Will – Probate of – A Will dated 20.05.2003 was executed by the mother of the contesting parties-testatrix in presence of her younger daughter-appellant alone – Testatrix expired on 21.05.2006 and left behind two daughters and a son – In the said Will, the testatrix gave the entire share in her immovable property to the appellant and made her the major beneficiary under the Will – Appellant filed the petition seeking probate and that was declined both by the Trial Court and the High Court – The Trial Court and the High Court have concurrently found some suspicious circumstances which are of material bearing and which have remained unexplained – Some of such suspicious circumstances founded, inter alia, are: a) non-inclusion of the only son and other elder widowed daughter of the testatrix in the process of execution of the Will and their exclusion from the major part of the estate – b) the manner of writing and execution of Will with technical and legal words – c) there was no clarity about the construction of the property to be carried out by the appellant – d) there were contradictions in the statements of the witnesses and the appellant – On appeal, held: The unexplained unequal distribution of the property is confounded by two major factors related with making of the Will in question: one, the active role played by the appellant in the process and second, the virtual exclusion of the other children of testatrix in the process –The testatrix was living on the ground floor of the estate/immovable property in question and her elder widowed daughterrespondent no.1 was living at the first floor – There was no reason that in normal and ordinary course, the testatrix would not have included her elder widowed daughter in execution of the Will in question, particularly when her elder widowed daughter was also taking care of her – The provision of construction of the property in the Will is inexecutable and unenforceable and elder widowed daughter is not likely to get anything – There is also no evidence of strained relationship between testatrix and her son – As far as attesting witnesses are concerned, the appellant asserted in her testimony that the testatrix discussed the contents of the Will with the attesting witnesses but both the witnesses consistently maintained that the contents were not discussed with them – Further, there was also dispute regarding number of pages of Will and vacillating stand of the appellant in that regard – As per s.81 of the Succession Act, if there is an ambiguity or deficiency on the face of a Will, no extrinsic evidence as to the intentions of the testator shall be admitted – The appellant failed to clear the suspicious circumstances – Thus, 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 – The Will in question cannot be probated – The reasons and material findings of the Trial Court and the High Court affirmed. Will – Probate proceedings – Non-filing of written statement – Held: By the very nature and consequence of probate proceeding, filing or non-filing of written statement or objections by any party pales into insignificance and is of no effect – The 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. Dismissing the appeal, the Court
HELD: 1. There has not been any question on the testamentary capacity and soundness of mind of the testatrix; and her handwriting as also signatures on the Will in question are also beyond controversy. However, the Trial Court and the High Court have concurrently found some such suspicious circumstances which are of material bearing and which have remained unexplained. Put in a nutshell, 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. Because of these major circumstances coupled with various supplemental factors, the Trial Court and the High Court felt dissatisfied on the root question as to whether the testatrix duly executed the Will in question after understanding its contents. [Para 27][422-B-E]
2. There is no doubt that any of the factors taken into account by the Trial Court and the High Court, by itself and standing alone, cannot operate against the validity of the propounded Will. That is to say that, the Will in question cannot be viewed with suspicion only because the appellant had played an active role in execution thereof though she is the major beneficiary; or only because the respondents were not included in the process of execution of the Will; or only because of unequal distribution of assets; or only because there is want of clarity about the construction to be carried out by the appellant; or only because one of the attesting witnesses being acquaintance of the appellant; or only because there is no evidence as to who drafted the printed part of the Will and the note for writing the opening and concluding passages by the testatrix in her own hand; or only because there is some discrepancy in the oral evidence led by the appellant; or only because of any other factor taken into account by the Courts or relied upon by the respondents. The relevant consideration would be about the quality and nature of each of these factors and then, the cumulative effect and impact of all of them upon making of the Will with free agency of the testatrix. In other words, an individual factor may not be decisive but, if after taking all the factors together, conscience of the Court is not satisfied that the Will in question truly represents the last wish and propositions of the testator, the Will cannot get the approval of the Court; and, other way round, if on a holistic view of the matter, the Court feels satisfied that the document propounded as Will indeed signifies the last free wish and desire of the testator and is duly executed in accordance with law, the Will shall not be disapproved merely for one doubtful circumstance here or another factor there. [Para 28][422-E-H; 423-A-B]
