Sunday, 26 February 2017

Whether court can grant interlocutory relief in respect of property of deceased prior to grant of probate?

Now, it has been emphasized on behalf of the Appellant that the words "all matters connected therewith" in Section 266, have a broad connotation and that Section 268 emphasizes that the proceedings before the District Judge in relation to the grant of probate and Letters of Administration will be regulated so far as the circumstances of the case permit by the Code of Civil Procedure, 1908. It is contended that the power to grant interim orders is a necessary adjunct of the power of a civil court. The ambit of the words "all matters connected therewith" has to be construed in relation to the grant of probate and letters of administration. Such a proceeding does not concern itself with title or even the existence of the property but only determines whether the will was executed by the testator of his own free will.
That being the ambit of the proceeding, the words " connected therewith" cannot transform the probate proceeding into one in which issues alien to the grant of probate are to be decided. That would be impermissible. The contents of the broad general language inSections 266 and 268 must be read in the context of the specific provisions which are made inSection 269. The Legislature in sub-section (1) of Section 269 made a specific provision to the effect that until probate of the will of a deceased person is granted or an administrator of his estate is constituted, the District Judge (i) is authorised and required to interfere for the protection of such property at the instance of any person claiming to be interested therein; and (ii) in all other cases where the Judge considers that the property incurs any risk of loss or damage to do so. For that purpose, the District Judge is empowered to appoint an officer to take and keep possession of the property. While recognising and conferring such a power expressly on the District Judge, the Legislature nonetheless mandated in sub-section (2) that this section shall not apply when the deceased is a Hindu, Mohammadan, Buddhist, Sikh or Jaina or an exempted person, nor shall it apply to any part of the property of an Indian Christian, who has died intestate. When Section 268 emphasizes that "save as hereinafter otherwise provided", the proceedings before the District Judge shall be regulated by the Code of Civil Procedure,  1908 so far as the circumstances of the case permit, it is not open to the District Judge to exercise a power contrary to the legislative intent and mandate of Section 269. Until probate of the Will is granted of a deceased person or an administrator is constituted, the statute has recognized the power of the District Judge for the protection of the property (at the behest of a person claiming to be interested) and in all other cases (where the Judge considers that the property incurs a risk of loss or damage). But, just as this power is specifically conferred upon the District Judge, sub-section (2) precludes the exercise of the power when the deceased belongs to one of the categories specified in sub-section (2). If the provisions of Sections 266 and 268were broad enough to bring within their purview, powers of the nature specified in sub-section (1) of Section 269, there was no necessity to incorporate a provision in the nature of sub-section (1) of Section 269. As a rule of interpretation, the Court will not ascribe or attribute the use of a surplusage to the Legislature. But, even if an alternate construction is possible - one that recognizes that sub-section (1) of Section 269 only makes implicit a power which is exercisable under Sections 266 and 268 - the effect of sub-section (2) is to  preclude the exercise of that power in the case of one of the excepted categories. It would not be permissible, in the face of the specific provision of sub-section (2) of Section 269 to read into the provisions ofSections 266 and 268 a general power to grant interlocutory relief even prior to the grant of probate in respect of the property which is alleged to form part of the estate of the deceased. This construction is fortified by the principle that the testamentary Court in proceedings for probate is only concerned with the question as to whether the Will of the deceased is genuine and that it has been made voluntarily. The probate Court is not concerned with questions relating to the property itself. Though an assiduous attempt was made on behalf of the Appellant to rely upon the provisions of the Act, to which a reference has been made earlier, the Court in this case is essentially concerned with the powers of the testamentary Court when it exercises its jurisdiction in a petition for the grant of probate. In view of the express provision which is contained in Section 269(2), there can be no recourse to the exercise of the inherent powers of the Civil Court.
Bombay High Court
Ramchandra Ganpatrao Hande Alias ... vs Vithalrao Hande & Ors on 29 March, 2011
Bench: Dr. D.Y. Chandrachud, Anoop V.Mohta
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How to prove that will was executed due to undue influence?

 Mr. Kapadia is, of course, correct in saying that generalized allegations of 'undue influence' sans particulars are of no use. They are to be pleaded with specificity, particularity and precision. (Bishnudeo Narain & Anr. v Seogeni Rai & Ors., MANU/SC/0059/1951 : AIR 1951 SC 280; Afsar Shaikh & Anr. v Soleman Bibi & Ors., MANU/SC/0001/1975 : AIR 1976 SC 163.) What we have in this case is a generalized allegation that because Dossa assisted Babubhai therefore it necessarily follows that he exerted undue influence in the making of the will. It has been well-settled for over a century that to constitute undue influence in testamentary law, the testator must be compelled to act against his wishes. It is not enough to show that there was mere influence. There must be undue influence, such that the testator did that which he did not intend or could not reasonably be expected to have intended. (Wingrove v Wingrove,1885 XI PD 81; Hall v Hall, 1868 I XXXI P&D Vict LR 481) Closeness in relations, providing assistance and, within a family, being supportive are not evidence of 'undue influence'. 
Testamentary Suit No. 46 of 2008 in Testamentary Petition No. 105 of 2008
Decided On: 20.01.2015
 Yatin Gordhandas Dossa
 Supriya Shailesh Patel
Hon'ble Judges/Coram:G.S. Patel, J.
Citation:2015 (5) Mh.L.J. 587
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Landmark Judgment on suspicious circumstances surrounding execution of will

