The Supreme Court in its judgment dated 19 May 2020 in Kavita Kanwar -v- Mrs. Pamela Mehta & Ors [Civil Appeal No. 3688 of 2017] reiterated the law surrounding suspicious circumstances surrounding a Will in probate cases.
The testatrix passed away on 21 May 2006, leaving behind two daughters and a son, and a Will dated 20 May 2003 (“Will”). The testatrix last lived on the ground floor of a property in Defence Colony, which was previously gifted by the testatrix’s husband to Ms Kavita Kanwar- the appellant. The late husband of the testatrix bequeathed the entire property except the ground floor to the testatrix. The elder and widowed daughter of the testatrix, Ms Pamela Mehta- the respondent no.1 was in occupation of the first floor of the property with the testatrix’s consent.
The testatrix’s bequeath under the Will was as follows:
- Ms Kanwar was the executor of the Will, the major beneficiary and residual owner of all other property thereunder. The testatrix left her entire portion in favour of Ms Kanwar, however, a provision for residence was made for Ms Mehta. The said residence for Ms Mehta was to be constructed by Ms Kanwar on the terrace of the said property or in case of demolition of the said property, the top floor of the new building to be constructed was to be left for her. The Will was silent as to when or how such construction was to be done.
- Prithiviraj Mamik (the respondent no. 2) the son of the testatrix was given ‘credit balance’ lying in the bank accounts of the testatrix.
The executor approached the Court for probate of the Will.
Findings of the Trial Court and High Court
The Trial court dealt with all allegations of suspicious circumstances concerning the Will and found that the appellant had not been able to remove the suspicions and hence, dismissed the petition. The High Court affirmed the findings of the Trial Court. The suspicious circumstances as per the Court, were inter alia, as follows:
- The appellant played an active role in execution of the Will and was the major beneficiary thereunder.
- Exclusion of the only son from the immovable property when the relationship between them was not strained.
- The other daughter of the testatrix did not get a substantial share. The Court was of the view that her substantial exclusion from the Will, when there was no proof of strained relationship, made the Will unnatural and unfair. The Court especially took note of the fact that the Ms Mehta was taking care of the ailing testatrix and lived in the floor above her.
- The manner of writing and execution of the Will was not satisfactory. As the testatrix was not well educated, the usage of technical and legal words and traces of pencil lines beneath the handwritten portions gave an impression that the testatrix was asked to write as per dictation on the particular portion.
- The Court was of the view that the attesting witnesses were unreliable, and they made contradictory statements.
- The Court took note of the fact that the Will was executed in secrecy as Ms Mehta, who was living on the floor above, was made aware of the execution of the Will only after three years from the date of its execution.
Issue before the Supreme Court
Whether the Trial Court and the High Court were justified in declining to grant probate in relation to the Will as prayed for.
Findings of the Supreme Court
The Supreme Court observed that there were various factors causing suspicion that had been taken into account by the Trial Court and the High Court. While each factor by itself and standing alone, may not individually operate against the validity of the Will, a cumulative effect of all those factors may determine that the Will did not truly represent the last wish and testament of the testatrix.
These suspicious circumstances were further aggravated by the propounder’s own conduct.
Given the number of factors shrouded in suspicion and the propounder’s inability to clear them, the Court found it unbelievable that the bequest was a result of a free hand and a free mind, and that it did not convey the last wish of the testatrix. Accordingly, the appeal was dismissed.
While dealing with an uncontested Will, the Court being a Court of conscience still has to satisfy itself as to the genuineness of the Will. Needless to say, the responsibility is much higher on the Court in a contested proceeding. From a reading of this judgment it is clear that, simply meeting the requirements for proof of a Will in terms of Section 63 of Indian Succession Act, 1955 and Section 68 of the Evidence Act, 1872 may not suffice for grant of Probate; the suspicious circumstances revolving around the execution of the Will must be removed. The important take away in the case is that if there are multiple suspicious circumstances surrounding the execution of a will, a combined effect of those circumstances can be enough to deny the grant of a probate even if the individual factors on their own standing would not have been enough for such denial.