TMI Blog2008 (4) TMI 833X X X X Extracts X X X X X X X X Extracts X X X X ..... , former ruler of the erstwhile Holkar State. 3. Maharaja Tukoji Rao Holkar died on 21.05.1978 leaving behind four daughters, Sharada Raje Holkar, Sita Raje Ghatge, Sumitra Raje Dalvi and Sushila Raje Holkar. He had executed a Will on 27.11.1942 bequeathing all his properties in favour of the testatrix. Indisputably, a letter of administration had been granted in favour of the testatrix in respect of the Will dated 27.11.1942 made in her favour by her husband. Apart from the properties inherited by the testatrix from her husband, she had also her own Stridhan properties. She purported to have executed a Will on or about 23.08.1978 in favour of Kumari Sharada Raje. She, however, allegedly executed another Will on or about 4.11.1992, by reason whereof, she purported to have revoked the Will executed by her on 23.08.1978 and/ or the Codicil. She appointed one K.R.P. Singh and the appellant Anil Kak as joint executors. She also appointed Mr. T.N. Unni, her Chartered Accountant to assist the executors in administering and distributing the estate and executing the said Will. She categorized her properties in two parts, viz., Part A and Part B. Part A consisted of those properties which w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he High Court by both the parties which have been dismissed by the Division Bench of the High Court as not maintainable. 11. The learned Counsel appearing for both the parties, have addressed us on the merit of the matter. We are not considering the correctness or otherwise of the judgment of the Division Bench of the High Court holding the Letters Patent Appeals to be not maintainable, nor it is necessary for us so to do. 12. We may also at the outset place on record that no argument has been advanced in regard to the findings of the learned Single Judge of the High Court refusing to grant letters of administration in respect of the Will dated 23.08.1978 of the testatrix. 13. The learned Single Judge framed the following issues: ( 1) Whether the alleged Will with its appendices dated 4.11.1992 was duly executed by late Maharani Sharmishthabai Holkar out of her free will, while she was in sound disposing state of mind; (2) Whether the Will dated 4.11.1992 has been acted upon by the parties, if so, its effect; (3) Whether late Maharani Sharmishthabai Holkar had executed only one Will, i.e., dated 23.8.1978 out of her free will while she was in sound disposing state of mind; 14. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pendices attached to the Will having been brought into existence at a later date, the provisions contained in Sections 64, 87 and 103 of the Act will have no application, in the instant case. 17. Testatrix at the time of execution of the Will was 85 years old. She was owner of substantial properties. 18. Although all the four daughters of the testatrix were the beneficiaries of the properties described in Part A of the Will, detailed directions as to how the said estate is to be administered had been made therein. Even in relation to the criteria as regards distribution of assets including the manner in which the tax and other liabilities are to be made and how the investments with banks and others are to be encashed, if necessary to be encashed have been stated. More importantly, however, the shares in the companies were to be held in the joint names of the testatrix as also the joint executors. The executors were to hold the same in trust. Whether the said direction had been carried out and, if so, how and in what manner is not known. Executors had also been granted express power to recall and repossess the jewellery, money or money's wroth possessed by any beneficiary of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Wealth Tax assessment for the year 1992-93 was also annexed by way of a statement showing the market value of the shares of the companies registered in India. Another appendix specified that ACC and TISCO shares were to be equally divided amongst four daughters, viz., as per their average market value on the date of latest Wealth Tax assessment. A statement showing the market value of the shares of the companies registered in U.K. as per the wealth tax assessment for the year 1992-93 was also annexed. In regard to the division thereof, it is stated that each company's share is divided equally amongst my four daughters . Names of the daughters had again been mentioned therein. Statement showing the value of quoted shares as per wealth tax assessment for the year 1992-93 had also been appended, the division whereof were to be done in the following manner: The shares in each company will be divided into six equal divisions. My grand children Gangesh Kumari, Jagat Bingley and Ashish Dalvi will get one Division each and my great grand children are bequeathed three remaining shares as follows - Children of Gangesh Kumari get one division, Children of Jagat Bingley get one divis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... attested, refers to any other document then actually written as expressing any part of his intentions, such document shall be deemed to form a part of the will or codicil in which it is referred to. 30. The rule of incorporation by reference is well-known. One document is incorporated by reference in another when it is referred to, as if it would form an integral part thereof. [See Sarabjit Rick Singh v. Union of India (2008)2SCC417 ]. 31. Principle of incorporation by reference was evolved so as to avoid unnecessary repetition of the same documents again and again in different parts of the original document. For invoking the said principle, a document must be in existence. It cannot be brought into existence later on. The executor of a document must know what the other document which he intends to incorporate in the Will contains. This aspect of the matter has been considered by the House of Lords in William Henry Singleton v. Thomas Tomlinson and Ors. 1878 (3) AC 404, wherein it was held: The question which arose in the Court below was whether in construing the will and in determining what the meaning of the testator was, this schedule could be looked at; and, my Lords, on that p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nevertheless be admitted to probate, since the will is treated as speaking from the date of its re- execution by the codicil; but if the will, treated as speaking at the date of the codicil, still in terms refers to a future document, the document cannot be admitted to probate even though it was in existence at the date of the codicil. [Re Smart [1902] P 238]. 