Gujarat High Court
Vinayakrao Shantilal Desai vs . on 1 May, 2018
Author: C.L. Soni
Bench: C.L. Soni
C/TEP/1/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/TESTAMENTARY PETITION NO. 1 of 2018
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VINAYAKRAO SHANTILAL DESAI
Versus
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Appearance:
MR VS DESAI(1398) for the PETITIONER(s) No. 1,2
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CORAM: HONOURABLE MR.JUSTICE C.L. SONI
Date : 01/05/2018
ORAL ORDER
[1] Following are the prayers made in para-15 of the present petition.
The petitioners pray that this Hon`ble Court may be pleased to grant to the petitioner 1; and in his absence, to the petitioner 2;-
1) the "Probate" of the "Will" annexed at "Annexure-D"
hereto;
2) such further or other relief/s as the ends of justice require.
[2] The document at Annexure - D is described as the certified copy of the `Will' executed by the petitioner in the name and on behalf and as manager of Shraddhaben Manjulal Majmudar (referred as "Kum.Shraddhaben") for her properties. As stated in the petition, by order dated 11.04.2012 passed in Misc. Civil Application No.79 of 2001 by the learned District Judge at Vadodara, the petitioner no.1 Page 1 of 13 C/TEP/1/2018 ORDER was appointed as the manager under the Mental Health Act,1987 (the M.H. Act) for all and any property of Kum. Shradhaben, as she was mentally ill person and treated as "indoor patient" at the Hospital for Mental Health. She died on 01.01.2018 at the age of 76 years. However, the document of Will was executed in her name during her life on 23.02.2016.
[3] The petitioners have prayed for grant of probate as executors of the Will.
[4] The petitioner no.1 who has appeared as party-in-person stated before the Court that he appears for himself and also for the petitioner no.2. At the first hearing, on 06.02.2018, when the Court asked the petitioner no.1, as to how the document at Annexure - D could be considered as the Will of Kum. Shraddhaben, he made some submissions. However, when the Court expressed its prima facie view that the petitioner no.1 could not have executed the Will in the name of mentally ill person and as her manager, and the document at Annexure D could not be considered as the Will of Kum. Shraddhaben, he requested to grant adjournment, which was accepted and the petition was adjourned. Thereafter, from time to time, the petition was being adjourned and ultimately, on 25.04.2018, the petition was taken up for hearing and the petitioner no.1 was heard at length and again on 26.04.2018, the petitioner no.1 was granted sufficient hearing. During long hearing afforded to the petitioner no.1, the petitioner no.1 took the Court to the provisions of the Succession Act, M.H. Act and also to some provisions from the Constitution of India.
[5] The petitioner no.1 submitted that he was appointed by the District Court in exercise of power under Section 54 of the M. H. Act to function as manager of the property of Kum. Shraddhaben. He Page 2 of 13 C/TEP/1/2018 ORDER submitted that by virtue of Section 59 of the M.H.Act, he can exercise all powers in connection the properties of Kum. Shradhaben, which Kum. Shraddhaben could exercise as owner of her properties. He submitted that as owner of the properties, if Kum. Shraddhaben could make Will for her properties, he as manager of her properties could exercise same powers and in exercise of such powers, he could legally make and execute the Will in the name of Kum. Shraddhaben. He submitted that there is no prohibition in law against the manager to make and execute the Will in the name of mentally ill person. He submitted that when there is no prohibition for the manager of the properties of mentally ill person to execute the Will in the name of mentally ill person, the document of Will at Annexure-D could be said to be duly executed Will of Kum. Shradhaben. He submitted that like a person of sound mind, the mentally ill person is entitled to enjoyment of all constitutional and statutory rights. Taking the Court to Part - III of the Constitution for fundamental rights, he submitted that the mentally ill person is entitled to right to equality before the law and equal protection of the laws and not only such person cannot be discriminated against, but there cannot be any discrimination even against the properties of such person. He submitted that since under Article 19 of the Constitution, right to freedom of speech and expression is also available to such person, such person is entitled to express his/her intention or wish or ideas by testamentary document through authorized person like the manager appointed for his/her properties. He submitted that Article 300A of the Constitution gives guarantee to all persons not to be deprived of their properties save by the authority of law, the property of mental ill person remain protected and as part of such guarantee, the mentally ill person is entitled to get his/her Will executed through the manager for his/her property. He submitted that Section 59 of the Succession Act when provides Page 3 of 13 C/TEP/1/2018 ORDER for disposal of the property by person of sound mind by Will, does not take away the powers of the manager appointed for the properties of the mentally ill person to make Will for the property of the mentally ill person and in fact, to the extent, it prohibits the mentally ill person from making a Will, it is void as being ultra virus to the Constitution.
