Will Cannot Be Rejected For Some Cuttings And Overwritings If No Substantial Changes Made: Delhi HC
The Delhi High Court held that a Will cannot be rejected for some cuttings and overwritings unless it made substantial changes to it.
The Court held thus in a petition filed under Section 276 of the Indian Succession Act, 1925 seeking grant of probate of the will executed by a person (now deceased).
A Single Bench of Justice Rekha Palli observed, “… the question that still survives for my consideration is whether there is any effect of these cuttings and overwriting, and should the existence thereof necessarily lead to the Will being discarded in entirety, as urged by the respondents. In my view, the respondents are justified in urging that in case there are cuttings and overwriting in a Will, the Court will have to examine the effect thereof regardless of whether they have been carried out as per Section 71 of the Succession Act. I am of the view that the effect of such unsigned cuttings and overwriting would always depend on the facts and circumstances of each case. Only if it is found that there are substantial changes sought to be introduced to a Will by the cuttings and overwriting present on it, can it be open for the Court to conclude that the Will is suspect and has to be rejected.”
Advocate Ashok Kumar Chhabra appeared on behalf of the petitioners while Advocate Amit Agrawal appeared on behalf of the respondents.
In this case, in 2015, the three petitioners, filed the petition stating that the testatrix, who was unmarried, issueless, and permanently residing in Delhi, had passed away in 2015. It was averred that they were executors of a Will executed by the testatrix and attested by her friends. It was their case that after the testatrix passed away, they informed respondents about the existence of her Will. The petitioners told them that the testatrix had informed them of her Will being kept in a locker in her room in her residence. With the permission of the respondents and in their presence, the locker containing the Will was opened and the subject Will was recovered. The said Will was found to have some overwriting and cuttings in it. It was read out and explained to respondents who asked for photocopies of the subject Will.
Copies of the Will were then given to the contesting respondents and since the subject Will contained overwriting, photographs of the same were reproduced. Notice was issued in the petition and citation was published in the newspapers, in response thereto, except Respondent Nos. 2 and 3, no other party came forward to file any objections to the subject Will. In accordance with the rules, a valuation report was also filed by the Revenue Authorities.
The following issues were framed in this case in 2016:
i. Whether the Will dated 27.09.2012 as propounded by the petitioners is an authentic, legal, and validly executed last and final Will of the deceased Ms. Kanval Dhillon?
ii. Whether the factual mistakes, cutting and overwriting and other suspicious circumstances as detailed in para 'G' of the objections can be termed as minor and be ignored?
The High Court while considering the above issues noted, “The fact however remains that as numerous as these cuttings and overwriting in the subject Will are, they have not been introduced to the Will in accordance with the mandate of Section 71 of the Succession Act and must necessarily be ignored. The petitioners are correct in urging that while considering their plea for grant of probate, the cuttings and overwriting in the subject Will be discarded and only the Will, as it was originally executed and attested in 2012, be taken into consideration.”
The Court said that while the testatrix was desirous of incorporating changes to the Will, such corrections were not sweeping changes that materially affected the bequeathals made therein and that with passage of time, the testatrix was contemplating making certain modifications to her Will which she could not unfortunately make.
As per Section 71 of the Indian Succession Act, any deletion, modification, or alterations made to a Will after its execution shall not have legal effect, unless the text or meaning of the Will has become illegible or indiscernible as a result of such alteration.
“Even so, these changes she appeared to want to carry out cannot be characterized as material alterations in any event. The cuttings and overwriting seem to be made to inter alia delete properties which had been sold after the execution of the subject Will, or readjust amounts/movables bequeathed, or record her musings as a side note. … I, therefore, do not find that these side notes, cuttings and overwriting in the subject Will are as substantial to discredit the original Will which in my opinion contains an expression of the testatrix’s final wish regarding the distribution of her assets”, added the Court.
Furthermore, the Court noted that such cuttings and overwriting are evidently minor rearrangements that may have been contemplated by the testatrix in the 3 years since executing her Will and do not invite any suspicion.
Accordingly, the High Court allowed the petition and granted Letters of Administration with respect to the Will.
Cause Title- Bhupinder Singh & Ors. v. State & Others (Neutral Citation: 2023:DHC:8238)
