ARTICLE
22 March 2024

Testamentary Court Cannot Test Validity Of Will U/s 67 Of Indian Succession Act: Bombay High Court

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Clasis Law

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The Bombay High Court in a recent judgement in the case of Ruby Cyril D'souza & Ors. v. Cecilia Reynold D'souza & Ors. has held that a Testamentary Court does not have jurisdiction to consider the validity of a bequest ...
India Family and Matrimonial

The Bombay High Court in a recent judgement in the case of Ruby Cyril D'souza & Ors. v. Cecilia Reynold D'souza & Ors.1 has held that a Testamentary Court does not have jurisdiction to consider the validity of a bequest to attesting witnesses' husband in terms of Section 67 of the Indian Succession Act, 1925.

Facts and Issue:

The sole beneficiary of a Will initiated proceedings for the issuance of Letters of Administration with the attached Will. Upon opposition from the other heirs of the testator, the proceedings were converted from Testamentary Petition to Testamentary Suit. The Court thereafter framed six issues pertinent to the authenticity and validity of the disputed Will. The Defendants in the Suit, Applicants herein, thereafter sought to introduce an additional issue questioning the validity of the inheritance specified in the Will under Ss 67 and 255 of the Indian Succession Act, 1925 ('Act'). The question before the court was whether a Testamentary Court has the authority to examine the issue outlined in the second part of Section 67 of the Succession Act, which serves as an exception to the Probate of Will or Letters of Administration with Will annexed. For ease of reference, S.67 and S.225 are reproduced as under:

"67. Effect of gift to attesting witness. – A Will shall not be deemed to be insufficiently attested by reason of any benefit thereby given either by way of bequest or by way of appointment to any person attesting it, or to his or her wife or husband; but the bequest or appointment shall be void so far as concerns the person so attesting or the wife or husband of such person or any person claiming under either of them.

255. Probate or administration, with Will annexed, subject to exception – Whenever the nature of the case requires that an exception be made, probate of a Will, or letters of administration with the Will annexed, shall be granted subject to such exception."

Arguments:

The Applicants submitted that the Testamentary Court exercising jurisdiction for grant of Probate or Letters of Administration with Will annexed is the very Court that can go into the said question of applying S.67 of the Succession Act, while considering the question of the Will being void to the extent specified in the said provision. The Applicants further submitted that a semi-colon in the S.67 did not imply a break in the Section, but only a partial break, which at the same time is a link between the sentences appearing therein. To buttress this submission, the Applicants relied on commentary on Interpretation of Statutes by Vepa P. Sarathi. The Applicants finally submitted that S.255 of the Act, which deals with grant of a Probate or a LA with exception has to be read with S.67 and that the same should be applied to the facts and circumstances of the present case. To buttress these arguments, the Applicant relied on the judgements of the Court of Appeal in Re. POOLEY2 , Hepzibah Annathai Rengachari3, J.C. Boaz and others4 and Lisamma5.

The Defendants opposed the said application on the preliminary ground that the Court's jurisdiction in probate matters, is concerned only with issues pertaining to the validity of the will's execution, attestation, genuineness, and absence of undue influence or coercion. The Respondent submitted that in a Testamentary proceeding, the Courts should only be concerned of the first part of S.67 and that the second part of S.67 cannot be contemplated to be an exception envisioned under S.255. The Respondents emphasized that the exception envisioned under S. 255 of the Act could be determined only on the basis of the contents of the will and does not cover the exception made in the second part of S.67. The Respondents also submitted that the said issue could be decided in an independent proceeding and not in the present proceeding. To buttress their arguments, the Respondents relied on the judgement of the Supreme Court in Ishwardeo Narain Singh vs Kamta Devi6 and Ors, and judgements of other various High Courts7 which had further propounded the law set down in Ishwardeo Narain Singh.

Analysis and Conclusion:

The Court noted that S.67 which is divided into two parts deals with attestation or sufficiency of attestation of will in the first part and declares bequest to attesting witnesses' spouse as void in the second part. The Court observed that the second part of S.67 has nothing to do with the first part of S.67 dealing with attestation or sufficiency of attestation by a witness. The Court further noted that S.255 deals with granting of a Probate or Letters of Administration with Will annexed subject to exception where the nature of the case so requires.

The Court opined that because of the construction of S.255, it has to be necessarily implied that the exception contemplated u/s 255 of the Act should be an exception within the contents of the Will, whereby the bequest may be limited or conditional. The Court further opined that this exception could also apply in a situation where a part of the will is found not worthy of Probate.

With respect to the jurisdiction of the Court in Testamentary proceedings, the Court noted that the Supreme Court in Ishwardeo Narain Singh has categorically established that jurisdiction of the testamentary court is limited to the aspect of valid execution of the Will, as being the last Will and testament of the deceased person, having been duly executed and attested in accordance with law. The Court further noted that the same view has been endorsed by the Bombay High Court in Ramchandra Ganpatrao Hande and was taken by Lahore High Court in Mt. Laso Devi.

The Court held that Respondent's reliance on T.K. Parathasarthi Naidu wherein it was held that exception in S.255 would be applicable when granting probate to multiple executors appointed to contend that the exception u/s 255 of the Act is discernible from the contents of the Will is correct. The Court also found the Respondent's reliance on C.R. Ramachandra Gowder to assert that exception in S.255 of the Succession Act, while granting Probate or Letters of Administration with Will annexed, would be limited to specific items or a fraction of the estate, as found from the contents of the Will as justified.

The Court noted that in the cases relied upon by the Applicant, challenge to the Will was not made in probate proceedings and that a separate proceedings were initiated to challenge the Will. The Court found the judgement of the Allahabad High Court in J.C. Boaz to be per incuriam in light of the judgment of the Supreme Court in Ishwardeo Narain Singh. The Court also opined that even if the use of semicolon in S.67 is appreciated, the issue arising in second part therein cannot be decided by the testamentary court thereby rejecting all the contentions of the Applicant.

The Court thus held that once jurisdiction of the testamentary court is appreciated as above, the question of validity of bequest u/s 67 of the Act, is beyond the scope of jurisdiction of testamentary court and dismissed the application.

Footnotes

1. 2024:BHC-OS:1412

2. 40 Ch.D.1

3. AIR 1975 MADRAS 342

4. 1982 All LJ 1461

5. (2017) 2 KLJ 927

6. 1953 SCC OnLine SC 34

7. AIR 1936 Lah 378, 2011 (4) Mh.L.J.50, AIR 1995 MADRAS 411, AIR 1973 MADRAS 179

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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