Understanding the Alteration and Revocation of Wills Under Indian Law

 A will is a crucial legal document that allows an individual (the testator) to express their wishes regarding the distribution of their property after death. However, circumstances and intentions can change during a person’s lifetime, raising important questions about how and when a will can be altered or revoked. Indian law, primarily governed by the Indian Succession Act, 1925, lays down clear guidelines on these matters. This article explains the circumstances and procedures under which a will may be altered or revoked in India.

The Right to Alter or Revoke a Will

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Whether testator after bequeathing his property absolutely to his wife prescribe how property is to be inherited after death of his wife?

  I am of the view that under the aforesaid Will, the predecessor in title of the parties had bequeathed the property to his wife. Such bequeath to the wife cannot be said to be a limited one. The use by the testator of the words "wholly and solely" negate, the bequeath to the wife being of a life interest or life estate only. The words used in the Will "my wife Sushila Chojar, would have the liberty to realize rents and collect gains from all sources concerned and utilize them according to her own wishes" cannot be read as limiting the right of the wife only to collecting the rents and not having the power to sell the property. The bequeath to the son and daughters is only "after death of my wife Sushila Chojar". It becomes further clear from Clause-4 that the bequeath to the son and daughters immediately on the demise of the testator was to be only in the event of the wife predeceasing the testator and not otherwise. Had the bequeath been intended to be to the son and daughters with the wife having only a life interest, Clause-4 would not have been inserted, as in that case the son and daughters would have a residuary interest in the property immediately on the demise of the testator. {Para 36}

37. The Supreme Court in Mauleshwar Mani Vs. Jagdish Prasad MANU/SC/0044/2002 : (2002) 2 SCC 468 on the basis of the words "Pane ki Musthak" and "Ba Akhtiar Intakal" used in a Will made in Hindi language held the bequeath to be of an unlimited and an absolute estate and not a limited one. The Division Bench of this Court in Judge Pal Khera Vs. Chand Rani Khera MANU/DE/1766/2012 also held the use of the words "absolutely" and "exclusively" in the Will to be indicative of bequeath of an absolute and unlimited estate and not a limited one.

38. The question which however arises is whether the predecessor in title of the parties having bequeathed the property wholly and solely to his wife could have provided for the manner in which the property was to be dealt with after the death of his wife. In my opinion, he could not have done so. A testator, once has bequeathed the property wholly and solely to his wife and the wife is alive on the date of the demise of the testator, the property becomes of the wife and any provision in the Will, of the manner in which the property is to be inherited after the demise of the wife, is of no avail. This is the reason that once the property has on the demise of the testator vested in the wife of the testator, the same in the absence of a Will of the wife of the testator, has to be dealt with in accordance with law of succession application to such wife. Reliance if any required in this regard, can be placed on Sadaram Suryanarayana Vs. Kalla Surya Kantham MANU/SC/0886/2010 : (2010) 13 SCC 147.

39. It is the admitted position that the mother of the parties died intestate. In accordance with the law of succession applicable to her, on her demise, the property would be inherited equally by her children i.e. by the plaintiff and the defendants No. 1&3.

 IN THE HIGH COURT OF DELHI

CSOS 2190/2011 & IA. No. 7476/2013

Decided On: 01.07.2014

Satish Kumar Chojar  Vs. Subhashni Chopra

Hon'ble Judges/Coram:

Rajiv Sahai Endlaw, J.

Citation:  MANU/DE/1460/2014.

Read full Judgment here: Click here

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How to appreciate evidence if plaintiff has failed to produce original will?

 Though the plaintiff as aforesaid has failed to give any reason for non-production of the original Will but from a reading of the entirety of the evidence including the lengthy cross-examination by the counsel for the defendants No. 1&3 of the plaintiff and of the replies given by the defendant No. 3 in her cross-examination, it is abundantly proved that the defendant No. 3 had much more access than the plaintiff to the parents. The possibility thus of the defendants No. 1&3 being in possession of the original Will and having suppressed the same cannot be ruled out. The plaintiff had no reason to suppress the same. It is not the case of the defendants that the father had put an endorsement of "cancelled" on the original, for the plaintiff to be interested in suppressing the original. Rather, it is the plea of the defendants No. 1&3 that the original was torn and destroyed and which they have failed to prove.{Para 33}

 IN THE HIGH COURT OF DELHI

CSOS 2190/2011 & IA. No. 7476/2013

Decided On: 01.07.2014

Satish Kumar Chojar  Vs. Subhashni Chopra

Hon'ble Judges/Coram:

Rajiv Sahai Endlaw, J.

