Case Note & Summary
The appellant, Krishnakumar Deshmukh, filed an appeal against the judgment and order dated 2.4.2009 passed by the 8th Joint Civil Judge (Senior Division), Nagpur, granting probate of a Will dated 28.3.1988 in favour of the respondent, Pradip Bhusari. The appellant claimed under a subsequent Will dated 21.7.1995 allegedly executed by Smt. Nirmalabai Joshi in his favour. The appellant was a tenant in the house owned by Nirmalabai Joshi and was a stranger to her. The trial court rejected the appellant's Will on the ground that it was not proved in accordance with law, as the attesting witnesses were not examined and the Will bore a thumb impression instead of the testatrix's signature, despite evidence that she used to sign. The appellant argued that the later Will superseded the earlier one, that it was notarized, and that he had looked after the deceased. The respondent contended that the appellant failed to dispel the strong suspicion arising from the circumstances, including the appellant's position as a tenant and the testatrix's habit of signing. The High Court dismissed the appeal, holding that the appellant did not prove the Will in accordance with Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872. The court noted that the appellant did not examine any attesting witness and that the notary's certificate alone was insufficient. The suspicious circumstances, including the testatrix's deletion of the respondent's nomination and the appellant's failure to explain why she would favour a stranger, were not dispelled. The trial court's grant of probate of the earlier Will was upheld.
Headnote
A) Succession Law - Probate of Will - Suspicious Circumstances - Indian Succession Act, 1925, Section 63 - Evidence Act, 1872, Section 68 - The appellant, a tenant and stranger to the testatrix, claimed under a later Will dated 21.7.1995 bearing thumb impression instead of signature, while the respondent obtained probate of an earlier Will dated 28.3.1988. The court held that the appellant failed to dispel the strong suspicion arising from the circumstances, including the testatrix's habit of signing and the appellant's failure to examine attesting witnesses. The trial court's grant of probate of the earlier Will was upheld. (Paras 1-10) B) Succession Law - Proof of Will - Attestation - Indian Succession Act, 1925, Section 63(c) - Evidence Act, 1872, Section 68 - The appellant's Will was not proved in accordance with law as the attesting witnesses were not examined and the notary's certificate alone was insufficient. The court emphasized that mere notarization does not dispense with the requirement of proving attestation under Section 68 of the Evidence Act. (Paras 5-8) C) Succession Law - Suspicious Circumstances - Stranger Beneficiary - Indian Succession Act, 1925 - Where a Will benefits a stranger who was in a position to dominate the testatrix, the propounder must remove all legitimate suspicions. The appellant, being a tenant, failed to explain why the testatrix would disinherit her nominee and favour him. The court found that the circumstances surrounding the execution of the later Will were not satisfactorily explained. (Paras 4-9)
Issue of Consideration
Whether the Will dated 21.7.1995 in favour of the appellant was duly proved and whether the trial court erred in granting probate of the earlier Will dated 28.3.1988.
Final Decision
Appeal dismissed. The judgment and order of the trial court granting probate of the Will dated 28.3.1988 in favour of the respondent is upheld.
Law Points
- Probate
- Will
- Suspicious Circumstances
- Burden of Proof
- Indian Succession Act
- 1925
- Section 63
- Evidence Act
- 1872
- Section 68
