While acknowledging that revocability is the salient feature of the Will, the Bombay High Court dismissed the appeal and held the Respondent as owner of the property by way of a subsequently altered Will.

The Court held, "In view of Section 62, a Will is liable to be revoked or altered by the maker of it at any time when he/she is competent to dispose of his property by Will. Revocability is the salient feature of Will."

A Single Judge Bench of Justice Urmila Joshi Phalke observed that “It is statutorily granted under Section 62 of the Indian Succession Act. It is further observed that indeed it would be implicit in the right to life itself. It would impelling upon the freedom of an individual to deal with his properties freely and fully if he would not be entitled to deal with them during his/her lifetime inter vivos by selling, alienating or gifting it as he wish, or upon his/her death by a testamentary deposing, bequeathing it to whoever he/she chose”.

Advocate Ramnik Kaur Dadiyal appeared for the Appellants and Advocate Mahesh Masodkar appeared for the Respondents.

In a brief background, a property is in dispute between Respondent (second Plaintiff - Swarnlata) and the Appellant (Defendant - Sheela). In 2012 a suit was filed by Swarnlata and first Plaintiff (Ruth, mother- in-law of Swarnlata) for ownership on basis of a Will executed in 2003. While the suit was pending, Ruth died. In 2003, Sheela had driven Ruth out of the house, and filed a civil suit against her for specific performance of contract on basis of an oral agreement between her and Ruth under which it is contended that she agreed to sell the property by sale. Sheela filed application for intervention and along with it also filed a counter claim for recovery of damages caused to her first-floor due to construction conducted by Sheela on ground floor. Later, she and Ruth filed a civil suit in 2007, for recovery of rent and eviction of Sheela. However, later suit was withdrawn. Sheela raised objections that 2012 suit is bared by Order 2 Rule 2 as the Swarnlata could have raised the point of Will when she filed suit for recovery of damages. They also challenged the Will made in favour of Swarnlata to be fabricated. However, the suit was decreed in favour of Plaintiff by the Trial Court and was upheld by the District Court. Hence, present appeal.

After considering the submission, the Bench observed that cause of action for suit for recovery of damages and suit for eviction was on basis of Landlord and Tenant.

The Bench clarified that since the suit of 2012 was instituted on the ground of Will, hence Order 2 Rule 2 of CPC shall not apply.

“It is crystal clear that present suit was filed during the pendency of the suit bearing No.2571 of 2012. Earlier relief claimed was on the contention and on the ground as landlord and tenant and in the present suit possession was claimed on the basis of Will, as in view of the Will plaintiff No.2 became the owner of the suit property. There is no dispute regarding the well settled legal position narrated by the Hon’ble Apex Court and this Court in catena of decisions relied upon by the defendants, but same will not helpful to the defendants in the present case as facts are not identical”, added the Bench.

With respect to the issue of Will, the Bench agreed with the adjudication made by Trial Court and First Appellate Court and observed that deceased Ruth has bequeathed her property to second Plaintiff by revoking her earlier Will in the change circumstances that she was driven out of the house by first Defendant to whom she has given shelter in her own house.

“Deceased Ruth was driven out of the house which was owned by her and she compelled to file the complaint and took the shelter at second Plaintiff which made her to revoke the earlier Will”, added the Bench.

Therefore, based on the said Will, the High Court concluded that second Plaintiff became the owner of the suit property, and accordingly held that Trial Court as well as First Appellate Court rightly held Plaintiff is entitled for possession of suit property in view of the said Will.

Cause Title: Sheela Assav Thomas and Ors. v. Swarnalata

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Bombay High CourtJustice Urmila Joshi Phalke

Pankaj Bajpai