INTERPRETATION OF WILLS-Testamentary sucession

(INDIAN SUCESSION ACT 1925 )

APPLICATION
Sucession is the transmission of property belonging to a person at his death to some
other person or persons. Succession and Inheritance can be of two kinds Testamentary or
testate inheritance which means inheritance as per the Will of the deceased and Non
Testamentary or intestate succession, where the deceased dies without making a Will.
Applicability of the Succession law to a person belonging to a particular community
is explained in the following diagram:

The law on testate succession is governed by the Indian Succession Act, 1925 for all
communities except Muslims. The law in relation to making of wills by Muslims is governed by
the relevant Muslim Shariat Law as applicable to the Shias and the Sunnis. With the exception of
Muslims, the Indian Succession Act, 1925 governs and has a common set of rules for persons of
all religions. However, the Muslims shall be bound by the Indian Succession Act, 1925 for the
purpose of testamentary succession, if the will relates to immovable property situated within the
State of West Bengal and within the jurisdiction of the Madras and Bombay High Courts.
The law on intestate succession for different communities in India is governed by
different succession laws applicable for that particular community. For e.g. the Hindu Succession
Act, Indian Succession Act, Shariat laws etc.
WILLS
Jeremy Bentham in his book Theory of Legislation wrote that the object of giving power
to the owner to dispose off his property by testamentary disposition is to cure the imperfection or
inability of law to satisfy individual demands which may be diverse. He states that
The law, not knowing individuals, cannot accommodate itself to the diversity of their
wants. All that can be exacted from it is to offer the best possible chance of satisfying those

wants. It is for each proprietor, who can and who ought to know the particular circumstances in
which those dependent upon him will be placed upon his death, to correct the imperfection of
law in all those cases which it cannot foresee. The power to make a will is an instrument
intrusted to the hand of the individual, to prevent the private calamities1.
Will is a translation of the Latin word 'voluntas', which was a term used in the text of
Roman Law to express the intention of a testator. It is of significance that the abstract term has
come to mean that document in which the intention is contained. The word 'testament' is derived
from 'testatio menties', it testifies the determination of the mind. It means, 'the legal declaration
of a man's intentions, which will be performed after his death'. A last Will and testament is
defined to be 'the just sentence of our Will, touching what we would have done after our death".
Every testament is consummated by death, and until he dies, the Will of a testator is ambulatory.
A 'Will is an instrument by which a person makes a disposition of his property to take
effect after his decease, and which is in its own nature ambulatory and revocable during his life".
This ambulatory character of a Will has been often pointed out as its prominent characteristic,
distinguishing it, in fact, from ordinary disposition by a living person's deed, which might,
indeed postpone the beneficial possession or even a vesting until the death of the disposer and
yet would produce such postponement only by its express terms under an irrevocable instrument
and a statement that a Will is final does not import an agreement not to change it. A Will is the
aggregate of man's testamentary intentions so far as they are manifested in writing, duly executed
according to the Statute.
A will is a device or an instrument with the help of which an owner of the property
makes a disposition that is to take effect after his death and which by its very nature revocable.
The other reason for such power is that everybody likes to make sure that the life he has led has
been meaningful and is concerned about his property after his death. If a person has power to
dispose off his property during his lifetime, why he should not be give the power to provide for
the scheme of devolution of his property after his death. Rule of natural justice also requires that
he must also be given power that the property he earned with hard labour is disposed by him in
accordance with his wished not only during his life, but after his death too. A person can ensure
as to how his property should devolve and to whom it shall devolve, after his death, through a
Will. This will also help him to have authority over those who depend on him and he can use his
authority to inculcate virtue and control vice in his dependent by fear that if his dictates are not
followed then such dependant will not be getting any share in his property. If a person dies
without leaving behind his Will, his property would devolve by way of law of intestate
succession and not testamentary succession i.e. in accordance to the Will. Will is an important
testamentary instrument through which a testator can give away his property in accordance to his
wishes.
Will means a legal declaration of the intention of a testator with respect to his property
which he desires to be carried into effect after his death. It can be revoked or altered by the
maker of it at any time he is competent to dispose of his property.
'Will' as defined under Section 2(h) of the Indian Succession Act means 'the legal
declaration of the testator with respect to his property which he desires to be carried into effect
after his death'. The essential characteristic of a will, as is well known, is that it is a mere
declaration of an intention so long as the testator is alive, a declaration which may be revoked or
varied by the testator during his lifetime; it is a disposition that requires the testator's death for its
consummation and is but ambulatory or without fixed effect until the happening of this event.

The document is a will if it contains specific words of bequest to come into effect after the death
of the testator.
A will is a solemn document. By it, a dead man entrusts to the living to carry out his
wishes and since it is impossible that he can be called either to admit or deny his signatures or to
explain the circumstances in which it was executed, duty of care is cast on the shoulders of the
court while considering a probate case.
A will made by a Hindu, Buddhist, Sikh or Jain is governed by the provisions of the
Indian Succession Act, 1925. However Muslims are not governed by the Indian Succession Act,
1925 and they can dispose their property according to Muslim Law
ORIGIN OF WILL IN INDIA
The origin of Will in India is shrouded in obscurity. It is still a moot point whether the
British introduced wills to Hindus, or whether Hindus adopted some form of will under the
influence of Muslims. It is certain that with the establishment of British rule in India, the English
Law of wills was applied to Hindu Wills, so far as practicable, under the doctrine of justice,
equity and good conscience3. Among the Muslims wills have been recognized from the
beginning. It seems some forms of wills did exist even in pre-Islamic Arabia.
In India Wills were well known to the Mohammedans and contact with them during the
Mohammedan rule, and later on with the European countries, was probably responsible for the
practice of substituting informal written or oral testamentary instruments with formal
testamentary instruments. The development of law relating to wills among Hindus was mainly
during the British Period. When Indian Succession Act, 1865 was enacted it was not applicable
to Hindus. In 1870, the Hindu Wills Act was passed to provide for rules for execution,
attestation, revocation, revival, interpretation and probate. The Hindu Wills Act was later was
repealed and re-enacted in clause (a) and (b) of Section 57 of Indian Succession Act, 1925. The
Indian Succession Act, 1925, consolidating the laws of intestate (with certain exceptions) and
testamentary succession supersedes the earlier Acts, and is applicable to all the Wills and codicils
of Hindus, Buddhists, Sikhs and Jains .
There is no Sanskrit text dealing with this subject. However a Sanskrit term - `Marana
Shasanam' is mentioned in earlier writings. The reason for the scarcity of the Will in those days
could be attributed to the Hindu orthodox view that the children's rights cannot be debated or
questioned. Decision of the Privy Council (during the British regime) which was the ultimate
court then laid down as law whatever the "Dharmasastran" had empowered - `that a man may
give whatever remains after a certain amount of property is retained for the maintenance of the
family'. Later different states laid down laws concerning the disposition of property. The power
of a Hindu to Will away his property was first recognised in Bengal. The decision of the High
Court of Tamil Nadu confirmed the view that a person could will his or her property, provided it
is not ancestral. Laws relating to the writing of a Will were finally passed in 1925 - with the
passing of the Indian Succession Act which applies to all wills made by a Hindu, Sikh, Buddhist,
Jain etc. throughout India. The Indian Succession Act, 1925, does not govern Muslims and they
can dispose their property according to Muslim Law
The Indian Succession Act came into operation on 30th September 1925 and it seeks to
consolidate all Indian Laws relating to succession. The Act consists of 11 parts, 391 sections and
7 schedules. This Act is applicable to intestate and testamentary succession.
"Succession" means capable of comprehending every kind of passing of property. When the
British settled down to govern India, they were faced with the task of ascertaining the nature and
incidents of the laws to be administered. With reference to the two main communities inhabiting

