindu Law. Bhimacharya (1888) 12 Bom 105. was inoperative and the property passed to him by survivorship. however. it will in the meantime vest in the heir.4 Disinheritance There is nothing to prevent a Hindu from so disposing of his property by will so as to defeat the rights of his sons. the corpus of the estate is not to vest until the happening of a certain event. Chalekany (1838) 2 MIA 54.22 However. 23 Tagore v. 24 Amulya v. Raghuraj Singh (1947) ILR All 556. if the son. it must go to the heir. he could not do so by will. there will be intestacy to that extent. the will. 18 Hammant v. if the bequest to that person is not valid. bequeath the joint family property as if it was his separate property. died in the lifetime of testator. it is sufficient. if the property is bequeathed to some other person. whether natural born or adopted. 22 Prosunno v. Ishar Das (1933) 14 Lah 178. is the intention of the testator. no less than English Law.21 No express words are necessary to disinherit the heirs.A sole surviving coparcener could. or other heirs even to the extent of completely disinheriting them. 16 3 . Kali Das (1905) 32 Cal 861. the will stood. and if there is no valid disposition. 17 Lalita Devi v. points to the intention as the element by which we are to be guided in determining the effect of a testamentary disposition.5 Intention of Testator In determining the construction (of a will) what we must look to.24 1. Rani Raghubans v. Bhagwant (1915) 39 Bom 593.1.17 including a posthumous son18 or the posthumous son of a deceased coparcener. it was held that if a coparcener subsequently came into existence. 19 Bodi v. and the devisee was entitled to the property given to him by the will. However. nor is there 15 Toaram v. The estate must go to somebody. and the property will go to the heir.23 Similarly where under the terms of a will.19 Though a father could dispose of a small portion of ancestral movables by way of gift. Venkataswami (1915) 38 Mad 369. Tarrucknath (1873) 10 Beng LR 267. 20 Parvatibai v.

Among such surrounding circumstances which the court is bound to consider. 26 4 . It is true that in doing so. and once ascertained. they must not be departed from. the position of the testator. Ramshankar Roy (1932) 59 Cal 859.28 Clear and unambiguous dispositive words are not to be controlled and or qualified by any general expression of intention. Gopi Ballav AIR 1935 Cal 716.)27 It is a well settled rule of construction that the same words used in a document (will) are to be given same meaning. i. to construe the will. the words of the will are to be considered. However. Sasanka Bhusan v. 29 Vasantkumar Basu v. and where this is the case. the probability that he would use words in a particular sense. those circumstances no doubt must be regarded. the primary duty of a court is to ascertain from the language of the testator what his intentions. R Ramier [1953] SCR 848. They must consider the surrounding circumstances.29 Technical words or words of legal import must have their legal effect. The Court is Justified in refusing to allow defects in expressions in these matters to prevent the carrying out of the testator’s true intentions. 28 Thyagasundaradoss v. unless there is a clear intention to the contrary. 27 Venkatakrishna Rao v. which is something unknown to Hindu Law (except . than merely the words used.25 In all cases. Satyavathi AIR 1968 SC 751. even though the testator uses inconsistent words. and the court is bound to regard as presumably (and in many cases certainly) present to the mind of the testator. his family relationships. those intentions must be ascertained by the proper construction of the words he uses. in a sense in case of coparcenray. and many other things which are often summed up in somewhat picturesque figure: “the Court is entitled to put itself into the testator’s armchair”. unless those inconsistent words are of such a nature as to make it perfectly clear that the testator did not mean to use the technical terms in their proper sense. but the meaning to be attached to them may be affected by surrounding circumnstances. They convey the expression of the testaor’s wishes.26 In interpreting the will. Pandia AIR 1965 SC 1730. the Court will be slow in accepting the contention that the testator intended to create joint tenancy. Primarily. they are entitled and bound to bear in mind other matters. none would be more important than the race and religious. 25 Lakshmanna Nadar v. influences and aims arising there from.any difference between the one law and the others to the materials from which the intention is to be collected.e.

