{"id":194695,"date":"2008-04-24T00:00:00","date_gmt":"2008-04-23T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/anil-kak-vs-kumari-sharada-raje-ors-on-24-april-2008"},"modified":"2018-05-18T16:59:19","modified_gmt":"2018-05-18T11:29:19","slug":"anil-kak-vs-kumari-sharada-raje-ors-on-24-april-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/anil-kak-vs-kumari-sharada-raje-ors-on-24-april-2008","title":{"rendered":"Anil Kak vs Kumari Sharada Raje & Ors on 24 April, 2008"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Anil Kak vs Kumari Sharada Raje & Ors on 24 April, 2008<\/div>\n
Author: S.B. Sinha<\/div>\n
Bench: S.B. Sinha, V.S. Sirpurkar<\/div>\n
           CASE NO.:\nAppeal (civil)  2965 of 2008\n\nPETITIONER:\nAnil Kak\n\nRESPONDENT:\nKumari Sharada Raje & Ors\n\nDATE OF JUDGMENT: 24\/04\/2008\n\nBENCH:\nS.B. Sinha & V.S. Sirpurkar\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T
\nREPORTABLE<\/p>\n
CIVIL APPEAL NO.     2965             OF 2008
\n[Arising out of  SLP (Civil) No. 2791 of 2006]
\nWITH
\nCIVIL APPEAL NOs. 2974,2975,2977   OF 2008
\n[Arising out of  SLP (Civil) Nos. 13865, 5831 and 9080 of 2006]<\/p>\n
S.B. SINHA, J :\n<\/p>\n
1. \tLeave granted.\n<\/p>\n
2. \tThese appeals are directed against a judgment and order dated
\n18.05.2001 passed by a learned Single Judge of the Madhya Pradesh High
\nCourt at Indore dismissing two applications for grant of probate\/ letters of
\nadministration with the copy of the annexed Will in respect of the assets of
\nLate Maharani Sharmishthabai Holkar (hereinafter called as “the testatrix”),
\nthe widow of Late Maharaja Tukoji Rao Holkar, former ruler of the
\nerstwhile Holkar State.\n<\/p>\n
3. \tMaharaja Tukoji Rao Holkar died on 21.05.1978 leaving behind four
\ndaughters, Sharada Raje Holkar, Sita Raje Ghatge, Sumitra Raje Dalvi and
\nSushila Raje Holkar.  He had executed a Will on 27.11.1942 bequeathing all
\nhis properties in favour of the testatrix.  Indisputably, a letter of
\nadministration had been granted in favour of the testatrix in respect of the
\nWill dated 27.11.1942 made in her favour by her husband.  Apart from the
\nproperties inherited by the testatrix from her husband, she had also her own
\nStridhan properties.  She purported to have executed a Will on or about
\n23.08.1978 in favour of Kumari Sharada Raje.  She, however, allegedly
\nexecuted another Will on or about 4.11.1992, by reason whereof, she
\npurported to have revoked the Will executed by her on 23.08.1978 and\/ or
\nthe Codicil.  She appointed one K.R.P. Singh and the appellant Anil Kak as
\njoint executors.  She also appointed Mr. T.N. Unni, her Chartered
\nAccountant to assist the executors in administering and distributing the
\nestate and executing the said Will.  She categorized her properties in two
\nparts, viz., Part A and Part B.\n<\/p>\n
 \tPart A consisted of those properties which were bequeathed in her
\nfavour by her husband and Part B consisted of properties other than those
\nspecified in Part A.  By reason of the said Will, the said two sets of the
\nproperties were to be administered separately.  Whereas Part A properties
\nwere bequeathed in favour of four daughters, Part B properties were sought
\nto be bequeathed in favour of her four grand children.\n<\/p>\n
4. \tIndisputably, the said Will was purported to have been attested by one
\nGita Sanghi, who examined herself as PW-5 and one Baljit Bawa, who was
\nnot examined.  The Will contained a few appendices.  Whereas the attesting
\nwitnesses purported to have put their signatures in each page of the Will,
\nthey did not put any signature on the appendices to the said Will.\n<\/p>\n
5. \tWith a view to appreciate the relationship of the parties, we may
\nnotice the family tree, which is as under:\n<\/p>\n
 \tAppellant Anil Kak is the husband of Gangesh Kumari and son-in-law
\nof Sumitra Raje Dalvi.  Appellant Arjun Kak is son of the appellant Anil
\nKak.\n<\/p>\n
6. \tBefore proceeding further, we may notice that whereas the application
\nfor grant of Letters of Administration with a copy of the Will dated
\n23.08.1978 annexed, filed by Kumari Sharada Raje was marked as Suit No.
