1995 Supreme(MP) 381

High Court Of Madhya Pradesh
R. S. GARG
JAMUNABAI - Appellant
Versus
SURENDRAKUMAR - Respondents
Misc. Appeal 142 Of 1988
Decided On : 03/22/1995

A Hindu governed by Mitakshara Law can execute a Will even in relation to the joint family property in which he has a share.

Headnote:

INDIAN SUCCESSION ACT - WILL - PROBATE - OBJECTIONS - EXECUTION AND ATTESTATION - TESTAMENTARY CAPACITY - UNDUE INFLUENCE - BURDEN OF PROOF - GRANT OF PROBATE.

Fact of the Case:

The respondent filed an application under Section 276 of the Indian Succession Act, 1925, alleging that the deceased Dujaia, who was the real elder brother of respondent No. 1, executed a will on 20/04/1976 in favour of the respondent No. 1 whereunder the properties were bequeathed in favour of the respondent No. 1. It was further averred that Dujaia having expired on 5-6-1976, the respondent No. 1 has succeeded to the property. According to the respondent No. 1 the properties described in the Will would be succeeded by him which include moveables and immoveables. The application was filed in the year 1977 and a public notice was issued in daily newspaper 'swadesh'. As no objections were received, by order dated 12-8-1977 granting the application of respondent No. 1 a probate certificate was issued in his favour. But later on certain objection were filed on which M. J. C. No. 94 of 1977 was registered and in view of the final order passed in M. J. C. No. 94 of 1977 the probate proceedings were reopened. The objectors filed their objections against the grant of the certificate alleging therein that the alleged Will is sham, bogus and is a result of forgery; it has not been signed or executed by deceased Dujain, but in fact the respondent No. 1, to grab the property of deceased Dujaia and mar upon the rights of the other successors has concocted the said Will. They also submitted that the alleged Will in that does not fall within the definition of the last testamentary disposition of the deceased but in fact is declaration of the rights so also is a partition deed. As the same is not on proper stamps it is inadmissible in evidence.

Finding of the Court:

The trial court recorded the statements of the witnesses, received the documents in evidence, and after hearing the parties by its impugned judgment dated 4-7-1988, rejecting the objections held that the document in fact is a Will and is not a document under which rights were declared. It also found that the execution and attestation of the will was properly and legally proved, the Will is not invalid though it relates to the Joint family property and the deceased was not in a good condition of disposition when he executed the will. Accordingly rejecting the objections it ordered grant of probate certificate with costs.

Issues: 1. Whether the document in dispute is a Will or not? 2. Whether the execution and attestation of the Will have been properly proved? 3. Whether the Will is shrouded with clouds of doubtful circumstances? 4. Whether a Will in relation to the joint family property could be executed? 5. Whether there was a very short time gap between the execution of the alleged Will and the death which shows that the deceased was not in a fit mental condition? 6. Whether the respondent No. 1 after marrying a Christian girl has ceased to be a Hindu and is professing Christianity? 7. Whether the probate application was not in accordance with the provisions of Section 279/281 of the Indian Succession Act?

Ratio Decidendi: 1. A Will is a legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death. (Para 7) 2. The execution and attestation of the Will have been properly proved as required under the law. (Para 13) 3. The Will is not shrouded with suspicious circumstances or is clouded. (Para 19) 4. Under Section 30 of the Hindu Succession Act, 1956, any Hindu may dispose of by Will or other testamentary disposition any property, which is capable of being so disposed of by him, in accordance with the provisions of the Indian Succession Act, 1925. (Para 20) 5. There is nothing on the record to show that the deceased was suffering with such ailment which could affect his mental condition. (Para 22) 6. The evidence on record does not show that P. W. 1 Surendrakumar after marrying a Christian girl has started professing Christianity. (Para 24) 7. The non-observance of Section 281 of the Indian Succession Act is not fatal to the maintainability of the petition. (Para 27)

Final Decision: The appeal is dismissed.