IN THE HIGH COURT OF JUDICATURE AT BOMBAY
O. O.C. J.
MISC. PETITION NO.76 OF 2008
TESTAMENTARY PETITION NO.1038 OF 1999
Mr. Bipin Natwarlal Ganatra, adult,
Indian Inhabitant, residing at Flat No.7,
New Woodlands Co-op. Housing Society Ltd.,
Peddar Road, Mumbai-400 026. ...Petitioner. Versus
-1. Rohan P. Shah, of Mumbai,
Hindu Inhabitant, one of the
Executors named in the last Will
and Testament of the deceased
resident of Cuffe Castle, Cuffe Road,
-2. Hari K. Taneja, also of Mumbai.
Hindu Inhabitant one of the Executors
named in the last will and Testament
of the deceased resident of Simla House,
Nepean Sea Road, Mumbai-400 006. ...Respondents. .......
Mr.Kezer Kharawala i/b. R.K. Associates for the Petitioner. Ms.Manjari Shah with Mr. Shashi Uttam i/b. M/s. Pamnani & Pamnani for Respondent Nos.1 and 2.
CORAM : DR. D.Y. CHANDRACHUD, J.
August 17, 2009.
Dahyabhai Lallubhai Shah ("the testator") died on 3rd May 1999, in a manner of speaking, at a ripe old age of ninety one. Probate was granted by this Court on 22nd December 1999 of his last Will and Testament. The Petitioner who claims to be a nephew of the testator's wife seeks revocation of the Probate.
2. About three years prior to the execution of his will, the testator settled his property in trust by a deed of 28th June 1994. Under the Deed of Trust the testator, apart from himself, appointed two other trustees, namely (i) Mr.Rohan Shah and (ii) Mr.Hari Taneja. The object of the Trust was inter alia to encourage and promote fundamental and applied research in the fields of science and technology, arts, philosophy and the social sciences in India. In order to effectuate the purpose of the Trust, the trustees were under the terms of the Deed, empowered to interact with the academic community and research bodies on the one hand, and with industry and commerce on the other; "striving to enhance the interface 3
between the two". The trustees were required to promote research on the preservation, protection and improvement of ecology and the environment and to promote the development and use of environment friendly industrial processes and waste management techniques. The objects of the Trust also speak of the desire of the settlor to foster a consciousness and awareness of the quality of products manufactured and services provided in India. The trustees were also required to promote research and development on safety measures and practices in industrial concerns.
3. The settlor was born on 13th June 1907. On 16th May 1996, he executed a will by which he evinced an intention to constitute the Trust as the ultimate beneficiary of his estate upon his death. The settlor and his wife, Urmila, had no children of their own. Under the will, the settlor provided for a life interest for his wife in a residential flat together with all the other amenities to which she was accustomed. The settlor had set up a Company by the name of Perfect Machine Tools Co. Ltd. which on the date of the execution of 4
the first will, was the owner of the residential flat 7-C Woodlands, Peddar Road, Mumbai-400 026. The settlor and his wife were in occupation of the flat under a tenancy agreement. The first will stipulated that both the settlor and his wife would during their lifetimes have a right of occupation therein. The two individuals who together with the settlor were the trustees of the Trust constituted in 1994, were appointed as executors under the will.
4. The testator is alleged to have executed a subsequent will of 5th July 1997, which was duly registered with the Sub Registrar of Assurances. After the testator died on 3rd May 1999, the record before the Court would show that the will executed on 5 th July 1997, was read out in the presence of the widow of the testator and five other persons. A recording letter to that effect, dated 31 st July 1997, was addressed by Desai and Diwanji who were acting as Attorneys for the testator.