\n2 of 1998; Anil Kak and Kumar Rampratap filed an application for grant of
\nprobate in their capacity as executors appointed under the said Will dated
\n4.11.1992, which was marked as Suit No. 3 of 1998.  Both the suits were
\ndirected to be consolidated.  The parties examined their witnesses in both the
\nsuits by adducing common evidence.\n<\/p>\n
7. \tWhereas the Will dated 23.08.1978 was a very short document, the
\nWill dated 4.11.1992 was a detailed one running into six typed pages besides
\nthree long appendices and two statements containing her investments in
\nvarious shares within and outside the country.\n<\/p>\n
8. \tA learned Single Judge of the High Court by reason of the impugned
\njudgment refused to grant probate and\/ or letters of administration in respect
\nof both the Wills.\n<\/p>\n
9. \tWhereas Civil Appeals arising out of SLP (C) Nos. 2791, 5831 and
\n9080 of 2006 have been filed against that part of the judgment whereby and
\nwhereunder grant of probate in respect of the Will dated 4.11.1992 has been
\nrejected, Civil Appeal arising out of SLP (C) No. 13865 of 2006 was filed in
\nrespect of the Will dated 23.08.1978.\n<\/p>\n
10. \tThe Letters Patent Appeals were filed against the judgment of the
\nlearned Single Judge of the High Court by both the parties which have been
\ndismissed by the Division Bench of the High Court as not maintainable.\n<\/p>\n
11. \tThe learned counsel appearing for both the parties, have addressed us
\non the merit of the matter.  We are not considering the correctness or
\notherwise of the judgment of the Division Bench of the High Court holding
\nthe Letters Patent Appeals to be not maintainable, nor it is necessary for us
\nso to do.\n<\/p>\n
12. \tWe may also at the outset place on record that no argument has been
\nadvanced in regard to the findings of the learned Single Judge of the High
\nCourt refusing to grant letters of administration in respect of the Will dated
\n23.08.1978 of the testatrix.\n<\/p>\n
13. \tThe learned Single Judge framed the following issues:\n<\/p>\n
“(1)\tWhether the alleged Will with its appendices
\ndated 4.11.1992 was duly executed by late
\nMaharani Sharmishthabai Holkar out of her free
\nwill, while she was in sound disposing state of
\nmind;\n<\/p>\n
(2)\tWhether the Will dated 4.11.1992 has been
\nacted upon by the parties, if so, its effect;
\n(3)\tWhether late Maharani Sharmishthabai
\nHolkar had executed only one Will, i.e., dated
\n23.8.1978 out of her free will while she was in
\nsound disposing state of mind;”\n<\/p>\n
14. \tThe learned Single Judge in its judgment inter alia held that the
\nexecution of the Will dated 4.11.1992 has not been proved as:\n<\/p>\n
(i)\tAppendices were not signed by the attesting witnesses;\n<\/p>\n
(ii)\tThe  Will remained in the custody of Anil Kak for a long time;\n<\/p>\n
(iii)\tAnil Kak did not examine himself as a witness;\n<\/p>\n
(iv)\tAs an unequal division of the properties described in Part B of the
\nWill effected, there existed suspicious circumstances.\n<\/p>\n
(v)\tAnil Kak took part in preparation of the Will<\/p>\n
15. \tMr. Arun Jaitley and Mr. R.F. Nariman, learned senior counsel
\nappearing on behalf of the appellants, in support of the appeal, submitted:\n<\/p>\n
(i)\tThe High Court committed a serious error in passing the impugned
\njudgment insofar as it failed to take into consideration that the
\ntestatrix had divided her properties equally amongst her four
\ndaughters as also her grand children and, therefore, there did not
\nexist any circumstance to suspect the genuineness of the Will.\n<\/p>\n
(ii)\tThe High Court committed a serious factual error insofar as it
\nproceeded on the premise that Part B assets were divided only
\namongst three grand children; whereas in fact fourth grand child
\nVijayendra Ghatge was also a beneficiary under the Will.\n<\/p>\n
(iii)\tAppendices were annexed with the Will for the purpose of
\nbringing out clarities in regard to the division of the properties.\n<\/p>\n
(iv)\tMedical certificates were annexed to the Will go to show that the
\ntestatrix had a sound disposing mind, and, thus, the burden of proof
\nwas on the caveators to prove contra.\n<\/p>\n
(v)\tThe High Court committed a serious error insofar as it failed to
\ntake into consideration the effect and purport of Sections 64, 87
\nand 103 of the Indian Succession Act (for short “the Act”).\n<\/p>\n
16. \tMr. S.B. Upadhyay, learned senior counsel appearing on behalf of the
\nrespondents, on the other hand, urged:\n<\/p>\n
(i)\tThe Will dated 4.11.1992 was surrounded by suspicious
\ncircumstances as one of the executors was husband of one of the
\ngrand children and son-in-law of one of the daughters, whose
\nfamily in turn was the beneficiary of the maximum number of
\nproperties, viz., 27 out of 35 items.\n<\/p>\n
(ii)\tIn view of a clear finding of fact arrived at by the High Court that
\nthe appellant Anil Kak had not only taken away the Will, he had
\nalso not disclose thereabout to the near relatives for a long time, is
\nalso a pointer to show that the execution of the Will by the testatrix
\nwas doubtful.\n<\/p>\n
(iii)\t  Appendices attached to the Will having been brought into
\nexistence at a later date, the provisions contained in Sections 64,
\n87 and 103 of the Act will have no application, in the instant case.\n<\/p>\n
17. \tTestatrix at the time of execution of the Will was 85 years old.  She
\nwas owner of substantial properties.\n<\/p>\n
 18.\tAlthough all the four daughters of the testatrix were the beneficiaries
\nof the properties described in Part A of the Will, detailed directions as to
\nhow the said estate is to be administered had been made therein.  Even in
\nrelation to the criteria as regards distribution of assets including the manner
\nin which the tax and other liabilities are to be made and how the investments
\nwith banks and others are to be encashed, if necessary to be encashed have
\nbeen stated.  More importantly, however, the shares in the companies were
\nto be held in the joint names of the testatrix as also the joint executors.  The
\nexecutors were to hold the same in trust.  Whether the said direction had
\nbeen carried out and, if so, how and in what manner is not known.
