The concise facts of the case of Kavita are that the testatrix, late Smt. Amarjeet Mamik had a son and two daughters. One daughter, Kavita Kanwar, was the executor and significant beneficiary of the will even though she had not resided with the testatrix for over 20 years. The other daughter, Pamela Mehta, who was a widow and also had a child, lived in the same building and acted as a caretaker for the testator who was suffering cancer. She did not receive the substantial legacy, aside from a vague direction that Ms Kanwar should make available her with a place of residence in the bestowed property. The son, Prithviraj Mamik also claimed to have fine relations with the testatrix but only received a few nominal bank balances.
The major property comprised of land and building in Defence Colony, New Delhi, of which Ms Kanwar owned the ground floor, while the rest of the portion was owned by the testatrix. Ms Kanwar filed an application for the will to be probated, i.e., acknowledged valid by the court.
The probate application was declined by the Trial Court, which found quite a few unexplained situations surrounding the will (further detailed below). Ms Kanwar then appealed, unproductively before the Delhi High Court and then filed a Special Leave Petition before the Supreme Court, which agreed that the conditions did not rationalize granting of a probate.
Whether the Trial Court and the High Court were reasonable in rejecting to grant probate for the Will in question as prayed for?
When the Will is delimited by apprehensive circumstances, the court would anticipate that the genuine suspicion shall be eliminated before the document in question is accepted as the last Will of the testator.
The probate proceeding is eventually 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 persuade the conscience of the court with the elimination of all the suspicious circumstances. By the very nature and outcome of this proceeding, filing or non-filing of written statement or objections by any party pales into inconsequentiality and is of no effect. The probate proceeding taking place is not only inter-partes proceeding but leads to verdict in rem and, therefore, even when no one contests, it does not ipso facto lead to the grant of probate. The probate is granted only on the testimony of Will as also on the deletion of suspicious circumstances, if there be any, to the ultimate satisfaction of the conscience of the court.
Even in a usual civil suit, merely for want of written statement by a defendant, it is not essential that judgment would always pursue in favour of the plaintiff without the testimony of the basic facts and without making out an obvious case of the right to relief.
Even in an ordinary civil suit, simple non-filing of a written statement by the defendant does not always lead to a decision in favour of the plaintiff. It is worth mentioning that regular civil suit usually leads to a judgment inter-partes and not in rem. Even then, the prerequisite of proof is not obviated. When the proceeding is grave in nature like that for probate, which leads to judgment in rem, it is further than the quibble that mere non-filing of caveat or opposition is not crucial of the matter. The propounder, in each matter for grant of probate, irrespective of opposition or even admittance by any party, is required to gratify the conscience of the court, with the removal of suspicious circumstances, if any.
- that the chief beneficiary played a dynamic role in the execution of the Will in question and attempted to cover up this fact before the Court;
- That the method of writing and execution of the Will with technical and legal language was highly suspicious; and
- That the attesting witnesses were untrustworthy and there was a contradiction in the statements of the witnesses.
Any of the aspects, by itself and standing alone, cannot function against the legitimacy of the propounded Will. In other words, a single factor may not be vital but, if after taking all the aspects together, the conscience of the court is not satisfied that the Will in question truly represents the last aspiration and propositions of the testator, the Will cannot get the sanction of the court; and, another way round, if on a holistic observation of the matter, the court feels satisfied that the document propounded as Will indeed signify the last free wish and yearning of the testator and is duly executed in accordance with the law, the Will shall not be disapproved just for one suspicious circumstance here or another factor there. An iniquitous temperament of property or an unjust exclusion of the legal heirs, particularly the dependants, is regarded as a suspicious situation. An active or important part in making of the Will by the receiver hereunder has always been regarded as a situation-giving rise to distrust but, like any other circumstance, the propounder and/or beneficiary could well elucidate it. Sanctity attached to a bequeath in the writing of the testator assumes 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. No one can put across a better title than what he had; as expressed in the maxim: ‘Nemo dat quod non habet’.
While dealing with an unchallenged Will, the court being a court of conscience still has to satisfy itself as to the authenticity of the Will. The liability is much higher on the court in a contested proceeding. From an understanding of this judgment, it is comprehensible that, simply gathering the requirements for verification of a Will in terms of Section 63 of the Indian Succession Act, 1955 and Section 68 of the Evidence Act, 1872 may not be sufficient for grant of Probate; and the doubtful circumstances revolving around the execution of the Will must be isolated. The significant takeaway in the case is that if there are numerous suspicious circumstances adjoining the execution of a will, a joint effect of those circumstances can be adequate to reject the grant of probate even if the individual factors are on their own footing would not have been sufficient for such refutation.