Case Note & Summary
The appeal arose from a judgment and decree dated 30th June, 2016 passed by the learned Single Judge of the Bombay High Court in Testamentary Suit No. 36 of 2010, whereby the probate petition filed by the appellant (Tarun Narainsingh Advani) was dismissed. The appellant had sought probate of a Will dated 18th October, 2004 allegedly executed by the testator, Narain Hotchand Advani. The respondents (Deepak Matai and Veena Alias Meera Punjwani) opposed the grant of probate, contending that the Will was not duly executed and attested, and that it was surrounded by suspicious circumstances. The learned Single Judge dismissed the suit, holding that the propounder had failed to prove the due execution and attestation of the Will. Aggrieved, the appellant filed the present appeal. The Division Bench of the Bombay High Court (Coram: Devendra Kumar Upadhyaya, CJ and Arif S. Doctor, J) heard the appeal and reserved judgment on 11th March, 2024. The Court analyzed the evidence on record, including the testimony of the attesting witness (PW-1) and the scribe (PW-2). The Court found that the propounder had examined one attesting witness who proved the signatures of the testator and the other attesting witness. The Court held that the requirements of Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872 were satisfied. The Court also considered the alleged suspicious circumstances, such as the propounder being the sole beneficiary, the Will being registered, and the testator being of advanced age. The Court held that these circumstances were not sufficient to dislodge the Will, as the propounder had satisfactorily explained them. The Court allowed the appeal, set aside the judgment of the learned Single Judge, and granted probate of the Will dated 18th October, 2004 in favor of the appellant.
Headnote
A) Succession Law - Execution of Will - Attestation - Section 63 of Indian Succession Act, 1925 and Section 68 of Indian Evidence Act, 1872 - The Court held that the propounder of a Will must prove its due execution and attestation, and where suspicious circumstances exist, the propounder must remove all legitimate suspicions by leading satisfactory evidence. In the present case, the propounder examined the attesting witness and the scribe, and the evidence showed that the testator signed the Will in the presence of both attesting witnesses, who signed in the presence of each other and the testator. The Court found that the propounder had discharged the burden and that the suspicious circumstances alleged were not sufficient to dislodge the Will. (Paras 1-26) B) Succession Law - Suspicious Circumstances - Burden of Proof - Section 63 of Indian Succession Act, 1925 - The Court held that mere existence of suspicious circumstances does not invalidate a Will if the propounder satisfactorily explains them. The Court noted that the testator was of sound mind, the Will was registered, and the propounder was a natural object of bounty. The Court found no evidence of coercion or undue influence. (Paras 1-26) C) Evidence Law - Attestation of Will - Section 68 of Indian Evidence Act, 1872 - The Court held that the requirement of calling at least one attesting witness to prove execution of a Will is mandatory. In this case, the propounder examined one attesting witness (PW-1) who proved the signatures of the testator and the other attesting witness. The Court held that the attestation was duly proved. (Paras 1-26)
Issue of Consideration
Whether the Will dated 18th October, 2004 was duly executed and attested in accordance with law, and whether the propounder had discharged the burden of proof in the face of alleged suspicious circumstances.
Final Decision
Appeal allowed. Judgment and decree dated 30th June, 2016 passed by the learned Single Judge in Testamentary Suit No. 36 of 2010 is set aside. Probate of the Will dated 18th October, 2004 is granted in favor of the appellant.
Law Points
- Execution of Will
- Attestation
- Suspicious Circumstances
- Burden of Proof
- Section 63 Indian Succession Act
- 1925
- Section 68 Indian Evidence Act
- 1872
