Karnataka High Court
Devaki W/O Ganapati Naik vs Laxman S/O Venkat Naik on 23 January, 2025
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RSA No. 100058 of 2018
C/W RSA No. 100059 of 2018
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 23RD DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 100058 OF 2018 (DEC/INJ-)
C/W
REGULAR SECOND APPEAL NO. 100059 OF 2018
IN RSA NO.100058/2018
BETWEEN:
1. DEVAKI W/O. GANAPATI NAIK,
AGE: 59 YEARS,
OCC: HOUSEHOLD WORK,
R/O: KALLABBE,
TQ: KUMTA,
DIST: KARWAR-581343.
2. PARAMESHWAR
S/O. GANAPATI NAIK,
AGE: 37 YEARS,
OCC: AGRICULTURE,
R/O: KALLABBE,
VN
BADIGER TQ: KUMTA,
DIST: KARWAR-581343.
Digitally
signed by V 3. MANJUNATH
N BADIGER
Date: S/O. GANAPATI NAIK,
2025.01.28
11:21:25 AGE: 35 YEARS,
+0530
OCC: AGRICULTURE,
R/O: KALLABBE,
TQ: KUMTA,
DIST: KARWAR-581343.
...APPELLANTS
(BY SRI. S. N. BANAKAR, ADVOCATE)
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RSA No. 100058 of 2018
C/W RSA No. 100059 of 2018
AND:
LAXMAN S/O. VENKAT NAIK,
AGE: 65 YEARS,
OCC: AGRICULTURE,
R/O: KALLABBE,
TQ: KUMTA,
DIST: KARWAR-581343.
...RESPONDENT
(BY SRI. N.R. KUPPELLUR, ADVOCATE)
-------
THIS RSA IS FILED U/SEC.100 OF CPC, PRAYING TO CALL FOR
RECORDS IN O.S.NO.33/2008 ON THE FILE OF CIVIL JUDGE AND
JMFC., KUMTA, DISPOSED OF ON 07.09.2013, SO ALSO CALL FOR
RECORDS IN R.A.NO.36/2013 DISPOSED OF ON 08.12.2017 ON THE
FILE OF SENIOR CIVIL JUDGE, KUMTA AND THAT THE IMPUGNED
JUDGMENT AND DECREE PASSED IN R.A.NO.36/2013 DATED
08.12.2017 BY THE SENIOR CIVIL JUDGE, KUMTA MAY KINDLY BE
SET ASIDE AND TO RESTORE THE JUDGMENT AND DECREE PASSED
IN O.S.NO.33/2008 PASSED BY CIVIL JUDGE AND JMFC., KUMTA
DATD 07.09.2013 BY ALLOWING THIS RSA IN THE INTEREST OF
JUSTICE AND ALLOW THIS APPEAL WITH EXEMPLARY COST TO MEET
THE ENDS OF JUSTICE AND EQUITY.
IN RSA NO.100059/2018
BETWEEN:
DEVAKI W/O. GANAPATI NAIK,
AGE: 59 YEARS,
OCC: HOUSEHOLD WORK,
R/O: KALLABBE,
TQ: KUMTA,
DIST: KARWAR-581343.
...APPELLANT
(BY SRI. S. N. BANAKAR, ADVOCATE)
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RSA No. 100058 of 2018
C/W RSA No. 100059 of 2018
AND:
LAXMAN S/O. VENKAT NAIK,
AGE: 65 YEARS,
OCC: AGRICULTURE,
R/O: KALLABBE,
TQ: KUMTA,
DIST: KARWAR-581343.
...RESPONDENT
(BY SRI. N.R. KUPPELLUR, ADVOCATE)
-------
THIS RSA IS FILED U/SEC.100 OF CPC, PRAYING TO CALL FOR
RECORDS IN O.S.NO.36/2008 ON THE FILE OF CIVIL JUDGE AND
JMFC., KUMTA, DISPOSED OF ON 07.09.2013 SO ALSO CALL FOR
RECORDS IN R.A.NO.33/2013 DISPOSED OF ON 08.12.2017 ON THE
FILE OF SENIOR CIVIL JUDGE, KUMTA AND THAT THE IMPUGNED
JUDGMENT AND DECREE PASSED IN R.A.NO.33/2013 DATED
08.12.2017 BY THE SENIOR CIVIL JUDGE, KUMTA MAY KINDLY BE
SET ASIDE AND TO RESTORE THE JUDGMENT AND DECREE PASSED
IN O.S.NO.36/2008 PASSED BY CIVIL JUDGE AND JMFC., KUMTA
DATED 07.09.2013 BY ALLOWING THIS RSA IN THE INTEREST OF
JUSTICE AND ALLOW THIS APPEAL WITH EXEMPLARY COST TO MEET
THE ENDS OF JUSTICE AND EQUITY.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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RSA No. 100058 of 2018
C/W RSA No. 100059 of 2018
CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH
ORAL JUDGMENT
2. RSA No.100058/2018 is filed by defendants
challenging the judgment and decree dated 08.12.2017 in RA
No.36/2013 on the file Senior Civil Judge, Kumta (for short,
hereinafter referred to as 'First Appellate Court), allowing the
appeal and set aside the judgment and decree dated
07.09.2013 in OS No.33/2008 on the file Civil Judge at Kumta
(for short, hereinafter referred to as 'Trial Court'), dismissing
the suit.
3. RSA No.100059/2018 is filed by plaintiff challenging
the judgment and decree dated 08.12.2017 in RA No.33/2013
on the file First Appellate Court, allowing the appeal and set
aside the judgment and decree dated 07.09.2013 in OS
No.36/2008 on the file Trial Court, dismissing the suit.
4. Since, First Appellate Court and the Trial Court have
clubbed the suits and appeals and disposed off by impugned
judgment and decree, wherein the parties are same and
subject matter of the property is identified, accordingly,
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appeals were heard together and dispose off by this common
judgment.
Facts in RSA No.100058/2018:
5. It is the case of the plaintiff in OS No.33/2008 that,
the original propositus-Subray had three children namely
Venkta, Parameshwar and Rama. Plaintiff - Laxman in OS
No.33/2008 is the son of Venkta. Defendant No.1 is the wife of
Ganapati (daughter-in-law of Parameshwar). Rama died leaving
behind Devi, who died on 20.01.2006 and have no issues. It is
the case of the plaintiff that the husband of defendant No.1 has
filed suit in OS No.161/1986 claiming ownership in respect of
the property which came to be dismissed and thereafter,
husband of the defendant No.1 - Ganapati had filed RA
No.90/2006 which came to be dismissed. It is also stated that,
the deceased Devi during her lifetime had executed registered
Will dated 28.01.1999 by cancelling the earlier Will and as per
the said Will dated 28.01.1999 schedule property was
bequeathed in favour of the plaintiff (Laxman) and therefore,
plaintiff has filed suit in OS No.33/2008 seeking relief of
declaration with permanent injunction.
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6. The defendants entered appearance and filed
detailed written statement denying the averments made in the
plaint. It is the specific case of the defendants that the said
Devi had executed a Will dated 08.12.2005 in favour of the
defendants and accordingly, the defendants sought for right
over the suit schedule property and as such the defendants
sought for dismissal of OS No.33/2008.
Facts in RSA No.100059/2018:
7. Defendant No.1 in OS No.33/2008 is the plaintiff in
OS No.36/2008. It is the case of the plaintiff that the schedule
property is owned by her husband - Ganapati and same was
inherited by him from his father-Parameshwar. It is stated in
the plaint that the plaintiff is in possession of the schedule
property and revenue records stand in the name of the plaintiff.
It is also stated that, the testator - Devi wife of Rama died
leaving behind Will dated 08.12.2005, bequeathing the
schedule property in favour of plaintiff (Smt. Devaki) and
therefore, sought for relief of declaration with consequential
relief against the defendants.
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8. Upon service of notice, the defendant-Laxman
entered appearance and filed detailed written statement
denying the averments made in the plaint.
