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Showing contexts for: joint will irrevocable in Priyamvada Devi Birla (Since Deceased) vs Madhav Prasad Birla (Since Deceased) on 11 March, 2005Matching Fragments
...Before the death of the first executants the agreement remained contractual one in consideration of mutual promises. It could have been at that stage revoked by mutual agreement or even by unilateral breach, giving rise at the most to an action for damages. But after death of the first one without revoking his or her own Will makes the joint Will irrevocable by the survivor. But there must be an agreement that the Wills would not be revoked after the death of one of the executants or disposition will not be made contrary to the will after the death of one of the executants or disposition Will not be made contrary to the Will after the death of one of the executants. Such an agreement may appear from the Will or may be proved outside the Will but that is not established by the mere fact that the Wills are in identical terms. If such an agreement is shown each party remains bound. A different and separate agreement must be spelled out not to revoke the Will after the death of one of the executants. That agreement must be clear though need not by a separate writing but must follow as a necessary implication, which would tantamount to an express agreement.
The predominant intention of the executants at the time of the execution, after the acceptance of the benefit of the execution makes the Will in this case irrevocable by the survivor of the executants....
73. In case of Kuppuswami Raja v. Perumal Raja the Division Bench of Madras High Court has also discussed and considered the old English case on this subject, of Dufour v. Pereira (1769) 21 ER 332 has held in paragraph 32 amongst other that :
...But after a careful consideration of all the aspects of the matter, we are inclined to take the view that a joint mutual Will becomes irrevocable on the death of one of the testators if the survivor had received benefit under the mutual Will, and that those need not be a specific contract prohibiting revocation when the arrangement take the form of not two simultaneous mutual Wills but one single document. In fact in some of the cases referred to above this aspect that if the two testators had executed one single document as one single mutual Will the position may be different is actually adverted to. In our opinion, if one single document is executed by both the brothers using the expression 'our property' 'our present wishes', 'our will' and such similar expression, it is strong cogent evidence of the intention that there is no power to revoke except by mutual consent.