Case Study

on
Anil Kak Vs. Kumari Sharada Raje and Ors
AIR (2008) SC 2195
Family Law II
Monsoon Semester - 2015

Submitted By
Yash Maheshwari
2nd Year, 214045
WBNUJS

Anil Kak vs Kumari Sharada Raje & Ors

Index

Conclusion...............................................................................................................................11
Facts of the Case.......................................................................................................................4
Family Tree...............................................................................................................................5
High Court................................................................................................................................6
Major Issues Involved (High Court)......................................................................................5
Ratio Decidendi......................................................................................................................10
Supreme Court & Case Analysis............................................................................................6
Table of Authorities..................................................................................................................3

Anil Kak vs Kumari Sharada Raje & Ors

Table of Authorities
Cases
Allen v. Maddock (1858) I I Moo PCC 427..............................................................................7
Anil Kak v. Kumari Sharada Raje & Ors.................................................................................10
B. Venkatamuni v. C.J. Ayodhya Ram Singh and Ors. ,AIR (2007) SC 311...........................10
Bajrang Factory Ltd. and Anr. v. University of Calcutta and Ors. (2007) 7 SCC 183...............8
Durham v. Northen (1895) P 66.................................................................................................7
Kidd v. North, 16 L.J..................................................................................................................9
P. Manavala Chetty and five Ors. v. P. Ramanujam Chetty and Anr, (1971) 1 MLJ 127..........8
Sarabjit Rick Singh v. Union of India (2008) 2 SCC 417..........................................................6
Savithri and Ors. v. Karthyayani Amma and Ors. ,AIR (2008) SC 300..................................11
William Henry Singleton v. Thomas Tomlinson and Ors. (1878) 3 AC 404.............................7
Statutes
Section 103, Indian Succession Act.........................................................................................10
Section 63, Indian Succession Act.........................................................................................7, 9
Section 64, Indian Succession Act.............................................................................................6
Section 68, Indian Evidence Act................................................................................................9
Section 87, Indian Succession Act.............................................................................................9

Anil Kak vs Kumari Sharada Raje & Ors

Facts of the Case

Maharaja Tukoji Rao Holkar died leaving behind four daughters, Sharada Raje Holkar, Sita
Raje Ghatge, Sumitra Raje Dalvi and Sushila Raje Holkar. He had executed a Will on
27.11.1942 bequeathing all his properties in favor of his wife Maharani Sharmishthabai
Holkar (herein called the testatrix). Also, apart from the properties inherited by the testatrix
from her husband, she had also her own Stridhan properties. She purported to have executed
a Will on or about 23.08.1978 in favor of the respondent Kumari Sharada Raje. However on
4.11.1992, she allegedly executed another Will which purported to have revoked the Will
executed by her on 23.08.1978. She appointed one K.R.P. Singh and the appellant Anil Kak
as joint executors. She categorized her properties in two parts, viz., Part A and Part B.
Part A consisted of those properties which were bequeathed in her favor by her husband and
Part B consisted of properties other than those specified in Part A. By reason of the said Will,
the said two sets of the properties were to be administered separately. Whereas Part A
properties were bequeathed in favor of four daughters, Part B properties were sought to be
bequeathed in favor of her four grand children. The will was purported to have been attested
by Gita Sanghi, who examined herself as PW-5 and Baljit Bawa, who was not examined. The
Will also contained a few appendices. The attesting witnesses have said to have put their
signatures in each page of the Will, but they did not put signature on any of the appendices.
The application for grant of Letters of Administration with a copy of the Will dated
23.08.1978 annexed was filed by Kumari Sharada Raje in Madhya Pradesh High Court. Also,
an application for grant of probate in their capacity as executors appointed under the said Will
dated 4.11.1992 was filed by Anil Kak.

