KAVITA KANWAR versus MRS. PAMELA MEHTA & ORS.

Citation: [2020] 6 S.C.R. 357 · Decided: 19-05-2020 · Supreme Court of India · Bench: A.M. KHANWILKAR · Disposal: Dismissed

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Judgment (excerpt)

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KAVITA KANWAR
v.
MRS. PAMELA MEHTA & ORS.
(Civil Appeal No. 3688 of 2017)
MAY 19, 2020
[A. M. KHANWILKAR AND DINESH MAHESHWARI, JJ.]
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 daughter-
respondent 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
[2020] 6 S.C.R. 357
357
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SUPREME COURT REPORTS
[2020] 6 S.C.R.
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 befo

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