Mumbai: The Bombay High Court has upheld a 2004 Will under which a man suffering from advanced prostate cancer left his estate to his nephew, excluding his wife and two sons, holding that physical illness by itself does not establish that a person lacked the mental capacity to make a Will.
Justice Arif Doctor decreed a Testamentary Suit and directed the Prothonotary and Senior Master to issue probate of the Will dated November 30, 2004, in favour of Rajkumar Assudomal Gurbani, the deceased’s nephew, who was named as the sole executor and principal beneficiary.
The Will was executed by Gulab Hukumatrai Gurbani, who died on April 16, 2005. He was survived by his wife, Savitri Gulab Gurbani, and sons Vijay and Ram Gurbani. The sons opposed the probate, alleging that their father’s signatures on the Will were forged. Their objections resulted in the probate proceedings being converted into a contested testamentary suit.
The sons also challenged their father’s testamentary capacity, pointing to his advanced prostate cancer, paralysis from the waist down and chemotherapy treatment. They relied on the evidence of a handwriting expert to support their allegation of forgery.
The court, however, found the evidence of the two attesting witnesses convincing. Dr Sumitlal Shaha, who had treated Gurbani for nearly 35 years, and family acquaintance Uddhav Baldev Gurbani, who had known him for almost five decades, testified that Gurbani had read the Will, understood its contents and signed it voluntarily in their presence.
The witnesses subsequently signed the Will in the presence of Gurbani and each other. The court held that their evidence fulfilled the requirements of Section 63(c) of the Indian Succession Act and Section 68 of the Evidence Act.
Rejecting the challenge based on Gurbani’s health, the court drew a distinction between physical incapacity and testamentary incapacity. It relied on the treating doctor’s evidence that Gurbani remained of sound disposing mind and was capable of understanding the nature and effect of the Will.
The court also noted that allegations of coercion, unsoundness of mind and lack of testamentary capacity had not been properly pleaded by the sons in their caveat. It held that parties cannot lead evidence beyond the case set out in their pleadings.
The handwriting expert’s evidence also did not establish that the Will was forged. The court noted that the signatures used for comparison had not independently been proved to be genuine and that the expert had examined scanned copies of photocopies.
Holding that the sons had failed to prove that the signatures were not those of their father, the court found that the circumstances surrounding execution of the Will had been satisfactorily explained.
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