TaxTMI 
TaxTMI 
2003 (12) TMI 582
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....5 of the Act, aggrieved by the action of the respondent in allegedly taking illegal possession of the petitioner's palatial ancestral home situate in the heart of the city of Calicut on U.K. Sankunni Road (a road named after the petitioner's father Late Shri U.K. Sankunni). The said proceedings being under Part VII of the Act were summary in nature, confined only to the issue of possession of the ancestral family home and the two garages. It has been judicially recognized that in such proceedings where the issue is one of possession, the question of title cannot be gone into in detail. According to her, the respondent (Dr. T.C. Sidhan) propounded a forged Will in the said proceedings and sought adjudication of the same, to which the petitioner no.1, objected to. In fact, petitioner no. 1 had filed a separate application (I.A. No. 2976 of 2000) objecting to the adjudication of the alleged Will since the District Court exercising summary powers had no jurisdiction to do so. The petitioner no.1 reiterated her objections even at the time when the witnesses were produced by the respondent (Dr. T.C. Sidhan). Notwithstanding all these, the District Court proceeded to adjudicate on the gen....
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....ion that he was the husband of Mrs. Rani Sidhan, illegally occupied the property, and that he was likely to commit waste and cause damage to the property. As per the ex parte order in IA No. 363/1996 filed by the petitioner no.1 seeking appointment of a Curator, the lower court appointed a Curator on 20.2.1996 and directed him to take immediate possession of the property. Accordingly, he took possession of the property from the respondent Dr. T.C. Sidhan. Though the order appointing the Curator by the lower court was challenged before the High Court in C.M.A. No. 111/96, the said Court did not interfere with the order as the Curator had already taken possession of the property and directed the lower court to conduct an enquiry under Section 194 of the Act. The case of the respondent Dr. T.C. Sidhan was that as per the joint Will executed by him and his wife Mrs. Rani Sidhan, he is the sole heir of all her assets and her share in the schedule property devolved upon him and accordingly he is entitled to be in possession of the schedule property as the person who is entitled to half share in the properties. The District Court, Kozhikode in Succession O.P. No. 38 of 96 by judgmen....
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....d over to respondent Dr. T.C. Sidhan when admittedly even according to the respondent half share therein belongs to the appellant no.1. It was submitted that till an appropriate adjudication is made, the property can be handed over to the appellant no.1 on condition that she will deposit mesne profits in Court; otherwise there is likelihood of the property being passed on to strangers and the same being an ancestral house, it would be not only be improper, but inequitable, to keep out direct descendant in preference to distant relative or total third party outsiders. In response, learned counsel for the respondents submitted that while making adjudication under Section 192 of the Act which appears in part VII of the Act relating to protection of property of deceased, there has to be finding recorded as regards the rival claims and a prima facie view on the question of lawful title has to be rendered and that is what has been done; the appellant having consented in an adjudication by the District Court cannot turn around and say that there was no consent. When the Court has recorded such a finding it is not open to be questioned before the higher court. The decision is not one on....
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....has been often pointed out as its prominent characteristic, distinguishing it, in fact, from ordinary disposition by a living person's deed, which might, indeed postpone the beneficial possession or even a vesting until the death of the disposer and yet would produce such postponement only by its express terms under an irrevocable instrument and a statement that a Will is final does not import an agreement not to change it. (Schouler's Law of Wills, S. 326). A Will is the aggregate of man's testamentary intentions so far as they are manifested in writing, duly executed according to the Statute. (Per Lord Penzance in Leimage v. Goodbhan, L.R. 1 P. & D. 57, cited by Fry. J., in Green v. Tribe, (1878) 9 Ch D 231). In N.D. Bani's Law of Succession (Sixth Edition) also about position has been delineated. From various decisions of the this Court e.g. Ram Gopal v. Nand Lal (AIR 1951 SC 139), Gnambal Ammal v. Raju Ayyar (AIR 1951 SC 103), Raj Bajrang Bhadaur Singh v. Thakurain Bakhtraj Kher (1953 SC 7), Pearey Lal v. Rameshwar Das (AIR 1963 SC 1703), Ramchandra v. Hilda Brite, (AIR 1964 SC 1323) and Navneet Lal v. Gokul (AIR 1976 SC 794), the following principles are well established: (....