\nExecutors had also been granted express power to recall and repossess the
\njewellery, money or money’s wroth possessed by any beneficiary of the Will
\nor legatee but ownership of which was not conferred on them for the purpose
\nof meeting government dues, liabilities or expenses.\n<\/p>\n
19. \tWe may at this stage notice a few stipulations made in the said Will
\ndated 4.11.1992, which are as under:\n<\/p>\n
“B-4. The Executors will distribute the shares in
\ncompanies as detailed in Appendix ‘B’ together
\nwith the rights accruing thereto.\n<\/p>\n
B-5.\tThe jewellery belonging to me other than
\ndescribed in Part ‘A’ have been divided and
\nearmarked in different names as per Appendix ‘C’.
\nI bequeath the items of my jewellery accordingly.
\nB-6. I bequeath my shares in companies and
\ndeposit with the Seattle Bank in U.S.A. in favour
\nof the respective nominees\/ joint-holders as per
\nAppendix.  All expenses, liabilities, taxes, fees,
\netc. in realizing and distributing the said assets
\nshall be borne proportionately by the nominees\/
\njoint-holders.”\n<\/p>\n
20. \tThe Will was purported to have been executed in presence of one
\nShanta Kumari Jain, a notary.  Two medical certificates; one issued by Dr.
\nS.K. Mukherjee and the other by Dr. Normal Sharma, were also annexed
\nthereto.\n<\/p>\n
21. \tIt is not denied or disputed that the appellant Anil Kak took an active
\npart in the matter of preparation and execution of the Will.\n<\/p>\n
 \tFor proving the said Will, the appellants examined one of the
\nexecutors, viz., Kumar Rampratap Singh as PW-1.  He was not aware of the
\ncontents of the Will.  It was handed over to him on 10.09.1993 by Shri T.N.
\nUnni (PW-6), Chartered Accountant.  It was in turn handed over to Anil
\nKak.  The said Will was not executed in his presence.  He was not even
\naware of the execution thereof.\n<\/p>\n
22. \tShanta Kumari Jain, Notary, Geeta Sanghi, one of the attesting
\nwitnesses and T.N. Unni examined themselves in support of the case of the
\nappellants.\n<\/p>\n
 \tAccording to T.N. Unni, he had drafted only pages one to six of the
\nWill.  The said Will was purported to have been executed at his residence at
\nIndore.  Geeta Sanghi and Baljeet Bawa were the attesting witnesses.  Baljit
\nBawa, as noticed hereinbefore, was not examined.  Geeta Sanghi sought to
\nprove the testatrix’s signature as also her own signatures on the Will.\n<\/p>\n
23. \tIt is beyond any doubt or dispute that none of the attesting witnesses
\nhad put their signatures on appendices A to C.  Appendices A to C contain
\nthe list of jewelleries in great details and which jewellery should be given to
\nwhich grand daughter.  The Wealth Tax assessment for the year 1992-93
\nwas also annexed by way of a statement showing the market value of the
\nshares of the companies registered in India.  Another appendix specified that
\nACC and TISCO shares were to be equally divided amongst four daughters,
\nviz., as per their average market value on the date of latest Wealth Tax
\nassessment.\n<\/p>\n
 \tA statement showing the market value of the shares of the companies
\nregistered in U.K. as per the wealth tax assessment for the year 1992-93 was
\nalso annexed.  In regard to the division thereof, it is stated that “each
\ncompany’s share is divided equally amongst my four daughters”.  Names of
\nthe daughters had again been mentioned therein.  Statement showing the
\nvalue of quoted shares as per wealth tax assessment for the year 1992-93 had
\nalso been appended, the division whereof were to be done in the following
\nmanner:\n<\/p>\n
“The shares in each company will be divided into
\nsix equal divisions.  My grand children Gangesh
\nKumari, Jagat Bingley and Ashish Dalvi will get
\none Division each and my great grand children are
\nbequeathed three remaining shares as follows
\nChildren of Gangesh Kumari get one division,
\nChildren of Jagat Bingley get one division,
\nchildren of Vijayendra Ghatge get one division.  In
\ncase Ashish Dalvi is married and has children
\nbefore my demise, the shares in each company will
\nbe divided into seven equal divisions and
\ndistribution remains the same with the additional
\ndivision going to the children of Ashish Dalvi.”\n<\/p>\n
24. \tIt also contained bequeaths of jewellery from the personal list of the
\ntestatrix as valued on 31st March, 1992 done by M\/s. J.R.M. Bhandari.  It
\nagain contained the statement showing the value of quoted shares in respect
\nof certain companies and the mode and manner in which division thereof
\nshould be carried out.\n<\/p>\n
25. \tIt has furthermore been admitted that those appendices did not see the
\nlight of the day when the Will was executed by the testatrix and attested and
\nnotarised.\n<\/p>\n
26. \tIt has furthermore not been disputed that whereas Gangesh Kumari,
\nJagat Bingley and Ashish Dalvi are children of Sumitra Raje Dalvi, the only
\nother grand child of testatrix Vijayender Ghatge is son of Sita Raje Ghatge.
