2022 SCMR 2130
Transfer by ostensible owners (sons)---Compensation for daughters deprived of their inheritance share---Brothers had deprived their sisters of their inheritance share in subject property by selling the same to respondents, who were bona fide purchasers without notice and for valuable consideration---Question was as to how the sisters were to be compensated for their respective shares in the sold property---Held, that the only viable solution appeared to be that the sons be directed to pay for the equivalent of respective shares of the daughters in the subject property in monetary terms---Sale price of the property when it was sold was duly documented and none of the parties had argued or alleged that the property in question was sold for a value less than its market value at the relevant time---However, the fact remained that the sons received the entire sale consideration and had since then used the same for their own benefit---Supreme Court directed that the respective shares of the daughters in the total sale consideration shall be determined; that the sons Will pay mark up from the date of sale at the bank rate to the daughters on their respective shares till the time of payment; and that all other transactions relating to the properties that constituted a part of the estate of the deceased father and mother of the parties shall devolve upon all their sons and daughters in accordance with their respective shares as provided in Sharia Law---Order accordingly.
Transfer by ostensible owner---Bona fide purchaser of property without notice---Requirement of purchaser acting in good faith and taking reasonable care before entering into the transaction---Scope---Purchaser was required to do due diligence when purchasing properties---In the present case the purchasers exercised due diligence by approaching the revenue records for ascertaining title of the properties, which showed that the sons were the owners of the properties and had become owners by virtue of unchallenged Will s---section 41 of the Transfer of Property Act, 1882 applied in the present case and the purchasers were entitled to such equitable protection available to them---Order accordingly
S. 2(h)---Will ---Meaning and scope---Will can be considered as a formal document drawn up by a natural person wherein he expresses his wish as to how he would want his estate to be distributed after his death---By virtue of the fact that Will s operate after the death of the donor, they are considered testamentary instruments i.e. instruments that come into effect after the death of the donor/testator---Will , therefore, ceases to be a Will if it is executed and acted upon during the lifetime of the testator---Instead, a Will executed in the lifetime of a donor takes on the guise of an inter-vivos instrument i.e. an instrument which is executed within the lifetime of a person which can take the form of a gift which has its own requirements and different standards of proof.
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