5. The executors appointed under the will, filed a petition 5
before this Court on 12th August 1999 in the Testamentary Jurisdiction for the grant of a probate of the will executed by the settlor on 5th July 1997. The widow of the testator filed an affidavit dated 12th August 1999, indicating her consent to the grant of probate. The petition was thereupon processed in accordance with the Rules framed by this Court as a non-contentious matter. The executors to the will filed a joint affidavit dated 12th August 1999 annexing a copy of the will executed by the testator on 5th July 1997. An affidavit of Mr. R.J. H. Mistry, Advocate and Solicitor who was an attesting witness to the will was also filed. Probate was granted on 22nd December 1999. A copy of the probate was furnished to the widow of the testator on 6th February 2002.
6. On 30th March 2002, the widow of the testator executed a General Power of Attorney in favour of the Petitioner. The widow of the testator filed a petition for revocation of the probate on 25th November 2003. During the pendency of the petition, the widow died on 22nd September 2006. The Petitioner who claims to be the nephew 6
of the testator's widow, addressed a letter dated 1st November 2006 to the trustees of the Trust constituted by the settlor, by which he expressed his intention to hand over vacant and peaceful possession of the residential flat at Woodlands within a period of three months. On 22nd February 2007, the petition filed by the widow of the testator for the revocation of the probate was treated as having abated and was disposed of as such. The trustees have instituted a suit on the Original Side of this Court1 against the Petitioner seeking possession of the residential flat. In June 2007, the Petitioner has, on his part, filed a suit on the Original Side of this Court2 seeking a declaration that he is the sole heir of the deceased testator and his widow. The Petitioner moved a Chamber Summons in the Petition for Revocation filed by the widow of the deceased testator. The Chamber Summons was allowed to be withdrawn by an order dated 17th October 2008 with liberty to file a substantive petition for revocation. The Petitioner has thereupon moved these proceedings seeking the revocation of the probate granted by this Court on 22nd December 1999.
1 Suit 1094 of 2007
2 Suit2988 of 2007
7. Before dealing with the submissions that have been urged in the course of these proceedings, it would, at the outset, be necessary to note that the Petitioner has come forth before the Court on the foundation that he is "a nephew of late Dahyabhai L. Shah and late Urmila Dahyabhai Shah". The Petitioner claims that the deceased testator and his wife had no children of their own and that he was given to understand that he came to be adopted by the testator and his wife. According to the Petitioner, however, he did not use the family name of his foster parents on the advice of a 'horoscope reader' who predicted that if he did so, that would result in a calamity to the family. As already noted earlier, the Petitioner has filed a suit before this Court on the Original Side, seeking a declaration that he is the sole and legal heir of the deceased testator and his wife. For the purpose of these proceedings, the submissions have been heard on the basis that the Petitioner does have the locus to move these proceedings. However, it would be necessary to clarify that the question as to whether the Petitioner is, in fact, the nephew of the 8
widow of the deceased testator and was adopted by the testator and his wife, as urged during the course of the submissions in these proceedings, and the question as to whether he is entitled to a declaration in regard to his alleged claim of being their legal heir, are matters in which it would not be necessary to render a final adjudication in these proceedings since the suit is pending. For the purpose of these proceedings, it would be necessary to advert to the judgment of the Supreme Court in Krishna Kumar Birla vs. Rajendra Singh Lodha.3 In paragraph 102 of the judgment, the Supreme Court referred to the earlier judgment of the Court in Elizabeth Anthony Vs. Michel Charles John Chown Lengera,4 wherein it was held that for the purpose of the revocation of a grant within the scope of Section 263 of the Succession Act, the absence of a caveatable interest would not ipso facto deprive a person of his locus to move a petition for revocation. Counsel appearing on behalf of the Petitioner urged, relying upon the observations in Elizabeth's case which have been cited in the subsequent judgment in Birla's case by the Supreme Court that even though the Petitioner is not a Class I heir under the Hindu 3 (2008) 4 SCC 300
4 (1990) 3 SCC 333
Succession Act, 1956, in regard to the estate of the deceased testator, Mr.D. L. Shah, that would not at the present stage deprive him of the right to apply for revocation under Section 263. As already noted earlier, for the purpose of these proceedings, the arguments have been heard on merits and it is, therefore, not necessary for the Court to hold that the Petitioner is disentitled to move proceedings for the revocation of the probate.
