A person died leaving behind his wife W, and his brother’s son, his nephew Br S. The nephew applied to the court for grant of letters of administration and claiming that the deceased had left his total properties in his favour under a Will.
This claim was contested by the widow W, on the ground that the Will was a forged document, and she, as the legally wedded wife of the deceased was entitled to the total properties.
The nephew sought and obtained a temporary injunction from the court to the effect, preventing or restraining the widow from transferring or alienating the suit properties till the case was decided by the court on merits.
The widow was therefore asked to maintain the status quo with respect to these properties.
Six months later, the widow executed a Will of these properties in favour of her brother and died three months later, while the suit relating to the title dispute was pending in the court.
Her brother applied for substitution of his name in the place of the testatrix.
Br S, objected to this substitution on the ground, that as the widow was specifically directed by the court not to transfer or alienate the property and was to maintain the status quo, a transfer of property, under a Will, so as to create rights in a third party would be against the order of the court and hence void, and such a transferee therefore would have no locus standi to be substituted in place of the deceased testatrix.
ISSUE
Whether execution of a Will amounts to a ‘transfer’ or alienation within the meaning of the TP Act? If it does, then whether the execution of will was against the express directions of the court, and would be void?
HELD
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.
The difference between a transfer and a Will are well recognised. 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.
The concept of transfer by a living person is wholly alien to a Will.
The court therefore, held that a Will does not amount to a ‘transfer’ within the meaning of s. 5 of the TP Act, and allowed the legatee to pursue the litigation on behalf of the testatrix.