9. The Trial Court based on pleadings on record
formulated issues in both the suits. The Trial Court recorded
common evidence in both the suits and heard together. The
plaintiff is OS No.33/2008, examined three witnesses as PW1 to
PW3 and produced 21 documents and same were marked as
Ex.P1 to P21. Defendants have examined five witnesses as
DW1 to DW5 and produced five documents and same were
marked as Ex.D.1 to D5. In OS No.36/2008 plaintiff was
examined as PW1 and produced 4 documents and same were
marked as Ex.P1 to P4. No evidence on the part of the
defendants. The Trial Court after considering the material on
record by its judgment and decree dated 07.09.2013 dismissed
OS No.33/2008 and decreed the suit in OS No.36/2008. Feeling
aggrieved by the same, Laxman (plaintiff in OS No.33/2008
and defendant in OS No.36/2008) has preferred RA No.33/2013
and RA No.36/2013 respectively. The appeal was contested by
the respondents therein (appellants herein). The First Appellate
Court by judgment and decree dated 08.09.2017 allowed the
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appeals and as such set aside the judgment and decree in OS
No.33/2008 and OS No.36/2008. Hence, these appeals are
filed by Smt.Devaki (defendant No.1 in OS No.33/2008 and
plaintiff in OS No.36/2008). The appellants herein filed
application in IA No.2/2018 under Order 41 Rule 31 of CPC and
produced certain documents.
10. Heard Sri. S. N. Banakar, learned counsel appearing
for the appellant and Sri. N. R. Kuppelur, learned counsel
appearing for the respondents.
11. Sri. S. N. Banakar, learned counsel appearing for
the appellant contended that the First Appellate Court has
committed an error in arriving at a conclusion solely on the
ground that the earlier Will dated 28.01.1999 was registered
and the later Will dated 08.12.2005 is an unregistered
document and the said finding requires to be interfered with in
this appeal. It is also contended by the learned counsel
appearing for the appellant that the appellant has examined
DW2 and DW3 to prove Will dated 08.12.2005 and the said
aspect of the matter was not considered by the First Appellate
Court. He also submitted that, the First Appellate Court has not
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properly appreciated the factual aspect on record in the right
perspective and as such sought for interference on this Court.
12. To buttress his arguments Sri. S. N. Banakar,
learned counsel appearing for the appellant places reliance on
the judgment of this Court in the case of Ramakrishnappa
and Others Vs. Rudramma and Another1 and judgment and
decree passed in RSA No.100247/2014 disposed off on
06.01.2025, and argued that the impugned judgment and
decree passed by the First Appellate Court requires interference
in these appeals.
13. Per contra, Sri. N. R. Kuppelur, learned counsel
appearing for the respondents herein sought to justify the
impugned judgment and decree passed by the First Appellate
Court and contended that the registered Will dated 28.01.1999
was proved by the plaintiff in OS No.33/2008 by examining
PW1 and PW3, who have deposed that the execution of the Will
by a testator - Devi and accordingly, submitted that as the
First Appellate Court arrived at a conclusion with regard to
suspicious circumstances in execution of Will dated 08.12.2005
and therefore, sought for dismissal of the appeals. He also
(2013) 2 KCCR 1394
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refers to the judgment of Hon'ble Supreme Court in the case of
Murthy and Others Vs. C. Saradambal and Others2 and
sought for dismissal of the appeals.
14. In the light of the submissions made by the learned
counsel appearing for the parties, the relationship between the
parties is not disputed. It is also relevant to extract the
genealogy tree of the parties which reads as under;
Subray
Venkta Parameshwar Rama
(died) (died) (died)
Laxman Ganapati (died) Devi (Wife) died
Plaintiff Wife Devaki Defendant Issueless on
No.1 20.01.2006
After the death of Rama
his wife Devi
Succeeded to the suit
property
Parameshwar Manjunath
Defendant No.2 Defendant No.3
15. On perusal of the genealogy referred to above
would indicate that the original propositus - Subray had three
children namely Venkta, Parameshwar and Rama. Plaintiff in OS
No.33/2008 and defendant in OS No.36/2008 - Laxman (son of
(2022) 3 SCC 3209
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Venkta). Defendant No.1 in OS No.33/2008 and plaintiff in OS
No.36/2008 - Devaki is daughter-in-law of Parameshwar and
wife of Ganapati - deceased son of Parameshwar. Defendants
Nos.2 and 3 in OS No.33/2008 are the children of defendant
No.1. On perusal of the finding recorded by both the Courts
below would indicate that the suit schedule property is joint
family property of the parties and same was devolving amongst
the children of late Subray. Schedule property was given to
Rama (son of Subray) and the said Rama died leaving behind
his wife Smt. Devi, who died on 20.01.2006 leaving behind a
registered Will dated 28.01.1999 (Ex.P.15) under which the
plaintiff in OS No.33/2008 claiming property. Plaintiff in OS
No.36/2008 claiming property in terms of the unregistered Will
dated 08.12.2005 (Ex.D.5). I am of the firm view that,
registration or otherwise of a 'Will' does not confer right over
the property in favour of the legacy unless it is proved in
accordance with law. In order to prove the registered Will dated
28.01.1999 (Ex.P.15) the plaintiff has examined PW2 and PW3
who deposed that the said Devaki had executed a Will dated
10.02.1983 and same was withdrawn by the testator and the
Will dated 28.01.1999 was prepared at the instance of testator
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and same was registered on 28.01.1999. PW2 and PW3,
witnesses to the Will dated 28.01.1999 deposed about the
execution of Will by a testator in their presence. On the other
hand, the plaintiff in OS No.36/2008 - Smt. Devaki has
produced Will dated 08.12.2005 (Ex.D5) and examined DW2
and DW3 as witnesses to the Will dated 08.12.2005. I have
carefully examined the evidence of DW2 and DW3, claims to be
the attesting witnesses wherein, DW2 has stated that he has no
knowledge regarding execution of Will. DW3, deposed that
there are two thumb impressions in Adhikara Patra and DW4
deposed that first impression did not come properly, and
thereafter second impression was taken on the Adhikara Patra
and it is also to be noted that the testator-Devi was residing
with the plaintiff (Laxman) and he has conducted the funeral
and obsequies ceremonies of deceased Devi.
16. In that view of the matter, taking into consideration
the declaration of law made by the Hon'ble Apex Court in the
case of T.L. Venkatarama Aiyar Vs. B.N. Thimmajamma
and Others3. Paragraph Nos.18 to 27 reads as under;
AIR 1959 SC 443
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"18. What is the true legal position in the
matter of proof of wills? It is well-known that the
proof of wills presents a recurring topic for decision
in courts and there are a large number of judicial
pronouncements on the subject. The party
propounding a will or otherwise making a claim
under a will is no doubt seeking to prove a
document and, in deciding how it is to be proved, we
must inevitably refer to the statutory provisions
which govern the proof of documents. Sections 67
and 68 of the Evidence Act are relevant for this
purpose. Under Section 67, if a document is alleged
to be signed by any person, the signature of the said
person must be proved to be in his handwriting, and
for proving such a handwriting under Sections 45
and 47 of the Act the opinions of experts and of
persons acquainted with the handwriting of the
person concerned are made relevant. Section 68
deals with the proof of the execution of the
document required by law to be attested; and it
provides that such a document shall not be used as
evidence until one attesting witness at least has
been called for the purpose of proving its execution.
These provisions prescribe the requirements and the
nature of proof which must be satisfied by the party
who relies on a document in a court of law.
Similarly, Sections 59 and 63 of the Indian
Succession Act are also relevant. Section 59
provides that every person of sound mind, not being
a minor, may dispose of his property by will and the
three illustrations to this section indicate what is
meant by the expression "a person of sound mind"
in the context. Section 63 requires that the testator
shall sign or affix his mark to the will or it shall be
signed by some other person in his presence and by
his direction and that the signature or mark shall be
so made that it shall appear that it was intended
thereby to give effect to the writing as a will. This
section also requires that the will shall be attested
by two or more witnesses as prescribed. Thus the
question as to whether the will set up by the
propounder is proved to be the last will of the
testator has to be decided in the light of these
provisions. Has the testator signed the will? Did he
understand the nature and effect of the dispositions
in the will? Did he put his signature to the will
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knowing what it contained? Stated broadly it is the
decision of these questions which determines the
nature of the finding on the question of the proof of
wills. It would prima facie be true to say that the will
has to be proved like any other document except as
to the special requirements of attestation prescribed
by Section 63 of the Indian Succession Act. As in the
case of proof of other documents so in the case of
proof of wills it would be idle to expect proof with
mathematical certainty. The test to be applied would
be the usual test of the satisfaction of the prudent
mind in such matters.
