ARTICLE

Do wills need to be registered?
Always read the fine print
by Fali S. Nariman

Fine print often says the opposite of what is proclaimed in the headline. So it was in a recent headline that read: “Will invalid unless signed by 2 witnesses and registered: S.C.” The fine print below showed that ‘S.C.’ had said no such thing!

In its judgment of March 22, India’s Supreme Court was commenting on a writing executed by one Rao Gajraj Singh which stated that upon the death of himself or his wife the suit property (immovable property) would be inherited by the survivor of them. The Supreme Court, agreeing with the judgment of the High Court of Punjab and Haryana, said: “The writing was neither in the nature of a will nor in the nature of a transfer of property” because the writing was “neither registered as required under the provisions of the Indian Registration Act 1908 nor was attested by two witnesses as it should have done had it been a will”; therefore, the writing executed by Rao Gajraj Singh was “only a piece of paper having no legal effect”.

The headline (the larger print) had conflated two independent findings and telescoped them into one: the first finding being that the writing was not a will because it had not been attested by two witnesses; and the second and separate finding being that the writing (which was not a will) could not be said to have conveyed or transferred the suit property since the writing was not registered. There is much wisdom in the old adage: Always read the fine print!

The following is, briefly, the Indian law as to Wills:

A will making a disposition of movable or immovable property, or a codicil (an instrument in relation to a will and explaining or adding to its dispositions), speaks from the date of death of the person making it - he or she can revoke or alter it at any time.

The ingredients of a valid will are set out in the provisions of the Indian Succession Act, 1925: it has to be executed with due solemnity, by a person of sound mind and understanding, with the signature of the maker of the will (or “testator”) being attested by two witnesses who, in the presence of one another, and of the maker, must have seen the maker sign it --- The provisions are generally applicable to the Wills of Hindus, Buddhists, Sikhs, Jains, Christians and Parsis --- but do not apply to Muslims because the will of a Muslim (under Muslim Personal Law) does not require to be in writing; it can even be oral.

A valid will (i.e. one which bears the signature of the maker and is attested by two witnesses) does not have to be compulsorily registered: Section 18 of the Indian Registration Act 1908 says that registration of a Will is optional, even when the Will contains a bequest of immovable property.

But a non-testamentary writing or an instrument which conveys immovable property (exceeding Rs100 in value) is one that is compulsorily registrable: this is so provided in Section 17 of the Registration Act 1908.

In the past, when the maker of a will (“testator”) bequeathed property (moveable or immovable) to “religious or charitable uses”, and left behind him on his death a nephew, niece or nearer relative, then special restrictions were imposed by Section 118 of the Indian Succession Act 1925. That section provided that such a will (i.e. a testamentary writing attested by two witnesses which left property to religious or charitable uses) had to be executed not less than 12 months before the testator’s death, and had to be deposited within six months of its execution in some place provided by law for the safe custody of wills of living persons. At the express request of the Parsi community, an amendment to Section118 was introduced and passed by Parliament in December 1991 which stated: “Nothing in this Section shall apply to a Parsi”. But this amendment became a major contributory factor to Section 118 being later struck down and declared unconstitutional by the Supreme Court in 2003 because it discriminated against Indian Christians to whom the provisions of Section 118 then continued to be applicable!

There is a separate chapter in the Indian Succession Act 1925 (Chapter-VI in Part-VI) which contains provisions that guide Indian courts; on the construction (or interpretation) of wills: the primary task of the court being to ascertain the intention of the testator: which must be gathered from the language used in the document. Since considerations keep changing from person to person, it is seldom profitable to compare the words of one will with those of another, or to try to discover which of the wills upon which decisions have been given in reported cases, the disputed will more closely approximates.

There are no limits to what a testator can do when making a will. As was said long ago, every testator “in disposing of his property is at liberty to adopt his own non-sense!” In one such case, a document containing only three words, “All for mother”, was admitted to probate as disposing of a very large estate, thereby revoking an earlier will which was even less concise! And the recipient was the testator’s own wife, whom he had been accustomed to describing as “mother”! The sense that courts in this country try to make of similar such “non-sense” is to be found in the rich armoury of case-law that has developed on the subject of wills.

