In the case of Vasudev Daulatram Sadarangani Vs. Sajni Prem Lalwani AIR 1983 Bombay 268 this Court through the judgment of Justice Lentin, as he then was, held that a petition of probate can be filed when the need arises as it only seeks recognition from the Court to perform a duty-the duty of an executor. The right to file an application for grant of probate or letters of administration is a continuing right which can be exercised at any time after the death of the testator. There is no specific provision in the Limitation Act for filing a petition for probate. The petition for probate shows no lis between the parties and hence is not required to be filed as a suit. Consequently, a testamentary petition could not be covered by the Limitation Act. Indeed through the years petitions have been filed in this Court for probate many years after the death of the deceased and as and when the need for the grant of a probate arises.
125. The Supreme Court whilst considering this issue in the case of Kunvarjeet Singh Khandpur Vs. Kirandeep Kaur MANU/SC/7451/2008 : (2008) 8 SCC 463 set out the summarised decision in Vasudev Sadarangani's case in para 15 of the judgment. The fact that the application for permission to perform the legal duty created by will by filing a probate or letters of administration as a continuous right has been upheld. Once that is done, no question of any bar of limitation would arise. Hence it has been held that there is advisedly no prescribed period of limitation for a grant of probate, or letters of administration. The right to apply is whenever it is necessary which may not be within 3 years from the date of the death of the deceased. However the assumption that under Article 137 the right to apply necessarily accrues on the death of the deceased being unwarranted is observed to be incorrect, as in some cases that would not be so if, as in this case, where it is shown that there was no need to apply for probate at the time of the death of the deceased. If parties were at dispute since that time and if applying for probate or letters of administration was shown to be necessitated by intrinsic evidence, unlike in this case, the assumption may be warranted. This is so held only upon accepting the analogy in the case of Kerala SEB Vs. T.P. Kunhaliumma MANU/SC/0323/1976 : (1976) 4 SCC 634 which held that Article 137 would apply as much to a Probate Petition as to all other applications because in the Limitation Act, 1963, unlike the Limitation Act 1908 the applications under Article 137 included applications under all Acts and not only applications under the CPC. Hence a Probate Petition is held otherwise to fall under Art. 137 of the Limitation Act 1963. But it being a continuous right and being required to be filed only if the situation so entailed, the period of limitation would begin to run only from when the situation warranted a petition.
126. It is contended on behalf of the defendants that Article 137 would apply from the date of the death of the deceased. The contention is absurd. When the Supreme Court accepts, as held by this Court, that the right to sue for probate etc., is a continuous right and can accrue whenever it becomes necessary, the cause of action cannot accrue on the date of the death of the deceased, even if the assumption is not unwarranted. The right to sue would accrue when the need is felt whatever be the assumption as the conclusions in Vasudev Sadarangani's (supra) case which has been upheld as the correct position in law is consistent with all the conclusions except 'b'. Hence the argument that Article 137 would apply from the date of the death of the deceased in all cases cannot be accepted.
IN THE HIGH COURT OF BOMBAY
Testamentary Suit No. 7 of 2007 in Testamentary Petition No. 964 of 2006
Decided On: 07.03.2013
Appellants: Manilal Sunderji Doshi
Vs.
Respondent: Kamal Manilal Doshi & Ors.
Vs.
Respondent: Kamal Manilal Doshi & Ors.
Hon'ble Judges/Coram:R.S. Dalvi, J.
1. The plaintiff is the husband of the deceased Vilasgauri Manilal Doshi. He has applied for the probate of the last will and testament of his wife dated 15th April 1970. The Caveators/Defendants are three of his sons. The deceased as well as the plaintiff executed their separate and independent wills on 15th April, 1970. They have essentially bequeathed their estate to one another and if the other predeceased the Testator/Testatrix to their children equally. They have five sons and one daughter. Soon after the execution of the will, on 2nd June, 1971 they have executed a deed of trust in which the plaintiff is the settlor of the property called Ujam Vilas which is a building in which the family resided. Both the deceased as well as the plaintiff are the trustees thereunder. The children are beneficiaries thereunder.
2. The wills have been executed by both the parties on the same day at the same time in the office of the Attorneys of the plaintiff attested by one of the then Solicitors who was its senior partner and another Advocate who was his brother-in-law. Both the attesting witnesses have expired. Another partner of the firm had identified their signatures at the time of the filing of the petition in an affidavit filed along with the Petition. That partner of the firm has also expired by the time the suit reached hearing. The son of the partner who attested these wills, who is an Engineer by profession, has identified the signatures of not only his father, but both the attesting witnesses as he was the relative of both of them. Upon such a case the plaintiff seeks to propound the will of his deceased wife.
3. Three of the six children who have filed the caveat have contended that the deceased had not executed the will. She had orally expressed her desire that she would leave her entire estate equally to her children. She had executed a private trust for the benefit of her children. That is under the above trust deed relied upon by the parties. It was initially considered an irrelevant document for the execution of the will which was executed prior to that document, but upon reliance by all the parties thereupon, more specially the defendants, it has been seen to be relevant to prove the fact of the execution of the will itself and would be considered in evidence as an admitted document. The caveators also contend that the signature on the will is not the signature of the deceased, that it has been forged and has been obtained by coercion and importunity and undue influence and that the will is void on the ground of uncertainty and vagueness. How and why their deceased mother could not have executed the will has been set out which is essentially the evidence of the defendants and not their pleading.
4. Consequently, based upon the pleadings between the parties Justice A.V. Nirgude framed the following issues on 11th February, 2009, which are answered as follows:
5. The plaintiff has examined himself and a witness to identify and prove the signatures of the attesting witnesses who have expired. The defendants 1 and 3 have examined themselves. The defendants have also examined one Mahendra Doshi, their cousin and the nephew of the plaintiff to show the linguistic acumen of the deceased in English, the language of the will and the language in which she has signed the will. The plaintiff has thereafter examined an outside witness in rebuttal for much the same purpose.
6. The aforesaid issues would essentially have to be answered upon the oral evidence led by the parties alone. However a wholly premature yet an attractive argument has been made on behalf of the defendants that because the deceased and the plaintiff have executed wills on the same day bequeathing to one another their estate and only in case of the predecease of the other bequeathed the estate equally to their children, the wills are mutual wills and hence irrevocable. It may at once be mentioned that the Testamentary Court would only have to consider whether the will is executed in accordance with the provisions of the Indian Succession Act or not and if it is so executed the will would be entitled to be probated. Upon such probate the legal consequences may or may not follow depending upon various laws including the laws relating to mutuality of wills. In fact, it may also be added that even the will of the plaintiff himself or any further wills, if any, made by him would not come up for the challenge upon the rule against mutuality in the Testamentary Court. Upon the wills of both the parties the Testamentary Court would determine only the validity of the last will of the parties for probating them. If the wills are probated, based upon the law relating to mutuality of the wills, if any, the person who may have taken charge of the estate under such probated wills may be a trustee for the estate and may hold it as such. The contention about the effect of mutual wills, therefore, would strictly not arise in this suit as also in any suit relating to the probate of the will of the plaintiff also as will be presently seen from the English as well as Indian precedents. Nevertheless since the contention has been taken and very seriously pressed that the will of the deceased who is the first of the mutual executors itself cannot be probated because it hits against the rule of mutuality inasmuch as the plaintiff has admittedly executed another later will so that the mutual will executed by the plaintiff on 15th April, 1970 is not his last will and testament and would not come up for probate, an issue in that behalf would have to be separately raised and answered on the question of law. The delay in filing the petition as also the fact and it is barred by the law of limitation has been agitated by and on behalf of the defendants though no such contention has been taken up in the pleadings and no issue has been framed. Nevertheless the issue in that regard is also required to be framed. Hence, additional issues being Issue No. 5A & 5B are framed and answered as follows:
7. The issues would have to be considered upon the oral and documentary evidence led by the parties. The admissibility of the documents was initially considered when the wills of the deceased and the plaintiff, the death certificate of the deceased, certain affidavits and correspondence and a declaration executed by some of the children of the deceased and the plaintiff including one of the defendants were marked in evidence. Upon further oral evidence, more specially upon confrontation in the cross examination of the defendants certain other documents have come to be proved such as certain photographs of the deceased and certain postcards of the deceased and the plaintiff. The above Trust Deed relied upon by the defendants and seen to have been admittedly executed by the plaintiff as also the passport of the deceased, being issued by the public authority. These documents shall also be considered in evidence as an admissible and relevant documents.
8. ISSUE NOS. 1& 2:
It would be material to read and understand the contents of the wills of the deceased as also the plaintiff from the inception.
9. The plaintiff and his wife have been shown to be rather inseparable as a married couple. They are stated to have owned and used properties jointly. They are shown to have travelled, even abroad, together. They both were members of the Rotary Club; the plaintiff had at one time held position as the Governor of the Rotary Club and was required to attend to certain businesses thereof in the USA. The deceased was a member and later appointed President of the Innerwheel Club which is the ladies wing of the Rotary Club. The parties were to go abroad immediately before which they executed their mutual wills. That visit abroad has been admitted by all the parties to the suit since the inception. The defendants 1 and 3 who led evidence initially feigned ignorance of the other foreign visits of their parents, but which have been established on record through the passport of the deceased and the production of certain other documents shown to defendant Nos. 1 & 3 in their cross examination and which shall be considered presently.
10. Before one such important or perhaps the first of such foreign visits the husband and wife are stated to have decided and are shown to have executed their wills in about the same terms at the same time, date and place.
11. The contents of the will must be first seen. The will of the deceased is executed on a ledger paper in the office of M/s. Bhaishankar Kanga & Girdharlal (BKG), a partnership firm of Solicitors, and is made out as such wills would be. The will is rather short in length. It spreads over three clauses.
12. The deceased has appointed her husband, the plaintiff herein as the sole Executor. She has bequeathed all her movable and immovable properties to him absolutely under the first clause of the will. The deceased has appointed her brother-in-law and the Solicitor who was the attesting witness as her Executors, if her husband predeceased her and in that case she has bequeathed all her movable and immovable properties which she might inherit under the will of her deceased husband on that date to her children equally under clause 2 of the will. Subject to clauses 1 and 2, in clause 3 she has bequeathed all her properties to her children.
13. Her husband did not predecease her. Clauses 2 and 3 have not come into effect. Under her will at the time of her death on 6th October, 1994, 24 years after the execution of the will, the plaintiff not only became the sole executor, but the sole beneficiary of her movable and immovable properties. There was no question of she having inherited her husband's properties. There was no question of the other two persons being her Executors and similarly there has been no question of her children succeeding equally to her estate.
14. The will has been executed by her in the presence of two attesting witnesses: J.T. Desai, Solicitor, Bombay was the Senior partner of the firm of BKG, a partnership firm of Solicitors at that time, as the first attesting witness. M.H. Chatrapati, Advocate, who was his brother-in-law, had his chamber in the office of BKG. One Jagdish Mehta, Solicitor identified the signatures of both the attesting witness who attested the wills since they had expired by the time the petition was filed in 2006, 36 years after the execution of the will.
15. The deceased has signed in English. She has signed as "Vilas M. Doshi". That is the signature which is stated by the defendants to have been forged or which could not have been put on the will or which was obtained under importunity, undue influence etc. Hence we shall have to consider how, if at all, the deceased without understanding the will put that signature in the premises of BKG, a partnership firm of Solicitors, as is sought to be reflected from her will itself or whether the signature could never have been put by her and has been forged later or whether she was made to sign under duress, where and how.
16. The will of the plaintiff dated 15th April, 1970 is much the same, but not verbatim the same. It would be interesting to paraphrase the text of that will also.
17. The plaintiff has appointed his wife, the deceased, as the sole Executrix. He has appointed his brother and the same Solicitor as his Executors if his wife were to predecease him. He has mentioned about certain life polices assigned to his children and has bequeathed all his movable and immovable properties to his wife absolutely. He has bequeathed all his movable and immovable properties to his children equally if his wife predeceased him.
18. The essence of both the wills is the same. The husband and wife considered one another as their sole beneficiaries. One had to predecease the other except in the most abnormal circumstances.
When any one predeceased the other, they bequeathed all their properties to their children since their partner would be no more. This would have been the fate of one of them. The fate of the other would be clear. When the first of them would expire, the last of them would acquire everything by that testamentary bequest. This was as far back as in 1970 when their children were young. Both would not know what was to come later in their lives. They gave one another everything, absolutely.
The survivor of them would be covered by the clause relating to the later bequest or make a fresh will. That goes without saying. That may be repeated as many times as circumstances and exigencies demanded and required. That would be the right, entitlement and privilege of both of them as also the survivor of them as shall be seen presently.
19. It would be more apt to see both their wills side by side for the simple bequests made by both of them to one another and by one of them whoever survived the other, to their children.
20. The relevant clauses read thus:
21. Such are the two wills executed on the same date, time and place in the Attorney's office. Though the plaintiff has relied upon both the wills, they have been essentially seen because of the contentions raised by the defendants. Both the parties, therefore, attended in the Attorney's office at the same time for the execution. Aside from the two signatures of the executants the two signatures of the attesting witnesses are identical in both of them. Even the typographical style is same in both of the wills including the character "&" between the signatures of the two attesting witnesses marked Nos. 1 & 2 in the attestation clause of both the wills. The first page of both of them begins in the latter half of the page in both the wills. The execution clause has been similarly typed leaving a broad margin in the left half of the third page in both the wills complete with the punctuation marks identically placed in both the execution clauses. The plaintiff has relied upon both the wills to prove his wife's will. He has relied upon the fact that both he and his wife decided to execute their respective wills together before they travelled abroad and for which he gave instructions to the attorneys and both of them attended in the attorney's office to execute both the wills. The plaintiff has himself deposed that his will is not the last will. He has, therefore, not only suggested, but specifically deposed about the execution of a later will executed by himself which would not come up for Court's consideration at all except for the fact that based upon that deposition, the defendants contend that even if the will of the deceased was validly executed by her it should not be probated, an aspect which shall be seen as a point of law whilst considering issue No. 5A.