32. Section 87 of the Act provides that testator's intention to be effectuated as far as possible, stating: 87. Testator's intention to be effectuated as far as possible.-The intention of the testator shall not be set aside because it cannot take effect to the full extent, but effect is to be given to it as far as possible. 33. In a case of this nature, however, in our opinion, Section 87 of the Act will have no application. 34. If the appendices formed an integral part of the Will and in their absence the Will was not complete, then the intention of the testator cannot be effectuated. A distinction must be made between an incomplete Will and a complete Will although intention of the testator cannot be effectuated. The testator's intention is collected from a consideration of the whole Will and not from a part of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns of the Indian Succession Act referred to earlier indicate the limits of the Court's power to take note of the testator's declarations and the surroundings circumstances, i.e., evidence of collateral circumstances. [Emphasis Supplied] As regards two inconsistent wills, with the latter being an incomplete one, the judgment of Bagnall, Re [[1948] W.N. 324] necessitates one discussions. In the said case, the testatrix had made two wills, one in 1936 and the other in 1943. In the first will, she gave certain legacies and disposed of the residue. In the second will, she provided legacies of the same amounts and in favour of the same persons but did not dispose of the residue. The second will was not described as a codicil to the first, nor did it expressly revoke it, but it was manifestly incomplete, ended without any stop and in the middle of a sentence and was signed by the testator at the bottom of the page leaving a large gap between the last words and the signature. Probate was granted of both wills. It was held: ( i)Though the second will was far removed in date from the first and was not called the last will , it was intended, at any rate so far as it went, to take the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the instant case inasmuch as appendices appended to the Will clearly specify as to how and in what manner the intention of the testatrix to divide her properties equally amongst her daughters and/ or her grand children was to be implemented. 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 ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... now that authentication of signature and attestation are essential to such validity.] The presumption is slight where the instrument is duly signed and attested, and perfect in all other respects, but must apparently be rebutted by some evidence before it can be admitted to probate. [Per Sir J. Nicholl in Beaty v. Beaty. See also 1 Wms. Exors., Pt. 1., Bk. II , Ch. II, s.2.]. But this doctrine in favour of imperfect papers obtains only where the defect is in regard to some formal act, which the testator has prescribed as necessary for the authentication of his will, and not where it applies to the contents of the instrument; for, if in its actual state the paper contains only a partial disclosure if the testamentary scheme of the deceased, it necessarily fails of effect, even though its completion was prevented by circumstances beyond his control [Montefiore v. Montefiore 23 Ad. 354; see also Griffin v. Griffin 4 Ves. 197, n. This case afforded two sufficient grounds for the rejection of the paper; first, that it was not the whole will; and secondly, that its completion was not prevented by inevitable circumstances]. In short, the presumption is always against a paper which bears s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tatutory conditions imposed by reason of Section 63(c) of the Act and Section 68 of the Indian Evidence Act cannot be ignored. In B. Venkatamuni v. C.J. Ayodhya Ram Singh and Ors. AIR2007SC311 , this Court held: It is, however, well settled that compliance of statutory requirements itself is not sufficient as would appear from the discussions hereinafter made. It was observed: Yet again Section 68 of the Indian Evidence Act postulates the mode and manner in which proof of execution of document which is required by law to be attested stating that the execution must be proved by at least one attesting witness, if an attesting witness is alive and subject to the process of the Court and capable of giving evidence. Yet again in Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao and Ors. AIR2007SC614 , this Court held: Section 63 of the Indian Succession Act lays down the mode and manner of execution of an unprivileged Will. Section 68 of the Indian Evidence Act postulates the mode and manner of execution of document which is required by law to be attested. It in unequivocal terms states that execution of Will must be proved at least by one attesting witness, if an attesting witness is al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be a suspicious circumstance but it is one of the factors which is taken into consideration by the courts before granting probate of a Will. Unlike other documents, even animus attestandi is a necessary ingredient for proving the attestation. In Benga Behera and Anr. v. Braja Kishore Nanda and Ors. (2007)9SCC728 , this Court held: 46. Existence of suspicious circumstances itself may be held to be sufficient to arrive at a conclusion that execution of the Will has not duly been proved. In B. Venkatamuni v. C.J. Ayodhya Ram Singh and Ors. AIR2007SC311 , it was stated: However, having regard to the fact that the Will was registered one and the propounder had discharged the onus, it was held that in such circumstances, the onus shifts to the contestant opposing the Will to bring material on record meeting such prima facie case in which event the onus shifts back on the propounder to satisfy the court affirmatively that the testator did not know well the contents of the Will and in sound disposing capacity executed the same. Each case, however, must be determined in the fact situation obtaining therein. The Division Bench of the High Court was, with respect, thus, entirely wrong in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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