Case Note & Summary
The appeal arose from a judgment and order dated 9 June 2016 of the Bombay High Court disposing of Testamentary Suit No. 28 of 1995, which sought probate of a will dated 4 July 1993 executed by Shashikala Baburao Alandkar (Shashikala), who died on 27 February 1994. The plaintiffs, Kirit Navnitlal Damania and Shantram V. Pikale (since deceased), were named executors. The defendants, Anuradha Anil Bhagwat and others, opposed probate, alleging that the will was not duly executed and attested, and that it was surrounded by suspicious circumstances. The trial court granted probate, leading to the appeal. The appellate court, comprising Justices A.S. Oka and M.S. Sonak, heard the appeal and dismissed it, upholding the trial court's decision. The court found that the plaintiffs had proved due execution and attestation of the will under Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872, by examining one attesting witness and the scribe. The court rejected the defendants' allegations of suspicious circumstances, noting that the will was registered, the testatrix had testamentary capacity, and the defendants failed to produce evidence to the contrary. The appeal was dismissed with no order as to costs.
Headnote
A) Succession Law - Probate of Will - Execution and Attestation - Section 63 Indian Succession Act, 1925 and Section 68 Indian Evidence Act, 1872 - The court considered whether the will was duly executed and attested. The trial court found that the propounder proved due execution by examining one attesting witness and the scribe. The appellate court upheld this finding, noting that the will was registered and the testatrix had testamentary capacity. (Paras 1-10) B) Evidence Law - Attestation of Will - Proof of Attestation - Section 68 Indian Evidence Act, 1872 - The court held that the requirement of Section 68 is satisfied if at least one attesting witness is examined to prove the execution. In this case, the plaintiffs examined one attesting witness who confirmed the testatrix's signature and the presence of other attesting witnesses. (Paras 11-15) C) Succession Law - Suspicious Circumstances - Burden of Proof - The court held that mere registration of a will does not dispel all suspicions, but the propounder must explain any suspicious circumstances. Here, the defendants alleged that the will was unnatural and that the testatrix was not in a sound disposing state of mind. The court found that the trial court correctly appreciated the evidence and that the defendants failed to prove their allegations. (Paras 16-25)
Issue of Consideration
Whether the will dated 4 July 1993 was duly executed and attested as required by law, and whether the trial court erred in granting probate despite alleged suspicious circumstances.
Final Decision
Appeal dismissed. The judgment and order dated 9 June 2016 granting probate of the will dated 4 July 1993 is upheld. No order as to costs.
Law Points
- Probate
- Will
- Execution
- Attestation
- Suspicious Circumstances
- Section 63 Indian Succession Act
- 1925
- Section 68 Indian Evidence Act
- 1872
- Burden of Proof
