Report No. 110
III. Privileged Wills in India-Applicability to Hindus
14.8. Section 65-Privileged Wills.-
It is now time to turn to the text of section 65, quoted below:-
"65. Any solder being employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or any mariner being at sea, may if he has completed the age of eighteen years, dispose of his property by a will made in the manner provided in section 66. Such wills are called privileged wills.
(i) A, a medical officer attached to a regiment, is actually employed in art expedition. He is a soldier actually employed in an expedition, and can make a privileged will.
(ii) A is at sea in a merchant-ship of which he is the purser. He is a mariner, and being at sea, can make a privileged will.
(iii) A, a soldier serving in the field against insurgents in a soldier engaged in actual warfare, and as such can make a privileged will.
(iv) A, a mariner of a ship, in the course of a voyage, is temporarily on shore while she is lying in harbour. He is, for the purposes of this section, a mariner at sea, and can make a privileged will.
(v) A, an admiral who commands a naval force, but who lives on shore, and only occasionally goes on board his ship, is not considered as at sea and cannot make a privileged will.
(vi) A, a mariner serving on a military expedition, but not being at sea, is considered as a soldier, and can make a privileged will".
It may be noted that section 65, illustrations (i) and (ii), seem to imply that non-combatants attached to fighting forces can also execute privileged wills and fall in the category of "soldiers" etc.
14.10. Recommendation to extend section 65 to Hindus, etc.-
We have already discussed certain points1 concerning privileged wills in connection with section 63. As has been pointed out in that discussion, the defective drafting of sections 63 to 66 has led to the position that, at present, the capacity of soldiers professing the Hindu, etc. religion to make wills has become extremely doubtful. We use the short term "soldiers" to mean "a soldier employed in an expedition or engaged in actual warfare or an airman so employed or engaged or a manner at sea."
Section 63, which deals with unprivileged wills, excludes soldiers from its fold by its express terms. Section 65, which deals with privileged wills, excludes Hindus, etc. from its fold by virtue of the Third Schedule. The result is that Hindu soldiers are, as regard the execution of wills, governed at present neither by sections 65 and 66 (Privileged Wills) nor by section 63 (unprivileged wills)-but by the unenacted law of wills as applicable to Hindus.
1. See discussion relating to section 63, chapter 12, supra.
14.11. Case law on section 65.-
Then is no reported case discussing the applicability or non-applicability of the section to soldiers who belong to the exempted categories, including, in particular, Hindus. There is a Bombay case1 and an Andhra Pradesh case2 under the section, but they do not throw any light on the matter under discussion. However, the Andhra Pradesh case does contain a dictum to the effect that section 66 does not apply to Hindus.
In any case, the present position is hardly satisfactory.
It is, therefore, necessary to extend section 65 to Hindus etc. by amending the Third Schedule.3
1. Bhagubai v. Appaji, ILR 47 Born 552: AIR 1923 Born 26G.
2. Ratnammal v. Thilaimmal, AIR 1957 AP 336 (337), para. 6.
3. To be considered under the Third Schedule.
14.12. Revocation of privileged wills.-
Reverting to section 65, it is to be noted that the revocation of a privileged will also does not require elaborate formalities.1 The Explanation to section 72 expressly makes it clear that it is not necessary that at the time of revocation, the testator should be in a situation which entitles him to make a privileged will.
In England, the point arose and was argued2 in a case where an alteration had been made in a privileged will by an unattested writing.3 The matter was, however, decided on the basis of a presumption that the alteration was made at a time when the testator was in a position entitling him to make such a will.
1. Section 72, Explanation.
2. Estate of Newland (in re:), (1952) 1 All England Reports, 841 (851).
3. See Halsbury's, 3rd Edn., Vol. 39, p. 890, para. 1355.
14.13. Age of person making privileged will-Amendment recommended in section 65.-
Finally, it should be noted that, in England,1 persons below 18 can make a privileged will. A person making an unprivileged will must be above the age of 18 years, but that requirement does not, in Englands, apply2 to those entitled to make a privileged will. The question to be considered is whether the same facility should not be available in India. It is true that persons below the age of eighteen years are not ordinarily recruited to the armed forces in India but the possibility of such a recruitment cannot be legally ruled out, at least in the Navy. On the whole, there is a case for adopting the English rule.
We, therefore, recommend that section 65 should be amended3 for the purpose so as to allow soldiers etc. who are minors to make privileged wills.
The object could be achieved by substituting, in section 65 for the words "if he has completed the age of eighteen years" the words "whether or not he has completed the age of eighteen years".
We recommend accordingly.
1. Section 7 of the Wills Act, 1837, as amended by the Family Law Reform Act, 1969.
2. Section 1, Wills (Soldiers and Sailors) Act, 1918, as amended by the Family Law Reform Act, 1969.
3. Section 65 to be amended.