Doctrinal method is the method of obtaining information from primary and secondary sources.1 Aims and Objectives Through this project the researcher aims to provide the reader with a detailed overview of the concept testamentary disposition by a Hindu before and after the passing of the Transfer of Property Act.3 Research Plan The Researcher has divided the topic into headings and subheadings in order to fulfil the aims of the project. 1.3.1. the researcher will discuss this landmark case in detail along with its facts.2 Scope and Limitations Within the scope of this project. 1882 and other related laws.3. 5 . Due to paucity of space and time to some extent. 1. 1. The case deals with whether the transfer of ancestral property by a sole surviving coparcener after making provisions for maintenance of his widow and daughter is valid under Hindu Law before the passing of the Transfer of Property Act. The researcher has chosen the most relevant cases and laws for the case study to explain whether the appeal would be successful or not. analysis and relevant laws. judgement. issues.2 Research Methodology The researcher has adopted the doctrinal method of research as it was found to be most suitable for this type of project. 1882. the researcher will be unable to include all the possible cases and will limit herself to analyzing and discussing only the relevant aspects of the given case study and whether or not an appeal will be successful today. Resources from the NALSAR library and the World Wide Web were used.

In the month of August 1844. partly inherited from the family into which he had been adopted and partly acquired by himself. as well as the other daughter now living would be given in marriage to families of respect. After the death of the testator. On the 28 th of August 1844. the provision herein contained shall be conformed to until that boy attains his proper age. and only one daughter.1 Facts Appacooty Jyen. At that time he had none by female relatives existing. but his wife was then pregnant. and an account of such expense must be kept under their signature. Any expense. who asserted a right to possession on the ground that Appacooty Jyen had authorised her to adopt a son in the event of the child she was pregnant with being a 6 . GOPOO NADARAJA CHETTY 2. the remainder was to be utilised by the female relatives to support themselves. the testator. even to the extent of one rupee or one callum of paddy could only be defrayed upon their authority. and after some adverse proceedings by the appellant. all the property except that set apart for Ganapati Jyan. After deducting the expenses of charity from the estate. such daughter. both real and personal. shall after the lifetime of those to whom they are now bequeathed. This will was witnessed by six witnesses. but should a daughter be born. he was attacked by the illness which ultimately terminated his life. on the day before his death executed a codicil to his will. whom he supported out of his estate. He had no son. The respondents administered the estate according to the terms of the Will and Codicil. In this codicil he stated that in the event of a son not being born. As the above will did not determine the proportions which the female relatives were to respectively enjoy the properties. he executed a will fearing his declining state of health and appointed his uncle Chinnappayan and Gopoo Nadaraja Chetty to keep accounts. In his will he also stated that should his wife give birth to a boy. the deceased husband of the appellant in the presidency of Madras. the appellant gave birth to a daughter. was the owner of considerable property.CHAPTER II NAGALUTCHMEE UMMAL v. be appropriated to purposes of charity.

and that she and her two daughters were according to the Hindu law entitles to her husband’s estate. to establish her right by a civil suit.  Also.  She also asserted that the alleged Will and Codicil were forged by the Respondents subsequent to the death of Appacooty Jyen and that he was in a state of insensibility during the final days of his life and could not have the mental capacity to make a will. would her compliance with these instructions operate to invalidate the Will in which no mention is made of adoption?  Can the testator dispose of ancestral property by a Will? 2. they were put in possession of the deceased’s estate. to descend after this death to his heirs. who was pregnant. she being then pregnant. and that in the event of her adopting a son the title would pass to him. the appellant submitted that the estate of Appacooty Jyen being ancestral and not self acquired. 2.3 Contentions Many issues were raised and arguments were put forth by both the appellant and the respondents as regards the issue of relevant laws. ought.1 Appellant  The appellant asserted that the lands and other property in dispute were not acquired by her late husband. 2. and the appellant.3. according to Hindu law.2 Issues  Is the Will valid?  Supposing the deceased gave his wife verbal instructions to adopt a son in the event of her bearing a daughter. he had authorised her to adopt a son in the event of her giving birth to a daughter. and that he was incompetent to dispose of it according to his discretion as the appellant and her daughter were heiresses at the time of his death. but inherited by him from the ancestors of the family into which he had been adopted. 7 . the appellant being referred by the sub collector to whom she preferred her claim.female.  She also claimed that at the time of his death.