22. The wills are documents more than 30 years old on the date of the petition itself. They would carry the statutory presumption of the correctness of the handwriting and the signatures on the wills. This itself would show that the wills are "executed duly and attested duly-in other words that the document was validly executed and a further conception that the testator had testamentary capacity as required under Section 59 of the Indian Succession Act, 1925 to execute the will. The Court may, therefore, presume the execution and attestation (See Sarat Chandra Mondal Vs. Panchanan Mondal A MANU/WB/0174/1953 : 1953 Cal. 471 following A. 1947 PC 15).
23. Having seen the execution of the two wills relied upon by the plaintiff his oral evidence must now be considered. He has deposed that he is personally aware that the deceased executed her will on 15th April, 1970. It was prepared by BKG. It was attested by the aforesaid two attesting witnesses, one of whom was the partner of the firm and the other of whom was an Advocate, and had his chamber in the firm's office.
24. In para 5 of his evidence the plaintiff has deposed how they came to executed. In March, 1970 his wife and he decided to prepare their respective wills because they were going for a trip abroad. He, therefore, approached his then Solicitor to prepare the wills of himself as well as his wife. He, therefore, gave the instructions to the Solicitor upon the decision by both of them. His wife and he approved the draft prepared by the Solicitor. They were called by the Solicitor. They visited the office of the Solicitor on 15th April, 1970. His wife first executed her will in his presence and in the presence of two attesting witnesses at the same time. Thereafter he himself executed his will in the presence of the same two attesting witnesses who were present at the same time. He produced his own will also and deposed that that was not his last will.
25. He has been cross examined on this evidence. His cross examination in paragraph 8 shows that he had given instructions to BKG to prepare both the wills a few days prior to the date of the execution of the will. He did not remember whether the draft was forwarded prior to the date of the execution. When the will was signed, both his wife and he were present. Paragraph 7 of his cross examination shows that her will was prepared as per her instructions. Those, therefore, must have been given to the plaintiff who informed his Solicitor. In paras 9 and 10 of his cross examination he has deposed that he presumed that the deceased was aware of the contents of the will signed by her. His presumption is because the question has been put to the witness about whether he was aware of a given fact known to another person, his wife, which no witness can depose as a matter of fact by certainty. He has then deposed that he did not remember whether the deceased read the will in his presence. It must be remembered that the drafts were given by the Solicitor and approved by the clients. There is no cross examination on that aspect. Hence when the drafts were given and approved, the engrossed document may or may not be read again in the presence of the other executant of the other document present at the same time more so when the document is as short and concise as these wills. His further evidence is that he thought that the contents were explained to the deceased at the time of the signature and execution. This evidence is from memory of what he thought. It is neither his own case nor the case of the defendants that he was explained the contents of his own will. The only question was whether the deceased was explained the contents of her will. Hence his natural evidence is that he thought that she was explained those contents. He has later clarified that was done by his Solicitor and not himself.
26. Having so cross examined the plaintiff about the awareness of the deceased of the contents of her will and the explanation to the deceased of those contents, he has been asked why that was necessary if the deceased had studied up to matriculation (which was his earlier evidence in the cross examination upon questions relating to her education). The plaintiff has answered that he did not know why the Solicitor thought it necessary to explain the deceased the contents. Consequently upon the cross examination made with regard to the awareness and the explanation, the reason for the awareness and explanation was sought in the further cross examination, which naturally the plaintiff was unable to give.
So much for the actual execution of the will which is sought to be probated in this Suit.
27. We are, therefore, left with the clear, precise and concise evidence. Two parties, husband and wife, were to travel abroad and decided to make their wills. They were to make similar wills. They were to give each other everything. Whoever died first would leave the other their entire estate and leave their estate to the children only if their spouse predeceased them. Upon such decision to prepare the will the plaintiff approached the Solicitor. The plaintiff had his Solicitor in place then. The deceased had no other separate Solicitor. The husband told the Solicitor about their decision. The Solicitor prepared the draft. They approved the draft. They were called to the Solicitor's office. They had to sign the engrossed wills which they did. That was done in the presence of above two attesting witnesses.
28. The only cross examination is about her knowledge, thinking, awareness and understanding at the time she is stated to put her signature. Consequently, the decision of approaching to the Solicitor, the preparation of the draft, the approval of the draft and the engrossment by the Solicitor are accepted. On the premise that the wife was an ignoramus, the questions have been put in paras 9 and 10 of the cross examination. The plaintiff has deposed as best he can about the awareness of another person. The only explanation, which is in fact a clarification, is the fact that she was explained-why he did not know-by the Solicitor and not himself. The Solicitor alone would explain if there was to be any explanation. The husband could not explain the wife in the Solicitor's office. He may have explained her in the residence which fact has not been dealt with in the cross examination at all. Having approved the draft, both the parties were not even expected to read the will as if it was not known to them. At best they would cursorily scan through the contents and sign. Hence, the plaintiff naturally did not remember whether the deceased "read" the will in his presence. This evidence is consistent with the fact that she has read it earlier when the draft was given and has approved it and expected the engrossment to be in order. The will is short and simple. Only two aspects of the appointment of the Executors and the bequest of everything had to be quickly scanned through. That would not entail much reading. The home work was done earlier. Hence, the material aspect was whether or not the deceased put her pen to paper knowing that it was her testament.
29. The plaintiff has not examined any of the attesting witnesses to the will executed in 1970. The deceased died in 1994. There was no challenge to the will until a notice came to be issued by defendant No. 1 in 2004 to the plaintiff to distribute the estate of the deceased as on intestacy. Only thereafter the plaintiff was required to probate the will. The petition has been filed in 2006, 36 years after the execution of the will, 8 years after the death of the deceased and within 3 years of the demand for share. The attesting witnesses have understandably expired.
30. One of the attesting witnesses was a partner of the BKG and the other was an Advocate who practiced from the firm's premises. That Advocate happened to be the brother-in-law of the first attesting witness. Another partner of BKG filed an affidavit in support of petition identifying the signatures of his deceased partner as also the Advocate whom he knew for years. That partner has also expired. The son of the partner who was one of the attesting witnesses has been examined. He has identified the signatures of the deceased Solicitor who was the attesting witness as also the deceased Advocate who was the other attesting witness. The Solicitor was his father. The Advocate was his uncle.
31. Under Section 59 of the Indian Evidence Act, which has been sought to be referred by Mr. Jagtiani, the deceased was capable of making her will and had property which she could alienate and hence bequeath, though it is argued by him that the factum of non being able to fathom what she signed would make her incapable of having such testamentary capacity.
32. Upon such oral evidence read alongside the will itself the execution and attestation of the will has been proved.
33. Since the very signature of the mother has been disputed by her three sons, the Caveators herein, they have laboured to show how she could not have understood the will or even signed it. The entire evidence of the defendants 1 and 3 who have chosen to lead evidence has been only to the end that their mother did not understand English and therefore, could not have understood the will and could not have signed as she did. The entire cross examination of the plaintiff as also the other outside witness who has been examined in rebuttal has been to that end.
34. The defendants have primarily relied upon one deed of trust executed on 2nd June, 1971 by the plaintiff as also the deceased, their mother. The plaintiff is the settlor. He settled upon trust one Immovable property which is the building in which both the parties as also their children resided in different flats. Under that trust deed it is recited that the settlor has five sons and one daughter. The settlor in consideration of natural love and affection towards his children settles Rs. 1000/- on trust for their benefit. The trust is called Ujam Vilas Trust. The trustees were to divide and pay the net income of the trust fund to their children in equal proportion. Incidentally that trust deed is also signed by not only the plaintiff as the settlor but the plaintiff as well as the deceased as the trustees. It is executed in the presence of two witnesses one of whom was the first attesting witness to the will, the same senior partner of the then firm of BKG who was the plaintiff's Solicitor. The signatures of the deceased on the trust deed and on her will are identical. A comparison thereof is required to be made under Section 73 of the Indian Evidence Act by the Court. The deceased has signed in English in April, 1970 and June 1971. It is not known and not disputed and not agitated as to whether the deceased had read and understood the cumbersome terms of the trust deed which were executed by her about a year after the execution of the simple, short and clear will. The trust deed is relied upon by the defendants to show that months after the execution of the will, the parties had decided to divide the trust funds also amongst their children in equal shares.
35. Of course, that was the intention of the parties then subject only to they having given one another all their properties if they expired.
36. Ironically, the deceased has executed the Trust Deed also in English. Her signature of April, 1970 has been seriously contested and her signature of June, 1971 has been in fact relied upon by the defendants. The defendants plead that that document be marked in evidence as a relevant document. As aforesaid, though initially it was seen not to be relevant, it is indeed seen to be relevant upon the controversy that has raged and is, therefore, considered in evidence as an admittedly executed document.
37. It is upon this premise that the understanding of the deceased and her signature on her will must be appreciated. The cross examination of the plaintiff has shown that the deceased was, though barely, educated prior to her marriage at the age of 17 to him. He considers her educated upon she having passed her matriculation examination. No evidence in that behalf or against has been produced and is not even material to be seen. What is of relevance is that their education is stated to be in Gujarati and English language. English would of course be her second language. The plaintiff has deposed in his cross examination that she could read and write Gujarati and was also able to read, write and speak in English. She was conversant with Hindi, Gujarati and English language. Though she was primarily conversing in Gujarati language, their conversation took place in all the three languages. She could sign in English. She was not involved in any trade or business, but had the services of a chartered accountant, lawyer, etc independently relating to property and tax matters. The plaintiff recollected the deceased having consulted Mr. Mehta of BKG and M/s. Dalal & Company for taxation without his assistance or presence. She was in control of her affairs and financial matters though she consulted the plaintiff and took his advice.
38. It is contended on behalf of the defendants that the deceased could not have excluded all her children in the will executed in April, 1970 and leased her property to all the children under the Ujam Vilas Trust in January, 1971. The children have not been excluded under the will except to the extent that their father would have precedence. But for the father, if he had predeceased the deceased, all her children were to share equally. Even under the settlement which was not made by her, but by the plaintiff, their father, the properties were settled in trust for their children. Both of them had desired to give the children that property equally subject only to each other. The trust deed also reflects much the same position, the father being the settlor, the parents being the trustees, the children being the beneficiaries. The trustees would be the legal owners of the properties. The settlor would exercise control over the property. The beneficiaries are in fact the ultimate beneficiaries. None was excluded. Only the ultimate legal title was deferred. The same position would continue to prevail until the scenario changed.
39. The defendants 1 and 3 have led evidence of the lack of education of their mother in English and consequently lack of understanding of the foreign language by her. In para 4 of the evidence of defendant No. 1 (Kamal) he has deposed that his mother was unable to read, write, speak and understand the English and was merely able to sign her name in English. His hearsay evidence, which is wholly inadmissible, shows that the mother studied up to primary level in Gujarati medium of instruction in her native village, a fact left unproved by such oral evidence without any further substantiation. No primary village school leaving certificate is produced showing discontinuance of her studies at that stage. In para 5 of the evidence he has also deposed that she had no control over her property and could not seek professional advise independently. However in para 7 of the evidence he has deposed that his mother was an independently wealthy woman. She had jewellery given by her father and was the owner of immovable properties in Kurla and businesses including a warehousing business. It is over his mother's property that there is a factory building, which is stated to be the father's factory in the evidence and in the re-examination it is clarified that the mother owned the company and had asked him to work under his father in the factory. Hence, the lady who was an ignoramus called the shots and her son, complied. Defendant No. 1 has also deposed in para 6 of his evidence that the trust deed dated 2nd June, 1971 was constituted at the insistence of his mother who had the intention to divide the wealth equally amongst her children. It is not known whether that trust deed was understood by her when she signed it; there is no evidence that she was explained the contents of the trust deed too.
40. These contradictory pieces of evidence contained on the one hand in paragraphs 4 and 5 showing her tepid education and the consequences thereof on her financial matters with professionals and on the other in paras 6 and 7 of the evidence showing her economic independence reflecting her capabilities. Of course such capabilities may be abundant without the use of conversational English also. However decades of exposure to travel abroad, as will be presently seen, and dabbling in financial and proprietory matters one cannot be aloof from the international language of trade, business and networking.
41. It is in his cross examination that the status and position of the mother with regard to how she would have been compatible with the English language is brought out. Defendant No. 1 worked in his father's factory on his mother's land. He carried on business with both his father and his mother (A-19). Later he shifted to Bengaluru to carry on his own business of chemicals. When he was in Mumbai and until he got married he would convey his decision for various social matters to his mother who would convey it to the father. Hence, the mother was the intermediary.
42. There are questions in cross-examination put to this witness on various topics, all of which he has at first side-tracked and later accepted.
43. His father was the member and later District Governor of the Rotary Club. His mother was the member of the Innerwheel Club which is the ladies wing of the Rotary Club and later the President thereof.
