The Kerala High Court has dismissed an appeal filed by the widow and two sons of a testator, affirming a District Court judgment that granted probate of a Will in favor of the daughter by ignoring an unauthenticated alteration. The Court held that under Section 71 of the Indian Succession Act, any alteration made in an unprivileged Will after its execution has no effect unless it is executed in the same manner as the Will itself.
Background of the Case
The dispute originated from the Will dated July 27, 1993, executed by late Kunhikrishna Kurup. The document was deposited with the District Registrar on the same day. Following the testator’s death, the Will was opened on December 6, 2006, in the presence of his son (the 2nd appellant) and registered.
The 1st respondent (daughter/plaintiff) initially believed the property was bequeathed to all children based on information from land acquisition proceedings. However, after obtaining a copy of the Will under the Right to Information Act in 2013, she discovered a visible correction on the second page. The word “daughter” (മകൾ) had been altered to “children” (മക്കൾ). She moved the District Court seeking a declaration that the properties were bequeathed exclusively to her and for the grant of probate by ignoring the tampered portion. The District Court, after converting the proceeding into a suit (O.S. No. 7/2015), ruled in her favor, leading to the present appeal.
Arguments of the Parties
The appellants (the widow and two sons) contended that the testator intended to benefit all children and that no manipulation occurred after the opening of the Will. They argued that the scope of probate proceedings is limited to the genuineness of the Will and that the District Court erred by conducting a “deep analysis” akin to a regular civil suit. They further highlighted that the mother was provided a right to reside in the building, suggesting a broader intent than an exclusive bequest to the daughter.
The 1st respondent (daughter) argued that if the intent was for the property to devolve on all children, there was no necessity to execute a Will, as that would happen via natural succession. She alleged that the correction was a manifest manipulation facilitated by a delay in re-depositing the Will after its registration in 2006.
Court’s Analysis
The Court, presided over by Justice S. Manu, observed that the alteration in the 8th line of page 2 was “visible even to the naked eye.” The Court relied significantly on Section 71 of the Indian Succession Act, which states:
“No obliteration, interlineation or other alteration made in any unprivileged will after the execution thereof shall have any effect… unless such alteration has been executed in like manner as hereinbefore is required for the execution of the will.”
The Court noted that there was no signature of the testator or subscription of witnesses near the alteration as required by the proviso to Section 71. Crucially, the Sub Registrar (DW5), who had copied the Will into the register in 2006, testified that there were no corrections in the original Will at the time he made the copy.
Regarding the jurisdiction of the Probate Court, Justice Manu observed:
“Examining whether there is any obliteration, interlineation, or alteration and deciding its effect in tune with the provisions of Section 71 of the Succession Act is necessarily a matter falling within the scope of enquiry by the probate court. Such an exercise cannot be equated with the examination of rights under the will.”
The Court also addressed the delay between the opening of the Will on December 6, 2006, and its re-deposit on December 13, 2006, concluding that the “redeposit was delayed to facilitate manipulation.”
Citations and Legal Principles
The judgment referred to several landmark cases regarding alterations in Wills:
- Dayanandi v. Rukma D. Suvarna [(2012) 1 SCC 510]: Clarified that alterations without proper execution have no effect.
- Surendra Krishna Mondal v. Rani Dassi [1920 SCC OnLine Cal 52]: Established that the presumption of law is that unattested alterations are made after execution.
- Ishwardeo Narain Singh v. Kamta Devi [(1953) 1 SCC 295]: Noted that a Probate Court is concerned with whether the document was duly executed and whether the testator had a sound mind.
Decision
The High Court found no merit in the appeal and affirmed the judgment of the Additional District Judge-V, Kozhikode. It held that probate could be granted by omitting the unauthorized alterations to give effect to the true intent of the testator. The appeal was dismissed with costs.
Case Details:
Case Title: P. Lakshmikutty Amma & Ors. v. V.K. Indira & Anr.
Case No.: MFA (Indian Succession Act) No. 18 of 2019
Bench: Justice S. Manu
Date: April 10, 2026
