IMPORTANT POINTS
(1) Proof of execution of Will – Even after holding that Will is genuine, it is within jurisdiction of Court to hold that it is not worthy to act upon as being shrouded with suspicious circumstances.
(2) A reasoned judgment of Single Judge cannot be interfered with without deep consideration.

JUDGMENT :

C.T. RAVIKUMAR, J.

1. Judgment dated 22.01.2009 passed by the Division Bench of the High Court of Bombay in Appeal No.574 of 2003 as per which it reversed the judgment dated 07.03.2003 of a learned Single Judge of the High Court in Testamentary Suit No.33 of 1999 is under challenge in this appeal.

2. Heard the learned Senior Counsel appearing for the appellants and the learned counsel appearing for the respondent.

3. To avoid convolution and to confine the consideration only within the scope of the Testamentary Suit which was decided by the learned Single Judge of the High Court, we refer to the facts succinctly only for the disposal of this appeal in terms of what is observed hereinbefore.

4. Myra Philomena Coalho/respondent-plaintiff filed a petition for grant of Letters of Administration (for short, ‘LoA’) with the Will annexed of the property and credits of her deceased mother Mrs. Maria Francisca Coelho who died on 24.11.1985. Will dated 07.07.1982 said to be her last Will was propounded whereunder the testatrix bequeathed properties in favour of her two sons namely George and Reginald and the daughter who was the plaintiff, in equal shares. Caveat was filed by another son Mr. Victor. However, during the pendency of the proceedings he died and, therefore, the proceedings were continued by his widow. In view of the filing of the caveat, raising objections, the petition was converted into a suit. The subject matter of controversy is essentially about the Will dated 07.07.1982 in respect of which LoA is prayed for.

5. After framing the issues, the learned Single Judge found that the Will in question was duly executed at the same time, it was further found that the Will is shrouded with suspicious circumstances and the plaintiff could not satisfy the conscious of the court by removing such suspicious circumstances. Resultantly, the suit was dismissed. In the appeal, the Division Bench did not formulate points for consideration and at the same time on re-appreciation of the evidence, found that the learned Single Judge had correctly come to the conclusion that the Will in question was validly executed. The Division Bench held that the learned Single Judge had recorded a finding that the Will is validly executed and it is genuine and observed and held that suspicious circumstances, if any have to be taken into consideration by a Court before recording a finding that the Will is genuine and not after recording a finding that the Will is genuine. In that view of the matter, the findings recorded by the learned Single Judge that the Will is shrouded with suspicious circumstances is set aside and consequently, held that the plaintiff is entitled to grant of LoA. Accordingly, Testamentary Suit No.33 is decreed in terms of the prayer clause of the suit.

6. In the contextual situation, firstly, it is to be found out whether the learned Single Judge had arrived at a finding that the Will is genuine. No doubt, the exposition of law by the Division Bench that suspicious circumstances, if any, have to be taken into consideration before recording the finding that the Will is genuine and not after recording a finding that the Will is genuine is the correct enunciation of law. But then the question is whether the learned Single Judge in the Testamentary Suit had arrived at a finding that the Will is genuine. In this context, we cannot lose sight of the fact that holding that a ‘Will is validly executed’ and a ‘Will is genuine’ cannot be said to be the same. If a Will is found not validly executed, in other words invalid owing to the failure to follow the prescribed procedures, then there would be no need to look into the question whether it is shrouded with suspicious circumstances. Therefore, it can be said that even after the propounder is able to establish that the Will was executed in accordance with the law, that will only lead to the presumption that it is validly executed but that by itself is no reason to canvass the position tha