44. He initially admitted that his mother travelled outside India once. He did not remember his mother having travelled abroad because he was then very young. His parents had travelled to the USA when his father was the Rotary Governor. He was himself not a Rotary Governor though he was an Ex-Rotarian. There are annual meetings of Rotary Governors in the USA. He initially did not remember the world tour of his parents and also the travel to Japan where his father lived and worked for gain for a few years and owned a house there. He did not remember his mother visiting Japan when his father lived there. The passport of the mother has been produced to show the correctness of the case put by the plaintiff to him and his prevarication.
45. He has been shown certain postcards. He has identified his mother's name written thereon. He did not accept the handwriting of his mother.
46. He did not also remember that his mother was the President of the Innerwheel Club in 1993-94. He deposed that that was because he was not residing in Bombay then. He has also deposed that his mother did not inform him of her election as President of the Innerwheel Club because she did not consider it of enough importance for information. He was shown certain photographs of the installation ceremony of his mother as President. He has identified his mother in the photographs. The photographs indeed show the happy and proud moment. However he did not remember the saree which his mother had worn at the time of the installation ceremony which was gifted by him to his mother since he had gifted her many sarees. He has identified his mother in a photograph of the Innerwheel Club distributing clothes to the poor. The photographs shown to him in confrontation are relevant and admissible documents and must be considered in appreciating such evidence.
47. He did not think that the proceedings of the Rotary Club were conducted in English language because in South India, which according to him is a backward place, the proceedings are conducted in the local language. He, of course, did not think that Bombay was a backward place. We may, therefore, take it that the proceedings of the Innerwheel Club in Bombay were conducted in English which his mother attended initially as member and later conducted them in English as President.
48. He knew that his parents hosted guests. He however did not see how his mother interacted with them because she could only interact in language other than English. However, his mother would have all the documents showing payments for the purchase or management of the properties as also the equity shares in BMK Industries Pvt. Ltd., that she purchased from her own funds and owned.
49. The plaintiff has relied upon a declaration signed by some of his children for transfer of the property of the deceased to the name of the plaintiff after the death of the deceased. Defendant No. 1 had not signed the declaration since he was not in Mumbai and carrying on his business in Bengaluru. A copy of the declaration shows that defendant No. 2 had also not signed it. Defendant No. 3 has signed the declaration, but has filed his caveat. The other children have consistently supported the father not only in signing the declaration, but in allowing the father to use the property bequeathed to him under the will of their mother. The father had not felt any need of filing a probate petition earlier since none had challenged the will until a notice was sent by the attorneys of defendant No. 1 to the father on 27th July, 2004 in reply to which the father being justifiably "shocked and surprised" sent a copy of the will which defendant No. 1 claims he learnt about for the first time then. Though he did not sign the declaration as he was not in Mumbai, he never disputed the right of the father in dealing with the property at any time until he claimed his share as owner of a share of his mother's estate who he claimed had died intestate in the said notice years after her death. Though it was indeed many years after her death, the claim was made far too soon which may have proved fatal. Defendant No. 1 chose to claim his share well before the death of his father. It is from then on that the disputes have begun. It is only thereafter that the father has been constrained to sue for obtaining probate which was not a mandatory requirement. The fact that the defendant No. 1 had never challenged earlier is sought to be shown from a certain declaration that was executed, if not by him, but by his other siblings in favour of his father.
50. There has been a lot of cross examination to that end. The replies of defendant No. 1 with regard to the execution of the declaration vis-Ã -vis the delay in claiming his rights on intestacy have to be collated from far-flung evidence.
51. The defendant No. 1 has deposed that neither he, nor his brother defendant No. 2 (Bharat) signed the declaration. He requested his father to distribute and divide the estate. His father assured, but took no steps. He could not pressurise him until he sent the notice and received the will in reply. His relations with his brothers were normal throughout. He would often meet his brothers whenever possible when he was in Mumbai. That would be quite often each year. He had talked with his brother Jayant, Bharat and Mukesh before he filed his affidavit of evidence. He did not remember talking to his brother Kirit.
52. He did not remember discussing about any declaration in January, 1998. He remembered seeing the declaration or its copy (A-131). (Of course, in his re-examination he has taken a summer salt). Yet after having deposed that he had seen it he specified that that was not seen in 1998. Upon seeing the copy of the declaration or the declaration which shows the declaration of his other brothers and sister that they had no objection for transfer of the estate to the father as the sole owner of the estate after the death of his mother under her last will which is shown to be correct and proper, he would know about the will of his deceased mother. He deposed that he saw it when it was submitted in Court. He did not know when it was submitted, but it was submitted by his own lawyer. He did not know when it was submitted by his own lawyer and he also did not remember having referred to it in his affidavit of evidence. He has been shown a copy of the joint declaration relied upon and produced upon by the father in an earlier litigation in and around 19th April, 2005 in a reply filed by him in the proceedings filed by his brother. It is from that reply that defendant No. 1 relied upon the declaration in paragraph 20 his own affidavit of evidence filed in this suit.
53. A reading of the entire evidence as a whole, as should be done, it can be seen that defendant No. 1 knew about the will of his mother and took no exception to it for a decade after her death. This could not have been the position had the mother not been a competent testatrix. The evidence of defendant No. 1 casts a poor reflection upon him as a witness exuding any credibility.
54. The defendant No. 3 (Jayant) has deposed only about the inability of the deceased to speak, read & write of English, but merely sign name in English as a housewife who did not engage in any business, trade, service or occupation upon the factum of his residence from his birth till the death of the deceased in the same building as the deceased, Ujam Vilas.
55. Defendant No. 3 having lived in Ujam Niwas was meeting his father, mother, brothers and sister regularly or atleast frequently at all the material times. He came to learn albeit later that his mother was member of Innerwheel Club at the time she became the President because he was informed by the mother herself. He was not joyous on his mother's achievement. He deposed that his mother was forced into the post though she felt that she could not do justice to her job. He was not present at the installation ceremony and did not know whether his wife or his sister attended it. He did not know that his mother took oath in English. He, however, met his brothers and sister regularly since 1997-98 when he shifted back to Mumbai from Silvassa where he had carried on the business of Viman containers between 1978-1988.
56. He remembered 3 or 4 meetings in the year 1998 in relation to the estate of his mother. He recalled that everybody was present except perhaps defendant No. 1 since he was residing in Bangaluru. He would not remember whether his siblings and he would keep those meetings secret from his brother Kamal. Though he regularly attended the commission hearings even prior to his evidence he did not remember having discussed the issues in the matter with his brother Kamal or having gone through his affidavit. He however had read the caveat of his brother. He had not filed any affidavit in support of that caveat. He is nonetheless a caveator.
57. He has signed the declaration, discussed about the declaration relating to the estate of his mother and had occasion to meet all his brothers and sister, but did not communicate that fact to defendant No. 1, the main caveator himself. In and through the declaration he is taken to have known and accepted the execution of the will of his mother and steps sought to be taken by the plaintiff thereunder.
58. Much as defendant No. 1, he has also prevaricated throughout his evidence. He did not remember his mother's foreign visits. He only remembered the US visit when his father had become Rotary Governor and she had been with him for the Rotary International Conference in the US. He has not remembered the length of that visit. He did not miss his mother's absence; his mother was always at home (except when she was abroad?). He did not remember whether his mother visited Japan, Malaysia, Srilanka and Russia when he was a school child. The passport of the mother would speak eloquent and is seen to be a relevant document. It being a document issued by a public office, in the normal course, has to be read in evidence. It shows the deceased having visited countries of Western Europe being Italy, France, Denmark, the Netherlands as also Hong Kong, Japan, Canada, Fiji aside from the USA and including the Hawaii islands.
59. He was 9 years old in 1962 at the time his parents visited Europe and hence did not recall the visit. He has been shown letters and postcards written by his father and mother whilst in Europe. He identified the handwriting of his father.
60. He knew his mother's handwriting in Gujarati, but has never seen his mother's handwriting in English. He did not remember his mother's signature. He identified his mother's handwriting in Gujarati upon being shown certain postcards. He was also shown the address of the addressee on a postcard. He did not know whether that was in his father's handwriting or his mother's handwriting. Upon the identification of the postcard to be in the handwriting of the mother, the entire postcard will have to be read as a whole. Indeed the contents of the postcard are in Gujarati language. It is written by the mother. Her handwriting has been identified by defendant No. 3. The address of the addressee is written in English by a person who would not be expected to have a command over the language whilst writing. It appears to be in a halting slow motion. Such is not expected to be the handwriting of the father. The signature of the father on his will shows a completely different slant of hand. Hence the address of the addressee written in English on the postcard on which defendant No. 3 has identified the handwriting of the deceased has to be taken to be in the handwriting none other than the deceased herself. The postcard must be taken to be a document proved in evidence upon confrontation of defendant No. 3. The postcard shows that the mother, unlike the case of the defendants, did not only sign in English without being able to read, write or understand English. She did certainly write, albeit little in English. She must be taken to understand English atleast to that extent.
61. To buttress the case of the mother's lack of knowledge in English the defendants have sought to lead evidence of their cousin, one Mahendra Doshi who has, almost parrot-like, deposed about her lack of knowledge of English. Though he sought to depose as a nephew and as a part owner of BMK Industries Pvt. Ltd., the other part of which was owned by the deceased and claims to know her from such contact to be able to depose about her lack of knowledge of English, the cross examination has indeed exposed his bonafides. His evidence exhibits that he had litigation with the deceased. He had studied up to SSC and did not carry on any business other than Doshi Dyeing and Printing Works Pvt. Ltd. He had met the plaintiff last in 2002-2003. His company had a litigation with the plaintiff. His brother was embroiled in another litigation with the plaintiff pursuant to a criminal complaint filed by the plaintiff against his firm. There were proceedings in the tenancy Court also between the plaintiff and him. He makes the poor candidate to corroborate the otherwise unacceptable case of the defendants. He never visited the plaintiff whilst he was hospitalised because he had nothing to give or take or he was not concerned with the plaintiff, his uncle. To top that, his cross examination further shows that he never met the deceased in 1992-93 when she was appointed President of Innerwheel Club. He did not recall any visit made to her for 10 years prior to her death. He did not recall any specific visit to the deceased at any time. He was not aware of any social activities in which the deceased was involved or engaged. He did not know her activity as member or President of Innerwheel Club. He makes for most incompetent witness to depose about what he did.
62. Upon the only case of the defendants that their mother did not know, understand, read or write English and only put her signature in that language which the plaintiff has successfully laboured to dispel, the plaintiff has sought to lead oral evidence of an outsider to show the conversational ability of the deceased in English. The plaintiff has led such evidence in rebuttal of one Anjana Mody who was the Secretary of the Innerwheel Club of Bombay (East) in 1992-93 and who was associated with the club from 1990-1998 as Secretary or Board Member. She has deposed that she was present at the induction ceremony of the deceased as the incoming President of the Innerwheel Club. She also stated about the outgoing President, one Bhanuben Bhatt. She has deposed that the ceremony was conducted in English and the proceedings of the Club are also always conducted in English language. This included the meetings presided over by the deceased. She has deposed that the minutes of the meetings were recorded in English though she has not produced the minutes of the meetings. Her oral evidence has to be considered upon her cross examination. Strangely she has been shown the same photograph relied upon by the plaintiff in confrontation of the defendants 1 and 3 in their cross-examination. She has, of course, identified the deceased. She has also identified the outgoing President Bhanuben at the induction ceremony. She has deposed that the ceremony took place at the residence of the deceased herself in the first floor hall. She came to depose upon being called by Darshana, the daughter of the deceased. It has been sought to be suggested that the daughter of the deceased has colluded with the plaintiff in fabricating the will.
63. Her cross examination shows that she only knew her through her Innerwheel Club activities and did not know about the past. The witness has, therefore, not embellished her evidence. Her evidence that the proceedings of the Rotary Club are conducted in the English language has not at all been touched. To that extent, if only, the witness's evidence may be used.
66. A reading of the entire evidence as a whole with regard to the lack of knowledge of the deceased in the flair of English language has to be seen. Indeed she was not a poet laureate. The English was not her first language. It could have been her third. She knew English, Hindi and Marathi other than her mother tongue, Gujarati. A person can pickup conversational English through the years. The deceased owned properties. She had control of her house and her children. Children communicated with the father through her. The deceased directed defendant No. 1 to work in the factory of his father upon the premises which belonged to herself. The deceased was a 50% owner of the company of the family. The deceased moved about in society. To the credit of the plaintiff, he took her wherever he went, even abroad. Whereas the plaintiff was the District Governor of the Rotary Club, his wife was not far behind. The deceased was a member and later the President of the Ladies wing of the Rotary Club, the Innerwheel Club. She had her social connections. She carried on social activities. Her photographs (shown to the defendants and used by the defendants) show and suggest not only her installation ceremony as President, but her overt acts as a Rotarian. She has been accepted to be seen distributing clothes to the poor. She held meetings in her own residential building where the family resided. She wrote postcards to her children from abroad. The contents of the postcards were in Gujarati, her first language. The address on at least one such postcard was in English, her later adopted language. She executed her will as also the Trust Deed. She signed both the documents. The signatures are similar. The comparison reveals the same signatures. The signature, on the trust deed is admitted. Only the signature on the will is disputed though it is admitted that she would sign in English.
