Supreme Court: Presumption regarding documents 30 years old as per S 90 of evidence Act does not apply to a will

 This Court, in M.B. Ramesh (D) by L.Rs. v. K.M. Veeraje Urs (D) by L. Rs. and Ors.,8 while dealing with a similar argument regarding applicability of Section 90 in the case of proof of will, held as follows:

At the same time we cannot accept the submission on behalf of the Respondents as well that merely because the will was more than 30 years old, a presumption Under Section 90 of the Indian Evidence Act, 1872 ('Evidence Act' for short) ought to be drawn that the document has been duly executed and attested by the persons by whom it purports to have been executed and attested. As held by this Court in Bharpur Singh v. Shamsher Singh reported in   MANU/SC/8404/2008 : 2009 (3) SCC 687, a presumption regarding documents 30 years old does not apply to a will. A will has to be proved in terms of Section 63(c) of the Succession Act read with Section 68 of the Evidence Act. {Para 12}

Ratio:

The presumption under Section 90 of Evidence Act, 1872 as to the regularity of documents more than thirty years of age is inapplicable when it comes to proof of wills, which have to be proved in terms of Sections 63(c) of the Succession Act, 1925, and Section 68 of the Evidence Act, 1872.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 7775 of 2021 

Decided On: 14.03.2023

Ashutosh Samanta (D) by L.Rs. and Ors. Vs. Ranjan Bala Dasi and Ors. 

Hon'ble Judges/Coram:

S. Ravindra Bhat and Hima Kohli, JJ.

Author: S. Ravindra Bhat, J.

Citation:  MANU/SC/0233/2023

Print Page

If both the attesting witnesses of will are dead, how execution of will is to be proved?

 When both attesting witnesses to a will are dead, the will can still be proved under Section 69 of the Indian Evidence Act, 1872. This section provides an alternative mechanism for proving documents when attesting witnesses cannot be found or are unavailable.

When Section 69 Applies

Print Page

Supreme Court: Under which circumstances, adoption of child is not proved even though it was through registered adoption deed?

  Adoption Deed was registered, the presumption under Section 16 of the Act of 1956 attached to it and it was for Defendant No.1 to rebut that presumption. We find that he did so more than sufficiently. Mere registration of Adoption Deed did not absolve the person asserting such adoption from proving that fact by cogent evidence and the person contesting it from adducing evidence to the contrary. It is in this respect that various suspicious circumstances attached to the adoption ceremony assume significance. While so, Plaintiff witness, himself, stated that she did not invite any of her relations to attend the adoption ceremony. Normally, such occasions would not be kept secret or confidential as an adoption would usually be made with much pomp and celebration. The clandestine manner in which the alleged adoption is stated to have taken place raises a doubt but the same has not been adequately explained. Further, no evidence was adduced to prove that relations between owner and defendant no.1, her grandson, had fallen out. The document also did not record any reasons as to why owner was not happy with Defendant No.1, whose marriage she had performed a few months earlier.[Para 46]

50. The actual giving and taking of the child in adoption, being an essential requisite under Section 11(vi) of the Act of 1956, there was no convincing evidence of that act also in the case on hand. Interestingly, there were no pictures of the actual giving and taking of the child in adoption. The purohit was seen standing or sitting behind the others and the same could not be taken to be during the ceremony of giving and taking, as he would have stood/sat in front of them, chanting mantras and incantations as per shastras. Further, there were no photographs of the datta homam, though purohit claimed that he had performed the same. Even though it was no longer considered an essential ceremony, it was of significance when performed, and would have been captured for posterity by taking pictures. Strangely, though a professional photographer was stated to have been engaged for the purpose of taking pictures at the adoption ceremony, he took only three photographs and no more. This parsimony was not explained. Further, Plaintiff witness producing and marking receipt, supposedly issued by photographer to the temple, with no explanation as to how it came into her possession, also did not inspire confidence.

55. The adoption of Appellant-Plaintiff by deceased-owner was not proved in accordance with law despite the registration of Adoption Deed. The very adoption, itself, was not believable, given the multitude of suspicious circumstances surrounding it. The Appellant could not, therefore, be treated as her heir by adoption. 

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2435 of 2010

Decided On: 20.11.2023

Moturu Nalini Kanth Vs. Gainedi Kaliprasad (Dead) through L.Rs.

