The Will which is not last and final:

Probate of incomplete Will:

The Will in question (Ex.PW1/H) is drawn on two pages and is complete in itself and does not leave any scope for any other codicilconcerning the estate of the deceased, particularly when bequeath has been made not only of the immovable property and the bank account but also as regards the other assets of testatrix in the residuary clause, which reads as under: –

“2. I also direct that in the event of my acquiring any further movable or immovable assets hereinafter or any other assets that I may have forgotten to mention in the present Will the same shall devolve upon my daughter Mrs. Kavita Kanwar.”

Now, from the evidence on record and from the stand of the appellant, there is little to doubt that there had been several other assets of the testatrix apart from the said immovable property and the bank account.By virtue of the aforesaid residuary clause, all such other assets are bequeathed to the appellant. In the given scenario, two serious questions perforce acquire immediate attention. One that while making the application seeking probate, the appellant did not divulge all other assets which were to come in her hands by virtue of the said residuary clause of the Will in question.

Secondly, when there had not been any direction in the two page Will in question for making payment to anyone or parting with any movable to anyone, what had been the reason for the appellant making payment to different persons, including her own sons, the daughter of the attesting witness and the daughter of the respondent No. 1 apart from giving car to the daughter of the respondent No. 1 and jewelleries to the respondent No. 1 (as alleged in the written submissions before the10 In paragraph 8.2 herein before, we have reproduced the major contents of the application seeking probate with its Annexure-B wherein, only the said immovable property and the amount lying in the bank account were stated; and in paragraph 12 of the application, the appellant mentioned the immovable property as the only asset likely to come in her hands with the referred stipulations.

Both these questions on the conduct of the appellant onlythicken the suspicious circumstances surrounding the Will in question.

Neither Last nor Final Will:

On the other hand, as soon as the possibility of existence of such third page carrying the desire and directions of the testatrix about distribution of her other movable property is taken into account, the document Ex.PW1/H loses all its worth because it cannot be said the testatrix executed the same after understanding the meaning and purport of its contents. If she had the desire of distribution of movable property in a different manner and to different persons (as alleged by the appellant before the High Court), the aforesaid residuary clause would not have occurred in the Will in question at all. Secondly, if it is assumed that the testatrix issued separate directions about distribution of her assets de hors the Will then, the Will in question ceases to be her last Will.
Hence, to cap all the suspicious circumstances, the aforesaid equivocal stand of the appellant, as regards the third page of the Will and her assertion of having acted in accordance with the “directions” in the said third page of the Will, effectively knocks the entire case of the appellant down to the bottom. The suspicions arising because of the facts and factors  noticed herein before, including the unnatural exclusion of the respondents from estate; uncertain and rather inexecutable stipulation about construction by the appellant for the purpose of the respondent No.1; active role played by the appellant in execution of the Will and yet seeking to avoid the factum of her role by incomplete and vague statements; and the  witnesses having contradicted the appellant on material particulars etc.,have not only gone unexplained but are confounded beyond repair with such vacillating stand of the appellant regarding the said third page of the Will of the testatrix.
(As per the submissions made before the High Court, the appellant indeed carried out the directions contained in such third page of the Will.)

Continue reading “The Will which is not last and final:”

Limitation for revocation of Probate is three years

Application of Limitation Act to Probate Proceedings

Court in Kerala State Electricity Board, Trivandrum v. T.P. Kunhaliumma, AIR 1997 SC 282 has held that any application under any Act, including a Writ Petition under any Special Act will fall under within Article 137 of the Limitation Act and have a limitation period of three years.

“22. The changed definition of the words “applicant” and “application” contained in Section 2(a) and 2(b) of the 1963 Limitation Act indicates the object of the Limitation Act to include petitions, original or otherwise, under special laws. The interpretation which was given to Article 181 of the 1908 Limitation Act on the principle of ejusdem generis is not applicable with regard to Article 137 of the 1963 Limitation Act. Article 137 stands in isolation from all other Articles in Part I of the third division. This Court in Nityanada Joshi’s case (supra) has rightly thrown doubt on the two Judge Bench decision of this Court in Athani Municipal Council case (supra) where this Court construed Article 137 to be referable to applications under the Civil Procedure Code. Article 137 includes petitions within the word “applications.”

Continue reading “Limitation for revocation of Probate is three years”