share in property - execution of joint will

V V SATYANARAYANA (Querist) 06 September 2008 This query is : Resolved
X died intestate. His legal wife Y and second wife Z are residing together under one roof. The house was registered in the joint name of Y and Z. Can Y and Z through a common deed of gift can donate the house and the cash/bank balance in favour of the children of Y ( Z has no children. Please clarify.

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Jithendra.H.J (Expert) 06 September 2008
yes, they can execute the gift deed jointly. There is no leagl hurdles or bar

KamalNayanSaxena (Expert) 06 September 2008
In Kuppuswami Raja v. Perumal Raja, (AIR 1964 Mad 29 1) (supra), it was observed that a joint will is by a single testamentary instrument containing the wills of two or more persons and jointly executed by them while mutual wills are separate wills of two or more persons which are reciprocal in their provisions and executed in pursuance of contract or agreement between two or more persons to dispose of their property to each other to third person in particular mode or manner. Mutual wills as distinguished from joint wills are sometimes described as reciprocal wills. In describing a will the adjective mutual or reciprocal I is used to denote the contractual element which distinguished from a joint will. It was stated therein by the Division Bench of the Madras High Court that joint will would become irrevocable on the death of one of the testators if the survivor received benefit under the will. There need not be any specific contract prohibiting revocation when the agreement took the form of not two simultaneous mutual wills but one single document. If one single document was executed using the expression 'our property', our present wishes' and 'our will' and such similar expressions, it was strong cogent evidence of the intention that there was no power to revoke except by mutual consent.