8. In so far as the merits of the petition are concerned, six submissions have been urged on behalf of the Petitioner: (i) The will is surrounded by suspicious circumstances and the onus would lie upon the propounder of the will to dispel those circumstances by a cogent explanation; (ii) The suspicious circumstances have not been dispelled by the propounder of the will; (iii) The testator was not capable of making a testamentary disposition of his property; (iv) The statutory requirements of proving the due execution of the will have not been complied with; (v) The Second Respondent who is one of the executors of the will has not explained what was his relationship 10
with the testator and the reasons which led the testator to appoint him as one of the executors; and (vi) A citation was not served on the widow of the deceased testator.
9. While dealing with the merits of the submissions which have been urged for and on behalf of the Petitioner, the first aspect of the case that merits consideration is that an affidavit had been filed on 1st August 1999 by the widow of the testator by which she expressed her consent to the grant of a probate in favour of the executors of the last will and testament executed by her late husband on 5th July 1997. The proceedings before the Court for the grant of the probate were thereupon processed and dealt with in accordance with the provisions contained in the Bombay High Court (Original Side) Rules. Rule 370 defines non-contentious matters to include applications for probate or letters of administration or succession certificate and the obtaining thereof when there is no contest as to the right thereto. Rule 374 then makes the following provisions for an application for probate:
"R.374, Application for probate. -The application for probate shall be made by Petition. There shall be annexed to the petition a copy of the last will and testament of the deceased. If the will be not in the English language, an official translation thereof shall be annexed. The original will shall be filed separately and kept by the Prothonotary and Senior Master in the strong room of his office. There shall also be annexed to the petition (1) a schedule of the property and credits which the deceased died possessed of or entitled to at the time of his death which have or are likely to come to the petitioner's hands, (2) a schedule showing the debts of the deceased and all other items which by law the petitioner is allowed to deduct for the purpose of ascertaining the net estate of the deceased, and (3) a schedule of property, if any, held by the deceased in trust for another and not beneficially or with general power to confer a beneficial interest. The petition shall be in Form No.97 with such variations as the circumstances of each case may require and shall be accompanied by -
(a) the vakalatnama signed by the petitioner (Form No.5), unless the petitioner appears in person;
(b) the executor's oath (Form No.101);
-(c) the affidavit of one of the attesting witnesses, if available (Form No.102); and
-(d) a copy of the estate duty return, if filed with the Controller of Estate Duty.
The schedules to the petition shall be in Forms No.98, 99 and 100 respectively with such variations as the circumstances of each case may require."
In terms of Rule 374, a copy of the last will and testament of the deceased testator was annexed to the Petition and the original will was deposited separately with the Prothonotary & Senior Master. Apart from the other requirements of Rule 374, all of which were admittedly complied with, an affidavit was filed of one of the attesting witnesses to the will, namely, Mr. R.J. S. Mistry who is an Advocate and Solicitor. The affidavit was in terms of Form 102 which is prescribed by the Rules. There was no caveat and the matter was, therefore, proceeded on the basis that it was non-contentious. Rule 397 requires that in all applications for probate, letters of administration and succession certificates, a notice of the application has to be given to all the heirs and next-of-kin of the deceased mentioned in the petition except to those whose consent has been filed in the proceedings. Sub-rule (2) provides for affixation of the citation in the Court house and in the office of the Collector of Bombay. In the present case, the widow of the deceased testator having filed an affidavit of consent, no notice was required to be issued to her in terms of sub-rule (1) of Rule 397. Rule 426 requires 13
all probates or letters of administration or succession certificates to be drawn up by the office of the Prothonotary & Senior Master in the prescribed forms with such variation as the circumstances of each case may require. Under Rule 427 copies of the Schedules annexed to the petition are to be annexed to the grant of probate or, as the case may be, letters of administration. It was in terms of these Rules that the grant of probate to the Respondent came to be processed and the probate was issued by this Court on 22nd December 1999.
