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Case Law Digest On Will and Probate
Case Law Digest On Will and Probate
Case Law Digest On Will and Probate
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INTRODUCTION
What Is a Will?
Will: A Will is a solemn document by which a dead man entrusts to the living
to the carrying out of his wishes. S. S.2 (h) of India Succession Act, 1925[1]
provides that Will means the legal declaration of the intention of a person with
respect to his property, which he desires to take effect after his death.
Attesting means signing a document for the purpose of testifying the signature
of the executants.
In a Will, the testator bequeaths or leaves his property to the person or people
he chooses to leave his assets/belongings. A Hindu person by way of his Will
can bequeath all his property. However, a member of an undivided family
cannot bequeath his coparcenery interest in the family property.
S.59 of ISA provides that every person who is of sound mind and is not a minor
can make a Will.
U/s. 59 of ISA the existence of a sound mind is a sine quo non for the validity
of the Will. Most of the Wills are not made by young persons who are fully fit
but are made by persons who are aged and bed ridden Hence, law does not
expect that the testator should be in a perfect state of health, or that he should
be able to give complicated instructions as to how his property was to be
distributed. A sound disposing mind implies sufficient capacity to deal with
and understand the disposition of property in his Will -
1) the testator must understand that he is giving away his property to one or
more objects
3) he must also understand the persons and the extent of claims included as
well as those who are excluded from the Will.
Minors: A minor who has not completed the age of 18 years is not capable of
making Wills. The onus of proof on determining whether the person was a
minor at the time of making a Will is on the person who has relied upon the
Will. S.12 of the Indian Contract Act also provides that a minor is incompetent
to contract.
Restrictions on a Will
In Girish Dutt v. Datadin [AIR 1934 Oudh 35], the Will stated that the
property was to be transferred to a female descendant (who was unborn) only if
the person did not have any male descendant. The Court held that since the
transfer of property was dependent on the condition that there has to be no
male descendant, the transfer of interest was limited and not absolute and
thereby the transfer was void. For a transfer to an unborn person to be held
valid, absolute interest needs to be transferred and it cannot be a limited
interest.
S.114 of the ISA, 1925 provides that no bequest is valid whereby the vesting of
the thing bequeathed may be delayed beyond the lifetime of one or more
persons living at the testator’s death and the minority of some person who
shall be in existence at the expiration of that period, and to whom, if he attains
full age, the thing bequeathed is to belong.
The rule against perpetuity provides that the property cannot be tied for an
indefinite period. The property cannot be transferred in an unending way. The
rule is based on the considerations of public policy since property cannot be
made inalienable unless it is in the interest of the community. The rule against
perpetuity invalidates any bequest which delays vesting beyond the life or lives-
in-being and the minority of the donee who must be living at the close of the
last life. Hence property can be transferred to an unborn person who has to be
born at the expiration of the interest created and the maximum permissible
remoteness is of 18 years i.e the age of minority in India.
In Stanely v. Leigh [1732 -2 PWMS 686] it was laid down that for the rule of
perpetuity to be not applicable there has to be 1) a transfer 2) an interest in an
unborn person must be created 3) takes effect after the life time of one or more
persons and during his minority 4) unborn person should be in existence at
the expiration of the interest.
S.116 of ISA provides that where by reason of any of the rules contained in
sections 113 and 114 and bequest in favour of a person of a class of persons is
void in regard to such person or the whole of such class, any bequest
contained in the same Will and intended to take effect after or upon failure of
such prior bequest is also void.
Wills or Wasiyat
Wills or bequest[s] or Wasiyat derive their authority and sanctity from the
sacred texts of the Quran.
“It is prescribed to you when death approaches any one of you and that he is to
leave any wealth behind, he should bequeath equitably to his parents and
kindred.”
“And such of you as feel the approach of death and are to die and leave wives
behind shall bequeath for their wives a year’s maintenance without requiring
them to quit their homes.”
There are a number of precepts of the Prophet on this subject. The arguments
advanced by the learned doctors in support of this bequest are that there is an
indispensable necessity that man should have the power of making bequests
for, man from the delusion of his hopes, is improvident and deficient in
practice, but when mortal sickness invades him, he gets alarmed at that time;
therefore, he stands in need of compensateion for his deficiencies by means of
his property — and this in such manner that if he should die of the illness, his
object, namely, compensation for his deficiencies and merit in a future state,
may be obtained, but if he were to recover, the property will still be his.
(i) In the full possession of his senses at the time. A will made by an insane
person is not valid. If he makes it at a time when he was in full senses but
again relapses to insanity and that condition lasts for at least six months, the
bequest will become invalid, otherwise not.
(iii) He must not be indebted to an extent that his debt is equivalent in value to
his whole property.
A bequest can be only to the extent of a third or 1/3rd of the testator’s property
but not to any further extent.
A bequest to any amount exceeding 1/3rd of the testator’s property is not valid.
In proof of this is the Hadith as reported by Abu Wakas: “In the year of the
Conquest of Mecca, being taken so seriously ill that my life was despaired of,
the Prophet of God came to pay me a visit of consolation. I told him that by the
blessing of God [I had] a great estate but no heir except a daughter, I wish[ed]
to know if I might dispose of it all by will. He replied, ‘No’ and when I went on
asking if I might bequest two-thirds or one-half’ he replied again in the
negative, but when I asked,”If I do so to the extent of one-third, he answered,
‘Yes, you can bequeath one-third of your property by will, and a third part to be
disposed of by will is a great portion; and it is better that you should leave your
heirs affluent than in a state of poverty which might oblige them to beg of
others.”In the case of heirs consenting to it, a bequest of more than one-third of
the property which by itself is not valid becomes valid. Whether the person in
whose favour the Will is made is an heir or not, must be determined not at the
time of the Will but after the testator’s death.
Executor
The testator may appoint any person to carry out the directions of the testator.
He is called the executor. He may be a man or woman, a stranger, or a relative.
The appointment may be for a specific purpose or may be general. If a
testamentary disposition is invalid, the appointment of the executor would
remain valid so far as the guardianship of minor children and their education
are concerned. It is the duty of the executor to pay the funeral expenses, the
debts and the legacies, and to administer the estate generally.
Critical analysis of the difference between wills – Hindu law and Muslim
law-
1. Governing law-
Hindu law of wills is governed by ISA 1925. Which includes the form of wills,
formalities, capacity, subject matter of wills, and revocation to every other
related matter of wills in a codified manner. Whereas in Muslim law it is
governed by their personal law.
