2014 (11) TMI 1284 - HC - Indian Laws

Valid 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.

Summary

Issues Involved:
1. Whether the Petitioner has proved that the will dated 21st August 1997 was legally and validly executed?
2. Whether Defendants Nos. 1 and 2 have caveatable interests in the estate of the deceased?
3. Whether the Defendants 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?
4. Whether the Defendants prove that the Will was executed by exercising undue influence?
5. What order and relief?

Detailed Analysis:

Issue No. 1: Valid Execution of the Will
The court found that the will dated 21st August 1997 was legally and validly executed. The Petitioner, Mirzban, provided evidence including his own testimony and that of an attesting witness, Khushroo M. Amroliwalla. The will was introduced to a third party, S. P. Mustafa, which further corroborated its authenticity. The court concluded that the will stood proven.

Issue No. 2: Caveatable Interests
The court determined that this issue does not arise. This conclusion was based on the finding on Issue No. 3, as well as the fact that the Defendants had already received an order for impleadment and service of citation.

Issue No. 3: Entitlement to Oppose Grant of Probate
The court held that the Defendants are not entitled to oppose the grant of probate. The Defendants had accepted benefits under the will, including jewellery and a sum of Rs. 2 lakhs. The court referred to the principle of approbation and reprobation, which states that a person who accepts a benefit under an instrument must accept it in its entirety. The Defendants' acceptance of the legacies under the will constituted an election to take under the will, thereby renouncing any rights inconsistent with it.

Issue No. 4: Undue Influence
The court found that the Defendants did not prove that the will was executed by exercising undue influence. The Defendants' acceptance of legacies under the will negated their challenge. The court cited the lack of effective cross-examination on this point and the express acceptance of the will by the Defendants.

Issue No. 5: Order and Relief
The suit was decreed in favor of the Petitioner. The court ordered the issuance of probate forthwith and dispensed with the drawn-up decree. No costs were awarded, and certified copies were expedited. Original documents were to be returned to the parties upon substitution with authenticated photocopies.

Conclusion:
The court concluded that the will dated 21st August 1997 was legally and validly executed. The Defendants, having accepted benefits under the will, were not entitled to oppose the grant of probate. The challenge of undue influence was dismissed, and the suit was decreed in favor of the Petitioner, with probate to be issued immediately.