Will Can't Be Revoked By Subsequent Agreement; Revocation Only By Modes Under Section 70 Succession Act : Supreme Court

Mangilal, who was in possession of land, executed a Will dated 6th May 2009 bequeathing a certain portion of land to his daughter, Ramkanya and some portion to his brother's sons- Suresh, Prakash and Dilip. Subsequently, Suresh and Ramkanya entered into an agreement dated 12th May 2009 under which they divided the land amongst themselves. Ramkanya executed a sale deed dated February 2011, selling her portion of land to Badrilal- the present appellant.

The Trial Judge held that while the will executed was enforceable, the agreement between Suresh and Ramkanya was illegal and thus Ramkanya had no authority to sell the land. The Trial Judge further held that the sale deed dated February 2011 is void and not binding on Suresh.

The First Appeal preferred by the Appellant resulted in an order of the District Court dismissing the appeal and modifying the order of the Trial Judge by holding that the sale deed dated 21st February 2011 was void in respect of the right and title of Suresh.

The Second Appeal preferred by the appellant was dismissed by the impugned judgment of the Single Judge of MP High Court.

The judgment, authored by Justice A.S.Oka noted that the primary question for the court's consideration is whether the agreement dated May 2009 will amount to revocation of Will dated 6th May 2009 especially since Clause no.8 of the agreement recites that the Will earlier executed by Mangilal stands canceled. The Court examines the factual question in light of S.70 of the Indian Succession Act which deals with the revocation of unprivileged Will.

The Court noted that as per S.70, revocation can be made by one of the following methods

• • Execution of another Will or codicil
  • 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.
  • By 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. (Para 10)
    

In view of the above modes of revocation, the Court notes that the will executed by Mangilal was not revoked by executing another Will; the Will was neither destroyed or burnt by Mangilal or someone else as per his express instructions.

Crucially it observes:

"Though, clause no.8 of the said agreement recites that the Will earlier executed by Mangilal stands cancelled, Mangilal is not shown as a party to the agreement but his thumb impression appears on the third page of the said document in the left margin." (Para 10)

Because the agreement dated 12th May 2009 shows only Suresh and Ramkanya as the parties to the agreement and the thumb impression of Mangilal which appears of the third page of the document is not attested by two witnesses as required by S.63 (c) of the Indian Succession Act, the Court concluded that the Will dated 6th May 2009 is not revoked by the subsequent agreement dated 12th May 2009.

On the question of the validity of the agreement dated 12th May 2009, the Court held that it will not have the effect of transferring the property to Suresh and Ramkanya as it is neither registered nor is it a sale deed executed by Mangilal.

The Court clarified that the sale deed dated 21 February 2011 executed by Ramkanya in favor of the appellant- Badrialal will be valid only to the extent of the area which she acquired under the Will dated 6th May 2009.

Case Name: Badrilal v Suresh & Ors

Coram: Justices Ajay Rastogi, Abhay S.Oka

Citation : LL 2021 SC 624

Click here to read/download the judgment