Mutual Will comes Into Effect on Death of Either of Joint Testators

Vickram Bahl & Anr. Vs Siddhartha Bahl & Anr. (Delhi High Court)

A joint and mutual Will becomes irrevocable on the death of one of the testators, if the survivor had received benefits under the mutual Will and there need not be a specific contract prohibiting revocation when the arrangement takes the form of not two simultaneous mutual Wills but one single document; (ii) that if one single document is executed by two brothers using the expressions ‘our property’, ‘Lour present wishes’, ‘our Will’ If and such similar expressions, it is strong cogent evidence of the intention that there is no power to revoke, except by mutual consent; (iii) that a Will is mutual when the two testators confer upon each other reciprocal benefits as by either of them constituting the other his legatee, that is to say, when the executants fill the roles of both testator and legatee towards each other; but where the legatees are distinct from the testators, there can be no position of a mutual Will; and, (iv) that in the case of mutual Will, he that dies first carries out his/her part of the contract into execution and the Court will not permit the other to break the contract.

 It thus follows that the Principle of, a mutual Will coming into effect and binding also the testator who may still be alive, on the death of one of the two testators, is well enshrined in the Indian Law.

The ownership of the portion of the property bequeathed under the mutual Will in favour of the plaintiffs comes into effect only on the demise of defendant No.2. On first blush, it appears that the defendant No.2, in presenti being the owner of the property, is entitled to dispossessed the plaintiffs. However, on further consideration and finding it to be the admitted position that the plaintiffs, since the lifetime of Wing Commander N.N. Bahl have been residing on the upper floors of the property and not finding any provision in the mutual Will with respect to dispossession of the plaintiffs therefrom and in the light of use in the mutual Will of the words ³ shall rest’ , I am of the view that the resting of the property in the defendant No.2, after the demise of Wing Commander N.N. Bahl, even though to the exclusion of his other heirs, is without any right to so dispossessed the plaintiffs from what has ultimately been bequeathed to them. Though the plaintiffs during the lifetime of defendant No.2 have no ownership or other rights even in the portion ultimately bequeathed to them, so as to entitle them to deal therewith but in the absence of any right found in favour of defendant No.2 to so dispossess the plaintiffs, the plaintiffs are entitled to permanent injunction against dispossession also, including through legal process. Though the counsel for the defendants cited Dilip D. Chowdhari supra in this context and contended that therein specifically right to continue in occupation had been conferred and which is not so in this case but I am unable to agree. In the present case, owing to the peculiarities pointed out, the plaintiffs even in the absence of any specific clause in the mutual Will permitting them to continue in occupation, are found to be entitled to continue in occupation.

FULL TEXT OF THE HIGH COURT ORDER /JUDGEMENT

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