2008 (4) TMI 833 - SC - Indian Laws

Will referencing missing appendices for property distribution held incomplete and invalid under Section 87

Anil Kak Versus Kumari Sharada Raje and Ors.

The SC dismissed appeals challenging the rejection of probate applications for an incomplete will. The will referenced appendices for property ... Validity of the Will - Execution and attestation of the Will - Applications for grant of probate/ letters of administration - suspicious circumstances - intention of the testator - Principle of incorporation by reference - Compliance of statutory conditions of Sections 64, 87, and 103 of the Indian Succession Act - Effect of incomplete appendices on the Will - HELD THAT:- It is not a case where a general division was to be made leaving the manner of application to the executors. The Will refers to appendices. Once it refers to the appendices indicating that the distribution shall be in terms thereof, it is difficult to comprehend as to how without the same, the Will can be said to be a complete one so as to effectuate the intention of the testator. The intention of the testator in other words must be found out from the entire Will. It has to be read as a whole. An endeavour should be made to give effect to each part of it. Only when one part cannot be given effect to, having regard to another part, the doctrine of purposive construction as also the general principles of construction of deed may be given effect to. In the instant case, the document is one. It is inseparable. Whereas the principal document provides for the broad division, the principles of division laid down therein would be followed if the appendices are to be taken recourse to. If the principles of equality as has been suggested by the learned Counsel is to be given effect to, it was expected that the testatrix intended to confer the same benefit or the benefit having same value or near about to be conferred on each of the legatees. In effect and substance, the purported directions contained in the appendices which did not see the light of the day on the date of execution of the Will, make the application of the directions of the testatrix wholly impossible to be carried out. It is in that sense the provisions of Section 87 of the Act are applicable. The court is, thus, required to adopt a rational approach in a situation of this nature. Once the court is required to satisfy its conscience, existence of suspicious circumstances play a prominent role. The Will, as noticed hereinbefore, is in two parts. Whereas the first part deals with the property belonging to the husband of the testatrix, the second part deals with the properties which purportedly belongs to her. Distribution of assets, however, was not specifically stated in the Will. They were to be made as per the appendices annexed thereto. The appendices which were required to be read as a part of the main Will so as to effectuate the intention of the testatrix have not been proved. The Will by its own cannot be given effect to. The Will must be read along with the appendices. No doubt in construing a Will arm chair rule is to be adopted. The Will was, therefore, not complete. It is not correct to contend that the appendices were very much in existence at the time when the Will was executed. Existence of a document must mean the actual existence. We are, therefore, of the opinion that no case has been made out for interference with the impugned judgment. Thus, the appeals are dismissed with costs. Issues Involved1. Validity of the Will dated 4.11.1992.2. Execution and attestation of the Will.3. Suspicious circumstances surrounding the Will.4. Applicability of Sections 64, 87, and 103 of the Indian Succession Act.5. Impact of incomplete appendices on the Will.Detailed Analysis1. Validity of the Will dated 4.11.1992The primary issue was whether the Will dated 4.11.1992 was duly executed by the testatrix, Maharani Sharmishthabai Holkar, out of her free will while in a sound disposing state of mind. The High Court refused to grant probate for both Wills dated 23.08.1978 and 4.11.1992, leading to appeals.2. Execution and Attestation of the WillThe High Court found that the Will dated 4.11.1992 was not properly executed:- The appendices were not signed by the attesting witnesses.- The Will remained in the custody of Anil Kak for an extended period.- Anil Kak did not testify as a witness.- The division of properties in Part B of the Will was unequal, raising suspicions.- Anil Kak participated in the preparation of the Will.3. Suspicious Circumstances Surrounding the WillSuspicious circumstances included:- One of the executors, Anil Kak, was closely related to the beneficiaries and took an active part in the Will's preparation.- The Will was not disclosed to the near relatives for a long time.- The appendices, which detailed the distribution of assets, were not present at the time of the Will's execution.4. Applicability of Sections 64, 87, and 103 of the Indian Succession Act- Section 64: Incorporation of papers by reference was discussed. The rule requires the document to be in existence at the time of the Will's execution, which was not the case for the appendices.- Section 87: The testator's intention to be effectuated as far as possible. The court held that this section would not apply if the Will was incomplete without the appendices.- Section 103: Residuary bequest, which was deemed inapplicable in this case.5. Impact of Incomplete Appendices on the WillThe appendices were integral to the Will, specifying the distribution of assets. The High Court noted that:- The appendices did not see the light of day when the Will was executed.- The distribution of assets was detailed in the appendices, making the Will incomplete without them.- The testatrix's intention could not be effectuated without the appendices.ConclusionThe Supreme Court upheld the High Court's judgment, dismissing the appeals and concluding that the Will dated 4.11.1992 was not duly executed and was surrounded by suspicious circumstances. The appendices, which were crucial for the execution of the Will, were not present at the time of execution, rendering the Will incomplete. The court emphasized the need for a rational approach and the satisfaction of its conscience in such matters. The appeals were dismissed with costs assessed at Rs. 50,000/-.