High Degree Of Evidence Required To Challenge Genuineness Of Will On Grounds Of Fraud, Undue Influence And Coercion: Kerala High Court

The Kerala High Court last week categorically laid down that allegations of fraud, undue influence and coercion cannot be made in a 'sweeping manner' merely on the ground of suspicion or conjecture, to dispute the genuineness of a Will. 

It thus underscored that suspicion regarding an individual factor could not act as a circumstance to doubt the genuineness of a Will. 

The Single Judge Bench of Justice K. Babu, taking note of Rule 4 of Order 6 of CPC, stated that the party relying on misrepresentation, fraud, undue influence, and so on, would have to give the particulars in the complaint and that in order to establish the same, a high degree of evidence would be required. 

"Fraud, like any other charge of a criminal offence, whether made in civil or criminal proceedings, must be established beyond reasonable doubt and a finding as to fraud cannot be based on suspicion or conjecture. The allegation of fraud, undue influence and coercion must be set forth in full particulars and not vaguely. When allegations are made in a vague and sweeping manner, the Court cannot act on them for lack of specific pleadings even if the allegations are worded in very assertive language. It is also trite that if the pleadings are vague and not specific, no amount of evidence can salvage the position," the Court said, reiterating the position in United India Insurance Co. Ltd. v. Andrew Vivera (1998). 

It went on to add, 

"The Court shall have to take into account the quality and nature of every fact, the cumulative effect and impact of all of them appreciated on a holistic view is the test to see that the Will indeed signifies the last free wish and desire of the testator and that it is duly executed in accordance with law". 

The Court in this case was seized with an appeal challenging the genuineness of a Will executed by one Late Valiyammal, who allegedly appointed the 1st plaintiff as the executor of the Will.

The defendants however claimed that the Will was a product of undue influence and fraud, and that the late Valiyamma had not put her signature in the Will. The defendants stated that it was unnatural for the deceased to have divested the properties in the name of the plaintiffs alone, and that she did not have the mental fitness to execute such a Will in the first place. 

The court below found the existence, execution, and validity of the Will to have been successfully proved by the plaintiffs. 

The 3rd defendant thus filed the appeal herein averring that the plaintiffs had failed to establish the due execution of the Will in terms of Section 63(c) of the Indian Succession Act, 1925 ('Execution of unprivileged Wills') and Section 68 of the Indian Evidence Act ('Proof of execution of document required by law to be attested').

The appellant pointed to the following 'suspicious circumstances' as vitiating the Will, namely, the exclusion of the natural legal heirs (defendants) by the deceased testator Valiyammal; the 1st plaintiff's active involvement in the creation of the Will and the document remaining in the said person's custody; the testator's death almost two months after the execution of the Will, and the 1st plaintiff's cash withdrawal using the ATM Card issued in the name of the testator after her death. 

The Court was thus faced with the twin questions as to whether the existence, execution and validity of the alleged Will had been successfully established by the plaintiffs, and whether they had satisfactorily explained the suspicious circumstances projected by the defendants. 

The Court at the very outset perused Section 63 of the Indian Succession Act which lays down the particulars for due execution of a Will, and Section 68 of the Indian Evidence Act which mandates that a Will shall not be used as evidence until one attesting witness at least had been called to prove its execution.

It took note that in Indu Bala Bose v. Mahindra Chandra Bose (1982), the Apex Court had laid down that the onus of proving the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and the signature of the testator as required by law would be sufficient to discharge the onus.

"Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court before the court accepts the Will as genuine. Even where circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the court. The suspicious circumstances may be as to the genuineness of the signatures of the testator, the condition of the testator's mind, the dispositions made in the Will being unnatural, improbable or unfair in the light of relevant circumstances, or there might be other indications in the Will to show that the testator's mind was not free," the Apex Court had added therein. 

Taking note of a plethora of other such precedents, the Court in this case observed that the evidence on the plaintiffs' side satisfied the requirement of Section 63(c) of the Indian Succession Act. 

The Appellant however claimed that two of the Prosecution Witnesses had failed to identify the Will in Court, and that the affidavit filed in lieu of the chief examination was not sufficient proof to satisfy the requirement of Section 63(c) of the Act. 

The Court in this regard observed that Rule 4 of Order 18 of CPC had been introduced as an exception to Section 1 of the Indian Evidence Act, which says that the Indian Evidence Act 1872 would not be applicable to affidavits presented to any Court or officer.

Taking note that the court below had recorded that the witnesses admitted the contents of the proof affidavit, Justice Babu concluded that there was thus no requirement for the witnesses to identify the document in court again during examination, and that the failure of their identification again in the Court could not have the effect of discarding the evidence tendered by way of affidavit in lieu of chief examination. 

The Court further added that the examination of one of the attesting witnesses was sufficient to prove a Will. 

As regards the 'suspicious circumstances' pointed out by the appellant, the Court discerned that no materials had been produced to prove that the deceased testator had been suffering from serious ailments or mental disability, and that the plaintiffs could thus satisfactorily explain the suspicion surrounding the mental condition of the testator.

Relying on Rabindra Nath Mukherjee v. Panchanan Banerjee (1995), the Court added, "deprivation of natural heirs should not always be treated as a suspicious circumstance as the whole idea behind the execution of the Will is to interfere with the normal succession". 

Ascertaining that the 'suspicious circumstances' alleged by the appellant were only normal, and the failure of the defendants to prove fraud, undue influence, and coercion, the Court dismissed the appeal.

Counsel for the Appellant: Advocates G. Krishnakumar, P.M. Naseema, and B.S. Suraj Krishna

Counsel for the Respondents: Government Pleader T. Jayan, and Advocates Kayalatt Kuttykrishnan, and P. Ushakumari

Citation: 2024 LiveLaw (Ker) 23

Case Title: Premakumari R. v. O.K. Sivasankara Pillai & Ors. 

Case Number: RFA NO. 197 OF 2013

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