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Appellants: Anil Kak ( Executor of Will)
Respondent: Sharada Raje & Others (Daughter of testatrix)
Hon’ble Justice S.B.Sinha and V.S. Sirpurkar, JJ
Date Of Appeal: 2008
Date Of Judgement: Thu Apr 24 2008
Maharaja T.R. Holkar died on 21.05.1978 leaving behind four daughters: Sharada Raje Holkar, Sita Raje Ghatge, Sumitra Raje Dalvi, and Sushila Raje Holkar. He executed a Will in favour of the testatrix of the current case, who inherited her late husband's property along with her stridhan properties (Woman’s absolute estate). She allegedly executed a Will on or about 23.08.1978 in favour of Kumari Sharada Raje and allegedly revoked it by executing another subsequent Will on or about 4.11.1992. She categorized her properties into two parts, viz., Part A and Part B, to be administered separately. Part A included properties she inherited from her husband, to be bequeathed to her 4 daughters, while Part B consisted of other properties, which she wanted to bequeath to her 4 grandchildren. The Will contained a few appendices. While the attesting witnesses purportedly signed each page of the Will, they did not sign the appendices. The respondent in the current case filed for the grant of probate (validation of the Will by Competent court) for the original Will dated 23.08.1978 in her favour, while the executors of the subsequent Will filed for the grant of probate of the subsequent Will dated 04.11.1992. The High Court heard both applications together and the Single Judge rejected both applications. An appeal to the Division Bench was dismissed. Aggrieved by this decision, an appeal was made to the Supreme Court.
The Court dismissed the appeals. None of the witnesses had attested the appendices and admitted that the appendices were not in existence at the time when the Will was made, thus the principle of incorporation could not be applied. Consequently, the Will was incomplete, and the question of proving its execution did not arise. The Court analysed the intention of the testator by evaluating the Will as a whole and found that the testator (the person who made the Will) intended for all the beneficiaries to receive approximately the same value, which was no longer possible due to changes in property valuation. The Will was also surrounded by suspicious circumstances: the executor of the Will was a beneficiary and had assisted in making the Will. The Will had also been in his custody for an extended period. Based on these grounds, the Court found that neither of the Wills purported to have been executed were valid.
Rule of Incorporation – Section 64
“Incorporation of papers by reference— if a testator, in a Will or codicil duly attested, refers to any other document then actually written as expressing any part of his intentions, such document shall be deemed to form a part of the Will or codicil in which it is referred to."
This principle evolved to prevent unnecessary repetition of the same documents. For evoking this principle, the documents must be in existence; they cannot be created later. It was also held that “The execution of a Will does not only mean proving of the signatures of the executors and the attesting witnesses. It means something more. A Will is not an ordinary document. It although requires to be proved like any other documents but the statutory conditions imposed by reason of Section 63(c) of the Act and Section 68 of the Indian Evidence Act cannot be ignored.”
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