Case Note & Summary
The plaintiff, Hoshang Pesi Hodiwala, the grandson of the deceased B.M. Bhathena, filed a testamentary suit seeking probate of a will dated 27th November, 1985. The deceased died on 25th May, 1989, leaving behind one son and two daughters as his only heirs. The estate consisted primarily of a bungalow at 4bungalows, Andheri, Versova, Mumbai. The defendant, the son of the deceased, filed a caveat challenging the will, contending that the signatures on pages 1 and 2 of the will were forged and that the signature on the execution clause was obtained on a blank paper, after which the document was prepared. The plaintiff examined himself, one attesting witness, and a handwriting expert to prove the due execution and attestation of the will. The defendant did not examine any expert to rebut the plaintiff's evidence. The court framed three issues: (1) whether the plaintiff proved the will as the last will and testament of the deceased; (2) whether the defendants proved that the will was forged; and (3) what order. The court answered issue 1 in the affirmative and issue 2 in the negative. The court held that the plaintiff had discharged the burden of proof by examining an attesting witness and a handwriting expert, and the defendant failed to prove any forgery or suspicious circumstances. Consequently, the court decreed the suit in favor of the plaintiff and granted probate of the will.
Headnote
A) Succession Law - Probate of Will - Execution and Attestation - Section 63 Indian Succession Act, 1925 - The plaintiff, grandson of the deceased, sought probate of a will dated 27th November, 1985. The defendant/son challenged the will alleging forgery of signatures on pages 1 and 2 and that the signature on the execution clause was obtained on a blank paper. The court held that the plaintiff proved due execution and attestation by examining one attesting witness and the handwriting expert, and the defendant failed to prove forgery. The will was held genuine and probate granted. (Paras 1-3) B) Evidence Law - Handwriting Expert - Section 45 Indian Evidence Act, 1872 - The court relied on the testimony of a handwriting expert who opined that the signatures on the will matched the admitted signatures of the deceased. The defendant did not examine any expert to rebut this evidence. The court held that the expert evidence, coupled with the testimony of the attesting witness, sufficiently proved the genuineness of the will. (Paras 2-3) C) Succession Law - Suspicious Circumstances - Burden of Proof - The defendant alleged that the will was forged and that the testator's signature was obtained on a blank paper. The court held that mere allegations of suspicious circumstances, without credible evidence, do not shift the burden back to the propounder. The propounder had discharged the initial burden by proving execution and attestation. The defendant failed to prove forgery. (Paras 2-3)
Issue of Consideration
Whether the plaintiff has proved that the will dated 27th November, 1985 is the last will and testament of late B.M. Bhathena, and whether the defendants have proved that the said will is forged.
Final Decision
The suit is decreed in favor of the plaintiff. The will dated 27th November, 1985 is held to be the last will and testament of late B.M. Bhathena. Probate is granted to the plaintiff.
Law Points
- Burden of proof in probate proceedings
- Standard of proof for execution of will
- Suspicious circumstances must be proved by caveator
- Propounder must prove due execution and attestation
- Section 63 Indian Succession Act
- 1925
- Section 68 Indian Evidence Act
- 1872