Hon'ble Judges/Coram:

C.T. Ravikumar and P.V. Sanjay Kumar, JJ.

Citation:  MANU/SC/1240/2023.

Read full Judgment here: Click here.

Print Page

Supreme Court: How to prove execution of will as per Section 69 of the Indian Evidence Act, 1872?

 For the purposes of Section 69 of the Evidence Act, it is not enough to merely examine a random witness who asserts that he saw the attesting witness affix his signature in the Will. The very purpose and objective of insisting upon examination of at least one attesting witness to the Will would be entirely lost if such requirement is whittled down to just having a stray witness depose that he saw the attesting witness sign the Will. The evidence of the scribe of the disputed Will (PW 6) also casts a doubt on the identity of the executant as he specifically stated that a woman was sitting at a distance but he could not tell whether she was Venkubayamma and he could not also tell whether Venkubayamma had signed the document. In effect, Ex. A10 Will was not proved in accordance with law and it can have no legal consequence. Nalini Kanth's claim of absolute right and title over Venkubayamma's properties on the strength thereof has, therefore, no legs to stand upon and is liable to be rejected.

{Para 32}

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2435 of 2010

Decided On: 20.11.2023

Moturu Nalini Kanth Vs. Gainedi Kaliprasad (Dead) through L.Rs.

Hon'ble Judges/Coram:

C.T. Ravikumar and P.V. Sanjay Kumar, JJ.

Author: P.V. Sanjay Kumar, J.

Citation:  MANU/SC/1240/2023.

Print Page

Supreme Court: Presumption U/S 90 of Evidence Act is not applicable for proof of will

 At the same time we cannot accept the submission on behalf of the Respondents as well that merely because the will was more than 30 years old, a presumption under Section 90 of the Indian Evidence Act, 1872 ('Evidence Act' for short) ought to be drawn that the document has been duly executed and attested by the persons by whom it purports to have been executed and attested. As held by this Court in Bharpur Singh v. Shamsher Singh reported in MANU/SC/8404/2008 : 2009 (3) SCC 687, a presumption regarding documents 30 years old does not apply to a will. A will has to be proved in terms of Section 63(c) of the Succession Act read with Section 68 of the Evidence Act.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1071 of 2006

Decided On: 03.05.2013

M.B. Ramesh (D) by L.Rs. Vs.  K.M. Veeraje Urs (D) by L.Rs. and Ors.

Hon'ble Judges/Coram:

H.L. Gokhale and Ranjana Prakash Desai, JJ.

Citation: (2013) 7 SCC 490, MANU/SC/0462/2013

Print Page

Whether legatee can prove execution of will?

All these three requirements by its nature would show the mandate to be complied with in the execution of a Will or Codicil apart from a document required by law to be attested. A mere attestation as in the case of a document required by law to be attested is not sufficient in the matter of execution of a Will or Codicil and it should satisfy the requirements as enumerated under clauses (a) and (b) to Section 63 of the Indian Succession Act, besides the requirement as enumerated in clause (c). Different treatments were given to a Will and Codicil apart from other document required by law to be attested by insisting compliance under Clause (a) to (c) to S. 63 of Indian Succession Act. Apart from the above said requirement regarding execution of a Will or Codicil, in the matter of proof also, a different treatment was given apart from a document required by law to be attested under S. 68 of Indian Evidence Act. The reason is quite obvious that the question of genuineness of signature of testator and due execution of a Will or Codicil would arise only after his or her death. The Clause (b) to S. 63 mandates that the signature or mark of the testator or the person who signed on behalf of the testator, "shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will" which stands for affixture of signature by the testator or person under his instruction, in his presence, to give effect to the document with full knowledge at his free volition, free from any vitiating circumstance. It is by virtue of clause (b) to S. 63 of the Act, a burden cast upon the proponder to explain and clear out all suspicious circumstance attached to the execution of the Will or Codicil. But no such requirement is mandated in the matter of a document required by law to be attested, such as gift, settlement, etc. When legatee is permitted to stand as an attesting witness that itself amounts to a suspicious circumstance within the meaning of clause (b) to S. 63 of Indian Succession Act when read along with the other two mandate - clauses (a) and (c) to S. 63 of the Act Needless to say that a Will or Codicil attested by legatees alone or the person interested with the legatees who holds a fiduciary relationship with the legatee/legatees would itself amounts to suspicious circumstance attached to its execution, absence of an independent attesting witness to the document is so fatal to the bequest under the document. It would destruct the legislative intention demanding compliance of mandate incorporated both under S. 68 of Indian Evidence Act and S. 63 of Indian Succession Act and their evidence or attestation would stand as self serving, though there is no provision debarring attestation by a legatee as far as an unprivileged Will of a Hindu is concerned. Atleast one of the attesting witness should be an independent witness and his examination cannot be avoided if he is capable of giving evidence and amenable to the process of the court for proving the Will or Codicil in accordance with the mandate under S. 68 of the Evidence Act. In short, a legatee under the Will or a person who is interested in the bequest cannot be an independent witness for the purpose of attestation to a last testament either as a Will or Codicil and hence mere examination of a legatee who stand as one of the attesting witness would not be a sufficient compliance of mandate under S. 68 of the Evidence Act. In the instant case, the only witness examined to prove the due execution of Ext. A4 is the first defendant and the Will was executed in favour of his children by giving major portion of the property and hence he cannot be an independent witness for the purpose of mandate under S. 68 of Indian Evidence Act in proof of execution of Ext. A4 Will.

