Acceptance of benefits under a will constitutes an election to take under the will, binding the recipient to its terms and precluding them from challenging the Will.

G.S. Patel, J.

1. One Vivien Theresa Vaz ("Vivien") died at Mumbai on 3rd March 1988. According to the Petitioner, Mirzban Darabshaw Surti ("Mirzban"), Vivien left a Will dated 21st August 1997. Mirzban says he is the sole executor under this Will. He seeks to probate it.

2. Under the Will Mirzban propounds, Vivien bequeathed her Provident Fund and Gratuity to Mehernosh Marzban Surti ("Mehernosh") and Rumi Marzban Surti ("Rumi") equally. Her Family Pension Fund and her Co-operative Society dues were allegedly willed to Rumi and Mirzban respectively. To her nephew, one Ryan Elton Xavier, the Defendants' son, she allegedly bequeathed a sum of Rs. 2 lakhs and her share in the sale of 102, Manish Sea Croft, Sherly Mala Road, Bandra(West), Bombay 400 050 should that flat be sold after her death. Her jewellery she left to her sister-in-law, i.e., Defendant No. 2. She also allegedly made a bequest to Mirzban of the balances standing to the credit of all her bank accounts, the contents of her bank lockers, and all her investments including fixed deposits, shares, debentures, bonds, government securities and all immovable properties held singly by her or jointly with Mirzban. The remainder was also bequeathed to Mirzban and, failing him, to Mehermosh and Rumi equally.

3. The Defendants are Vivien's brother and sister-in-law, respectively. They entered a Caveat on 25th October 2000 and filed a joint Affidavit in Support on 31st October 2000. In that Affidavit, the Defendants disputed the execution of the Will. They alleged that Vivien had not executed the alleged Will voluntarily and that it was not prepared under her instructions. Vivien was, the Defendants alleged, in no physical and mental condition to make any such testamentary disposition. She was, they said, under Mirzban's control, and the Will was obtained by undue influence. According to the Defendants, Vivien died intestate.

4. On the Caveat and Affidavit in Support being filed, the petition was renumbered as Suit No. 90 of 2000.

5. On these pleadings, issues were struck on 16th September 2004. These are reproduced below, with my findings against each.

Sr. No.	Issues	Findings
1	Whether the petitioner has proved that the will dates 21st August, 1997 was legally and validly executed ?	Yes
2	Whether Defendants Nos. 1 and 2 have caveatable interests in the estate of the deceased ?`	Dose not arise
3	Whether the Defendant Nos. 1 and 2 are entitled to oppose the grant of probate in view of their having received and accepted the bequest under the will dates 21st August, 1997 ?	No
4	Whether the Defendants prove that the Will was executed by exercising undue influence ?	No
5	What order and relief ?	As per final order

Re: Issues Nos. 1, 2 3:

6. As I see it, a finding on Issue No. 3 is determinative of the entire action. For, if the Defendants are disentitled in law from opposing the grant of probate, there is no question of their sustaining the caveat they have filed, even assuming that they have a caveatable interest. In any case, Issue No. 2 does not arise: not only on account of the finding on Issue No. 3, but also because they obtained an order on Chambers Summons No. 1024 of 1999 for impleadment and for service on them of a citation.

7. Under the purported will, Vivien bequeathed all the jewellery lying in her cupboard to her sister in law, Mrs. Maria Vaz, the 2nd Defendant. Mirzban led his own evidence, as also the evidence of an attesting witness, one Khushroo M. Amroliwalla (PW2).

8. In his evidence, Mirzban as PW1 says that Vivien died on 3rd March 1998 leaving no lineal descendants. Mirzban says he used to help Vivien with her tax returns; he retired from the Tata Group in 1995 and, while there, worked as an Executive, Taxation and was thus familiar with tax matters. Viv