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2010 Supreme(MP) 695
IN THE HIGH COURT OF MADHYA PRADESH (GWALIOR BENCH)
Abhay M. Naik, J.
Smt. Urmila Tiwari and Ors.
Vs.
Smt. Kanti Devi and Anr.
Misc. Appeal No. 737/2003
Decided On: 20.09.2010
A testator has the right to devise or bequeath property, even if it deprives the natural heirs.
Headnote:
Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act 1872 are relevant for the purpose of this appeal. Section 63 sets out the rules for the execution of unprivileged Wills, including the requirement for the testator to sign or affix their mark to the Will and for the Will to be attested by two or more witnesses. Section 68 provides for the proof of execution of a document required by law to be attested. The court referred to these provisions to determine the validity of the Will. The court also considered the relevant provisions of the Payment of Gratuity Act, 1972 and the Employees Provident Funds Scheme, 1952, which govern the entitlement to service benefits.
Fact of the Case:
The deceased was an employee of Military Engineering Services (M.E.S.) and was married to respondent No. 1. After his death, the appellants submitted an application for grant of probate in respect of the Will alleged to have been executed by the deceased. The trial judge dismissed the application, doubting the authenticity of the Will. The appellants appealed against this decision.
Finding of the Court:
The court examined the evidence and found that the Will had been duly proved in accordance with the law. The court also considered the relevant provisions of the Indian Succession Act and the Indian Evidence Act. It held that the reasons given by the trial judge for doubting the Will were not acceptable. The court referred to precedents that established that a testator has the right to devise or bequeath property, even if it deprives the natural heirs. The court also noted that the respondent No. 1, being the legally wedded wife, was entitled to service benefits, but the appellants were not entitled to gratuity and provident fund on the basis of the Will. The court directed the trial judge to grant probate, but with a specific mention that the appellants would not be entitled to receive gratuity and provident fund.
Ratio Decidendi: The Will was duly proved in accordance with the law. A testator has the right to devise or bequeath property, even if it deprives the natural heirs. The appellants were not entitled to gratuity and provident fund on the basis of the Will. The court directed the trial judge to grant probate, but with a specific mention that the appellants would not be entitled to receive gratuity and provident fund.
Result: The appeal is allowed in part. The Will is found to have been duly proved. The trial judge is directed to grant probate, but with a specific mention that the appellants will not be entitled to receive gratuity and provident fund on the strength of the probate. The parties may seek other legal recourses for seeking relief in respect of gratuity and provident fund.
Abhay M. Naik, J.
1. Facts relevant for the purpose of this appeal are that the deceased Harendra Nath Tiwari @ Harendra Kumar Tiwari was an employee of Military Engineering Services (M.E.S.) and was posted as Refrigerator Mechanic in the office of Garrison Engineer, Airforce Station, Maharajpura, Gwalior. He was married to Kanti Devi (respondent No. 1) on 30.05.1983, whose name was entered in the office record, as wife of Harendra Nath Tiwari. He died on 19.04.1995.
2. After death of Harendra Nath Tiwari, applicants/appellants submitted an application under Section 276 of the Indian Succession Act, for grant of probate in respect of the Will alleged to have been executed by the deceased on 11.04.1995 in favour of appellant No. 1. It is alleged in the application that Kanti Devi, respondent No. 1 separated herself from Harendra Nath after 1 years from the date of marriage and, thus, they had separated themselves from each other. Harendra Nath, thereafter married to appellant No. 1 on 19.04.1984, according to Hindu customs. Applicants No. 2 & 3 were born to appellant No. 1 from Harendra Nath. Appellant No. 1 resided with Harendra Nath as his wife, since 1984 which was well within the knowledge of respondent No. 1. Appellant No. 1 made an application for release of service benefits of Harendra Nath in her favour, which was not accepted despite her entitlement. Otherwise also, in view of the Will having been executed in favour of appellant No. 1, she is entitled to service benefits of the deceased. Appellants prayed that probate may be issued in their favour in respect of the Will dated 11.04.1995 executed by the deceased Harendra Nath, during his lifetime.
3. Respondent No. 1 submitted her reply refuting thereby the claim of the appellants. She inter-alia stated that she is widow of the deceased. Her marriage with Harendra Nath was not dissolved, at all. It was denied that she separated herself from Harendra Nath. On the contrary, it was stated, in specific, that she has been residing throughout with the in-laws in their native village. It has been denied in the reply that appellant No. 1 was married to Harendra Nath and appellants No. 2 & 3 were born from the relationship of Harendra Nath with appellant No. 1. Alleged Will dated 11.04.1995 has been disputed as a forged and concocted one. It is stated in specific that applicants/appellants are not legally entitled to the service benefits payable to deceased Harendra Nath, and the application for grant of probate is therefore liable to be dismissed.
4. Learned Trial Judge after recording evidence held that Will setup by the appellants is doubtful. Alleged Will dated 11.04.1995 is not found to be proved in accordance with law, therefore, the application for grant of probate has been dismissed by the learned Trial Judge vide impugned judgment dated 29.08.2003.
5. Aggrieved by the aforesaid, present appeal has been preferred, wherein, Shri J.S. Bhati and Shri B.B. Shukla, learned Counsel for the parties made their respective submissions.
6. It is contended by Shri Bhati, learned Counsel for the appellants that the Will (Ex.P-1) has been duly proved in accordance with Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872 and the learned Trial Judge has committed an illegality in holding otherwise. The reasons assigned by the learned Trial Judge for disbelieving the Will according to appellants' learned Counsel are not sustainable in law. Thus, it is submitted that probate ought to have been granted in favour of appellants.
7. Per contra, Shri B.B. Shukla, learned Counsel for the respondent No. 1, it is submitted that the Will (Ex.P-1) has been rightly disbelieved by the learned Trial Court and the reasons assigned by the learned Trial Judge are not liable to be interfered with.
8. Apart from the rival contentions, this Court is of the opinion that the claim setup on the strength of the Will is in respect of service benefits including gratuity a