10. Counsel appearing on behalf of the Petitioner urged before the Court that there are several suspicious circumstances attendant upon the execution of the testamentary disposition of 5th July 1997. It would be appropriate to summarize these alleged circumstances. Firstly, it has been submitted that under the earlier will of the testator dated 16th May 1996, his wife, Urmila, was a witness whereas under the second will, she was not mentioned as a witness. Under the first will, the residential flat at Woodlands was to revert to the landlord after the life time of the testator and his wife whereas, according to 14
the submission, under the second will, which is in dispute, the right of the widow came to be restricted to a life interest in the flat; Secondly, it has been urged that the second will when read together with the affidavit of the attesting witness specifies that it was executed at the residence of the testator whereas the first will is silent as to the place of execution; Thirdly, the first will contains a direction that the executors shall obtain a valuation of the property in the event that the property has to be sold whereas the second will is silent in regard to the condition of the valuation; Fourthly, the will does not contain a clarification of the debts and liabilities of the testator; Fifthly, a copy of the first will was deposited with one of the executors, with a Chartered Accountant and in a safe whereas the second will is silent on the custody of the will; Sixthly, one of the executors is alleged to have met the testator for the first time in 1994 and shortly thereafter, the testator settled his property in Trust on 20th June 1994 naming him as one of the trustees and executed his first and second testamentary dispositions thereafter on 16th May 1996 and 5th July 1997; Seventhly, though the will contains an endorsement of the 15
attesting witness that it has been read out to the testator, the affidavit of the testator is silent as to whether it was so read. The attesting witnesses' affidavit is silent as to how the will was prepared and how it was drafted; Eightly, the certification of the doctor at the foot of the will has been typed and is not in the hand-writing of the doctor; Ninthly, no affidavit of the Sub Registrar of Assurances or scribe has been filed; Tenthly, the consent affidavit of the wife of the testator, an affidavit of the attesting witness and the Petition for the grant of probate, all bear the same date, namely 12th August 1999; Eleventhly, the executors have not filed an affidavit in support of the petition; and Twelfthly, the entire property has been bequeathed to the Trust of which the two executors have been named as trustees to the exclusion of the widow. These submissions would now merit consideration.
11. The thrust of the submissions urged by Counsel for the Petitioner has been to distinguish the contents of the second will executed by the testator on 5th July 1997 with an earlier will dated 16th May 1996. Counsel for the Petitioner, while referring to those 16
distinguishing features, submitted that the features which are present in the first will, are absent in the second and would cast a significant amount of doubt on the will which has been probated by the Respondents as executors. In these circumstances, a considerable degree of reliance was sought to be placed on the terms of the first will.
