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Bombay High Court
Kharshetji Ratanji Bomanji vs Kekobad S. Khambatta on 11 January, 1928
Equivalent citations: (1928) 30 BOMLR 473
Author: Davar
Bench: Davar


Davar, J.

1. This is a petition presented by Mr. Kharsetji Ratanji Bomanji and Mr. Fardoonji Dorabji Padamaji, two of the executors and trustees, for probate of the last will and testament, dated June 5, 1919, and codicil dated October 27, 1921, of one Jerbai Sorabji Kavasji Khambatta, who died in Bombay on or about April 27, 1927. To this petition, caveat was tiled by Kekobad Sorabji Khambatta and Pirojahaw Sorabji Khambatta, two of the sons o? the testatrix. On the filing of the caveat, the proceedings were turned into a suit and the suit is numbered Suit No. 14 of 1927f. The two petitioners are the executors and trustees under the will, along with one Mr. S.B. Bomanji, who is now absent in Europe and whose rights are reserved to come in and apply for probate if he deems fit to do so. Under the will the testatrix has appointed another executor, her son Kekobad, conditionally upon his permanently residing in Bombay. Kekobad is one of the caveators and he is at present a permanent resident of Kapurthala.

2. The case of the caveators is that the testatrix on April 9, 1926, revoked her will and codicil in the presence of one Kekhushru Bapuji Doctor and Miaa Avabai Bapuji Doctor, a nephew and niece of the testatrix.

3. The caveators in their affidavit contend that they are the sons and the surviving naxt-of-kin of the testatrix according to the Parai law of intestate succession. In para. 3 of their affidavit they point out that at the time when Jerbai, the testatrix, executed her will, her property was valued approximately at between three and four lacs of rupees; that subsequent to the execution of the will there was a great slump and chaos, in the money market, and the estate of the deceased, which consisted mainly of shares in joint stock companies and some immoveable property, very greatly depreciated in value, and the estate dwindled down to almost a third of its original value as of the date of the will. The testatrix had given by her will diverse legacies to her nieces and nephews, and the caveators, viz., her two sons, are the residuary legatees under the will subject to certain trusts and conditions. The caveators in para. 6 of their affidavit point out that the testatrix finding that her estate had dwindled down to almost a third of its value became apprehensive and wished to make better provision for her sons, the caveators, and therefore wanted to cancel all the legacies given by her will to her nieces and nephews. They further allege that with a view to carry out such intentions she revoked her will and codicil on Apriln 9, 1926, in the presence of Kekhushru Doctor and his sister Misa Avabai. What the nature of the revocation is I shall state in detail later on.

4. The executors applying for probate have taken up before me a very correct and neutral attitude, and Mr. Vachha, the learned Counsel for the plaintiffs, at the very outset of the case informed me that Mr. K.R. Bomanji, one of the executors, who is a brother of the testatrix Jerbai and the father and uncle of the nephews and nieces who receive legacies and other benefits under the will, had no desire to put forward any contention which might jeopardise the interest of the sons of the testatrix. The learned Counsel added that the executors had been advised that in law the alleged revocation was not a proper one and for that reason they had come to Court with such evidence as they had at their disposal to enable the Court to decide whether there was or there was not a valid revocation of the will and the codicil. Apart from the contentions of the two executors before me I have to take into consideration the fact that the rights of the third executor have been reserved and further that the will creates certain trusts in favour of unborn persons, Under the circumstances it becomes necessary for me to carefully consider whether the will stands or whether the allegad revocation can be given effect to.

