Karnataka High Court
N. Ramaiah vs Nagaraj S. And Another on 13 March, 2001
Equivalent citations: AIR 2001 Kant 395, ILR 2001 KAR 3466, 2001 (4) KarLJ 12
Author: R Raveendran
Bench: R Raveendran, B Sangalad
JUDGMENT R.V. Raveendran, J.
1. Feeling aggrieved by the rejection of his application for impleading (I.A. No. VIII) in Probate C.P. No. 8 of 1998 pending on the file of this Court, the appellant has filed this appeal.
2. The appellant (N. Ramaiah) is the brother of one Anjanamma. The said Anjanamma was the widow, and the respondent herein (S. Nagaraj) is the nephew (brother’s son), of one Muni Narayanappa. The respondent herein (S. Nagaraj) filed Probate C.P. No. 8 of 1998 for grant of letters of administration in regard to a Will dated 11-1-1998 said to have been executed by the Muni Narayanappa. The said Will was contested by Anjanamma, widow of Muni Narayanappa, inter alia on the grounds that the said Will was a got up document, and that she had succeeded to the properties of Muni Narayanappa as his sole legal heir.
3. In the said proceedings, the said S. Nagaraj filed I.A. No. I on 16-3-1998 seeking a temporary injunction to restrain Anjanamma from alienating/encumbering the properties, or withdrawing the amounts from the Banks, mentioned in the Schedule therein on the ground that the said properties were bequeathed to him under the Will dated 11-1-1998 by Muni Narayanappa. Item ‘A’ of the Schedule to the said application (I.A. No. I) is land and building in Khata No. 280/6-4B, Hennur, Bangalore with the running business of Cauvery Service Station. Item ‘B’ in the Schedule was the house in the occupation of Anjanamma and the building in the occupation of Sitaram Agencies. Item ‘C’ related to Bank balances/deposits. The learned Single Judge made an order on the said application on 18-6-1998 directing the respondent therein (An-
janamma) to maintain status quo in regard to the properties until further orders.
4. Subsequently, the said Anjanamma died on 11-12-1998 and the appellant herein filed an application (I.A. No. VIII) for impleading himself as the respondent in Probate C.P. No. 8 of 1998 in place of the deceased Anjanamma, by claiming to be the legatee under the registered Will dated 15-9-1998 of the said Anjanamma. He claimed that Anjanamma had bequeathed her properties described in the Schedule to her Will dated 15-9-1998 to him and his children and therefore he is one of the co-owners of the properties which were the subject-matter of Probate C.P. No. 8 of 1998. Schedule ‘A’ to the said Will dated 15-9-1998 relates to property bearing Sy. No. 6/4B measuring 1 acre in Hennur Road, Bangalore with a residential house and a petrol bunk by name Cauvery Service Station with all machineries, etc. Schedules ‘B’ and ‘C’ relate to amounts in Bank accounts and deposits.
5. It is stated that the property described in Schedule ‘A’ in the alleged Will of Anjanamma is the same as the properties described as Items A and B in the Schedule to I.A. No. I in Probate C.P. No. 8 of 1998, which was the subject-matter of the order of status quo.
