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IN THE HIGH COURT OF BOMBAY
A.S.Doctor, J.
Janki Suresh Bhandoola - Appellant
Versus
Ramesh T. Parasani - Respondent
Testamentary Suit No. 50 of 2005, Testamentary Petition No. 3 of 2005
Decided On : 31-07-2023
PROBATE - WILL VALIDITY - Indian Succession Act, 1925, Section 59, Section 63 - The court discussed the requirements for a valid will under Section 63 of the Indian Succession Act, emphasizing the necessity for the will to be duly executed and attested by two witnesses. The court interpreted that the propounder must prove the testator's sound mind and understanding at the time of execution. The court found that the plaintiff failed to meet the burden of proof regarding the will's validity, leading to the dismissal of the suit.
Fact of the Case:
The plaintiff sought probate of a will dated 1/2/2001, claimed to be the last will of Sushiladevi T. Parsani. The testatrix had seven children, including the plaintiff and defendant, and had lived with the defendant until 1984, after which she moved to Indore. The will was executed shortly before her death, and the defendant contested its validity, alleging it was forged and executed under suspicious circumstances.
Finding of the Court:
The court found that the plaintiff failed to prove that the will was duly executed and that the testatrix was of sound mind at the time of execution. The evidence presented was insufficient to dispel the suspicions surrounding the will's execution, particularly regarding the lack of independent witness testimony and the plaintiff's significant role in its preparation.
Issues: 1. Whether the plaintiff proved that the writing dated 1/2/2001 was duly and validly executed and attested in accordance with law as the last Will and Testament of the deceased? 2. Whether the plaintiff proved that at the time of the said alleged Will, the deceased was of sound and disposing state of mind, memory and understanding?
Ratio Decidendi: The court held that the burden of proof lies with the propounder to establish the will's validity, including the testator's sound mind and proper execution as per Section 63 of the Indian Succession Act. The court emphasized that suspicious circumstances surrounding the will must be adequately explained by the propounder.
Final Decision: The suit was dismissed, and the court directed that the will be retained in custody, concluding that the plaintiff did not meet the burden of proof required for the grant of probate.
JUDGMENT/ORDER
1. The present Suit seeks Probate of a Will dtd. 1/2/2001 ("the said Will") said to be last Will and Testament of one Sushiladevi T. Parsani ("the Testatrix").
2. The relevant facts are as follows: -
(ii) The Testatrix upto the year 1984 was residing with Teunram and the Defendant in a flat in a building known as "Broacha House".
(iii) In the year 1984 the Testatrix left the house in which she was residing with Teunram and the Defendant and went to reside in Indore where she stayed in a Temple-cum-Home said to be built by Tenuram.
(iv) On 24/8/1994, Teunram is said to have executed a Will inter alia bequeathing all the shares held by him in the joint names of the Defendant and the Testatrix, as also the right to reside in the Broacha House flat to the Defendant. The will also is stated to have appointed the Defendant as Executor and provided that the Defendant had the right to reside in the said flat in Broacha House.
(v) In the year 1997 the Testatrix came back to Mumbai and once again resided with the Defendant at Broacha House.
(vi) The Testatrix thereafter in the year 1998 left the Broacha House flat and began to reside with the Petitioner, which she continued to do so until the time of her death.
(vii) On 1/10/2000 Teunram passed away.
(viii) On 1/2/2001 the Deceased is stated to have executed the said Will.
(ix) On 26/2/2001 all shares in the name of the Deceased were transferred to her name by the Defendant.
(x) The Testatrix passed away on 24/4/2001.
(xi) The Plaintiff then filed Testamentary Petition No. 3 of 2005 for probate of the said Will by the Plaintiff. Except for the Defendant, all the other legal heirs of the Testatrix have filed their respective consent affidavits. It was thus that the Testamentary Petition was converted into the present Suit.
(xii) It appears that in the year 2012 the Defendant has filed Testamentary Petition No. 1088 of 2012 for probate of the last will and testament of Teunram. The same was converted into Testamentary Suit No. 53 of 2013.
3. In the present Suit, the following issues were framed for determination by this Court, viz.
2. Whether the Plaintiff proves that at the time of the said alleged Will, the deceased was of sound and disposing state of mind, memory and understanding?
3. Whether the Defendant proves that the alleged Will is a forged, fabricated and got up document?
4. Whether the Defendant proves that the alleged Will is unnatural?
5. What reliefs and what orders?"
Evidence led by the Plaintiffs:
(i) Ms. Sita Laxmi Narayanswami (attesting witness) PW-1, and
(ii) Sushila Teunram Parsani (the Plaintiff) PW-2 as propounder. Evidence led by the Defendant:
(i) Ramesh Teunram Parsani (the Defendant) DW-1
Submissions of Ms. Kochar on behalf of the Plaintiff.
4. At the outset Ms. Kochar invited my attention to the said Will and submitted that the Testatrix had dictated the same to the Plaintiff in the Sindhi language to PW- 2 who had then translated and typed out the same in English and thereafter read out the entire Will in English, Hindi and Sindhi to the Testatrix. In support of her contention, she invited my attention to the cross examination of PW-2 viz.
Ans: It was dictated in Sindhi and I translated in English and typed it.
Q. 21 After typing the Will in English was it read out in Sindhi?
Ans: After typing out the will in English, I read out the Will in English, Hindi and Sindhi and explained the contents thereof. Whichever part in English she did not understand I transl
A will's validity must be proven beyond suspicion, especially when claims of fraud or undue influence arise; the burden of proof lies on the party benefiting from the will under suspicious circumstan....
The propounders have the onus to prove due execution of a Will as per the requirements of Section 63 of the Indian Succession Act, 1925. When there are suspicious circumstances, a greater onus lies o....
The proof of an unregistered WILL must dispel all suspicious circumstances surrounding its execution; failure to do so results in denial of probate.
The propounder of a Will must satisfactorily dispel all suspicious circumstances regarding its validity, particularly when substantial benefits accrue to them, or the Will may be deemed invalid.
The court affirmed that the plaintiff sufficiently proved the valid execution of the Will, while the defendant failed to establish claims of forgery or suspicious circumstances surrounding it.
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