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2013 Supreme(Bom) 1141
High Court of Judicature at Bombay
D.Y. CHANDRACHUD & S.C. GUPTE, JJ.
Dinesh Ramchandra Sawant & Others
Versus
Shivaji Ramchandra Sawant
Appeal No.29 of 2013 In Testamentary Suit No.48 of 2004 In Testamentary Petition No.698 of 2004
Decided on : 26-06-2013
For the Appellants:J.M. Chodankar i/b Harish R. Pawar, Advocates.
For the Respondent:Sanjiv A. Sawant, Advocate.
The propounder of a will must remove all legitimate suspicions surrounding its execution, and failure to do so can lead to the dismissal of the testamentary suit.
Headnote:
Probate - Alleged Will and Testament - [Succession Act, Section 63, 1977 SC 74, 2013(3) ALL MR 963] - The court considered the suspicious circumstances surrounding the execution of the will, including the testator's health, contradictions in the place and language of execution, and the typing of the will on a computer. The propounder failed to explain these suspicions, leading to the dismissal of the testamentary suit.
Fact of the Case:
The case involved an alleged will and testament of a deceased individual. The propounder sought probate, which was granted by the Learned Single Judge. The Appellant challenged the judgment, citing suspicious circumstances surrounding the execution of the will.
Finding of the Court:
The court found that the propounder failed to explain the suspicious circumstances surrounding the execution of the will, including the testator's health, contradictions in the place and language of execution, and the typing of the will on a computer. As a result, the testamentary suit was dismissed.
Issues: The issues included the validity of the alleged will, the propounder's burden to remove suspicions, and the order and decree to be issued.
Ratio Decidendi: The court held that the propounder of a will must explain all suspicious circumstances surrounding its execution. Failure to do so can lead to the dismissal of the testamentary suit.
Final Decision: The Appeal was allowed, and the judgment and order of the Learned Single Judge were set aside. The Testamentary Suit was dismissed with no order as to costs.
(Dr. D.Y. Chandrachud, J.)
Admit. By consent of the learned counsel and at their request, the Appeal is taken up for hearing and final disposal.
2. The Appeal arises from a judgment of a Learned Single Judge in the testamentary jurisdiction by which probate has been granted in respect of an alleged will and testament of the deceased Ramchandra Marutirao Sawant.
3. Ramchandra Marutirao Sawant was married and besides his wife, his family consisted of seven children, five sons and two daughters. He is alleged to have executed a will on 22 February 2001. The testator died on 1 May 2002. On the date of the execution of the will, the testator was eighty-two years of age and was suffering from squamous cell carcinoma of the tongue, He had suffered a hypertensive stroke in 1983 and had also undergone a surgery of the Pelvic bone. The will was propounded by the Respondent Shivaji, who was one of the five sons of the testator. In response to the Testamentary Petition, caveats were filed by the widow of the testator, Janakibai and by three of his other sons. The caveators denied that the alleged will had been executed by the deceased.
4. The following issues were drawn up:
“1. Whether the Plaintiff proves that the deceased Ramachandra M. Sawant executed his last Will dated 22nd January, 2001.
2. Whether the said Will is legal and valid.
3. What order and decree.”
5. The Respondent who was the propounder of the will sought to prove the will by examining himself and a doctor (Dr. V.S. Kulkarni) and Harkisandas Mehta, both of whom were attesting witnesses. The Appellant was examined as one of the caveators.
6. The Learned Single Judge by a judgment dated 29 November 2012 held that the will is seen to be validly executed and directed the Prothonotary and Senior Master to issue a probate.
7. The principal submission in support of the Appeal is that since the Respondent who is the propounder has taken a leading part in the making of the will, the burden lay on him to remove all legitimate suspicions before the document can be accepted as the last will of the testator. In the present case, it has been submitted that the Respondent has failed to remove or explain all these legitimate suspicions. In particular, the following aspects were stressed upon:
(i) Admittedly the deceased was suffering from cancer of the tongue and had undergone a surgery of the Pelvic bone;
(ii) The deceased was eighty-two years of age at the time of the execution of the will and the evidence of the doctor indicates that he was suffering from serious medical ailments;
(iii) There are serious discrepancies in regard to the execution of the will both in regard to the signature and the place of execution. As regards the place of execution, the two attesting witnesses stated that the will was executed at the residence of the deceased testator, whereas the case of the Respondent in the affidavit filed in lieu of the examination-in-chief was that the will was executed in the office of the Collector where it was registered. Subsequently, the Respondent has contradicted himself in regard to the place of execution. As regards the signature, the evidence of one of the attesting witnesses is that the will has been executed by the testator in Marathi, whereas the signature of the deceased testator is in English;
(iv) The will has evidently been typed on the computer in Marathi. Though the Respondent was cross-examined specifically with reference to the circumstances in which the will was transcribed and as regards the instructions on the basis of which the will was transcribed, the evidence of the Respondent is evasive;
(v) The evidence of both the attesting witnesses contains several discrepancies and contradictions and it is evident that the execution of the will has not been duly proved;
(vi)The Respondent is an untrustworthy witness who has prevaricated on oath. Far from explaining the suspicious circumstances, the Respondent was evasive.
8. On the other han
