Will – Transfer of property – Will becomes effective only after death of testator – Limitation Act, does not strictly apply for granting probate.

Writ petition was filed challenging the order of additional Dy. Commissioner (Revenue), Shillong on granting the probate. It was submitted that, as per the Meghalaya Transfer of Land (Regulation) Amendment Act, 2010, no one can make a Will to transfer the property from one living person to another living person and that the Will in question was not a Will at all, but it was made for the purpose of transfer of land by the testator of the Will.

The Hon’ble Court observed that The Meghalaya Land Transfer Act, 1971 is a law passed by the State legislature. There is no definition that, “transfer of property” shall also include within its meaning “WILL” under the Transfer of Property Act, 1882. 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, or to himself, and one or more other living persons; and ‘to transfer property’ is to perform such act”.

The definition of “WILL” can be found only in the Indian Succession Act, 1925 in Section 2(h) “WILL” 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.”

Now, the word “convey” in section 5 has been further defined in the Indian Stamp Act, 1899 in section 2(10). “Conveyance” includes a conveyance on sale and every instrument by which property, whether movable or immovable, is transferred inter vivos (between living persons) and which is not specifically provided for by Schedule I”.

The upshot of the above legal position is that, ‘transfer of property’ will include only between living person and the same is the meaning of conveyance also which will include only between living persons. However, Will is a testament by a legal declaration bequeathing the right of property to a living person in future. A Will becomes effective only after the death of the testator. A Will is a last wish of a dead person.

Analysing various provisions of The Meghalaya Transfer of Land (Regulation) Amendment Act, 2010, the Court held that, if we read the definition of “Transfer of property” and “Conveyance” quoted and discussed above, it becomes very apparent that, by including “WILL” within the meaning of “Conveyance”, the State legislature has rewritten the definition of “conveyance” which is an illegal exercise of power; but the State legislature in the first place has no power to alter the definition of conveyance legislated by the Parliament. The inclusion of “WILL” has to be struck down as illegal since the State legislature cannot overstep in the field of Union list while legislating law. The issue of succession is solely in the field of the Union list and not in the Concurrent list. Safe legal inference can be drawn that the insertion of WILL in clause 2(d) of the Meghalaya Land Transfer Amendment Act, 2012 quoted above is a blatant case of illegal legislation and is liable to be struck out. The subsequent amendment in section 3A restricting the devolution of property only to immediate family members will have to meet the same fate and to be struck down. The Court also observed that as per the limitation is concerned Article 17 of the Limitation Act, 1963 does not strictly apply for granting probate.