the country, namely, the Hindus and mohammadans, each of these communities had its own
personallaws embodied in its sacred texts, but there were other smaller sections of the population
which belonged to neither of these communities and in those cases it was not proper to
administer the laws of a religion to which they did not owe any adherence or commitment.
Amongst such minor communities were the Christians and Parsis. It was then the thought of
enactment of law of sucession for the other communities was felt. Thus came the Indian
Succession Law.
CODICIL
Codicil is an instrument made in relation to a Will, explaining, altering or adding to its
dispositions and is deemed to be a part of the Will7. The purpose of codicil is to make some
small changes in the Will, which has already been executed. If the testator wants to change the
names of the executors by adding some other names, or wants to change certain bequests by
adding to the names of the legatees or subtracting some of them, a Codicil in addition to the Will
can be made to do so. The codicil must be reduced to writing and has to be signed by the testator
and attested by two witnesses. It is also the duty of the court to arrive at the intention of the
testator by reading the Will and all the codicils. The codicil and will can be distinguished as the
will representing the primary testamentary document and codicil is one which varies or modifies
the will.
Executor and Administrator: Executor means a person to whom the execution of the last will
of a deceased person is, by the testators appointment confided8. Where as Administrator means
a person appointed by competent authority to administer the estate of a deceased person when
there is no executor9. An executor is appointed by the testator, as distinguished from an
administrator who is appointed by the court. Where the Will confers the powers to collect the
outstanding, pay debts and manage the properties, the person can be said to be appointed as an
executor by implication.
Probate: Probate mean the copy of a will certified under the seal of the court of competent
jurisdiction with a grant of administration to the estate of the testator10. Probate is an evidence
of the appointment of the executor and unless revoked, is conclusive as to the power of the
executor. The grant of probate to the executor however does not confer upon him any title to the
property.
Letter of Administration: Letter of Administration is a certificate granted by the competent
court to an administrator where there exists a Will authorizing him to administer the estate of the
deceased in accordance with the Will. If the Will does not name any executor, an application can
be filed in the court for grant of Letter of Administration for the property.
Attestation: Attesting means signing a document for the purpose of testifying the signature of
the executants. Therefore an attesting witness signing before the executants has put his mark on
the Will, cannot be said to be a valid attestation. It is necessary that both the witnesses must sign
in the presence of the testator but it is not necessary that the testator have to sign in their
presence. Further it is not necessary that both the witnesses have to sign at the same time.
ESSENTIAL FEATURE OF A VALID WILL
A Will can be made at any time in the life of a person. A Will can be changed a number of times
and there are no legal restrictions as to the number of times it can be changed. It can be
withdrawn at anytime during the lifetime of the person making the Will. There are certain
essentials which must be satisfied by any document to be called a will. These essentials are as
follows:

1. Legal Declaration of Intention: The documents purporting to be a Will or a testament must

be legal, i.e. in conformity with the law and must be executed by a person legally competent to
make it. Further the declaration of intention must be with respect to the testators property. It is a
legal document, which has a binding force upon the family.
10 Sec 2(f) of Indian Succession Act, 1
2. Not Confined to Property only: In a Will, the testator bequeaths or leaves his property to the
person or people he chooses to leave his assets/belongings. A Hindu person by way of his Will
can bequeath all his property. The will can also be made to revoke previous will and also for
appointment of testamentary guardian for minor children11. 3. Revocable: A will is by its very
nature revocable which the testator can either revoke directly by making another will or by doing
anything which has the effect of revoking the will i.e. sell the property or make gift.
4. To take effect after the death of testator: The Will is enforceable only after the death of the
testator. Till the death of the testator the beneficiary or the executor has no interest in the
property.
5. Registration not Compulsory: Under section 18 of the Registration Act the registration of a
Will is not compulsory. Also, the SC in Narain Singh v. Kamala Devi12 has held that mere nonregistration of the Will an inference cannot be drawn against the genuiness of the Will. However
it is advisable to register it as it provides strong legal evidence about the validity of the Will.
Once a Will is registered, it is placed in the safe custody of the Registrar and therefore cannot be
tampered with, destroyed, mutilated or stolen.
KINDS OF WILL
Conditional wills: A will may be made with the intention that it shall become operative only
upon the happening of the specified event. Such will not have any effect if condition is not
fulfilled. In Rajeshwar v. Sukhdev, the operation of the Will was postponed till after the death of
the testators wife. The court held that if it is ambiguous whether the testator intended to make a
Will conditional, the language of the documents as well as the circumstances are to be taken into
consideration.
Joint Wills and Mutual Wills: Two or more persons can make a joint Will or mutual will. When
two or more persons make Will by a single instrument, it may be referred to as joint Will. Thus a
joint Will is a single instrument whereby two persons give effect to their testamentary
disposition. On the other hand, a mutual Will is one of two testamentary papers made
respectively by two persons, each giving the other similar rights in his property and being in fact
identical, so far as they can be, for the purpose of carrying out of the intention of the two
testators. In a joint Will there is no reciprocity whereas mutual Wills are described as reciprocal
Wills.
A joint will does not take effect as one will but as separate will of the parties who made it. The
joint Will which is not the mutual will can be revoked by either or both of the parties at anytime
without the consent of other13.
Two or more persons may agree to make mutual Wills i.e. to confer on each other reciprocal
benefits14. In mutual Wills the testators confer benefit on each other but if the legatees and
testators are distinct, it is not a mutual Will. Mutual Wills are also known as reciprocal Wills and
its revocation is possible during the lifetime of either testator. But if a testator has obtained
Reciprocity in the matter of bequests under the Wills is the sigil and signet of a mutual Will. The
testators should confer upon each other reciprocal benefits." A Joint Will is a Will made by two
or more testators contained in a single document, duly executed by each testator, disposing either

of their separate properties, or of their joint property. It operates on the death of each testator as
his Will disposing of his separate property, and is in effect two or more Wills depending upon the
number of testators.
In case of mutual Wills, the testators execute their separate Wills but reading of the two Wills
would show reciprocity in the matter of bequest i.e. testators confer, by their respective wills,
reciprocal benefits upon each other. It is reciprocal will where one testator is the legatee of the
other. A will is mutual when two testators confer upon each other reciprocal benefits, as by either
of them constituting the other his legatee; that is to say, when the executants fill the roles of both
testator and legatee towards each other. But where the legatees are distinct from the testators,
there can be no question of a mutual Will(Kochu Govindan Kaimal and Ors. v. Thayankoot Thekkot Lakshmi
Amma ,AIR1959SC71 )

Mutual Wills may be made, either by a joint Will or by separate Wills, in pursuance of an
agreement that they are not to be revoked. Such an agreement may appear from the Wills, or may
be proved outside the Wills, but it is not established by the mere fact that the Wills are in
identical terms. If no such agreement is shown, each party remains free to revoke his will. If
there are separate Wills, or to revoke the joint Will, so far as it disposes of his property, and the
fact that one party has died without revoking property, and the fact that one party has died
without revoking the disposition of his property does not prevent the survivor from revoking the
disposition which he has made notwithstanding that he has received benefits out of the estate of
the deceased party. Even when there is such an agreement and one party has died after departing
from it by revoking or altering the Will, the survivor having notice of the breach cannot claim to
have the later Will set aside, since the notice gives him the chance of altering the Will as regards
his own property; and the death of the deceased party is itself sufficient notice for this purpose.
If, however, the deceased has stood by the agreement and not revoked or altered his Will, the
survivor is bound by it, and although probate will be granted of a later Will made by him in
breach of the agreement, since a Court of probate is only concerned with the last Will, the
personal representatives of the survivor nevertheless hold his estate in trust to give effect to the
provisions of the joint Will or mutual Wills17."
Privileged and Unprivileged Wills: Privileged Wills are a special category of Wills and other
general Wills are known as unprivileged Wills. S.65 of Indian Succession Act, 1925 provides that
a Will made by a soldier or a airman or a mariner, when he is in actual service and is engaged in
actual warfare, would be a privileged Will. S.66 provides for the mode of making and rules for
executing privileged Wills. Ss. 65 and 66 are special benefit then the claim against his property
will lie. Where joint Will is a single document containing the Wills of two persons, mutual Wills
are separate wills of two persons.
In the case of V. Sarada v. K.V. Narayana Menon, the court described the distinction between
joint Will and mutual Will in the following words:
"A joint will, though for all apparent purposes, is a simple testamentary instrument, constitutes or
unites in the testamentary disposition of two or more persons. The document only evidences that
two or more persons have executed their Wills in a single document. Mutual Wills as
distinguished from joint are described as reciprocal Wills provisions applicable to privileged
Wills whereas other sections relating to Wills are general provisions which will be
supplementary to Sections 65 and 66 in case of privileged Wills. Section 63 of the Indian
Succession Act, 1925 reads as follows:
"63. Execution of unprivileged Wills- Every testator, not being a soldier employed in an
expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at
sea, shall execute his Will according to the following rules-

