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1994 (0) MPLJ 20
A.R. Tiwari, J.
Vasudeo Mahadeo Paranjape
vs
Suman Anant Paranjape And Ors.
DECIDED ON : 5 July, 1993
INDIAN SUCCESSION ACT, 1925 - SECTION 281 - PROBATE - EXECUTION AND AUTHENTICITY - BURDEN OF PROOF - SUSPICIOUS CIRCUMSTANCES - DISMISSAL OF PROBATE APPLICATION.
Fact of the Case:
The appellant challenged the grant of probate of a will dated 3rd November, 1974, alleged to be executed by late Mahadeo Paranjape in favor of his daughter-in-law, the respondent. The appellant contended that the testator lacked testamentary capacity and did not possess a sound disposing mind at the material time, and that the will was forged.
Finding of the Court:
The court found that the propounder of the will failed to prove its due and valid execution and to dispel the suspicious circumstances surrounding it. The court held that the testator did not understand the nature and effect of the disposition as contained in the will, and that the evidence was insufficient and unsatisfactory to establish the genuineness and authenticity of the will.
Issues: 1. Whether the propounder of the will discharged the burden of proving its due and valid execution. 2. Whether the suspicious circumstances surrounding the will were dispelled by the propounder. 3. Whether the testator possessed the requisite testamentary capacity and sound disposing mind at the material time.
Ratio Decidendi: 1. The burden of proving the due and valid execution of a will lies on the propounder. 2. Suspicious circumstances surrounding a will require the propounder to provide cogent and satisfactory evidence to dispel them. 3. The testator must possess the requisite testamentary capacity and sound disposing mind at the time of executing the will.
Final Decision: The appeal was allowed, the order granting probate was set aside, and the application for grant of probate was dismissed.
The identification of the property under the will is described in the legal document through references to the annexures attached to the application for probate. Specifically, the property is shown in Annexures A and B, which are associated with the application filed by the respondent for the grant of probate (!) .
Furthermore, the will itself mentions the description of the property, which is intended to include the house and other assets that were to be disposed of as per the testator's instructions (!) .
In summary, the property is identified through the detailed descriptions provided in the annexures accompanying the probate application, and the will references these descriptions to specify the assets involved.
A.R. Tiwari, J.
1. This appeal, filed under Section 299 of the Indian Succession Act, 1925 (for short 'Act'), is directed against the order dated 27th October, 1989, delivered by the Vth Addl. Judge to the Court of the District Judge, Indore in Probate Case No. 67/78, thereby granting Probate of the WILL dated 3rd November, 1974, alleged to be executed by late Mahadeo Paranjape in favour of his daughter-in-law Shrimati Suman, wife of his son Anant.
2. The factual matrix lies in a narrow compass. The Respondent No. 1 (Smt. Suman) filed an application on 8-8-1978 for grant of probate of the will dated 3-11-1974. The testator died on 5-1-1975 at Indore. He was survived by six sons and four daughters. This will is said to be attested by Dinkar (PW-1), the husband of his daughter Smt. Vimal, resident of Dewas and Udaya (PW-2), the husband of his another daughter Smt. Udita, resident of Indore. The description of the property was shown in Annexures-A and B, attached to the aforesaid application. The appellant objected to the grant of probate and denounced the will as forged. It was contended that the testator had lacked the requisite testamentary capacity and had not possessed sound disposing mind at the material time; both physically and mentally, he was an infirm person. The Probate Court, on evaluation of the evidential material both oral and documentary, concluded that Mahadeo executed Will on 3-11-1974 in fit mental condition and that his mental faculty remained satisfactory right upto his death. On the linchpin of this crucial conclusion, the Court allowed the application and granted probate certificate on production of Stamps worth Rs. 1,133.30 Ps. pursuant to the order dated 27-10-1989, impugned in this appeal.
3. I have perused the record and heard Shri Waghmare, Sr. counsel with ShriRavi Waghmare for the appellant and Shri Chaphekar, Sr. Counsel with ShriVasant S. Samvatsar for the Respondent No. 1 and ShriPandey for the respondents Nos. 6, 8, and 10, other respondents opting to be absent.
4. Shri Waghmare has directed manifold attack, scathing in nature, against the impugned order urging the respondent No. 1, propounder of the will, has failed to dispel the doubts and to explain the suspicious circumstances, predigious in number, associated with the alleged will. The points pressed may be catalogued as under-
1) At the relevant time, i.e. 3-11-1974, the testator was 88 years of age and suffered from the disease of paralysis for about 20 years.
2) Prior to the alleged will, the testator had executed the will earlier on 9-4-1971 and there is not satisfactory explanation as to why this had to be superseded by subsequent Will as alleged. The recital in para 2 of the alleged will does not tear up the tenebrosity.
3) Anant, one of the sons, actively participated in the preparation of the Will so as to make his wife, the Respondent No. 1 a beneficiary in destruction of natural succession, but opted to be away from the witness-box.
4) The remaining brothers and daughters were in collusion with Anant and his wife due to strained relations.
5) The counsel (Shri Machalpurkar) and the typist as endorsed on the will, are not examined.
6) The doctors, under whose treatment the testator was, are not examined in proof of the sound disposing mind and thus fit mental condition as put in the issue.
7) The Notary Shanta Kumari Jain (DW- 3), as deposed to by Balwant Vaidya (DW-1), found the testator deprived of the requisite testamentary capacity at the material time.
8) The Propounder withheld the material evidence and thus, failed to explain and remove the suspicious circumstances delivering dent, almost beyond repair, on the alleged genuinenesses of the Will.
9) The Probate Court did not appreciate the evidence in proper perspective and recorded the finding which is not on firm foundation and liable to be subverted.
5. On the other hand, Shri Chaphekar, with his usual vehemence, urged that the aforesaid contentions were evidently non-meritorious an
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