NMIMS SCHOOL OF LAW

PROPERTY LAW

A PROJECT ON Analysis of Testamentary Succession

with respect to the Transfer of Property Act, 1882.
ACADEMIC YEAR: 2017-18
COURSE: B.B.A. LL.B. (Hons.)
TRIMESTER VII
SUBMITTED BY: KEYA SHAH (A060)
SUBMITTED TO: PROF. DEEPIKA CHHANGANI

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 TABLE OF CONTENTS

SR.NO PARTICULARS PAGE.NO

1. INTRODUCTION 3

2. LEGAL ANALYSIS 5

3. CASE LAWS 9

4. CONCLUSION/INTERPRETATION 11

5. BIBLIOGRAPHY 12

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 INTRODUCTION
The Transfer of Property Act, 1882 happened to be one of the early legislations
of the nineteenth century. The Act is having an important place in the statute
book with the main objective to render the system of transfer of immovable
property a system of public transfer. Property from one person to another can
be transferred in several ways, such as by way of private or court sale, gift, will,
inheritance, relinquishment, dedication, etc.1

Section 3 of the transfer of property act defines instruments as a non-

testamentary instrument.2 The transfer of property act does not deal with
testamentary transfers (will etc.), that is why instrument does not cover
testamentary instrument under this act.

The manner of distribution of a persons property after his death is determined

by the fact whether the deceased has made a Will or not.3 All civilised societies
have recognised the right of an individual to acquire, hold and dispose of
property. This right of disposal includes the right to dispose properties in a
manner so as to take effect after the death of a person. Such a right can be
exercised by making an instrument known as Will, during the lifetime of a
person. Person making a Will in such a case is known as 'testator and
distribution taking place after death of the testator as per his Will is known as
'Testamentary' succession.4

A person cannot give his ancestors property in the form of a Will but he can
make a Will only of his Self-Acquired property. A Will does not involve any
transfer, nor affect any transfer inter-vivos, but it is an expression of intending
to appoint a person who will look after the properties after his (Testator) death.5

1
DR POONAM PRADHAN SAXENA,PROPERTY LAW 57 (LexisNexis 2016)

2
The Transfer of Property Act, 1882, s.3
3
DR AVTAR SINGH, THE TRANSFER OF PROPERTY ACT 33 (LexisNexis 2016)
4
Ibid
5
DR POONAM PRADHAN SAXENA,PROPERTY LAW 64 (LexisNexis 2016)

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A Will regulates the succession and provides for succession as declared by the
testator. In case of a person who dies without making a Will, the property
passes by inheritance as per the personal law of the deceased. Devolution of
property of such a person after his death is known as 'Intestate succession. In
India, laws governing such intestate succession are the Indian Succession Act,
1925, Hindu Succession Act, 1956 and Mohammedan Law.6 These laws by and
large provide for the manner of devolution of the properties of the deceased who
has died without making a Will, amongst his legal heirs. They provide amongst
other things, rules as to who are the persons entitled to receive the estate of
the deceased and in what proportion. They also lay down the manner in which
the estate of the deceased is to be administered.

As the time rolled the emergence of the Will became more popular, Indian Law
which is governed under Section: 5 of The Indian Succession Act, 1925
which provides different rules for intestate succession and testamentary
succession in India. It applies to all the communities in India except Muslim
community. In India there is a well developed system of succession laws that
governs a persons property after his death. The Indian Succession Act 1925
applies expressly to Wills and codicils made by Hindus, Buddhists, Sikhs,
Jains, Parsis and Christians but not to Mohammedans as they are largely
covered by Muslim Personal Law.7

The term Will is defined under Section: 2(h) of The Indian Succession Act,
1925, 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.8 A
testator is authorised with a power to appoint any person as beneficiary of his
Will.