(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other
person in his presence and by his direction;
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be
so placed that it shall appear that it was intended thereby to give effect to the writing as a Will;
(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign
or affix his mark to the Will or has seen some other person sign the Will, in the presence and by
the direction of the testator, or has received from the testator a personal acknowledgement of his
signature or mark, or of the signature of such other person and each of the witnesses shall sign
the Will in the presence of the testator, but it shall not be necessary that more than one witness be
present at the same time, and no particular form of attestation shall be necessary."
Whereas Sec. 66 provides the Mode of making, and rules for executing, privileged wills. It
provides special rules of execution of the privilege wills. It states that Privileged wills may be in
1writing, or may be made by word of mouth. The execution of privileged wills shall be governed
by the following rules:
(a) The will may be written wholly by the testator, with his own hand. In such case it need not be
signed or attested.
(b) It may be written wholly or in part by another person, and signed by the testator. In such case
it need not be attested.
(c) If the instrument purporting to be a will is written wholly or in part by another person and is
not signed by the testator, it shall be deemed to be his will, if it is shown that it was written by
the testator's directions or that he recognised it as his will.
(d) If it appears on the face of the instrument that the execution of it in the manner intended by
the testator was not completed, the instrument shall not, by reason of that circumstance, be
invalid, provided that his non-execution of it can be reasonably ascribed to some cause other than
the abandonment of the testamentary intentions expressed in the instrument.
(e) If the soldier, [airman] or mariner has written instructions for the preparation of his will, but
has died before it could be prepared and executed, such instructions shall be considered to
constitute his will.
(f) If the soldier, [airman] or mariner has, in the presence of two witnesses, given verbal
instructions for the preparation of his will, and they have been reduced into writing in his
lifetime, but he has died before the instrument could be prepared and executed, such instructions
shall be considered to constitute his will, although they may not have been reduced into writing
in his presence, nor read over to him.
g) The soldier, [airman] or mariner may make a will by word of mouth by declaring his
intentions before two witnesses present at the same time. The privileged will made by word of
mouth shall be null at the expiration of one month after the testator, being still alive, has ceased
to be entitled to make a privileged will.
TESTAMENTARY CAPACITY
S.59 of Indian Succession Act, 1925 provides for the capacity of person to make a will. It states
that every person who is of Sound mind not being a minor may dispose of his property by will.
So there are two main requirements which a person must satisfy for making a will. These are
majority and soundness of mind.
Sound Mind: U/s. 59 of ISA the existence of a sound mind is a sine quo non for the validity of
the Will. Most of the Wills are not made by young persons who are fully fit but are made by

persons who are aged and bed ridden. Hence, law does not expect that the testator should be in a
perfect state of health, or that he should be able to give complicated instructions as to how his
property was to be distributed.
A sound disposing mind implies sufficient capacity to deal with and understand the disposition of
property in his Will
1) the testator must understand that he is giving away his property to one or more objects
2) he must understand and recollect the extent of his property.
3) he must also understand the persons and the extent of claims included as well as those who
are excluded from the Will. The testator must retain a degree of understanding to comprehend
what he is doing, and have volition or power of choice.
Explanation II provides that the persons who are deaf, dumb or blind can prepare a Will if they
are able to prove that they were aware of what they were doing.
Explanation III provides for persons who are mentally ill and insane. However subsequent
insanity does not make the Will invalid i.e. if a person makes a Will while he is of sound mind
and then subsequently becomes insane the Will is valid and is not rendered invalid by subsequent
insanity. Further a person of unsound mind can make a Will during his lucid interval. A Will
made by a person who is intoxicated or is suffering from any other illness, which renders him
incapable of knowing what he is doing, is invalid.
Majority: A minor who has not completed the age of 18 years or 21yrs if any Guardian has been
appointed by the Court is not capable of making Wills. The onus of proof on determining
whether the person was not a minor at the time of making a Will is on the person who has relied
upon the Will.
Married Hindu Women: Explanation I to S.59 of ISA provides that a Hindu married woman is
capable of disposing by Will only that property which she can alienate during her lifetime.
Burden Of Proof: Though the burden of proof to prove that the Will was made out of free
volition is on the person who propounds the Will, a Will that has been proved to be duly signed
and attested will be presumed to have been made by a person of sound mind, unless proved
otherwise. Further, a bequest can be made to an infant, an idiot, a lunatic or other disqualified
person as it is not necessary that the legatee should be capable of assenting it.
In case of H. Venkatachala Iyengar v. B.N. Thimtnajamma & Ors19., AIR 1959 SC 443, the
principles guiding the Courts for consideration of suspicious circumstances of a Will in question
were discussed and they still stand the test of the day even today. It was observed: (20) There
may, however, be cases in which the execution of the Will may be surrounded by suspicious
circumstances. The alleged signature of the testator may be very shaky and doubtful and
evidence in support of the propounder's case that the signature in question is the signature of the
testator may not remove the doubt created by the appearance of the signature; the condition of
the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not
succeed in removing the legitimate doubt as to the mental capacity of the testator; the
dispositions made in the Will may appear to be unnatural, improbable or unfair in the light of
relevant circumstances or, the Will may otherwise indicate that the said dispositions may not be
the result of the testator's free will and mind. In such cases the Court would naturally expect that
all legitimate suspicions should be completely removed before the document is accepted as the
last Will of the testator. The presence of such suspicious circumstances naturally tends to make
the initial onus very heavy; and, unless it is satisfactorily discharged, Courts would be reluctant
to treat the document as the last Will of the testator. It is true that, if a caveat is filed alleging the
exercise of undue influence, fraud or coercion in respect of the execution of the Will propounded,

such pleas may have to be proved by the caveators; but, even without such pleas circumstances
may raise a doubt as to whether the testator was acting of his own free Will in executing the Will,
and in such circumstances, it would be a part of the initial onus to remove any such legitimate
doubts in the matter.
It was further observed20:
(21) Apart from the suspicious circumstances to which we have just referred in some cases, the
Wills propounded disclose another infirmity. Propounders themselves take a prominent part in
the execution of the Wills which confer on them substantial benefits. If it is shown that the
propounder has taken a prominent part in the execution of the Will and has received substantial
benefit under it, that itself is generally treated as a suspicious circumstance attending the
execution of the Will and the propounder is required to remove the said suspicion by clear and
satisfactory evidence. It is in connection with Wills that present such suspicious circumstances
that decisions of English Courts often mention the test of the satisfaction of judicial conscience.
It may be that the reference to judicial conscience in this connection is a heritage from similar
observations made by ecclesiastical Courts in England when they exercised jurisdiction with
reference to Wills; but any objection to the use of the word 'conscience' in this context would, in
our opinion be purely technical and academic, if not pedantic. The test merely emphasises that,
in determining the question as to whether an instrument produced before the Court is the last
Will of the testator, the Court is deciding a solemn question and it must be fully satisfied that it
had been validly executed by the testator who is no longer alive.
6. Restriction on Wills Certain restrictions have been imposed on certain categories of wills
which has been declared void on the ground of public policy. These are those wills which were
made to person who are not in existence at the time of making of will. The other kind is will
creating perpetuity.
Unborn Person: Where a bequest is made to a person by a particular description, and there is no
person in existence at the testator's death who answers that description, the bequest is void. S.113
of Indian Succession Act, 1925 provides that for a transfer to an unborn person, a prior interest
for life has to be created in another person and the bequest must comprise of whole of the
remaining interest of the testator. In Sopher v. Administrator-General of Bengal a grandfather
made the bequest to his grandson who was yet to be born, by creating a prior interest in his son
and daughter in law. The Court upheld the transfer to an unborn person and the Court held that
since the vested interest was transferred when the grandsons were born and only the enjoyment
of possession was postponed till they achieved the age of twenty one the transfer was held to be
valid.
In case of Girish Dutta v. Datadin, the Will stated that the property was to be transferred to a
female descendant (who was unborn) only if the person did not have any male descendant. The
Court held that since the transfer of property was dependent on the condition that there has to be
no male descendant, the transfer of interest was limited and not absolute and thereby the transfer
was void. For a transfer to a unborn person to be held valid, absolute interest needs to be
transferred and it cannot be a limited interest.
Rule against Perpetuity: S.114 of the Indian Succession Act, 1925 provides that no bequest is
valid whereby the vesting of the thing bequeathed may be delayed beyond the lifetime of one or
more persons living at the testator's death and the minority of some person who shall be in
existence at the expiration of that period, and to whom, if he attains full age, the thing
bequeathed is to belong. The rule against perpetuity provides that the property cannot be tied for
an indefinite period. The property cannot be transferred in an unending way. The rule is based on

