Formal execution of a Will is insufficient where suspicious circumstances remain unexplained.

The Plaintiff sought Letters of Administration with the Will annexed in respect of the estate of Kachardas Balkrishna Bairagi, relying on a Will dated 28 April 1984.

The original petition for probate was filed by Laxmibai, the deceased’s widow and named executrix, after the deceased died on 10 September 1984; it was later converted into a Testamentary Suit after Gulabbhai and Uma entered caveats.

The Will appointed Laxmibai and Devidas, the deceased’s son, as executors, but both subsequently died.

The Plaintiff, Sumit, and his brother Amit, who were residuary beneficiaries, were permitted to prosecute the suit; Amit later withdrew from the proceedings.

Durgabai initially consented to the grant but subsequently sought permission to contest the Will, alleging that her consent had been fraudulently obtained.

The Plaintiff examined himself and Dr V.P. Advirkar, the surviving attesting witness. The Defendants led evidence through Gulabbhai and Praful Vaishnav Ramkrishna Das.

The Court ultimately proceeded ex parte against Gulabbhai due to her continued absence and failure to comply with directions.

The Court applied Sections 59 and 63 of the Indian Succession Act, 1925, under which a testator must possess testamentary capacity and the Will must be signed or marked by the testator and attested by at least two witnesses.

Sections 67 and 68 of the Indian Evidence Act, 1872, concerning proof of signatures and attested documents, were also relevant.

Relying on H. Venkatachala Iyengar v. B.N. Thimmajamma, the Court held that the propounder must prove that the Will was signed by the testator, that the testator was of sound and disposing mind, understood the nature and effect of the dispositions, and executed it voluntarily; where suspicious circumstances exist, the propounder must remove them by clear, cogent and satisfactory evidence.

The Court also referred to Indu Bala Bose v. Mahindra Chandra Bose, Bandopant Sitaram Bapat v. Sankar Sitaram Bapat, and Harihar Prasad Sao v. Bhagwan Das on proof of Wills and the burden relating to undue influence.

Applying Mauleshwar Mani v. Jagdish Prasad, the Court held that where an absolute interest is conferred on a first legatee, a subsequent bequest of the same property cannot operate because the testator’s power of testamentary disposition over that property is exhausted.

Although the Plaintiff established the formal execution of the Will through his evidence and that of the surviving attesting witness, the Court held that the evidence did not remove the cumulative suspicious circumstances surrounding it.

The Will was executed when the testator was approximately 80 years old and he died shortly thereafter.

The attesting witness, Dr Advirkar, had met the testator for the first time in connection with the execution of the Will, was not his regular doctor, and had no prior medical history of him.

The Will excluded the deceased’s daughters and granddaughter without explanation, while its principal beneficiaries were the sons of Devidas, who was both an executor and a person centrally involved in the testamentary arrangement.

These circumstances attracted the heightened scrutiny required by H. Venkatachala Iyengar.

Further, Clause VII first gave the property “absolutely” to Laxmibai and thereafter purported to give the same property to Amit and Sumit upon her death.

Applying Mauleshwar Mani, the Court held that this successive disposition was legally ineffective and that the Plaintiff had not addressed the defect.

The Court therefore concluded that, despite formal proof of execution, the Plaintiff had not established that the Will represented the testator’s free, genuine and voluntary testamentary intention.

As the Defendants were legal heirs, they possessed sufficient caveatable interest to oppose the grant.

Issue 3 was rendered academic, while Issue 4 was answered in the affirmative because the Defendants, as legal heirs, had a caveatable interest.

The Testamentary Petition and Suit were dismissed, with no order as to costs.

The original documents were directed to be returned to the Plaintiff’s Advocate upon due application and compliance with procedure, and all pending applications were dismissed.