Case Note & Summary
The appeal arises from a judgment of a learned Single Judge of the Bombay High Court holding that the last will and testament of Sebastian John D'Souza dated 20 March 1989 is proved and should be probated. The testator died on 5 September 1999, survived by his two sons (the respondents/plaintiffs) and six daughters, three of whom (the appellants) lodged caveats. The will bequeathed Rs.30,000 to each daughter, Rs.1 lakh to the wife (who predeceased the testator), and the residue to the two sons, who were also appointed executors. The attesting witnesses, both solicitors, died before they could be examined. The propounder (plaintiffs) led evidence of five witnesses: Paresh Shah (son of one attesting witness and partner in the same firm), Sudhakar Kawthekar (clerk), Yashwant Datey (graphologist), Dr. Narayan Kamat (medical practitioner), and Bonaventure Dominic Misquitta (nephew). The appellants examined two of the daughters. The learned Single Judge held the will proved. In appeal, the appellants argued that no witness saw the testator sign, no medical certificate of sound mind was produced, and there were suspicious circumstances. The Division Bench dismissed the appeal, holding that under Section 69 of the Indian Evidence Act, 1872, when attesting witnesses are dead, their signatures can be proved by other evidence. The court found that the evidence of Paresh Shah, who identified the signatures of his father and the other attesting witness, and the clerk who identified the handwriting, sufficiently proved attestation. The court also held that testamentary capacity was proved by the evidence of the nephew and the doctor, and that the will was rational and natural. The suspicious circumstances alleged (delay in propounding, exclusion of daughters) were not sufficient to invalidate the will. The court upheld the grant of probate.
Headnote
A) Evidence Act - Proof of Will - Section 69 - Attesting Witnesses Dead - When both attesting witnesses are dead, their signatures may be proved by other evidence, including the evidence of persons acquainted with their handwriting or by circumstantial evidence. The propounder must prove that the will was duly executed and attested, and that the testator had testamentary capacity. (Paras 8-12) B) Succession Act - Testamentary Capacity - Section 59 - Sound Disposing Mind - The propounder must prove that the testator was of sound mind at the time of execution. This can be established by the testimony of witnesses present at the time, even if they are not attesting witnesses, and by the nature of the will itself. (Paras 13-15) C) Evidence Act - Suspicious Circumstances - Burden of Proof - Where suspicious circumstances exist, the propounder must remove all legitimate suspicions. However, mere delay in propounding the will or the fact that the will excludes some natural heirs does not by itself constitute a suspicious circumstance. (Paras 16-18)
Issue of Consideration
Whether the last will and testament of Sebastian John D'Souza dated 20 March 1989 is duly proved and entitled to probate, particularly when both attesting witnesses are dead and no witness has seen the testator sign the will.
Final Decision
Appeal dismissed. Judgment of the learned Single Judge granting probate of the will dated 20 March 1989 is upheld.
Law Points
- Section 68 of Indian Evidence Act
- 1872
- Section 69 of Indian Evidence Act
- Section 63 of Indian Succession Act
- 1925
- Section 59 of Indian Succession Act
- Proof of will when attesting witnesses dead
- Secondary evidence of attestation
- Testamentary capacity
- Suspicious circumstances
