In a recent ruling, the Gujarat High Court has dismissed an appeal, affirming that a Will is an instrument of free will that cannot be executed by a manager on behalf of a mentally ill person.

A division bench of Chief Justice Sunita Agarwal And Justice Aniruddha P. Mayee observed, “On a conjoint reading of section 59 of the Indian Succession Act and Explanation 4 attached to it, as also section 54 read with sections 57, 58 and 59 of the M.H. Act, we are also of the considered opinion that the execution of 'Will' by the manager of the property of a mentally ill person, namely, Ms. Shraddhaben in the instant case, was an act without any authority of law.”

“A 'Will', which has to be an instrument of expression of free will or conscious choice of the owner of the property, could not have been executed by the manager on the premise that he can exercise the same power as could have been exercised by the mentally ill person had she not been mentally ill,” the bench added.

The above ruling came in an appeal filed in 2018 challenging the judgment and order passed by the Single Judge in a Testamentary Petition filed under Section 300 of the Indian Succession, 1925.

The party-in-person, viz. V.S. Desai who was the original petitioner in the testamentary suit, sought probate of the 'Will' executed by him as Manager in the name of Shraddhaben Manjulal Majmudar, for her properties. Desai was appointed as the Manager of Shraddhaben under the Mental Health Act, 1987 by an order passed in a Misc. Civil Application by the District Judge, Vadodara.

Notably, Shraddhaben was mentally ill person and treated as an indoor patient at the hospital for mental health. She died on 01.01.2018 at the age of 76 years. The Will-in-question was executed in her name during her lifetime on 23.02.2016.

The Single Judge taking note of Sections 54 to 59 of the M.H. Act, came to the conclusion that the Manager had no free hand to deal with the properties of the mentally ill person, and was subjected to control and supervision of the competent authority which was responsible for appointing him as manager for the properties of the mentally ill person.

[As per the provisions of Section 59 of the Indian Succession Act read with the provisions of M.H. Act, the manager appointed under the M.H. Act cannot execute the 'Will' to deal with the properties of a person who is a mentally ill person or a person not of sound mind.]

With these observations, it was held that the Will- in-question cannot be said to be a 'Will' executed by Ms. Shraddhaben and she cannot be said to be the testator of the 'Will'. The 'Will' executed by the Manager appointed under Section 54 of the M.H. Act, is not a Will in the eye of law. The Testamentary Petition was, thus, dismissed holding that it cannot be entertained to consider the prayer for grant of probate in connection with the document appended to the petition called as 'Will'.

Considering the rival submissions of the party-in-person and the counsels appearing for the private respondents, the Court stated that it was sufficient to note that the 'Will' "is a legal declaration of a person's wishes regarding the disposal of his or her property or asset after death".

The Court observed, “A written instrument legally executed by a person making disposition of his or her asset to take effect after death, can only be with the expression of willingness of such person to execute the same. The wishes of a person who is the testator of the 'Will' should be a free will which means that such person is allowed to choose what he or she wants.”

“Expression of free will would require the capability of conscious choice and decision as also the intention of the person executing the 'Will'. The expression of such feeling is personal to the person executing the document, which is known as 'Will' in the legal parlance,” the Court added.

The Court noted, For this reason, the Indian Succession Act provides for the capability of a person of making 'Will', which includes that the person making 'Will' shall be of sound mind and should not be a minor. Explanation 4 to Section 59 provides guidance by further stating that a person making 'Will', if in such a state of mind for the reason of illness or any other cause or on account of intoxication that he does not know what he is doing, would be incapable of making a 'Will'.”

“It is, thus, necessary that in order to make a valid 'Will', the testator need to be in perfect state of health, specifically in sound state of mind and should not be incapacitated in any manner from expressing his or her free will or making of conscious choice,” the Court added.

The Court observed that as per the provisions of the M.H. Act, it is evident that the manager of the property of mentally ill person appointed by the Court does not have unfettered powers to deal with the property of a mentally ill person.

The Court further observed that the duties of the manager aligned in section 58 require that such a person appointed as manager of the property of a mentally ill person shall be responsible for the maintenance of the mentally ill person and of such members of his/her family as are dependent on him.

The Court asserted, “Section 59 though confers power on the Manager so appointed under the M.H. Act to exercise the same power in regard to the management of the property of the mentally ill person, as the mentally ill person would have exercised as owner had he not been mentally ill, but it does not confer power on the manager to alienate the property in any manner.”

“The assertion of the petitioner that execution of the 'Will' of mentally ill person is not prohibited by the proviso to section 59 is a misconceived argument. What has not been provided by the law cannot be done by the petitioner in the capacity of manager of the mentally ill person,” the Court added.

The Court upholding the Single Judge's decision stated, “We, therefore, do not find any error in the opinion drawn by the learned Single Judge that the manager has no free hand to deal with the properties of the mentally ill person. The conclusion that the owner of the property Ms.Shraddhaben not being testator of the 'Will', the document executed cannot be said to be a 'Will' in the eye of law. There is no error in the decision of the learned Single Judge in rejecting the Testamentary Petition on the ground that there is no question of grant of probate in connection with such a document.”

“No benefit can be derived from the decisions relied by the petitioner (party-in-person), noted hereinabove,” the Court added while dismissing the appeal challenging the order of rejection of the testamentary petition and the connected Special Civil Application seeking to challenge the validity of Section 59 of the Indian Succession, 1925.

Appearance:MR VS DESAI(1398) for the Appellant(s) No. 1,2for the Respondent(s) No. 1

Appearance:MR VS DESAI for the PetitionerMR KSHITIJ M. AMIN, ADVOCATE FOR MR DEVANG VYAS, ASG for for the Respondent(s) No. 1

Case No.: R/Letters Patent Appeal No. 1012 Of 2018

Case Title: Vinayakrao Shantilal Desai & Anr. Versus Na

LL Citation: 2024 Livelaw (Guj) 32

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