Case Note & Summary
The plaintiff, husband of the deceased Vilasgauri Manilal Doshi, filed a testamentary suit seeking probate of his wife’s will dated 15 April 1970. The couple had executed mutual wills on the same day at the office of a firm of solicitors, each bequeathing their estate to the other, and in case one predeceased, to their children equally. They later created a trust deed for a family property. The deceased died on 6 October 1994. The plaintiff filed the probate petition in 2006, 36 years after execution. Three of the couple’s six children (defendants) filed a caveat, alleging the signature on the will was forged, the will was obtained by fraud, coercion, and undue influence, and it was void for uncertainty. They further contended that because the wills were mutual and the plaintiff had subsequently executed another will, the deceased’s will could not be probated, and the petition was barred by limitation. The court framed and answered seven issues, all in favor of the plaintiff. The plaintiff examined himself and a witness who identified the signatures of the deceased attesting witnesses. The court held that due execution was proved: the will was signed by the deceased in English before two witnesses, whose signatures were reliably identified. The allegations of forgery and undue influence were not substantiated. On the mutual will doctrine, the court ruled that a testamentary court only examines due execution under the Indian Succession Act; the legal effects of mutual wills do not bar probate. The court also held that no limitation period applies to probate petitions and mere delay is not a ground for refusal. Accordingly, the suit was decreed, and probate of the will dated 15 April 1970 was granted.
Headnote
A) Succession - Execution of Will - Proof of Will - Indian Succession Act, 1925, Sections 63, 68 - The plaintiff proved due execution by identifying signatures of attesting witnesses, both deceased, through reliable testimony; the will was short and executed in solicitor's office; no suspicious circumstances existed - Held that the deceased duly executed her will (Paras 5, 10-16). B) Succession - Forgery and Fraud - Burden of Proof - Indian Succession Act, 1925 - The caveators alleged forgery, fraud, coercion, and undue influence but failed to lead credible evidence; the will was executed in the presence of a solicitor and another advocate; the signature was in English, which the deceased understood - Held that the will was neither forged nor vitiated by undue influence (Paras 4-5, 16). C) Succession - Mutual Wills - Effect on Probate - Indian Succession Act, 1925 - Even if wills are mutual, the probate court only examines due execution; a later will by the other mutual testator does not extinguish the first will; the court is not concerned with substantive rights flowing from mutual wills - Held that the will is entitled to probate despite plaintiff’s subsequent will (Paras 7, 5A). D) Limitation - Delay in Filing Petition - Probate Proceedings - Indian Succession Act, 1925 - No period of limitation is prescribed for filing probate petition; mere delay, without more, does not bar the suit - Held that the suit is not barred by limitation or delay (Paras 7, 5B).
Issue of Consideration
Whether the deceased duly executed her will dated 15 April 1970; whether the signature is forged; whether the will is void for uncertainty or obtained by fraud/undue influence; whether the mutual will is affected by later will of survivor; whether the suit is barred by limitation
Final Decision
All issues answered in favor of plaintiff; probate of the will dated 15 April 1970 granted.
Law Points
- Due execution of will under Indian Succession Act
- 1925
- proof of attestation
- mutual wills do not bar probate
- limitation does not apply to probate proceedings
- burden of proving forgery or undue influence lies on caveators
