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High Court of Judicature at Bombay
ROSHAN DALVI, J.
Manilal Sunderji Doshi
Versus
Kamal Manilal Doshi & Others
Testamentary Suit No. 7 of 2007 In Testamentary Petition No. 964 of 2006
Decided on : 07-03-2013
Since right to file a petition for probate is a continuing right which can be exercised at any time after death of testator hence petition can be filed when need arises. - The Supreme Court whilst considering this issue in the case of Kunvarjeet Singh Khandpur v. Kirandeep Kaur, (2008) 8 SCC 463 : 2008 All SCR 1221, set out the summarised decision in Vasudev Daulatram Sadarangani v. Sajani Prem Lawani, AIR 1983 Bom 268, in para 15 of the judgment. The fact that the application for permission to perform the legal duty created by will by filing a probate or letters of administration as a continuous right has been upheld. Once that is done, no question of any bar of limitation would arise.
Hence it has been held that there is advisedly no prescribed period of limitation for a grant of probate, or letters of administration. The right to apply is whenever it is necessary which may not be within 3 years from the date of the death of the deceased. However the assumption that under Article 137 the right to apply necessarily accrues on the death of the deceased being unwarranted is observed to be incorrect, as in some cases that would not be so if, as in this case, where it is shown that there was no need to apply for probate at the time of the death of the deceased. If parties were at dispute since that time and if applying for probate or letters of administration was shown to be necessitated by intrinsic evidence, unlike in this case, the assumption may be warranted. This is so held only upon accepting the analogy in the case of Kerala SEB v. T.P. Kunhaliumma, (1976) 4 SCC 634, which held that Article 137 would apply as much to a probate petition as to all other applications because in the Limitation Act, 1963, unlike the Limitation Act, 1908 the applications under Article 137 included applications under all Acts and not only applications under the CPC. Hence a probate petition is held otherwise to fall under Article 137 of the Limitation Act, 1963. But it being a continuous right and being required to be filed only if the situation so entailed, the period of limitation would begin to run only from when the situation warranted a petition.
Succession Act, 1925 - Section 59 - Presumption as to execution and attestation of Will.
Since documents, ’Wills’ being 30 years old would carry statutory presumption of correctness of handwriting and signature on Wills hence Court may presume execution and attestation.
Succession Act, 1925 - Section 61 - Execution of Will under influence.
Execution of Will under undue influence and fraud, vitiates a Will so executed.
Succession Act, 1925 - Section 62 - Effect of Mutual Will.
If bequests are made unconditionally, they would simplicitor take effect. - A reading of the aforesaid three judgments shows that if a life interest is created and there is any further evidence of an agreement or arrangement the two executants of the Will binding themselves to make their Will revocable, an implied contract resulting in a constructive trust would ensue. If however, bequests are made unconditionally they would simplicitor take effect. In cases of no evidence of agreement of irrevocability, a trust cannot be imputed and the salubrious feature of revocability of the Will cannot be restricted or denied to the survivor of the Mutual Wills.
Succession Act, 1925 - Section 62 - Revocability of Mutual Will.
If two spouses make Wills separately on different dates, incident of revocability would not be affected.
Succession Act, 1925 - Section 62 - Revocability of Will.
Since a person making a Will, has got full right, privilege and authority to revoke it hence revocability is prime, salient feature of a Will.
Succession Act, 1925 - Section 62 - Will by husband and wife.
Where in a Will by husband and wife, there was absolute bequest in favour of each other therefore mere execution of subsequent trust deed not imply any bequest at that time. - The defendants desire to have prejudged the non- revocability of the Will which is not even admitted to probate. However, that contention having been taken up it has been considered to the fullest. No agreement of the parties not to revoke their bequests by the last of them to die is seen or shown. The wills themselves make for an absolute bequests in favour of both of them by the other. The wills appoint each other as the sole executor/executrix. There is no life interest. The other bequests are conditional upon the predecease of one of them. The will of the first to die is only brought out for the grant of probate. No constructive trust is seen. In fact, the deed of trust further shows the grant to each other inasmuch as they are the legal owners as trustees and the children are only the beneficiaries, the settlement having been made by the plaintiff.
