218341361-case-law-digest-on-will-and-probate.pdf

CASE LAW DIGEST ON WILL AND PROBATE COLLECTED FROM

DEDICATED TO

INTRODUCTION

What Is a Will? A document in which a person specifies the method to be applied in the management and distribution of his estate after his death. Definition of Will & Other Related Terms Will: A Will is a solemn document by which a dead man entrusts to the living to the carrying out of his wishes. S. S.2 (h) of India Succession Act, 1925[1]

provides that Will means the legal declaration of the intention of a person with respect to his property, which he desires to take effect after his death. Codicil

is an instrument made in relation to a Will, explaining, altering or

adding to its dispositions and is deemed to be a part of the Will. The purpose of codicil is to make some small changes in the Will, which has already been executed. An executor is appointed by the testator, as distinguished from an administrator who is appointed by the court. Where the Will confers the powers to collect the outstanding, pay debts and manage the properties, the person can be said to be appointed as an executor by implication. Probate is an evidence of the appointment of the executor and unless revoked, is conclusive as to the power of the executor. The grant of probate to the executor however does not confer upon him any title to the property. Letter of Administration is a certificate granted by the competent court to an administrator where there exists a Will authorizing him to administer the estate of the deceased in accordance with the Will. If the Will does not name any executor, an application can be filed in the court for grant of Letter of Administration for the property. Attesting means signing a document for the purpose of testifying the signature of the executants.

Essential Features of a Will The essential features areThe documents purporting to be a Will or a testament must be legal, i.e. in conformity with the law and must be executed by a person legally competent to make it. Further the declaration of intention must be with respect to the testator’s property It is a legal document, which has a binding force upon the family. In a Will, the testator bequeaths or leaves his property to the person or people he chooses to leave his assets/belongings. A Hindu person by way of his Will can bequeath all his property. However, a member of an undivided family cannot bequeath his coparcenery interest in the family property. The Will is enforceable only after the death of the testator-

Under section 18 of the Registration Act the registration of a Will is not compulsory. Also, the SC in Narain Singh v. Kamla Devi [AIR 1954 SC 280] has held that mere non-registration of the Will an inference cannot be drawn against the genuines of the Will. However it is advisable to register it as it provides strong legal evidence about the validity of the Will. It is to be released only to the testator himself or, after his death, to an authorized person who produces the Death Certificate .Since a testamentary disposition always speaks from the grave of the testator, the required standard of proof is very high. The initial burden of proof is always on the person who propounds the Will.

Hindu Law of Wills- an overview Who Can Make A Will? S.59 of ISA provides that every person who is of sound mind and is not a minor can make a Will. For Person of unsound mind U/s. 59 of ISA the existence of a sound mind is a sine quo non for the validity of the Will. Most of the Wills are not made by young persons who are fully fit but are made by persons who are aged and bed ridden Hence, law does not expect that the testator should be in a perfect state of health, or that he should be able to give complicated instructions as to how his property was to be distributed. A sound disposing mind implies sufficient capacity to deal with and understand the disposition of property in his Will 1) the testator must understand that he is giving away his property to one or more objects 2) he must understand and recollect the extent of his property 3) he must also understand the persons and the extent of claims included as well as those who are excluded from the Will.

Minors: A minor who has not completed the age of 18 years is not capable of making Wills. The onus of proof on determining whether the person was a minor at the time of making a Will is on the person who has relied upon the Will. S.12 of the Indian Contract Act also provides that a minor is incompetent to contract.

Restrictions on a Will 1. Transfer to unborn persons is invalid Where a bequest is made to a person by a particular description, and there is no person in existence at the testator’s death who answers that description, the bequest is void. S.113 of ISA provides that for a transfer to an unborn person, a prior interest for life has to be created in another person and the bequest must comprise of whole of the remaining interest of the testator. In Sopher v. Administrator-General of Bengal [AIR 1944 PC 67] a grandfather made the bequest to his grandson who was yet to be born, by creating a prior interest in his son and daughter in law. The Court upheld the transfer to an unborn person and the Court held that since the vested interest was transferred when the grandsons were born and only the enjoyment of possession was postponed till they achieved the age of twenty one the transfer was held to be valid. In Girish Dutt v. Datadin [AIR 1934 Oudh 35], the Will stated that the property was to be transferred to a female descendant (who was unborn) only if the person did not have any male descendant. The Court held that since the transfer of property was dependent on the condition that there has to be no male descendant, the transfer of interest was limited and not absolute and thereby the transfer was void. For a transfer to an unborn person to be held valid, absolute interest needs to be transferred and it cannot be a limited interest. 2. Transfer made for perpetuity S.114 of the ISA, 1925 provides that no bequest is valid whereby the vesting of the thing bequeathed may be delayed beyond the lifetime of one or more persons living at the testator’s death and the minority of some person who shall be in existence at the expiration of that period, and to whom, if he attains full age, the thing bequeathed is to belong. The rule against perpetuity provides that the property cannot be tied for an indefinite period. The property cannot be transferred in an unending way. The rule is based on the considerations of public policy since property cannot be made inalienable unless it is in the interest of the community. The rule against perpetuity invalidates any bequest which delays vesting beyond the life or livesin-being and the minority of the donee who must be living at the close of the last life. Hence property can be transferred to an unborn person who has to be born at the expiration of the interest created and the maximum permissible remoteness is of 18 years i.e the age of minority in India.

In Stanely v. Leigh [1732 -2 PWMS 686] it was laid down that for the rule of perpetuity to be not applicable there has to be 1) a transfer 2) an interest in an unborn person must be created 3) takes effect after the life time of one or more persons and during his minority 4) unborn person should be in existence at the expiration of the interest. 3. Transfer to a class some of whom may come under above rules S.115 of ISA provides that if a bequest is made to a class of persons with regard to some of whom it is inoperative by reasons of the fact that the person is not in existence at the testator’s death or to create perpetuity, such bequest shall be void in regard to those persons only and not in regard to the whole class. A number of persons are said to be a class when they can be designated by some general name as grandchildren, children and nephews. In Pearks v. Mosesley[(1880) 5 App Cas 714] defined gift to a class as a gift to all those who shall come within a certain category or description defined by a general or collective formula and who if they take at all are to take one divisible subject in certain proportionate shares. 4. Transfer to take effect on failure of prior Transfer S.116 of ISA provides that where by reason of any of the rules contained in sections 113 and 114 and bequest in favour of a person of a class of persons is void in regard to such person or the whole of such class, any bequest contained in the same Will and intended to take effect after or upon failure of such prior bequest is also void. Muslim Law of Wills an Overview Wills or Wasiyat Wills or bequest[s] or Wasiyat derive their authority and sanctity from the sacred texts of the Quran. “It is prescribed to you when death approaches any one of you and that he is to leave any wealth behind, he should bequeath equitably to his parents and kindred.” “And such of you as feel the approach of death and are to die and leave wives behind shall bequeath for their wives a year’s maintenance without requiring them to quit their homes.”

There are a number of precepts of the Prophet on this subject. The arguments advanced by the learned doctors in support of this bequest are that there is an indispensable necessity that man should have the power of making bequests for, man from the delusion of his hopes, is improvident and deficient in practice, but when mortal sickness invades him, he gets alarmed at that time; therefore, he stands in need of compensateion for his deficiencies by means of his property — and this in such manner that if he should die of the illness, his object, namely, compensation for his deficiencies and merit in a future state, may be obtained, but if he were to recover, the property will still be his. Capacity to make a Will The testator must be: (i) In the full possession of his senses at the time. A will made by an insane person is not valid. If he makes it at a time when he was in full senses but again relapses to insanity and that condition lasts for at least six months, the bequest will become invalid, otherwise not. (ii) He must be of the age of majority. (iii) He must not be indebted to an extent that his debt is equivalent in value to his whole property. (iv) He must not be acting under compulsion or under influence or in jest. (v) He must be a free person. Objects in whose favour a Will can be made A bequest can be only to the extent of a third or 1/3rd of the testator’s property but not to any further extent. A bequest to any amount exceeding 1/3rd of the testator’s property is not valid. In proof of this is the Hadith as reported by Abu Wakas: “In the year of the Conquest of Mecca, being taken so seriously ill that my life was despaired of, the Prophet of God came to pay me a visit of consolation. I told him that by the blessing of God [I had] a great estate but no heir except a daughter, I wish[ed] to know if I might dispose of it all by will. He replied, ‘No’ and when I went on asking if I might bequest two-thirds or one-half’ he replied again in the negative, but when I asked,”If I do so to the extent of one-third, he answered, ‘Yes, you can bequeath one-third of your property by will, and a third part to be disposed of by will is a great portion; and it is better that you should leave your heirs affluent than in a state of poverty which might oblige them to beg of

others.”In the case of heirs consenting to it, a bequest of more than one-third of the property which by itself is not valid becomes valid. Whether the person in whose favour the Will is made is an heir or not, must be determined not at the time of the Will but after the testator’s death. Where the Will is in favour of non-heirs or for a pious or charitable purpose, it is valid and operative only in respect of one-third of the testator’s estate without the assent of the heirs and in respect of more then one-third with their consent. Executor The testator may appoint any person to carry out the directions of the testator. He is called the executor. He may be a man or woman, a stranger, or a relative. The appointment may be for a specific purpose or may be general. If a testamentary disposition is invalid, the appointment of the executor would remain valid so far as the guardianship of minor children and their education are concerned. It is the duty of the executor to pay the funeral expenses, the debts and the legacies, and to administer the estate generally. Critical analysis of the difference between wills – Hindu law and Muslim law1.

Governing law-

Hindu law of wills is governed by ISA 1925. Which includes the form of wills, formalities, capacity, subject matter of wills, and revocation to every other related matter of wills in a codified manner. Whereas in Muslim law it is governed by their personal law. 2.

perpetuity –

A Hindu will cannot be made for a indefinite period or for time immemorial, every Hindu will made under due process of law has to be of a definite period of time. Whereas a Muslim can make a will for an indefinite period in the form of wakfs or in the name of charity, using the usufructs for the benefit of his own family. 3.

Restriction on devolution of property –

Hindu law

– A Hindu testator or specifically a coparcener has full rights of

giving out his entire property in the form of wills to any one of the legal heirs as well as to any stranger.

Muslim law- Can only give out one third of his property to a stranger and rest has to given to the family. No one can give out more than one third of his property without the consent of his legal heirs. 4.