2. perpetuity –
A Hindu will cannot be made for a indefinite period or for time immemorial,
every Hindu will made under due process of law has to be of a definite period of
time. Whereas a Muslim can make a will for an indefinite period in the form of
wakfs or in the name of charity, using the usufructs for the benefit of his own
family.
4. Quantum of share
In Hindu law wife and mother gets an equal share. In Muslim law it’s done
according to the quantum of interest in the testamentary property provided in
Quran. It even includes property given to more than one wife.
Hindu law- Male heirs get an equal share as compared to females in a Hindu
joint family property. More precisely after 2005 amendment in the Hindu
succession act 1956 where daughters get an equal share as that of a son and
thus share equal rights and liabilities in a coparcenory system of Hindu joint
family.
Muslim law- Male heirs’ gets double the share as compared to the female heirs,
according to the amount provided for devolution of interest in the property.
In Hindu law the concept of “Marz Ul Maut” does not exist in hindu law.
Though a similar concept of death bed gifts happens to be in existence know as
“Donation Mortis Causa”.
Muslim law- The concept of “Marz Ul Maut” exists; it is form of death bed gift.
When person has real apprehension of death due to a particular illness he can
gift out 1/3rd property to any one of the family members or even a stranger.
Also know as gift of amphibious nature. Re beaumont [1902]
6. Formalities-
In Hindu law Sec-63 of the ISA 1925 provides for proper formalities to be
performed for formation of a valid will.
Muslim law- As for official formation of will there is no need of any particular
formalities but mere bonafide intention to make a will would suffice. Even
absence of signature of the testator would not affect the validity of the will.
Hindu law- Sec- 62 of the ISA 1925 deals with will which are revocable and
sec- 70 of the ISA 1925 deals with the method or the manner in which the will
has to be revoked.
In a Hindu will the executor is bound to take out the probate to show his
authority to execute the will.
Muslim law- In a wassiyat the executor is not bound to show the probate for
executing a will.
8. History of law-
The concept of making a will or wassiyat was unknown to the original Hindu
law or the personal law of Hindus.
Muslim law- Making of a wassiyat is an age old process in Muslim law as it has
been described in Quran; moreover Hedaya contains a detailed description of
Muslim wills or wassiyat.
CASE LAWS
The Hon’ble Supreme court of India in Rur Singh (D) Th. LRS. & Ors. Vs
Bachan Kaur JUSTICE S.B. Sinha JUSTICE Dr. Mukundakam Sharma
New Delhi February 12, 2009, Succession Act, 1925 : S. 63(c) -
Execution of a Will is required to be proved in terms of the provisions of s. 63(c)
of the Succession Act, 1925 and s. 68 of the Evidence Act, 1872. The Will was
attested by nine independent persons. Three of them in fact had been
examined. The High Court while holding that a doubt is cast on its validity by
reason of active participation of one of the sons, failed to notice that nine other
independent witnesses attested the Will. Importance cannot be attached to the
fact that although the Sarpanch scribed the Will in Urdu, he at more than one
place signed in English. In a village, a person may be more proficient in the
vernacular language than English although he may be able to sign his name in
English. If the Will was otherwise proved to be genuine and the statutory
requirements therefor were satisfied, only because the panchayat register was
not produced, the same by itself would not lead to the conclusion that the Will
would be held to have not been executed, particularly when two courts
competent to arrive at findings of fact held it otherwise.
(i) Where a will has been properly executed and registered by the testator but
not found at the time of death the question whether the presumption that the
testator had revoked the will can be drawn or not will depend on the facts and
circumstances of each case. Even if such a presumption is drawn it is rather a
weak one in view of the habits and conditions of our people.
(ii) Such a presumption is a rebuttable one and can be rebutted by the slightest
possible evidence, direct or circumstantial. For instance, where it is proved that
a will was a strong and clear disposition evincing the categorical intention of
the testator and there was nothing to indicate the presence of any
circumstance which is likely to bring about a change in the intention of the
testator so as to revoke the will suddenly, the presumption is rebutted.
(iii) In view of the fact that in our country most of the people are not highly
educated and do not in every case take the care of depositing the will in the
bank or with the Solicitors or otherwise take very great care of the will as a
result of which the possibility of the will being stolen, lost or surreptitiously
removed by interested persons cannot be excluded, the presumption should be
applied carefully.
(iv) Where the legatee is able to prove the circumstances from which it can be
inferred that there could be absolutely no reason whatsoever for revoking the
will or that the Act of revoking the will was against the temperament and
inclination of the testator, no presumption of revocation of the will can be
drawn.
(v) In view of the express provision of section 70 of the Indian Succession Act
the onus lies on the objector to prove the various circumstances, viz., marriage,
burning, tearing or destruction of the will.
(vi) When there is no obvious reason or clear motive for the testator to revoke
the will and yet the will is not found on the death of the testator it may well be
that the will was misplaced or lost or was stolen by the interested persons.
Adivekka & Ors. VS Hanamavva Kom Venkatesh 'D' By LRs. & Anr
BENCH: S.B. Sinha & Markandey Katju AIR 2007 SC 2025,
The High Court was not correct in setting aside the judgment of the Trial Judge
that execution of Will has not been proved.
The subject matter of the Will was a piece of agricultural land. That was the
only agricultural land in possession of the testator. He was although owner of
four houses, according to the appellants, the same had not been generating
any income. Admittedly, the appellants, other than son of H were residing with
him. Therefore, it is difficult to believe that respondent no. 1 had been looking
after him or despite her marriage with respondent no. 2, she had been residing
in his house.
It may or may not be true that testator's son B had been residing separately,
but evidently he had been able to perform the marriage of only one of his
daughters and, thus, six other daughters were yet to be married. Assuming
that respondent No. 1 was brought up by him, she was married. Her husband
was affluent. He could afford to purchase the property in question. Thus, there
was apparent reason to execute a Will in her favour depriving his wife and
children.
There is no explanation as to why a Will had to be executed and registered
without the knowledge of his wife by H. There is nothing on record to show that
the testator had any special love or affection for respondent no. 1. Respondent
No. 1 did not examine herself. According to her, she was not even aware of the
execution of the Will. She came to know the same at a much later stage, i.e.,
after lapse of 10-12 months. How and on what basis she obtained the
possession of the original Will is not known. On what basis the Sub-Registrar
handed over possession of the Will to husband of Respondent No. 1 has not
been disclosed. Had she examined herself, she could have been accosted with
the said question. It could have been shown that H did not have any love and
affection for her. Non-examination of the party to the lis would lead to drawal of
an adverse inference against her.