12. Now by the will of the testator dated 16th May 1996, the two individuals who came to be appointed as executors are the trustees under the deed of trust of 1994. The first will contains a prefatory statement that the testator and his wife had no children of their own and that consequently, he had decided to turn over his entire property and estate to the Trust constituted by him. The will records that the wife of the testator had already been well and sufficiently provided for. The paramount purpose of the will is that the entire estate possessed by the testator shall be transferred to the Trust while his wife shall upon his death continue to enjoy all the facilities which she was then enjoying including residence in the flat at Woodlands. The residential flat was then tenanted, the testator 17
being a tenant of the Company which he had founded. The will recites that during the life time of the testator and his wife, the property would continue to remain in their possession and would revert back to the landlord only after both the testator and his wife had died. If the will of 16th May 1996, upon which a considerable degree of reliance has been placed by the Petitioner, is compared with the will subsequently executed by the testator on 5th July 1997, there are significant similarities in the approach, intent and the disposition of the testator: (i) In the second will dated 5th July 1997, as in the case of the first, the testator records that he and his wife had no children of their own and that it was his desire that after his death, his estate should be used for the objects set out in the Deed of Trust; (ii) The wife of the testator had sufficiently been provided for; (iii) The Trust set up by the testator would be the ultimate beneficiary of the estate and the wife of the testator would have only a life interest and would be entitled to reside in the residential flat during her life time together with all the appurtenant amenities; and (iv) The executors would continue to be the same two individuals, namely, 18
Mr.Rohan Shah and Mr.Hari Taneja. The will executed by the testator on 16th May 1996, however, made a reference to the flat at Woodlands being tenanted property. By the time that the second will came to be executed by the testator on 5th July 1997, the residential flat at Woodlands vested in the testator under an agreement to sell dated 5th August 1996 entered into between the testator and the landlord. A copy of the agreement has been placed on the record of these proceedings by Counsel for the Respondents during the course of the hearing. As already noted earlier, when the first will was executed by the testator, the residential flat was owned by the Company which was founded by the testator. By the agreement dated 5th August 1996, the Company agreed to transfer the flat to the testator at and for a consideration of Rs.64,94,772/- and the share certificate of the Co-operative Housing Society which stood in the name of the Company came to be transferred to the name of the testator. The wife of the testator was named as an associate member. It is in this background that in the will which he executed on 5 th July 1997, the testator treated the residential flat to be of his ownership 19
and provided a life interest for his wife.
13. Counsel for the Petitioner has placed a considerable amount of emphasis upon the manner in which the residential flat which was treated as tenanted property in the first will, came to be regarded as an ownership property in the subsequent will. The circumstances in which this change was brought about have been noted hereinabove. But, quite apart from the circumstances in which this change was brought about, it is a well settled principle of law that the Court granting probate in the exercise of the testamentary jurisdiction does not adjudicate upon the title of the testator. This is indeed a well settled principle of law which has been reiterated in the judgment of the Supreme Court in Krishna Kumar Birla vs. Rajendra Singh Lodha (supra). The question as to whether the testator had title to the residential flat at Woodlands is a matter does not fall for adjudication by the Court granting a probate in the exercise of the testamentary jurisdiction. However, it would be necessary to record that the Petitioner himself has admitted the ownership of the testator in the residential flat in his affidavit dated 5th March 2008 filed in the 20
Chamber Summons in these proceedings.
14. The widow of the testator instituted a petition before this Court on 25th November 2003 for the revocation of the probate that was granted on 22nd December 1999. During the pendency of the petition, Urmila died on 22nd September 2006 upon which the petition stood abated. The attention of the Court was drawn by Counsel for the Petitioner to the averment contained in paragraph 5 of the petition filed by Urmila to the effect that her signatures were taken on certain documents two months after her husband died, though the contents thereof were not explained to her. These averments were denied in the reply filed by the First Respondent to the earlier proceedings. It would be necessary now to make a reference to what transpired after the probate had been granted on 22nd December 1999. On 27th March 2001, a letter was addressed by the widow of the testator to the trustees stating that under the will of her late husband, all the outgoings in respect of the flat would be borne by the Trust. The widow of the testator, therefore, called upon the trustees to perform this obligation. The Petitioner caused a letter to be 21
addressed on behalf of the widow of the testator on 8th January 2002 by his Advocate to the trustees where, once again the Petitioner relied upon the provisions of the will executed on 5th July 1997 under which all outgoings of the flat were to be borne by the trustees. The trustees were called upon to bear the expenses of the telephone installed in the residential flat. The testator's widow had by a letter dated 18th January 2002 called upon the Advocate for the executors to inform her as to whether a petition for probate has been filed and in response thereto, by a letter dated 6th February 2002, the Advocate furnished a copy of the probate granted by this Court. By a letter dated 26th August 2002, the widow of the testator recognized that "the said Woodlands flat is after all the property of the Trust". In none of these letters which were exchanged after the grant of the probate did the widow or, for that matter the Petitioner, make any grievance about the manner in which the consent of the widow was taken to the filing of an affidavit agreeing to the grant of probate. On the contrary, the correspondence on the record would indicate that Urmila accepted: (i) the creation of the Trust; (ii) the fact that the Trust was the owner 22
of the estate of the testator; and (iii) the authenticity of the will executed by the testator on 5th July 1997. Both the widow and the Petitioner called upon the trustees to make payment of amounts due and payable under the will.
