Will can be revoked only as per modes prescribed under Sec. 70 of Indian Succession Act: Apex Court

Read Judgment: Badrilal vs. Suresh & Ors

Pankaj Bajpai

New Delhi, November 8, 2021: The Supreme Court has highlighted that as per Section 70 of the Indian Succession Act, 1925, a will can be revoked either by execution of another Will or codicil, or, a writing executed by the testator declaring an intention to revoke the Will and executed in the manner in which an unprivileged Will is required to be executed. 

A Division Bench of Justice Ajay Rastogi & Justice Abhay S. Oka therefore observed that the sale deed executed by Ramkanya (second respondent) in favour of Badrilal (appellant) will be valid only to the extent of the land which was bequeathed to Ramkanya under the Will dated executed by Mangilal (testator). 

The background of the case showed that Mangilal, who was in possession of land, executed a Will bequeathing a certain portion of land to his daughter, Ramkanya and some portion to his brother’s sons i.e., Suresh, Prakash and Dilip. Subsequently, Suresh and Ramkanya entered into an agreement under which they divided the land amongst themselves.

Resultantly, Ramkanya executed a sale deed selling her portion of land to Badrilal. During the course of trial, it was held that the agreement between Suresh and Ramkanya was void and Ramkanya had no authority to sell the land, since the will executed by Mangilal was enforceable at that time. 

On appeal, the District Court modified the order of the Trial Judge by holding that the sale deed was void in respect of the right and title of Suresh. Further, the appeal before the High Court also resulted in dismissal. 

After considering the arguments, the Apex Court found that the Will was purportedly revoked by the testator Mangilal by an agreement and only Suresh and Ramkanya were shown as the parties to the said agreement. 

“It is not the case of the appellant or any party that the thumb impression of Mangilal on the agreement dated 12th May 2009 has been attested by two witnesses as required by clause (c) of Section 63 of the Indian Succession Act, 1925. No such evidence has been adduced by the appellant. It is not the case of the appellant that the Will dated 6th May 2009 was revoked by Mangilal by executing a new Will or a codicil. It is not his case that the Will was either destroyed or burnt by Mangilal or by someone else as per his express instructions. Therefore, the Will dated 6th May 2009 was not revoked during the lifetime of Mangilal”, observed the Apex Court.

The Top Court after perusing the operative part of the judgment of the District Court, observed that it was declared the sale deed was void regarding the right and title of plaintiff, Suresh and was not binding on him, as the sale deed was executed after death of Mangilal.

Therefore, the sale deed executed by Ramkanya will be valid only to the extent of the area which she acquired under the Will of Mangilal, added the Court.