Case Note & Summary
The appeal arose from a judgment of a Learned Single Judge granting probate of an alleged will of Ramchandra Marutirao Sawant. The testator died on 1 May 2002, allegedly having executed a will on 22 February 2001 when he was 82 years old and suffering from squamous cell carcinoma of the tongue, having also suffered a hypertensive stroke in 1983 and undergone pelvic bone surgery. The respondent, one of the testator's five sons, propounded the will. Caveats were filed by the widow and three other sons, denying execution. The propounder examined himself, a doctor, and two attesting witnesses. The Single Judge held the will validly executed and directed probate. On appeal, the Division Bench considered whether the propounder had discharged the burden of proof. The court noted that the propounder took a leading part in the will's making, thus the burden lay on him to remove all legitimate suspicions. The court found several suspicious circumstances: the testator's advanced age and serious illness; discrepancies between the attesting witnesses' statements that the will was executed at the testator's residence and the propounder's initial claim that it was executed at the Collector's office; and the fact that the will was typed in Marathi but the testator's signature was in English, while one attesting witness claimed the testator signed in Marathi. The propounder failed to explain these discrepancies. The court held that the will was not proved to be validly executed and set aside the Single Judge's order, dismissing the probate petition.
Headnote
A) Succession Law - Proof of Will - Suspicious Circumstances - Section 63 Indian Succession Act, 1925 - Where a propounder takes a leading part in the making of a will, the burden lies on him to remove all legitimate suspicions before the document can be accepted as the last will of the testator - In this case, the propounder failed to explain discrepancies regarding the place of execution and the testator's signature, and the testator was 82 years old and suffering from cancer - Held that the will was not proved to be validly executed (Paras 7-12).
Issue of Consideration
Whether the propounder of the will has discharged the burden of proving the will's validity and removed all legitimate suspicions surrounding its execution, given the testator's advanced age and illness, discrepancies in execution, and the propounder's active role.
Final Decision
The appeal is allowed. The judgment of the Learned Single Judge dated 29 November 2012 is set aside. The probate granted in respect of the alleged will dated 22 February 2001 is revoked. The Testamentary Petition No.698 of 2004 shall stand dismissed. No order as to costs.
Law Points
- Burden of proof on propounder of will
- Suspicious circumstances must be removed
- Section 63 Indian Succession Act
- 1925
- Section 68 Indian Evidence Act
- 1872