19. However, there is one important feature which
distinguishes wills from other documents. Unlike
other documents the will speaks from the death of
the testator, and so, when it is propounded or
produced before a court, the testator who has
already departed the world cannot say whether it is
his will or not; and this aspect naturally introduces
an element of solemnity in the decision of the
question as to whether the document propounded is
proved to be the last will and testament of the
departed testator. Even so, in dealing with the proof
of wills the court will start on the same enquiry as in
the case of the proof of documents. The propounder
would be called upon to show by satisfactory
evidence that the will was signed by the testator,
that the testator at the relevant time was in a sound
and disposing state of mind, that he understood the
nature and effect of the dispositions and put his
signature to the document of his own free will.
Ordinarily when the evidence adduced in support of
the will is disinterested, satisfactory and sufficient to
prove the sound and disposing state of the testator's
mind and his signature as required by law, courts
would be justified in making a finding in favour of
the propounder. In other words, the onus on the
propounder can be taken to be discharged on proof
of the essential facts just indicated.
20. There may, however, be cases in which the
execution of the will may be surrounded by
suspicious circumstances. The alleged signature of
the testator may be very shaky and doubtful and
evidence in support of the propounder's case that
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the signature, in question is the signature of the
testator may not remove the doubt created by the
appearance of the signature; the condition of the
testator's mind may appear to be very feeble and
debilitated; and evidence adduced may not succeed
in removing the legitimate doubt as to the mental
capacity of the testator; the dispositions made in the
will may appear to be unnatural, improbable or
unfair in the light of relevant circumstances; or, the
will may otherwise indicate that the said dispositions
may not be the result of the testator's free will and
mind. In such cases the court would naturally expect
that all legitimate suspicions should be completely
removed before the document is accepted as the
last will of the testator. The presence of such
suspicious circumstances naturally tends to make
the initial onus very heavy; and, unless it is
satisfactorily discharged, courts would be reluctant
to treat the document as the last will of the testator.
It is true that, if a caveat is filed alleging the
exercise of undue influence, fraud or coercion in
respect of the execution of the will propounded, such
pleas may have to be proved by the caveators; but,
even without such pleas circumstances may raise a
doubt as to whether the testator was acting of his
own free will in executing the will, and in such
circumstances, it would be a part of the initial onus
to remove any such legitimate doubts in the matter.
21. Apart from the suspicious circumstances to
which we have just referred, in some cases the wills
propounded disclose another infirmity. Propounders
themselves take a prominent part in the execution
of the wills which confer on them substantial
benefits. If it is shown that the propounder has
taken a prominent part in the execution of the will
and has received substantial benefit under it, that
itself is generally treated as a suspicious
circumstance attending the execution of the will and
the propounder is required to remove the said
suspicion by clear and satisfactory evidence. It is in
connection with wills that present such suspicious
circumstances that decisions of English courts often
mention the test of the satisfaction of judicial
conscience. It may be that the reference to judicial
conscience in this connection is a heritage from
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similar observations made by ecclesiastical courts in
England when they exercised jurisdiction with
reference to wills; but any objection to the use of
the word "conscience" in this context would, in our
opinion, be purely technical and academic, if not
pedantic. The test merely emphasizes that, in
determining the question as to whether an
instrument produced before the court is the last will
of the testator, the court is deciding a solemn
question and it must be fully satisfied that it had
been validly executed by the testator who is no
longer alive.
22. It is obvious that for deciding material questions
of fact which arise in applications for probate or in
actions on wills, no hard and fast or inflexible rules
can be laid down for the appreciation of the
evidence. It may, however, be stated generally that
a propounder of the will has to prove the due and
valid execution of the will and that if there are any
suspicious circumstances surrounding the execution
of the will the propounder must remove the said
suspicions from the mind of the court by cogent and
satisfactory evidence. It is hardly necessary to add
that the result of the application of these two
general and broad principles would always depend
upon the facts and circumstances of each case and
on the nature and quality of the evidence adduced
by the parties. It is quite true that, as observed by
Lord Du Parcq in Harmes v. Hinkson (1946) 50
CWN 895 "where a will is charged with suspicion,
the rules enjoin a reasonable scepticism, not an
obdurate persistence in disbelief. They do not
demand from the Judge, even in circumstances of
grave suspicion, a resolute and impenetrable
incredulity. He is never required to close his mind to
the truth". It would sound platitudinous to say so,
but it is nevertheless true that in discovering truth
even in such cases the judicial mind must always be
open though vigilant, cautious and circumspect.
23. It is in the light of these general considerations
that we must decide whether the appellant is
justified in contending that the finding of the High
Court against him on the question of the valid
execution of the will is justified or not. It may be
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conceded in favour of the appellant that his
allegation that Lakshmamma has put her signatures
on the will at five places is proved; that no doubt is
a point in his favour. It may also be taken as proved
that Respondent 1 has failed to prove that
Lakshmamma was unconscious at the time when the
will is alleged to have been executed. It is true she
was an old woman of 64 years and had been ailing
for some time before the will was executed. She was
not able to get up and leave the bed. In fact she
could sit up in bed with some difficulty and was so
weak that she had to pass stools in bed. However,
the appellant is entitled to argue that, on the
evidence, the sound and disposing state of mind of
Lakshmamma is proved. Mr Iyengar, for the
appellant, has strongly urged before us that, since
these facts are established, the court must presume
the valid execution of the will and in support of his
contention he has invited our attention to the
relevant statements on the point in the text books
dealing with the subject. Jarman on Wills says that
"the general rule is 'that the onus probandi lies in
every case upon the party propounding a will and he
must satisfy the conscience of the court that the
instrument so propounded is the last will of a free
and capable testator' ". He adds that, "if a will is
rational on the face of it, and appears to be duly
executed, it is presumed, in the absence of evidence
to the contrary, to be valid". Similarly, Williams on
Executors and Administrators has observed that,
"generally speaking, where there is proof of
signature, everything else is implied till the contrary
is proved; and evidence of the will having been read
over to the testator or of instructions having been
given is not necessary". On the other hand, Mr
Viswanatha Sastri, for Respondent 1, contends that
the statements on which the appellant has relied
refer to wills which are free from any suspicions and
they cannot be invoked where the execution of the
will is surrounded by suspicious circumstances. In
this connection, it may be pertinent to point out
that, in the same text books, we find another rule
specifically mentioned. "Although the rule of Roman
Law", it is observed in Williams, "that 'Qui se scripsit
haeredem' could take no benefit under a will does
not prevail in the law of England, yet, where the
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person who prepares the instrument, or conducts its
execution, is himself benefited by its dispositions,
that is a circumstance which ought generally to
excite the suspicion of the court, and calls on it to be
vigilant and zealous in examining the evidence in
support of the instrument in favour of which it ought
not to pronounce, unless the suspicion is removed,
and it is judicially satisfied that the paper does
express the true will of the deceased".