\nFrom the list containing the details of the jewellery, it appears that Vijendera
\nGhatge and family had been given one semi rectangle clip set with diamond
\nand ruby cabochon and two buttons studded with diamonds and pearls set in
\ngold.  Umika Ghatge  had also been given one square diamond ring and one
\nbracelet watch set with diamonds ruby and emerald.\n<\/p>\n
\t It furthermore appears that Arjun Kak is also a beneficiary under the
\nWill.\n<\/p>\n
27.  \tThe High Court made a distinction between the documents which are
\nmere appendices to an otherwise complete Will and those which are part and
\nparcel of the Will forming its integral part.\n<\/p>\n
28. \tFrom what has been noticed hereinbefore it is clearly evident that
\ndivision has not been made per stripe or per capita but by species.  Each one
\nof the jewelleries which was to be bequeathed to each of the beneficiary
\nthereunder had specifically been specified.  Moreover, from the valuation
\nreport, it would appear that the respective distribution purported to have
\nbeen made in terms of the appendices would not make them of equal value
\nor nearabout which was the desire of the testatrix.\n<\/p>\n
29. \tWe may now notice the provisions of Sections 64, 87 and 103 of the
\nAct whereupon strong reliance has been placed by the learned counsel
\nappearing for the appellants.\n<\/p>\n
 \tSection 64 of the Act reads as under:\n<\/p>\n
“64. Incorporation of papers by reference  if a
\ntestator, in a will or codicil duly attested, refers to
\nany other document then actually written as
\nexpressing any part of his intentions, such
\ndocument shall be deemed to form a part of the
\nwill or codicil in which it is referred to.”\n<\/p>\n
30. \tThe rule of incorporation by reference is well-known.  One document
\nis incorporated by reference in another when it is referred to, as if it would
\nform an integral part thereof.  [See Sarabjit Rick Singh v. Union of India<\/a>
\n2007 (14) SCALE 263]<\/p>\n
31. \tPrinciple of incorporation by reference was evolved so as to avoid
\nunnecessary repetition of the same documents again and again in different
\nparts of the original document.  For invoking the said principle, a document
\nmust be in existence.  It cannot be brought into existence later on.  The
\nexecutor of a document must know what the other document which he
\nintends to incorporate in the Will contains.\n<\/p>\n
 \tThis aspect of the matter has been considered by the House of Lords
\nin William Henry Singleton v. Thomas Tomlinson and others [1878 (3) AC
\n404], wherein it was held:\n<\/p>\n
“The question which arose in the Court below was
\nwhether in construing the will and in determining
\nwhat the meaning of the testator was, this schedule
\ncould be looked at; and, my Lords, on that point it
\nwill be quite sufficient if I refer to the two
\npropositions which were laid down, and which
\nindeed were not challenged by any of the counsel
\nat your Lordships’ Bar.  It was said that there are
\ncertain cases in which, although a document is not
\nadmitted to probate, still it may be referred to in a
\nwill in such a way as that you are entitled to look
\nat the document, because it is virtually
\nincorporated in that which is admitted to probate;
\nand the two propositions which were laid down as
\nthe tests of the case in which a document under
\nthose circumstances could be looked at were these:
\nfirst, that it must be clearly identified by the
\ndescription given of it in the will; and secondly,
\nthat it must be shown to have been in existence at
\nthe time when the will was executed.”\n<\/p>\n
 \t[See also Theobald on Wills, Sixteenth Edition, pages 59-61]<\/p>\n
\tIn Halsbury’s Laws of England, Fourth Edition, Paragraph 817 at
\npages 433-34, it is stated:\n<\/p>\n
“Incorporation of documents: In certain cases
\ndocuments referred to in a testator’s will or codicil,
\nthough not themselves duly executed, may be
\nincorporated in the will and included in the
\nprobate[ Re Mardon [1944] P 109 at 112, [1944] 2
\nAll ER 397 at 399.] Such a document must be
\nstrictly identified with the description contained in
\nthe will; but extrinsic evidence is admissible for
\nthe purpose of identification [See for instance,
\nAllen v. Maddock (1858) I I Moo PCC 427; Re
\nAlmosnino (1859) I SW & TR 508]. The reference
\nmust be to a document as an existing document [
\nRe Mordon ] and not to one which is to come into
\nexistence at a future date[Re Sunderland (1866)
\nLR I P & D 198; Re Reid (1868) 38 LJP & M I;\n<\/p>\n
Durham v. Northen [1895] P 66; Re Smart [1902]
\nP 238. Certainty and identification is the very
\nessence of incorporation: Croker v. Marquess of
\nHertford (1844) 4 Moo PCC 339 at 366, per Dr.
\nLushington.] The onus of proving the identity of
\nthe document and its existence at the date of the
\nwill lies upon the party seeking to establish it
\n[Singleton v. Tomlinson], but the court will draw
\ninferences from the circumstances surrounding the
\nexecution of the will.\n<\/p>\n
If the will prima facie refers to the document as an
\nexisting document, then, even though it appears
\nfrom the surrounding circumstances, namely the
\ndate of the signing of the document, that it was not
\nin existence at the date when the will was
\noriginally executed, the document may
\nnevertheless be admitted to probate, since the will
\nis treated as speaking from the date of its re-
\nexecution by the codicil; but if the will, treated as
\nspeaking at the date of the codicil, still in terms
\nrefers to a future document, the document cannot
\nbe admitted to probate even though it was in
\nexistence at the date of the codicil.\n<\/p>\n
[ Re Smart [1902] P 238].”\n<\/p>\n
32. \tSection 87 of the Act provides that testator’s intention to be
\neffectuated as far as possible, stating:\n<\/p>\n
“87. Testator’s intention to be effectuated as far as
\npossible. The intention of the testator shall not
\nbe set aside because it cannot take effect to the full
\nextent, but effect is to be given to it as far as
\npossible.”\n<\/p>\n
33. \tIn a case of this nature, however, in our opinion, Section 87 of the Act
\nwill have no application.\n<\/p>\n
34. \tIf the appendices formed an integral part of the Will and in their
\nabsence the Will was not complete, then the intention of the testator cannot
\nbe effectuated.  A distinction must be made between an incomplete Will and
\na complete Will although intention of the testator cannot be effectuated.\n<\/p>\n
\tThe testator’s intention is collected from a consideration of the whole
\nWill and not from a part of it.  If two parts of the same Will are wholly
\nirreconcilable, the court of law would not be in a position to come to a
\nfinding that the Will dated 4.11.1992 could be given effect to irrespective of
\nthe appendices.  In construing a Will, no doubt all possible contingencies are
\nrequired to be taken into consideration.  Even if a part is invalid, the entire
\ndocument need not be invalidated, only if it forms a severable part. [See
\nBajrang Factory Ltd. and Another v. University of Calcutta and Others<\/a>
\n(2007) 7 SCC 183]<\/p>\n
\tIn Halsbury’s Laws of England, Fourth edition, Volume 50, page 332-
\n33, it is stated:\n<\/p>\n
“462. Leading principle of construction: The
\nleading principle of construction which is
\napplicable to all wills without qualification and
\noverrides every other rule of construction is that
\nthe testator’s intention is collected from a
\nconsideration of the whole will taken in connection
\nwith any evidence properly admissible, and the
\nmeaning of the will and of every part of it is
\ndetermined according to that intention.”\n<\/p>\n
 \tIn P. Manavala Chetty and five Ors. v. P. Ramanujam Chetty and Anr.