Quantum of share

In Hindu law wife and mother gets an equal share. In Muslim law it’s done according to the quantum of interest in the testamentary property provided in Quran. It even includes property given to more than one wife. Hindu law- Male heirs get an equal share as compared to females in a Hindu joint family property. More precisely after 2005 amendment in the Hindu succession act 1956 where daughters get an equal share as that of a son and thus share equal rights and liabilities in a coparcenory system of Hindu joint family. Muslim law- Male heirs’ gets double the share as compared to the female heirs, according to the amount provided for devolution of interest in the property. 5.

Death Bed Gift -

In Hindu law the concept of “Marz Ul Maut” does not exist in hindu law. Though a similar concept of death bed gifts happens to be in existence know as “Donation Mortis Causa”. Muslim law- The concept of “Marz Ul Maut” exists; it is form of death bed gift. When person has real apprehension of death due to a particular illness he can gift out 1/3rd property to any one of the family members or even a stranger. Also know as gift of amphibious nature. Re beaumont [1902] 6.

Formalities-

In Hindu law Sec-63 of the ISA 1925 provides for proper formalities to be performed for formation of a valid will. Muslim law- As for official formation of will there is no need of any particular formalities but mere bonafide intention to make a will

would suffice. Even

absence of signature of the testator would not affect the validity of the will. Hindu law- Sec- 62 of the ISA 1925 deals with will which are revocable and sec- 70 of the ISA 1925 deals with the method or the manner in which the will has to be revoked. Muslim law- There is no prescribed method of revocation of a will (during lifetime) it can done by merely portraying the intention to revoke it.

7.

Probate -

In a Hindu will the executor is bound to take out the probate to show his authority to execute the will. Muslim law- In a wassiyat the executor is not bound to show the probate for executing a will. 8.

History of law-

The concept of making a will or wassiyat was unknown to the original Hindu law or the personal law of Hindus. Muslim law- Making of a wassiyat is an age old process in Muslim law as it has been described in Quran; moreover Hedaya contains a detailed description of Muslim wills or wassiyat.

CASE LAWS

EXECUTION OF A WILL IS REQUIRED TO BE PROVED IN TERMS OF THE PROVISIONS OF S. 63(C) OF THE SUCCESSION ACT, 1925 The Hon’ble Supreme court of India in Rur Singh (D) Th. LRS. & Ors. Vs Bachan Kaur New Delhi

JUSTICE S.B. Sinha February 12, 2009,

JUSTICE Dr. Mukundakam Sharma Succession Act, 1925 : S. 63(c) -

Execution of a Will is required to be proved in terms of the provisions of s. 63(c) of the Succession Act, 1925 and s. 68 of the Evidence Act, 1872. The Will was attested by nine independent persons. Three of them in fact had been examined. The High Court while holding that a doubt is cast on its validity by reason of active participation of one of the sons, failed to notice that nine other independent witnesses attested the Will. Importance cannot be attached to the fact that although the Sarpanch scribed the Will in Urdu, he at more than one place signed in English. In a village, a person may be more proficient in the vernacular language than English although he may be able to sign his name in English. If the Will was otherwise proved to be genuine and the statutory

requirements therefor were satisfied, only because the panchayat register was not produced, the same by itself would not lead to the conclusion that the Will would be held to have not been executed, particularly when two courts competent to arrive at findings of fact held it otherwise.

WHEN

ORIGINAL

WILL

WAS

LOST

WHETHER

PRESUMPTION

OF

REVOCATION OF WILL BE DRAWN BENCH OF SUPREME COURT CONSISTING OF JUSTICE FAZAL ALI, SYED MURTAZA SHINGAL, P.N. IN A CASE OF DURGA PRASAD VS DEVI CHARAN REPORTED IN AIR 1979 SC 145, The correct legal position may be stated thus: (i) Where a will has been properly executed and registered by the testator but not found at the time of death the question whether the presumption that the testator had revoked the will can be drawn or not will depend on the facts and circumstances of each case. Even if such a presumption is drawn it is rather a weak one in view of the habits and conditions of our people. (ii) Such a presumption is a rebuttable one and can be rebutted by the slightest possible evidence, direct or circumstantial. For instance, where it is proved that a will was a strong and clear disposition evincing the categorical intention of the testator and there was nothing to indicate the presence of any circumstance which is likely to bring about a change in the intention of the testator so as to revoke the will suddenly, the presumption is rebutted. (iii) In view of the fact that in our country most of the people are not highly educated and do not in every case take the care of depositing the will in the bank or with the Solicitors or otherwise take very great care of the will as a result of which the possibility of the will being stolen, lost or surreptitiously removed by interested persons cannot be excluded, the presumption should be applied carefully. (iv) Where the legatee is able to prove the circumstances from which it can be inferred that there could be absolutely no reason whatsoever for revoking the will or that the Act of revoking the will was against the temperament and inclination of the testator, no presumption of revocation of the will can be drawn. (v) In view of the express provision of section 70 of the Indian Succession Act the onus lies on the objector to prove the various circumstances, viz., marriage, burning, tearing or destruction of the will.

(vi) When there is no obvious reason or clear motive for the testator to revoke the will and yet the will is not found on the death of the testator it may well be that the will was misplaced or lost or was stolen by the interested persons.

DOUBTFULL CIRCUMSTANCES OF WILL

Adivekka & Ors. VS Hanamavva Kom Venkatesh 'D' By LRs. & Anr BENCH: S.B. Sinha & Markandey Katju AIR 2007 SC 2025, Will-Execution of-Testator executing Will in favour of his niece-Allegation of suspicious circumstances-Sustainability of Will-Held: Testator's wife and children unaware of the execution of the Will-Beneficiary too unaware and did not know from where and how she obtained possession of the Will-Beneficiary not examining herself which leads to drawal of adverse inference against herAlso registration of Will before Sub-Registrar doubtful-Disposition made in Will unfair, unnatural and improbable as no sane person for very cogent reasons would disinherit his children-Thus, Will not genuine.

Allowing the appeals, the Court HELD: The High Court was not correct in setting aside the judgment of the Trial Judge that execution of Will has not been proved. The subject matter of the Will was a piece of agricultural land. That was the only agricultural land in possession of the testator. He was although owner of four houses, according to the appellants, the same had not been generating any income. Admittedly, the appellants, other than son of H were residing with him. Therefore, it is difficult to believe that respondent no. 1 had been looking after him or despite her marriage with respondent no. 2, she had been residing in his house. It may or may not be true that testator's son B had been residing separately, but evidently he had been able to perform the marriage of only one of his daughters and, thus, six other daughters were yet to be married. Assuming that respondent No. 1 was brought up by him, she was married. Her husband was affluent. He could afford to purchase the property in question. Thus, there was apparent reason to execute a Will in her favour depriving his wife and children.

There is no explanation as to why a Will had to be executed and registered without the knowledge of his wife by H. There is nothing on record to show that the testator had any special love or affection for respondent no. 1. Respondent No. 1 did not examine herself. According to her, she was not even aware of the execution of the Will. She came to know the same at a much later stage, i.e., after lapse of 10-12 months. How and on what basis she obtained the possession of the original Will is not known. On what basis the Sub-Registrar handed over possession of the Will to husband of Respondent No. 1 has not been disclosed. Had she examined herself, she could have been accosted with the said question. It could have been shown that H did not have any love and affection for her. Non-examination of the party to the lis would lead to drawal of an adverse inference against her. Grave suspicion in regard to the execution of the Will arises as husband of respondent No. 1 being her power of attorney holder spoke of an agreement for sale. According to him, out of a total consideration of Rs. 58,000/- or Rs. 50,000/- as the case may be, a sum of Rs. 49,000 had already been paid. If that be so, in ordinary course, he would have tendered the balance amount. He could have filed a suit for specific performance. At least a notice in that behalf could have been served. Therefore, husband of respondent No. 1, admittedly had an eye over the property. Why only the agricultural land possessed by H would be the subject matter of the Will, thus, has not been proved. Admittedly he had been suffering from cancer. He died only two weeks after the execution of the Will. Submission of respondent no, 1 that they were in possession of the land in question, cultivated the same for one year and thereafter sold the same, exfacie does not appear to be correct as the lands had been sold by her on 16.3.1989 whereas the testator died on 11.9.1988, i.e., within a period of six months from the date of execution of the Will. The disposition made in the Will is unfair, unnatural and improbable as no sane person, save and except for very cogent reasons, would disinherit his minor children.

According to attesting witness he went with the testator at

about 4.30 p.m. on 25.8.1998 to Taluk Office. The Will is said to have been first scribed by bond writer. The same thereafter was typed out by another typist. It was brought back to the same bond writer. He had allegedly read over the contents of the Will whereafter only H signed and thereafter the witnesses put their signatures. The entire process must have taken about two hours. How the Will could be registered on the same day, i.e., beyond the office hours is again a matter which is beyond anybody's comprehension. Sub-Registrar did not say that the Will was executed and registered before him.

WILL LIKE ANY OTHER DOCUMENT IS TO BE PROVED IN TERMS OF THE PROVISIONS OF THE ACT Savithri & Ors VS Karthyayani Amma & Ors BENCH: S.B. Sinha & Harjit Singh Bedi J AIR 2008 SC 300 Dismissing the appeal, the Court HELD: The legal requirement in terms of section 63 of the Indian Succession Act, 1925 and section 68 of the Evidence Act, 1872 is that a Will like any other document is to be proved in terms of the provisions of the Act. The onus of proving the Will is on the propounder. The testamentary capacity of the testator must also be established. Execution of the Will by the testator has to be proved. At least one attesting witness is required to be examined for the purpose of proving the execution of the Will. It is required to be shown that the Will has been signed by the testator with his free will and that at the relevant time he was in sound disposing state of mind and understood the nature and effect of the disposition. It is also required to be established that he has signed the Will in the presence of two witnesses who attested his signature in his presence or in the presence of each other. Only when there exist suspicious circumstances, the onus would be on the applicant to explain them to the satisfaction of the court before it can be accepted as genuine. The submission that if both KN and SN were to bequeath their entire right, title and interest in the properties in favour of the respondents by way of family arrangement or otherwise, no deed of partition was required to be executed, cannot be accepted as thereby they would have lost their interest in the property during their life time. They evidently intended to have life interest in the property, bequeathing the same in favour of the respondents. The parties are governed by Marumakkattayam School of Hindu Law. The sisters in the family have a role to play. The fact that the testator was totally dependent on his nephew and nieces is beyond any dispute. He lost his employment in the year 1959. Apart from the properties which were subject-matter of the Will, he had no other independent source of income. Being totally dependent on the respondents and having been suffering from cancer, he was bound to place implicit faith and confidence only upon those who had been looking after him. The Will was admittedly registered. The testator lived for seven years after execution of the Will. He could change his mind; he did not. The very fact that he did not take any step for cancellation of the Will is itself a factor which the Court may take into consideration for the purpose of upholding the same. The question as to whether the Registrar was brought to the house of the propounder or he had gone to the Registrar's office is not a matter which

requires serious consideration. But it may be noticed that the witness examined on behalf of the respondents, DW-2, categorically stated that he had gone to the Registrar's office to get the same registered. Execution of the will might have taken place at the house of SN, but according to DW-2 he came to his office even after registration. Even the other Will was also scribed by him and he was an attesting witness therein also. It is not correct to contend that DW-2 could not have been the attesting witness. He in his deposition categorically stated that he had seen the Will being read over to the propounder. The witnesses and he had seen SN putting his signature on the Will. SN had also seen the witnesses putting their signatures. This satisfies the requirements of the provisions of section 63 of the Indian Succession Act, 1925 and section 68 of the Evidence Act, 1872. It was appellant's case that the signature of the testator on the Will was obtained under undue influence or coercion. The onus to prove the same was on them. They have failed to do so. If the propounder proves that the Will was signed by the testator and he at the relevant time was in sound disposing state of mind and understood the nature and effect of disposition, the onus stands discharged.