[6] During the course of the above arguments, the petitioner no.1 submitted that the present petition needs to be first admitted and then all questions concerning the validity of the Will etc. could be gone at the stage of inquiry leading to final conclusion in the petition, as what is presently required to be considered is due execution of the Will and not the validity of the Will.
[7] The Courts finds that the grant of probate is not just a mechanical process. In the case of Yumnam Ongbi Tampha Ibema Devi Vs. Yumnam Joykumar Singh and Others reported in (2009) 4 SCC 780, Hon`ble Supreme Court has observed in para-11 to 13 as under.
11. As per provisions of Section 63 of the Succession Act, for the due execution of a will (1) the testator should sign or affix his mark to the will;
(2) the signature or the mark of the testator should be so placed that it should appear that it was intended thereby to give effect to the writing as a will;
(3) the will should be attested by two or more witnesses, and (4) each of the said witnesses must have seen the testator signing or affixing his mark to the will and each of them should sign the will in presence of the testator.
Page 4 of 13 C/TEP/1/2018 ORDER12. The attestation of the Will in the manner stated above is not an empty formality. It means signing a document for the purpose of testifying of the signatures of the executant. The attested (sic. attesting) witness should put his signature on the will animo attestandi. It is not necessary that more than one witness be present at the same time and no particular form of attestation is necessary. Since a will is required by law to be attested, its execution has to be proved in the manner laid down in section and the Evidence Act which requires that at least one attesting witness has to be examined for the purpose of proving the execution of such a document.
13. Therefore, having regards to the provisions of Section 68 of the Evidence Act and Section 63 of the Succession Act, a will to be valid should be attested by two or more witnesses in the manner provided therein and the propounder thereof should examine one attesting witness to prove the will. The attesting witness should speak not only about the testator's signature or affixing his mark to the will but also that each of the witnesses had signed the will in the presence of the testator.
[8] When there is no Will duly executed by the person for whose properties the posthumous disposal is contemplated, there is no question of considering the petition for probate. As per the definition of Will under Section 2(h) of the Succession Act, the Will is legal declaration of the intension of a testator with respect to his property which he desires to be carried into effect after his death. A document becomes the legal declaration of the intention of a testator so as to be recognized as Will when it complies with legal requirement of its valid execution. Before issuing probate in Page 5 of 13 C/TEP/1/2018 ORDER connection with any Will, the person praying for grant of the probate has to make out the case that the Will is duly executed in terms of Section 63 of the Succession Act. Section 63 reads as under:
63. Execution of unprivileged wills. ----Every testator, not being a soldier employed in an expedition or engaged in actual warfare, 1 [or an airman so employed or engaged,] or a mariner at sea, shall execute his will according to the following rules:-
(a) The testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.
(c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person;
and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.
[9] As mandatory required by clause (a) of Section 63, the testator is required to sign or affix his mark to the Will, or it is required to be signed by some other person in his presence and by Page 6 of 13 C/TEP/1/2018 ORDER his direction. If, the testator has not put his signature or affix his mark to the Will or if it is not signed by the other person in his presence and by his direction, the testator could not be said to have executed the Will. Kum. Shradhaben since was mentally ill person, such compliance was otherwise not possible for Kum. Shradhaben. When there is no valid execution of the Will by the testator, the document purporting to be the Will cannot be considered to be legal declaration of the intention of a testator with respect to his/her property which he/she desires to be carried into effect after his/her death. The document at Annexure-D is though in respect of the properties of Kum. Shradhaben, however, it cannot be her Will as, it would not satisfy any of the requirements of section 63 of the Succession Act so as to be called as the Will of Kum. Shradhaben. Kum. Shradhaben is thus not the testator.