15. In deciding whether the requirements of law specified in Section 63 of the Succession Act have been fulfilled, the Court must have due regard to whether (i) The testator was of a sound mind and was in a fit condition to make a disposition of his property; (ii)Whether the will has been duly executed by the testator in accordance with the requirements of law; and (iii) Whether the will has been attested as required by two or more witnesses each of whom has seen the testator sign or affix his mark or has received from the testator a personal acknowledgment of the signature or the mark. Each of the witnesses must sign the will in the presence of the testator, but no particular form of attestation is necessary and it is not necessary that more than one witness be present at the same time.
16. The principles of law which must guide the Court in such 23
cases have been laid down in the locus classicus on the subject, which is a judgment of Mr.Justice P.B. Gajendragadkar (as he then was) in H. Venkatachala Iyengar vs. B.N. Thimmajamma.5 The propositions which arise from the judgment of the Supreme Court have been summarized as follows :
"1. Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty.
-2. Since Section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by Section 68 of the Evidence Act, one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence.
-3. Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will.
5 AIR 1959 SC 443
-4. Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator.
-5. It is in connection with wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. That test emphasizes that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator.
-6. If a caveator alleges fraud, undue influence, coercion etc. in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of 25
such pleas, the very circumstances surrounding the execution of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter."
It is a well settled principle of law in all cases in which a will is prepared, when there are circumstances which arouse the suspicion of the Court that it does not express the mind of the testator, it is for the propounder of the will to remove that suspicion. (Rani Purnima Debi vs. Kumar Khagendra Narayan Deb).6 If the propounder of the will takes a prominent part in the execution of the will which confers substantial benefits on him that itself is a suspicious circumstance attending the execution of will and in appreciating the evidence in such a case, the Court must proceed in a vigilant and cautious manner. (Gorantla Thataiah v. Thotakura Venkata Subbaiah).7 The propounder of the will has to establish that the will was signed by the testator, that he was at the relevant time in a sound disposing state of mind; that he understood the nature and effect of the dispositions; that he put his signature to the testament of his own 6 AIR 1962 SC 567
7 AIR 1968 SC 1332
free will and that he has signed it, in the presence of two witnesses who attested it in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged. (Surendra Pal vs. Dr.(Mrs.) Saraswati Arora).8
17. While the Court must have due regard to suspicious circumstances attendant upon the execution of the will, it is necessary to emphasize, as the Supreme Court did in P.P.K. Gopalan Nambiar vs. P.P.K. Balakrishnan Nambiar,9 that the suspicious features must be real and germane and, "not (a) fantasy of the doubting mind".