Savithri & Ors VS Karthyayani Amma & Ors BENCH: S.B. Sinha & Harjit
Singh Bedi J AIR 2008 SC 300
The legal requirement in terms of section 63 of the Indian Succession Act, 1925
and section 68 of the Evidence Act, 1872 is that a Will like any other document
is to be proved in terms of the provisions of the Act. The onus of proving the
Will is on the propounder. The testamentary capacity of the testator must also
be established. Execution of the Will by the testator has to be proved. At least
one attesting witness is required to be examined for the purpose of proving the
execution of the Will. It is required to be shown that the Will has been signed
by the testator with his free will and that at the relevant time he was in sound
disposing state of mind and understood the nature and effect of the
disposition. It is also required to be established that he has signed the Will in
the presence of two witnesses who attested his signature in his presence or in
the presence of each other. Only when there exist suspicious circumstances,
the onus would be on the applicant to explain them to the satisfaction of the
court before it can be accepted as genuine.
The submission that if both KN and SN were to bequeath their entire right, title
and interest in the properties in favour of the respondents by way of family
arrangement or otherwise, no deed of partition was required to be executed,
cannot be accepted as thereby they would have lost their interest in the
property during their life time. They evidently intended to have life interest in
the property, bequeathing the same in favour of the respondents. The parties
are governed by Marumakkattayam School of Hindu Law. The sisters in the
family have a role to play. The fact that the testator was totally dependent on
his nephew and nieces is beyond any dispute. He lost his employment in the
year 1959. Apart from the properties which were subject-matter of the Will, he
had no other independent source of income. Being totally dependent on the
respondents and having been suffering from cancer, he was bound to place
implicit faith and confidence only upon those who had been looking after him.
The Will was admittedly registered. The testator lived for seven years after
execution of the Will. He could change his mind; he did not. The very fact that
he did not take any step for cancellation of the Will is itself a factor which the
Court may take into consideration for the purpose of upholding the same. The
question as to whether the Registrar was brought to the house of the
propounder or he had gone to the Registrar's office is not a matter which
requires serious consideration. But it may be noticed that the witness
examined on behalf of the respondents, DW-2, categorically stated that he had
gone to the Registrar's office to get the same registered. Execution of the will
might have taken place at the house of SN, but according to DW-2 he came to
his office even after registration. Even the other Will was also scribed by him
and he was an attesting witness therein also.
It is not correct to contend that DW-2 could not have been the attesting
witness. He in his deposition categorically stated that he had seen the Will
being read over to the propounder. The witnesses and he had seen SN putting
his signature on the Will. SN had also seen the witnesses putting their
signatures. This satisfies the requirements of the provisions of section 63 of the
Indian Succession Act, 1925 and section 68 of the Evidence Act, 1872.
It was appellant's case that the signature of the testator on the Will was
obtained under undue influence or coercion. The onus to prove the same was
on them. They have failed to do so. If the propounder proves that the Will was
signed by the testator and he at the relevant time was in sound disposing state
of mind and understood the nature and effect of disposition, the onus stands
discharged. For this purpose the background fact of the attending
circumstances may also be taken into consideration.
Deprivation of a due share by the natural heirs itself is not a factor which
would lead to the conclusion that there exist suspicious circumstances. The
son was not meeting his father. He had not been attending to him. He was not
even meeting the expenses for his treatment from 1959, when he lost his job
till his death in 1978. The testator was living with his sister and her children. If
in that situation, if he executed a Will in their favour, no exception thereto can
be taken. Even then, something was left for the appellant.
The conscience of the court must be satisfied. In the instant case, the High
Court has considered the relevant factors. It has been found that the Will was
the product of the free will. He had executed the Will after knowing and
understanding the contents thereof.
The law relating to the capacity or the right of a Hindu to execute a Will his
share of property in the coparcenary property has seen a sea change
subsequent to coming into force of Hindu Succession Act of 1956. Section
4(1)(a) and (b) of the Act is of relevance, which reads as under:
(a) any text, rule or interpretation of Hindu Law or any custom or usage as part
of that law in force immediately before the commencement of this Act shall
cease to have effect with respect to any matter for which provision is made in
this Act;
(b) any other law in force immediately before the commencement of this Act
shall cease to apply to Hindus insofar as it is inconsistent with any of the
provisions contained in this Act.
46. By reading Section 4(1)(a) and (b), it is very clear if there is any express
provision in the codified law, it is the duty of the Court to look into the said
provision. In other words, it alone shall govern the rights of the parties though
there is radical alteration or modification from the previous law. If no provision
is made in the 'Act', the old law shall be applicable. Therefore, one has to
necessarily look into whether any provision in the Act, either specifically or by
necessary implication empowers or enables a Hindu to Will away his share in
the coparcenary property.
47. After coming into effect of Hindu Succession Act of 1956, it is the duty of
the Court to see the circumstances and the law prevailing on the date of the
death of the testator in order to put a seal of validity and genuineness to the
disputed Will. Section 30 of the Hindu Succession Act, 1956 reads as under:
Valliammai Achi vs Nagappa Chettiar & Ors 1967 AIR 1153, 1967 SCR (2)
448 A father in a Mitakshara family has a very limited right to make a will and
Pallaniappa's father could not make the will disposing of the entire joint family
property, though he gave the residue to his son. We are therefore of
opinion,that merely because Pallanappa's father made the will and Pallaniappa
probably as a dutiful son took out probate and carried out the wishes of his
father, the nature of the property could not change and it will be joint family
property in the hands of Pallaniappa so far as his male issues are concerned.
Further it is equally well settled that under the Mitakshara law each son upon
his birth takes an interest equal to that of his father in ancestral property,
whether it be movable or immovable. It is very important to note that the right
which the son takes at his birth in the ancestral property is wholly
independent of his father. He does not claim through the father...." (see Mulla's
Hindu Law, Thirteenth Edition, p. 251, para 224). It follows therefore that the
character of the property did not change in this case because of the will of
Pallaniappa's father and it would still be joint family property in the hands of
Pallaniappa so far as his male issue was concerned. Further as soon as the
respondent was adopted he acquired interest in the joint family property in the
hands of Pallaniappa and this interest of his was independent of his father
Pallaniappa. In such circumstances even if Pallaniappa could be said to have
made an election there can be no question of the respondent being bound by
that election, for he is not claiming through his father.