Anil Kak vs Kumari Sharada Raje & Ors

Family Tree1

Major Issues Involved (High Court)

(1) Whether the alleged Will with its appendices dated 4.11.1992 was duly executed by late
Maharani Sharmishthabai Holkar out of her free will, while she was in sound disposing state
of mind?2
(2) Whether the Will dated 4.11.1992 has been acted upon by the parties, if so, its effect?
(3) Whether late Maharani Sharmishthabai Holkar had executed only one Will, i.e., dated
23.8.1978 out of her free will while she was in sound disposing state of mind?3

High Court
1 With a view to appreciate the relationship of the parties, we may notice the family tree which represents the
whole relationships among the parties.
2 Issues framed by the High Court of Madhya Pradesh.
3 Ibid.

Anil Kak vs Kumari Sharada Raje & Ors

The High Court refused to grant probate and/ or letters of administration in respect of both
the Wills by the reason of impugned judgment.
The learned Single Judge in its judgment inter alia held that the execution of the Will dated
4.11.1992 has not been proved as the appendices were not signed by the attesting witnesses.
Also, The Will remained in the custody of Anil Kak for a long time and he did not examine
himself as a witness. The learned judge also said that as an unequal division of the properties
described in Part B of the Will effected, there existed suspicious circumstances. To
furtherance of this, the Letters Patent Appeals were filed against the judgment of the learned
Single Judge of the High Court by both the parties which have been dismissed by the
Division Bench of the High Court as not maintainable.

Supreme Court & Case Analysis

This is one of leading cases where applicability of Section 64, 87 and 103 were discussed in
great detail by the supreme court. Furthermore, one of the most important question which was
to be answered was that does the documents attached were mere appendices or do they also
form an integral part of the will. It is evident from the facts that appendices were not signed
by the witnesses. Moreover, the supreme court also took into consideration the intention of
the testatrix. Supreme court held that intention of the testatrix should be put above anything
else.
We may now throw a light upon Section 64, 87 and 103 as determined by the supreme court
in the said case.

Section 64
Incorporation of papers by reference - if a testator, in a will or codicil duly attested, refers
to any other document then actually written as expressing any part of his intentions, such
document shall be deemed to form a part of the will or codicil in which it is referred to.4
In Sarabjit Rick Singh v. Union of India 5 the rule of incorporation by reference was
established. It was held that if document is incorporated by reference in another when it is
referred to, then it would form an integral part of the will.6 The said Principle of incorporation
by reference was laid down so as to avoid unnecessary repetition of the same documents in
4 Section 64, Indian Succession Act
5 Sarabjit Rick Singh v. Union of India (2008) 2 SCC 417
6 Allen v. Maddock (1858) I I Moo PCC 427
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Anil Kak vs Kumari Sharada Raje & Ors

different parts of the original document. Further, for invoking the said principle, a document
must be in existence at the time of making the will and cannot be brought into existence later
on.7 Also, the executor of the document must have the knowledge of what the document says.
Also under the English jurisprudence, for admitting a valid document, it was held that first it
must be clearly identified by the description given of it in the will; and secondly, that it must
be shown to have been in existence at the time when the will was executed.8

Section 87
The court further had to decide on whether section 87 of the India Succession Act is
applicable in the said case or not. Section 87 says that
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.
The court in the said case held that If the appendices formed an integral part of the Will and
in their absence the Will was not complete, then the intention of the testator cannot be
effectuated. Will although intention of the testator cannot be effectuated, a distinction must be
made between an incomplete and a complete will.9
Also, the testator's intention must be collected not from the part of the will rather whole of
the will. The essence and nature of will has to be taken into consideration. If two parts of the
same Will are wholly irreconcilable, the court of law would not be in a position to come to a
finding that the Will dated 4.11.1992 could be given effect to irrespective of the appendices.
The court also heavily relied on the leading case of Bajrang Factory Ltd. v. University of
Calcutta where it was held that in construing a Will, no doubt all possible contingencies are
required to be taken into consideration. Even if a part is invalid, the entire document need not
be invalidated, only if it forms a severable part.10
7 Durham v. Northen (1895) P 66
8 William Henry Singleton v. Thomas Tomlinson and Ors. (1878) 3 AC 404
9 Section 63, Indian Succession Act
10 Bajrang Factory Ltd. and Anr. v. University of Calcutta and Ors. (2007) 7 SCC 183. It was also held that
with a view to ascertain the intention of the maker of the will, not only the terms thereof are required to be taken
into consideration but also all circumstances attending thereto. The will as a whole must, thus, be considered for
the said purpose and not merely the particular part thereof. As the will if read in its entirety, can be given effect
to, it is imperative that nothing should be read therein to invalidate the same.