24. It would, therefore, be necessary at this stage
to decide whether an execution of the will in the
present case is surrounded by any suspicious
circumstances. Does the will appear to be on the
whole an improbable, unnatural and unfair
instrument as held by the High Court? That is the
first question which falls to be considered. We have
already indicated that the preamble to the will
contains many argumentative recitals. Indeed it
would not be unjust to say that the preamble
purports to meet by anticipation the main objections
which were likely to be raised to the competence of
Lakshmamma to make a will in regard to the
properties covered by it. The preamble in great
detail makes out a case that the properties received
by the testatrix and her husband under the gift deed
(Ex. D) devolved upon her by survivorship after her
husband's death, a plea which has not been
accepted even by the trial court. It also seeks to
prove that the subsequent purchases made by her
husband were in law the joint acquisitions of her
husband and herself, a point on which the two
courts below have differed. It sets out in detail the
theory that the son of the testatrix has lost his right,
title and interest in the properties which devolved on
him after his father's death because he had
alienated more than his share in the said properties
during his lifetime; and it even suggests that during
his illness and to help him to build a house in Mysore
the testatrix had advanced him money from her
separate funds, pleas which have not been accepted
by either court below. It seems to us that the
elaborate and well-considered recitals which have
been deliberately introduced in the preamble cannot
possibly be the result of corresponding instructions
given by the testatrix to the appellant for preparing
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the draft of her will. In the context these recitals
sound artificial and unnatural and some of them at
any rate are untrue. The draftsman of the will has
tried to be overwise and that itself is a very serious
infirmity in the appellant's case that the instrument
represents the last will and testament of the
testatrix. Take for instance the statement in the will
that the testatrix had advanced Rs 3000 to her son
to enable him to purchase a house at Mysore. By
itself this is not a matter of very great importance;
but this detail has been introduced in the will in
order to make out a strong case that all the
properties mentioned in the will were the separate
properties of the testatrix and so it would be
relevant to consider what the appellant himself has
to say about this recital. In regard to the Rs 3000 in
cross-examination the appellant has stated that Mr
B.G Ramakrishna Iyengar had sent this amount to
the husband of Respondent 1 in 1942 or so. It was
sent by cheque on Mysore Bank. The appellant then
added that the husband of Respondent 1 had
deposited this amount with B.G Ramakrishna
Iyengar's father-in-law after selling Goudanahalli
lands with intent to purchase lands at Mysore; so
that the claim made in the will that the testatrix had
given this amount to her son out of her separate
funds is inaccurate. The manner in which the several
recitals have been made in the will amounts to a
suspicious circumstance which must be satisfactorily
explained by the appellant.
25. The next circumstance which calls for an
explanation is the exclusion of the grand children of
the testatrix from any substantial legacies under the
will. It is true that a bequest of Rs 500 each is given
to them but that can hardly be regarded as fair or
just to these children. It was, however, urged by Mr
Iyengar before us that Narayana Iyengar had,
during his lifetime, given lands to his sister's
daughters. He had also spent considerable amounts
on the occasion of their marriages and had given
them each valuable ornaments. In this connection,
he referred us to certain documents exhibited under
Ex. 'G' and attempted to show that the lands given
to his sisters' daughters were of the value of Rs
1500 to Rs 2000 each. Apart from the fact that the
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value of these lands is not clearly proved nor are the
circumstances under which they came to be gifted to
the donees, we do not think it would be possible to
accept the argument that even with these gifts the
testatrix would not have thought of making more
substantial bequests to her grandchildren. It is not
suggested that the relations between the testatrix
and these grandchildren were not cordial and
affectionate and so it would be reasonable to
assume that they would have been the objects of
her bounties in a more liberal measure in ordinary
circumstances.
26. There is one more point which must be
considered in this connection. As we have already
mentioned the appellant's sons have received
substantial bounties under the will. Are these
bequests probable and natural? It must be
remembered that the appellant came into the family
of Annaji by adoption long after the testatrix was
married. The record does not show that the testatrix
was on such affectionate terms with the appellant
that she would have preferred to make a bequest to
his sons rather than to her own grandchildren.
Indeed the appellant admitted that, at the relevant
time, he was in straightened circumstances and was
indebted to the extent of nearly Rs 30,000; and it
does not appear that when he was faced with
financial difficulties of this magnitude he asked for or
obtained any assistance from his adoptive sister.
That is why the bequests to the appellant's sons also
amount to a suspicious circumstance which must be
clearly explained by the appellant. We cannot easily
reject the argument urged on behalf of Respondent
1 that the bequests have been made in the names of
the appellant's sons because, if they had been made
in his own name, the properties bequeathed would
have been attached and sold at the instance of his
numerous creditors. We do not propose to measure
precisely the value of the properties bequeathed to
the appellant's sons. It would be enough to say that
the said bequests are by no means insignificant or
unsubstantial. Therefore, we are unable to see how
the appellant can successfully challenge the finding
of the High Court that some of the broad features of
the will appear to be improbable and unfair; and if
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that be so, the appellant will have to remove the
suspicions arising from these features before he can
persuade the court to accept the instrument as the
last will and testament of the testatrix.
27. In this connection it is necessary to bear in mind
that the appellant whose sons have received the said
bequests has admittedly taken a very prominent
part in bringing about the execution of the will. He
has prepared the draft and it was at his dictation
that the scribe wrote the will. Indeed on the
important question as to when and how instructions
were given by the testatrix and whether or not in
preparing the draft those instructions have been
faithfully carried out, the only evidence adduced in
the case is that of the appellant and no one else.
Thus, the very important, if not the decisive, part
played by the appellant in the execution of the will
cannot at all be disputed in the present case."
17. It is also to be noted that this Court in the case of
Ramakrishnappa (supra) at paragraph Nos.19 to 21 held as
under;
"19. But, share to her is denied by the
defendant Nos.1 and 3 on the pretext that, during
the lifetime of Kariyappa, he had executed a Will
dated 18.06.1986 as per Ex.D3 bequeathing his half
share in favour of defendant Nos.1 and 3. If the Will,
Ex.D3 is established, then certainly, the plaintiff
would not inherit the property of the father, because
prior to his death, he had bequeathed the property
in favour of defendants 1 and 3. Therefore, the
entire case revolves around the proof of the Will.
Ex.D3 is said to be the Will executed by Kariyappa
and it is registered Will dated 18.06.1986. On every
page, Kariyappa's L.T.M. is said to have been
affixed. The scribe of the Will is DW-3 D.H.Gundu
Rao. One of the attesting witness of the Will is
examined as DW-2 Dongappa. Both these witnesses
has spoken about the execution of the Will.
Therefore, requirement of Section 68 of the Indian
Evidence Act is made. But that by itself will not
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prove the due execution of the Will. In order to
prove the Will, the propounder of the Will has to
prove that on the date of the execution of the Will,
the executant was in a sound state of mind. Further,
if there are any suspicious circumstances
surrounding the execution of the Will, it is his duty
to dis-spell all the suspicious circumstances. If these
two material factors are not established,
notwithstanding the fact that the requirement of
Section 68 has been complied with, it cannot be said
that the Will is proved. The recitals of the Will itself
shows that the executant was aged and the
witnesses have stated that the executant has
crossed the age of 60 years. No doubt, all of them
have stated that he was in a sound state of mind.
They are not competent witnesses to speak about
the sound state of mind. It is on record that he was
an illiterate. Admittedly, he has affixed his L.T.M.
The evidence on record shows that he was not doing
anything without consulting his younger brother. His
younger brother was not doing anything without
consulting his elder brother. In the entire evidence,
we do not see the role of younger brother at all.
Similarly, we do not see the role of DW-1 who are
the beneficiaries under the Will. If the executant was
a simpleton, illiterate and was dependant on his
brother, it is not explained as to how he took a
decision to make a Will. Four or five people from
Chitradurga went to Chitradurga Sub-Registrar office
and instructed the Scribe to prepare a Will and after
preparation of the Will got it registered in the Sub-
Registrar office. The very fact that a serious attempt
is made by the propounder of the Will and their
father not to be seen anywhere in connection with
the registration of the execution of the Will, creates
a suspicion in the mind of the Court. Infact, a
bare comparison of the L.T.M. of the executant on
the three pages with the L.T.M. before the Sub-
Registrar Office gives an impression that, it is not
the same person. There is so much variance in those
two LTMs. The schedule to the Will shows the survey
numbers are correctly mentioned, extent is correctly
mentioned and exact boundaries are given. The
scribe says that, Kariyapa and others who are with
him gave instructions, who are attesting witnesses.
If Kariyappa gave instructions, he being an illiterate,
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how without reference to the documents, he gavee
the particulars is not forthcoming from the evidence
on record. This is yet another suspicious
circumstance. When the relationship with the
members of the family was cordial, why Kariyappa
dis-inherited his daughter while execution of the Will
is not forthcoming. If the evidence of the defendants
is to be believed, plaintiff on coming to know
about the execution of the Will came to her father
and made hue and cry and therefore, Kariyappa
gave 01 acre 20 guntas of land in Sy.No.47/11P.
