Case Note & Summary
The dispute arose from the probate petition filed by Yohannan Thomas John, the executor of the Will of Ranchoddas Hiralal Agrawal, who died on 7 May 1986, leaving behind a Will dated 3 December 1985. The deceased had three sons and four daughters. Under the Will, only two sons, Suresh and Subodh, inherited the estate, while the third son Shekhar and the four daughters were disinherited. The executor filed Petition No.514 of 1990 in the Bombay High Court seeking probate. Initially, the petition failed to mention the daughters as legal heirs, showing only the three sons. Consequently, only the two beneficiary sons filed their consent affidavits on 13 March 1994, while Shekhar entered a caveat challenging the Will. The petition was later amended to add the four daughters—Aruna, Karuna, Uma, and Asha—as heirs. Their consent affidavits were filed between November 1995 and February 1996, all notarized in Mumbai, with the executor affirming they were signed in his presence. However, these affidavits were not filed as independent documents but were annexed to an affidavit of the executor, a procedure contested as irregular. One daughter, Asha, was murdered on 3 August 2003; Suresh and Subodh were accused. Suresh died on 3 November 2003, and Subodh absconded. In 2009, the three surviving daughters filed Chamber Summons Nos. 49 and 26 of 2009, seeking to revoke their consent affidavits on grounds of misrepresentation and duress. They deposed that their signatures were obtained by Suresh under false pretenses or threats. The Court directed evidence. Karuna, one daughter, testified that in December 1995 at her cousin's house in Delhi, her brother Suresh insisted she sign a document, claiming it was about a Will, and threatened her when she questioned it. She claimed duress. However, her earlier affidavit-in-support of the Chamber Summons alleged misrepresentation—that she was told the document was a no-objection for sale of a Mulund HUF property. Karuna’s cross-examination revealed she had no recollection of any Mulund property, thus undermining the misrepresentation claim. The Court observed that misrepresentation and duress are mutually exclusive grounds requiring distinct evidence; a party cannot simultaneously plead both. The Court also noted that even if the consent affidavits were revoked, the probate suit would proceed on the framed issues regarding the execution and testamentary capacity of the testator, with the executor bearing the onus. The daughters’ attempt to join as defendants would not alter the burden of proof. The judgment was reserved on 3 December 2010 and pronounced on 23 December 2010, but the text provided does not include the final decision.
Headnote
A) Probate and Succession - Testamentary Proceedings - Consent of Heirs - Indian Succession Act, 1925 - No prescribed form for consent affidavits under Court rules; essentials are that the consenting heir knows of the Will, agrees with the bequests, and does not object to grant of probate. Consent may be evidenced by a notarized affidavit, even if not affirmed before an Associate/Master. (Paras 7, 8) B) Probate and Succession - Revocation of Consent - Grounds of Misrepresentation and Duress - Indian Contract Act, 1872 - A party seeking to avoid consent must choose a clear and consistent ground; misrepresentation and duress are mutually exclusive and require different evidence. The applicants' shifting case from misrepresentation to duress, and contradictory testimony, rendered their challenge doubtful. (Paras 17-21) C) Evidence - Credibility of Witness - Inconsistency - In cross-examination, Karuna could not recall the Mulund property she claimed the affidavit was misrepresented for, weakening her case of misrepresentation. Her deposition of duress was absent in her earlier affidavit-in-support. (Paras 17-21) D) Probate and Succession - Procedure - Addition of Parties - Even if consent affidavits revoked, the issues framed on the execution and mental capacity of the testator would remain for trial, with the onus on the plaintiff. The applicants could be added as defendants without substantially altering the case. (Para 12)
Issue of Consideration
Whether the consent affidavits filed by the daughters of the deceased in the probate petition should be revoked on grounds of misrepresentation and/or duress.
Law Points
- Consent affidavits in testamentary petitions may be filed without prescribed form
- revocation of consent on grounds of misrepresentation and duress must be mutually exclusive and consistent
- contradictory evidence fails to sustain challenge
- probate issues remain for trial despite revocation.