6. The said application for impleading was resisted by S. Nagaraj. The learned Single Judge, accepting the objections, has dismissed the application for impleading, holding that the Will dated 15-9-1998 was executed by Anjanamma, in breach and defiance of the order of status quo and therefore non est and of no legal consequence and will have to be ignored; and that the appellant who based his right on such Will of Anjanamma, had no locus standi to apply for impleading and was not entitled to come on record and contest the proceedings for letters of administration filed by the respondent, in regard to the Will of Muni Narayanappa. The relevant portion of the order of the learned Single Judge is extracted below for ready reference.-
“4. Dealing with the objection regarding the execution of the alleged Will on 15-9-1998 during the pendency of the prohibitory order passed by this Court, applicant’s learned Counsel contended that the status quo order only restricted alienations and it is his contention therefore that the order in question does not come in the way of the parties executing documents which is different from alienation. To my mind, this is virtually legal hairsplitting; when a Court passes an order directing the parties to maintain status quo, the order is a blanket prohibitory order whereunder the parties would be precluded not only from effecting alienations or changes but more importantly by necessary implication from doing any acts whereby the situation vis-a-vis that property gets altered. It would be downright ridiculous to contend that the order only limits physical alienation because it would mean that a party can completely alter the situation by executing documents which would create rights in third parties and can still contend that merely because there is no physical alienation or change, that it is within the framework of the order. When a Court orders the main-
tenance of status quo, it necessarily implies a prohibition on the creation of new right, title or interest through the execution of any documents. If the need arises, it is open to the party to apply to the Court either for vacating or modifying the order or obtaining the sanction of the Court for doing any of the acts which the party desires to undertake. But in my considered view, the execution of a document by a party to a proceeding in rank defiance of an interim order cannot under any circumstances be construed as being outside the ambit and scope of that order. It only goes without saying that such a document even if executed would be wholly non est because no right, title or interest of any type can flow from a document executed in defiance of a prohibitory order of a Court because that document is virtually rendered invalid. This to my mind is the essence of the issue that falls for determination before this Court”.
(emphasis supplied)
7. Feeling aggrieved, the applicant in I.A. No. VIII in Probate C.P. No. 8 of 1998, has filed this appeal contending that an order of status quo in regard to a property did not bar the execution of a Will bequeathing such property, nor affected the validity of the bequest made under such a Will; and that on the death of Anjanamma, he ought to have been permitted to come on record to contest the alleged Will of Muni Narayanappa.
8. On the other hand, learned Counsel for the respondent supported the order of the learned Single Judge, by putting forth the following contentions:
(i) The learned Single Judge had directed Anjanamma to maintain status quo in regard to the properties; that the said order was passed on an application filed by the petitioner in Probate C.P. No. 8 of 1998, seeking a direction to Anjanamma that she should not alienate or encumber the properties mentioned in the Schedule to the said application. The order of status quo would therefore mean that the Court had barred her from transferring or alienating the property in any manner. Section 5 of the Transfer of Property Act, 1882 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. Having regard to the said definition, a bequest under a Will is nothing but a ‘transfer of property in future’. By executing a Will dated 15-9-1998 bequeathing the property in favour of the appellant and his children, Anjanamma effected a future transfer of the property, thereby violating the order of status quo. Therefore her Will, as also the bequest of the property thereunder, are invalid.
(ii) Section 59 of the Indian Succession Act, 1925 enumerates the persons capable of making Wills. Explanation 1 thereto makes it clear that a married woman (who is of sound mind, not being a minor), may dispose of by Will, any property which she could alienate by her own act during her life. Section 30 of the Hindu Succession Act, 1956 provides that any Hindu may dispose of by Will or other testamentary disposition, any property, which is capable of being so disposed of by him in accordance with the provisions of the Indian Succession Act, 1925 or any other law for the time being in force and applicable to Hindus. A combined reading of Section 59 of the Indian Succession Act and Section 30 of the Hindu Succession Act shows that Anjanamma could dispose of by Will, only such property, which she could have alienated by her own act during her lifetime. On 15-9-1998 when the Will was executed, the order of status quo was in force which prohibited her from transferring the property and therefore she could not have transferred the property on 15-9-1998; and what could not be transferred by her on 15-9-1998 by her own act could not be disposed of under a Will on that date. Therefore the Will and bequest are invalid.
9. One Suguna has filed I.A. No. IV for impleading, in this appeal contending that she is the adopted daughter of Muni Narayanappa and the Will dated 15-9-1998 put forth by the appellant was not executed by Anjanamma and is a got up document; and that she has filed a suit for partition against Anjanamma in O.S. No. 2817 of 1998. It is not necessary to consider the claims of Suguna in this appeal. If she has any grievance she can get herself impleaded in Probate C.P. No. 8 of 1998 or independently challenge the Will dated 15-9-1998. Hence, I.A. No. IV for impleading has no merit and is rejected.