the considerations of public policy since property cannot be made inalienable unless it is in the
interest of the community. The rule against perpetuity invalidates any bequest which delays
vesting beyond the life or lives-in-being and the minority of the donee who must be living at the
close of the last life. Hence property can be transferred to an unborn person who has to be born at
the expiration of the interest created and the maximum permissible remoteness is of 18 years i.e
the age of minority in India
INVALID WILLS
S.61 of ISA provides that a Will, or any part of Will made, which has been caused by fraud or
coercion or by such importunity, basically not by free will, will be void and the Will would be set
aside.
Fraud: S.17 of the Indian Contract Act provides for fraud. Actual fraud can be committed through 1)
misrepresentation 2) concealment. Fraud in all cases implies a willful act on the part of anyone
whereby, another is sought to be deprived by illegal or inequitable means, of which he is entitled to.
But if a legatee by flattery, succeeds in persuading a testator to make a will in his favour that will be
upheld unless it is tainted with fraud 23.
Coercion: S.15 of Indian Contract Act defines coercion. Any force or fear of death, or of bodily hurt
or imprisonment would invalidate a Will. In case of Chikam Ameeraju v. Chikam Sheshama 24, a man
threatening to commit suicide induced his wife and son to give him a release deed. It was held that
even though suicide was not punishable by the Indian Penal Code yet it was forbidden by law and
hence the release deed must be set aside as having been obtained by coercion.
Undue influence: u/s.16 of Indian Contract Act is said to be exercised when the relations existing
between the two parties are such that one of the parties is in the position to dominate the will of the
other and uses that position to obtain an unfair advantage over the other. However neither fiduciary
relationship nor a dominating position would raise a presumption of undue influence in case of Wills
as all influences are not unlawful. Persuasion on the basis of affection or ties is lawful. The influence
of a person in fiduciary relationship would be lawful so long as the testator understands what he is
doing. Thus it can be said that a testator maybe led but cannot be driven. The influence by religious
preceptor or spiritual adviser or guide may also become undue Influence. 25 Uncertainty: S.89 of
Indian Succession Act, 1925 states that if the Will were uncertain as regards either to the object or
subject of the Will then it would be invalid. The Will may express some intention but if it is vague
and not definite then it will be void for the reason of uncertainty. The Will may depose of the
property absurdly or irrationally i.e the intention maybe irrational or unreasonable, but that does not
make it uncertain. For uncertainty to be proved it has to be proved that the intention declared by the
testator in the Will is not clear as to what is he giving or whom is he giving. Only if the uncertainty
goes to the very root of the matter, then only the Will has to be held void on the grounds of
uncertainty.
Non-happening of Contingency: S. 124 of Indian Succession Act, 1925 provides that a contingent
legacy can take effect only on happening of that contingency. A conditional Will is that will which is
dependent on the happening of a specific condition the non happening of which would make the Will
inoperative. S.126 of Indian Succession Act, 1925 provides that a bequest upon an impossible
condition is void. The conditions maybe condition precedent or condition subsequent.
Illegal or Immoral: S.127 of Indian Succession Act, 1925 provides that a bequest, which is based
upon illegal or immoral condition, is void. The condition which is contrary, forbidden, or defeats any
provision of law or is opposed to public policy, then the bequest would be invalid. A condition
absolutely restraining marriage would also make the bequest void. S.138 of ISA provides that the
direction provided in the Will as to the manner in which the property bequeathed is to be enjoyed
then the direction would be void though the Will would be valid.

REVOCATION, ALTERATION AND EXECUTION OF WILLS

Revocation: S.62 of the Indian Succession Act deals with the characteristic of a Will being revocable
or altered anytime during the lifetime of the testator. S. 70 of the Act provides the manner in which it
can be revoked. A mere intention to revoke is not an effective revocation. The revocation of the Will
should be in writing and an express revocation clause would revoke all the prior Wills and codicils. If
there is no express clause to the effect then the former Will would become invalid to the extent of its
inconsistency with the latest Will, this is known as an implied revocation (however it should be
shown that the differences are irreconcilable). However if there is no inconsistency between the Wills
then they cannot be considered as two separate Wills but the two must be read together to indicate the
testamentary intention of the testator. Revocation can also be made in writing through declaring an
intention to revoke and the writing must be signed by the testator and attested by two witnesses. The
deed of revocation has to be executed in the same way as the Will itself. The Will maybe burnt or
torn by the testator or by some other person in his presence and by his direction with the intention of
revoking the same. The burning of the Will must be actual and not symbolic. The burning must
destroy the Will atleast to the extent of his entirety. Further the Will need not be torn into pieces. It
would be sufficient if it is slightly torn with the intent of revocation. The Will can be revoked
expressly by another Will or codicil, by implied revocation, by some writing, by burning or tearing or
by destroying otherwise. Cancellation of a Will by drawing lines across it is not a mode of
revocation. Sec 69 provide that will is revoked by the marriage of the testator but under the Hindu
Law the Will is not revoked by marriage or by subsequent birth.
Alteration: S.71 of ISA is applicable to alterations if they are made after the execution of the Will
but not before it. The said section provides that any obliteration, interlineations or any other
alteration in a Will made after its execution is inoperative unless the alteration is accompanied by the
signatures of the testator and the attesting witnesses or it is accompanied by a memorandum signed
by the testator and by the attesting witnesses at the end of the Will or some other part referring to the
alterations. The alterations if executed as required by the section would be read as a part of the Will
itself. However, if these requirements are not fulfilled then the alterations would be considered to be
invalid and the probate will be issued omitting the alterations. The signatures of the testator and the
attesting witnesses must be with regards to the alteration and must be in proximity of the alteration.
Further they should be in the Will itself and not in a separate distinct paper. But if the obliteration is
such that the words cannot be deciphered then the Will would be considered as destroyed to that
extent.
Execution: On the death of the testator, an executor of the Will (executor is the legal representative
for all purposes of a deceased person and all the property of a testator vests in him. Whereas a trustee
becomes a legal owner of the trust and his office and the property are blended together) or an heir of
the deceased testator can apply for probate. The court will ask the other heirs of the deceased if they
have any objections to the Will. If there are no objections, the court grants probate. A probate is a
copy of a Will, certified by the court. A probate is to be treated as conclusive evidence of the
genuineness of a Will. It is only after this that the Will comes into effect.
CONSTRUCTION OF WILLS
S.74 of ISA provides that a Will maybe made in any form and in any language. No technical words
need to be used in making a Will but if technical words are used it is presumed that they are in used
in their legal sense unless the context indicates otherwise. Any want of technical words or accuracy
in grammar is immaterial as long as the intention is clear. Another general principle applied is that
the Will is to be so read as to lead to a testacy and not intestacy i.e if two constructions are possible
then the construction that avoids intestacy should be followed. Further there is another principle,
which says that the construction that postpones the vesting of legacy in the property disposed should
be avoided. The intention of the testator should be decided after construing the Will as a whole and

