CHAPTER -1

HINDU LAW OF
TESTAMENTARY SUCCESSION
 CHAPTER-1
HINDU LAW OF TESTAMENTARY SUCCESSION

I. SUCCESSION

1. What is Succession?

Succession is the transmission of property vested in a person at his death

to some other person or persons. In all countries, Succession is regulated by law.
However, legal historians have found that there is no universally common origin
to such laws of succession in the various countries; they have not developed on
uniform lines all over the world. There are systems in which religion has played a
prominent part in the development of the law of succession. The Hindu
community is a typical example of that kind. The ancient Hindu Law-giver, Manu
stated: “To three libations of water must be given; to three must Pinda be offered
the fourth is the giver. The property of a sapinda goes to the nearest sapinda,”
thereby demonstrating the intimate connection between the duty to offer spiritual
benefit and the right to take the property of a deceased Hindu. The Hindu Law of
Inheritance and Succession was believed by Hindus to be founded on divine
ordinance1.

Succession excludes survivorship2. Inheritance means only the acquisition

of property by succession and not by devise under a will3.

There are again communities in which systems of family rights and

communal ownership prevailed, which have been gradually superseded by forms
of individual ownership. In regard to these communities, Professor Pluckett has
referred to the Law of Succession as “an attempt to express family in terms of
property”.4

Sirkar, Hindu Law, 5th Edn., P.817.

Sankarbati v. Pila Devi, 76 CWN 400 (404) (Aran K. Mukheijea, J.)
Babbalapati Kameswararao v. Kavuri Vasudevarao, AIR 1972 AP 189 (191) (Gopal Rao
Ekbote,J.)
See Concise History, 5th Edn., P.711.

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2. Kinds of Succession

The law relating to succession is only of gradual growth. A Law of

Succession is not needed till disputes arise. But the law has developed and at
the present day we mean by the Law of Succession as the law which regulates
the transmission, after death, of the property of one individual to one or more
individuals. The Law of Succession in modern times is divided into the Law of
Testamentary Succession and the Law of Intestate succession. The law of
Testamentary Succession regulates the devolution of the property of a person
who dies having made a will disposing of it. The law of Instate succession, on
the other hand, regulates the devolution and distribution of the undisposed
property of a deceased person.5

In early communities a will was something very different from what it

became in later law. It was generally in the form of a conveyance impending
death. Accordingly it was generally resorted to when a testator desired to
distribute the property after his death according to his wishes contrary to the
normal mode in which the property would have passed on the basis of the
prevailing customary law. This power to divert was not available as against the
entirety of the estate owned by a person, but was generally confined to a fraction
of the estate. A definite proportion of the inheritance shall always be allowed to
devolve on the close relations like the widow and children, traces of which are
still to be found in many of the modern laws relating to Wills. At the events, these
dependents of the deceased could at least claim provisions for their maintenance
from out of the estate devised to third parties.6

3. Need for Testamentary Succession

"The law of every civilized people concedes to the owner of property the
right of determining by his last Will, either in whole or in part, to whom the effects
which he leaves behind him shall pass. Yet it is clear that, though the law leaves
to the owner of the property absolute freedom in this ultimate disposal that of

Gopalakrishnan, Law of Will; 7th Edn.

See the Inheritance (Family Provisions) Act, 1938, and the Intestates Estates Act, 1952 (England).
The Hindu Adoptions and Maintenance Act, 1956.
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which he is thus enabled to dispose, a moral responsibility of no ordinary
importance attaches to the exercise of the right thus given. The instincts and
affections of mankind in the vast majority of instances, will lead men to make
provisions for those who are the nearest to them in kindred and who in life have
been the objects of their affection. Independently of any law, a man on the point
of leaving the world would naturally distribute among the children or nearest
relatives the property which he possessed. The same motives will influence him
in the exercise of the right of disposal when secured to him by law. Hence arises
a reasonable and well warranted expectation on the part of man’s kindred
surviving him that, on his death, his effects shall become theirs, instead of being
given to strangers. To disappoint the expectations thus created and to disregard
the claims of the kindred to the inheritance is to shock the common sentiments of
mankind, and to violate what all men concur in deeming an obligation of the
moral law. It cannot be supposed that in giving the power of testamentary
disposition the law has been framed in disregard of those considerations. On the
other hand, had they stood alone, it is probable that the power of testamentary
disposition would have been withheld and that the distribution of property after
the owner’s death would have been uniformly regulated by the law itself. But
there are other considerations which turn the scale in favour of testamentary
power. Among those who as a man’s nearest relatives would be enabled to
share the fortune he leaves behind him, some may be better provided for than
others; some may be more deserving than others: some from age, or sex, or
physical infirmity may stand in greater need of assistance. Friendship and tried
attachment of faithful service may have claims that ought not to be disregarded.
In the power of rewarding dutiful and meritorious conduct, paternal authority finds
a useful auxiliary. Age secures the respect and attentions which are one of its
chief consolations. As was truly said by Chancellor Kent in Van Alst v. Hunter7 ‘it
is one of the faithful consequences of extreme old age that it ceases to excite
interest, and is apt to be left solitary and neglected’. The control which the law
still gives a man over the disposal of his property is one of the efficient means

Johnson N.Y. Ch. Rep. 159.

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which he had on protracted life to commend the attentions due to his infirmities.
For these reasons, the power of disposing of property in anticipation of death
has ever been regarded as one of the most valuable of the rights incidental to
property, while there can be no doubt that it operates as a useful incentive to
industry in the acquisition of wealth and to thrift and frugality in the employment
of it. The law of every country has, therefore, conceded to the owner of the
property the right of disposing by Will either of the whole, or, at all events, of a
portion of that which he possesses.

The need for the recognition of testamentary capacity may be stated as

follows:

(1) The generalllaw recognizes the possible inequities that in particular cases,
i

the administration of general law results in.

(2) There may arise conditions and contingencies in the life of an individual,
inducing hinji to depart from the normal channel of intestate succession

under the general Law.

i
(3) It is to soften the rigour of hardships in possible cases that the law of
every civilized country recognizes the testamentary capacity of everyone
who is the owner of property.
i
(4) Legislature has stepped in again to correct any indiscreet exercise of
i
testamentary power to provide maintenance for the dependants of the
deceased ovyner.
i
Bentham in his Theory of Legislation, Part II, Chapter IV, states under the
heading Testaments’:

"The law not knowing individual cannot accommodate itself to the diversity
of their wants. All that can be exacted from it is to offer the best possible chance
of satisfying those wants. It is for each proprietor, who can and who ought to
know the particulaif circumstances in which those who depend upon him will be
placed at his death! to correct the imperfections of the law in those cases which it
cannot furze. The power of making a Will is an instrument entrusted to the hands
of individuals to prevent private calamities.”
i 18
 The same power may be considered as an instrument of authority
entrusted to individuals, for the encouragement of virtue in their families and
repression of voice.

The power of making a Will is advantageous, under another aspect, as a

means Of governing-not for the good of those who obey, as in the preceding
article, but for the good of him who commands.

“It may be said that in default of kin, the services of strangers are
necessary to a man, and his attachment to them is almost the same as to
rewarding the care of a faithful servant, and of softening the regrets of a friend
who has watched at his side, not to speak of the woman, who, but for the
omission of a ceremony, would be called his widow, and the orphans whom all
the world but the legislator would regard as his children.”

II. WHO IS A HINDU AND HINDU PERSONAL LAW

1. Who is a Hindu?

Till today there is no precise definition of term ‘Hindu’ available either in

any statute or in any judicial pronouncement; it has defied all efforts at definition.
However, since Hindu law applies to all those persons who are Hindus it is
necessary to know who are Hindus, whatever definitional difficulties there might
be. If the question is posed in a different form, viz, to whom does Hindu law
apply, it would be easier to state the various categories of persons to whom
Hindu law applies. The persons to whom Hindu law applies may be put in the
following three categories:

(a) ‘ Any person who is Hindu, Jain, Sikh or Buddhist by religion, i.e. Hindus
by religion.

(b) Any person who is born of Hindu parents (viz, when both the parents
or one of the parents is Hindu, Sikh, Jain or Buddhist by religion) i.e.
Hindus by birth, and

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 (c) Any person who is not a Muslim, Christian, Parsi or Jew, and who is
not governed by any other law.

Under this category two types of persons fall:

(i) Those who are originally Hindus, Jains, Sikhs or Buddhist by religion,
and

(ii) Those who are converts or reconverts to Hindu, Jain, Sikh or Buddhist
religion.8

2. Origin of Wills in Hindu Law

The idea of a Will is wholly unknown to Hindu Law of the Shastras.9

The origin and growth of the testamentary power among Hindus has
always been a puzzle to Hindu lawyers. There was no name for them either in
Sanskrit or in the vernacular languages, Kane says that owing to the joint family
system and the custom of adoption, testamentary dispositions did not come into
vogue in ancient India.10

Kane in History of Dharma Shastras, page 816, Vol.lll, says: ’’But it need
not be supposed that the idea had not at all dawned upon the minds of people
before the advent of the British. Wills were known among the Muslims and
contact with them would naturally suggest the idea of a Will.”

He also refers to verses 341-359 of the Rajatarangini IV as appearing to

embody the political testament of King Lalitaditya of Kashmir in the first half of
the 8th century. He cites a text of Katyayana as making a very near approach to
the modem conception of a Will. There is a reference to a letter, dated A D1775
by one Naro Babaji, who after referring to his illness, provides on a generous
scale for his funeral and shradha expenses and makes dispositions in favour of
his daughter-in-law, of another widow, and for the marriage of his Kinsman’s
sons and the distribution of the balance of his assets.

Hindu Law, Paras Diwan, 1st Edn. 1995, pp. 4-5.

Dr. Tahir Mahmood, Hindu Law, 2nd Edn., P. 768.
Kane, History of Dharma Shastras, Vol. H, p. 816.

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 But subsequent to the commencement of the British rule, by a course of
practice long enough to be recognized as approved usage, and by a series of
judicial decisions gifts by Will have been held as binding as part and parcel of the
general law of India.

One of the earliest Wills to come before the British Indian Courts was that
of the notorious Umichand who died in A.D.1758.

In a Bombay case the Will of a Hindu, made in 1789 is referred to.11

Such gifts by will have followed in India the practice of gifts and
conveyance inter vivos. In Roman Law also testamentary power appears to
have been a development of the law gift inter vivos.

A gift by Will is intended to take effect upon the death of the donor and it is
revocable in his lifetime. Until revoked it is a continuous act of gift up to the
moment of death and does then operate to give the property disposed of to the
persons designated as beneficiaries. They take the property upon the death of
the testator, as they would if he had given it to them during his lifetime.

So the Law of Wills was grown up from the analogy furnished by the Law
of Gifts: Even if Will cannot be regarded in all respects as gifts to take effect upon
death, but the analogies are sound as regards the property to be transferred and
the persons to whom it may be transferred.12

In Naga Lutchmee Ammal v. Gopoo Nadaraja Chettey,13 a Hindu

governed by the Hindu Law as prevails in Madras and who had a wife and a
daughter and male lineal descendants, made a Will. After the death of the
testator, the wife impeached the validity of the Will. Their Lordships held that the
Will was valid and made the following observations:

“It must be allowed that in ancient Hindu Law as it was understood

through the whole of Hindustan, testamentary instruments, in the sense affixed
by English lawyers to that expression, were unknown; and it is stated by a writer

See Kane, History of Dharma Shastra, Vol. II, p. 818.

Tagore V. Tagore, 1IA Supp 47; 9 ben LR 377.
(1856) 6 MIA 309 (344).
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of authority (Sir Thomas Strange) that the Hindu language has no terms to
express what we mean by Will. But it does not necessarily follow, that what in
effect though not in form are testamentary after the death of the maker of the
instrument, were equally unknown. However this may be, the strictness of the
ancient law has long since been relaxed, and throughout Bengal a man who is
the absolute owner of property may now dispose of it as he pleases whether it be
ancestral or not. This point was resolved several years ago, by the concurrence
of all the judicial authorities in Calcutta, as well of the Supreme Court as of the
Sadar Court. No doubt the law of Madras differs in some respects and among
others, with respect to Wills, from that of Benagal. But even in Madras it is settled
that a Will of property, not ancestral, may be good; a decision to this effect has
been recognized and acted upon by the Judicial Committee and, indeed, the rule
of law to that extent is not disputed in this case.”

In Vallinayagam Pillai v. Pachche,14 “now the power to make a Will is

settled” co-extensively with the independent right of gift or other disposal by act
inter vivos.

The Privy Council has observed in numerous cases that the nature and
extent of the testamentary form of disposition by Hindu cannot be completely
governed by any analogy to the law of England.15

There are peculiarities of the English Law such as powers of appointment,

real and personal property, legal and equitable interests, the law of estates which
have been held as inapplicable to Hindu Wills.16

In Babbo Beer Pratab sahu v. Maharajah Rajender Pratab Sahu17, the

Privy Council made the following observations as to the testamentary power of a
Hindu governed by the Benares School:

“It is too late to contend that because the ancient Hindu treatises make no
mention of Wills, a Hindu cannot make a testamentary disposition of his property.

14 1 MHCR326(329).
15 Bhooban Moyee v. Ramkishore, 10 MIA 279(307, 308); Sonatun Bysac V. Juggutsondree, 8 MIA
66 (79).
16 Tagore case, 1IA Supp 47 (64); Motivahu’s case, 21 Bom 709 (722).
17 (1867) 12 MIA 1.

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Decided cases too numerous to be questioned now, have determined that the
testamentary power exists, and may be exercised, at least within limits which the
law prescribes to alienation, by gift inter vivos. Accordingly it has been settled
that even in those parts of India which has been governed by the stricter law of
Mitakshara, a Hindu without male descendants may dispose of, by Will, his
separate and self-acquired property whether movable or immovable: that one
having male descendants may so dispose of his self-acquired property, if
movable, subject perhaps to the restriction that he cannot wholly disinherit any
one of such descendants.”

The Courts applied the Hindu Law of Gifts as far as possible to Hindu
Wills also in so far as the transfer of property and the persons to whom it could
be transferred. As stated in the Tagore’s case18 “Even if wills are not to be
regarded in all respects as gifts to take effect upon death, they are generally to
be regarded as to the property which they can transfer and the person to whom it
can be transferred.”19 The analogy between Wills and gifts inter vivos stops with
that.20

• First Introduced in Bengal

The testamentary power of a Hindu was first admitted in Bengal where the
power of alienation was most exercised.21 In 1812, the Sudder pandits laid down
the general principle that “the same rule applies to bequests as to gifts; every
person who has authority, while in health, to transfer property to another,
possesses the same authority of bequeathing it.”22 In Dayabhaga School it was

settled by a long course of decisions even prior to the decision of the Privy
Council in the Tagore case that a Dayabhaga father can Will, as well as alienate
inter vivos, the entire property including ancestral, even to woman of ill-fame or to
his illegitimate son, subject perhaps to their right of maintenance.

1IA47 (69)
Pandarinath v. Govind, 23 Bom 59 (74); Venkatarama v. Venkata Surya, 2 Mad. 333.
Bai Motivahoo v. Bai Mamoobai, 21 Bom 709 (721) (PC).
Eshanchand v. Eshorechund (1792) 1 SD 2; Gopee v. Rajkrishna (1800) Montr 381.
Sreenaraian v. Bhya Jha (1812) 2 SD 23 (29,37); Juggomohun v. Neemoo (1831) Morton 90.
23
 The conveyance of property inter vivos was soon followed by the practice
of making gifts by Wills.23

• In Southern India

In Southern India, the tendency of the Sudder Judges was at first to

accept the opinions of Sir Thomas Strange, Mr. Colebrooke and the pandits, that
the legality of a Will must be tried by the same tests as that of a gift; for instance,
that it would be valid if made to the prejudice of a widow, but invalid if made to
the prejudiceof male issue. Then, Madras Reg. V of 1829 (Hindu Wills) was
passed, which reciting that Wills were instruments unknown, enacted that for the
future Hindu wills should have no legal force whatever, except so far as they
were in conformity with Hindu law according to authorities prevalent in the
Madras Presidency. Wills were not only set aside where they prejudiced the male
issue, but the courts also laid down that where a man without male issue
bequeathed his property away from his widow and daughters, such a Will would
be absolutely illegal and void, unless they had assented to it.24

Finally, the Sudder Court by its decree in 1850 affirmed, in accordance

with the opinion of pandits, the testamentary power of a Hindu to dispose of his
property.25 This decision was on heal, affirmed in 1856 by the Judicial
Committee. The Privy Council observed: “The strictness of the ancient law has
long since been relaxed, and throughout Bengal, a man who is the absolute
owner of property may now dispose of it by Will as he pleases; whether it be
ancestral or not. Even in Madras it is settled that a Will of property, not ancestral,
may be good”.26 After some conflicting decisions of the Sudder Court, the
Madras High Court reviewed in 1862 all the previous decisions and reaffirmed
the power of a testator, who has no male issue, to make a binding Will by which
the bulk of his property is bequeathed to distant relation after providing sufficient

Mayne’s Hindu law of Usage, 16th Edn., by Justice Ranganath Mishra., p. 1381.
Mootoovengada v. Toombayasamy Mad Dec of 1849,27.
Nagalutchmee v. Nadaraja Mad Dec of 1851,266.
Naglutchmee v. Gopoo (1856) 6 MIA 309, 344.
24
maintenance for his widow.27 This decision, of course put an end to all discussion

as to the capacity of a testator in Madras to make a binding Will.

• In Bombay:

In Bombay (now Mumbai), in a very early case, the pandits when

consulted said: “There is no mention of Wills in our Shastras, and therefore they
ought not to be made”.28 In 1866, Westropp, J, said: “In the Supreme Court, the
Wills of Hindus have been always recognized and also in the High Court, at the
original side. Whatever questions there may formerly have been as to the right of
a Hindu to make a Will relating to his property in the mofussil, or as to the
recognition of Wills, by the Hindu law, there can be no doubt that testamentary
writings are, as returns made within the last few years form the Zillahs show,
made in all parts of the mofussil of this Presidency”29 The testamentary power of
Hindus over their property must now be considered as completely established.30
Under old Hindu law a testamentary disposition could be made either orally or in
writing.31

• History of legislation:

Express legislation in the shape of the Hindu Wills Act (XXI of 1870)
followed, as it was thought expedient to provide rules for the execution,
revocation, interpretation and probate of Wills of Hindus, Jainas, Sikhs and
Buddhists in the territoties subject to the Lieutenant-Governor of Bengal and in
towns of Madras and Bombay. By that Act, certain sections of the Indian
Succession Act, 1865, which, of course, was not applicable to Hindus32 were
made applicable to all Wills and codicils made by Hindus within the said
territories and limits and to Wills and codicils made outside but relating to
immovable property situate within those territories and limits. Section 3 of that

27 Villinayangam v. Pachche (1862) 1 Mad HC 326, 339.

28 2 Stra HL 449; Deo baee v. Wan Baee 1 Bor 27 (29); Goolab v. Phool, ib, 154 (173); Gungaraxn v.
Tapee, ib., 372 (412); Icharam v. Purmanund 2 Bor 471 (515); all decisions ranged from 1806 to
1820.
29 Narrottam v. Narsandas (1866) 3 Bom HC (ACT) 8.
30 Beer Pertab v. Rajendra Pertab (1867) 12 MIA 1,37-38; Tagore v. Tagore (1872) IA Sup Vol 47,
67-68: 9 Beng LR 377.
31 Prahlad v. Damodar AIR 1958 Bom 79; Subhadrabai v. Manyoyi 1979 (2) Mah LR 62.
32 See Section 331 of Indian Succession Act (X of 1865).

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Act provided that nothing contained in the Act shall authorize a testator to
bequeath property which he could not have alienated inter vivos, or to deprive
any person of any right of maintenance of which, but for the Act, he could not
deprive them by Will. It also further provided that nothing contained in the Act
shall authorize a testator to create an interest which he could not have created
before the 1st September, 1870. Wills made by Hindus in other parts of the India
continued to be governed entirely by Hindu law unaffected by any statutory
provision. In 1881, the Probate and Administration Act provided for the grant of
probate of Wills and letters of administration to the estates of Hindus, whether
governed by the Hindu Wills Act or not. The Succession Certificate Act (VII of
1889) was passed to facilitate the collection of debts on successions and to
afford protection to parties paying debts to the representatives of deceased
persons. Finally, the Indian Succession Act, 1925 was passed, which
consolidated the law applicable to intestate and testamentary succession in
British India. It superseded inter alia the Indian Succession Act, 1865, the Hindu
Wills Act, 1870, the Probate and Administration Act, 1881 and the Succession
Certificate Act (VII of 1889). This Act, as amended by Acts XXXVII of 1926 and
XVIII and XXI of 1929, now applies subject to certain exceptions mentioned
therein, to all Wills and codicils made by Hindus, Buddhists, Sikhs and Jainas
throughout India.33

3. Indian Succession Act, 1925-Statutory Law

• Scope & Extent of Control over Indian Wills

At present Hindus are governed by the provisions of the Indian

Succession Act, 1925 as detailed in section 111 of that Act, with regard to
testamentary disposition by them.

The provisions of the Indian Succession act are largely based upon the
principle of the law of wills as laid down by English Courts, but adapted to suit the
different social conditions of this country.

Neither Parts II to V relating to intestate succession nor such provisions of Part VI as are specially
excepted by sections 57 and 58 apply to Hindus, Buddhists, Sikhs and Jaina.

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 The provisions of consolidatory statutes as the Indian Succession Act are
binding upon the Courts, as their object is to place the principles of law upon a
footing more specific and more certain than the practice of English Courts in such
matters. In interpreting those statutory provisions it is our duty specially to guard
ourselves against being guided too much by the English cases and too little by
the words of the statute. It must not be forgotten that in many matters the Indian
statute has departed from the rules and principles adopted in England.34

Section 58(2) of the Indian Succession Act enacts that the provisions of
Part V therein shall constitute the law of India applicable to all cases of
Testamentary succession.

Sub-Section (1) of the said section saves from the operation of the said part-

(1) Testamentary Succession among Muslims.

(2) Wills made by Hindus, Buddhists, Sikhs or Jains, as well as others before
the first day of January, 1866.

(3) Under Section 57, it may be noted that Testamentary Succession among
Hindus, Buddhists, Sikhs and Jains was brought under statutory control in
gradual stages;

(a) Wills and codicils made after 1st September 1879, within the territories
then subject to the Lieutenant-Governor of Bengal and within the original
civil jurisdiction of the High courts of Madras and Bombay;

(b) All Wills and codicils made outside those territories and limits but relating
to immovable property situate within those territories and limits; and

(c) All Wills and codicils on or after the first day of January, 1927 and not
included under the former classes.

The provisions of the statute made applicable to Wills are set out in
Schedule III subject to the restrictions and modifications specified therein. It
cannot, however, be assumed that the intention of the Legislature is that
principles of those sections omitted ought not to have any application to the

34 Per Mahmood, J. in Bachman v. Bachman, DLR 6 All 583.

27
Hindus. It can only mean that the Legislature was doubtful about their
applicability to Hindus. Where, therefore, on general principles, a rule was
applicable to Hindus, a Court of law need not refrain from giving effect to it simply
because it is subject of a provision excluded by Schedule III.35

In regard to Wills by Hindus, as a result of Section 214, only probate is

necessary where such Wills fall under clauses (a) and (b), no probate is
necessary in regard to Hindu Wills falling under Section 57(c), i.e. Wills by
Hindus after 1st January, 1927.36

4. Testament in Old Hindu Law

Under old Hindu Law the power of alienation inter vivos is different vis-a-
vis classes such as families governed by Mitakshara law. Aliyasanthanam law,
Dayabhaga law, etc. We may pin point the position thus:

(i) Under Mitakshara School no bequest can be made by a member of an

undivided family of the whole or part of his share in the ancestral property.
Further he is not authorized to bequest property which he could not have
alienated. Although a person can dispose of all his property through Will if the
same is self aquired or private property and in no way belongs to the joint family
property.

But can a coparcener bequeath with the consent of the other coparceners
his coparcenery interest? There is conflict of opinion in this regard.

Madras High Court decisions are not uniform. In a case,37 father’s Will in
favour of his daughter of a reasonable portion of his undivided coparcenery
property with the consent of his major sons and his minor son by guardian-
mother was upheld. But A’s bequest in favour of his wife for her maintenance
was held not binding on the family in Subbarami Reddi v. Ramanna.38 Where a
father made an unequal distribution of the coparcenery property among his major
sons with their consent the court upheld it only as a family arrangement and not

Amritlal Dutt v. Somamayee Dasi, 24 Cal 589 (609).

Janki Bai v. Durga Prasad, AIR 1938 All 648; Rup Rao v. Ram Rao, AIR 1952 Nag 88.
Appan Patra charier vs. Srinivasa Chariar, 43 Mad 824:12 LW 249.
Sadasivam v. Shanmugam, AIR 1927 Mad 126: 25 LW 119.
28
as a Will.39 A, an undivided brother bequeathed a portion of his undivided
property in favour of his daughter with the consent of his major brother B. this
was also upheld only as a family settlement or arrangement.

(ii) In Aliyasanthana Law or Marumakkathayam, the Rules of Mitakshara law

do apply. Consequently, a member of a tarwad cannot make a bequest of tarwad
property. The last surviving member of a tarwad can execute a Will as to the
tarwad property. Similarly a member of tavazhi (if he is the last member) can
bequeath tavazhi property by Will.40 There is no doubt that a member of the
aforesaid groups can dispose of by Will his self-acquired property.41

(iii) The Dayabhaga School prevalent in Bengal gives absolute right to a

member of Dayabhaga family. For, there is no right by birth so as to curb all
alienations of ancestral property. The Dayabhaga Hindu can, therefore, make a
devise of any property ancestral or self-acquired.42

A Hindu’s Will was held illegal when no provision was made therein for the
maintenance of his wife and daughter.43 Later decision held the Will valid but is
subject to maintenance claims.44 After the passing of the Hindu Women’s Right
to Property Act XVIII of 1937, a widow’s right to maintenance rarely arises as she
is deemed a full-fledged heir.

Even before Part VI of the Indian Succession Act was made applicable to
Hindus in 1926, by passing of the Madras Act I of 1914 and the Hindu Disposition
of Property Act, 1916 and VII of 1921, gifts to unborn persons were declared
valid even among Hindus provided they did not infringe the rule against
perpetuity.

Now under section 57 of the Indian Succession Act, 1925, this provision
(section 113) has been made applicable to Hindu Wills.

Venkoba Sah V. Ranganayaki Ammal, AIR 1936 Mad 967: 71 MLJ 454:44 LW 483,
Thunga v. Nani Kutti Amnia, AIR 1927 Mad 371.
Adam Haji v. Kunkan, AIR 1938 Mad 242. See also Achutan Nayar v. Cherlotti Nayar, 22 Mad.
9.
Dbendra Coomar v. Brojendra Coomar, 17 Cal. 886.
Mootoo Vengada v. Tobayaswamy, Madras, Decision of (1849) Mad 27.
Kamakshi Ammal v.Krishnammal, AIR 1938 Mad 340. See also sections 39 and 128, Transfer of
Property Act, section 111, rule of Indian Succession Act, 1925.

29
 The later decision of the Calcutta High Court in Anirudha Mitra v. Aralinda
Mitra45 decided that as the Hindu Disposition of Property Act, XV of 1916, has not

been repealed, the power to create an interest in property in favour of an unborn

person given by that Act cannot be said to have been taken away by the
Succession Act.

5. Hindu Succession Act, 1956 - Effect on Old Hindu Law

(i) Testamentary Disposition

Under the Hindu Succession Act, 1956 there has been a revolutionary
change in the right of a Hindu to make a testamentary disposition. Section 30 of
the Hindu Succession Act, 1956 deals with the testamentary succession among
Hindus, which states that:

“Any Hindu may dispose of by Will or other testamentary disposition any

property, which is capable of being so disposed of by him, in accordance with the
provisions of the Indian Succession Act, 1925 (39 of 1925), or any other law for
the time being in force and applicable to Hindus.”

The Explanation further clarified that the interest of a male Hindu in

Mitakshara coparcenary property or interest of a member of a Tarwad, “Tavazhi,
lllom or Kutumba or Kavaru, shall be deemed to be property capable of being
disposed of by him or by her within the meaning of this section.

Prior to this Act, a Hindu governed by Mitakshara could dipose of his

property by a Will or other testamentary disposition if it was his separate
property; and secondly if he was the sole surviving coparcener of the joint family
property. Under Dayabhaga law as there was no right by birth in the other
coparcenary members of the family till the father’s death, the father was in a
position to dispose of by Will the whole of the joint family property. Now under the
present section, according to the Explanation, a Hindu member of a coparcenary
governed by the Mitakshara of a member of a Tawazhi, Tarwad, lllom, Kutumba
or Kavaru is given for the first time a right enabling him to dispose of his
undivided interest in the property by Will or other testamentary document under

45 AIR 1946 Cal 396.

30
the old Hindu law is removed by this section.46 According to section 4, any

custom inconsistent with any provision of this enactment, is abrogated. It has

been held however that a custom in Punjab prohibit bequest of an undivided
interest is not inconsistent with this provision as this is only an enabling provision
and this Act deals only with matters of succession and not matters of alienation 47

The limitation on the right of the coparcener is found in the Explanation to

section 30 of the Act which makes it clear that what is meant by the expression
‘property capable of being disposed of by him or by her1 is the interest of a male
Hindu in the Mitakshara Coparcenary Property. The share of the deceased out of
the joint family property of coparceners could at best have been lawfully disposed
of by a Will but not the entire ancestral property inherited by him from his father.48

In the expression “or any other law for the time being in force”, the word
“law” will include any statutory law or textual law or customary law. It would
therefore follow that the customary law in Punjab where there was prohibition
regarding the power of alienation which was the subject-matter of the above
referred Punjab cases, would also be law in force within the meaning of this
section and section 30 would prevail notwithstanding such law. Therefore, the
decisions that this section did not abrogate the customary law of Punjab do not
seem to be correct. The reasonining in the said decisions that this Act only deals
with succession and not with alienation is faulty as this provision expressly deals
with testamentary disposition.

The power under this section to make a testamentary disposition does not
extend to the making of a gift, and so, a coparcener cannot make a gift inter
vivos of his undivided share 49 This provision also does not apply to other modes

of alienation inter vivos which will continue to be governed by the ordinary Hindu
law. Where a coparcener made a bequest under a will executed prior to the Act,

Sheoraj Singh v. Munia AIR 1963 MP 360; Topgayal v. Gompo AIR 1980 Sikkim 33; Jamunabai
v Surendra Kumar AIR 1995MP 274.
Joginder Singh v. Kehar Singh AIR 1965 Punj 407; Bahadur Chand v. Ashok Sharma AIR 1974
Punj 52.
Rajamma (V.) v. Rami Reddy (A.) 1997 (2) HLR 548 (AP).
Madras State Bhoodan Yagna Board v. subramania AIR 1973 Mad 277; Mukund singh v. Wazir
Singh (1972) 4 SCC 178; Ramakka Shetthi v. Anthayya Setty ILR (1980) 1 Kamatka 111.

31
but died after the Act, this section operates as the will takes effect only from the
death of the testator.50 In such a case, the property taken by the legatee is his
absolute property and joint property.51 However, dealing with a case where a
deceased was allotted a share in his Kutumba property by a preliminary decree
dated 26-8-1952 under Aliyasanthana law in a suit for partition and subsequently
the deceased died on 25-7-1956 leaving a Will dated 19-6-1956 bequeathing his
share allotted under the preliminary decree to his wife and children, it was held
by the Mysore High Court that any kavaru taking a shq^3 under the
Aliyasanthana Act, 1949, is a Nissanthati Kavaru having life interest in the
properties allotted to it, but if the Kutumba from which it separates has at least
one female member who has not completed the age of 50 years or where the
Kutumba breaks up into a number of Kavarus at the partition, if at least one of
that Kavaru is a Santhathi Kavaru, the separating Kavaru shall have an absolute
interest in the property allotted to it. Therefore, the explanation to section 30 has
not the effect of enlarging the life interest of the deceased into an absolute
estate.52 It was further held that section 36, sub-sections (3), (4) and (5) of the
Madras Aliyasanthana Act, 1949, were not inconsistent with section 7(2) or
section 30 of Hindu Succession Act. But in another case 53 it was observed that
the provisions in the Aliyasanthana Act, 1949, should give way to section 8 of this
Act as those provisions are inconsistent with those in this Act; that though during
the lifetime of the deceased the interest does not get enlarged into an absolute
interest, it shall be deemed to have been allotted on his death to his heirs with
absolute interest as provided for under section 17 read with section 8 or section
15 of this Act as the case may be.

Section 30 of the Hindu Succession Act provides that any Hindu may
dispose of by will or other testamentary disposition, any property, which is
capable of being so disposed of by him, in accordance with provisions of the
Indian Succession Act, 1925 or any other law applicable. These provisions deal

Veerabhadrappa v. Rabayawwa (1969) 2 Mys LJ 105.

Commissioner of Wealth Tax v. Sampatrai Bhutoria and Sons 1981 Tax LR 1550 (Calcutta).
Sundra Adapa v. Girija AIR 1962 Mysore 72 (FB).
Sundari v. Lakshmi, AIR 1980 SC 198.

32
with the legal capacity to make a Will and who can and who cannot make a Will.
Explanation (1) to section 59 of Indian Succession Act, 1925 clarifies what can
be disposed of by Will by a married woman and states that any property which
she could alienate by her own act during her life can be disposed of by Will. It
follows that married woman who cannot alienate a property by her own act during
her life, cannot dispose of the property by a Will.54 Section 30 of the Hindu
Succession Act does not prohibit a gift by a coparcener of his undivided interest
in the coparcenary to another coparcener or even to a stranger.55 Under Hindu
law, a sole surviving coparcener can bequeath his joint family property as if it
were his separate property. A Will executed by a coparcener can only challenged
by another member of the coparcenary.56 Coparcenary property can be
bequeathed by a surviving coparcener. The disability of a coparcener in
disposing of his undivided interest in property by Will or other teatamentary
document under the old Hindu law is removed by section 30 of the Act.57
Properties acquired by the Karta of joint family with aid of joint family nucleus or
from out of income derived from properties inherited from forefather are to be
treated as joint family properties and not self-aquired properties. The burden to
prove that such properties are self-acquired properties is on the coparcener
making such assertion or claim. Divisions of properties under a Will appeared to
be dividing family properties among his children and the properties being joint
family properties, not right whatsoever vested in him to bequeath the said
properties under a Will without the consent of other coparceners. Therefore, the
will is not binding on them.58

The mere fact that some first class heirs were ignored in the Will would not
make the Will invalid. A validly executed Will which is proved by proper evidence
before the court cannot be ignored merely in this basis. However, the court has
to scrutinise the evidence in support of the execution of the Will with a greater

Ramaiah v. Nagraj 2002 (1) HLR 67 (Kar).

Pariki Subbireddy v. Pariki Chinna Reddemma, 1996 (2) HLR 208 (AP).
Fateh Singh v. Lakhbir Singh, 2004 (1) HLR 426 (P&H).
Senthilkumar v. Dhandapani AIR 2004 Mad. 403.
Thimmmaiah (VK) v. Parvathi (VK) AIR 2003 Kant 245.

33
degree of care than usual.59 Where a Hindu testator bequeathed his entire

property in favour of his ignoring his married daughters, the Court cannot sit in
appeal over the decision of the testator.60 An owner of property has normally the
right to deal with that property including the right to devise or bequeath the
property. He could thus dispose it of by a testament. Section 30 of the Act, does
not curtail or affect this right, it actually reaffirms it. Thus, a Hindu male could
testamentarily dispose of his property. When he does that, a succession under
the Act stands excluded and the property passes to the testamentary heirs.
Hence, when a male Hindu executes a Will bequeathing the properties, the
legatees take it subject to the terms of the Will unless of course, any stipulation
therein is found invalid. Therefore, there is nothing in the Act which affects the
right of a male Hindu to dispose of his property by providing only a life estate or
limited estate for his widow. The Act does not stand in the way of his separate
properties being dealt with by him as he deems fit.61

No court has the power to make an order, that too an interim order
restraining an individual from exercising his right to execute a Will and thereby
regulate succession on his death. A direction to a party to maintain status quo in
regard to a property does not bar him from making a testamentary disposition in
regard to such property and consequently the testamentary disposition is neither
void nor voidable. The bar comptemplated in Explanation I to section 59 of the
Indian Succession Act, 1925 is a bar or permanently inability under the personal
law or a statute. It does not refer to temporary prohibition arising from an
injunction issued by the court.62

Under section 29 of the Hindu Adoptions and Maintenance Act, 1956, the
Hindu Married Women’s Right to Separate Residence and Maintenance Act 19 of
1946, and sub-section (2) of section 30 of the Hindu Succession Act, 1956 were

Mangat Ram v. Dina Nath 1997 (2) HLR 220 (P&H).

Gurdev Kaur v. Kaki 2006 (1) HLR 625 (SC).
Sadhu Singh v. Gurdwara Sahib Narike AIR 2006 SC 3282: 2006 (8) SCC 75.
Ramaiah v. Nagraj 2002 (1) HLR 67 (Kar).

34
repealed as the provisions therein are covered by section 18 and section 22 of
the Hindu Adoptions and Maintenance Act, 1956.83

(ii) Hindu Female-Absolute Property (s. 14)

There is one important matter which will have considerable influence in

construing the nature of the interest given to a Hindu female. The Hindu
Succession Act, 1956 has been referred to as the Magna Carta of Hindu women.
Section 14 of the said Act has abolished the limited estates of Hindu Law.
Hereafter a gift to a Hindu female will have to be considered in the same way as
a gift to a Hindu male. It says;

“Property of a female Hindu to be her absolute property- (1) Any property

possessed by a female Hindu, whether acquired before or after the
commencement of this Act, shall be held as full owner thereof and not as
a limited owner.64

(2) Nothing contained in sub-section (1) shall apply to any property

acquired by way of gift or under a Will or any other instrument or under a
decree or order of a civil court or under an award where the terms of the
gift, Will or other instrument or the decree, order or award prescribed a
restricted estate in such property.”

V. Tulasmma v. Sesha Reddy,65 clearly lays down that clause (1) of the
section 14 applies to properties granted to a Hindu female, in virtue of a pre­
existing right of maintenance while clause (2) applies where property is granted
to a female Hindu for the first time without any pre-existing right. Thus where
property is acquired by the female at the time of partition or in lieu of
maintenance clause (1) alone is attracted. The provison in clause (2) gets
attracted in the case of instruments, decrees, awards etc., which create
independent and new titles in favour of the female for the first time. Life estate of
a widow under a Will which comes into operation after 1956 does not get
enlarged into an absolute estate under section 14(1) of the Hindu Succession

63 Mayne’s Hindu Law & Usage, by Justice Ranganath Mishra, 16th Edn. pp. 1274-77.
64 Santha v. Natarajan (1960) 1 MLJ 318: Jwalanarasimha v. Narayan (1978) 1AnLT 407.
65 AIR 177 SC 1944

35
Act, 1956.66 In the instant case, the respondent got the property under the Will of

her father and as such the life estate given to her cannot be enlarged into an
absolute estate.67

Section 14 has introduced fundamental changes in the traditional Hindu

law of property of women. The main object of the act has been to confer better
rights on Hindu women such as:

(a) To remove all disability of a Hindu woman to acquire and deal with
property, i.e., all the property that she acquires will be her absolute
property.

(b) To convert existing woman’s estate into full estate.68

For the applicability of sub-section (1) of section 14 two conditions must

coexist, namely-

(i) The concerned female Hindu must be possessed of property; and

(ii) Such property must be possessed by her as a limited owner.

If these two conditions are fulfilled, the sub-section gives her the right to
hold the property as a full owner irrespevtive of the fact whether she acquired it
before or after the commencement of the Act.69

(Hi) Law of Domicile

Till 1956, the Hindus were governed by the particular school of Hindu law
prevailing in the territory in which a Hindu was born. As a result of the differences
that existed in the various schools of Hindu law that prevailed in various parts of
the country, questions arose as to what would happen to a Hindu family
migrating from one part of the country to another.

The law relating to migrating families has been laid down in numerous
decisions of the Privy Council. The leading case on the subject is Balwant Rao v.
Baji Rao.70

66 Gumpha v. Jaibai, (1994) 1 HLR 292 (SC)

67 B. B. Mitra’s The Indian Succession Act, by S.A.Kader, 14th Edn., p 5.
68 T.S. Rangachari v. V S Krishnaswamy, 1992 (2) HLR 119
69 Law of Wills, by Gopalakrishnan, 7* Edn.,

36
 The law relating to migrating families has lost most of its importance
subsequent to 1955-56, as a result of the various Acts, such as the Hindu
Marriage Act, 1955, the Hindu Succession Act, 1956, the Hindu Adoptions and
Maintenance Act, 1956, have done away with the schools of Hindu law at all
events in respect of matters dealt with by those Acts. Still the Hindu law of joint
family remains as of old. The differences between the Mitakshara and
Dayabhaga systems of joint family are still recognized. It is therefore essential to
remember the important rules regulating the migrating families within India.

The following propositions have received recognition:

(1) Every Hindu is prima facie governed by the particular school of Hindu law
prevailing in the Province where he is residing;

(2) Where he migrates from one Province or State to another, he carries with
him the Hindu law of his origin as part and parcel of his personal status;

(3) Such law that a migrating Hindu carries with him would be the law of the
place of origin at the time of migration;

(4) It is open to a Hindu who has migrated from one Province or State to
another to give up the law of his origin and adopt the law of the new
Province or state to which he has migrated;

(5) Such adoption is inferred from the giving up of peculiarities in the

performance of religious ceremonies prevailing in the Province or origin
and adopting the different modes prevailing in the new origin and adopting
the different modes prevailing in the new Province;

(6) A Hindu who has adopted the new law of place to which he has migrated
cannot give it up at his will and pleasure, and take back the old law of
origin.

(iv) Present Status

Another revolutionary change has been made in the favour of Hindu

females by way of amendment in section 30 of the Hindu Succession Act, 1956,

70
48 Cal 30 (PC).
37
which is now known as Hindu Succession (Amendment) Act, 2005. Section 30 of
the Hindu Succession (Amendment) Act, 2005 which deals with the testamentary
succession among Hindus, now states that:

“Any Hindu may dispose of by Will or other testamentary disposition any

property, which is capable of being so disposed of by him (or by her)7\ in
accordance with the provisions of the Indian Succession Act, 1925 (39 of 1925),
or any other law for the time being in force and applicable to Hindus.”

In view of the above said amendment now a female (daughter) by birth

becomes a coparcener and inherits the same power and entitlements with regard
to joint family property as like a male member (son) born in the same family.72

III. WILLS

1. Definition & Essentials of a Will

Will means a continuous act of gift up to moment of the donor’s death and
though revocable in his lifetime, is, until revocation, a continuous act of gift up to
the moment of death, and does then operate to give the property disposed of to
the persons designed as beneficiaries.73 A testament is an institution or
appointment of an heir or executor made according to formalities prescribed by
law.74

Will in Latin is called ‘voluntas’ which is used in the texts of Roman Law to
express the intention of a testator. According to William’s, Wills and Intestate
Succession, Will which was originally an abstract obligation concretized into a
document. The word ‘testament’ is derived from ‘testatio menties’ meaning
thereby that it testifies the determination of mind ULPAIN has defined Will as,
“Testamentum est mentis nostraejusta contestatio in id sollemniter facta to post
martem nostrum valeat”. Modastinus also defines it bases on the Latin word

Inserted by the Hindu Succession (Amendment) Act, 2005, w.e.f. 9-9-2005.

Mayne’s Hindu Law & Usage, by Justice Ranganath Mishra, 16th Edn. p. 1381.
Jatindra Mohun Tagore v. Ganendra Mohun Tagore, 18 Suth WR 359: 9 Beng LR 377 (PC).
Domat, Civil Law, 2987; see 50 Halsbury, para 201, 4th Edn., for the distinction between a Will
and a testament.

38
‘voluntas’ as “Voluntatis nostre just sentential de co quod quis post mortem suam
fieri velit”.

According to Jarman, a Will is an instrument by which a person makes a

disposition of his property to take effect after his decease and which is in its own
nature ambulatory and revocable during his life. (Nam omne testamentum morte
consummatum est; et voluntae testamentoric est ambulatoria usque od mortem).

Thus every testament is consumated by death, and until he dies the Will of
a testator is ambulatory.75 Lord Penzance,76 has said that “A Will is the
aggregate of man’s testamentary intentions so far as they are manifested in
writing, duly executed according to the statute”. In Tagore v. Tagore,77 their
Lordships of the Judicial Committee said thus, it means a continuous act of gift
up to the moment of death. Such a disposition of property, to take effect upon the
death of donor, though revocable in his lifetime, is, until revocation, a continuous
act of gift to the moment of death and does then operate to give properly
disposed of the persons designated as beneficiaries.”

Swin Burne explains that “a testament is the full and complete declaration
of a man’s mind or last Will of that which he would have thought to be done after
his death, by way of disposition of his property (Chep. Touch 399). Will has also
been documents, to mean, “every writing making a voluntary posthumous
distribution of property”.78

In the absence of a statute, a Will may be in any form, oral or in writing.

Before the Indian Succession Act became applicable to Hindus, oral Wills by
Hindus were recognized as valid. An Oral Will could also be implied; if in writing it
need not be signed or attested.79

But to operate as Will, the writing must be complete and operative. A

document can be said to be a Will only when it is executed with an intention to

Rajinder Singh v. Manjit Singh, (2001) 1 HLR171 (Del) (FB).

Leimage v. Goodhan, LR1 P&D 57
18 WR359
(Registration Manual 1901,p.90)
Janki v. Kallu Mai, 31 All 236; Chintaman v. Lakshman, 11 Bom 89; in re: Bapuji, 20 Bom 674;
Subayya v. Surayya, 10 Mad 251.
39
regulate succession after death “Varas Patra" or nomination cannot be construed
as a Will.80

In the absence of statutory requirements, written instruments have been

held to operate as Will, in whatever form or with whatever name they might have
come into existence. The petitions addressed to officials, deeds or adoption,
declarations in applications for deposit or the recitals in a letter have been held to
operate as Will, provided they have the other characteristics of a Will. However,
where a party is governed by a statute requiring due attestation for a Valid Will, a
mere letter addressed to the authorities declaring an intention by a deceased that
on his death without issue, his legally married wife shall be owner of the estate,
would not be valid in the absence of attestation.81

(i) Statutory Definition of Will

Section 2(h), Indian Succession Act, 1925, defines Will as “the legal
declaration of the intention of the testator with respect to his property, which he
desires to be carried into effect after his death”. The definition follows that of
Blackstone and others.

A Will is the legal declaration of a man’s intention, which he wills, to be

performed after his death, or an instrument by which a person makes a
disposition of his property to take effect after his death.82

(ii) Essentials of Will

There are three essentials to a Will:-

(a) It must be a legal declaration of the intention of testator, i.e., the person
who makes the Will.

Law prescribes form and formalities to be complied with. Unless those

formalities are complied with, there cannot be a legal declaration. The document
must be signed; it must be attested as required by law. An unprivileged Will must

Gopal Vishnu v. Madhukar Vishnu Ghatnekar, 1981 Bom CR1010.

