1998 Supreme(Guj) 658

Gujarat High Court
Judgename :M.C.PATEL, R.K.Abichandani
JANARDAN BADRINARAYAN PATEL - Appellant
Versus
SHETH AMBALAL HIMATLAL - Respondent
C.A. 2873 of 1974
Decided On : 12/03/1998

Headnote:Janardan Badrinarayan Patel & Anr.Issue No.1 was on the question as to whether the properties mentioned in the will were of the ownership of Chandanben and that she could have disposed them of. On that issue, the Trial Court held that it was not at all necessary to conclude anything in a probate petition, except the validity, genuineness and due execution of the will and the factum of appointment of executors thereunder. The said issue contemplated inquiry into the title of the properties, which were dealt with in the will by Chandanben. It is well-settled that the grant of probate does not have the effect of construing the will nor does it determine the question of title to the property. It was, therefore, rightly conceded by all the parties before the probate Court that this issue did not arise for its consideration. This decision is not questioned before us by any one, and, in our view, rightly so.

       (b) Court of probate - Jurisdiction - Limitation indicated.

       The only question which the Court of probate has to determine is as to whether the document sought to be probated did in fact dispose of the property. The functions of the probate Court are to ascertain whether the will in question is lawfully executed by the testator in a sound disposing state of mind, without coercion or undue influence and that it has been duly attested by the witnesses, as required by law. The probate Court is required to determine whether the document is of testamentory nature and whether the executors applying for the probate are entitled to be constituted the legal representatives of the deceased. The primary function of the probate Court is to deal with the factum and due execution of the will, and it would not go into the question of validity of the provisions of the will. A Court of probate will construe the will, so far as necessary, to determine what documents should be admitted to probate and to whom administration should be granted.

       (c) Will - Execution of - Court held, validly established not merely from deposition of K and M attesting witnesses but also from the nature of the Will and statements recorded on oath by Sub-Registrar on the Will - Court also felt satisfied that testatrix was in good health at the relevant time and that she used to regularly visit temple - She was in total command of the situation & had made the Will after due deliberation - Contention that Will was not got registered during the life time of testatrix as also the fact that it was presented by the propounders for registration after her death which registration was not compulsory should be taken as suspicious cireumstances has no merit because such presentation is a statutory recognised process.

       The execution of the will, Exh.77, by the testatrix is satisfactorily proved in accordance with the provisions of Sec. 63 of the Indian Succession Act read with Section 68 of the Evidence Act. Even if, for the sake of argument Chandulals deposition is not taken into account as an attesting witness, Maheshbhai J.Shah, the Justice of the Peace, was clearly an attesting witness, whose evidence established that the will was duly executed by the testatrix in presence of the attesting witnesses, Chimanlal Jivanlal and Chandulal Jagannath. Chimanlal Jivanlal was bed-ridden and could not have appeared for giving evidence. Since the Justice of the Peace, Maheshbhai J. Shah, was also one of the attesting witnesses, who had proved the fact that Chimanlal Jivanlal had signed as an attesting witness, no adverse inference can be drawn from the fact that the deposition of Chimanlal Jivanlal was not recorded by issuing a commission, for which the propounders could have applied. We are clearly of the view that not only the execution of the will stands validly established from the deposition of Kesuprasad Jani and Maheshbhai J.Shah, the Justice of the Peace, as well as from the nature of the will and the statements recorded on oath by the Sub Registrar on the will, even Chandulal Jagannaths deposition clearly supports the fact that the will was duly executed.

       From the evidence on record, we are not only satisfied that the testatrix was in good health and that she used to regularly visit temple, we are also fully satisfied that she was in total command of the situation and had made the will after due deliberation. From the tenor of the will, it is clear that she did not miss any important aspect and was also aware of the manner in which she was requiring her properties to be dealt with. Several particulars, which we have narrated while referring to the will, could never have been incorporated without her active instructions and understanding.

       What more evidence is required for vouchsafing the sterling state of mind of this grand old lady, who was fully in command of her estate and did exactly what she had desired by making detailed provisions regarding her property, which she declared to be disposed of after her death, under the will, Exh.77? There is evidence on record to show that Janardhan ill-treated her in her last days and their relations were scrained for nearly a year prior to the making of the will. Despite that, she did not choose to wholly disinherit Janardhan, which reflects her nobility. The property, which had devolved on her from her husbands side, she did bequeath under the will to Janardhan, which fact is hardly noticed during the trial- proceedings. It is only when the will was being analysed before this Court that it came to the fore that Janardhan was also given valuable property under the will. The properties, which she had received from her father, have been dealt with separately and sensibly, in keeping up with the desires which were expressed by her father in his will of 1928 and there is much common in thinking of the daughter and her father, if we see the nature of the will, which was executed by her father, as also the deeds creating public trusts, which documents are at Exhs. 64,65 and 66. The will Ex.77 is rational on the face of it and has been duly executed. The evidence of the usual habits and course of life is of greater weight in absence of any reliable evidence of mental incapacity, and we are satisfied from the evidence on record as to the usual habits and course of life of the testatrix and the nature of the will and the manner of its execution that it has been duly executed, meriting the probate at the instance of the executors.

       The contention that the fact that the will was not got registered during the lifetime of Chandanben should be taken as a suspicious circumstances, as also the fact that it was presented by the propounders for registration after her death, which registration was not compulsory, has no merit. Presentation of the will, after the testatrixs death for registration by itself cannot be treated as a suspicious circumstance, because such presentation of the will by the executors is a statutorily recognised process, as can be seen from the provisions of Sec. 41(2) of the Registration Act. Sec. 41(2) of the Regstration Act, 1908, inter alia, provides that a will presented for registration by a person other than the testator, who is entitled to present it, shall be registered, if the registering office is satisfied that the will was executed by the testator, who is dead, and that the person presenting the will is, under Sec. 40, entitled to present the same. Under Sec. 40(1), the testator, or, after his death, any person claiming as executor or otherwise under a will, may present the will to any Registrar or Sub-Registrar for registration. In view of this statutory procedure enabling the executor to present the will for registration after the death of the testator, presentation of such will by the executor for its registration, after the death of the testatrix can never, by itself, be regarded as a suspicious circumstance in the matter of the execution of the will and no adverse inference can be drawn against the propounders, as is sought to be suggested on behalf of the appellants on that count.