For

this

purpose

the

background

fact

of

the

attending

circumstances may also be taken into consideration. The circumstances relevant for determining the existence of the suspicious circumstances are (i) when a doubt is created in regard to the condition of mind of the testator despite his signature on the Will; (ii) when the disposition appears to be unnatural or wholly unfair in the light of the relevant circumstances; (iii) where propounder himself takes prominent part in the execution of Will which confers on him substantial benefit. In the fact situation obtaining herein no such suspicious circumstance was existing. The court must satisfy its conscience before its genuineness is accepted. Therefore, a rational approach is necessary. Deprivation of a due share by the natural heirs itself is not a factor which would lead to the conclusion that there exist suspicious circumstances. The son was not meeting his father. He had not been attending to him. He was not even meeting the expenses for his treatment from 1959, when he lost his job till his death in 1978. The testator was living with his sister and her children. If in that situation, if he executed a Will in their favour, no exception thereto can be taken. Even then, something was left for the appellant. The conscience of the court must be satisfied. In the instant case, the High Court has considered the relevant factors. It has been found that the Will was

the product of the free will. He had executed the Will after knowing and understanding the contents thereof. HINDU RIGHT TO MAKE WILL OF UNDIVIDED CO-PARCENARY PROPERTY THE HONBLE JUSTICE S. NAYAK AND THE HONBLE JUSTICE MANJULA CHELLUR of Karnataka High Court in the case of Smt. Radhamma And Ors. vs H.N. Muddukrishna And Ors. Reported in AIR 2006 Kant 68, 2006 (1) KarLJ 176 …. Prior to coming into force of the Hindu Succession Act, no coparcener could dispose of whole or any portion of his undivided coparcenary interest by Will. Now, by virtue of Section 30 of the Act, read with Explanation, a coparcener derives a right to dispose of his undivided share in Mitakshara joint family property by "Will" or any testamentary disposition, i.e., by virtue of law. Again, the Court has to see whether a coparcener was divided from the joint family prior to the execution of the Will and other circumstances. In other words, the facts and circumstances of each case would also have bearing on this aspect. …….. Prior to Hindu Succession Act coming into force, a coparcener was not entitled to either gift or Will his interest in the coparcenary property. That ban or embargo is removed so far as Will is concerned. His disability to gift away his undivided interest in the coparcenary property continues to remain the same even after the codification of Hindu Law, Only a small portion of the joint family property can be gifted off by manager of the family for "pios purpose". …………. Section 30 makes it clear that a Hindu testator may dispose of any property which is capable of being disposed of by him by Will or other testamentary disposition in accordance with Indian Succession Act of 1925. The Explanation again clarifies that it is only in respect of interest of a male Hindu in Mitakshara joint family property. The disability prevailed till coming into force of Section 30 of the Act is removed so far as Will is concerned. …………… Having regard to the fact that one of the cardinal principles of construction of Will is to the extent that it is legally possible, effect should be given to every disposition contained in the Will unless the law prevents effect being given to it, …….. The law relating to the capacity or the right of a Hindu to execute a Will his share of property in the coparcenary property has seen a sea change subsequent to coming into force of Hindu Succession Act of 1956. Section 4(1)(a) and (b) of the Act is of relevance, which reads as under: 4. (1) Save as otherwise expressly provided in this Act.-(a) any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act shall

cease to have effect with respect to any matter for which provision is made in this Act; (b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus insofar as it is inconsistent with any of the provisions contained in this Act. 46. By reading Section 4(1)(a) and (b), it is very clear if there is any express provision in the codified law, it is the duty of the Court to look into the said provision. In other words, it alone shall govern the rights of the parties though there is radical alteration or modification from the previous law. If no provision is made in the 'Act', the old law shall be applicable. Therefore, one has to necessarily look into whether any provision in the Act, either specifically or by necessary implication empowers or enables a Hindu to Will away his share in the coparcenary property. 47. After coming into effect of Hindu Succession Act of 1956, it is the duty of the Court to see the circumstances and the law prevailing on the date of the death of the testator in order to put a seal of validity and genuineness to the disputed Will. Section 30 of the Hindu Succession Act, 1956 reads as under: Section 30. Testamentary succession.-Any Hindu may dispose of by Will or other testamentary disposition any property, which is capable of being so disposed of by him, in accordance with the provisions of the Indian Succession Act, 1925 (39 of 1925) or any other law for the time being in force and applicable to Hindus. Explanation.--The interest of a male Hindu in Mitakshara coparcenary property or the interest of a member of a tarwad, tavazhi, illom, kutumba or kavaru in the property of the tarwad, tavazhi, illom, kutumba or kavani shall, notwithstanding anything contained in this Act or in any other law for the time being in force, be deemed to be property capable of being disposed of by him or by her within the meaning of this Sub-sections.

Valliammai Achi vs Nagappa Chettiar & Ors 1967 AIR 1153, 1967 SCR (2) 448 A father in a Mitakshara family has a very limited right to make a will and Pallaniappa's father could not make the will disposing of the entire joint family property, though he gave the residue to his son. We are therefore of opinion,that merely because Pallanappa's father made the will and Pallaniappa probably as a dutiful son took out probate and carried out the wishes of his father, the nature of the property could not change and it will be joint family

property in the hands of Pallaniappa so far as his male issues are concerned. Further it is equally well settled that under the Mitakshara law each son upon his birth takes an interest equal to that of his father in ancestral property, whether it be movable or immovable. It is very important to note that the right which the son takes at his birth in the ancestral property is wholly independent of his father. He does not claim through the father...." (see Mulla's Hindu Law, Thirteenth Edition, p. 251, para 224). It follows therefore that the character of the property did not change in this case because of the will of Pallaniappa's father and it would still be joint family property in the hands of Pallaniappa so far as his male issue was concerned. Further as soon as the respondent was adopted he acquired interest in the joint family property in the hands of Pallaniappa and this interest of his was independent of his father Pallaniappa. In such circumstances even if Pallaniappa could be said to have made an election there can be no question of the respondent being bound by that election, for he is not claiming through his father.

THE TECHNICALITY OF LAW CANNOT BE OVERLOOKED IN CASE OF WILL ATTESTATION AND ITS PROOF. 2001 SC

N. KAMALAM (DEAD) AND ANOTHER vs AYYASAMY AND ANOTHER, AIR 2001 SC 2802. The relevant paragraphs-28 and 32 read as under: "Para 28 : It is on this count that the learned Advocate in support of the appeal very strongly contended that there is existing a responsibility on to the law Courts to deal with the matter having due regard to the concept of justice. Technicalities. It has been contended there may be many - but would that subserve the ends of justice; one needs to ponder over the same. Justice oriented approach cannot be decried in the present day society as opposed to strict rigours of law; Law Courts existence is dependant upon the present day social approach and thus cannot and ought not to be administered on sheer technicalities. The discussion of the law as above, definitely make us ponder over the legal aspects once more since the tenor of the observations contained therein obviously looked into being in favour of the technicality rather a justice oriented approach and in that perspective let us now have review of the whole situation on the factual context. Masaney Gowder executed a Will said to have been written by one Arunachalam and attested by Subbaiah and Govindaraju. The two attesting witnesses were not called to give evidence against them - why it has not been done? The explanation has been that both the attesting witnesses were inimical towards appellants and as such there was a refusal on

their part to come to Court and prove the document - how far however the same is an acceptable evidence; We Will have to examine; but before so doing the factum of non-availability of the attesting witnesses cannot be discarded and if so, what would be its consequences. The application for additional evidence as dealt with herein before, was made after a lapse of about 10 years after the appeal was filed and the learned judges though it fit to reject such a prayer and we also do lend out concurrence thereof without taking any exception - but then what is the effect? we have thus existing on record a document said to be a Will of one Masaney gowder whose signatures stand accepted and two attesting witnesses though named in the body of the document were not made available but the writer of the will or the scribe came forward and deposed as to the state of affairs on the date of signing of the will, it would be convenient thus to note the evidence of the scribe and see for ourselves as to whether even a justice oriented approach would be able to save the will in the absence of the attesting witnesses. Arunachalam stated in his examination in Chief as below: "I have written Ex.A.1 `THE WILL', I have written the WILL EX. A1 for the Sake of Masane Gowder. The said Masane Gowder has been introduced to me by the Advocate G.M. Nathan who was formerly have. During the execution of the WILL, Advocate G.M. Nathan was residing at Thomas Street.At that time Masane Gowder was residing at the same place after one house of Advocate's home. Before the preparation of the `WILL' I had been to his house and discussed with him about the details and he has stated the details. At that time Masane Gowder Mental and Physical status were found good. After writing the Ex.A.1 the Will, I have read out the same to him, and he had stated that all were correct. Then in my presence Masane Gowder had affixed his thumb impression in each page. The affixing of thumb impression by Masane Gowder in Ex.A1 WILL had been witnessed by attestor Subbaiah,Govindaraju and myself.The signing of signature for witness by us, was eye witnessed by Masane Gowder. After the Ex.A1 Will had been prepared and signed I handed over the `WILL' to Masane Gowder". Para - 32 : While it is true that Arunachalam, in the facts of the matter under consideration did write the Will and has also signed it but it is of utmost requirement that the document ought to be signed by the witnesses in order to have the statutory requirement fulfilled. Arunachalam has signed the document as a scribe not as a witness, if there were no signatures available as witness, probably we would have to specifically deal with such a situation and to consider that aspect of the matter but presently in the facts situation of the matter under consideration, we have the advantage of two attesting witnesses, none of whom have been examined and the factum of their non-availability also does not satisfactorily been proved. The requirement of the statute when Arunachalam himself has specifically identified himself as Writer and not as a