After that, property has already been the subject
matter of the bequest and if the property is given to
her, then no corrections are made in the Will even to
this date. After the property was given to her,
according to the defendants, she executed an
agreement of sale on 27.11.1990 during the lifetime
of her father for a consideration of Rs.45,000/-. She
received a sum of Rs.20,000/- on the date of the
agreement. Thereafter, she received a sum of
Rs.25,000/- but she did not execute the sale deed in
favour of the defendants till date and the defendants
have not taken any steps for enforcement of the
said agreement. Similarly, it is their case that a
house property is sold. Ex.D5 is a document, which
does not bear her signature and those are all prior
to the execution of the Will. These facts does not
prove the execution of the Will. On the contrary, if
these things have to be believed, and the Will is not
acted upon. If, after the execution of the Will, when
the daughter created a hue and cry, the father was
willing to give property, whey he did not give
property to his daughter before that is also not
proved. Absolutely, the evidence on this aspect is
silent. It is in this context, we have to see the legal
position in order to find out whether the Will is duly
executed or not? The Apex Court in the case of
Venkatachala - vs- Thimmajamma reported in 1959
SC 443 held that:
"19. Sections 67 & 68 is complied with, that
by itself is not sufficient in proof of Will.
Unlike other documents, the Will speaks
from the death of the testator, and so,
when it is propounded or produced before a
Court, the testator who has already
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departed the world cannot say whether it is
his Will or not; and this aspect naturally
introduces an element of solemnity in the
decision of the question as to whether the
document propounded is proved to be the
last Will and testament of the departed
testator. Even so, in dealing with the proof
of Wills, the Court will start on the same
enquiry as in the case of the proof of
documents. The propounder would be
called upon to show by satisfactory
evidence that the Will was signed by the
testator, that the testator at the relevant
time was in a sound and disposing state of
mind, that he understood the nature and
effect of the dispositions and put his
signature to the document of Hon'ble
Supreme Court own free will. Ordinarily,
when the evidence adduced in support of
the will is dis-interested, satisfactory and
sufficient to prove the sound and disposing
state of the testator's mind and his
signature as required by law, Courts would
be justified in making a finding in favour of
the propounder. In other words, the onus
on the propounder can be taken to be
discharged on proof of the essential facts
just indicated.
20. There may, however, be cases in which the
execution of the Will may be surrounded by
suspicious circumstances. The alleged signature of
the testator may be very shaky and doubtful and
evidence in support of the propounder's case that
the signature in question is the signature of the
testator may not remove the doubt created by the
appearance of the signature; the condition of the
testator's mind may appear to be very feeble and
debilitated; and evidence adduced may not succeed
in removing the legitimate doubt as to the mental
capacity of the testator; the dispositions made in the
Will may appear to be un-natural, improbable or
unfair in the light of relevant circumstances; or, the
Will may otherwise indicate that the said dispositions
may not be result of the testator's free will and
mind. In such cases, the Court would naturally
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expect that all legitimate suspicions should be
completely removed before the document is
accepted as the last Will of the testator".
21. Apart from the suspicious
circumstances in some cases, the Will
propounded disclose another infirmity.
Propounders themselves take a prominent
part in the execution of the Wills which
confer on them substantial benefits. If it is
shown that the propounder has taken a
prominent part in the execution of the Will
and has received substantial benefit under
it, that itself is generally treated as a
suspicious circumstances attending the
execution of the Will and the propounder is
required to remove the said suspicion by
clear and satisfactory evidence.
21. In the light of the law laid down by the Apex
Court as aforesaid, mere examining of an attesting
witness and the scribe would not prove the due
execution of the Will. Similarly, because the Will is
registered, no weight could be given to it. A will is not
a compulsory registrable document. When the facts
are not in dispute, the plaintiff is the only daughter of
the deceased testator, when the testator who was in
good terms with his daughter, he dis- inherited
property to his daughter completely, creates a
suspicious circumstance. The propounder of the Will
was duty bound to dis-spell the said suspicious
circumstances, which he has miserably failed to do
so. When the testator was an illiterate person, when
the evidence on record shows that he would not do
anything without consulting his younger brother, how
he executed this Will and who gave him instructions
regarding the execution of the Will, the particulars of
the property is not forthcoming. It is yet another
suspicious circumstance in the case. With naked eye,
the L.T.M. found on the three pages do not tally to
the L.T.M. before the Sub-Registrar. The same is
also not explained. The case, which the defendants
have putforth after executing the Will is not believed
by both the Courts. That by itself would constitute yet
another suspicious circumstance, which the
propounder has failed to dis-spell. Their case shows
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that, after the execution of the Will, their father
wanted to give a share in the property to the plaintiff.
Therefore, it shows that the intention of the testator
was not to deny the property to his daughter. One of
the explanations is that, she was given a house
property at the time of marriage, but no evidence is
placed on record to establish the same. Therefore,
when we look into the entire evidence on record and
the conduct of the parties, the relationship that
existed between the parties prior to the execution of
the Will, it is clear that the Will which is now set up
by the defendants 1 and 3 to deny the legitimate
share of the plaintiff is not proved. The
lower Appellate Court has appreciated the evidence
on record and by reasoned order, has shown how the
Trial Court was not justified in recording the finding
that the Will is proved and it has recorded a finding
that the Will is not proved. I do not find any
justification to interfere with the findings of the lower
Appellate Court, which is based on proper
appreciation of facts and evidence on record."
18. It is also relevant to cite the judgment of the
Hon'ble Supreme Court in the case of Kavita Kanwar Vs.
MRs. Pamela Mehta and Others4, at paragraph Nos.21 to 24
held as under;
21. We have bestowed anxious consideration to the
rival submissions with reference to the law applicable
and have also scanned through all the records
pertaining to this case, including the records of the
Trial Court and the High Court.
WILL - PROOF AND SATISFACTION OF THE COURT
22. As noticed, the basic point for determination in
this appeal is as to whether the Trial Court and the
High Court were justified in declining to grant probate
AIR 2020 SC 2614
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in relation to the Will dated 20.05.2003 as prayed
for. Obviously, a just and proper determination of
this point would revolve around the legal principles
applicable as also the relevant factual aspects of the
case. Before entering into the factual aspects and the
questions in controversy, appropriate it would be to
take note of the applicable legal provisions and
principles concerning execution of a Will, its proof,
and its acceptance by the Court.
23. It remains trite that a Will is the testamentary
document that comes into operation after the death
of the testator. The peculiar nature of such a
document has led to solemn provisions in the
statutes for making of a Will and for its proof in a
Court of law. Section 59 of the Succession Act
provides that every person of sound mind, not being
a minor, may dispose of his property by Will. A Will or
any portion thereof, the making of which has been
caused by fraud or coercion or by any such
importunity that has taken away the free agency of
the testator, is declared to be void under Section
61 of the Succession Act; and further, Section 62 of
the Succession Act enables the maker of a Will to
make or alter the same at any time when he is
competent to dispose of his property by Will. Chapter
III of Part IV of the Succession Act makes the
provision for execution of unprivileged Wills (as
distinguished from privileged Wills provided for in
Chapter IV) with which we are not concerned in this
case.
23.1. Sections 61 and 63 of the Succession Act,
relevant for the present purpose, could be usefully
extracted as under: - "61. Will obtained by fraud,
coercion or importunity.- A Will or any part of a Will,
the making of which has been caused by fraud or
coercion, or by such importunity as takes away the
free agency of the testator, is void.
63. Execution of unprivileged Wills.-Every testator,
not being a soldier employed in an expedition or
engaged in actual warfare, or an airman so employed
or engaged, or a mariner at sea, shall execute his
Will according to the following rules:-
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(a) The testator shall sign or shall affix his mark to
the Will, or it shall be signed by some other person in
his presence and by his direction.
(b) The signature or mark of the testator, or the
signature of the person signing for him, shall be so
placed that it shall appear that it was intended
thereby to give effect to the writing as a Will.
