S.67 Succession Act | Testamentary Court In Probate Proceedings Can't Decide Whether Bequest Is Void Due To Beneficiary Being Witness's Spouse: Bombay HC

Justice Manish Pitale rejected an application filed by the daughters of a deceased man seeking to add in a testamentary suit an additional issue pertaining to voiding the bequest to the son of the deceased as the daughter-in-law was the witness to the Will. The court said that this issue should be addressed in separate proceedings.

“the Testamentary Court considering the grant of Probate of Will or Letters of Administration with Will annexed, has the jurisdiction only to decide issues pertaining to the subject Will having been validly executed as the last will and testament of the deceased. Also whether it has been attested in accordance with law and as to whether the testator was of sound and disposing mind, not being unduly influenced, at the time of execution of the Will. Once the aforesaid scope of jurisdiction of the Court in such a proceeding is appreciated, it becomes clear that the proposed additional issue sought to be framed on behalf of the defendants, is beyond the jurisdiction of this Court in the present proceedings”, the court observed.

The case originated as a petition for the grant of a Letter of Administration with Will annexed. Letter of Administration with Will annexed is granted when the deceased has executed a Will but not appointed an executor, or the executor is dead, legally incapable etc.

The petitioner, the son of the deceased and the sole beneficiary filed the petition for a Will dated April 16, 1994. His four sisters (defendants) opposed the petition, leading to the conversion of the matter into a suit.

Six issues were framed for determination in an order dated March 30, 2015. The suit is currently pending for final hearing.

The defendants sought to introduce an additional issue related to Section 67 of the Indian Succession Act, 1925. The proposed issue was whether Letter of Administration could be granted when the bequest under the Will is void under Section 67, as the beneficiary is the husband of the witness.

The defendants argued that the attestation of the Will by the Daughter-in-Law of the deceased, rendered the bequest in favour of the son void under Section 67. Letters of Administration with Will annexed can be granted only with an exception that the bequest in favour of the son is void, they argued.

The defendants contended that the Testamentary Court while considering the grant of Probate or Letters of Administration with Will annexed, has the jurisdiction to examine issues under Section 67. They argued that Section 255 should be read in conjunction with Section 67.

The plaintiffs (son and daughter-in-law of the deceased) opposing the framing of the additional issue, argued that the Testamentary Court's jurisdiction is limited to issues related to the validity of the Will, such as due execution, attestation, and the mental state of the testator.

They emphasized that the second part of Section 67, dealing with the voidness of bequests, is beyond the scope of Section 255 and the jurisdiction of the Testamentary Court in the proceedings for Letter of Administration.

Section 67 deals with the attestation of a will and the effect of a bequest or appointment to a person attesting the will or their spouse. The first part states that attestation is not insufficient merely because the attesting person or their spouse benefits from the will. The second part renders the bequest or appointment void concerning the attesting person or their spouse.

Section 255 allows for the grant of Probate or Letters of Administration with Will annexed subject to exceptions, based on the nature of the case. Section 255, according to the court, applies to exceptions within the contents of the Will, such as conditional bequests, and not to issues related to the voidness of bequests under Section 67.

The court disagreed with Allahabad High Court's approach in JC Boaz and Ors. v. Dorothy Ruth Masih Afzal and Anr, wherein the court considered the effect of Section 67 in a proceeding arising out of an order passed by a Testamentary Court for grant of Letters of Administration with Will annexed.

Citing the Supreme Court judgment in Ishwardeo Narain Singh v. Kamta devi and Others (1954), the court asserted that the jurisdiction of a court in probate matters is limited to the valid execution of the will, the deceased's sound mind at the time of execution, and the absence of undue influence.

The court dismissed the application, stating that the proposed additional issue falls outside its jurisdiction in the present proceedings. However, it clarified that the defendants can raise such issues in properly instituted proceedings in accordance with the law.

Case no. – Testamentary Suit No. 5 of 2005

Case Title – Ruby Cyril D'souza & Ors. (Applicants) In The Matter Between: Cecilia Reynold D'souza & Ors. v. Ruby Cyril D'souza & Ors.