witness though in his evidence, he tried to improve the situation, but this improvement however, cannot said to be accepted. The Will thus fails to have its full impact and its effect stands out to be non est." RAJAMMAL vs CHINNATHAL, AIR 1976 MADRAS, AIR 1976 MADRAS 4. In this case it was held that once the execution of the Will is denied by the alleged executant the document cannot be admitted in evidence, unless one attesting witness atleast has been called for proving the execution of the document, if alive, and subject to the process of the Court. In that case there was no evidence to show that the attesting witnesses were not alive and none of them were examined. Therefore, the requirement of Section 68 of the Indian Evidence Act has not been complied with and as such the Will could not be used in evidence. CHINNA NARASIMHALU vs KURUBARA BASAPPA AND ANOTHER, 1983(1) KAR.L.J. 183. In this case it is held as under: "A witness to be an attesting witness need not be labelled as an attesting witness. The place at which the signature or thumb impression of a witness is subscribed to the document is not a determining factor for holding that a witness is or is not an attesting witness. What is required to be seen is as to whether the evidence of the witness reveals that he has signed the document in the presence of the executant after seeing execution of the document or that he has signed the document after receiving the person acknowledgement from the executant as regards the execution of the document." In the case of documents which are not compulsorily registerable, the Sub-Registrar or other identifying witnesses can be regarded as attesting witnesses, if their evidence is in Conformity with the law relating to attestation. Where the lower Court held that the will was not valid on the ground that the witness had not signed at the place intended to be signed by attesting witnesses and therefore he cannot be considered to be an attesting witness, without considering the evidence of the witnesses, and therefore the legatee could not be brought on record as L.R. of the deceased party, the Judgment suffers from a serious infirmity and the order of the Court under Order 22 Rule 4 and 5 of CPC is revisable."

WILL IS INTERFERENCE OF NORMAL SUCCESSION – NATURAL HEIRS ARE DEPRIVED IN CASE OF WILL IS USUAL 1995 SC RABINDRA NATH MUKHERJEE AND ANOTHER vs PANCHANAN BANERJEE (DEAD) BY LRS. AND OTHERS, . AIR 1995 SC 1684, 1995 SCC (4) 459 In this case their Lordships have held as under: "The circumstances of

deprivation of natural heirs should not raise any suspicion because the whole idea behind execution of will is to interefere with the normal line of succession. So natural heirs would be debarred in every case of will. Of course, it may be that in some cases they are fully debarred and in others only partially. As in the present case, the two executors are sons of a half-blood brother of the testatrix whereas the objectors descendants of a full blood sister, the disinheritance of the latter could not have been taken as a suspicious circumstance, when some of her descendants are even beneficiaries under the Will. The identification by the lawyer could have been regarded as a suspicious circumstances if a wrong person would have been identified as the testatrix. That, however, is not the case of the objectors. So, there is no bane in this circumstance. The third circumstance can not also be said to be suspicious. Witnesses in such documents verify whether the same had been executed voluntarily by the person concerned knowing its contents. In case where a will is registered and the Sub-Registrar certifies that the same had been read over to the executor who, on doing so, admitted the contents, the fact that the witnesses to the document are interested loses significance. The documents at hand were registered and it is on record that the Sub-Registrar had explained the contents to the old lady. Objection as regards `ubiquitous', cannot be there if there be other circumstances on record to show the voluntary character of the document. Such circumstances were present in this case. Taking total view of the circumstances, which has to be the approach, it must be held that the Courts below overplayed some circumstances which they regarded as suspicious and somehow missed some circumstances which bolstered the case of the propounders."

1980 (1) Kar. L.J. 89 (GANAPATSA GOVINDASA AND OTHERS vs NINGAPPA RAMAPPA AND OTHERS. In this case relevant paragraph 17 reads as under: "17. On the validity of the Will, it seems to us, that it would be proper not to express any opinion in this case. A finding on that question appears to be uncalled for. Even if the Will is valid, the plaintiff's suit cannot be thrown out. Ext.P.1. gives him the right to proceed against the legatee. If the Will is not valid, the plaintiff could proceed against the legal representatives of Masabi. The fate of the suit does not depend upon the genuineness of the Will, the investigation of which is therefore, uncalled for in this proceedings. We may however, observe that the Trial Court was not justified in holding that the will was not justified in holding that the Will was not proved merely on the ground that the attestors to the deed did not support it. "An attesting witness who denies attestation may be contradicted by other evidence and the Court is

competent to disregard the testimony of the attesting witnesses and pronounce in favour of the Will if it is satisfied from the evidence collectively of from the circumstances of the case that the requirements of law have been complied with and the witnesses who had spoken against the will had not spoken the truth." Vide Kedar Nath vs Rajkumar (1) We may also make it clear that the proof of a Will is not a matter of mere dispute between contending parties as in ordinary actions. It is a matter which falls for satisfaction of the judicial conscience of the Court. If a Will is surrounded by any suspicious circumstances as it is in the present case, it is always for the propounder to satisfy the Court by removing such suspicions by cogent and satisfactory evidence. We leave it at that for any aggrieved party to challenge it in an appropriate proceeding and we are told already under consideration in a suit as between some of the legal representatives of Masabi."

REGISTRAR OF DEEDS IS NOT AN ATTESTING WITNESS 2004 SC Bhagat Ram And Anr. vs Suresh And Ors. AIR 2004 SC 436, The Registrar of Deeds who had registered a document in discharge of his statutory duty, does not become an attesting witness to the deed solely on account of his having discharged the statutory duties relating to the registration of a document. Registration of any will, and the endorsements made by the Registrar of Deeds in discharge of his statutory duties do not elevate him to the status of a 'statutory attesting witness'. However, a registrar can be treated as having attested to a will if his signature or mark appears on the document akin to the one placed by an attesting witness and he has seen the testator sign or affix his mark to the will or codicil or has received from the testator a personal acknowledgement of his signature or mark and he has also signed in the presence of the testator. In other words, to be an attesting witness, the registrar should have attested the signature of the testator in the manner contemplated by Clause (c) of Section 63 of the Succession Act. No particular form of attestation is provided. It will all depend on the facts and circumstances of a case by reference to which it will have to be answered if the registrar of deeds fulfils the character of an attesting witness also by looking at the manner in which the events have actually taken place at the time of registration and the part played therein by the Registrar. .. A Registrar of Deeds before he be termed an attesting witness, shall have to be called in the witness box. The court must feel satisfied by his testimony that what he did satisfies the requirement of being an attesting witness. ….. Registration of a document does not dispense with the need of proving the execution and attestation of a document which is required by law to be proved in one manner as provided in

Section 68 of the Evidence Act. Under Section 68 of the Registration Act the Registrar shall endorse the following particulars on every document admitted to registration: (1) the date, hour and place of presentation of the document for registration; (2) the signature and addition of every person admitting the execution of the document, and, if such execution has been admitted by the representative, assign of agent of any person, the signature and addition of such representative, assign or agent; (3) the signature and addition of every person examined in reference to such document under any of the provisions of this Act, and (4) any payment of money or delivery of goods made in the presence of the registering officer in reference to the execution of the document, and any admission of receipt of consideration, in whole or in part, made in his presence in reference to such execution. Such particulars as are referred to in Sections 52 and 58 of the Registration Act are required to be endorsed by Registrar alongwith his signature and date on document under Section 59 and then certified under Section 60. A presumption by reference to Section 114 (Illustration (e)) of the Evidence Act shall arise to the effect that the events containing in the endorsement of registration, were regularly and duly performed and are correctly recorded. None of the endorsements, require to be made by the Registrar of Deeds under the Registration Act, contemplates the factum of attestation within the meaning of Section 63(c) of the Succession Act or Section 68 of the Evidence Act being endorsed or certified by the Registrar of Deeds. The endorsements made at the time of registration are relevant to the matters of the registration only (See: Kunwar Surendra Bhadur Singh and Ors. v. Thakur Behari Singh and Ors., . On account of registration of a document, including a will or codicil, a presumption as to correctness or regularity of attestation cannot be drawn. Where in the facts and circumstances of a given case the Registrar of Deeds satisfies the requirement of an attesting witness, he must be called in the witness box to depose to the attestation. His evidence would be liable to be appreciated and evaluated like the testimony of any other attesting witness.