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.... Ganesh Bhandary (AIR 1995 SC 2491), it was observed that a Will may contain several clauses and the latter clause may be inconsistent with the earlier clause. In such a situation, the last intention of the testator is given effect to and it is on this basis that the latter clause is held to prevail over the earlier clause. As observed in Hammond v. Treharne, (1938 (3) All ER 308), if in a Will there are two inconsistent provisions, latter shall prevail over the earlier clause. This is regulated by the well-known maxim "cum duo inter se pugantia reperiuntur in testamenta ultimum ratum est". This principle is also contained in Section 88 of the Act which together with its illustrations, provides as under: "88. The last of two inconsistent clauses prevails. - Where two clauses of gifts in a Will are irreconcilable, so that they cannot possibly stand together, the last shall prevail. Illustrations (i) 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 it to "B" and not to A". B will have it. (ii) if a man, at the commencement of his Will gives his house to A and at the close of it directs that his ho....
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.... the intention of the testator. This intention has to be gathered primarily from the language of the document which is to be read as whole without indulging in any conjecture or speculation as to what the testator would have done if he had been better informed or better advised (See Gnanmbal's case (supra). In construing the Will the Court must consider the surrounding circumstances. The testator's position, his family relationship, the probability that he would use his words in a particular sense and many other things summed up in the picturesque phrase. The Court should put itself in the testator's armchair (See Veerattalingam v. Rameth AIR 1990 SC 2201). Section 63 of the Act deals with execution of unprivileged Wills. It lays down that the testator shall sign or shall affix his mark to the Will or it shall be signed by some other person in his presence and by his direction. It further lays down that the Will shall be attested by two or more witnesses, each of whom has seen the testator signing or affixing his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator and each of the witnesses shall sign the Will in the ....
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....y clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the court would grant probate, even if the Will might be unnatural and might cut off wholly or in part near relations." A Will is executed to alter the ordinary mode of succession and by the very nature of things it is bound to result in either reducing or depriving the share of natural heir. If a person intends his property to pass to his natural heirs, there is no necessity at all of executing a Will. It is true that a propounder of the Will has to remove all suspicious circumstances. Suspicion means doubt, conjecture or mistrust. But the fact that natural heirs have either been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be a suspicious circumstance especially in a case where the bequest has been made in favour of an offspring. As held in PPK Gopalan Nambiar v. PPK Balakrishnan Nambiar and Ors. (AIR 1995 SC 1852) it is the duty of the propounder of the Will to remove all the suspected features, but there must be real, germane and valid suspicious features and not fantasy of the doubting mind. It has been held that if ....
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....panna (AIR 1936 Madras 971). Coming to the scope and ambit of Sections 192, 193, 194 and 195 it is to be noted that they form a part of Chapter XIII dealing with the modalities to be adopted for protection of properties of the deceased being covered by Part VII. These proceedings are essentially interlocutory in character and necessarily summary depending upon the filing of an application for relief seeking the Court to determine who has a right to possession pending the final determination of the rights of the parties in a regular suit. Section 192, inter alia, provides that a person who claims right by succession can make an application in respect of a property, movable or immovable, left behind a person who has died. Section 193 provides for an enquiry by the District Judge to whom such an application is made and Section 194 deals with the procedure to be adopted when an application is made under Section 192. The Court before taking any steps in the matter under Section 194 is required to be satisfied of the existence of such strong ground of belief on both points i.e. the person in possession has no lawful title and that the person applying is likely to be materially prej....
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....y decision of a disputed title of the respondent or even delivered possession of the whole property to original respondent no.1 in preference to the person whose title and claims are beyond controversy at least in respect of her half share. This itself shows that the consideration was not proper and the entire exercise wholly impermissible. The High Court dismissing the revision petition holding that the jurisdiction was discretionary, is to put it even in mild terms, a serious error and misdirection virtually placing a premium on grave illegality committed resulting in miscarriage of justice. Discretion, in general, is the discernment of what is right and proper. It denotes knowledge and prudence, that discernment which enables a person to judge critically of what is correct and proper united with caution; nice discernment, and judgment directed by circumspection; deliberate judgment; soundness of judgment; a science or understanding to discern between falsity and truth, between wrong and right, between shadow and substance, between equity and colorable glosses and pretences, and not to do according to the will and private affections of persons. When it is said that something is t....