6
DR POONAM PRADHAN SAXENA,PROPERTY LAW 57 (LexisNexis 2016)

7
Ibid
8
The Indian Succession Act, 1925, s.2(h)

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 LEGAL ANALYSIS
With the exception of certain instances, the Transfer of Property Act does not
govern the transfer of property by operation of law, such as sale by the order of
court, auction or forfeiture as well as transmission of title under other laws like
Hindu Succession Act. As such, transfers by will and inheritance are not
governed by the Act. Section 5, under Chapter II of the Act, 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, or to himself and one or more other
living persons; and to transfer property is to perform such act.9 Living person
includes a company or association or body of individuals, whether incorporated
or not. The person/s transferring the property is referred to as the transferor,
while the person/s to whom the property is being transferred, is referred to as
the transferee.10
Property that Can or Cannot be Transferred
The Transfer of Property Act specifies that property of any kind may be
transferred, except as otherwise provided by the Act or by any other law in
force. Depending on the type of property to be transferred, transfer of property
would include:11
1. When the property is land:
a. The easements annexed thereto;
b. The rents and profits thereof accruing after the transfer; and
c. All things attached to the earth.
2. Where the property is a house
a. The easements annexed thereto;
b. The rent thereof accruing after the transfer;
c. The locks, keys, bars, doors, windows; and

9
The Transfer of Property Act, 1882, s.5

10
DR POONAM PRADHAN SAXENA,PROPERTY LAW 58 (LexisNexis 2016)

11
The Transfer of Property Act, 1882, s.6

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d. All other things provided for permanent use therewith.
Property which cannot be transferred
The Act specifically provides for the properties which cannot be transferred
under the provisions of the Act. The same are as follows:12
a. The chance of an heir-apparent succeeding to an estate, the chance of a
relation obtaining a legacy on the death of a kinsman, or any other mere
possibility of a like nature, cannot be transferred.
b. A mere right of re-entry for breach of a condition subsequent cannot be
transferred to anyone except the owner of the property affected thereby.
c. An easement cannot be transferred apart from the dominant heritage.
d. An interest in property restricted in its enjoyment to the owner personally
cannot be transferred by him.
e. A right to future maintenance, in whatsoever manner arising, secured or
determined, cannot be transferred.
f. A mere right to sue cannot be transferred.
g. A public office cannot be transferred, nor can the salary of a public officer,
whether before or after it has become payable.
h. Stipends allowed to military, naval, air-force and civil pensioners of the
government and political pensions cannot be transferred.
i. No transfer can be made (1) insofar as it is opposed to the nature of the
interest affected thereby, or (2) for an unlawful object or consideration within
the meaning of Section 23 of the Indian Contract Act, 1872 (9 of 1872), or (3) to
a person legally disqualified to be transferee.
j. Nothing in this section shall be deemed to authorise a tenant having an un
transferable right of occupancy, the farmer of an estate in respect of which
default has been made in paying revenue, or the lessee of an estate, under the
management of a Court of Wards, to assign his interest as such tenant, farmer
or lessee. According to Section 8 of the Act, the transfer of property passes to
the transferee all the interest the transferor is capable of passing

12
The Transfer of Property Act, 1882, s.6

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Wills Under Indian Succession Act, 1925
Will means the legal declaration of the intention of a person with respect to his
property, which he desires to take effect after his death. It is a unilateral
document and takes effect after the death of the person making it. It can be
revoked or altered by the maker of it at any time he is competent to dispose of
his property.13
A will made by a Hindu, Buddhist, Sikh or Jain is governed by the provisions of
the Indian Succession Act, 1925. However Mohammedan are not governed by
the Indian Succession Act, 1925 and they can dispose their property according
to Muslim Law.14

13
Sec 2(h) of Indian Succession Act, 1925
14
MULLA, THE TRANSFER OF PROPERTY ACT Chapter 1 (LexisNexis 2006)

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The Law of Succession in modern times is divided into the Law of Testamentary
Succession and the Law of Intestate succession. The law of Testamentary
Succession regulates the devolution of the property of a person who dies having
made a will disposing of it. The law of Instate succession, on the other hand,
regulates the devolution and distribution of the un disposed property of a
deceased person.15
Need for Testamentary Succession
"The law of every civilized people concedes to the owner of property the right of
determining by his last Will, either in whole or in part, to whom the effects
which he leaves behind him shall pass. Yet it is clear that, though the law
leaves to the owner of the property absolute freedom in this ultimate disposal
that of which he is thus enabled to dispose, a moral responsibility of no
ordinary importance attaches to the exercise of the right thus given. The
instincts and affections of mankind in the vast majority of instances, will lead
men to make provisions for those who are the nearest to them in kindred and
who in life have been the objects of their affection. Independently of any law, a
man on the point of leaving the world would naturally distribute among the
children or nearest relatives the property which he possessed. The same
motives will influence him in the exercise of the right of disposal when secured
to him by law. Hence arises a reasonable and well warranted expectation on
the part of mans kindred surviving him that, on his death, his effects shall
become theirs, instead of being given to strangers. To disappoint the
expectations thus created and to disregard the claims of the kindred to the
inheritance is to shock the common sentiments of mankind, and to violate
what all men concur in deeming an obligation of the moral law. It cannot be
supposed that in giving the power of testamentary disposition the law has been
framed in disregard of those considerations.