See Dulahin v. Basheshar, AIR 1931 PC 24.
Definition of Wills in 94 corpus Juris Secundum, p. 676.

40
be in accordance with the provisions of section 63 of the Indian Succession Act,
1925.

(b) The declaration of intention must be with respect to the testator’s property.
An authority to adopt given by a deceased to his wife to be exercised by her after
her death is not a Will. So also a document appointing a guardian to the minor
son after the death of the testator. 83

There must be a disposition of property under the document. Where a

document called Will by a Hindu testator only gave his wife authority to adopt,
without giving her anything else in his properties, the character of a Will is not
established. There must be disposition of property.84 Where there is no
disposition of the property but a mere appointment of a successor (as a mahant),
it is not a Will.85

Under the Hindu Disposition of Property Act, 1916, the bar of transfer in
favour of unborn person has been lifted subject, however, to the limitation that
the disposition by transfer inter vivos shall be bound by the provisions of Chapter
II of the Transfer of Property Act, 1882 and disposition by Will shall be subject to
the provisions of sections 113, 114, 115 and 116 of the Indian Succession Act,
1925.86

Sirkar Sastri is unable to justify the capacity of a person to deal with his
property after his death. He criticizes the definition of Will under the Indian
Succession Act as tainted with the logical defect of the “Fallacy of mutual
dependence”.87-?

(c) The document should express a desire that his intention must be carried
into effect after his death.88

Shyam Pratap v. Collector of Etawah, (1946) 2 MLJ 235: 59 LW 483 (PC); Bhagyawati v.
General Public, 1994 (1) Hin LR 398 (399) (P&H).
Jagannatha Bheema Deo v. Kunj Behari Deo, 44 Mad 733: AIR 1922 PC 162 (2); Vijaratnam v.
Sudarsanum, 48 Mad 614 (PC); Krishna Rao v. Sundara Rao, 54 Mad 440 (PC).
Ram Nath v. Ram Nagina, 41 Pat 379: AIR 1962 Pat 481 (Kanhiya Singh, J.).
Padmabati Sen v. Prem Chand Sen, (1994) 1 HLR485 (Cal) (DB).
See Hindu Law, 5th Edn., p.824.
2 BI Comm 499; Bhagyawati v. General Public, 1994(1) Hin LR 398 (399) (P&H).
41
 The intention of the testator must be expressed in clear words in order that
“the same might be given effect to.

There must be express words of bequest. However, it might be that a

testator inadvertently omits, to express his intention to make a gift, but there may
be recitals showing that the testator is under the impression that he has made a
disposition in evidence of an intention, in such cases, if the Court is satisfied that
there has been a mistake in carrying out the testator’s intention, the Court may
give effect to such intention if the other provisions of the Will will allow this to be
done89

In one case the deceased wrote, "On my demise my wife shall become
the full (absolute) owner of my entire movable properties according to law,
consequently there is no necessity for any Will in respect of the same also.”
Referring to the above recitals Horwill, J., observed,90 “It is difficult to conceive of
a clearer indication that the deceased did not bequeath his movables under the
document.91

It has been held that oral evidence may be let in to show that the
dispositions were intended to operate only after the death of the maker of deed.92

2. Codicil

Section 2(b) of Indian succession Act defines ‘codicil’. The word is derived
from the roman codicillus, meaning an informal Will.

Section 2(b) states “codicil means an instrument made in relation to a Will

and explaining, altering or adding to its dispositions and shall be deemed to form
part of the Will.

So a codicil has to be executed and attested just as a Will (Vide section

64, Indian succession Act). The date of execution of the Will is irrelevant as the

Krishnamurthi v. Venkataramanappa, 60 LW 567: 39 (Halsbuiy) Article, 1503, (3rd Edn.); Jarman

on Wills, Ch. EX.
60 L.W. 567
Satischandra v. Niladri Nath, AIR 1935 Cal 788.
Sagar Chandra Mondal v. Digambar Mondal, 14 CWN 174.

42
law that will operate on the Will, will be as on the date of the death of the
testator.93

A codicil is similar to a Will and is governed by the same rules as a Will. A

document is called a codicil if it is supplementary to a will by adding, varying or
revoking provisions in the Will. If it is independent of any other deed and is
intended to be exhaustive in itself it is called a Will. “Its nature is not substantive
but adjective.”

A codicil may be endorsed on the original Will itself, or it may be a

separate document. A codicil may stand, even though the Will to which it is
supplementary is revoked.94 It depends on the intention of the testator to be
gathered from circumstances. A codicil is not to disturb the provisions of the Will
any more than is absolutely necessary to give effect to the provisions of the
codicil.

Section 2(b) of Indian Succession Act defines the word ‘codicil’ in the
sense as understood in English Law.

The requirements are: (1) it must be an ‘Instrument’ it cannot be oral; (2) it

can only be in relation to an earlier Will or Wills in existence; it cannot be an
independent document; (3) it explains, alters or adds to the dispositions under
the earlier Will or Wills.

The word ‘shall be deemed to form part of the Will’ only emphasizes the
dependent character of the codicil. The codicil shall be deemed to be part of the
Will only in the matter of explaining, altering or adding to the Will. It must be
noted that the object of the codicil is to explain, alter and add effectively, and it
should not be construed as if by being deemed as to part of the Will, the desired
effect cannot arise.

The language of the codicil may be relied upon for interpreting the Will.95 A
codicil properly attested and executed is entitled to probate, though it refers to an

Ali Raza Khan v. Navazish, AIR 1943 Oudh243 (251(.

Bonis Blackeley, 1 PD 169.
Rameshwar Baksh v. Balraj Kaur, AIR 1932 Oudh 327; Lindon v. Ingram, (1904) 2 Ch. 52.
43
unattested Will.96 Where a probate was obtained for a Will, and afterwards a

codicil is discovered, the question arises whether probate could be granted to the
codicil, or whether the original grant of probate for the Will should be revoked and
a fresh grant must be for both the Will and codicil.

3. Will or Deed- Test

The Privy Council gave the following two reasons for considering a
document to be a Will.

(i) Disposition to take effect after death

A Will takes effect only after the death of the testator. Normally no legal
right can be founded or supported on the basis of a Will of living person.

A disposition of property during the life of the executant is not a Will, it will
be a settlement. The difference between the two kinds of dispositions and
whether a document is the one or the other must be determined by the nature of
the disposition and not by the existence or non-existence of a revocation
clause.97

There is no objection to one part of an instrument operating in praesenti

as a deed and another part in futuro as a Will98.

As Jarman99 explains: '

“The law has not made requisite, to the validity of a Will, that it should
assume any particular form, or be couched in language technically
appropriate to its technical character. It is enough if the instrument,
however irregular in form or artificial in its expression, discloses the
intention of the maker respecting the posthumous destination of his
property; and if this appears to be the nature of its contents, any contrary
title or designation which he may have given to it will be disregarded.”100

Gardiner v. Courthope, 12 PD 14.

Walker v. Gaskil, (1914) p. 192.
Chand Mai v. Lachmi Narain, 22 All 162 (164); Doe Elizabeth Cross v. Arthur Cross, (1846) 8
QB 714.
Volume 1, page 1, 8th Edition.
Whyte v. Pollck, 7 Ac 400 (409).
44
 Instruments in the form of a deed or described as an indenture may be
good Wills if there is a clear posthumous disposition of property. Name, not any
indication - The fact that an instrument is described as a Will and is executed as
such need not make it necessarily testamentary.101

Thus where the instrument creates an immediate right to the property it is

not a Will named as such.102

An instrument described as a sale103, or as a gift104, or even as a trust105,

will operate as Will, and may convey nothing till after the death of the author of
the instrument. Where an instrument is a deed in form there must be something
special in the case to justify its being treated as testamentary.

Though reservation of life interest in the property to the donor somewhat

militates against the document being a Will, yet if the other characteristics of a
Will are there, this reservation will not affect the document. For the primary things
is that the Will is to take effect after the testator’s death which implies that the
testator does retain his interest during his lifetime.106

There can be no Will if it does not deal with property. In Bhuban Moyee v.
ram Kishore,107 a Hindu authorized his wife to adopt and to put the adopted son
into possession of all the properties. The Privy Council held that the document
was not a Will but only an authority to adopt. It cannot be construed a devise of
property.

A will or codicil does not require stamp108, or Registration.109 A transaction

affecting property in the life-time of its author cannot have a testamentary
character.110

Thomcroft v. Lakshman, 31 LJP 150.

Igvatia Barito v. Rego, 31 LW 716: AIR 1933 Mad 492: 64 MLJ 650; Abdul Ghani v. Fakhar, 44
All 301; Thirugnana v. Ponambala, 12 LW 660 (PC): AIR 1921 PC 89.
Govindasami v. Kannammal, 31IC 77.
Venkatachelam v. Govindaswami, AIR 1924 Mad 605.
Garib v. Patia, AIR 1938 Cal 290.
Venkatachalam v. Govindaswami, ADR. 1924 Mad 605; See also Ishri Singh v. Baldeo Singh, 10
Cal 792 (802) (PC).
10 MIA 279 (305,309)
Government of India Notification, dated 24.1.1870 and Madras Revenue Board’s Proceedings 430
of 24.10.1896.
45
 The various circumstances attending this document viz., its being
inscribed on stamp papers, its being registered, the intention to vest in
preaesenti, the several terms therein are all pointers to show that the settlement
was intended as a present one and it was a settlement deed and not a Will.111

It must be remembered that Wills are comparatively new in India, and is

not familiar instrument to the people who prepare it or who sign it.

(ii) Revocability

Revocability is the primary test. If a document is irrevocable then it cannot

be termed as Will. This has been pointed out in Rajammal v. Authiyammal.112

Section 62 - “A Will is liable to be revoked or altered by the maker of it at

any time when he is competent to dispose of his property by Will.”

The essential character of a Will is its revocability. Any clause in a Will,

that the testator cannot revoke the Will, makes it void.113 Lord Coke’s dictum in
Vymore’s case114, postulates:

“If I make testament and my last Will irrevocable, yet I may revoke it, for
my act or my words cannot alter the judgment of the law to make that
irrevocable which is of its own nature revocable.”

There can be no suit for cancellation of a Will either by the testator or any
objector since the Will is liable to be revoked by the unilateral act of the testator
himself.115

4. Instruments which are Testamentary

A person depositing money with a fund filled in a form provided by the

fund, whereby he nominated another as his nominee, i.e., the person entitled to
receive the money after his death. It was held that this amounted to a Will, but

Kodavanti v. Kodavarai, 48 MLJ 425.

Ishri Singh v. Baldeo Singh, 10 Cal 792 (PC).
Duraisami v. Saroja Ammal, AIR 1981 Mad 351 (353, 354).
33 Mad 304; Abdul Ghani v. Fakhar, 44 All 301 (PC).
Sagar Chandra Mondal v. Digambar Mondal, 14 CWN 174 (177).
(1610) 8 Coke 82 (a)
Indian Succession Act. by B. B. Mitra, 1997 Edn., pp. 45-48, Rambhajan v. Gurcharan, 27 All 14.

46
inoperative because it was not duly attested by two witnesses. Further, in order
to enable the nominee to file a suit, a probate thereof must be obtained.116

A nomination paper under the Industrial and Provident Societies Act,

1893, if duly executed may be admitted to probate.117

An instrument to take effect two years after my wife’s death, if she

survives me,

Blank spaces- A Will does not become bad because of blank spaces or
even blank pages.118

It is permissible to ascertain the constituent parts of a Will by oral

evidence of surrounding circumstances.119

The form of document, provided that it is of a testamentary character, is

immaterial.120

When a document is duly executed and attested in accordance with the

Statute, there is no reason why it could not be treated as a Will. It may be in the
form of a deed of gift.121

5. Instruments which are not Testamentary

A mere, permission to adopt is not testamentary though it recites that the

object of the adoption was for the performance of the pious duties and that the
adopted son shall succeed to the property.122

(i) Permission to adopt

A gift to take effect in praesenti even during the life of the donor is a deed
or settlement and not a Will.123

Nana Tawker v. Bhawanee, 43 Mad 728; Venkatarama Iyer v. Sundarambal, AIR 1940 Bom 400;
Towers v. Hogn, (1889) 23 Legal Representatives Ir 53; Williams (in re©, (1917) 1 Ch 1; Ma Nu
v. MaGun, 2R388.
In the goods of Baxter, (1903) p. 12; se Jarman on Wills, 8th Edn., pp. 35-36.
Theobald on Wills, 11th Edn., p. 42
Gould v. Lakes, (1880) 6 PD 1.
Chaitanya Govinda Pujari v. Dayal Govind, 32 Cal 1082.
Udai Raj Singh v. Bhagwan baksh, 32 All 227 (PC); Ishri Singh v. Baldeo, 10 Cal 792 (PC).
Bhabun Moyee’s case, 10 Mia 279 (281).
Rambha v. Lakshman, 5 Bom 630.
47
(ii) intent to Take effect in Praesenti

The intention must be that it shall not take effect till the settler’s death.124

An appointment of a successor by a mahant or Shebait is not a Will.125

A partition deed executed by a Hindu father to take effect in praesenti is

not a Will.126

A document may be testamentary only in part.127

Though it is permissible to presume that where one part of an instrument

is testamentary in character, the rest also is testamentary, yet there is no legal
objection to one part of an instrument operating in praesenti, when the other
party operates as a Will in futuro.128

6. No Delegation of Testamentary power

It is a cardinal rule of most systems that a man may not delegate his
testamentary power. The law gives the right only to the owner of an estate to
dispose of the same by Will. He cannot in effect empower his executors to say
what persons or objects are to be beneficiaries.129

(i) Animus Testandi

Again a person may produce an instrument in compliance with all the legal
requirements of a valid Will, yet it may fail to take effect as a Will because of the
absence of animus testandi, i.e., without any intention that it should affect the
disposition of his property after his death. “If the fact is plainly and conclusively
made out that the paper which appears to be the record of a testamentary act
was in reality the offspring of a jest, or the result of a contrivance to effect some

Anzioni (in re:), (1930) 1 Ch 407; see Theobald on Wills, 14th edn., p. 24.
Bhagaban Ramanuj Dass v. Ragunandha, 22 Cal 843 (PC); Chaitanya Gobinda Pujari v. Dayal
Gobind, 32 Cal 1082.
Brijraj v. Sheodan, 35 All 337.
Baisnao v. KishoreDass, 15 CWN 1014.
Chand Mai v. Lachmi Narain, 22 All 162; Anzioni (in re:), (1930) 1 Ch. 407.
Chichester Diocesan Fund v. Simpson, (1944) AC 341 (371).
48
collateral object, and never seriously intended as disposition of property, it is not
reasonable that the court should turn it into an effective instrument.130

(ii) Burden of Proof

In order to dislodge the claim on the basis of intestacy, the propounder of

a Will must prove the following:

(1) Due and valid execution of the Will.

(2) That the Will was signed by the testator at the relevant time while
he was in a sound and disposing state of mind, after understanding
the nature and effect of the disposition, and of his own freewill.

(3) That any suspicious circumstances surrounding the Will could be

person alleging it. That person must prove that the Will (or such part of it as he
alleges to be invalid) was made as a result of the undue influence or fraud of
another person. It is not sufficient merely to show that the circumstance attending
the execution of the Will were consistent with its having been obtained by undue
influence, or that another person had the power unduly to overbear the Will of the
testator. No presumption of undue influence arises from the existence of a
confidential relationship between a donee and a testator.”

The law is settled in India that the onus probandi lies on the person who
propounds the Will. This onus gets discharged once there is proof let in as to the
mental capacity of the testator and as to due execution of the Will as required
under law; once this is done, the court Will assume that the testator had
knowledge of the contents of the Will. If suspicious circumstances are there to
throw a cloud on the due execution, it is then for the propounder to remove such

130
Lister v. Smith, (1865) 3 SW and Tr 282.
131
Behramji v. Rustomji, 1960 MPLJ 146.
132 14th Edn., p. 40.

49
 suspicion and to prove affirmatively that the testator knew and approved of the
contents of the document.133

Mere fiduciary relationship of the beneficiary to the testator is not enough

to prove undue influence. There should be positive proof that he did exercise his
—power- to overbear the will of the testator.134

IV. KINDS OF WILLS

A brief description of various types of Wills is given but with a caution that
its nature and characteristics remain intact that the will of the testator is in place
of a law.

1. Conditional or Contingent wills

A Will may be so made as to take effect only on a contingency.135

(i) Condition Different from Motive

The operation of the document may be postponed till after the death of the
testator’s wife.136 It may be conditioned on the testator not returning from a
voyage or military expedition he might have undertaken.

The leading case on this subject is Spratt (in re:).137 In that case the
testator wrote a Will as follows: “Being obliged to join my regiment in China, I
leave this paper containing my wishes. Should anything unfortunate happen to
me whilst abroad, I wish everything that I may be in possession of at that time, or
anything appertaining hereafter, to be divided.” The English Court of Probate
held that the said Will was a conditional Will and would come into operation only
on the testator dying while absent from England. Sir F.H. Jeune observed: “The
difficulty which arises in determining the intention of the testator as expressed in
his Will, is that an ambiguity is caused by the language which renders it doubtful
whether the testator meant to refer to a possible event as his reason for making a

133 Gomti Bai (Mst.) v. Kanchhedilal, AIR 1949 PC 272.

134 Craig v. Lamoureux, LR 1920 AC 349.
135 Theobald on Wills, 14th Edn., p. 26: Jarman on Wills, p. 39; Gavier (in re:), (1950), p. 137.
136 Rajeshwar v. Sukhdeo, AIR 1947 Pat 449.
137 (1897) p. 28: 66 LIP 25: 75 LT 518.

50
Will, or at limiting the operation of the Will made. If the Will is clearly expressed to
take effect only on the happening or not happening of event, it is conditional. If
the testator says in effect that he is led to make his Will by reason of the
uncertainty of life in general or for some special reason, it is not conditional. But if
it is not clear whether the words used import a reason for making Will or
impresses a conditional character on it, the whole language of the document and
also the surrounding circumstances must be considered. In such cases there are
two criteria which are specially useful for determining the problem; first, whether
the nature of the disposition made appears to have relation to the time or
circumstances of the contingency; and secondly, whether the contingency is
connected with a period of danger to the testator, whether it is coincident with
that period; because if it is, there is ground to suppose that the danger was
regarded by the testator only as a reason for making the Will, but if it is not, it is
difficult to see the object of referring to a particular period unless it is to limit the
operation of the Will.138

The case whether the contingency was of the former kind, i.e., as reason
for making the Will, is illustrated by Jagannatha v. Rambharosa.139

In that case, the opening words of the Will were as follows: “I am going to
Delhi for Darbar, therefore, I am writing the following conditions about my
property. I hope that by the Grace of God such an occasion will not arise, but
strange is the course of time.” The testator returned after visiting the Darbar.
Their Lordships of the judicial Committee held that the Will was not a conditional
Will and observed as follows:

“The testator’s contemplated journey was, no doubt, the occasion, and

was probably the reason of his making the Will, but there is, in their Lordships
opinion, nothing in the words used by him to indicate that the Will was to cease
automatically to be operative on his return. He may quite possibly have had it in
his mind that the Will might require revision after his return, but that would not

See Jarman on Wills, 8th Edn., p. 40.

Jagannatha Rao Dani v. Rambharosa, AIR 1933 PC 33: 64 MLJ 142 (PC).

51
make it contingent, the intention in such as case would almost certainly be that it
was to remain operative until a new Will was made.”

The above opinion of the Judicial Committee is quite in line with the
conclusions arrived in the Spratt’s case140 to which:

“The result of the cases appears to be that if the Will is made dependent
on the contingency occurring, its validity Will depend on the happening of the
contingent event, but if the contemplated possible event is merely the reason for
the making of the Will it be valid and effectual in any event.”

An example of a contingent Will is furnished in Parsons v. Lance141 where

a person proceeding to Ireland made the following devise: “If I died before my
return from my journey to Ireland then my house and land at F should be sold
after my death...... “The testator after his trip to Ireland did return to England,
lived many years and died. It was held the Will was void as the contingent event
of his return to England did happen.”

Where the operation of a Will is made dependant on the testator’s son

predeceasing the testator, the Will would be contingent Will.142

A testator may make a Will subject to a condition, that, if the condition

does not happen it will be inoperative. Thus where a husband and wife jointly
make a holograph to take effect in the event of both dying simultaneously by
some war-time mischance, the wife died a natural death and the husband
survived, it was held that the document was inoperative as a Will.143

A Will may be conditional on the obtaining of the consent of another

144
person.

• Conditional and contingent Wills: Distinguished

It needs to be understood that all “conditions” and ’’contingents” convey

almost the same sense with a distinction that the word “contingent” has reference

140 (1897) p. 28,35:75 LT 518: 66 LJP 25

141 1 Ves Sen 190.
142 Abhoy Charan Das Mazumdar v. Raimya Devi, AIR 1982 Gau 94.
143 Govier (in re:), (1950), p. 237.
144 B. Smith (in re:), (1869) 1 P&D 717; Theobald on Wills, 14th Edn., p. 27.

52
to the happening of an event, whereas the word ‘condition’ refers to the doing or
forbearance from the doing of an act.145

2. Joint Wills

Two or more persons may make a joint Will. It will take effect as if each
has properly executed a Will as regards his own property. If the Will is joint and is
intended to take effect after the death of both, it will not be admitted to probate
during the life-time of either. Joint Wills are revocable at any time by either during
the joint lives, or after the death of one, by the survivor.146

Lord Halsbury simply sums up the position as to joint Wills thus:147

“A joint Will is a Will made by two or more testators contained in a single

document, duly executed by two or more testators contained in a single
document, duly executed by each or testator and disposing either of their
separate properties, or of their joint property. It is not however recognized in
English law as single Will. It is in effect two or more Wills; it operates on the
death of each testator as his will disposing of his own separate property on the
death of the survivor, if no fresh Will has been made, it is admitted to probate on
the disposition of the property of the survivor.”

Halsbury further contrasts a joint Will with what are known as Mutual Wills.

He states148 “Wills are mutual when the testators confer upon each other
reciprocal benefits and there may be absolute benefits in each other’s property,
or there may be life interest, with the same ultimate disposition of each estate on
the death of the survivor.”

Joint Wills are recognized in India also.

The validity of joint Wills has been recognized in Meenakshi Ammal v.

Viswanatha Iyer.149

Indian Successsion Act, B.B. Mitra, 1997, pp. 65-68.

Jarman on Wills, 8th Edn., p 41; Theobald on Wills, 14th Edn., p. 27.
50 Halsbury, 4th Edn., para 207.
50 Halsbury, 4th Edn., para 208.
33 Mad 406, Jethabhai v. Parshotam, 45 Bom 987; Rajeshwar v. Sukhdeo, AIR 1947 Pat 449.

53
 Where there are separate provisions in a joint Will regarding the
devolution of the properties of each of the testator, the Will operates according to
the intention expressed in the Will, not by attaching importance to isolated
expressions but by reading the Will, as a whole with all its provisions and
ignoring none of them as redundant or contradictory.150

3. Mutual Wills

Two persons may agree to make mutual Wills, i.e., to confer upon each
other reciprocal benefits.151 A Will is mutual when two testators confer upon each
other reciprocal benefits as by either of them constituting the other his legatee;
that is to say, when the executants fill the roles of both testator and legatee
towards each other. But where the legatees are distinct from the testators, there
can be no question of a mutual Will. They would remain revocable during the
joint lives by either. However, previous notice to the other party must be given as
to enable him also to alter the Will.152

Revocation is possible even after the death of either.153 However, when

the survivor had obtained a benefit, a claim against the estate Will lie.154

Jarman points out that the “mutual Wills” recognized in England are those
where two persons make a Will by which each leaves all his property to the
other. Generally a husband and wife together make Wills each giving all his or
her property to the other. In such cases the survivor can revoke or alter his or her
Will. The circumstances that the surviving spouse has taken a benefit do not
stand in the way of the exercise of the power to revoke.155

Lord Halsbury points156 that in order to render mutual Wills irrevocable two
conditions must be concurrently satisfied, i.e. (1) the surviving testator must have
received under the mutual Will certain benefits from the deceased; (2) there

Raman v. Rasalamma, AIR 1970 SC 1759: (1970) 2 SCR 471 (Ramaswami, J.).
50 Halsbury, 4th Edn., para 208.
Stone v. Hoskins, (1905) LRProb DN 194: 1905 P 157.
In the estate of Heys, (1914), p. 192.
Green (in re:), (1951) Ch 148; see Theobald on Wilis, 14th Edn., p.28; Jarman on Wills, 8* Edn., p.
41.
In the estate of Heys, (1914), p. 192.
50 Halsbury, 4th Edn., para 221.

54
should be a prior agreement anterior to the execution of the mutual Wills that the
testators will not revoke the mutual Wills. This prior agreement may be proved by
specific mention of it in the mutual Will itself or by evidence outside the Wills.

4. Oral Wills

In view of section 57(c), Indian Succession Act, 1925, no oral Will can be
legally made even by Hindus.157 At present, even Wills by Hindus must be in

writing, signed and attested by two witnesses. Still among Muslims there is a
provision of oral Will, which is recognized as per their personal law.158

Again the privileged Will by soldiers, etc. may be oral a simple declaration
before witnesses. An oral Will however, must be proved by very satisfactory
evidence.

The burden of establishing an oral Will is a heavy one.159 Where

witnesses give almost different versions of the words uttered by the lady testator,
and facts of the case make out that there was no occasion for the lady to make
an oral Will, it was held, oral Will was not proved.160

Mere declaration of a desire to have a written “Will” made is not by itself

enough to operate as oral Will. It must be proved with the utmost precision and
with every circumstance of time and place.161

The Privy Council made it clear that oral Will must be strictly proved. Thus
in Beer Pertab V. Maharajah Rajendra Pratap162 it was postulated by that court “If

any party is bound to strictness of pleading it is he who sets up a nuncupative

Will. He, who rests his title on so uncertain a foundation as the spoken words of a
man, since deceased, is bound to allege as well as to prove, with the utmost
precision the words on which he relies with every circumstances of time and
place.

157 See Diwanchand v. Beliram, (1940) 42 Punj LR 526.

158 Aminooddowlah v. Roshun Ali, 5 MIA 199; Will of Haji Md. Abbas (in re:), 24 Bom 8.
159 Ganesh Prasad v. Hazari Lai, AIR 1942 All 201.
160 Shantilalv. Mohan Lai, AIR 1986 J&K 61.
161 Venkat Rao v. Namdeo, AIR 1931 PC 285; Baboo Beer Pratab Sahu v. Maharaja Rajendra Pratab
Sahu, (1867) 12 MIA 1:9 WR 15 (PC).
162 (1867) 12 MIA 1 (28); see also Kallu v. Ganesh, AIR 1929 All 348; Mahabir Prasad v. Mustafa
Husain, AIR 1937 PC 174.
55
 Strict proof is required to show that the testator really wanted to make a
Will.163 A deaf or dumb person who cannot speak can make a will by signs.

5. Sham Wills

The general principle is that animus testandi is essential to the validity of a

Will. It, therefore, follows that a document may be deliberately executed with all
due formalities purporting to be a Will, still it will be nullity if it can be shown that
the testator did not intend it to have any testamentary operation, but was to have
only some collateral object, e.g. to be shown to another person to induce him to
comply with the testator’s wish or the like.164

6. Holograph or Olograph Wills

A holograph is a Will entirely in the handwriting of the testator. Naturally

there is a greater guarantee of genuineness attached to such a Wiil. But in order
to be valid it must also satisfy all the statuary requirements as per provision
enumerated in Indian Succession Act, 1925.

7. Concurrent and Duplicate Wills

The general rule is that a man can leave only one Will at the time of his
death. But for the sake of convenience a testator may dispose of some
properties, e.g. those in one country, by one Will and those in another country by
another Will. They may be treated as wholly independent of each other, unless
there is any inter-connection or the incorporation of the one in the other.

Likewise, a testator, for the sake of safety, may make a Will in duplicate,
the one to be kept by him and the other deposited in some safe custody with a
bank or executor or trustee. Each copy must be duly signed and attested in order
to be valid. A valid revocation of the original would affect a valid revocation of the
duplicate also.165

Mahabir Prasad v. Mustafa, AIR 1937 PC 174; Mohd. Izhar Fatima v. Mohd. Ansar, AIR 1939 All
348.
Lister v. Smith, 33 LJ Pr. 29.
Law of Wills by Gopalakrishnan, 7* Edn. pp. 265-67.

56
V. WHO CAN MAKE A WILL

It speaks of capacity and requirements of a person to make a Will. In this

regard section 11 of the Indain Contract Act, 1872 says:—

“Every person is competent to contract who is of the age of majority

according to the law to which he is subject, and who is of sound mind, and is not
disqualified from contracting by any law to which he is subject”, so section 11 of
the Contract Act lays emphasis on four aspects:—

(i) Age of majority (minor).

(ii) According to law to which he is subject.

(iii) Sound mind.

(iv) Not disqualified from contracting by any law to which he is subject.

These four aspects also reflect in section 59 of the Succession Act, 1925.
The age of majority is governed by the provisions of the section 3 of the Indian
Majority Act, 1875, which deals with regard to age of majority of persons
domiciled in India. As regards, “According to the law to which he is subject”
means that for the purpose of determining majority of the person, if there is
difference between the Indian Majority Act, 1875 and those of the law to which
the person concerned is subject, the provisions of the latter law will prevail and
override those of the Indian Majority Act as per section 2 of the Majority Act.
“Sound mind” is governed by section 12 of the Contract Act, 1872 stating:

“At the time when he makes it, he is capable of understanding it, and of
forming a rational judgment as to its effect upon his interests” and lastly, he
should not be disqualified by any law to which he is subject.

The same analogy applies to the law of Wills as it is based on two

principles:

(i) The person must be mature enough to know the consequences of the act
he intends to do

(ii) He should be capable of distinguishing between right and wrong.

57
 Section 7 of the English Wills Act, 1837 also of the same view which
states that: “No Will of a person under age valid and no Will made by any person
under the age of eighteen years shall be valid.”166

Section 59 of the Indian Succession Act, 1925, which stipulates the

capabilities a person should possess for the purpose of making Will states that:-

“Every person of sound mind not being a minor may dispose of his
property by Will.”

Explanation 1.—A married woman may dispose, by Will of any property,

which she could alienate by her own act during her life.

Explanation 2.—Persons who are deaf or dumb or blind are not thereby
incapacitated for making a Will if they are able to know what they do by it.

Explanation 3.—A person who is ordinarily insane may make a Will during
an interval while he is of sound mind.

Explanation 4.—No person can make a Will while he is in such a state of

mind, whether arising from intoxication or from illness or from any other cause
that he does not know what he is doing.

1. Majority

Section 59 expressly states that only a person not being a minor may
dispose of his property by Will. ‘Minor’ is defined in section 2(e) of the Indian
Succession Act, 1925 as “minor means any person subject to the Indian Majority
Act, 1875, who has not attained his majority within the meaning of that Act, and
any other person who has not completed the age of eighteen years, and minority
means the status of such person.”

Section 3 of the Indian Majority Act declares that a person shall be

deemed to have attained majority when he shall have completed the age
eighteen years. In the case, however, of a minor of whose person or property a
guardian has been appointed, or of whose property the superintendence has
been assumed by a Court of Wards under the Indian Guardian and Wards Act,

166
See section 7 and 8, English Wills Act, 1837.
58
1890, the Act provides that the age of majority shall be deemed to have been
attained on the minor completing the age of twenty one years.

The Indian Majority Act, 1875 extends to whole of India (sec. 1), and
applies to every person domiciled in India (sec. 3).167 A Will executed by a minor
is void and ineffective on that account. He is in law Incapable of knowing what he
is doing.168

An exception.— Though a minor cannot execute a Will disposing of his

property (under section 59 of the Indian Succession Act) even a minor is enabled
to appoint a testamentary guardian to his minor child [section 60.]

No doubt, section 60 is not made applicable to Hindus. But a Hindu has

got the power to appoint a testamentary guardian to his child under section 9 of
the Hindu Minority and Guardianship Act, 1956. The qualification for a Hindu
father to so appoint a testamentary guardian is that he, the father, must be
entitled to act as the natural guardian of his minor child. Naturally, if the father
himself is a minor he will not be competent to act as the natural guardian and so
he cannot appoint a testamentary guardian.

• Testamentary Guardian and their powers

The right of a Hindu father to appoint a testamentary guardian of his minor

children and the powers of such guardian under Hindu law as hitherto applied.
The rights of such testamentary guardian under that law as interpreted by the
courts, were comparatively very wide. The testamemtary guardian could deal
with the minor’s property, subject only to such restrictions as were imposed by
the Will. In the absence of any such restrictions, the exercised powers are similar
to those of a natural guardian. The testamentary guardian could, therefore, in the
absence of any restrictions in the Will, mortgage, sell or otherwise dispose of the
immovable property of the minor, even without the sanction of the court, provided
the alienation or any other dealing with such property by the guardian was for the
benefit of the minor’s estate. The powers of testamentary guardian under the
Indian Guardians and Wards Act, 1890, are only subject to the restrictions

157 Mulla’s Principle of Mohammedan Law; by M. Hidayatullah, 19th Edn., 2004, p. 100.
168 Gnaanaprakasam v. Panasakthi, AIR 1941 Mad 179: 52 LW 440.

59
imposed by the Will, unless he is also declared to be a guardian by an order of
the court (section 28).

In a case,169 the court examined the relative jurisdictions under the

present section 9 of Hindu Minority and Guardianship Act, 1956, and section 7 of
the Guardians and Wards Act, 1890, and expressed the view that they are not
inconsistent and that they operated in different fields.

Section 9 of Hindu Minority and Guardianship Act, 1956, brings some

important changes in the law relating to testamentary guardians of a Hindu
minor. The right of a Hindu father to appoint, by Will, a guardian of the person as
well as the property of his minor is reiterated in sub-section (1). The position
affecting the undivided interest of the minor in joint family property is different and
no testamentary guardian can be appointed by the father of any such interest of
his minor children (s. 12). Sub-section (2), (3) and (4) of the present section,
relate to the rights of the mother to appoint a testamentary guardian of a minor
child, which states that a Hindu widow is entitled to act as natural guardian of her
minor legitimate children and may, by Will, appoint a guardian in respect of
minor’s person or in respect of the minor’s property (except undivided interest in
the joint family property) and also empowers a Hindu mother to act as the
natural guardian of her minor illegitimate children and may by Will appoint a
guardian in respect of the minor’s person or minor’s property or for both. Sub­
section (5) is the vital clause in this section and materially affects the rights of a
testamentary guardian of a Hindu minor as previously recognized under Hindu
law and s. 28 of the Guardians and Wards Act. Under the law as previously
applied in case of testamentary guardians, the view was taken that the
testamentary guardian derived his powers of management not only from the Will
of the father but also from the principle of Hindu law enunciated by the Privy
Council in case and several other later cases.170 It was held in cases under this
head that where the Will did not impose further restrictions or limitations on the
exercise of this power in the matter of the disposal of the immovable property

Shoba v. Janki, AIR, 1987, MP 145.

Re: Hanuman Prasad Pandey, 6 MIA 393, Ramanathan v. Palaniappa AIR 1939 Mad. 531.

60
belonging to the minor, the testamentary guardian could alienate such property in
case of need or for the benfit of the minor’s estate. However, the power of a
testamentary guardian is now controlled by the restrictions imposed by sec. 8(2),
which requires the previous permission of the court inter alia for sale of any
immovable property of the minor.171 As per sub-section (6), the rights of a
testamentary guardian of a minor girl cease on her marriage. After marriage, her
husband becomes her natural guardian.

• Incapacity of a Minor to act as Guardian

The section 10 of the Hindu Minority and Guardianship Act, 1956, lays
down in express terms that a minor, that is a person who has not completed the
age of 18 years, is incompetent to act as guardian of the property of any minor. It
supersedes to a large extent the rule laid down in s. 21 of the Guardians and
Wards Act, 1890, which recognizes the right of a minor to act as the guardian of
the property of his minor is competent to be the ‘managing member of an
undivided Hindu family* and that he is, as such manager, competent to be the
guardian of the minor wife or child of another minor member of that family. It was
observed in a decision of the Madras High Court172:

"It does seem anomalous that a minor could be the guardian of the person
of his wife and children, that is entitled to the custody of their persons and the
management of their properties while his own person is subject to the custody of
the legal guardian of his person and his properties are under the management of
the legal guardian of his properties.”

It was suggested in that case that the right of a minor to act as a guardian
should be confined to his wife and child, to the control of their persons and he
should have no power to interfere with the management of their properties. A
Hindu minor, therefore, now has no capacity to act as the guardian of the
property of any person. He can only act as the natural guardian of the person of
his minor’s wife and children.

Doraiswamy v. Balasubramaniam, AIR, 1977 Mad., 304.

Mulla’s Principle of Hindu Law, S.A. Desai, Vol. II, 20th Edn., pp. 520-24.

61
 • Hindu minor

It is not enough that a Hindu is a major according to Hindu law The Indian
Majority Act has repealed Hindu law except for marriage, adoption, dower or
divorce. A Will executed by a Hindu who has not attained majority under the
Indian Majority Act is not valid.173

When a Will is attacked on the ground of majority of the testator, the

burden lies on the propounder of the Will to prove that the testator was a
major. 174

2. Unsoundness of Mind

The question of sanity is a question of fact. There is no presumption that a

testator is sane till the contrary is shown.175

The test of sanity and insanity was explained by Sir John Nichol in an
early English case.176 “Whenever a person conceives something extravagant to
exist, and wherever having so conceived he is incapable of being or at least of
becoming permanently reasoned out of that conception, such a person may be
said to be under a delusion in a peculiar half technical sense; the presence or
absence of such delusion is the true and only test or criterion of presence or
absence of insanity.”177

The testator in this case was labouring under various forms of mental
perversion. He exhibited unusually unnatural animosity to his child and totally
executed it from his Will. The Court held it was a dear case of mental delusion
having beliefs of fact which any ordinary person would not credit, or which one
cannot understand how any person in his senses could hold.178

Bai Gulab v. Pranjivandas, 36 Bom 622; Kuram Krishama Chariar v. Veeraralli Krishanama
Chariar, 39 Mad 166.
Rajendra v. Ramjowai Shah, AIR 1924 Lah 541.
See, however, Ganpat Rao v. Vasant Rao, AIR 1932 Bom 588 (Law Presumes sanity).
Dew v. Clark, (1928) 3 Add 79.
See Jarman on Wills, 8th Edn., p. 53; Theobald on Wills, 14th Edn., p. 30.
See Also Boughton v. Knight, LR 3 P&D 64.

62
 If there has been an inquisition declaring a man a lunatic, prima facie he is
disqualified during the whole period. However, proof that the execution of the Will
occurred during lucid interval is not precluded.179

There may be lucid intervals in an insane person at which time he can

effect a Will. It must be proved that he was then in a sound disposing state of
mind. A lucid interval connotes “not cooler moment, an abatement of pain or
violence, or of a higher state of torture, but an interval in which the mind having
thrown of the disease has recovered its general habits.”180 In this state of lucid

interval there must be clear absence of delusions and the mind must be perfect
and sound on all subjects.181 In the above case the executant of the Will had

been once in a lunatic asylum but thirty years thereafter when he made the
device there was no indication that he was at all insane. The Will was upheld as
valid.

Lord Haldane stated the position thus in Sivewright v. Sivewright’s

Trustee:182

"The question whether there is such unsoundness as renders it impossible

to make a testamentary disposition is one of degree. A testator must be able to
exercise a rational appreciation of what he is doing. He must understand the
nature of his act... If his act is the outcome of a delusion so irrational that it is not
to be taken as that of one having appreciated what he was doing sufficiently to
make his action in the particular case, that of a mind sane on the question, the
Will stands. But in that case, if the testator is not generally insane, the Will must
be shown to be the outcome of the special delusion.”

In Battan Singh v. Amichand,183 the testator was in the last stage of

consumption and was so weak as to be in a dazed sort of mind. So the statement

in the Will that he had no relations anywhere, which is a palpably untrue
statement, made the Privy Council conclude that the testator was clearly of

179 In Re., Marshall, (1920) 1 Ch 284; Jarman on Wills 8th Edn., p. 52, see Explanation 3 to section
59.
180 Attorney-General v. Pamther, (1792) 3 Bro GC 444.
181 ASnwar v. Secretary of State, ILR 31 Cal 885 (894).
182 (1920) HLC 63 (Lord Dunedin and Buckmaster concurring).
183 AIR 1948 PC 200 (202-030: 61 LW 428 (PC): 1948 AC 161: (1948) 1 MLJ 232.

63
unsound mind at the time of the alleged execution of the Will. The Will was
declared invalid.

The party who wants to take advantage of the fact of interval of reason
must prove it.184 The question of soundness of mind is a dominant question in a
Court of Probate. Numerous decisions of high authorities have laid down from
time to time tests, by which to judge a sound disposing mind. It is not an absurd
test. Nor is it the test of a perfectly healthy and perfect mind. Indeed most of the
Wills are not made by persons young and vigorous and glowing health. In V.
Sarda v. V.K. Narayana Menon,185 there was a joint Will comprising three Wills
executed by the testators in a single document. It was held that the entire Will
could not be declared invalid as properties of the insane testator could be
separated without affecting the other part of the Will. The test of a sound
disposing mind is in law a workable test. It means in plain language an
appreciation of the contents of that Will and an appreciation of the nature of
disposition that he is making having regard to the claims of affection and family
relationship and the claims of the society or community to which he belongs. It is
neither a hypothetical nor an impractical test. It is not the test of a psychologist or
a psycho-analyst or a psychiatrist who in the modern age is prone to consider all
human minds to be inherently unsound by nature and abnormal. Nor is it the too
scientific test which would satisfy the highest technical medical examinations.
Some idea of what this sound disposing mind in testamentary law is, can be
gathered from section 59 of the Succession Act and the statutory Explanations
thereunder.

In Explanation 2 to section 59 to the Succession-Act it is expressly stated

that persons who are deaf or dumb or blind are not thereby incapacitated for
making a Will if they are able to know what they do about it.

However, cases on sound state of mind are not always helpful except for
the general principles they laid down. A Will by a testatrix was held valid even
though she was incapable of speaking or writing owing to an apoplectic stroke

184 Cartwright v. Cartwright, 1 Phillow 100; Jarman on Wills, 8 Edn., p. 53.

185 AIR 1989 Ker 155, Also refer Annual Survey of Indian Laws, 1989.

64
and assented only by nods of her head and pressures on the head and made a
mark with a pen in lieu of signature. The medical evidence showed that she was
unconscious, paralysed or her right side, devoid of power of speech.186

It must be shown that the mind was then perfect and sound on all subjects
with complete absence of delusion.187

There can be other factors that can constitute unsoundness of mind like
“imbecility of mind”, “idiocy”, “weakness of mind”, ‘delusion’, “acute
sickness”“serious infirmity of body” etc., which cast suspicion as to the capacity
to make a Will. In such case the burden of proof lies on the propounder. He is to
prove that these factors have not affected his mental faculties and that he was
having a sound disposing state of mind. The Will shall be valid if suspicious
circumstances surrounding the Will are not proved (AIR 1978 SC 1203).

® Delusion

Delusion is an erroneous belief in the existence of a state of mind which

does not exist and with no foundation for the belief. Only an insane person would
entertain it. Therefore in order to constitute an insane delusion affecting the
question of testamentary capacity, it must be shown, not only that it was
unfounded, but also that it was so destitute of foundation that no one, save an
insane person, would have entertained it.188

Mere eccentricity of conduct or capricious behaviour does not incapacitate

a man to write a Will.189

The court further refers to the suspicious circumstance of the propounders

taking a prominent part in the execution of the Will which also confers on them
substantial benefits so it becomes more necessary to satisfy the test of judicial
conscience (a rather pedantic technical word) that the Will was validly executed
sans all undue influence. So the propounder has to take all the care to prove the

In the Estate of, Holtam, Gillet v. Rogers, (1913) 108 LT 732.

Anwar v. Secretary of State, ILR 31 Cal 885, Surendra Pal v. Dr. (Mrs.) Saraswati Arora, AIR
1974 SC 1999: (1974) 2 SCR 687, Totaram Maharu v. Ramabai, AIR 1976 Bom 315: (1977) 79
Bom LR 870, AnathNath Das v. Sm. Bijali Bala Mondal, AIR 1982 Cal 236.
Sajid Ali v. Ibad Ali, 23 Cal 1 (PC)>
Suradhani v. Rajah Jagat Kishore, AIR 1939 Cal 373.

65
Will on the principles enundated in sections 67 and 68 of the Evidence Act read
with sections 59 and 63 of the Indian Succession Act.190

Sometimes the Will may be unnatural and unreasonable e.g., no provision

made for a child more so when the child is helpless or affected by disease. The
suspicion aroused by this coupled with a provision in the Will for a remote
relation or stranger has to be properly explained. The court will be alert in such
circumstances in looking for the presence of some improper influence that
wrapped the judgment of the testator. So the onus is more heavily on the
propounder to satisfy the court in such regards.191

• Imbecility of Mind

The combination of circumstances such as age, disease, mental and

physical weakness, and above all, an unnatural Will to the extent that minor
childrens of tender years are left absolutely unprovided for, and comparatively
remote relations, like a nephew and niece become recipients of the bounty, raise
a presumption of undue influence.192 But mere old age of the testator, 90 years in
instant case, does not lead to an inference that the testator had no capacity to
execute the Will, in the absence of medical evidence to the effect.193

Imbecility arising from advanced age or caused by illness may destroy

testamentary capacity.194

The burden of proving that the Will was executed when the testator was
free and capable is initially on the propounder of the Will.195

However, when the testator is shown to be in his normal state of mind and
body and he duly executed the Will, it may be presumed that the Will was

Rajeshwari Rani Pathak v. Nirja Guleri, AIR 1977 P&H 123 (126).
Kamala Devi v. Kishori Lai Labhu Ram, AIR 1962 Punj 196 (199).
Kamla Devi v. Kishor Lai, AIR 1962 Punj 196 (2000).
Ram Nath Das v. Ram Nagina Chaubey, AIR 1962 Pat 481 (483).
Abhay Charan Das Mazumdar v.Rraimya Devi, AIR 1982 Gau 94.
Barry v. Butlin, (1838) 2 Moo PC 480, Muniyuallappa v. Venkatarama, 28 Mays LJ 124; R.
Kameswara Rao v. Suryaprakdkash Rao, AIR 1962 AP 178.

66
executed when in his normal state of mind and body. The rule is the same
whether the question arises in probate proceedings or in a regular suit.196

A person who sets up a Will is under a duty to satisfy the court that it is the
will of a competent testator.197

A person may cease to be in his normal state of mind for various reasons.
In Jodh Singh v. Union of India,198 the Supreme Court held:

“..........where a certain benefit is admissible on account of status and a

status that is acquired on the happening of certain event, namely, on becoming a
widow on the death of the husband, such pension by no stretch of imagination
could form part of the estate of the deceased... it could never be the subject-
matter of testamentary disposition.... special family pension is payable to the
widow on the death of the officer.... Therefore, it is unquestionably established
that spedal family pension sanctioned to the widow of an officer of the Indian Air
Force by the President of India under Rule 74 (of the Pension Regulations for
Indian Air Force) could not be subject-matter of testamentary disposition.