65. The will is in consonance with her relationship with her husband. They appear to be not only wedded but welded together. They went together everywhere. They did much the same things. They were in business together. Their social activities was similar. They executed their wills together. They executed a trust deed thereafter also together. Each was uppermost in the mind of the other. None else could take the place of the other. The children came close behind. Their children were treated alike. That was during the childhood of the children. That may continue much the same given the same circumstances. That would be subject only to changed circumstances in their dotage. It did continue much the same as before her death and thereafter. There was no occasion for either of the parties to amend their will until the death of the first. The children grew up and lived together, but for defendant No. 1 due to his business exigencies. They communicated with one another. They executed the declaration in favour of their father but for defendants 1 and 2. Defendant No. 2 has not made much ado about the declaration though. Defendant No. 3 also signed the declaration. Defendant No. 1 was the only child living away. He met his siblings whilst in Mumbai. He would have been informed about the declaration. The declaration makes a mention of the will and its acceptance. The will is simple and expected under these circumstances. The children would be expected to accept it, their father being alive. However defendant No. 1 for the first time rejected the peaceful state of affairs. He sent his notice on 27th July, 2004, about 10 years after the death of the deceased to his father demanding his share. His haste changed the family peace. His father felt betrayed. He replied to the notice demanding apology as a father would be expected to do about the absurd allegations about he having been requested to arrange for the division and he having accepted it, but wrongfully usurped the property and threatened of the criminal prosecution by his son. Alas the haste in receiving his share proved fatal to his inheritance which the father in his will dated 15th April, 1970 had also sought to make subject only to his wife, his first choice.
66. A reading of the evidence shows that the most natural wills of the husband and wife were indeed executed. Aside from the legal requirements as deposed by the plaintiff and by the witness who identified the signatures of the two attesting witnesses, the parties in the circumstances that the deceased and her husband were would have made only such wills upon exercising prudence as well as caution. The case that the wills are unnatural is only on the premise that the heirs who would succeed on intestacy all do not initially succeed under the will. That does not make the will unnatural. A husband and wife who have always lived and worked together, carried on their social activities much the same would be most naturally inclined to bequeath only one another their entire estate. They have yet made a provision for their second choice if they were left to be widow or widower with children. That is the continuation of the natural inclination of a single parent. The will has been executed in the Attorney's office. The getup of the will is as is done in the office of all Attorneys. This was an Attorney known to one of them. He would be of confidence to both of them. He is expected to follow the legal requirements. A reading of the evidence shows that those requirements are followed. The draft of will shows specific instructions of similarity of intention. The simple will bequeathing the estate to the spouse and in the absence of the spouse to the children would require nothing further to be done. The executants signed, followed by the attesting witnesses as is apparent from the getup of the will. A simple will such as that is not even required to be explained upon the premise that the executant may not know the language with a flourish or its intricate nuances. She accompanied her husband. She knew what she was about. They had decided earlier to make wills. They both were travelling abroad. They could have made no other will in the circumstances. There was nothing left to be explained. She would know that much. In fact she would know more. She has also executed a trust soon thereafter. After about a year the trust deed dated 2nd June 1971 containing 15 pages of legal jargon has been signed by her. It is much relied upon by the defendants to show her intention. Alas intention is the same; the formality may differ. It relates to one of her properties which is a residential property upon a mere Rs. 1000/- kept in Trust. Indeed she remained the legal owner with her husband alone. During her life time she would control and manage the property. Upon her death her other trustee, the plaintiff would continue to so maintain. He would then be not only a legal owner, but a complete owner upon inheritance from her. Then would come her children. Yet the children would always to be provided for. They would continue to have the residence in the building. There is nothing inconsistent about the two documents. They are not unlike as sought to be made out. They are much the same. They convey the same thought. The reliance upon one lends credence to the other. The will is seen to be validly executed and attested.
67. Despite the one line case of the defendants that the signature does not appear to be of the mother, there is no evidence whatsoever to that end. Issue No. 1 is, therefore, answered in the affirmative and issue No. 2 in the negative.
68. Issue No. 3:
There is absolutely no evidence of fraud, forgery or fabrication of the will as a document. Such evidence has to be led with sufficient particulars. No such evidence is led. The issue No. 3 has to be and is answered in the negative.
69. Issue No. 4:
The will is stated to be vague and uncertain. A reading of the will as also the comparison of the two wills demonstrates that it is clear and unambiguous. It does not have much for lending itself to uncertainty. It only appoints the sole executor who is the sole beneficiary. Upon the predecease of the executor/beneficiary it appoints two other executors and shows six equal beneficiaries. It is as clear as crystal. It is not even much argued that it is not on behalf of any of the defendants. Hence issue No. 4 is answered in the negative.
70. Issue No. 5:
The defendants allege fraud, coercion, importunity and undue influence. These are inconsistent and even contradictory defences. No particulars of fraud are given. No details of coercion are shown. No importunity is made out. The undue influence "influenced" upon the plaintiff is not shown. The will is executed in the Attorney's office. It is demonstrated by not only the get-up of the will, but the signatures of the attesting witnesses. Even if the Senior partner of the BKG would go elsewhere to execute the will, another Advocate who sits in his office would not. The coercion or undue influence, if at all, would have to be exercised in the Attorney's office. Both the deceased and her husband themselves went to the Attorney's office. That was prior to their foreign visit. They were owners of properties and directors of business respectively. They were not in a position to be influenced, atleast in the Attorney's office.
71. The evidence of the plaintiff shows that they both decided to do what they did. They decided to make wills before going abroad. They both were going to go abroad. Hence they both decided to give each other their entire estate. The instructions were given by the plaintiff alone. There was little to do in that behalf. The Attorneys would well know the requirement of both the clients, simple that they were. The instructions were only with regard to the appointment of the executor and showing the beneficiaries under two circumstances. Even if the plaintiff had prevailed over the deceased to make such a will, there was no reason for her to oppose her own will. The relationship of the parties would show such a thing never having been done. Her act is consistent with the later event of actually going abroad with her husband, the fact admitted by both her sons atleast for that foreign visit. Consequently there was no undue influence by which the testator was inflicted the pain of putting her signature on the will against her volition. Even the initial idea was of the plaintiff and even if the execution of his will in favour of the deceased was the reason, the factum of the deceased having thereafter come to the Attorney's office to execute her will shows no undue influence at the time of execution as would invalidate the will.
72. The concept of practicing undue influence upon a testator must be understood. It is held in a series of precedents that influencing the course of an action by which the testator/testatrix is given to understand and accept a particular state of mind which the testator/testatrix abides by and executes his/her will is not undue influence such as would vitiate a will. Only such influence as to make a testator/testatrix put his/her signature on the dotted line against his/her wish, volition or desire would constitute such influence as to make it "undue" vitiating the testamentary document so executed. Wills obtained under fraud, coercion or importunity are dealt with under Section 61 of the Indian Succession Act which runs thus:
61. Will obtained by fraud, coercion or importunity-A Will or any part of a Will, the making of which has been caused by fraud or coercion, or by such importunity as takes away the free agency of the testator, is void.
(vii) A, being in such a state of health as to be capable of exercising his own judgment and volition, B uses urgent intercession and persuasion with him to induce him to make a Will of a certain purport. A, in consequence of the intercession and persuasion, but in the free exercise of his judgment and volition makes his Will in the manner recommended by B. The Will is not rendered invalid by the intercession and persuasion of B
73. Halsbury's Laws of England Fourth Edition, Vol. 17, para 911 at page 479 shows what constitutes undue influence thus:
To constitute undue influence there must be coercion: pressure of whatever character, whether acting on the fears or the hopes, if so exerted as to overpower the volition without convincing the judgment, is a species of restraint under which no valid will can be made.
A person may exercise an unbounded influence over another, which may be a very bad influence, without its being undue influence in the legal sense of the word. Undue influence may be found against a person who had died before the execution of the will on the ground that the deceased was under that person's complete control until his death, and thereby rendered incapable of making a fresh will free from such undue influence.
74. Undue influence and fraud is also considered in Williams on Wills Ninth Edition, Volume 1, Chapter V, part III.
III UNDUE INFLUENCE AND FRAUD
undue influence means coercion to make a will in particular terms. The principle has thus been stated by Sir. J.P. Wilde in Hall V. Hall. 'Persuasion is not unlawful, but pressure of whatever character if so exerted as to overpower the volition without convincing the judgment of the testator, will constitute undue influence, though no force is either used or threatened.
The proof of motive and opportunity for the exercise of such influence is required but the existence of such coupled with the fact that the person who has such motive and opportunity has benefited by the will to the exclusion of others is not sufficient proof of undue influence. There must be positive proof of coercion overpowering the volition of the testator
75. The principle of the ambit of undue influence which can be practiced upon a testator has been considered for the last more than a century in England and later also in the Indian cases. The authority under the said subject is the case of Hall Vs. Hall [1868] LR 1 P & D 481 which held thus:
Even a reprehensible placing of pressure on a testator will not always be undue influence so as to avoid the will: "To make a good will a man must be a free agent. But all influences are not unlawful. Persuasion, appeals to the affection or ties of kindred, to a sentiment of gratitude for past services, or pity for future destitution, or the like-these are all legitimate, and may be fairly pressed on a testator. On the other hand, pressure of whatever character, whether acting or the fears or the hopes, if so exerted as to overpower the volition without convincing the judgment, is a species of restraint under which no valid will can be made. Importunity or threats, such as the testator has not the courage to resist, moral command asserted and yielded to for the sake of peace and quiet, or of escaping distress of mind or social discomfort, these, if carried to a degree in which the freeplay of the testator's judgment, discretion or wishes is overborne will constitute undue influence, though no force is either used or threatened. and thus Sir Wilde concludes:
In a word a testator maybe led but not driven and his will must be the off-spring of his own volition and not the record of someone else's.
76. [See also Bainbrigge Vs. Browne (1881) 18 ChD 188, Wingrove Vs. Wingrove[1885] 11 PD 81, Allcard Vs. Skinner (1887) 36 ChD 145 CA, Hall Vs. Hall (1868) 1 P & D 481, Baudains Vs. Richardson (1906) AC, 169, Craig Vs. Lamoureux AIR 1919 P.C. 132].
77. The test case on the subject in India was the case of Naresh Charan Das Gupta Vs. Paresh Charan Das Gupta MANU/SC/0113/1954 : AIR 1955 SC 363 followed in Desh raj Gupta Vs. State MANU/DE/1725/2010 : 2010 (119) D.R.J. 138 DB. That was the usual case of testator who lived with one of his sons and the other having lived separately. It was contended by the brother who lived separately that the brother who lived with the father had unduly influence the father. It was observed that disinheritance of one son "by itself" cannot lead to any inference of undue influence on the part of the testator following the case of Hall Vs. Hall (supra).
78. Chief Justice Chagla held in the case of Arnold Dominic Rodricks Vs. Ms. Sunder Vinayak Navalkar MANU/MH/0217/1956 : AIR 1956 Bom. 404 DB that undue influence had to be proved by the person who alleged it. The Court cannot presume it. In that case the daughter who lived with the mother was bequeathed her estate. The son was disinherited. Reference in the will to the misery caused to her by a son which shattered her health was relied upon to show her free mind. Undue influence was ruled out. [See H. Venkatachala Iyengar Vs. B.N. Thimmajamma MANU/SC/0115/1958 : AIR 1959 SC 443 (V 46 C 56), Lakshmi Amma Vs. Talengale Narayana Bhatta A 1970 SC 1367, Ajit Chandra Majumdar Vs. Akhil Chandra Majumdar MANU/WB/0150/1960 : AIR 1960 Cal. 551 (V 47 C 150)].
79. The defendants have not made out any case of fraud. They have not shown such coercion practiced by the plaintiff upon the deceased as to make her sign on the dotted line under his influence. Hence issue No. 5 is also answered in the negative.
80. ISSUE NO. 5A. The concept of mutual wills must be first understood. Halsbury's Laws of England, 4th Edition volume 50, paragraph 308 at Pg. 208 explains mutual wills thus:
308. Mutual wills: Wills are mutual when the testators confer on each other reciprocal benefits, which may be absolute benefits in each other's property, or life interest with the same ultimate disposition of each estate on the death of the survivor. Apparently, a mutual will in the strict sense of the term is a joint will, but, where by agreement or arrangement similar provisions are made by separate wills, these are also conveniently known as mutual wills. Wills which by agreement confer benefit on persons other than the testators, without the testators conferring benefits on each other, can also be mutual wills. Where there is an agreement not to revoke mutual wills and one party dies having stood by the agreement, a survivor is bound by it.
81. The above passage would show what kind of wills could be treated as mutual wills. The description of the will as a mutual will itself does not govern as to which will can be admitted to probate and which cannot. It has been contended on behalf of defendants by Mr. Andhyarujinah as well as Mr. Jagtiani that since the Wills of the deceased as also the Plaintiff are stated to be mutual wills, they must imply a contract between the two testator/testatrix that they would not revoke the respective wills. It is argued that even the will of the first to die, the deceased in this case, cannot be probated if the later to die, the Plaintiff in this case, has not abided by the implied contract that his will would remain unrevoked. Consequently a fresh ground for not granting probate hitherto not taken in the affidavit in support of the caveat has been sought to be taken as a question of law only during the arguments based upon which the aforesaid issue is framed.
82. There is no condition precedent to the making of mutual wills as set out in Halsbury's Laws of England. It may be mentioned that revocability is the prime, salient feature of a will. It is implicit in a testamentary disposition that the person making it has got the full right, privilege and authority to revoke it and to make another will specially if circumstances in his life changed impelling him to revoke the earlier legacy and to alter that legacy or make a wholly new bequest. This is the salutary legal provision granting the proprietary right to the fullest to the person having ownership and hence complete and unfettered dominion over his properties. It is statutorily granted under Section 62 of the ISA which runs thus:
Section 62: Will may be revoked or altered.-A Will is liable to be revoked or altered by the maker of it at any time when he is competent to dispose of his property by Will.