IN THE HIGH COURT OF KERALA

S.A. No. 717 of 2002

Decided On: 29.01.2019

Raveendran Nair Vs. Raman Nair

Hon'ble Judges/Coram:

P. Somarajan, J.

Citation: AIR 2019 Kerala 91

Print Page

Whether propounder of will is bound to prove will even if objection to will is not taken by other side?

 In the instant case, the applicant amended her application in order to include pleadings pertaining to execution of the aforesaid Will by her son Baban Wankhade. This Will is crucial as regards the claim made by the applicant because it completely leaves out the widow of deceased Baban Wankhade from any benefits in respect of his estate. It is the case of the applicant that since the relations between deceased Baban Wankhade and his wife (contesting respondent No. 7) were strained, the desire of deceased Baban Wankhade is manifested in the contents of the aforesaid Will. It is contended on behalf of the applicant that since there was no consequential amendment made by contesting respondent Nos. 7 to 10 in their written statement/objection in respect of the pleadings pertaining to the said Will incorporated in the application filed by the applicant, the Courts below could not have "shifted the burden" on the applicant as regards the proof of the said Will.

11. In this context, it is to be examined that when the applicant herself has propounded the said Will, whether she is entitled to claim that if there is no denial in the written statement/objection on behalf of contesting respondent Nos. 7 to 10, she is discharged from her burden to prove the execution of the said Will. It is difficult to accept the said contention raised on behalf of the applicant because when she is claiming benefit under the aforesaid Will, it is for her to come to the Court and prove the fact in accordance with law that such a Will was indeed executed by her son Baban. In this context, the learned Counsel appearing on behalf of contesting respondent Nos. 7 to 10 is justified in placing reliance on the judgment of the Hon'ble Supreme Court in the case of Ramesh Verma (supra), wherein it has been held as follows :

"13. A Will like any other document is to be proved in terms of the provisions of Section 68 of the Indian Succession Act and the Evidence Act. The propounder of the Will is called upon to show by satisfactory evidence that the Will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the disposition and put his signature to the document on his own free will and the document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. This is the mandate of Section 68 of the Evidence Act and the position remains the same even in a case where the opposite party does not specifically deny the execution of the document in the written statement. "

12. It is, thus, clear that the mandate of the Act of 1925 read with the provisions of the Indian Evidence Act, 1872, is that the burden is entirely upon the applicant to prove execution and contents of the said Will since she had propounded the same. Therefore, the question of law framed by this Court while admitting this application is answered in favour of contesting respondent Nos. 7 to 10 and against the applicant.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Civil Revision Application No. 68 of 2015

Decided On: 04.04.2018

 Bainabai Vs.  Divisional Manager, Life Insurance Corporation of India and Ors.

Hon'ble Judges/Coram:

Manish Pitale, J.

Citation: 2018(6) MHLJ 91

Print Page

Whether valid will is executed if attesting witnesses put their signature on will on date of registration?

"(1) Can the execution of a Will and its attestation be on a date subsequent to the date shown in it as the date of its execution?