Further whether a gratuity specialty sanctioned in favour of the widow of

the deceased by the President under the Rules could be the subject-matter of
testamentary disposition has not been considered in this matter because that
amount has been included in the Probate of the Will the deceased and the widow
had not questioned that order before us.”

® Moral Insanity

Moral insanity or mere eccentricity of habits or perversion of feelings and

conduct is not such as to constitute legal incapacity.

A distinction is made between general insanity and partial insanity. In the

case of a generally insane person, he has capacity to execute a Will during lucid
intervals.199

Gnanaprakasam v. Parasakthi, AIR 1941 Mad 17: 52 LW 440; Kunam Krishnamachariar v.

Veeravelli Krishanama Chariar, 39 Mad 166; JARMAN ON Wills, 8th Edn., p 50.
Harmes v. Hinkson, (1946) 62 TLR 445.
Joh Singh v. Union of India (UOI), 1980 (4) SCC 306 (310); AIR 1980 SC 2081: 1980 Lab IC
1275:1980 (41) FLR 347: 1981 (1)LLN75.
67
 As regards partial insanity, Lord Brougham in the above case said that it is
incorrect to speak of partial insanity. A mind not sound on one subject could not
be called sound on any other. So testamentary incapacity is the necessary
consequence, however, unconnected may be the subject on which the
unsoundness is manifested and the disposition is in question.200

• Weakness of Mind

Similarly, under Explanation 4 of section 59 to the Succession Act, no

person can make a V\/ill while he is in such a state of mind whether arising from
intoxication or from illness or from any other cause that he does not know what
he is doing.

The Illustrations to section 59, indian Succession Act, 1925, make it clear
that a mere perception of what is going on in the immediate neighbourhood and
an ability to answer familiar questions but without competent understanding as to
the nature of his property or the persons who are kindred to him or in whose
favour it would be proper that he should make his Will, will not be sufficient proof
of a sound mind within the meaning of the section. The statutory Explanations
are not intended to be exhaustive but they give practice I illustrations to explain a
sound disposing mind.201

• General Weakness of Mind

Under Explanations 4 to section 59, a person rendered incapable of

knowing what he is doing on account of his weak state of mind, whether arising
from intoxication or from illness, or from any other cause, cannot make a Will.

When there is a general weakness of the mind, as a consequence, the

person becomes incapable of knowing what he is doing.

The weakness of mind may result from sickness. A man may become very
feeble and debilitated and may indeed be at the point of death. Still before his
death, a man may continue to answer familiar and usual questions. That

Waring v. Waring, 6 Moo PC 341.

Smith v. Tebbitt, LR 1 P and M 398.
A.E.G. Carapiet v. A.Y. Derderian, AIR 1961 Cal 359.
68
condition of his mind would not justify the inference that he is capable of knowing
what he is doing. He must be able to exercise a competent understanding as to
the general nature of his property, the state of his family, the claims of the
various relations to his bounty. Then only he can make a Will.202

Where a testator was in a state of health which had affected his memory
and rendered him incapable of managing his estates, he cannot on that account
alone be said to have become incapable of considering what dispositions of his
property he should make in favour of members of his family or that he did not
understand the disposition which in fact he made.203

The testator, however, might become so enfeebled by disease as to be

without sound mind or memory and while under a delusion as to the existence of
his nephews he disposes of his properties to strangers, the Will is invalid.204

3. Deaf, Dumb and Blind Persons

The incapacity to comprehend the nature of testamentary disposition may

arise as a result of congenital deafness and dumbness. A person who has been
from his nativity blind, deaf and dumb is intellectually incapable of making a Will,
as he wants those senses, through which ideas are received into the mind.205

It may be that a blind or deaf man may be capable or shown to understand

what is written especially when such weakness is the result of accidents.206

A person labouring under such natural defects, can make a Will provided
he had the capacity to know what testament means and desires to make one.
There is no legal bar to a deaf and dumb person making a Will. The only criteria
is that the testator is capable of understanding the nature of his acts.207

The Will of a blind person was recognised in Pinchen v. Edwards.208

Esuf Ahmad v. Ismail Ahmad, AIR 1938 Rang 322.

Suryanarayanamurthy v. Suramma, AIR 1947 PC 169: 60 LW 458 (PC).
Battan Singh v. Amichand, AIR 1948 PC 200: 61 LW 428 (PC); see also Harward v. Baker,
(1840) 3 Moo PC 282(290).
Jarman on Wills, 8th Edn., p. 50.
Jarman on Wills, 8th Edn., p. 50.
Kishan Singh v. Nichhattar Sing, AIR 1981 P&H 373.
4 Moo PC 198.
69
 A deaf and dumb testator made his Will by communicating his
testamentary instructions to his reliable acquaintance by signs and motions. The
later prepared the Will as desired and the testator signed it. On the affidavit of the
writer of the Will, stating the nature of the signs and motions as to the instructions
given, the court declared the Will valid.209

4. Married Women

The English Law prior to 1883 which made a married woman in general
incapable of making a valid Will has since been modified. The Law Reform
(Married Women and Tortfeasors) Act, 1935, abolished those disabilities finally.

Under section 59, Indian Succession Act, 1925, a married woman has the
power to dispose of by Will whatever property she could alienate during her life.

The same rule holds good as regards a Hindu woman, married and
unmarried. Under the Hindu Law prior to the introduction of Hindu Succession
Act, 1956, a Hindu woman had only a limited estate in ail inherited properties,
[which has been converted into absolute property by way of section 14(1) of the
Hindu Succession Act, 1956], which she could not dispose of by Will

5. Burden of Proof of Testamentary Capacity

The Privy Council has stated, while pointing out what is required for proof
of a Will:

"A Will is one of the most solemn documents known to the law. By it a
dead man entrusts to the living the carrying out of his wishes, and as it is
impossible that he can be called either to deny his signature or to explain the
circumstances in which it was attached, it is essential that trustworthy and
effective evidence should be given to establish compliance with the necessary
forms of law. “

It is for the propounder of the Will to show that the testator executed the
Will while in sound state of mind, when the testator’s sanity is disputed.210

Owston, In the goods of, 2 SWK Tr 461. See also In the goods of, Geale, 3 SW & Tr 431.
Ganapath Rao v. Vasant Rao, AIR 1932 Bom 588.
70
 If it is shown that the testator was insane before the date of the Will, the
propounder must establish that the testator has completely recovered or was at
least in his lucid intervals.211 '
j

In regard to a Will which is an ‘ancient document’ under section 90, Indian

Evidence Act, there can be a presumption of due execution and attestation which
involves a further conception that the testator had capacity to make the \)vill212

The ultimate burden of proving, that the testator had sound disposing state
of mind and was capable, is on the person who propounds the Will.213

The rule is the same whether the question arises in probate proceedings
or in a regular Suit214 I

Especially, when it shown that the testator was given to delusions, the
propounder of the Will should satisfy the conscience of the Court that the Will is
the last Will of a free capable person in sound state of mind.215

In Lacchhu Bibi v. Gopi Narain,216 the testator had suffered from diabetes

of a serious type, his constitution has been undermined and his physical strength
enfeebled. He sustained a sever shock on the death of his only son. Thereafter
his habits and bearing became those of a person of unsound mind. In such
circumstances Mr. Motilal Nehru appearing for the appellants contended that the
initial onus of proof lay on the propounders of the Will.

Accepting the contention, the Court laid down:

“As regards the onus of the proof in cases of this kind the law is quite
clear. The first rule is that the onus probandi lies in every case upon the party
propounding a Will, and he must satisfy the conscience of the Court that the

Ganapath Rao v. Vasant Rao, AIR 1932 Bom 588.

Sarat Chandra Mondal v. Panchman Mondal, AIR 1953 Cal 471: 58 CWN 271. !
Barry v. Butlin, 2 Moo PC 480; Muniyallappa v. Venkatarama, 28 MLJ 124; Symes v. Green, 1
SW and Tr 401; Taylor on Evidence, 10th Edn., p. 107
Gnanapnakasam v. Parasakthi, 52 LW 440; Krishnamachariar v. Krishnamachariar, 38 Mad 166;
Earnest Benito v. John Francis, AIR 1958 Cal 440: (1958) 1 CWN 46. |
Guardhouse v. Blackburn, 1 P&D 109; Goodacre v. Smith, (1867) 1 P&D 359; Atter Atkinson, 1
P&D 665; Cleare v. Cleare, 1 P&D 657; Harter v. Harter, 3 P&D II.
23 All 472:1901 AWN 145 (147). I

71
instrument so propounded is the last Will and testament of a five and capable
testator.”

The second rule is, if a party who writes or prepares a Will under which he
takes a benefit, or if any other circumstances exist which excites the suspicion of
the Court, and whatever their nature may be, it is for those who propound the Will
to remove such suspicion, and to prove affirmatively, that the testator knew and
approved the contents of the Will and only where this is done the onus is thrown
on those who oppose the Will to prove fraud or undue influence or whatever they
rely on to displace the case for proving the Will.217

The nature of the evidence required in such cases is to establish

knowledge of, or assent to, the contents of the Will, “by proof of capacity, and the
fact of execution from which knowledge of, and assent to, the contents are
assumed.”

It cannot be said that the precise species of evidence in all cases of the
deceased’s knowledge of the Will is to be in the shape of instructions for reading
the Will. They form no doubt the most satisfactory though not the only
satisfactory proof by which the contents of the Will may be brought home to the
deceased.218

There is no rigid rule either, that if the Court is satisfied that a testator of a
competent mind has read his Will, or had it read to him and has therefore
executed it, all further enquiry is shut out219

A Will cannot be thrown away on mere suspicion. A Will otherwise shown

to be validly executed cannot be rejected unless it is vitiated by fraud or other
cause. Simply because the wife has been totally ignored is by itself not such as
to raise any resumption against the Will.220

Barry v. Butlin, 2 Moo PC 480; Fulton v. Andrew, (1875) LR 7 HL 448; Tyrell v. Painton, 1894,
PD 151; Farelly v. Gorrigan, LR 1899 AC 563; Lacchhu Bibi v. Gopi Narain, 23 All 472; Shama
Charan v. Ketro Moni, 27 Cal 521.
Barry v. Butlin, 2 Moo PC 480; Mitchel v. Thomas, 6 Moo PC 137.
Per Lord Hathereley in Pulton v. Andrew, (1875) 7 HL 448.
Jamuna Dasi v. Hari Dasi, 1957 ALJ 667; Jarat Kumari v. Bisseswar, 39 Cal 245.
72
 Where the lawyer who drafted the Will bias been examined, mere non­
examination of the attesting witnesses doe not void the Will.221

The person who attacks a Will on the ground of undue influence must
prove it222

Where there is a well-grounded suspicion, that a Will does not express the
mind of the testator, the Court will not pronounce in favour of the Will unless the
suspicion is removed.223

6. Grounds Exciting Suspicion

(a) Benefit under the Will

The contents of a Will may be such as to demand greater degree of proof

of proper execution. Thus, the writer of the Will may be a substantial beneficiary
under the Will. A Will may be propounded by such a beneficiary. Again, among
the beneficiaries there may be persons placed in a position of active confidence
reposed by the testator, persons like his lawyer or spiritual adviser. In Punni v.
Sumer Chand224 execution of Will was not proved because details of only one
witness was handwritten and rest of the Will including name of a lawyer as scribe
and attesting witness was typed, secondly the said witness was not aware of the
revocation of earlier Will and thirdly statement of clerk scribing the Will about
absence of the testator and it was scribed at the instance of the lawyer. Or,
again, the testator may be an illiterate, uneducated person unable to read or
understand the contents of the Will. These are circumstances likely to excite the
Suspicions of a Court demanding from it greater degree of proof of valid
execution of the Will with the knowledge of its contents.225

The weight of the burden will of course depend on the circumstances.226

Jamuna Dasi v. Hari Dasi, 1957 ALJ 667; Jarat Kumari v. Bisseswar, 39 Cal 245.
Narayana Iyer v. Venkatasubramoni Iyer, AIR 1957 Ker 115.
Prasanna Mayi v. Bai Kanta, 49 Cal 132.
AIR 1995 HP 74, Also refer Annual Survey of Indian Laws.
Vellasami v. Swaraman, S Rang 179 (OPC): AIR 1930 PC 24: 58 MLJ 114; Surendra v. Jahnari,
56 Cal 390; Bai Ganga Bai v. Bhugwart Das Valji, 29 Bom 530; Secrama v. Varahalu, AIR 1927
Mad 708.
226
Bai Ganga Bai v. Bhugwan Das Valji, 29 Bom 530.

73
 Where, however, there are other circumstances against the due execution
of the Will by a person capable of doing so, such unnatural dispositions would be
additional grounds for insisting on strict proof of execution of the Will with the
knowledge of its contents.227

(b) Unnatural Will—When a Factor in Considering the Validity of a Will?

It is true that the unnatural provision of a Will may be a relevant factor in

considering the validity or execution of a Will, or in determining the testamentary
capacity of the testator. But in the absence of any issue challenging the validity of
the Will on the grounds of undue influence or due execution, such provision
cannot be a determining factor228

(c) Unnatural and Improbable Legacies

It is no doubt in the complete discretion of the testator to benefit

whosoever he likes. He may beggar his own son and enrich a distant relation.
However, he can do so only by executing a valid Will.

Where accordingly a Will has been shown to be perfectly valid, duly

executed and properly attested and the testator is also shown to be sound in
mind and capable of knowing the nature of the dispositions he makes, the Court
must give effect to the Will. “Once the man’s mind is free and clear and is
capable of disposing of his property, the way in which it is to be disposed of rests
with him and it is not for any court to try and discover whether a Will could not
have been made more consonant either with reason or with justice.”229

VI. REQUISITES OF A VALID WILL

This phrase, “Requisites of valid Will” connotes two significant expressions

i.e. (1) “Voluntary act”, and (2) “free consent”. “Voluntary act” is defined in

Arthur Albert v. Maud, AIR 1938 All 201; Kristo Gopal v. Bardya Nath, AIR 1939 Cal 87: ILR
(1938) 2 Cal 173; Mst. Biro v. Atma Ram, (1937) 1 MLJ 646: 45 LW 451 (PC): AIR 1937 PC
101.
Bratindra Nath Dey v, Sukumar Ch. Dey, AIR 1970 Cal 85.
Arunachalam Chettiar v. Ramaswamy Chettiar, 30 MLJ 555: 20 CWN 673 (PC); Garib Shaw v.
Patia, AIR 1938 Cal 290: 66 CLJ 351.

74
relation to the causation of effects and not of the doing of acts from which those
effects results. It constitutes ‘doing act of one’s own free Will.” “Free Consent”
has been defined under section 14 of the Contract Act, 1872 which says that
“consent is said to be caused when it would not have been given but for the
existence of such coercion, undue influence, fraud, misrepresentation or
mistake”. Thus “consent” is an act of reason, accompanied with deliberation, the
mind weighing the good and the evil on each side. Every free consent
presupposes three aspects,

(i) a moral power

(ii) a physical power, and

(iii) serious and free use of both.

So consent obtained by coercion, undue influence, mediated imposition,

misrepresentation, circumvention, fraud etc., is a vitiated consent, tainted with
blemished act and under this taint or blemish a deliberate and free act of mind
cherishes and the persons entrapped in such a way that he does not remain of
his own and acts on the dictates heaped on him. A Will so executed under such
situation is never a valid Will. It is void.

1. Voluntary Act

In order that a Will may be valid, two essential conditions must be

satisfied. They are:

(1) the testator must be fully aware of the contents of the Will and approve
them;

(2) it must be his own voluntary act. A testator cannot delegate his
testamentary power to another person.

A Will must express the mind of the testator. The court of probate will
demand strict proof of due execution of the Will of his own free Will, from those
who propound it even when circumstances raise a well-grounded suspicion.230

Tyrell v. Painton, LR 1894 PD 157.

75
 The fact that the Will has been prepared by a legatee under the Will is a
suspicious circumstance,231

Where it is shown that the Will had been read over to the testator and its
contents properly brought to his notice, before execution, it must be presumed
that the Will was executed by the testator after approving its contents.232

• Presumption of Knowledge of the Contents of the Will when Permissible

In order that a Will would be recognised as valid, it is necessary that the

testator was aware of its contents and approved of the same 233

Such knowledge and approval may be presumed on proof of signature of

the executant to the Will234

Stricter proof of knowledge and approval will be insisted, where the

testator was an uneducated person and unable to read the Will,235 or where it
was doubtful that he could have read or known about the contents; or where the
person benefiting under the Will has been a party to bring about the execution of
the Will and was also so related to the deceased as to be in a position to
influence and dominate the testator236 or where the disposition under the Will
were not consistent with the natural love and affection of the deceased to his
relations.237

A Will that has been read over to the testator in a proper manner, and the
contents of which have been brought to his notice before execution, must in the
absence of fraud or coercion, be presumed to have been approved by him 238
Without adequate proof, a Will cannot be held valid merely because its contents
are reasonable 239

231
Donnelly v. Broughton, 1891 AC 435.
232
Garnett Botfield v. Garnet Botfield, (1901) P 335.
233 Theobald on Wills, 11th Edn., p. 32.
234
Hastilow v. Stobie, LR 1 P&D 64.
235
Bitton v. Robberus, 3 Phillem 455.
236
Mitchell v. Thomas, 6 Moo PC 137.
237
Prinsep v. Dyce Sombre, 10 Moo PC 285.
238
Ghadhouse v. Balckburi, (1866) 1 P&D 109.
239
Verkayya v. Satyanarayana, AIR 1959 AP 360.
76
 The person, who takes a leading part in the making of the Will and is a
substantial beneficiary under it, must show that the testator was aware of the
contents and approved of the same. When the testator had sound mental
capacity, the Will is not rendered invalid merely because he was influenced to
give a legacy to some individual.240 The law is that in order to be effective it

should be the last Will of a free and capable testator. The mere reasonableness
of its terms will not completely displace the proof of execution. There must be
enough material to justify the inference that the document was executed by the
testator. A Court of Appeal will not be justified in disregarding the view of the trial
Court as to which set of witness is credible.241

A Holograph Will i.e., written by the testator himself clearly indicates his
mind is following what he is writing. When some one else is the writer, the writer
has to testify to the fact that he was only writing out what the testator said to him,
or copying out a prepared draft clearly effected by the testator through his vakil
and now acknowledged by him to the writer and the two attesting witnesses. A
Will can also be type-written based on the specific voluntary statement of the
testator. All this, of course, need prima facie proof. Merely because the Will is
type-written, it cannot be deemed as a suspicious circumstance.242 In cities
where legal advice is easily available and most of the solemn documents are
typed out, what is required is proof of the actual execution of the Will by the
testator whose knowledge of the contents must be deemed as indicative of his
sound disposing state of mind. Of course, that he was a free agent and no
extraneous influences were pressed on him, is part of the necessary proof to
indicate his voluntary disposition.

• Under Indian Statute.

Section 61 of the Indian Succession Act provides;

“61. Will obtained by fraud, coercion or importunity.—A Will or any part of a

Will, the making of which has been caused by fraud or coercion, or by such
importunity as takes away the free agency of the testator, is void.

240 Venkata v. Somasi, (1958) 2 Andh WR 654.

241 Verkayya v. Satyanarayana, AIR 1959 AP 360.
242 Rajeshwari Rani v. Niija Guleri, AIR 1977 P&H 123 (136).

77
 This section lays down that under certain circumstances, a person of
normal understanding and physical capacity may cease to be a free agent and
his dispositions may not be characterised as voluntarily made. Such a state of
affairs may be brought up by fraud, coercion or importunities. If it is proved that
the entire dispositions under the Will have been made as a result of fraud, etc.
practised on the testator, the entire Will may be declared void. It may also be that
only some of the provisions have been so brought about fraudulently in which
case only so much of the Will would be invalidated.

For validating only a portion of the Will in the probate proceedings the two
portions must be severable.243 In this instant case only one para 12 was omitted

from probate.

2. Fraud

One ground of avoidance is fraud. Fraud is defined by section 17 of the

Indian Contract Act for purposes of the Law of Contracts. Fraud is infinite in its
variety.

S-17. ‘Fraud’, defined.— “Fraud” means and includes any of the following
acts committed by a party to a contract, or with his connivance or by his agent,
with intent to deceive another party thereto or his agent, or to induce him to enter
into the contract:

(1) the suggestion as a fact, of that which is not true by one who does not
believe it to be true;

(2) the active concealment of a fact by one having knowledge or belief of the
fact;

(3) a promise made without any intention of performing it;

(4) any other act fitted to deceive;

(5) any such act or omission as the law specially declares to be fraudulent.

Explanation.— Mere silence as to facts likely to affect the Willingness of a

person to enter into a contract is not fraud, unless the circumstances of the case
243
Sarat Kumari Bibi v. Rai Sakhi Chand Bahadur, AIR 1929 PC 45 (50): 33 CWN 374; See also
Rhodes v. Rhodes, (1882) LR 7 AC 192 (195).
78
are such that, regard being had to them, it is the duty of the person keeping
silence to speak, or unless his silence is in itself, equivalent to speech.

As to coercion there can be no doubt that a Will will be invalidated if actual

physical force or extreme mental torture was inflicted on the testator. This is so
even if all the formalities of a testament were duly observed and the testator also
was perfectly in his senses.244 The Will will be invalid if the testator executes it
out of fear.245 “A vain fear is not enough to make a testament void, but it must be
such a fear as the law intends when it expresses it by a fear that may cadere in
constenturn virm: as the fear of death, or of bodily hurt, or of imprisonment or
loss of all or most part of one’s goods or the like; whereof no certain rule can be
delivered, but it is left to the discretion of the Judge who ought not only to
consider the quality of the threatenings but also the persons threatening as well
as the threatened; in the person threatening, his power and disposition, in the
person threatened sex, age, courage, pusillanimity and the like.”

Where however a person who takes an active part in the preparation and
registration of the Will is benefited under the Will to the disadvantage of other
legatees, the circumstances excite the suspicion of the Probate Court demanding
greater vigilance and security. The court must be satisfied that no undue
advantage has been taken or any undue pressure has been exercised on the
testator.246

These rules no doubt enjoin a reasonable scepticism, not an obdurate

persistence in disbelief. They do not demand from the judge, even in
circumstances of grave suspicion, resolute and impenetrable incredibility. “A
judge is never required to close his mind to truth.”247

It may be that only particular words in a Will or particular parts of the Will
have been introduced by fraud, accident or mistake without the consent and
knowledge of the testator. In such cases the court has power to strike down

Mountain v. Bennet, 1 Cox 355; See Williams, p. 29 (12th Edn.).

Swib, Pt. 7, Sect 2 PL 7; Williams, p. 30; See also Nelson v. Old field, 2 Vem 76.
Vellasamy v. Sivaraman, AIR 1930 PC 24.
Harmes v. Hinkson, AIR 1946 PC 156: 59 LW 489 (PC).
79
those words or portions alone.248 The Court however will not substitute the right
words in order to make sense of the other words of the Will.249

The burden of proving that fraud was played upon the testator in obtaining
execution of the Will is on the-person alleging it.250

3. Undue Influence

Although a man may have a mind of sufficient soundness and discretion to

manage his affairs in general, yet if such a dominion or influence be obtained
over him as to prevent his exercising that discretion in the making of his Will, he
cannot be held as having a sound disposing mind as could give effect to the Will.
It depends on the circumstances also as in S.P.Thiunavukkarasu v. S.P.
Longanathan251, the eldest son alleged that undue influence by the executors as
the father was living with other brothers. On evidence it was found that the eldest
son has been sufficiently compensated by subsequent settlement deed, so there
is nothing unnatural about the Will.

It is not possible to give an exact definition of undue influence. Whenever

any ground of suspicion exists, the Court casts the burden on the propounder to
prove that the Will was the voluntary and conscious act of the testator.252

The influence becomes undue in so far as it destroys the free agency of

the testator.253

In many of the cases of undue influence, there is also the presence of

physical or mental weakness. As Lord Cranworth observed,254

“It is sufficient to say that allowing a fair latitude of construction, they must
arrange themselves under one or other of these heads, Coercion or Fraud.”

Swords (in re:), 1952 P 368: Allen v. McPherson, 1 HLC 191; Sarat Kumari Bibi v. Rai Sakhi
Chand Bahadur, ILR 8 Pat 382: 56 MLJ 130: AIR 1929 PC 45.
Horrocks (in re:), (1939) P 198.
Prakash Narain Mishra v. D.D.C., Kainpur, 1984 ALJ 1028: 1984 All CJ 460: 1984 RD 247.
AIR 1992 Mad 328, Also refer Annual Survey of Indian Laws.
Tyrell v. Zainton, LR 1894 P 157.
Wingrore v. Wingrove, (1885) 11 PD 81; Govindasami v. Kannammal, AIR 1927 Mad 295: 51
MLJ 747.
254
Boyse v. Rossbrough (1857) 6 HLC 2 (49).
80
 The Indian definition of undue influence is found in section 16 of the Indian
Contract Act. But in the Law of Wills, undue influence must involve an element of
fraud or coercion to invalidate a Will.255

Influence in order to be undue must be influence exercised by coercion or

by fraud. It must be of the nature of fraud and duress.256 All influences are not
unlawful. Undue influence in order to invalidate a Will must amount to coercion or
fraud. Its existence must be established as a fact and it must also appear that it
was actually exercised on the testator.

There must be circumstances attending, or at least relevant to the

preparation and execution of the Will itself. There must be strong grounds for
suspicion.257 The influence of a wife over the husband may not be undue.

The burden of proving that a Will was executed under undue influence
rests upon the party who alleges this.258

4. Importunity

The third ground referred to in section 61 of the Indian Succession Act,

1925, of avoiding a Will is importunity. The importunity must be such as takes
away the free agency of the testator. For example:

“A, being in, so feeble a state of health, as to be unable to resist

importunity, is pressed by B to make a Will of a certain property and does so
merely to purchase peace and in submission to B. The Will is invalid.”

Here A falls a victim to the importunities by B, and his testation is not that
of a free mind. The testator has not the courage to resist; because the
importunity exerted may be in the nature of a moral command yielded to for the

Sayad Mohammad v. Fatteh Muhammad, 22 Cal 324 (PC).

Gomtibai v. Kanchedilal, AIR 1949 PC 272: (1949) 2 MLJ 469: 62 LW 700 (PC); Naba Gopal v.
Sarala, AIR 1933 Cal 574.
Cutehffs Estate (in re:), (1959) P 6.
Craig v. Uamoureux, 1920 AC 349; Ramlal Sah v. Birendra Kumar, (1987) 1 Civ LJ 19 (Pat):
Rohunna v. Lalringthanga, (1987) 1 Gau LR410.
81
sake of peace and quiet, of escaping from social discomfort or distress of
mind.259

“Importunity in its correct legal acceptation must be in such a

degree as to take away from the testator free agency: It must be such

importunity as he is too weak to resist; such as Will render the act, no

longer the act of the deceased, the free act of a capable testator, in order

to vitiate the instrument.”

Flattery, without fraud, does not void Will made by a free testator.260 Not
all importunities are undue influence. A person may well plead his case before
the testator and to persuade him to make a disposition in his favour. If the
testator retains his mental capacity and there is no element of fraud or coercion,
the Will cannot be attacked.261

5. Proof of Exercise of Undue Influence

In order that a Will may be rendered void, it is necessary to show that

such influence was exercised at the time of execution of the Will.262 A general
assertion of the wife's commanding character as against the husband’s
weakness and of their usual wrangling about family expenses will not invalidate a
Will by the husband when there is no evidence to show coercion in the special
matter of the Will263

But it may be that a person has been generally under the dominating
influence of another in regard to all his transactions and it is possible for the
Court to infer undue influence in regard to the Will also.264

Again, it must also be shown that the person said to have exercised undue
influence was in a position to exercise undue influence. The influence which an

Hall v. Hall, (1868) LR 1 P&D 481: Craig v. Lamoureax, 1920 AC 349; Jagnesumri v. Urgeswari,
11CWN824.
Parvati v. Sheo, AIR 1926 Oudh 262.
Ant Chandra Majumdar v. Akhil Chandra Majumdar, AIR 1960 Cal 551; De’Souza v. De’Souza,
1956 MadhBha 246.
Neha Gopal v. Sarala, AIR 1933 Cal 574.
Sala Mahomed v. Dama Janashi, 22 Bom 17 (PC).
Morison v. Administrator-General, Madras, ILR 7 Mad 515.

82
affectionate wife exerts on her loving husband who, in the free exercise of his
volition executes a Will in her favour is not undue.265

The rule as to burden of proof as usually stated by the authorities is that

where a Will appears to have been duly executed and attested according to the
requirements of law, it is presumed to be valid, and the burden of proof rests
upon the contestant who alleges fraud or undue influence.266

Where, however, there are circumstances to arouse the suspicion of the

court as where the testator is an elderly person and the Will is prepared by a
solicitor who takes a benefit under the Will, the court of probate will need to be
satisfied that the testator knew and approved of the Will267

• Suspicious Circumstances

Where natural heirs were excluded from inheritance but no reason was
disclosed. The Will was not scribed by any deed writer and name of scribe was
also not given. The ‘Will’ was executed on paper taken from exercise book. Thus
execution of Will was highly suspicious and not free from suspicious
circumstances 268

Where attesting witnesses were not close to testator to enjoy his trust and
witnesses were not independent rather witnesses were interested in the
beneficiary of the Will. Execution of Will was not proved. Burden to prove the Will
lying on propounder was not discharged. The daughter the issue of testator was
excluded from any benefits under the Will. Will purported to revoke earlier
bequest in favour of the daughter. Reasons shown for the disfavour to daughter
were found not convincing and non-existent. Reasons shown for the bequest in
favour of the stranger were found to be untenable. Independent reasonable mind
of testator was not reflected by the Will. All these circumstances made the Will
■ • 269
suspicious.

Morison v. Administrator-General, Madras, ILR 7 Mad 515.

Craig v. Lamoureux, LR 1920 AC 349.
Wintle v. Nye, (1959) 1 WLR 284; see also Ganpat Rao v. Vasant Rao, AIR 1932 Bom 588; Naba
Gopal v. Sarala, AIR 1933 Cal 574.
Kewal Krishan v. Gurdev Chand, (1988) 2 CCC 127 (P&H): (1988) 2 Punj JR 30.
Balbir Singh v. Sulochana Devi, (1988) 14 ALR 327 (DB).
83
 In Basavaraja Guddappa Mallebennur v. Ningappa Guddappa
Mailebennur, AIR 2005 Kant 19.

The facts are that deceased propositer had two wives. Recitals of Will
show that he bequeathed suit properties in favour of second wife on the ground
that the first wife left his house. Witnesses revealed that both the wives of
deceased were jointly living with him when Will was executed and both were
equally loved. Son of the first wife of the deceased stated that the said Will was
traced 8 days after the death of his father. During life-time of the deceased they
were not aware of the said Will. Circumstances create suspicion regarding
genuineness of Will. Held, that the said Will could not be said to be valid.

• Burden of proof

The onus probandi, in every case, lies upon the party propounding a Will,
and he must satisfy the conscience of the Court that the instrument propounded
is the last Will of a free and capable testator.270

Where also a person who takes a benefit under the Will is the writer of the
Will, or where there are any other circumstances which excite the suspicion of
the court, whatever their nature may be, the onus, is cast on the party
propounding the Will to remove such suspicions and to affirmatively prove that
the testator knew and approved the contents of the Will.271

Then only the burden will be shifted on those who oppose the Will to prove
fraud or undue influence or whatever they rely on to displace the Will.272

Of course if there are suspicious circumstances, the propounder of the

Will should dispel all those suspicions. The pronouncement of the Supreme
Court in the oft quoted leading case Venkatachala Iyengar v. B.N. Thumma

Barry v. Butlin, (1838) 2 Moo PC 480; Harmes v. Hinkson, AIR 1946 PC 156: (1946) 2 MLJ 156.
Vellasami v. Sivaraman, AIR 1940 PC 24: 32 Bom LR 511 (PC): ILR 89 Rang 179; Sarat Kumari
Bibi v. Rai Sakh CHand Bahadur, ILR 8 Pat 382 (PC).
Naresh v. Paresh, AIR 1955 SC 363: 1955 SCJ 293; Sikh Deo v. Kedar Nath, 23 All 405; Lachu
Bibi v. Gopi Narain, 23 All 472; Rash Mohini v. Umesh CHander, 25 Cal 84 Shama Charan v.
Khetromom, 27 Cal 521; Bur Singh v. Uttam Singh, 38 Cal 355 (PC); Muniyellappa v.
Venkatarama, 53 Mys HCR 80; Arnold v. (Miss) Sundar, AIR 1956 Bom 404.
84
Jamma273 amply supports this view. Apart from the evidence tendered, the court
has to take into consideration all the surrounding circumstances that will erase or
enhance all suspicions, as the case may be.274 Mere non-mention of details of

property cannot be deemed as suspicious nor the mere non-production of the

draft Will. In the last case the testator was an I.A.S. officer, who drafted the Will
himself. May be the draft is lost or thrown away as unnecessary. The testator’s
good health, position and sound disposing state of mind were enough to validate
the Will.

Appointment of mother’s sister as executor and also as a beneficiary do

not justify invalidating a Will.275 In this case it was this lady who reared up the son

from childhood, the testator’s own brothers were living at far off places from the
place where properties were situate and so the testator rightly appointed his
mother’s sister as the executor and rightly made her a beneficiary also.

But even grave suspicious circumstances should not induce a Court to

disbelieve truth where it could be perceived.276

VII. EXECUTION

It applies to Wills executed in India by any person including Hindus, but

excluding Muslims, with effect from January 1, 1927. The Hindu Wills which
could be executed otherwise than by the formalities laid down in this section after
January 1,1927 will not be valid. In other words, Wills made by Hindus anywhere
India (except the state of Jammu and Kashmir) must conform to formalities laid
down in this section. So should be Wills of all other persons made in India,
except the Muslims to whom the provisions of this Part are not applicable.277

AIR 1959 SC 443: (1959) Supp 1 SCR 426. See also Bangalore W.C. & S. Mills Co. v. Bangalore
Corporation, AIR 1962 SC 567: (1962) 3 SCR 195; Ramachandra v. Champabai, AIR 1965 SC
354: (1964) 66 Bom LR 486: (1964) 6 SCR 814.
Guru Dutt Singh v. Durga Devi, AIR 1966 J&K 75 (80).
Rajeshwari Rani v. (Smt.) Niija Guleri, AIR 1977 P&H 123 (135,137,138).
Harmes v. Hinkson, AIR 1946 PC 156: (1946) 2 MLJ 156; Suryanarayanamurthy v. Suramma,
(1947) 2 MLJ 185 (PC).
Law of Intestate and Testamentary Succession; Dewan Paras.
85
 This section lays down the following two formalities for the execution of
the Will:

1. It must be signed by the testator or by some other person in his presence

and by his direction. The testator may in the alternative affix his mark,
such as a thumb impression.278

2. It must be attested by two or more witnesses.

Once both the conditions are satisfied, the Will be held to be validly executed.

1. Formalities and proof of execution

The matter relating to formalities of a Will and proof of a Will are different
matters. The former is regulated by this section, while the latter by the Indian
Evidence Act, 1872. Under this section will must be attested by two witnesses,
but under section 68 of Indian Evidence Act, a Will can be proved only by one of
attesting witnesses. If a Will has been thus proved it can be admitted to
probate.279 Just as in other cases, the test of proof is the satisfaction of the
prudent person and not of beyond all reasonable doubt or of mathematical
certainty.280

(i) Signatures or mark of the testator

(a) the testator must sign the Will or affix his mark, or

(b) it may be signed by some other person in the presence of the testator
and by his direction.

Ordinarily, Wills are signed by the testators themselves; sometimes

testators may, instead of signing it, like to put his mark, either because they are
illiterate, or incapable of affixing their signatures on account of weakness, or they
may like to do it that way, may be by habit. Where testator put a thumb mark in
inspite of being literate because he was diabetic and his hands shook, it was held
to be proper.281 In either way, a Will, will be deemed to have been signed validly.

278
Kalyan Singh v. Chhoti, AIR 1990 SC 396, Also refer Annual Survey of Indian Laws.
279
Manormama Srivastava v. Saroj Srivastava, AIR 1989 All 17
280
Rammol Das. Hakoi, 22 CWN 315 /
281
P.S. Sairam v. P.s. Rama Rao Pisey, AIR 2004 SC 1619.

86
When a testator is unable to sign his Will on account of weakness, he may affix a
mark and in doing so his hand may be guided by some other person.282 Under

the General Clauses Act, 1897 ‘sign’ includes, in reference to a person who is
unable to write his name, ‘mark’. The thumb impression or a rubber stamp
impression of his signature, or mark, to which the testator was in the habit of
using, will do 283 The mark must be made by the testator and not by any other
persons.284 Where a testator signs under an assumed name intentionally or
unintentionally, the signatures are still his and can be proved as amino
testandi285 For signing the Will, pen and ink are not necessary.286 It may be
signed with a pencil, or a name stamp may be put. Where on account of
paralysis a person was in the habit of using a name stamp which used to be
impressed by his servant, on his direction, on any document or paper he wanted
to sign, this was held valid execution of the Will.287

Initials of the testator also operate as his signatures.288

It is not necessary that the testator himself shall put his signatures or affix
his mark to the Will, some other person can do so in his presence and by his
directions 289

Where the testator attempts to sign but fails to complete the signatures
and dies, these may still be treated as his signatures provided it is proved that
the testator was capable of executing the Will and that he fully appreciated its
contents and that what he wrote was intended to be his signatures.290

The Will may be signed by some other person in the presence of the
testator and by his direction. Thus, where the signature in a Will contained the
words, “this scratch the mark of so and so,” it was held that the Will was validly
executed. Where an illiterate testator held the pen and the scribe wrote testator’s

Gullan Devi v. Puna, AIR 1989 All 75, Also refer Annual Survey of Indian Laws.
Harihar Prasad Sao v. Bhagwan Das, AIR 1972 Pat 146
Theresa v. Francis, 23 Bom LR 23
Re Redding, (1852) 2 Rob 339
Jenkins v. Gasford, (1863) 11 WR 854.
Nirmal Chunder v. Saratmoni, ILR 25 Cal 911.
Sher Mahomed v. Dy. Commissioner, 58IC 134.
Karri Nooaraju v. Putra Venkatarao, AIR 1974 AP 13
In the Goods of Chalcraft, (1948) P 222
87
name at the foot of the document, it was held that the Will was properly
executed.291

Under this clause, the requirement is that “some other person” should
“sign” on behalf of and by the direction of the testator, and, therefore, this some
other person has no power to put the mark of the testator. When someone else is
signing for the testator, then he should write the name or put it in such a manner
as would lead anybody else to see at once who the person was who executed
the Will.292

Under Indian law “some other person” signing for the testator cannot be
one of the attesting witnesses. It has to be other than the two attesting witnesses.
In re Himlota Debee,293 some other person signed the Will in the presence of the
testator and by his direction, the court observed that besides that person who
had signed for the testator, there must be two more attesting witnesses.

• Place of Signature.

What is needed is that the testator must sign the Will or affix his mark or
get it signed by someone else on his behalf. It is not necessary that he must sign,
etc., at the end of the will or at every page of the Will (where Will consists of
several pages). Thus, a Will will not be invalid if the testator has placed his
signatures amidst the words of the testimonial clause or of clauses of attestation,
if the court is satisfied that the testator did intend to sign and execute the Will.294
It does not matter as to at which place of a Will the testator signs. In some parts
of the country it is customary to put signatures at the top of the document at the
right hand side. This form of signing the Will has been held valid.295 In the Goods
of Mann296 provides a very good illustration. The testatrix wrote out her Will on a
sheet of paper and one of the attesting witnesses was present when the testatrix
was writing the last part of the Will. She put the sheet of paper in an envelope

Kotni R N Subudhi v. V.R.L.Murthy Raju, AIR 1961 Ori 180

Nirmal Chandur v. Saratmoni, BLR 25 Cal 911
BLR 9 Cal 226
IN the Goods of Peam 1, PD 70.
Savitri v. F.A. Sain, 19 CWN 1297
1942P146

88
and wrote on it: “The last Will and testament of Jane” and at her request the
witnesses wrote at the foot of the document the words “in the presence of
witnesses” and signed. The document then was placed in another envelope but
the testatrix did not sign it. After sometime, the testatrix fell suck and was taken
to the hospital where another envelope was brought and the whole packet was
put into it on which was superscribed “the last Will of Jane Catherine Mann” and
was signed by her. The Court held that the Will was properly executed though
the testatrix had not signed on the document but only on the envelope. But mere
writing his name on the document by the testator by his own hand at the very
beginning of the document without any intention of authenticating the document
does not amount to signing of the document; this does not amount to the
execution of the Will.297

Is writing of his name on the Will by testator in own hand at the very
beginning of the document without signing it at the bottom of Will sufficient
authentication of the Will? Whether writing of his name and address in a
holograph Will while describing his status and place of residence, is to be
construed as his signature? The requirement of signing the Will by the testator is
for the purpose of authenticating the contents of the writing containing his
declaration about the disposition of his property after his death. It is, therefore,
apparent that the testator has to put his signature or mark as contemplated, only
after the contents of the writing containing the declaration have been scribed, for
it is not possible to authenticate a declaration before such declaration has been
actually scribed and has thus come into existence. Something non-existent
cannot obviously be authenticated. When a person writes his name, parentage
and address in the opening part of a document to disclose his identity, it is a
stage or point of time when the contents of the document are yet to be written
and have not come into existence. Can such writing of name be treated as
authentication of the contents of the document?

We would proceed to review the case law.

297
Leela Karwal v. J.D.Karwal, AIR 1986 All 220
89
 In Sabitri v. F.A. Sain,298 the testator had executed a holograph Will in four

pages and all the four pages bore his signatures, though he had not signed at the
bottom of the Will. On the first pages, his signature appeared at the top left hand
corner and against or alongside the signature of the testator four persons were
said to have attested the Will. The question which arose for consideration was as
to which of these signatures was the operative signature of the deceased. It was
held that the operative signature was on the first page. In this connection it was
pointed out that amongst Indians the English system of executing the document
at the foot did not obtain and that their custom was to execute the document at
the top. Mathura Das vs. Babu Lai299 was a case where a letter written by a duly
authorised agent of Babu Lai, a banker, was headed as “written by Babu Lai to
Shah Banarsi Das” and the concluding portion of the letter was written by Babu
Lai in his own handwriting but it was not signed by him. It was treated to contain
an acknowledgment as contemplated by the Limitation Act on the ground that it is
not the practice of the Hindu bankers to sign their letter at the foot. In the case of
In the Goods of R. Prothouse,300 a testator died leaving as his Will a printed form
of a will imperfectly filed in, and having omitted to insert his name and description
at the head of document, and to append his signature thereto. He had, however,
written his name in the attestation clause and completed the disposition clause
bequeathing all his property to his wife and appointing her sole executrix. It was
held that this was sufficient and the will should be admitted to probate. In this
case it would appear that the name of the testator found place in the last
sentence of the will after the entire contents containing the declaration of the
intention of the testator with respect to his property which he desired to be
carried into effect after his death had already been scribed in clause (2) which
was the disposition clause and this disposition clause was completed by the
aforesaid last sentence which reads “In witness whereof I the said Robert
Porthouse have to (put) this my last will and testament set my hand the eleventh
day of October in the year of our Lord one thousand eight hundred and eighty

(1915) 29IC 743

ILR(1878) 1 All 683.
ILR (1897) 24 Cal 784.
90
eight”. The place where and the point of time when the testator wrote his name
clearly amounted to authentication of the declaration of the testator with respect
to disposition of his property.

Amrendra Nath Chatterjee v. Kashi Nath Chatterjee,301 was a case where

the Will did contain the signature of the testator on the right hand corner but the
signature had not been made in the presence of the attesting witnesses. The
testator, however, admitted before the attesting witnesses that the paper which
they were required to attest was his last will. It was held that it constituted
sufficient acknowledgement by the testator of his signature to his will. In Janki v.
Kailu,302 the widow of a deceased Hindu applied for a certificate of succession. In
opposition to this application a alleged will of the deceased was set up and it was
proved that the deceased, being of sufficient testamentary capacity, had, shortly
before his death, caused a draft will to be prepared, that he had the draft read to
him twice and explained to him, that he made it over to person appointed as
trustee under the will telling him, to have I faired out and brought to him for
signature, but that he died before this was done without having expressed any
intention, except in one small particular, of whishing to alter the draft so made.
Two witnesses Lachman Sarup and D. Ram Chander were produced to prove
the will. Relying on the evidence of these witnesses and the circumstances that
according to Hindu law it was not necessary that a will should be executed by the
testator it was held that the testator had made the will. At that time a Hindu could
make an oral will.

The matter came for consideration before the Allahabad High Court in
Leela Karwal v. J. D. Karwal, where the testator under his will bequeathed his
house to his second wife. The testator died leaving behind two sons and three
daughters from his first wife (who had died) and one daughter from his second
wife. When letters of administration were sought by the second wife of the
testator, the Will was challenged by the children from the first wife. It was
admitted that the Will was in the handwriting of the testator but it bore no date. It

ILR (1900) 27 Cal 169.

BLR (1909) 31 All 236.
91
bore the signatures of two attesting witnesses. The opening sentence of the Will
read thus” “I Guru Datt Karwal son of Devi Chand, retired professor, University of
Allahabad (U.P.) declare this to be my Will”. It was written on both sides of a half­
sheet of ordinary paper and did not bear any signatures of the testator on any of
its two sides. The propounder of the Will contended that his name written in the
first sentence was in fact his signature.

After a review of authorities, the Court observed that the writing of his
name by the testator in a holograph Will, while describing his identity, could not
be construed as his signature. The requirement of signing the Will by the testator
is for the purpose of authenticating the contents of the writing containing his
declaration about the disposition of his property after his death. It is, therefore,
apparent that the testator has to put his signature or mark only after the contents
of the writing containing the declaration have been scribed, for it is not possible
to authenticate a declaration before such declaration has been actually scribed
and has come into existence. Something non-existent cannot obviously be
authenticated. When a person writes his name, parentage and address in the
opening part of a document to disclose his identity, it is a stage or point of time
when the contents of the document are yet to be written and have not come into
existence.

The Court further said that through writing of one’s name, parentage and
address in the opening part of documents such as, sale deed, gift deed,
mortgage deed, lease deed, agreements, promissory notes and even Wills is
customary in our country, invariably all these documents are signed by the
executant. Describing his identity in the opening part of the document is not
taken or treated as his signature in lieu of execution of that document. Even
though it is true that signature includes writing one’s full name, it cannot be said
that when the executor write his name, in the opening sentence of the Will in
question be signed the Will as contemplated by sections 63(a) and (b) of the Act.
The mere fact that the Will in question was a holograph one is not sufficient to
explain this unnatural conduct of the executor, in the result the Court held that

92
the Will being not property executed in terms of section 63, the Will stood as not
proved and letters of administration could not be granted.303

• Evidence of Scribe

A Will has to be proved by a person who could speak about the execution
of the same. There is some misunderstanding that a Will can be proved only by
attesting witnesses. This is an erroneous belief. It can be proved by any person
who could speak of its execution. Thus a scribe of the Will can also prove it and
mere fact that he scribed the Will is no disqualification. In Ujagar Singh v. Charan
Singh,304 the Punjab and Haryana High Court said that in the matter of a Will the
proof can be furnished by the scribe of the document who could speak to the
execution of it and it is not essential that it should be proved only by at least one
of the attesting witnesses. It will be a question of fact in each case to be
determined as to under what circumstances and in what manner the scribe acted
and attested the Will or not. The mere fact that the Will was scribed by a person
does not mean that he cannot prove the Will as an attesting witness.

