Case Note & Summary
The appeal arose from a probate proceeding concerning the Will of Purvez Burjor Dalal, a Parsi who died on 7th December 2011. The appellant, Manek Dara Sukhadwalla, claimed to be an executor and heir, while the respondents, Shernaz Faroukh Lawyer and Villy Pirojsha Avasia, were also executors named in the Will. The respondents filed a probate petition, which was granted by the trial court. The appellant challenged the grant, alleging that the Will was not duly executed and attested, and that there were suspicious circumstances. The High Court examined the evidence, including the testimony of an attesting witness and the circumstances surrounding the execution. The court found that the Will was executed in accordance with Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872. The testator was of sound mind, and the propounder had removed all suspicious circumstances. The court dismissed the appeal, upholding the grant of probate.
Headnote
A) Succession Law - Probate - Execution of Will - Section 63 Indian Succession Act, 1925 - Section 68 Indian Evidence Act, 1872 - The court examined whether the Will was executed in the manner required by law, including attestation by two witnesses. The propounder must prove that the testator signed or affixed his mark in the presence of two witnesses who attested in his presence. The court found that the Will was duly executed and attested, and the propounder had discharged the burden of proving due execution. (Paras 1-56) B) Succession Law - Probate - Suspicious Circumstances - The court considered whether there were suspicious circumstances surrounding the execution of the Will, such as the testator's age, health, and the propounder's involvement. The court held that mere presence of the propounder at the time of execution does not raise suspicion, and the testator was of sound mind and capable of understanding the contents. The suspicious circumstances were not sufficient to invalidate the Will. (Paras 1-56) C) Evidence Law - Attestation - Section 68 Indian Evidence Act, 1872 - The court held that the requirement of calling an attesting witness to prove the Will is mandatory, but if the witness is dead or cannot be found, other evidence may be adduced. In this case, one attesting witness was examined, and the other was not available, but the court was satisfied with the evidence of the examined witness and the circumstances. (Paras 1-56)
Issue of Consideration
Whether the Will dated 22nd March 2011 was duly executed and attested in accordance with Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872, and whether the propounder had removed all suspicious circumstances surrounding its execution.
Final Decision
Appeal dismissed. The grant of probate of the Will dated 22nd March 2011 is upheld.
Law Points
- Probate
- Will
- Execution
- Attestation
- Suspicious Circumstances
- Section 63 Indian Succession Act
- 1925
- Section 68 Indian Evidence Act
- 1872