Bhagat Ram And Anr. vs Suresh And Ors. AIR 2004 SC 436, The Registrar
of Deeds who had registered a document in discharge of his statutory duty,
does not become an attesting witness to the deed solely on account of his
having discharged the statutory duties relating to the registration of a
document. Registration of any will, and the endorsements made by the
Registrar of Deeds in discharge of his statutory duties do not elevate him to the
status of a 'statutory attesting witness'. However, a registrar can be treated as
having attested to a will if his signature or mark appears on the document akin
to the one placed by an attesting witness and he has seen the testator sign or
affix his mark to the will or codicil or has received from the testator a personal
acknowledgement of his signature or mark and he has also signed in the
presence of the testator. In other words, to be an attesting witness, the
registrar should have attested the signature of the testator in the manner
contemplated by Clause (c) of Section 63 of the Succession Act. No particular
form of attestation is provided. It will all depend on the facts and
circumstances of a case by reference to which it will have to be answered if the
registrar of deeds fulfils the character of an attesting witness also by looking at
the manner in which the events have actually taken place at the time of
registration and the part played therein by the Registrar. .. A Registrar of Deeds
before he be termed an attesting witness, shall have to be called in the witness
box. The court must feel satisfied by his testimony that what he did satisfies
the requirement of being an attesting witness. ….. Registration of a document
does not dispense with the need of proving the execution and attestation of a
document which is required by law to be proved in one manner as provided in
Section 68 of the Evidence Act. Under Section 68 of the Registration Act the
Registrar shall endorse the following particulars on every document admitted to
registration:
(1) the date, hour and place of presentation of the document for registration;
(2) the signature and addition of every person admitting the execution of the
document, and, if such execution has been admitted by the representative,
assign of agent of any person, the signature and addition of such
representative, assign or agent;
(3) the signature and addition of every person examined in reference to such
document under any of the provisions of this Act, and
(4) any payment of money or delivery of goods made in the presence of the
registering officer in reference to the execution of the document, and any
admission of receipt of consideration, in whole or in part, made in his presence
in reference to such execution.
Janki Narayan Bhoir v. Narayan Namdeo Kadam, AIR 2003 SC 761, [(2003)
2 SCC 91] laid down the law on interpretation and application of Section 71 of
the Act in the following terms: "11. Section 71 of the Evidence Act is in the
nature of a safeguard to the mandatory provisions of Section 68 of the
Evidence Act, to meet a situation where it is not possible to prove the execution
of the will by calling the attesting witnesses, though alive. This section provides
that if an attesting witness denies or does not recollect the execution of the will,
its execution may be proved by other evidence. Aid of Section 71 can be taken
only when the attesting witnesses, who have been called, deny or fail to
recollect the execution of the document to prove it by other evidence. Section
71 has no application to a case where one attesting witness, who alone had
been summoned, has failed to prove the execution of the will and other
attesting witnesses though are available to prove the execution of the same, for
reasons best known, have not been summoned before the court. It is clear from
the language of Section 71 that if an attesting witness denies or does not
recollect execution of the document, its execution may be proved by other
evidence. However, in a case where an attesting witness examined fails to prove
the due execution of will as required under clause ( c ) of Section 63 of the
Succession Act, it cannot be said that the will is proved as per Section 68 of the
Evidence Act. It cannot be said that if one attesting witness denies or does not
recollect the execution of the document, the execution of will can be proved by
other evidence dispensing with the evidence of other attesting witnesses though
available to be examined to prove the execution of the will"
Section 71 of the Evidence Act is in the nature of a safeguard to the mandatory
provisions of Section 68, Evidence Act, to meet a situation where it is not
possible to prove the execution of the will by calling attesting witnesses, though
alive. This Section provides that if an attesting witness denies or does not
recollect the execution of the will, its execution may be proved by other
evidence. Aid of Section 71 can be taken only when the attesting witnesses,
who have been called, deny or fail to recollect the execution of the document to
prove it by other evidence. Section 71 has no application to a case where one
attesting witness, who alone had been summoned, has failed to prove the
execution of the will and other attesting witnesses though are available to prove
the execution of the same, for the reasons best known, have not been
summoned before the court. It is clear from the language of Section 71 that if
an attesting witness denies or does not recollect execution of the document, its
execution may be proved by other evidence.
However, in a case where an attesting witness examined fails to prove the due
execution of will as required under clause (c) of Section 63 of the Succession
Act, it cannot be said that the Will is proved as per Section 68 of the Evidence
Act. It cannot be said that if one attesting witness denies or does not
recollect the execution of the document, the execution of will can be proved by
other evidence dispensing with the evidence of other attesting witnesses though
available to be examined to prove the execution of the will. Yet, another reason
as to why other available attesting witnesses should be called when the one
attesting witness examined fails to prove due execution of the Will is to avert
the claim of drawing adverse inference under Section 114 illustration (g) of
Evidence Act. Placing the best possible evidence, in the given circumstances,
before the Court for consideration, is one of the cardinal principles of Indian
Evidence Act. Section 71 is permissive and an enabling Section permitting a
party to lead other evidence in certain circumstances. But Section 68 is not
merely an enabling Section. It lays down the necessary requirements,
which the Court has to observe before holding that a document is
proved. Section 71 is meant to lend assistance and come to the rescue of a
party who had done his best, but driven to a state of helplessness and
impossibility cannot be let down without any other means of proving due
execution by "other evidence" as well. At the same time Section 71 cannot be
read so as to absolve a party of his obligation under Section 68 read with
Section 63 of the Act and liberally allow him, at his will or choice to make
available or not a necessary witness otherwise available and amenable to the
jurisdiction of the court concerned and confer a premium upon his omission or
lapse, to enable him to give a go bye to the mandate of law relating to proof of
execution of a will.
