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2023 Supreme(Online)(Bom) 2269

HIGH COURT OF BOMBAY
Milind N. Jadhav, J
Pravin Laxmidas Tanna – Appellant
Versus
Kusumben A. Kakkad (Since Deceased) – Respondent
TESTAMENTARY SUIT NO. 32 OF 2004 IN TESTAMENTARY PETITION NO. 254 OF 2004

Advocates:
For the Appellants/Petitioners: Mr. Jamsheed Master, Mr. Rajesh Vanjara
For the Respondents: Mr. Piyush Shah, Mr. Dishang Shah, Ms. Hetta Sagar

The court held that the probate court's role is to determine the execution validity and testamentary capacity without assessing the distribution's equitability, affirming that execution was lawful here.

Headnote:(A) Indian Succession Act, 1925 - Sections 63 - Probate - Grant of probate for the last Will and Testament of deceased, duly executed in accordance with law and attested by witnesses; validity and genuineness of the Will upheld despite claims of forgery and undue influence. (Paras 6, 26-30)

(B) Legal Principles - The Probate Court's jurisdiction is limited to determining the validity of a Will's execution and the testamentary capacity of the testator, and it is not to question bequests or the equitable distribution of the estate upon such grounds. (Para 27)

Facts of the case:
Plaintiff sought probate for the Will dated 15.01.2004, claimed to be executed by the deceased on the same date she passed away. The defendants, the deceased's sister and her representatives, contested the Will's validity, alleging lack of testamentary capacity and genuineness. (Para 1, 3-5)

Findings of Court:
The Court found that the Will was duly executed while the testatrix was of sound mind, with the evidence supporting the claim of proper execution. Allegations of undue influence and forgery were not substantiated. (Paras 6, 26-30)

Issues: The critical issues were whether the Will was validly executed and whether the testatrix was of sound mind at the time of execution. The Court focused on the genuineness of the Will and the credibility of the evidence provided. (Para 6)

Ratio Decidendi: The Court emphasized that for probate to be granted, it must ensure the Will's execution and the testatrix's capacity were lawful, according to statutory provisions. The evidence presented by the plaintiff was deemed credible, while defendants failed to provide sufficient evidence to challenge the Will's validity. (Paras 19-29)

Result: The Court granted probate of the Will in favor of the Plaintiff, declaring it valid. (Para 30)

Table of Content
1. probate application and caveat details. (Para 1 , 2 , 3 , 5)
2. defendants argue the will's validity. (Para 6 , 7)
3. evidence provided during hearings. (Para 8 , 10 , 19)
4. legal principles of probate. (Para 17 , 18)
5. court's judgment on will's execution. (Para 25 , 26 , 29)
6. final proclamation of will's validity. (Para 30 , 31)

JUDGMENT:

1. This Suit is filed by Plaintiff seeking probate of the last Will and Testament dated 15.01.2004 of deceased Savita Hiralal Bhindora alias Savita Hiralal who expired on 15.01.2004 in Mumbai. Plaintiff is the maternal cousin of deceased. He is one of the Executors named in the Will, the other two being Deepak Laxmidas Tanna and Suresh Laxmidas Tanna. Deceased expired as an unmarried woman on the date of execution of the Will at night as stated in the Petition. Parents of deceased predeceased her. Testamentary Petition seeking grant of Probate was filed on 12.03.2004 by Plaintiff as Executor and beneficiary, reserving the rights of the two other Executors to apply for probate later.

2. Testatrix executed Will dated 15.01.2004 which is in Gujarati. Testatrix expired on the same date i.e. 15.01.2004 at 10.30 p.m. in the night. Execution of Will is witnessed by V. G. Trivedi, Advocate, Bombay High Court and Dr. Mahendra C. Shah, Medical Practitioner (Doctor). Both attesting witnesses filed their Affidavits confirming execution of Will dated 15.01.2004 in their presence.

3. On service of citation, deceased original Defendant / Caveatrix Smt. Kusumben Amrutlal Kakkad, married sister of Testatrix filed Caveat duly supported by Affidavit-in-support dated 11.08.2004 through her Constituted Power of Attorney i.e. her son Harish Amrutlal Kakkad [present Defendant No.1(a)]. Defendants have pleaded that Smt. Kusumben was the only legal heir of deceased being her real sister and therefore disputed genuineness of the Will as the deceased Testatrix had informed her that she would bequeath 50% of her estate to her and the balance 50% to charity.

4. Testamentary Petition No.254 of 2004 was converted to Testamentary Suit No.34 of 2004.

5. The original Defendant expired on 02.06.2008 and her legal heirs i.e. the present Defendants were impleaded. It is Defendants’ case that signature of deceased on the Will is not her genuine signature and they do not admit the same as genuine and real. That apart, defence is raised on the ground that valuation of the subject property of deceased is undervalued. It is alleged that various other movable properties belonging to deceased have not been disclosed by Plaintiff. Finally, it is submitted that original Defendant being real sister of deceased is the only true legal heir to the estate of deceased.

6. By order dated 18.08.2017, this Court framed the following issues for adjudication:-

Sr. No.	Issues	Findings
1	Whether Plaintiff proves that deceased, Savita Hiralal Bhindora executed the Last Will and Testament dated 15th January 2004?	Yes.
2	Whether Defendants prove that deceased was not physically and mentally fit to execute the Will on 15th January 2004?	No.
3	Whether Defendants prove that Will dated 15th January 2004 is a forged and fabricated document?	No.
4	Whether Plaintiff is entitled for probate of the last Will and Testament dated 15th January 2004?	Yes.
5	What order and Decree?	As per final order.

order

7. I have heard Mr. Jamsheed Master, learned Advocate appearing for the Plaintiff and Mr. Piyush Shah, learned Advocate appearing for the Defendants and with their able assistance perused the pleadings and record of the case.

8. Plaintiff led evidence of Dr. Mahendra C. Shah (PW-1), one of the attesting witness and Plaintiff himself (PW-2) in support of execution of the Will. Dr. Mahendra C. Shah (PW-1) filed his Affidavit-in-lieu of examination-in-chief dated 29.09.2007 and was cross-examined by Defendants before the Court Commissioner on 15.10.2018. Thereafter, Plaintiff (PW-2) filed his Affidavit-in-lieu of examination-in-chief dated 07.12.2018 and was cross-examined by

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2023 Supreme(Online)(Bom) 2269

HIGH COURT OF BOMBAYMilind N. Jadhav, JPravin Laxmidas Tanna – AppellantVersusKusumben A. Kakkad (Since Deceased) – RespondentTESTAMENTARY SUIT NO. 32 OF 2004 IN TESTAMENTARY PETITION NO. 254 OF 2004

The court held that the probate court's role is to determine the execution validity and testamentary capacity without assessing the distribution's equitability, affirming that execution was lawful here.

HIGH COURT OF BOMBAY
Milind N. Jadhav, J
Pravin Laxmidas Tanna – Appellant
Versus
Kusumben A. Kakkad (Since Deceased) – Respondent
TESTAMENTARY SUIT NO. 32 OF 2004 IN TESTAMENTARY PETITION NO. 254 OF 2004