83. Indeed it would be implicit in the right to life itself. It would impinge upon the freedom of an individual to deal with his properties freely and fully if he would not be entitled to deal with them during his/her life time inter vivos by selling, alienating or gifting it as he wished, or upon his/her death by a testamentary disposition bequeathing it to whoever he/she chose.
84. What is contended is that if the Plaintiff claims, as he has, that both the Plaintiff as well as his wife, the deceased, made wills together on the same day they are mutual wills. If they are mutual wills the plaintiff cannot revoke his will and if he has done so, which he has shown, that act itself would militate against the grant of probate of the will of the deceased who is the first to die amongst the two executants of two separate but similar wills as shown above. This would suggest that if two spouses make wills separately on different dates, the incident of recoverability would not be affected. But if they executed two wills on a single day, with reciprocity, that ipso facto would take away the significant aspect of revocability from the one who is the later executant after having accepted the benefit under the bequest of the spouse earlier to die. A legal provision which impinges upon the unfettered right of an individual to make any testamentary bequest as per his wish and to inherit from the bequest of another must be cautiously and scrupulously analysed before being zealously accepted.
85. A very neat set of English case law relating to "mutual wills" which has been followed in India by judicial precedents is required to be set out, analysed, considered and applied to test this argument.
86. The earliest of the English cases is Dufour V/s. Pereira (1769) 1 Dick 419 reported extensively in II Hargrave's Juridical Arguments which has been relied upon and cited in the later cases from which its facts may be culled out for want of the law report of such a distant past. The judgment of Lord Camden in the case of Dufour (supra) infers an agreement of the husband and wife who made mutual wills to pool their properties into a common fund. They bequeathed a life interest to one another with the remainder over of the capital as specified by both of them identically. What is of importance to note in that case is the fact that a life interest and not an absolute interest has made by the husband in favour of the wife and vice versa. Lord Camden held that the instrument itself was the evidence of the agreement. The agreement created a constructive trust which was sought to be enforced. He observed that the first to die carried the agreement into execution. The refusal by the other to carry the reciprocal agreement to execution (which would be by not revoking his will) would constitute a fraud. He would be trustee for the estate and he could not unbind himself as "no man shall deceive another to his prejudice". Hence he observed that by the very execution of the will a certain unequivocal trust was agreed to and created by the two executants. This observation he made from the contents of the document leading to the conclusion that the agreement was actually made. (observations cited from the case of in re Oldham Hadwen Vs. Myles 1925 1 Ch 75 84).
The fact that there were mutual wills to the same effect was itself treated as a relevant circumstance in determining that there was such an agreement not to revoke the Wills. Such agreement was held binding after the death of the first to die from amongst the mutual executants. The simultaneity of the wills and the similarity of the terms were taken as evidence of the agreement not to revoke. It was seen as the foundation of the right in equity. (observations cited from the case of Gray vs. Perpetual Trustee Company, Ltd., & Another 1928 A C 391).
..... It is a conflict between the partners, which cannot be rescinded but by the consent of both. The first that dies, carries a part of the contract into execution. Will the Court afterwards permit the other to break the contract ?-Certainly not" (observations cited from the case of Kuppuswami Raja & Anr. Vs. Perumal Raja & Ors., MANU/TN/0233/1963 : AIR 1964 Mad. 291)
87. Consequently it is seen that when parties give one another a life interest and make the absolute bequest in favour of some other person, the person taking the life interest upon the death of one of them would not only continue his life interest but thereafter would be imputed an agreement that he/she would not revoke his will for the absolute bequest made by both of them. This indeed stands to reason. A person having a life interest in the property of another cannot alter the life interest and make another absolute bequest rather differently from the earlier bequest. This principal would extend not only to the property inherited by him upon such bequest of life interest but his own property which he had also bequeathed absolutely to such other person as was done in the other mutual will.
88. This principal would curtail the absolute right of the persons to make a will. The most notable, prominent feature of a will cannot be lightly restricted. A person would be entitled to bequeath his property as he wished just as he would be entitled to deal with his property inter vivos as he wished. It is only because in two separate mutual wills parties agreed to give one another a life interest and then make another absolute bequest that in that case the second to die would become a trustee not only for the property inherited by him but for his own property which he would bequeath as had been done by the other mutual executant.
89. The case of Dufour (supra) came to be considered and approved in the case of Oldham (Supra) in which Lord Astbury considered mutual wills and their aftermath. In that case a husband and wife agreed to make mutual wills without evidence of any further agreement. They gave their respective properties to the other absolutely with the some alternative provisions in case of lapse. The wife survived, accepted the husband's property, remarried, and made a series of fresh wills ignoring the alternative provisions in her own mutual will. It was held that there was no implied trust preventing wife from disposing of her property as she wished. The revocation of the will was, therefore, allowed.
The husband appointed his wife his sole executrix and trustee. He bequeathed his entire residuary estate, both real and personal, to his wife absolutely except for two small legacies. He made other bequests to take effect only if his wife predeceased him. The wife made her mutual will an exact replica of the husband's will except for the two small legacies. She appointed her husband as a sole beneficiary. If he predeceased her she appointed the same other executrix and made the same other bequests. After her remarriage she departed entirely from her will and gave her entire estate by way of her life interest to her husband and thereafter to her relatives. The will was proved by her executrix. The person interested under the mutual wills issued an administration summons. It was upon such summons that the recoverability of the mutual will came to be considered. The old will was destroyed by her but its execution and contents were proved by secondary evidence. The court had to consider whether the disposition of the wife and husband itself in practically identical terms, mutatis mutandis, constituted an agreement or arrangement so to do. The evidence of what the husband had instructed his solicitors was considered. The husband had written to his solicitors enclosing a draft of the will with a covering letter stating "the enclosed is what we should like carried out". That enclosure considered certain dispositions. The court had to consider whether on that evidence an agreement could be implied and a trust was created attached to the wife's property at her death enforceable by the beneficiaries of her earlier will. They argued that when the wife's mutual will came to be created, she held that property upon trust. It was argued that the survivor of the two wills could not take the benefit and repudiate an alternative trust mutually agreed upon and hence upon the death of the first to die the survivor had to choose whether he/she could take or reject the benefit and the resultant liability to perform the obligations under the will.
The case of Dufour (supra) came to be considered and distinguished. It was seen that in that case there was only life interest of the estate pooled into a common fund. Hence the parties had agreed to pool their estates. The case of Oldham was of absolute bequest. It was of the two distinct properties of the husband and the wife and, therefore, it was held in the case of Oldham, that the arrangement or agreement of irrevocability had to be proved to the satisfaction of the court and the terms of which were certain or unequivocal which the court can enforce had to be shown.
It was also considered that in the case of Dufour there was life interest and not absolute interest and hence at Pg. 87 it was observed that the fact that two persons came together and agreed to make the wills in identical terms was a strong circumstance but did not go far because if the mutual wills gave the survivor an absolute bequest, the implied agreement to be bound could not be seen. It was observed on Pg. 88 " I cannot build up a trust on conjecture". Though each of the spouses would have thought it quite safe to trust the other, yet the other could not be bound by a trust that should be operative in all circumstances and in all cases. It was observed that if the wife had died first and husband had remarried it would be very difficult to hold that he could be prevented from making a testamentary disposition in favour of his second wife only for the tiny residue that remained after all the other bequests agreed by the parties were held unrevoked. In fact, it was observed:
... I cannot help thinking that any reasonable professional man would have advised against the creation of such a trust if brought to his attention. It is difficult to imagine that when the mutual wills were made, it was intended that under no circumstances should the survivor have any power of altering the trusts except by disposition inter vivos.
Consequently upon the "very great difference" between the case of Dufour and Oldham (one relating to life interest only and the other granting whole interest absolutely) that the implied agreement of holding property in trust irrevocable by the survivor who took the benefit would not hold good.
90. That case is almost of all fours the facts of this case except that in our case there is no evidence of any implied agreement also. All that is argued is that making similar wills giving reciprocal bequests itself constitutes an agreement. Our case also is of absolute bequests. Both the deceased as also Plaintiff have made each other their sole executor/executrix. They have granted to one another their properties absolutely. Only if the other predeceased the deceased executant of the will, they have granted their property to the children equally. In the case of the deceased who was the first to die the second bequests which was conditional upon predecease of the Plaintiff never took effect, so that there was a sole executor and sole beneficiary. The beneficiary took the estate absolutely. There is absolutely no other evidence to show or suggest any condition of irrevocability. There is no other bequest. The later bequests which was conditional upon the death of the plaintiff would never take effect if the Plaintiff did not predecease the deceased. Therefore, there can be no implied trust or any implied contract which can be specifically or otherwise enforced.
This aspect can be seen even differently. What use is an absolute bequest if the legatee cannot deal with it absolutely as an absolute, full owner of the bequest in his lifetime as also upon his death. An absolute bequest would cease to be so if his absolute right to deal with it absolutely is curtailed in any manner; it in fact becomes a life interest, without more
The case of Gray vs. Perpetual Trustee Company, Ltd., & Another 1928 A C 391 was one of simultaneously made mutual wills by husband and wife who gave one another a life interest. The case of Dufour (supra) was considered and explained but the case of Oldham (Supra) was approved by the privy council per Lord Haldane. It was held that the life interest created in favour of one another by itself was not evidence of agreement not to revoke the wills and in the absence of definite agreement as to such fact no implied trust would restrict the wife who survived the husband from making the fresh will inconsistent with the earlier will could be imputed unless any clause in the will put her to election.
In that case an originating summons was taken out by the beneficiaries under the husband's will against the beneficiaries under the wife's later will which was probated upon its execution being proved. The judgment of High Court of Australia in appeal against judgment of the probate division came up for consideration by the Privy Council. The mutual wills as also a settlement made by the parties were considered. There was general power of appointment contained in the settlement of the husband's property vesting it in a trust. The wife had an unrestricted general power of appointment upon surviving her husband. The wife who survived her husband did not make the appointment by deed on advise under the contemporaneous earlier wills of the husband and the wife. The husband left all his properties to the trustees and directed them to pay income to his wife for her life and after the death to their children and grand children. The wife made a largely similar will, different in some points. She refrained from exercising the power of appointment. She also made a life interest in the husband and then for the children and grand children.
91. The question before the privy council was whether the simultaneous wills were mutual wills made under such circumstances that neither the wife nor the husband can revoke the will without the assent of the other as set out on Pg. 397 of the judgment. The evidence in the case was of several friends of the testatrix deposing that they had also made similar wills to which the wife had stated that she also had similarly made such will. The evidence further was of an arrangement specifically made that the husband should make an appointment of the funds in the settlement which was to be executed by the parties and the wife should negative any intention on her part to exercise her power of appointment. The trial Judge observed that the evidence did not establish any bargain between the husband and the wife that they should make wills in identical terms such that each refused to make a will unless the other agreed to do so and hence there was no agreement to make the wills irrevocable. The court held that there had to be an arrangement shown to have been made between by the parties to give rise to equities and that the evidence in the case did not support any binding contract between the two executants of the mutual wills. Considering the cases of Dufour and Oldham (Supra) it was held at Pg. 400 that the mere fact that the wills were in identical terms did not of necessity imply any agreement beyond that so as to make them irrevocable. When there was no sufficient evidence of further agreement no irrevocability could be imputed. The mere fact of making the wills was not by itself evidence of the agreement "having been come to".
...And without such a definite agreement there can no more be a trust in equity than a right to damages at law.
In our case there is fact no evidence led by any agreement between the deceased and the plaintiff; an implied agreement is imputed.
92. In Re Green (deceased) Lindner V. Green & Ors. 1950 (2) of AER 913 C A the cases of Dufour as well as Oldham again came to be considered for the effect of mutual reliefs. In that case the testator and his wife executed their wills in identical terms. Clause 3 of their wills recited that it was agreed by them that if the survivor of them had used the other's property during his/her lifetime without any liability, he/she will provide in his/her will for the carrying out of wishes expressed in this will in the event that she/he agreed to leave him/her all his/her property for life. The husband gave his half share in his residence to his wife absolutely if she survived him and made other bequests if she predeceased him. The wife did likewise. The wife died. Her residuary estate passed to her husband absolutely. He remarried and made second will and give the whole of his residuary estate to his second wife. It was held by the trial court that their wills contained the recital of the arrangement between them to make mutual wills and the testator had approved first wife's will and accepted the property thereunder and hence the testator's residuary interest took effect as a trust so that the executors of the last will held that estate in trust to give effect to the provisions contained in the will. The most distinguishable aspect of that case was that in clause 3 of the wills the executants had set out their specific mutual agreement to carry out the terms of the each other's wills which corresponded very closely to one another. The question that beat the Court was "Am I to ignore altogether the first will of the testator, or does the execution of that will contemporaneously with the corresponding will of his first wife operate by way of trust to any, and, if so, what, extent"? It was argued that the marriage itself would revoke that will. (That was the law in England). It was also revoked by making a subsequent will. The observation of Lord Camden in the case of Dufour (supra) in which "no reluctance was felt in saying that, when a will had been executed with a promise sufficiently definite and clear, and for a proper consideration, a trust could be raised quite apart from the character of the document", and the observation that the instruction itself was evidence of the agreement was held applicable in that case. Since, it was further observed, ".... there is not an instance to be found since the jurisdiction was established, where one man has ever been released from his engagement, after the other has performed his part." (Dufour's case) that after the husband's death, the wife would not have had the opportunity to revoke her part of the mutual will as she had estopped herself by the actual confirmation of the mutual will by accepting and enjoining the interest under it. That she would take benefit, take possession of the husband's estate and then would not be seen to revoke the agreement after his death, was accepted. In the case of Oldham the fact that there was no evidence of any further agreement was considered as distinguishable in that each had given his/her property to the other absolutely and consequently it was held that in those circumstances there was no implied trust preventing wife from disposing of the property as she had pleased. However, the recital in the case of Re Green showed a definite bargain of irrevocability upon mutual consent resulting in a trust.