18. A testator has full testamentary power and the Court cannot determine as to whether the disposition is fair or unjust. The unfairness of the disposition may have a bearing on whether the testator was in fact, exercising a free mind bereft of unsoundness or a subversion of his will. However, once it is established before the Court that the testator was free from influence and was of a sound 8 (1974) 2 SCC 600
9 1995 Supp (2) SCC 664
and disposing mind, the Court has no jurisdiction to question the choice exercised by the testator. In the felicitous words of Justice P.B. Mukharji speaking for a Division Bench of the Calcutta High Court in Ajit Chandra Mujumdar vs. Akhil Chandra Mujumdar,10 "The will has been challenged on the ground that it is an unnatural will, because the testator prefers on son to others. On the question of unnatural and officious Will a Court of Probate has to act with great caution. The testator who has full testamentary powers and a disposing mind cannot be dictated by the Court as to what is a fair and an unjust disposition. The Will is the Will of the testator and he has, under the law, the freedom to give his property to whomsoever he likes. What strikes the Court as an eccentric or an unjust or an unnatural disposition can certainly be taken as a consideration on the main question of finding out whether the testator was acting as a free agent and with a sound disposing and understanding mind. But once it is established that the testator was free and had a sound disposing mind, then it is no longer the duty of the Court to go further to inject its own ethics of what is or is not a moral or a fair disposition according to the Court's own standards. Judged by that test many a Will by a father depriving his sons would be unjust and indeed many a will exhibits man's iniquity against his nearest and dearest relations and yet not on that ground alone have those wills been declared by this Court invalid. Such wrongs, however grievous, are not for the temporal courts of justice to correct and are better left to Him Who adjusts all wrongs and non-justiciable iniquities, and under whose munificence the testator and the disinherited alike live and die." 10 AIR 1960 Calcutta 551
This principle finds reiteration in a judgment of the Supreme Court in Gurdeo Kaur vs. Kaki,11 where Mr.Justice Dalveer Bhandari speaking for a Bench of two Learned Judges held thus:
"The Court does not sit in appeal over the right or wrong of the testator's decision. The court's role is limited to examining whether the instrument propounded as the last will of the deceased is or is not that by the testator and whether it is the product of the free and sound disposing mind. It is only for the purpose of examining the authenticity or otherwise of the instrument propounded as the last will, that the court looks into the nature of the bequest."
19. In the present case, in determining as to whether the Petitioner has made out a case for revocation of the grant of the probate, several important circumstances would need to be emphasized. Firstly, the testator and his wife had no children of their own - a facet which the testator emphasized both in the first will which he executed on 16th May 1886 and in the will of 5th July 1997; the latter being the subject matter of the grant. The testator set up a Trust nearly three years prior to the execution of the probated will 11 (2007) 1 SCC 546
and elaborately specified in the deed of constitution, the objects which he intended the Trust to achieve. Both the individuals who were subsequently to be named as executors in the will of the testator were named as trustees in the will. The testator was nearly 87 years of age when the Trust was constituted and about 90 years of age when he executed the will that forms the subject matter of the probate. The wife of the testator who was born in 1915, was nearly 82 on the date of the execution of the will. The disposition made by the testator must be understood in the context of the circumstances that both the testator and his wife had no children of their own and both were of an advanced age. A person in the position of the testator could not be unmindful of the fact that he would have to make due and suitable arrangement for his property after his life. The testator had evidently been engaged in business and had founded a corporate enterprise of his own. It is in this background that the creation of the Trust in 1994 and the testamentary disposition, vesting the estate of the testator in the Trust, subject to a life interest in favour of his wife in respect of the residential flat and its amenities must be understood. 30
Secondly, absolutely no material has been placed before the Court by the Petitioner and none was even remotely suggested during the hearing, by Counsel, to infer that the testator was not of a free and disposing state of mind. In a petition for revocation at least prima facie, some material ought to have been forthcoming. On the contrary, the will that has been probated bears the endorsement of the doctor to the effect that the testator was in a fit condition of mind to make the will. Thirdly, an important circumstance which must guide the disposal of these proceedings is that the widow of the testator was all along aware of the nature of the testamentary disposition and she had filed an affidavit of consent by which she had expressed that she had no objection to the grant of probate to the executors named in the will. Moreover, after the grant of the probate, there is correspondence on the record to show that the widow of the testator accepted the provisions of the will and called upon the executors to discharge their obligations thereunder. The petitioner himself, as noted earlier, addressed an Advocate's notice to the trustees on behalf of the widow of the testator acknowledging 31
