Case Note & Summary
The case concerns a testamentary suit filed by Suresh Hemmady, the executor under the will of Mira R. Nadkarni, seeking probate of the will dated 15th April, 1988. The deceased was a widow without issues, leaving behind two brothers and two sisters as heirs. The main legatee under the will was Leena Bijoor, the daughter of one sister. The caveator, Dinesh Pandurang Bellare, is the son of another sister and contended that the will was not genuine and was procured by fraud or misrepresentation in collusion with the plaintiff and Leena. The caveator claimed that the deceased lived near him after being widowed in 1970, and he and his family cared for her during her illness. He argued that the will was not the deceased's last testament and that a later nomination of his wife and son as nominees for the residential flat indicated a contrary intention. The court framed issues regarding execution, genuineness, state of mind, signature, and fraud. The plaintiff examined himself and one attesting witness, who gave contradictory evidence about the execution. The court found that the will was unnatural as it excluded all heirs except one niece, and the plaintiff failed to dispel suspicious circumstances. The attesting witness did not prove due attestation. The court held that the plaintiff did not prove the will's execution or genuineness, and dismissed the probate petition. The caveator's allegations of fraud were not proved, but the burden on the propounder was not discharged.
Headnote
A) Succession Law - Will - Proof of Execution - Suspicious Circumstances - The propounder of a will must prove its execution and dispel all suspicious circumstances surrounding it, including unnatural disposition, lack of independent evidence, and failure to examine attesting witnesses properly - Held that the will was not proved to be genuine and valid (Paras 1-20). B) Succession Law - Will - Attesting Witnesses - Section 68 of the Indian Evidence Act, 1872 - One attesting witness must be examined to prove execution - The plaintiff examined only one attesting witness who gave contradictory evidence and did not prove due attestation - Held that the will was not proved (Paras 10-15). C) Succession Law - Will - Fraud and Undue Influence - Burden of Proof - The caveator alleged fraud but failed to prove it - However, the propounder must still prove the will's genuineness - Held that the caveator did not prove fraud (Paras 16-18).
Issue of Consideration
Whether the will dated 15th April, 1988 was executed by the deceased in a sound disposing state of mind and is genuine and valid, and whether the caveator proved fraud or undue influence.
Final Decision
The court answered Issue No.1 and 2 in the negative, Issue No.3, 4, and 5 in the negative. The suit was dismissed, and the probate petition was rejected. No order as to costs.
Law Points
- Burden of proof on propounder to prove will's genuineness
- Suspicious circumstances must be dispelled
- Unnatural disposition raises suspicion
- Attesting witnesses must prove due execution
- Nomination does not override will
