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Report No. 110

VI. Act of Revocation by 'Testator

15.33. Section 70-revocation of unprivileged wills.-

Circumstances in which a will can be revoked by an act of the testator are dealt with in section 70, which reads-

"70. No unprivileged will or codicil, nor any part thereof, shall be revoked otherwise than by marriage, or by another will or codicil, or by some writing declaring an intention to revoke the same and executed in the manner in which an unprivileged will is herein before required to be executed, or by the burning, tearing or otherwise destroying the same by the testator or by some person in his presence and by his direction of revoking the same."

15.34. Section 70-Recommendation for change regarding divorce.-

If, as recommended by us, the case of divorce or annulment is added1 in the Act, consequential change will be required in section 70 also, by adding, after the words "marriage", the words "or dissolution or annulment of marriage." We recommend accordingly.

1. See recommendation to insert section 69A, para. 15.32, supra.

15.35. Will not found at the time of death-Whether presumption of divorce can be drawn.-

A question often debated in the context of revocation of wills is this-Where a will has been executed and registered, but is not found at the time of the testator's death, can a presumption of revocation of the will be drawn? The answer depends on the facts of each case. Such a presumption is permissible in England.1-2 In India, however, it has to be drawn cautiously.3

The law on the subject in India needs no amendment.

1. Halsbury's, 3rd Edn., Vol. 39, p. 897, para. 1766 and foot-note (q).

2. Allen v. Morrison, 1900 AC 604 (PC).

3. Durga Prasad v. Debi Charan, 1979 1 SCJ 61, (1st January, 1979).

15.36. Section 70A (New)-Birth of son.-

Another interesting question concerned with the subsequent birth of a son to a Hindu testator also requires to be considered. Under the present law, the fact that a son is born to a Hindu testator who has, by will, disposed of his ancestral property does not, in itself, amount to revocation1 of the will. Having regard to Indian conditions, and, in particular to the fact that the power of disposition of ancestral property has now been enlarged,2 it is a matter for consideration whether this should continue to be the law.

The question is not whether, after the birth of the son, the will remains operative as regards ancestral property. The will cannot be operative to defeat the rights of the son in the ancestral property as at the death of the testator. The son on birth, acquires an interest in that property3 The question to be considered is, whether the will as a testamentary disposition should retain its operation in such circumstances, unless it contains an express provision indicating a contrary intention.

1. Bodi v. Venkatasami Naidu, 1913 ILR 38 Mad 369 (373), following Subba Reddi v. Doraiswami, 1906 ILR 30 Mad 629 and Shib Savitri v. Collector of Meerut, 1906 ILR 29 All 82.

2. Section 30, Hindu Succession Act, 1956.

3. Bodi v. Venkatasami Naidu, 1913 ILR 38 Mad 369 (373).

15.37. Present law and need for change.-

Under the present law the will remains operative in the circumstances mentioned above, so that at least as regards self-acquired property, it takes effect. If the son born after the will dies before the testator's death, then it would take effect as regards ancestral property also. In favour of changing this position by amendment, it could be stated that the birth of a son in such cases-coupled with the fact that the testamentary disposition of coparcenary property becomes void-is an important factor which may ordinarily be presumed to result in a change of intention on the part of the testator.

Where such a situation arises, dispositions made in the will may, in the majority of cases, be regarded as obsolete, that is to say, they would no longer be representing the testator's present wishes. No doubt, the testator would, in due course, take account of the subsequent event and alter the will. But what is to happen if he does not expressly do so, or if he delays doing so? There seems to be need for a specific provision to deal with the problem.

15.38. Recommendation to insert new section 70A.-

Having taken all aspects into consideration we recommend that the following section should be inserted as section 70A:-

"70A. Where, after the execution of the will by a Hindu testator who has, in the will, purported to deal with coparcenary property, a son is born to that testator, the will shall stand revoked as regards all property, unless the will contains an express provision indicating a contrary intention".

The Indian Succession Act, 1925 Back

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