A will cannot be revoked by a subsequent agreement: Supreme Court

**Merline Mathew, is a final year B.A, LL.B.(Hons) student of Bharata Mata School Of Legal Studies Choondy, Aluva. She is currently an Editor Trainee at LJRF Voice.**

INTRODUCTION

Will is an instrument by which a person makes a disposition of his property to take effect after his death[i]. It is a legal declaration of the intention of a person with respect to his property, which he desires to take effect after his death[ii]. Will may be privileged or unprivileged. Will created by a person who is not a soldier employed in an expedition or engaged in actual warfare or a mariner at sea is known as an unprivileged Will[iii]. An inimitable feature of will is that it can be revoked by testator anytime during his lifetime. The law related to Will is provided under Indian Succession Act, 1925. The Act deals with a will made by any Hindu, Buddhist, Sikh or Jain in India. Sec 70 of the Act provides various modes by which an unprivileged will may be revoked.

On 3 Nov 2021, a question related to revocation of will by agreement between beneficiaries subsequently entered was considered by Hon’ble Supreme Court of India in the case Badrilal v Suresh & Ors[iv].

FACTS AND PROCEDURAL HISTORY:

Mangilal (Testator) was the owner of a portion of land. He executed a Will dated 6th May 2009 by which a bequest was made to Ramkanya (his daughter) and the first defendant Suresh and his two brothers[v]. Mangilal died on 26th June 2009.On 12^th May 2009, Suresh and Ramkanya entered into a compromise deed/ agreement which recorded each portion of land they will be entitled to. Thereafter, On 22nd February 2011, Ramkanya executed a sale deed by which she sold a land measuring 5 Bigha to the appellant Badrilal[vi]. Suresh filed a suit claiming that he was in possession of the said land and claimed perpetual injunction restraining the appellant from interfering with his possession and also prayed for a declaration that the sale deed dated 21st February 2011 is null and void as against him[vii].

The learned Trial Judge decreed that the will executed by Mangilal was duly proved and was enforceable. The Compromise agreement between Suresh and Ramkanyabhai was declared to be illegal and held that she had no authority to sell the land and therefore the sale deed is void and not binding on Suresh[viii].On appeal preferred to District Court, while dismissing the appeal the Court modified the decree by holding that Ramkanya was not entitled to sell her share to appellant without getting her share separated by effecting a partition and that the sale deed was void in respect of the right and title of Suresh[ix]. Impugned by Judgment and Order of the learned Single Judge of Madhya Pradesh High Court dismissing the Second Appeal, Suresh (First respondent) has preferred an appeal to Supreme Court of India which came for consideration before the bench of Justices Ajay Rastogi and Abhay. S. Oka as Badrilal v Suresh & Ors[x].

LEGAL ISSUES INVOLVED:

The primary issue for consideration of Court was: Whether the Compromise Agreement dated 12^th May 2009 will amount to the revocation of the Will dated 6th May 2009?

DECISION

The Supreme Court held that Will dated 6th May 2009 is not revoked by the subsequent agreement dated 12th May 2009[xi].The Hon’ble Court confirmed the decree passed by the District Court with a modification. It was clarified by the Court that sale deed executed by Ramkanya in favour of appellant will be valid to the extent of the land which was bequeathed to her under the Will executed by her father[xii].

ANALYSIS

To answer the question as to whether a subsequent compromise agreement will revoke the will executed by Testator, the Apex Court analyzed Section 70 of the Indian Succession Act, 1925 in detail. The Court clarified in the light of Section 70 that revocation of unprivileged Will or codicil can be made only by following modes[xiii]: –

(a) By Execution of another Will or codicil.

(b) A writing executed by the testator declaring an intention to revoke the Will and executed in the manner in which an unprivileged Will is required to be executed.

(c) By burning, tearing or otherwise destroying the same by the testator or by some person in his presence and by his direction with the intention of revoking the same.

The impugned agreement was not executed by the testator nor was he made a party to it. Hence, Court concluded that the will was not revoked by the Compromise agreement executed subsequently as none of the modes of revocation provided under Section 70 is covered in the case.

CONCLUSION

The Apex Court, in the present case, clarified the various modes of revocation for unprivileged wills provided under Section 70 of the Indian Succession Act, 1925. The Court held that a Will cannot be revoked by an agreement and can be revoked only as per the modes specified under Section 70[xiv]. The judgment is of great relevance in the light of many such conducts being reported from various parts of India and thus will ensure that such agreements are not made to revoke a will which reflects the wishes of a person in his last days.

ENDNOTES

[i] Definition in Corpus Juris Secundum.

[ii] Section 2(h), The Indian Succession Act, 1925

[iii] https://www.indiafilings.com/learn/types-wills-india/

[iv] LL 2021 SC 624, accessed in https://www.livelaw.in/sc-judgments/revocation-of-will-section-70-indian-succession-act-supreme-court-badrilal-v-suresh-agreement-184910

[v] LL 2021 SC 624, ¶ 2

[vi] ibid

[vii] Supra note iv, ¶ 3

[viii] Supra note iv, ¶ 5

[ix] ibid

[x] Supra note iv

[xi] Supra note iv, ¶ 11