Turning to the facts of the case on hand, it is evident that only one
attesting witness Prabhakar Sinkar, examined in the case, did not prove the
execution of the Will inasmuch as he did not prove the attestation of the Will by
the other attesting witness Wagle who though available was not examined. The
scribe examined in the case was not an attesting witness, which is clear from
the evidence on record and as rightly conceded so by learned counsel for the
respondent before us. Hence, it is unnecessary to go into the question whether
the scribe in this case could or could not be an attesting witness. The evidence
of Sinkar, the only attesting witness, does not satisfy the mandatory
requirements of Section 68 of the Evidence Act. We are not in a position to
accept the contention urged on behalf of the respondent that the evidence of
other witnesses, namely, that of the respondent and the scribe could be
considered under Section 71 of the Evidence Act. Section 71 has no
application when the one attesting witness, who alone has been summoned,
has failed to prove the execution of the will and other attesting witness though
available has not been examined. When the document is not proved as
mandatorily required under Section 68 of the Evidence Act, the provision of
Section 71 of the Evidence Act, which is permissive, and enabling in certain
circumstances as discussed above does not help the respondent. In Vishnu
Ramkrishna & Ors. v. Nathu Vithal & Ors. [(AIR) 1949 Bom. 266], Chagla, C.J.,
speaking for the Division Bench in similar circumstances has stated that
although Section 63 of the Succession Act requires that a will has to be
attested by two witnesses, Section 68 of the Evidence Act permits the execution
of the will to be proved by only one attesting witness being called. Where the
attesting witness, who is called to prove the execution, is not in a position to
prove the attestation of the will by the second witness, the evidence of the
witness called falls short to the mandatory requirements of Section 68. Section
71 of the Evidence Act can only be requisitioned when the attesting witnesses
who have been called failed to prove the execution of the will by reason of either
denying their own signatures or denying the signature of the testator or having
no recollection as to the execution of the document. This Section has no
application when one attesting witness has failed to prove the execution of the
will and other attesting witnesses were available who could prove the execution
if they were called.
Benga Behera & Anr vs Braja Kishore Nanda & Ors (AIR 2007 SC 1975), A
document upon which a title is based is required to be proved by primary
evidence, and secondary evidence may be given under Section 65(c) of the
Evidence Act. Loss of the original, therefore, was required to be proved. In a
case of this nature, it was obligatory on the part of the first respondent to
establish the loss of the original Will, beyond all reasonable doubt. His
testimony in that behalf remained uncorroborated. Furthermore, secondary
evidence, could be led by production of a certified copy given in terms of the
provisions of the Indian Registration Act. In support of the proof of the Will,
purported Xerox copy and a certified copy thereof have been produced. In the
Xerox copy, an endorsement has been made by an advocate that the executant
was his client and it was written by his clerk in his office on his dictation,
whereas in the certified copy there is no such endorsement of the advocate. A
question has also been raised as to whether a certificate by Sub-Registrar at
the time of registration proves attestation. A Sub-Registrar in the matter of
registration of a document acts under the provisions of the Registration Act,
1908. S.52 of the 1908 Act prescribes the duty of Registering Officer when
document is presented in terms thereof. The signature of every person
presenting a document for registration is required to be endorsed on every such
document at the time of presentation. If an authority in performance of a
statutory duty signs a document, he does not become an attesting witness
within the meaning of s.3 of the Transfer of Property Act and s.63 of the
Succession Act. "Animus attestandi" is a necessary ingredient for proving the
attestation. If a person puts his signature in a document only in discharge of
his statutory duty, he may not be treated to be an attesting witness.
Therefore this is the only duty cast on the Registering authority to endorse on
the will, i.e. to endorse only the admission or execution by the person who
presented the document for registration. The compliance of this provision leads
to the legal presumption that the document was registered and nothing else.."
It is now well settled that requirement of the proof of execution of a Will is the
same as in case of certain other documents, for example Gift or Mortgage. The
law requires that the proof of execution of a Will has to be attested at least by
two witnesses. At least one attesting witness has to be examined to prove
execution and attestation of the Will. Further, it is to be proved that the
executant had signed and/or given his thumb impression in presence of at
least two attesting witnesses and the attesting witnesses had put their
signatures in presence of the executant.
(i) When a doubt is created in regard to the condition of mind of the testator
despite his signature on the Will;
(ii) When the disposition appears to be unnatural or wholly unfair in the light of
the relevant circumstances;
(iii) Where propounder himself takes prominent part in the execution of Will
which confers on him substantial benefit.
Savithri & Ors vs Karthyayani Amma & Ors (2007) 11 SCC 621] A Will like
any other document is to be proved in terms of the provisions of the Indian
Succession Act and the Indian Evidence Act. The onus of proving the Will is on
the propounder. The testamentary capacity of the propounder must also be
established. Execution of the Will by the testator has to be proved. At least one
attesting witness is required to be examined for the purpose of proving the
execution of the Will. It is required to be shown that the Will has been signed
by the testator with his free will and that at the relevant time he was in sound
disposing state of mind and understood the nature and effect of the
disposition. It is also required to be established that he has signed the Will in
the presence of two witnesses who attested his signature in his presence or in
the presence of each other. Only when there exist suspicious circumstances,
the onus would be on the propounder to explain them to the satisfaction of the
court before it can be accepted as genuine.
In Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao & Ors. [2006 (14)
SCALE 186], Court held : Section 63 of the Indian Evidence Act lays down the
mode and manner in which the execution of an unprivileged Will is to be
proved. Section 68 postulates the mode and manner in which proof of
execution of document is required by law to be attested. It in unequivocal
terms states that execution of Will must be proved at least by one attesting
witness, if an attesting witness is alive subject to the process of the court and
capable of giving evidence. A Will is to prove what is loosely called as primary
evidence, except where proof is permitted by leading secondary evidence.
Unlike other documents, proof of execution of any other document under the
Act would not be sufficient as in terms of Section 68 of the Indian Evidence
Act, execution must be proved at least by one of the attesting witnesses. While
making attestation, there must be an animus attestandi, on the part of the
attesting witness, meaning thereby, he must intend to attest and extrinsic
evidence on this point is receivable. The burden of proof that the Will has been
validly executed and is a genuine document is on the propounder. The
propounder is also required to prove that the testator has signed the Will and
that he had put his signature out of his own free will having a sound
disposition of mind and understood the nature and effect thereof. If sufficient
evidence in this behalf is brought on record, the onus of the propounder may
be held to have been discharged. But, the onus would be on the applicant to
remove the suspicion by leading sufficient and cogent evidence if there exists
any. In the case of proof of Will, a signature of a testator alone would not prove
the execution thereof, if his mind may appear to be very feeble and debilitated.
However, if a defence of fraud, coercion or undue influence is raised, the
burden would be on the caveator. [See Madhukar D. Shende v. Tarabai
Shedage (2002) 2 SCC 85 and Sridevi & Ors. v. Jayaraja Shetty & Ors. (2005) 8
SCC 784]. Subject to above, proof of a Will does not ordinarily differ from that
of proving any other document.
