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. The will having been made prior to the marriage of the deceased to defendant No. 1, defendant No. 1 is naturally not mentioned in the will. Defendant No. 1 contends that the will stood revoked by the subsequent marriage of the deceased to her. She claims a share in the estate of the deceased as on intestacy. She contends that by virtue of Section 69 of the Indian Succession Act, 1925 and Section 21 of the Special Marriage Act, 1954 on the marriage of the deceased to her the will stood revoked.
4. 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.
5. The position, therefore, is that while under Section 69 of the Indian Succession Act marriage revokes the will, Section 70 as modified by item 4 of Schedule III and applied to Hindus provides that a will shall not be revoked by marriage. Similarly, the proviso to Section 57 also puts a restriction on the application of the Indian Succession Act to Hindus inasmuch as it provides that marriage shall not revoke a will or codicil.
6. In view of Section 21 of the Special Marriage Act, 1954 I am of the opinion that where a Hindu marries under the Special Marriage Act, the restrictions with regard to the marriage not revoking a will contained in proviso to Section 57 and modified Section 70 do not apply to such Hindus and Section 69 would apply. The consequence is that in the case of Hindus whose marriage is solemnized under the Special Marriage Act, the marriage would result in the revocation of the will. I am of course not referring to wills made in exercise of a power of appointment or privileged wills, as it is not necessary for me to decide in this matter with regard to those wills.
7. The answer to question No. 1 in this originating summons, therefore, is that the last will and testament dated August 7, 1958 of the deceased Dipendra Sankar Guha stands revoked by his marriage with defendant No. 1 on August 25, 1968 under the Special Marriage Act, 1954 and consequently the estate will devolve on those entitled to it as on intestacy. Costs of the executors and of the other parties appearing before me today shall come out of the estate.