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IN THE HIGH COURT OF BOMBAY
R.D. Dhanuka, J.
Usha Kiran Anand Narayan Kalwar – Appellant
Vs.
Shivprasad Shankarlal Pardeshi – Respondent
First Appeal No. 942 of 1994
Decided On : 24.11.2014
PROBATE - WILL - EXECUTION - ATTESTATION - AMENDMENT - SUSPICIOUS CIRCUMSTANCES - ONUS - DISPELLING - MAINTAINABILITY OF APPLICATION - JURISDICTION OF TESTAMENTARY COURT - INDIAN SUCCESSION ACT, 1925, SECTIONS 222, 281, 63, 71.
Fact of the Case:
The appellants, as propounders of the will, filed an application for probate of the alleged will of the deceased, Leelabai Badrinarayan Talwar. The respondents, who were the original applicants and respondents in the proceedings before the trial court, contested the application on various grounds, including the validity of the will, the execution and attestation of the will, and the existence of suspicious circumstances surrounding the making of the will.
Finding of the Court:
The court found that the appellants had failed to prove the execution and attestation of the amendment to the original will dated 29th January 1983. The court also found that the original will dated 29th January 1983 was surrounded by suspicious circumstances, including the strained relationship between the deceased and the appellants, the deceased's cancellation of the adoption of the appellant's husband, and the deceased's allegations of threats and harassment by the appellants. The court held that the appellants had failed to dispel these suspicious circumstances and, therefore, rejected the application for probate.
Issues: 1. Whether the application of the Applicants is tenable in the present form? 2. Whether the Applicants have proved; that deceased Leelabai had executed last will in their favour on 19th January, 1983 by her own accord and this is genuine will? 3. Whether the Applicants are entitled to get probate from the Court on the basis of this Will deed dated 29th January, 1983? 4. What order?
Ratio Decidendi: 1. The onus is on the propounder of a will to dispel any suspicious circumstances surrounding the making of the will. 2. Where the execution of a will is shrouded in suspicion, its proof ceases to be a simple lis between plaintiff and defendant. The proof of execution of the will must satisfy the conscience of the court. 3. A testamentary court has the power to grant probate or letters of administration with the Will annexed, and has the power to grant part relief.
Final Decision: The appeal was dismissed, and the judgment of the trial court rejecting the application for probate was upheld.
R.D. Dhanuka, J.
1. This appeal is directed against the order and judgment dated 1st February, 1994 delivered by the learned II Jt. Civil Judge, Sr. Division, Solapur dismissing the application for probate filed by the appellants. The appellants and the respondents were the original applicants and the respondents respectively in the proceedings before the trial court except the legal heirs who were brought on record in this proceedings. Some of the relevant facts for deciding this appeal are as under :
2. Appellant nos. 2 to 4 are sons of the appellant no. 1 and one Mr. Anand Narayan Talwar. The probate proceedings were filed in respect of the alleged will of the testator Mrs. Leelabai Badrinarayan Talwar who was owner of various properties (hereinafter referred to as the said deceased). The said deceased died issueless on 24th November, 1984. The husband of the said deceased died on 13th July, 1989. Mr. Jawaharlal Rajaram Talwar was father of the said deceased. The said deceased got various properties inherited from her mother and maternal grand mother. It is the case of the appellant that the said deceased was the only heir of Mr. Jawaharlal. It is the case of the appellants that the husband of appellant no. 1 Mr. Anand Narayan started residing with the said deceased since 1970. In the year 1974, the said deceased performed the marriage of said Mr. Anand Narayan with appellant no. 1. It is the case of the appellants that after the said marriage the appellant no. 1 also started staying with the said deceased and was taking care of the said deceased. The appellant no. 1 continued to stay with the said deceased till her death.
3. On 2nd June, 1937 Kausalyabai Jawaharlal Talwar died. On 26th April, 1949 Gangubai Sewakram Pardeshi, grand mother of the said deceased died. It is the case of the appellants that the said deceased had adopted the husband of appellant no. 1 by customary method prior to the marriage between the applicant no. 1 and the said Mr. Anand Narayan.
4. On 2nd March, 1976 the said deceased had executed a registered will. On 19th June, 1979, the said deceased executed another registered Will. On 9th August, 1980 the appellant no. 2 was born to the appellant no. 1. On 29th January, 1983 the said deceased executed another registered will.
5. On 25th June, 1983, the appellant no. 3 was born to the appellant no. 1. It is the case of the appellants that the said will dated 29th January, 1983 was scribed by one Mr. Laxman A. Irabatti and was witnessed by Mr. Shantinath Vishwanath Korde and another. The said will was duly registered.
6. It is the case of the appellants that during her life time the said deceased made some changes in the said will dated 29th January, 1983 i.e. after one year from the registration of the will dated 29th January, 1983 when she was of sound and disposing mind. She had intended to make few changes and made those changes on the photocopy of the will with the help of appellant no. 1. The said changes were dictated to her by the said deceased. The said deceased had also written those changes separately in her own handwriting. Lastly the said draft was completed by the said deceased in her own handwriting. Those drafts were also brought to the notice of the scribe and the said deceased had intended to get the same registered. Due to old-age of the said deceased and due to some litigation pending between the said deceased and the appellant no. 1 Mr. Shivprasad Pardeshi, the said will could not be registered. Admittedly the alleged changes in the will were not initialed or signed by the said deceased. On 21st February, 1985 the appellants filed an application for probate with the will annexed i.e. Civil Misc. Application No. 82 of 1985 before the learned District Judge, Solapur. The said application was subsequently numbered as Misc. Appln. No. 228 of 1986 and was heard by the Civil Judge, Senior Division. The defendants filed written statement in the said application opposing the said applica
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