Alteration In Will After Execution Has No Legal Effect Unless Duly Attested: Kerala High Court

The Kerala High Court has reaffirmed that any alteration or correction in a Will made after its execution has no legal effect unless it is duly attested in the manner prescribed under Section 71 of the Indian Succession Act.It further clarified the scope of probate jurisdiction in examining the effect of unattested alteration made in a Will. Justice S. Manu was delivering the judgment in a miscellaneous first appeal. The dispute arose from a will executed in 1993 by the deceased, Kunhikrishna Kurup. A visible alteration in the document changed the Malayalam word for “daughter” (മകൾ) to “children” (മക്കൾ), effectively broadening the bequest from a sole beneficiary (the daughter) to all heirs.The daughter (first respondent) challenged this alteration, alleging tampering after execution. The trial court granted relief in her favor, prompting an appeal.The appellants denied the allegations and submitted that the late Kunhikrishna Kurup executed the Will in favour of all children and no correction or alteration as alleged was made at any point of time. It was also submitted that, in the will, the parties were referred to with clarity about their necessary attributes. They added that if the real intention was to bequeath the property to 1st respondent, nothing prevented the testator from describing her personal details also in the Will. The Counsel for appellants also raised the contention regarding the limited scope of the proceedings under the Indian Succession Act for granting probate.The respondents argued that if the real intention of the late Kunhikrishna Kurup was to provide the plaint schedule property to all children, there was no necessity to execute a Will and to deposit the same. “Even in the absence of a Will the property would have devolved on the wife and children of the testator.” Respondent added. It was further submitted that the correction made in the Will was evident from the fact that the Will was redeposited only after a gap of about a week after its registration which would show that the officials of the office of the District Registrar facilitated manipulation for the benefit of the sons. It was also pointed out that the gap in obtaining a certified copy of the Will was not properly explained by the appellant which is suspicious. Relying on the Thresiamma v Joseph [1998 (1) KLT 426] it was contended that in case of contentious probate cases the procedure to be followed is of a regular suit. After appreciating the evidence and the arguments advanced, the Court concluded that alterations made to the Will were visible to the naked eye and this was also confirmed by the expert evidence. The Court went on to examine Section 71 of the Indian Succession Act which deals with the effect of obliteration, interlineation or alteration in unprivileged will. It noted that according to the proviso of the Section, if there is any alteration, it shall be deemed to be duly executed if the signature of the testator and the subscription of the witnesses is appropriately made. The Court noted that in the present case, there was no attestation or authentication of the alteration as required under Section 71 of the Act and hence the will has been manipulated. “In view of Section 71, if there is a correction, the correction or alteration shall have no effect in the absence of a certification by the testator or the witnesses. In the light of the deposition of DW5, the only conclusion possible is that the alteration was made after the preparation of Ext.X2 by DW5. In this connection the fact that the will was redeposited only on 13.12.2006 though it was registered on 06.12.2006 assumes significance. True that there were some intervening holidays. But there was significant unexplained delay in redepositing. It can be safely concluded on a careful appreciation of the evidence as also the facts and circumstances that the redeposit was delayed to facilitate manipulation.” Court heldThe Court then examined whether a probate court exceeds its jurisdiction by examining such alterations in detail when adjudicating the validity of a will.The appellants argued that the probate court had exceeded its jurisdiction by engaging in a detailed factual inquiry similar to a civil trial. Rejecting this contention, the High Court clarified that even though contentious probate take form of a suit under Section 295 of Indian Succession Act, they do not become full-fledged civil suits, the scope of the enquiry of the Court remains confined to validity, due execution of the will and determining whether the document represents the last testament of the deceased. “When a proceeding is converted as a suit under Section 295 of the Act, such a suit would not assume the character of a regular suit under the Code of Civil Procedure. The scope of enquiry by the Court remains constricted as of a probate court even if the proceeding is converted as a suit.” Court noted. The Court emphasized that examining alterations, suspicious circumstances,...

Alteration In Will After Execution Has No Legal Effect Unless Duly Attested: Kerala High Court

Anamika MJ

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