as it was inconsistent with the Codicil. and directed the remainder to be appropriated to charitable purposes in the event of his wife. 2. that such boy would have become heir to the deceased. If the testator had really given his wife verbal instructions to adopt a son in the event of her not bearing male issue. who was then pregnant. it being incompetent for the testator. and were not genuine instruments. who authorised the adoption of a 8 . The Pundits answered that the Will is valid under Hindu law. and that he never authorised the appellant to adopt a son. who was then pregnant.  The respondents also insisted that Appacooty Jyen was in possession of his faculties until three hours before his death. which provided that the whole of his family estate should be appropriated to objects of charity in the event of the appellant. not being delivered of a son. not giving birth to a male child.  She also alleged that the defendants had admitted in a petition presented by them to the Sub-Collector. the Civil Judge directed the case and the questions it raised to be put to the Pundits of the Sudder Dewanny Adawlut at Madras (Saddar Diwani Adalat).3.4 Judgement Before finally deciding the suit. 2. the fact that her husband had authorised her to adopt a son. or the appellant might have adopted a son and constituted him heir. the testator having thereby bequeathed a portion of his estate for the maintenance of his wife and other members of his family. whom he was bound to protect.2 Respondents  The respondents stated that they had not undertaken the trusteeship either to usurp the family estate or to earn their livelihood by it. and had requested the Sub-Collector to induce her to make the adoption. her compliance with those instructions would of course invalidate the Will according the Hindu law. but in consideration of the friendship which had existed for generations between the families of Appacooty Jyen and Gopoo Nadaraja Chetty.  They denied that the deceased had authorised the appellant to adopt a son.  She also objected that the Will and Codicil were not written on stamped paper.might have been delivered of a boy.

and as well ancestral as otherwise. ancestral or otherwise in any manner he chooses to after making provisions for maintenance of the female members of the family. the Pundits well versed in ancient Hindu Law said that the testator could not do so only when he has a son. movable and immoveable.son. On appeal to the Sudder Dewanny Adawlut. and throughout Bengal. the judge did not admit verbal instructions as sufficient proof that the deceased left behind him any injunctions to adopt a son. the court referred to the case of Ramtoonoo Mullick v.. Also. Furthermore. to alienate the whole of his estate in which the adopted son would have an interest in and thereby injure the means of the maintenance of his would-be heir. and this decision was affirmed on appeal by the Privy Council. No. Finally it was held that the instruments (Will and its Codicil) were 30 1 Morley’s Dig. the Jude of the Civil Court after stating the pleadings and evidence proceeded to say that there was no doubt that the Will and Codicil to it were executed by the deceased and that he was in the full possession of his senses at the time as these documents were attested by several persons of respectability. However. not ancestral may be good. whether ancestral or not. a man who is the absolute owner of property may now dispose of it by will as he pleases. Although it was admitted that these documents were neither engrossed upon stamped paper. it was observed “The strictness of the ancient law has long since been relaxed. 39. Rungopaul Mullick 30 in which it was held that a Hindu might and could dispose by Will of all his property. Even in Madras it is settled that a will of property. he can dispose of his property. the Court attached no great importance to this fact taking into consideration the circumstances under which they were executed. not afterwards registered. in the absence of any other evidence that can be relied on. p. and for the most part unexceptionable. 3. On appeal to Her Majesty in Council. if the testator is the sole surviving coparcener. and their evidence to the point is clear. 9 . because the son immediately on his birth becomes a coparcener with the father and acquires an interest in the property. the Court in delivering its judgement stated that the evidence to the execution of the Will and its Codicil is clear and satisfactory. As regards the objection taken by the appellant that the Will is illegal because the widow is the party to whom the law gives the estate.” Although it was ingeniously argued that the testator could not dispose of ancestral property by Will. It was in the Court’s opinion that the testators last wishes and intentions are contained in the Will and Codicil to it.