not the clauses in isolation. In Ganabal Ammal v. T. Raju Aiyar the Supreme Court held that the
cardinal maxim to be observed by the Court in construing a Will is the intention of the testator. This
intention is primarily to be gathered from the language of the document, which is to be read as a
whole.
The primary duty of the court is to determine the intention of the testator from the Will itself by
reading of the Will. The SC in Bhura v. Kashi Ram held that a construction which would advance
the intention of the testator has be favoured and as far as possible effect is to be given to the
testators intention unless it is contrary to law. The court should put itself in the armchair of the
testator (emphasis added).
In Navneet Lal v. Gokul and ors Supreme Court held that the court should consider the surrounding
circumstances, the position of the testator, his family relationships, the probability that he would use
words in a particular sense. However it also held that these factors are merely an aid in ascertaining
the intention of the testator. The Court cannot speculate what the testator might have intended to
write. The Court can only interpret in accordance with the express or implied intention of the testator
expressed in the Will. It cannot recreate or make a Will for the testator.
In Kalvelikkal Ambunhi v. H. Ganesh Bhandary , it was observed that a Will may contain several
clauses and the latter clause may be inconsistent with the earlier clause. In such a situation, the last
intention of the testator is given effect to and it is on this basis that the latter clause is held to prevail
over the earlier clause. Sec.88 of the Indian Succession Act, 1925 provide the same.
Following principles have been held to be well established in relation to the construction of wills as in
Uma Devi Nambiar and Others v. T.C. Sidhan (Dead) 2004 (2) SCC 321:
(1) In construing a document whether in English or in vernacular the fundamental rule is to ascertain
the intention from the words used; the surrounding circumstances are to be considered; but that is
only for the purpose of finding out the intended meaning of the words which have actually been
employed.
(2) In construing the language of the Will the Court is entitled to put itself into the testator's armchair
and is bound to bear in mind also other matters than merely the words used. It must consider the
surrounding circumstances, the position of the testator, his family relationship the probability that he
would use words in a particular sense. But all this is solely as an aid to arriving at a right construction
of the Will and to ascertain the meaning of its language when used by that particular testator in that
document.
(3) The true intention of the testator has to be gathered not by attaching importance in isolated
expressions but by reading the Will as a whole with all its provisions and ignoring none of them as
redundant or contradictory.
(4) The Court must accept, if possible such construction as would give to every expression some
effect rather than that which would render any of the expressions inoperative. The Court will look at
the circumstances under which the testator makes his Will, such as the state of his property of his
family and the like. Where apparently conflicting dispositions can be reconciled by giving full effect
to every word used in a document, such a construction should be accepted instead of a construction
which would have the effect of cutting down the clear meaning of the words used by the testator.
Further where on the two reasonable constructions would lead to intestacy that should be discarded in
favour of a construction which does not create any such hiatus.
(5) To the extent that it is legally possible, effect should be given to every disposition contained in the
Will unless the law prevents effect being given to it. Of course, if there are two repugnant provisions
conferring successive interests, if the first interest created is valid the subsequent interest cannot take
effect but a Court of construction will proceed to the farthest extent to avoid repugnancy so that
effect could be given as far as possible to every testamentary intention contained in the Will.
The following section deals with the interpretation of wills under the Indian sucession Act .

S.74. Wording of will. -It is not necessary that any technical words or terms of art be used in a
will, but only that the wording be such that the intentions of the testator can be known therefrom.
S.75. Inquiries to determine questions as to object or subject of will. -For the purpose of
determining questions as to what person or what property is denoted by any words used in a will,
a Court shall inquire into every material fact relating to the persons who claim to be interested
under such will, the property which is claimed as the subject of disposition, the circumstances of
the testator and of his family, and into every fact a knowledge of which may conduce to the right
application of the words which the testator has used.
Illustrations
(i) A, by his will, bequeaths 1,000 rupees to his eldest son or to his youngest grandchild, or to
his cousin, Mary. A Court may make inquiry in order to ascertain to what person the description
in the will applies.
(ii) A, by his will, leaves to B "my estate called Black Acre". It may be necessary to take
evidence in order to ascertain what is the subject-matter of the bequest; that is to say, what estate
of the testator's is called Black Acre.
(iii) A, by his will, leaves to B "the estate which I purchased of C". It may be necessary to take
evidence in order to ascertain what estate the testator purchased of C.
S.76. Misnomer or misdescription of object. -(1) Where the words used in a will to designate
or describe a legatee or a class of legatees sufficiently show what is meant, an error in the name
or description shall not prevent the legacy from taking effect.
(2) A mistake in the name of a legatee may be corrected by a description of him, and a mistake in
the description of a legatee may be corrected by the name.
Illustrations
(i) A bequeaths a legacy to "Thomas, the second son of my brother John". The testator has an
only brother named John, who has no son named Thomas, but has a second son whose name is
William. William will have the legacy.
(ii) A bequeaths a legacy "to Thomas, the second son of my brother John". The testator has an
only brother, named John, whose first son is named Thomas and whose second son is named
William. Thomas will have the legacy.
(iii) The testator bequeaths his property "to A and B, the legitimate children of C". C has no
legitimate child, but has two illegitimate children, A and B. The bequest to A and B takes effect,
although they are illegitimate.
(iv) The testator gives his residuary estate to be divided among "my seven children" and,
proceeding to enumerate them, mentions six names only. This omission will not prevent the
seventh child from taking a share with the others.
(v) The testator, having six grandchildren, makes a bequest to "my six grandchildren" and,
proceeding to mention them by their Christian names, mentions one twice over omitting another
altogether The one whose name is not mentioned will take a share with the others.
(vi) The testator bequeaths "1,000 rupees to each of the three children of A". At the date of the
will A has four children. Each of these four children will, if he survives the testator, receive a
legacy of 1,000 rupees.
S.77. When words may be supplied. -Where any word material to the full expression of the
meaning has been omitted, it may be supplied by the context.
Illustration
The testator gives a legacy of "five hundred" to his daughter A and a legacy of "five hundred
rupees" to his daughter B. A will take a legacy of five hundred rupees.

S.78. Rejection of erroneous particulars in description of subject. If the thing which the testator intended to bequeath can be sufficiently identified from the
description of it given in the will, but some parts of the description do not apply, such parts of the
description shall be rejected as erroneous, and the bequest shall take
effect.
Illustrations
(i) A bequeaths to B "my marsh-lands lying in L and in the occupation of X". The testator had
marsh-lands lying in L but had no marsh-lands in the occupation of X. The words "in the
occupation of X" shall be rejected as erroneous, and the marsh-lands of the testator lying in L
will pass by the bequest.
(ii) The testator bequeaths to A "my zamindari of Rampur". He had an estate at Rampur but it
was a taluq and not a zamindari. The taluq passes by this bequest.
S.79. When part of description may not be rejected as erroneous. If a will mentions several
circumstances as descriptive of the thing which the testator intends to bequeath, and there is any
property of his in respect of which all those circumstances exist, the bequest shall be considered
as limited to such property, and it shall not be
lawful to reject any part of the description as erroneous, because the testator had other property
to which such part of the description does not apply.
Explanation.--In judging whether a case falls within the meaning of this section, any words
which would be liable to rejection under section 78 shall be deemed to have been struck out of
the will.
Illustrations
(i) A bequeaths to B "my marsh-lands lying in L and in the occupation of X". The testator had
marsh-lands lying in L, some of which were in the occupation of X, and some not in the
occupation of X. The bequest will be considered as limited to such of the testator's marsh-lands
lying in L as were in the occupation of X.
(ii) A bequeaths to B "my marsh-lands lying in L and in the occupation of X, comprising 1,000
bighas of lands". The testator had marsh-lands lying in L some of which were in the occupation
of X and some not in the occupation of X. The measurement is wholly inapplicable to the
marsh-lands of either class, or to the whole taken together. The measurement will be considered
as struck out of the will, and such of the testator's marsh-lands lying in L as were in the
occupation of X shall alone pass by the bequest.
S.80. Extrinsic evidence admissible in cases of patent ambiguity. Where the words of a will are unambiguous, but it is found by extrinsic evidence that they admit
of applications, one only of which can have been intended by the testator, extrinsic evidence may
be taken to show which of these applications was intended.
Illustrations
(i) A man, having two cousins of the name of Mary, bequeaths a sum of money to "my cousin
Mary". It appears that there are two persons, each answering the description in the will. That
description, therefore, admits of two applications, only one of which can have been intended by
the testator. Evidence is admissible to show which of the two applications was intended.
(ii) A, by his will, leaves to B "my estate called Sultanpur Khurd". It turns out that he had two
estates called Sultanpur Khurd. Evidence is admissible to show which estate was intended.
S.81. Extrinsic evidence inadmissible in case of patent ambiguity or deficiency. -Where there
is an ambiguity or deficiency on the face of a will, no extrinsic evidence as to the intentions of
the testator shall be admitted.