The evidence tendered by the defendants to prove the execution of Ext. B2 Will and the genuineness of Ext. B2 Will have also to be considered. DW2 is the scribe who prepared Ext. B2 Will. Ext. B2 is dated 21.03.2001. The date of execution of Ext. B2 Will is clearly shown as 21.03.2001. According to DW2, Ext. B2 was prepared as instructed by Raghavan Vaidyar and his wife. At the same time, DW1 who is the wife of testator, has clearly stated that Raghavan Vaidyar was not in the habit of discussing such matters with her. According to DW2, Ext. B2 Will was registered on 27.03.2001. He clearly narrated and explained that on 27.03.2001 at 9.30 a.m., the testator, his wife and two attestors came to his office. Ext. B2 Will was read over to them. The testator signed in Ext. B2 Will in his presence as well as in the presence of the attestors. Thereafter, the attestors affixed their signatures. After that they went to the Sub Registry office and got Ext. B2 Will registered.

21. In cross- examination, DW2 has clearly deposed that Ext. B2 Will was prepared on 21.03.2001 and it was signed on 27.03.2001. When he was asked whether the testator and the attesting witnesses had affixed their signatures in Ext. B2 Will on 21.03.2001, he clearly stated that the signatures were affixed on 27.03.2001. In re-examination he was made to say that Ext. B2 Will was intended to be registered on 21st and thereby it was prepared and subsequently it was postponed to 27th when he was so instructed over phone.

22. DW3 is one of the attesting witnesses in Ext. B2. His evidence in chief examination itself shows that the document was read over to them and thereafter Raghavan Vaidyar affixed his signature on all the pages of Ext. B2 Will in his presence and the other attesting witnesses, and they could see him signing it. Thereafter, he along with other attesting witnesses, after writing their names and addresses in the last page of Ext. B2 Will, affixed their signatures. Strangely enough, DW3 has no case that he along with the other attesting witnesses had affixed their signatures in the presence of the testator or that the testator could see them affixing their signatures in Ext. B2 Will. Therefore, such an attestation cannot be treated as proper and valid attestation within the meaning of S.63(c) of the Indian Succession Act.

23. In cross-examination, DW3 has deposed that the testator had given instructions to the document writer to prepare Ext. B2 Will while they were in the car. He clearly admitted that it is false to state that the signatures were affixed in Ext. B2 Will on 21.03.2001. Apart from that, the credibility of DW3 has also to be considered. He has clearly admitted that he was an accused in a vehicle theft case and further that another case was there against him when he was found in suspicious circumstances.

24. Execution of a document and registration of a document are totally different. The formalities for attestation contemplated under Section 63 of the Indian Succession Act is confined to the execution of a Will and not for its registration. A Will is not a compulsorily registrable document. In fact, registration has no importance at all; whereas, registration may result in some sort of added credibility on the proof of its execution. The presence of identifying witnesses before the Registrar cannot be substitute of valid attestation in the case of a Will. The attestation contemplated under Section 63(c) of the Indian Succession Act is confined to the execution and not the registration.

25. On a perusal of Ext. B2 Will and the written statement filed by defendants 1 to 3, it could be seen that the date of execution of Ext. B2 Will is 21.03.2001. When Ext. B2 Will was allegedly executed on 21.03.2001, it cannot be said that the attestation of such a document was on 27.03.2001. The document was registered on 27.03.2001 only. When it is shown that the document was executed on 21.03.2001, that date should be the date of its execution as well as attestation. It has clearly come out from the evidence of DW2 and DW3, that Ext. B2 Will was not executed on 21.03.2001, which date it bears as the date of its execution.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

RSA No. 779 of 2011 (A)

Decided On: 07.03.2017

K.C. Bindu and Ors. Vs.Leela Kollandi and Ors.

Hon'ble Judges/Coram:

B. Kemal Pasha, J.

Citation: AIR 2017(NOC)1119 Kerala

Print Page

What is doctrine of dependant relative revocation relating to proof of will?

