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High Court Of Madhya Pradesh
SHACHEENDRA DWIVEDI, FAIZAN UDDIN
OM PRAKASH SHARMA - Appellant
Versus
SARASWATIBAI - Respondents
L. P. A. 9 Of 1991
Decided On : 05/23/1997
WILL - PROBATE - GENUINENESS - BURDEN OF PROOF - SUSPICIOUS CIRCUMSTANCES - EXECUTION - VALIDITY - EVIDENCE ACT, 1872, SECTION 68 - INDIAN SUCCESSION ACT, 1925, SECTIONS 63, 276(1).
Fact of the Case:
Appellant applied for probate of a will allegedly executed by the deceased, Smt. Mannu Bai Kelkar, in his favor. The application was dismissed by the probate court and the single bench of the High Court. The appellant challenged the dismissal in a Letters Patent Appeal.
Finding of the Court:
The court found that the appellant failed to prove the genuineness and authenticity of the will. The will was shrouded with suspicion, which could not be cleared by the propounder. The appellant did not pay or deposit any rent for the house he occupied as a tenant of Smt. Mannu Bai since 1967.
Issues: 1. Whether the appellant had proved the due execution of the will and removed the suspicious circumstances surrounding the document? 2. Whether the will was genuine and authentic?
Ratio Decidendi: 1. The burden of proof lies on the person who sets up the theory of a will to prove its due execution and to remove the suspicious circumstances surrounding the document. 2. A will is a solemn document, and its genuineness and authenticity must be established by trustworthy and unimpeachable evidence. 3. The court can consider the circumstances brought out in the evidence, the nature and contents of the document itself, and the surrounding circumstances to reach a proper conclusion on the nature of the evidence adduced by the party.
Final Decision: The appeal was dismissed, leaving the parties to bear their own costs.
( 1 ) THIS Letters Patent Appeal, which is an intra Court appeal, has been preferred by the appellant, who was an applicant before the probate Court and had applied for the grant of probate of the will dated 25-12-1996 Ex. P/1, which was refused by probate Court, dismissing his application.
( 2 ) THE appeal preferred by the appellant was also dismissed by the learned single Bench of this Court.
( 3 ) IT was stated by the appellant in his application, for probating the Will, that the Will annexed (although it was not annexed) with the application is the last Will and testament of Smt. Mannu Bai Kelkar, which was duly executed by her in favour of the appellant in the presence of witnesses. One Ganpat Rao, the husband of respondent No. 1 and father of respondents 2 to 7, had objected to the grant.
( 4 ) THE application for the grant of probate was ultimately dismissed by the probate Court, i. e. IVth Additional Judge to the Court of District Judge, Gwalior, on the consideration of the oral and documentary evidence led by both the parties, by order dated 21-12-1988. Thereafter, an appeal was preferred against the order of the probate Court. The same was heard and dismissed by the learned single Bench. This Letters Patent Appeal has been preferred thereafter challenging the order of the learned single Bench.
( 5 ) THE case has a chequered history. Deceased Mannu Bai, the stated testator of the will, was in Government service as teacher. She had owned a house. A portion of which was occupied by the appellant's father named Omkar Lal as tenant and the other portion was occupied by the other tenant Ram Swaroop. The remaining portion of the house was in the use and occupation of Smt. Mannu Bai.
( 6 ) IT was the case of the appellant that Mannu Bai gave the love and affection to the appellant as if he was her son, and he was also stated to have been brought up by her. She was stated to have remained unmarried. On 25-12-1966 , she is stated to have executed a will in his favour of a part of the house and had appointed the appellant's father Omkar Lal as an executor of the said Will.
( 7 ) OBJECTOR Ganpat Rao Vaidya had raised the objections on the above stated application, submitting that he was the husband of Smt. Mannu Bai and had interest in the bequeathed property. He had challenged the execution of the will and had submitted that Smt. Mannu Bai had not executed any Will, but the stated Will was forged and the very statement made in the Will was utterly wrong that Mannu Bai had no near relations. It was also stated by the objector that Mannu Bai had married the objector Ganpat Rao Vaidya in the year 1952 and had thereafter changed her surname to 'vaidya' as her original surname was Kelkar. After marriage she was addressing herself as Mannu Bai Vaidya and had also applied for such a change of her name in the School records. Her service record and also the School record, as was evident from Ex. NA/4 to NA/8, showed that her name became Mannu Bai Vaidya from the year 1952 onwards.
( 8 ) RESPONDENT Ganpat Rao Vaidya after the death of his stated wife Mannu Bai, had applied for the grant of succession certificate in relation to her debts and securities, including Provident Fund, Pension and Gratuity. In the succession case, the appellant as a conscious citizen only had objected to its grant to Ganpat Rao Vaidya, on the ground that deceased Smt. Mannu Bai had left no successor and, therefore, the property was to vest in the Government. Curiously, he had not stated at that stage that any Will was executed by the deceased lady in his favour. However, after the Succession Case No. 34/67 was decided, he had preferred a revision petition before this Court bearing No. 54/68, wherein he had challenged the fact that Ganpat Rao Vaidya was not the husband of the deceased.
( 9 ) THE single Bench of this Court had observed in that case that from the service record, which was of unimpeachable nature, the deceased was described a
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