5. The circumstances, under which the testatrix is alleged to have ravoked the will, are set out in the evidence of her nephew Bapuji Doctor and her niece, the two witnesses who deposed before me. There is no conflict in the evidence given by either of these witnesses. They say that in 1917 they used to stay with the testatrix in her house and looked after her affairs. In 1919 the testatrix went with the witness Kekhushru to the office of Mr. Kola solicitor, a partner in the well-known firm of Davarj. Messrs, Merwanji, Kola & Co., solicitors in Bombay, and made her will. Both the witnesses say that as the prices of shares and property fell and the value of the estate began to dwindle the testatrix became very anxious to make better provision for her two sons. The testatrix repeatedly discussed with the two witnesses what the position of the sons would be in case of an intestacy and whether she ought under those circumstances to revoke the will which she made in Mr. Kola’s office on June 5, 1919, as well as the codicil of October 27, 1921, which she had also executed in Mr. Kola’s office. Acting according to the wishes of the testatrix, the witness Kekhushru says he went to Mr. Kola’s office and brought the will in a sealed cover, the will which had remained in Mr. Kola’s office, and gave it to the testatrix. The testatrix was then about seventy years old and in a weak and infirm condition having suffered in the past from diverse complications. On the day in question, viz., on the day the will is alleged to have been revoked, the testatrix was feeling very ill and upset and she believed she was not going to live another day. Kekhushru and his sister Avabai were in the house with the testatrix. She became very anxious that day to revoke her will and codicil, The nephew and the niece tried to console her by saying that she would probably feel better the next day and she could then proceed to do what she liked with the will and the codicil. But the old lady appeared to be obdurate and the will, which Kekhushru had brought from Mr. Kola’s office and which had been placed by the testatrix in her drawer, was taken out by the witness Kekhushru from the drawer and handed to the testatrix. The testatrix tore off the cover and asked Avabai to bring her pen and ink, which Avabai did. The testatrix thereupon put a cross in ink across the front page of the will and wrote out the words as they appear now on the will in Gujarati. “This will is cancelled”, and put her signature below the words mentioned above and put the date below her signature. According to the evidence of these two witnesses, she appeared to be considerably relieved in her mind after that was done. Kekhushru says that he did not know that for a proper or valid cancellation or revocation attestation of two persons was required, and therefore the revocation or the cancellation was not attested. The testatrix lived a whole year after this alleged revocation. According to the evidence of these two witnesses the testatrix talked about making a new will in favour of her sons, but she did not appear to be very keen about it because there was no doubt in her mind or in the mind of the witness Kekhushru that as she wanted the whole will and codicil cancelled she honestly believed that she had done so. Both the witnesses point out that they were getting large legacies under the will, but, if the Court was of opinion that the will wag properly revoked, they did not mind losing the benefits they got under it.

6. The learned Counsel for the petitioners-executors was instructed not to cross-examine any one of the two” witnesses or to take up any partisan attitude for or against the will; and in fact the learned Counsel assured me that, as far as the facts deposed to by the two witnesses were concerned, he did not take exception to a single statement made by them and therefore there was no contest as to facts. It becomes necessary at this stage to consider carefully the effect of this alleged revocation.