 This Court had occasion to consider the doctrine of dependant relative revocation in Vadakkayil Gopalan v. Vadakkayil Paru and others [MANU/KE/0669/2013 : 2013 (3) KLT 69], wherein it has been held as follows:-

"The doctrine of dependent relative revocation is explained by Jarman on Wills, as follows:

"Where the act of destruction is connected with the making of another will, so as fairly to raise the inference that the testator meant the revocation of the old to depend upon the efficacy of the new disposition intended to be substituted, such will be the legal effect of the transaction and therefore, if the will intended to be substituted is inoperative from defect of attestation or any other cause, the revocation fails also, and the original will remains in force. The doctrine, which has been described as somewhat overloaded with unnecessary polysyllables, applies whenever the intention to revoke a will is conditional only and the condition is not fulfilled, and the doctrine may apply although the later will is partially effective."

Of course, this Court has held that even in cases wherein the doctrine of dependent relative revocation can be applied, it does not mean that the genuineness of the contents of the earlier will have to be swallowed and taken as granted without proof of the contents of the Will as contemplated under Section 63 of the Indian Succession Act read with Section 68 of the Indian Evidence Act.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

RSA No. 779 of 2011 (A)

Decided On: 07.03.2017

K.C. Bindu and Ors. Vs.Leela Kollandi and Ors.

Hon'ble Judges/Coram:

B. Kemal Pasha, J.

Citation: AIR 2017(NOC)1119 Kerala

Print Page

When it is not necessary to obtain probate of will?

 It can clearly be seen that the present Will is executed at Yavatmal which is admittedly not covered under the territories included in Clause, (a) of Section 57. For all other territories, if the property is an immovable property, it will be governed by the general rule of Section 213 if the property is an immovable property. However, admittedly, the property in question is not an immovable property. Therefore, the Will of the nature with which we are concerned would be governed by Clause (c) of Section 57. Now referring back to Section 213, it will be clear that the general rule, wherein it has been made necessary to obtain a probate or letter of administration for raising a right as executor or legatee, by virtue of Sub-section (2) has been made applicable to wills made by any Hindu. Buddhist. Sikh or Jaina where such Wills are referable to clauses specified in Clauses (a) and (b) of Section 57. It is, therefore, clear that the Wills of the nature covered by Sub-clause (c) of Section 57 are not covered by the general rule under Section 213, which requires a probate or letter of administration to enable a person to raise a claim to a right as an executor or legatee. The Legislature by exclusion has not made the provisions of Section 213 applicable to the Wills covered under the provisions of Sub-clause (c) of Section 57.

 Citation : 2004 (4)MhLj 887 ,2004 (4)MhLj 886

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

W.P. No. 2084 of 2002

Decided On: 29.03.2004

 Prabhakar s/o Chinappa Chavan Vs. State of Maharashtra

Hon'ble Judges/Coram:
B.R. Gavai, J.

Print Page

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'. 

IN THE HIGH COURT OF BOMBAY

Testamentary Suit No. 46 of 2008 in Testamentary Petition No. 105 of 2008

Decided On: 20.01.2015

 Yatin Gordhandas Dossa
Vs.
 Supriya Shailesh Patel

Hon'ble Judges/Coram:G.S. Patel, J.

Citation:2015 (5) Mh.L.J. 587

Print Page

How to prove death of attesting witnesses of will?

All the attesting witnesses are stated to have died.   Whether 

they have died would have to be proved by substantiating evidence.  The 
acceptable   mode   of   proof   would   be   the   death   certificate   issued   by   the 
municipality.  The plaintiff has not shown why the application for issue of a 

death   certificates   of   the   three   attesting   witnesses   is   not   made.     Merely 

stating that the witnesses are not alive and cannot be found is, therefore, 

not sufficient.  

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
TESTAMENTARY SUIT NO. 46 OF 1993
IN
TESTAMENTARY PETITION NO. 2 OF 1993

Smt. Usha Shrikant Rege Vs. Smt. Gauri Gajanan Rege

CORAM:  MRS. ROSHAN DALVI, J.

Dated : 15   SEPTEMBER, 2014
Citation;2014(6) MHLJ 781 Bom,   2016(1) ALLMR 801

Print Page

When it is not necessary to obtain probate of will for execution of decree?

Having considered the rival submissions, the only question which falls for consideration is whether it was imperative for the Petitioner to obtain probate so as to be entitled to purse execution proceedings to its logical end? This question can be answered with reference to Section 213 read with Section 57 of the Act. Section 213 reads thus:

"Right as executor or legatee when established -(1) No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in (India) has granted probate of the will under which the right is claimed, or has granted letters of administration with the will or with a copy of an authenticated copy of the will annexed.

