Title

Anil Kak Vs. Kumari Sharada Raje & Ors

Coram

Coram: S.B. SINHA, V.S. SIRPURKAR

Citation

2008(6 )SCR1009 2008(7 )SCC695 2008(6 )SCALE597

Subject

Indian Succession Act, 1925: ss 63, 87 and 103 - Execution of Will - Genuineness of - Widow executing Will in favour of one of her daughters - Execution of another Will 14 years later - Will in two parts, first part dealing with property belonging to her husband and second part with her Stridhan properties - Appendices appended to the Will - Application for letters of administration by beneficiary of first Will - Application for grant of probate by joint executors - Rejected by High Court - On appeal, held: Distribution of assets were to be made as per the appendices which were to be read as a part of the main Will - Will could not be given effect by its own - At the time of the purported execution of Will, appendices did not form part of Will - Thus, Will was not complete - Intention of testator could not be effectuated - Will was surrounded by suspicious circumstances -Hence, interference not called for. s. 63 - Execution of Will - Mode and manner of proving - Held : Signatures of executors and attesting witnesses are to be proved - Also the statutory conditions imposed by s. 63 and s.68 of 1872 Act are to be proved - In the event of existence of suspicious circumstances, party seeking probate or letters of administration is to adduce evidence to the satisfaction of the court - Court to adopt a rational approach - It has to satisfy its conscience - Evidence Act, 1872 - s. 68. s. 64 - Incorporation of paper by reference - Principle of - Held: Document incorporated by reference in another when it is referred to, as if it would form integral part thereof - It is to avoid unnecessary repetition of same documents in original documents-Document must be in existence - Executor must know its contents - It cannot be brought into existence later on. s. 87 - Efficacy of Will - Intention of the testator - Ascertainment of - Held: Intention of the testator must be found out from the entire Will - It has to be read as a whole - Endeavour should be made to give effect to each part of it - When one part cannot be given effect having regard to another part, doctrine of purposive construction as also general principles of construction of deed could be given effect to - Interpretation of statutes. The testatrix inherited properties from her husband by Will and also had her own Stridhan properties. Testatrix had four daughters. She executed a Will on 23.8.1978 in favour of one of her daughters viz. KS. It is alleged that in 1992, she revoked the will and executed another Will. She appointed KRP and the appellant-AK as joint executors and TN as Chartered Accountant to assist the executors in administering and distributing the estate and executing the Will. The properties were in Part A and B. Part A consisted of the properties bequeathed in testatrix's favour by her husband and Part B consisted of properties other than those specified in Part A. She bequeathed Part A properties in favour of her daughters and Part B in favour of her grand children. The Will was executed in presence of notary. It was attested by the witnesses. Medical Certificates issued by the doctors were annexed thereto. The Will contained few appendices. It also contained statements containing her investments in various shares within and outside the country. KS filed application for grant of Letters of Administration with a copy of the Will dated 23.8.1978 and AK and KRP filed an application for grant of probate in their capacity as executors appointed under the Will dated 4.11.1992. Single Judge of the High Court rejected the application for probate and/or letters of administration in respect of both the Wills. With regard to the Will dated 4.11.1992, the court held that the execution was not proved since appendices were not signed by the attesting witnesses; the Will remained in the custody of AK for a long time; AK did not examine himself as a witness; as an unequal division of the properties described in Part B of the Will effected, there existed suspicious circumstances; and AK took part in preparation of the Will. The Division Bench dismissed the Letter Patent Appeals as not maintainable. Hence the present appeals. Appellants contended that the High Court committed a serious error in passing the impugned judgment as it failed to take into consideration that the testatrix had divided her properties equally amongst her four daughters as also her grand children, therefore, there did not exist any circumstance to suspect the genuineness of the Will; that Appendices were annexed with the Will for the purpose of bringing out clarities in regard to the division of the properties; that Medical certificates annexed to the Will show that the testatrix had a sound disposing mind; and that the High Court failed to take into consideration the effect and purport of sections 64, 87 and 103 of the Indian Succession Act, 1925. Respondents contended that the Will dated 4.11.1992 was surrounded by suspicious circumstances as appellant- one of the executors was husband of one of the grand children and son-in-law of one of the daughters, whose family was the beneficiary of the maximum number of properties; that in view of a clear finding of fact arrived at by the High Court that the appellant not only took away the Will but also did not disclose thereabout to the near relatives for a long time shows that the execution of the Will by the testatrix was doubtful; and that appendices attached to the Will having been brought into existence at a later date, ss. 64, 87 and 103 would not be applicable.

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