ORDER
K. Sreedharan, J.
1. Plaintiff, as petitioner, moved O.P. 5699/1988 for Letters of Administration with Will dated 18-7-1974, executed by deceased Smt. Martha David Tharakan attached to it. Legatees under the Will and all the legal heirs left behind by the deceased were made respondents 1 to 10 in that petition. When notice was issued to the respondents, 4th respondent, one of the daughters of the deceased, filed caveat opposing the grant of Letters of Administration. She also filed affidavit in support of her contentions. Since affidavit in support of the caveat has been filed and notice of the same was given to the petitioner in the Original Petition, the proceedings have been ordered to be numbered as a suit, as provided by Rule 26 of the Rules under the Indian Succession Act, 1925, Appendix-XII to the Civil Rules of Practice, Kerala. Petitioner in the Original Petition is the plaintiff and the 4th respondent, caveator, the defendant.
2. Material averments made by the plaintiff are to the following effect.--Smt. Martha David Tharakan had a fixed place of abode at Ernakutam. Her properties are situated in Ernakulam and Maradu Villages of Kanayannur Taluk, Ernakulam District and at Bangalore in Karnataka State. She passed away on 5-6-1982. She had executed her last Will and Testament on 18-7-1974. It was drawn up, signed and executed by her by complying with all the formalities contemplated by the Indian Succession Act. It was prepared in triplicate. Deceased signed all the three in the presence of two attestors, namely Advocate Sri. George C.P. Tharakan and Sri. C.I. Jim. Attestors saw testatrix signing he Will and testatrix in her turn witnessed the' two attestors signing the same. Plaintiff is the son of the deceased and one among the legatees named in the Will. No applicationhas been presented in any Court for probate of any of the Will of the deceased or for Letters of Administration with or without any Will annexed to it, in respect of the properties left behind by deceased Martha David Tharakan.
3. Smt. Martha David Tharakan had executed a Will on 9-4-1967 by complying with all the requirements of law. It was in her own handwriting. She signed the same in the presence of two attestors, namely Advocate Sri. E.V. Mathew, her own brother; and Dr. Chacko George, the son of her elder sister. These attestors had seen Smt. Martha David Tharakan signing the Will and she saw the attestors affixing their signatures as attestors. There was a Codicil attached to that Will. It was executed on 31-7-1969. That was also executed by complying with all the provisions of law. Advocate Sri. E.V. Mathew and his wife Annamma Mathew were the attestors to that Codicil.
4. The Will executed on 18-7-1974 was deposited with Advocate Sri. C.P. George Tharakan, Mrs. Martha David Tharakan got back that Will. In February, 1982 when she had to be taken to a hospital at Kolencherry, she handed over the same to the plaintiff along with the Will executed in 1967 and the Codicil of 1969. Mrs. Martha David Tharakan expired on 5-6-1982 at the age of 83 years. On coming to know of the death, defendant reached Ernakulam from Goa at about 5.45 P.M. on 6-6-1982. The funeral was held at 6.00 P.M. on that day. Defendant and her elder son, Vinod, slept in the house occupied by the deceased on 6th night. In the morning of 7-6-1982, defendant made a request to the plaintiff's wife for the keys of the house and the almirahs. The keys were handed over to her. Since then, the house where Mrs. Martha David Tharakan lived, was occupied by the defendant till she left for Goa. Deceased was, keeping her valuables and documents in a locked drawer of an almirah in her house. The key of that drawer was used to be placed in the almirah itself. Plaintiff, his wife and nursing aids attending on the deceased had occasion to open that almirah on several occasions, while deceased was in the hospital. There was no document or cover in the shelves of the almirah during that period. None was found in the shelf of the almirah on the several occasions when it had to be opened for taking out the clothes for use in the hospital. After return from the hospital, deceased was completely laid up and she could not open the almirah on account of her physical condition. During that period also, no document was ever seen in the outside portions of the almirah.