Illustrations
(i) A man has an aunt, Caroline, and a cousin, Mary, and has no aunt of the name of Mary. By his
will he bequeaths 1,000 rupees to "my aunt, Caroline" and 1,000 rupees to "my cousin, Mary"
and afterwards bequeaths 2,000 rupees to "my before-mentioned aunt, Mary". There is no person
to whom the description given in the will can apply, and evidence is not admissible to show who
was meant by "my beforementioned aunt, Mary". The bequest is therefore void for uncertainty
under section 89.
(ii) A bequeaths 1,000 rupees to leaving a blank for the name of the legatee. Evidence is not
admissible to show what name the testator intended to insert.
(iii) A bequeaths to B rupees, or "my estate of ". Evidence is not admissible to show what sum or
what estate the testator intended to insert.
S.82. Meaning of clause to be collected from entire will. The meaning of any clause in a will
is to be collected from the entire instrument, and all its parts are to be construed with reference to
each other.
Illustrations
(i) The testator gives to B a specific fund or property at the death of A, and by a subsequent
clause gives the whole of his property to A. The effect of the several clauses taken together is to
vest the specific fund or property in A for life, and after his decease in B;
it appearing from the bequest to B that the testator meant to use in a restricted sense the words in
which he describes what he gives to A.
(ii) Where a testator having an estate, one part of which is called Black Acre, bequeaths the
whole of his estate to A, and in another part of his will bequeaths Black Acre to B, the latter
bequest is to be read as an exception out of the first as if he had said "I give Black Acre to B, and
all the rest of my estate to A".
S.83. When words may be understood in restricted sense, and when in sense wider than
usual. -General words may be understood in a restricted sense where it may be collected from
the will that the testator meant to use them in a restricted sense; and words may be understood in
a wider sense than that which they usually bear, where
it may be collected from the other words of the will that the testator meant to use them in such
wider sense.
Illustrations
(i) A testator gives to A "my farm in the occupation of B," and to C "all my marsh-lands in L".
Part of the farm in the occupation of B consists of marsh-lands in L, and the testator also has
other marshlands in L. The general words, "all my marsh-lands in L," are restricted by the gift to
A. A takes the whole of the farm in the occupation of B, including that portion of the farm which
consists of marsh-lands in L.
(ii) The testator (a sailor on ship-board) bequeathed to his mother his gold ring, buttons and chest
of clothes, and to his friend, A (a shipmate), his red box, clasp-knife and all things not before
bequeathed. The testator's share in a house does not pass to A under this bequest.
(iii) A, by his will, bequeathed to B all his household furniture, plate, linen, china, books,
pictures and all other goods of whatever kind; and afterwards bequeathed to B a specified part of
his property. Under the first bequest B is entitled only to such articles of the testator's as are of
the same nature with the articles therein enumerated.
S.84. Which of two possible constructions preferred. -Where a clause is susceptible of two
meanings according to one of which it has some effect, and according to the other of which it can
have none, the former shall be preferred.

S.85. No part rejected, if can be it reasonably construed. -No part of a will shall be rejected as
destitute of meaning if it is possible to put a reasonable construction upon it.
S.86. Interpretation of words repeated in different parts of will. - If the same words occur in
different parts of the same will, they shall be taken to have been used everywhere in the same
sense, unless a contrary intention appears.
S.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.
Illustration
The testator by a will made on his death-bed bequeathed all his property to C. D. for life and
after his decease to a certain hospital. The intention of the testator cannot take effect to its full
extent because the gift to the hospital is void under section 118, but
it will take effect so far as regards the gift to C. D.
S.88. The last of two inconsistent clauses prevails. -Where two clauses of gifts in a will are
irreconcileable, so that they cannot possibly stand together, the last shall prevail.
Illustrations
(i) The testator by the first clause of his will leaves his estate of Ramnagar "to A," and by the last
clause of his will leaves it "to B and not to A". B will have it.
(ii) If a man, at the commencement of his will gives his house to A, and at the close of it directs
that his house shall be sold and the proceeds invested for the benefit of B, the latter disposition
will prevail
THE GOLDEN RULE IN INTERPRETING A WILL
The golden rule in interpreting a will is to give effect to the testator's intention as
ascertained from the language, which he has used. The overriding duty of a Court is to construe
the language which the testator has in fact employed giving due weight to all the words and
rejecting none to which a meaning can reasonably be assigned. The Court is entitled to put itself
into the testator's arm chair to construe a will and to form an opinion apart from the decided
cases and then, to see whether those decisions require any modification of that opinion and not to
beckon by considering as to how far the will in question resemble other will upon which the
decisions have been given. The proposition that the will has to be read as a whole cannot be
disputed. Whether there is a will on the basis of the document, the probate Court certainly will
not proceed to consider as to whether or not the disposition of the property was good or bad. The
primary duty of the probate Court is to see first whether prima facie, the document constituted a
will.
A bench comprising Justice Markandey Katju and Justice T.S. Thakur has explained the
law regarding the interpretation of contradictory stipulations in Wills.. The Supreme Court has
discussed the aforesaid concept in detail and have culled out the principles of interpretation
invloved in such cases.
In (Kunwar) Rameshwar Bakhsh Singh's case (supra) the Privy Council held that where
an absolute estate is created by a Will in favour of the devisee, other clauses in the Will which
are repugnant to such absolute estate cannot cut down the estate; but must be held to be invalid.
The following passage summed up the law on the subject: "Where an absolute estate is created
by a Will in favour of the devisee, the clauses in the Will which are repugnant to such
absolute estate cannot cut down the estate; but they must be held to be invalid."

In Radha Sundar Dutta's case (supra), this Court was dealing with a situation where there
was a conflict between two clauses appearing in the Will. This Court ruled in favour of the
earlier clause, holding that the later clause would give way to the former. This Court said:
"..........where there is a conflict between the earlier clause and the later clauses and it is not
possible to give effect to all of them, then the rule of construction is well established that it is the
earlier clause that must override the later clauses and not vice versa".
The issue came up for consideration once again before a Constitution Bench of this Court
in Ramkishore Lal's case (supra). In that case too the Court was concerned with the approach to
be adopted in a matter where a conflict arises between what is said in one part of the testament
vis-`-vis what is stated in another part of the same document especially when in the earlier part
the bequest is absolute but the latter part of the document gives a contrary direction about the
very same property. This Court held that in the event of such a conflict the absolute title
conferred upon the legatee by the earlier clauses appearing in the Will cannot be diluted or taken
away and shall prevail over directions contained in the latter part of the disposition. The
following passage from the decision is instructive: "The golden rule of construction, it has been
said, is to ascertain the intention of the parties to the instrument after considering all the words,
in their ordinary, natural sense. To ascertain this intention the Court has to consider the relevant
portion of the document as a whole and also to take into account the circumstances under which
the particular words were used. Very often the status and the training of the parties using the
words have to be taken into consideration. It has to be borne in mind that very many words are
used in more than one sense and that sense differs in different circumstances. Again, even where
a particular word has, to a trained conveyancer, a clear and definite significance and one can be
sure about the sense in which such conveyancer would use it, it may not be reasonable and
proper to give the same strict interpretation of the word when used by one who is not so equally
skilled in the art of conveyancing. Sometimes it happens in the case of documents as regards
disposition of properties, whether they are testamentary or non-testamentary instruments, that
there is a clear conflict between what is said in one part of the document and in another. A
familiar instance of this is where in an earlier part of the document some property is given
absolutely to one person but later on, other directions about the same property are given which
conflict with and take away from the absolute title given in the earlier portion. What is to be done
where this happens? It is well settled that in case of such a conflict the earlier disposition of
absolute title should prevail and the later directions of disposition should be disregarded as
unsuccessful attempts to restrict the title already given. Also in Sahebzada Mohd. Kamgar
Shah v. Jagdish Chandra Deo Dhabal Deo (1960) 3 SCR 604. It is clear, however, that an
attempt should always be made to read the two parts of the documents harmoniously, if possible.
It is only when this is not possible, e.g., where an absolute title is given is in clear and
unambiguous terms and the later provisions trench on the same, that the later provisions have to
be held to be void."
To the same effect is the decision of this Court in Mauleshwar Mani's case (supra) where
the question once again was whether an absolute interest created in the property by the Testatrix
in the earlier part of the Will can be taken away or rendered ineffective by the subsequent
bequest which is repugnant to the first bequest. Answering the question in the negative, this
Court held that once the testator has given an absolute right and interest in his entire property to a
devisee it is not open to him to further bequeath the very same property in favour of the second
set of persons. The following passage from the decision in this regard is apposite:

