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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
A.S. OKA & A.M. BADAR, JJ.
PADMAKAR HIROO JADHAV & Ors. - APPELLANTS
Vs.
MRS.KUMUD SUBHASH JADHAV & Ors. - Respondents
APPEAL NO.306 OF 2009 IN TESTAMENTARY SUIT NO.37 OF 1992
IN TESTAMENTARY PETITION NO.603 OF 1990
Decided On : 22-12-2016
WILL - PROBATE - CAVEAT - TESTAMENTARY CAPACITY - UNDUE INFLUENCE - SUSPICIOUS CIRCUMSTANCES - BURDEN OF PROOF - EVIDENCE ACT, 1872, SECTION 106 - INDIAN SUCCESSION ACT, 1925, SECTION 63 - CODE OF CRIMINAL PROCEDURE, 1973, SECTION 161.
Fact of the Case:
The appellants, who were caveators in a testamentary suit, challenged the judgment and order of the Single Judge of the High Court, which dismissed their caveat and decreed the suit by declaring that the Will executed by the deceased was his last Will and Testament. The plaintiffs, who were the propounders of the Will, claimed that the deceased had executed the Will in their favor, bequeathing all his property to them, to the exclusion of all other legal heirs. The appellants contended that the Will was not duly executed, that the testator did not have the testamentary capacity, and that the Will was procured by undue influence and coercion.
Finding of the Court:
The Court held that the appellants had failed to discharge the initial onus of proving the suspicious circumstances surrounding the execution of the Will. The Court found that the testator was of sound mind and disposing state at the time of executing the Will, and that there was no evidence of undue influence or coercion. The Court also held that the Will was duly executed in accordance with the provisions of Section 63 of the Indian Succession Act, 1925, and that the mere fact that the Will was registered did not dispel the suspicion attached to its execution and attestation.
Issues: 1. Whether the appellants had discharged the initial onus of proving the suspicious circumstances surrounding the execution of the Will? 2. Whether the testator had the testamentary capacity at the time of executing the Will? 3. Whether the Will was procured by undue influence and coercion? 4. Whether the Will was duly executed in accordance with the provisions of Section 63 of the Indian Succession Act, 1925?
Ratio Decidendi: 1. The initial onus of proving the suspicious circumstances surrounding the execution of a Will lies on the caveators. 2. The testator must have the testamentary capacity, which includes the capacity to understand the nature and effect of the disposition of property, at the time of executing the Will. 3. Undue influence or coercion vitiates the consent of the testator and renders the Will void. 4. A Will must be executed in accordance with the provisions of Section 63 of the Indian Succession Act, 1925, which includes being signed by the testator in the presence of two witnesses.
Final Decision: The appeal was allowed, the impugned judgment and order of the Single Judge was set aside, and the Testamentary Suit No.37 of 1990 was dismissed.
A.M. BADAR, J.
1. By this appeal, appellants/original defendants/caveators are challenging the judgment and order dated 25th March 2009 passed by the learned Single Judge of this court in Testamentary Suit No.37 of 1992 between the parties, thereby dismissing the caveat filed by the present appellants and decreeing the suit by declaring that the Will dated 3rd December 1988 executed by deceased Hiroo @ Hiraji Laxman Jadhav as his last Will and Testament. Consequently, by the impugned judgment and order, the learned Single Judge ordered for issuance of letter of administration as prayed for by respondents/ original plaintiffs by allowing the Petition No.603 of 1990 filed by them. For the sake of convenience, parties shall be referred to in their original capacity.
2. Plaintiffs Subhash Hirji Jadhav and his wife Mrs. Kumud Subhash Jadhav filed Testamentary Petition bearing No.603 of 1990 for seeking letter of administration by annexing a Will claiming that the said Will has been executed by Hiroo @ Hiraji Laxman Jadhav on 3rd December 1988 as his last Will and Testament. After service of citation notice on other heirs of said Hiroo @ Hiraji Laxman Jadhav (hereinafter referred to as the testator), a caveat came to be filed jointly by appellants/defendants namely Padmakar Jadhav, Indira Jadhav, Mrs.Sumitra Surve and Ms.Meghna Jadhav. Defendant no.1 Padmakar Jadhav filed an affidavit in support of the caveat jointly on behalf of all defendants. Accordingly, the testamentary petition was converted into the suit between parties.
3. In the affidavit filed in support of caveat, defendants raised following points for opposing the petition for grant of letters of administration:
(a) All caveators/defendants are legal heirs having right and interest to inherit the property of the testator.
(b) Purported Will is not the Will of the testator and the same is not executed according to law. It is not attested as per provisions of law.
(c) The testator got first heart attack in the year 1986/87 and he was bedridden for few months. Then the testator got paralytic attack and he was unable to move from the year 1987. He was not in a sound disposing state of mind at the time of execution of the alleged Will.
(d) The testator was in complete control of his son i.e. plaintiffs Subhash Jadhav and daughterinlaw Mrs. Kumud Jadhav. Therefore, the disposition does not appear to be the result of testator's free will and mind.
(e) The Will was got executed under force and by exercising coercion by plaintiffs on the testator. The purported Will is a forged and fabricated document.
(f) Disposition shows that the purported Will is wholly unnatural, improbable and unfair. There was no reason for the testator to deprive the right of inheritance to his legally wedded wife Indira. There is no provision for unmarried daughter of the testator.
4. During pendency of the suit, original plaintiff no.1 Subhash Jadhav expired and therefore his remaining legal heirs namely, Akhilesh Jadhav was brought on record.
5. After framing issues, the parties went for trial. In support of their claim, plaintiffs adduced evidence of Mrs. Kumud Subhash Jadhav. Plaintiffs also examined Jayant Chandulal Kamani–attesting witness to the purported Will dated 3rd December 1988 as PW2. On behalf of defendants, Padmakar S. Jadhav gave evidence as DW1. Mrs. Sumitra Surve–daughter of the testator gave evidence as DW2. She is described in the purported Will as Ms. Shubhangi, as at that time, she was unmarried.
6. After hearing the parties and on considering the oral as well as documentary evidence adduced on record, the learned Single Judge by the impugned judgment and order was pleased to hold that the Will dated 3rd December 1988 is the last Will and Testament of Hiroo @ Hiraji Laxman Jadhav. The same was legally and validly executed by him. It is further held that defendants failed to prove that the said Will is a forged and fabricated document. The learned Single Judge considered evidence of P
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