therein that under the last will and testament of the deceased testator, the estate has vested in the trustees. Counsel for the Petitioner has fairly stated before the Court that until the petition for revocation of the probate was filed by the widow on 25th November 2003, there was no objection either by the widow or by the Petitioner questioning the authenticity of the will or raising any doubt about the disposing state of mind of the testator. Fourthly, the grant of probate in the present case proceeded as a non-contentious issue since the widow of the testator had filed an affidavit indicating that she has no objection to the grant of the probate. The petitioner who claims to be the nephew of the widow of the testator, was not in the fray. However, as already noted earlier, the Petitioner has been heard on the question of revocation, more particularly having regard to the provisions of Section 263 of the Succession Act, 1925. The Petitioner has failed to make out a case for revocation. Fifthly, as noted earlier, a great deal of emphasis was laid on behalf of the Petitioner during the course of the submissions to compare and contrast the terms of the will of 5th July 1997 which has been probated with an earlier will dated 16th 32
May 1996. The line of reasoning of the Petitioner far from advancing the case of the Petitioner is destructive of the case. The will of 16 th May 1996 like the subsequent will dated 5th July 1997, refers to the creation of the Trust; the circumstance that the testator and his wife were childless; that the wife of the testator had already been sufficiently provided for during her life time and that it was the desire of the testator that the entire estate should vest in the trustees of the Trust constituted in 1994 subject to a life interest that was created in respect of the residential flat together with its amenities in favour of the wife of the testator. The circumstance that the widow of the testator is an attesting witness to the will of 1996, but not to the will of 1997, cannot be regarded as a suspicious circumstance. Even in the will of 1996, the wife of the testator is included as a third witness. The circumstance that the wife had not been the attesting witness to the subsequent will must be balanced with the circumstances which had come on the record, that the wife of the testator was in the knowledge of the will and acted on the basis of the will subsequent to the death of the testator and the grant of the probate. Counsel for 33
the Petitioner adverted to the circumstance that the Advocate and Solicitor who is an attesting witness has stated in his affidavit that the will was executed at home. The argument is that this is doubtful because the earlier will is silent about the place of execution. The submission is without substance. The reference to the place of execution is relatable to the requirement of Form 102 of the Original Side Rules which specifies that the place of execution should be mentioned. Similarly, the fact that the will of 1997 does not require a valuation to be carried out of the estate prior to disposal, is not a circumstance which would detract from the authenticity of the will. The fact that the will does not specify any particular person in whose custody the will was being kept by the testator, would not detract from authenticity of the will, once the Court is satisfied about the execution and attestation of the will. Though an attempt was made to question the reasons which led the testator to appoint the two executors, the decision of the testator cannot be questioned. The two trustees in the Trust Deed of 1994 came to be nominated as executors under the will and there was nothing unnatural in this 34
course of conduct. An attempt was made to discredit the affidavit of the attesting witness on the ground that it does not disclose how the will was drafted or prepared. There is no reason for the Court to disbelieve the affidavit of an Advocate and Solicitor on a conjecture, particularly in the absence of any cogent challenge thereto. The proceedings had been non-contentious in view of the affidavit of the widow consenting to the grant of probate. The affidavit filed by the attesting witness met the requirement of Form 102 of the Rules and there is no justification to discredit the affidavit. It is true that the certification by the doctor is typed at the foot of the will. The certification, however, is signed by the doctor and bears the date. In fact, the will of 16th May 1996 on which reliance was placed by Counsel for the Petitioner contains a similar modality on the certification of the Doctor. There is no reasonable justification to discredit the certification, for to do so would be to substitute conjecture for a cogent line of reasoning. In the facts of this case when the grant of probate had proceeded on the basis that the matter was non-contentious, fault cannot be found with the executors in not 35
filing the affidavit of the Sub Registrar of Assurances before whom the will was registered. Under the Rules, an affidavit of one of the attesting witnesses was required and that requirement was duly complied with. The executors have set their oath in support of the will.
20. In these circumstances, the grounds which have been urged in support of the case for revoking the grant of the probate are lacking in substance. The Petition shall accordingly stand dismissed. ......