(ii) Attestation of the Will

Attestation of the Will is a mandatory formality of an unprivileged Will. The

definition of attestation in this clause is the same as in Transfer of Property Act,
1882. The execution of a Will includes its attestation by witnesses and if there is
no attestation the Will is not validly executed. For the purpose of valid attestation
under section 63 of the Indian Succession Act it is absolutely necessary that the
attesting witness should either sign or affix his thumb impression or mark himself
as the section does not permit an attesting witness to delegate that function to
another. In Moonga Devi v.Radha Ballabh,305 the Supreme Court observed that it
must be proved that the Will was executed in accordance with rule, unless that is
done probate cannot be granted. The following are requirements of a valid
attestation.

The will must be attested by at least two witnesses 306

See also Dr. M. Ratna v. Kottyboyina Navaneelam, AIR 1994 AP 96

AIR 1986 P&H 230
AIR 1972 SC 1471.
S.A.Quddus v. Verrappa, AIR 1994 Mad 20.
93
 each witness must have seen the testator sign or affix his mark or that
some other person has signed it in the presence of and by the direction of the
testator, though they need not know the contents of the Will,307 or

if the will has already been signed each witness must have received from
the testator as personal acknowledgement of his signature or mark or of the
signature of such other person signing it for him.

However, the attestator must sign it himself unlike testator he cannot

direct some other person to attest Will on his behalf.308

Where attestation of the Will by only one witness is proved, the Will cannot
be considered genuine and valid.309 A Will which is not attested is invalid. Where
son claimed entire property on the basis of an attested Will, it was held will was
not proved, especially when Testator had equal love for his wife and children.310
If attestation of a Will is not proved, then a registered Will is not admissible 311

It is not necessary that all the witnesses should be present at one and the
same time. The only requirement as to the attesting witnesses is that they should
have necessary animus attestandi. If one of the attesting witnesses proves the
signature of the testator that is enough. Production of all the attesting witnesses
is not essential. Evidence of one attesting witness is enough to prove Will.312 The
testator may sign in the presence of one witness and acknowledge his signatures
before another. Where one of the attesting witnesses deposed that the other
witness was present and had attested the same in presence of testator, it is
sufficient for proving the Will.313 The acknowledgement by the testator of his
signatures may be express or implied. It is not necessary that the testator must
say to the witness that these are his signatures when he takes out his Will which
he has already signed; When his signatures are visibly apparent on it, and he
requests the witnesses to sign it, this is sufficient acknowledgement of the

V.K.Kamalam v. Pandhali Amma, AIR 1988 Ker 265, Also refer Annual Survey of Indian Laws.
N.Kamdam v. Ayyasamy, (2001) 7 SCC 503
Labh Singh v. Piara Singh, AIR 1984 P&H 270
Subbayyajoga v. Naravanai AIR 2004 Kant. 430
Pumabai v. Ranchhoddas, AIR 1992 AP 270
Pradip Kumar Bhowmick v. Basanti Dutta, AIR 2004 Cal 238
Amalorpuva Marg v. Kulandai Amamal, AIR Mad 291

94
signatures.314 In some cases conduct itself may amount to acknowledgement.315

A scribe can be an attesting witness provided he knows that he is putting his

signatures as an attesting witness.316 If witnesses in better position were handy
but were not called does not throw any suspicion on the genuineness of the
Will.317 Where the court is satisfied that the attesting witnesses are falsely and
deliberately denying their signatures, it is free to took into other circumstances
and other evidence on the question of attestation.

In Tilak Raj Kakkar v. Shambhu Nath Kakkar,318 a Will was attested by six

witnesses. The Will was executed by a woman in favour of her brother. Three of
the attesting witnesses proved the Will (the other were not examined). One of the
brothers of the testatrix supported the Will. The other brother opposed it. The
Delhi High Court said that these two factors namely (1) the “no-objection”
affidavit by the Respondent brother of the Petitioner, and (2) the attestation of
Will by as many as six witnesses must be held to be sufficiently outstanding to
establish the genuineness of the Will so as to overshadow the other factors
alleged to be suspicious circumstances surrounding the Will such as non-
appearance of the Petitioner himself, omission to summon the lawyer who
drafted the Will, ignorance of the attesting witnesses about the name of the said
lawyer, the ailment of rheumatic pains suffered by the testatrix (which had not
impaired the mental faculties), omission to examine the three remaining attesting
witnesses when no attempt was made by the contesting Respondent to summon
them, etc. the Petitioner was, therefore, held to be entitled to the grant of probate
of the Will.

In Girja Datt Singh v. Gangotri Datt Singh,319 the Supreme Court observed

that where the signatures of two persons were shown to be appended at the foot
of the endorsement of registration of the Will to the effect that they signed as
attesting witnesses, the Will could not be treated as duly executed unless the

Ganshyam Doss Narayandoss v. Saraswati Bai AIR 1923 Mad 861

Chhanga Singh v. Dharam Singh AIR 1965 Punj 204
Nand Kumar Singh v. Chander Kishore Saran, AIR 1956 Pat 377
Ittop Varghese v. Poulose, 1974 KLT 873
AIR 1987 Del 360
AIR 1955 SC 346
95
signatures of at least one witness were proved. In Janki Narayan Bhoir v.
Narayan Mamdeo Kadam,320 if the attesting witness examined besides his

attestation does not, in his evidence, satisfy the requirements of attestation of the
Will by other witness also it falls short of attestation of Will at least by two witness
for the simple reason that the execution of the Will does not merely mean the
signing of it by the testator but it means fulfilling and proof of all the formalities
required. In Doraiswami v. Rathanmmal,32'1 of the attesting witness only one was
alive and he denied attestation and the Sub - Registrar deposed that one woman
purporting to be testatrix admitted correctness of the contents of the Will, and
another witness simply identified signature of the other attesting witness who was
dead, and the rest of the witnesses could not depose that they had actually seen
the testatrix signing the Will, it was held that due execution of the witness was
not proved. On the other hand, where a testatrix admitted her signatures before
the Registrar and one of the attesting witnesses identified her, the Registrar and
the identifying witness signed their name as witnesses, it was held that the Will
was validly executed.322 But no inference can be drawn of due execution of the
will from the fact that the Registrar signed the Will as attesting witness unless
there is evidence that the testator signed the Will in the presence of the Registrar
and the Registrar signed it in the presence of the former.323 The statement of
Sub-Registrar cannot be taken as that of attesting witness when neither testator
nor attesting witnesses of Will signed it in presence of Sub-Registrar. Similarly
statement of scribe would not also be sufficient to prove execution of Will324
There is no bar in the Registrar signing a will as attesting witness provided it is
proved, that he has received from the testator a personal acknowledgement of
his signatures or marked and the Registrar has signed it in his presence.
Similarly, in Asharfi Devi v. Tirlok Chand325 where it was established that the

testator signed the Will in the presence of the Registrar who also signed the
endorsement contemporaneously, the Will was held to be validly executed. In

320 S.C. Appeal (civil) 11194 of 1995

321 AIR 1978 Mad 78
322 Amrendra Nath v. Kashi Nath, ILR 27 Cal 169
323 Satipada Chatteijee v. Annakali Doebya, AIR 1953 Cal 462
324 Balwinder Singh v. Mohinder Singh, AIR 2005 NOC 60 (P&H)
325 AIR 1965 Punj 140

96
this case the Punjab High Court has dissented from its decision in Chhaju Ram v.
Surindar Kumar.326 In Sarada Prasad Tej v. Triguna Charan Ray,327 the previous

day to the Registrar visiting the testatrix at her house, the testatrix had put her
mark and the Will was signed by one attesting witness. She was identified to the
Registrar by the scribe whereupon the Registrar put his signatures as the second
attesting witness endorsing on the Will that the testatrix had admitted the
execution of the Will. It was held that the Will was properly attested. Umakanta
Das Bairiganjan Bhuyan Mahapatra v. Bishwambhar Das Mahapatra,328 a

testator purporting to execute the Will got it signed by the scribe and deposited it
with the Registrar under section 42 of the Indian Registration Act. The Will was
not attested by any witness. On the cover there was an endorsement containing
a description of the Will and signed by the testator and below it was an
endorsement by the Sub-Registrar who did not sign it; there were also the
signatures of the pleader who identified the testator. It was held that the Will was
not validly executed. There is no bar on a scribe signing the Will as an attesting
witness.329 There is no bar on an authenticating authority, to sign the Will as an
attesting witness. In State of Punjab v. Vishwajit Singh,330 an SDM was
authorized to authenticate Wills. At the time of the authentication of the Will, he
read over the Will and explained its contents in Hindi to the testatrix. Thereafter
she appended her signatures thereon and the SDM also signed the Will in her
presence. The Court held that in these circumstances the authenticating officer
can also be an attesting witness, as he complied with all the formalities of
attestation of the Will.

2. Genuineness of Will

It is well-settled that one who propounds a Will must establish the

competence of the testator to make the Will at the time when it was executed by
adducing prima facie evidence proving the competent of the testator and

AIR 1951 (38) Punj 305

AIR 1922 Pat 402
AIR 1929 Pat 401
Sita Ram v. R D Gupta, AIR 1981 P&H 83
AIR 1987 P&H 126
97
execution of the Will in the manner contemplated by law.331 The factors, such as
the Will being a natural one or being registered or executed in such
circumstances and ambience, as would leave no room for suspicion, assume
significance. If there is nothing unnatural about the transaction and the evidence
adduced satisfied the requirement of proving a Will, the court would not return a
finding of ‘not proved’ merely on account of certain assumed suspicion or
supposition. Who are the persons propounding and supporting a Will as against
the person disputing the Will and the pleadings of the parties would be relevant
and of significance.332 Where, however, there are suspicious circumstances, the
onus is on the propounder to explain them to the satisfaction of the court before it
accepts the Will as genuine333 (Refer Annual Survey of Indian Law). Even where
the circumstances give rise to doubts, it is for the propounder to satisfy the
conscience of the court. The suspicious circumstances may be regarding the
genuineness of the signature of the testator, the condition of the testator’s mind,
the disposition made in the Will being unnatural, improbable or unfair in the light
of relevant circumstances, or there might be other indications in the Will to show
that the testator’s mind was not free. All legitimate suspicions should be
completely removed before the document is accepted as the last Will of the
testator.334 In Krishan Kumar v. Daryao Singh,335 evidence of deed writer and
attesting witness proved that the testator was not influenced by defendant. The
fact that the testator was illiterate, blind and hard of hearing did not mean that his
mental faculties were affected. The defendant, beneficiary looking after old
testator had accompanied the testator for execution of Will. This did not show
active participation of the defendant in execution of Will thereby creating no
suspicious circumstances. Proof cannot be mathematically precise and certain

Bhagwan Kaur v. Chetan Singh, AIR 1988 P& H 198, Also refer Annual Survey of Indian Laws.
Madhukar D. Shende v. Tarabai Aba Shedage, S.C. Appeal (civil) 110 of2002 decided on 9-1-02
Raja Ram Singh v Arjun Singh, AIR 2002 Del 338, T. Sarveswara Rao v T. Sathyanarayana, AIR
2002 Mad 487, Janaki Bohindar v Pradeep Kumar Bohidar, AIR 2002 Ori 101, Sidhi Ram v Ram
Asra, AIR 2002 NOC 48, Madhukar D Shende v Tarabai Aba Shegade, AIR 2002 SC 637, Rama
Kant Chaturvedi v Mithlesh Chandra Chaturvedi, AIR 2002 NOC (Del), Santosh Kumari v Vijay
Kumari, AIR 2002 HP 103, Daya Devi v Angoori Devi, AIR 2002 Del 295, Arun Kumar Sharma
v Asha Sharma, AIR 2002 166 (AP) NOC (Also Refer Annual Survey of Indian law)
Meenakshiammal (Dead) through L.Rs v. Chandrasekaran, 2004 AIR SCW 6254
AIR 2005 P&H

98
and should be one satisfaction of a prudent mind in such matters.336 Where a

testator made a bequest in favour of all his family members excluding the eldest
son who was adequately compensated with more than what other could get
through Will, the Court remarked; “Ungratefully the defendant questions the
generosity of his father” and dismissed the appeal337

VIII. PROOF OF A WILL

1. Important Elements to be Proved

A person who propounds the Will or produces the Will before the Court
and wants the Court to rely upon the same has to prove that:

(i) the Will in question is the legal declaration of the intention of the
deceased;338

(ii) the testator when executed the Will was in a sound and disposing state of
mind, and339

(iii) the testator had executed the Will of his own freewill, meaning thereby, he
was a free agent when he executed the Will 340

2. Mode of Proof

The onus of proof rests squarely on the person propounding a Will and in
the absence of any suspicious circumstances surrounding its execution, the proof
of testamentary capacity and testator’s signatures as required by law would
normally suffice in discharging the onus. Where, however, suspicious
circumstances are found to exists, the propounder of the Will must explain them
and dispel all the suspicions to the satisfaction of the Court before it is accepted
as genuine. This would be so even in those cases where such a plea has not

Sridevi v. Jayaraja Shetty, 2005 AIR SCW 605

Mathew v. Devassykutty, AIR 1988 Ker 315, Also refer Annual Survey of Indian Laws.
S. Kaliammal v K. Palaniamumal, AIR 1999 Mad 40, Amatjeet Singh v State, AIR 1999 Del 33,
Also refer Annual Survey of Indian Laws.
Ramesh v A. Manohar Prashad, AIR 1999 Mad 149 & Bern Ram v Shankar Dass, J& K 55
Sumitra Devi Koehhar v State, AIR 1999 Del 226, Also refer Annual Survey of Indian Laws.
340
Vijayaben Vashram v. State, AIR 1989 Guj 75 (79, 80, 81): (1988) 2 GLR 616.
99
been raised and on proved circumstances had given rise to doubt. In such cases
also, it is for the propounder to satisfy the conscience of the Court.341

It is well-established that in a case in which a Will is prepared under

circumstances which raise the suspicion of the Court that it does not express the
suspicion. What are suspicious circumstances must invariably be judged in the
facts and circumstances of each particular case.

The mode of proving a Will does not ordinarily differ from that of proving
any other document,342 except as to the special requirement of attestation

prescribed in the case of a Will by section 63 of the Indian Succession Act

1925,343 of course, read with sections 67, 68 and 69 of the Evidence Act. Onus of
proof of the Will is on the propounder or beneficiary of the Will.344 As in case of
other documents so in the case of proof of Wills it would be ideal to expect proof
with mathematical certainty. The test to be applied would be the usual test of the
satisfaction of the prudent mind in such cases.345 It stands settled that the Will is
to be proved like any other document. The test to be applied is the usual test of
the satisfaction of the prudent mind in such matters. Section 63 of the Indian
Succession Act required a Will to be attested by atleast two witnesses. Where
the execution of the Will is surrounded by suspicious circumstances the
suspicion cannot be removed by the mere assertion of the propounder that the
Will bears the signature of the testator or that the testator was in the sound
disposing state of mind and memory at the time he made the Will.346 Will is a
sacrosanct document v/hich comes into force after the death of executants. This
special document requires a special mode of proof, as required under section 63

Rani Devi v Ashok Kumar, AIR 1999 Del 109, Babu Ram v Parakutty, AIR 1999 Ker 274
Lacchman Singh v Raja Ram Singh, AIR 1999 SC 1756, Also refer Annual Survey of Indian
Laws
Damoder Singh v. Raj Mohinder Kaur, (1985) 1 LLR 737 (P&H).
Shashi Kumar Banajee v. Subodh Kumar, AIR 1964 SC 529 (531) (Wanchoo, J.); H.
Venkatachala Iyengar v. B.N. Thimmajamma, 1959 (Supp) 1 SCR 426 (443) (Gajendragadkar, J.);
Rani Pumima Devi v. Khagendra Narayan Dev, (1962) 3 SCR 195 (199) (Wanchoo J.); Aklok
Kumar Aich v. Asoke Kumar Aich, AIR 1982 Cal 599; Indu Bala Bose v. Manindra Chandra
Bose, AIR 1982 SC 133: (1982) 1 SCC 20: (1982) 1 SCI 132: (1982) 1 SCR 1188.
Bhagyawati Jain v. General Public, (1994) 1 HLR 398 (P&H) (DB).
Venkatachala Iyengar v. Thimmajamma, 1959 (Supp) 1 SCR 426 (443), Sushila Devi v. Krishna
Kumar, AIR 1971 SC 2236.
346
Khanda Singh v. Natka Singh, (1994) 3 Sim LJ 2098 (2099) (P&H).
100
of the Indian Succession Act. The propounder of the Will is also expected to
remove all suspicions attached to its execution.347

Section 68 of the Evidence Act which relates to those documents which

are required to be proved at the trial stage, has to be read subject to section 58
of the Evidence Act and as obviating the necessity for calling an attesting witness
to prove a registered will unless the execution of the Will or the attestation is in
dispute. In the absence of any such plea in the written statement, it will be height
of technicality and waste of judicial time to insist on examination of an attesting
witness before a Will could be used in evidence.348

Where the plaintiff himself accept the execution of the Will, but chooses to
contest only on legal aspects touching upon the validity of the bequeathment of
certain properties. Section 68 of Indian Evidence Act does not come into play
and is totally inapplicable. The words “it shall not be used as evidence” contained
under section 68 of the said Act are very significant while considering this aspect.
In the instant case section 58 of the Evidence Act would be applicable.349

The scribe and the Sub-Registrar, can prove execution of the Will and its
attestation, and their statements satisfy the requirements of the section. (Section
63 of Indian Succession Act).350 Yet where an unregistered Will was written by
manner to the testatrix, there being no material on record to show that the
testatrix could read or write, and the Will for about 15 years, did not see light of
the day after death of testatrix, the validity of the Will could not be upheld.351

3. Execution and Attestation of the Will, how Proved

If a testator is unable to write his name, he may put his mark on the
testament,352 Testator can execute the Will by affixing his mark though he is

347 Jagjit Singh v. Pritam Singh, 1994 (I) HLR 265 (272) (P&H).
348 Thayyullathil Kunhikannan v. Thayyullathil Kalliani, (1990) 1 Hin LR 235: (1990) 1 Kar LJ 114
(Ker).
349 Valluri Jaganmohini eetharama Lakshmi v. K.R. Rao, (1994) 2 HLR 462.
350 Ajmer Singh v. Tirath Singh, (1983) 2 LLR 364; Sita Ram v. R.D. Gupta, AIR 1981 P&H 83;
Villiammal v. R. Gounder, (1991) 2 MLJ 478.
351 Sat Pal v. Sadhu Ram, 1989 Punj LJ 581: 1989 Sim LJ 754.
352 See General Clauses Act, section 3(56). But the Court requires a stricter proof, when a mark is
made. Unbounded confidence in the drawer of the Will and extreme debility of the testator may
militate against the genuineness of the Will, Donnelly v. Broughton, 1891 App Cas 335 (442).
101
capable of writing but owing to weakness he is unable to put his signatures.353
The testator can sign or affix his mark. Even if the testator is capable of writing
but, on account of weakness, he is unable to put his signature, he can execute
the Will by affixing a mark or even thumb-impression is held to be good,354 or it
has got to be signed by some other person in his presence and by his direction.
The signature or mark of the testator, or the signature of the person signing for
him, has to appear at a place on the testament from which it would appear that
by that mark or signature the document was intended to have effect as a Will.355

When the Court has to form an opinion as to the identity of handwriting or

finger impression, the opinions upon that point of person specially skilled in
questions as to the identity of handwriting or finger impressions are relevant.356

The science of comparison of finger-prints has developed to a stage of

exactitude. It is quite possible to compare the impressions, taken from finger
prints of individuals with the disputed impression, provided there are sufficiently
clear and enlarged photographs are available.357 It is a matter of common
knowledge that science of fingerprints is more exact than that relating to
handwriting.358

In the microscopic sense, no two impressions of the same digit or thumb

of the same individual are ever identically similar, even though they may have
been obtained at the same time and under the same set of conditions. These
differences may be due to variations in the pressure of the thumb, in the area or
surface which contacts the paper, and in the position in which the contact is

Other person is to sign the name of the testator not his own, Chilakamuni Chinna Pullappa v.
Guruka Chinna Bayanna, AIR 1962 AP 54 (56) (Satyanarayana Raju, J.).
S.D. Saha v. Saraswati Mondal, AIR 1991 Cal 166.
Sachi Dulal Saha v. Saraswati Mondal, (1990) 1 Cal LT 33 (Cal).
Section 63, Indian Succession Act, 1925; Harish Chandra v. Basant Kumar, (1973) 39 Cut LT 672
(675,676) (B.K. Patra, J.).
Section 45, Evidence Act.
Govinda Reddy (in re:'l, ILR 1957 Mys 177: AIR 1958 Mys 150 (179) (H. HOmbe Gowda, J.);
Bhaluka Behera v. State, ILR 1957 Cut 200: AIR 1957 Ori 172 (Mohapatra, J.).
Hukum Singh v. Udham Kaur, (1969) 71 PLR 908 (911) (Sodhi, J.); Bhagwan Kaur v. Shri
Maharaj Krishna Sharma, (1973) 4 SCC 46 (53): AIR 1973 SC 1346 (Khanna, J.); Venkateswar
Reddy v. Anjamma, AIR 1966 AP 354 (360) (Narasimhan, J.): when the direct evidence offered of
execution of the will is unreliable the situation may not be improved by a comparison of
signatures.

102
made. No matter what may be the cause of superficial difference, the fact will
always remain that the pattern and the sequence of the ridge characteristics will
always be the same. To begin with the pattern should be examined first. If the
patterns are different, it is a conclusive proof that the impressions are of different
persons. If the patterns are the same, the core and the delta should be located. If
the various ridge characteristics are all found in the same order in the impression
under comparison, it can be safely stated that the impressions are from the same
finger or thumb of the same individual. Likewise from the delta as a starting point
and the ridge intervening between the core and the delta may also be counted.359

In order to hold a document to be a Will it has to be proved that the same

is in conformity with the provisions as regards the execution and attestation as
provided under section 63 of the Act and executed by a person competent to
make it. The Will must relate to the property of the maker which he intends to
dispose of and if no reference is made to the disposal of the property, the
document cannot be termed to be a Will. The declaration intended to take effect
after the death of the testator impliedly means that declaration should not be
meant to take effect immediately and if it does so then it is not a Will. Section 63
of the Act regulates the execution of the Will providing that the testator shall sign
or affix his mark to the Will or it shall be signed by some other person in his
presence and by his directions. Signature or mark of the testator, or the signature
of the person signing for him shall be so placed that it shall appear that it was
intended thereby to give affect to the writing as a Will. Such a Will is required to
be attested by two or more witnesses, each of whom is required to see the
testator signing or affixing his mark to the Will or see some other person signing
the same, in the presence and by directions of the testator. It is, however, not
necessary that more than one witness be present at the same time, and no
particular form of attestation is necessary.360

Kamla Kumar v. Ratan Lai, AIR 1971 All 304 (307) (M.H. Beg, J.): Quotes “The Identification of
Thumb-Impression and Cross-examination of Finger Pring Experts” by M.K. Mehta, 2nd Edn.,
1963; See also ‘Law of Identification and Discovery’ by .B. Sinha, 6th Edn., p. 147.
Bhagya Wati v. General Public, 1994 (1) HLR 398 (399,400,401) (P&H) (DB).
103
 Under section 63 of the Indian Succession Act it is provided that the Will
has to be attested by two or more witnesses and each of these witnesses must
have seen the testator sign or affix his mark to the Will, or must have seen some
other person signing the Will in the presence and by the direction of the
testator,361 or must have received from the testator a personal acknowledgment
of his signature or mark or of the signature of such other person; and each of the
witnesses has to sign the Will in the presence of the testator. Section 68 of the
Indian Evidence Act provides that if a document is required by law to be attested,
it shall not be used as evidence until one attesting witness at least has been
called for the purpose of proving: its execution, if there be an attesting witness
alive, and subject to the process of the court and capable of giving evidence.
Thus, section 68 makes an important concession to those who wish to prove and
establish a Will in a Court of law. Although the Indian Succession Act requires
that a Will has to be attested by two witnesses, section 68 of the Evidence Act
permits the execution of the Will to be proved by only one attesting witness being
called. But that attesting witness must be in a position to prove the execution of
the Will.362

For compliance it is not necessary that the witnesses and the scribe of the
Will must state that the testator had signed the Will in the presence of the
witnesses who had attested it in his presence. An inference from the attending
circumstances of this effect can be legitimately drawn by the Court, as held by
the Supreme Court in Naresh Charan Des v. Paresh Charan Dass Gupta.363

It is not necessary that attesting witness should be able to identify the

signature of each other or even to know each other and as such there can be no
basis for the requirement that the witnesses should identify each other’s
signature. An attesting witness, supposing that he is unacquainted with the
signature of the other attesting witnesses, cannot truly speaking identify the
signature of such other witness, and if he states that he does,. The only meaning
attributable to such a statement is that as the document bears the signature of

Bewa v. Kashinath Chandra Behera, (1986) 62 Cut LT 360 (DB).

Harish Chandra v. Basant Kumar, (1973) 39 Cut LT 672 (676) (B.K. Patraj, J.); See also Jamail
Singh v. Narain Singh, AIR 1984 P&H 181: 1984 Rev LR 131:1984 Cur LJ (Civ & Cr) 148.
363
AIR 1955 SC 363: 1955 (1) SCR 1035: 1955 SCJ 293.
104
two persons as attesting witnesses and one of the signatures is his, the other
signature must necessarily be that of the other witness,364
Where, however, execution of the Will has never denied as such and to
prove the Will the scribe and one of marginal witnesses was produced who
deposed to the relevant aspects and were not cross-examined the Will stood duly
proved in accordance with section 63, Succession Act. Since the witnesses were
not cross-examined on the question of attestation inference of attestation may be
drawn.365
The place at which the signature of thumb-mark of a witness is subscribed
to the document is not a determinative factor for whether a witness or is not an
attesting witness, it is the witness which has to be seen for the purpose366
4. When Attesting Witnesses Need not be Called
In certain cases, a relaxation can be given for not calling the attesting
witnesses:—
(i) When the document is thirty years old and the court, under section 90 of
the Evidence Act, 1872, presumes it to have been duly executed and
attested (Refer: AIR 1926 Cal 102).
(ii) When a party to the document against whom it is sought to be used,
admits execution by himself (Refer: AIR 1990 Ker 226).

(iii) When the document is registered one and its execution is not specifically
denied by the executant against whom it is to be used (Refer Proviso to
section 68 of the Evidence Act, 1872).

(iv) When the document is not produced on notice and secondary evidence of
its contents is given under section 65(a) of the Evidence Act, 1872 (Refer
section 89 of the Evidence Act, 1872 and AIR 1925 All 56).

(v) When the document is a Will which has been admitted to probate and is
proved by the probate, the production of the original having been

364 Krishna Kumar Sinha v. Kayastha Pathshala, Allahabad, ILR (1965) I All 483: AIR 1966 All 570
(576) (Gangeshwar Prasad, J.).
365 Bhagwati v. Sita Devi, (1983) 85 Punj LR 490.
366 China Narasimhalu v. Kurubara Basappa, 1983 Hindu LR 426.

105
 dispensed with under the second Exception to section 91 of the Evidence
Act, 1872.

Refer to Proviso to section 68 of the Evidence Act, 1872 which indicates

an uncompromising position in respect of Will which is kept in mind.

5. Nature of Evidence

A Will is one of the most solemn documents known to law. By it a dead

man entrusts to the living, the carrying out of his wishes, and as it is impossible
that he can be called either to deny his signature or to explain the circumstances
in which it was executed it is essential that trustworthy and effective evidence
should be given to establish compliance with the necessary forms of law.367 It
seems impossible to enunciate any specific standard of proof which will be
required to establish the authenticity of a Will in any given case. Everything
depends upon the circumstances of the particular case under consideration.368
Section 3 of the Evidence Act shows the meaning of proof to be that the fact (in
this case the Will) is proved when the court, after considering the matters before
it, either believes it to exist or considers its existence so probable that a prudent
man ought, under the circumstances of the particular case, to act upon the
supposition that it exists.369 Each case must therefore be determined on its own
facts.370 The party who applies for Probate or for Letters of Administration with a
Will annexed is no doubt required to prove the Will. Such proof is usually
furnished by the evidence of persons in whose presence the Will was actually
executed or who subscribed their names to the document, that is to say, of
persons who saw the testator executing it and who put their own names to the
document as attesting witnesses. In a case where such attesting witnesses are
produced and they give clear and cogent testimony regarding execution, one

Ram Gopal Lai v. Aipna Kunwar, 49 IA 413: 44 All 495: AIR 1922 PC 366 (369) (Lord
Buckmaster, J.); Silva Bai v. Noronha Bai, AIR 1956 Mad 566 (Ramaswami, J.).
Keshev v. Vithal, AIR 1925 Nag 427 (428): 8 NLJ 123: 80 IC 468 (Findley, O.C.J.).
Shankarsan Panda v. Laxmindhar Nayak, AIR 1991 On 23, Also refer Annual Survey of Indian
Laws
Jarat Kumari v. Bissessur Dutt, 39 Cal 245 (260-261) (Woodroffe, J.).
106
should require very strong circumstances to repel the effect of such testimony. It
will not do to talk airily about the circumstances of suspicion.371

In the case of a Will reasonable, natural and proper in its terms, it is not in
accordance, with sound rules of construction to apply to it canons, which demand
a rigorous scrutiny of documents of the opposite party which can be said,
namely, that they are unnatural, unreasonable or tinged with impropriety.372 It is

not permissible for the Court to do, what Courts are often invited to do on behalf
of objectors, namely, to make up the mind about the iniquitous character of the
contents of the Will and then look at the positive or direct evidence in favour of
the execution of the Will from that standpoint. Probability, however, is not the
main thing to be considered in connection with the question as to whether
probate should or should not be granted. The Court has to be satisfied as to
whether the Will was, as a matter of fact, executed and if so executed, by a free,
capable and willing testator.373

What is the true legal position in the matter of proof of Wills? Mr. Justice
Gajendragadkar, gives the following answer in H. Venkatachala Iyengar v.
Thlmmajamma:374

“Section 67 and 68 of the Evidence Act are relevant for this purpose.
Under section 67, if a document is alleged to be signed by any person, the
signature of the said person must be proved to be in his handwriting, and for
proving such a handwriting under sections 45 and 47 of the Act, the opinions of
experts and of persons acquainted with the handwriting of the person concerned
are made relevant. Section 68 deals with the proof of execution of the document
required by law to be attested; and it provides that such a document shall not be
used as evidence until one attesting witness at least has been called for the
purpose of proving its execution. These provisions prescribe the requirements
and the nature of proof which must be satisfied by the party who relies on a

Gopal Nath v. Baidya Nath, ILR (1938) 2 Cal 173 (177) (Biswas, J.).
Sarojini Dasi v. Hari Das Ghose, 49 Cal 235 (244) (Mokeiji, J.).
Govil Shaw v. Patia, AIR 1938 Cal 290 (294).
1959 (Supp) 1 SCR 426 (442446), See also Rani Pumima Devi v. Khagendra Narayan Deb,
(1962) 3 SCR 195; Shashi Kumar Baneijee v. Subodh Kumar Banerjee, AIR 1964 SC 529 (531)
(Wanchoo, J.); Kameswara Rao v. Suryaprakash Rao, AIR 1962 AP 178 (Seshachalapati, J.).

107
document in a Court of law. Similarly, section 59 and 63 of the Indian Succession
Act are also relevant. Section 59 provides that every person of sound mind, not
being a minor, may dispose of his property by Will and the three illustrations to
this section indicate what is meant by the expression ‘a person of sound mind’ in
the context. Section 63 requires that the testator shall sign or affix his mark to the
Will or it shall be signed by some other person in his presence and by his
direction and that the signature or mark shall be so made that it shall appear that
it was intended thereby to give effect to the writing as a Will. This section also
requires that the Will shall be attested by two or more witnesses as prescribed...
Thus, the question as to whether the Will set up by the propounder is proved to
be the last Will of the testator has to be decided in the light of these provisions.
Has the testator signed the Will? Did he understand the nature and effect of the
dispositions in the Will? Did he put his signature to the Will knowing what it
contained? Stated broadly it is the decisions of these questions which determines
the nature of the finding on the question of proof of Wills. It would prima facie be
true to say that the Will has to be proved like any other document except as to
special requirements of attestation prescribed by section 63 of the Indian
Succession Act. As in the case of proof of other documents so in the case of
proof of Wills it would be ideal to expect proof with mathematical certainty. The
test to be applied would be the usual test of the satisfaction of the prudent mind
in such matters.

There may, however, be cases in which the execution of the Will may be
surrounded by suspicious circumstances. The alleged signature of the testator
may be very shaky and doubtful and evidence in support of the propounder’s
case that the signature in question is the signature of the testator may not
remove the doubt created by the appearance of the signature; the condition of
the testator’s, mind may appear to be very feeble and debilitated; and evidence
adduced may not succeed in removing the legitimate doubt as to the mental
capacity of the testator; the dispositions made in the Will may appeal to be
unnatural, improbable or unfair in the light of relevant circumstances; or, the Will
may otherwise indicate that the said dispositions may not be the result of the

108
testator’s freewill and mind. In such cases the court would naturally expect that
all legitimate suspicions should be completely removed before the document is
accepted as the last Will of the testator.”

The Apex Court again in Daulat Ram v. Sodha, AIR 2005 SC 233: (2005)
1 SCC 40: 2004 (9) SCALE 442: 2004 (5) CTC 790, stated the law thus:—

“Will being a document has to be proved by primary evidence except

where the court permits a document to be proved by leading secondary
evidence. Since it is required to be attested, as provided in section 68 of the
Indian Evidence Act, 1872, it cannot be used as evidence until one of the
attesting witnesses at least has been called for the purpose of proving its
execution, if there be an attesting witness alive, and subject to the process of
court and capable of giving the evidence. In addition, it has to satisfy the
requirement of section 63 of the Indian Succession Act, 1925. In order to assess
as to the whether the Will has been validly executed and is a genuine document,
the propunder has to show that the Will was signed by the testator and that he
had put his signatures to the testament of his own free Will; that he was at the
relevant time in a sound disposing state of mind and understood the nature and
effect of the dispositions and that the testator had signed it in the presence of two
witnesses who attested it in his presence and in the presence of each other.
Once these elements are established, the onus which rests on the propounder is
discharged. But where there are suspicious circumstances, the onus is on the
propounder to remove the suspicion by leading appropriate evidence. The
burden of proof that the Will was forged, or that it was obtained under undue
influence or coercion or by playing a fraud is on the person who alleges it to be
so.

6. Opinion of Handwriting Expert as to Signature

It is necessary to observe that expert’s evidence as to handwriting is

opinion evidence and it can rarely, if, ever, take the place of substantive
evidence. Before acting on such evidence it is usual to see if it is corroborated
either by clear direct evidence or by circumstantial evidence. In a case where
there are no suspicious circumstances, the mere opinion of the expert cannot
109
override the positive evidence of the attesting witnesses.375 In case of proof of
execution of Will, opinion of handwriting expert is admissible, however,
corroboration of opinion by other evidence is necessary.376 Because of
circumstances of the instant case the opinion of expert as to identity of signature
of testator in the Will is not relevant.377

7. Burden of Proof

The question of burden of proof arises only when the execution of the Will
is denied. Where it was specifically asked whether the execution of the Will was
denied, and the ansv/er was, “No” the question whether the burden of proof has
been discharged becomes immaterial.378 The initial onus of proof of the Will is on
the court that the instrument is the last Will of a free and capable testator.379
Admittedly there is no presumption that the Will in question is a legal and valid
Will and its execution is to be proved in accordance with law i.e,, section 63 of
the Indian Succession Act, and also that it is the last and genuine testament
explaining ail suspicious circumstances alleged to be shrouding it.380

The onus of proof that the testator was a major when he executed the Will
is on the person who relies on the Will.381

It is well-established that in a case in which a Will is prepared under

circumstances which raise the suspicion of the court that it does not express the

Shashi Kumar Banaijee v. Subodh Kumar Banaijee, AIR 1964 SC 529 (537) (Wanchoo, J.); See
also Moonga Devi v. Radha Ballah, AIR 1972 SC 1471: 1973 (2) SCC 112: 1973 UJ123
Joseph v. Aliyamma, AIR 1991 NOC 28 (Ker).
R. Saraswathy v. P. Bharathy Ammal, (1988) 2 Hin LR 224: (1988) 2 Ker LT 736.
Mahesh Chandra Gupta v. 3rd Addl. District Judge, 1985 All RC 318.
Shashi Kumar Baneijee v. Subodh Kumar Baneijee, AIR 1964 SC 529 (531) (Wanchoo, J.); Rani
Pumima Devi v. Khagendra Narayan Dev, (1962) 3 SCR 195 (199): AIR 1962 SC 567 (Wancho,
J.); Rangawwami Raja v. Venkata Raj, ILR (1965) 1 Mad 722 (724) Anantanarayanan, J.); Dinesh
Chandra v. Bondu Bhashini, AIR 1969 Assam 118 (119) (M.C. Pathak, J.); Gomtibai v.
Kanchedilal, AIR 1949 PC 272; Barry v. Butlin, (1838) 2 Moo PC 480; Venkateswara Reddy v.
Anjamma, AIR 1966 AP 354 (Narasimhan, J.), Indu Bala Bose v. Manindra Chandra Bose, AIR
1982 SC 133: (1982) 1 SCC 20: (1982) 1 SCJ 132: (1982) 1 SCR 1188. Alok Kumar Aich v. .
Asoke Kumar Aich, AIR 1982 Cal 599; Shri Ram v. Kasturi Devi, AIR 1984 All 66 relied on H.
Venkatachala Iyengar v. B.N. Thimmajamma, AIR 1959 SC 443: 1959 (1) LLJ 450: 1958-59 (15)
FJR 338; Ramchandra Rambux v. CHampabai, AIR 1965 SC 354: 1964 (6) SCR 814; Rajkishore
Panda v. B.M.H. Bidyapitha, (1986) 61 Cut LT 501 (DB).
Bishamber Lai Sud v. Ajay Kumar, 1995 AIHC 1417 (HP).
Kalidindi Venkata Subbaraju v. Chintalaphathi Subbaraju, (1968) 2 SCR 292 (299): AIR 1968 SC
947 (Shelat, J.).
110
mind of the testator, it is for those who propound the Will to remove that
suspicion.382

If the document is in a language not understood by the testator, who has

put a mark thereon to signify his signature, the onus lies on the propounder to
prove that the document was explained and interpreted to him and was executed
with the knowledge of its contents.383 It is well-settled that the onus is on the
propounder to satisfy the court that the Will was not only the physical but also the
mental act of the testator.384 Where there exist reasonable grounds for disputing
the sanity of the testator, the onus would lie on the person propounding the Will
to prove affirmatively that the testator was of sound mind at the date of execution
and knew and approved the contents thereof.385

But however, in case the Will does not create any doubt as to soundness
of the testator’s mind nor any vagueness in the contents of the Will,386 express
statement of witnesses about the soundness of mind may not be required.387

If once the execution and attestation is established by the propounder, the

onus to prove that the Will was executed under undue influence shifts on the
person who alleges undue influence, fraud or coercion.388

The burden lies on propounder of Will to satisfy the conscious of Court

that the Will was duly executed by testator.389

It is now well-settled that initial onus to prove the Will is on the

propounder.390

Gorantla Thataiah v. Venkatasubbaiya, (1968) 3 SCR 473 (478): AIR 1968 SC 1332; Ramniwasi
v. Madan Lai, AIR 1973 Raj 295 (299): 1973 WLN 65 (Kahn Singh, J.); Indu Bala Bose v.
Manindra Chandra Bose, AIR 1982 SC 133: (1982) 1 SCC 20: (1982) 1 SCJ 132: (1982) 1 SCR
1188.
Fathima v. Mohd. Mohiuddin, (1971) 2 MLJ 451 (463) (K.S. Palaniswamy, J.).
Guru Dutt Singh v. Durga Devi, AIR 1966 J&K 75 (80) (Murtaza Fazal Ali, J.).
Billeswar Kumar v. Nirupama, AIR 1973 Cal 460 (464) (A.K. Sinha, J.).
P.P.K. Gopalan Nambiar v. P.P.K. Balakrishna Nambiar, AIR 1995 SC 1852, Gathi Devi v. Lalu
Narain, AIR 1994 NOC 23 (Raj.), Also refer Annual Survey of Indian Laws
Madan Lai v. Satya Pal, 1981 RD 265; Alok Kumar Aich v. Asoke Kumar Aich, AIR 1982 Cal
599.
Hari Prasad v. Bhagwan Das, AIR 1972 Pat 146 (B.D. Singh, J.); Dinesh Chandra v. Bandu
Bhaisini, AIR 1969 Assam 118 (119) (M.C. Pathak, J.).
Sharayu Yadavrao Barde v. Sindhubai, (1997) 4 Bom CR 425.
Mehar Singh v. Mohinder Kaur, (1998) 1 Punj LR 59.
111
 Since the Will altering the normal rule of succession, burden lies upon
person putting forward the Will, to establish the truth and validity of Will.391

8. Will 30 Years’ Old

Section,. 90 of the Evidence Act provides that where any document,

purporting or proved to be thirty years’ old, is produced from any custody which
the Court in the particular case considers proper, the Court may presume that the
signature and every other part of such document; which purports to be in the
handwriting of any particular person, is in that person’s handwriting, and, in the
case of a document executed or attested, that it was duly executed and attested
by the persons by whom it purports to be executed and attested. Documents are
said to be in proper custody if they are in the place in which, and under the care
of the person with whom, they would naturally be: but no custody is improper if it
is proved to have had a legitimate origin, or if the circumstances of the particular
case are such as to render such an origin probable. Section 90 of the Evidence
Act does apply to Wills as such as to other documents.392 When the Court does
presume under section 90 about the Will more than 30 years old, no further proof
of the facts is necessary under section 69 of that Act,393 Which provides:

“If no such attesting witness can be found, it must be proved that the
attestation of one attesting witness at least is in his handwriting, and that the
signature of the person executing the document is in the handwriting of that
person.”

The reason for the rule embodied in section 90 of the Evidence Act, is
based on the impossibility of obtaining living testimony to the signing or
handwriting of a document. If this is a reason which underlies section 90 of the
Evidence Act, it logically follows that time should run from the date which the
document bears whether it is a Will or any other document. The outer limit of time

Baliram Atmaram Kelapure v. Indira Bai, (1996) 3 Sim LJ 2194.

Mannalal v. Kashibai, 73 IA 223: AIR 1947 PC 15 (Sir John Beaumont); Mahendra Nath v. Netai
Charan, ILR (1943) 1 Cal 392 (395) Rau, I).
393
Mannalal v. Kashibai, 73 IA 223: AIR 1947 PC 15.

112
is not the date when it was filed in Court, but the material date in this behalf is the
date when the document is tendered in evidence.394

Production of a copy is, however, not sufficient to justify the presumption

of due execution of the original under section 90 of the Evidence Act,395 even
though it be obtained from the office of the Sub-Registrar, who registered the
Will.396

9. Delay
Delay, even undue delay, in producing the Will for probate does not by
itself militate against its genuineness when execution and attestation are duly
proved.397 The cause for the delay may be the procurement of a large amount of
money for probate duty, or it may be due to death of parties and even of
attestors. The presumption of due execution and attestation can rightly be
invoked where the aforesaid deaths cause the delay.398 In Mst. Biro v.
Atmaram,399 the Privy Council found it difficult to accept delay as justified when
the Will was not acted upon for long nor was it produced at a critical time and
there were suspicious circumstances against the genuineness of the testament.
If the execution of the Will is true and valid on the evidence offered, even long
delay will not at all matters,400 delayed production of Will is not a suspicious
circumstance.401 The court will call for strict proof of execution when delay is
clubbed with factors which throw doubts on due execution,402 or is
inefficacious,403 or is unregistered,404 or bristles with suspicious circumstances,405

394
Sarat Chandra Mondal v. Panchanan Mondal, AIR 1953 Cal 471 (472): 58 CWN 271 (Das, J.);
Surendra Krishna v. Mohd. Syed Ali, 63 IA 85: AIR 1936 PC 15.
395
Basant Singh v. Brij Saran Singh, 62 IA 180: 57 All 494: AIR 1935 PC 132 (Lord Thankerton).
396
Mehtab Singh v. Amrik Singh, ILR (1957) 1 Punj 418 (422) (Bishan Narain, J.).
397
Gayeshwar Prasad Prasad v. Mst. Bhagwati, AIR 1933 Pat 612 (613).
398
Gayeshwar Prasad Prasad v. Mst. Bhagwati, AIR 1933 Pat 612 (613).
399
Mst. Biro v. Atmaram, 45 LW 451 (PC).
400
Manindra Chandra v. Mahalakshmi Bank, (1945) 2 MLJ 46 (48) (PC).
401
Bijoybala Sadhu v. Sanat Kumar Sadhu, (1988) 1 CHN 165 (Cal) (DB).
402
Dulhin Genda v. Hamandan, 30 MLJ 624 (PC).
403
Rosa Maria v. Jacob Souza, AIR 1924 Mad 151 (153).
404
Harimathi Devi v. Anath Nath Ray, AIR 1939 Cal 535 (539).
405
Baikuntha Nath v. Prasannamoyi, AIR 1922 PC 409 (411); See also Ram Gopal Lai v. Aipna
Kunwar, AIR 1922 PC 366: 44 All 495; Ramanandi Kuer v. Kalwati Kuer, AIR 1928 PC 2 (6): 55
IA 18.
113
or the testator is illiterate.406 Two Wills within a short time spell suspcions
particularly on the second will, demanding a very high degree of proof.407

10. Effect of Registration

The registration of a document is a strong circumstances that proper

parties had appeared before the registering officer and the latter had attested the
same after ascertaining their identities 408 The Indian Registration Act provides

that Wills may be registered. They are not compulsorily registrable. The mere
fact that a Will is not registered is not such a circumstances as must ipso facto
tell against the genuineness of the Will.409 When the propounder of the Will has
discharged the onus which rests upon him, the Will can be said to be true and a
valid document410 Registration of a Will itself is neither sufficient to prove the
sound disposing mind of the testator nor is enough to hold that the Will was duly
executed411 Non-registration may be due to a dislike for publicity of the

arrangements that one makes or to avoid expenses and trouble. If the testator
does not expect anybody to dispute his Will, when he had made a proper
disposition for his wife, son and daughter, he may not like to undergo the
formality of registration. Non-registration assumes importance when it exists with
one or more suspicious circumstances.412 Merely not keeping the unregistered
Will with the District Registrar cannot lead to any suspicion. Normally, a Will is a
secret document and is not disclosed even to the beneficiaries and especially in
the case where there is litigation pending in the proceedings for divorce with the
first wife 413 Indeed, the fact that the Will was duly registered after it had been

Baikuntha Nath v. Prasannamoy, AIR 1922 PC 409 (411).