10 .sufficient to dispose of ancestral estate in the absence of any evidence to prove that the testator had authorised the appellant to adopt a son in the event of her giving birth to a female child.

1 Reasons to take a Different View The researcher after careful examination of the facts and arguments advanced will now discuss the feasibility of an appeal of the judgement passed by the Privy Council. the decision would be entirely different from that of the Privy Council in 1847. (b) have the same rights in the Coparcenary property as she would have had if she had been a son (c) be subject to the same liabilities in respect of the said Coparcenary property as that of a son. if the appellant should appeal in a Court of law today. the case would not fall within the purview of the Transfer of Property Act 1882 as a right such as that of succession to property in which one has 11 . Today. then and only then will it be his absolute property and he will have absolute rights over it. Hence. one living and one unborn would be treated as coparceners in the Hindu Joint family and hence the testamentary disposition by Appacooty Jyen would not be valid. much of Hindu Law as to succession to Hindu Joint family property stands abrogated and modified after the enactment of the Hindu Succession Act. If only one coparcener exists alone without other members of the family existing. the researcher will only give emphasis to modern property and succession laws as if the case were decided today. even if they are not coparceners. 1956 and the subsequent Amendment Act in 2005. Section 6 (1) of the Hindu Succession Amendment Act 2005 states that a daughter shall (a) by birth become a coparcener in her own right in the same manner as the son. As this case was decided well before the Transfer of Property Act was passed in 1882. all have been deceased.e. However. Also. they are entitled to the usage of the property as well as the sole surviving coparcener. i.CHAPTER III ANALYSIS OF THE JUDGMENT 3. Both the daughters. if the sole surviving coparcener made provisions for the maintenance of the other living members of the family. The Mitakshara law of Coparcenary holds that as long as members of the Hindu undivided family are present. he can then dispose of the rest of the ancestral property in any manner he chooses to do so.

the ancient Coparcenary laws seem to favour the males. In the opinion of the researcher. 12 . where the female sex is placed on the same pedestal as her male counterpart. In today’s world. It was only recently that the fairer sex was given recognition as a coparcener in her own right. For the purpose of the study of the feasibility of the appeal. the judgement given by the Privy Council. although was correct according to the Hindu law relating to property prevailing at that time was prejudiced against the widow and her daughters. I would recommend the appellant to appeal against the decree passed by the Privy Council which would ultimately be granted in her favour taking into consideration the Hindu Succession Amendment Act of 2005.interest by birth cannot be transferred according to the doctrine of spes successionis in Section 6 (a).

Ltd. Kurtz.). Mitra.com iv . H.  Prof. Allahabad. First Ed.). Kolkata. 2006. 2007. Use and Conservation.  Dr.P.M. Vepa P. Tewari. Tripathi. Transfer of Property Act. The Transfer of Property Act. 1998. 2001. P. Setalvad. Central Law Publications.. Bombay.M. Kamal Law House. The Transfer of Property Act 1882.  Paul Goldstein and Barton H. G. N. Sixth Ed.P. Property Law: Ownership. Bakshi and H. 2005.R.com www. Principles of PROPERTY LAW.support. Eastern Book Company. C. Bombay. R. Seventh Ed. The Transfer of Property Act 1882. Thomson West.). Wadhwa and Company. Sen Gupta (Rev. Nagpur. Tripathi Pvt. Karan_kapoor1@dell. Thompson.). 2004.M. Reprint 2007. Sorabjee (Rev. P.  Prof. 1999. Foundation Press. Fifth Ed.  Mulla on Transfer of Property Act. Law of Transfer of Property.  Darashaw Vakil’s Commentaries on the Transfer of Property Act. Fifth Ed. Second Ed. Eighteenth Ed.B.. S.  M. Allahabad Law Agency. Tenth Ed. Upadhyaya (Rev. Tripathi Pvt.. Allahabad. N. 1966. Allahabad.BIBLIOGRAPHY Books Referred:  B.dell. Sarathi. Soli J.  Herbert Hovenkamp and Sheldon F. Second Ed.N. Ltd. Khanna (Rev. Jr. 1985.

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