Case Note & Summary
The case concerns a testamentary suit filed by Sulochana Dinanath Tarkar (since deceased, represented by her sons Sunil and Harish) seeking Letters of Administration with the Will of Dinanath Harishchandra Tarkar annexed. Dinanath died on 20th January 2001, leaving a Will dated 9th March 1981, under which his second wife Sulochana was the sole beneficiary. The defendants, Dinanath's children from his first marriage (Anil and Savita), opposed the grant, alleging that the Will was forged and not duly executed. The court framed issues regarding due execution, attestation, testamentary capacity, and whether the Will was vitiated by fraud or undue influence. The plaintiffs examined two witnesses: the second attesting witness (PW-1) and a handwriting expert (PW-2). The defendants examined the first attesting witness (DW-1) and the testator's son Anil (DW-2). The court found that the Will was executed when the testator was seriously ill and hospitalized, and the sole beneficiary (the second wife) actively participated in procuring the Will. The attesting witnesses gave contradictory evidence: DW-1 claimed he signed in the testator's presence but the testator did not sign in his presence, while PW-1's testimony was inconsistent. The handwriting expert's report was inconclusive. The court held that the propounder failed to remove the suspicious circumstances, particularly the non-examination of the first attesting witness by the plaintiffs, the active role of the beneficiary, and the lack of credible evidence of due attestation. Consequently, the court dismissed the suit with costs, holding that the Will was not proved.
Headnote
A) Succession Law - Proof of Will - Suspicious Circumstances - Section 63 Indian Succession Act, 1925 - Section 68 Indian Evidence Act, 1872 - The propounder of a Will must remove all suspicious circumstances surrounding its execution, including doubts about testamentary capacity, active participation of beneficiaries, and non-production of attesting witnesses. In this case, the Will was executed when the testator was seriously ill and the sole beneficiary was his second wife who actively participated in its execution. The attesting witnesses were not examined and the handwriting expert's report was inconclusive. Held that the propounder failed to discharge the burden of proof, and the Will was not proved. (Paras 7-26) B) Succession Law - Attestation of Will - Requirement of Two Witnesses - Section 63(c) Indian Succession Act, 1925 - 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, or has received from the testator a personal acknowledgment of his signature or mark. In this case, the evidence of the sole attesting witness examined was unreliable and the other attesting witness was not produced. Held that the requirement of due attestation was not satisfied. (Paras 17-26) C) Evidence Law - Examination of Attesting Witness - Section 68 Indian Evidence Act, 1872 - If a Will is alleged to be executed, at least one attesting witness must be called to prove its execution. In this case, the propounder examined only one attesting witness whose testimony was contradictory and unreliable. The other attesting witness was not produced. Held that the Will was not proved as required by law. (Paras 17-26)
Issue of Consideration
Whether the Will dated 9th March 1981 was duly executed and attested as required by law, and whether the propounder discharged the burden of proving the Will in the face of suspicious circumstances.
Final Decision
The suit is dismissed with costs. The Will dated 9th March 1981 is not proved. The plaintiffs are not entitled to Letters of Administration.
Law Points
- Burden of proof in probate proceedings
- Suspicious circumstances surrounding execution of Will
- Testamentary capacity
- Proof of execution and attestation under Section 63 Indian Succession Act
- 1925
- Section 68 Indian Evidence Act
- 1872