93. A reading of the aforesaid three judgments shows that if a life interest is created and there is any further evidence of an agreement or arrangement the two executants of the will binding themselves to make their will revocable, an implied contract resulting in a constructive trust would ensue. If however, bequests are made unconditionally they would simpliciter take effect. In cases of no evidence of agreement of irrevocability, a trust cannot be imputed and the salubrious feature of revocability of the will cannot be restricted or denied to the survivor of the mutual wills.
94. Merely, therefore, calling a will a mutual will because another similar will has been similarly executed either on the same date and time or thereafter, no trust per se can be imputed and no contract per se can be implied or specifically enforced by the beneficiaries of the joint will under the later conditional bequests.
95. Similar considerations ruled in the case of Re Cleaver (deceased) (Nourse J) 1981 (2) AER 1018 Ch. D. In that case a husband and wife made successive wills in similar terms directing payment of certain legacies and remainder of the survivor absolutely and in case of default of survivor left the residuary estate of the testators' children in equal shares. In the later will both the husband and wife made an amendment in respect of one of their three children. They granted one daughter only a life interest because they did not wish her husband to benefit from the estate. They both, therefore, made further wills similar to the earlier will except for the said daughter's interest cut down to life interest granting the other two children the residuary estate in equal shares absolutely. The husband having died, the wife proved the will and thereafter became absolutely entitled to his estate. Thereafter she made a new will and later executed a further will and yet another will in the last of which she gave the residuary estate absolutely to the daughter who had been given the life interest in the second of the mutual wills of the husband and wife. The wife thus completely departed from the second of the mutual wills of the husband and wife.
It was held that for the mutual will to be enforceable, clear and satisfactory evidence of the agreement between the makers to dispose of their property in a similar way was required. Mere simultaneity of the wills and similarity of their terms was not enough by itself to establish the necessary agreement but the wills themselves were relative circumstances to be taken into account. If there was an enforceable agreement to execute mutual wills, equity would interfere to impose a constructive trust on the survivor's property on the principal that equity would not permit a person to whom property had been transferred on the faith of an agreement that it would be dealt with in a particular way for the benefit of a third party to deal with it inconsistently with that agreement.
In that case the making of the second mutual wills was taken to be clear and satisfactory evidence of the enforceable agreement of the imposing of mutual obligations on both the executants and hence it was held that the wife having taken benefit under the husband's estate, a constructive trust was imposed upon her estate for the benefit of the other two children. It was, therefore, held that the executors were bound to administer and distribute the estate in accordance with mutual wills executed by the husband and the wife.
Again the cases of Dufour & Oldham (Supra) came to be analysed. The evidence of agreement which was required in the case of Oldham (Supra) was accepted. That definite agreement having been found by the execution of the second of the mutual wills, the trust in equity was imputed though it was accepted that the making of mutual wills was itself not sufficient evidence of any such agreement "having been come to". It was held that all the evidence must be looked at, to see if there is a contract between the husband and the wife not to revoke their respective wills without notice to the other. (The making of two wills simpliciter could not imply any such agreement or contract).
The judge accepted as scrupulously honest the evidence of the neighbours of mutual executants of the wills. It was deposed by one of them of the husband having said "I am determined Martha does not see any of my money". The evidence was also with regard to how that daughter's husband dealt with management of the house in Rugby town where he lived close to the executants of the will. Consequently the Judge considered that both the husband and wife agreed with one another not to give the residuary estate to one of their three children absolutely but to give her only life interest, so that her husband did not enjoy their estate upon such execution of the will. The agreement between the parties not to revoke that bequest came to be accepted and hence the wife making her last will directly in terms inconsistent with and contrary to the specific intent of her husband as well as herself in their mutual wills was not accepted.
96. In the case of Re Goodchild (deceased) Goodchild & Anr. V. Goodchild [1997] 3 ALL AER 63 CA the absolute bequests in favour of one another made by husband and wife and then in favour of their adult son came up for consideration. In that case the wife died. The husband remarried and made a new will leaving everything to his new wife to the exclusion of his son. Upon he having died, his son and his wife filed a suit for declaration that the estate was held on trust for the son to give effect to his parents' mutual wills and for damages for breach of the agreement thereunder.
In that case the father, mother and son carried on business together. They had specified shares in business which came to be expanded and restricted for the son and the mother respectively as years passed. Whilst the business was going on, the husband and wife made their respective mutual wills granting to each other their real and personal interest absolutely and appointed them the sole executor/executrix. If they did not survive they appointed their son and daughter as executrix and bequeathed most of their estate upon trust for the son and his children. Their wills were in identical terms. Soon thereafter arrangements were made for transfer of the business to his son and his wife.
97. The trial Judge held that the wills were not mutual wills binding on one another because there was no clear agreement that they were to be mutually binding. Regarding mutual wills it was observed: "crucial to this topic is the evidence". The oral evidence of three friends showed how the husband had stated to them that the son would inherit the estate and how he and his wife had "mutually agreed" and executed their wills. The solicitor of the husband deposed that he would have advised a client either to leave the property to the other spouse with a provision for default of survivor or to grant a life interest to the survivor. The trial Judge observed that the husband and wife showed a desire to leave the property to one another with a provision for the son in case of default of the survivor. The evidence of the three friends which contradicted with the evidence of the solicitor was marshalled and appreciated. Conflict was seen. The need for specific evidence "outside the wills" was seen rather than "some loose understanding or sense of moral obligations". The judge observed that the couple had taken detailed legal and accountancy advise on the arrangements. The husband was an experienced businessman, who knew his mind and would have made it known to the solicitor. The solicitor's evidence was given more weightage and hence even if the wife understood that her intention would be binding upon her husband after her death, the husband was not held bound by it upon her death. The judge further observed that given that the wills were made when the future of the business was being provided for, if there was to be mutually binding agreement for the son after the parents' death there would have been a separate record of such formal arrangement. None was found. The judge held, therefore, that it was difficult "to infer any such collateral agreement or representation". Based upon such evidence, the appeal court per Morreti L. J. held that the consistent line of authority required that for the doctrine of mutual wills to apply there must be a contract between the two testators for imposition of a constructive trust. In the absence of such an agreement no constructive trust can be imposed in relation to that property. It was held that the doctrine of mutual wills is anomalous.
Hence though there could be a moral obligation, no legal obligation of irrevocability of the will was imputed. Upon the moral obligation, the maintenance of the son who had taken part in the business of the father was granted as appropriate. However, the last will of the husband admitted to probate did not result in the declaration that the testator's estate was held on trust for the son under his parents' mutual wills.
98. Ergo, the specific performance of the contended implied agreement merely on the ground that both the deceased and the plaintiff executed two similar wills together cannot be granted of the contract that never was as Mr. Jagtiani would contend. Of course, if evidence showed an legally enforceable agreement resulting in a contract to do or not to do any particular thing by either of them, it could have been got specifically performed. Where and when is the question. Consequently the specific performance of the contract which Mr. Jagtiani would claim would be of an agreement amounting to a contract enforceable at law between the testators never to revoke their separate wills, mutually prepared. That would be "a contract at law" as observed by Morritt L J in Grey at Pg. 229 and an "agreement, arrangement or understanding" actually reached between the parties, per Lord Bridge in Lloyds Bank plc v. Russet MANU/UKHL/0007/1990 : (1991) 1 A C 107 132, so that such undertaking can even be implied. Such constructive trust would be akin to proprietary estoppel and would be enforced because it would be unconscionable for the beneficiaries' rights to be disregarded.
99. The entire Indian Case Law considering the concept of mutual wills actually refers to a cases of joint wills executed by two or more parties.
101. In the case of Kochu Govindan Kaimal Vs. Kket Laxmi Amma MANU/SC/0149/1958 : AIR 1959 SC 71, the Will was executed by three persons reciting that they were settling moveable and immovable properties acquired jointly and separately by them and held in their possession such that it would be under their control till their death and thereafter specified persons and their children and grand children who would be their heirs and legal representative would hold those properties and enjoy them in equal shares. It was held that instead of executing three separate wills they had executed one joint will under which each testator bequeathed properties belonging to his or her without mentioning that they were joint properties. The will only vested the title to the properties in the legatees on their death. It was held that such will was not a mutual will. The concept of a mutual will was explained as a will in which two testators confirmed reciprocal benefits upon each other when the executants fill the role of both testator and legatee towards the each other. Where the legatees are distinct from the testators, it was held, that there could be no mutual will.
101. In the case of Kuppuswami Vs. Perumal, MANU/TN/0233/1963 : AIR 1964 Mad. 291 (V 51 C 88) two brothers made a joint will by a single document. The concept of joint will as well as mutual wills came to be explained upon considering the entire aforesaid English Law. It was contended by one of the brothers' heirs that the will was mutually reciprocal will under which the bequests made were irrevocable representing a family arrangement.
The will showed how both the brothers were living together in joint family without partition. They had self acquired as well as ancestral properties. It recited about their family. It made separate bequests to the wife and the children of three sisters of both the brothers as there were no issues. Separate schedules were set out granting separate legacies. It had to be seen by the Court whether upon the death of one brother the other brother could revoke any part of the will.
The Court initially considered the law set out by Halsbury's Laws of England relating to joint as well as mutual wills and their comparison. The court considered the settled requirements of what can be called mutual wills and saw that upon an examination of cases in England, mutual wills were executed if there was an agreement that either of the testators shall not have the power to revoke and the surviving the testator had received the benefit from the deceased testator under the mutual will upon which he would not be entitled to revoke his own will. The observations in the case of Dufour (supra) were specifically set out. The case of Oldham (supra) was considered and the distinguishing features of the two cases were set out upon comparison. The case of Grey (supra) was compared with Oldham followed by the case of Re Green (supra). The court considered how the distinction between Dufour and Oldham required evidence of any further agreement when a bequest was made absolutely by both the testators. It held that upon such evidence having been not found, the testator who survived was entitled to revoke his will. Similarly, the case of Grey approving Oldham in the privy council was considered and the observations on Pg. 400 (set out earlier) was recited. The case of Grey was also seen to have been dependent upon the agreement spelt out in the 3rd recital of the will itself. Hence the Court concluded in paragraph 24 the two conditions precedent for considering two wills of two testators in almost identical terms granting to one another certain bequests and also to third parties for being considered mutual wills. These were:
(1) the surviving testator receiving benefits from the deceased testator under the mutual will;
and
(2) that there was an agreement between them not to revoke the mutual wills.
The Court further considered the American Law from Corpus Juris Secundum Pg 296 Para 25 Volume 7 Pg. 282 to 313 in paragraph 24 of the Judgment. This laid down that the court would not admit to proof a mutual will where it has been revoked by the testator. But if the revocation was wrongful and unauthorised, the court of equity may enforce a specific performance of contract to prevent frauds and enforce the agreement by impressing upon the property as a trust. American Jurisprudence also refers to the mandate that an express agreement between testators was required for nonrevocability. The further reference to American Jurisprudence would show that where a life interest is created in favour of the surviving testator and he receives such benefit he would not be entitled to repudiate his contract with the other testator who was the first to die by revoking his will to the injury of the remainder man Pg. 297. This, therefore, would not be applicable as rule of equity for absolute bequests. The Court, therefore, compared the English and American case law to distinguish the concept of receipt of the benefit by a life interest holder as against an absolute beneficiary.
102. The case of Bhavani Prasad Vs. Smt. Surendra Bala, W/o. Subodh Chandra & Anr. AIR 1960 Allahabad 126 was considered alongside Grey (supra). It was seen that in both these cases the aforesaid two conditions had to be satisfied concurrently to make two wills mutual wills. In fact the Court has described those wills as joint mutual wills. The court considered that when there was a joint will where both parties expressed their wishes by the expressions "our property", "our present wishes "or" our will" there was a strong cogent evidence of intention of nonrevocability. The reasoning given in para 3 of the judgment was that there would, therefore, be required a union of minds for mutual exchange of ideas between the two executants. In that case the two brothers pooled together their properties and dealt with them as one integral whole, each relinquishing his own separate rights therein with the idea that they should enjoy the same till their life time and on their death of one of the brothers' widow would take only the specified part for her maintenance and thereafter the other specified beneficiaries would take. From such a will the Court culled out what was called a "bilateral agreement" entered into between the brothers found upon mutual trust which resulted in the arrangement and hence it was held that only both of them together could modify or cancel any bequest during their lifetime. The court read into the will a "reciprocal arrangement" and held that such joint wills were irrevocable.
Paragraph 47 of the Judgment shows the paucity of decisions of mutual and reciprocal wills in India and consequently following English Cases from Dufour the intention to create an unequivocal trust showing an implied agreement was held to be necessary.
Consequently in paragraph 50 of the Judgment it is specified that the real development of the law in England was that courts were reluctant to infer an intention to create a trust or equitable interest by means of an irrevocable mutual testament upon the facts merely because two persons happen to make a single document of their testamentary dispositions.