\n[(1971)1MLJ127] , a single judge of the Madras High Court on the duty of
\nthe court of construction to give  intention to the wishes of the testator
\nopined:\n<\/p>\n
“It is the obvious duty of the Court to ascertain and
\ngive effect to the true intentions of the testator and
\nalso avoid any construction of the will which will
\ndefeat or frustrate or bring about a situation which
\nis directly contrary to the intentions of the testator.
\nAt the same time, it must be borne in mind that
\nthere are obvious limits to this doctrine that the
\nCourt should try to ascertain and give effect to the
\nintentions of the testator. The law requires a will to
\nbe in writing and it cannot, consistently with this
\ndoctrine, permit parol evidence or evidence of
\ncollateral circumstances to be adduced to
\ncontradict or add to or vary the contents of such a
\nwill. No evidence, however powerful it may be,
\ncan be given in a Court of construction in order to
\ncomplete an incomplete will, or project back a
\nvalid will, if the terms and conditions of the
\nwritten will are useless and in-effective to amount
\nto a valid bequest, or to prove any intention or
\nwish of the testator not found in the will. The
\ntestator’s declarations or evidence of collateral
\ncircumstances cannot control the operation of the
\nclear provisions of the will. The provisions of the
\nIndian Succession Act referred to earlier indicate
\nthe limits of the Court’s power to take note of the
\ntestator’s declarations and the surroundings
\ncircumstances, i.e., evidence of collateral
\ncircumstances.”\n<\/p>\n
                                                [Emphasis Supplied]<\/p>\n
 \tAs regards two inconsistent wills, with the latter being an incomplete
\none, the judgment of Bagnall, Re [[1948] W.N. 324] necessitates one
\ndiscussions. In the said case, the testatrix had made two wills, one in 1936
\nand the other in 1943. In the first will, she gave certain legacies and disposed
\nof the residue. In the second will, she provided legacies of the same amounts
\nand in favour of the same persons but did not dispose of the residue. The
\nsecond will was not described as a codicil to the first, nor did it expressly
\nrevoke it, but it was manifestly incomplete, ended without any stop and in
\nthe middle of a sentence and was signed by the testator at the bottom of the
\npage leaving a large gap between the last words and the signature. Probate
\nwas granted of both wills.  It was held:\n<\/p>\n
(i)\tThough the second will was far removed in date from the first and
\nwas not called the “last will”, it was intended, at any rate so far as
\nit went, to take the place of the first will, and, therefore, the
\nlegacies given by the second will were in substitution so far as they
\nwent for those in the first;\n<\/p>\n
(ii)\t An examination of the two documents, did not support the
\nconclusion that the intention of the testatrix, when she executed the
\nsecond will, was entirely to supersede the earlier instrument, and,
\nconsequently, the first will effectively disposed of the residue, and
\none legacy given in the first will but not repeated in the second will
\nwas not revoked by the latter.\n<\/p>\n
 \tIn the judgment, the case of Kidd v. North [ 16 L.J. Ch. at p. 117] was
\nreferred to. There, an incomplete testamentary paper containing a legacy of
\n500 Pounds in favour of one Bridgett Bibby was admitted to probate with a
\nwill and three codicils of prior date and the question was whether this legacy
\nwas in substitution for a larger sum given by the first codicil. Lord
\nChancellor, held, thus:\n<\/p>\n
“When the testamentary papers of which probate is
\ngranted appear to give several legacies to the same
\npersons, it is often extremely difficult to ascertain
\nwhat was the real intention of the testator,; and to
\nattain that object as far as possible certain rules
\nhave  been laid down and nice distinctions taken;
\nbut such rules and distinctions are applicable only
\nto cases in which there is no internal evidence of
\nintention; for where there that is to be found; it
\nmust prevail. Such is the present case; for I
\nconceive it to be clear that the last testamentary
\npaper was intended to be in substitution for all the
\nothers, and to supersede the provisions contained
\nin them. It is indeed incomplete; but the
\necclesiastical court having granted probate of it, no
\nquestion can be made as to its being testamentary
\nand operative as such so far as it goes. It is
\nreasonable to give such effect to the incomplete
\ninstrument, if it contains within itself evidence of
\nan intention to make an entirely new disposition;
\nand for that purpose to undo all that had been done
\nbefore; but if the new disposition applies only to
\npart of the subject matter, the instrument being
\nupon the face of it incomplete, and not applying to
\nother parts, it is consistent with the principle  to
\ngive effect to this intention, so far as it is
\nexpressed, but to consider the first disposition as
\noperative, so far as no substituted disposition is
\nprovided in its place.”\n<\/p>\n
35. \tBut, the aforementioned principle cannot be applied in the instant case
\ninasmuch as appendices appended to the Will clearly specify as to how and