15
Supra 3

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 CASE LAWS
In N Ramaiah v. Nagaraj S16, 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. Pointing out the distinction between a transfer and
a Will, the court said: the difference between a transfer and a Will are well
recognized. 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. 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 either 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 succession.

In the case of Kenneth Soloman v. Dan Singh Bawa17, the issue was
whether devolution of interests in property through inheritance or
testamentary succession (Will) would amount to transfer of an interest in the
immovable property within the meaning of s.5 of the TP Act. The dispute
related to the tenancy rights of the tenants, which he had bequeathed in favour
of his heirs. On his death, the beneficiaries under his Will took possession of

16
AIR 2001 Kant 395
17
AIR 1986 Del 1 : 28 (1985) DLT 229

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the tenanted premises as the contract of lease was still subsisting. The
landlord filed a suit for eviction on the ground that this transfer of the premises
amounted to violation of the provisions of the Delhi Rent Control Act, 1958, as
the tenant parted with possession of the premises in dispute without the
permission of the landlord.
The court held that, the transfer of property according to the definition given in
Section 5, of the TP Act, means an act by which a living person conveys
property in present or future to one or more other living persons or to himself
and one or more other living persons. These words exclude transfer by Will, for
a Will operates after the death of the testator.
In relation to the violation of the tenancy contract, the court said that the act of
making a will, by itself, would not amount to parting with possession of the
premises, as a will by its very nature is revocable, and does not vest
possession, or for that matter, any right in the legatee. Through a will, a person
parts with possession only after his death, and therefore, though vesting and
divesting of the rights in the property takes place, the moment the testor dies,
the whole transaction would be governed by the relevant succession laws and
not by the provisions of the TP Act.

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 CONCLUSION/INTERPRETATION
It is hence clear from the above research that testamentary succession is not
covered under the Transfer of Property Act, 1882.
A will is a device or an instrument with the help of which an owner of the
property makes a disposition that is to take effect after his death and which by
its very nature revocable. The other reason for such power is that everybody
likes to make sure that the life he has led has been meaningful and is
concerned about his property after his death. Rule of natural justice also
requires that he must also be given power that the property he earned with
hard labour is disposed by him in accordance with his wished not only during
his life, but after his death too. A person can ensure as to how his property
should devolve and to whom it shall devolve, after his death, through a Will.
This will also help him to have authority over those who depend on him and he
can use his authority to inculcate virtue and control vice in his dependent by
fear that if his dictates are not followed then such dependant will not be getting
any share in his property. If a person dies without leaving behind his Will, his
property would devolve by way of law of intestate succession and not
testamentary succession i.e. in accordance to the Will. Will is an important
testamentary instrument through which a testator can give away his property.
Hence it must be free from fraud, coercion, undue influence. If the will has bee
n induced by employment of such craft then court will declare such will as inva
lid.

In India the law governing the will is provided under Indian Succession Act,
1925. The Indian Succession Act, 1925, consolidating the laws of intestate
(with certain exceptions)and testamentary succession supersedes the earlier
Acts, and is applicable to all the Will sand codicils of Hindus, Buddhists, Sikhs
and Jains throughout India. The Indian Succession Act, 1925, does not govern
Muslims and they can dispose their property according to Muslim Law.

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 BIBLIOGRAPHY
BOOKS

DR POONAM PRADHAN SAXENA,PROPERTY LAW 57-69 (LexisNexis

2016)
MULLA, THE TRANSFER OF PROPERTY ACT Chapter 1 (LexisNexis
2006)
DR AVTAR SINGH, THE TRANSFER OF PROPERTY ACT 33-34
(LexisNexis 2016)

CASES CITED
N Ramaiah v. Nagaraj S AIR 2001 Kant 395
Kenneth Soloman v. Dan Singh Bawa AIR 1986 Del 1 : 28 (1985) DLT
229

WEBSITES

www.manupatra.co.in
lexisnexis.co.in

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