103. It would, therefore, mean and show that if these two conditions precedent were not shown or satisfied, the two wills may not be called mutual wills at all. They would be two separate independent wills capable of being probated as per law. Hence because the party may call them mutual wills, they would not become mutual wills. Merely because another party may say that they are mutual wills, they would not cease to carry with them the implicit requirement of nonrevocability. Even if one of the two conditions is satisfied and usually that condition would be that the surviving testator would naturally receive benefit under the will of the first to die amongst them, if they had not agreed that they would not revoke the mutual wills the essence of revocability of wills would be maintained.
104. In the case of Dilharshankar C. Bhachech Vs. Controller of Estate Duty, Ahmedabad, AIR 1986 Supreme Court 1707 a joint will was executed by husband and wife and it had to be considered whether it would be a "joint or mutual will" showing the implied agreement between parties not to revoke the will by either of them.
In that case the husband and wife divided their joint property being a Bungalow in three parts and bequeathed specific demarcated areas to specified grandsons. They also made separate wills for their individual properties on the same day. The detailed joint will showed their intention and implicit agreement not to revoke it by either of them singly.
In para 25 of the Judgment it was observed that upon reading different clauses of the joint wills the intention was manifest that the property was to be kept as it was at the time of execution of the will so that the ultimate beneficiaries, the grandsons, would enjoy the property in full with such modifications as the contingency of time and situation might require.
It was recited that the joint will would also be revocable by the survivor but the survivor would be treated in equity as trustee.
Similarly, mutual wills as recited from Theobald on Wills Twelfth Edition, pages 28 & 29 at paras 79 & 30) was set out thus:
.... the survivor will be treated in equity as a trustee of the joint property if there is a contract not to revoke the will; but the mere fact of the execution of a joint will is not sufficient to establish a contract not to revoke.
The term 'mutual wills' is used to describe separate documents of a testamentary character made as the result of an agreement between the parties to create irrevocable interests in favour of ascertainable beneficiaries. The revocable nature of the wills under which the interests are created is fully recognised by the Court of Probate; but in certain circumstances the Court of Equity will protect and enforce the interests created by the agreement despite the revocation of the will by one party after the death of the other without having revoked his will.
The Court of Equity will not protect the beneficiary under mutual wills merely because they have been made in almost identical terms. There must be evidence of an agreement to create interests under the mutual wills which are intended to be irrevocable after the death of the first to die. Where there is no such evidence the fact that the survivor takes an absolute interest is a factor against the implication of such agreement. Where, however, evidence is clear, as for example, where it is contained in recitals in the wills themselves the fact that each testator gave the other an absolute interest with a substitutional gift in the event of the other's prior death does not prevent the Court of Equity from affording its protection to the beneficiary under the mutual wills. The agreement must also be sufficiently precise to be enforced by the Court.
Before the death of the first to die, the agreement is a contractual one made in consideration of mutual promises. It can, therefore, at this stage be revoked by mutual agreement and even by unilateral breach giving rise to an action of damages, at least where the revoking party gives such notice to the other as may enable him to alter his will also. But on general principles only the parties to the agreement can sue for damages for unilateral breach.
In paragraph 31 of the judgment the law enunciated by Jarman on Wills has been set out as follows:
Jarman on Wills in 8th Edn. At page 42 states the position of mutual wills thus:
The fact that a husband and wife have simultaneously made mutual wills, giving each to the other a life interest with similar provisions in remainder is not in itself evidence of an agreement not to revoke the wills.
In this case the court considered all the four aforesaid English cases as also cases of Kuppuswami supra and Bhavani Prasad (supra). The substance of the conclusion was that irrevocability could be imputed only if the aforesaid two conditions were concurrently satisfied.
105. In the case of Mathew Vs. Vasudevan & Anr., MANU/KE/0347/1990 : 1990 (3) ILR 1221the Kerela High Court considered the aforesaid law relating to joint as well as mutual wills setting out in extension the enunciation of Halsbury's Laws of England as also American Jurisprudence about the requirement of the above two conditions upon comparing the observations in the case of Dufour as applied in Kochu (supra) as Bhavani Prasad (supra)
In paragraph 14 Pg. 1230 it is held that reciprocity benefits means that there has been bargain to give and take. The bequest had to be interdependent. In that case also the case of joint wills in India including the case of Dilsharshankar (supra) was considered.
The Court set out the will before it. Both the executants recited that the properties were acquired with their joint funds and were possessed and enjoyed by both of them. It also recited that they intended the properties to be divided in three parts and specified in three schedules a, b and c for the three children by name. Thereafter it was directed that the children shall enjoy the properties after their life time. Till their death they would possess and enjoy their properties and after their death the properties would be possessed and enjoyed by the respective beneficiaries. They further specified that if during their lifetime ("our lifetime") they desire that the will had to be revoked or modified, they would have every right to do so and that will would take effect only after their lifetime ("our lifetime").
106. Upon considering the facts before them the Court concluded that the testators intended to create a mutual reciprocal will by which the properties were to devolve on the beneficiaries upon their death by the exchange of ideas between them, by their intention of enjoying their property together during their lifetime. It was, therefore, observed that if after the death of one of them the survivor revoked or modified the will it would completely defeat the very purpose for which the two testators executed the will and settled all their properties on their children.
107. The court accordingly held that there was an intention in the will to suggest that there was an agreement between the testators to treat their entire properties as a integral whole belonging to both of them which they wanted to dispose off in favour of their children and such a disposal was manifested by the recital in the will and therefore, could not be cancelled.
However, a mortgage created by surviving testator was held not barred even under such joint mutual will when they agreed to dispose off specified properties to specific children specifically.
108. In the case of Vasant Narayan Karkhanis Vs. Mrs. Prabhavati Balchandra Harjarnis, MANU/MH/0314/1999 : (1999) Vol. 101 (2) Bom. L.R. 908, the same two conditions for confirming mutuality of wills were considered in a jointly executed will. The distinction between joint will and reciprocal mutual wills were set out in paragraph 6 drawing from the aforesaid judgments with the two conditions precedent.
109. In our case since both the testators have granted to one another a full, complete and absolute bequest of all their properties and appointed one another the sole executors/executrix, the question of any other intention does not arise. It is one bequest, pure and simple. The spouse is the sole beneficiary and the sole trustee. It is only in case of his/her predecessor that the other bequest would take effect. There is no question of another bequest being considered under the will of the first to die. There is no agreement to grant the further bequest after the absolute bequest to the surviving executant. Of course, the surviving executant would take benefit under the will of the first to die but in absence of any agreement that he/she would act in any particular manner or grant any particular bequest himself he would merely enjoy the benefit. There is no question of he being bound by any agreement. The bequest under both the wills which would take effect upon the predecease of the other spouse cannot be read into the will of the first to die since the condition of predecease is not satisfied.
110. This aspect may be considered even from another light. Both the testator and testatrix were young. They were together. They were to go abroad. They wanted to give their all only to one another. That precise single bequest shows their intention to first come to one another to the total exclusion of their children or any one else. The only agreement that can be implied from that act was between them. Both accepted and understood that during the lifetime of the surviving executant he/she would be absolutely entitled to the bequest.
The absolute entitlement would be wholly inconsistent with the conditions of an additional bequest or any fetters upon the use of the properties thus bequeathed. The absolute bequest would mean and imply that the surviving executant would be the absolute owner of the property. He would, therefore, deal with the property as he wished. Proverbially he/she would be entitled to even burn the properties, the analogy in Jurisprudence showing the concept of absolute ownership. He/She would be entitled to sell, transfer, alienate, encumber or create any third party rights in the properties inherited by him/her during his/her lifetime since he/she had the absolute bequest and consequently the absolute ownership thereto. Can be or she, therefore, not bequeath the property as per his or her absolute desire? This would be implicit in the incident of ownership. He/She would be entitled to bequeath the properties as he/she deemed fit and proper. He/She would be entitled to revoke such bequest and make another and yet another. Since the absolute legatee is always competent to dispose of the legacy inherited by him/her as he/she wished U/s. 62 of the ISA. That right cannot be lightly infringed, restricted, hampered or fettered. The significance of absolute bequest and absolute ownership would be lost entirely if that was so. It would not stand to reason or commonsense also.
111. It is argued that in fact the Plaintiff as the last executant could not even deal with, dispose off, alienate, encumber, sell, transfer the properties inherited by him. This would run counter to the fact of mortgage by the survivor being upheld in the case of Mathew (supra) affirming the intention of mutual bequests. The exception is taken to the fact that one of the properties is sought to be sold by him. What then was the use of the having an absolute bequest? This would negate the very first and primary bequest under the will of both the executants. This itself lends credence to the view that when a property is bequeathed absolutely to a legatee, an agreement by such legatee in his own will as testator or testatrix cannot be imputed not to use it as an absolute owner with all the proprietory incidents of absolute ownership. It is in view of this reasoning that the case of Dufour (supra) which granted a lifetime interest came to be distinguished in the case of Oldham (supra), Grey (supra) and Re Green (supra) in which they were absolute bequests. Similarly, the case of Kochu (supra), Kuppuswami (supra), Dilsharshankar (supra) as also Mathew (supra) show how the joint executants all sought not to give one another an absolute bequest but to possess and enjoy properties belonging to them during their life time and made the actual ultimate bequest to the ultimate beneficiaries in specified modes detailed in their wills. This is the most important distinguishing feature of all those cases.
112. It is, therefore, no use to show cases of joint wills as enunciating the principle of mutual wills and applying them to a case of two wills without any specified intention of making the last bequest irrevocable and calling them mutual wills in essence. The two wills in our case are two separate and distinct wills. The will of the Plaintiff is relied upon by him only to show that on that date he executed a similar document along with his wife and in her presence. It lends credence to the fact that the Plaintiff was present and thus could depose about how his wife attended the Attorney's office and got her will executed in the presence of two attesting witnesses, the attorney and the advocate. The will of the Plaintiff would speak from the date of his death. If the will is revoked it would cease to speak. It cannot speak at all in the Plaintiff's lifetime except for showing that it was executed by the Plaintiff at that time and place. There is no agreement in both the wills not to use the property by the two spouses absolutely upon the death of the first to die when they would inherit the entire estate of their spouse. The wills are, therefore, not mutual wills at all upon any agreement.
113. The reason why the pious right of revocability of the will cannot be lightly infringed has been set out interestingly in the Full Bench Judgment of the Court of Appeal for British Columbia in the case of Brynelsen Estate (Administrator of) V. Verdeck & O'Hara, 2002 BCCA 187, per Madam Justice Southin. That was a case in which two wills came to be made by a husband and wife, James Forrester and Lillian Holly Forrester pursuant to a "compact" (agreement) to bequeath their estate to one another and for the survivor to bequeath the estate of the survivor to the daughters of the husband by his first wife. The husband died first. The wife re-married. She executed various other wills. The daughters of the husband being the owners upon a resultant trust who were the beneficiaries under mutual wills sought to challenge the administration of her estate under the grant of the Court. The official administrator appointed as administrator to her estate sought the court's directions. The trial Court held that the property could be held in trust by the person having the grant under the later will of the wife to apply and administer it as per the earlier will. The appeal court upon considering the evidence and the law laid down in Dufour (supra) as also in the case of Lord Walpole V. Lord Orford, (1797), 3 Ves. 402, 30 E R 1076, L C and Grey (supra) asked itself the question about how the surviving executant could be restricted from revoking his/her will after long years of making the earlier will. In Paragraph Nos. 25 to 31 the Court observed:
(25) The critical time in this case is the time of the making of the wills when the Foresters had been married but a few months. The evidence simply does not warrant a conclusion that Mrs. Forrester, as she then was, was close to the respondents whom she had met but a few months before.
(26) Suppose, at the time of these 1973 wills, Mr. Forrester had been asked whether he was binding himself to leave not only what he might inherit from her but also his own estate to the respondents no matter what happened? Was he depriving himself, if he married yet again and had children by a third wife-it is not unheard of for a man in his sixties or seventies to marry a young wife and father children-of the means of providing for them? What of Mrs. Forrester if she had been asked, "What if he dies and you marry again-are you committing yourself to leaving nothing to your next husband or his children, of whom you might become fond, or, to put it another way, to leave anything a third husband might leave to you or give to you to Mr. Forrester's daughters?"
(27) To my mind the answer each would have given to these questions is "no". For them to have given any other answer would have been irrational.
(28) So far as Mrs. Forrester is concerned, the answer she would have given might also have been something like this: " I do think it right that his daughters should have what is left of what he leaves me." And so it is.
(29) But an engagement of honour does not, in and of itself, entitle a court of equity to impose a trust upon those, like the second cousins here, who do not accept as their own such an engagement made by another. Honour was the foundation of the claim in Lord Walpole V. Lord Orford, supra, and that, as Lord Loughborough said, was not enough. There must be an agreement which as to all its terms is certain.
(30) In my opinion, an agreement enforceable in equity cannot be constructed on the learned Judge's findings of primary fact in this case.
(31) It follows that, in my opinion, neither the Official Administrator nor the next-of-kin hold the corpus of this estate upon trust for the respondents.
