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Article Published in the Express Magazine Dated
July 14, 2002
General Attorney : Rajiv K. Luthra
I own properties/ deposits and would like to
draw out a will in favor of my family members. How
do I go about the preparation of the will? How can
I make my wife an associate member of the flat,
owned exclusively by me?
TS Ramaswamy
A WILL is a legal declaration of the intention of
the testator (person making the will) with respect
to the property, which he desires to be carried
into effect after his death. It can be made on a
blank paper by any person of sound mind not being
a minor and caused without any fraud or coercion
or by such importunity as takes away the free
agency of the testator. Hence, you may draw a will
yourself in which you can specify what you
bequeath to whom. The intention of the testator
should be clear and unambiguous to enable the
court to put it into force. The testator has to
sign or affix his mark to the will and the
document has to be attested by two or more
witnesses not benefiting under the will. No stamp
duty is required to be paid on a will. Also the
registration of the will is optional by virtue of
Section 18 of the Registration Act, 1908, although
it is recommended that the will be registered, for
which you would be required to pay a registration
fee to the Registrar.
In order to make your wife an associate member of
the flat, you can transfer a certain percentage of
the flat to your wife by either executing a gift
deed or a sale deed. Section 123 of the Transfer
of Property Act, 1882, stipulates that a transfer
of a gift of immovable property must be effected
by a registered instrument signed by or on behalf
of the donor and attested by at least two
witnesses. Further the donee, in this case your
wife, has to accept the gift. A sale of immovable
property is a transfer of ownership in exchange of
a price paid or promised. Such a transfer can be
made only by a registered instrument. Further, in
case the flat is in a society you will have to get
the name of your wife included in the society upon
complying with the requirements of the Society
by-laws, rules/regulations in this behalf.
I heard of a “self-created” Hindu undivided
family (HUF). Is there such a thing?
V. Prashant, New Delhi
The expression HUF is used in the revenue
statutes, whereas in personal law the expression
“Hindu joint family” is used. It consists of all
lineal descendants from a common ancestor, and
includes their wives and unmarried children. The
existence of the common ancestor is necessary for
bringing a HUF into existence and for its
continuance a common ancestor is not necessary. An
HUF, created by the individual coparcener's own
volition, has, in the past, been sufficient to
make such self-created HUF as a separate taxable
entity. The HUF is purely a creature of law and
cannot be created by act of parties save insofar
that by adoption or marriage, a stranger may be
affiliated as a member thereof. In the absence of
proof of division, the legal presumption is that
every Hindu family is a HUF.
However, a male, who separates from his fathers or
brothers may become the head of a new HUF, if he
has a family. Such separation may be through
partition. The Hon’ble Supreme Court has held that
one male can form with females (such as his wife
and his daughter), a joint Hindu family.
However, the character of the property (being
ancestral property) cannot change by a division
thereof amongst the members.
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