Case Note & Summary
The appellant, Shewantabai, was the wife of Vishwanath Bhagat, who died on 10.12.2001. She filed Regular Civil Suit No.258/2002 seeking declaration, mandatory injunction, and possession of agricultural field Survey No.79 and house bearing Grampanchayat No.73 at mouza Jaipur, Tahsil Seloo, District Wardha, which were owned by her husband. She alleged that her husband was sick and bedridden, and that the respondent no.1, Arun, a distant nephew, took undue advantage of his condition, took him to the Sub Registrar's office on 30.10.2001, and got a Will executed in his favour. She claimed that Arun took forcible possession of the suit property. The Trial Court decreed the suit in her favour. The First Appellate Court, in Regular Civil Appeal No.181/2005, set aside the Trial Court's judgment and dismissed the suit, holding that the Will was valid. The appellant filed the present Second Appeal. The High Court framed two substantial questions of law: (i) whether the First Appellate Court could enforce the Will which stipulated that it would come into force only after the death of husband and wife; and (ii) whether the absence of pleading and evidence indicating reasons for depriving the wife of the suit property, who was issueless, raised a strong suspicious circumstance against the genuineness of the Will. The High Court held that the Will (Ex.48) clearly stipulated that it would come into force only after the death of both husband and wife. Since the wife was still alive, the condition precedent had not been fulfilled, and the Will could not be enforced during her lifetime. The Court further held that the propounder of the Will, Arun, failed to explain why the testator bequeathed the entire property to a distant nephew, leaving his wife issueless and without any provision. This absence of explanation raised a strong suspicious circumstance, and the propounder did not discharge the burden of proving the Will free from suspicion. The High Court allowed the Second Appeal, set aside the judgment of the First Appellate Court, and restored the decree of the Trial Court.
Headnote
A) Will - Construction - Condition Precedent - Will stipulating that it would come into force only after death of husband and wife - Held that such a Will cannot be enforced during the lifetime of the wife, as the condition precedent had not been fulfilled - The First Appellate Court erred in enforcing the Will prematurely (Paras 3, 8-10). B) Will - Suspicious Circumstances - Deprivation of Spouse - Absence of pleading or evidence explaining why the testator bequeathed entire property to a distant nephew, leaving his wife issueless and without any provision - Held that this raises a strong suspicious circumstance against the genuineness of the Will - The propounder failed to discharge the burden of proving the Will free from suspicion (Paras 3, 11-13).
Issue of Consideration
Whether the First Appellate Court could enforce a Will which clearly stipulated that it would come into force only after the death of husband and wife; and whether in the absence of any pleading and evidence indicating reasons for depriving the wife of the suit property who was issueless, a strong suspicious circumstance arose against the genuineness and validity of the Will.
Final Decision
Second Appeal allowed. Judgment and decree dated 11th August 2009 passed in Regular Civil Appeal No.181/2005 set aside. Decree passed by Trial Court in Regular Civil Suit No.258/2002 restored. No order as to costs.
Law Points
- Will construction
- condition precedent
- suspicious circumstances
- burden of proof
- Section 63 Indian Succession Act
- 1925
- Section 68 Indian Evidence Act
- 1872