Gurdial Kaur and Others v. Kartar Kaur and Others [(1998) 4 SCC 384],
wherein it was held : 4. The law is well settled that the conscience of the court
must be satisfied that the Will in question was not only executed and attested
in the manner required under the Indian Succession Act, 1925 but it should
also be found that the said Will was the product of the free volition of the
executant who had voluntarily executed the same after knowing and
understanding the contents of the Will. Therefore, whenever there is any
suspicious circumstance, the obligation is cast on the propounder of the Will to
dispel the suspicious circumstance. As in the facts and circumstances of the
case, the court of appeal below did not accept the valid execution of the Will by
indicating reasons and coming to a specific finding that suspicion had not been
dispelled to the satisfaction of the Court and such finding of the court of appeal
below has also been upheld by the High Court by the impugned judgment, we
do not find any reason to interfere with such decision. This appeal, therefore,
fails and is dismissed without any order as to costs.
In Navneet Lal Vs Gokul and others reported in 1976 (1) SCC 630, a bench
of three judges of this court was concerned with an almost identical situation,
wherein a life estate was created by the testator in favour of his wife. After
going through the will, this Court held that it was permissible for the testator
to create a limited estate in favour of his wife by making a will.
S.B. Itigi and anr vs Sulochana and ors ILR 2007 Kar 247 wherein
Karnataka High court has observed that, non signing on the first page of the
Will creates doubt, in normal course the signature of the testator will be upon
all the pages.
The Apex Court in a judgment reported in 2008 AIR SCW 5666 in the
matter of Baljinder Singh vs. Rattan Singh has held, the Will executed and
registered not at place where testator usually visited or resided. The attesting
witness not known to testator, and Will does not make any reference to the real
son of the testator creates a Will as suspicious.
In Shivdev Kaur (D) by L.Rs. & Ors. v. R.S. Grewal (Civil Appeal
Nos.5063-5065 of 2005, decided on 20.3.2013), Court dealt with the issue
of Section 14(2) of the Act 1956 and held :- “Thus, in view of the above, the law
on the issue can be summarised to the effect that if a Hindu female has been
given only a “life interest”, through Will or gift or any other document referred
to in Section 14 of the Act 1956, the said rights would not stand crystallised
into the absolute ownership as interpreting the provisions to the effect that she
would acquire absolute ownership/title into the property by virtue of the
provisions of Section 14(1) of the Act 1956, the provisions of Sections 14(2) and
30 of the Act 1956 would become otios. Section 14(2) carves out an exception
to rule provided in sub-section (1) thereof, which clearly provides that if a
property has been acquired by a Hindu female by a Will or gift, giving her only
a “life interest”, it would remain the same even after commencement of the Act
1956, and such a Hindu female cannot acquire absolute title.”
It is well settled that if the persons who would get the property of the testator
by inheritance are deprived of the said property by a Will and no reasons are
coming forward to explain this disinheritance, that itself constitutes a
suspicious circumstance. Then again a duty is cast on the propounder of the
Will to remove the said suspicious circumstance. In the Will all that has been
said is, testator has performed the marriages of his daughter and the plaintiff
and none of them are living with him. He has given them gold ornaments and
stree dhana; he does not want any dispute after his death in respect of his
share in the joint family property and therefore he is making the Will.
Absolutely no material is placed on record by the propounder of the Will to
show what is that stree dhana given to the plaintiff and to the other daughters.
In so far as gold ornaments are concerned, it is customary in a Hindu family
especially when people are coming from a fairly affluent rich family as that of
the parties to the proceedings, daughters are given these gold ornaments. That
cannot be construed as a share in a joint family property. If any property is
given as stree dhana out of the joint family property, probably that would be a
sufficient ground to deny a share in the joint family property. Though there is a
reference to stree dhana in the Will, absolutely no evidence is place on record.
On the contrary, the evidence on record discloses, not an inch in the joint
family property is given to the plaintiff in particular and to the daughters of the
deceased testator. If no stree dhana property out of the joint family property is
given and if no reasons are given for denying the daughters of the family and
the plaintiff who is a son's daughter, that itself constitutes a suspicious
circumstance, which compels the propounder to give satisfactory explanation
to discharge the said suspicious circumstance. No evidence is coming forward
in this direction. If really the testator wanted to exclusively give his share in the
joint family property to his two sons and he had no intention of giving any such
property to his daughters or to the plaintiff who is none other than a son's
daughter and he bequeathed his undivided share under Ex.D.3, three years
thereafter he has effected a partition of the joint family property by way of a
Registered Partition Deed- Ex.P.2 dated 05.08.1959. In the said registered
partition deed there is no reference to this Will-Ex.D.3. The recitals in the said
partition deed makes it clear in order to prevent any disputes arising in future
and consequently the family getting into difficulties, the parties, i.e., the
testator and his two sons, decided that it is proper to live separately. Therefore
they effected partition of all the joint family properties under Ex.P.2; the gold
and silver utensils and other household articles were distributed, then the
immovable properties were divided into three shares, i.e., A, B & C. 'A' share
was allotted to the share of the testator; 'B' and 'C' shares were allotted to the
share of the defendant nos. 1 and 2. Full description of the properties were
given. On the day the partition deed was executed the testator Totappa was not
in a position to affix his signature due to a paralytic stroke and therefore he
put his left hand thumb impression, it is on 05.08.1959. He died on
15.03.1960. It is in this context, it is necessary to find out when did this
paralytic stroke occurred, because as the Will was executed on 26.07.1956 it is
necessary to find out whether the testator was in a sound state of mind. Even
in the absence of any specific contention, a propounder in order to succeed in a
Court of law in proving the Will owes a duty to establish to the satisfaction of
the Court that the testator was in a sound state of mind and that he executed
the Will out of his own free Will. The Apex Court in the aforesaid judgment has
held that the condition of the testator's mind may appear to be very feeble and
debilitated and therefore when the disposition made in the Will is unnatural,
improbable or unfair and when the Will indicates that the said disposition may
not be the result of the testator's free Will and mind, the presence of such
suspicious circumstances naturally tends to make initial onus very heavy and
unless it is satisfactorily discharged, Courts should be reluctant to treat the
document as the last Will of the testator. The propounder has to show by
satisfactory evidence that the Will was signed by the testator and 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 out of his own free will. In this background when admittedly in 1959
the testator had a paralytic stroke and immediately thereafter he died the Will
having come into existence about three years prior to the partition deed, unless
the propounder of the Will by satisfactory evidence satisfy the Court that the
testator was in a sound state of mind on the date of execution of the Will; the
Will cannot be said to have proved in accordance with law. If the Will is validly
executed and inspite of the Will if a partition deed has come into existence in
the year 1959 and in 1960 when the testator died, by virtue of the Will these
two brothers would get equal share in the separate property of the testator. The
evidence of DW1 shows he was also aware of the Will, he was an Advocate by
profession, his senior is the attesting witness to the said Will. Strangely no
effort is made to approach the District Registrar with a request to open the Will
and furnish them a copy of the Will. By virtue of the bequest defendant nos. 1
and 2 got substantial immovable properties on the death of their father. By
virtue of the Will, when they are claiming these properties, it was incumbent
upon them to approach the Revenue Authorities for effecting mutation entries
on the basis of the Will. The evidence on record do not disclose any such
attempt made on the part of the defendant nos. 1 and 2. The mutation entries
effected are not based on the Will. Therefore yet another suspicion arises in the
mind of the Court, whether there was a Will as propounded by the defendants;
whether it was deposited with the District Registrar; even if it is deposited why
the testator gave a go bye to the Will and executed a Registered Gift Deed
claiming 1/3 share in the joint family property under the Partition Deed and
why the defendant nos. 1 and 2 after the death of the testator did not make use
of this Will to claim right to his separate property and get the mutation entries
made in their favour in terms of the Will. Absolutely no evidence is forthcoming
to explain these suspicious circumstances.
