Case Note & Summary
The appellant, Mr. Anthony Edward D'Aguiar, filed a First Appeal before the Bombay High Court against the judgment and decree dated 30th April 2012 passed by the City Civil Court, Bombay, in L.C. Suit No. 1005 of 1996. The suit was filed by the appellant for probate of a Will dated 18th March 1991 allegedly executed by one Mr. Alfred D'Aguiar (since deceased). The respondents, who are the daughters of the deceased, opposed the grant of probate. The trial court dismissed the suit, holding that the execution of the Will was not proved and that there were suspicious circumstances. The appellant, as the propounder of the Will, appealed against this dismissal. The facts reveal that the deceased, Alfred D'Aguiar, had executed a Will on 18th March 1991 bequeathing his property to the appellant, who is his son. The respondents, his daughters, contested the Will on the grounds that the deceased was in weak health at the time of execution, that the Will was not read over to him, and that the appellant took an active part in the execution. The trial court found that the appellant failed to examine any attesting witness to the Will, and that the circumstances surrounding the execution were suspicious. The legal issues before the High Court were whether the execution of the Will was proved in accordance with Section 63 of the Indian Succession Act, 1925, and Section 68 of the Indian Evidence Act, 1872, and whether the appellant discharged the burden of dispelling suspicious circumstances. The appellant argued that the Will was duly executed and that the trial court erred in dismissing the suit. The respondents supported the trial court's findings. The High Court, after analyzing the evidence, held that the appellant failed to examine any attesting witness, which is mandatory under Section 68 of the Evidence Act. The court also noted that the deceased was in weak health and that the appellant, who was the propounder and a beneficiary, took an active part in the execution of the Will, raising suspicion. The court found that the appellant did not dispel these suspicious circumstances. Consequently, the High Court dismissed the appeal, confirming the trial court's judgment. The decision was that the Will was not proved and the suit for probate was rightly dismissed.
Headnote
A) Succession Law - Execution of Will - Suspicious Circumstances - Section 63 Indian Succession Act, 1925 - Section 68 Indian Evidence Act, 1872 - The propounder of a Will must prove its execution by examining at least one attesting witness, and must dispel any suspicious circumstances surrounding the Will. In this case, the propounder failed to examine any attesting witness and the Will was surrounded by suspicious circumstances including the testator's weak health and the propounder's active role in execution. Held that the Will was not proved (Paras 1-10).
Issue of Consideration
Whether the execution of the Will dated 18th March 1991 was proved in accordance with law, and whether the appellant (propounder) discharged the burden of dispelling suspicious circumstances surrounding the Will.
Final Decision
The High Court dismissed the appeal, confirming the trial court's judgment and decree dated 30th April 2012, thereby refusing to grant probate of the Will.
Law Points
- Execution of Will
- Suspicious Circumstances
- Attesting Witness
- Section 63 Indian Succession Act
- 1925
- Section 68 Indian Evidence Act
- 1872
- Propounder's Duty
