Case Note & Summary
The dispute in these two testamentary suits is between a brother and a sister, each claiming probate of a will allegedly executed by their mother. The father had initially executed a will on 22nd March 1978, but the mother later executed two wills, one in favor of the daughter and one in favor of the son. The daughter filed a petition for probate of the will dated 22nd March 1978, which she claimed was the mother's will. The son filed a petition for probate of a later will dated 10th July 1985. Both parties objected to the other's will. The court framed issues regarding the validity of both wills. The court found that both wills were surrounded by suspicious circumstances. The mother's will in favor of the daughter was unnatural as it excluded the son without any reason. The will in favor of the son was also suspicious as it was executed when the mother was ill and the son was the sole beneficiary. The attesting witnesses were not examined, and the execution was not proved as required by law. The court held that the propounders failed to discharge the burden of proof. Consequently, both suits were dismissed, and no probate was granted for either will.
Headnote
A) Succession Law - Will - Suspicious Circumstances - Burden of Proof - Indian Succession Act, 1925, Section 63; Indian Evidence Act, 1872, Section 68 - Where a will is surrounded by suspicious circumstances, the propounder must remove all legitimate suspicion before the court can accept it as genuine. The court must be satisfied that the testator had testamentary capacity, that the will was duly executed and attested, and that it was not obtained by fraud, coercion, or undue influence. (Paras 1-10) B) Succession Law - Will - Unnatural Disposition - Indian Succession Act, 1925, Section 63 - A will that makes an unnatural disposition, such as excluding a natural heir without explanation, raises suspicion. The propounder must explain the exclusion. In this case, the mother's will excluding her son without any reason was held to be unnatural and suspicious. (Paras 11-20) C) Succession Law - Will - Attestation - Indian Succession Act, 1925, Section 63(c) - For a will to be valid, it must be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark. The attesting witnesses must be called to prove the will. In this case, the attesting witnesses were not examined, and the will was not proved as required by law. (Paras 21-30) D) Succession Law - Will - Execution - Indian Succession Act, 1925, Section 63 - The execution of a will must be proved by the propounder. Mere production of the will and proof of signature of the testator is not sufficient. The propounder must prove that the testator signed the will in the presence of the attesting witnesses and that the witnesses attested in the presence of the testator. (Paras 31-40)
Issue of Consideration
Whether the wills propounded by the brother and sister were validly executed and attested, and whether the propounders had discharged the burden of proving the wills in the face of suspicious circumstances.
Final Decision
Both Testamentary Suit No.48 of 1990 and Testamentary Suit No.12 of 1991 are dismissed. No order as to costs.
Law Points
- Suspicious circumstances surrounding will
- Burden of proof on propounder
- Unnatural disposition
- Testamentary capacity
- Due execution
- Section 63 Indian Succession Act
- 1925
- Section 68 Indian Evidence Act
- 1872
