Case Note & Summary
The present Testamentary Suit was filed by the Plaintiffs, who are executors named in the Will dated 12th December 1996 of Yashwantilika Narottamdas Dalal (the deceased), seeking probate of the said Will. The deceased passed away on 16th April 2002. The Will, written in Gujarati, appointed six executors and expressed the deceased's wish to construct a hospital on her property at Mahatma Gandhi Road, Ghatkopar, Mumbai. The Will also provided for the appointment of additional executors. After the deceased's death, Plaintiff No. 3 was appointed as additional executor, and later Plaintiff Nos. 2 and 3 were appointed by Plaintiff No. 1. The Defendants, including two of the named executors (Defendant Nos. 1 and 2), the granddaughter of the deceased's uncle (Defendant No. 3), and grandsons of another uncle (Defendant Nos. 4 and 5), filed caveats opposing probate on the ground that the Will was forged and fabricated, and that the deceased had left a prior will dated 13th May 1995. Defendant Nos. 1 and 2 filed Testamentary Petition No. 132 of 2006 seeking probate of the prior will, which was converted to Testamentary Suit No. 65 of 2006. The court framed issues regarding the genuineness of the Will and the entitlement of the Plaintiffs to probate. The Plaintiffs led evidence of both attesting witnesses: Mr. Thakorbhai Desai (PW1) and Mr. Ramanlal Sanghavi. PW1 was cross-examined, but his testimony remained unshaken. Mr. Sanghavi passed away after filing his affidavit. The Defendants led evidence of the caretaker, Mr. Dinesh Rathod (DW1). During the pendency of the suit, Defendant Nos. 1 and 2 passed away, and their caveats were discharged, and Testamentary Suit No. 65 of 2006 was dismissed. Defendant No. 3's caveat was dismissed for lack of caveatable interest. Defendant Nos. 4 and 5 failed to appear despite opportunities. The court, after considering the submissions and evidence, held that the Plaintiffs had proved that the Will dated 12th December 1996 was the last Will and Testament of the deceased, duly executed and attested as per Section 63(c) of the Indian Succession Act, 1925. The court granted probate of the Will to the Plaintiffs, subject to compliance with formalities.
Headnote
A) Succession Law - Proof of Will - Section 63(c) Indian Succession Act, 1925 - Attestation - The court examined whether the will dated 12th December 1996 was duly attested by two witnesses as required under Section 63(c) of the Indian Succession Act, 1925. The Plaintiffs led evidence of both attesting witnesses, one of whom was cross-examined and his testimony remained unshaken. The court held that the will was duly executed and attested, and the Plaintiffs had discharged the burden of proof. (Paras 8-10) B) Succession Law - Caveatable Interest - Dismissal of Caveat - The court noted that Defendant No. 3's caveat was dismissed for lack of caveatable interest, and Defendant Nos. 4 and 5 failed to appear despite opportunities. The court held that the remaining caveats were not sustainable, and the Plaintiffs were entitled to probate. (Paras 6-7) C) Succession Law - Prior Will - Dismissal of Testamentary Suit - The court noted that Testamentary Suit No. 65 of 2006, which sought probate of a prior will dated 13th May 1995, was dismissed on 1st July 2022. Thus, the only will in question was the one propounded by the Plaintiffs. (Para 8)
Issue of Consideration
Whether the Plaintiffs prove that the Will dated 12th December 1996 is the last Will and Testament of the deceased and whether they are entitled to grant of probate.
Final Decision
The court held that the Plaintiffs have proved that the Will dated 12th December 1996 is the last Will and Testament of the deceased and that they are entitled to grant of probate. The court directed that probate be granted to the Plaintiffs upon compliance with necessary formalities.
Law Points
- Section 63(c) of Indian Succession Act
- 1925
- attestation of will
- proof of will
- probate
- caveatable interest
- dismissal of caveat
- testamentary suit