3. The unexplained unequal distribution of the property is confounded by two major factors related with making of the Will in question: one, the active role played by the appellant in the process; and second, the virtual exclusion of the other children of testatrix in the process. As noticed, an active or leading part in making of the Will by the beneficiary thereunder has always been regarded as a circumstance giving rise to suspicion but, like any other circumstance, it could well be explained by the propounder and/or beneficiary. In the present case, it is not in dispute that out of the three children of testatrix, the appellant alone was present at the time of execution of the Will in question on 20.05.2003. As noticed, at the relevant point of time, the appellant was admittedly living away and in a different locality for about 20-22 years, whereas testatrix was residing at the ground floor of the building and the respondent No.1 was at the first floor. Even if this Court leaves aside the case of the respondent No.2 who was living in Shimla, there was no reason that in the normal and ordinary course, the testatrix would not have included the respondent No.1 in execution of the Will in question, particularly when she was purportedly making adequate arrangements towards the welfare of respondent No.1. In other words, if the Will in question was being made without causing any prejudice to the respondent No.1, there was no reason to keep her away from this process. Admittedly, the Will in question was not divulged for about three years. Therefore, the added feature surrounding the execution of the Will had been of unexplained exclusion of the respondent No.1 from the process. [Para 29.3][424-G-H; 425-A-D]
4. Apart from the above, active participation of the appellant in making of the Will in question cannot be left aside as one of the minor factors for the reason that the appellant indeed attempted to project a face of innocence by suggesting that the testatrix did not discuss the Will with her; that she was not aware as to who drafted the Will and where was it typed; and that she came to know about the Will only on 20/21.05.2003. The appellant even stated that she did not call the witnesses and that the testatrix herself might have called them. The witness PW-2 has clearly contradicted the appellant by deposing that on 18.05.2003, it was the appellant who invited him to her mother’s place. Thus, the appellant, by her conduct of attempting to avoid the fact that she was aware of making of Will, at least two days before its execution, has only strengthened the suspicion arising because of her active participation in execution of the Will while keeping the other children of the testatrix excluded from the process. [Para 29.4][425-D-F]
5. Moreover, the handwritten portions carry such formal and legal expressions like “testament” and “set and subscribed my hand”, which are the tools of the language employed by a person who is conversant with legal format and requirements for execution of such a document; and, ordinarily, a layperson like the testatrix is not expected to be conversant with them. This set of suspicious circumstances concerning the process of execution of the document in question reaches to impenetrable finale by another major part of contradictions in oral evidence. The appellant asserted in her testimony that the testatrix discussed the contents of the Will with the attesting witnesses but both of them (PW-2 and PW-3) consistently maintained that the contents were not discussed with them. Thus, the appellant has failed to clear the doubts as to whether what is found written in the document in question (both by hand and in print) carry and convey the last wish of the testatrix. [Paras 29.5.3 and 29.5.4][426F-H; 427-A-B]
6. Going yet further, when the core contents of the document in question are examined, what this Court finds is another load of several unclear doubts and variety of uncertainties. As per Section 81 of the Succession Act, if there is an ambiguity or deficiency on the face of a Will, no extrinsic evidence as to the intentions of the testator shall be admitted. Thus, everything related with the true intention of testatrix in the present case is to be gathered from the contents of the Will in question itself. [Para 30][427-C]
7. In the ultimate analysis, this Court is satisfied that the Will in question is surrounded by various suspicious circumstances which are material in nature and which have gone unexplained. 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. 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. The Will in question cannot be probated from any standpoint. [Para 31][429-E-F]
8. There remains yet another, and perhaps the most confounding part of the matter, which leaves nothing to doubt that the prayer for probate of the Will in question could only be declined. It is the curious case of alleged third page of the Will in question and the vacillating stand of the appellant in that regard. [Para 33][430-A-B]
9. In the impugned judgment, the High Court noticed such a stand of the appellant, seeking to rely on the very same disputed third page of the Will and observed that this third page was never produced by the appellant; rather when the respondent No. 2 sought its production, the appellant denied the same. The High Court also observed that the said third page of the Will was never proved before the Trial Court; and even if it was assumed to be existing, the suspicious circumstances were not dispelled. [Para 34.2][435-D]
10. Hence, to cap all the suspicious circumstances, the aforesaid 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. The suspicions arising because of the facts and factors noticed hereinbefore, including the unnatural exclusion of the respondents from estate; uncertain and rather inexecutable 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. [Para 36][437-A-C]
11. There are enough and cogent reasons to affirm the material findings of the Trial Court and the High Court that it cannot be said that the testatrix executed and signed the document in question as her Will after having understood the meaning, effect and purport of the contents. [Para 37][437-E-F]
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