2008 Supreme(SC) 693

S.B. Sinha & V.S. Sirpurkar
Anil Kak - PETITIONER
Versus
Kumari Sharada Raje & Ors - RESPONDENTS
Appeal (civil) 2965 of 2008
Decided On : 24/04/2008

Importent Point:
An incomplete Will cannot be proved.
Even animus attestandi is a necessary ingredient for proving the attestation of Will.

Headnote:(a) Indian Succession Act, 1925 - Section 64 - One document is incorporated by reference in another when it is referred to, as if it would form an integral part thereof - For invoking the principle of incorporation, a document must be in existence - It cannot be brought into existence later on - The executor of a document must know what the other document which he intends to incorporate in the Will contains. (Pars 30 and 31)

       2007 (14) SCALE 263; 1878 (3) AC 404 - Relied upon

       (b) Interpretation of Will - If the appendices formed an integral part of the Will and in their absence the Will was not complete, then the intention of the testator cannot be effectuated - A distinction must be made between an incomplete Will and a complete Will although intention of the testator cannot be effectuated. (Para 34)

       (c) Interpretation of Will - The testator s intention is collected from a consideration of the whole Will and not from a part of it - If two parts of the same Will are wholly irreconcilable, it cannot be held that the Will could be given effect to irrespective of the appendices - Even if a part is invalid and if it can be severed, the entire document need not be invalidated. (Para 34)

       (2007)7 SCC 183 - Relied upon

       (1971)1MLJ127 - Noticed with approval

       [1948] W.N. 324 - Distinguished

       (d) Indian Succession Act, 1925 - Section 87 - The Will in question is one inseparable document - However the principles of equality in division intended by the testatrix is not followed in the appendices - Therefore the purported directions contained in the appendices which did not see the light of the day on the date of execution of the Will, make the application of the directions of the testatrix wholly impossible to be carried out. (Para 35)

       (e) Indian Succession Act, 1925 - Section 63(1)(c) and section 68, Evidence Act, 1872 - The appendices did not form part of the Will at the time of its purported execution, hence it was incomplete - Therefore the question of proving its execution does not arise - A document must mean a complete document. (Para 36)

       (f) Indian Succession Act, 1925 - Section 63(1)(c) and section 68, Evidence Act, 1872 - The execution of a Will does not only mean proving of the signatures of the executors and the attesting witnesses - In proving a Will the statutory conditions imposed by reason of Section 63(c) of the Act and Section 68 of the Indian Evidence Act cannot be ignored - In the event there exists suspicious circumstances the party seeking to obtain probate and/ or letters of administration with a copy of the Will annexed must also adduce evidence to the satisfaction of the court before it can be accepted as genuine - Unlike other documents, even animus attestandi is a necessary ingredient for proving the attestation. (Paras 39 to 41)

       2006 (11) SCALE 148: 2006(8) Supreme 771; 2006 (14) SCALE 186; (2007) 7 SCC 91; 2007 (7) SCALE 228; JT 2007 (12) SC 248 - Relied upon

       Facts of the case:

       1. Maharaja Tukoji Rao Holkar died on 21.05.1978 leaving behind four daughters, Sharada Raje Holkar, Sita Raje Ghatge, Sumitra Raje Dalvi and Sushila Raje Holkar. He had executed a Will on 27.11.1942 bequeathing all his properties in favour of Late Maharani Sharmishthabai Holkar. Indisputably, a letter of administration had been granted in favour of Late Maharani Sharmishthabai Holkar in respect of the Will dated 27.11.1942 made in her favour by her husband. Apart from the properties inherited by the testatrix from her husband, she had also her own Stridhan properties.

       2. She purported to have executed a Will on or about 23.08.1978 in favour of Kumari Sharada Raje.

       3. She, however, allegedly executed another Will on or about 4.11.1992, by reason whereof, she purported to have revoked the Will executed by her on 23.08.1978 and/ or the Codicil. She appointed one K.R.P. Singh and the appellant Anil Kak as joint executors.

       4. She categorized her properties in two parts, viz., Part A consisting of the properties which were bequeathed in her favour by her husband and Part B consisting of properties other than those specified in Part A. Whereas Part A properties were bequeathed in favour of four daughters, Part B properties were sought to be bequeathed in favour of her four grand children.

       5. The application for grant of Letters of Administration with a copy of the Will dated 23.08.1978 annexed, filed by Kumari Sharada Raje was marked as Suit No. 2 of 1998. Anil Kak and Kumar Rampratap filed an application for grant of probate in their capacity as executors appointed under the said Will dated 4.11.1992, which was marked as Suit No. 3 of 1998.

       6. A learned Single Judge of the High Court by reason of the impugned judgment refused to grant probate and/ or letters of administration in respect of both the Wills.

       Findings of the Court:

        In view of the appendices not having been proved and being inconsistent with the intention of the testatrix in the ,main Will, as also suspicious circumstances surrounding the execution, no interference with the impugned judgment is warranted.

       Result:

       Appeal dismissed with cost