Onus Is On Propounder To Remove All Suspicious Circumstances About Execution Of Will: Supreme Court

The Supreme Court observed that onus is placed on the propounder to remove all suspicious circumstances with regard to the execution of the will. 

Merely because Will was a registered one, that by itself would not mean that the statutory requirements of proving the will need not be complied with, the bench comprising Justices L. Nageswara Rao and BV Nagarathna observed

In this case, the Madras High Court allowed the appeal and reversed the judgment of the Trial Court which dismissed the suit for grant of Letters of Administration. 

The case of the plaintiffs was that E. Srinivasa Pillai, father-in-law of the 1st plaintiff, had died on 19th January, 1978 leaving behind his last will and testament dated 04th January, 1978. The said will was said to be executed in the presence of two attestors. The testator E. Srinivasa Pillai had a son, named S. Damodaran, who died intestate on 03rd June, 1989 at Madras, leaving behind the plaintiff-wife C. Saradambal and his two daughters viz., D. Prema, aged 20 years and D. Deepalakshmi, aged 18 years. That the testator, apart from his son, S. Damodaran, left behind two daughters viz., Savitri Ammal, wife of P. M. Elumalai and Padmavathi, wife of T. Rajaram. That the bequest was made in the name of testator's son viz., S. Damodaran to the exclusion of the testator's daughters in respect of the house in which the testator and his family were residing. Therefore, the daughters filed a partition suit and the plaintiffs filed the petition seeking Letters of Administration. Before the Trial Court, the issue was whether the will was executed by the testator while in a sound and disposing state of mind? The Trial Court answered it against the Plaintiffs. The High Court reversed the said judgment.

In appeal, the bench noted the principles stated in various judgments regarding proof of will. It observed thus:

1. In fact, the legal principles with regard to the proof of a will are no longer res integra. Section 63 of the Indian Succession Act, 1925 and Section 68 of the Evidence Act, 1872, are relevant in this regard. The propounder of the will must examine one or more attesting witnesses and the onus is placed on the propounder to remove all suspicious circumstances with regard to the execution of the will. [ AIR 1959 SC 443 H.Venkatachala Iyenger vs. B.N.Thimmajamma]
2. when a will is allegedly shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant. What generally is an adversarial proceeding, becomes in such cases, a matter of the Court's conscience and then, the true question which arises for consideration is, whether, the evidence let in by the propounder of the will is such as would satisfy the conscience of the Court that the will was duly executed by the testator. It is impossible to reach such a satisfaction unless the party which sets up the will offers cogent and convincing explanation with regard to any suspicious circumstance surrounding the making of the will. [Jaswant Kaur v. Amrit Kaur and others [1977 1 SCC 369] ]

The court noted that in Bharpur Singh and others v. Shamsher Singh [2009 (3) SCC 687], at Para 23, this Court has noted the following suspicious circumstance

(i) The signature of the testator may be very shaky and doubtful or not appear to be his usual signature. (ii) The condition of the testator's mind may be very feeble and debilitated at the relevant time. (iii) The disposition may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provisions for the natural heirs without any reason. (iv) The dispositions may not appear to be the result of the testator's free will and mind. (v) The propounder takes a prominent part in the execution of the will. (vi) The testator used to sign blank papers. (vii) The will did not see the light of the day for long. (viii) Incorrect recitals of essential facts.

Taking note of the facts and evidence on record, the bench held that the plaintiffs have not been successful in proving the validity of the will in accordance with law. The court said that a doubt is created as to whether the testator was in a sound and disposing state of mind at the time of making of the testament which was fifteen days prior to his death. The suspicious circumstances surrounding the very execution of the will have not been cleared by any cogent evidence, rather, the genuineness of Will remains in doubt, the court observed while allowing appeal. 

Click here to Read/Download Judgment