Proof Of Will : Onus Is On The Propounder To Remove Suspicious Circumstances : Kerala High Court

The Kerala High Court has recently ruled that if there exist suspicious circumstances surrounding the execution of the will, it is the onus of the propounder to remove all those reasonable doubts in the matter and the test to be applied in this connection is satisfaction of judicial conscience.

A Division Bench of Justice P.B. Suresh Kumar and Justice C.S Sudha observed that suspicion cannot be removed by the mere assertion of the propounder that the will bears the testator's signature or that the testator was in a sound state of mind at the time when the will was made or that the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them.

"The presence of suspicious circumstances would therefore make the initial onus of the propounder of the will heavier and in cases where the circumstances attended upon the execution of the will is shrouded by suspicions, the propounder must remove all those suspicions which are legitimate before the document can be accepted as the last will of the testator."

The suit property was held by one Thankappan, who died intestate in 1997. Thereafter, the property devolved on his daughter, wife, two sons and his mother. 

The daughter instituted a partition suit seeking one-fifth share over the property. She argued that the will is a concocted one and the signatures appearing on the will as that of Thankappan are not put by him.

The others contested the suit arguing that as per the will, she was disinherited.

The court below without considering if the execution of the will was duly proved, held that it was not a genuine will on the ground that the testator has disinherited his only daughter.

Challenging this decree, Thankappan's wife and son approached the High Court with an appeal. 

Advocates G. Shrikumar, Kavery S. Thampi and Sreejith S. Nair appearing for the appellants argued that the crucial question that ought to have been considered was whether the will was duly proved by the propounders. 

They argued that as per the evidence rendered, the will was duly proved and that in the  absence of any disposition in favour of the daughter in the will, the court below ought to have dismissed the suit. 

It was also argued that insofar as the daughter contended that the execution of the will is shrouded by suspicious circumstances, it was her obligation to establish such circumstances and no circumstances, much less any suspicious circumstances, have been established by her. 

Advocates Deepak B, T.C. Suresh Menon, P.S Appu, C.A Anoop, Jibu P Thomas and A.R Nimod appeared for the respodents in the matter. 

Relaying on H.Venkatachala Iyengar v. B.N.Thimmajamma [AIR 1959 SC 443], the Court noted that although the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will, cases in which the execution of the will is shrouded by suspicious circumstances stand on a different footing. 

In the light of these principle, the question to be considered by the Court was whether there exist any circumstances which would throw a legitimate suspicion as to the execution of the disputed will. 

The Bench found that even though the exclusion of a heir from inheriting the estate in terms of the disposition made in a will, will not and cannot by itself lead to a legitimate suspicion as to the genuineness of the will, unfair and unjust disposition of property may at times lead to a legitimate suspicion as to the genuineness of the will.  

The Court then examined if the explanation offered for excluding a heir from the disposition is reasonable on the facts and circumstances of the case.

Itw as observed that the reasons stated by a wealthy father owning several items of properties, for excluding completely a daughter in her twenties from his will do not appear to be reasonable and sufficient to remove the suspicion that arose on account of the unfair and unjust disposition of properties.

The Judges noted that there are other circumstances as well which would cause some suspicion as to the genuineness of the will propounded. 

Case Title: Kousalya & Anr v. Leena & Ors.

Citation: 2022 LiveLaw (Ker) 112

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