Wills, Property, Litigations and Views of Courts

Wills, Property, Litigations and Views of Courts

Written by Vishal

Introduction

Cases have arisen with respect to property ; cases have also arisen where there was a will in respect of property. A document [sometime a picked-up format] obtained with assurance that it protects rights is tested by Courts to see if it aligns with law ; people who draft wills [or those who collect the drafted wills] need to know how law would operate on their wills. Sections useful would be : S.63 of Indian Succession Act, 1925 (witnesses) ; S.59 of ISA, 1925 (sound mind) ; S.61 of ISA, 1925 (fraud/coercion).

In the case of Balathandayutham v. Ezhilarasan [2010] GCtR 6525 (SC) it was held that when a Will is surrounded by suspicious circumstances, the person propounding the Will has a very heavy burden to discharge. In this case, plaintiff questioned the subsequent will but suit was dismissed ; appeal was allowed and suit was decreed ; HC also agreed with view of first appeal and Supreme Court had also agreed with view of HC. 

H. Venkatachala Iyengar v. B.N. Thimmajamma [1958] GCtR 487 (SC) has held that in a case where testator’s mind is feeble and he is debilitated and there is not sufficient evidence as to the mental capacity of the testator or where the deposition in the Will is unnatural, improbable or unfair in the light of the circumstances or it appears that the bequest in the Will is not the result of testator’s free will and mind, the Court may consider that the Will in question is encircled by suspicious circumstances.

The case of Kavita Kanwar v. Pamela Mehta [2020] GCtR 784 (SC) is the next one ; case was around a property in Defence Colony in India's Capital Delhi. It was held that as per Section 63 of the Indian Succession Act,1925 the Will ought to be attested by two or more witnesses. Hence, any document propounded as a Will cannot be used as evidence unless at least one attesting witness has been examined for the purpose of proving its execution, if such witness is available and is capable of giving evidence as per the requirements of Section 68 of the Indian Evidence Act, 1872 (IEA has been repealed through BSA, 2023). Probate proceeding is not merely inter-partes proceeding but leads to judgment in rem and, therefore, even when no one contests, it does not ipso facto lead to grant of probate. The probate is granted only on proof of Will as also on removal of suspicious circumstances, if there be any, to the final satisfaction of the conscience of the Court.

The case of Leela Rajagopal v. Kamala Menon Cocharan [2014] GCtR 6526 (SC) was related to a will executed by mother ; in this case, even original will was not produced (as noted at page15). Both the parties engaged designated senior Advocates for their case. It was held that a Will may have certain features and may have been executed in certain circumstances which may appear to be somewhat unnatural. Such unusual features appearing in a Will or the unnatural circumstances surrounding its execution will definitely justify a close scrutiny before the same can be accepted. The judicial verdict, in the last resort, will be on the basis of a consideration of all the unusual features and suspicious circumstances put together and not on the impact of any single feature that may be found in a Will or a singular circumstance that may appear from the process leading to its execution or registration.

There is another interesting decision ; Ved Mitra Verma v. Dharam Deo Verma [2014] GCtR 6527 (SC). In this case, father executed will ; Litigation arose in the north-eastern part of India in Meghalaya. While appellate was represented by a non-designated Senior Advocate ; the opposite party was represented by a Designated Senior Advocate ; jurisdiction invoked in Supreme Court was the one under A.136 [and not the appeal]. Trial Court had found the will suspicious ; HC had set aside the decision of Trial Court. It was argued that will is "highly suspect". In this case, Sub Registrar had proved the execution of will ; will was registered. It was held that the exclusion of the other children of the Testator and the execution of the Will for the sole benefit of one of the sons by itself, is not a suspicious circumstance. The property being self-acquired, it is the will of the Testator that has to prevail. Some errors even if there are not treated material to invalidate a will. 

Conclusion

The message of this article is to convey that a format so loftily dashed on the tables of clients or downloaded from internet and edited with insertion of certain details do not guarantee that the "will" becomes immune from scrutiny of Courts. Genuine wills exist ; a reading of the law and the judgments dealing with validity of will would be helpful in understanding the effect of the document called will. 

NOTE : Unfortunately, while writing this article use of AI has not been done ; no other reference material except full text decisions were referred.