    (a) In cases where the execution.of a
        will  is shrouded i.n.  suspicion  its  proof
        ceases to be a simple lis between  the  plain-
        tiff and the defendant.  What generally is  an
        adversary  proceeding becomes in such cases  a
        matter   of  the court's   conscience.  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
        he accepted as the last will of the  testator.
        [929 C-F, 930 C-D]
    (b) A will has to be proved like any  other
        document by  applying the usual test  of  the
        satisfaction of the prudent mind. [929 F]
    (c) Since section 63 of the Succession  Act
        requires a will to be attested it  cannot  be
        used as an evidence until at least one of  the
        attesting witnesses is examined, if available.
        [929 G]
        (d)  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  was executed. That circumstance  intro-
        duces  a certain amount of solemnity in  proof
        of testamentany instruments. [929 H, 930 A]
 R. Venkatachala lyengar v.B.N. Thimrnajamma & Others  [1959]
 Supp. 1 S.C.R. 426, followed.
 2. The testator was a man of property  and occupied a high
 position in society. A genuine will of such a person is  not
 likely to suffer from the loop-holes and infirmities  which
 may beset an humbler testamentany instrument.
           [931 D, H,932 A]
     3. The following circumstances throw a cloud of  suspi-
 cion on the making of the will by Gobinder Singh:
     (i) The will is alleged to have been made
        in  1945 but it did not see the light  of  the
        day  till  1957. It is  unacceptable  that  a
        document by  which  property  worth  lacs  of
        rupees  was disposed of could have remained  a
        closely  guarded secret from intimate  friends
        and  relatives and from the sole legatee him-
        self for over 21/2- years after the testator's
        death. [932 A-B]
     (ii) The testator had left behind  him  a
        large property and along with it large  amount
        of  litigation  which makes it  impossible  to
        believe that upon his death no one bothered to
        go  through his papers.The explanation of  the
        defendant  that he stumbled upon the  will  by
        chance while going through some papers of  his
        grandfather is patently lame and unacceptable.
        [932 B-D]
    (iii) The  defendant came  out  with  the
        theory of will after the Hindu Succession Act
        of  1956 came into force as a result of  which
        the  plaintiff would become an absolute  owner
        of  the property that would fall to her  share
        as the heir of her husband.[932 G-H, 933 A-B]
    (iv)  The will was typed Out on both  sides
        of  a single foolscap.paper and was  obviously
        drafted  by a lawyer.  No evidence was led  as
        to who drafted the will and who typed it out.
        [933 B-C]
     (v) The will was attested by two  persons,
        both of whom were strangers to the  testator's
        family and neither of whom could give a proper
        account  of  the execution of the   will.   In
        fact they  contradicted each other. [933 C-H]
    (vi)  The  two persons who are  alleged  to
        have  been appointed executors were not  exam-
        ined, though available.  Normally, the  execu-
        tors  are not appointed without their  consent
        or consultation. [934 A-C]
        (vii)  The will is unnatural and unfair. [934
    (viii)  The will does not make  mention  of
        many of the near relations and descendants  of
        the testator. [934 D-F]
    (ix) The plaintiff was excluded as an heir
        of the testator for the supposed reasons that
        she  had brought disgrace to the Sibia  family
        and  that her behaviour was such as would  not
        even bear a mention in the will. No  evidence
        was led on the misconduct of the plaintiff.
        [934 F-G]
    (x)  The defendant in his evidence did  not
        offer  any explanation any of  the  suspicious
        circumstances. [934 G]
Supreme Court of India
Jaswant Kaur vs Amrit Kaur & Ors on 25 October, 1976
Equivalent citations: 1977 AIR 74, 1977 SCR (1) 925
Read full judgment here:Click here
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What will not be suspicious circumstance surrounding execution of will?

This Court has held that the mode of proving a will does not ordinarily differ from that of proving any other document except to the special requirement of attestation prescribed in the case of a will by Section 63 of the Successions Act. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court before the court accepts the will as genuine. Even where circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the court. The suspicious circumstances may be as to the genuineness of the signatures of the testator, the condition of the testator's mind, the disposition made in the will being unnatural, improbable or unfair in the light of relevant circumstances, or there might be other indications in the will to show that the testator's mind was not free. In such a case the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes a prominent part in the execution of the will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the court would grant probate, even if the will might be unnatural and might cut off wholly or in part near relations. MANU/SC/0278/1963 : AIR1964SC529
8. Needless to say that any and every circumstance is not a `suspicious' circumstance. A circumstance would be `suspicious' when it is not normal or is not normally expected in a normal situation or is not expected of a normal person.
Civil Appeal No. 1872 of 1970
Decided On: 18.11.1981
 Smt. Indu Bala Bose and Ors.
 Manindra Chandra Bose and Anr.
Hon'ble Judges/Coram:
A.N. Sen and Baharul Islam, JJ.
Citation:A.I.R. 1982, Supreme Court, 133
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