Mere Registration Of Will Doesn't Prove Genuineness, Beneficiary Must Dispel Suspicious Circumstances Through Evidence: Gujarat High Court

The Gujarat High Court quashed probate proceedings in favour of "beneficiary" of a Will, noting he was unable to dispel various suspicious circumstances including sequence of obtaining signatures from the deceased and attesting witnesses, the physical presence of parties and the testator's medical condition at that time.

In doing so the court reiterated that mere registration of will does not prove its genuineness; the propounder/beneficiary must dispel suspicious circumstances by leading evidence. 

Justice JC Doshi referred to Section 63 of the Indian Succession Act and said that it is an instrument declaring last testimony of the deceased to dispose of his property before his death and is a legally acknowledged mode of bequeathing a testator's property during his life time to be acted upon his death and carries with it a element of sanctity.

Thus stringent requisites for the proof thereof have been statutorily enjoined to rule out the possibility of any manipulation, the court noted. 

In the present case the court noted that as per the plaintiff the deceased executed the will nearly four months after his detection of cancer, and he diedwithin one week from date of execution of the will. 

"Surgical procedure was carried to remove tumor in this time period. In this circumstances, question arise that whether deceased was in position to walk alone to Narol Court from Bapunagar i.e. approximately 10 km; and whether he was in position to speak in presence of malignancy in jaw and tongue?. These are serious issues which are shrouded by suspicious circumstances. The plaintiff was required to lead evidence to the extent that though deceased Ramchandra was suffering from malignancy and, still he was in sound mental state condition and was capable of disposing of his property.

Plaintiff except examining himself, attesting witness and scribe, did not lead any evidence, more particularly medical person, or nearby relative or neighbors to show case that deceased despite having such serious aliment was regular in his daily chores and was carrying routine work and was used to travel alone for nearly 10 kms and was also able to call advocate. Doubt is also raised whether the deceased was able to speak anything; the malignancy on the tongue give rise to such doubt. Such doubt underpin on the reason that deceased had underwent surgical procedure to remove tumor from jaw. Thus, the plaintiff was required to lead evidence to prove same in addition to proving execution of Will in accordance with section 63 of the Act, 1925 read with section 68 of the Evidence Act" it said. 

The court further noted that the evidence of the beneficiary/plaintiff suggests that he and the attesting witnesses may have arrived together on the day Will was signed.

He further said that first the deceased signed the Will and then both attesting witness signed the Will. The court noted that the PW-2 the attesting witness, maintaied that the deceased informed him to prepare Wil and requested to sign immediately after the deceased had signed.

"The sequence of attestation described by the attesting witness contradicts the version given by the propounder. Further, inconsistency exists regarding the physical presence of the parties; the Propounder claims to have been present during the execution of Will, while the attesting witness admits during cross-examination that the Propounder was not present when he affixed his signature. The conflicting version creates doubt about genuineness of the Will...," the court noted. 

The court also noted that the plaintiff could not clear doubt that how he "secured presence of attesting witness to register the Will posthumously".

It said that plaintiff was required to explain as to why Will was executed just seven days prior to death of Ramchandra and why Will registered before Sub Registrar Office on 09.11.1981 posthumously and why plaintiff was required to register Will after death of deceased Ramchandra and what were compelling circumstances to register Will posthumously.

"This is another suspicious circumstances.  In light of various suspicious circumstances noted above, the plaintiff was required to remove the same by leading evidence. Mere registration of Will does not establish genuineness of Will. It is case where propounder failed to dispel the suspicious circumstances surrounding execution of Will and mere registration would not validate the Will which is shrouded in suspicion," the court emphasized.

The deceased – appellant Harishchandra Pednakar's legal heirs moved the high court challenging legality and proprietary of trial court's order granting probate of property mentioned in a Will in favour of the respondent deceased – Bhaskar Pednekar who expired during pendency of the appeal.

Bhaskar Pednakar was plaintiff and Harishchandra Pednakar was defendant before the Trial Court.

The defendant contended that the deceased Shri Ramchandra never executed any Will during his lifetime. The defendant contended that the purported Will propounded by the plaintiff is fraud and fabricated document, and only executed with intention to grab disputed Property.

It was contended that at the time of execution of Will, the deceased was suffering from cancer of the jaw and tongue. The defendant submits that medical condition of deceased creates serious doubt about sound and disposing state mind. He contended that he was nominee in the records of the Co-operative Society and after demise of Shri Ramchandra, the Suit Property was transferred in name of defendant and as such he is owner of disputed property. In support of his possession, the Defendant contended that deceased used to collect rent from tenant; however, upon the tenant vacating the premises, vacant possession was handed over directly to the Defendant.

The trial court decided in favour of plaintiff and against defendant against which the latter moved the high court. 

The high court allowed the appeal.

Case title: HARISHCHANDRA R PEDNEKAR (DECEASED) THROUGH LEGAL HEIRS & ORS. v/s  BHASKAR R PEDNEKAR (SINCE DECEASED THRU LEGAL HEIRS) & ORS

R/FIRST APPEAL NO. 1320 of 1995

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