Gujarat High Court: In a batch of appeals and special civil application against the decision of Single Judge rejecting testamentary petition of the Manager of a person of unsound mind and challenging the validity of Section 59 of the Succession Act, 1925 (‘1925 Act’), the Division Bench of Sunita Agarwal and Aniruddha P. Mayee upheld the Single Judge’s decision and held that the owner of the property not being testator of the ‘Will’, the document executed by the Manager cannot be said to be a ‘Will’ in the eyes of law. The Court also held that Section 59 of the 1925 Act was in conformity with the fundamental concept of ‘Will’.
The appellant (‘Manager’) was appointed as the Manager of ‘A’ under the Mental Health Act, 1987 (‘M.H. Act’) by an order dated 11-04-2012 of the District Judge, Vadodara. ‘A’ died on 01-01-2018 at the age of 76 years. The Will in question was executed in her name during her lifetime on 23-02-2016. A Testamentary Petition under Section 300 of the 1925 Act was filed by the Manager seeking probate of the ‘will’ executed by the Manager in the capacity of being the A’s Manager. The Single Judge in the impugned decision concluded that the Manager has no free hand to deal with the properties of the person of unsound mind and that he is subject to control and supervision of the competent authority which is responsible for appointing him as manager for the properties of the person of unsound mind. The Testamentary Petition was dismissed, and it was held that the Will in question cannot be said to be a ‘Will’ executed by ‘A’ and she cannot be said to be the testator of the ‘Will’.
A special civil application was filed to declare Section 59, Explanation 4, and words “or from illness” of the 1925 Act as ultra vires and void ab initio.
The Manager appearing in person contended that that there is no prohibition in the Gujarat Court of Wards Act, 1963, from making ‘Will’ of a person of unsound mind. Section 59 of the M.H. Act, on the other hand, confers same power upon the Manager appointed for the management of the property of the mentally ill person.
The Court said that ‘Will’ “is a legal declaration of a person’s wishes regarding the disposal of his or her property or asset after death”. The Court explained that a written instrument legally executed by a person making disposition of his or her asset to take effect after death, can only be with the expression of willingness of such person to execute the same. The wishes of a person who is the testator of the ‘Will’ should be free will which means that such a person is allowed to choose what he or she wants. For the expression of ‘free will’, the Court said that it would require the capability of conscious choice and decision as also the intention of the person executing the ‘Will’.
On perusal of the 1925 Act, the Court said that it provides for the capability of a person making ‘Will’, which includes that the person making ‘Will’ shall be of sound mind and should not be a minor. The Court discussed that the Explanation 4 to Section 59 provides that a person making ‘Will’, if in such a state of mind for the reason of illness or any other cause or on account of intoxication that he does not know what he is doing, would be incapable of making a ‘Will’. It is, thus, necessary that in order to make a valid ‘Will’, the testator need to be in perfect state of health, specifically in sound state of mind and should not be incapacitated in any manner from expressing his or her free will or making of conscious choice.
In the matter at hand, the Court said that the owner of the property, namely, A, was of unsound mind and was treated as an indoor patient at a hospital. The Manager was appointed under Section 54 of the M.H. Act to manage A’s property. The Court, on perusal of the M.H. Act, said that the manager of the property of a person of unsound mind appointed by the Court does not have unfettered powers to deal with the property of such a person. The Court noted under Section 58, a manager of a mentally ill person is responsible for the maintenance of the mentally ill person and of such members of his/her family as are dependent on him. The Court clarified that Section 59 of the M.H. Act confers power on the manager so appointed under the M.H. Act to exercise the same power in regard to the management of the property of the person of unsound mind, as such person would have exercised being the owner had he not been of unsound mind, but it does not, in any manner confer power on the manager to alienate the property.
Further, the Court said that the proviso to Section 59 of the M.H. Act prohibits transfer of any immovable property of the mentally ill person in any manner or creation of lease on such property for a period exceeding five years, except with the permission of the District Court. Thus, the Court said that the Manager’s assertion in the matter at hand, that execution of the ‘Will’ of person of unsound mind was not prohibited by the proviso to Section 59 was a misconceived argument. The Court stated that what has not been provided by the law cannot be done by the Manager in the capacity of being the Manager of the person of unsound mind.
Thus, in the matter at hand, the Court concluded that the execution of ‘Will’ by the Manager of the property of A in the instant case, was an act without any authority of law. The Court held that a ‘Will’, an instrument of expression of free will or conscious choice of the owner of the property, could not have been executed by the Manager on the premise that he can exercise the same power as could have been exercised by the person of unsound mind had she not been of unsound mind. Therefore, the Court did not find any error in the opinion of the Single Judge that the Manager has no free hand to deal with the properties of the person who is of unsound mind. The Court said that A, the owner of the property not being testator of the ‘Will’, the document executed cannot be said to be a ‘Will’ in the eyes of law. Regarding the challenge to the validity of Section 59 of the 1925 Act, the Court said that it is in conformity with the fundamental concept of ‘Will’, which is meant to be a document executed by free will or conscious choice of the owner of the property.
The Court said that the appeal challenging the order of rejection of the testamentary petition and the connected Special Civil Application seeking to challenge the validity of Section 59 of the Indian Succession, 1925, were found misconceived and hence, were dismissed, accordingly.
[Vinayakrao Shantilal Desai v. NA, 2024 SCC OnLine Guj 1814, Decided on: 13-03-2024]