\nin what manner the intention of the testatrix to divide her properties equally
\namongst her daughters and\/ or her grand children was to be implemented.\n<\/p>\n
 \tIt is not a case where a general division was to be made leaving the
\nmanner of application to the executors.  The Will refers to appendices.  Once
\nit refers to the appendices indicating that the distribution shall be in terms
\nthereof, it is difficult to comprehend as to how without the same, the Will
\ncan be said to be a complete one so as to effectuate the intention of the
\ntestator.  The intention of the testator in other words must be found out from
\nthe entire Will.  It has to be read as a whole.  An endeavour should be made
\nto give effect to each part of it.  Only when one part cannot be given effect
\nto, having regard to another part, the doctrine of purposive construction as
\nalso the general principles of construction of deed may be given effect to.  In
\nthe instant case, the document is one.  It is inseparable.  Whereas the
\nprincipal document provides for the broad division, the principles of division
\nlaid down therein would be followed if the appendices are to be taken
\nrecourse to.  If the principles of equality as has been suggested by the
\nlearned counsel is to be given effect to, it was expected that the testatrix
\nintended to confer the same benefit or the benefit having same value or
\nnearabout to be conferred on each of the legatees.\n<\/p>\n
 \tIn effect and substance, the purported directions contained in the
\nappendices which did not see the light of the day on the date of execution of
\nthe Will, make the application of the directions of the testatrix wholly
\nimpossible to be carried out.  It is in that sense the provisions of Section 87
\nof the Act are applicable.\n<\/p>\n
36.\tThe High Court has assigned good and cogent reasons in support of its
\njudgment for not accepting the evidence of Mr. Unni.  Mr. Unni admitted
\nthat the appendices were to be brought by Anil Kak.  If the same had not
\nbeen brought to her on the day the Will was executed, we wonder how the
\ntestatrix had knowledge thereabout.  It now almost stands admitted that the
\nappendices did not form part of the Will at the time of its purported
\nexecution.  If the Will was incomplete the question of its proving the
\nexecution does not arise.  An integral part of the document for the purpose of
\nsatisfying the tests laid down under Section 63(1)(c) of the Act and Section
\n68 of the Evidence Act must mean a complete document.\n<\/p>\n
37. \tIn “Jarman on Wills”, Volume 1, Eight Edition (Sweet & Maxwell) at
\nPages 145-46 on Incomplete Wills, it is stated:\n<\/p>\n
“XII.- Incomplete Wills: Cases sometimes
\noccurred under the old law, and may possibly arise
\nunder the present, in which something more than
\nmere compliance with legal requirements was
\nmade necessary to the efficacy of the will by the
\ntestator himself, he having chose to prescribe to
\nhimself a special mode of execution; for in such
\ncase, if the testator afterwards neglects to comply
\nwith the prescribed formalities, the inference to be
\ndrawn from these circumstances is, that he had not
\nfully and definitely resolved on adopting the paper
\nas his will [ Accordingly, under the old law, which
\ndid not require wills of personalty to be
\nauthenticated by the testator’s signature or by
\nattestation, the Prerogative court in several
\ninstances refused to probate of wills, concluding
\nwith the words “In Witness”, etc , but not signed:
\nAbbot v. Peters, 4 Hagg. 380. Questions as to the
\ntestamentary validity of incomplete papers rarely
\noccur in practice, now that authentication of
\nsignature and attestation are essential to such
\nvalidity.] The presumption is slight where the
\ninstrument is duly signed and attested, and perfect
\nin all other respects, but must apparently be
\nrebutted by some evidence before it can be
\nadmitted to probate.[ Per Sir J. Nicholl in Beaty v.
\nBeaty. See also 1 Wms. Exors., Pt. 1., Bk. II , Ch.
\nII, s.2.].\n<\/p>\n
But this doctrine in favour of imperfect papers
\nobtains only where the defect is in regard to some
\nformal act, which the testator has prescribed as
\nnecessary for the authentication of his will, and not
\nwhere it applies to  the contents of the instrument;
\nfor, if in its actual state the paper contains only a
\npartial disclosure if the testamentary scheme of the
\ndeceased, it necessarily fails of effect, even though
\nits completion was prevented by circumstances
\nbeyond his control [ Montefiore v. Montefiore, 23
\nAd. 354; see also Griffin v. Griffin, 4 Ves. 197, n.
\nThis case afforded two sufficient grounds for the
\nrejection of the paper; first, that it was not the
\nwhole will; and secondly, that its completion was
\nnot prevented by inevitable circumstances].\n<\/p>\n
In short, the presumption is always against a paper
\nwhich bears self-evident marks of being
\nunfinished; and it behoves those who assert its
\ntestamentary character distinctly to show, either
\nthat the deceased intended the paper in its actual
\ncondition to operate as his will, or that he was
\nprevented by involuntary accident from
\ncompleting it [Reay v. Cowcher, 1 hagg. 75, 2 ib.
\n249; Wood v. medley, 1 ib. 661; In b. Robinson,
\nib. 643; Bragge v. Dyer, 3 hag. 207; Gillow v.
