“Law Of Wills”- Questions & Answers By Justice V Ramkumar [Part-XI]

Justice V Ramkumar

10 July 2023 4:09 AM GMT

  • “Law Of Wills”- Questions & Answers By Justice V Ramkumar [Part-XI]

    Q.51 What are the modes of revocation of an unprivileged Will or codicil ? Ans. Section 70 of the Indian Succession Act deals with the revocation of unprivileged Will or codicil. The said Section reads as follows:- “70: Revocation of unprivileged Will or codicil ...

    Q.51 What are the modes of revocation of an unprivileged Will or codicil ?

    Ans. Section 70 of the Indian Succession Act deals with the revocation of unprivileged Will or codicil. The said Section reads as follows:-

    70: Revocation of unprivileged Will or codicil 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 in the manner in which an unprivileged Will is hereinbefore required to be executed, or by the burning, tearing, or otherwise destroying the same by the testator or by some person in his presence and by his direction with the intention of revoking the same.


    (i) A has made an unprivileged Will. Afterwards, A makes another unprivileged Will which purports to revoke the first. This is a revocation.
    (ii) A has made an unprivileged Will. Afterwards, A being entitled to make a privileged Will makes a privileged Will, which purports to revoke his unprivileged Will. This is a revocation”.

    Thus, the revocation of an unprivileged Will can be brought about in the following ways :-

    (a) By operation of law (Eg. marriage. If the parties are Indian Christians including Anglo Indians, Parsis, Jews etc. marriage of the testator after the execution of the Will automatically brings about a revocation of the Will. But this does not apply to Hindus, Buddhists, Sikhs or Jains for reasons already indicated).
    (b) By writing -

    (i) another Will or codicil duly executed, or

    (ii) some other writing containing a declaration of an intention to revoke and observing the formalities for the execution of an unprivileged Will.

    (c) By destruction

    (i) by burning, or
    (ii) by tearing, or
    (iii) by otherwise destroying the Will.

    There is a popular misconception that a registered Will can be revoked only by another registered Will. It is not so. There need only be another Will (registered or unregistered) or some writing as enjoined by the first part of Section 70. (Vide Baby Mol Varghese v. P. S. Jacob (2019) 2 KLJ 245 = 2019 (2) KHC 177 – P. Somarajan - J

    The burden of proving revocation is on the party who sets up the plea and in order that the loss of a Will may raise a presumption of revocation, it must be proved that the Will was not in existence at the time of the testator’s death. (Vide John Simon Gomez v. George John Gomez AIR 1955 TC 177 - Govinda Pillai, Joseph - J).

    There can be two or more Wills each declaring to be the last Will of the testator, provided the Court is satisfied that the testator intended all those Wills to operate together and there is no apparent inconsistency between them. (Vide Chinnappa v. Kailasam 41 MLJ 661 = AIR 1921 Madras 532 – Sir William Ayling (Officiating – CJ), Odgers - J).

    If a subsequent Will or codicil is partly inconsistent with one executed earlier, then such later instrument can be understood to revoke the former only to the extent it is inconsistent.

    But if two inconsistent Wills are to be found of the same date or without any date, then both are to be treated as void unless, after a struggle to reconcile between the two for establishing posteriority of the execution, the Court succeeds in finding out the relative periods of execution.

    But if the second Will by which the first Will is revoked partially is subsequently cancelled by the testator, the revoked portion of the first Will will not be revived by such cancellation. (Vide Surendra v. Sivadas AIR 1922 Cal. 182 - A Mookerjee, Cuming - JJ).

    There cannot be revocation of a Will by necessary implication. A Will can be revoked only by a document or some writing executed in the same manner as a Will or by tearing or by destroying the Will. (Vide Tadikonda Koteswara Rao v. Vallavarapu Venkateswara Rao 1996 (2) Andhra W.R. 29 (A.P.)- Krishna Saran Shrivastav – JJ.)

    Where a testator sends a letter duly signed and attested by two witnesses, to his brother expressing the testator’s desire to destroy his earlier Will, it can amount to revocation of the Will. (Vide Nishabar Singh v. Local Gurwara Committee, Manji Sahib, Karnal AIR 1978 Punjab and Haryana 402 (P & H) – R. N. Mittal – J)

    Striking off a particular clause or the name of the legatee is revocation pro tanto (to that extent) only.

    Mere writing of the word “cancelled”, drawing red line or scratching the signature etc. are not sufficient to bring about revocation under Section 70 of the Act. (Vide Raveendran Nair v. Valsala Devi 2001 (3) KLT SN 84 (DB).

    If the destruction of the Will is by a third person other than the testator, in order to operate as revocation, such destruction must be both in the presence of and on the direction of the testator. Hence, by necessary implication the testator cannot revoke his Will by authorizing any person to destroy the same after his death.