But decided cases on wills can also be fun: illustrative of which is the late R.E. Megarry’s delightful Miscellany-at-law (Vol-I at pages 296-313 and Vol-II at pages 158-162) where the author has cherry-picked in on decisions, though only of English courts. My regret is that no one in India has attempted to reveal the lighter side of the law of wills with reference to cases decided by Indian courts!

MIDDLE

London of the East
by Robin Gupta

Born in Delhi and brought up in the sheltered regimen of a senior army officer’s bungalow, I found myself on the fascinating path of discovering ‘the second London’, established on the banks of the Hooghly by Job Charnock in 1690. I marvelled at the divergent strains in Calcutta’s history. From the records, it appeared that the first Englishmen who settled in the city were greatly influenced by Indian customs and manners. They attended ‘nautch’ parties, smoked hookahs, enjoyed there recitation of Persian poetry and lived with native mistresses. In fact, over the years, the ‘nautch’ emerged as the most popular amusement for all classes of people. The nawabs, the rajas and the nobility maintained their own sets of girls and musicians. It was a prerequisite for all festivals, and no entertainment for Europeans was considered complete without it. According to early accounts, there was nothing obscene in the performances of the ‘nautch’ girls. The dancing girls were well-versed in Persian poetry and could hold their own in conversation with the elite. I was fascinated also by other little nuggets of Calcutta’s past: for instance, one of the direct descendants of emperor Bahadur Shah Zafar, it was said, ran a small tea stall near the railway station while the Matia Burj of Wajid Ali Shah resonated with strains of the Nawab’s haunting melody, ‘Babul Mora, Naihar Chhooto Hi Jaye....’

As I was at a loose end, I would, from time to time, accept invitations from strangers to venture into the unknown. One evening, Mr Jaiswal, a Marwari gentleman who had offered to help me get posted to a sought-after district, invited me to dine at a well-known hotel. The wealthy Congressman, I could judge from the start, was parsimonious. After a round of drinks, he started ordering the evening meal. He turned towards me and enquired: ‘Ek roti, ke derh roti?’ Would I have one ‘roti’ or one and a half?

Daunted by the prospect of spending the next few hours with him, I ordered another round of drinks. ‘On me, this time,’ I said. Jaiswal was pleased and gulped down the whisky. After a few moments, I told him that I had not seen much of Calcutta and spoke vaguely of youth as a passing phenomenon. Perhaps we could go to Sonagachhi and watch a ‘mujra’, I suggested.

‘I know just the place,’ said Jaiswal with a lascivious smile. ‘Calcutta is the only city in India,’ he proclaimed. He then took me to a kotha where, to my surprise, the finest scotch was being served on salvers by beautiful young women. With the gallantry of the disinterested, I showered them with compliments and some money. This was an indication to the Marwari gentleman to break loose and, thereafter, he stopped counting the drinks. He had perhaps, it occurred to me, not encountered such an exotic ambience before.

After about an hour, Jaiswal started tugging at the veil of one of the dancers, pulling her towards him. There was a deathly silence. The music stopped, the girls withdrew into the inner chambers and a tall, turbaned Pathan presented Jaiswal with a bill. This he quickly paid and was promptly turned out and hurled down the stairs.

Almost 20 years later, while briefing a Cabinet minister on subsidiary questions, in the Parliament House Annexe, I came across Mr Jaiswal. Dressed in spotless khadi, he was now a member of Parliament.

OPED — The Arts

A writer in eternal exile
Vivek Sachdeva

Ruth Prawer Jhabvala will always be remembered for her screenplays, novels and short stories. With a meticulous eye for detail and penchant for a nuanced writing, she breathed life into films and fiction

(L-R) James Ivory, Ruth Prawer Jhabvala and Ismail Merchant, who together formed Merchant Ivory Productions, after receiving a British Academy film fellowship at a ceremony in Central London, in this 2002 file photo. Photo: Reuters

Ruth Prawer Jhabvala, the Booker Prize and Academy Award winner novelist, short story writer and screenplay writer, died on April 3, 2013 at her home in the USA. She was a German-born Jewish woman who received her education in England, lived in India and finally settled down in New York towards the last phase of her life.

