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Appellants: Tarapada Das
Respondent: Bimal Kumar Das & Others
Hon’ble Justice D.D. Seth and Alok Kumar Basu, JJ
Mr. Amulya Charan das had three sons namely, Chandra Sekhar Das, Tarapada Das and Bimal Kumar Das. Mr. Amulya Charan executed a gift deed during his lifetime intending to transfer specific portions of his property to his son (Chandra Shekhar Das). He intended to transfer the specific portions of his remaining property to his other two sons, which was expresses as a part of the executed gift deed. After the death of Mr. Amulya Charan, one of his sons (Bimal Kumar Das) filed for obtaining grant of Letters of Administration based on the Will provisions (where the intentions to transfer his properties to his sons proportionately as per his wish) contained therein in the gift deed. The Additional District Judge granted the Letters of Administration, by validating that those expressed in the gift deed constitutes a valid Will. Tarapada Das was aggrieved by the decision and he preferred an appeal challenging the judgment of Additional District Judge contending that a gift deed cannot be treated as a Will and that his father wasn’t actually intending to transfer any part of his property to the respondent in this case.
The court held that the contents of the gift deed was clear in conveying the intention of Mr. Amulya Charan to transfer his property to his three sons, including the respondent. The court took guidance from several cases of the Apex court which call for gathering the intention of the person making the Will from the language of the document.
Also, the question relating to the attesting witness was addressed rightly by stating that, a scribe can also be treated as an attesting witness, if he proves in court that the person who made the Will had intended the writing to take effect as a Will and he had signed or affixed his mark in the presence of such scribe.
The question regarding the statute prescribed timeline been barred was also discussed by the Court effectively. In accordance with the decision of several High Courts, there was no statutory prescribed timeline in matters of application for a grant of probate or Letter of Administration, thus, this argument of the Appellant was also dismissed.
Hon’ble Justice D.K. Seth has clarified the characteristics of a Will while addressing the first issue. He stated that a gift deed or any document may contain a Will if it operates as a document of both descriptions. The following were the characteristics of the Will as mentioned by Hon’ble D.K. Seth:
“It is a legal declaration in writing of an intention in respect of disposition of property to take effect after the declarant’s death; whether it will take effect after the death of the testator (person making the Will) is to be ascertained from the express terms of the declaration –
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