\nBourne, 4 Hagg. 192. And to the contrary
\npresumption in favour of a regularly executed and
\napparently completed will, vide Shadbolt v. Wagh.
\n570; Blewitt v. Blewitt, 4 Hagg. 410.]”\n<\/p>\n
 \t To the same effect is Alexander on “Commentaries on Wills” Vol. I,
\nExceution at page 193-94 which states:\n<\/p>\n
“prior to the Statute of Wills of 1 Vict., ch. 26, and
\nthe American statutes, which require the same
\nformalities in the execution and attestation of wills
\nof personalty as in devises of realty, the courts
\nallowed imperfectly executed testamentary
\nwritings to take effect as nuncupative dispositions
\nof personalty, where it appeared that the testators
\nintended them to operate in  the form in which they
\nwere found, and that the failure to completely
\nexecute them arose for some reason other than a
\npurpose to abandon.”\n<\/p>\n
 \tIt was further stated:\n<\/p>\n
“But the courts always viewed such instruments
\nwith suspicion and, in proportion to the
\nincompleteness of the document, demanded a
\nhigher degree of evidenceBut the more modern
\nday doctrine is that a nuncupative will can be made
\nonly by spoken words or by signs and that, if the
\nwords be reduced to writing by the testator or by
\nsomeone else at his request, they lose their
\nnuncupative character.  And it seems that under the
\nmodern statutes and rulings, even verbal
\ninstructions for drawing up a written will, although
\nspoken in the presence of the proper number of
\nwitnesses, can not be admitted to probate as a
\nnuncupative will.”\n<\/p>\n
38. \tSection 103 of the Act speaks of a residuary bequest but the same
\nevidently has no application in this case.\n<\/p>\n
 \tThe execution of the Will becomes impossible both in respect of the
\nproperties described in Part A and Part B.\n<\/p>\n
39.\tFurthermore, the Will is surrounded by suspicious circumstances.\n<\/p>\n
 \tThe execution of a Will does not only mean proving of the signatures
\nof the executors and the attesting witnesses.  It means something more.  A
\nWill is not an ordinary document.  It although requires to be proved like any
\nother documents but the statutory conditions imposed by reason of Section
\n63(c) of the Act and Section 68 of the Indian Evidence Act cannot be
\nignored.\n<\/p>\n
 \tIn B. Venkatamuni v. C.J. Ayodhya Ram Singh & Ors.<\/a> [2006 (11)
\nSCALE 148], this Court held:\n<\/p>\n
“It is, however, well settled that compliance of
\nstatutory requirements itself is not sufficient as
\nwould appear from the discussions hereinafter
\nmade.”\n<\/p>\n
 \tIt was observed:\n<\/p>\n
“Yet again Section 68 of the Indian Evidence Act
\npostulates the mode and manner in which proof of
\nexecution of document which is required by law to
\nbe attested stating that the execution must be
\nproved by at least one attesting witness, if an
\nattesting witness is alive and subject to the process
\nof the Court and capable of giving evidence.”\n<\/p>\n
 \tYet again in Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao &
\nOrs.<\/a> [2006 (14) SCALE 186], this Court held:
\n“Section 63 of the Indian Succession Act
\nlays down the mode and manner of execution of an
\nunprivileged Will.  Section 68 of the Indian
\nEvidence Act postulates the mode and manner of
\nexecution of document which is required by law to
\nbe attested.  It in unequivocal terms states that
\nexecution of Will must be proved at least by one
\nattesting witness, if an attesting witness is alive
\nsubject to the process of the court and capable of
\ngiving evidence.  A Will is to prove what is
\nloosely called as primary evidence, except where
\nproof is permitted by leading secondary evidence.
\nUnlike other documents, proof of execution of any
\nother document  under the Act would not be
\nsufficient as in terms of Section 68 of the Indian
\nEvidence Act, execution must be proved at least by
\none of the attesting witnesses.  While making
\nattestation, there must be an animus attestandi, on
\nthe part of the attesting witness, meaning thereby,
\nhe must intend to attest and extrinsic evidence on
\nthis point is receivable.\n<\/p>\n
The burden of proof that the Will has been validly
\nexecuted and is a genuine document is on the
\npropounder.  The propounder is also required to
\nprove that the testator has signed the Will and that
\nhe had put his signature out of his own free will
\nhaving a sound disposition of mind and understood
\nthe nature and effect thereof.  If sufficient evidence
\nin this behalf is brought on record, the onus of the
\npropounder may be held to have been discharged.
\nBut, the onus would be on the applicant to remove
\nthe suspicion by leading sufficient and cogent
\nevidence if there exists any.  In the case of proof of
\nWill, a signature of a testator alone would not
\nprove the execution thereof, if his mind may
\nappear to be very feeble and debilitated.  However,
\nif a defence of fraud, coercion or undue influence
\nis raised, the burden would be on the caveator.