BURDEN OF PROOF IN CASE OF WILL AND ITS CIRCUMSTANCES 1977 SC

SETH BENI CHAND vs SMT. KAMLA KUNWAR AND OTHERS AIR 1977 SC 63, 1977 SCR (1) 578, The mere description of a signatory to a testamentary document as an attesting witness cannot take the place of evidence showing due execution of the document. An attesting witness is one who signs the document in the presence of the executant after seeing the execution of the document or after receiving a personal acknowledgment from the executant as regards the execution of the document. ….. The onus probandi lies in every case upon the party propounding a will, and he must satisfy the conscience of the Court that the instrument so propounded is the last will of a free and capable testator. Where the circumstances surrounding the execution of the will are shrouded in suspi- cion, it is the duty and function of the propounder to remove that suspicion by leading satisfactory evidence, and by offering an explanation of auspicious circumstances which can satisfy a prudent mind. IF ATTESTING WITNESS DENIES OR DOES NOT RECOLLECT EXECUTION IT CAN BE PROVED BY OTHER EVIDENCE 2003 SC Janki Narayan Bhoir v. Narayan Namdeo Kadam, AIR 2003 SC 761, [(2003) 2 SCC 91] laid down the law on interpretation and application of Section 71 of the Act in the following terms: "11. Section 71 of the Evidence Act is in the nature of a safeguard to the mandatory provisions of Section 68 of the Evidence Act, to meet a situation where it is not possible to prove the execution of the will by calling the attesting witnesses, though alive. This section provides that if an attesting witness denies or does not recollect the execution of the will, its execution may be proved by other evidence. Aid of Section 71 can be taken only when the attesting witnesses, who have been called, deny or fail to recollect the execution of the document to prove it by other evidence. Section 71 has no application to a case where one attesting witness, who alone had been summoned, has failed to prove the execution of the will and other attesting witnesses though are available to prove the execution of the same, for reasons best known, have not been summoned before the court. It is clear from the language of Section 71 that if an attesting witness denies or does not recollect execution of the document, its execution may be proved by other evidence. However, in a case where an attesting witness examined fails to prove the due execution of will as required under clause ( c ) of Section 63 of the Succession Act, it cannot be said that the will is proved as per Section 68 of the Evidence Act. It cannot be said that if one attesting witness denies or does not recollect the execution of the document, the execution of will can be proved by other evidence dispensing with the evidence of other attesting witnesses though available to be examined to prove the execution of the will"

Section 71 of the Evidence Act is in the nature of a safeguard to the mandatory provisions of Section 68, Evidence Act, to meet a situation where it is not possible to prove the execution of the will by calling attesting witnesses, though alive. This Section provides that if an attesting witness denies or does not recollect the execution of the will, its execution may be proved by other evidence. Aid of Section 71 can be taken only when the attesting witnesses, who have been called, deny or fail to recollect the execution of the document to prove it by other evidence. Section 71 has no application to a case where one attesting witness, who alone had been summoned, has failed to prove the execution of the will and other attesting witnesses though are available to prove the execution of the same, for the reasons best known, have not been summoned before the court. It is clear from the language of Section 71 that if an attesting witness denies or does not recollect execution of the document, its execution may be proved by other evidence. However, in a case where an attesting witness examined fails to prove the due execution of will as required under clause (c) of Section 63 of the Succession Act, it cannot be said that the Will is proved as per Section 68 of the Evidence Act.

It cannot be said that if one attesting witness denies or does not

recollect the execution of the document, the execution of will can be proved by other evidence dispensing with the evidence of other attesting witnesses though available to be examined to prove the execution of the will. Yet, another reason as to why other available attesting witnesses should be called when the one attesting witness examined fails to prove due execution of the Will is to avert the claim of drawing adverse inference under Section 114 illustration (g) of Evidence Act. Placing the best possible evidence, in the given circumstances, before the Court for consideration, is one of the cardinal principles of Indian Evidence Act. Section 71 is permissive and an enabling Section permitting a party to lead other evidence in certain circumstances. But Section 68 is not merely an enabling Section.

It lays down the necessary requirements,

which the Court has to observe before holding that a document is proved. Section 71 is meant to lend assistance and come to the rescue of a party who had done his best, but driven to a state of helplessness and impossibility cannot be let down without any other means of proving due execution by "other evidence" as well. At the same time Section 71 cannot be read so as to absolve a party of his obligation under Section 68 read with Section 63 of the Act and liberally allow him, at his will or choice to make available or not a necessary witness otherwise available and amenable to the jurisdiction of the court concerned and confer a premium upon his omission or lapse, to enable him to give a go bye to the mandate of law relating to proof of execution of a will.

Turning to the facts of the case on hand, it is evident that only one attesting witness Prabhakar Sinkar, examined in the case, did not prove the execution of the Will inasmuch as he did not prove the attestation of the Will by the other attesting witness Wagle who though available was not examined. The scribe examined in the case was not an attesting witness, which is clear from the evidence on record and as rightly conceded so by learned counsel for the respondent before us. Hence, it is unnecessary to go into the question whether the scribe in this case could or could not be an attesting witness. The evidence of Sinkar, the only attesting witness, does not satisfy the mandatory requirements of Section 68 of the Evidence Act. We are not in a position to accept the contention urged on behalf of the respondent that the evidence of other witnesses, namely, that of the respondent and the scribe could be considered under Section 71 of the Evidence Act.

Section 71 has no

application when the one attesting witness, who alone has been summoned, has failed to prove the execution of the will and other attesting witness though available has not been examined.

When the document is not proved as

mandatorily required under Section 68 of the Evidence Act, the provision of Section 71 of the Evidence Act, which is permissive, and enabling in certain circumstances as discussed above does not help the respondent. In Vishnu Ramkrishna & Ors. v. Nathu Vithal & Ors. [(AIR) 1949 Bom. 266], Chagla, C.J., speaking for the Division Bench in similar circumstances has stated that although Section 63 of the Succession Act requires that a will has to be attested by two witnesses, Section 68 of the Evidence Act permits the execution of the will to be proved by only one attesting witness being called. Where the attesting witness, who is called to prove the execution, is not in a position to prove the attestation of the will by the second witness, the evidence of the witness called falls short to the mandatory requirements of Section 68. Section 71 of the Evidence Act can only be requisitioned when the attesting witnesses who have been called failed to prove the execution of the will by reason of either denying their own signatures or denying the signature of the testator or having no recollection as to the execution of the document. This Section has no application when one attesting witness has failed to prove the execution of the will and other attesting witnesses were available who could prove the execution if they were called.

WHEN THE ORIGINAL WILL IS LOST – LOSS OF ORIGINAL TO BE PROVED 2007 SC Benga Behera & Anr vs Braja Kishore Nanda & Ors (AIR 2007 SC 1975),

A

document upon which a title is based is required to be proved by primary

evidence, and secondary evidence may be given under Section 65(c) of the Evidence Act. Loss of the original, therefore, was required to be proved. In a case of this nature, it was obligatory on the part of the first respondent to establish the loss of the original Will, beyond all reasonable doubt. His testimony in that behalf remained uncorroborated. Furthermore, secondary evidence, could be led by production of a certified copy given in terms of the provisions of the Indian Registration Act. In support of the proof of the Will, purported Xerox copy and a certified copy thereof have been produced. In the Xerox copy, an endorsement has been made by an advocate that the executant was his client and it was written by his clerk in his office on his dictation, whereas in the certified copy there is no such endorsement of the advocate. A question has also been raised as to whether a certificate by Sub-Registrar at the time of registration proves attestation. A Sub-Registrar in the matter of registration of a document acts under the provisions of the Registration Act, 1908. S.52 of the 1908 Act prescribes the duty of Registering Officer when document is presented in terms thereof. The signature of every person presenting a document for registration is required to be endorsed on every such document at the time of presentation. If an authority in performance of a statutory duty signs a document, he does not become an attesting witness within the meaning of s.3 of the Transfer of Property Act and s.63 of the Succession Act. "Animus attestandi" is a necessary ingredient for proving the attestation. If a person puts his signature in a document only in discharge of his statutory duty, he may not be treated to be an attesting witness. A question has also been raised as to whether a certificate by Sub-Registrar at the time of registration proves attestation. A Sub-Registrar in the matter of registration of a document acts under the provisions of the Registration Act, 1908 (1908 Act). Section 52 of the 1908 Act prescribes the duty of Registering Officer when document is presented in terms thereof. The signature of every person presenting a document for registration is required to be endorsed on every such document at the time of presentation. Section 58 prescribes the particulars to be endorsed on documents admitted to registration, such as : "(a) Signature of the person admitting the execution of the document; (b) Any money or delivery of goods made in presence of Registering Officer in reference to the execution of the document shall be endorsed by the Registering Officer in the document presented for Registration. Therefore this is the only duty cast on the Registering authority to endorse on the will, i.e. to endorse only the admission or execution by the person who

presented the document for registration. The compliance of this provision leads to the legal presumption that the document was registered and nothing else.." If an authority in performance of a statutory duty signs a document, he does not become an attesting witness within the meaning of Section 3 of the Transfer of Property Act and Section 63 of the Succession Act. The term `attestation' means: "to `attest' is to bear witness to a fact. The essential conditions of valid attestation are (i) two or more witnesses have seen the executant sign the instrument (ii) each of them has signed the instrument in presence of the executant. "Animus attestandi" is a necessary ingredient for proving the attestation. If a person puts his signature in a document only in discharge of his statutory duty, he may not be treated to be an attesting witness. ….. The said witness did not know the testatrix personally. Even her parentage was not asked for and inquired into. He was examined eight years after the registration. It is difficult for any ordinary person after a period of eight years, inter alia, on the basis of a certified copy to depose in regard to evidence of such nature, particularly, in a case where a Will has been executed on the day on which she had executed a deed of sale in favour of a complete stranger. His evidence, therefore, does not inspire confidence. In any event he cannot be said to have proved due execution or attestation of the Will.

It is now well settled that requirement of the proof of execution of a Will is the same as in case of certain other documents, for example Gift or Mortgage. The law requires that the proof of execution of a Will has to be attested at least by two witnesses. At least one attesting witness has to be examined to prove execution and attestation of the Will. Further, it is to be proved that the executant had signed and/or given his thumb impression in presence of at least two attesting witnesses and the attesting witnesses had put their signatures in presence of the executant.

WHEN THE WILL CAN BE DOUBTED Joseph Antony Lazarus (Dead) by LRs v. A.J. Francis [(2006) 9 SCC 515] in which the Apex Court has held that non-mention in the Will about other sons of testatrix while bequeathing the entire property to two sons alone and suspicious circumstances of execution of the Will like old age, indifferent health of testatrix, existence of two different signatures of testatrix on each

page of the Will, registration of the Will after one year, non- examination of advocate who had drafted the Will and Sub- Registrar before whom Will was presented for registration makes genuineness of the Will doubtful. Honourable Supreme Court Niranjan Umeshchandra v. Mrudula Jyoti Rao and Ors, AIR 2007 SC 614, in which it has been held by the Apex Court that execution of Will while the testator was admitted in ICU of hospital and other circumstances make genuineness of execution of the Will suspicious. Court in H. Venkatachala Iyengar vs B.N. Thimmajamma and others (AIR 1959 SC 443), wherein the following circumstances were held to be relevant for determination of the existence of the suspicious circumstances : (i) When a doubt is created in regard to the condition of mind of the testator despite his signature on the Will; (ii) When the disposition appears to be unnatural or wholly unfair in the light of the relevant circumstances; (iii) Where propounder himself takes prominent part in the execution of Will which confers on him substantial benefit. Honourable Supreme Court Niranjan Umeshchandra v. Mrudula Jyoti Rao and Ors, AIR 2007 SC 614, wherein it is held as follows: There are several circumstances which would have been held to be described by the Supreme Court as suspicious circumstances. These circumstances are (i) When a doubt is created in regard to the condition of mind of the testator his signature on the Will; (ii) When the disposition appears to be unnatural or wholly unfair in the light of the relevant circumstances; (iii) Where propounder himself takes prominent part in the execution of Will which confers on him substantial benefit. In Ramabai Padmakar Patil (Dead) though L.Rs. and Others v. Rukminibai Vishnu Vekhande and Others [(2003) 8 SCC 537], Court held : 8. A Will is executed to alter the mode of succession and by the very nature of things it is bound to result in either reducing or depriving the share of a natural heir. If a person intends his property to pass to his natural heirs, there is no necessity at all of executing a Will. It is true that a propounder of the Will has to remove all suspicious circumstances. Suspicion means doubt, conjecture or mistrust. But the fact that natural heirs have either been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be a suspicious circumstance, especially in a case where the bequest has been

made in favour of an offspring._ [See also S. Sundaresa Pai and Others v. Sumangala T. Pai (Mrs.) and Another - 2002 (1) SCC 630].