7. The will of June 5, 1919, was prepared in the office of Messrs. Morwanji, Kola & Co. and evidently under the directions of Mr. Hiraji Kola, one of the senior partners in the firm. The will is bound bookwise. On the outside there is a paper canvas cover and in all there are six sheets of paper, each sheet written at the back, making in all twelve pages. The will begins at page] and ends at page 10. At the bottom of page 30 begins the codicil dated October 27, 1921, and goes on to page 11 and ends up at the foot of page 11. It will, therefore, be clear that when the will was prepared in the first instance on June 5, l919, pages 1 to 12 were originally all tied together before the will was executed. Before the actual codicil was written on October 27, 1921, page 11 must be blank. After the codicil was written page 12 roust have remained blank. On page 12 at present the petition for probate of July 7, 1927, is written and the petition continues on another page. Pages 11 and 12 seem to be later additions and tied up with a new string. The original will was signed by the testatrix Jerbai in English, the codicil is also similarly signed and both the will and the codicil are attested by Mr. Kola and his managing clerk. The alleged cancellation or revocation consists of the words written at the top of page 1 of the will in the Gujarati language : “Aye will rudd Kidhoo che La or Da Jerbai Sorabji Khambatta9-4-26.” On page 1 of the will two cross lines in ink are drawn, and the learned Counsel, Mr. Jinnah, for the caveators says that this amounted to a complete revocation, viz., the cross lines plus the words used by the testatrix at the top of page 1, namely. “This will is cancelled”, or to be more literal. “This will is rendered useless”. Looking at the first page, there is a possibility of the Court being misled in the absence of evidence as to the execution and the attestation of the will in the first instance. At the bottom of pages 1, 3 and 5 of the will the testatrix has put her signature at the bottom of each page and each one of these pages is again attested by Mr. Kola and his clerk. I do not quite know what the object of that was, but the signature of the testatrix in English and the attestation of Mr, Kola and his clerk at the bottom of page 1 have nothing to do with the revocation or what transpired at the time the will was revoked. The portion on page 1 where the pen has been run through begins with the words “I Jerbai” and ends up with the words “Rs. 2000 to my family priest.” Nothing appears on the face of ths codicil to show that the codicil was revoked by any physical act of the testatrix; and the evidence of Kekhushru and his sister is clear that nothing was thought of or done as far as the codicil was concerned. The codicil begins by saying that this is the codicil to the last will and testament; then the date of the will is given. The codicil merely revokes the legacy of Rs. 9000 contained in Sub-clause (a) of Clause 3 of the will and also in sub-clause (b) in favour of her niece Jerbannoo Bapuji Doctor, sister of the witness Avabai. In other respects the testatrix confirms her will. It is not necessary for me to go into the diverse provisions in the will. But I shall state shortly what the scheme of the will is. The testatrix after appointing executors and trustees and providing for funeral expenses and legacies gives the remainder of her property in trust to her two sons first in equal shares should Kekobad decide to reside permanently in Bombay. In the event of Kekobad not doing so Kekobad is to get one-third of the income and Pherozshaw two-thirds. She directs the residuary trust fund to be settled and divided into the proportions mentioned above after five years. The income of one part was to go to Kekobad if he permanently resided in Bombay; if not one-third was to go to Kekobad and two-thirds to Pherozshaw. On Kekobad’s death the share given to him was settled in trust for his children and was to go to them on attaining majority. Half the interest and income was to go to Kekobad’s widow under certain contingencies. A similar trust was made in favour of Pherozshaw. In the event of the sons dying without children or without being married the trust fund was to be divided into sis parts in certain proportions between nephews arid nieces. In the case of the death of these nephews and nieces the income falling to their share was to go to their children. This point of revocation to my mind is not free from doubt. In the matter of revocation of wills and codicils, we are governed in Bombay by Section 70 of the Indian Succession Act, namely, Act XXXIX of 1925. This Section 70 is a repetition of Section 67 of the old Act, The wording of this section is very nearly the same as the wording of the English statute 7 Will. IV, Chap. IV and 1 Vic. c. 26, Section 70 of the present Act is similarly worded. It runs as follows :

70. No unprivileged will or codicil, nor any part thereof, shall be revoked otherwise than by marriage, or by another will or codicil, or by some writing declaring an intention to revoke the same and executed hi the manner in which an unprivileged will is hereinbefore required to be executed, or by the burning, tearing, or otherwise desrroying the same by the testator or by some person in his presence and by his direction with the intention of revoked the same.

8. I am not concerned with the first part of the section. The will and the codicil in question are not revoked to begin with by another will or codicil nor are they revoked by some writing declaring an intention to revoke the same because there is no writing which is “executed in the manner in which an unprivileged will is hereinbefore required to be executed”, viz., that the signature of the testatrix to the words amounting to cancellation or revocation is not attested by two witnesses as required by the section. Mr. Jinnah was content to put his case under the last part of the section. He does not rely on the words “burning” or “tearing” because the will on the face of it is entirely intact and in a beautiful state of preservation, But Mr. Jinnah argues that the testatrix “otherwise destroyed” the will with ah intention to revoke the same. I have, therefore, to concentrate my mind on two things. Was this will otherwise destroyed and was it destroyed with the intention of revoking the same? Mr. Vachha, the learned Counsel for the petitioners, states that to bring the words “otherwise destroyed” within the purview of the authorities there must be an act of destruction, symbolical destruction not being sufficient, and that the Court was bound to look at the state and condition of the instrument and see whether anything appeared on the face of the instrument or in the body of the instrument to suggest that an act of destruction was contemplated or carried into effect.

9. I may mention that as far as the intention of the testatrix was concerned I have little doubt in my mind that she did intend to revoke the will-and I see no reason to disbelieve or doubt the evidence of the two witnesses. I do not mind” confessing that the case, so far as I am concerned, is not free from doubt. I have carefully looked at almost all the cases on the subject, and after very great consideration I regret I am driven to the conclusion that this case does not fall within the last clause of Section 70 of the Act, via, that the will was “otherwise destroyed” with the intention of revoking the same.

