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2014 (11) TMI 1284 - BOMBAY HIGH COURTValid and legal execution of will or not - Defendants Nos. 1 and 2 have caveatable interests in the estate of the deceased or not? - entitlement to oppose the grant of probate in view of having received and accepted the bequest under the will dated 21st August, 1997 - Will was executed by exercising undue influence or not? Whether the Petitioner has proved that the will dated 21st August, 1997 was legally and validly executed? - Whether Defendants Nos. 1 and 2 have caveatable interests in the estate of the deceased? - Whether the Defendant Nos. 1 and 2 are entitled to oppose the grant of probate in view of their having received and accepted the bequest under the will dated 21st August, 1997? - HELD THAT:- It is a well-settled principle that a person who accepts a benefit under an instrument must accept it in its entirety. He cannot accept the benefit and repudiate its other provisions - His acceptance of the benefit is a renunciation of every right inconsistent with the provisions of that instrument. This is a rule based on the well-known principle of approbation and reprobation. No one may affirm and disaffirm the same transaction, i.e., affirming it to the extent of the benefit received and disavowing it to the extent that it prejudices. The Defendants have accepted benefits under Vivien’s will. Under Section 187 and 188, the Defendants have made their election; and, in any case, their right to elect and their waiver of the inquiry into the circumstances attendant to that election must now be presumed and held against them. These are specific legacies (the jewellery and the bequest of Rs.2 lakhs to their son), ones to which they had no entitlement on intestacy. Their own entitlement was under the Will itself, and only under the Will. The Defendants, by their own actions, accepted and are bound by the terms of the Will. They cannot simultaneously repudiate it. In addition, there is also the express acceptance of it under the writing Ex.P-5. An attesting witness, PW2, has deposed to it, as has the Petitioner, who identified Vivien’s signature. The challenge to the will fails. Whether the Defendants prove that the Will was executed by exercising undue influence? - HELD THAT:- No question arises of the Defendants having proved any undue influence; their challenge to the will is obliterated by their acceptance of legacies under it. The entire defence is fruitless and impermissible. The suit succeeds, and is decreed.
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