Citation:  MANU/DE/1460/2014.

Read full Judgment here: Click here

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Whether the court can presume that will was revoked by destruction if original will is not available before the court?

 The fact however remains that the original Will has not come before the Court.{Para 22}

23. The plaintiff has also not led any evidence of the whereabouts of the original Will except for the suggestion in the cross-examination of the defendant No. 3 appearing as DW-1 that the defendant No. 3 had misplaced the original Will.

24. The question which arises is whether from the mere non-availability of the original Will, the revocation by destruction thereof has to be presumed.

25. Section 70 of the Indian Succession Act, 1925 provides that no Will shall be revoked otherwise than (i) by marriage; (ii) or by another Will; (iii) or by some writing declaring an intention to revoke the same and executed in the same manner as a Will; or (iv) by burning or tearing or otherwise destroying the same by the testator with the intention of revoking the same. Therefrom it follows that from a mere non-availability of the original Will, the presumption of revocation by destruction thereof, is not to be drawn. It has to be proved by the person who pleads such revocation by destruction that the Will was destroyed with the intention of revoking the same. To that effect, as aforesaid, no evidence has been led by the defendants No. 1&3.

26. The Supreme Court in Durga Prashad Vs. Debi Charan MANU/SC/0250/1978 : (1979) 1 SCC 61 held that where a Will has been properly executed and registered by the testator and not found at the time of death, the question whether the presumption that the testator had revoked the Will can be drawn or not will depend on the facts and circumstances of each case. It was further held that in our country, most of the people are not highly educated and do not in every case take the care of depositing the Will in the bank or with the Solicitors and as a result of which the possibility of the Will being stolen, lost or surreptitiously removed by interested persons cannot be excluded. It was yet further held that when there is no obvious reason or clear motive for the testator to revoke the Will and yet the Will is not found on the death of the testator, it may well be that the Will was misplaced or lost or was stolen by the interested persons. An interesting discussion in this respect is also to be found in the judgment of the Division Bench of the High Court of Orissa in Brundaban Chandra Vs. Ananta Narayan Singh Deo MANU/OR/0046/1956 : AIR 1956 Orissa 151 and in Salem Town Bazaar Street, Kannika Vs T.K. Sadasivam Chettiar MANU/TN/0322/1980.

27. In the light of the said legal position, the judgment of the Division Bench of this Court in Pt. Devi Charan Vs. Durga Pershad MANU/DE/0042/1967 : AIR 1967 Delhi 128 relied on by the counsel for the defendants no. 1 and 3 and in which case, in the facts and circumstances thereof, a presumption of destruction from non availability of the original was drawn, is of no avail.

 IN THE HIGH COURT OF DELHI

CSOS 2190/2011 & IA. No. 7476/2013

Decided On: 01.07.2014

Satish Kumar Chojar  Vs. Subhashni Chopra

Hon'ble Judges/Coram:

Rajiv Sahai Endlaw, J.

Citation:  MANU/DE/1460/2014.

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What is procedure for revocation of unprivileged will?

The provisions of Section 70 of the Indian Succession Act, 1925 (for short, the Act of 1925) provide for the manner in which an unprivileged will or codicil could be revoked. As per this provision, an unprivileged will executed earlier or any part thereof can be revoked by some writing declaring an intention to revoke the same and executed in the manner in which an unprivileged will is required to be executed. It also provides that this revocation could be done by burning, tearing or otherwise destroying the same by the testator or by some person in his presence with an intention to revoke the same. The earlier will dated 13-9-1968 executed by Chintaman was an unprivileged will. In view of provisions of Section 70 of the Act of 1925, it was required to be revoked in the same manner in which the unprivileged will was earlier executed. Reference in this regard can be usefully made to the judgment of the Division Bench of the Nagpur High Court in Chouthmal Jivrajjee Poddar v. Ramchandra Jivrajjee Poddar and others, MANU/NA/0067/1954 : AIR 1955 Nagpur 126. In other words, compliance with provisions of Section 68 of said Act was necessary. Thus, atleast one attesting witness was required to be examined for proving the deed of cancellation dated 24-12-1970.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal No. 62 of 2004

Decided On: 28.09.2017

 Vitthalrao  Vs. Domaji Pandurang Kokate and Ors.

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