CASE DETAILS v. ULRIC M A LOBO (DEAD) BY LRS & Ors.

Will – Probate of – The High Court after re-appreciation of the evidence held that the Will dated 10.11.1992 is shrouded with suspicious circumstances and reversed the judgment and decree of the trial Court – Propriety: Held: The unrefuted factual position obtained from the evidence on record is that the testatrix who died on 08.01.1993 at the age of 69 years, had studied up to S.S.L.C and was able to read and write English – She was a Municipal Councilor for 6 years besides being an active Social Worker – PW-3, one of the attesting witnesses to the Will in question, would depose that the testatrix herself called him to attest the Will and that he had seen the testatrix reading the papers before putting the signatures – PW-2, who is one of the sons of testatrix also corroborated the version that PW-3 was called over phone by his mother to attest the Will and that she had also read the Will – Nothing to disbelieve their versions was elicited by the defendants during their cross-examinations – PW-3 deposed that it was in his presence that the testatrix had signed the Will – It cannot be said that a person afflicted 1547 1548 with arthritis would not be in a position to read and understand the contents of a document – This Court has also adverted to the amendment sought to be brought in by defendant No.5 by producing Ext.D5 – Evidence on record would reveal that the testatrix was in hospital for 53 days till her death on 08.01.1993 – Despite such position if the 5th defendant takes a stand that she was in a sound disposition of mind on 20.11.1992 to execute Ext.D5, how would he be justified in raising a case that the testatrix was not in a sound disposition of mind prior to her hospitalization i.e., on 10.11.1992 (Will and testament disputed) – In view of his case attempted to be brought in through Ext.D5, contention could not have been raised that the testatrix was not in sound disposition of mind – Also, the legal representatives of deceased defendant No.5 who alone disputed the execution of Ext.P2 Will, are not contesting the matter – The testatrix was not illiterate and she did not put her signature without understanding the contents of the Will – In the circumstances, the said suspicions that excited the mind of defendant No.5 and accepted by the High Court cannot survive – Thus, they cannot be sustained. [Paras 14, 17] Will – Suspicious circumstances: Held: A party challenging the execution of a Will as suspicious must plead the suspicious circumstances and then only the propounder would legally be bound to remove these suspicious circumstances. [Para 15] Will – Burden to prove – Shifting the onus: Held: Once the burden to prove is discharged by the propounder in terms of s.63 of the Succession Act and s.68 of the Evidence Act, and by adducing prima facie evidence proving the competence of the testator, the onus is on the contestant opposing to show prima facie the existence of suspicious circumstances so as to shift the onus on the propounder to dispel them – Without knowing the circumstances, which according to the contestant opposing are suspicious, how will the propounder be able to dispel them and to convince the court about its genuineness and validity. [Para 16] LIST OF CITATIONS AND OTHER REFERENCES