\n[See Madhukar D. Shende v. Tarabai Shedage<\/a>
\n(2002) 2 SCC 85 and Sridevi & Ors. v. Jayaraja
\nShetty & Ors.<\/a> (2005) 8 SCC 784]. Subject to
\nabove, proof of a Will does not ordinarily differ
\nfrom that of proving any other document.”\n<\/p>\n
\t[See also Adivekka and Others v. Hanamavva Kom Venkatesh (Dead)
\nBy LRs. and Another<\/a> (2007) 7 SCC 91]<\/p>\n
40. \tWhereas execution of any other document can be proved by proving
\nthe writings of the document or the contents of it as also the execution
\nthereof, in the event there exists suspicious circumstances the party seeking
\nto obtain probate and\/ or letters of administration with a copy of the Will
\nannexed must also adduce evidence to the satisfaction of the court before it
\ncan be accepted as genuine.\n<\/p>\n
41. \tAs an order granting probate is a judgment in rem, the court must also
\nsatisfy its conscience before it passes an order.\n<\/p>\n
 \tIt may be true that deprivation of a due share by the natural heir by
\nitself may not be held to be a suspicious circumstance but it is one of the
\nfactors which is taken into consideration by the courts before granting
\nprobate of a Will.\n<\/p>\n
 \tUnlike other documents, even animus attestandi is a necessary
\ningredient for proving the attestation.\n<\/p>\n
 \tIn Benga Behera & Anr. v. Braja Kishore Nanda & Ors.<\/a> [2007 (7)
\nSCALE 228], this Court held:\n<\/p>\n
“46.\tExistence of suspicious circumstances itself
\nmay be held to be sufficient to arrive at a
\nconclusion that execution of the Will has not duly
\nbeen proved.”\n<\/p>\n
 \tIn B. Venkatamuni v. C.J. Ayodhya Ram Singh & Ors.<\/a> [2006 (11)
\nSCALE 148], it was stated:\n<\/p>\n
 “However, having regard to the fact that the Will
\nwas registered one and the propounder had
\ndischarged the onus, it was held that in such
\ncircumstances, the onus shifts to the contestant
\nopposing the Will to bring material on record
\nmeeting such prima facie case in which event the
\nonus shifts back on the propounder to satisfy the
\ncourt affirmatively that the testator did not know
\nwell the contents of the Will and in sound
\ndisposing capacity executed the same.\n<\/p>\n
\tEach case, however, must be determined in
\nthe fact situation obtaining therein.\n<\/p>\n
\tThe Division Bench of the High Court was,
\nwith respect, thus, entirely wrong in proceeding on
\nthe premise that compliance of legal formalities as
\nregards proof of the Will would sub-serve the
\npurpose and the suspicious circumstances
\nsurrounding the execution thereof is not of much
\nsignificance.\n<\/p>\n
\tThe suspicious circumstances pointed out by
\nthe learned District Judge and the learned Single
\nJudge of the High Court, were glaring on the face
\nof the records.  They could not have been ignored
\nby the Division Bench and in any event, the
\nDivision Bench should have been slow in
\ninterfering with the findings of fact arrived at by
\nthe said court.  It applied a wrong legal test and
\nthus, came to an erroneous decision.”\n<\/p>\n
 \tYet again in Savithri & Ors. v. Karthyayani Amma & Ors.<\/a> [JT 2007
\n(12) SC 248], this Court held:\n<\/p>\n
“18.\tWe do not find in the fact situation obtaining
\nherein that any such suspicious circumstance was
\nexisting.  We are not unmindful of the fact that the
\ncourt must satisfy its conscience before its
\ngenuineness is accepted.  But what is necessary
\ntherefor, is a rational approach.\n<\/p>\n
19.\tDeprivation of a due share by the natural
\nheirs itself is not a factor which would lead to the
\nconclusion that there exist suspicious
\ncircumstances.   For the said purpose, as noticed
\nhereinbefore, the background facts should also be
\ntaken into consideration.  The son was not meeting
\nhis father.  He had not been attending to him.  He
\nwas not even meeting the expenses for his
\ntreatment from  1959, when he lost his job till his
\ndeath in 1978.  The testator was living with his
\nsister and her children.  If in that situation, if he
\nexecuted a Will in their favour, no exception
\nthereto can be taken.  Even then, something was
\nleft for the appellant.”\n<\/p>\n
42. \tThe court is, thus, required to adopt a rational approach in a situation
\nof this nature.  Once the court is required to satisfy its conscience, existence
\nof suspicious circumstances play a prominent role.  The Will, as noticed
\nhereinbefore, is in two parts.  Whereas the first part deals with the property
\nbelonging to the husband of the testatrix, the second part deals with the
\nproperties which purportedly belongs to her.  Distribution of assets,
\nhowever, was not specifically stated in the Will.  They were to be made as
\nper the appendices annexed thereto.  The appendices which were required to
\nbe read as a part of the main Will so as to effectuate the intention of the
\ntestatrix have not been proved.  The Will by its own cannot be given effect
\nto.  The Will must be read along with the appendices.  No doubt in
\nconstruing a Will arm chair rule is to be adopted.  The Will was, therefore,
\nnot complete.  It is not correct to contend that the appendices were very
\nmuch in existence at the time when the Will was executed.  Existence of a
\ndocument must mean the actual existence.\n<\/p>\n
 \tWe are, therefore, of the opinion that no case has been made out for
\ninterference with the impugned judgment.\n<\/p>\n
43.\tFor the reasons aforementioned, the appeals are dismissed with costs.
\nCounsel’s fee assessed at Rs. 50,000\/-.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Anil Kak vs Kumari Sharada Raje & Ors on 24 April, 2008 Author: S.B. Sinha Bench: S.B. Sinha, V.S. Sirpurkar CASE NO.: Appeal (civil) 2965 of 2008 PETITIONER: Anil Kak RESPONDENT: Kumari Sharada Raje & Ors DATE OF JUDGMENT: 24\/04\/2008 BENCH: S.B. Sinha & V.S. Sirpurkar JUDGMENT: J U D G […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-194695","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nAnil Kak vs Kumari Sharada Raje & Ors on 24 April, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/anil-kak-vs-kumari-sharada-raje-ors-on-24-april-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Anil Kak vs Kumari Sharada Raje & Ors on 24 April, 2008 - 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