Her relationship with India started when she got married to Cyrus S. H. Jhabvala, a Parsi architect, whom she met at a party in London when the latter was a student of architecture in 1949. In 1951, they got married. Nirad Chaudhari, who was a friend of the Jhabvalas, called this marriage as the liberation of a Jewish woman from her exile by a modern Persian man. Her stay in India was not her first ‘exile’ as she and her parents had to flee Germany in April 1939 to escape anti-Semitism in Hitler’s Germany.

German roots

Jhabvala was born in Cologne, Germany, on May 7, 1927. She was the second child of Marcus Prawer and Eleonara Cohn. Expatriation and exile seem to run in the family of the Prawers. Her father had come to Germany to escape military conscription in Poland during World War I. Her mother was born in Cologne, but her father had come from Russia. So, Jhabvala’s roots in Germany do not go very far. The mixed blood she carried in her veins might have helped her in acquiring a cosmopolitan outlook. The mixed background of her parents and their non-German backgrounds did not become an obstacle in identifying with the Germany around them.

Jhabvala’s mother was very proud of the fact that she was chosen to recite a poem in celebrations of the Kaiser’s birthday. In spite of pleasant memories of the Prawers in Germany, Jhabvala’s memories of Germany are marked with her coping with the hatred towards the Jews. She got her education in a segregated school, she used to read “Jews Not Desired” written outside shops and cinema houses. She remembers how Jews were shoved frequently and their shops and houses were attacked. Despite the fact that her father was arrested in 1934, the Prawer family decided to stay in Germany and it was only in the 1939 that they decided to leave Germany. Perhaps, Prawers were one of the last families to flee Hitler’s Germany.

Move to England

She was 12 years old when the Prawers shifted to England, where she got her education and met Cyrus, whom she married. She studied at Hendon County School and later she attended Queen Mary College, London University. Jhabvala had shown her penchant for creative writing even in Germany. After shifting to England, she wrote a short story A Birthday in London. She switched to English easily and it seems she deliberately shut the window that would open to traumatic memories of Germany. Her elder brother, on the other hand, reacted to this situation differently. He studied German classics and took an academic post at Oxford University. Jhabvala lost herself in English classic novelists such as George Eliot, Thomas Hardy, Charles Dickens and later she read E.M. Forster, under whose influence she had always been.

Tryst with India

During her stay in India she gave birth to three daughters and eight published novels about India. Within two years after coming to India, she finished her first novel To Whom She Will, which was published under the title of Amrita in the US. Since her first novel was published in India in 1955, she continued to write about India that she saw around her. As her husband had Punjabi partners, the Punjabi community appeared in her early novels frequently. However, the family she was married into was different. Her husband’s father was a trade-union leader and his mother was a prominent women’s leader. Her father-in-law had spent eight years in prison during the British Raj. But she wrote about India, emerging immediately after Independence, which she observed from her perspective. In the larger context of the challenges before new emerging India as a nation, she portrayed idealist nationalists, shrewd businessmen, corrupt officers, family life in middle-class North Indian families, love-hate relationships and Indian spirituality. Her best-known novel in India, Heat and Dust, won her the Booker Prize in 1975. She left India for America the same year.

In the melting pot

While in America, she wrote what are called American novels. After going to the US, Jhabvala seemed to be moving gradually towards her Jewish roots as many Jewish refugees had settled down in the New York during World War II. In 1961, she was asked by James Ivory and Ismail Merchant to write the screenplay for their film based on her own novel titled The Householder.

While working with them, she explored and understood India more and wrote more novels while writing screenplays for Merchant Ivory Productions. The creative marriage between a German Jew woman; Ismail Merchant, an Indian Muslim and James Ivory, a Protestant American produced good quality cinema.

Screenplay writer

Jhabvala, besides two of her own novels, also adapted works of Henry James and E. M. Forster. She won Academy Awards for writing screenplays of A Room With A View (1986) and Howards End (1992) and was nominated for the Academy Award for The Remains of the Day in 1993, an adaptation of a novel by Kazuo Ishiguro.

