Mere Registration Of Will Won't Make It Valid Unless Its Execution Proved As Per Evidence Act : Supreme Court

The Bench of Justices CT Ravikumar and Rajesh Bindal further noted that as per Section 68, at least one attesting witness has to be examined to prove execution of a Will. Reliance was placed on the recent cases of Moturu Nalini Kanth v. Gainedi Kaliprasad and Derek A.C. Lobo v. Ulric M.A. Lobo.

The facts of the case revolved around the partition of a property by one Balasubramaniya Thanthiriyar (testator). The entire property was partitioned into four schedules. Out of this, three schedules were allotted to the first wife and children. The primary bone of contention was the validity of the will. Both the Trial Court and the High Court had declined to accept the claim of the appellants that was based on the will. Thus, the matter reached the Supreme Court.

At the very outset, the Court highlighted the contradictory versions of Thanthiriyar's health in the will.

“In one part of the Will it is stated, “with full conscious, with good memory and without instigation by anyone” and at the same time in another part it is stated, “I suffer from heart disease and got treatment from several doctors”. The Court also took note of the fact that defendant No.1 herself stated that the health of her husband was in bad condition and as there was a danger to his life, he executed the Will at Madurai and had no role in the preparation of the Will.

It further noted that the propounder (person presenting the will before the Court for approval) has to establish by satisfactory evidence two things. First, that the will was signed by the testator. Second, that the testator was mentally sound and he understood the nature of the will.

Based on this, the Court noted that appellant no. 1 claimed that she had no role in the execution of the will and that it was executed without instigation from anyone. However, she did not mention that the two pages on stamp papers on which the Will was typed were bought in her name.

“Now, another circumstance which was taken into account by the Courts below is that nothing is on record to show that the testator had executed the Will after understanding its contents. Though DW2 (brother of first appellant) deposed that the notary public read over the Will and then Balasubramaniya signed it. The Courts below correctly took note of the fact revealed from the very Will that such noting that it was read over to the testator is absent there.,” the Court added.

Another lacuna highlighted by the Court was that if the testator was claimed to be in good health, then he could have dictated the Will himself instead the same was read over to him by a notary public. Apart from this, the Court referred to the impugned judgment to remark that the will was executed at Madurai which is far away from where the testator used to reside. Moreover, the attesting witnesses were not known to him.

“As noted earlier, the health of testator was in bad condition and if so, the case that the execution of the Will was at a far away place from Madurai is also a matter casting suspicion. Evidently, it was taking into consideration all the aforesaid and such other circumstances that the High Court arrived at the finding that the execution of the Will itself was not proved. The circumstances surrounding the Will were also concurrently held as suspicious.”

Thus, the Court held that the evidence was not sufficient to prove the validity and the genuineness of the will. It opined that the appellants failed to prove the fact that the will was executed by the testator after understanding its contents.

“In such circumstances, when the findings are concurrent how can the findings on the validity and genuineness of the Will in question by the Trial Court and the High Court be interfered with. There is no reason to hold that the appreciation and findings are absolutely perverse warranting appellate interference by this Court.,” the Court held before dismissing the appeal.

Case name: Leela & Ors. V. Muruganantham & Ors., Civil Appeal No. 7578 of 2023

Citation : 2025 LiveLaw (SC) 8

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