Sadachi Ammal v. Rajathi Ammal, 1939 MWN 651 (664); See also China Basavayya v.
Elamanchili Bapammal, 10IC 420 (421).
Subhash Chander v. Prabhu Dayal, (1994) 1 HLR 108 (P&H).
Chinmoyee Shaha v. Debendralal Saha, AIR 1985 Cal 349: (1985) 89 CWN 832 (DB).
C. Nirmala v. C. Indira Devi, (1995) 1 HLR 114 (AP) (DB).
Khanda Singh v. Natha Singh, (1994) 2 HLR 169 (P&H).
Silva Bai v. Noronha Bai, AIR 1956 Mad 566 (569, 570) (Ramaswami, J.); see also Bachini Kaur
v. Punjab Kaur, (1961) 63 PLR193 (204) (Dua, J.).
413
Manorama Srivastavav. Saroj Srivastava, AIR 1989 All 17 (28).

114
executed ordinarily removes any ground for suspicion.414 Lord Sinha observed in
Ramnandi v. Kalawati415

“It is a circumstance which cannot be ignored, that though care was taken
to obtain as many as 14 witnesses to the Will, the simple precaution of getting
the Will registered in the local Registration office was not adopted, even though
registration of Wills is not compulsory. Nor can it be considered anything but
unusual and suspicious that no doctor or lawyer attested this will, specially in
view of its provisions practically disinheriting the widow and the only daughter
and the serious nature of the illness of the testator.”

Hence when a Will has been registered in the office of the Sub-Registrar,
a presumption in favour of its validity arises in law.416

If the evidence as to registration on a close examination reveals that the

registration was made in such a manner that it was brought home to the testator
that the document of which he was admitting execution was a Will disposing of
his property and thereafter he admitted its execution and signed it in token
thereof, the registration will dispel the doubt as to the genuineness of the Will.
But if the evidence as to registration shows that it was done in a perfunctory
manner, that the officer registering the Will did not read it over to the testator or
did not bring home to him that he was admitting the execution of a Will or did not
satisfy himself in some other way (as, for example, by seeing the testator read
the Will) that the testator knew that it was a Will the execution of which he was
admitting, the fact that the Will was registered would not be of much value.
Registration may take place without the executant really knowing what he was
registering.417

Mahindra Nath v. Netai Charan, ILR (1943) 1 Cal 392 (395) Rau, J.).
55 IA 18 (28): AIR 1928 PC 2.
Andal Amma (in re:), (1968) 1 MLJ 356 (360) (Ramaprasad Rao, J.); see also Irudayam Ammal v.
Satyanath Mary, (1972) 2 MLJ 508 (514) (Raammurti, J.); Mohd. Ihtishan Ali v. Jamna Prasad, 48
IA 365: AIR 1922 PC 56; Gopal v. Thakmji, AIR 1943 PC 83.
417
Bhau Saheb Tavnappa v. State, AIR 1982 Cal 236 (239,240): 2 Cal LJ 426.
115
IX. REVOCATION

A Will being an ambulatory418 instrument, is of its own nature revocable.

Even where a man should make his testament and last Will irrevocable in the
strongest and emphatic express words, yet he can revoke it. That which is by law
of its own nature revocable cannot be rendered irrevocable by a man’s act or
deed.419

Section 62 of Indian Succession Act, 1925 says that “A Will is liable to be

revoked or altered by the maker of it at any time when he is competent to
dispose of his property by Will. Since a testamentary intention is ambulatory till
death even if it is stated it is irrevocable, it does not alter its quality. A testator
who makes his testament and last Will irrevocable may yet revoke it420 However,
the question is as to how the Will is to be revoked if the testator so desires.

1. Statutory Provision

In Indian Law, as per section 69, Indian Succession Act, 1925, there is a
provision for revocation of Will by subsequent marriage, which is not applicable in
case of Hindus and Muslims, but applicable to Christains and Parsis and section
70 provides for other modes of revocation of unprivileged Wills or codicils. In
view of section 70, oral revocation of a Will is not permissible.

There are three modes of revocation of a Will. They are:

(1) by another Will or codicil;

(2) by destruction; or

(3) by marriage.

The mode of revocation by marriage is not grounded on any presumed

intention of the testator, but on grounds of policy. The other two modes are
based on the express or implied intentions of the testator.

Asa Nand v. Roshnibai, AIR 1921 Lah 353: 68IC 42.

50 Halsbury’s Law of England (4th Edn.), para 282.
(1910) 33 Mad 304; (1905) 27 All 14; AIR 1947 Pat 449; Hubert P. James v. Gulam Hussein
Pakseema, AIR 1949 PC 151; Ramautar Singh v. Sm. Ramsundari Kuer, AIR 1959 Pat 585.

116
2. Revocation by another Will or Codicil

Revocation may be effected by a subsequent Will, codicil or mere

obliteration of the whole Will by blackmarks, or by a letter addressed to a third
party.421

But in all these cases, the writing must be signed and attested by two
witnesses; then only there will be effective revocation.422 When Will has been
proved by producing registered copy the burden to prove revocation will be on
those who are claiming that it has been revoked.423 The law does not require the
compulsory registration of a Will. There is, therefore, no bar to its terms being
varied by an unregistered document.424

The requirements prescribed by the statutory law must be complied with.

The person must have also testamentary capacity at the time of revocation.

As a general rule, an express revocatory clause in a later Will operates to

revoke all prior Wills and codicils.425

But a later Will may or may not revoke an earlier Will. If portions are
inconsistent and contradictory, to that extent there is implied revocation 426

(i) Express Revocation

Revocation may be either express or implied.

A Will or codicil may operate as a revocation of a prior testamentary

instrument. No particular form of expression is necessary 427

A revocation may be any non-testamentary writing even declaring

unequivocally an intention to revoke.428

Spacklam’s Estate (in re:), (1938) All ER 345.

In the Estate of, Gosling, 11 PD 79: In the Estate of, Durraee, LR 2 P&D 406.
K. Nambiar v. T.T.P.V.I. Appissi’s Children L. Appissi, AIR 1990 NOC 164 (Ker).
Shambai v. Govardhan, AIR 1925 Sind 195 (199) (Rupchand Bila Ram, A.J.C.).
Southern v. Dening, (1882) 20 Ch D 99; Lowthorpe v. Lowthorpe, 1935 P 151.
Murray (in re:), (1956) 1 WLR 605; Wyatt (in re:), (1952) 12 TLR 1294; Cadell v. Wilcocks, 1898
P 1.
Berks v. Berks, 164 ER 1423.
Toomer v. Sobinska, 1907 P 106; Har Prasad v. Ram, AIR 1946 Oudh 223; see also Ramprasad
Shaw v. Basantia, AIR 1925 Pat 729 (Adami, J.); e.g. by saying, “I do hereby cancel the said Will
and make it Null and Void”.
117
 Even though the later Will is void, and as such could not be probated, it
may operate so as to revoke an earlier Will.429

But a later will without words of revocation will not operate as revocation of
an earlier Will.430

The effect of an express revocation may either be the avoidance of the

entirety of the Will, or only a part of it. It is a matter of construction of the Will in
each case.431

A subsequent Will or codicil may expressly revoke a former Will. The

subsequent Will must have been validly executed with all proper formalities. The
effect is not taken away merely because the testator had been misled as to the
effect of the clause, provided that the testator had knowledge of the presence of
that clause.

Where a subsequent Will revoking the earlier one, is not produced in

original and judgment of the proceeding where such Will was produced is not
brought on record and the evidence of witnesses to the subsequent Will are not
satisfactory, the subsequent will cannot be held to be established 432

A recital in a later Will that it is the last Will and testament, or words to that
effect, may not amount to revocation.

In Gosling, in the goods of,433 the whole of the codicil was struck off by

obliterating the text, signature etc. At the foot was written “we are witnesses of
the erasure of the above” duly signed by the testator and two attestors, it was
held that the revocation was quite valid as a writing declaring an intention to
revoke within the meaning of the section.

In the writing evidencing the revocation the executant must sign in the
presence of attesting witnesses or acknowledge his signature before them. The
two attestors however, need not be present at the same time.

429 Howard (in re:), 1944 P 39.

430 Kitcat v. Eng, 1930 P 206; ‘last’ or “last and only Will” no revocation of prior wills: Leslie
Leslie, (1972) LR 6 Eq 332; Simpson v. Fox, 1907 P 54.
431 Cock (in re:), (1960) 1 WLR 941.
432 P. Suryanarayana v. Achamma, 1988 Civil CC 211: (1988) 21 DR 238 (AP).
433 11 PD 79 (80).

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(ii) Implied Revocation

There may be revocation by implication.

A later Will may simply repeat the entire former Will, or it may be totally
inconsistent with the earlier one and thereby revoke it.

The repetition or inconsistency may be only partial. Then portions of the

former Will, not repeated or consistent with the later Will, remain effective,
partially revoking the rest of it.

Where a testator leaves a number of Wills without expressly revoking any,

then all the Wills, must be read together and the sum total must be treated as the
testator’s Will, effect being given to each of the Wills except to the extent the
same is varied or revoked by the later Wills.

Where there are several Wills of the same date, not consistent with one
another the Court may admit evidence to show which was executed last. In the
absence of such evidence the Court may construe them if possible so as to
sustain them all. If that is not possible, all the Wills fall and none can be admitted
to probate.434

A testator may die leaving several Wills. No doubt the maxim of the law is
that no man can die with two testaments. However, where there are several
Wills, it is possible that all together are admitted to probate as one single Will,
provided all can stand, it is not the rule that a later Will works a total revocation of
the earlier one, unless the later expressly or in effect revokes the earlier.435

If the later Will is partially inconsistent with the earlier, there is revocation
only to the extent of inconsistency.436

To this extent, a Probate Court has to interpret and construe the Will and
ascertain the intention of the testator.437

Howard (in re:), Howard v. Treasury Solicitor, 1944 P 39.

Wyatt (Deceased) (in re:), (1952) 1 All ER1030.
Jarman on Wills, 8th Edn., p. 188, Williams on Executors, 7th Edn., Vol. 1, p. 162; Kitcat v. King,
1930 P 266.
In the Estate of Thomas, Public Trustee v. Davies, (1939) 2 All ER 567.
119
 Unless the words in the later Will are clear and unequivocal, the Court will
presume against revocation.438

A Will which has been revoked by a subsequent Will is not revived by an

erroneous reference to it in a codicil which said: “It is a codicil to my last Will” as
the testator’s last Will, while he was referring to the revoked Will. A codicil which
referred only to a revoked Will, thereby confirming it (i.e., re-publishing it), revives
the revoked Will and displaces a Will, intermediate in date between the first
revoked Will and the codicil; and inconsistent with the first Will. In other words, it
becomes both the first and last Will.439

Where a Will is revoked by a codicil executed subsequent thereto, it is a

question of construction whether intermediate codicils are also revoked. Thus
where a testator begins by distinguishing between the last Will and a codicil to it,
and purports to revoke the last Will only not referring to any previous codicil, the
revocation is not to be carried further than the necessity of the terms which he
has used may require. Hence all previous codicils are not revoked because he
revokes the last Will.440

Jarman points out that where a testator leaves several testamentary

instruments, as an earlier Will and a later codicil, “it is the established rule not to
disturb the dispositions of the Will further than is absolutely necessary for the
purpose of giving effect to the codicil.”441

He has cited a number of adjudications selected from a large mass of

cases. Another rule is stated thus:

"The principle is perfectly clear that where you have a distinct disposition
made by a Will, that disposition cannot be revoked by a codicil except through
the medium and use of words equally distinct.”442

Hellier v. Hellier, 9 PD 237.

Baker (in re:), Baker v. Baker, (1929) 3 Ch 668 (Eve, J.).
Ferrer v. St. Catherine College (1873) 16 Eq 19 (Lord Selbome, L.C.).
Jarman on Wills, 8th Edn., p. 194.
Kellell v. Kellelt, LR 3 HL 167; Jarman on Wills at 203.
120
 A court, before holding that a codicil has, by necessary implication
revoked a clear devise in the Will must find definitely that the intention to revoke
is clear.443

A Will cannot be revoked by mere abandonment. There must be some

unequivocal act.444

3. Revocation by Marriage - Indian Law

The corresponding law is stated in section 69 of the Indian Succession

Act, 1925:

“69. Revocation of Will by testator’s marriage.—Every Will shall be

revoked by the marriage of the maker, except a Will made in exercise of a power
of appointment, when the property over which the power of appointment is
exercised would not, in default of such appointment, pass to his or her executor
or administrator, or the person entitled in case of intestacy.

Explanation.—Where a man is invested with power to determine the

disposition of property of which he is not the owner, he is said to have power to
appoint such property”.445

• The section does not apply to Hindus. It is omitted in Schedule III. Further,
section 57 specifically states “Provided that marriage shall not revoke any
such Will or codicil.”

• Refer section 30 of the Hindu Succession Act, 1956 as amended by Hindu

Succession (Amendment) Act, 2005.

• Refer section 59 of Succession Act, 1925, Explanation I.

The effect of the provisions in the Indian Succession Act on Hindu Wills
was considered in Subba Reddi v. Doraisami Bathan.446 The Legislature has
recognised only certain modes of revocation of Hindu Wills. Beyond that the

Guari Parasad v. Raj Rani, AIR 1941 Lah 286 (290) (Tekchand, J.); Narinjan Das v. Devi Dass, 3j
IC 899 (900).
Andrew v. Motley, 32 LJ Ch 128.
Bindumati Bai v. Narbada Parshad, AIR 1977 SC 394: 1977 (1) SCR 988: 1976 (1) SCC 220:
1976 UJ 986, Ramaiha v. Nagara, AIR 2001 Kant 395 (DB).
30 Mad 369, section 6.

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principle underlying the rule of revocation by change of circumstances is not
applied to Wills of Hindus.

So where a Hindu made Will of his self-acquired properties, the same is

not revoked by the birth of a posthumous son or by adoption of a son.

Section 70 of the Indian Succession Act now applies to all Hindu Wills as
well.

4. Revocation by Destruction

• Revocation by Burning and Tearing

The English as well as the Indian Statutes expressly recognise burning

and tearing as a mode of revoking a Will.

In order to amount to revocation the Will need not be totally burnt or torn
to pieces.

The instrument must no longer exist as it was.447

An attempted burning or tearing not accomplished on account of

interruption does not amount to revocation.448

• Otherwise Destroying

The third method of revocation mentioned in the English Wills Act (section
20) is where a Will is “otherwise destroyed”.

Merely writing across a Will that it is revoked or throwing it into the waste
paper basket will not revoke a Will, if it is in fact preserved, uninjured.449

The words ‘otherwise destroying’ are to be taken to mean destruction

ejusdem generis with the words before mentioned, that is, destruction in the
proper sense of the word, of the substance or contents of the Will or at least a

Glenlivet(inre:), 1893 P 171.

See Johur Lall v. Dhirendra, 20 CWN 304.
Theobald, p. 50; Cheese v. Lovejoy, (1877) 2 PD 251; Kharshetji Ratanji v. Kekobad Khambatta,
52 Bom 653: AIR 1928 Bom 194 (Davar, J.).
122
complete effacement of the writing, as by pasting a black paper: and not a
‘destroying’ in a secondary sense as by ‘cancelling’ or incomplete obliteration.450

Cutting, scratching with a penknife the signature of the testator or of the

witnesses have been held as amounting to destruction.451

• Destruction by a Stranger

In order to effect revocation by destruction it must be an act of the testator.

By his direction in his presence alone can a stranger destroy it to bring about
revocation of the Will. A testator cannot authorize a stranger to revoke his Will
after his death. Such a Will is a valid subsisting Will and its contents can be
proved by oral evidence.

• Indian law

Section 70, Indian Succession Act, 19,25 refers to destruction as a mode

of revocation.

“70. Revocation of unprivileged Will or codicil—No unprivileged Will or

codicil, nor any part thereof, shall be revoked otherwise than by marriage, or by
another Will or codicil, or by same writing declaring an intention to revoke the
same and executed in the manner in which an unprivileged Will is hereinbefore
required to be executed, or by the burning, tearing or otherwise destroying the
same by the testator or by some person in his presence and by his direction with
the intention of revoking the same.

The two elements required to constitute revocation are: (a) destruction, (b)
intention to revoke (animus revocandi). Tearing is not meant a literal tearing to
pieces.452

There can be no revocation by implication as revocation must comply with

the provision in Section 70 as laid down by the Supreme Court in Jaswant Kaur
v. Amrit Kaur453 where Chandrachud, J. laid down;

Jarman on Wills, 8th Edn., p. 162; Kharshetji Ratanji v. Kekobad Khambutta, 52 Bom 653: AIR
1928 Bom 194 (Davar, J.).
Hobbs v. Knight, 1 Curt 768; In the goods of, Morton, 1887) 12 PD 141; The operative signature
may be on the first page of the Will if it consists of more folios, abitri v. Sain, 29IC 743 (Fletcher,
I).
452
Johur Lall v. Dhirendra Nath Dey, 20 CWN 304; Cheese v. Lovejoy, (1877) 2 PD 251.

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 “The revocation of an unprivileged Will is an act only a little less solemn
than the making of the Will itself and has to comply with statutory requirements
contained in section 70 of the Succession Act.”

(a) Destruction may be Complete or Partial

Even a partial destruction by burning, tearing of some essential part of the

Will, such as the portion containing the signature of the testator or of the
witnesses is treated as destruction amounting to complete revocation.454

But merely drawing two lines across the first page of the Will and adding
“this Will is destroyed” does not amount to such destruction as to justify the
inference of revocation.455

In one case, the testator drew a line across the middle of the Will, and
endorsed on the portion above “all these are revoked” and left it in a cover. It was
held that there was no destruction of the Will.

It would appear that in the case of Cheese v. Lovejoy456 the testator after

writing “This is revoked” threw it among a heap of waste papers. His servant
picked it up and kept it on the kitchen table. After 7 or 8 years it was found
injured. The Court held that this did not comply with the statutory words ‘or
otherwise destroying’ and that the Will was not actually injured.

It may be that destruction of a part of the Will may have the effect of
complete or partial revocation according to circumstances. The part destroyed
may be so important that the rest cannot be intended to stand alone. In such
cases there will be complete revocation. Revocation may be partial if part of the
Will alone is destroyed.

But it is essential that the manual operation of tearing the instrument or

the act of throwing it into the fire or of destroying it by other means, must be
accompanied by animus or the intention of revoking. It is the animus alone that

(1977) 1 SCC 369 (372): (1977) 1 SCR 925.

Jarman on Wills, 8th Edn., p. 161.
Kharshetji Rtanji v. Kekobad Khambatta, 52 Bom 653: AIR 1928 Bom 194.
Cheese v. Lovejoy, (1877) 2 PD 251.

124
governs the extent and measure of operation of revocation to be attributed to the
act and whether there has been complete revocation or only partial revocation.

Where a Will had been destroyed by accident without any intention to

revoke, secondary evidence may be let in to prove its contents.

(b) Intention to Revoke (Animus Revocandi)

The Will must have been destroyed with intent to revoke. The destruction
may be intentional in the sense that the testator intentionally destroys it while he
is drunk or believes that the Will is useless and inoperative. It is only with an
intention to destroy the paper and is not the result of, or in manifestation of an
intention to revoke the Will. As was stated in Cheese v. Lovejoy.457 “All the

destroying in toe world without intention will not revoke a Will, nor till the intention
in the world without destroying: there must be the two.”458

The mere physical act of destruction is itself equivocal, and may have no
revoking efficacy. It may be accidental, or by mistake or while drunk or insane.

In order to infer revocation it is not easy to define the extent of destruction

necessary. “There must be, at all events, a partial burning of the instrument itself:
I do not say that a quantity of words must be burnt; but there must be a burning
of the paper on which the Will is.”459

Where the act is done by a third person by testator’s direction, it must be

done in the presence of the testator.460

5. Revocation - Complete or Partial

It is a matter for construction to say whether there has been a complete

revocation or revocation only in part; or where there are more than one Wills, or
several Wills and codicils, whether all the prior Wills and codicils have been
revoked or only some of the Wills are revoked.

(1877) 2 PD 251.
See Brown’s Probate Practice.
Per Patterson, J., in Reed v. Harris, 6 AD&EU 209; but see Bibbd Mole v. Thomas, 2 WLB 1043.
Theohald onWills, ll111 Edn., p. 76.

125
 It may have to be inferred from the circumstances attending the act of the
testator intending to revoke.461

Thus, it is a matter of inference whether it is complete revocation or partial

revocation, whether the revocation is by a subsequent Will or codicil or by
destruction of the Will. Where only some of the clauses in the Will, such as the
clauses granting some particular legacies, or a clause appointing a particular
person as executor, it was held that there was only a partial revocation of the
clauses so destroyed and the rest of the Will remained valid.462

In Kedarnath v. Sarojini463 a Will had been executed on the sheets of

paper and only one sheet was available after death of the testator. The Court
held that in the circumstances of that case the sheet was only lost and there was
no destruction with intent to revoke. The testator who signed on 4 pages and got
the same attested, substituted page 2 afterwards with no attestation. The Will
cannot be admitted to probate as the portion destroyed may be most important or
least important464

In Re, Woodward,465 the scoring out of a few lines in the first page of a

Will covering several pages each of which had been signed and attested, would
not by itself lead to the inference that the entire Will has been revoked.

In another case, the testator had appointed G as executor under the Will.
On account of disagreement subsequent to the execution of the Will, the testator
cut out the name of G wherever the same occurred in the Will. It was held that
the Will was only partially revoked.466

In the Estate of, Clemene, 1892 P 254.

In the Estate of, Maley, 12 PD 135.
ILR 26 Cal 634 (639); cutting of some lines at the beginning of the Will: Quoting, Clarke v.
Scripps, 163 ER1414.
Ser v. Meakvi, 20 Bom 370 (Starling(, J.); Leonard v. Leonard, 102 P 243, Treloarv. Lean, (1889)
PD 19.
(1871) LR 2 P&D 206.
In the Goods of, Leach, (1890) 63 LT 111.
126
 It will be entirely a question of construction whether a later Will revokes .a
former though no express revocation is incorporated in the later Will. In
Halsbury’s Law of England467, it is stated:

“A later Will or codicil may revoke all earlier Wills even though it contains
no clause of revocation. It is a question of intention in each case, where a later
unambiguous Will deals with the testator’s entire property it revokes all earlier
Wills, and, if the later Will practically covers the same ground as an earlier one, it
must be taken as being in substitution for it, and probate of the later Will alone is
granted.”

Similar view finds expression in Jarman on Wills.468 followed in R. Somi

Rajalu Naidu v. Kothandurama Naidu.469

“And a Will may revoke an earlier testamentary document, disposing of

the whole of the testator’s property even though the later Will does not contain an
express clause of revocation, and does not dispose of all the testator’s property.
It is the question of construction on the terms of the two documents.

• Revocation of Will—Effect on Codicil

The destruction or cancellation of a Will have the effect of revoking a

codicil also where the codicil is so interconnected with the Will and has no
independent existence.470 Where a codicil revoking a Will in part is itself revoked,
the Will remains as altered by the codicil.471

Where the testator had kept the Will in a box, the key of which was with
his manager, and there has been no search for the Will immediately after his
death, there can be no presumption of revocation simply from the non-production
of the will.472

4th Edn., Vol. 50, para 288; followed in R. Semi Rvalu Naidu v. Kotfaandarama Naidu, AIR 1965
Ser 122: 1964 Ker LT 665: 1964 Ker LJ 804: ILR (1964) 1 Ker 532.
8th Edn., Vol. l,p. 139.
AIR 1965 Ker 122:1964 Ker LT 665: 1964 Ker LJ 804: ILR (1964) 1 Ker 532.
Surendranath v. Sivadas, AIR 1922 Cal 182.
In the Estate of, Debac, (1897) 77 LT 374.
Ranga Rao v. Gopal, ILR 1959 Bom 210: AIR 1959 Bom 284.
127
 Revocation may be by some writing e.g. a letter signed by the testator and
attested by two witnesses and addressed to his brother desiring the destruction
of his Will.473 The English doctrine of presumption in favour of destruction of the

Will if it is not forthcoming once it is traced to the possession of the deceased has
to be applied to India with great caution.474

6. Conditional Revocation

Revocation may be absolute or conditional. In the latter case, the Will gets
revoked only after the condition is fulfilled.

A man may effectually destroy his Will by tearing or cancelling it. He may
intend to revoke the first on condition it is substituted by a later effective devise.
Where the testator expressly states so, there is no difficulty and unless the later
devise is valid and effective, the earlier Will will be treated as operative on his
death. The rule applies to revocation by subsequent Will or by destruction.

It is a question of fact, whether a revocation is conditional or absolute.

• Doctrine of Dependent Relative Revocation

One particular kind of conditional revocation is known as dependent

relative revocation. Where a testator executes one Will, and lateron executes
another Will and intended that the earlier Will should get revoked in the event of
the later one being valid, the revocation will not be valid unless the later Will
takes effect475

Likewise, a testator destroys a Will with the intention of revoking it by

executing another Will: but the new Will is never executed. In those
circumstances, the old Will remains valid.476

But the revocation validly effected does not cease to have operation only
because the testator has the intention to make a new Will at some future time.

473 Durance, In the Godos of, LR 2 P&D 406; Toomer v. Sobinska, 1967 P 186.
474 Efari Dasya v. Podie Dasya, AIR 1928 Cal 307: 55 Cal 482; Brajabala Dhar v. Nityamoyee
Biswas, AIR 1934 Cal 17.
475 Jarman on Wills, 8* Edn., p. 165; In the goods of, Middleton, 10 Jur (NS) 1109; see 71 Law QR,
pp. 374-387: Raikhushru v. Bai Bachubar, AIR 1951 Bom 339: (1950) 22 Bom LR 694.
476 In the Estate of, Bromham, (1952) 1 All ER 110; Hyde v. Hyde, 1 EQAB 409; Dixon v. Solicitor
to the Treasury, 1905 P 42.
128
 The doctrine of dependent relative revocation is at least as old as the 18th
Century. It has been said that it was first recognised and christened by Powell in
his book on Devises in 178 and that it blossomed into full flower after the
establishment of the Probate Court in England in 1857. The doctrine came up for
discussion before the Bombay High Court in Kaikhushru v. Bai Bachubai,477 and
in Travancore-Cochin High Court in Thresta v. Lonan Mathew.478

• Doctrine Applied to Obliteration of Part of Legacy

A testator may alter the extent of legacy given under the original Will by
writing over or interlineation. If the inference is permissible in the circumstances
that the testator intended to revoke the earlier legacy, if the altered legacy could
be effectively made, then when the alteration fails, the original legacy will
stand.479

The doctrine Will not apply when there is only an erasure of part of the
legacy, e.g., a legacy of one hundred and fifty altered by erasing ‘fifty

Change of the Name of the Legatee:

Generally, no case of dependent relative revocation Will arise where the

name of the legatee is altered. But a gift may be made to A on the supposition
that B was incapable of taking; then the testator strikes out A and inserts the
name of B; in such cases if B is incapable of taking the legacy in favour of A will
stand.480

Again, a testator may execute a Will first. Later on he executes a second

Will revoking the first Will. Subsequently he may revoke the second Will. He may
be in the mistaken belief that by revoking the second Will, the earlier Will is
revived, while in law it is not enough to revive the earlier one. In those
circumstances, the doctrine of dependent relative revocation is invoked to render

AIR 1951 Bom 339: (1950) 52 Bom LR 694.

AIR 1956 TC 186 (FB).
Itter (in re:), 1950 P Ker 48.
Bonis McCabe, (1873( 3 P&D 94: see Williams on Wills, 1952 P 101.
129
the revocation of the second Will ineffective. No animus revocandi is considered
to exist.481

The real question in such cases is whether the revocation is conditional or

absolute. If it is absolute it takes effect, although founded on a mistake on the
part of the testator.

The doctrine has been explained in numerous English cases.

Where a testator bequeaths a property in a Will and again disposes of it in

a later Will without expressly revoking the earlier Will, if the later Will becomes
ineffective, then there will be no revocation of the earlier disposition.482

The doctrine may simply be described as a conditional revocation.483

The condition for the revocation of the earlier Will is the operation of the
later Will. When there is no revocation by the later Will, the earlier Will continues
to be valid.484

This doctrine has been applied also to cases of revocation by

destruction.485

Where the testator removed the original page No. 2 and substituted a
fresh one under the impression that he was thereby making a substitution which
was good in law, and but for the belief he would not have revoked what was in
the original page, there is a case of dependent relative revocation.

If there was evidence as to the contents of the original page No. 2,

probate of the original Will may be granted.486

Theobald summarises the rule thus:

Powell v. Powerll, LR 1 P&D 209’; see Jarman on Wills, pp. 205-206, citing Lord Walpule v.
Lord Oxford, 4 Ves 402; See also Canara Bank v. General Pubix, (1988) 1 HLR 212.
Southerdon (in re:), 1925 P 177; Davies (in re:), 1951 (1) All ER 920; Botting (in re:), (1951) 2
TLR1089.
Southerdon (in re:), 1926 P 177; Murray (in re:), (1956) 1 WLR 605.
Hope Brown (in re:), 1942 P 136. See also Ram Charan v. Gobvinda, 56 Cal 894: LR 56 IA 104:
AIR 1929 PC 65 (Lord Phillimore),
Itter (in re:), 1950P 130; Cock (in re:), (1960) l WLR 491.
Ker v. Meaking, 20 Bom 370.
130
 “To bring the case within this doctrine, it must appear that the testator
considered the substitution of some valid disposition as part of the act of
revocation at the time when the act was done. The mere revocation of a Will,
followed by a subsequent ineffectual disposition, will not set up the original Will if
the two acts are not so connected that it can be said that the substitution of an
ineffectual disposition was the condition of the revocation of the original Will. The
point in these cases is not that a revoked Will is set up again if a subsequent
disposition is ineffectual, but that the original Will is not itself intended to be
revoked unless and until an effectual disposition of the property is made.”487

Thus in Murray v. Murray 488 it was held that revocation of an earlier Will
by a later Will which when proved ineffective did not revive the earlier one.

7. Burden of Proof

There is a presumption that a Will continues to exist until testator’s death

and that the testator intended to dispose of his property as provided for in his
Will. Unless it is mutilated, the proponent need not show lack revocation.

There may be a prima facie presumption of revocation, when the Will is

found cancelled, defaced or obliterated and a burden may be cast on the
proponent to overcome the presumption.

The onus to prove that the Will is revoked by the testator lies on the
person alleging revocation.489 Each case will depend on its own facts and no
general rule can be laid down as to when the loss of the original Will is
tantamount to revocation.490

Where a Will is not forthcoming after the death of testator, the burden is
on one asserting revocation that the Will had been destroyed with the intent to
revoke.491

Cossey v. Cossey, 1900 LJP 17.

(1956) 2 AUER 352.
Ramachandra Ayyar v. Ranganayaki Ammal, AIR 1941 Mad 612.
Efari Dasya v. Poder Dasya, AIR 1928 Cal 307; Arya Pratmudhi Sabita v. Deo Raj, AIR 1963
Punj. 208 (212); Chidambram v. Swaminathan, 13 MLJ 135.
Feroz Din v. Mula Singh, AIR 1925 Lah 540 (Martincau, J.); Brundaban v. Ananta, AIR 1956 Ori
151; see also Puran v. Toni, 204 PLR 1908 (Rattigan, J.) REgd. Will).

131
 A presumption of revocation by the testator himself does arise where the
facts are that the Will was made when the testator was a bachelor: that under the
Will a son subsequently born to the testator by his lawful wife would be entirely
disinherited and left to starve, unless the legatee out of compassion chose to
allow him some maintenance; and that the Will is not found after the testator’s
death. Court is justified in assuming that after the birth of his own son, the
testator by his own act, destroyed the Will which left everything to a comparative
stranger to the detriment and prejudice of his son.492

8. Capacity of Testator to Revoke

In Jarman on Wills [8th Edition, pages 182-206], the topic of intentional

revocation of a Will is discussed. One of the important characteristics of a Will is
that it is always revocable until the death of the testator. Being an international
and voluntary act of the testator, he must be of sound mind at the time of
revocation. A revocation is not valid if the testator is insane at the time;
subsequent attainment of sanity will not validate the revocation.493 Likewise,
where the testator became insane after executing a Will and died without
recovering sanity, the loss or destruction of the Will does not warrant an
inference of revocation 494 Further, a mere expression of intention to revoke a
Will at some future date cannot amount to revocation of the Will under any
system of law.495

A mere promise not amounting to contract is not enforceable, even where,

the other party had acted in a particular manner, on the faith of the promise 496

9. Who may apply for Revocation?

The creditors of the heir at law can also ask for revocation of the probate
on the ground that the Will was forged. In principle it makes no difference
whether they ask for revocation or they lodge caveat in response to a general

Uttam Das v. Charan Das, 20IC 462.

Brant v. Brant, 3 P&D 37; In the Estate of, Hint, 1893 P 282; see also Sprigge v. Sprigge, 1868
LR1 P&D 608: 19 LT 462: 17 WR 80.
Sprigge v. Sprigge, 1868 LR 1 P&D 608: 19 LT 462: WR 80.
Mahomed Yoonus v, Abdul Satar, AIR 1938 Mad 616: 47 LW 719: (1938) 1 MLJ 444.
Maddison v. Alderson, (1883) 8 AC 467.
132
citation. Similar is the case of a purchaser of part of the property covered by the
Will of the testator. If a legatee from a second Will is entitled to enter a caveat, a
purchaser from such legatee is similarly so entitled.497

Step-son of testator mother who left behind her sons has no right to apply
for revocation of probate as the applicant cannot claim share in testator’s
property simultaneously with her sons under section 15 of the Hindu Succession
Act. 1956.498

• Attesting Witness Whether can Seek Revocation

Person having attested Will and having appeared as witness to prove

attestation, cannot seek revocation of Will.499 When a party impliedly admit the

revocation of Will in earlier suit, it can be used with subsequent suit against that
party.500

It is clear that there cannot be an entering of a caveat by any party against

the revocation of a probate.501 Title dispute is not to be decided by the court while
granting probate and probate can be revoked under section 263 if proved but the
absence of caveatable interest recorded cannot come in the way of probate’s
revocation.502

• Court’s Discretion

Jurisdiction under section 263 is a discretionary one and the trial court
may refuse revocation if a just cause is not established.503 The Court has
jurisdiction to set aside the ex parte, revocation order passed in proceedings
relating to revocation of the probate (under Order 9, rule 13, Civil Procedure
Code).504 The provisions regarding necessary parties as contained in the Civil

Procedure Code will also apply to probate proceedings. Thus, the heirs of a
testator who would have succeeded as natural heir in absence of the Will, are

Shanti Devi v. Kusum Kumari, AIR 1972 Ori 178 (R.N. Misra, 1.).
M.D. Samel v. S.D. Samel, AIR 1991 Bom 7: 1990 (3) Bom CR 232.
M.K. Saraswat v. Collector of Agra, 1987 All LJ 240.
Dhan Kaur v. Major Singh, (1994) 1 HLR 703 (P&H).
Sushila v. Bhimappa, (1972) 1 Mys LJ 504 (507).
Elizabeth Antony v. Michel Charles John Chown Langera, (1991) 1 Mah LR 64.
Rasheed Khan v. PeerMohd., 1991 JLJ711.
Tribenio Kuer v. Shankar Tiwari, AIR 1971 Pat 391 (392) (Mukheiji, J.).
133
necessary parties, and probate proceedings cannot be continued in their
absence.505

In revocation of probate granted by District Judge, if question of

jurisdiction is not raised before Additional District Judge, which is the trial Court
of revocation proceedings, the objection cannot be raised in appeal 506

Additional District Judge being a probate court can revoke probate granted
by District Judge.507

X. REPUBLICATION

Republication does not mean the revival of a revoked Will. It is generally

used to denote the re-execution of a former valid Will or codicil, only confirming it.
The entire Will takes effect as if it was executed on that date for certain
purpose.508

Where a testator makes a Will and a codicil and afterwards re-executes

the Will without referring to the codicil, oral evidence can be let in to show that
the testator did not intend to revoke the codicil, and that his object of re-execution
is only to give effect to some alterations in it.509

A republication cannot invalidate a bequest which was valid under the

original Will510

Again any legal effect already brought about by what has already taken
place in the meantime, will not be nullified by republication.511

The Courts have always treated the principle that republication makes the
Will speak as if it has been re-executed at the date of the codicil, not as a rigid
formula or technical rule but as a useful and flexible instrument for effectuating a

Ranibai v. Ramkumari Bai, 1989 MPLJ 789.

Rasheed Khan v. PeerMohd., 1991 JLJ 711.
Rasheed Khan v. PeerMohd., 1991 JLJ 711.
Cf. Tredgold (in re:}, 1964 Ch 69; Barkeley v. Barkeley, 1946 AC 555.
Jarman on Wills, 8111 Edn., p. 215.
Heath’s Wills Trust (in re:), (1949) Ch 170 (180).
Stilwell v. Melush, (1851) 20 LJ Ch 35.
134
testator’s intentions by ascertaining them down to the latest date at which they
have been expressed.512

1. Constructive Republication

Where a testator makes a codicil to his Will from which the inference can .
be drawn that he wishes .to be read as part of his Will, in such a case
constructive republication occurs.513

Republication means the publication of a instrument a second time. Similar a

word “revival” which is almost synonymous with republication means “to
reanimate”. It necessitates when the earlier Will is either destroyed or revoked or
the testator intends to bring some changes in the already constituted Will so that
the intention of the testator is fully reflected.

2. Revival

As the revocation by destruction of a revoking Will fails to revive the first

Will, there is prima facies an intestacy, but evidence can be given that the
second Will was revoked solely with the intention of validating the earlier Will; the
revocation of the second Will is then treated as conditional, and the condition not
having been fulfilled the doctrine of dependent relative revocation applies, and
the second Will is not revoked. When an earlier Will, which has been revoked by
a later Will, is revived by a codicil, the later Will stands unless expressly revoked
or impliedly revoked by reason of dispositions inconsistent with it being contained
in the codicil. Under the section, the mode of revival is the same, whether there
has been an express revocation or an implied revocation.

The modes indicated in the section are: (1) re-execution of the prior Will,
(2) a duly executed codicil, (3) the existence of intention to revive in the language
of the Will itself.

A later codicil may ‘confirm’ an earlier Will and thereby revive it. The word
‘confirm’ is an apt word and has the same meaning as ‘revive’—the word in the
Statute.514

512 Romer, J. in Hardyman (in n), 91925) Ch 287, see also Health’s Wills Trusts, (1949) Ch 170.
513 William on Wills, 1952, p. 109.

135
 • Complete or Partial

The revival also, like revocation, may be of a prior revoked Will, in its
entirety, or only a part of it. The extent of revival must be decided with due regard
to the intention shown by the later document. The later document reviving the
earlier revoked Will may be a codicil.515

The intention to revive must be contained in the document itself. Mere

physical annexation with the Will is not sufficient.516

The only mode of reviving the earlier Will is by a re-execution or

republication.517

Intestacy may be prevented by the doctrine of relative revocation. In such

cases effect may be given to the second destroyed will provided the latter
destruction was done with the sole purpose of reviving the first Will. This purpose
can be brought out by oral evidence.518 This rule will apply in cases of partial
revocation of former Will or a codicil partly revoking a Will. The result will be there
is no revival of the revoked portion of the first Will. Consequently there will be
partial intestacy.519

Once the first Will is revoked by destruction there can be no revival.520 The
existence of the original Will, not a mere draft of it, is imperative for revival.521
Jarman posits:522 Where the first Will is revoked by the second and the testator
subsequently executes a codicil naming it as a codicil of the first Will and no
reference is made to the second Will in it, the result will be the revival of the first
Will and revocation of the second Will. This will be so only if the first Will is in

Dyke (in re:), (1881) 6 PD 201.

In the Estate of, Mardon, 1944 P 109.
Marsh v. Marsh, 164 ER 845.
Major v. William, 163 ER 781.
Powell v. Powell, LR1 P & D 209.
In bonis, Demac, 77 LT 374.
Hale v. Tokeleve, 2 Rob 318.
Jarman on Wills, 7th Edn., p. 180.
Jarman on Wills, 7th Edn., p. 180.

136
existence and an intention to revive it is clear from the codicil. What is paramount
is the intention to revive.523

The revival of an earlier Will may be by direct reference to it or by

implication or inference.524

The testator’s intention to revive which of the Wills, may have to be

decided by reference to the language of the later document.

Thus, a later codicil may simply ‘confirm’ an earlier of the two Wills. This is
treated as sufficient evidence of an intention to revive that Will.525

If it was clear from the evidence, that the person who prepared the codicil
was not aware of the existence of a later Will, then the confirmation of the Will
would be taken as indicating an intention only to revive that first Will only.526

At times there may be mistaken or ambiguous references to the

documents intended to be revived. Courts are free to ascertain the Will intended
to be revived.527

In the estate of Davis,528 a testator bequeathed all his property to one Miss
E whom he married later. After the marriage, the testator had written on the
envelope: “The herein E is now my lawfully wedded wife,” and signed it and
attested by two witnesses. It was held that the testator had no other intention
except to revive his Will.

XI. ALTERATIONS

As per section 71 of the Indian Succession Act, 1925:-

No obliteration; interlineation or other alteration made in any unprivileged

Will after the execution thereof shall have any effect except so far as the words

William on Wills, 12th Edn., p. 121.

161 ER 451.
Kakhushru v. Bachubai, AIR 1951 Bom 339: (1950) 52 Bom LR 694; McLeod v. Mcnab 1891 AC
471 (The earlier Will was referred to by date).
In the estate of, Stedham, 6 PD 205; See also In the estate of, Chiloit, 1897 P 223.
In the estte of, Wilson, LR 1 P & D 582; Baker v. Baker, (1929) 1 Ch 668; See In the estate of,
May 1 P & D 581 (Held no revival).
1952 P 279.
137
or meaning of the Will have been thereby rendered illegible or undiscernible,
unless such alteration has been executed in like manner as hereinbefore is
required for the execution of the Will:

Provided that the Will, as so altered, shall be deemed to be duly executed,

if the signature of the testator and the subscription of the witnesses is made in
the margin or some other part of the Will opposite or near to such alteration at
the foot or end of or opposite to a memorandum referring to such alteration, and
written at the end or some other part of the Will.”

This section is based on section 21 of the English Wills Act, 1839 and is
made applicable to Hindu Wills also. This section applies only to obliteration, etc.,
made in any unprivileged Will after the execution thereof, and not to alterations
made before execution529 and also applies to codicils.530

The proviso indicates that the signature must be referable to the alteration
by their juxtaposition and proximity.531 The alterations will be valid only if the
signature of the testator and also those of the witnesses are there as provided by
the section.532

1. Effect of Alterations

Where the alterations are properly executed, they form part of the Will and
probated with the alterations.

Where a Will has been altered after the execution and without knowledge
of the testator, it will not enable the party who made the alteration or in whose
custody it was, to lay claim under the Will533

Mere marginal notes by the testator for his own guidance are not
alterations and do not form part of the Will.534

In the goods of, Broughton, 29 Cal 311.

Rohutu Yellappa v. Setti, 1934 MWN 357.
Rohutu Yellappa v. Setti, 1934 MWN 357.
Suresh Chandra v. Ravi Dasi, 47 Cal 1043; Pandurang v. Vinayak, 16 Bom 652.
Paramma v. Ramachandra, 7Mad 203.
Sardar Nowroji v. Puthibai, 15 Bom LR352.

138
 It is a salutary practice to notice all alterations, interlineations, etc., in the
attestation clause referring to the page and line in the Will where these occur and
stating that such were made prior to execution. It becomes unnecessary then to
place the signature or initials of the testator and attestors in the margin near to
the alteration.535

Williams on Wills postulates536 that even if alterations are made prior to

execution, they may be ignored provided they are prima facie only deliberative
e.g.: Pencil writing in a Will written out in ink. Where the testator himself showed
the alterations in red ink written before the codicil and confirming the testament,
probate was granted.537 The general presumption is that the alterations were

made after the execution of the Will. So in the absence of rebuttal evidence,
probate will be granted for the Will in its original state, omitting the alterations.538
Alterations and additions found in a Will without the testator’s signature and
those of the attestors, are presumed to be made before execution.539

Complete obliterations present difficulties. In bonis, Ibbetson, in the goods

' of,540 under Court’s orders the erasures in a Will were carefully examined with
the aid of a magnifying glass. As they could not be made out, probate was
granted with the erased words restored and where they could not be made out,
probate was issued with those words in blank.

No extrinsic evidence is admissible when the original words are not

discernible.541 An exception to this rule is where the alteration was only as to
altering the amount of the gift and not revoking it.542 In such an event the doctrine
of dependent relative revocation does apply. In bonis, Ibbeson543 the testator
erased in the words “one hundred and fifty pounds” the words ‘one hundred and.’

See Willaims on Wills, 1952, p. 83.

On p. 145 (12th Edn.,) See also In bonis, Adams, LR 2 P&D 367.
In the goods of, Broughton, 29 Cal 311 (313).
Suresh Chandra v. Ravi Dasi, 47 Cal 1043 (1065); see also Raghubar Dayal v. Ram Rakhan Lall
(1897) 1 CWN428: 4 Moo PC 419
In bonis, Cadge, 1 P&D 543; see also 7 Moo PC 320.
2 Curt 337.
Townley v. Watson, 3 Curt 161.
Brooke v. Kent, 3 Moo PC 334. See Soar v. Doman, 3 Curt 121.
2 Curt 337.
139
It was held the legacy for fifty pounds stands and the aforesaid doctrine does not
apply.

Every alteration, interlineation or obliteration made after the execution of a

Will, can be effectively made only in the same way as a Will, the formalities of
signatures by the testators and the attestors are not complied with, the alteration
will be ineffective. The signatures may be made in the margin opposite to the
alteration. They may also be at the end or foot of a memorandum or note
recording the alteration.

This rule does not apply to alterations before execution.544 Initials are
treated as signature.545 The signature of the testator and the attestors must be in
juxtaposition or proximity to the alteration and in some part of the Will itself. They
cannot be put in a separate sheet of paper detached from and unconnected with
the Will.546 Provision applies to codicils also.

An alteration or erasure of any portion of a Will, not attested, will have the
effect of revocation of that part, as amounting to destruction of that part.
Likewise, where paper is pasted over part of a Will, and the words are not
decipherable by any natural means, such as by means of a magnifying glass or
by holding up the Will up to light, it would amount to revocation.547

Any physical interference with the Will, by using chemicals or by the

removal of the paper is not permitted.548 The alteration must be apparent on an

inspection of the instrument, however elaborate may be the devises used to

assist the eye, and, however skilled the eve which is being used. If the words can
be read only by producing an infra-red-ray photograph, then a new document is
created and it is not apparent.549 There is no presumption as to when the
alteration was made, whether before or after the execution of the Will.550

In the goods of, Broughton, 29 Cal 311.

In the estate of, Blewitt, (1880) 5 PD 166.
Ruhutu Yellappa v. Setti, 1934 MWN 357.
In the estate of, Gilbert, 1893 P 183; In the estate of Itter, 1950 P 130.
Finch v. Comb, 1894 P 191.
In the estate of, Itter, 1950 P 130: (1950) 1 All ER 68.
William v. Ashton, (1859) 1 J&H 115; but see Cooper v. Bockett, 4, Moo (PC) 419
140
 In Greville v. Tylu,551 where mere blanks were filled up, it was presumed
that it they were done before execution.

