*Property and Succession : Legal Issues of Will of Property*

*Property and Succession : Legal Issues of Will of Property*

Section 78 of Indian Succession Act, 1925 states that erroneous description of some part of the property can be rejected to give effect to the bequest.  If extrinsic circumstances are of such nature which would enable one to sufficiently identify the subject, there is no difficulty to hold that bequest has taken effect. In such circumstances, the wrong description will not make the bequest invalid. Section 26 of the Specific Relief Act, 1963 only refers for rectification of instruments if it happened on account of fraud or mutual mistake. It does not speak about the mistake committed by the testator in a Will. This Court is only concerned about the manner in which such rectification has to be done. If there is unanimity among the legal heirs who otherwise would have been inherited the property, they could very well justify the intention of the testator and there is no impediment under law in executing a rectification deed by such persons so as to correct the descriptions in a registered Will. The Stamp Act or the Registration Act does not define a rectification deed by assigning an exclusive meaning to it. The Registration Act provides a Table of fees under Section 78 of the Act. Table 1(s) under Section 78 refers a deed which can be treated as rectification deed and it states that the maximum fee leviable on such a deed at Rs.500/-. It gives sufficient indication as to, what is a rectification deed. It states that rectification deed does not create, transfer, limit, extend, extinguish or record any right. Therefore, wrong description which will not create, transfer or record any fresh right can be rectified through a rectification deed. It is made clear that such deed is possible only to correct an error or mistake. 

There is no exclusive definition being assigned under the Stamp Act or the Registration Act for a rectification deed, it has to be contextually understood by the nature of circumstances under which the deed has to be executed. Therefore, it is possible to execute a rectification deed by the legal heirs on unanimity to correct wrong description in a Will.

Case : Baburaj K.P v. State of Kerala [2019] GCtR 6652 (Kerala)