If the trust deed were to determine the bequests, the defendants would well have contended that they are equal legatees under their mother’s will and not on intestacy. For the property under the deed of trust, the plaintiff is himself the settlor. The deceased could not bequeath a property of which she was only the legal owner as trustee. The plaintiff would continue to be the settlor. He alone would bequeath that property as he now wishes since his wife has predeceased him and the absolute bequest in Clause 1 of his will has a deemed. It is for him to leave the bequests in favour of all his children as was his wish in 1970 or to revoke that will make a fresh bequest as per his choice, there being no agreement not to do so and there being no evidence of any such implied arrangement with his wife also.
The deed of trust is a separate arrangement or contract governed by the separate law relating to private trusts which also the plaintiff, as the settlor, may deal with in accordance therewith during his life time.
The mere execution of such trust deed does not imply any bequest at that time. It, therefore, cannot also per se imply a future conditional bequest in favour of all the children who are beneficiaries under the will of their mother which would have been only in case of the predecease of plaintiff. [See the case of Sridevi Amma and others v. Venkitaparasurama Ayyan and others, AIR 1960 Ker 21, as to conditional bequests.
1. The plaintiff is the husband of the deceased Vilasgauri Manilal Doshi. He has applied for the probate of the last will and testament of his wife dated 15th April 1970. The Caveators/Defendants are three of his sons. The deceased as well as the plaintiff executed their separate and independent wills on 15th April, 1970. They have essentially bequeathed their estate to one another and if the other predeceased the Testator/Testatrix to their children equally. They have five sons and one daughter.
2. Soon after the execution of the will, on 2nd June, 1971 they have executed a deed of trust in which the plaintiff is the settlor of the property called Ujam Vilas which is a building in which the family resided. Both the deceased as well as the plaintiff are the trustees thereunder. The children are beneficiaries thereunder.
3. The wills have been executed by both the parties on the same day at the same time in the office of the Attorneys of the plaintiff attested by one of the then Solicitors who was its senior partner and another Advocate who was his brother-in-law. Both the attesting witnesses have expired. Another partner of the firm had identified their signatures at the time of the filing of the petition in an affidavit filed along with the Petition. That partner of the firm has also expired by the time the suit reached hearing. The son of the partner who attested these wills, who is an Engineer by profession, has identified the signatures of not only his father, but both the attesting witnesses as he was the relative of both of them. Upon such a case the plaintiff seeks to propound the will of his deceased wife.
4. Three of the six children who have filed the caveat have contended that the deceased had not executed the will. She had orally expressed her desire that she would leave her entire estate equally to her children. She had executed a private trust for the benefit of her children. That is under the above trust deed relied upon by the parties. It was initially considered an irrelevant document for the execution of the will which was executed prior to that document, but upon reliance by all the parties thereupon, more specially the defendants, it has been seen to be relevant to prove the fact of the execution of the will itself and would be considered in evidence as an admitted document. The caveators also contend that the signature on the will is not the signature of the deceased, that it has been forged and has been obtained by coercion and importunity and undue influence and that the will is void on the ground of uncertainty and vagueness. How and why their deceased mother could not have executed the will has been set out which is essentially the evidence of the defendants and not their pleading.
5. Consequently, based upon the pleadings between the parties Justice A.V. Nirgude framed the following issues on 11th February, 2009, which are answered as follows:
6. The plaintiff has examined himself and a witness to identify and prove the signatures of the attesting witnesses who have expired. The defendants 1 and 3 have examined themselves. The defendants have also examined one Mahendra Doshi, their cousin and the nephew of the plaintiff to show the linguistic acumen of the deceased in English, the language of the will and the language in which she has signed the will. The plaintiff has thereafter examined an outside witness in rebuttal for much the same purpose.
7. The aforesaid issues would essentially have to be answered upon the oral evidence led by the parties alone. However a wholly premature yet an attractive argument has been made on behalf of the defendants that because the deceased and the plaintiff have executed wills on the same day bequeathing to one another their estate and only in case of the predecease of the other bequeathed the estate equally to their children, the wills are mutual wills and hence irrevocable. It may at once be mentioned that the Testamentary Court would only have to cons
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