2. Presumption, when Alteration is Made

In the absence of any evidence to show when they were made, alterations
appearing on the face of a Will are presumed to have been after the execution of
the Will.552 Generally declarations by the testator are admissible for this purpose,
whether before or at the time of the execution of the Will553 When the evidence
is acceptable, such alterations get incorporated in the Will even though
unattested.

Likewise, when there are unattested alterations in a Will, and the codicil
refers to them, the alterations get incorporated in the Will. If they are not referred
to in the Will, then the presumption is that they have been made only after the
codicil. If the alterations in a Will, which are such that, without them, the Will
would be incomplete, then there is a presumption that they were made before
execution 554

Alterations in ink may be presumed to have been made before execution.

Alterations in pencils are presumed to have been only deliberative but not
operative.555

XII. WHO CAN TAKE UNDER WILL

‘Testator1 and ‘donor1 may be one person but the concept of such status is
quite different, so is the case with “legatee” and “donee”. So ‘legatee” is one to
whom a legacy is bequeathed. The right to take property under a Will is not a
natural right, it is a creature of the law, a privilege accorded by the State.

The right of persons to take under a Will is subject to State regulation and
control. In general, a person who has testamentary capacity may dispose of his

7 Moo (PC) 320.

Pandurang v. Vinayak, 16 Bom 652; William on Executors, 6th Ed., p. 132, Vol. 1.
Jarman on Wills, 8th Edn., p. 174.
In the estate of, Binis, Cadge, 1 P&D 543.
Batman v. Pennington, 3 Moo (PC) 223.
141
property to any person and for any object that is not prohibited by Statute, or is
not otherwise illegal, or against public policy.

The capacity of the legatee is to be decided as on the date of the death of

the testator. The legatee must be in existence at the time of the death of the
testator. A purported gift to a specified person at the death of such person is
void.

A child en ventre sa mere is capable of taking a devise. When the child is

able to stir in the mother’s womb it can have a legacy. There can be a legacy in
favour of husband or wife. Beneficiary can enjoy and possess property as per
Will of executor till their death and gets absolute rights after the death of executor
of Will.556

• Infants, Idiots, etc.

A bequest in favour of any disqualified persons, such as a minor, idiot,

lunatic, etc., will be valid. Delivery of possession is not necessary to its validity.
Generally the legatee need not give his assent in order that it may take effect.557

But in the case of an onerous gift, it may be different.

1. Witness can be a Legatee

This subject is covered by various sections of Indian Succession Act, 1925

such as sections 67, 68, 109,113 and 141.

"A Will shall not be deemed to be insufficiently attested by reason of any

benefit thereby given either by way to bequest or by way of appointment to any
person attesting it, or to his or her wife or husband; but the bequest or
appointment shall be void so far as concerns the person attesting, or the wife or
husband of such person, or any person, claiming under either of them.

Explanation—A legatee under a Will does not lose his legacy by attesting
a codicil which confirms the Will.”

G. Narsimhulu Chetti v. S. Pandurangaiah Chetti, AIR 1996 AP 24: (1996) 1 Hin LR 297.
Kooldeb Narayan v. Wooma Coomaree, 2 Hay 370.

142
 The concept of section 67 of the Succession Act, 1925 has been referred
to in Jose v. Ouseph, AIR 2007 Ker 77: 2006 (4) KLT 991.

The issue was that since propounder is also one of the legatees under the
Will and an attesting witness, the legacy is void as against the attesting witness.
It was held that section 67 of the Indian Succession Act, 1925 deals with the
effect of gift to attesting witness. This section is not applicable to Wills of Hindus
by virtue of section 57 read with Schedule III of the Indian Succession Act and as
such legatees under the Will of such persons do not forfeit their legacy on
becoming attesting witnesses but, it being a case of Christians, section 67 would
apply (Refer Explanation to section 67 of the Act 1925).

Section 68 may be referred to:

"68. Witness not disqualified, by interest or by being executor. No person,

by reason of interest in, or of his being an executor of, a Will, shall be disqualified
as a witness to prove the execution of the Will or to prove the validity or invalidity
thereof.”

This section applies to Hindus, Buddhists etc. In the Administrator-

General, Madras v. Lazar,558 it was held that a legacy to the attesting witness of
a Will is void, whether or not the attestation of that witness is indispensable to the
validity of the Will.

Where the testator directed that a debt due to him from an attesting
witness should not be claimed, but expressed a wish that the sum should be
specially devoted to the education of the children of the testator, there was no
release of the debt. There was a valid trust in favour of the children.

In a Gujarat case559 the testator had disregarded the claim of his widow
and to that extent in the first blush it can be contended that it is not consistent
with the testator’s natural affection and moral duties. But that is only a suspicion
which get erased in view of the circumstance that the testator was not on good
terms with his wife who hence lived separately from him for 25 years. She

4 Mad 244.
Dinben v. Taimums Ardesar Divecha, (1980) 21 GLR 269.
143
returned to his house only a days before his demise. The Court, therefore, held
that the Will was not unnatural.

A person who signs a Will in token of his assent to the dispositions under
the Will not for the purpose of attesting it does not forfeit the legacy.560 Section
68 only amplifies what is stated in section 67. It only says that person deriving a
benefit under the Will either as legatee or executor, shall not be disqualified to
speak to the validity or otherwise of the Will as a witness.561

2. Can there be a Devise to Testator’s Heir?

In Basti Rain v. Ved Prakash,562 a bequest in favour of a person or

persons in succession, who may be in existence at the date of testator’s demise

was held valid under the Hindu Law, (as it existed before 1870) on the score that
such a bequest did not create a new form of estate, or after the line of
succession. It is not disputed by the appellant that House No. 1185, situated in
Sector 8 at Chandigarh is at least of the value of about fifteen lacs of Rupees
which is in the sole name of the deceased. Therefore, even if the Will does not
exist, then too, the beneficiaries to whom the cash amount is to be distributed do
have, a valuable share in the immovable property mentioned above and as such
the value of their shares is much larger than the amount which is to be distributed
to them No prejudice is, therefore, going to be caused to the appellant in case
the amount is distributed to the heirs as per the terms of the Will.563

The decision of the Supreme Court in Ram Gopal v. Nand Lai,564 is of

considerable importance and the extracts from the judgment states: “The position
is that to convey an absolute estate to a Hindu female, no express power of
alienation need be given; it is enough if the words used are of such amplitude as
would convey full rights of ownership where, therefore, a Hindu widow
relinquished by a written deed all her rights in certain properties and received

Malhod Ali v. Nisar Ali, AIR 1928 Oudh 67: shaim Sundar Singh v. Jagannath singh, 1927 PC.
248: 54 MLJ 43.
Thankam alias KartMyani v. C. Madhavan, 1999 Mah U 634.
MR 1974 Punj 152(155).
Balbir Singh Wasu v. Lkhbir Sigh U 283 (288) (P&H).
AIR 1951 SC 139:1950 SCR 766: 1950 SCJ 575.
144
under a Tamliknama two items of property, house and shops as malik, the deed
containing no express words showing that she was to enjoy the property only
during her lifetime— Held, on consideration of all the circumstances, that an
absolute estate was conveyed to her by the Tamliknama, though the gift was
expressed to be for her maintenance and residence.”

The word ‘Malik’ connotes full ownership. So where a Hindu woman gets
vested with a specific property as above indicated, she takes it absolutely with
full powers of alienation, with no forfeiture of same threatening her on remarriage
or subsequent unchastity. The matter is different when she receives maintenance
from the deceased husband’s estate as per decree of Court or under Hindu Law,
as there is no vesting in such a case, the right being subject to her continued
chaste life and not marrying again.565

3. Murderer as Legatee

An exception to the general right of person to take property by Will is

made in the case of a beneficiary who murders the testator. It was a principle of
the Civil Law evolved by many generations of Juris consult, philosophers and
statesmen that one could not take property by Will from a testator whom he had
murdered. This principle is also a part of the common law and is incorporated
held in the statutes of some jurisdictions. It is based on public policy and has
been held equally to apply to cases of manslaughter and murder.566

A rule of public policy precludes any person who is guilty of feloniously

killing another from taking any benefit under that other person’s Will or on his
intestacy.567 Almost all systems of law have recognised that a person guilty of
homicide cannot succeed to the property of his victim. There is distinction
between inheritance and succession to the property of the person murdered.

Sankaribala Dutta v. Asiata Barani Dasi, AIR 1977 Cal 289; See also Khagendra Nath v.
Kamunadhar, AIR 1978 Cal 431, Vide Remarriage, effect of, under section 2 of Hindu Women’s
Remarraige Act, 1966, 1966, section 22 read with sectin 21 (iii) of Hindu Adoptions and
Maintenance Act, 1956.
57 Am. Juris, S 156; Williams on Executors 13th Edu., S. 823.
Hall (in re):, 1914 P 1; Pittis (inre), (1931) 1 Ch 546: Sigsuorth (in re) , 1935 Ch. 80; Pollock (in
re;) 1941 Ch. 219.
145
Person who has murdered the testator will not be entitled to the property
bequeathed to him under the Will.568

“A man is not to be allowed to have recourse to a Court of Justice to claim

a benefit from his crime whether under a contract or gift.”569 There is no disability
in the case of non-felonious killing.570

The rule propounded in Haisbury’s Laws of England,571 relevant to the

context is:

“It is contrary to public policy that a man should be allowed to claim a

benefit resulting from his own crime. Accordingly a donee who is proved to be
guilty of the murder or manslaughter of the testator cannot take any benefit under
his Will where the above rule operates to preclude a person from acquiring
benefit under the Will, the property goes to other persons entitled under his Will,
if it is a gift to a class, or, if the exclusion of the donee effects an intestacy as to
the property in question to the property in question, to the persons ‘other than the
donee, entitled on intestacy, and not to the Crown as bona vacantia save in so
far as the Crown may be entitled under the intestacy provisions in the ordinary
way.”

Where a testator bequeathed equally to two daughters after and of life-

estate of wife on her death the share of daughter dying without male issue, would
go to other daughter having male issue.572

A testatrix by her Will appointed her daughter as her sole executrix and
legatee. The testatrix had only a son besides the legatee-daughter. The daughter
murdered the mother and herself committed suicide. The son of the legatee laid
claim to the whole estate, while the Crown claimed the estate as bona vacantia.

It was held that son is beneficially entitled to the entire estate of the
deceased. Vaisey, J. stated:

Sasraanabhava v. Sellammal, (1972) 2 MLJ 49 (50) Raghavan, J.).

Per Lord Atkin in Beresfonds royal Insurance Co. 1938 AC 586 (598).
Houghton (in re:0, (1915) 2 Ch. 173; Pitts (in re) (1931) 1 Ch. 546.
Vol. 50,4th Edn, Paar241.
M. Lalemma v. J. Reddakka, (1988) w4 Hr 74 (AP).
146
 “Now this rule based on public policy is that no person s allowed to take
any benefit arising out of a death brought about by the agency of that person
acting feloniously, whether it be a case of murder or manslaughter.”

The principle that a person who is guilty of felonious killing another cannot
take any benefit in that other person’s estate applies to murder as well as
manslaughter.573 A person who, though not convicted of murder of his father, but
who will convicted under section 324, Indian Penal Code (causing hurt by
dangerous weapon) in the case where his co-accused were held guilty to murder
cannot succeed to the property of his father.574

4. Gift in Favour of Unincorporated Association

If in a gift to unincorporated Association, the beneficial use of the property

goes to the present members who if they please can alienate and pocket the
proceeds thereof to themselves, in such an event the present gift is to the
individuals and so is good in law.575 But if the gift is for the benefit of the present
and future members or for the purposes of the Institution576 as such, then the
present members become trustees and so cannot appropriate the property or its
proceeds for their own benefit. Such a gift is invalid.577 If nothing more is given to
the society than annual rents, dividends and profits for the aforesaid reasons the
gift will be invalid.578

5. Legacy to Executor

Where a testator by his Will appoints an executor and bequeaths to him a

legacy in such a way that it is annexed to the office, and by a codicil revokes the
appointment of the executor, the legacy is revoked.

Hall (rare), 1914P.l.

Seetharamanah v. Ramakrishnatah, AIR 1970 AP 407 (O. Reddy. 1).
Neeille Estates Ltd. V. Madden, 1962 Ch. 832, See also (1969) 1 WLR 229.
See Section 408 of Indian Succession Act.
Learly v. Attorney Ganeral for N.S. Wales. 1959 AC 457, See also, Macaulay’s Estate, 1943 Ch.
435 n.
Macatuday’s Estate (in re© (1943) Ch. 135n. See Wills by Stephen Gretney and Gerald Dworkin,
13th Edn.pp. 391-92.,

147
 But if the testator shows that the bequest of the legacy is independent of
the office, the legacy is not revoked by the revocation of the office.579

Since 1925, the executors right is taken away by section 46 of the

Administration of Estates Act, 1925.580

• Combined Operation of Sec. 109 and 141,1. S. A., 1925

Where a testator appoints his own child as executor, but that legatee died
before the testator, it was held that there was no lapse, but the lineal descendant
was entitled to the legacy as if the legatee under the Will died soon after the
testator581

However, section 109 is subject to any contrary intention as indicated in

the Will. It is open to content that the appointment of the child as executor is
indicative of an intention that the child could take the legacy only if he could act
as executor.

141. Legatee named as executor cannot take unless he shows intention to

act as executor.—If a legacy is bequeathed to a person who is named an
executor of the Will, he shall not take the legacy unless he proves the Will or
otherwise manifests an intention to act as executor.

This section is applicable to Hindus also.

The scope of section 141 was also considered in a Madras case of Rajan
v. Pankajam Ammal.5S2 In that case, the testator had made a substantial legacy
to his nephew very much loved by the deceased, and had appointed him as an
executor. When after the death of the testator, the nephew proceeded to do his
duties as an executor, the testator’s widow remonstrated and with a view to avoid
misunderstanding and trouble be renounced his executorship. Later on, the
question arose if he could claim the legacy though he had renounced the office of
executor. It was then contended that the Indian section also must be read as
containing a proviso of indication of contrary intention by the testator, who, it was

579 Jarman on Wills, 8th Edn, p. 199.

380 Skeats (in re:), 1936 Ch 783; Jarman on Wills, 8th Edn., p. 724.
581 Ramasamy Iyar v. Kuppusamy Iyar, 13 MLJ 351.
582 ILR 1944 Mad 821: AIR 1944 Mad 335.
148
contended, desired to benefit his dearly loved nephew whether he acted as
executor or not. The Court, however, rejected that contention saying: “It says,
‘bequeathed to a person named as executor’, not bequeathed to an executor’. It
is, therefore, impossible to contend that the prohibition applies only to an
executor as such. It clearly extends to any bequest whatever be the reason for
which it is made, provided that the legatee is named as executor.”

Minor as legatee. A minor can be a legatee under a Will.583

The guardian can accept a legacy on behalf of the minor.584

In case of contest in guardianship proceedings on the basis of two

different Wills executed by the father and the children, one appointing wife as
guardian and the other appointing mother and sister as guardian, it will be
appropriate for the court to stay the proceedings and call upon the parties to
produce probate of Will.585

A person may be barred from inheritance by a physical defect or

disqualification. Such defect or disqualification does not debar him from taking
the legacy.586

This case is under sections 141, 216 and 263 of the Succession Act,
1925. It was a suit by the legatee claiming allotment of property during pendency
of administration of estate as per probated Will. Claiming allotment of property
inspite of pendency of the administration of the estate, by executors in impliedly
barred by the provisions of section 141 of the Succession Act, 1925 and as such
plaint is liable to be rejected under Order VII, rule 11.

6. For Non-Charitable Puposes

A gift to a non-charitable purpose is valid, provided the purpose is specific,

though there is no person or persons named as legatees or though there is a
583 Trevelyan, Wills, 2nd Edn., p. 29.
584 Joitaram v. Ramkrishna, 27 Bom 31.
585 Shobha Kshirsagar v. Janki Kshirsagar, AIR 1987 MP 145.
586 Kooldeb Narain v. Wooma Coomaree, 1883 March 357: 2 Hay 370, Himangru Kumar Basu v.
Sudhangsu Kumar Basu, AIR 2004 Cal 217, Dwarka Prasad Agarwal v. Ramesh Chandra
Agarwala, AIR 2003 SC 2696,1.T.I. Ltd. v. Siemens Public Communication Network Ltd., AIR
2002 SC 2308, Prakash Narain Sharma v. Burman Shell Co-operative Housing Society Ltd., AIR
2002 SC 3062, AIR 2002 Cal 247.
149
person named as legatee, but he must by terms of the Will hold the gift for the
specific purpose.587

A testator cannot leave the purpose vague and leave to another to make a
Will for him. It is void for uncertainty.588

The legacy has been held valid in the following cases:

a. to maintain the horses and hounds of the testator, together with their
stables and kennels and buildings for 50 years;

b. for the promotion and furthering of fox hunting;589

c. for the erection of tombs and monuments — if not uncertain or void for
perpetuity;

d. for the erection of Masonic temple.590

XIII. RULES OF CONSTRUCTION UNDER THE INDIAN SUCCESSION ACT

The Indian Succession Act, 1925, is the statutory Law of Wills in force in
India and since 1926 governs the Wills of all persons in India including Hindus
and excluding Mohammedans.

Part VI of the said Act (sections 57 to 191) provides rules of law and rules
of construction regulating Wills. Section 58(2) says that ‘save as otherwise
provided in sub-section (1) or by any other law for the time being in force, the
provision of this part shall constitute the Law of India, applicable to all cases of
testamentary succession.591

So far as Hindus are concerned, the provisions of Part VI which are set
out in Schedule III shall, subject to the restrictions and modifications as set out

Dean (in re:), 41 Ch D 552; Thompson (in re:), 1934 Ch 342; Wood (in re:), 1949 Ch 498; Astor
Settlement (in re:), 1952 Ch 534.
Houston v. Bums, 1918 AC 342; C.D. Fund v. Simpson, 1944 AC 341.
Thompson (in re:), 1934 Ch 342.
Turkingion (in re:), (1937) 4 All ER 501.
Ramanandi Kuer v. Kalawati Kuer, 7 Pat 22 (PC): AIR 1928 PC 2: 54 MLJ 281.
150
therein, apply also to all Wills and codicils made by Hindus, Buddhists, Sikhs and
Jainas on or after the 1st day of January, 1927.

Among the provisions of Part VI are to be found several rules of statutory

construction. Most of them are based upon rules as laid down in English Law by
the decisions of the English Courts before 1925. Care has been taken to adapt
those rules to suit the social conditions prevailing in India. Further, certain
sections have not been made applicable to Hindus.

Even in regard to those exempted provisions. Courts of this country have

taken the view that in numerous cases there in nothing inconsistent in Hindu Law
with the statutory rules and so on grounds of convenience these exempted
provisions have been applied to Hindus also.

The rules of interpretation of Wills are not similar to rules of interpretation

of statutes which contain the words of trained and expert body of law-makers.592

A Will on the other hand contains the words of a layman; so ‘No technical
words or terms of art’ be used in a Will, but only that the wording be such that the
intention of the testator can be known therefrom.

1. No formality required in Wording

Having regard to the nature and object of the Will, section 71 lays down a
rule of universal application. At times a man may have to draw up his Will without
sufficient time to consult expert lawyers. He may be in extremis. He may
suddenly start on a voyage to a distant place with attendant uncertainties of his
return; and before leaving his native land he may desire to make his Will. To
insist on particular formalities and the use of technical expressions is to deprive
many of the opportunity of making a Will or to render most of the Will inoperative.
On that account the Legislature has in its wisdom conferred on the people the
privilege of using ordinary lay language, bringing out the intentions of the testator
clearly and unmistakeably to be carried into effect after his death.593

Ali Raza Khan v. Nawazish Ali Khan, 19 Luck 109.

Din Tarini v. Krishna Gopal, 36 Cal 149.

151
 The duty of the Court is only to ascertain the intentions of the testator. The
guide to interpret the Will is the Will itself and his intentions have to be gathered
from the language of the Will.594

Oral evidence may be let in to understand the language used in the Will in
order to ascertain the intentions of the testator.595

But no oral evidence can be admitted to show the intentions of the

testator.

2. Clear and Unambiguous Words

Where the language of the Will is clear and unambiguous, the ordinary
meanings will prevail: Rules of construction have no place in such a case and the
plain meaning of the words cannot be controlled by any general expression of
intention.596

The literal meaning of the words must not be disregarded.597

In the case of a Will, the words must be understood as the testator

understood them, without laying undue stress on the words or expressions.598

Where a Court is once satisfied that the particular words express a

particular meaning, although inaccurately, it is just as much bound to adhere to
that meaning, as if the most precise and technical expressions had been used In
authorize a departure from the words of a Will, it is not enough to doubt whether
they were used in the sense which they properly bear. The Court ought to be
satisfied that they were used in a different sense, and ought to be able distinctly
to say what the sense is in which they were used.

Bowen v. Louis, (1884) 9 AC 890.

See Davidson (in re:), (1949) 2 All ER 551 (where the testator had bequeathed in favour of
grandchildren, oral evidence can be let in to show that she had grandchildren of her own; but that
she regarded her sister’s grandchildren as her own).
Lalit Mohan v. Chukkun, 68 CLJ 246: AIR 1939 Cal 226; Krishna Rao v. Benabi, 20 Bom 571;
Bighari v. Suradhani, AIR 1939 Cal 226; Gurusami v. Sivakami, 18 Mad 347 BPC);
Sankaranarayana v. Koppayya, 23 LW 81 (84).
Rajeswari v. Khuklina, .MR 1943 PC 121.
Lalta baksh v. Phoolchand, 49 CWN 485; see Proposition 2 of Wigram Williams on Wills, 1952,
pp. 337-340.

152
 “To understand the language employed the Court is entitled to use a
familiar expression, to sit in the ‘testator’s armchair’. When seated there,
however the Court is not entitled to make a fresh Will for the testator merely
because it strongly suspects that the testator did not mean what he has plainly
said—that he was in fact one of those persons of whom Knight Bruce, LJ. said
that they spoke as if the language were to conceal their thought.”

It is, of course, true that the intention of the testator must be gathered from
the language used in the Will. But where there is ambiguity in that language
extrinsic evidence can be admitted to clear up that ambiguity.599

3. Dictionary Principle and Technical Words

If a particular nomenclature is to be found used by the testator in the Will,

then that will be taken as the dictionary from which the meaning of the word used
must be ascertained.600

If it is clear that the testator has used any word not in its ordinary sense
but in a different sense, the word must be construed accordingly.601

While the words used in the Will should normally receive their natural
meaning, still if it is clear from the Will and the surrounding circumstances, that
the testator has used the words in a special sense, it is permissible to construe
the Will in the special sense. Thus, normally ‘children’ means legitimate children;
still where a testator has only illegitimate children a clause in the Will providing
for his children may be construed in the wider sense of including illegitimate
children also.

This is known as the ‘dictionary principle’. A testator may make his own
dictionary for purposes of his Will and show that he has used words conveying a
particular or special sense departing from their normal meaning. It is not that an
express definition clause should be provided in the Will.

R. Somi Rajalu Naidu v. Kothandarama Naidu, AIR 1965 Ker 122: 1964 Ker LT 665: 1964 Ker
LJ 804: ILR (1964) 1 Ker 532.
Hill v. Crook, 1873 LR 6 HL 265.
Poole v. Poole, 127 ER 334.
153
 When a testator has used words which have acquired a definite meaning,
in conveyancing and have for a long time been used in the drafting of Wills and
settlement and other like documents with that meaning, it requires a very strong
case to justify their interpretation in a different sense.602

4. Same Word Occurring more than Once

The section 86, Indian Succession Act, 1925 runs thus:

“If the same words occur in different parts of the same Will, they shall be
taken to have been used everywhere in the same sense, unless a contrary
intention appears.”

The section applies to Hindus also.

Where a word is used in a document in one sense, the same meaning

must be given to it where it appears elsewhere in the document unless it is
evident from the context that a different meaning should be put upon it.603

The same words in different parts of a Will should be given the same
meaning unless there is some clear indication that the testator intended to use
the word a second time in a restricted sense.604

Thus in D’Cruz V. Nagiah Naidu,m5 a Will in Tamil gave the devise to

testator’s "Santhathf' This word was used twice meaning issue but in the later
part of the Will was the phrase “aan Santhathi”, meaning male issue. So the court
accepted the later restricted meaning. Where in the earlier part of the Will full
description or the legatee is given and the same name is repeated in another part
without the description, the presumption is that it refers to the same person.606
This presumption is very strong disallowing any evidence to indicate that it was a

Harvert (in re:), (1921) 2 Ch 491: (1922) 2 AC 473.

Maharajas of Venkatagiri v. Rajeshwar Rao, 49 LW 717: ILR1939 Mad 622: (1939) 1 MLJ 831.
Aghore Nath v. Kamini, 11 CLJ 461; Edyon v. Archear, 1903 AC 379 (384); D’Cruz v. Nagiah
Naidu, AIR 1929 Mad 64; Guran Ditta v. Ram, AIR 1941 Lah 218; Kulsambai v. Khensa Bai, 13
LW 657 (PC); Bishan Singh v. Thakurji, 58 LW 47 (50); Salig Ram v. Chamajit, 11 Lah 647
(PC): AIR 1930 PC 239.
AIR 1929 Mad 64.
Webber v. Rorbett, LR 16 Eq 515.
154
different person.607 Where power of transfer is also conferred it clearly indicates
conferral of absolute estate.608 In a Will “gifts to son and daughter” using the
word ‘Arpan’ (I give fully) indicates absolute estates to the devisee.609 The use of
‘heir1 in gifts to widow and daughter-in-law is to be taken as full estate.610 So also,
is the word ‘owner1 vis-a-vis gift to son and widow.611

5. Contrary Intention

This rule does not apply where there is a clear intention to use the same
word in a different sense. By force of context the word ‘Malik’ or ‘Owner" mean a
limited estate in one place and absolute estate in another place.612

Thus in Punchoo Money Dossee v. Traoylucko,613 the Will stated “after my

death my wife will be the owner (Malik) of my estate and after the death of my
wife my daughters shall be the owners (Malik) and they shall have the power of
all transfers gifts, etc.” It was held that the Malik wife had a life estate while the
Malik daughters took full estate.

This rule in Ridgeway v. Munkittrick,6U was explained by Lord St.

Leonards thus:

“It is well-settled rule of construction and one to which from its soundness,
I shall always strictly adhere, never to put a different construction and on the
same word, where it occurs twice or often in the same instrument, unless there
appear a clear intention to the contrary.”

Within proper limits this is good sense and good law.615

Webber v. Rorbett, LR 16 Eq 515, see Krishna Rao v. Bina Bai, 20 Bom 571 (592); Kulsambai v.
Khensa Bai, 13 LW 657 (661).
Bishan Singh v. Thakuq'i MangalaNam, (1945) 58 LW 47 (50).
Bipradas v. Sadan Chandra, AIR 1929 Cal 801 (804). See also N. Ukheda v. Anandji, AIR 1933
Bom 445 (446).
Jairam v. Keesewjee, 4 Bom LR 555.
Suhashini Dasi v. Ali Bhusan De, AIR 1963 Cal 520 (523); See also Pearey Lai v. Rameshwar
Das, AIR 1963 SC 1703 (1705): (1963) Supp 2 SCR 834: (1964) 1 SCI 85.
Punchoo Money Dessee v. Troylucko Mohinery Dassee, 10 Cal 342; Laltu v./ Jugmohan, 22 Bom
409; Chunnilal v. Bai Mali, 24 Bom 429.
10 Cal 342.
1 Dr & W 84.
See Birks (ini re:), (1900) 1 Ch 417.
155
 Jarman, however, has pointed out that there is not much difficulty in
following the rule, but to find out where is ‘a clear intention to the contrary’ is still
the vexed question.616 If we find that the testator’s dispositive scheme would be

violated by not giving a uniform construction throughout the Will, the argument for
its adoption is very strong, where the dispositions of the Will are of a nature not
to afford any light, the task of its expounder becomes very embarrassing.

There is another exception to the aforesaid rule. This is posited in

Sheffield v. Lord Orrey617 to the effect that where the same words are used in a
Will with reference to different subjects, it is permissible to put a different
construction. An additional word or phrase may give a different additional
meaning unless the variation is slight.618 In an Oudh case619 in one place the
word used was ‘aulad’ while in another ‘aulad narina’ was used. Consequently
different meanings should be drawn for each of them.

A word like Santhathi (issue) embraces also an adopted son.620

Generally, however, the Will is to be the dictionary from which you have to
find the meaning of the words and expressions used by the testator in the Will.621

This rule is applicable to Hindu Wills also.

This section (section 86) has been held to embody a rule of common
sense and common knowledge and experience. Whatever may be the position
when a man uses the same word in several documents executed on different
occasions it is fair presumption to make that a man may not be varying the
meaning of a word, when he used it more than once in the same document, that
is at the same time, when other contexts and circumstances cannot be expected
to intrude on his cognition.622

Jarman on Wills, p. 1595.

3 Atk 288; See also Fourth V. Chapman I.P. Williams.
Jarman on Wills, p. 2146 (7* Edn., Rule XVIII); Cambell v. Cambell, 13 Ves 39.
Bhaiya v. Muna Kuar, AIR 1926 Oudh 260.
S. Venkatasubba ao v. M. Krishnamoorthy, AIR 1958 AP 447 (448-449).
Hill v. Crook, 1873 LR 6 HL 265. ;
Ramanuj v. Manraj, AIR 1935 Oudh 198.

156
 Where the some word ‘owner1 is used both with reference to the bequest
to the son and also to the wife, it means absolute estate in both cases.623

6. Inquires to Determine as to Object or Subject of Will

This section 75 of the Indian Succession Act, 1925 is a rule of construction

that a court has a right to ascertain all facts which were known to testator at the
time he made the Will and thus to place itself in a testator’s position. Evidence to
the effect is admissible which shows that person or property actually exist as
described in the Will.

So in all cases it is the primary duty of courts to ascertain from the

language of the testator what were his intentions and in so doing they are entitled
and bound to consider surrounding circumstances, the testator’s position, his
family relationships etc. As soon as it is settled, the duty of the court to carry out
the intentions as expressed and none other.

Generally, legal conscience and judicial determination gets a rude shock

when the Will of a native testator comes before the court who is ignorant of
proper legal phrases to express his intentions, then the court has to adopt the
armchair doctrine to reach at the truth and to carry out his intentions into effect.
Sometimes it so happens the phrase used creates a confusion as to whether it is
an adoption deed or a Will. In that situation the Court has to labour hard to find
out the real intention of the testator from the surrounding circumstances and not
from extrinsic circumstances.

7. Interpretation of Words Repeated in Different Parts of Will

If the same words occur in different parts of the Will, they must be taken to
have been used everywhere in the same sense unless a contrary intention
appears.

“Law strictly believe in “construction” of Will rather than its “destruction”

unless it is opposed to law, custom or practice. If there are conflicting clauses,
effort should be made for reconciliation. If there is repugnancy, the first intention

623 Jairam v. Kessovjee, 4 Bom LR 555; But see Punchoo Money Dossee v. Troylucko Mohiney
Dossee, 10 Cal 342.

157
is to be accepted. Rejection of Will is the last resort when the judicial conscience
is pricked.”

8. Courts on Construction of Wills

The interpretation or construction of a Will and the ascertainment of the

intention of the testator are within the province of the appropriate Court.

The Court of construction exercises a ‘judicial function’ and not a

legislative or creative one.

The function of construing a Will is limited to the interpretation of the

language of the testator. It may not re-write or make a Will for the testator, with a
view to effect a more equitable and liberal distribution of the estate and even
though interested parties are agreeable to it.

The Court must examine the Will and, if possible, ascertain its plain
meaning from the language used.

If the meaning is not clear or if there is uncertainty or ambiguity, it is then

proper for the Court to resort to established rules for the construction of Wills.

The plain provisions of the Will must be given effect to if they do not
violate any rule of law. The Court cannot pass judgment on the wisdom or
propriety of provisions of a Will.624

In construing a Will, the skill of the draftsman must be considered.

The following are the guiding principles for ascertainment of such

intention:

1. In construing a Will, the intention of the maker of Will must be ascertained,

if possible. The guiding star in the construction of a Will is his intention as
expressed in the Will.

2. The intention which controls in the construction of a Will, is that which is

manifest, either expressly or by necessary implication from the language

95 CIS section 586.

158
 of the Will. It cannot be inferred by a mere surmise, conjecture, or
supposition as to the intent of the testator.

3. The intentions of a testator are merged in a Will as written.

4. In ascertaining the intention of the testator, the Court should place itself as
nearly as possible in his position and his language may be construed in
the light of the facts and circumstances surrounding the testator.

5. Consideration may be given to the testator’s relation to, or associations

with his family, beneficiaries and natural objects of his bounty, their age,
condition, dependence or necessities, the mode of life in which his family
has been reared and the means provided by him in his lifetime for their
culture and happiness, the testator’s character and environment, his mode
of thought and living and his business operations and methods.

6. A testator may have a general intent and a particular intent and if they
conflict the former must prevail.

7. When the Will does not satisfactorily disclose the real intention of the
testator, technical rules of construction are to be followed so far as they
are aid in determining that intention.625

While interpreting a Will, the court has to endeavour to ascertain the

intentions of the testator. This intention has to be gathered primarily from the
language of the document which is to be read as a whole. The Court also must
consider the surrounding circumstances, the position of the testator, his family
relationship the probability that he would use words in a particular sense and
many other things which are often summed up in the somewhat picturesque
figure. The Court is entitled to put itself into the testator’s armchair. But all this is
solely1 as an aid to arriving at a right construction of the Will. The duty of the
court is to carry out the intention as expressed and none other.626

85 CJS section 591-96.

K. Babu Rao v. Datta Rao, (1992) 2 HLR 627 (628) (Kam HC); Gnanambal Ammal v. T. Raju
Ayyar, AIR 1951 SC 103.

159
 Where the propounder proved due execution and attestation of the Will,
the Court need not decide whether the testator was justified in disinheriting his
eldest son and his family. It is not permissible to a Court of probate to consider
aliunde the terms of the Will to consider whether the relation who had natural and
legitimate claim on the testator’s bounty have been cut off altogether or not.627

9. Value of Precedents

The true way to construe a Will is to form an opinion as to its meaning,

apart from decided cases, and then see whether the cases require a modification
of this opinion.

Previous decisions are of iittle weight except in so far as they lay down
some rules of construction. Each case has its own facts and no two Wills agree
on facts. A different conclusion may be rendered necessary by surrounding
circumstances.

When the decision is upon the meaning of words which differ so much
from each other, it seldom happens that the words of one Will are a sure guide
for the construction of words resembling them of another.628

In applying prior decisions of Courts, the Court has first to examine the
Will in question and then put its own interpretation on it, and then decide whether
there is any principle derived from decided cases which helps it in verifying and
checking up its interpretation. It will be a fallacious and incorrect course for the
Courts to, look first at the decided cases on other different Wills and then see
how time Will under consideration, resembles or differs from any of them.629

10. Judicial Decisions—Interpreting other Wills—Utility Interpretation

In interpreting a Will the Court has to ascertain the intentions of the

testator as declared by him and apparent in the words of the Will. The testator
conveyed the expression of his wishes in the words employed by him in the
document and all the parts of the Will should be construed and read together with

Alok Kumar Atch v. Asoke Kumar Atch, AIR 1982 Cal 599.
Grey v. Pearson, (1857) 6 HLC 61; Booth (in re:), (1894) 2 Ch 282 (285).
Williams (in re:), Metcalfe v. Williams, (1914) 1 Ch 219.
160
reference to each other, while effectuating the intentions of the testator. As often
said, on a question of true interpretation of a Will, decisions on the construction
of other Wills are useful only for the limited purposes, in so far as they lay down
the principles of law which have to be observed in the construction of Wills. Court
should not form any preconceived notions about the intention of the testator,
based upon some decision apparently containing similar language, and then
i

enquire, how far the Will in question resembles the Will or Wills referred to in
judicial decisions in M.V. Savitri Ammal v. Secretary, Revenue Department.
Government of Madras.630 Decisions with regard to other Wills can only give

guidance in the application of general principles by reference to instances. The

best way of construing a Will is to read the Will as a whole and form an opinion
i

as to its import and tfien see whether the intention could be sustained in the light
of the general principles found in decided cases. It has to be seen whether the
estate inferred on the reading of the Will as a whole is legal and whether the
I

opinion formed as to its import require modification in the light of decisions.631

11. Construction against Inconsistency

The Court will construe a Will so as to reconcile repugnancies,

incongruities or inconsistencies. This may be done by the process of reduction
ad absurdum.632

The Court, no doubt, cannot make a Will for the testators. But it must
ascertain his expressed intention. If the grammatical meaning produces clear
inconsistency in thej Will, the Court is at liberty to depart from the natural

grammatical meaning, strike out words or supply them.633

I

12. Presumptions in Construction

In the construction of Wills the Court must keep in view four cardinal
presumptions:

630
AIR 1969 Mad 21 81 Mad LW 483: (1969) 1 MadLJ 108.
631
Kolandayammal v. R. Senniappa Goundan, (1969) 82 Mad LW 102.
632
Hicks v. Salitt, 43ER307.
633
Evans (in re:), Public Trustees v. Evans, (1920) 2 Ch 304.
! 161
(1) There is always a presumption against intestacy. Whenever possible,
Courts will prevent intestacy;634

(2) There is a presumption of legality of a Will. The Court should be inclined to

believe that the testator had no intention to transgress any law;635

(3) Where a Will has been shown to be duly executed and attested, there is a
presumption that the testator had knowledge of the contents and approved
of the same;636

(4) There is a presumption that the testator intended to benefit the members
of his family rather than strangers.637

13. Interpretation of Will and Judicial Conscience

Though Part VI of Indian Succession Act, 1925 provides rules of law and
rules of construction regulating Wills, sections 74, 75 and 86 are the nerve centre
of the interpretation of Wills. Interpretation of Will, in legal parlance, is the
preservation of the solemnity of the Will without ignoring the suspicious
circumstances weighing it in the balance of testator’s intention as to in what
manner he wanted his property to devolve after his mortal frame decays and the
court is bound to look to every molecule of the Will under “Arm chair” doctrine
leading to the satisfaction of judicial conscience. Judicial pronouncements as
precedents do play a big role in addition to the Court’s own assessments as the
court does act as a truth seeker.

It is held that the onus of proof rests squarely on the person propounding
Will in the light of section 63 of the Succession Act and that wherever suspicious
circumstances exist, they must be dispelled to the satisfaction of the court as to
the genuineness of the Will executed. These rules are based on sound judicial
principles and on ground of public policy, as the Will often, if not always, comes
under chatting only when, the testator has already departed from this word and
cannot, therefore, assist the court enquiring into its genuineness in any manner.

Ashrafali v. Mahomedalli, AIR 1947 Bom 122.

Leach v. Leach, 63 ER222.
Fulton v. Andrew, (1875) 7 HL 448.
Farrant v. Nichols, 50 ER 370.
162
If the propounder takes a prominent part in the execution of the Will which
confers substantial benefits on him, it is in itself a suspicious circumstance
attending the execution of Will and court should proceed in a vigilant and
cautious manner. So the Will has to be read in the light of sections 63 and 74 of
the Indian Succession Act. 1925.638

It is a case under section 74 of the Succession Act, 1925 wherein Order 6,

rule 1 was discussed. There was a challenge to the genuineness of the Will.
There was no plea as to identity of land which was subject-matter of Will. No
issue was framed as to whether suit land was covered under Will. Held, that, the
order of the lower Court is not proper as Court is not to go beyond pleadings.

In the Will, the words used are, “occupy the.....premises absolutely”,. It

implies that the brother would have right to occupy said premises in its entirely
had sister pre-deceased him. A right to occupy is not right to own property. The
words, “give”, “bequeath” and “devise” indicate vesting of title in property
absolutely in favour of persons mentioned in aforesaid clause. Property had been
given to brother and sister in equal share.

XIV. WHAT MAY BE DISPOSED OF BY WILL

The property passing under the Will is as it is at the time of the death of
the testator. [Section 90, Indian Succession Act.]

Mere possessory title can be devised under the Will.639

A power of disposition over property given to a person may be exercised

by the donee of the power, by deed or Will.640

A purchaser who has made, but not signed, a contract for the purchaser of
real estate, the terms of which are proved, and which is signed by the vendor,

Bondar Singh v. Nihla Singh, AIR 2003 SC 1905: (2003) 4 SCC 161: (2003) 2 SCR 564.

Asher v. Whitlock, (1865) 1 QB I; Clarke v. Clarice, (1868) IR 2 C.L. 395; Caldet v. Alexander,
(1900) 16 TLR 394; Re., Cresswell, (1883) 24 Ch D 102.
Re., Lawry, 91938) Ch 318.
163
has a devisable interest. A seller who has an equity to have the sale set aside
has a devisable interest.641

If a power is exercised by a Will, it must be executed in accordance with

the requirements of the law for a valid Will.642

Any Hindu may dispose by Will any property in accordance with the
provisions of Act, and the share of deceased out of joint Hindu family of these
coparceners could be disposed off by a Will643

1. Shebaitship—If can be Disposed of by Will

The word Will is defined in section 2(h) of the Indian Succession Act to
mean 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. It is, therefore,
indisputable that the instrument which is sought to be propounded as a Will must
contain the legal declaration of the intention of the testator with respect to his
property. If what is sought to be disposed of by the deceased in question is not
property the instrument cannot be regarded as a Will. The shebaitship of the
temple, where it is not merely a religious office which could not be regarded as
property for the purpose of civil law, but carries as an inalienable incident the
right to appropriate the income of the. temple, it is a religious office which brings
income to the holder as a necessary concomitant of the office, it will be as much
property as any other property known to law. If a shebeitship were merely a
religious office without any beneficial interest in the endowed property and not
producing any income, it might not have been possible to regard shebaitship as
property, but when it entitled the holder of the office to the income of the
endowed property, as also to the offerings which might be made to the deity, the
shebaitship must be regarded as property.644

Where two beneficiaries of the Will of a deceased Mahant, the shebait,

applied jointly as chelas of the said testator for probate, and one of them died

Shimp v. Goby, 22 LJ Ch 352.

Re., Barnett, (1908) 1 Ch402.
V. Rajamma v. A. Rami Reddy, (1997) 2 HLR 548 (AP).
Bai Zabu Khunia v. Amardas balakdas, AIR 1967 Guj 214: (1967) 8 Guj LR 281.
164
during the proceedings, his personal heirs cannot be substituted as his legal
representatives, as they cannot be said to be the chelas of the deceased
shebait.645

A shebaiti right can be transferred by Will according to the facts and

circumstances of a case. The distinctive feature of a shebaiti right is that it cannot
be absolutely alienable like any other property inasmuch as it is an office
enjoining certain religious and spiritual duties to perform. Similarly as there is an
element of property also in the concept of shebaiti right the view that it cannot be
transferred at all can no longer be accepted. Thus, unless there is an absolute
bar under Hindu Law or an express prohibition in the deed of religious
endowment, there should not be any limitation on the power of a shebait to
transfer his shebaiti right by gift or by Will. The general limitations under which
such transfer is permissible may be set out as follows:

(a) The transfer of a shebaiti right is permissible if such transfer is not

contrary to the intentions of the founder as expressed in the deed of
endowment unless an ancient or reasonable custom or usage has been
followed to the contrary.

(b) Where there is a perpetual or hereditary line of succession of shebaitship

prescribed by the founder in the deed of endowment a particular shebait
cannot change the line of succession by any deed of transfer unless the
shebait transfers the totality of his rights in favour of the succeeding
shebait or shebaits during his lifetime.

(c) A transfer of shebaiti rights is also permissible for the benefit of the idol or
the deity or for imperious necessity under special circumstance.646

2. Property in Dead Body

A person has no property in the body after death and direction as to its
disposition after death is not valid 647

Mahant Murlidhar Das v. Ram Charan Das, 1987 MPLJ 734.

Sonabati v. Kashi Nath Drey, AIR 1972 Cal 95 (102) (Masud, J.), Shambhu Charan Shukia v.
Thakur Ladli Radha Chandra Madan Gopaiji Maharaj, AIR 1985 SC 905: 1985 (3) SCR 372:
1985 (2) SCC 524.
165
 A testator has power to devise a house to one legatee with a right of
easement of light and air over another house which he bequeathed to another.

The devise of a house also operates as an implied grant of the house and
the law imputes an intention that this easement of light should pass with the
house by virtue of the grant or devise.648

‘Interest’ of whatever kind may be bequeathed under a Will.649

It may be a life interest, or650 even contingent interest.651

Where there is a bequest under a Will, the bequest takes effect only after
the death of the testator. In the nature of things there cannot be a personal
covenant under a Will which is entirely a matter of mutual agreement and totally
inconsistent with the scope of a Will.652

3. What Passes under a Will? English Rule -Under Section 8, Transfer

of Property Act

Before 1926, English law required, as a general rule, the use of technical
words to pass a fee simple by deed, though after the passing of the English Wills
Act, 1837, a devise of property to A without words of limitation sufficed to pass
the fee simple or the whole estate which the testator had power to dispose,
unless a contrary intention was indicated under the Will.653

The Law of Property Act, 1925, section 130(2) has now dispensed with the
technical requirements of the previous law.

In regard to a transfer of property, inter vivos, section 8 of the Transfer of

Property Act provides that “unless a different intention is expressed or
necessarily implied, a transfer of property passes forthwith to the transferee, all
the interest which the transferor is then capable of passing in the property.” It is a
rule of universal application in India and is applicable to transfers by Hindus also.

William v. William, (1882) 20 Ch D 659.

Phillips v. Law, (1882) 1 Ch 47.
Rameshwar Kuer v. Shevlal, AIR 1935 Pat 401.
Rockford v. Hackman, 68 ER 597.
Egerton v. Brownlow, 10 ER 359; Re., Cresswell, (1883) 24 Ch D 102.
Sweamalata v. Promode, AIR 1959 Cal 268: 63 CWN 227.
See section 28, Wills, Act, 1837; Re, Arden, 1935 Ch 326.
166
 The corresponding provision regarding bequests under Wills is contained
in section 95, Indian Succession Act, 1925. It runs thus:

“95. Bequest without words of limitation—Where property is bequeathed to

any person, he is entitled to the whole interest of the testator therein, unless it
appears from the Will that only a restricted interest was intended for him.”

This section is included in Schedule III to the Indian Succession Act, as

applicable to Hindus. The rule is a rule of good sense; it applies to Hindus in
regard to transfers, inter vivos, and there is nothing to prevent a Court from
following this rule and giving effect to Hindu Wills.654

Extraneous circumstances are not relevant except where there is any

ambiguity and it becomes necessary to explain the Will.655

It should be noted that what passed to this transferee is only the entirety of
whatever interest that the transferor or testator has. A legatee or a transferee
cannot claim an interest higher or larger than the transferor or the testator had.656

Where the testator had only the interest of a lessee or mortgagee, the
legatee can have only the same interest657

Nor can the rights and titles of third parties in property bequeathed be in
any manner affected by what is conveyed to the legatee under the Will.658

A grant or devise of limited interest (i.e., less than what the transferor has)
is different from grant of an absolute interest subject to conditions. Such
conditions may be—

(1) either repugnant to the nature of the interest granted; or

(2) restricting the enjoyment of interest by the grantee; or

(3) conditions precedent; or

(4) conditions.

