Monday, January 17, 2022
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Unless ‘Will’ In Question Truly Represents The Last Wish & Propositions Of The Testator, The ‘Will’ Cannot Get The Approval Of The Court: SC

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The Supreme Court has said, an unfair disposition of property or an unjust exclusion of the legal heirs, particularly the dependants, is regarded as a suspicious circumstance. 

In the ordinary and natural course, a person could be expected to be more inclined towards the child taking his/her care; and it would be too unrealistic to assume that special love and affection towards one, maybe blue-eyed, child would also result in a person leaving the serving and needy child in lurch, observed by the court.

“An individual factor may not be decisive but, if after taking all the factors together, conscience of the Court is not satisfied that the Will in question truly represents the last wish and propositions of the testator, the Will cannot get the approval of the Court; and, other way round, if on a holistic view of the matter, the Court feels satisfied that the document propounded as Will indeed signifies the last free wish and desire of the testator and is duly executed in accordance with law, the Will shall not be disapproved merely for one doubtful circumstance here or another factor there,” said the Supreme Court. 

“In the ultimate analysis, we are satisfied that the Will in question is surrounded by various suspicious circumstances which are material in nature and which have gone unexplained. The cumulative effect of these suspicious circumstances is that it cannot be said that the testatrix was aware of and understood the meaning, purport and effect of the contents of the Will in question. The appellant, while seeking probate, has not only failed to remove and clear the aforesaid suspicious circumstances but has even contributed her own part in lending more weight to each and every suspicious circumstance.The Will in question cannot be probated from any standpoint,” held by two-judge bench of Justices AM Khanwilkar & Justice while dismissing the SLP.

The Supreme Court said, “when we look at the Will in question itself and examine the evidence adduced in regard to its execution, a few more factors of suspicion emerge on the face of the record.”

The Supreme Court questioned the will and observed, “A close look at the Will in question brings forth yet another interesting, nay disturbing, feature of its contents. Whilst in the first alternative in sub-clause (a) of Clause 1 of the bequeathing part of the Will, the testatrix expected that the appellant shall construct “residential facility of such covered area as is permissible under the Municipal Building Bye-laws at the time of my demise”, whereas, in sub-clause (b) thereof, the testatrix provided the alternative that the appellant shall carry out new construction “as is permissible under the Municipal Building Bye-laws”. The expression “at the time of my demise”, as occurring in sub-clause (a) does not occur in sub-clause (b). Now, it remains elementary that if a construction is to be raised, it has to conform to the Building Bye-laws or Regulations as in force and as applicable at the relevant time of construction. The testatrix could not have overridden the operation of law by providing that the construction could be raised as permissible under the Bye-laws at the time of her demise. If that was not the meaning of sub-clause (a), then it remains questionable as to why the expression “at the time of my demise” at all occurred there and the question further remains as to why the same was omitted in sub-clause (b)?”

“Therefore, literal reading of the Will in question makes it clear that the purported provision for the respondent No.1 is illusory and an eye wash because on the practical side, the provision is inexecutable and unenforceable; and the respondent No.1 is not likely to get anything thereunder,” said the Court. 

The Court noted, “It is a partly holograph document in the manner that its opening and concluding passages/clauses are handwritten whereas the other paragraphs/clauses are of electronic print.”

The counsel for the appellant has submitted that greater degree of presumption that arises in the case of a “holograph” Will, as enunciated in the case of Joyce Primrose Prestor , is applicable to the present case too, where the significant contents relating to the particulars of the person and bequeath, in the opening and concluding passages, are duly written in her own hand by the testatrix. 

The Supreme Court said, the submissions so made on behalf of the appellant carry their own shortcomings and demerits for the reason that the Will in question does not directly answer to the description of a “holograph” Will because, except for the opening and concluding passages, the entire Will is in electronic print. The core of bequeathing part is also in print and not in handwriting. In the case of Joyce Primrose Prestor, the entire Will was handwritten, which is not the case here. Coupled with this remains the admitted fact that even the handwritten portions are not of the diction of the testatrix herself. She had only copied them from a note available with her; and it is apparent from the document that such handwritten portions are jotted down on the base lines drawn on the paper. 

The Supreme Court decision came on a special leave appeal filed against the judgment and order dated 27.06.2014, whereby the High Court of Delhi at New Delhi has dismissed the appeal preferred by Kavita Kanwar and has affirmed the judgment and order dated 23.11.2009 as passed by the Additional District Judge, West District, Tis Hazari Courts, Delhi in Probate Case No. 465 of 2006, resulting in rejection of Kavita Kanwar prayer for grant of probate in relation to the Will dated 20.05.2003, said to have been executed by the mother (Mrs Pamela Mehta) of the contesting parties.

The prayer of the appellant for grant of probate in relation to the Will in question has been declined concurrently by the Trial Court and by the High Court essentially after finding several unexplained suspicious circumstances surrounding the Will in question. Being aggrieved, the present appellant who was appointed as the executor of the Will in question and who was, admittedly, the major beneficiary thereunder, has preferred special leave appeal while maintaining that execution of Will by the testatrix with due compliance of all the requirements of law has been clearly established on record and there has not been any such suspicious circumstance which might operate against the genuineness of the Will in question. 

The Court dismissed the SLP with a cost of Rs 50,000 on the appellant to be payable equally to the respondents.

Read the full judgement here;


-India Legal Bureau

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