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Non-filing of WS does not result in grant of Probate of Will, the propounder is to satisfy the conscience of the Court with removal of suspicious circumstances: SC

The SC on May 19, 2020 {KAVITA KANWAR v. PAMELA MEHTA & ORS} held that the Trial Court has returned the findings against the appellant after due appreciation of evidence and the High Court has affirmed such findings after independent and thorough examination of evidence. It was held that there appears hardly any scope for disturbing such concurrent findings by entering into the process of re-appreciation of entire evidence.

It was further observed by the SC Bench, comprising of Justice A.M. Khanwilkar & Justice Dinesh Maheshwari, that the unexplained suspicious circumstances so found are: (a) that appellant, the major beneficiary, played an active role in execution of the Will in question and attempted to conceal this fact before the Court; (b) that there had not been any plausible reason for non-inclusion of the only son and other daughter of the testatrix in the process of execution of the Will and for excluding them from the major part of the estate in question; (c) that there was no clarity about the construction supposed to be carried out by the appellant; (d) that the manner of writing and execution of the Will with technical and legal words was highly doubtful; and (e) that the attesting witnesses were unreliable and there were contradictions in the statements of the witnesses. 

It was further held that it remains trite that no one can convey a better title than what he had; as expressed in the maxim: ‘Nemo dat quod non habet’. It was held that the testatrix never had any right over the property belonging to the appellant and could not have conveyed to the respondent No.1 any property which was of the ownership of the appellant or which might be acquired or raised by the appellant in future by her own funds. On this ground alone, it was held that the Will in question is required to be considered void as per Section 89 of the Succession Act, when the principal bequeathing stipulation in the Will suffers from uncertainty to the hilt.

The SC also held that even in a regular civil suit, mere non-filing of written statement by the defendant does not always lead to a judgment in favour of the plaintiff. It was held that when that regular civil suit usually leads to a judgment inter-partes and not in rem. Even then, the requirement of proof is not obviated. It was held that when the proceeding is solemn in nature like that for probate, which leads to judgment in rem, it is beyond the cavil that mere non-filing of caveat or opposition is not decisive of the matter. It was held that the propounder, in every matter for grant of probate, irrespective of opposition or even admission by any party, is required to satisfy the conscience of the Court, with removal of suspicious circumstances, if any.

The basic point for determination in this appeal before the SC was as to whether the Trial Court and the High Court were justified in declining to grant probate in relation to the Will dated 20.05.2003.

The SC held that, to cap all the suspicious circumstances, the equivocal stand of the appellant, as regards the third page of the Will and her assertion of having acted in accordance with the “directions” in the said third page of the Will, effectively knocks the entire case of the appellant down to the bottom. It was held that the suspicions arising because of the facts and factors noticed, including the unnatural exclusion of the respondents from estate; uncertain and rather in-executable stipulation about construction by the appellant for the purpose of the respondent No.1; active role played by the appellant in execution of the Will and yet seeking to avoid the factum of her role by incomplete and vague statements; and the witnesses having contradicted the appellant on material particulars etc., have not only gone unexplained but are confounded beyond repair with such vacillating stand of the appellant regarding the said third page of the Will of the testatrix.

In the ultimate analysis, the SC held that it is satisfied that the Will in question is surrounded by various suspicious circumstances which are material in nature and which have gone unexplained. It was held that the cumulative effect of these suspicious circumstances is that it cannot be said that the testatrix was aware of and understood the meaning, purport and effect of the contents of the Will in question. It was held that the appellant, while seeking probate, has not only failed to remove and clear the aforesaid suspicious circumstances but has even contributed her own part in lending more weight to each and every suspicious circumstance. It was held that the Will in question cannot be probated from any standpoint.

The SC held that result, inevitable, is that the appeal deserves to be dismissed. It was held that with the concurrent findings having been affirmed and when the appellant is found wanting in forthrightness at various stages of proceedings, costs ought to follow the result of dismissal of the appeal.

Accordingly, the appeal failed and was, therefore, dismissed with costs quantified at Rs. 50,000/- (rupees fifty thousand) by the SC.

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