SC: A probate proceeding is ultimately a matter of conscience of the Court

The Hon’ble Supreme Court, on 19th May 2020, in the Kavita Kanwar v. Mrs. Pamela Mehta & Ors. held that the probate proceeding is ultimately a matter of conscience of the Court, 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 Hon’ble Supreme Court observed that:

When the Will is surrounded by suspicious circumstances, the Court would expect that the legitimate suspicion should be removed before the document in question is accepted as the last Will of the testator. (Para 23.2)

The probate proceeding is ultimately a matter of conscience of the Court; and irrespective of whether any plea in opposition is taken or not, a propounder of Will is required to satisfy the conscience of the Court with removal of all the suspicious circumstances. By the very nature and consequence of this 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. (Para 25.1)

Reference to the provisions of Order VIII Rule 10, Order XIV Rule 1(6) and Order XV Rule 2  of CPC, remains inapposite in relation to the proceeding before a Probate Court. (Para 25.2)

Even in a regular civil suit, merely for want of written statement by a defendant, it is not necessary that a judgment would always follow in favour of the plaintiff without proof of the basic facts and without making out a clear case of right to relief. (Para 25.2)

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. Noteworthy it is that regular civil suit usually leads to a judgment inter-partes and not in rem. Even then, the requirement of proof is not obviated. (Para 25.4)

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. 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. (Para 25.4)

 (a) that 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 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.

Any of the factors, by itself and standing alone, cannot operate against the validity of the propounded Will. 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. (This inference has been drawn on the basis of Para 27)

An unfair disposition of property or an unjust exclusion of the legal heirs, particularly the dependants, is regarded as a suspicious circumstance. (Para 29.2)

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. (Para 29.3)

Sanctity attached to a bequeath in the handwriting of the testator presupposes a co-ordinated work of a free hand and a free mind, that is, the hand writes what comes out of and given by the mind. (Para 29.5.2)

No one can convey a better title than what he had; as expressed in the maxim: ‘Nemo dat quod non habet (Para 30.6)

Copy of judgement: Judgement_19-May-2020

-Adv. Tushar Kaushik

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