In 1978, Jhabvala was awarded the Neil Gunn International Fellowship and in 1984, the British Film Institute and the Museum of Modern Art, New York jointly published a book devoted to the Merchant-Ivory-Jhabvala films. In February 1984, she received the MacArthur Foundation Fellowship, in December of the same year, she was awarded a Fellowship of London University College, Queen Mary College and London University’s honorary degree of doctor of Literature.

Objective portrayal

In literary and film writing circles, Jhabvala is appreciated for her style of writing, comic vision and objective portrayal of India. Critics in India have placed her, along with R. K. Narayan, as an interpreter of Indian life. Though, Jhabvala has also been criticised by Indian critics for presenting stereotypical images of India in her fiction, yet she continued to be an important writer and screenplay writer in the history of English novel and world cinema.

Novels and short stories To Whom She Will (1955; published in the United States as Amrita) The Nature of Passion (1956). Esmond in India (1958) The Householder (1960) Get Ready for Battle (1962) Like Birds, Like Fishes (1963) A Backward Place (1965) A Stronger Climate (1968) An Experience of India (1971) A New Dominion (1972; published in the United States as Travelers) Heat and Dust (1975) How I Became a Holy Mother and Other Stories (1976) In Search of Love and Beauty (1983) Out of India (1986) Three Continents (1987) Poet and Dancer (1993) Shards of Memory (1995) East Into Upper East: Plain Tales from New York and New Delhi (1998) My Nine Lives (2004) Screenplays The Householder 1963 Shakespeare Wallah 1965 The Guru 1969 Bombay 1972 Autobiography of a Princess 1975 Roseland 1977 Hullabaloo Over Georgie and Bonnie’s Picture 1978 The Europeans 1979 Jane Austen in Manhattan 1980 Quartet 1981 Heat and Dust 1983 The Bostonians 1984 A Room With A View 1985 Madame Sousatzka 1988 Mr. and Mrs. Bridge 1990 Howards End 1992 The Remains of the Day 1993 Jefferson in Paris 1995 Surviving Picasso 1996 A Soldier’s Daughter Never Cries 1998 The Golden Bowl 2000 La Divorce 2003 The City of Your Final Destination 2008

As a novelist and screenplay writer, she has given important texts to her reader and viewers. In India, she is remembered for novels including To Whom She Will, The Nature of Passion, Get Ready for Battle, The Householder, A New Dominion and Heat and Dust and also for the films she wrote for Merchant Ivory Productions.

Among the various screenplays, the famous ones are: The Guru, Bombay Talkies, Autobiography of a Princess, The Householder, Heat and Dust, Roseland, Hullabaloo over Georgie and Bonnie’s Pictures, A Room With a View, The Europeans and Howards End.

Ismail Merchant, James Ivory and Ruth Prawer Jhabvala used to share same building and same view in the USA as they lived in floors one above the other. The title of her last film, The City of Your Final Destination, as screenplay writer ironically reflects the final destination that she has found for herself and the final destination is the hearts of all those who have loved her for her films, novels and shorts stories. Ismail Merchant’s death in 2005 had already left an irreparable void in the trio of Merchant-Ivory-Jhabvala. With Jhabvala’s death at the age of 85, another important pillar of the trio has fallen down.

She is survived by her husband, three daughters and six grandchildren. It cannot be denied that the trio of Merchant-Ivory-Jhabvala has made a rich contribution to the world of cinema. Jhabvala’s contribution to the world of fiction writing will always be remembered. With her death, the trio has suffered a severe blow.

She was born in Germany and lived in England, India and the US. In a manner of speaking, she remained in the state of eternal exile. Her screenplays, novels and short stories will live on in hearts of viewers and readers.

This humble tribute to such a creative genius can end only on this note:

So be my passing!

May task accomplished and the long day done,

My wages taken, and in my heart

Some last lark singing,

Let me be gathered to the quiet west,

The sundown splendid and serene, Death. 

— W.E. Henley

The writer is Associate Professor at University School of Humanities and Social Sciences, GGSIP University, New Delhi. He teaches Cinema and English literature. His Ph.D. thesis is on the novels by Ruth Prawer Jhabvala and films based on her novels