5. Defendant suggested to plaintiff that the almirah of the deceased may be opened in the presence of Mrs. Beena Kurian, daughter of deceased sister of plaintiff and defendant, on the Saturday following Mrs. Martha David Tharakan's death. But on 9-6-1982, plaintiffs wife requested the defendant to open the almirah in order to locate the key of the locked drawer. Then Pramod, son of the defendant, who was in the adjoining room, stated that the key was on top shelf itself. When the almirah was opened, plaintiffs wife saw a cover which was placed on the top shelf. Plaintiffs wife informed the plaintiff about the presence of a cover on that shelf, since no cover was seen on the top of the clothes on many occasions when the almirah was opened ( while the deceased was in the hospital and subsequently till her funeral on 6-6-1982. On Saturday, succeeding the date of death of the testatrix, the almirah was opened. When that cover was taken out, it was found to contain two copies of the Will executed by the testatrix in 1974. Some of the signatures of the testatrix in those copies were scored off and the word 'cancelled' written at some places. Neither the scoring off the signatures nor the writing 'cancelled' were done by the testatrix. Testatrix had no intention to cancel the Will executed by her in 1974. When the defendant came for the 40th day rites, she showed two letters stated to have been written by the deceased expressing her intention to cancel the 1974 Will, subject to the condition that defendant should receive a sum of Rupees 70,000/- in satisfaction of her share. According to the plaintiff, Mrs. Martha David Tharakan did not die intestate and that the Will executed by her in 1967 and 1974 govern the succession to her estate. At the time when Martha David Tharakan is alleged to have cancelled the Will, she was not havingtestamentary or even physical capacity and act of cancellation could not and would not have been made by her at all. The application for Letters of Administration was filed in this Court, since it is required to have effect throughout India.
6. The contentions raised by the defendant in the affidavit filed in support of the caveat, which is treated as the written statement, are to the following effect.-- Smt. Martha David Tharakan expired on 5-6-1982 at her residence in Ernakulam. The deceased did not leave behind any effective Will and Testament and that she died intestate. Consequently, the assets have devolved on the legal heirs by succession. Defendant is not aware of the execution of the Will dated 9-4-1967 or of the Codicil dated 31-7-1969. That Will and the Codicil have been totally revoked by execution of the Will dated 18-7-1974. Consequently, the Will of 1967 and the Codicil of 1969 cannot take effect because the 1974 Will was subsequently revoked by the testator. Deceased did purport to execute a Will in 1974, which she subsequently revoked in 1980. Three identical handwritten copies of the Will had been prepared, and signed and attested simultaneously. One signed document was given to plaintiff for his keeping. Deceased intended to entrust one document with her brother Advocate Sri E.V. Mathew and the other with Advocate Sri C.P. George Tharakan. But, Advocate Sri. E.V. Mathew declined to accept the responsibility in view of his advanced age and failing health. So, both the remaining documents were entrusted with Advocate Sri. C.P. George Tharakan, until the deceased got the documents back for the purpose of changing it. Early in December, 1980, defendant received two inland letters from deceased. Those letters dated 30-11-1980 were in the handwriting of the deceased. One was in continuation of the other. By that letter, defendant was informed that deceased has cancelled the Will and that she was proposing to execute a new Will. Sometime in or about November, 1980, deceased obtained the two documents held by Advocate Sri. C.P. George Tharakan and revoked them bywriting the word 'cancelled' on the body of the said documents and scoring off several of the signatures appearing in the documents, with the intention to revoke the same. Apparently, deceased called for the remaining copy in the custody of the plaintiff, but he did not part with it. So, the fact of cancellation of 1974 Will could not be recorded on that copy. After the funeral, plaintiffs wife suggested the defendant to stay in the deceased's house with her son Vinod and Mrs. Beena Kurian. She handed over the keys of the house and the aimirah, wardrobe etc. Defendant opened and used only the wardrobe. She never opened the aimirah. Advocate Sri C.P. George Tharakan met the defendant on 8-6-1982 to convey his condolence. Then he told that three handwritten copies of the Will had been signed