Sri Subramaniaswami, Temple v. Ramasami, AIR 1950 PC 32.

Suresh Chandra v. Surendra Chandra, AIR 1917 Cal 663.
Muthukrishna v. Sankara Narayana, AIR 1915 Mad 447.
Asghar v. Mahomed, 50 Cal 556.
Ramraonarayan v. Rustum Khan, 26 Bom 198.

167
 They may be void for various reasons, as being illegal, immoral or as
opposed to policy of the law. They may either themselves be void, without
affecting the validity of the grant or devise, or render the grant or devise also
void.

If property is bequeathed absolutely under a Will, but conditions are

supreadded absolutely restraining the transferee, or restricting the enjoyment of
it, such conditions are void.659

Where there is a gift of property absolutely with a proviso for forfeiture and
a gift over if the legatee attempts to alienate the property or becomes an
insolvent, or dies without alienating it, the condition and gift over will be void.660

A condition restraining alienation though for a limited time is void.661

But a condition restraining alienation to a particular person or not to sell

out of the family is not void.662

A testator bequeathed an absolute interest in favour of his son, and added

that in case the son or the son of that son has no child, the property shall go to a
temple. The Privy Council held that the absolute estate granted to the son cannot
be subject to a condition that it shall be divested at his death without issue.663

4. There are, However, Exceptions to the Rule

There are following exceptions to the rule:

(1) Where the restriction is only against disposing of the legacy to a particular
person and not to all generally.

(2) Where the restriction is so expressed as to be a limitation, in other words,

where property is granted absolutely, there cannot be a restriction in its
enjoyment Where, however, what is granted is only a restricted interest,
this rule has no application. A disposition to a man, until he shall become

Rameshwar Baksh v. Balraj, AIR 1935 PC 187.

Re., Ashton, (1920) 2 Ch 481.
Re., Rosher, (1884) 26 Ch D 801.
Re., Macleay, 1865 LR 20 Eg 622.
Sri Subramaniaswami Temple v. Ramasami, AIR 1950 PC 32.
168
 bankrupt, and after bankruptcy is over, is quite different from an attempt to
give it to him for life, with a proviso that he shall not alienate it.664

(3) A forfeiture clause will be valid, if it is to take effect before the beneficiary
becomes entitled to the possession of the interest, as where the
beneficiary becomes a bankrupt within the year of testator’s death.665

(4) When it was possible for a Hindu to authorise his widow to adopt a son
who would become absolute owner, an earlier gift to the widow with
authority to her to adopt would confer on the widow only a limited estate.

(5) Where under the same Will, property is given to A, and by a later clause a
gift in remainder is made to B, A takes only a life estate.

(6) Where the legacy is by way of provision for maintenance of the grantee it
may be only a restricted interest.666

The latest case law analyse the position as covered by section 95 of the
Indian Succession Act, 1925.

It is a case where the testator having wife, five sons and one daughter,
made a bequest of all movable and immovable assets in favour of his wife and
also expressed concern in Will about his two sons. Bequest of assets made in
favour of those of two Sons in case wife dying intestate and without disposing of
those assets. Bequest made in favour of wife cannot be said to be absolute only
life estate is created in her favour.

5. No Express Words of Inheritance Necessary

Where an estate is given to a person simply, without express words of

inheritance, it would, in the absence of conflicting context, carry by Hindu Law,

Brandon v. Robinson, (1811) 18 Ves 429; Re., Dugdate, (1880) 38 Ch D 176; See Siva Rao v.
Vitla Bhatta, 21 mad 425; Tulsidas v. Madan Gopal, 28 Cal 499.
Re., Forder, (1927) 2 Ch 291; Re., Pilkington, 1937 Ch 574.
Rameshwar v. Aijun, 23 All 194, Major-General Rajinder Singh Chowdhary v. Sardar Manjit
Singh Chowdhary, AIR 2002 Del 135, AIR 2001 Del 15: 95 (2002) DLT 302: 2002 (61) DRJ 135,
(1995) 60 DLT 827: 2000 (55) DRJ 518: 88 (2000) DLT 173, Kaivelikkal Ambunhi v. H. Ganesh
Bhaudary, AIR 1995 SC 2491: (1995) 5 SCC 444: (1995) Supp 3 SCR 35, Lalit Mohan Mondal v.
ProMla Kumar Mondal, AIR 1982 Cal 52: 86 CWN 398.
169
an estate of inheritance. Even an imperfect description as an estate of
inheritance will suffice to pass an estate of inheritance.667

Words ‘becomes owner (malik)’ would pass a heritable estate unless

curtailed by context, without further usual customary words like “from generation
to generation”, etc.668

The word ‘malik’ certainly connotes full ownership if there is nothing in the
context to indicate a contrary intention.669

As regards gift to a Hindu female the trouble regarding this question arose
out of a decision of the Privy Council in Mohamed Shumsool Hooda v.
Shewakram.670 In that case, dealing with a bequest of property by a Hindu in
favour of his daughter-in-laws the Privy Council made the following observations:

“In construing the Will of a Hindu, it is not improper to take into

consideration what are known to be the ordinary notions and wishes of Hindus
with respect to the devolution of property. It may be assumed that a Hindu
generally desires that an estate, especially an ancestral estate, shall be retained
in his family, and it may be assumed that a Hindu knows that as a general rule, at
all events women do not take absolute estate of inheritance which they are
enabled to alienate. Having, reference to these considerations together with the
whole of the Will, all the expressions of which must be taken together without any
one being insisted upon to the exclusion of others, their Lordships are of opinion
that the two Courts in India, who both substantially agree on the point, are right in
construing the intention of the testator to have been that the widow of his son
should not take an absolute estate which she should have power to dispose of
absolutely, but that she took an estate subject to her daughter’s succeeding to
that estate.”

Rameshwar v. Lachmim, 31 Cal 111; Vallabdas v. GordhanDas, 14 Bom360.

Jotiram v. Bai Diwali, AIR 1939 Bom 154; Ram narayan v. Ram Saran Lai, 46 Cal 683 (PC);
Pratap Singh v. Agar Singh, 43 Bom 778 (PC).
Ram Gopal v. Nand Lai, 1950 SCR 766: Air 1951.SC 139; Kanhiya Lai v. Deep Chand, 231 IC
383: AIR 1947 Lahl99.
2 IA 7:22 WR409.
170
 The case of Bishun Singh v. Thakurji671 is a novel one. The testator left

some properties to be inherited by his widow as his heir on his death. But by the
Will he also bestowed on her a fuller power of transfer. As such, the widow had
only a limited estate which devolved on her husband’s heirs on her death; at the
same time she was unable to exercise full powers of alienations conferred under
the Will. Their Lordships said that such power did not conflict with the principles
of Hindu law and the intentions of the testator should be given effect to.672

The High Court of Andhra Pradesh in Raja Malraju v. Rani Rajya

Lakshmi,673 summarised the rules of construction of bequests to a Hindu female
as follows:

(1) Prima facie, a gift or bequest to a female may be construed in the same
way as a gift to a male; the rules are the same for gift to males as to
females.

(2) All the parts of the Will must be construed in relation to each other so as to
form one consistent whole.

(3) A gift over on a future contingency in defeasance of an earlier bequest or

gift, renders the earlier bequest limited, but the gift over must be valid,
without being repugnant to the earlier clause or without being void or
unequivocal.

(4) The prior gift liable to be defeated by a contingency which never happens,
will become absolute.

A bequest by a Hindu father to be enjoyed by the daughters from

generation to generations from son to grandson, confers an absolute estate on
the daughters.674

AIR 1945 PC 30: (1945) 58 LW 47.

Promode Bala v. Krishna Sundari, 1 CLJ 301.
1960 Andhi WR 318: AIR 1960 AP 509.
Lakshmayya v. Trupathamma, AIR 1958 AP 720.
171
6. Will Executed Prior to Hindu Succession Act—Testator Dying After
it— Disposition of Coparcenary Interest—Validity

The Privy Council in Rani Krishna Kumari Devi v. Bhaiya Rajendra

Sinha,675 expressed the view that by a reference merely to the well-known rule

that the Will of the testator without any intention thereto be found of any contrary
intention must in relation to the property comprised in it be regarded as speaking
from his death, and its validity with reference to the devise of any particular
property thereby made must depend upon the testator’s statutory or other lawful
disposing power over that property at that time. As the Hindu Law stood prior to
the 17th June, 1956, no member of a Hindu joint family could dispose of his
share in the ancestral or family property by Will. The reason for this was that at
the moment of death the right of survivorship would be at conflict with the right by
devise and title by survivorship being prior to death takes precedence to the
exclusion of that devise. If a coparcener makes a Will of his share of the
coparcenary property and subsequent to the execution of the Will, a son is born
or adopted by him, the Will becomes invalid. But where a son born or adopted,
predeceases the testator, the Will speaks as from the date of the death of the
testator and its disposition if then it is not contrary to law will be enforced. This
position is made clear in a decision in Bodi alias Laksmakka v. Venkataswami
Naidu.676 The said decision lays down that a Will executed by a Hindu testator

disposing of his ancestral property is not revoked in law by reason of the birth
subsequent to the execution of the Will of a son who died before the testator.
Thus the validity of the dispositions made under the Will is to be decided with
reference to the date of the death of the testator.677

The Supreme Court also observed in Raghawamma v. Chenchamma,678

as follows:

“A Will speaks only from the date of death of the testator. A member of an
undivided coparcenary has the legal capacity to execute a Will, but he cannot

675 56 IA 156.
676 58 Mad 369.
677 Virabhadra Irappa Hubballi v. Irabayawwa, (1969) 19 Law Rep 129.
678 AIR 1964 SC 130.

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validly bequeath his undivided interest in the joint family property. If he died as an
undivided member of the family, his interest survives to the other members of the
family, and therefore, the Will cannot operate on the interest of the joint family
property. But if he was separated from the family before his death the bequest
would take effect.”

7. Oral Will by a Hindu after the Indian Succession Act—Validity

Section 57(c) of the Indian Succession Act has made the Act applicable to
all Wills executed by a Hindu after 1st January, 1927. Section 63 of the Act
makes it obligatory in the case of unprivileged Will that the Will should be in
writing and that it should be signed by the testator or his mark affixed or it should
be signed by some other person in the testator’s presence and by his direction
and, further, that it should be attested by two or more witnesses, each of whom
has seen the testator sign or affix his mark into the Will, or has seen some other
person sign the Will in the presence or by the direction of the testator, or has
received from the testator a personal acknowledgment of his signature, or mark
or of the signature of such other person. It is clear from this that after 1st January,
1927 there cannot be oral Will by a Hindu.679

8. Bequest by a Hindu Ancestor to his Descendants

The question whether property bequeathed by a Hindu ancestor to his

descendant is self-acquired property in the hands of the legatee or ancestral has
been a vexed one. The law relating to the same is now authoritatively laid down
by a Supreme Court of India.680

A Hindu father governed by Mitakshara law has full and uncontrolled

powers of disposition over his self-acquired property. His male heir cannot
interfere with these rights. The father is not only competent to sell his self-
acquired property to a stranger without the consent of his sons, but he can also
make a gift to one of his sons to the detriment of another. He can even make an
unequal partition among his sons.

In the Matter of Rajkumar Gopalshana Singh, AIR 1965 Manipur 9.

Aranachala Mudaliar v. Muruganatha Mudaliar, 66 Mad LW 1072 (SC): AIR 1953 SC 495.

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 The interest which the son takes in the self-acquired property of his father
received by way of bequest from him, in so far as his own son is concerned,
cannot be said to be always of the nature of ancestral property so as to confer a
right by birth on the sons of the donee also. To find out whether such property is
or is not ancestral property, the relationship as well as the mode of transmission
must be looked into. It will be ancestral if the donee got it only by virtue of his
being a son or the ancestor. It is competent for the father to expressly provide
that he makes the gift for the exclusive benefit of the donee or for the benefit of
the branch of the family. If there are no clear words, the question would be one of
construction and the Court must have to collect the intention of the donor from
the language of the donee in the document taken along with surrounding
circumstances.

If it is clear that the testator certainly wanted to make a disposition of his

properties in a different way from what would take place in case of intestacy, and
vests the sons to take as absolute self-acquired properties, prior decisions of the
High Courts laying down varying views do not require our attention subsequent to
the decision of the Supreme Court.

In Sevugapandia v. Thyagasundaradas Thevar,681 a zamindar executed a

Will; in 1895 and gave his properties to his son who “should hold and enjoy the
same with absolute rights and from generation to generation.” It was held that the
son took the property as separate property and not as joint family property.

XV. WILL MUST BE CONSTRUED AS A WHOLE

The Court is under a duty to find out the intention of the testator by
construing the Will.682

The intention of the testator has to be ascertained and gathered from the
language used by the testator who has conveyed his wishes by the words used
in the Will.

H.R. 1959 Mad 601 (1959) MLJ 335: 72 LW 270.

K.r. Ramaswami Rao v. Prembai, AIR 1988 Kam 116: ILR1987 Kar 1751.
174
 The meaning attached to the words by the testator has to be ascertained
by reference to the surrounding circumstances which must, therefore, be taken
into consideration by the Court interpreting the Will.

But the meaning of any particular clause must be ascertained by

considering the language of the particular clause alone.683

The meaning of the particular clause has got to be gathered from a

conspectus of the entire instrument so that parts of the Will may be construed
with reference to each other and it is only after reconciling and harmonising the
different parts that a consistent and coherent intention can be inferred.684

The construction must be consistent with the general tenor of the Will.685

The whole scheme of the Will must be kept in mind in construing words
and phrases, and general words or expressions in one part of the Will may be
controlled or limited in their application by language in another part. However, a
clearly expressed intention in one part of the Will should not be curtailed or
controlled by a doubtful expression in another part of Will686

It may also be that the various clause in a Will are entirely independent of
each other, each dealing with a particular subject with an apparent design to
connect them all. In such cases the various parts must be considered and
construed separately and with reference to each other.

1. Primary Rule

Anyhow the primary rule of construing a Will is that the meaning of any
clause in it is to be collected from the entire instrument and all its parts are to be
construed with reference to each other.

The Will must be read as a whole.687

Re., Bedon’s Trust 28 Ch D 523; while construing a will, the pre-dominant consideration is the
intention of the testator. [Balbhadra v. Board of Revenue, 1981 All WC 525].
Raju Aiyar v. Gnanambal, AIR 1946 mad 419; Rameshwar Baksh v. Balraj Kaur, AIR 1935 PC
187.
Mary Havviett v. George Oakes, 31 Mad 283.
Jarman on Wills, 8th Edn., pp. 585-86.
Amrithayyan v. Sitharamayyan, 14 Mad 65; Kanhaiya Lai v. Hira Bibi, 15 Pat 151: AIR 1936 Pat
323: Manekji v. Nana Bhai, 53 Bom 724; Sansarchand v. Durga Dasi, AIR 1934 All 93; Mary v.
George, 31 Mad 282; Hari Narayan v. Suraj, 43 All 291.
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 The maxim of the law is that a man can leave only one Will. It may be that
a man leaves more than one Will or more than one Will and one codicil. In all
these cases the Wills and codicils ought to be construed as a single document.688

This rule is stated as Rule VII by Jarman in Chapter on General Rules of

Construction:689

“VII. That all the parts of a Will are to be construed in relation to each
other, and so as, if possible, to form one consistent whole but, where several
parts are absolutely irreconcilable, the latter must prevail.”

The former portion of the rule is incorporated in section 82, Indian

Succession Act, 1925, which runs as under:

“82. Meaning of clause to be collected from entire Will.—The meaning of

any clause in a Will is to be collected from the entire instrument, and all its parts
are to be construed with reference to each other.

The section applies to Hindus etc. Langham v. Sanford,590 posits ‘But the
rule which sacrifices the former of several contradictory classes is never applied
but on the failure of every attempt to give to the whole such a construction as will
render every part of it effective.” To attain this object the local order of limitation
is disregarded, if it be possible, by the transposition of them in order to deduce a
consistent disposition from the entire Will.

Where parts of a Will contradict each other, a genuine attempt should be

made to reconcile apparent inconsistencies. If they are irreconcilable the last
clause of the Will dealing with the particular disposition of the properties should
be deemed to reveal the real intention of the testator.691

It is proper to accept that construction which would give a consistent

interpretation on all clauses in preference to that which leads to inconsistent
results

Rameshwar v. Baksh v. Balraj Kaur, AIR 1932 Oudh, 327; Chukkan v. Lolit, 20 Cal 906.
Jarman on Wills, 8111 Edn., p. 2069.
19 Ves 641. See Jarman on Wills, 7* Edn., p. 546, citing Blamire v. Geldart, 16 Ves 314. See
illustration (i) to section 82.
Sansar Chand v. Durga Dasi, AIR 1934 All 93 (94) (where Cls. 14 and 15 were read together).
Also Kanhaiya Lai v. Hira Bibi, 15 Pat 151.
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 The Tagore v. Tagore case692 posits that the true mode of construing a
Will is to consider it as expressing in all its parts, whether consistent with law or
not, the intention of the testator and to determine upon the reading of the whole
Will whether, assuming the limitation therein mentioned to take effect, an interest
claimed under it, was intended under the circumstances to be conferred.

The Privy Council pointed out693 that the plain language of a covenant
cannot be destroyed by the use of different expressions in other portions of the
document.

The words in a Will ‘Santan Santathi’ mean only children and not heirs.694

May be words like ‘Putra Poutradicromay’ and ‘Warihoncromay’ indicate a devise

to heirs but since at the end of the Will a clause limits the earlier dispositions and
gives a limited bequest to children and not to heirs.695

The rule contained in section 82, Indian Succession Act has to be studied
keeping the provisions in sections 78, 83 to 87 and 95 constantly in view.

The Supreme Court laid down the rule in Ramachandra Shenoy v. Hilda
Brite696 thus: “It is one of the cardinal principles of construction of Wills that to the

extent legally possible effect should be given to every ‘disposition contained in

the Will unless the law prevents effect being given to it. Of course, if there are
two repugnant provisions conferring successive interests, if the first interest
created is valid, the subsequent interest cannot take effect but a court of
construction will proceed to the farthest extent to avoid repugnancy, so that effect
could be given as far as possible to every testamentary intention contained in the
Will. It is for this reason that where there is a bequest to A even though it be in
terms apparently absolute followed by a gift of the estate to B absolutely ‘on’ or
‘after’ or ‘at’ A’s death, A is prima facie held to take a life interest and B, an
interest in remainder, the apparently absolute interest of A being cut down to
accommodate the interest created in favour of B.

9 BLR 377: 377: (1872) 18 WR 359 (PC). See also Kalidas v. Kanhaiyalal, 11 Cal 21 (129) (PC).
Kulsambai v. Khensabai, (1921) 13 LW 657 (661) (PC).
Panchu Gopal Sadhu Khan v. Kunja Behari Goswami, AIR 1957 Cal 150.
Panchu Gopal Sadhu Khan v. Kunja Behari Goswami, AIR 1957 Cal 150.
AIR 1964 SC 1323 (1328, 1329): (1964) 2 SCR 722.
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 “Quite a number of authorities were cited by learned Counsel on either
side but in each one of these we find it stated that in the matter of construction of
a Will authorities or precedents were of no help as each Will has to be construed
on its own terms and in the setting in which the clause occur. We have therefore
not thought it necessary to refer to these decisions.”

The Will has to be read as a whole. If the dominant intention is to restrict

an absolute grant, the duty of the court is to see if the restriction is good and
valid. To enable this, the whole Will as also the codicil has to be considered. If
the restriction is good, the estate is not absolute.697 A restriction that will allow
alienations except by a mortgage is void as that is repugnant to the power of
alienation. An absolute estate cannot be denuded by a clause that directs
enjoyment in a particular way. The direction is void for repugnancy.698 If in the
prior clause the testator gave his wife an absolute estate and in a later clause
she is restrained from alienating the property the restraint is void.699 In this case
the effect of sections 87 and 95 of the Indian Succession Act were also
considered. Even where a life interest is granted, if there is a restrictive clause
preventing alienating his life interest, the repugnant clause will be void.700

The latter part of Rule VII of Jarman is contained in section 88 of the

Indian Succession Act:

“88. The last of two inconsistent clause prevails.—Where two clauses or

gifts in a Will are irreconcilable, so that they cannot possibly stand together, the
last shall prevail.

2. Indian Decisions

It is common in Hindu Wills to find that a testator conveys property to A

absolutely, and by the same Will in a later clause, he gives it to B. The question
has come up before the Court as to how to give effect to the Will. It may be that
the subsequent devise to B is totally repugnant to the earlier devise; or it may be

Administrator-General of Madras v. White, 13 Mad 379 (381).

Gumery v. Goggs, 25 Beav 334.
Jagat Singh v. Sangat Singh, AIR 1940 PC 70.
Ramasamy Iyer v. Komalavalli Ammal, AIR 1941 Mad 277 (278).

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that subject to rights given to B, A takes the absolute interest, or subject to
certain rights of A, B takes absolutely.

Bequest of the same property as an absolute grant to another, when the

testator has intended to confer an absolute estate on the first taker, is void of
repugnancy.701 Likewise, restrictions by way of alienations or enjoyment on what
has been clearly given absolutely are void.702

It is, however, possible for the Court to infer on a proper construction of

the Will, that the dominant intention of the testator was to pass to a number of
persons as life estates.703

Again on a proper construction of the Will, the first absolute estate may
have been lawfully terminated and an absolute estate may be granted in favour
of the second grantee.704

But a gift over on the death of the first grantee is absolutely void.705

When there are two Wills, they ought to be construed together unless the
latter one revokes the former expressly or impliedly.706 In Papammal v. K.
Kuppuswamy707 there were two dispositions, the first conferring an absolute
estate and the second a gift over after the life-time of the donee of the estate. It
was held that in such cases the language of the Will has to he studied to find out
the testator’s intention. As the latter devise in favour of grandchildren was
absolute, the interest which the first defendant took under the Will was construed
as a limited interest.

Jagat Singh v. Sangat Singh, (1940) 52 LW 17 (PC): ILR1940 Lah 330; Gauri Prasad v. Raj Rani,
1941 Lah 286; Rameshwar Baksh v. Balraj Kuar, AIR 1935 PC 187.
Abani Nath v. Amar Nath, AIR 1941 Cal 92.
Sardar Nisar Ali v. Muhammad Ali, AIR 1932 PC 172.
Golak Behari Mondal v. Suradhani Dasi, AIR 1939 Cal 226: 68 CLJ 246: ILR (1939) 1 Cal 63.
Partap v. Makhni, AIR 1933 Lah 365; nand Kishor v. Pasupati, AIR 1928 Pat 348; Govindbhai v.
Dahyabhai, AIR 1936 Bom 201; Kanhya Lai v. Hira Bibi, 15 Pat 151: AIR 1936 Pat 323; Anantha
v. Kondappa, (1940) 1 MLJ 212: AIR 1940 Mad 479; Krishnaswami v. Srinivasan, (1945) 1 MLJ
220: AIR 1945 Mad 362.
Ram Charan v. govinda, AIR 1929 PC 65 (68). See also Chinnappa Pillai v. Kailasam Pillai, 41
MLI661; Ahronee Shemail v. Ahmed Omer, AIR 1931 Bom 533 (536).
AIR 1973 Mad 21 (23, 24).
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3. Absolute Interest Cut Down to Limited Interest

A testator may give property to A absolutely. A gift over following an

earlier gift is taken as presumptive evidence of grant of only a limited interest
previously. The later recitals may clearly show that the testator’s real intention
was to grant a limited interest to the first taker.708

When the testator took care to indicate that the properties without any
diminution even after his wife’s lifetime should go to each of the daughters, it
should be presumed that it was clearly in his mind that the wife’s estate was only
to be a limited estate or life estate and not an absolute one.709

Again clear dispositive words of bequest conferring an absolute estate are

often controlled and restricted by other clauses in the Will cutting down the
absolute character of the bequest. Such restrictive clauses cannot be construed
to be a mere repugnancy and therefore, treated as void.710

When the intention of the donor or testator is to maintain an absolute

estate conferred on the donee but he adds some restriction in derogation of the
incidents of such absolute ownership, the clause is a repugnant one and is,
therefore, void. If, however, the intention expressed, or to be necessarily implied,
is to extinguish the absolute estate on the happening of a contingency and where
the effect of the termination of the said absolute estate would not be in violation
of any rule of law, the clause is a defeasance clause and would operate
according to its tenor.

One circumstance that generally cuts down an absolute estate to a life

interest is the presence of a gift over in unmistakable terms, which is not a mere
gift by way of defeasance.

Sri Ram v. Mohd. Abdul Rahim, AIR 1938 Oudh 69; Manamallaswami v. Narayanaswami, AIR
1932 mad 489: 35 LW 756; Subbamma v. Rama Naidu, AIR 1937 Mad 476: 45 LW 153;
Radhakrishna v. Narayanaswami, 71 MLJ 823; Harendra v. Basanta, 22 CWN 689; Gulbaji v.
Rastomji, AIR 1925 Bom 282 (2).
Lakshmio Ammal v. Allauddin Sahib, AIR 1962 Mad 247 (249): (1962) 1 MLJ 187.
S.N. Doss v. Arumugathammal, AIR 1962 Mad 259 (261).

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 In certain circumstances the absolute estate is cut down to a life-estate
with power of alienation.711

4. Entire Will must be Construed

Section 85, Indian Succession Act, 1925, says:

“No part rejected if it can be reasonably construed.—No part of a Will shall

be rejected as destitute of meaning if it is possible to put a reasonable
construction upon it.”

It is applicable to Hindu Wills also.

It is a well-recognised rule of construction that it should not be imputed to

the testator that he had used words in a Will unnecessarily and as far as
possible, a meaning must be accorded to every word in a Will.712

This rule applies to parts of the same Will or a Will and codicil.713

The Court ought to ascertain the intention of the testator from the entire
Will.714

Where a testator bequeaths all his properties to his son, but later on there
were provisions for the worship of certain deities, it was held that the two clauses
must be read together.715

Words having clear and definite operation in the testator’s property cannot
be struck out of the Will.716

Every word in the Will must be given effect to provided effect can be given
to it consistent with the general intent of the entire Will.717

No clause in a Will must be ignored as redundant or contradictory.718

P. Krishna v. Narayana, AIR 1962 Ker 322 (323).

Quadros v. Quadros, 30 Pat 86: AIR 1951 Pat 206; Beni Madho v. Harihar, AIR 1946 Oudh 20.
Belyea v. McBride, AIR 1943 PC 43.
Nowroji v. Putlibai, 37 Bom 644.
Anukul Chandra v. Gurupada, AIR 1936 Cal 643.
Hall v. Warren, (1861) 9 HL Cas 420.
Nusserwanji v. Gulcher, AIR 1946 Bom 134.
Rameshwar Baksh v. Balraj Kuar, AIR 1935 PC 187.

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 A testator bequeathed his properties to his daughter absolutely with full
powers of alienation. In a later clause he recited, “if she had no issue, she shall
enjoy the same till her lifetime and after her death, the same shall pass on to my
other daughters having heirs”.

It was held that on a reading together of all the clauses in the Will, there
was an absolute estate to the daughter subject to defeasance in the event of her
dying without issue.719

It must be noted that the presumption of law is against intestacy.720 So it is

against partial intestacy.721 So a testator is presumed to have disposed of all his
property through the Will at the time of his death, rather than at the time of the
Will. The courts should avoid construing a prohibition of adoption even though
the Will purports to dispose of entire estate.722 The test is “was the adoption so
contrary to directions of the testator as to have been prohibited by him.”723

Sometimes the intention of the testator in writing satisfies the legal

requirements but the facts stated therein create circumstances or situation which
needs interpretation so that the testacy is established and in order to establish
the real intention, inspite of some vagueness or ambiguity, the Will as a whole
has to be read so that a harmonious balance is created among all the averments
made in the Will.724

Sections 82, 85 and 88 cover the primary rule that Will as a whole is to be
read to construe the meaning of the clause and its relation to other averments.

It is a case under section 82 of the Succession Act as the issue involved is

the construction of Will, the trial court held that the Will was genuine and on
appeal the High Court reversed the order—The Apex Court held that the High

Narayana v. Arumugathammal, AIR 1958 Mad 431: 71 LW 107: Gondaraja v. Mangalam, 1932
(63) MLJ 911: 36 LW 733; Rameshwar v. Shio Lai, 14 Pat 640: AIR 1935 Pat 401.
Bharadwaja v. Kolundavelu, 29 MLJ 717 (720).
Abdul Sakur v. Abu Bakkar, AIR 1930 Bom 190 (197): 54 Bom 358.
Shivappa Gurappa v. Virabadhra Shivarudrappa, AIR 1943 Bom 423 (425(. See also Jagannatha
Rao v. Rambharosa, AIR 1936 PC 201.
Sdhivappa Gurappa v. virabadhra Shivarudrappa, AIR 1943 Bom 423.
Mandala Madhav Rao v. Mandala Yadagiri, AIR 2001 AP 407, AIR 2001 SC 134.

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Court held the view without adverting to all the various aspects considered by the
trial court, and that the view taken by the trial Court appears to be reasonable.

It is case covered by section 74 and 88 of the Succession Act, 1925. In

this case the wife was given a limited estate and the son absolutely so the wife
cannot be competent to execute partition deed as later part of the Will confers
limited estate and the later part shall prevail.

XVI. LEGACIES

A gift of property under a Will is generally referred to either as a bequest

or a devise or a legacy. In English law, the word “devise” was used to convey a
gift of real property, while a gift of personal property is referred to generally as a
legacy or a “bequest”. These words are often interchangeable and are used
indiscriminately to refer to any gift under a Will.

In its legal sense, a “legacy” is a disposition of property by Will, and is not

infrequently used in a Will to use gifts of both movable and immovable property
under a Will as distinguished from gift inter vivos in which actual complete
delivery during the donor’s lifetime is essential.

A gift mortis causa resembles a legacy in some respect in that it is made

in contemplation of death, is ambulatory, incomplete and revocable at the option
of the donor at any time during his life. It differs from a legacy; in gift mortis causa
possession must be delivered to the donee and retained by him during the life of
donor, whereas in the case of a legacy, the possession remains with the testator
until his death.

Depending on their nature, legacies are classified and the rights of the
legatees are determined by the character of the legacy. The fundamental and
controlling factor in determining the nature and character of a legacy is the intent
of the testator.

There are three kinds of legacies.

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1. General Legacy

General legacy is a bequest of something or money not necessarily part of

the testator’s personal estate, and not distinguished from all others of the same
kind.

"I give my diamond ring”, is a general legacy which may be fulfilled by the
handing over of any ring of that kind.

Normally, the effect of a general legacy of any quantity of a particular

stock is a direction to the executors to buy that amount of stock for the legatee or
pay him the value thereof.725

A general bequest may or may not be part of the testator’s property. A

general legacy has no reference to the actual state of the testator’s property. If
the testator leaves sufficient property, the legatee shall have that which is given
to him.726

Though a general legacy of a horse or a watch is valid, yet there must be

indication of its kind of value. Otherwise, the legacy will fail for uncertainly.727

The Courts, however, Will do its utmost to maintain the legacy.728

A general legacy is one which may be satisfied out of the general assets
of the testator’s estate without regard to any particular fund, thing or things and
does not amount to a gift of a thing or part of the estate distinguished and set
apart from the testator’s property and capable of precise identification of a gift.

Section 171, Indian Succession Act, 1925, declares as follows:

“171. Bequest of things described in general terms—If there is a bequest

of something described in general terms, the executor must purchase for the
legatee what may reasonably be considered to answer the description.

Williams on Executors, p. 748 (12th Edn).

Re., Borne, 1944 Ch 190.
Bothamley v. Sherson, 1875 LR 20 Eq 304 (308).
See Jarman on Wills, 8* Edn., p. 1039 (f.n.).

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 Illustrations

(i) A bequeaths to B a pair of carriage-horses or a diamond ring. The

executor must provide the legatee with such articles if the state of the
assets will allow it.

(ii) A bequeaths to B ‘my pair of carnage-horses’ A had no carriage-horses at

the time of his death. The legacy fails.”

This section is applicable to Hindus as well.

This rule does not apply to a specific legacy.729

Williams adverts730 to the instance of a gift of ‘my grey horse’ which can
pass as a black horse if only the testator intended to pass the same by that
description but if the testator had no horse at all, the executor is not bound to buy
a “grey horse”.

2. Specific Legacy

A legacy is specific when it is a bequest of a specified part of the testator’s

personal estate which is so distinguished.

“I give the diamond ring presented to me by A” is a specific legacy. It can

only be fulfilled by giving the specific thing. The specific legacy may fluctuate
between the date of the Will and the death of the testator.731

A testator may give a specific legacy of “my brown horse”. It may be the
testator sells it before his death and then buys another brown horse. The words
of the Will are of sufficient amplitude as to include the later brown horse in the
legacy .The testator had a brown horse when he died and it will form the subject
of the legacy.

A specific legacy is something which a testator identifying it by something

of sufficient description and manifesting an intention that it should be enjoyed in

Evans v. Tripp, (1821) 6 Mad 91.

Williams, 12 Edn., p. 747; Evans v. Tripp, (1821) 6 Mad 91 (92).
Castle v. Fox, 1871 LR11 Eq 542.

185
the state and condition indicated by the description, separates it in favour of the
particular legatees, from the general mass of his estate.732

In the case of a specific bequest it must be part of the testator’s property

itself. That is the first thing. In the next place, it must be a part emphatically as
distinguished from the v/hole. If it satisfied both the conditions then, it appears to
satisfy everything that is required to treat it as a specific legacy

Section 142 of the Indian Succession Act, 1925, defines a specific legacy
thus:

“142. Specific legacy defined.—Where a testator bequeaths to any person

a specified part of his property, which is distinguished from all other parts of his
property, the legacy is said to be specific.

(i) A having Government promissory notes for 10,000 rupees, bequeaths to

his executors Government promissory notes for 10,000 rupees in trust to
sell for the benefit of B The legacy is specific.

(ii) A having property at Banaras, and also in other places, bequeaths to B all
the property at Banaras. The legacy is specific.

3. Demonstrative Legacies

A demonstrative legacy is a legacy of quantity, out of a large source such

as a certain sum of money out of a particular fund.

If the source is not adequate, the gift is intended to take effect out of other
properties of the testator. In this respect, it is of the nature of a general legacy.
Jarman733 says, it is more proper to treat demonstrative legacy as a sub-division
of general legacy.

At the same time, it will not be allowed to abate, if there is a deficiency of

the assets, provided the source is not exhausted. To that extent it partakes of the
character of a specific legacy.

Robertson v. Broadbent, (1883) 8 App Cas 812.

Jarman on Will, 8th Edn., p. 1043.

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 An independent gift of money, with a direction to pay it out of certain
specific moneys, is only a demonstrative legacy.734

According to Jarman, “the more logical classification is to divide legacies

in to specific and general, and then sub-divide the general legacies into two
subclasses of demonstrative and non-demonstrative”.735

A demonstrative legacy is a bequest of a certain sum of money, stock, or

the like, payable out of a particular fund or security in such a way as not to
amount to a gift of the corpus or evince an intent to relieve the general estate
from liability if the particular fund or security fails and the two necessary elements
are—

(1) It must be unconditional gift in the nature of a general legacy.

(2) The legacy must indicate the fund out of which it is payable.736

Section 150 of the Indian Succession Act, 1925 runs as follows:

“150. Demonstrative legacy defined—Where a testator bequeaths a

certain sum of money, or a certain quantity of any other commodity, and refers to
a particular fund or stock out of which payment is to be made, the legacy is said
to be demonstrative.

Explanation—The distinction between specific legacy and a demonstrative

legacy consists in this, that—

Where specified property is given to the legatee, the legacy is specific;

where the legacy is directed to be paid out of specified property, it is
demonstrative.

If a specific property is bequeathed there is a specific legacy.

If something bequeathed is to come out of specific property it is

demonstrative.

Roberts v. Pocock, (1798) 4 Ves 150.

Jarman on Wills, 8th Edn., p. 1043.
See 96 Corpus Juris Secundum, 1125 (f).

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 A demonstrative legacy is, therefore, midway between a general legacy
and a specific legacy.

It partakes of the character of a general legacy in some respects and of a

specific legacy in certain respects.

It resembles a general legacy in that if the particular fund out of which it is

directed to be paid, fails, the legatee will not be deprived of the legacy, but will
receive the deficiency from out of the general assets, which will not be the
position in the case of a specific legacy.

4. Distinction between General and Specific Legacy

The distinction between specific and general bequest is important: the

specific gifts are secured to the, specific legatee, while the general estate of the
testator is, unless a contrary intention appears, the ‘fund out of which the funeral
and testamentary expenses, debts and pecuniary legacies are disposed of
specifically out of all his estate; if, there is no fund out of which the legacies can
be paid, they consequently fail.737

The distinction between general and specific legacy may sometime be

subtle. But it is a distinction not without a difference and such confusions as are
lurking in The case-law are due to the ignoring of the essential test of distinction
depending on the intention of the testator whether the legacy is of a particular
thing only, or whether the amount should be paid at any cost forming source,
though a particular source of payment may have been indicated.738

It is important to distinguish a specific legacy from a general legacy,

because a specific legacy must be paid or retained by the executor in priority to
general legacies.

The specific legacy should not be sold to satisfy the testator’s debts until
all property undisposed of by the testator in his Will and all the property
comprised in his residuary estate have been exhausted.

Roffey v. Early, (1873) 42 LJ Ch 472.

Mullins v. Smit, (1860) 1 D and Sin 204; Chnnam Rajamannar v. Tadikonda Ramachandra, 29
Mad 155.
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 Further, if given to a person it carries income from the testator’s death.739

A specific legacy is liable to be a deemed while a general legacy is not, in

consequence of any act done by the testator during his lifetime.740

5. Indian Law Regarding “A Specific Legacy does not Abate”

Section 149 of the Indian Succession Act lays down that: “If there is a
deficiency of assets to pay legacies, a specific legacy is not liable to abate with
the general legacies”.

This section applies to Hindus also.

Where there are assets enough to pay off all legacies and meet the debts
and funeral expenses of the testator, there is no difficulty.

Where there are assets, not specifically bequeathed, sufficient to pay off
the debts and legacies, the debts must be paid from out of the assets not
specifically bequeathed, if they are sufficient, though the general legatees are
thereby disappointed.

Where, however, the assets, not specifically bequeathed, are not sufficient
to pay off the debts, then, the specific as well as demonstrative legacies must
abate in proportion to their value.741

There is a general presumption that the testator has intended to favour the
specific legatees in preference to other legatees.

6. Abatement

Where the assets are not sufficient to pay off all the debts and legacies,
the debts have priority; then specific legacies must be paid and the general
legacies abate in equal proportions.

A residuary legacy can be paid only after all the prior claims have been
met in full. The general legatees cannot be obliged to abate until all properties
not specifically bequeathed are exhausted.742

Re., Compton, (1914) w Ch 119 (122); see D.H. Parry on Succession, 4th Edn., p. 77.
In re. Borne, 1944 Ch 190; In re. Gage, (1934) 1 Ch 536.
Roberts v. Pocock, (1798) 4 Ves 150.
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 Where a testator distributes his estate by granting two or more specific
legacies, then there is a pro rata abatement, if the ‘assets are insufficient.

An annuity has priority over residuary legacy.743

An annuity is treated differently from the bequest of an income of a

particular fund and the consequences also will differ according to the difference.
Even in regard to damage by devatesavit of the executor it is now settled law that
the residuary legatee has no claim till all the general legacies are satisfied.

There are exceptions to this rule.744

Where all legacies are general, and there is deficiency in the assets, they
abate proportionately. All general legatees rate equally and no preference is
made among them with regard to the purpose or object of the legacy.745

An annuity charged on the personal estate is a general legacy.

It is open to the testator to clearly manifest his intention to give priority to

certain general legacies over others.

Specific legacies abate when the assets are insufficient to pay all the
debts. A demonstrative legacy is treated as a specific legacy for purpose of
abatement.

But when assets not specifically bequeathed are also insufficient to pay off
debts then specific legacies also will abate [section 328],

Demonstrative legacies must be paid from out of the funds earmarked, if

the assets are sufficient for payment of debts. If the funds earmarked are not
sufficient, then they rank with the general legacies for the unpaid reminder
[section 329] in the absence of a contrary direction in the Will.746

Where assets are not sufficient to pay off the debts and the specific
legacies, then there will be abatement of specific legacies as well [section 330].

Law of Succession; Basu N.D.

Re., Hill, 1944 Ch 270.
Williams on executors, section 1172.
Re., White, (1898)2 Ch 217.
Chinnam Rajamannar v. Tadikonda Ramachandra, 29 Mad 155.
190
 Section 331 provides that a legacy for life, a fund for annuity and the value
of any annuity shall be treated as general legacies.

XVII. RESIDUARY LEGATEE

The expression ‘residuary legatee’ has not been defined in the Act but
such a legatee can be constituted by the testator using such words in the will
which would indicate his intention that the legatee designated shall take the
residue or surplus of his estate.747 No particular mode of expression is necessary
to constitute a residuary legatee. It is sufficient if the intention of the testator be
plainly expressed in the Will that, the surplus of his estate, after payment of debts
and legacies, shall be taken by a person therein designated.748

Thus, the following terms of bequests have been held sufficient to

constitute a residuary legatee: “After these legacies and my doctor’s bills and
funeral expenses are paid, I leave to my sister without any power or control of
her husband”.749 “Should there be any surplus after the above expenditure”.750
“After all these acts have been observed from the proceeds of the said property,
if there be a surplus, then the family will be supported therefrom”.751

The Illustrations appended to s. 102 of the Succession Act make it

perfectly clear that in order to constitute a person a residuary legatee, it is not
necessary that there should be other legatees besides him.752

1. Property to Which Residuary Legatee is Entitled

A residuary legatee is entitled to the legacy which lapses by reason of the

death of the legatee before the testator.753

ShibaProsad vNemai Ghosal 1991 (1) Cal LT (HC) 160.

Bland v Lamb 2 Jac & W 399; Heame v wigginton 6 Maddock 120; Fleming v Burrows 1 Russ
276.
Re Basset’s Estate LR 14 Eq 54.
Dwarka v Burroda 4 Cal 433.
Ashutosh v Durga Charan 5 Cal 438.
Haripada v Gobinda ILR (1948)1 Cal 300: 51 CWN 917.
Patinhere Kolaviyil Matha v Patinhere Kolaviyil Ka naran 1966 Ker LJ 554.

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 A residuary bequest of personal estate carries not disposed of, but
everything that in the event turns out not to be disposed of.754 Where a testatrix,
by mistake, recited in a Will, that, she had settled upon a particular property
which, in fact, was still at her disposition, and the will contained other recitals and
bequests of other properties, and also a residuary bequest in favour of X, it was
held that the property mentioned in the recital passed under residuary gift to X.755
Where the gift is a gift of the residue subject to particular gifts which fail, they will
fall into the residue, even though the failure does not arise from the contingency
mentioned in the will.756 A testator directed that his property should be divided
among three children J, C and F, or the survivors or survivor of them, and made
a residuary bequest in favour of his wife. The bequest of J could not take effect
by reason of his having attested the will (s.67). It was held that J’s share would to
pass to C and F, according to the terms of the will, because the words “or the
survivors or survivor of them” would not apply to this case, as J’s incapacity to
take was not due to his death but to some other cause (attestation of the will)
which was not contemplated by the testator. Consequently, J’s share would fall
into the residue, under the section.757 Where a testator devised a specific
immovable property to B for life only, and later, directed his executors to sell the
residue of this immovable property and make over the proceeds thereof to a
university, held that the reversion in the property devised to B for life passed on
his death, under the specific residuary devise, to the university.758 A residuary
bequest carries every lapsed legacy and every legacy which on any ground fails
to take effect in the absence of an express intention to the contrary.759

The word ‘property’ in this section embraces both movable and immovable
property.760

A property which is the subject-matter of a trust which is incapable of

taking effect, prima facie fails into the residue, unless the testator had sufficiently

754 Cambridge v rous 8 Ves 12 (25).

755 Re Bagot (1893)3 Ch 348.
756 Re Meredith’s trusts 3 Ch D 757.
757 Camani v Barefoot 26 Mad 433 (435,436).
758 Manorama v Kalichum 31 Cal 166: 8 CWN 273.
759 Amitabha Ray v Jyotsna AIR 1975 Cal 323.
760 Mun Mohan v Puresh Nath 22 WR 174.
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expressed an intention that the property was not to fall into the residue.761
Personal property does not fall into the general residue, where the testator
clearly indicates his intention that personal property shall not fall into the general
residue, where the testator clearly indicates his intention that personal property
shall not fall into the general residue, no matter whether the recipient of the
residue can take the personal property or not.762 The residuary gift carries every
lapsed legacy and every legacy which on any ground fails to take effect; but if a
testator has shown some intention with regard to the excepted property
inconsistent with its ever falling again into the residue, effect must be given to
that intention.763

Where funds send in Court to the credit of a separate account, they

become separated from the general estate. The interest accruing on such funds
does not form the general estate. The interest accruing on such funds does not
form part of the residue but goes so as to increase the funds in Court.764 Where a
testator made certain disposition in a will and gave directions as to residue of the
properties, and at the time of the will there was a fund in Court to the credit of the
testator but unknown to him, held that the amount was not to be included in the
residuary clause, but it went to the heirs as on an intestacy.765

2. Undisposed of residue

“If a will fails to make an effectual and complete disposition of the whole of
the testator’s real and personal estate, of course, the undisposed of interest,
whether legal or equitable, devolves to the person or persons on whom the law,
in the absence of disposition, casts that species of property”.766 In the absence of
any residuary bequest, the heir of the testator is entitled to all property belonging
to him at the time of his death, of which he has not made any testamentary

Fanindra v Administration-general 6 CWN 321.

Re Bagot (1893)3 Ch 348 (per smith, LJ).
Blight v Hartnoll 23 Ch D 218.
Administrator-General v Belchambers 36 Cal 261 (265): 1IC 944.
Kumthaklammal v suryaaprakasaroya 38 Mad 1096; 29 MLJ 682; 31 IC 494.
Jaraman on Wills, 6* Ed., p.714.