10. The words “otherwise destroyed” are used in the English Acts as I have pointed out before; and in a series of cases, which have come before the English Courts, there is no doubt that a very strict interpretation has been put upon these words otherwise destroyed”. In the case of Cheese v. Lovejoy (1877) L.R. 2 P.D. 251,253 the learned Judge James L.J. points out that there must be an act of destruction and that mere symbolical destruction is not sufficient. The same proposition was laid, down the case of Andrew v. Motley (1862) 12 C.B. (N.S.) 514. Again, the words “with an intention to revoked have been judicially construed in the case of Powell v. Powell (1886) L.R. 1 P. & D. 209, 212 and the particular passage is at p. 212, where the learned Judge Sir J.P. Wilde emphasises the fact that the destruction must be destruction with an intention to revoke. In the case of Cheese v. Lovejoy, the learned Judge points out that the object of the statute was to prevent the proof of revocation depending on parol evidence. The same proposition was laid down and considered in the case of Doe dem. Reed v. Harris (1837) 6 A & E 209, 217. It is there very clearly pointed out what the words “otherwise destroyed” convey. In the case of In the Goods of Maley (1887) 12 p.d 134 as well as in Christmas and Christmas v. Whinyates (1863) 3 Sw. & Tr. 81 and in Treloar v. Lean (1889) 14 P.D. 49 the learned Judges.stress on the state and condition to which the instrument has been reduced by the act itself, namely, actual destruction. And the Judges in the case of Price v. Powell (1858) 3 H. & N. 341 and in the case of Doe dem. Rued v. Harris state that there must be such an injury with intent to revoke as destroys the entirety of the will….” In the case of Hobbs v. Knight (1838) 1 Curtis Eccl, Rep. 768, 779, 780 the learned Judge points out that the destruction must be sufficient if the essence of the Instrument be destroyed and not the materials of which the will is “composed. The learned Judge deciding the case of In the Goods of John Woodward (1871) L.R.P. & D. 206 lays down that merely tearing out part at the commencement does not revoke the rest of the will. All that the testatrix has done in the case under my consideration is to draw two cross lines on the first page of the will, and Mr. Jinnah argues that that act of the testatrix, coupled with her intention which is clearly shown by the words written in Gujarati “This will is cancelled”, amounts to complete revocation. The case that is very near this one is the case of Stephens v. Taprell (1840) 2 Curtis EcClause Rep. 458, 485. This is a leading case on the point of the interpretation of the words “otherwise destroyed.” A will is not destroyed by merely being struck through with a pen. The destruction must be by some method ejusdem generis with those described in that proviso in the section. Both under the English and Indian statute law cancellation appears to have ceased to be one of the ordinary modes of revocation. On the point of intention to revoke the learned Judges in Keen v. Keen (1873) L.R. 3 P. & D. 105 and In the Estate of Mackenzie [1909] P. 305 laid down that recent declarations of testatrix at satisfaction of having settled her affairs, or of goodwill towards persons benefiting by the will are good evidence of intention.

