Finding That 'Will Is Validy Executed' Doesn't Mean 'Will Is Genuine' : Supreme Court

The Supreme Court (on January 03) observed that once the execution of the will is proved as per Section 63 of the Indian Succession Act and Section 68 of the Evidence Act, then it shall be the 'irrecusable duty' of Court to call upon a propounder (person presenting the will before the Court for approval) to remove any raised suspicious circumstances.

A brief background of the case is that one Myra Philomena Coalho (plaintiff) had filed a petition for the grant of Letters of Administration (LOA) with the Will of her deceased mother Mrs. Maria Francisca Coelho. A Single Judge Bench of the Bombay High Court though held that the will was duly executed but at the same time also found that it was shrouded with suspicious circumstances. Thus, the suit came to be dismissed.

However, the Division Bench observed that, as per the findings of the Single Bench, the Will was validly executed and is genuine. As a result, it set aside the findings related to suspicious circumstances and decreed the suit.

In that view of the matter, the case reached the Apex Court. At the very outset, the Bench of Justices C.T Ravikumar and Sudhanshu Dhulia observed that a 'Will is validly executed' and a 'Will is genuine' cannot be said to be the same. The Court explained that even if it is proved that the will was executed in accordance with the law, the same cannot lead to the presumption about its genuineness.

"In this context, we cannot lose sight of the fact that holding that a 'Will is validly executed' and a 'Will is genuine' cannot be said to be the same. If a Will is found not validly executed, in other words invalid owing to the failure to follow the prescribed procedures, then there would be no need to look into the question whether it is shrouded with suspicious circumstances. Therefore, it can be said that even after the propounder is able to establish that the Will was executed in accordance with the law, that will only lead to the presumption that it is validly executed but that by itself is no reason to canvass the position that it would amount to a finding with respect to the genuineness of the same. In other words, even after holding that a Will is genuine, it is within the jurisdiction of the Court to hold that it is not worthy to act upon as being shrouded with suspicious circumstances when the propounder failed to remove such suspicious circumstances to the satisfaction of the Court."

Moving forward, the Court observed that the Single-Judge Bench refused to grant LOA on grounds that the plaintiff had failed to explain suspicious circumstances. After placing reliance was placed upon the decisions in Derek A.C. Lobo v. Ulric M.A. Lobo.(2023) and Kavita Kanwar v. Pamela Mehta & Ors., it went on to observe:

“At the same time, if it is taken that the learned Single Judge had only recorded that the plaintiff had succeeded in proving the execution in terms of the provisions under Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872 in the light of the well-neigh settled position of law, it would be open to the Court to consider, rather, it is the irrecusable duty of the Court in case the objector raises suspicious circumstances, to call upon the propounder to remove such suspicious circumstances to satisfy its conscious. This position is well settled.''

The Court further pointed out that the findings of the Single Judge Bench did not pertain to the genuineness of the Will. In fact, there was a clear absence of any such finding regarding the genuineness of the Will.

“It is to be noted that the Division Bench had not held that there is such a specific finding by the learned Single Judge in the Testamentary Suit. Thus, it is evident that it was without making such an endeavour and exercise that the Division Bench held that in view of the finding with respect to the genuineness of the Will, the learned Single Judge could not have proceeded with the consideration whether the Will in question is shrouded with suspicious circumstances.”

Based on this, the Court rejected the approach taken by the Division Bench and said that the reasoned decision of the Single Bench cannot be interfered with. However, it gave parties the liberty to argue the matter on merits before the Division Bench.

Case Name: Lilian Coelho & Ors. V. Myra Philomena Coalho., Civil Appeal No. 7198 of 2009

Citation : 2025 LiveLaw (SC) 15

Click here to read the judgment