10. The rival contentions give rise to the following points for consideration:
(i) whether a bequest of a property under a Will is a transfer of the property;
(ii) whether a direction to a party to maintain status quo in regard to a property, prohibits him from making a testamentary disposition; and whether a Will made during the operation of an order of status quo regarding a property, is void and non est insofar as the bequest relating to such property.
Re: Point (i):
11. Transfer of Property Act, 1882 (‘TP Act’ for short) deals with transfers inter vivos, that is, the act of a living person, conveying a property in present or in future, to one or more living persons. The provisions of TP Act are inapplicable to testamentary successions which are governed by Indian Succession Act, 1925. Section 2(h) of the Indian Succession Act defines ‘Will’ as 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.
12. The differences 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 effect 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 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 testamentary succession.
13. The learned Single Judge proceeded on a wrong premise when he observed that execution of a Will by a testator devising his property, amounts to execution of a document creating new right, title or interest in a property and therefore execution of a Will violates the order of status quo. By execution of a Will, no right or title or interest is created in favour of anyone during the lifetime of the deceased. The first point is therefore answered in the negative.
Re: Point (ii):
14. In this case, Nagaraj, the petitioner in Probate C.P. No. 8 of 1998, filed I.A. No. I seeking a temporary injunction restraining Anjanamma from alienating or encumbering the property or withdrawing the amount from the Bank, described in the Schedule to the application. There was no dispute that Anjanamma was in possession of the properties left by Muninarayanappa. The learned Single Judge merely directed Anjanamma to maintain status quo with regard to the properties. It was not clarified as to whether she was required to maintain status quo in regard to the possession of the property or title to the property.
15. No Court has the power to make an order, that too an interim order, restraining an individual from exercising his right to execute a Will and thereby regulate succession on his death. A direction to a party to maintain status quo in regard to a property does not therefore bar him from making a testamentary disposition in regard to such property. By making a Will, the testator neither changes title nor possession in regard to a property nor alters the nature or situation of the property nor removes or adds anything to the property. In short the testator, by making a Will does not alter the existing state of things in regard to the property. It follows therefore that making of a Will in regard to a property does not violate an order of status quo in regard to such property, and consequently, the testamentary disposition is neither void nor voidable.
16. The prayer in I.A. No. I in Probate C.P. No. 8 of 1998 and the context in which the status quo order dated 18-6-1998 was granted, while considering the interlocutory application, makes it evident that the order merely directed Anjanamma not to alienate or convey the property and did not prohibit her from executing a Will making a testamentary disposition in regard to the property.
17. We will now deal with the contention of the respondent based on Section 30 of the Hindu Succession Act, 1956 read with Section 59 of the Indian Succession Act, 1925. Section 30 of the Hindu Succession Act, 1956 provides that any Hindu may dispose of by Will or other testamentary disposition, any property, which is capable of being so disposed of by him, in accordance with the provisions of an Indian Succession Act, 1925 or any other law for the time being in force and applicable to Hindus. Section 59 of the Indian Succession Act provides that a married woman may dispose by Will of any property which she could alienate by her own act during her life.
18. These provisions deal with the legal capacity to make a Will and who can and who cannot make a Will. Section 59 makes it clear that any person can make a Will if he is of a sound mind and is not a minor. Explanation 1 to Section 59 clarifies what can be disposed by Will by a married woman and states that any property which she could alienate by her own act during her life can be disposed by Will. It follows that a married woman who cannot alienate a property by her own act during her life, cannot dispose of the property by a Will.
18.1 For example, prior to the coming into force of Hindu Succession Act, 1956, a Hindu widow could not dispose of by Will, any property inherited by her from her husband. Similarly, the holder of a mere life interest in a property could not make any Will in regard to the property as his or her interest is limited to his life and cannot enure to the benefit of anyone beyond her lifetime.