(c) The Will shall be attested by two or more witness,
each of whom has seen the testator sign or affix his
mark to the Will or has seen some other person sign
the Will, in the presence and by the direction of the
testator, or has received from the testator a personal
acknowledgment of his signature or mark, or the
signature of such other person; and each of the
witnesses shall sign the Will in the presence of the
testator, but it shall not be necessary that more than
one witness be present at the same time, and no
particular form of attestation shall be necessary."
23.2. Elaborate provisions have been made
in Chapter VI of the Succession Act (Sections 74 to
111), for construction of Wills which, in their sum and
substance, make the intention of legislature clear
that any irrelevant misdescription or error is not to
operate against the Will; and approach has to be to
give effect to a Will once it is found to have been
executed in the sound state of mind by the testator
while exercising his own free will. However, as
per Section 81 of the Succession Act, extrinsic
evidence is inadmissible in case of patent ambiguity
or deficiency in the Will; and as per Section 89
thereof, a Will or bequest not expressive of any
definite intention is declared void for uncertainty.
Sections 81 and 89 read as under:-
"81. Extrinsic evidence inadmissible in case of patent
ambiguity or deficiency.- Where there is an ambiguity
or deficiency on the face of a Will, no extrinsic
evidence as to the intentions of the testator shall be
admitted.
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89. Will or bequest void for uncertainty.- A Will or
bequest not expressive of any definite intention is
void for uncertainty."
Moreover, it is now well settled that when the Will is
surrounded by suspicious circumstances, the Court
would expect that the legitimate suspicion should be
removed before the document in question is accepted
as the last Will of the testator.
23.3. As noticed, as per Section 63 of the Succession
Act, the Will ought to be attested by two or more
witnesses. Hence, any document propounded as a
Will cannot be used as evidence unless at least one
attesting witness has been examined for the purpose
of proving its execution, if such witness is available
and is capable of giving evidence as per the
requirements of Section 68 of the Evidence Act, that
reads as under: -
"68. Proof of execution of document required by law
to be attested.-If a document is required by law to be
attested, it shall not be used as evidence until one
attesting witness at least has been called for the
purpose of proving its execution, if there be an
attesting witness alive, and subject to the process of
the Court and capable of giving evidence:
Provided that it shall not be necessary to call an
attesting witness in proof of the execution of any
document, not being a Will, which has been
registered in accordance with the provisions of
the Indian Registration Act, 1908 (16 of 1908),
unless its execution by the person by whom it
purports to have been executed is specifically
denied."
24. We may now take note of the relevant principles
settled by the consistent decisions in regard to the
process of examination of a Will when propounded
before a Court of law.
24.1. In the case of H. Venkatachala
Iyengar (supra), a 3-Judge Bench of this Court
traversed through the vistas of the issues related
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with execution and proof of Will and enunciated a few
fundamental guiding principles that have consistently
been followed and applied in almost all the cases
involving such issues. The synthesis and exposition
by this Court in paragraphs 18 to 22 of the said
decision could be usefully reproduced as under:-
"18. What is the true legal position in the matter of
proof of wills? It is well known that the proof of wills
presents a recurring topic for decision in courts and
there are a large number of judicial pronouncements
on the subject. The party propounding a will or
otherwise making a claim under a will is no doubt
seeking to prove a document and, in deciding how it
is to be proved, we must inevitably refer to the
statutory provisions which govern the proof of
documents. S. 67 and 68, Evidence Act are relevant
for this purpose. Under S. 67, if a document is
alleged to be signed by any person, the signature of
the said person must be proved to be in his
handwriting, and for proving such a handwriting
under Ss. 45 and 47 of the Act the opinions of
experts and of persons acquainted with the
handwriting of the person concerned are made
relevant. Section 68 deals with the proof of the
execution of the document required by law to be
attested; and it provides that such a document shall
not be used as evidence until one attesting witness at
least has been called for the purpose of proving its
execution. These provisions prescribe the
requirements and the nature of proof which must be
satisfied by the party who relies on a document in a
Court of law. Similarly, Ss. 59 and 63 of the Indian
Succession Act are also relevant. Section 59 provides
that every person of sound mind, not being a minor,
may dispose of his property by will and the three
illustrations to this section indicate what is meant by
the expression "a person of sound mind" in the
context. Section 63 requires that the testator shall
sign or affix his mark to the will or it shall be signed
by some other person in his presence and by his
direction and that the signature or mark shall be so
made that it shall appear that it was intended
thereby to give effect to the writing as a will. This
section also requires that the will shall be attested by
two or more witnesses as prescribed. Thus the
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question as to whether the will set up by the
propounder is proved to be the last will of the
testator has to be decided in the light of these
provisions. Has the testator signed the will? Did he
understand the nature and effect of the dispositions
in the will? Did he put his signature to the will
knowing what it contained? Stated broadly it is the
decision of these questions which determines the
nature of the finding on the question of the proof of
wills. It would prima facie be true to say that the will
has to be proved like any other document except as
to the special requirements of attestation prescribed
by S. 63 of the Indian Succession Act. As in the case
of proof of other documents so in the case of proof of
wills it would be idle to expect proof with
mathematical certainty. The test to be applied would
be the usual test of the satisfaction of the prudent
mind in such matters.
19. However, there is one important feature which
distinguishes wills from other documents. Unlike
other documents the will speaks from the death of
the testator, and so, when it is propounded or
produced before a Court, the testator who has
already departed the world cannot say whether it is
his will or not; and this aspect naturally introduces an
element of solemnity in the decision of the question
as to whether the document propounded is proved to
be the last will and testament of the departed
testator. Even so, in dealing with the proof of wills
the Court will start on the same enquiry as in the
case of the proof of documents. The propounder
would be called upon to show by satisfactory
evidence that the will was signed by the testator, that
the testator at the relevant time was in a sound and
disposing state of mind, that he understood the
nature and effect of the dispositions and put his
signature to the document of his own free will.
Ordinarily when the evidence adduced in support of
the will is disinterested, satisfactory and sufficient to
prove the sound and disposing state of the testator's
mind and his signature as required by law, Courts
would be justified in making a finding in favour of the
propounder. In other words, the onus on the
propounder can be taken to be discharged on proof of
the essential facts just indicated.
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20. There may, however, be cases in which the
execution of the will may be surrounded by
suspicious circumstances. The alleged signature of
the testator may be very shaky and doubtful and
evidence in support of the propounder's case that the
signature in question is the signature of the testator
may not remove the doubt created by the
appearance of the signature; the condition of the
testator's mind may appear to be very feeble and
debilitated; and evidence adduced may not succeed
in removing the legitimate doubt as to the mental
capacity of the testator; the dispositions made in the
will may appear to be unnatural, improbable or unfair
in the light of relevant circumstances; or, the will
may otherwise indicate that the said dispositions may
not be the result of the testator's free will and mind.
In such cases the Court would naturally expect that
all legitimate suspicions should be completely
removed before the document is accepted as the last
will of the testator. The presence of such suspicious
circumstances naturally tends to make the initial
onus very heavy; and, unless it is satisfactorily
discharged, Courts would be reluctant to treat the
document as the last will of the testator. It is true
that, if a caveat is filed alleging the exercise of undue
influence, fraud or coercion in respect of the
execution of the will propounded, such pleas may
have to be proved by the caveators; but, even
without such pleas circumstances may raise a doubt
as to whether the testator was acting of his own free
will in executing the will, and in such circumstances,
it would be a part of the initial onus to remove any
such legitimate doubts in the matter.
21. Apart from the suspicious circumstances to which
we have just referred in some cases the wills
propounded disclose another infirmity. Propounders
themselves take a prominent part in the execution of
the wills which confer on them substantial benefits. If
it is shown that the propounder has taken a
prominent part in the execution of the will and has
received substantial benefit under it, that itself is
generally treated as a suspicious circumstance
attending the execution of the will and the
propounder is required to remove the said suspicion
by clear and satisfactory evidence. It is in connection
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with wills that present such suspicious circumstances
that decisions of English Courts often mention the
test of the satisfaction of judicial conscience. It may
be that the reference to judicial conscience in this
connection is a heritage from similar observations
made by ecclesiastical Courts in England when they
exercised jurisdiction with reference to wills; but any
objection to the use of the word 'conscience' in this
context would, in our opinion, be purely technical and
academic, if not pedantic. The test merely
emphasizes that, in determining the question as to
whether an instrument produced before the Court is
the last will of the testator, the Court is deciding a
solemn question and it must be fully satisfied that it
had been validly executed by the testator who is no
longer alive.