Supreme Court in the case of Balbir Singh Wasu v. Lakhbir Singh and
others, (2005) 12 SCC 503, wherein the court had, while dealing with the
contention that section 213 of the Succession Act which requires an executor
to obtain probate before establishing his claim under the will was not
applicable outside the Presidency Towns of Calcutta, Madras and Bombay,
observed that assuming the said contention to be correct, section 213 does not
prohibit the executor from applying for probate as a matter or prudence or
convenience to the courts in other parts of the country not covered by section
213. It was submitted that in the light of the aforesaid decisions, it was
incumbent upon the plaintiffs to first obtain probate or letters of
administration in respect of the will failing which, the civil court could not have
granted any relief on the basis of the will to the plaintiff. It was, accordingly,
urged that the appeal does give rise to substantial questions of law, as
proposed or as may be otherwise deemed fit by this Court and as such deserves
to be admitted.
Supreme Court in the case of Clarence Pais and others v. Union of India,
AIR 2001 SC 1151, (2001) 4 SCC 325 had occasion to deal with Section 213.
Laying down the scheme of operation of Sub-section (2) of Section 213 of the
1925 Act, the Apex Court observed at para 6 as follows: "The effect of Section
213(2) of the Act is that the requirement of probate or other representation
mentioned in Sub-section (1) for the purpose of establishing the right as an
executor or legatee in a Court is made inapplicable in case of Will made by
Mohammedans and in the case of Wills coming under Section 57(c) of the Act.
Section 57(c) of the Act applies to all Wills and codicils made by any Hindu,
Buddhist, Sikh or Jaina, or after the First day of January, 1927 which does not
relate to any immovable property situate within the territory formerly subject to
the Lieutenant-Governor of Bengal or within the local limits of the ordinary civil
jurisdiction of the High Courts of Judicature at Madras and Bombay, or in
respect of property within those territories......... .... ..... ..... 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 ".
In Sheonath Singh v. Madanlal reported in [AIR 1959 Raj. 243], it was held
that Section 213 does not vest any right. It only regulates the procedure of
proving a will. It is distinct from section 211. It lays down a rule of procedure
and not of any substantive right.
G.V. Raju vs Smt. L.K. Gowramma 2004 (2) KarLJ 317 The respondent is
an Hindu and the Will made by her father is in respect of property which is
situate outside the territorial limits of the ordinary civil jurisdiction of the High
Courts of Judicature at Madras and Bombay and, therefore, the probate will
not be required to be obtained by her in respect of a Will made in her favour.
Court in Ishwardeo Narain Singh v. Smt. Kamta Devi & Ors. [AIR 1954 SC
980] wherein, inter alia, it was held : The Court of Probate is only concerned
with the question as to whether the document put forward as the last will and
testament of a deceased person was duly executed and attested in accordance
with law and whether at the time of such execution the testator had sound
disposing mind. The question whether a particular bequest is good or bad is
not within the purview of the probate Court.
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.
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.
(2008) 10 SCC 489 ( G. Gopal vs C. Baskar and others) It is well settled that
if a person who has even a slight interest in the estate of the testator is entitled
to file caveat and contest the grant of probate of the will of the testator.
Smt. Shobha Kshirsagar vs Smt. Janki Kshirsagar And Anr. AIR 1987 MP
145 Section 213 of the same Act provides that unless the Court of competent
jurisdiction has granted probate of the will under which the right is claimed, no
right as an executor or a legatee can be established, but the provisions do not
apply to all cases of wills made by any Hindu. True it is that this section shall
not apply to the will made in the instant case, but the provision of Section 216
is noteworthy because of its mandatory character. Although it is not obligatory
to obtain a probate in case of wills made by any Hindu, but when a probate is,
in fact, obtained, there can be no doubt that Section 216 shall become
operative immediately in such a case. Notice must also be taken of Section 217
which provides that grant of a probate is made only in accordance with the
provisions of Part IX of the said Act. The other provision to be noted is Section
227 which provides that when a probate of a Will is granted, then it renders
valid all intermediary acts of the executor as he may have done after the death
of the testator. Therefore, when under a Will any guardian is appointed and he
is appointed an executor of the Will, it will be a question of deciding his right
under the Will to deal with the property of the minor for whose guardianship of
person and property any application is made at any time. According to me,
therefore, when two different Wills, materially different in object and purpose,
are propounded in support of a claim for guardianship, it will be necessary to
obtain probate of any Will to prove the genuineness of the Will and of the right
that has accrued under the Will.
Chiranjilal Shrilal Goenka ... vs Jasjit Singh And Ors 1993 SCR (2) 454,
1993 SCC (2) 507 Court of Probate has the exclusive jurisdiction and a Civil
Court in the Original Side or Arbitrator even on consent of parties has no
jurisdiction to adjudicate upon the proof or validity of a Will propounded by the
executor since the Probate Court does not decide the question of title.