11. The cases I have cited above are old cases, and they have been repeatedly cited in Courts both in England and India and up to the present minute to my knowledge not overruled or dissented from. Mr. Jinnah in the course of his argument relied on the case decided by Lord Selborne, Farrer v. St. Catharine’s College, Cambridge (1873) L.R. 16 Eq. 19. He also relied on the case of Johur Lal Dey v. Dhirendra Naih Dey. (1915) 20 C.W.N. 304. I do not find this last case reported in the authorized series of the report. The case was decided on November 24, 1915, by a bench of three Judges and the Chief Justice there emphasises the fact that, however partial the act of destruction, if the intention to destory existed that was all that the law contemplated. The facts of that particular case are rather important. The judgment in that case turned on the facts purely. The trial Judge Chaudhuri J., having had the advantage of hearing the evidence, decided on facts after believing the witnesses he had examined, The facts shortly were that the testator died on October 17, 1913. The application was opposed by the testator’s son, the defendant in the case. The defendant alleged that a prior will of 1903 had been revoked by the testator on August 29, 1913. It appears that the testator fell ill on or about August 19, 1913, when he returned from a place called Karmatar, where he had gone for a change. He died on October 17, 1913. The attorney who was present and under whose instructions the will was revoked asked the testator to write on the will the word “cancelled”, strike out the signature, sign the cancellation, and tear the will partially. The testator carried out these directions, and then made over the document to the ‘ attorney. The document was torn in the middle to the extent of three or four inches, It was a clear tear, and it had not the appearance of an accidental tear. It was a tear made expressly under the attorney’s instructions. The learned trial Judge held that the tear was made with the intention of revoking the will, and it was held that there had been an effective revocation by tearing within the meaning of the section. In appeal, the Chief Justice, Sir Lancelot Sanderson, justified his judgment upon the ground that the question was a question of fact, that Mr. Justice Chaudhuri had the evidence before him to justify him in coming to the conclusion to which he did, and he saw no reason to differ from the learned trial Judge. At p. 308 he points out that the only thing that is alleged in the case is the tearing, and he says that all that the Court has got to consider is whether such tearing comes within the section, and, secondly, whether it was done with the intention of revoking the will. After discussing the evidence and finding of the learned trial Judge he comes to the conclusion that the tearing comes sufficiently within the meaning of the section. Mr. Justice Woodroffe and Mr. Justice Mookerjee concurred with the finding of the Chief Justice. And Mr. Justice Mookerjee says (p. 310) :

What acts of tearing, burning, cancelling or obliterating are sufficient to constitute a total or partial revocation, must depend, to a considerable extent upon the circumstances of each case.

12. The points I have to decide from the evidence before me are slightly different. The will is not torn in any place. As I pointed out before, it is intact and in a beautiful state of preservation. The signatures of the testatrix as originally made in the will or codicil are intact. In the Calcutta case the signatures were struck off and then a three or four inch tear was made. I do not think that that case helps me much in coming to the conclusion whether the will in question was revoked or not.

13. Mr. Jinnah further argues that the codicil forms part of the will, and the revocation of the will is tantamount to the revocation of the codicil. Another case relied on by Mr. Jinnah is In the Goods of Bleckley (1883) L.R. 8 P.D. 169. There the testator revoked his will by cutting off his signature, but did not in any way mutilate the codicil. It appeared from the evidence that the deceased believed that by destroying the will, he had also destroyed the codicil, and on his death bed, he told his wife that he would die intestate, and gave her directions accordingly. Sir James Hannen (President) held that the question whether the deceased meant to revoke this codicil depended upon the intention to be gathered from the circumstances of the case, and he was satisfied on the evidence that he meant to revoke both the will and codicil. That judgment does not carry the present case any further.

14. The case of Farrer v. St. Catharine’s College, Cambridge (1873) L.R. 16 Eq. 19 does not carry Mr. Jinnah’s case any further. It refers to revocation of wills by codicils. On my finding of facts no such point will arise in the case before me.

15. I should just like to refer here to a case decided in 1924 (In re A.C. Cowling: Jinkin v. Cowling [1924] P. 113). That was a case of partial tear of the will, and the President (Sir Henry Duke) kid down that “when a will is found in the possession of the testator, partially torn, the presumption of law is that the tearing was done by the testator. But the burden of proof that this tearing was done animo revocandi in on the party alleging the revocation. Partial tearing which leaves all the words of the will distinct and legible doss not necessarily show an intention to revoke the will.” In this case the learned President reviewed many of the old cases.

16. Mr. Jinnah relies on the revocation, and although I am of opinion that the testatrix at one time did intend to revoke the will, I regret that, on the face of the authorities, I feel constrained to come to the contrary conclusion. I hold that the will was not revoked, or otherwise destroyed, as contemplated by the latter part of Section 70 of the Indian Succession Act. The will and the codicil, therefore, will be admitted to probate.

17. As this is a point of some difficulty, and it is a point that does not appear to have often arisen in Indian Courts, I direct that the costs of all parties appearing before me should come out of the estate, the costs of the petitioners as between attorney and client. I feel that the attitude taken up by the petitioners is a correct attitude, and the points brought by them to the notice of the Court certainly were not free from difficulty.

18. The Caveat will stand dismissed.

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