22. It is obvious that for deciding material questions
of fact which arise in applications for probate or in
actions on wills, no hard and fast or inflexible rules
can be laid down for the appreciation of the evidence.
It may, however, be stated generally that a
propounder of the will has to prove the due and valid
execution of the will and that if there are any
suspicious circumstances surrounding the execution
of the will the propounder must remove the said
suspicions from the mind of the Court by cogent and
satisfactory evidence. It is hardly necessary to add
that the result of the application of these two general
and broad principles would always depend upon the
facts and circumstances of each case and on the
nature and quality of the evidence adduced by the
parties. It is quite true that, as observed by Lord Du
Parcq in Harmes v. Hinkson, 50 Cal W N 895 : (AIR
1946 PC 156), "where a will is charged with
suspicion, the rules enjoin a reasonable scepticism,
not an obdurate persistence in disbelief. They do not
demand from the Judge, even in circumstances of
grave suspicion, a resolute and impenetrable
incredulity. He is never required to close his mind to
the truth". It would sound platitudinous to say so, but
it is nevertheless true that in discovering truth even
in such cases the judicial mind must always be open
though vigilant, cautious and circumspect."
(emphasis supplied)
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24.2. In Rani Purnima Debi (supra), this Court
referred to the aforementioned decision in H.
Venkatachala Iyengar and further explained the
principles which govern the proving of a Will as
follows:-
"5. Before we consider the facts of this case it is well
to set out the principles which govern the proving of
a will. This was considered by this Court in H.
Venkatachala Iyengar v. B. N. Thimmajamma, (1959)
Supp (1) SCR 426: AIR 1959 SC 443. It was
observed in that case that the mode of proving a will
did not ordinarily differ from that of proving any other
document except as to the special requirement of
attestation prescribed in the case of a will by S. 63 of
the Indian Succession Act. The onus of proving the
will was on the propounder and in the absence of
suspicious circumstances surrounding the execution
of the will proof of testamentary capacity and
signature of the testator as required by law was
sufficient to discharge the onus. Where, however,
there were suspicious circumstances, the onus would
be on the propounder to explain them to the
satisfaction of the Court before the will could be
accepted as genuine. If the caveator alleged undue
influence, fraud or coercion, the onus would be on
him to prove the same. Even where there were no
such pleas but the circumstances gave rise to doubts,
it was for the propounder to satisfy the conscience of
the Court. Further, what are suspicious circumstances
was also considered in this case. The alleged
signature of the testator might be very shaky and
doubtful and evidence in support of the propounder's
case that the signature in question was the signature
of the testator might not remove the doubt created
by the appearance of the signature. The condition of
the testator's mind might appear to be very feeble
and debilitated and evidence adduced might not
succeed in removing the legitimate doubt as to the
mental capacity of the testator; the dispositions
made in the will might appear to be unnatural,
improbable or unfair in the light of relevant
circumstances; or the will might otherwise indicate
that the said dispositions might not be the result of
the testator's free will and mind. In such cases, the
Court would naturally expect that all legitimate
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suspicions should be completely removed before the
document was accepted as the last will of the
testator. Further, a propounder himself might take a
prominent part in the execution of the will which
conferred on him substantial benefits. If this was so it
was generally treated as a suspicious circumstance
attending the execution of the will and the
propounder was required to remove the doubts by
clear and satisfactory evidence. But even when where
there suspicious circumstances and the propounder
succeeded in removing them, the Court would grant
probate, though the will might be unnatural and
might cut off wholly or in part near relations."
(emphasis supplied)
24.3. In the case of Indu Bala Bose (supra), this
Court again said,-
"7. This Court has held that the mode of proving a
Will does not ordinarily differ from that of proving any
other document except to the special requirement of
attestation prescribed in the case of a Will by Section
63 of the Succession Act. 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 is 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. In such a case the court
would naturally expect that all legitimate suspicions
should be completely removed before the document
is accepted as the last Will of the testator. If the
propounder himself takes a prominent part in the
execution of the Will which confers a substantial
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benefit on him, that is also a circumstance to be
taken into account, and the propounder is required to
remove the doubts by clear and satisfactory
evidence. If the propounder succeeds in removing the
suspicious circumstances the court would grant
probate, even if the Will might be unnatural and
might cut off wholly or in part near relations.
8. Needless to say that any and every circumstance is
not a "suspicious" circumstance. A circumstance
would be "suspicious" when it is not normal or is not
normally expected in a normal situation or is not
expected of a normal person."
(emphasis supplied)
24.4. We may also usefully refer to the principles
enunciated in the case of Jaswant Kaur (supra) for
dealing with a Will shrouded in suspicion, as follows:
-
"9. In cases where the execution of a will is shrouded
in suspicion, its proof ceases to be a simple lis
between the plaintiff and the defendant. What,
generally, is an adversary 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 led by the propounder of the
will is such as to satisfy the conscience of the court
that the will was duly executed by the testator. It is
impossible to reach such satisfaction unless the party
which sets up the will offers a cogent and convincing
explanation of the suspicious circumstances
surrounding the making of the will."
(emphasis supplied)
24.5. In the case of Uma Devi Nambiar (supra), this
Court extensively reviewed the case law dealing with
a Will, including the Constitution Bench decision of
this Court in the case of Shashi Kumar Banerjee and
Ors. v. Subodh Kumar Banerjee and Ors.: AIR 1964
SC 529, and observed that mere exclusion of the
natural heirs or giving of lesser share to them, by
itself, will not be considered to be a suspicious
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circumstance. This Court observed, inter alia, as
under:-
"15. Section 63 of the Act deals with execution of
unprivileged Wills. It lays down that the testator shall
sign or shall affix his mark to the Will or it shall be
signed by some other person in his presence and by
his direction. It further lays down that the Will shall
be attested by two or more witnesses, each of whom
has seen the testator signing or affixing his mark to
the Will or has seen some other person sign the Will,
in the presence and by the direction of the testator
and each of the witnesses shall sign the Will in the
presence of the testator. Section 68 of the Indian
Evidence Act, 1872 (in short the "Evidence Act")
mandates examination of one attesting witness in
proof of a Will, whether registered or not. The law
relating to the manner and onus of proof and also the
duty cast upon the court while dealing with a case
based upon a Will has been examined in considerable
detail in several decisions of this Court ....... A
Constitution Bench of this Court in Shashi Kumar
Banerjee's case succinctly indicated the focal position
in law as follows: (AIR p. 531, para 4)
"The mode of proving a Will does not ordinarily differ
from that of proving any other document except as to
the special requirement of attestation prescribed in
the case of a Will by Section 63 of the Indian
Succession Act. 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 is 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.
Where the caveator alleges undue influence, fraud
and coercion, the onus is on him to prove the same.
Even where there are no such pleas but the
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 signature of the testator, the
condition of the testator's mind, the dispositions
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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. In such a case the court
would naturally expect that all legitimate suspicion
should be completely removed before the document
is accepted as the last Will of the testator. If the
propounder himself takes part in the execution of the
Will which confers a substantial benefit on him, that
is also a circumstance to be taken into account, and
the propounder is required to remove the doubts by
clear and satisfactory evidence. If the propounder
succeeds in removing the suspicious circumstances
the court would grant probate, even if the Will might
be unnatural and might cut off wholly or in part near
relations."
16. A Will is executed to alter the ordinary mode of
succession and by the very nature of things it is
bound to result in earlier reducing or depriving the
share of natural heirs. If a person intends his
property to pass to his natural heirs, there is no
necessity at all of executing a Will. It is true that a
propounder of the Will has to remove all suspicious
circumstances. Suspicion means doubt, conjecture or
mistrust. But the fact that natural heirs have either
been excluded or a lesser share has been given to
them, by itself without anything more, cannot be held
to be a suspicious circumstance specially in a case
where the bequest has been made in favour of an
offspring. As held in P.P.K. Gopalan Nambiar v. P.P.K.