MODE OF PROVING WILL Savithri & Ors vs Karthyayani Amma & Ors (2007) 11 SCC 621] A Will like any other document is to be proved in terms of the provisions of the Indian Succession Act and the Indian Evidence Act. The onus of proving the Will is on the propounder. The testamentary capacity of the propounder must also be established. Execution of the Will by the testator has to be proved. At least one attesting witness is required to be examined for the purpose of proving the execution of the Will. It is required to be shown that the Will has been signed by the testator with his free will and that at the relevant time he was in sound disposing state of mind and understood the nature and effect of the disposition. It is also required to be established that he has signed the Will in the presence of two witnesses who attested his signature in his presence or in the presence of each other. Only when there exist suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the court before it can be accepted as genuine.

In Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao & Ors. [2006 (14) SCALE 186], Court held : Section 63 of the Indian Evidence Act lays down the mode and manner in which the execution of an unprivileged Will is to be proved. Section 68 postulates the mode and manner in which proof of execution of document is required by law to be attested. It in unequivocal terms states that execution of Will must be proved at least by one attesting witness, if an attesting witness is alive subject to the process of the court and capable of giving evidence. A Will is to prove what is loosely called as primary evidence, except where proof is permitted by leading secondary evidence. Unlike other documents, proof of execution of any other document under the Act would not be sufficient as in terms of Section 68 of the Indian Evidence Act, execution must be proved at least by one of the attesting witnesses. While making attestation, there must be an animus attestandi, on the part of the attesting witness, meaning thereby, he must intend to attest and extrinsic evidence on this point is receivable. The burden of proof that the Will has been validly executed and is a genuine document is on the propounder. The propounder is also required to prove that the testator has signed the Will and that he had put his signature out of his own free will having a sound

disposition of mind and understood the nature and effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharged. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In the case of proof of Will, a signature of a testator alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated. However, if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator. [See Madhukar D. Shende v. Tarabai Shedage (2002) 2 SCC 85 and Sridevi & Ors. v. Jayaraja Shetty & Ors. (2005) 8 SCC 784]. Subject to above, proof of a Will does not ordinarily differ from that of proving any other document.

Gurdial Kaur and Others v. Kartar Kaur and Others [(1998) 4 SCC 384], wherein it was held : 4. The law is well settled that the conscience of the court must be satisfied that the Will in question was not only executed and attested in the manner required under the Indian Succession Act, 1925 but it should also be found that the said Will was the product of the free volition of the executant who had voluntarily executed the same after knowing and understanding the contents of the Will. Therefore, whenever there is any suspicious circumstance, the obligation is cast on the propounder of the Will to dispel the suspicious circumstance. As in the facts and circumstances of the case, the court of appeal below did not accept the valid execution of the Will by indicating reasons and coming to a specific finding that suspicion had not been dispelled to the satisfaction of the Court and such finding of the court of appeal below has also been upheld by the High Court by the impugned judgment, we do not find any reason to interfere with such decision. This appeal, therefore, fails and is dismissed without any order as to costs. Honourable Supreme Court Janki Narayan Bhoir v. Narayan Namdeo Kadam, (2003) 2 SCC 91, at Page 102, wherein the Honourable Supreme Court has held that 'although Will is required to be attested by two witnesses, it could be proved by examining one of the attesting witnesses as per Section 68 of the Indian Evidence Act and further, one attesting witness examined should be in a position to prove an execution of the Will and as per Section 71 of the Indian Evidence Act, if an attesting witness denies or does not recollect execution of the document, its execution may be proved by other evidence and moreover, this Section has no application when one attesting witness has failed to prove the execution of the Will and other attesting witnesses were available who could prove the execution if they were called.'

Court in Mst. Karmi Vs. Amru reported in AIR 1971 SC 745, a widow who succeeds to the property of her deceased husband on the strength of his will, cannot claim any right other than those conferred by the will. Thus life estate given to her under a will cannot become an absolute estate under the provisions of Section 14 (2) of the Hindu Succession Act, 1956. In Navneet Lal Vs Gokul and others reported in 1976 (1) SCC 630, a bench of three judges of this court was concerned with an almost identical situation, wherein a life estate was created by the testator in favour of his wife. After going through the will, this Court held that it was permissible for the testator to create a limited estate in favour of his wife by making a will. S.B. Itigi and anr vs Sulochana and ors ILR 2007 Kar 247 wherein Karnataka High court has observed that, non signing on the first page of the Will creates doubt, in normal course the signature of the testator will be upon all the pages. The Apex Court in a judgment reported in 2008 AIR SCW 5666 in the matter of Baljinder Singh vs. Rattan Singh has held, the Will executed and registered not at place where testator usually visited or resided. The attesting witness not known to testator, and Will does not make any reference to the real son of the testator creates a Will as suspicious. In Shivdev Kaur (D) by L.Rs. & Ors. v. R.S. Grewal (Civil Appeal Nos.5063-5065 of 2005, decided on 20.3.2013), Court dealt with the issue of Section 14(2) of the Act 1956 and held :- “Thus, in view of the above, the law on the issue can be summarised to the effect that if a Hindu female has been given only a “life interest”, through Will or gift or any other document referred to in Section 14 of the Act 1956, the said rights would not stand crystallised into the absolute ownership as interpreting the provisions to the effect that she would acquire absolute ownership/title into the property by virtue of the provisions of Section 14(1) of the Act 1956, the provisions of Sections 14(2) and 30 of the Act 1956 would become otios. Section 14(2) carves out an exception to rule provided in sub-section (1) thereof, which clearly provides that if a property has been acquired by a Hindu female by a Will or gift, giving her only a “life interest”, it would remain the same even after commencement of the Act 1956, and such a Hindu female cannot acquire absolute title.”

WILL UNDER SUSPICIOUS CIRCUMSTANCES

THE HON'BLE MR. JUSTICE N. KUMAR AND THE HON'BLE MR. JUSTICE H. S. KEMPANNA of Karnataka High Court in the case of Smt Sulochana Manvi vs Chitriki Shivayogappa Decided on 8 August, 2012 It is well settled that if the persons who would get the property of the testator by inheritance are deprived of the said property by a Will and no reasons are coming forward to explain this disinheritance, that itself constitutes a suspicious circumstance. Then again a duty is cast on the propounder of the Will to remove the said suspicious circumstance. In the Will all that has been said is, testator has performed the marriages of his daughter and the plaintiff and none of them are living with him. He has given them gold ornaments and stree dhana; he does not want any dispute after his death in respect of his share in the joint family property and therefore he is making the Will. Absolutely no material is placed on record by the propounder of the Will to show what is that stree dhana given to the plaintiff and to the other daughters. In so far as gold ornaments are concerned, it is customary in a Hindu family especially when people are coming from a fairly affluent rich family as that of the parties to the proceedings, daughters are given these gold ornaments. That cannot be construed as a share in a joint family property. If any property is given as stree dhana out of the joint family property, probably that would be a sufficient ground to deny a share in the joint family property. Though there is a reference to stree dhana in the Will, absolutely no evidence is place on record. On the contrary, the evidence on record discloses, not an inch in the joint family property is given to the plaintiff in particular and to the daughters of the deceased testator. If no stree dhana property out of the joint family property is given and if no reasons are given for denying the daughters of the family and the plaintiff who is a son's daughter, that itself constitutes a suspicious circumstance, which compels the propounder to give satisfactory explanation to discharge the said suspicious circumstance. No evidence is coming forward in this direction. If really the testator wanted to exclusively give his share in the joint family property to his two sons and he had no intention of giving any such property to his daughters or to the plaintiff who is none other than a son's daughter and he bequeathed his undivided share under Ex.D.3, three years thereafter he has effected a partition of the joint family property by way of a Registered Partition Deed- Ex.P.2 dated 05.08.1959. In the said registered partition deed there is no reference to this Will-Ex.D.3. The recitals in the said partition deed makes it clear in order to prevent any disputes arising in future and consequently the family getting into difficulties, the parties, i.e., the testator and his two sons, decided that it is proper to live separately. Therefore they effected partition of all the joint family properties under Ex.P.2; the gold and silver utensils and other household articles were distributed, then the

immovable properties were divided into three shares, i.e., A, B & C. 'A' share was allotted to the share of the testator; 'B' and 'C' shares were allotted to the share of the defendant nos. 1 and 2. Full description of the properties were given. On the day the partition deed was executed the testator Totappa was not in a position to affix his signature due to a paralytic stroke and therefore he put his left hand thumb impression, it is on 05.08.1959. He died on 15.03.1960. It is in this context, it is necessary to find out when did this paralytic stroke occurred, because as the Will was executed on 26.07.1956 it is necessary to find out whether the testator was in a sound state of mind. Even in the absence of any specific contention, a propounder in order to succeed in a Court of law in proving the Will owes a duty to establish to the satisfaction of the Court that the testator was in a sound state of mind and that he executed the Will out of his own free Will. The Apex Court in the aforesaid judgment has held that the condition of the testator's mind may appear to be very feeble and debilitated and therefore when the disposition made in the Will is unnatural, improbable or unfair and when the Will indicates that the said disposition may not be the result of the testator's free Will and mind, the presence of such suspicious circumstances naturally tends to make initial onus very heavy and unless it is satisfactorily discharged, Courts should be reluctant to treat the document as the last Will of the testator. The propounder has to show by satisfactory evidence that the Will was signed by the testator and the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the disposition and put his signature to the document out of his own free will. In this background when admittedly in 1959 the testator had a paralytic stroke and immediately thereafter he died the Will having come into existence about three years prior to the partition deed, unless the propounder of the Will by satisfactory evidence satisfy the Court that the testator was in a sound state of mind on the date of execution of the Will; the Will cannot be said to have proved in accordance with law. If the Will is validly executed and inspite of the Will if a partition deed has come into existence in the year 1959 and in 1960 when the testator died, by virtue of the Will these two brothers would get equal share in the separate property of the testator. The evidence of DW1 shows he was also aware of the Will, he was an Advocate by profession, his senior is the attesting witness to the said Will. Strangely no effort is made to approach the District Registrar with a request to open the Will and furnish them a copy of the Will. By virtue of the bequest defendant nos. 1 and 2 got substantial immovable properties on the death of their father. By virtue of the Will, when they are claiming these properties, it was incumbent upon them to approach the Revenue Authorities for effecting mutation entries on the basis of the Will. The evidence on record do not disclose any such attempt made on the part of the defendant nos. 1 and 2. The mutation entries

effected are not based on the Will. Therefore yet another suspicion arises in the mind of the Court, whether there was a Will as propounded by the defendants; whether it was deposited with the District Registrar; even if it is deposited why the testator gave a go bye to the Will and executed a Registered Gift Deed claiming 1/3 share in the joint family property under the Partition Deed and why the defendant nos. 1 and 2 after the death of the testator did not make use of this Will to claim right to his separate property and get the mutation entries made in their favour in terms of the Will. Absolutely no evidence is forthcoming to explain these suspicious circumstances.