Anil Kak vs Kumari Sharada Raje & Ors

In the present case, the court also laid a special emphasis on the true intention of the testator.
One of the leading doctrine in the laws of succession to determine the true nature or intention
of the testator is the principle of construction.
Leading principle of construction: The leading principle of construction which is applicable
to all wills without qualification and overrides every other rule of construction is that the
testator's intention is collected from a consideration of the whole will taken in connection
with any evidence properly admissible, and the meaning of the will and of every part of it is
determined according to that intention.11
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.12
To further clarify the intention of the testator beyond the reasonable doubt, the court looked
into the case of Kidd v. North13 where it was held by the Lord chancellor that

11 Halsbury's Laws of England, Fourth edition, Volume 50

12 P. Manavala Chetty and five Ors. v. P. Ramanujam Chetty and Anr, (1971) 1 MLJ 127 In the said case, it
was held that It is the obvious duty of the Court to ascertain and give effect to the true intentions of the testator
and also avoid any construction of the will which will defeat or frustrate or bring about a situation which is
directly contrary to the intentions of the testator. At the same time, it must be borne in mind that there are
obvious limits to this doctrine that the Court should try to ascertain and give effect to the intentions of the
testator. The law requires a will to be in writing and it cannot, consistently with this doctrine, permit parol
evidence or evidence of collateral circumstances to be adduced to contradict or add to or vary the contents of
such a will. No evidence, however powerful it may be, can be given in a Court of construction in order to
complete an incomplete will, or project back a valid will, if the terms and conditions of the written will are
useless and in-effective to amount to a valid bequest, or to prove any intention or wish of the testator not found
in the will. The provisions of the Indian Succession Act referred to earlier indicate the limits of the Court's
power to take note of the testator's declarations and the surroundings circumstances, i.e., evidence of collateral
circumstances.

13 Kidd v. North, 16 L.J.

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Anil Kak vs Kumari Sharada Raje & Ors

When the testamentary papers of which probate is granted appear to give several legacies
to the same persons, it is often extremely difficult to ascertain what was the real intention of
the testator and to attain that object as far as possible certain rules have been laid down and
nice distinctions taken; but such rules and distinctions are applicable only to cases in which
there is no internal evidence of intention; for where there that is to be found; it must
prevail.14
In the present case, the document is one as appendices appended to the will clearly specify
the intention of the testatrix to divide her properties equally amongst her daughters and/ or
her grand children. It is not a case where a general division was to be made leaving the
manner of application to the executors. The Will refers to appendices and once those
references are made indicating that the distribution shall be in terms thereof, it becomes
difficult to comprehend as to how without the same, the Will can be said to be a complete. It
was established that the intention of the testator must be found out from the entire will and no
part should be left unread.15
Further, to clarify the stand on the execution of will, the honorable court also looked into the
section 68 of Indian Evidence Act. It held that if the will was incomplete the question of its
proving the execution does not arise. Also, an integral part of the document for the purpose of
satisfying the tests are laid down under Section 63(1)(c)16 and Section 6817 must mean a
complete document.18
The last issue which court looked into was Section 103 of the Indian Succession Act. The
court held that Section 10319 has no application as will is no ordinary document in nature.

