Suspicious Or Unusual Circumstances In A Will Must Be Examined To Their Logical Conclusion; Propounder To Dispel Such Suspicion: Bombay High Court

The Court was hearing an appeal arising out of a long-standing intra-family dispute concerning rival testamentary claims flowing from the Wills of the deceased parents of the appellant.

A Division Bench comprising Justice M.S. Sonak and Justice Advait M. Sethna adjudicated the appeal pursuant to a remand order passed by the Supreme Court, which had set aside an earlier appellate judgment and directed fresh consideration on the issue of suspicious circumstances surrounding the Will.

The Bench, upon examining the relevant material placed on the record, observed: “…ordinarily we would have chartered the usual course and walked the common path i.e. where the Will is formally proved, in the absence of allegations of fraud, undue influence and the like, relief could be granted. However, the law mandates that the obligation cast upon us does not end here. In a given case, when there are allegations of the existence of suspicious or unusual circumstances, peculiar and unique to the factual complexion, the same ought to be examined and taken to its logical conclusion”.

The yardstick to be scrupulously applied in such cases, the Bench further clarified, is that “the alleged existence of the same are to be dispelled by the propounder of a Will, to the satisfaction of the court’s conscience”.

Senior Advocate Karl Tamboly appeared for the appellant, while Senior Advocate Nigel Quraishy represented the respondents.

Background

The appellant sought Letters of Administration with the Will executed by her deceased mother. Under the said Will, the deceased purportedly bequeathed her movable and immovable properties in equal shares to three of her children, including the appellant, while excluding two sons.

The respondents, who were the widow and children of one of the excluded sons, entered a caveat and opposed the grant of Letters of Administration. Upon conversion of the testamentary petition into a suit, the learned Single Judge framed issues relating to due execution, attestation, testamentary capacity, forgery, undue influence, and entitlement to relief.

The Single Judge held that the Will had been duly executed and attested, that the testator was of sound and disposing mind, and that allegations of fraud, coercion, and undue influence were not established. However, the Court identified three suspicious circumstances, including that the Will was cryptic and did not specify the property bequeathed, the appellant had taken a prominent role in the execution of the Will, and there was no explanation for the exclusion of two natural heirs.

On this basis, the Single Judge refused to grant Letters of Administration. Though this decision was reversed by a Division Bench, the Supreme Court set aside the reversal and remanded the matter for fresh consideration.

Court’s Observation

The Bombay High Court, at the outset, reiterated the settled position that proof of a Will requires compliance with Sections 59, 61 and 63 of the Indian Succession Act, read with Section 68 of the Evidence Act. The Court acknowledged that the appellant had formally proved the execution and attestation of the Will and that the testator possessed testamentary capacity.

However, the Court emphasised that testamentary jurisdiction does not end with formal proof. Where suspicious or unusual circumstances peculiar to the facts are alleged, the Court must examine them fully and take them to their logical conclusion. In such cases, the burden lies on the propounder to dispel all suspicion to the satisfaction of the Court’s conscience.

On the first suspicious circumstance, the Court noted that the Will merely referred to “all my property movable and immovable” without specifying any particulars, despite having been drafted by an advocate. This omission assumed significance because the testator had only a life interest in the disputed property under her husband’s earlier probated Will. The Court held that the absence of property particulars attracted Section 89 of the Indian Succession Act, which renders a Will void for uncertainty where no definite intention is expressed.

The Bench further held that extrinsic evidence could not be relied upon to cure such patent ambiguity, in view of Section 81 of the Indian Succession Act. The Court rejected the appellant’s contention that the probate court was unconcerned with such uncertainty, clarifying that the issue was not title, but the existence of suspicious circumstances surrounding the Will.

On the second suspicious circumstance, the Court examined the evidence showing that the appellant had introduced the testator to the drafting advocate, accompanied her for execution, and that the attesting witness did not know the testator independently. The Court held that while the mere presence of a propounder at the time of execution is not per se suspicious, in the peculiar factual context, the appellant’s prominent involvement assumed relevance and required explanation.

The Court also drew an adverse inference from the appellant’s failure to enter the witness box, noting that she alone possessed special knowledge of the circumstances surrounding the execution of the Will. The explanation of ill health was not accepted, as the medical evidence related to a period several years before the recording of evidence.

On the exclusion of natural heirs, the Court reiterated that disinheritance by itself is not a suspicious circumstance. However, in the absence of any explanation in the Will or in the evidence, such exclusion, when considered cumulatively with other factors, contributed to the overall suspicion.

The Bench relied upon and discussed several precedents, including H. Venkatachala Iyengar v. B.N. Thimmajamma, Kavita Kanwar v. Pamela Mehta, Shivakumar v. Sharanabasappa, reiterating that where suspicious circumstances exist, the propounder must remove them before the Will can be accepted. The Court also referred to the Privy Council decision in Harmes v. Hinkson, emphasising that courts must apply reasonable scepticism when a Will is shrouded in suspicion.

Conclusion

Upon re-evaluation pursuant to the Supreme Court’s remand, the Bombay High Court held that although the Will had been formally proved, the appellant failed to dispel the suspicious circumstances identified by the learned Single Judge.

The Court concluded that the uncertainty in the description of property, the appellant’s prominent role in execution, the unexplained exclusion of natural heirs, and the appellant’s failure to personally depose collectively prevented the Court from granting testamentary relief.

Accordingly, the appeal was dismissed, and the refusal to grant Letters of Administration with the Will annexed was upheld.

Cause Title: Myra Philomena Collaco v. Lilian Coelho & Ors. (Neutral Citation: 2025:BHC-OS:26983)

Appearances

Appellant: Karl Tamboly, Senior Advocate

Respondents: Nigel Quraishy, Senior Advocate

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