Supreme Court Remands Probate Appeal After Finding Division Bench Misconstrued Single Judge's Findings

A bench of Justice C.T. Ravikumar and Justice Sudhanshu Dhulia heard the civil appeal challenging the Division Bench judgment of the Bombay High Court which had reversed a Single Judge’s dismissal of a testamentary suit and granted Letters of Administration with the will annexed. The appeal concerned the validity and effect of a Will dated 07.07.1982 executed by the late Maria Francisca Coelho and the question whether findings that the Will was "validly executed" amounted to a finding of its "genuineness" so as to preclude further examination of suspicious circumstances.

The Court allowed the appeal, set aside the Division Bench’s order and remanded the matter to the High Court for fresh consideration in accordance with law. The Supreme Court held that the Single Judge and the Division Bench were ad idem that the Will was validly executed, but the Division Bench erred in treating findings on execution as tantamount to a finding on genuineness and thereby curtailing the duty to examine "suspicious circumstances." The Court emphasized that establishing execution under Section 63 of the Indian Succession Act and Section 68 of the Evidence Act raised a presumption of validity but did not foreclose inquiry into suspicious circumstances if the objector raised them. The Court, in its reasoning, observed: "holding that a ‘Will is validly executed’ and a ‘Will is genuine’ cannot be said to be the same. ... even after holding that a Will is validly executed, it is within the jurisdiction of the Court to hold that it is not worthy to act upon as being shrouded with suspicious circumstances when the propounder failed to remove such suspicious circumstances to the satisfaction of the Court." The Court directed the High Court to decide the remanded appeal expeditiously, preferably within six months, and restored the appeal to its original number.

Background The dispute arose when Myra Philomena Coalho (plaintiff/ respondent in the original suit) petitioned for Letters of Administration with the Will annexed after the death of her mother, Maria Francisca Coelho, on 24.11.1985. The Will dated 07.07.1982 purported to be the last will, bequeathing properties equally among three children. A caveat and objections were filed by another son, Victor (who later died and whose widow continued the contest), and the matter proceeded as Testamentary Suit No.33 of 1999.

The Single Judge framed issues on due execution and attestation, testamentary capacity, forgery, undue influence and entitlement to Letters of Administration. The Single Judge found in favour of the plaintiff on issues 1 and 2 (due execution and testamentary capacity) and against the defendants on issues 2(a) to 4 (absence of proof of lack of capacity, forgery or undue influence), but declined to grant Letters of Administration on the ground that the Will was "shrouded with suspicious circumstances" and the propounder had "failed to explain the suspicious circumstances surrounding the execution of the Will." On appeal the Division Bench reversed that part of the Single Judge’s order, taking the view that suspicious circumstances, if any, must be considered before concluding a Will was genuine and held that the plaintiff was entitled to Letters of Administration.

The Supreme Court found that although both courts agreed the Will was validly executed, the Division Bench had misconstrued the Single Judge’s findings as a conclusive finding of genuineness, thereby short-circuiting the duty to require the propounder to remove suspicious circumstances when raised by an objector—a position supported by this Court’s earlier decisions cited in the judgment (including Kavita Kanwar v. Pamela Mehta and Derek A.C. Lobo v. Ulric M.A. Lobo). The Supreme Court set aside the impugned judgment and remanded the matter for fresh consideration, leaving the parties free to address all legal and factual questions on the record.

Case Details: Case No.: Civil Appeal No. 7198 of 2009 (2025 INSC 7) Case Title: Lilian Coelho & Ors. v. Myra Philomena Coalho Appearances: For the Petitioner(s): Senior Counsel for the appellants (name not indicated) For the Respondent(s): Learned counsel for the respondent (name not indicated)