KALYAN KUMAR NAG Vs. DINA GUHA

JUDGEMENT

(1.) This is an originating summons taken out by the executors of the last will and testament dated August 7, 1958 of one Dipendra Sankar Guha who died in Bombay on November 24, 1971. The query posed by the executors on this summons is whether the said will and testament stands revoked by the subsequent marriage on August 25, 1968 of the deceased with defendant No. 1, under the Special Marriage Act, 1954.

(2.) THE few facts relating to the matter are as follows: On June 23, 1955 the deceased Dipendra Sankar Guha married one Johanna Mathews under the Special Marriage Act, 1954. Defendants Nos. 2 and 3 are the children of the deceased from the said marriage. On August 7, 1958 the deceased made the will which is exh. 'A' to the plaint. On April 26, 1962 the marriage of the deceased to Johanna Mathews was dissolved by a decree passed by the Bombay City Civil Court in M.J. Petition No. 643 of 1962. Thereafter on August 25, 1968 the deceased married defendant No. 1 under the Special Marriage Act. The deceased died on November 24, 1971. -

(3.) SECTION 21 of the Special Marriage Act, 1954 provides that notwithstanding any restrictions contained in the Indian Succession Act, 1925, with respect to its application to members of certain communities, succession to the property of any person whose marriage is solemnized under the Special Marriage Act shall be regulated by the provisions of the Indian Succession Act. The restrictions with respect to the application of the Indian Succession Act to Hindus are contained in Sections 57 and 58 of and Schedule III to the Indian Succession Act. With regard to wills made after January 1, 1927, Section 57 and el. (c) thereof provide that the provisions of Part VI, which are set out in Schedule Ill, would, subject to the restrictions and modifications specified therein, apply to all wills and codicils made by a Hindu after January 1, 1927. Section 57 also contain a proviso that marriage shall not revoke any such will or codicil as referred to in the section. Schedule III does not refer to Section 69 of the Indian Succession Act. Therefore, Section 69 would not apply to Hindus. Item 4 of Schedule III refers to Section 70 which is applied to Hindus after omitting the words 'than by marriage or'. In my opinion there is an error in this item inasmuch as the word 'than' ought not to be omitted. If that word is omitted, Section 70 becomes ungrammatical. I shall, therefore, retain the word 'than' in the section and omit only the words 'by marriage or'. As so modified, Section 70 in its application to Hindus provides that no will or codicil or any part thereof shall be revoked otherwise than by another will or codicil. This means that a will of a Hindu shall not be revoked by marriage. This would undoubtedly be a restriction in respect, of the application of the Indian Succession Act to Hindus because Section 69 provides that every will shall be revoked by the marriage of the maker except certain wills with which we are not concerned.