Supreme

Court

in

the

case

of

Chiranjilal

Shrilal

Goenka

(deceased) Through LRs v. Jasjit Singh and others, (1993) 2 SCC 507, wherein it has been held that the Succession Act is a self-contained code insofar as the question of making an application for probate, grant or refusal of probate or an appeal carried against the decision of the probate court. The probate proceedings shall be conducted by the probate court in the manner prescribed in the Act and in no other way. The only issue in a probate proceeding relates to the genuineness and due execution of the will and the court itself is under duty to determine. The probate court does no more than establish the factum of the will and the legal character of the executor. It does not decide any question of title or of the existence of the property itself.

Supreme Court in the case of Balbir Singh Wasu v. Lakhbir Singh and others, (2005) 12 SCC 503, wherein the court had, while dealing with the contention that section 213 of the Succession Act which requires an executor to obtain probate before establishing his claim under the will was not applicable outside the Presidency Towns of Calcutta, Madras and Bombay, observed that assuming the said contention to be correct, section 213 does not prohibit the executor from applying for probate as a matter or prudence or convenience to the courts in other parts of the country not covered by section 213. It was submitted that in the light of the aforesaid decisions, it was incumbent

upon

the

plaintiffs

to

first

obtain

probate

or

letters

of

administration in respect of the will failing which, the civil court could not have granted any relief on the basis of the will to the plaintiff. It was, accordingly, urged that the appeal does give rise to substantial questions of law, as proposed or as may be otherwise deemed fit by this Court and as such deserves to be admitted.

Supreme Court in the case of Clarence Pais and others v. Union of India, AIR 2001 SC 1151, (2001) 4 SCC 325 had occasion to deal with Section 213. Laying down the scheme of operation of Sub-section (2) of Section 213 of the 1925 Act, the Apex Court observed at para 6 as follows: "The effect of Section 213(2) of the Act is that the requirement of probate or other representation mentioned in Sub-section (1) for the purpose of establishing the right as an executor or legatee in a Court is made inapplicable in case of Will made by Mohammedans and in the case of Wills coming under Section 57(c) of the Act. Section 57(c) of the Act applies to all Wills and codicils made by any Hindu, Buddhist, Sikh or Jaina, or after the First day of January, 1927 which does not relate to any immovable property situate within the territory formerly subject to the Lieutenant-Governor of Bengal or within the local limits of the ordinary civil jurisdiction of the High Courts of Judicature at Madras and Bombay, or in respect of property within those territories......... .... ..... ..... A combined reading of Sections 213 and 57 of the Act would show that where the parties to the Will are Hindus or the properties in dispute are not in territories falling under Section 57 (a) and (b), Sub-section (2) of Section 213 of the Act applies and Sub-section (1) has no application. As a consequence, a probate will not be required to be obtained by a Hindu in respect of a Will made outside those territories or regarding the immovable properties situate outside those territories ". Court in Mrs. Hem Nolini Judah v. Mrs. Isolyne Sarojbashini Bose, AIR (1962) SC 1471, held as follows : "The words of S.213 are not restricted only to those cases where the claim is made by a person directly claiming as a legatee. The section does not say that no person can claim as a legatee or as an executor unless he obtains probate or letters of administration of the will under which he claims. What it says is that no right as an executor or legatee can be established in any Court of Justice, unless probate or letters of administration have been obtained of the will under which the right is claimed, and therefore, it is immaterial who wishes to establish the right as a legatee or an executor. Whosoever wishes to establish that right whether it be a legatee or an executor himself on somebody else who might find it necessary in order to establish his right to establish the right of some legatee or executor from whom he might have derived title, he cannot do so unless the will under which the right as a legatee or executor is claimed has resulted in the grant of a probate or letters of administration."

In Cherichi v.Ittianam & others [AIR 2001 Kerala 184], it has been held that the prohibition under section 213 of Indian Succession Act is regarding establishing any right under the will without probate and that section cannot be understood as one by which the vesting of right as per the provisions of the will is postponed until the obtaining of probate or letters of administration. The will takes effect on the death of the testator and what section 213 says is that the right as executor or legatee can be established in any Court only if probate is obtained. Therefore, section 213(1) does not prohibit the use of will which is unprobated as evidence for purposes other than establishment of right as executor or legatee. Therefore, the requirement of obtaining probate becomes relevant at the time when the establishment of right as executor or legatee is sought to be made on the basis of a will in a court of justice.

In Sheonath Singh v. Madanlal reported in [AIR 1959 Raj. 243], it was held that Section 213 does not vest any right. It only regulates the procedure of proving a will. It is distinct from section 211. It lays down a rule of procedure and not of any substantive right.

G.V. Raju vs Smt. L.K. Gowramma 2004 (2) KarLJ 317 The respondent is an Hindu and the Will made by her father is in respect of property which is situate outside the territorial limits of the ordinary civil jurisdiction of the High Courts of Judicature at Madras and Bombay and, therefore, the probate will not be required to be obtained by her in respect of a Will made in her favour.

Court in Ishwardeo Narain Singh v. Smt. Kamta Devi & Ors. [AIR 1954 SC 980] wherein, inter alia, it was held : The Court of Probate is only concerned with the question as to whether the document put forward as the last will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution the testator had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the probate Court.

Basanti Devi vs Raviprakash Ramprasad Jaiswal AIR 2008 SC 295 It is now well settled that an application for grant of probate is a proceeding in rem. A probate when granted not only binds all the parties before the Court but also

binds all other persons in all proceedings arising out of the Will or claims under or connected therewith. Being a judgment in rem, a person, who is aggrieved thereby and having had no knowledge about the proceedings and proper citations having not been made, is entitled to file an application for revocation of probate on such grounds as may be available to him. We are, therefore, of the opinion that the application for revocation of the grant of probate should have been entertained.

In the case of H. Venkatachala Iyengar v. B.N. Thimmajamma, [1959 Supp (1) SCR 426] Gajendragadkar J. stated the true legal position in the matter of proof of Wills. The aforesaid statement of law was further clarified by Chandrachud J. in the case of Jaswant Kaur v Amrit Kaur [(1977) 1 SCC 369] as follows:

1. Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty. 2. Since Section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by Section 68 of the Evidence Act, one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence. 3. Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will. 4. Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the

propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator. 5. It is in connection with wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator. 6. If a caveator alleges fraud, undue influence, coercion etc. in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter."

(2008) 10 SCC 489 ( G. Gopal vs C. Baskar and others) It is well settled that if a person who has even a slight interest in the estate of the testator is entitled to file caveat and contest the grant of probate of the will of the testator. Smt. Shobha Kshirsagar vs Smt. Janki Kshirsagar And Anr. AIR 1987 MP 145 Section 213 of the same Act provides that unless the Court of competent jurisdiction has granted probate of the will under which the right is claimed, no right as an executor or a legatee can be established, but the provisions do not apply to all cases of wills made by any Hindu. True it is that this section shall not apply to the will made in the instant case, but the provision of Section 216 is noteworthy because of its mandatory character. Although it is not obligatory to obtain a probate in case of wills made by any Hindu, but when a probate is, in fact, obtained, there can be no doubt that Section 216 shall become operative immediately in such a case. Notice must also be taken of Section 217 which provides that grant of a probate is made only in accordance with the

provisions of Part IX of the said Act. The other provision to be noted is Section 227 which provides that when a probate of a Will is granted, then it renders valid all intermediary acts of the executor as he may have done after the death of the testator. Therefore, when under a Will any guardian is appointed and he is appointed an executor of the Will, it will be a question of deciding his right under the Will to deal with the property of the minor for whose guardianship of person and property any application is made at any time. According to me, therefore, when two different Wills, materially different in object and purpose, are propounded in support of a claim for guardianship, it will be necessary to obtain probate of any Will to prove the genuineness of the Will and of the right that has accrued under the Will. Chiranjilal Shrilal Goenka ... vs Jasjit Singh And Ors 1993 SCR (2) 454, 1993 SCC (2) 507 Court of Probate has the exclusive jurisdiction and a Civil Court in the Original Side or Arbitrator even on consent of parties has no jurisdiction to adjudicate upon the proof or validity of a Will propounded by the executor since the Probate Court does not decide the question of title. ............. The grant of Probate by a Court of competent jurisdiction is in the nature of a proceeding in rem. So long as the order remains in force it is conclusive as to the due execution and validity of the will unless it is duly revoked as per law. It binds not only upon all the parties made before the Court but also upon all other persons in all proceedings arising out of the Will or claims under or connected therewith. The decision of the Probate. Court, therefore, is the judgment in rem. The probate granted by the competent court is conclusive of the validity of the Will until it is revoked and no evidence can be admitted to impeach it except in a proceeding taken for revoking the probate. ............... The Probate Court has been conferred with exclusive jurisdiction to grant probate of the Will of the deceased annexed to the petition (suit); on grant or refusal thereof, it has to preserve the original will produced before it. The grant of probate is final subject to appeal, if any, or revocation if made in terms of the provision of the Succession Act It is a judgment in rem and conclusive and binds not only the parties but also the entire world. The award deprives the parties of statutory right of appeal provided under section 299. Thus the necessary conclusion is that the Probate Court alone has exclusive jurisdiction and the Civil Court on original side or the Arbitrator does not get jurisdiction, even if consented to by the parties, to adjudicate upon the proof or validity of the Will propounded by the executrix, the appellant. B. Manjunatha Prabhu And Ors. vs C.G. Srinivas And Ors. AIR 2005 Kant 136, ILR 2005 KAR 467, 2005 (4) KarLJ 85 Article 137 of the Limitation Act would not apply to the proceedings filed for grant of probate or Letters of