and attested, that one copy was entrusted with the plaintiff and the remaining two copies were entrusted with him for safe custody. He also told the defendant that the copies were taken back by the deceased and that he had no further information about the same. Plaintiff's wife asked for the keys of the aimirah on 9-6-1982, saying that she wanted to open it and search for the key of the locker. Before anything could be said to dissuade her from opening the aimirah till Saturday, the 12th of June, 1982, defendant's son Pramod, who was sitting in the adjoining room, said that the bunch of the keys was on the top of the wardrobe. She took out the bunch of keys from the top of the wardrobe, opened the aimirah, took out the key of the locked drawer, opened the drawer and rummaged the contents. Defendant could not precisely see what plaintiffs wife was doing with the contents of the aimirah. She closed the locker, placed the locker-key in the aimirah, locked the aimirah and put back the key bunch on the top of the wardrobe. On two more occasions she opened the aimirah stating that some former servants have come from Pallikkara and they have to be given some of the old clothes of the deceased. Mrs. Beena Kurian came to the deceased's house on 12-6-1982. In the presence of plaintiff and defendant, the aimirah was opened. One long envelope was located in the top shelf. When it was taken out and opened, two cancelled Wills were foundin it. Neither the defendant nor her sons had seen or handled the said Wills at any time before. Since the Will executed on 18-7-1974 was cancelled by the testatrix, she must be deemed to have died intestate. Consequently, plaintiff is not entitled to any of the reliefs asked for.
7. On the side of plaintiff, P.Ws. 1 to 4 were examined and Exhibits A1 to A16 were proved. P.W. 1 is the plaintiff himself. Defendant got herself examined as R. W. 1. Her son was examined as R.W.2. On her side, Exhibits B1 and B2 were proved.
8. Original suit was registered after the witnesses were examined and the documents were proved. On registering the petition as an Original Suit, issues were raised. After raising the issues, contesting parties were asked whether they require any further evidence to be let in. Learned counsel appearing on either side submitted that they do not want any further evidence to be let in. Thereupon, arguments were heard.
9. The following issues were raised for trial: --
(1) Whether the Will executed in 1974 by the deceased, Martha David Tharakan is her last Will and Testament.
(2) Whether the Will of 1974 was revoked as contended by the defendant.
(3) If the Will of 1974 has been revoked, whether the Will executed by Martha David Tharakan in 1967 and the Codicil of 1969 revive.
(4) Relief and costs.
10. Issues 1 and 2 :-- On the facts of this case, I consider that these issues can be considered together. The fact that deceased Mrs. Martha David Tharakan executed a Will in triplicate on 18-7-1974 is not in controversy. In paragraph 7 of the written statement, it is averred :--
'This respondent has no contemporaneous knowledge of the Will dt. 18-7-1974, although it has subsequently come to her knowledge that the deceased did purport to execute aWill in 1974, which she subsequently revoked in 1980.'
Defendant has also admitted in the written statement that three identical handwritten copies of the Will had been prepared and signed and attested simultaneously. P,W. 3 is Advocate Sri. C.P. George Tharakan. He is an attestor to the Will dated 18-7-1974. He stated before Court that he himself and the other attestor Sri. Jim saw the testator signing the Will and that they attested the same in her presence. He went on to state that the Will was executed in triplicate at the testator's house near Ravipuram and that one copy of it was handed over to him for safe custody. He kept the copy for some time in his house and thereafter in a locker in a bank. In cross-examination, his statement regarding the execution of the Will and its attestation were not challenged. So, I hold that the Will dated 18-7-1974 was properly executed in accordance with the provisions contained in the Indian Succession Act, 1925. None has got a case that the deceased had executed any testament subsequent to 18-7-1974. Therefore, it can safely be held that the Will dated 18-7-1974 is the last Will and Testament of deceased Mrs. Martha David Tharakan.
11. Contention raised by the defendant is that the Will executed by the testatrix was cancelled by her towards the end of 1980 and so, the said Will can never be considered to have any validity after 1980. In the nature of this contention, the question that arises for consideration is whether the Will dated 18-7-1974 was validly revoked.