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disposition capable of taking effect.767 Even the bequest of a portion of the estate
to the heir does not exdude him from the undiposed of residue.768 After making
certain bequests in respect of specific property the testator as an absolute owner
is competent to bequeath to a legatee all the remaining items of property, both
movables as mentioned in the will to a different person.769

3. Share of Residue and Specific Bequest

A share of residue does not stand on the same footing as a specific

bequest. The legatee of a share in the residue has no interest in any of the
property of the testator until the residue has been ascertained. Until the claims
against the testator’s estate have been settled, the residue does not come into
actual existence. It is a non-existent thing until that event has occurred. The
probability that there will be a residue is not enough. It must be actually
ascertained.770

XVill. LAPSE OF LEGACIES

It has been established from the earliest periods, that unless the legatee
survives the testator, the legacy is extinguished; neither can the executors nor
administrators of the legatee demand the same.771 The liability of a testamentary
gift to lapse or failure by reason of the decease of its object in the testator’s life­
time is a necessary consequence of the ambulatory nature of will, which not
taking effect until the death of the testator, can communicate no benefit to
persons who previously die.772 Thus, where a testator bequeathed his whole
property to his brother; and expressly directed that neither his daughter nor his
widow should take any share of his property, and the brother predeceased the

Vundrawandas v Cursondas 21 BOm 388 (406); Damodardas v Dayabhai 21 Bom 1 (15); Kedar
Nath v Atul Krishna 12 CWN 1083; Kunjamoni v Nikunji 20 CWN 314; 32 IC 823; Motilat v
Gourshankar 12 Bom LR 917.
Toolseyda v Premji 13 Bom 16 (69); Lallubhai v Mankuvarbai 2 Bom 388 (410, 412).
Mariammal v Govindammal AIR 1985 Mad 5.
Lord Sunderbey’s case (1897) AC 11; Bamado’s Homes v Special Income-Tax Commissioner
(1921)2 AC 1; Trethiwy v Helyar (1876) 4 Ch D 53.
Willaims on Executors, 13th Ed. p.644
Jarman on wills, 5th Ed. Vol. I, p.307

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testator, held that the testator had died intestate, not having made any
disposition capable of taking effect, the sole devisee having predeceased him.773

A testator bequeathed life estate in respect of a property to his wife, some

properties to his daughter and another property to a different person X on
condition of his maintaining the wife who was mentally deranged. The will further
provided that if X did no maintain the widow the property bequeathed to X would
devolve on the daughter. The wife died during the life-time of the testator.
Bequest in favour of X failed as maintaining the wife was the sole condition of the
gift.774

A devise or bequest will lapse if the legatee be dead before the making of
the will. In such a case, parol evidence is not admissible to show that the testator
knew at the time of the making of the will, that the legatee was dead, so as to
raise the presumption that he intended that there should be no lapse.775 Where
by the terms of a will an annuity is payable to a certain person putra pautradi
krame, but is not charged on any specific property, and the legatee predeceases
the testator, it must be held that the will confers an estate of inheritance, but the
legacy lapses because the legatee has predeceased the testator.776

1. Legacy does not lapse if one of two joint legatees dies before
testator

If a legacy is given to two persons jointly, and one of the them dies before
the testator, the other legatee takes the whole.

The Illustration seems to lays down that a bequest simpliciter to two

persons creates a joint tenancy between them. But this rule is quite foreign to
Hindu law, under which, in case of a joint gift, the Courts leam strongly in favour
of a tenancy in common.

Secs. 106 and 107 deal with cases where the legatees are not children
while s. 109 deals with cases where the legatees are children, it being a specific

Erasha v Jerbai 4 Bom 537.

Sajanbai v Surajmal AIR 1985 MP 93.
Maybank v Brooks 1 Bro CC 84.
Jagadish v Rau Pade. 22 Pat LT 396: AIR 1941 Pat 458.

195
provision for the purpose. Where, therefore, a testator bequeathed his property to
his two daughters one of whom predecease him leaving her legal heirs in view of
s. 109 of the Act and it can be said that the other legatee would take the whole
property by virtue of operation of s.106. When joint tenancy cannot be spelled out
of the recitals in the will s. 106 is not applicable.777

But in case of a Christian, a joint-tenancy is presumed rather than a

tenancy-in-common.778 Difference in the date of handing over the management

of the property by the donor to the several donees creates no presumption in

favour of a tenancy-in-common, as the vesting of the property takes place on the
same date and the beneficial enjoyment of all commences at the same time.779

The concept of joint tenancy as understood in English law is foreign to

Hindu law. Such a construction, however does so violate the principles of Hindu
law. It cannot be postulated that whenever a gift is made to two or more persons
jointly, they take it only as tenants-in-common. it all depends on the intention of
the testator, Sec. 106 does not embody any principle of law or introduce any new
concept but contains only a rule of construction of statutes. So even when s. 106
is in terms inapplicable, e,g., where one of the joint donees dies after the testator,
the rule underlying it could be made use of in construing will in proper cases.780
Unless there is an intention expressed to the contrary, the sons, taking the self
acquired property of their Hindu father under a will or gift by him, take it as
tenants-in-common and not as joint tenants.781

No joint tenancy is created where the will provides as follows: “I give these
properties to my wife for her maintenance and to my minor daughter for her
stridhana, ‘seer’ and other expenses. After my life-time they shall take items 1
and 2 hereunder absolutely.........Neither of them shall have power to alienate the
third item.” Hence if the daughter predeceases the testator her half share shall

K.V. Krishna Veni v K.K. Rajagopal AIR 1990 Ker 337.

Arakal J. Gabriel v Domingo Inas 34 Mad 80 (81): 20 MLJ 377; 6IC 7.
Ibid.
Surareddy v Venkata subbareddi AIR 1960 AP 368.
Srimati Tewary v Ramsurat Devi AIR 1959 Pat 116.

196
lapse and shall be treated as undisposed.782 Where a legacy is given to two

persons by some such expression that the property should be divided half and
half between them the legatees are tenants-in-common and not joint tenants.783

XIX. VOID BEQUESTS

1. Bequest to person by particular description who is not in existence

at testator’s death

The leading case of Hindu Wills and gifts is the Tagore case, decided by
the Judicial Committee in 1872. The rules laid down in that case and the
decisions founded thereon, are set out in the following sections. The fundamental
principle underlying those rules may be stated as follows;
A Hindu may give or bequeath his property to any one he likes. He may
not only direct who shall take the estate, but may also direct what quality of
estate they shall take. However, the person who is to take must be in existence
at the date when the gift or bequest is to take effect, and the estate given to such
person must be an estate recognized by the Hindu law. The rules laid down in
the Tagore case as applicable to Hindu Wills, are applicable to hereditary offices
and endowments as will as to immovable property.784

Where a bequest is made to a person by a particular description, and

there is no person existence at the testator’s death who answers the description,
the bequest is void.

Exception.-lf property is bequeathed to person described as standing in a

particular degree of kindred to a specified individual, but his possession of it is
deferred until a time later than the death of the testator, by reason of a prior
bequest or otherwise; and if a person answering the descriptions alive at the
testator, or comes into existence between that event and such later time, the
property shall, at such later time, go to that person, or, if he is dead, to his
representatives.

782 Sinnaraj v ramayee Amal AIR 1969 Mad 96.

783 Jankibai v sarha AIR 1961 MP 139.
784 Ganesh Chunder v. Lai Behaty (1936) 63 IA 448; AIR 1936 PC 318.

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 This general rule is relaxed by Exception which admits a kindred born
after the death of the testator and before the period of distribution. But the
Exception ought not to be applied to the wills of Hindus, because the result of it
would be to subvert the fundamental principle of Hindus law that a Hindu cannot
make a bequest to a person not in existence at his death.785 The Exception must
be read subject to the rule of Hindu law (as laid down in the Tagore case) that a
bequest to a person not born at the time of the testator’s death is void. Therefore,
a person not born at the date of the testator’s death, but born between that date
and the date of distribution, cannot take under the will.786

Thus, where a Hindu testator gave his property to his grandsons subject to
certain trusts, held that grandsons born after the death of the testator, though
during the continuance of the trusts, were not entitled to anything under the
will.787

Where a bequest is made to a person not in existence at the time of the

testator’s death, subject to a prior bequest contained in the will, the later bequest
shall be void, unless it comprises the whole of the remaining interest of the
testator in the thing bequeathed.

• Application.-Sec. 113 has nothing to do with postponement of

possession; a failure to vest the whole remaining interest of the testator is
repugnant to the section but, when that has been done, it has no
application. Postponement of possession is not a retention of part of the
testator’s interest and is to a fetter so as to prevent the whole of that
interest being vested in the beneficiary. The vesting is not delayed or
affected by postponement of possession.788

The law of gifts and of wills is the same under the Hindu law, and in order
that there may be a valid gift, the donor must immediately divest himself of the
property in favour of some existing beneficiary; and in the same way with regard

785 Cally Nath v Chnder Nath 8 Cal 378 (388); Nafar Chandra v Ratnamala 15 CWN 66 (70); 7 IC
921: 13 CLJ85.
786 Alangamonjori v sonamoni 8 Cal 637 (639, 640) Tevg. Alangamonjori v Sonmoni 8 Cal 157.
787 Cally Nath v Chunder Nath 8 Cal 378 (388).
788 Aniruddha v Arabinda AIR 1946 Cal 396.

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to wills, there cannot be a gift to a person to come into operation at a future date,
unless these be a gift to a beneficiary in the interim.789 Where under a deed of

settlement an interest is created in favour of the children of the life estate holder
and the interest would take effect on the death of the life estate holder, then till
the death of the life estate holder the construed as a transfer in favour of unborn
person yet it settles property on trust and the unborn children under trust, may be
beneficiaries but they can claim interest only after the death of the life estate
holder.790 But the creation of successive life estates and that too in favour of
persons in existence and those, not in existence would take effect with reference
to those in existence at the time of the death of the testator and invalid as to the
rest.791

A child enventre sa mere is considered to be in existence.792

2. Bequest to unborn persons

• Rule apart from statute

A person capable of taking under a Will must, either in fact or in
contemplation of law, be in existence at the death of the testator.793 This rule still
applies to cases to which the provisions of the three Acts namely, the Hindu
Transfers and Bequests Act 1914, the Hindu Disposition of Property Act 1916
and the Hindu Transfers and Bequests (city of Madras) Act 1921, do not apply.
This rule was discussed by the Supreme Court in Raman v. Rasalamma.794

A bequest to a person not inexistence at the testator’s death is invalid. A

child in the womb and a son adopted by a widow after the death of her husband
is in contemplation of law in existence at the death of the testator. A bequest to
the wife of the testator’s son in case he should marry within 10 years from the

Amrital Lai v Suranomoyi 25 Cl 662 (691).

Rukhamanbai v Shivram AIR 1981 SC 1881.
G. Narayanan v R.N. Rajagopalan AIR 1987 Mad 75 following Bajrang Bahadur v Bhaktraj AIR
1953 SC 7: 1953 (1) Mad LJ SC 108.
In re Wilmer’s Trusts (1903)2 Ch 411.
Venkata v. Suraneni, (1908), 31 Mad 310.
AIR 1970 SC 1759.

199
testator’s death is valid, provided, the son marries a girl who was in existence at
the testator’s death,795 as the rule in this section does not apply.
Exception to the rule:
In laying down the above rule in the Tagore case, the Judicial Committee
desired ‘not to express any opinion as to certain exceptional cases of provisions
by means of contract or of conditional gift on marriage or other family provision
for which authority may be found in Hindu law or usage.’ For instance, see the
under mentioned cases.796 The rule in this section applies to the office of a
Shebait and a direction in the Will that the office should be held by an unborn
person was held to be invalid.797
The rule laid down in this section is applicable to all Wills, whether they
are governed by Dayabhaga law or Mitakshara law,798 and whether they are not
subject to the provisions of the Indian Succession Act, 1925, relating to Hindu
Wills.799 It may be observed that the testator in the Tagore case was governed by
Dayabhaga law, and the Will was made long before the Hindu Wills Act, .1870,
came into force.
• Rule as altered by the Statute:
The rule of Hindu law that a bequest cannot be made in favour of a person
who was not born at the date of the testator’s death has been altered by three
Acts, namely, the Hindu Transfers and Bequests Act 1914, the Hindu Disposition
of Property Act 1916 and the Hindu Transfers and Bequests (city of Madras) Act
1921, and are stated as follows:
Subject to the limitations and provisions contained in ss. 113, 114, 115
and 116 of the Indian Succession Act, 1925, no bequest shall be invalid by
reason only that any person for whose benefit it may have been made was not
born at the date of the testator’s death.
This rule, however is not of universal application, but is confined to the
following cases, namely to:

795 Dinesh Chandra v. Brii Kamini 1912 39 Cal 87, 11IC 671.
796 Raja of Ramnad v. Sundara AIR 1918 PC 156; Khajeh Soleman Quadir v. Nawab Sir Salimullah,
AIR 1922 PC 107; Jatindra v. Ghanshyam, AIR 1923 Cal 27.
797 Manohar Mukheiji v. Bhupendemath Mukheiji, AIR 1932 Cal 791.
798 Mangaldas v. Krishnabai 1882 6 Bom. 38.
799 Alangamonjori v. Sonamoni 1882 8 Cal 637; Radha Prasad v. Ramimoni dasi, AIR 1914 PC 149.

200
 (i) Wills executed on or after 14th February 1914, by Hindus domiciled in

the State of Madras except the city of Madras, and in the case of Wills
executed before that date, to such of the dispositions thereby made as
are intended to come into operation at a time which is subsequent to
that date (Hindu Transfers and Bequests Act 1914;
(ii) Wills executed on or after 20th September 1916, by Hindus in any par
of India except the State of Madras (Hindu Disposition of Property Act
1916);
(iii) Wills executed on or after 27th March 1916, by Hindus domiciled within

the limits of the territory of original civil jurisdiction of the High Court of
Madras, and, in the case of Wills executed before that date, to such of
the dispositions thereby made as are to come into operation at a time
subsequent to the 14th February 914 [Hindu Transfers and Bequests
(City of Madras) Act 1921].
It may be noted that with effect from 1st February 1960, the Hindu
Disposition of Property Act 1916 has been extended to the whole of India
including the State of Madras and the City of Madras, and the Hindu Transfer
and Bequests Act 1914, and the Hindu Transfers and Bequests (city of Madras)
Act 1921 stands repealed.
3. Limitations Subject to which a Gift or Bequest can be made to an
unborn person:
In cases governed by Hindu Disposition of Property Act, 1916, a grant
may be made to an unborn person, however, can only be done subject to certain
limitations and provisions as follows:
(a) transfers inter vivos, those contained in Chapter II of the Transfer of
Property Act, 1882; and
(b) will, those contained in ss. 113, 114, 115 and 116, Indian Succession
Act, 1925.
Chapter II of the Transfer of Property Act, 1882, did not originally apply to
Hindus. It has now been extended to Hindus by the Transfer of Property Act
(Amendment) Act, 20 of 1929, (s 3). The sections of the chapter material or the
present purposes are ss 13,14,15 and 16, which correspond to ss 113,114,115
201
and 116 of the Indian Succession Act, 1925. Both these sets of sections are
similar in substance.
All the eight sections assume that a gift or bequest can be made in favour
of an unborn person. They did not apply to Hindus at first. They were gradually
made applicable to Hindus. The Hindu Transfers and Bequests Act 1914 and the
Hindu Transfers and Bequests (city of Madras) Act 1921, incorporated only sec.
14 of the Transfer of Property Act and the corresponding s. 114 of the Indian
Succession Act, being the sections which relate to the rule against perpetuity.
The Hindu Disposition of Property Act, 1916, incorporated two more sections,
namely, sec. 13 of Transfer of Property Act and the corresponding sec. 113 of
Indian Succession Act. The first time all the eight sections were applied to Hindu
gifts and wills was by the Transfer of Property (Amendment) Supplementary Act,
21 of 1929, by which all the three Acts mentioned above were amended and they
were all made uniform.
4. Disposition in favour of unborn person subject to prior dispositions:
Where a gift or bequest is made to a person not in existence at the death
of the testator, subject to a prior gift or bequest, the later gift or bequest shall not
take effect, unless it extends to the whole of the remaining interest of the donor
or testator in the property.
Illustrations
(1) Gift - A transfers property of which he is the owner to B in trust of A and
his intended wife successively for their lives, and, after the death of the
survivor, for the eldest son of the intended marriage for life and after his
death for A’s second son. The interest so created for the benefit of the
eldest son does not take effect, because it does not extend to the whole of
A’s remaining interest in the property.
(2) Bequest - Property is bequeathed by a father to his son for life, after his
death, to his son’s wife for life and after her death to certain other persons.
The son’s wife was not in existence at the date of the testator’s death. The
bequest to her, not being of the whole interest, is void.800

Kappuswami Pillai v. Jayalakshmi Animal, AIR 1934 Mad 705.

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 This section is a combination of s. 13, Transfer of Property Act, 1882, and
s. 113, Indian Succession Act, 1925.
5. Rule Against Perpetuity
(1) Gift - No transfer of property can operate to create an interest which is to
take effect after the lifetime of one or more persons living at the date or such
transfer, and the minority of some person who shall be in existence at the
expiration of the period, and to whom, if he attains full age, the interest created is
to belong.

(2) Bequest - No bequest is valid whereby the vesting of the thing bequeathed
may be delayed beyond the life-time of one or more persons living at the
testator’s death and the minority of some person who shall be in existence at the
expiration of that period, and to whom, if he attains full age, the thing bequeathed
is to belong.

For example if a fund is bequeathed to A for his life, and after his death to
B for his life, and after B’s death to such of the sons of B, who shall first attain the
age of 25. A and B survives the testator. Here, the son of B who shall first attain
the age of 25 may be a son born after the death of the testator; such son may not
attain the age of 25 until more the 18 years have elapsed from the death of the
survivor A and B, and the vesting of the fund may thus be delayed beyond the
lifetime of A and B and the minority to the sons of B. The bequest after A’s death
is void.

This rule is one of public policy.801 The rule against perpetuity relates to
any property, whatever be its nature, and whether is it movable or immovable.802

Sub-section (1) is s. 14 of the Transfer of Property Act 1882, and sub­

section (2) is s. 114 of the Indian Succession Act 1925. Both these sections are
the same in substance, though different in form.
The rule against perpetuity does not apply to charitable or religious
endowments.

In re Oliver's Settlements (1905)1 Ch 191.

Cowasji v Rustomji 20 BOm 511 (561).
203
 • Rule of Hindu lav/ before Legislation
The above rules apply only to gifts and bequests which are within the
Hindu Transfers and Bequests Act 1914, the Hindu Disposition of Property Act
1916 and the Hindu Transfers and Bequests (city of Madras) Act 1921. As to gifts
and bequests which do not come within those Acts, the old rule still applies. That
rule may be stated as follows:
Where it appears from the Will that the intention of the testator was not
pass the estate at all, but to create perpetuity, as where the will contains a
direction, as regards the corpus, that it should be kept intact for ever, and, as
regards the income of the property, that portion thereof should be enjoyed by the
testator’s sons, grandsons and their descendants for ever and that the rest
should be accumulated, the direction is invalid, and the estate will pass as an
estate intestate. The Hindu law does not allow property to be tied up in perpetuity
except in the case of religious and charitable endowments.803 The same principle
applies to transfers inter vivos (gifts). This rule may be explained by the following
illustration.
A Will contains as to the property purported to be bequeathed thereby the
following directions that:
(1) the property shall not be alienated at all;
(2) six-sixteenths of the net income of the property shall be applied towards
the maintenance of the members of the testator’s family and the families
of his sons, grandsons and their descendants in perpetuity;
(3) the remaining ten-sixteenths should be accumulated and carried to the
credit of the estate.
The Will is valid, and the property will descend to the testator’s heirs as on
intestacy, The Will starts with a provisions against alienation, an this
provision is confirmatory of the other parts of the Will, which clearly show
an intention to create a perpetuity.

Shookmoy Chandra v. Monoharri Dassi (1885) 11 Cal. 684

204
6. Bequest or Gift to a Class :

It is a bequest made to a class of persons with regard to some of whom it

is inoperative by reason of the provisions of section 113 or section 114, such
bequest shall be void in regard to those persons only and not in regard to the
whole class.

Illustration:

(1) A fund is bequeathed to A for life, and after his death to all his children
who shall attain the age of 25. A survives the testator, and has some children
living at the testator’s death, Each surviving child of A at the time of testator’s
death must attain the age of 25 (if at all) within the limits allowed for a bequest.
But A may have children after the testator’s death, some of whom may not attain
the age of 25 until more than 18 years have elapsed after the death of A. The
bequest to A's children, therefore, inoperative as to any child born after testator's
death and in regard to those who do not attain the age of 25 within 18 years after
A's death, but is operative in regard to the other children of A.

This is a combination of s.15, Transfer of Property Act, 1882, as amended

by the Transfer of Property (Amendment) Act, 20 of 1929, ss. 9 and 115 of the
Indian Succession Act, 1925, as amended by s.14, Transfer of Property
(Amendment) Supplementary Act 21, of 1929. Before the amendment, if a gift or
bequest to a class failed as to any member thereof, the gift or bequest was
wholly void. Since the amendment, it is not wholly void. It is void only as to those
in regard to whom it fails.
• Rule of Hindu law as to Gift to a Class and Subsequent Legislation:
Before the Acts of 1914, 1916 and 1921, relating to gifts and bequests to
unborn persons, a bequest to a person who was not in existence at the date of
the gift was void; and so was a bequest to a person who was not in existence at
the date of the testator’s death. This proceeded on the principle that a person
who was not in existence at the material date was incapacitated from taking.
Thus, if a gift was made by a Hindu to his grandson S, who was in existence at
the date of the gift, and to other grandsons (brothers of S), who might be born

205
after the date of the gift, it is obvious that the grandsons who were born after the
date of the gift could not take, but could S take? In some of the earlier cases, it
was held that the gift having failed as to the other grandsons, it was wholly void,
and that S too could not take. However, it was held in later cases and by the
Judicial Committee that the incapacity of the other grandsons to take, did not
incapacitate s from taking, with the result that S took the whole of the property
which was he subject matter of the gift.804
If we go by the course of legislation, first introduced was the Madras Act
of 1914. It validated gifts and bequests in favour of unborn persons, and thus
removed the bar of incapacity. It also applied for the first time, the rule against
perpetuity to cases governed by that Act. Similar provisions were introduced by
the Hindu Disposition of Property Act, 1916, and the Hindu Transfers and
Bequests (City of Madras) Act, 1921. The result of all these were that, in the case
mentioned above, grandsons other than S, though not in existence at the date of
the gift, could also take under the deed.
At the time when these three Acts were passed, The Indian Succession
Act, 1865, was in force. Section 101 related to the rule against perpetuity and
section 102 related to bequests to a class are now corresponds to the sections
114 & 115 of the Indian Succession Act, 1925, before it was amended in 1929.
Another Act in force when the said three Acts were passed was the Hindu Wills
Act, 1870. Certain sections of the Indian Succession Act, 1865, were made
applicable to cases governed by the Hindu Wills Act, one of them being s. 102,
which says:
“If a bequest is made to a class of persons with regard to some of whom it
is inoperative by reasons of the provisions of s,100 or s. 101, such bequest is
wholly void.”
Though s.101 was incorporated in all the three Acts, s.102 was not, the
intention being to keep alive the rule of Hindu law that if a bequests or gift was
made to a class of persons with regard to some of whom it was inoperative by
reason of the fact that they were not in existence at the material date, the gift or

804
Rabindra Nath v. Sushi Chandra AIR 1952 Cal 427.

206
bequest failed in regard to those persons only and not in regard to the whole
class. However, the legislature seemed to have overlooked the Hindu Wills Act,
1870, and particularly the inclusion in that Act of s. 102. This was not noticed
until the decision of the Judicial Committee in a case,805 where it was held that
the bequest being void as to some members of the class under s.101, it was
wholly void under s.102. This led to the amendment of s. 15 of the Transfer of
Property Act, 1882, and s. 115 of the Indian Succession Act, 1925.

7. Effect of direction for accumulation

(1) Where the terms of a will direct that the income arising from any
property shall be accumulated either wholly or in part during, any period longer
than a period of eighteen years from the death of the testator, such direction
shall, save as hereinafter provided be void to the extent to which the period
during which the accumulation is directed exceeds the aforesaid period, and at
the end of such period of eighteen years the property and the income thereof
shall be disposed of as if the period during which the accumulation has been
directed to be made had elapsed.

(2) This section shall not affect any direction for accumulation, for the
purpose of:—

(i) The payment of the debts of the testator or any other person taking any
interest under the will, or

(ii) The provision of portions for children or remoter issue of the testator or of
any other person taking any interest under the will, or

(iii) The preservation or maintenance of an property bequeathed; and such

direction may be made accordingly.

The old section of under which a direction of accumulation was

pronounced be invalid did not apply to Hindus, because Hindu law favours the
doctrine of accumulation of income. The new section which allows such
accumulation has been made applicable to Hindus, Buddhists etc.

80S
Soundara Rajan v. Natarajan, AIR 1925, PC 244.

207
 Under the Hindu law, a direction in a will to accumulate the income arising
from any property was not necessarily void. Such a direction was quite in
accordance with the mode of Hindu life thought, and was not against the policy of
Hindu law.806 The following cases indicate to what extent accumulation was
permissible under Hindu law as it stood prior to the amendment of sec. 118;807

But a direction for accumulation for all time, or until the rents and profits
aggregate to three lacs of rupees or any other certain amount is void, as being a
trust for an illegal purpose, namely, of creating a perpetuity.808

The present section allows the accumulation to be made only for a period
not exceeding 18 years.

If there is a present gift of property (i.e. gift to take place immediately on

the testator’s death), a direction in the will for accumulation the profits of the
estate must be rejected as inconsistent or repugnant.809

XX. VESTING OF LEGACIES

Legatees who are not entitled to the immediate possession of the thing or
fund bequeathed, and has no application to a bequest of absolute interest which
gives the legatee a right to possession immediately.810

1. Vested Interest and Contingent Interest

An interest is said to be vested, when it is not subject to any condition

precedent, when it is to take effect on the happening of an event which is certain;
whereas an estate is contingent when the right to enjoyment depends upon the
happening of an uncertain event which may or may not happen. A person takes a
vested interest in property at the testator’s death when he acquires a proprietary

Amrito Lail v Sumomoyi 24 Cal 589; Rajendra Lall v Rajcoomari 34 Cal 5; Krishnarao v Benabai
20 Bom 571 (588)
Rajendra v Rajcoomari 34 Cal 5 (10); Seerangathanni v Bava Vaithilanga AIR 1921 Mad 528;
Amrito Lall v Sumomoyi 24 Cal 589; Nafar Chandra v Ratanmala 15 CWN 66 (70); 7 IC 921;
Shookmoy v Monohari 11 Cal 684 (693) PC.
Krishnaramnai v Ananda 4 BLR OC 231.
Cally Nath v ChunderNath 8 Cal 378 (387).
Asit Kumar v Provash Chandra DLR (1949)1 Cal 298.

208
right in it at that time but the right of enjoyment is only deferred till a future event
happens which is certain to happen; but a contingent interest is one in which
neither any proprietary interest nor a right of enjoyment is given at the testator’s
death, but both depend upon future uncertain events.

Thus, a bequest to a person payable or to be paid at or when he shall

attain twenty one years of age or at the end of any other certain determinable
term, confers on him a vested interest immediately on the testator’s death, as
debitum in praesenti solvendum in futuro, and transmissible to his executors or
administrators for the words ‘payable’ or ‘to be paid’ are supposed to dis-aannex
the time from the gift of the legacy so as to leave the gift immediate, in the same
manner in respect of its vesting as if the bequest stood, singly and contained no
mention of time.811 Where an estate is bequeathed to A until he: shall marry and
after that event to B, B’s interest in the bequest is contingent, because it depends
upon a condition precedent, viz., the marriage of A, an event which may or may
not happen. B has at present no proprietary interest in the estate, and he cannot
alienate it. But as soon as A marries, the contingent interest of B becomes a
vested interest because of the happening of tile event (A’s marriage) on which it
was so long contingent. In a contingent bequest, the interest is not complete until
the specified event happens or does not happen. In case of a vested interest, the
interest is complete, but on the happening of a specified event it may be
divested.812

The true criterion is the certainty or uncertainty of the event on the

happening of which the gift is to take effect. Thus, if a bequest is made in favour
of one person, and after his death the property is directed to go to another, the
second legatee takes a vested interest in the estate ‘use death of the prior
legatee is not an uncertain contingency.813 Where the event is certain though
future, and the payment or enjoyment is postponed by reason of prior estates or
interests, the ulterior interest to take effect after them will be vested. Thus, under

Willaims on Executors 11th Ed. Vol. II, pp. 973, 974.

In re Eddel’s Trusts, LR11 Eq 559.
Darshan v Wall Khan AIR 1929 All 102 (104).
209
a gift by a testator to A at the decease of the testator’s Wife, A’s interest Vests at
the testator's death.814

A vested interest is not defeated by the death of the devisee before he

obtains possession, and his representative will be entitled to its benefit. Thus, a
person gave a bequest to his nephew to take after the death of himself and his
wife. The nephew survived the testator, but predeceased the transmissible wife
held that the nephew took a vested interest which was transmissible to his
heirs815 (This is another point of distinction between a vested interest and a
contingent interest). Therefore, where out of two persons in whom an estate
Vests, one person dies, the whole property does not pass to the other by
survivorship but is divisible between the living person and the heir of the
deceased.816

2. Devise without any intimation of desire to postpone operation, it

confers immediate vested interest

Where by his will Hindu testator gave a life- Interest in his estate to his
wife and proceeded to provide that after the death of his wife, his son would be
entitled to the ownership and possession in absolute interest and there were
further provisions as to where the estate would go in case the son died before
the testator or his wife, it was held that under the will estate vested in the son
after the death of the testator. Such vesting was not postponed by the words
“after the death of my wife” which merely indicated the termination of the prior life
interest, nor by the words “would become absolutely entitled” which merely
meant that what would be a remainder during the life-time of the widow, would
become absolute and entire on her death.817

Subramaniam v Subramaniam 4 Mad 124 (126); following Balmire v Geldart 16 Ves 314; Jairam
v Kuverbahi 9 Bom 491 (510).
Bilaso v Munni Lai 33 All 558 (559); 8 ALJ 577.
Krishna Aiyar v Swaminath 47 IC 723 (724); Mathuranath v Monmohini 57 IC 747 (Cal); Moti
Lai v Sardar Mai AIR 1976 Raj 40.
Sisir Chandra v Ajit Kishore 42 CWN 605; China Pulappa v Chinna Bayanna AIR 1962 AP 54; P.
Someasundaram v K. Rajammal AIR 1976 Mad 295.

210
3. Vesting not Postponed

The fact that the estate granted is subject to partial trusts or charges for
partial purposes does not postpone the vesting of the interest. Thus, where a
testator after directing the payment of some annuities to some persons for their
lives, gave the whole of his property to his grandsons to be divided among them
only after the annuities have ceased on the cloth of the annuitants, held that the
fact that the estate was subject to partial trusts did not postpone the vesting in
interest of the gift to the grandson.818 If a bequest is to a person for life and after

his death to his children, the bequest becomes vested in each child as and when
it is born, and the vesting is not postponed till the death of the life tenant. The
expression after his death’ is taken to indicate merely the time when the gift
becomes reduced to possession and not the time where the right to such
possession vests. 819

4. Construction: Intention of Testator

The determination of the question whether an interest granted under a

settlement or a will is vested or contingent is “one of intention to be gathered
from a comprehensive view of all the terms of the document” and “a Court has to
approach the task of construction in such cases with a bias in favour of a vested
interest, unless the intention to the contrary is definite and clear".820 The question
whether particular words create a vested or a contingent interest is one of
construction No particular words arc necessary to the vesting of an interest, and
the words of time grantor must be construed in their plain and ordinary meaning,
Words which have become by accepted usage terms of art in England do not
exist in the vernaculars of India where the English mode of creating interests is
but of recent origin.821 Where the ultimate object of the testator was clearly to

make a gift of the property to the donees, who were also executors, but he

Cally Nath v Chunder Nath 8 Cal 378 (399). See also Rajes Kanta v Shanti Debi AIR 1957 SC
225 (263).
Adams v Mrs. Gray 48 MLJ 707: 90IC 5: AIR 1925 Mad 599 (602); Halifax v Wilson (1809) 16
Ves 168; Bhagirathibai Gangraam v Rabchand Balaram AIR 1975 Bom 301.
Rajesh Kanta v shanty AIR 1956 SC 255; followed in Wealth Tax Comr. V Ashok Kumar AIR
1967 Guj 161. See also Bickersteth v shanu 1936 AC 290.
Harris v Brown 28 Cal 621 (635) (PC).
211
directed that sufficient fund from it should be provided during the lifetime of his
wife to pay her a certain sum monthly, and charged the property with payment of
another sum to his other, wife, It was held that as the estate was devised to the
executors not for but subject to a particular purpose, they were not trustees but
devises of an estate’ subject to a charge. The testator vested, the property in-
the- executors; but; postponed their interest in it until his younger wife’s death.822

Explanation.- (a) postponement of enjoyment.- interest may be a

vested one, though its enjoyment may be postponed, Thus, a testator executed
his will whereby he gave his property, after the death of himself and his wife, to
his nephew D. D survived the testators. If as held that D took a vested interest in
the property although his enjoyment and possession were postponed till the
death of the testator’s wife.823 Where a will provided that the testator’s mother
and his wife were to succeed to his property for life, and on their death his
sister’s Sons should hold the properties in possession and enjoyment by right of
inheritance, it was held that time nephews were intended to take vested interests
on the death ‘of the testator, though their possession and enjoyment were
postponed.824 Where a testator bequeathed his property to two persons for life
and the remainder absolutely in favour of a specified class of persons on the
termination of the life-estates, the property became vested in that class on the
death of the testator, and the mere fact that they were not entitled to immediate
possession did not make it a contingent bequest.825

(b) Prior interest given to some other person.—An interest may be

vested though the prior interest may be given to some other person, Where the
enjoyment is postponed by reason of circumstances connected with the estate or
for the convenience of the estate, as it has been termed, for instance, where
there, are prior life-estates or’ other interests, the ulterior interest to take effect
after them will be vested.

Subramaniam v subramaniam 4 Mad 124 (125,126) following King v Denison 1 Ves & B 272.
Bilaso v Munni Lai 33 A1 558 (559): 8 ALJ 577. See also Greenwood v Green wood AIR 1838 PC
78; Hazari Singh v Banta Singh AIR 1970 Punj 257.
Bhagabati v Kali Charan 38 cal 468 (PC).
Sree Chand v Kasi Chetty AIR 1933 Mad 785 (786); Maturanath v MONMOHINI 27 IC 747
(Cal); Chinna Pullapa v Chinna Bayana AIR 1972 AP 54.

212
 Where a will provides that after the life-time of the testator and his widow,
the remaining property should go to P, and the, will does not give any power of
alienation ‘to the widow, the bequest to P is a vested remainder and the bequest
to the widow is a life interest and not a Hindu widow’s estate. In such a case, s.
14(2) of the Hindu Succession Act will apply and the widow’s interest will not be
enlarged under s. 14(1) of the said Act.826

(c) Direction for accumulation, of income.—A gift in terms which

import, a present vested interest, with a postponed time of payment is not made
contingent by a direction to accumulate till’ the time of payment arrives.827 After

the interest has vested, the donee is entitled to the income arising there from
during the: period of suspension, provided there is no prior interest,
notwithstanding any- direction for postponement of enjoyment.828

5. Legacy passing to another person on the happening of a particular

event

Where there is a gift to an infant with remainder over in the event of his
dying under 21, the infant has a vested interest subject to be divested on his
death under that age.829

6. Contingent Interest

Contingent and executory interests, whether in real or personal estate,

devolve on the representative of a party dying before the contingency, upon
which they depend, takes effect. Although, contingent and executory interests do
not vest in possession, they may nevertheless vest in right so as to be
transmissible to executors or administrators. But it is obvious that ‘where the
contingency upon which the interest depends is the endurance of the life of the
party ‘entitled to it till a particular period, the interest itself will be extinguished by
the death of the party before the period arrives, and will not be transmissible to
his executors, or administrators. The only case in which a contigent future

826 Ramaswami Poundar v ramaswami Goundar (1972) 1 MU 417.

827 Blease vBuergah(1840)2Beav221.
828 Goswavi v Rivett-Camac 13 Bom 463 (468) (cited above).
829 See Illustration (vi); O’Mahoney v Burdett LR 7 HL 388; Maseyk v Ferguson 54r Cal 304; Merry
v. Hill LR. Eq 619.
213
interest is not transmissible would seem to be Where the being in existence
when the contingency happens is an essential part of the description of the
person who is to take”830 if a bequest is made to a person for life, or then to such
of his children as may survive him, then clearly the condition of being alive at his
death would be a condition precedent to the vesting itself, and in such a case no
child that does not so survive will acquire a vested interest in the bequest, The
obvious principle Underlying this rule’ of construction is that though the death of
the life-tenant is certain, still it is by no means certain that the donee will survive
the life tenant, And if from the words of the gift, the intention of the testator is
clear that the persons’ taking should be only such persons as are alive at the
death of the life tenant, then it follows necessarily that it is a contingent gift,
contingent upon the surviving the life tenant. Till such contingency is fullfilled
there can be no vesting.831

It does not apply if the legacy is given subject to a double contingency that
the legatee must survive named person and must also attain a particular age.832

To bring a case within the Exception, there must be a direct gift of a

particular fund to ‘the’ legatee.’ Where there is no direct gift to the legatee (son)
but only a direction to the executor to hand over not any particular fund but the
“whole ‘of the ‘remaining properties” of the testator (which are unascertainable)
when the son comes of age, and the’ income of the properties is not directed to
be employed absolutely for the son, but the executor is directed to maintain the
whole family of the testator out of that income and is authorised even to spend
the corpus of the properties for that purpose, the ‘case does not fall within the
Exception, and the bequest of the residue to the son is not vested but contingent
on his attaining the age of majority333

Swinburen, Part 7, s. 32, PI 10; Williams & Mortimer on Executors, Administrators and Probate,
16* Ed., p.518.
Adams v Mrs. Gray 48 MLJ 707: AIR. 1925 Mad 599 (602): 90IC 5.
Sopher v Administrator-General of Bengal 71 LA 93; AIR 1944 PC 67.
Cowasji v ratanbai AIR 1925 PC 27 (29).

214
XXI. ELECTION

The English law of election is the same as that provided for in s. 180 of the
Indian Succession Act. In Douglas Mertzies v Uniphelby,834 Lord Robert son
refers to the principle of election as being the same as the doctrine of approbate
and reprobate and observes as follows at page 232: “In considering the merits of
the decision appealed against, it is well to remember what is the doctrine of
approbate and reprobate invoked by the appellant. Although the name is
different, the principle as was laid down by Lord Eldon in Ker v. Wauchope,835 is
the same as that of the English law of election It is- against equity that anyone
should take against a man’s will and also under it. This rests on no artificial rule,
but on plain fair dealing If anyone has the right by law to take a share of a
testator’s estate, which the testator has not given but has otherwise disposed of,
that person takes it against the will and cannot go on to found on the will and
claim its benefits.” In Pitman v. Grunt Ewing,836 Lord Atkinson quotes with

approval the passage cited above.

"The principle is that if a testator gives property, by design or by mistake,

which is not in his power to give, and gives at the same time to the real owner of
it other property, such real owner cannot take both”.837

It is a principle of equity that a person who accepts a benefit under an

instrument must adopt the whole, giving full effect to its provisions, and
renouncing every right inconsistent with it, It follows that if a testator gives
property by design or by mistake which is not his to give, and gives at the same
time to the real owner of it other property such real owner cannot take both. In
such a case the real owner is put to his election.838

If, therefore, a testator has elected to dispose of property which is not his
own, and has given a benefit to the person to whom that property belongs, the
devisee or legatee accepting the benefit so given to him must make good the

834
(1908) AC 224.
835
(1819)1 Bligh 1.
836
(1911) AC 217.
837
Wollaston v King (1869)8 Eq 165 (173) Per James, V.C.
838 Williams and Mortimer on Executors, Administrators and Probate, 16th Ed, p.876.

215
testator’s attempted disposition; but if, on the contrary, he chooses to enforce his
proprietary rights against the testator’s disposition, equity will sequester the
property given to him for the purpose of making satisfaction out of it to the person
whom he has disappointed by the assertion of those rights.839

The doctrine is really a branch of the elementary rule of Logic “Allegans

contraria non est audiendus. He ought not to be heard who alleges things
contradictory to One another”, or as it is expressed in Scotch law, no one may
approbate and reprobate.840

The language of s. 180 and the illustration shows that a person whose
property has been disposed of by the testator by bequeathing it to another, the
will providing for a benefit to that person, who was the owner of the property,
should elect to conform such disposition of his property, in which case he would
be entitled to the benefit.841 But although a man is not at liberty to take under a
will and at the same time to dispute the operation of the will in other respects, still
there is no authority for saying that a person who accepts the benefit under a will
is precluded from disputing some transaction in which the testator was engaged
long before his death and which, is not the subject of the will at all.842

1. Application of the doctrine

The doctrine of election is a rule of practice in equity843 and being founded

the highest principle of equity, it applies equally to Hindus and to persons
governed by other personal laws. The principle is not peculiar to English law
alone but is common to all laws and based on the rules of justice, and was
therefore applied by Their Lordships of the Privy Council to the consideration of
Indian cases844 in which the rule had been applied to Hindus.

Jarman on Wills, Vol. I, P. 443.

Codrington v Codrington LR 7 HL 861.
Pdru Kutty v Lakshmi AIR 1954 Mad 556.
Ramayya v Mahalkshmi AIR 1922 Mad 357 (358).
Spread v Morgan 11 HLC 588.
Forbes v Ameeroonissa 10 MIA 340; Shah Makhan Lai v Baboo Kishan Singh 12 MIA 186; see
also Mangalda v ranchoddas 14 Bom 438 (440); tribhuvandas v Yorke Smith 20 Bom 316 (335);.
Venkataramyaa v Pitchumma 78 IC 274; AIR 1925 Mad 164 (165); and Rajamannar v Vekata 25
Mad 361 (365).
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 Thus, D a Hindu widow died making a will in respect of property which she
had inherited from her husband she bequeathed Rs. 2,000 as legacy to the
plaintiff and the immovable property to K. Both the plaintiff it and K were the heirs
of her husband. The plaintiff sued for the legacy under the will as well as for half
the immovable property as heir, find that as the widow had not the power to
devise the immovable property (to which she was not entitled absolutely), it must
be considered that she had devised a property which did not belong to her;
consequently the plaintiff must be put to his election either to take the legacy
under the will or half the property as heir.845

Where a testator made specific bequests from joint property claiming it as

his own, when he had only one-third interest therein, the legatees who note
owners of the two-third interest in the joint property were not put to election if the
bequests did not exhaust the testator’s share in the property.846

The doctrine of election applies to all kinds of property and persons. There
is no distinction for the purpose of election, between personal estate and real
estate, between specific and residuary legates, or between legatees and the
next-of-kin of an estate. 847 It is applicable to movable and immovable properties

alike.

2. Testator's intention to give property not his own

The doctrine of election ‘does not apply where the testator has some
present interest in the estate disposed of by him, though it is not entirely his own.
In such a case, unless there is an intention clearly manifested in the Will or a
necessary implication on his part to dispose of the whole of the estate including
the interest of third persons, he will be presumed to dispose of that which he
might lawfully dispose of and no more.848

Mangaldas v Ranchoddas 14 Bom 438 (441).

Subbaraya v Vaheesan AIR 1963 Mad 405.
Cooper v Cooper (1870) L4 6 Ch 15. Per Jones, LJ.
Grissell v Swinhoe (1869) L4 7 Eq 291; Wilkinson v Dent (1871)6 Ch 339.
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 The application of the doctrine depends on the true construction of the will
and not on any supposed intention of the testator.849

If the legatee does not take according to the instrument, he must

relinquish the benefit conferred upon him, and the benefit so relinquished shall
revert to the testator’s estate, on the principle that it is impossible to ascertain
what the testator would have done, if he were aware of the defect in his
instrument. And the Court cannot speculate what would have been his intention
under the circumstance.850 But the disappointed legatee is attempted to take out
of the benefit the value of the property attempted to be transferred to him.

There is a distinction between the English and the Indian law as to the
disposal of the balance left after satisfying the disappointed legatee. Under the
English law, the balance goes to the refractory legatee; whereas under the Indian
law the balance goes to the testator's residuary estate.

3. Testator's belief immaterial

The testator's belief as to his ownership is immaterial. It is not necessary

to prove that he was aware that the subject of disposition was not his own.851 “A
case of election arises although the testator proceeded on an erroneous
supposition that both the subjects of bequests were absolutely at his own
disposal, but not if it appears that the testator meant only to dispose of the
property provided he had power to do so."852 A case of election would arise
where the testator has bequeathed somebody else’s property through mistake or
by design.

4. Person talking benefit indirectly need not elect

"Election means free choice, and where the circumstance do not give to
the legatee a choice whether he will take under the instrument of against it, he is
not put to this election. Thus, whom a will purported to bequeath for the benefit of
the testator’s younger Sons chattels which were in fact already settled as

Subbaraya Pillai v Vaheesan AIR 1963 Mad 405; Veerappa v Venugopala AIR 1967 Mad 404.
In re Brooksbank (1886)34 Ch D 163.
Courts v Acworth 9 Eq 519.
Williams and Mortimer on Executors, Administrators and Probate, 16th Ed, p. 879; Re Brooksbank
34 ChD 160.

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heirlooms so that the eldest son had a life interest in them, and then bequeathed;
the residue to the eldest son, it was held that no question of election arose; for
the eldest son, having no power to alienate the chattels, could not have chosen
to take under the will."853

5. Person acting in different capacities

The rule of election is that a person who has accepted the will in its
entirety, has acquiesced in all its entirety, has acquiesced in all its provisions and
has elected to take under it, and has even executed a release in respect of a
property to which he would have been entitled otherwise than under the will,
cannot afterwards maintain a suit for an account of the rents and profits of the
same property.854 But where a person takes a benefit under the will in a capacity
different from that in which he asserts his rights, no question of election can arise
merely, because owing to certain circumstances the two capacities have
temporarily merged in him.855

No person is bound by the principle of election unless he has knowledge

of his right to elect and of the circumstance which would influence his judgment
of a reasonable man making the election.856 The inquiry as to what act or
acquiescence constitutes an actual or implied election, must be decided rather by
the circumstances of each case than by any general principle.

6. Two year's Enjoyment

Acceptance of a benefit may be presumed from two years' enjoyment of

the benefit. But if a person acts in of his right, no presumption will be made in
favour of acceptance even though the possession be for 2 years or more.857 So
also where the legatee is Pardanshin lady of slight education, and there is no
evidence that she knew anything about the contents of the will nor that the Will
was ever explained to her, and it further appears that the executors never called
upon her (as they are required to do - under s. 189) to snake her election, the
mere fact that she took the benefits for 2 years will not lead the Court to under s.

853 William and Mortimer on Executors, Administrator and Probate, 16th Ed p.879.
854 Tribhovanda v Yorke Smith 20 Bom 316 (337).
855 Deputy Commissioner v Ram Samp 20 OC 243; 42 IC 18 (20).
856 Lalit Mohan v Nirodamoyi 101 IC 339; AIR 1927 Cal 494 (495).
857 Lalit Mohan v Nirodamoy AIR 1927 Cal 494 (495).

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188(1) that she had impliedly made her election; especially when the receipt of
money by her did not render it impossible to place the parties in the same
position as if the money had not been taken, so as to make cl. (2) applicable.858

7. Postponement of Election in case of Disability - Minor

In the case of a minor the period of election will be postponed during the
minority, unless the minor is represented by a qualified guardian, in which case
he can elect. The usual practice is for the Court to elect for the infant if it is for its
benefit859 and for that purpose the Court directs an inquiry whether it is to the
advantage of the infant to elect or disclaim.860

Indubala v Manmatha AIR 1925 Cal 724 (727, 729).

Morrison v Bell 5 Ir Eq R 354; Re Chesham (1886)31 Ch 466 (472).
Browns v Brown (1866) LR 2 Eq 481 (486).
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