Case Note & Summary
The plaintiffs, being three of the executors named in the last Will and Testament dated 16th June, 1999 and a Codicil dated 23rd July, 2001 of Sorabji Hormusji Commissariat (deceased), filed a petition for probate which was converted into a suit. The deceased died on 15th August, 2009 at Mumbai, leaving behind his widow (plaintiff no. 1), a daughter (plaintiff no. 2), and a son (the defendant/caveator). The Will appointed six executors and bequeathed properties to the widow, daughter, and son. The Codicil made certain changes. The defendant/caveator opposed the grant of probate, alleging that the Will and Codicil were not duly executed, that the deceased lacked testamentary capacity, and that they were obtained by undue influence. The court examined the evidence, including the testimony of one attesting witness, Dr. Zarir F. Udwadia, who confirmed the execution of the Will. The court found that the plaintiffs had discharged the burden of proving due execution and attestation under Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872. The caveator failed to produce any credible evidence to support his allegations. Consequently, the court allowed the suit and granted probate of the Will and Codicil to the plaintiffs, subject to compliance with formalities.
Headnote
A) Succession Law - Execution of Will - Section 63 Indian Succession Act, 1925 - Proof of Attestation - The court examined whether the Will and Codicil were executed in accordance with Section 63 of the Indian Succession Act, 1925, which requires the testator to sign or affix mark in the presence of two attesting witnesses, and each witness to attest in the presence of the testator. The plaintiffs examined one attesting witness and proved the signatures of the testator and other witness. The court held that the execution and attestation were duly proved, and the caveator's allegations of undue influence or lack of testamentary capacity were not substantiated. (Paras 1-10)
Issue of Consideration
Whether the Will dated 16th June, 1999 and Codicil dated 23rd July, 2001 of the deceased Sorabji Hormusji Commissariat were duly executed and attested as per law, and whether the plaintiffs are entitled to a grant of probate.
Final Decision
The suit is allowed. The plaintiffs are granted probate of the Will dated 16th June, 1999 and Codicil dated 23rd July, 2001 of the deceased Sorabji Hormusji Commissariat, subject to compliance with necessary formalities.
Law Points
- Execution of Will
- Attestation of Will
- Codicil
- Probate
- Caveat
- Section 63 Indian Succession Act
- 1925
- Section 68 Indian Evidence Act
- 1872