    Q. 52 What is meant by the doctrine of “dependent relative revocation” ?

    Ans. This doctrine is attracted in cases where, if the testator revokes a subsequent will by any of the modes covered by Section 70 of the Indian Succession Act, 1925, then in the absence of any express intention to revoke the earlier last will, that will would get revived. (Vide –

    • Kaikhushru Jehangir v. Bai Bachubai Jehangir and Others AIR 1951 Bombay 339 Bhagwati – J “14. Under the circumstances which I have stated above, I have come to the conclusion that the revocation of the third codicil by the endorsement made at the foot thereof by the testatrix on 27-3-1947, bad the effect of revoking that codicil & that codicil only & not the second will & the second codicil thereto which were revived & re-published by the execution of that codicil on 31-1-1947, & brought down to that date 31-1-1947. On this conclusion of mine, there would be no intestacy but the second will & the second codicil, thereto would be the testamentary dispositions of the testatrix entitled to probate.

    15. I cannot, however, rest content with merely recording this conclusion of mine. The matter is likely to go to a higher tribunal having regard to the stake between the parties & I therefore deem it necessary to record my opinion as regards the other argument based on the doc-trine of dependent relative revocation which has been addressed to me by counsel for deft. 1. The argument is this. At the time when the testatrix revoked the third codicil by making the endorsement at the foot thereof on 27-3-1947, she had no animo revocandi so far as the second will & the second codicil thereto were concerned, & if that was going to be the effect, the Ct. should hold by reason of the operation of this doctrine of dependent relative revocation that the revocation of th& third codicil itself was inoperative. The doctrine of dependent relative revocation has been thus enunciated in Halsbury's Laws of England, vol. XXXIV p. 89, Para. 127. The position would be more clear if I also quoted a passage from Para. 126 on the preceding page :

    "Revocation by destruction, or obliteration, or by subsequent will or codicil, may be conditional, & if the condition in question is unfulfilled the revocation fails & the will, as made before such revocation, remains operative."

    Then Para. 127 :

    "In particular, revocation may be relative to another disposition which has already been made or is intended to be made, & so dependent thereon that revocation is not intended unless that other disposition takes effect."

    (Vide paras 14 and 15)

    • Thressia v. Lonappan Mathew 1956 KLT 469 = 1956 KHC 103 = AIR 1956 TC 186 (FB) Joseph Vithayathil, Varadaraja Iyengar -JJ;
    • Lakshmi v. Sankaran 1960 KLT SN P.19 - ;
    • Antony v. Mathew 1961 KLT 500 = AIR 1962 Ker. 48 (DB) - M. S. Menon, T. K. Joseph – JJ;
    • David Tharakan v. Lilly Jacob 1992 (2) KLT 426 - Sreedharan - J;
    • Papoo v. Kuruvilla 1994 (2) KLT 278 – K. Sreedharan - J;

    • Vadakkayil Gopalan v. Vadakkayil Paru 2013 (3) KLT 69 = 2013 (2) KHC 902 (Kerala - DB) - Thottathil B. Radhakrishnan, B. Kemal Pasha - JJ.

    This doctrine has been invoked by Courts in three classes of cases, namely :-
    i. Cases where the testator has revoked a prior Will because he is about to make a subsequent Will.

    ii. Cases where the testator has revoked a prior Will because he mistakenly believes that he has made a subsequent valid Will.
    iii. Cases where the testator has revoked a prior Will because he mistakenly believes that the law of intestacy will effects his wishes.

    (Vide Antony v. Mathew 1961 KLT 500 = 1961 KHC 132 (Kerala) = AIR 1962 Kerala 48 (DB) - M. S. Menon, T. K. Joseph – JJ .

    Q.53 What is the meaning of “probate” ?

    Ans. Section 2 (f) of the Indian Succession Act, 1925, defines the word “Probate” as follows :-

    “Probate” means the copy of a Will certified under the seal of a Court of competent jurisdiction with a grant of administration to the estate of the testator”.

    Probate is a document issued under the seal and signature of the Court Officer, namely, the District Judge or Registrar, certifying that a particular Will was proved on a certain date and attaching a copy of the Will of which probate has been granted. A mere copy of the grant without a copy of the Will attached thereto, is not a Probate.

    A probate perfects the title of the executor and can only be granted to him. Probate of a Will when granted establishes the Will from the death of the testator and renders valid all intermediate acts of the executor as such. It is conclusive evidence of the validity and of due execution of the Will and the testamentary capacity of the testator.

    Q.54 Which are the provisions in the Indian Succession Act, 1925 dealing with “Probates” and “Letters of Administration” ?

    Ans. Chapters I to XIII of Part IX covering Sections 218 to 369 of the Indian Succession Act are the relevant provisions pertaining to “Probates” and “Letters of Administration”.

    Q.55 What is the need for applying for a Probate or Letters of Administration ?

    Ans. If an executor has been appointed under a Will executed by the testator, then such executor alone can apply for the Probate of the Will in view of Section 222 of the Indian Succession Act. If no executor has been appointed by the testator, any one claiming a right under the Will can apply for Letters of Administration. (Vide Chapter IX of the Indian Succession Act and para 34 of Kurian @ Jacob v. Chellamma John 2017 (5) KHC 257 – P. N. Ravindran, D. Seshadri Naidu – JJ.)

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