12. Section 70 of the Indian Succession Act, 1925, hereinafter referred to as 'the Act', provides for revocation of unprivileged Will or Codicil. It is in the following terms :--
'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 hereinbefore required to be executed, or by the burning, tearing or otherwise destroying the same by the testator or by some person in his presenceand by his direction with the intention of revoking the same.'
It is common case that the first portion of the above Section does not apply to the facts in this case. The contention is that the latter portion of the Section applies to the instant case in the sense that the Will dated 18-7-1974 has been 'otherwise destroyed' by the testator. As per the latter portion of Section 70, an upprivileged Will or Codicil shall be revoked 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. Judicial pronouncements are to the effect that the words 'burning', 'tearing' or 'otherwise destroying' should be understood 'ejusdem generis'. Jarman on Wills, Volume I, Eighth Edition explains the meaning of the words 'otherwise destroying', at page 162, as follows: --
'The words 'otherwise destroying' are to be taken to mean a destruction ejusdem generis with the modes before mentioned; that is, destruction, in the proper sense of the word, of the substance or contents of the Will, or, at least, complete effacement of the writing, as by pasting over it a blank paper; and not a 'destroying' in a secondary sense, as by cancelling or incomplete obliteration.'
13. Defendant wants this Court to hold that the Will dated 18-7-1974 ceased to have legal effect on account of the statement made by the testatrix in Exhibits B1 and B2 letters that she cancelled the Will and on account of the scoring off of some of the signatures with the writing 'cancelled 'in Exhibits A4 and A5 copies. Exhibits B1 and B2 are two letters stated to have been written by deceased Martha David Tharakan to the defendant. Exhibit B1 was dated 28-11-1980, but seen corrected as 30-11-1980. Exhibit B2 is also dated 30-11-1980. Exhibit B2 would show that it is in continuation of an earlier letter. Plaintiff, as P.W. 1, admits that the handwriting in ExhibitsB1 and B2 are similar to that of the testatrix. Defendant, the daughter of the testatrix, has categorically stated that they are in the handwritings of her mother. Plaintiff, as P.W. 1, admits that Exhibit A2, the Will executed by Mrs. Martha David Tharakan on 9-4-1967, was written by her. The handwriting in Exhibit A2 has striking similarity with those in Exhibits B1 and B2. So, 1 have no hesitation in holding that Exhibits B1 and B2 are letters written by deceased Mrs. Martha David Tharakan. Exhibit B1 contains a statement to the effect that she cancelled her Will two days prior to the date of the letter. This means that she had cancelled the Wills towards the end of November, 1980. The cancellation made mention of in Exhibits B1 and B2 can have reference only to Exhibits A4 and A5, copies of the Will. Exhibit A4 Will was written in four sheets of paper. At the bottom of all pages, Mrs. Martha David Tharakan had affixed her signature. At the 4th page immediately after the body of the Will, she signed as executant of the Will. Below that, the attestors and the document writers affixed their signatures. The executant's signature seen at the bottom of all the pages were scored off with pen. After scoring off the signatures seen at pages 1 and 4, the word 'cancelled' is seen written. Even after the scoring, the signatures are clearly discernible. The signature of the executant and those of the attestors in Exhibit A4 copy were not tampered with Exhibit A5 copy of the Will is also seen written in four sheets of paper. At the bottom of all pages, Mrs. Martha David Tharakan had affixed her signature. All those signatures are seen scored off with pen and the word 'cancelled' written. On the 4th page, immediately after the body of the Will, Mrs. Martha David Tharakan had affixed her signature as the executant. That signature has been attested by two attestors. Thereafter the document was signed by the scribe and the licenced document writer, Signatures of Martha David Tharakan as the executant, signatures of the attestors and those of the licenced document writer and scribe are not seen tampered with. Can this effacement of the signature by scoring with pen be sufficient revocation of the Wilt?
