Case Note & Summary
The plaintiff, Panna Atmaram Bhansali, one of the daughters of the deceased Shakuntala Mansen Damodardas Bhansali, filed a testamentary petition seeking probate of the last will and testament of her mother dated 28.04.1977. The plaintiff was one of the four executors appointed under the will. The defendant, Tinoo M. Bhansali, the brother of the plaintiff, contested the probate, contending that the will was not validly executed at the volition of the mother and that the plaintiff had procured it by misrepresentation and undue influence. The court framed issues regarding the validity of the will, whether it was executed of free will and in sound state of mind, whether it was procured by coercion or undue influence, and whether the plaintiff had disentitled herself to probate by suppressing assets. The plaintiff failed to prove that the will was executed by the testatrix of her free will and volition and in sound state of mind. The court answered Issue No. 1 and Issue No. 2 in the negative, holding that the writing was not the last will and testament of the deceased and that the plaintiff did not prove due execution. Issue No. 3 regarding coercion or undue influence was not required to be answered. Issue No. 4 regarding suppression of assets was answered in the affirmative, holding that the plaintiff had disentitled herself to the grant of probate. Consequently, the court dismissed the testamentary petition and the suit, with no order as to costs.
Headnote
A) Succession Law - Will - Validity - Execution - Free Will and Volition - The court considered whether the will was executed by the testatrix of her free will and volition and in sound state of mind. The plaintiff failed to prove due execution, and the court held that the will was not validly executed. (Paras 1-4)
B) Succession Law - Will - Undue Influence - Coercion - The defendant alleged that the will was procured by coercion or undue influence by taking advantage of the testatrix's old age and indifferent health. The court found it unnecessary to answer this issue as the plaintiff failed to prove valid execution. (Para 4)
C) Succession Law - Probate - Suppression of Assets - The defendant alleged that the plaintiff suppressed assets of the deceased. The court held that the plaintiff had disentitled herself to the grant of probate for suppressing assets. (Para 4)
Issue of Consideration
Whether the will dated 28.04.1977 executed by Shakuntala Mansen Damodardas Bhansali was validly executed of her free will and volition and in sound state of mind, and whether the plaintiff is entitled to grant of probate.
Final Decision
The court answered Issue No. 1 and Issue No. 2 in the negative, Issue No. 3 as not required to be answered, and Issue No. 4 in the affirmative. Consequently, the testamentary petition and the suit were dismissed with no order as to costs.
Law Points
- Will
- Probate
- Testamentary Suit
- Undue Influence
- Coercion
- Suspicious Circumstances
- Attestation
- Sound Disposing Mind
- Free Will
- Volition
- Suppression of Assets
Case Details
2012 LawText (BOM) (08) 113
Testamentary Suit No. 44 of 1983 in Testamentary Petition No. 37 of 1982 with Notice of Motion No. 128 of 2012
Mr. Santosh Raje for the Plaintiff; Mr. Rajesh Shah a/w. Mr. Girish Desai i/b Geeta Shastri for the Defendants
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Nature of Litigation
Testamentary suit seeking probate of a will.
Remedy Sought
Plaintiff sought grant of probate of the last will and testament of Shakuntala Mansen Damodardas Bhansali dated 28.04.1977.
Filing Reason
The defendant contested the probate alleging that the will was not validly executed and was procured by coercion and undue influence.
Issues
Whether the writing and document being Exhibit A to the petition is the last will and testament of the deceased testatrix Shakuntala Mansen Bhansali as alleged in paragraph 3 of the petition.
Whether the plaintiff proves that the deceased testatrix executed the said writing being Exhibit A to the petition of her free will and volition and in sound state of mind, health and body and/or fully knowing the consequences of her acts as alleged in paragraph 3 of the petition.
Whether the said writing dated 28th April, 1977 was procured by the plaintiff by coercion or undue influence by taking undue advantage of old age and indifferent health of the said testatrix by the petitioner as alleged in paragraph 4 of the affidavit of the respondent in support of the caveat dated 28th September, 1993.
Whether the petitioner has disentitled herself to the grant of the probate of the said writing dated 28th April, 1977 being Exhibit A to the petition for suppressing the assets and properties belonging to the deceased testatrix as alleged in paragraph 7A of the said affidavit of the respondent.
Submissions/Arguments
Plaintiff argued that the will was executed by the testatrix in the presence of two attesting witnesses, her solicitor and the solicitor's clerk, when she was in a sound and disposing state of mind.
Defendant contended that the will was not validly executed at the volition of the mother and that the plaintiff procured it by misrepresentation and influence.
Ratio Decidendi
The plaintiff failed to prove that the will was executed by the testatrix of her free will and volition and in sound state of mind. The court held that the will was not validly executed and the plaintiff had disentitled herself to the grant of probate by suppressing assets.
Judgment Excerpts
The plaintiff is one of the daughters of the deceased one Shakuntala Mansen Damodardas Bhansali.
It is the plaintiff’s case that the will has been executed by her mother in the presence of 2 attesting witnesses, her solicitor and the solicitor’s clerk when she was in a sound and disposing state of mind.
It has been the defendant’s contention that the will was not validly executed at the volition of his mother and that the plaintiff has by certain misrepresentation and influence got the will executed.
Procedural History
The plaintiff filed Testamentary Petition No. 37 of 1982 seeking probate of the will dated 28.04.1977. The defendant filed a caveat and affidavit in support. The petition was converted into Testamentary Suit No. 44 of 1983. Issues were framed and the suit was heard. Judgment was reserved on 2nd August 2012 and pronounced on 31st August 2012.
Acts & Sections
- Indian Succession Act, 1925:
