Principle of Incorporation - Indian Laws - General

Principle of Incorporation The rule of incorporation by reference is well-known. One document is incorporated by reference in another when it is referred to, as if it would form an integral part thereof. [See Sarabjit Rick Singh v. Union of India (2008)2SCC417 ]. Principle of incorporation by reference was evolved so as to avoid unnecessary repetition of the same documents again and again in different parts of the original document. For invoking the said principle, a document must be in existence. It cannot be brought into existence later on. The executor of a document must know what the other document which he intends to incorporate in the Will contains. This aspect of the matter has been considered by the House of Lords in William Henry Singleton v. Thomas Tomlinson and Ors. 1878 (3) AC 404, wherein it was held: The question which arose in the Court below was whether in construing the will and in determining what the meaning of the testator was, this schedule could be looked at; and, my Lords, on that point it will be quite sufficient if I refer to the two propositions which were laid down, and which indeed were not challenged by any of the counsel at your Lordships Bar. It was said that there are certain cases in which, although a document is not admitted to probate, still it may be referred to in a will in such a way as that you are entitled to look at the document, because it is virtually incorporated in that which is admitted to probate; and the two propositions which were laid down as the tests of the case in which a document under those circumstances could be looked at were these: first, that it must be clearly identified by the description given of it in the will; and secondly, that it must be shown to have been in existence at the time when the will was executed. [See also Theobald on Wills, Sixteenth Edition, pages 59-61] In Halsbury s Laws of England, Fourth Edition, Paragraph 817 at pages 433-34, it is stated: Incorporation of documents: In certain cases documents referred to in a testator s will or codicil, though not themselves duly executed, may be incorporated in the will and included in the probate[Re Mardon [1944] P 109 at 112, [1944] 2 All ER 397 at 399.] Such a document must be strictly identified with the description contained in the will; but extrinsic evidence is admissible for the purpose of identification [See for instance, Allen v. Maddock (1858) I I Moo PCC 427; Re Almosnino (1859) I SW TR 508]. The reference must be to a document as an existing document [Re Mordon] and not to one which is to come into existence at a future date[Re Sunderland (1866) LR I P D 198; Re Reid (1868) 38 LJP M I; Durham v. Northen [1895] P 66; Re Smart [1902] P 238. Certainty and identification is the very essence of incorporation: Croker v. Marquess of Hertford (1844) 4 Moo PCC 339 at 366, per Dr. Lushington.] The onus of proving the identity of the document and its existence at the date of the will lies upon the party seeking to establish it [Singleton v. Tomlinson], but the court will draw inferences from the circumstances surrounding the execution of the will. If the will prima facie refers to the document as an existing document, then, even though it appears from the surrounding circumstances, namely the date of the signing of the document, that it was not in existence at the date when the will was originally executed, the document may nevertheless be admitted to probate, since the will is treated as speaking from the date of its re- execution by the codicil; but if the will, treated as speaking at the date of the codicil, still in terms refers to a future document, the document cannot be admitted to probate even though it was in existence at the date of the codicil. [ANIL KAK VERSUS KUMARI SHARADA RAJE AND ORS.- 2008 (4) TMI 833 - SUPREME COURT]