14. Executant of a Will is not required by law to sign at the bottom of all pages of the Will. No provision of law requiring the testator to affix signature in the bottom of allthe pages of the document has been brought to my notice. After completing the document, the executant is to sign the same. That signature of the executant is to be attested by two attesting witnesses. Signatures of Martha David Tharakan in Exhibits A4 and A5 copies of the Will as executant of the Will has not been tampered with. Nor are the signatures of the attestors seen just below it effaced. So, the signature of the executant of the Will seen in Exhibits A4 and A5 copies are intact. That signature is seen to have been attested by two witnesses. Those signatures have been proved by P.W. 3. They have not been destroyed in any manner whatsoever.
15. Since Section 70 of the Act is very nearly the same as the wording of the English Statute, it will be advantageous to examine the legal position as seen in English decisions. In Cheese v. Lovejoy, 25 WR 853 testator drew his pen through the lines of various parts of his Will, wrote on the back of it 'This is revoked', and threw it among a heap of waste papers in his sitting room. A servant took it up and put it on a table in the kitchen. It remained lying about in the kitchen till testator's death, seven or eight years afterwards, and was then found uninjured. The Court negatived the contention that the Will was revoked, holding:--
'The will was not revoked, the words 'or otherwise destroying' in Wills Act, 1837 not being satisfied, as, whatever testator intended, the Will had not been actually injured.'
From this, it is clear that for a Will to be revoked, the destruction must be total destruction similar to 'burning' or 'tearing'.
16. For treating a Will as having 'otherwise destroyed' under the latter part of Section 70 of the Act, the act of destruction must be similar to 'burning' or 'tearing'. A mere . symbolical destruction is not sufficient. Further, the destruction must be with the requisite intention of revoking the same. In Kharshetji v. Kekobad, AIR 1928 Bombay 194 the Bombay High Court had to consider the scope and effect of 'otherwise destroyed' seen in the latter part of Section 70. The facts in that case are to the following effect.-The testatrix put a cross in ink across the front page of the Will and wrote out words in Gujarati to the effect 'This Will is cancelled'. She signed below that writing and put the date. This writing and signature by the testatrix was contended to be sufficient revocation of the Will. After surveying the entire case law, Indian and English, on the point, the learned Judge came to the conclusion that the Will was not revoked, or otherwise destroyed, as contemplated by the latter part of Section 70 of the Act.
17. An unprivileged Will is to be revoked. It is not to be cancelled. Cancellation does not appear to be a mode of revocation of the Will. Williams on Wills, Volume I, Fifth Edition, at page 136 states :--
'A Will or Codicil is not destroyed by being struck through with a pen, even though done with intention to revoke, nor by the word cancelled being written across it, for cancelling is not now one of the modes of revocation.'
The case put forward by the defendant is that the testatrix's intention to cancel the Will is clear from Exhibit B1, since it states that she had cancelled the Will two days prior to 30-11-1980. The signatures of the executant seen at the bottom of all pages of Exhibits A4 and A5 have been scored off and in some pages the word 'cancelled' was written. That should, according to the defendant, be treated as sufficient to constitute revocation of the Will. I am afraid, this contention has only to be rejected. The Supreme Court in Jaswant Kaur v. Amrit Kaur, AIR 1977 SC 74 observed that the revocation of an unprivileged Will is an act only a little less solemn than the making of the Will itself and that has to comply with the statutory requirements contained in Section 70 of the Act. Defendant has no case that the revocation pleaded satisfy the requirement of execution of a Will. Exhibit B-1 cannot be treated as a writing declaring an intention to revoke the Will, because that has not been attested by two witnesses as required by law.
