PATRICK REBELLO Vs. VICTOR REBELLO

JUDGEMENT

(1.) THE petition of the appellants seeking probate of the Will of the father of appellant No. 1 having been converted into a suit, on contest, and having been dismissed on merits, the present appeal is filed.

(2.) THE facts are as follows : the appellants namely the widow, two sons and the daughter of the testator were the plaintiffs before the trial Court. Three other sons of the testator were the defendants. The principal issue before the trial Court was, whether the testator was of a sound disposing state of mind when the Will dated 15-6-1996 was executed. The widow of the testator aged 70 years and two others had tendered evidence on behalf of the plaintiffs. Defendant No. 3 was examined on behalf of the defendants. The testator was aged 85 years on the date of execution of the Will. From a reading of the judgment, the trial Court has addressed itself to the suspicious circumstances alleged by the defendants and has accepted that the testator was physically and mentally infirm at the time of execution of the Will. That the evidence by the advocate who had drafted the Will to state that plaintiff No. 1 had always accompanied the testator to provide instructions in drafting, execution and registration of the Will, indicated influence having brought on the testator and that the execution of the Will was not of his free volition and desire. The admission by the widow, of an earlier family arrangement and the variance in the disposition of the properties under the Will, not being to her knowledge and the details of the Will or its custody with the first plaintiff not being to her knowledge and the fact of admission that the entire affair was managed by plaintiff no. 1 and she being presented as the main witness of the propounders of the Will, coupled with the further inconsistency in her statement of always being by the side of the testator on account of his illness and stating that she did not accompany the testator to the Registrar's office while contending to the contrary earlier. And the attesting witness P. W. 2 adding to this by stating that the widow was present at the time of registration of the Will. These circumstances coupled with the admitted fact that plaintiff no. 1 who is said to have left his home to embrace priesthood-16 years earlier, having returned an year prior to the death of the testator and having secured a major benefit under the Will in variance with the earlier family arrangement, according to the trial court, was indicative of undue influence having been brought on by plaintiff No. 1 on the testator to execute the Will against his free will and volition.

(3.) SHRI. A. K. Patil for the appellants contends that the trial Court has adopted an unduly suspicious attitude in addressing the alleged suspicious circumstances in the case. Even assuming there was a pro-active role on the part of plaintiff No. 1 in persuading the testator, who was admittedly old and feeble, to execute a Will conferring benefit on him, it could not be said to be a ground for holding that the Will was invalid. In this regard, he draws attention to Section 59, section 61 and Section 63 of the Indian succession Act, 1925 (hereinafter referred to as 'the Act' for brevity), to contend that a will made by a person who is feeble and debilitated but capable of exercising a judgment as to the proper mode of disposing of his property, would be a valid Will. Further, the Will would not be void merely on account of the fact that there was intercession and persuasion used by one of the beneficiaries under the Will to make a Will of a certain purport, as long as the testator was capable of exercising his judgment, the Will would not be rendered invalid. And that, the Will having been executed in terms of Section 63 of the Act, the trial Court was clearly in error in its judgment. He would further submit that though there was a family arrangement earlier, this was in order to tide over the discord that had crept into the family. However, the fact that one of the beneficiaries under the earlier arrangement was one of the plaintiffs and that the earlier arrangement was merely an oral arrangement, which did not have the effect of taking away the right of the testator. And that the Will does confer a substantial portion of the estate on the respondents and that there is no disinheritance of any of the respondents. The change being that the assets were translated of 4 shares earlier. The further fact that plaintiff No. 1 who was the youngest son has been given a share which he did not have earlier and that it was a larger share, probably to encourage him to take care of his aged mother, was not a circumstance to evoke the suspicion of the Court. He submits that issues 2 and 3, which were framed by the trial Court namely, "whether the Will was forged and concocted" and "whether the testator was mentally and physically incapable", were deleted by the trial Court and hence there was no evidence on record nor an issue as regards the state of the mind of the testator for the trial Court to arrive at its findings. The counsel relies on the judgments in the case of Rani Purnima Debi v. Kumar khagendra Narayan Deb- AIR 1962 SC 567 to contend that the fact that there was registration would be an important circumstance in favour of the Will being genuine. The said judgment was followed in the case of Surendra Pal v. Saraswati Arora - AIR 1974 SC 1999 wherein it was further laid down that when suspicious circumstances are alleged, it would be for the propounder to dispel the some. However, the counsel would submit that having regard to the facts and circumstances of the case on hand and the law, it could not be said there were any suspicious circumstances which required to be explained. And prays that the judgment be set aside and issue appropriate directions to the Court below for grant of probate.