14 Ibid.
15 Section 87, Indian Succession Act. Only when one part cannot be given effect to, having regard to another
part, the doctrine of purposive construction as also the general principles of construction of deed may be given
effect to. In effect and substance, the purported directions contained in the appendices which did not see the
light of the day on the date of execution of the Will, make the application of the directions of the testatrix wholly
impossible to be carried out. It is in that sense the provisions of Section 87 of the Act are applicable.
16 Section 63, Indian Succession Act.
17 Section 68, Indian Evidence Act.
18 In short, the presumption is always against a paper which bears self-evident marks of being unfinished; and
it behoves those who assert its testamentary character distinctly to show, either that the deceased intended the
paper in its actual condition to operate as his will, or that he was prevented by involuntary accident from
completing it
19 Section 103, Indian Succession Act.

Anil Kak vs Kumari Sharada Raje & Ors

Also, as the will is supposed to be under suspicious circumstances, only the signatures of the
attesters and executors are not sufficient for will to be executed.20
Court looking into all the issues held that The appendices which were required to be read as a part of the main Will so as to effectuate
the intention of the testatrix have not been proved. The Will by its own cannot be given effect
to. The Will must be read along with the appendices. No doubt in construing a Will arm chair
rule is to be adopted. The Will was, therefore, not complete. It is not correct to contend that
the appendices were very much in existence at the time when the Will was executed. Existence
of a document must mean the actual existence.21

Ratio Decidendi
Whereas execution of any other document can be proved by proving the writings of the
document or the contents of it as also the execution thereof, in the event there exists
suspicious circumstances the party seeking to obtain probate and/ or letters of administration
with a copy of the Will annexed must also adduce evidence to the satisfaction of the court
before it can be accepted as genuine. An order granting probate is a judgment in rem,
therefore, the court must also satisfy its conscience before it passes an order. The Will by its
own cannot be given effect to. The Will must be read along with the appendices.

Conclusion
In adjudging the existence of testamentary capacity, the factor of unnatural disposition has
had dominating influence a predominance that is only marginally lessened by the adoption

20 B. Venkatamuni v. C.J. Ayodhya Ram Singh and Ors. ,AIR (2007) SC 311
21 Anil Kak v. Kumari Sharada Raje & Ors. The court passed an in rem judgment. It also held that unlike
other documents, even animus attestandi is a necessary ingredient for proving the attestation.

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Anil Kak vs Kumari Sharada Raje & Ors

of the arm-chair rule22 to assess the fairness of a testamentary disposition.23 This rule requires
that, as far as possible, the court should place itself in the armchair of the testator at the time
she executed the will. In the present case, the Court stated that the testators intention is
collected from a consideration of the whole Will and not from a part of it. If two parts of the
same Will are wholly irreconcilable, the court of law would not be in a position to come to a
finding that the Will dated 4.11.1992 could be given effect to irrespective of the appendices.
The will as a whole must, thus, be considered for the said purpose and not merely the
particular part thereof. As the will if read in its entirety, can be given effect to, it is imperative
that nothing should be read therein to invalidate the same. In construing a Will, no doubt all
possible contingencies are required to be taken into consideration. Even if a part is invalid,
the entire document need not be invalidated, only if it forms a severable part.

22 This rule enables the court to admit extrinsic evidence in aid of interpretation of will. In order to give effect
to the words used in the will and when meaning of these words and their application cannot be ascertained
without knowing something more than this rule permits admission of, extrinsic evidence relating to the fact and
circumstances respecting testators property and his family and other persons and things as on the date of will,
although it is often said that the will speaks from the date of the death of the testator.
23 Savithri and Ors. v. Karthyayani Amma and Ors. ,AIR (2008) SC 300. Deprivation of a due share by the
natural heirs itself is not a factor which would lead to the conclusion that there exist suspicious circumstances.
For the said purpose, as noticed hereinbefore, the background facts should also be taken into consideration.

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