18. As stated earlier, Will dated 18-7-1974 was executed in triplicate. It is common case that P.W. 3 was entrusted with it for safecustody. According to the plaintiff, one copy alone was entrusted with P.W. 3 for safe custody, while defendant would state that two copies were entrusted with him. The specific case put forward in the written statement by the defendant is that one copy of the Will was entrusted with the plaintiff and two copies with P.W. 3. The testatrix took back two copies from P.W. 3 and cancelled the same. The cancellation was prior to Exhibit B1 letter, that is 30-11-1980. If that be the case, the testatrix must have got back the two copies, which were entrusted with P.W. 3 for safe custody, prior to 30-11-1980 and cancelled the same. The evidence in this case is against this case. P.W. 3 has categorically stated that he was entrusted with one copy of the Will only. Thai copy was taken back by testatrix towards the end of 1980 or early 1981. So, the Will that was cancelled as stated in Exhibit B1 could not have been the copy taken back from P.W. 3 towards the end of 1980 or early 1981. In such a situation, I accept the evidence given by P.W. 1 that Mrs. Martha David Tharakan handed over a copy of the Will to him when she was to leave for treatment at Kolencherry and that copy is the one marked in this case as Exhibit A3. So, even conceding for argument that the deceased herself had struck off some of the signature seen in Exhibits A4 and A3, copies of the Will, she did not tamper with the copy, Exhibit A3, and that she handed it over to the plaintiff.
19. Defendant, as R.W. I, categorically stated that her mother told her that the Will of 1974 was cancelled for executing a new Will. Since even according to the defendant the cancellation of the Will of 1974 was for preparing a new Will, the principle of 'dependent relative revocation' will come into play. This principle has been stated by Jarman on Wills, Volume-I, Eighth Edition at page 165 as follows: --
'Where the act of destruction is connected with the making of another Will, so as fairly to raise the inference that the testator meant the revocation of the old to depend upon the efficacy of the new disposition intended to be substituted, such will be the legal effect of the transaction; and therefore, if the Will intend-ed to be substituted is inoperative from defect of attestation, or any other cause, the revocation fails also, and the original Will remains in force.'
In the instant case, no one has a contention that the testatrix executed any Will after 1974. Therefore, the Will of 1974 even if revoked, the revocation failed and hence it must be treated to be in force.
20. Arguments were advanced by the defendant to establish that the testatrix herself struck off her signatures seen at the bottom of Exhibits A4 and A5, copies of the Will, and wrote the word 'cancelled' for revoking the Will. According to the plaintiff, R.W. 1 did tamper with Exhibits A4 and A5 while she was having control of the almirah. This controversy is not to be resolved in this proceedings, because the so-called 'destruction' of Exhibits A4 and A5 does not constitute revocation of the Will as per the provisions of Section 70 of the Act. Therefore, I am not dealing with the various circumstances highlighted by the plaintiff to show that R.W. Hampered with Exhibits A4 and A5.
21. From the above, I come to the conclusion that the Will executed by the testatrix on 18-7-1974 has not been revoked in accordance with law. It continues to be the last Will and Testament of Martha David Tharakan. Issues 1 and 2 are thus found in favour of the plaintiff.
22. Issue No. 3 : -- Deceased had executed a Will on 9-4-1967 and a Codicil on 31-7-1969. They are marked as Exhibits A2 and A2(a) respectively. Exhibit A2 was attested by Advocates Sri E. V. Mathew and Dr. Chacko George. These attestors are no more. Son of Advocate Sri E. V. Mathew was examined as P.W. 4. He has identified his father's signature seen in Exhibit A2 Will. Exhibit A2(a) Codicil was attested by Sri E. V. Mathew and his wife Anna Mathew. P.W. 4 identifies the signatures of these attestors in Exhibit A2(a). P.W. 4 has not cross-examined. From this, it is to be held that Mrs. Martha David Tharakan had executed Exhibit A2 Will and Exhibit A2(a) Codicil. Since he executed the Will dated 18-7-1974, Exhibits A2 and A2(a) must be deemed to have been revoked. So, if the Will dated 18-7-1974 has been revoked, Exhibits A2 and A2(a) will not revive. On issues 1 and 2 it has already been held that Will dated 18-7-1974 has not been revoked. So, Exhibits A2 and A2(a) have to be held to have no validity whatsoever.
23. Issue No. 4 : -- In the light of the finding arrived at by me earlier in this judgment, I direct the issue of Letters of Administration with Exhibit A3 Will attached to it. Taking into consideration the near relationship of the parties, I direct them to suffer their respective costs.