Mere Lack Of Property Description Or Proximity Of Testator's Death To Date Of Execution Of Will Not Sufficient To Invalidate Will: Jharkhand HC

The Jharkhand High Court has clarified in a recent judgement that suspicion surrounding the execution of a will cannot rest on vague claims. The Court also said that the validity of a will cannot be questioned merely because the testator passed away shortly after its execution or because the Will lacks specific property descriptions.Justice Gautam Kumar Choudhary, presiding over the case, stated, “What circumstances would be regarded as suspicious cannot be precisely defined or exhaustively enumerated. That inevitably would be a question of fact in each case. In any case mere absence of detailed description of property in the WILL cannot be regarded as a suspicious circumstance. Deposition of witnesses that the Testatrix was ill since last six months, and was not in a position to stir out of her home, is not supported by any documentary evidence of her treatment.”“Such a document could have been produced, particularly when the objectors/respondents claim that she was under their care and was being looked after by them. Merely because the Testatrix died within a month after the execution of the WILL is by itself not sufficient to infer that, she was not in sound health and disposing state of mind at the time of execution of the WILL,” Justice Choudhary added.The above ruling was delivered in a Miscellaneous Application filed by one Sitaram Goswami against the order passed in a Probate Case by the lower court under Section 276 of the Indian Succession Act, whereby it had rejected the probate application.The appellant claimed that Srimatiya Radha Debya, his paternal grandaunt, executed her last registered will on 03.09.2004 in his favour and died shortly thereafter on 26.09.2004. The suit property was recorded in the name of Joginda Goswami and Haripado Goswami and the testatrix happened to be the paternal grand daughter of Joginda Goswami, whereas the respondents are the heirs and descendants of Haripado Goswami.Testatrix Srimatiya Radha Debya had purchased the said suit land in 1968.The application for probate was contested who filed show cause before the Probate Court, inter alia, on the ground that testatrix Radha Debya had not executed the will in favour of the applicant, as she was ill since last few months before her death and was not mentally and physically fit in the month of September, 2004, when she died. Further objections were raised on the right of the testatrix to bequeath the property.However, the High Court rejecting these objections, reiterated, “At the outset it may be noted that a probate court is not competent to determine the title of the property bequeathed. The jurisdiction of a probate court is limited to determine that the WILL executed by the testator was his last WILL. Whether he/she had right to execute the WILL with respect to the property is beyond consideration in a probate application.”Therefore, the Court said that if the description of the land sought to be bequeathed was not detailed in the Will, and the testamentary disposition was with respect to the entire property of the Testatrix, then, “probate application cannot be denied on this score. It makes no difference what are the properties which have been set out in the probate application, as probate is granted with respect to the property as stated in the WILL and not with respect to the description given in the probate application.”The Court placed reliance on the judgement in the case, Jaswant Kaur v. Amrit Kaur, (1977) 1 SCC 369 wherein the factors to be considered by the Court in a probate case have been discussed, and in view of the same, the Court observed that the mode of proving a Will does not ordinarily differ from that of proving any other document, except as to the special requirement prescribed in the case of a Will by Section 63 of the Indian Succession Act and Section 68 of the Evidence Act. The Court further observed that the onus of proving WILL is on the propounder and in the absence of suspicious circumstances surrounding the execution of the WILL, on proof of testamentary capacity and signature of the testator as required by law, is sufficient to discharge the onus. “Where, however there are suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the court before the WILL could be accepted as genuine. The presence of suspicious circumstances makes the initial onus heavier and the propounder must remove all legitimate suspicion before the document can be accepted as the last WILL of the testator,” the Court added.The Court said that the Will in question was registered, and this did not relieve the propounder of the Will from the requirement of getting it probated, but its registration raises presumption of its due execution. Thus, the Court opined that the Probate Court had erred in refusing to grant probate and therefore set aside the impugned while allowing the application for grant of probate which was converted into a suit.“Let the probate be granted to...

Mere Lack Of Property Description Or Proximity Of Testator's Death To Date Of Execution Of Will Not Sufficient To Invalidate Will: Jharkhand HC

Bhavya Singh

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