HC: Mere writing a document by hand without execution and without compliance of the prescribed legal standards does not render it final as a Will

 

The Division Bench of the Delhi High Court in the case of Narinder Kumar Govil vs M K Govil & Ors. consisting of Justices Suresh Kumar Kait and Saurabh Banerjee noted that mere writing a document by hand without execution and without compliance of the prescribed legal standards does not render it final as a Will under the Indian Succession Act, 1925.

Facts

The appellant impugned the preliminary decree of partition (“preliminary decree”) and the final decree of partition (“final decree”) passed by Learned Single Judge in a suit for partition of the “suit property” (“suit”), declaring respondent nos. 1 to 3 to be the rightful owner of 1/5^th share each and respondent nos.4 and 5 to be the rightful owner of 1/5^th share together in the said property and after holding that appellant was entitled to only 1/5^th share of the said rental amount of Rs. 57,600/- realized by him for the last 3 years from the second floor of the property held him liable to pay the same proportionate 1/5^th share to the other parties therein. A decree for recovery of the aforesaid rental amount of Rs. 57,600/- in favour of respondent nos.1 to 3 each and respondent nos.4 and 5 together against appellant was also passed. Learned Single Judge granted an opportunity to the parties to consider amicable settlement, but in its absence it proceeded to pass a final decree for partition and sale of property and distribution of sale proceeds amongst the parties thereof.

Contentions Made

Petitioner: When two constructions of a Will are reasonably possible, one of which avoids intestacy while the other involves intestacy, Court would certainly be justified in preferring the construction which avoids intestacy and that in present case the Will ought to be considered, especially as it is in the own handwriting of Late Mr. N.K. Govila (owner).

 

Respondent: The suit was barred by limitation, and it was not properly valued. Appellant’s father Late Mr. N.K. Govila had disowned respondent no.1 vide Will which though not executed but was made by him while he was alive and thus the suit was not maintainable in view of the Will.

Observations of the Court

The Bench noted that the document proclaimed as a Will was not final and was never concluded by Late Mr. N.K. Govila, the Testator named therein:

“The said document is not a validly executed Will as per Section 63 of the Act. Mere writing a document by hand without execution and without compliance of the prescribed legal standards of Section 63 of the Act does not render it final, as a Will. Thus and even otherwise, neither Section 59 nor Section 63 of the Act come to the aid of appellant. In fact Section 59 of the Act is not applicable to the facts of the case. The said Will being non-est in law, cannot be read in evidence and thus appellant is barred from placing any reliance upon it and cannot take any benefit thereof.”

Relying on Raj Kumari & Ors. V Surinder Pal Sharma, the Bench noted that:

“Therefore, the propounder to succeed and prove the Will is required to prove by satisfactory evidence that (i) the Will was signed by the testator; (ii) the testator at the time was in a sound and disposing state of mind; (iii) the testator understood the nature and effect of the dispositions; and (iv) that the testator had put his signature on the document of his own free will.”

 

Judgment

The Bench concluded that Appellant failed to show or prove the Will, the same cannot be considered. As such Late Mr. N.K. Govila never conferred any right, title, interest or share upon any of the parties therein and thus the appellant and respondent nos.1 to 3 have rightly acquired 1/5^th share each and the respondent nos.4 and 5 also have rightly acquired 1/5^th share together in the property. Thus, the parties were bound by the preliminary decree and the final decree passed by Learned Single Judge. So, this appeal was dismissed accordingly.

Case: Narinder Kumar Govil vs M K Govil & Ors.

 

Citation: RFA(OS) 30/2017 & CM. APPLs. 17472/2017 & 5691/2021

Bench: Justice Suresh Kumar Kait, Justice Saurabh Banerjee

Decided on: 8^th August 2022

 Read Judgment ; 

 

 

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