The Kerala High Court has held that any obliteration, interlineation or alteration made in an unprivileged Will after its execution shall have no legal effect unless the alteration is executed in the same manner as the Will itself, by the signature of the testator and attestation by the subscribing witnesses in the margin or opposite to the alteration or at the foot or end of or opposite to a memorandum referring to such alteration, as mandated by the proviso to Section 71 of the Indian Succession Act, 1925. Justice S. Manu delivered this elaborate judgment while dismissing MFA (Indian Succession Act) No.18 of 2019 filed by the mother and two sons of the testator, thereby upholding the decree passed by the Additional District Judge-V, Kozhikode granting probate in favour of the daughter by excluding the unattested alteration that changed the bequest from the sole daughter to all children.
The dispute centred on a Will executed on 27 July 1993 by late C. Kunhikrishna Kurup, who deposited the document before the District Registrar, Kozhikode on the same day. After his death, the second appellant produced the deposit receipt on 6 December 2006 and got the sealed cover opened in the presence of two witnesses. A true copy was prepared, the Will was registered as Document No.94/2006 and the original was redeposited only on 13 December 2006 after a gap of one week. The first respondent, the only daughter of the testator, received a copy of the Will during land acquisition proceedings relating to a portion of the plaint schedule property. The copy supplied to her was not legible and she was told that the bequest was in favour of all children. She initially filed a statement before the Land Acquisition Officer on that basis. Later, on 30 September 2013, she obtained a legible copy under the Right to Information Act and discovered a visible alteration in the eighth line of page 2 of the Will, whereby the Malayalam word “മകൾ” (daughter) had been changed to “മക്കൾ” (children). She contended that the Will was originally executed exclusively in her favour and that the alteration was a subsequent tampering. She therefore approached the District Court under Sections 71 and 270 of the Indian Succession Act seeking a declaration that the plaint schedule properties were bequeathed solely to her, grant of probate ignoring the alteration, and a permanent injunction restraining the appellants and the second respondent from causing any damage to the property, making alterations, encumbering or transferring the same to third parties.
The appellants and the second respondent contested the petition by filing a written statement denying any correction or alteration. They asserted that the testator had always intended to bequeath the property for the benefit of all his children and that no tampering had taken place at any point of time. The District Court converted the original petition into O.S.No.7/2015 under Section 295 of the Indian Succession Act. After a full-fledged trial in which the plaintiff examined PW1 to PW3 (including herself and the forensic expert) and marked Exts.A1 to A7, while the defendants examined DW1 to DW5 (including the first appellant as DW1, the second appellant as DW2, a witness to the opening of the sealed cover as DW3, the Registrar as DW4 and the Sub-Registrar as DW5) and marked Exts.X1 to X3, B1 to B9 and C1, the trial court framed five issues and decreed the suit in favour of the daughter. Aggrieved by the decree, the mother and two sons preferred the present appeal under Section 299 of the Indian Succession Act.
The appellants contended before the High Court that the probate court had exceeded its jurisdiction by undertaking a deep factual analysis similar to a regular civil suit and that the scope of proceedings under the Indian Succession Act is limited only to the genuineness and validity of the Will. They argued that there was no alteration at all, that the Will was opened, copied and registered on the same day leaving no scope for manipulation, and that various attendant circumstances showed the testator’s intention to benefit all children. The first respondent, on the other hand, submitted that if the testator had really intended the property for all children there was no necessity to execute and deposit a Will, as the property would have devolved by intestate succession. She pointed out that the alteration was visible even to the naked eye, that the expert (PW3) had confirmed overwriting in the eighth line of page 2, and that the Sub-Registrar (DW5) had categorically deposed that there was no correction when he prepared the true copy Ext.X2. The unexplained delay in redepositing the Will after registration and the gap in obtaining a certified copy were highlighted as highly suspicious circumstances indicating manipulation facilitated at the instance of the sons.
Justice S. Manu, after a meticulous appreciation of the entire evidence and the arguments advanced, first recorded the undisputed facts and observed that no one disputed the existence of a correction in the eighth line of page 2 of Ext.X1 Will. The alteration was visible even to the naked eye and was confirmed by the forensic expert PW3. The Court extracted Section 71 of the Indian Succession Act in extenso and explained that the proviso to the section makes it mandatory that any alteration must be authenticated by the signature of the testator and the subscription of the witnesses in the margin or opposite to the alteration or at the foot or end of or opposite to a memorandum referring to such alteration. In the absence of such authentication, the alteration has no legal effect whatsoever. The deposition of DW5, the Sub-Registrar who prepared the true copy Ext.X2, was found decisive. He stated that there was no correction in the original Will when he copied it, yet an alteration appeared in Ext.X2 itself, and that he would have made a footnote had any correction been present at the time of copying. The Court therefore concluded that the alteration was made after the preparation of Ext.X2 and after registration on 6 December 2006. The significant unexplained delay in redepositing the Will on 13 December 2006, despite intervening holidays, was held to be a circumstance that clearly pointed to manipulation.
The High Court extensively discussed authoritative precedents on the subject, including the Privy Council decisions in Cooper v. Bockett and Greville v. Tylee, the Calcutta High Court rulings in Surendra Krishna Mondal v. Rani Dassi and Baisnav Charan Dass Bairagi v. Kishore Dass Mohanta, and the Supreme Court judgment in Dayanandi v. Rukma D. Suvarna. These authorities uniformly lay down that where unattested alterations appear on the face of a Will, the presumption is that they were made after execution, and the onus is on the party propounding the altered document to prove that the changes were made before execution and attestation. In the absence of such proof, probate must be granted omitting the alterations so as to give effect to the true intention of the testator as it stood at the time of execution.
Addressing the appellants’ contention that the probate court had exceeded its jurisdiction by converting the proceeding into a regular suit and deciding complicated questions of fact, the Court clarified the true scope of proceedings under the Indian Succession Act. Even when a probate petition is converted into a suit under Section 295, it does not assume the character of an ordinary civil suit under the Code of Civil Procedure. The scope of enquiry remains constricted and is limited to the genuineness, due execution and validity of the Will. The Court emphasised that examining whether there is any obliteration, interlineation or alteration and deciding its legal effect in accordance with Section 71 is necessarily part of the probate court’s jurisdiction and cannot be equated with deciding the substantive rights under the Will. Relying on Ishwardeo Narain Singh v. Kamta Devi, Kunjunjamma v. Rosamma and Thrity Sam Shroff v. Shiraz Byramji Anklesaria, the High Court held that the trial court had acted perfectly within its jurisdiction and had not travelled beyond the permissible limits of a probate proceeding.
In the light of the above discussion, the High Court found that the alteration in the Will was not authenticated in the manner required by the proviso to Section 71 and was therefore void and of no effect. The Court concluded that the original bequest in favour of the daughter alone represented the true last intention of the testator. Consequently, the appeal was dismissed in its entirety. The decree of the trial court granting probate by excluding the unattested alteration and recognising the Will as originally executed exclusively in favour of the daughter was upheld. The parties were directed to bear their respective costs.
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