Revocation of Will on Account of Marriage of Testator – An Analysis of Sections 69 and 70 of the Succession Act, 1925

A will is defined under Section 2(h)¹ of the Succession Act, 1925² (ISA) as “the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death”.

Section 69³ of the ISA is an interesting provision. It reads:

Revocation of will by testator’s marriage.— Every will shall be revoked by the marriage of the maker, except a will made in exercise of a power of appointment, when the property over which the power of appointment is exercised would not, in default of such appointment, pass to his or her executor or administrator, or to the person entitled in case of intestacy….

Section 70⁴ of the ISA further states,

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 herein before required to be executed, or by the 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.

Since this is a pre-independence statute there are no records of any parliamentary debates on the Act or the specific sections. It is also interesting to note that the provisions have never really been tested in the courts of law barring a couple of occasions.

In Kalyan Kumar Nag v. Dina Guha⁵, the Bombay High Court after discussing the provisions of Section 21⁶ of the Special Marriage Act, 1954⁷ (SMA) vis-à-vis Sections 57⁸, 69 and 70 of the ISA came to a conclusion that in case of Hindus who marry under the Special Marriage Act, 1954 the marriage would result in revocation of the will.

Suraj Lamp & Industries (P) Ltd. (2) v. State of Haryana⁹ only makes a fleeting reference to Sections 69 and 70 of the ISA while discussing on the scope of a will in that a will would stand revoked on marriage.¹⁰

Rupinder Singh v. Sita Devi¹¹ while quoting Kalyan Kumar Nag judgment¹² came to a conclusion that Section 70 has no application in the case of wills executed by a Hindu, Buddhist, Sikh or Jain.

In order to understand the meaning and scope of Sections 69 and 70 of the ISA, one would necessarily have to resort to also understanding Sections 21¹³, 21-A¹⁴ of the Special Marriage Act, 1954, Sections 57 and 58¹⁵ of the Succession Act, 1925.

Section 21 of the Special Marriage Act, 1954 provides that notwithstanding any restrictions contained in the ISA with respect to its application to certain communities, succession of any person whose marriage is solemnised under the SMA shall be regulated by the provisions of the ISA.

Section 21-A of the SMA provides that where the marriage is solemnised under the SMA of any person who professes Hindu, Sikh, Buddhist or Jain religion with a person who professes Hindu, Sikh, Buddhist or Jain religion, Sections 19¹⁶, 21 and a part of Section 20¹⁷ of the SMA shall not apply.¹⁸

Section 57 of the ISA provides for the section to be read with Schedule 3 of the ISA¹⁹ including the restrictions and modifications provided therein and states that the provisions under testamentary succession²⁰ shall apply to all wills and codicils made by Hindu, Buddhist, Sikh or Jains within the territories subject to the Lieutenant-Governor of Bengal and within the local limits of the ordinary original civil jurisdiction of the High Courts of Madras and Bombay.²¹ This also includes wills and codicils made outside these territories provided that it included immovable property situated in these territories.²² Further, it also extended to Hindu, Buddhist, Sikh and Jain to which those provisions are not applied by the first two clauses.²³ The rider for all provisions of Section 57 however being that marriage shall not revoke the will or codicil.

Section 58 of the ISA provides that provisions of Part VI shall not apply to testamentary succession to property of any Muhammadan nor to property of any Hindu, Sikh, Buddhist or Jain except those that fall under Section 57 of the ISA.

Schedule 3 to the ISA provides the list of sections of Part VI that would be applicable to wills and codicils described in Section 57 wherein Section 70 is mentioned with a rider that in applying the said section the words “than by marriage or” shall be omitted.

Analysis

A conjoint reading of all the aforesaid provisions would establish the following propositions:

1. That the judgment of the Bombay High Court²⁴ is of the year 1974 therefore the reliance upon the same by the Punjab & Haryana High Court²⁵ is erroneous since the Court lost sight of the insertion of Section 21-A in the SMA vide Amendment in 1976.²⁶

2. That though the general rule per Sections 69 and 70 is that a will stands revoked on marriage of the testator, the same is subject to the religion/faith of the testator and restrictions contained in Sections 57 and 58 of the ISA.

Conclusion

The conundrum, in my opinion, is the paradox of the concept of the will when juxtaposed with the restriction imposed on it due to marriage. A will by definition is a statement of the intention of the testator concerning bequeathing his property. The fact that the same stands revoked automatically by marriage of the testator indicates that the makers of the statute necessarily wanted the testator to rethink on his bequest due to change of his/her status. Whether this is warranted or not is certainly debatable since there appears to be an implied assertion that a rethink is mandated on change of status. This, I feel goes against the very element of free and independent will which stands compromised due to an automatic revocation of the will. No doubt, the testator can always make another will containing the same bequest as before however this very exercise if needs to be undertaken goes against the essence of what a will stands for.