[10] In the case of Jagdish Chand Sharma Vs. Narain Singh Saini and others, reported in (2015) 8 SCC 615, Hon`ble Supreme Court has observed in para-21, 22 and 57 as under.
21. As would be evident from the contents of Section 63 of the Act that to execute the Will as contemplated therein, the testator would have to sign or affix his mark to it or the same has to be signed by some other person in his presence and on his direction. Further the signature or mark of the testator or the signature of the person signing for him has to be so placed that it would appear that it was intended thereby to give effect to the writing as Will. The Section further mandates that the Will shall have to be attested by two or more witnesses each of whom has seen the testator sign or affix his mark to it or has seen some other persons sign it, in the presence and on the direction of the testator, or has received from the testator, personal acknowledgement of a Page 7 of 13 C/TEP/1/2018 ORDER signature or mark, or the signature of such other persons and that each of the witnesses has signed the Will in the presence of the testator. It is, however, clarified that it would not be necessary that more than one witness be present at the same time and that no particular form of attestation would be necessary.
22. It cannot be gainsaid that the above legislatively prescribed essentials of a valid execution and attestation of a Will under the Act are mandatory in nature, so much so, that any failure or deficiency in adherence thereto would be at the pain of invalidation of such document/instrument of disposition of property.
57. A Will as an instrument of testamentary disposition of property being a legally acknowledged mode of bequeathing a testator's acquisitions during his lifetime, to be acted upon only on his/her demise, it is no longer res integra , that it carries with it an overwhelming element of sanctity. As understandably, the testator/testatrix, as the case may be, at the time of testing the document for its validity, would not be available, stringent requisites for the proof thereof have been statutorily enjoined to rule out the possibility of any manipulation. This is more so, as many a times, the manner of dispensation is in stark departure from the prescribed canons of devolution of property to the heirs and legal representatives of the deceased. The rigour of Section 63 (c) of the Act and Section 68 of 1872 Act is thus befitting the underlying exigency to secure against any self serving intervention contrary to the last wishes of the executor.
[11] However, the case of the petitioners is that the petitioner Page 8 of 13 C/TEP/1/2018 ORDER no.1, who was appointed as manager for the properties of the mentally ill person, can exercise all powers of owner including the power to execute the Will in respect of such properties.
[12] Explanation 4 to Section 59 of the Succession Act prohibits mentally ill person from making any Will of his / her property. This is because, a mentally ill person is incapable to express his/her intention or desire. The Will is the expression of the intention of a person in respect of his/her property which he/she wants to be carried in to effect after his/her death. It requires conscience decision. For the person who is suffering the illness of the mind in a way it affects his/her mental capacity to think and take correct decisions, how can a manager appointed for his property make a Will in his/her name to express his/her intention to be carried in to effect after his/her death. Since the very intention which is the soul of the Will cannot be found in the document of Will made by the manager in the name of the mentally ill person, it could not be said to be the Will of the mentally ill person in the eye of law.
[13] Section 54 of the M. H. Act provides for appointment of manager for management of property of mentally ill person who is incapable of managing it. Section 57 of the M. H. Act requires the manager to execute the bond if so required by the appointing authority to account for all respects of the properties of the mentally ill person. Section 58 of the M. H. Act provides for duties of guardian and manager appointed to take care of the person suffering from mental illness and all the properties of the mentally ill person. Section 59 of the M. H. Act provides for powers of manager which reads as under.
59. Powers of manager---(1) Every manager appointed under this Act shall, subject to the provisions of this Act, Page 9 of 13 C/TEP/1/2018 ORDER exercise the same powers in regard to the management of the property of the mentally ill person in respect of which he is appointed as manager, as the mentally ill person would have exercised as owner of the property had he not been mentally ill, and shall realise all claims due to the estate of the mentally ill person and pay all debts and discharge all liabilities legally due from that estate:
Provided that the manager shall not mortgage, create any charge on, or, transfer by sale, gift, exchange or otherwise, any immovable property of the mentally ill person or lease out any such property for a period exceeding five years, unless he obtains the permission of the District Court in that behalf.