"In view of the aforesaid principles that once the testator has given an absolute right and
interest in his entire property to a devisee it is not open to the testator to further bequeath the
same property in favour of the second set of persons in the same will, a testator cannot create
successive legatees in his will. The object behind is that once an absolute right is vested in the
first devisee the testator cannot change the line of succession of the first devisee. Where a
testator having conferred an absolute right on anyone, the subsequent bequest for the same
property in favour of other persons would be repugnant to the first bequest in the will and has to
be held invalid.we are, therefore, of the view that once the testator has given an absolute estate in
favour of the first devisee it is not open to him to further bequeath the very same property in
favour of the second set of persons."
In Pearey Lal's case (supra), this Court held that while interpreting a Will the Court must
take the document as a whole with a view to harmonizing apparently conflicting stipulations.
This Court recognized the following guiding principles in the matter of interpretation of Wills:
"(i) the intention of the testator by reading the will as a whole and if possible, such construction
as would give to every expression some effect rather than that which could render any of the
expression inoperative must be accepted; (ii) another rule is that the words occurring more than
once in a will shall be presumed to be used always in the same sense unless a contrary intention
appears from the will; (iii) all parts of a will should be construed in relation to each other; (iv)
the court will look at the circumstances under which the testator makes his will, such as the state
of his property, of his family and the like; (v) where apparently conflicting dispositions can be
reconciled by giving full effect to every word used in a document, such a construction should be
accepted instead of a construction which would have the effect of cutting down the clear
meaning of the words used by the testator; (vi) where one of the two reasonable construction
would lead to intestacy, that should be discarded in favour of a construction which does not
create any such hiatus."
In Ramachandra Shenoy's case (supra) this Court was dealing with a case where the
Testatrix had made a Will in favour of her daughter and a gift over in favour of her (daughter's)
male children. The relevant portion of the Will was translated in English to the following effect:
"All these (properties) shall after me be enjoyed by my elder daughter Severina Sabina and after
her lifetime by her male children too as permanent and absolute hukdars."
The question was whether the Testatrix had made an absolute bequest to the daughter or
created only a life interest followed by an absolute bequest in favour of the grandsons of the
Testatrix. This Court held on an interpretation of the bequest that what was created in favour of
the daughter was only a life estate and that the intention of the Testatrix was to make an absolute
bequest in favour of her grandsons through her daughter. The following passage from the
decision is in this regard apposite:
"It was common ground that under clause 3(c) the testatrix intended to confer an absolute
and permanent interest on the male children of her daughter, though if the contentions urged by
the appellants were accepted the legacy in their favour would be void because there could legally
be no gift over after an absolute interest in favour of their mother. This is on the principle that
where property is given to A absolutely, then whatever remains of A's death must pass to his heirs
or under his will and any attempt to sever the incidents from the absolute interest by prescribing
a different destination must fail as being repugnant to the interest created. But the initial question
for consideration is whether on a proper construction of the will an absolute interest in favour
Severina is established. It is one of the cardinal principles of construction of wills that to the
extent that it is legally possible effect should be given to every disposition contained in the will

unless the law prevents effect being given to it. Of course, if there are two repugnant provisions
conferring successive interests, if the first interest created is valid the subsequent interest cannot
take effect but a Court of construction will proceed to the farthest extent to avoid repugnancy, so
that effect could be given as far as possible to every testamentary intention contained in the will.
It is for this reason that where there is a bequest to A even though it be in terms
apparently absolute followed by a gift of the same to B absolutely "on" or "after" or "at" A's
death, A is prima facie held to take a life interest and B an interest in remainder, the apparently
absolute interest of A being cut down to accommodate the interest created in favour of B. In the
present case if, as has to be admitted, the testatrix did intend to confer an absolute interest in the
male children of Severina the question is whether effect can or cannot be given to it. If the
interest of Severina were held to be absolute no doubt effect could not be given to the
said intention. But if there are words in the will which on a reasonable construction would denote
that the interest of Severina was not intended to be absolute but was limited to her life only, it
would be proper for the Court to adopt such a construction, for that would give effect to every
testamentary disposition contained in the will. It is in that context that the words 'after her
lifetime' occurring in clause 3(c) assume crucial importance. These words do indicate that the
persons designated by the words that follow were to take an interest after her, i.e., in succession
and not jointly with her. And unless therefore the words referring to the interest conferred on the
male children were held to be words of limitation merely, i.e., as denoting the quality of the
interest Severina herself was to take and not words of purchase, the only reasonable construction
possible of the clause would be to hold that the interest created in favour of Severina was merely
a life interest and that the remainder in absolute was conferred on her male children."
In Kaivelikkal Ambunhi's case (supra), the Court applied the maximum "cum duo inter
se pugnantia reperiuntur in testamento ultimum ratum est" which means that in a will if there
are two provisions the latter shall prevail over the earlier. As observed in Hammond v.
Treharne, (1938 (3) All ER 308), if in a Will there are two inconsistent provisions, latter shall
prevail over the earlier clause. This is regulated by the well-known maxim "cum duo inter se
pugantia reperiuntur in testamenta ultimum ratum est". This principle is also contained in Section
88 of the Act which together with its illustrations, provides as under:
When referred to the provisions of Indian Succession Act 1925, Chapter VI whereof deals
with construction of Wills. Some of the principles of interpretation of Wills that are statutorily
recognized in Chapter VI need special notice. For instance, Section 84 provides that if a clause is
susceptible of two meanings, according to one of which it has some effect and according to the
other it can have none, the former shall be preferred. So also, Section 85 provides that no part of
a Will shall be rejected as destitute of meaning if it is possible to put a reasonable construction on
the same. Section 86 provides that if the same word occurs in different parts of the same Will,
they shall be taken to have been used everywhere in the same sense unless a contrary intention
appears. Section 87 makes it clear that the intention of the Testator shall not be set aside merely
because it cannot take effect to the full extent, and that effect is to be given to it as far as
possible. Section 88 provides that if there are two clauses of gift in a Will, which are
irreconcilable, so that they cannot possibly stand together, the last shall prevail.
It is evident from a careful reading of the provisions referred to above that while
interpreting a Will, the Courts would as far as possible place an interpretation that would avoid
any part of a testament becoming redundant. So also the Courts will interpret a Will to give effect
to the intention of the Testator as far as the same is possible. Having said so, we must hasten to
add that the decisions rendered by Courts touching interpretation of the Wills are seldom helpful

except to the extent the same recognize or lay down a proposition of law of general application.
That is so because each document has to be interpreted in the peculiar circumstances in which
the same has been executed and keeping in view the language employed by the Testator. That
indeed is the requirement of Section 82 of the Succession Act also inasmuch it provides that
meaning of any clause in a Will must be collected from the entire instrument and all parts shall
be construed with reference to each other.
What is the intention of the testator has to be found out on a reading of the Will and there
cannot be any hard and fast rule of uniform application to find out as to whether the grant was
absolute or it was subject to any condition or stipulation. The true intention of the testator has to
be gathered not only by attaching importance to isolated expressions but by reading the Will as a
whole with all the provisions and ignoring none of them as redundant or contradictory. As
observed in Navneet Lal's case (Supra), although there is no binding rule that the Court should
avoid intestacy at any cost, yet the Court would be justified in preferring that construction of the
Will which avoids intestacy. Where the words are ambiguous attempt should be made to avoid
that construction which leads to intestacy.
It is seldom profitable to compare the words of one Will with those of another or to
attempt to find out to which of the Wills, upon which decisions have been given in reported
cases, the Will before the Court approximates closely. Cases are helpful only in so far as the
purport to lay down certain general principles of construction and at the present these principles
seem to be fairy well settled. The cardinal maxim to be observed by Courts in construing a Will
is to endeavour to ascertain the intention of the testator. This intention has to be gathered
primarily from the language of the document which is to be read as whole without indulging in
any conjecture or speculation as to what the testator would have done if he had been better
informed or better advised (See Gnanmbal's case (supra). In construing the Will the Court must
consider the surrounding circumstances. The testator's position, his family relationship, the
probability that he would use his words in a particular sense and many other things summed up
in the picturesque phrase. The Court should put itself in the testator's armchair (See
Veerattalingam v. Rameth AIR 1990 SC 2201).
PRINCIPLES EVOLVED OUT OF DECISION OF SUPREME COURT
From various decisions of the Supreme Court e.g. Ram Gopal v. Nand Lal (AIR 1951 SC
139),Gnambal Ammal v. Raju Ayyar (AIR 1951 SC 103), Raj Bajrang Bhadaur Singh v.
Thakurain Bakhtraj Kher (1953 SC 7), Pearey Lal v. Rameshwar Das (AIR 1963 SC 1703),
Ramchandra v. Hilda Brite, (AIR 1964 SC 1323) and Navneet Lal v. Gokul (AIR 1976 SC 794),
the following principles are well established:
(1) In construing a document whether in English or in vernacular the fundamental rule is to
ascertain the intention from the words used; the surrounding circumstances are to be considered;
but that is only for the purpose of finding out the intended meaning of the words which have
actually been employed.
(2) In construing the language of the Will the Court is entitled to put itself into the testator's
armchair and is bound to bear in mind also other matters than merely the words used. It must
consider the surrounding circumstances, the position of the testator, his family relationship the
probability that he would use words in a particular sense. But all this is solely as an aid to
arriving at a right construction of the Will and to ascertain the meaning of its language when
used by that particular testator in that document.

