2020 Supreme(SC) 375

SUPREME COURT OF INDIA
A.M. Khanwilkar, Dinesh Maheshwari, JJ.
KAVITA KANWAR – Appellant(s)
Vs.
MRS. PAMELA MEHTA & ORS. – Respondent(s)
Civil Appeal No. 3688 of 2017
Decided on : 19-05-2020

IMPORTANT POINTS
(1) Any of factors taken into account by Trial Court and High Court, by itself and standing alone, cannot operate against validity of propounded Will.
(2) Even in a regular civil suit, merely for want of written statement by a defendant, it is not necessary that a judgment would always follow in favour of the plaintiff without proof of basic facts and without making out a clear case of right to relief.
(3) Probate proceeding is not merely inter-partes proceeding but leads to judgment in rem and even when no one contests, it does not ipso facto lead to grant of probate.

Headnote:

(A) Indian Succession Act, 1925 – Section 276 read with Sections 61 and 63 – Indian Evidence Act, 1872 – Section 68 – Probate of Will – A Will or any portion thereof, making of which has been caused by fraud or coercion or by any such importunity that has taken away free agency of testator, is declared to be void – Any irrelevant misdescription or error is not to operate against Will and approach has to be to give effect to a Will once it is found to have been executed in sound state of mind by testator while exercising his own free will – However, extrinsic evidence is inadmissible in case of patent ambiguity or deficiency in Will and a Will or bequest not expressive of any definite intention is declared void for uncertainty – When Will is surrounded by suspicious circumstances, Court would expect that legitimate suspicion should be removed before document in question is accepted as last Will of testator – Any document propounded as a Will cannot be used as evidence unless at least one attesting witness has been examined for the purpose of proving its execution, if such witness is available and is capable of giving evidence – Probate proceeding is ultimately a matter of conscience of Court – Irrespective of whether any plea in opposition is taken or not, Propounder of Will is required to satisfy conscience of Court with removal of all suspicious circumstances – By very nature and consequence of this proceeding, filing or non-filing of written statement or objections by any party pales into insignificance and is of no effect – Probate proceeding is not merely inter-partes proceeding but leads to judgment in rem and even when no one contests, it does not ipso facto lead to grant of probate – Probate is granted only on proof of Will as also on removal of suspicious circumstances, if there be any, to final satisfaction of conscience of Court. (Paras 17.8, 23, 23.2, 23.3 and 25.1)

(B) Indian Succession Act, 1925 – Section 276 read with Sections 61 and 63 – Indian Evidence Act, 1872 – Section 68 – Probate of Will – Trial Court has returned findings against appellant after due appreciation of evidence and High Court has affirmed such findings after independent and thorough examination of evidence – Attesting witnesses were unreliable and there were contradictions in statements of witnesses – An individual factor may not be decisive but, if after taking all factors together, conscience of Court is not satisfied that Will in question truly represents last wish and propositions of testator, Will cannot get approval of Court – Factor of unexplained unequal distribution of property is confounded by two major factors related with making of Will in question: one, active role played by appellant in the process; and second, virtual exclusion of other children of testatrix in the process – Added feature surrounding execution of Will had been of unexplained exclusion of respondent No.1 from the process – Appellant, by her conduct of attempting to avoid the fact that she was aware of making of Will, at least two days before its execution, has only strengthened suspicion arising because of her active participation in execution of Will while keeping other children of testatrix excluded from the process – Practically, it was a case of the testatrix merely copying, on dotted lines, text already given to her – Sanctity attached to a bequeath in handwriting of testator presupposes a coordinated work of a free hand and a free mind – In present case, it is difficult to be satisfied that what is found written in hand by testatrix had been dictated by her own mind so as to make it an expression of her own free will – None of stipulations could have been legally made by testatrix, nor they could be enforced in any proceedings – No one can convey a better title than what he had – Testatrix never had any right over property belonging to appellant and could not have conveyed to respondent No.1 any property which was of ownership of appellant or which might be acquired or raised by appellant in future by her own funds – On this ground alone, Will in question is required to be considered void – Will in question is surrounded by various suspicious circumstances which are material in nature and which have gone unexplained – Appellant, while seeking probate, has not only failed to remove and clear suspicious circumstances but has even contributed her own part in lending more weight to each and every suspicious circumstance – Will in question cannot be probated from any standpoint – High Court, after independent analysis of evidence on record, concurred with major findings of Trial Court as regards various suspicious circumstances which remained unexplained and which operated against genuineness of document propounded as Will of mother of parties – Trial Court and High Court have concurrently found some such suspicious circumstances which are of material bearing and which have remained unexplained – Appeal dismissed with costs quantified at Rs. 50,000/-. (Paras 26.1, 27, 28, 29.3, 29.4, 29.5.2, 30.3, 30.6, 31, 37, 38 and 39)

(C) Civil Procedure Code, 1908 – Order VIII Rule 1 – Written statement – Reference to provisions of Order VIII Rule 10, Order XIV Rule 1(6) and Order XV Rule 27 remains inapposite in relation to proceeding before a Probate Court – Even in a regular civil suit, merely for want of written statement by a defendant, it is not necessary that a judgment would always follow in favour of the plaintiff without proof of basic facts and without making out a clear case of right to relief – Regular civil suit usually leads to a judgment inter-partes and not in rem – Even then, requirement of proof is not obviated – When proceeding is solemn in nature like that for probate, which leads to judgment in rem, mere non-filing of caveat or opposition is not decisive of matter – Propounder, in every matter for grant of probate, irrespective of opposition or even admission by any party, is required to satisfy conscience of Court, with removal of suspicious circumstances, if any. (Paras 25.2 and 25.4)

Facts of the Case:

Prayer of the appellant for grant of probate in relation to the Will in question has been declined concurrently by the Trial Court and by the High Court essentially after finding several unexplained suspicious circumstances surrounding the Will in question. Being aggrieved, the petitioner-appellant, who was appointed as the executor of the Will in question and who was, admittedly, the major beneficiary thereunder, has preferred this appeal while maintaining that execution of Will by the testatrix with due compliance of all the requirements of law has been clearly established on record and there has not been any such suspicious circumstance which might operate against the genuineness of the Will in question. Basic point for determination in this appeal is as to whether the Trial Court and the High Court were justified in declining to grant probate in relation to the Will dated 20.05.2003 as prayed for.

Findings of the Court:

It is difficult to be satisfied that what is literally coming out of the document in question had been the last wish and desire of the testatrix as regards succession of her estate. On the contrary, we find enough and cogent reasons to affirm the material findings of the Trial Court and the High Court that it cannot be said that the testatrix executed and signed the document in question as her Will after having understood the meaning, effect and purport of the contents.

Result : Appeal dismissed with costs.