(2) This section shall not apply in the case of wills made by Muhammadans and shall only apply -

(i) in the case of wills made by any Hindu, Buddhist, Sikh or Jaina where such wills are of the classes specified in clauses (a) and (b) of Section 57; and

(ii) in the case of wills made by any Parsi dying, after the commencement of the Indian Succession (Amendment) Act, 1962 (16 of 1962), where such wills are made within the local limits of the (ordinary original civil jurisdiction) of the High Courts at Calcutta, Madras and Bombay and where such wills are made outside those limits, in so far as they relate to Immovable property situated within those limits."

Section 57 reads thus :

"Application of certain provisions of Part to a class of wills made by Hindus etc. - The provisions of this Part which are set out in Schedule III shall, subject to the restrictions and modifications specified therein, apply-

(a) to all wills and codicils made by any hindu, Buddhist, Sikh or Jaina on or after the first day of September, 1870, within the territories which at the said date were subject to the Lieutenant-Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at madras and Bombay; and

(b) to all such wills and codicils made outside those territories and limits so far as relates to Immovable property situate within those territories or limits, and

(c) to all wills and codicils made by any Hindu, Buddhist, Sikh or Jaina on or after the first day of January, 1927, to which those provisions are not applied by clause (a) and (b).

provided that marriage shall not revoke any such will or codicil."

8. On conjoint reading of the above provisions, it would appear that only Wills specified in Clause (a) and (b) of Section 57 of the Act would require the executor or legatee to obtain probate/letters of Administration from the court of competent jurisdiction so as to pursue the right arising under the will to its logical end. This legal position is reinforced from the exposition of our High Court in Ahmed's case (supra) as well as Jyoti's case (supra). Therefore, the first question that needs to be considered is; whether the subject will is covered by Section 57, Clause (a) and (b) of the Act? As mentioned earlier, it is not in dispute that the suit property is situated at Pune and the will was also executed at Pune. If that is so, it is not possible to countenance the submission that Section 57(a) and (b) of the Act would apply. Understood thus, it was not necessary for the Petitioner to obtain probate so as to proceed with the execution proceedings.

Bombay High Court

Shri Bhagwanji Karsanbhai Rathod vs Shri Surajmal Anandraj Mehta on 8 July, 2003

Equivalent citations: AIR 2003 Bom 387, 2003 (5) BomCR 228, 2004 (1) MhLj 62, 2003(4)ALLMR85

Bench: A Khanwilkar

Print Page

Whether failure of testator to affix signature on one of pages of Will,will make will incomplete or inoperative?

There is an omission on the part of Kuttappu to affix his signature at page 3 of the will, at the place where he was expected to affix his signature. That there is an omission to sign the will at page 3 is also brought out from the evidence of PWs 2 and 3, who were confronted with the will in that regard. The question is whether the fact that Kuttappu failed to sign the will in one of the pages, should lead to a finding that the will cannot be said to be one duly executed by Kuttappu. No decision was brought to my notice in support of the proposition that failure to sign one of the middle pages of the will would make a will incomplete or inoperative. In the Goods of R. Porthouse (1897) ILR 24 Cal 784, it was held that omission of a testator to insert his name and description at the head of the document and to append his signature thereto, would not make the will incomplete, if he had affixed his signature in the attestation clause and completed the disposition clause bequeathing all his properties. The position appears to be that a will is not rendered invalid by the circumstances that the signature is placed among the words of the testamentary clause or the clause of attestation, if the Court is satisfied that the deceased intended by signing his name in attestation clause to execute his will. This position is accepted by the decision of the Punjab High Court in the decision in In re Mahabir Singh, AIR 1963 Punjab 66. Here, in Ext. X3 will, is clearly appended the signature of the testator Kuttappu at the bottom of the will, accepting the bequest made by him earlier and that signature is followed by the signature of the attestors. Pages 1 and 2 of the will are also signed by Kuttappu. There is no case that page 3 of the will to which Kuttappu had not affixed his signature has been substituted for the original or has been tampered with and was not part of the original will. In the absence of any such case, it cannot be held that the Courts below were unjustified in accepting Ext. X3 will as duly executed and complete. Section 63 of the Indian Succession Act also supports this position. Section 63(a) indicates that what is needed is for the attestor to sign or affix his mark to the will or authorise some other person to sign it on his behalf in his presence and at his direction. Section 63(b) indicates that the signature or mark of the attestor shall be so placed that it shall after that it was intended thereby to give effect to it as a will. The signature placed at the end of the will after the schedule of properties set out in the will and the attestation clearly satisfies the requirements of Section 63 of the Indian Succession Act. I have therefore no hesitation in overruling the contention on behalf of the plaintiff that the will could not be accepted since it had not been signed by the testator in page 3 of the will.
Will--Failure of testator to affix signature on one of the pages of the Will--Does not make the Will incomplete or inoperative as long as the testator signed at the bottom of the Will followed by attestors.

