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IN THE HIGH COURT OF BOMBAY
Devendra Kumar Upadhyaya, CJ., Arif S. Doctor, J.
Tarun Narainsingh Advani - Appellant
Versus
Deepak Matai & Ors. - Respondents
Appeal No. 43 of 2017 in Testamentary Suit No. 36 of 2010
Decided On : 12-04-2024
WILL VALIDITY - TESTAMENTARY SUIT - Indian Succession Act, 1925 - Sections 61, 63 - The court discussed the validity of a will under Section 61, which states that a will made under fraud, coercion, or undue influence is void. The court emphasized that a will must reflect the testator's free agency and volition. The evidence presented indicated that the will was not made freely by the testator, leading to the conclusion that it was invalid. Section 63 outlines the execution requirements for wills, which were not sufficiently met due to the presence of suspicious circumstances surrounding the will's creation.
Fact of the Case:
The appellant sought letters of administration for a will dated March 18, 1991, of Girdharilal Chellaram Matai, who had passed away leaving behind three wives and eight children. The will bequeathed the entire estate to the testator's third wife, Lata, excluding all other heirs. The respondents contested the will, claiming it was forged and not executed freely by the testator.
Finding of the Court:
The court found that the will was not executed with the testator's free volition, as evidenced by the testimony of the attesting witness, Mr. Bhandary, who indicated that the testator was compelled to make the will due to pressure from his third wife. The court held that the appellant failed to dispel the suspicious circumstances surrounding the will's execution.
Issues: 1. Whether the last Will and Testament of the Testator Girdharilal Chellaram Matai dated March 18, 1991 was validly executed. 2. Whether the said Will has been forged and fabricated. 3. What relief, if any, the Plaintiff is entitled to?
Ratio Decidendi: The court reiterated that the burden of proof lies on the propounder of the will to dispel any suspicious circumstances surrounding its execution. The evidence indicated that the will was not a product of the testator's free will, thus rendering it invalid under Section 61 of the Indian Succession Act.
Final Decision: The appeal was dismissed, affirming the lower court's decision that the will was invalid due to lack of free agency and the presence of undue influence.
JUDGMENT
Arif S. Doctor, J. - The challenge in the present Appeal is to an order dated 25th October, 2016 by which the caption Testamentary Suit filed by the Appellant seeking letters of administration of a Will dated 18th March, 1991 ('the said Will') stated to be the last will and testament of one Girdharilal Chellaram Matai (' the Testator'} came to be dismissed.
2. Before adverting to the rival contentions, it is useful to set out the following facts viz.
ii. On 13th July, 2006 Respondent No. 1 propounding a Will stated to be of the Testator dated 30th December, 1984 filed Testamentary Petition No. 556 of 2006 seeking letters of administration in respect of that Will. The Testamentary Petition was opposed by the Appellant who is the executor of her Will. It was thus that the said Testamentary Petition was converted into Testamentary Suit No. 52 of 2006.
iii. The Appellant then in the year 2009 propounding the said Will filed Testamentary Petition No. 856 of 2009 seeking Letters of Administration in respect of the said Will. By the said Will, the entire estate of the Testator, which essentially comprises of one flat was bequeathed exclusively to the third wife of the Testator, i.e. Lata to the exclusion of all the other legal heirs of the Testator. It is the Appellant's case that Lata had by her last will and testament bequeathed the said flat to her nephew one Mr. Tarun Narain Advani.
iv. Testamentary Petition No. 856 of 2009 was opposed by Respondent Nos. 1 and 2 and was therefore converted into the captioned Testamentary Suit in which the following Issues were framed for determination, namely, viz.
'1. Whether the last Will and Testament of the Testator Girdharilal Chellaram Matai dated 18th March 1991 was validly executed.
2. Whether the said Will has been forged and fabricated.
3. What relief, if any, the Plaintiff is entitled?'
v. It is not in dispute that the Appellant filed Affidavits of Evidence of two witnesses, namely Mr. Sunder Govind Bhandary and Dr. Haresh Chulani both in their capacity as attesting witnesses. However, only Mr. Bhandary submitted himself for cross examination. It is also not in dispute that Mr. Bhandary was the advocate of the Testator. Since the Impugned Order is based entirely upon the appreciation of certain answers given by Mr. Bhandary in cross examination it is useful at this stage to set out those answers viz.,
'Q-29 :- So, do we take it that according to you, when Mr Girdharilal Matai gave you instructions, you were not aware whether it was his Last Will or not?
A : At the time of instructions, I was not certainly not aware that, that was his Last Will.
Q-30:- Did you or did you not ask him whether it was his Last Will?
A : In fact, I had asked him, but he had a different version of his Will, later on.
Q-31:- Would it be right to say that Mr Girdharilal Matai had given instructions which were not discernible and therefore you have stated in reply to Question No. 12 that the Will was perhaps drafted by you ?
A: I was quite clear and discernible and there was no confusion in his instructions to prepare his Will, in the beginning.
Q-32 :- Do we take it that, according to you, there was confusion at a later point of time?
A : I don't want to use the word 'confusion' but for some reason, later he changed his mind and he told me why he is changing his Will.
Q-40:- Were you aware that there were disputes among the family members of Mr Girdharilal Matai?
A : I don't know the meaning of family members, but Mr Girdharilal Matai used to tell me that his wife is not happy with the Will that I had drafted on his instructions and that he wanted to change the Will, because he is unable to face his Wife with the
A will must be executed freely and without undue influence; if suspicious circumstances exist, the burden is on the propounder to dispel them to validate the will.
A will must be executed in accordance with statutory requirements, and any suspicious circumstances must be adequately addressed by the propounder for the will to be validated.
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....
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 mere presence of beneficiaries during will execution is not sufficient to invalidate it; the burden of proving suspicious circumstances lies with the challengers.
The propounder of a Will must prove its valid execution and genuine nature, failing which, the Will cannot be upheld.
The main legal point established in the judgment is that the propounder of a Will must prove its execution and remove all suspicious circumstances surrounding the Will. Minor discrepancies in the evi....
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