CALCUTTA HIGH COURT
Arijit Banerjee, J.
Ashok Kothari —Plaintiff
versus
Dipti Bavishi —Caveatrix
GA 1745 of 2013, TS 5 of 2007, PLA 116 of 2004
Decided on 17.8.2020

IMPORTANT POINTS
Propounder—The testamentary capacity of the propounder must also beestablished. The propounder must explain to the satisfaction of the Courtsuspicious circumstances, if any, surrounding the execution of the Will.
K. Will —Execution of Valid Will — Authenticated photocopy of Will —Admission to Probate until the original or a properly authenticated copy of the Will is produced —When the photocopy that is produced is an authenticated photocopy of the Will in question, the question of limited grant until the original or a properly authenticated copy of the Will is produced as contemplated in Section 237 of the Indian Succession Act, would not arise.

Headnote:

(a) Civil Procedure Code, 1908—Testamentary Suit— Probate Court —Title disputes cannot be gone into by the probate Court since the probate Court does not decide the question of title to properties. [Para 5]

(b) Civil Procedure Code, 1908 —Testamentary Suit—Probate Court—Scope of testamentary suit—The scope of probate court is limited— Probate Court has to decide only whether or not, the Will which is being propounded by producing an authenticated photocopy thereof, is genuine. If the Will is admitted to probate, consequences will follow in accordance with law. [Para 5]

A. Will —Execution of —Suspicious circumstances—Propunder of Will—A person intends his property to pass equally to his natural heirs there is no necessity at all of executing a Will. It is true that the propounder of a Will has to remove all suspicious circumstances. In the instant case the fact that the natural heirs or some of them have been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be a suspicious circumstance.

B. Will —Execution of—Words and Phrases —Suspicion—Suspicion means doubt, conjecture or mistrust. [Para 31]

C. Civil Procedure Code, 1908—Testamentary Suit—Probate Court—Territorial Jurisdiction—When some properties are located in territory of a court, the Court is not precluded form deciding the issue. [Para 32]

D. Civil Procedure Code, 1908 —Testamentary Suit—Indian Succession Act — S. 237—Probate of copy or draft of lost Will —When entitled to—Such grant would be limited until the original or a properly authenticated copy of the Will is produced. [Para 33]

E. Civil Procedure Code, 1908—Testamentary Suit — Indian Succession Act—Section 2(b)—Codicil —In the instant case on a document testator merely recorded his reason for bequeathing only the said Relief Bonds to One and nothing more. Such recording of reasons or explanation was not necessary under the relevant law to attach sanctity to the Will in question as such a document is not a codicil. [Para 36]

F. Civil Procedure Code, 1908—Testamentary Suit—Indian Succession Act—Section 2(b)— Codicil—Words and Phrases—The word ‘Codicil’ is derived from the Roman word ‘Codicillus’ meaning an informal Will.

[Para 37]

G. Civil Procedure Code, 1908—Testamentary Suit— Indian Succession Act—Section 2(b) —Codicil —Supplementary to Will— Probate— A Court will admit to probate a Codicil which is duly attested and treat it as a Codicil of the Will referred to therein. A Codicil is of similar nature to a Will and in general is supplementary to a Will previously made and is executed for the purpose of adding or varying or revoking the provisions of that Will. [Para 37]

H. Civil Procedure Code, 1908—Testamentary Suit —Indian Succession Act—Section 2(b), 63 — Codicil —Unprivileged Will — Manner in which it has to be executed — The requirements contained in S.63 of Indian Succession act are mandatory and are to be strictly adhered to the testator to execute a legally valid Will. The Indian Succession Act does not provide the way a Codicil is required to be executed. However, since a Codicil is akin to a Will and generally is executed to alter or revoke the provisions of a Will, the procedure that has to be followed for execution of an unprivileged Will as laid down in Section 63 of the Indian Succession Act, must also be followed for execution of a valid Codicil. [Para 38]

Mantharama Murthy (Law of Wills, 5th Edition, Page-322, Considered.

I. Evidence Act, 1872—Sections 63, 64, 65 — Indian Succession Act —Section 237— Proof of Document by Secondary Evidence — Authenticated photocopy of the original Will—Section 237 of the Indian Succession Act contemplates that when a Will has been lost or mislaid since the testator’s death, a copy of the Will may be admitted to probate limited until the original or a properly authenticated copy of it is produced. The document in question can be admitted to probate subject to the other conditions of valid execution of a Will being satisfied. [Para 45]

J. Will —Execution of Valid Will— Burden of Proof —The burden of proving valid execution of a Will and that it is a genuinedocument is squarely on the propounder. He must establish that the testator hassigned the Will within his free will and having a sound disposition of mind andunderstood the nature and effect of the instrument on which he was appendinghis signature. [Para 54]