114. It falls for this court to consider what the parties would have expected of their lives and from their children then. Given that they wanted only one another to get the entire of all that they had absolutely at that time, there was just no other to compete. Only if and after one of them died, at that time they thought, all their six children would share equally. All the children were young. They were loved equally. They would be alike. The children would grow. The facts of life show that they grow differently. The parents did not know what would become of each of them. Some may care for them, some may not. It may be that all of them may be away, separated, or uncaring except one. Parents of as many as six children know this only too well. It is for this reason that millions of parents do not make their wills at all in their youth and until their dotage-until they have seen how their children shaped; children whom they have loved equally and expected of them equally. If the deceased and the plaintiff were then asked what either of them would do if they lived to the ripe old age as they did, they would have been able to say with certainty whom out of their children they would give their estate or whether all the children would be the same as they were in 1970 when they executed their wills ? Only the passage of time would tell the difference. That is precisely what has happened in this case also. After the passage of decades one of the sons of the plaintiff sprang up to claim his share in the estate of his mother, though he knew about the declaration executed by his brothers and consequently also the will executed by his mother and the will as was the most expected of such wills in the circumstances. Similarly, only years told the Plaintiff which of his children remained the same and which changed their colours. Would the Plaintiff not be entitled to make from time to time in the twilight of his years wills as the situation demanded considering his relationship with all his children and the relationship of the children with him? He has been given that right under the legislation. It cannot be lightly curtailed and hence any will such as this has to be given the full effect. He is stated to have exercised that right. The right cannot even be and is not questioned in this Court and hence such a right must prevail and could have no bearing upon an earlier will of the first to die which need not have been revoked at all until at least her death when the relationship between parties remained as before.
115. In the case of Jacqueline Healey v. Paul Brown (2002) EWHC Ch 1405 (25th April, 2002), the estate held in trust came to be challenged in action filed in the equity court. In that case Thomas Brown and his wife Mary Brown executed mutual wills in identical forms. They gave their estate entirely to the survivor and in the event of being a survivor left one flat to Mary Brown's niece, the claimant and the remainder of the estate to Thomas Brown's son by an earlier marriage. Neither of the parties revoked their wills. The wife died first. The husband as the surviving joint owner of the flat became the sole owner. He transferred the flat from his sole name to the joint names of himself and his son "in consideration of natural love and affection". Upon his death the son became the sole owner under the doctrine of survivorship. The wife's niece brought an action against the son claiming that in executing mutual wills it was agreed by both the executants that the flat would be bequeathed by the survivor to her, a bequest which could not be revoked and by an action at law sought a declaration that it would constitute fraud as the husband held it on trust and could not renege on that agreement.
Hence in Healey Vs. Brown both testators owning the flat being owned jointly passed on the death of one to another entirely upon doctrine of survivorship. The law of property Act 1925 and the amendment by the 1989 Act came to be considered. In that case equitable interest was held upon the acceptance of trust and for the avoidance of fraud to the beneficiary under the doctrine of survivorship by operation of law rather than pursuant to a bequest and which passed outside the will. It was held that the intention of the gift understood and accepted by both the testators had to be accepted as a trust to safeguard the equitable interest of the claimant.
116. A reading of the above authorities, aside from requiring a specific agreement between the two mutual executants of the wills, also shows that the wills themselves cannot be challenged in the testamentary court as not to be admissible to probate. The testamentary jurisdiction being limited to seeing the due execution of the will, both the wills could be challenged only on the ground that they were not executed by the testator for whatever reason. The execution having been otherwise seen, the wills must be probated. In this case the Plaintiff himself has stated that his will of 1974 is not his last will. He has, therefore, himself shown that he has executed another will. That will has not even come up for consideration, he being alive at present. The defendants have sought to challenge not only the plaintiff's will upon the ground that such will could not have been executed in view of whatever implied trust or contract that they claim, but have also claimed that the mother's will also could not be admitted to probate. In fact it is seen that upon both the wills being probated the only remedy if at all available to any of the defendants was to sue in a Civil Court for declaration of an implied trust against the executors or beneficiaries of the last of the wills of the survivor of executants, analogous to the Chancery Jurisdiction in England or issue an originating summons requiring the Civil Court to consider the effect of any implied agreement or constructive trust if the defendants have at all proved a constructive trust upon the last of the wills also being probated so that the beneficiary under the will of the plaintiff would hold the property subject to the trust [See In Re Oldham, Gray and Goodchild].
117. In Oldham (supra) the persons claiming beneficial ownership under the earlier will issued an administration summons upon the grant of the last will of the surviving executant made by the Court. In the case of Grey (supra) the originating summons was taken out by the beneficiaries under the will of the first to die after the will of the surviving executant was probated. In the case of Goodchild (supra) a suit was filed by the son of the husband, who survived his wife after making mutual wills and who disinherited the son, for declaration that the estate was held on trust for the son and for damages for breach of the agreement under the mutual wills in respect of the consideration of the contract between the parties not to revoke their wills. (See also the case of Birmingham V. Renfrew (1937) 57 CLR 666 683) holding that the wills of the executants including the subsequent executant in breach of the agreement would be admitted to probate and thereafter the estate would be required to be administered under the doctrine of equity creating a constructive trust. The case of Vasant Narayan Karkhanis (supra) is a suit filed for claiming joint possession of the 1/4th share by the beneficiary under a joint will executed by a husband and wife and revoked by the wife after the death of her husband. It is not the case of the probate of the will of the first to die. It is not even the case of the probate of surviving executant. The contentions taken up with regard to joint wills and or mutual reciprocal wills and considered by the court was in a later suit. Consequently in such a suit it came to be held upon the examination of the aforesaid English Cases at Page 912 thus:
It is however open to the beneficiaries under the mutual will to take proceedings in the Chancery Division for the enforcement of their rights and the execution of the trust as envisaged in the mutual will. The personal representatives under the latter will can be compelled to hold the entire estate upon trust to give effect to the provisions of the mutual will. Vide 39 Halsbury. Lord Simonds 3rd Edn. P.853 Para 1299)
118. It has been set out by Halsbury's Laws of England, Vol. 50, Fourth Edition, Paragraph 321 at page 221 with regard to the fact of mutual wills thus:
If, however, the party who has died has stood by the agreement and not revoked or altered his will, the survivor is bound by it; probate will be granted of a later will made by the survivor in breach of the agreement, since a court of probate is only concerned with the last will. the personal representatives of the survivor nevertheless hold his estate in trust to give effect to the provisions of the mutual wills.
119. Hence even there being mutual wills, when there was implicit or express agreement not to revoke and the surviving executant took benefit under the mutual will, both the wills could be admitted to probate. It is only thereupon that the beneficiaries under the will of the first to die could claim any equity from the beneficiaries under the second revoked will. Their right is upon a trust. The beneficiary under the later will would hold the property in trust for the beneficiary under the earlier mutual will. That would be the time when the argument prematurely raised by the defendants would come into play.
120. The defendants desire to have prejudged the nonrevocability of the will which is not even admitted to probate. However, that contention having been taken up it has been considered to the fullest. No agreement of the parties not to revoke their bequests by the last of them to die is seen or shown. The wills themselves make for an absolute bequests in favour of both of them by the other. The wills appoint each other as the sole executor/executrix. There is no life interest. The other bequests are conditional upon the predecease of one of them. The will of the first to die is only brought out for the grant of probate. No constructive trust is seen. In fact, the deed of trust further shows the grant to each other inasmuch as they are the legal owners as trustees and the children are only the beneficiaries, the settlement having been made by the Plaintiff. If the trust deed were to determine the bequests, the defendants would well have contended that they are equal legatees under their mother's will and not on intestacy. For the property under the deed of trust, the plaintiff is himself the settlor. The deceased could not bequeath a property of which she was only the legal owner as trustee. The plaintiff would continue to be the settlor. He alone would bequeath that property as he now wishes since his wife has predeceased him and the absolute bequest in clause 1 of his will has adeemed. It is for him to leave the bequests in favour of all his children as was his wish in 1970 or to revoke that will make a fresh bequest as per his choice, there being no agreement not to do so and there being no evidence of any such implied arrangement with his wife also. The deed of trust is a separate arrangement or contract governed by the separate law relating to private trusts which also the plaintiff, as the settlor, may deal with in accordance therewith during his life time. The mere execution of such trust deed does not imply any bequest at that time. It, therefore, cannot also per se imply a future conditional bequest in favour of all the children who are beneficiaries under the will of their mother which would have been only in case of the predecease of plaintiff [See the case of Sridevi Amma & Ors. Vs. Venkitaparasurama Ayyan & Ors. AIR 1960 Kerala 21 as to conditional bequests].
121. Consequently, there is no separate agreement which can be specifically or at all enforced. The will of the deceased is entitled to probate, even if it is one of the two mutual wills. Issue No. 5A is, therefore, answered in the affirmative.
122. ISSUE NO. 5 B:
The plaintiff has deposed that he did not file the petition for probate immediately after the death of the deceased because all his children, except defendant No. 1 who was in Bengaluru, had given him a letter consenting to the handing over the estate of the deceased to him. He deposed in paragraph 17 of the evidence that after the death of the deceased he informed his children about her will, but did not remember handing over a copy of the will to them. It was only after he received the notice of defendant No. 1 dated 27th July, 2004 that he had the reason to apply for probate.
123. Though defendant No. 1 had indeed not signed the declaration, he had not claimed any rights himself. Evidence has shown that he knew about the declaration having been signed by his brothers and he had seen the copy of the declaration himself. It made a specific reference to the will left by his deceased mother which all the children accepted except himself and one brother. That brother who had not signed the declaration has not deposed though he has filed his caveat. One brother who has filed the caveat has himself signed the declaration. The plaintiff had no threat at least from that son. The other children always supported the plaintiff.
124. In the case of Vasudev Daulatram Sadarangani Vs. Sajni Prem Lalwani AIR 1983 Bombay 268 this Court through the judgment of Justice Lentin, as he then was, held that a petition of probate can be filed when the need arises as it only seeks recognition from the Court to perform a duty-the duty of an executor. The right to file an application for grant of probate or letters of administration is a continuing right which can be exercised at any time after the death of the testator. There is no specific provision in the Limitation Act for filing a petition for probate. The petition for probate shows no lis between the parties and hence is not required to be filed as a suit. Consequently, a testamentary petition could not be covered by the Limitation Act. Indeed through the years petitions have been filed in this Court for probate many years after the death of the deceased and as and when the need for the grant of a probate arises.
125. The Supreme Court whilst considering this issue in the case of Kunvarjeet Singh Khandpur Vs. Kirandeep Kaur MANU/SC/7451/2008 : (2008) 8 SCC 463 set out the summarised decision in Vasudev Sadarangani's case in para 15 of the judgment. The fact that the application for permission to perform the legal duty created by will by filing a probate or letters of administration as a continuous right has been upheld. Once that is done, no question of any bar of limitation would arise. Hence it has been held that there is advisedly no prescribed period of limitation for a grant of probate, or letters of administration. The right to apply is whenever it is necessary which may not be within 3 years from the date of the death of the deceased. However the assumption that under Article 137 the right to apply necessarily accrues on the death of the deceased being unwarranted is observed to be incorrect, as in some cases that would not be so if, as in this case, where it is shown that there was no need to apply for probate at the time of the death of the deceased. If parties were at dispute since that time and if applying for probate or letters of administration was shown to be necessitated by intrinsic evidence, unlike in this case, the assumption may be warranted. This is so held only upon accepting the analogy in the case of Kerala SEB Vs. T.P. Kunhaliumma MANU/SC/0323/1976 : (1976) 4 SCC 634 which held that Article 137 would apply as much to a Probate Petition as to all other applications because in the Limitation Act, 1963, unlike the Limitation Act 1908 the applications under Article 137 included applications under all Acts and not only applications under the CPC. Hence a Probate Petition is held otherwise to fall under Art. 137 of the Limitation Act 1963. But it being a continuous right and being required to be filed only if the situation so entailed, the period of limitation would begin to run only from when the situation warranted a petition.
126. It is contended on behalf of the defendants that Article 137 would apply from the date of the death of the deceased. The contention is absurd. When the Supreme Court accepts, as held by this Court, that the right to sue for probate etc., is a continuous right and can accrue whenever it becomes necessary, the cause of action cannot accrue on the date of the death of the deceased, even if the assumption is not unwarranted. The right to sue would accrue when the need is felt whatever be the assumption as the conclusions in Vasudev Sadarangani's (supra) case which has been upheld as the correct position in law is consistent with all the conclusions except 'b'. Hence the argument that Article 137 would apply from the date of the death of the deceased in all cases cannot be accepted.
127. Nevertheless if there is an undue delay it would be a suspicious circumstance and would have to be considered by the Court of probate. Once the will is otherwise proved to have been validly executed and attested, the suspicious circumstance arising from delay would vanish. That aspect held in Vasudev Sadarangani's case (Supra) also has been upheld by the Supreme Court. Each of these aspects is wholly inconsistent with Article 137 applying to an application for probate from the date of the death of the deceased when the petition was not needed to be filed on such date and for a decade thereafter. The petition is filed within 3 years of the date when it was needed to be filed, it being a continuous right.
128. The explanation for the delay must be seen. That has been shown by the plaintiff in paragraphs 12 and 17 of his evidence. That is sought to be countered by the defendants by justifying that they did not know about the declaration which their cross examination has overturned.
129. Consequently the suit cannot be taken to be barred by the law of limitation. It is also seen not to be so delayed as to constitute a suspicious circumstance, much less as to bar the remedy, it having been filed within 2 years of the first demand for the share made by defendant No. 1. Hence issue No. 5B is answered in the negative.
ISSUE NO. 6:
ORDER
The suit is decreed as prayed.
The Petition is decreed.
The Prothonotary and Senior Master of this Court shall issue probate of the last will and testament of the deceased
Vilasgauri Manilal Doshi dated 15th April, 1970.
Drawn up decree is dispensed with.
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