Case Note & Summary
The dispute concerned the probate of a will and two codicils executed by one Saroj Bala, who died on 13 January 1971 at the age of 90. The appellants, Rabindra Nath Mukherjee and another, were named as executors in the will and sought probate from the Additional District Judge, Alipore. The respondents, including Panchanan Banerjee (dead) by legal representatives and others, were descendants of a full blood sister of the testatrix and objected to the probate. The trial court refused probate, finding that the will and codicils were surrounded by suspicious circumstances, and the High Court at Calcutta affirmed this decision on appeal. The executors then approached the Supreme Court by special leave. The lower courts identified four suspicious circumstances: (1) deprivation of natural heirs by the testatrix; (2) identification of the testatrix before the Sub-Registrar by an advocate of Calcutta who had acted as a lawyer for one of the executors in some cases; (3) the witnesses to the documents were interested in the appellants; and (4) active part played by one Subodh, a close relation of one of the executors, in getting the execution of the will, described as ubiquitous. The Supreme Court examined each circumstance. On deprivation of natural heirs, the Court held that this should not raise suspicion because the whole idea behind execution of a will is to interfere with the normal line of succession, and in every case of will natural heirs are debarred either fully or partially. It noted that the executors were sons of a half-blood brother while the objectors were descendants of a full blood sister, and some descendants of the full blood sister were even beneficiaries under the will. On identification by a lawyer, the Court held that this could have been regarded as suspicious only if a wrong person had been identified as Saroj Bala, which was not the case of the objectors. Therefore, there was no bane in this circumstance. Regarding interested witnesses, the Court observed that witnesses verify voluntary execution and knowledge of contents, but in a registered will where the Sub-Registrar certifies that the contents were read over to the executant who admitted them, the fact that witnesses are interested loses significance. The documents were registered and the Sub-Registrar had explained the contents to the old lady. As to the active role of Subodh, the Court acknowledged that somebody has to take necessary steps in such matters, and if he happens to be close to the executor, some eyebrow is bound to arise, but if other circumstances on record show the voluntary character of the document, the eyebrows should get dropped. The Court found such circumstances existed: Saroj Bala had made two codicils, the last about three years after the will, because she had used some of the properties listed, showing she knew what the will was for; she executed an FDR of Rs.15,000 on 2 August 1967, showing she was not immobile or senile; and she sold some property in February 1967 and received the sale price, showing consciousness in dealing with her properties. The Court held that a total view of all circumstances must be taken, and the courts below had overplayed some circumstances regarded as suspicious and missed others that bolstered the case of the propounders. Accordingly, the appeal was allowed, the impugned judgments were set aside, and the will, as modified by the two codicils, stood probated. The parties were left to bear their own costs throughout.
Headnote
A) Law of Wills - Suspicious Circumstances - Burden on Propounder - Indian Succession Act, 1925 - A will embodies the testator's last desire and courts normally act in accordance with it; if the will is surrounded by suspicious circumstances, the burden is on the propounder to remove them, and if not removed the will would not be probated - The Supreme Court held that the lower courts misapplied this principle by treating non-suspicious circumstances as suspicious and ignoring countervailing evidence of voluntary execution (Paras 1-3). B) Law of Wills - Deprivation of Natural Heirs - Inheritance and Succession - Indian Succession Act, 1925 - Deprivation of natural heirs is not a suspicious circumstance because the very purpose of executing a will is to interfere with the normal line of succession; partial or full disinheritance of some heirs, especially when other descendants are beneficiaries, does not raise suspicion - The Court held that the executors being sons of a half-blood brother while objectors descendants of a full blood sister did not make the will suspicious (Para 4). C) Law of Wills - Identity of Testator - Execution and Registration - Indian Succession Act, 1925 - Identification of the testatrix before the Sub-Registrar by a lawyer who had acted for one of the executors in some cases is not a suspicious circumstance unless it is alleged that a wrong person was identified as the testator - The Court held that absent such allegation, there was no bane in this circumstance (Para 5). D) Law of Wills - Interested Witnesses - Registered Will - Indian Succession Act, 1925 - In a registered will where the Sub-Registrar certifies that the contents were read over and explained to the executant who admitted them, the fact that witnesses are interested loses significance - The Court held that the documents were registered and the Sub-Registrar explained the contents to the old lady, so the third circumstance was not suspicious on the facts of the case (Para 6). E) Law of Wills - Active Participation of Close Relation - Voluntariness and Total View - Indian Succession Act, 1925 - Active participation by a person close to the executor, though capable of raising eyebrows, does not invalidate the will if other circumstances demonstrate voluntary execution; courts must take a total view of all circumstances rather than overplaying some suspicious facts and missing others supporting the propounders - The Court noted subsequent codicils, execution of FDR, and sale of property showed consciousness and capacity, and held the lower courts erred in overplaying suspicious circumstances while missing bolstering facts (Paras 7-8).
Issue of Consideration
Whether the will dated 30.11.1966 and two codicils dated 2.2.1968 and 21.11.1969 executed by Saroj Bala were surrounded by suspicious circumstances warranting refusal of probate, and whether the lower courts erred in identifying and weighing such circumstances.
Final Decision
Appeal allowed; impugned judgments of the trial court and High Court set aside; the will dated 30.11.1966 as modified by the two codicils dated 2.2.1968 and 21.11.1969 stands probated; parties to bear their own costs throughout.
Law Points
- A will contains the last desire of the testator
- courts normally act in accordance with the wishes
- if will is surrounded by suspicious circumstances the burden is on propounder to remove suspicion
- deprivation of natural heirs is not suspicious
- identification by lawyer not suspicious absent misidentification
- interested witnesses lose significance in registered will where contents explained
- active participation of close relation may raise eyebrows but total circumstances determine voluntariness
- testamentary capacity established by subsequent dealings.