............. The grant of Probate by a Court of competent jurisdiction is in the
nature of a proceeding in rem. So long as the order remains in force it is
conclusive as to the due execution and validity of the will unless it is duly
revoked as per law. It binds not only upon all the parties made before the Court
but also upon all other persons in all proceedings arising out of the Will or
claims under or connected therewith. The decision of the Probate. Court,
therefore, is the judgment in rem. The probate granted by the competent court
is conclusive of the validity of the Will until it is revoked and no evidence can
be admitted to impeach it except in a proceeding taken for revoking the
probate. ............... The Probate Court has been conferred with exclusive
jurisdiction to grant probate of the Will of the deceased annexed to the petition
(suit); on grant or refusal thereof, it has to preserve the original will produced
before it. The grant of probate is final subject to appeal, if any, or revocation if
made in terms of the provision of the Succession Act It is a judgment in rem
and conclusive and binds not only the parties but also the entire world. The
award deprives the parties of statutory right of appeal provided under section
299. Thus the necessary conclusion is that the Probate Court alone has
exclusive jurisdiction and the Civil Court on original side or the Arbitrator does
not get jurisdiction, even if consented to by the parties, to adjudicate upon the
proof or validity of the Will propounded by the executrix, the appellant.
B. Manjunatha Prabhu And Ors. vs C.G. Srinivas And Ors. AIR 2005 Kant
136, ILR 2005 KAR 467, 2005 (4) KarLJ 85 Article 137 of the Limitation Act
would not apply to the proceedings filed for grant of probate or Letters of
Administration with or without the Will annexed. Before concluding, we must
point out that though the proceedings filed for grant of probate or Letters of
Administration may not come within the mischief of Article 137 of the
Limitation Act, 1963, yet the delay aspect is relevant to test the genuineness of
the Will propounded. Delay in taking steps gives rise to suspicion and the
longer the delay the stronger the suspicion.
Smt. Indu Bala Bose & Ors. v. Manindra Chandra Bose & Anr. reported in
[AIR 1982 SC 133], it has been held that a circumstance would be
"suspicious" when it is abnormal or is not normally expected in a normal
situation or is not expected of a normal person.
Sunanda Kom Vittal Pai vs Mukund Srinivas Shanbhat ILR 1989 KAR
2676, 1989 (2) KarLJ 364 In our view it is only to cases to which Section
213(1) is attracted, no other Court except the District Court concerned would
have jurisdiction to decide the issue as to the validity of the will and to grant
probate or letter of administration. In such a case even if there was an earlier
suit claiming right or title to the property as a legatee under a will and it had
been decided by the Court in which the suit was filed or even in appeal, the
decision in such a suit, of the original Court or the first Appellate Court or even
the High Court in first or second appeal would not operate as resjudicata as in
such a case the Court before which the suit was instituted would have had no
jurisdiction to go into the genuineness or validity of the will. But if in a case to
which the bar created under Section 213(1) is not attracted if the party chooses
to file a suit claiming right or title to the property on the basis of a will and for
purposes of deciding such a suit it becomes necessary for the Court before
which the suit is filed to decide the question regarding the validity of the will
also and that question is decided, such a decision becomes final and binding
on the parties and thereafter if the same party chooses to file an application
under Section 276 of the Succession Act, the decision rendered' in the suit
would operate as resjudicata.
In Banarsi Dass vs. Teeku Dutta (Mrs) and another, (2005) 4 SCC 449 it
was held to the following effect:- " The main object of a succession certificate is
to facilitate collection of debts on succession and afford protection to the
parties paying debts to the representatives of deceased persons. All that the
succession certificate purports to do is to facilitate the collection of debts, to
regulate the administration of succession and to protect persons who deal with
the alleged representatives of the deceased persons. Such a certificate does not
give any general power of administration on the estate of the deceased. The
grant of a certificate does not establish title of the grantee as the heir of the
deceased. A succession certificate is intended as noted above to protect the
debtors, which means that where a debtor of a deceased person either
voluntarily pays his debt to a person holding a certificate under the Act, or is
compelled by the decree of a court to pay it to the person, he is lawfully
discharged. The grant of a certificate does not establish a title of the grantee as
the heir of the deceased, but only furnishes him with authority to collect his
debts and allows the debtor to make payments to him without incurring any
risk. In order to succeed in the succession application the applicant has to
adduce cogent and credible evidence in support of the application...."
In Re: Gordon Frederic Muirhead ... vs Unknown AIR 1959 Kant 83, AIR
1959 Mys 83, (1958) 36 MysLJ The question which is referred to us for
decision is whether or not this Court has jurisdiction to grant probate and/or
letters of administration in respect of an estate, the whole of which is within
the State of Mysore. The answer to this question, from whatever point of view it
may be considered, can only be in the affirmative. …………… The highest civil
court of appeal in the State of Mysore was Originally the chief court which
subsequently came to be named as the "High Court." In the year 1914 the State
of Mysore passed a Regulation being Regulation VI of 1914 to provide for the
grant of probates of Wills and letters of administration to the estates of
deceased persons. ………….. Section 51 of the said Regulation provides that
the District Judge shall have jurisdiction in granting and revoking probates
and letters of administration in all cases within his District Section 85 of the
said Regulation reads as follows:-- "The High Court shall have concurrent
jurisdiction with the District Judge in the exercise of all the powers hereby
conferred upon the District Judge." ………… Therefore, under the law as it
stood prior to the date when the new Succession Act (Act XXXIX of 1925) came
into force in the State of Mysore, the High Court had the same jurisdiction as
the District Judge in granting probates and letters of administration. ……………
In P.H. Alphonso v. Dr. C.F. DeCosta and Ors., (AIR 1964 Mysore 187), a
Bench of this Court held that revocation of the grant of the probate cannot be
made retrospectively and the order of revocation must take effect from the date
of application made for the purpose. At page 190, it was observed thus : "...The
executor is competent to enter into contracts on behalf of the estate and
possesses power to dispose of the property of the deceased vested in him in
such manner as he thinks fit. We have also referred to the liability of the
executor to be sued by a person interested in the property and intending to
avoid the alienations made by him. The contracts entered into and the
alienations made by an administrator are valid until they are set aside by a
competent Court at the instance of person is interested in the property. A
retrospective revocation is not therefore contemplated by law. Any order of
revocation passed under Section 263 of the Act must take effect from the date
of the application made for the purpose."