Kerala High Court

Baburajan vs Parukutty And Ors. on 27 February, 1998

Equivalent citations: AIR 1998 Ker 274

Bench: P Balasubramanyan

Print Page

Burden to prove that testatrix was of unsound mind is on defendant

2008(5)ALLMR639, 2008(5)BomCR653, 2008(6)MhLj386

IN THE HIGH COURT OF BOMBAY (PANAJI-GOA BENCH)

S.A. No. 27 of 1999

Decided On: 19.06.2008

Appellants: Janardan @ Govind Vassudeva Bhat and Ors.
Vs.
Respondent: Mortibai Ramchandra Bhat since deceased through her unknown legal heirs and Ors.

Hon'ble Judges/Coram:
N.A. Britto, J.

Property - Will - Suit properties belonged to P - After his death, property allotted to his widow M, in inventory proceedings - M bequeathed them to plaintiff by Will - Upon death of M, plaintiff filed suit for declaration of ownership - Defendants contended that M was of unsound mind - Will was not executed in presence of five witnesses therefore, null and void - Trial Court accepted objection raised by defendant - Hence, present appeal - Held, defendants failed to prove that Will was executed by M when she was of unsound mind - Requirement of five witnesses now replaced with three witnesses - Plaintiff became owner of suit properties after death of M - Defendant had no title to the same - Appeal allowed

Print Page

Probate for will made outside specific territory by Hindus is not required

A combined reading of Sections 213 and 57 of the Act would show that where the parties to the will are Hindus or the properties in dispute are not in territories falling under Section 57(a) and (b), sub-section (2) of Section 213 of the Act applies and sub-section (1) has no application. As a consequence, a probate will not be required to be obtained by a Hindu in respect of a will made outside those territories or regarding the immovable properties situate outside those territories. 

Supreme Court of India

Clarence Pais & Ors vs Union Of India on 22 February, 2001

Print Page

When probate of will executed by hindu is not necessary?

Minaxiben Shashikantbhai Patel Vs. Dist. Collector

Therefore, in view of the aforesaid legal position that for a Will executed by a Hindu qua the
immovable property situated outside the territory of original civil jurisdiction of High Court of Bombay and
Madras, the Probate is not compulsory for establishing the rights in the property 


JudgementDate; Oct 30,2006

Citations : 2006-LAWS(GJH)-10-27 , 2007-GLR-1-277 , 2007-GCD-1-392

Court : High Court Of Gujarat
Judges : Jayant Patel

Print Page

Whether it is necessary to obtain probate by hindus residing outside bombay?

"Will" is not executed within the territories mentioned in Section 57 (a) and (b) of the Act, provision to obtain probate is not mandatory in the light of Section 213 of the Act. Section 213 of the Act is not applicable to cases not covered by clauses (a) and (b) of the Section 57. Section 213 provides that this section shall not apply to the cases of Will and shall only apply in the cases of Will made by Hindu, Buddhist, Sikh or Jain where such "wills" are of classes specified in clauses (a) and (b) of Section 57. Section 213 relates to grant of probate and this section will not be applicable to the 'Will' executed by Hindu, Buddhist, Sikh or Jain, who are not residing within the territories mentioned in Section 57 (a) and.(b) of the Act

Madhya Pradesh High Court

Vijendra (Brijendra) Singh Yadav vs Smt. Rajkumari Yadav And Ors. on 8 July, 2005

Equivalent citations: 2005 (3) MPHT 486

Bench: S Jha

Print Page