(3) The true intention of the testator has to be gathered not by attaching importance in isolated
expressions but by reading the Will as a whole with all its provisions and ignoring none of them
as redundant or contradictory.
(4) The Court must accept, if possible such construction as would give to every expression some
effect rather than that which would render any of the expressions inoperative. The Court will
look at the circumstances under which the testator makes his Will, such as the state of his
property of his family and the like. Where apparently conflicting dispositions can be reconciled
by giving full effect to every word used in a document, such a construction should be accepted
instead of a construction which would have the effect of cutting down the clear meaning of the
words used by the testator. Further where one of the two reasonable constructions would lead to
intestacy, that should be discarded in favour of a construction which does not create any such
hiatus.
(5) To the extent that it is legally possible, effect should be given to every disposition contained
in the Will unless the law prevents effect being given to it. Of course, if there are two repugnant
provisions conferring successive interests, if the first interest created is valid the subsequent
interest cannot take effect but a Court of construction will proceed to the farthest extent to avoid
repugnancy so that effect could be given as far as possible to every testamentary intention
contained in the Will.
It is to be noted that rules of interpretation of Will are different from rules which govern
interpretation of other documents like sale deed, or a gift deed, or a mortgage deed or, for that
matter, any other instrument by which interest in immovable property is created. While in these
documents, if there is any inconsistency between the earlier or the subsequent part or specific
clauses, inter se contained therein, the earlier part will prevail over the latter as against the rule of
interpretation applicable to a Will under which the subsequent part, clause or portion prevails
over the earlier part on the principle that in the matter of Will the testator can always change his
mind and create another interest in place of the bequest already made in the earlier part or on an
earlier occasion. Undoubtedly, it is the last Will which prevails.
RULES GOVERNING THE PROPOUNDING OF A WILL
The rules governing the propounding of a will are two. First, the onus probandi lies in every
case upon the party propounding the will and he must satisfy the conscience of the Court that the
instrument so propounded is the last will of the testator. Second, if a party actively participates in
the execution of a will under which he takes a benefit, it is a circumstance to excite the suspicion
of the Court and calls upon the court to be vigilant and zealous in examining the evidence on
record.
The strict meaning of the term 'onus probandi' is this, that if no evidence is given by the
party on whom the burden is cast, the issue must be found against him. In all cases the onus is
imposed on the party propounding the will. It is in general discharge by proof of capacity and the
fact of execution from which the knowledge of and assent to the contents of the instrument are
assumed.
The nature of proof required to prove a will is not different from those required to prove
other documents except the requirement of attestation prescribed under Section 63 of the Indian
Succession Act. The proof is to be tested on the usual satisfaction of a prudent mind. What
distinguishes a will from other document is that the testator would not be available to testify the
same as his last will. This introduces an element of solemnity in the decision. Even then the
Court has to proceed with the enquiry in the same manner as is done in respect of any other

document. The propounder is called upon to show by satisfactory evidence that (1) the will was
signed by the testator in the presence of two attesting witnesses; (2) at the relevant time he was in
sound and disposing state of mind; (3) he understood the nature and effect i.e., the content of the
disposition; (4) he put the signature to the document of his own free will. The onus of the
propounder can be said to be discharged on proof of the above essential facts.
However, in a case surrounded by suspicious circumstances viz.: the disposition may appear
to be unnatural, improbable or unfair in the light of the relevant circumstances; or there may be
indications that the disposition was not the result of the testator's free will and mind, such
suspicious circumstances make the initial onus very heavy; and unless satisfactorily discharged,
the Court would be reluctant to treat the document as the last will of the testator. Where the
propounder takes a prominent part in the execution of the will conferring benefit upon him, that
is a suspicious circumstance attending the execution of the will; the propounder is required to
remove the doubt by clear and satisfactory evidence. In other words the propounder must satisfy
the conscience of the Court that the document is the last will and testament of the testator.
Where the caveator alleges undue influence, fraud and coercion, the onus is on him to
prove the same. Even if there is no such plea but the circumstances give rise to doubts, it is for
the propounder to satisfy the conscience of the Court. If the propounder is able to satisfy the
conscience of the Court, the Court shall grant the probate, even if the will cuts off, wholly or in
part, near relations. It is the will of the testator that is reflected in the will. Being the testator's
own property, he has the liberty to deal with it absolutely. It is not for the Court to find out
justification or equity or otherwise in the action of the testator. It is not for the Court to make it
fair or to sermonize. It is not for the Court to refuse the grant on account of the fact that the
disposition is not just and fair or is unnatural or improbable when the conscience of the Court is
clear about the proof of the execution of the will on the face of the evidence, satisfactorily
sufficient, to remove the suspicious circumstances.
As the wills are too frequently made by the sick and dying, the degree of understanding and
memory which the law requires is such as may be reasonably expected from persons in that
condition. therefore, it is wrong to suppose that those qualities of mind should be possessed by
the testator in the highest degree, position or to the same extent as before the illness in order to
enable him to validly make his will. Section 59 of the Indian Succession Act requires that the
testator should have a sound mind. The sound mind referred to does not mean that the testator
should have his mental faculty in their fullest vigour, but means that he should have the capacity
to understand the nature of his property; memory to remember the relations and persons normally
having claims on his bounty and has also a judgment. As observed by their Lordships of Privy
Council in the decision reported as Judah v. Isolyne MANU/PR/0028/1945, the fact that the
testator was unwell when he executed the will is a long way from saying that he had no
testamentary capacity. The testator does not have to be found in perfect state of health to have his
will declared valid. It is sufficient to prove that he was able to outline the manner in which his
estate was to be disposed of.
The general principles governing the presumption of due execution and attestation are, if a
will appears on the face of it to have been duly executed and attested in accordance with the
requirements of the Act, the maxim 'omnia presumuntur rite esse acta' applies, unless it is clearly
proved that the will in fact, was not duly executed. The Court of probate has long being
accustomed to give great weight to the presumption of due execution arising from the regularity
ex facie of the testamentary paper produced where no suspicion of fraud has occurred.
Where once it has been proved that a will has been executed by a person of competent

understanding, the burden of proving that it was executed under undue influence is on the party
who alleges it. The Privy Council laid it down in the decision reported as Mst. Gomtibai v.
Kanchhedilal MANU/PR/0018/1949 that undue influence in order to invalidate a will must
amount to coercion or fraud. Its extents must be established and it must also appear that it was
actually exercised on the testator.
The burden of proving undue influence is not discharge by merely establishing that the
person had power unduly to overbear the will of the testator. It must be shown that in any
particular case that power was, in fact, exercised and that it was by means of exercise of that
power that the will was obtained. This was observed by the Calcutta High Court in the decision
reported as Chandra Majumdar v. Akhil Chandra Majumdar MANU/WB/0150/1960 :
AIR1960Cal551 . Relying upon the decision of the Hon'ble Supreme Court in the decision
reported as Naresh Charan DasGupta v. PareshCharan DasGupta and
Anr.MANU/SC/0113/1954 : [1955]1ITR1035(SC) it was observed that it is elementary that law
does not regard or charactize every interest which is brought to bear upon a testator as undue. It
is open to a person to plead his case before the testator and to persuade him to make a disposition
in his favor and if the testator retains his mental capacity and there is no element of fraud or
coercion, the will cannot be attacked on the ground of undue influence. Not all importunities are
undue influence. While making said observation, the Hon'ble Supreme Court in Naresh Charan
Das Gupta's case (supra) quoted the observation of Lord Penzance in the decision reported as
Hall v. Hall 1868 (1) P & D 481 "but all influences are not unlawful. Persuasion, appeals to the
affections or ties of kindred, to a sentiment of gratitude for past services, or pity for future
destitution, or the like - these are all legitimate and may be fairly pressed on a testator. On the
other hand, pressure of whatever character, whether acting on the fears or the hopes, if so exerted
as to overpower the volition without convincing the judgment, is a species of restraint under
which no valid will can be made.... In a word, a testator may be led, but not driven; and his will
must be the offspring of his own volition, and not the record of someone else's".