Identical Wills Lack Mutuality Absent a Clear Agreement Restricting the Surviving Spouse’s Right of Alienation.

The parents of the parties, Sh. Jagdish Chandra Kapur and Smt. Jaiwanti Kapur, jointly owned a property in Pitampura, Delhi.

On April 20, 2006, both parents executed identical Wills bequeathing their shares to the surviving spouse, with a subsequent devolution to their children (the parties herein) if the property subsisted after the survivor's death.

Following the mother's death in 2007, the father executed Gift Deeds (2009/2010) and a new Will (2010) in favor of Respondent No. 1, effectively altering the distribution set in the 2006 Wills.

The original plaintiff (Appellant) filed a suit for partition and declaration, contending the 2006 Wills were "mutual wills" that created a binding life interest, rendering the father's subsequent alienations void.

The Trial Court dismissed the suit, holding the father became the absolute owner.

The court applied the equitable doctrine of "mutual wills," noting that for Wills to be mutual (and thus irrevocable), there must be a clear, definite agreement between testators to create irrevocable interests, which cannot be inferred solely from the execution of identical Wills.

It relied on Dilharshankar C. Bhacheh v. Controller of Estate Duty and K.S. Palanisami v. Hindu Community in General to establish that the survivor is treated as a trustee only if an agreement not to revoke is proved.

Krishna Kumar Birla v. Rajendra Singh Lodha was cited to affirm that similarity of terms is insufficient to establish such an agreement.

The court also applied Section 96 of the CPC regarding the powers of the Appellate Court.

The Court examined the specific language of the 2006 Wills, which stated the survivor would enjoy the property in their "own exclusive rights, interest and control" and "be able to dispose off the same".

The Court reasoned that the phrase "to meet his/her necessities, if any" did not create a life interest or a restrictive contingency but rather reinforced the survivor's autonomy.

It distinguished Vickram Bahl v. Siddhartha Bahl, noting that in the present case, the Wills lacked any restrictive covenants or express prohibitions against alienation.

The Court found that the provision for children to inherit only "if the above property subsists" proved that the testators contemplated and permitted total alienation by the survivor.

Therefore, no trust or binding agreement existed to prevent the father from disposing of the property.

Consequently, the father was fully competent to execute the Gift Deeds and the 2010 Will.

The Court affirmed the Trial Court's judgment but noted that Respondent No. 1 remains bound by his statement to honor the monetary bequests (Rs. 25 lakhs and Rs. 15 lakhs) stipulated in the father's 2010 Will.