18.2 The bar contemplated in Explanation 1 to Section 59 is a bar or permanent inability under the personal law or a statute. It does not refer to a temporary prohibition arising from an injunction issued by a Court. Neither Section 59 of the Indian Succession Act nor Section 30 of the Hindu Succession Act has, therefore, any relevance.
19. Both parts of point (ii) are therefore answered in the negative.
A digression re: ‘status quo’
20. We may at this juncture advert to the confusion caused by orders directing status quo. The parties are (or a party is) normally directed to maintain status quo in regard to a property, so that the position does not get altered or become irreversible pending decision in the suit or legal proceeding. The term ‘status quo’ means the ‘situation that currently exists’ or the ‘existing state of things at any given point of time’. The Supreme Court in Bharat Coking Coal Limited v State of Bihar and Others’, has recognised the fact that “the expression “status quo” is undoubtedly a term of ambiguity and at times give arise to doubt and difficulty”.
21. The Court while making an order to maintain status quo, should endeavour to clarify the conditions, in the context of which or subject to which, such direction is issued, as the words status quo take contextual meaning and may give room for several different interpretations. Let us illustrate.
Illustration (i):
If a person puts up a construction in his site violating the set back requirements and if the owner of a property approaches the Court seeking an injunction restraining the adjoining owner from proceeding with the construction in violation of building bye-laws and the Court orders status quo, the order may mean that no further construction shall be made and the construction shall be maintained in the same position as on the date of the order.
Illustration (ii):
If a member of a joint family files an application seeking an injunction in a suit for partition, restraining the kartha from alienating the joint family property and the Court grants an order of status quo, it may mean that the defendant should not alienate the property.
Illustration (iii):
If a plaintiff seeks an injunction restraining the defendant from harvesting a crop in the suit land and the Court orders status quo, it may mean that defendant should not harvest the standing crop.
Illustration (iv):
In a service litigation, if the employee seeks a direction to employer not to terminate his services and the Court directs defendant to maintain status quo, it may mean that defendant should not terminate the service of the employee.
22. An order of status quo is a specie of interim orders, when granted indiscriminately and without qualifications or conditions, leads to ambiguity, difficulties, and injustice. If Courts want to give interim relief, they should endeavour to give specific injunctive relief. If grant of order of ‘status quo’ is found to be the only appropriate relief, then Courts should indicate the nature of status quo, that is whether the status quo is in regard to possession, title, nature of property or some other aspect. Merely saying ‘status quo’ or ‘status quo to be maintained’ should be avoided. If in a suit for injunction, where plaintiff claims that he is in possession of the suit property and the defendant is attempting to interfere with his possession, and the defendant contends that he is in possession and petitioner was never in possession, if the Court merely directs status quo to be maintained by parties, without saying anything more, it Will cause confusion and in many cases even lead to breach of peace. On the basis of such order, the plaintiff would contend that he is in possession and he is entitled to continue in possession; and the defendant would contend that he is in possession and he is entitled to continue in possession. In such a case, if the Court wants to direct status quo, it should specify the context in which, or conditions subject to which, such status quo direction is issued.
Conclusion:
23. The petitioner in Probate C.P. No. 8 of 1998 [respondent herein] seeks letters of administration in regard to alleged Will of Muni Narayanappa. That was challenged and resisted by Anjanamma, wife of Muni-narayanappa, by contending that she succeeded to the properties of Muni Narayanappa. She died and appellant claims to be the legatee in possession of the property which is claimed by the petitioner in Probate C.P. No. 8 of 1998, under the Will of Muni Narayanappa. If the appellant is not permitted to come on record, there Will be no one to continue the contest put up by Anjanamma. We therefore find that the appellant is a necessary party to the proceedings in Probate C.P. No. 8 of 1998.
24. The appeal is, therefore, allowed and the order dated 6-1-1999 on I.A. No. VIII is Probate C.P. No. 8 of 1998 is set aside. I.A. No. VIII in Probate C.P. No. 8 of 1998 shall stand allowed. The respondent to pay a sum of Rs. 2,500.00 as costs to the appellant.