Case Note & Summary
The case pertains to a petition for Letters of Administration with the Will of Mangesh Pandurang Rege dated 1st October 1971. The original petitioner, Shrikant Rege, died during the pendency of the petition, and his widow, Usha Shrikant Rege, continued as plaintiff. The defendant, Gauri Gajanan Rege, is the widow of a deceased son of the testator. The defendant filed a caveat alleging that the will was obtained by fraud, coercion, and undue influence, and that it was bogus and forged. The court framed issues, including whether the will was the last will of the deceased. The plaintiff examined herself and a handwriting expert to prove the signatures of two attesting witnesses, but did not examine any attesting witness. The defendant examined herself. The court found that the plaintiff failed to prove the will in accordance with Section 63 of the Indian Succession Act, 1925, and Section 68 of the Indian Evidence Act, 1872, as no attesting witness was examined. The court also noted suspicious circumstances, including the testator being illiterate, the will being in English, and a 19-year delay in filing the petition. The court held that the will was not proved and dismissed the petition.
Headnote
A) Succession Law - Proof of Will - Attesting Witness - Section 63 Indian Succession Act, 1925, Section 68 Indian Evidence Act, 1872 - The court held that the propounder of a will must prove its execution by examining at least one attesting witness, and where suspicious circumstances exist, the onus is heavier. In this case, the plaintiff failed to examine any attesting witness or account for their non-availability, and the will contained suspicious features such as the testator being illiterate and the will being in English, leading to the conclusion that the will was not proved. (Paras 1-10) B) Succession Law - Suspicious Circumstances - Delay in Filing Petition - The court noted that a delay of 19 years in filing the probate petition, without satisfactory explanation, coupled with the fact that the will was not acted upon during the testator's lifetime, raised serious doubts about its genuineness. (Paras 2-4) C) Evidence Law - Handwriting Expert - Section 45 Indian Evidence Act, 1872 - The court observed that the opinion of a handwriting expert, without examining the attesting witnesses, is insufficient to prove the execution of a will, especially when the expert's report was based on copies and not originals. (Paras 5-8)
Issue of Consideration
Whether the will dated 1st October 1971 is the last will and testament of deceased Mangesh Pandurang Rege, and whether the plaintiff has discharged the burden of proving the will in accordance with law.
Final Decision
The court answered Issue No. (i) in the negative, holding that the will dated 1st October 1971 is not the last will and testament of deceased Mangesh Pandurang Rege. Consequently, the petition for Letters of Administration was dismissed. Issues (ii) and (iii) were not required to be answered.
Law Points
- Will
- Proof of Will
- Attesting Witness
- Section 63 Indian Succession Act
- 1925
- Section 68 Indian Evidence Act
- 1872
- Suspicious Circumstances
- Onus of Proof