Administration with or without the Will annexed. Before concluding, we must point out that though the proceedings filed for grant of probate or Letters of Administration may not come within the mischief of Article 137 of the Limitation Act, 1963, yet the delay aspect is relevant to test the genuineness of the Will propounded. Delay in taking steps gives rise to suspicion and the longer the delay the stronger the suspicion. Arokiamary

vs

Sampammal ILR

1990

KAR

3917,

1990

(2)

KarLJ

379 Whereas the object of grant of Succession Certificate does not determine any question of title or decide what property does or does not belong to the estate of the deceased; it merely enables the party to whom a certificate is granted to collect any debt or security belonging to the deceased. Thus the object is to facilitate the collection of debt and/or debts and not to enable the parties to litigate questions of disputed title. Section 383 of the Indian Succession Act specifically provides that the certificate granted under Part X may be revoked for any reasons falling under Clauses (a) to (e) in that Section. Clause (e) specifically provides that a certificate granted under Part X may be revoked if the decree or order made by a Competent Court in a suit or other proceeding with respect to effects comprising debts or securities specified in the certificate renders it proper that the certificate should be revoked. Therefore, it is open to a party entitled to the estate of the deceased irrespective of the fact that he has not been granted a succession certificate, to file a suit in a Civil Court and establish his right to the estate of the deceased and in that event, the succession certificate issued to any other person in respect of such estate of the deceased will have to be revoked.

Smt. Indu Bala Bose & Ors. v. Manindra Chandra Bose & Anr. reported in [AIR 1982 SC 133], it has been held that a circumstance would be "suspicious" when it is abnormal or is not normally expected in a normal situation or is not expected of a normal person. Honourable

Apex

Court

in

Pentakota

Satyanarayana

v.

Pentakota

Seetharatnam reported in (2005) 8 Supreme Court Cases 67 A perusal of Ex.B9 (in original) would show that the signatures of the Registering Officer and of the identifying witnesses affixed to the registration endorsement were, in our opinion, sufficient attestation within the meaning of the Act. The endorsement by the sub-registrar that the executant has acknowledged before him execution did also amount to attestation. In the original document the executants signature was taken by the sub-registrar. The signature and thumb impression of the identifying witnesses were also taken in the document. After

all this, the sub-registrar signed the deed. ……………… It is true that registration of the Will does not dispense with the need of proving, execution and attestation of a document which is required by law to be proved in the manner as provided in Section 68 of the Evidence Act. The Registrar has made the following particulars on Ex.B9 which was admitted to registration, namely, the date, hour and place of presentation of document for registration, the signature of the person admitting the execution of the Will and the signature of the identifying witnesses. The document also contains the signatures of the attesting witnesses and the scribe. Such particulars are required to be endorsed by the Registrar along with his signature and date of document. A presumption by a reference to Section 114 of the Evidence Act shall arise to the effect that particulars contained in the endorsement of registration were regularly and duly performed and are correctly recorded. In our opinion, the burden of proof to prove the Will has been duly and satisfactorily discharged by the appellants. The onus is discharged by the propounder adducing prima facie evidence proving the competence of the testator and execution of the Will in the manner contemplated by law. In such circumstances, the onus shift to the contestant opposing the Will to bring material on record meeting such prima facie case in which event the onus shift back on the propounder to satisfy the court affirmatively that the testator did know well the contents of the Will and in sound disposing capacity executed the same. ……………..It is settled by a catena of decisions that any and every circumstance is not a suspicious circumstance. Even in a case where active participation and execution of the Will by the propounders/beneficiaries was there, it has been held that that by itself is not sufficient to create any doubt either about the testamentary capacity or the genuineness of the Will. It has been held that the mere presence of the beneficiary at the time of execution would not prove that the beneficiary had taken prominent part in the execution of the Will. This is the view taken by this Court in Sridevi & Ors vs. Jayaraja Shetty & Ors, (2005) 2 SCC 784. In the said case, it has been held that the onus to prove the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will proof of testamentary capacity and the proof of signature of the testator as required by law not be sufficient to discharge the onus. In case, the person attesting the Will alleges undue influence, fraud or coercion, the onus will be on him to prove the same and that as to what suspicious circumstances which have to be judged in the facts and circumstances of each particular case. …………….The circumstances of depriving the natural heirs should not raise any suspicion because the whole idea behind the execution of the will is to be interfered in the normal line of succession and so natural heirs would be debarred in every case of the Will. It may be that in some cases they are fully

debarred and some cases partly. This is the view taken by this Court in Uma Devi Nambiar and Others vs. T.C.Sidhan (Dead) (2004) 2 SCC 321. ……………

Sunanda Kom Vittal Pai vs Mukund Srinivas Shanbhat ILR 1989 KAR 2676, 1989 (2) KarLJ 364 In our view it is only to cases to which Section 213(1) is attracted, no other Court except the District Court concerned would have jurisdiction to decide the issue as to the validity of the will and to grant probate or letter of administration. In such a case even if there was an earlier suit claiming right or title to the property as a legatee under a will and it had been decided by the Court in which the suit was filed or even in appeal, the decision in such a suit, of the original Court or the first Appellate Court or even the High Court in first or second appeal would not operate as resjudicata as in such a case the Court before which the suit was instituted would have had no jurisdiction to go into the genuineness or validity of the will. But if in a case to which the bar created under Section 213(1) is not attracted if the party chooses to file a suit claiming right or title to the property on the basis of a will and for purposes of deciding such a suit it becomes necessary for the Court before which the suit is filed to decide the question regarding the validity of the will also and that question is decided, such a decision becomes final and binding on the parties and thereafter if the same party chooses to file an application under Section 276 of the Succession Act, the decision rendered' in the suit would operate as resjudicata.

In Banarsi Dass vs. Teeku Dutta (Mrs) and another, (2005) 4 SCC 449 it was held to the following effect:- " The main object of a succession certificate is to facilitate collection of debts on succession and afford protection to the parties paying debts to the representatives of deceased persons. All that the succession certificate purports to do is to facilitate the collection of debts, to regulate the administration of succession and to protect persons who deal with the alleged representatives of the deceased persons. Such a certificate does not give any general power of administration on the estate of the deceased. The grant of a certificate does not establish title of the grantee as the heir of the deceased. A succession certificate is intended as noted above to protect the debtors, which means that where a debtor of a deceased person either voluntarily pays his debt to a person holding a certificate under the Act, or is compelled by the decree of a court to pay it to the person, he is lawfully

discharged. The grant of a certificate does not establish a title of the grantee as the heir of the deceased, but only furnishes him with authority to collect his debts and allows the debtor to make payments to him without incurring any risk. In order to succeed in the succession application the applicant has to adduce cogent and credible evidence in support of the application...."

HON'BLE MR. JUSTICE ARUN BHANSALI of Rajasthan High Court in the case of Kaidar Nath & Ors vs Amar Nath & Ors Decided on 22 February, 2013 The legal position that under Section 57 of the Act probate is not required to be obtained in the State of Rajasthan does not create a bar under the said provision against instituting a proceeding before a Court of competent jurisdiction seeking probate of a Will. Once the propounder of the Will, in his discretion, files an application under Section 276 of the Act, seeking probate of a Will, it is well within the jurisdiction of the Court to decide the probate proceedings, which requires the Court to decide whether the Will is the last Will of the deceased and whether the same was surrounded by suspicious circumstances, if any.

THE HON'BLE MR.JUSTICE K.N.KESHAVANARAYANA of Karnataka High Court in the case of Mrs Joyce Enet Ugare vs James J P Roche Decided on 19 June, 2012 Therefore, the learned District Judge is justified in rejecting the contention raised with regard to the jurisdiction of the District Judge to grant Probate. Therefore, the said finding recorded by learned District Judge is sound and reasonable and is in accordance with law.

In Re: Gordon Frederic Muirhead ... vs Unknown AIR 1959 Kant 83, AIR 1959 Mys 83, (1958) 36 MysLJ

The question which is referred to us for

decision is whether or not this Court has jurisdiction to grant probate and/or letters of administration in respect of an estate, the whole of which is within the State of Mysore. The answer to this question, from whatever point of view it may be considered, can only be in the affirmative. …………… The highest civil court of appeal in the State of Mysore was Originally the chief court which subsequently came to be named as the "High Court." In the year 1914 the State of Mysore passed a Regulation being Regulation VI of 1914 to provide for the grant of probates of Wills and letters of administration to the estates of deceased persons. ………….. Section 51 of the said Regulation provides that the District Judge shall have jurisdiction in granting and revoking probates

and letters of administration in all cases within his District Section 85 of the said Regulation reads as follows:-- "The High Court shall have concurrent jurisdiction with the District Judge in the exercise of all the powers hereby conferred upon the District Judge." ………… Therefore, under the law as it stood prior to the date when the new Succession Act (Act XXXIX of 1925) came into force in the State of Mysore, the High Court had the same jurisdiction as the District Judge in granting probates and letters of administration. …………… In P.H. Alphonso v. Dr. C.F. DeCosta and Ors., (AIR 1964 Mysore 187), a Bench of this Court held that revocation of the grant of the probate cannot be made retrospectively and the order of revocation must take effect from the date of application made for the purpose. At page 190, it was observed thus : "...The executor is competent to enter into contracts on behalf of the estate and possesses power to dispose of the property of the deceased vested in him in such manner as he thinks fit. We have also referred to the liability of the executor to be sued by a person interested in the property and intending to avoid the alienations made by him. The contracts entered into and the alienations made by an administrator are valid until they are set aside by a competent Court at the instance of person is interested in the property. A retrospective revocation is not therefore contemplated by law. Any order of revocation passed under Section 263 of the Act must take effect from the date of the application made for the purpose."