Decided on April 09,1979



B.K.MEHTA - (1.) This appeal at the instance of one Dinbai who happens to be the widow of Hirjibhai Hormasji Dordi who died on 11th March 1971 at Kodinar (hereinafter referred to as the testator for the sake of brevity) challenges by this appeal the judgment and order of District Judge Amreli granting probate with the will annexed in respect of the estate of deceased testator comprising of the properties mentioned in Annexure A B and C to the petition of probate to respondent No. 1 alone since respondents Nos. 3 and 4 were the attesting witnesses and therefore not entitled to probate in view of the provision contained in sec. 67 of the Indian Succession Act 1925 and because respondent No. 2 has refused to act as an executor of the will and resigned his post. A few facts need be noticed in order to appreciate the challenge of the appellant who was an objector to the grant of probate of the will of the deceased-testator. ... ... ... ... ... ... .. ... ... ... ...
(2.) At the lime of hearing of this appeal Mr. P. M. Raval learned Advocate appearing for the appellant-widow raised the following two contentions:- The will in question is inofficious inasmuch as it was not in consonance with the testators natural election and moral duties since he has completely disinherited his widow-the appellant herein and therefore it is an indication of the testators condition of mind when he executed the will in question. The learned District Judge in so far as he has failed to appreciate this aspect of the question in proper perspective his conclusion that the testator has executed this will in sound disposing state of mind is vitiated and therefore liable to be reversed.
(3.) In our opinion none of these contentions has any merit in it. It is no doubt true that a will which is not in consonance with the testators natural affection and moral duties is an inofficious document (vide:- Prasannamati Debya v. Baikuntha Nath Chattoraji (1922) 49 ILR 132 In Harwood v. Baker 3 Moo. P. C. 282 the Judicial Committee of the Privy Council has ruled that an inofficious will may throw some light upon the question of the testators condition of mind. A Division Bench of Calcutta High Court in Prasannamati Debyas cast (supra) was concerned with a testamentary disposition by a widow who had no children of her estate by dedicating a property for worship of Goddess Durga and giving some directions for the spiritual benefit of herself and her husband and leaving the residue of the estate to her sister who was married in the same family as herself. The provision s of such a will were not held to be inofficious or unnatural and were consequently not calculated to arouse suspicion as to the genuineness of the disposition. The Division Bench also ruled that whenever a will is prepared under circumstances which raise a well grounded suspicion that it does not express the mind of the testator the Court ought not to pronounce in favour of it unless the suspicion is removed the onus of doing so being on the propounder which suspicion it should be noted must be one inherent in the transaction itself and not the doubt that may arise from a conflict of testimony which becomes apparent on the investigation of the transaction. It is no doubt true that so far as the present will is concerned the testator has disregarded the claim of his widow and to that extent in the first blush it can be contended that it is not consistent with the testators natural affections and moral duties. That by itself is in our opinion will not conclude the matter since it merely throws some light upon the question of testators condition of mind as ruled by the Privy Council. At the most it may be considered to be a suspicious circumstance which requires to be clarified in order to satisfy the conscience of the Court. In Gorentla Thataiah v. Thotakura Venkata Subbaiah and others A.I.R. 1968 SC 1332 the Supreme Court held that in a case in which the will is prepared under circumstances which raise a suspicion of the Court that it does not impress the mind of the testator it is for those who propound the will to remove that suspicion. What are suspicious circumstances must be judged in the facts and circumstances of each particular case. We have in the first place therefore to address ourselves to find out whether these suspicious circumstances have been explained by the propounder of the will or not. We are satisfied on reading the evidence of the two executors namely Raghavji Thobhanbhai and Isaq Ismail Dagia whose evidence is recorded at Exs. 34 and 40 respectively that the deceased testator had fallen out with his wife-the appellant before us some 25 years before the execution of the will in question and that she had deserted him and was residing in Div and she had never returned to the testators house till about the last days of the testator. There is also support for this conclusion in the earlier will of 9th July 1966 produced at Ex. 36 that his wife had left some 21 or 22 years before the execution of the said will and gone away with ornaments clothes and other household effects without his permission and in his absence to her fathers place and that she has never returned nor provided company to him with the result that he was put to immense agony and unhappiness. He was so disgusted with his wife that he was not sure that even after his demise she would conduct herself in a manner which would rest his soul in peace. The appellant-widow Dinbai has admitted in her cross-examination of her deposition which is recorded at Ex. 56 on the record of the trial Court that her deceased husband had illicit connection with one maid servant Rambhuben and therefore she had ill feelings and had fallen out with her deceased husband and left Kodinar for Diu. The effect of the desertion by the appellant-widow of her deceased husband is completely established. No doubt the version of the appellant-widow was that she was aggrieved by the illicit relationship of her deceased husband with the maid servant Rambhuben. Except the bare word of the appellant-widow there is no reliable evidence whatsoever to substantiate this allegation which she has made for the first time in her cross-examination. In her statement of objections against the grant of probate she inter alia contended that though she was a lawful wedded wife of the deceased-testator she was not permitted by him to live with him and she was forced to stay with her brother till she returned to Kodinar some time before the demise of her husband. She further averred that an agreement for maintenance was executed in her favour by the deceased-testator on June 26 1949 by which the deceased agreed to make a monthly payment of Rs. 75/to her though she made a grievance in her statement of objections that no amount was paid to her and it was in arrears since the date of the said agreement. In other words her contention was that she was compelled to leave her husbands home. She has not stated a word in her objections as to the illicit connection of her deceased husband with Rambhuben. In that state of record therefore we are of the opinion that the testator had been for years on no good terms with his wife who was living separately since more than 25 years from her husband and returned to her husbands home only a few days before his demise. It cannot be said therefore from the mere fact of her disinheritance that the will is so unnatural as to justify the refusal by the Court to grant the probate to the executors.;

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