(2) The District Court may, on an application made by the manager, grant him permission to mortgage, create a charge on, or, transfer by sale, gift, exchange or otherwise, any immovable property of the mentally ill person or to lease out any such property for a period exceeding five years, subject to such conditions or restrictions as that Court may think fit to impose.
(3) The District Court shall cause notice of every application for permission to be served on any relative or friend of the mentally ill person and after considering objections, if any, received from the relative or friend and after making such inquiries as it may deem necessary, grant or refuse permission having regard to the interests of the mentally ill person.
Section 60 of the M. H. Act requires the manager to furnish inventory and annual accounts of the immovable property belonging Page 10 of 13 C/TEP/1/2018 ORDER to the mentally ill person and of all assets and other movable property received on behalf of the mentally ill person. Section 68 provides for a remedy to relative of a mentally ill person to sue for account of the property of the mentally ill person. Section 69 of the M. H. Act provides for removal of managers and guardians appointed for the mentally ill person.
[14] From the above provisions, it appears that the manager has no free hand to deal with the properties of the mentally ill person. He is subjected to control and supervision of the competent authority which is responsible for appointing him as manager for the properties of the mentally ill person. With the other provisions when the provisions of Section 59 of the Succession Act are considered, the powers of the manager for management of the property of mentally ill person could not be read as included therein even the power to deal in the right and titile in the property of the mentally ill person as its owner. The manager is to manage the property of the mentally ill person and not to roam around the rights and title involved in such property. Simply because, the management of the properties of the mentally ill person is permitted to be done in the same manner like the owner, the powers of the manager would not stand equal to the right of the owner to deal in the rights, title and interest in the property. It is, however, contended by the petitioner no.1 that the prohibition contained in proviso to Section 59 of the M. H. Act is not for posthumous disposal of the properties in the name of mentally ill person by the manager. The powers available under Section 59 to the manager appointed under Section 54 of the M. H. Act is for the management of the property of the mentally ill person and not to transfer right or interest posthumously in the property of such person. As per the proviso to Section 59, when the manager is not permitted to mortgage, create any charge on, or, transfer by sale, gift, exchange or otherwise, any immovable property of the Page 11 of 13 C/TEP/1/2018 ORDER mentally ill person or lease out any such property for a period exceeding five years, without permission of the District Court, the legislature appears to have intended that the manager is not to act like owner so as to create any right or interest in the immovable property of the mentally ill person in any manner otherwisw than as provided in proviso to Section 59 of the M. H. Act. The person who is an owner of the property is not required to take any permission for transferring any right, title or interest from his property and not required to furnish any inventory and/or annual accounts of the immovable property for dealing with in his property when not subject to any lawful order.. The fact that the manger is susceptible to removal by appointing authority as provided in Section 69 of the M. H. Act and when a person ceasing to be mentally ill, all actions taken in respect of the mentally ill person under the Act could be set aside on such terms and conditions as may be thought fit to be imposed by the District court shows that the functioning of the manager appointed under Section 54 of the M. H. Act for the property of the mentally ill person is subjected to the control of the appointing authority and, therefore, such manager, in no way, can deal with the property of the mentally ill person as if he is the owner of such property. Reliance placed on the Constitution provisions for the rights guaranteed under Articles 14, 19, 21 of the Constitution, as also under Article 300A would not be in any way helpful to the petitioners. Such rights protected under the Constitution available to the mentally ill person with the person of sound mind would not be extended to the manager appointed of the property of the mentally ill person for execution of the Will in the name of mentally ill person.
[15]. In above view of the matter, the Court finds that the Will annexed at Annexure - D cannot be said to be the Will executed by Kum. Shraddhaben. Thus, Kum. Shraddhaben is not testator of the Will and the document at Annexure - D stated to be the Will of Page 12 of 13 C/TEP/1/2018 ORDER Kum. Shraddhaben is not a Will in the eye of law.
[16] For the reasons stated above, the Court finds that the present Testamentary petition cannot be entertained to consider the prayer for grant of probate in connection with the document annexed at Annexure-D to the petition. The petition is therefore dismissed.
(C.L. SONI, J) Vijay Page 13 of 13