Balakrishnan Nambiar and Ors.: [1995] 2 SCR 585, it
is the duty of the propunder of the Will to remove all
the suspected features, but there must be real,
germane and valid suspicious features and not
fantasy of the doubting mind. It has been held that if
the propounder succeeds in removing the suspicious
circumstances, the court has to give effect to the
Will, even if the Will might be unnatural in the sense
that it has cut off wholly or in part near relations. .....
In Rabindra Nath Mukherjee and Anr. v . Panchanan
Banerjee (dead) by LRs. and Ors.: AIR 1995 SC
1684, it was observed that the circumstance of
deprivation of natural heirs should not raise any
suspicion because the whole idea behind execution of
the Will is to interfere with the normal line
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of succession and so, natural heirs would be debarred
in every case of Will. Of course, it may be that in
some cases they are fully debarred and in some
cases partly."
24.6. In the case of Mahesh Kumar (supra), this
Court indicated the error of approach on the part of
the High Court while appreciating the evidence
relating to the Will as follows:-
"44. The issue which remains to be examined is
whether the High Court was justified in coming to the
conclusion that the execution of the will dated 10-2-
1992 was shrouded with suspicion and the appellant
failed to dispel the suspicion? At the outset, we deem
it necessary to observe that the learned Single Judge
misread the statement of Sobhag Chand (DW3) and
recorded something which does not appear in his
statement. While Sobhag Chand categorically stated
that he had signed as the witness after Shri
Harishankar had signed the will, the portion of his
statement extracted in the impugned judgment gives
an impression that the witnesses had signed even
before the executant had signed the will.
45. Another patent error committed by the learned
Single Judge is that he decided the issue relating to
validity of the will by assuming that both the
attesting witnesses were required to append their
signatures simultaneously. Section 63(c) of the 1925
Act does not contain any such requirement and it is
settled law that examination of one of the attesting
witnesses is sufficient. Not only this, while recording
an adverse finding on this issue, the learned Single
Judge omitted to consider the categorical statements
made by DW 3 and DW 4 that the testator had read
out and signed the will in their presence and
thereafter they had appended their signatures.
46. The other reasons enumerated by the learned
Single Judge for holding that the execution of will was
highly suspicious are based on mere
surmises/conjectures. The observation of the learned
Single Judge that the possibility of obtaining
signatures of Shri Harishankar and attesting
witnesses on blank paper and preparation of the draft
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NC: 2025:KHC-D:1276
by Shri S.K. Agarwal, Advocate on pre-signed papers
does not find even a semblance of support from the
pleadings and evidence of the parties. If Respondent
1 wanted to show that the will was drafted by the
advocate after Shri Harishankar and attesting
witnesses had signed blank papers, he could have
examined or at least summoned Shri S.K. Agarwal,
Advocate, who had represented him before the Board
of Revenue. ....."
24.7. Another decision cited on behalf of the
appellant in the case of Leela Rajagopal may also be
referred where this Court summarised the principles
that ultimately, the judicial verdict in relation to a
Will and suspicious circumstances shall be on the
basis of holistic view of the matter with consideration
of all the unusual features and suspicious
circumstances put together and not on the impact of
any single feature. This Court said,-
"13. A will may have certain features and may have
been executed in certain circumstances which may
appear to be somewhat unnatural. Such unusual
features appearing in a will or the unnatural
circumstances surrounding its execution will definitely
justify a close scrutiny before the same can be
accepted. It is the overall assessment of the court on
the basis of such scrutiny; the cumulative effect of
the unusual features and circumstances which would
weigh with the court in the determination required to
be made by it. The judicial verdict, in the last resort,
will be on the basis of a consideration of all the
unusual features and suspicious circumstances put
together and not on the impact of any single feature
that may be found in a will or a singular circumstance
that may appear from the process leading to its
execution or registration. This, is the essence of the
repeated pronouncements made by this Court on the
subject including the decisions referred to and relied
upon before us."
24.8. We need not multiply the references to all and
other decisions cited at the Bar, which essentially
proceed on the aforesaid principles while applying the
same in the given set of facts and circumstances.
Suffice would be to point out that in a recent decision
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NC: 2025:KHC-D:1276
in Civil Appeal No. 6076 of 2009: Shivakumar & Ors.
v. Sharanabasppa & Ors., decided on 24.04.2020,
this Court, after traversing through the relevant
decisions, has summarised the principles governing
the adjudicatory process concerning proof of a Will as
follows:-
"1. Ordinarily, a Will has to be proved like any other
document; the test to be applied being the usual test
of the satisfaction of the prudent mind. Alike the
principles governing the proof of other documents, in
the case of Will too, the proof with mathematical
accuracy is not to be insisted upon.
2. Since as per Section 63 of the Succession Act, a
Will is required to be attested, it cannot be used as
evidence until at least one attesting witness has been
called for the purpose of proving its execution, if
there be an attesting witness alive and capable of
giving evidence.
3. The unique feature of a Will is that it speaks from
the death of the testator and, therefore, the maker
thereof is not available for deposing about the
circumstances in which the same was executed. This
introduces an element of solemnity in the decision of
the question as to whether the document propounded
is the last Will of the testator. The initial onus,
naturally, lies on the propounder but the same can be
taken to have been primarily discharged on proof of
the essential facts which go into the making of a Will.
4. The case in which the execution of the Will is
surrounded by suspicious circumstances stands on a
different footing. The presence of suspicious
circumstances makes the onus heavier on the
propounder and, therefore, in cases where the
circumstances attendant upon the execution of the
document give rise to suspicion, the propounder must
remove all legitimate suspicions before the document
can be accepted as the last Will of the testator.
5. If a person challenging the Will alleges fabrication
or alleges fraud, undue influence, coercion et cetera
in regard to the execution of the Will, such pleas
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NC: 2025:KHC-D:1276
have to be proved by him, but even in the absence of
such pleas, the very circumstances surrounding the
execution of the Will may give rise to the doubt or as
to whether the Will had indeed been executed by the
testator and/or as to whether the testator was acting
of his own free will. In such eventuality, it is again a
part of the initial onus of the propounder to remove
all reasonable doubts in the matter.
6. A circumstance is "suspicious" when it is not
normal or is 'not normally expected in a normal
situation or is not expected of a normal person'. As
put by this Court, the suspicious features must be
'real, germane and valid' and not merely the 'fantasy
of the doubting mind.'
7. As to whether any particular feature or a set of
features qualify as "suspicious" would depend on the
facts and circumstances of each case. A shaky or
doubtful signature; a feeble or uncertain mind of the
testator; an unfair disposition of property; an unjust
exclusion of the legal heirs and particularly the
dependants; an active or leading part in making of
the Will by the beneficiary thereunder et cetera are
some of the circumstances which may give rise to
suspicion. The circumstances above-noted are only
illustrative and by no means exhaustive because
there could be any circumstance or set of
circumstances which may give rise to legitimate
suspicion about the execution of the Will. On the
other hand, any of the circumstance qualifying as
being suspicious could be legitimately explained by
the propounder. However, such suspicion or
suspicions cannot be removed by mere proof of
sound and disposing state of mind of the testator and
his signature coupled with the proof of attestation.
8. The test of satisfaction of the judicial conscience
comes into operation when a document propounded
as the Will of the testator is surrounded by suspicious
circumstance/s. While applying such test, the Court
would address itself to the solemn questions as to
whether the testator had signed the Will while being
aware of its contents and after understanding the
nature and effect of the dispositions in the Will?
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NC: 2025:KHC-D:1276
9. In the ultimate analysis, where the execution of a
Will is shrouded in suspicion, it is a matter essentially
of the judicial conscience of the Court and the party
which sets up the Will has to offer cogent and
convincing explanation of the suspicious
circumstances surrounding the Will."
19. On similar lines the Hon'ble Supreme Court in the
case of Murthy and Others (supra) at paragraph Nos.31 to 39
held as under;
31. One of the celebrated decisions of this Court on
proof of a will, reported in AIR 1959 SC 443 is in the
case of H.Venkatachala Iyenger vs.
B.N.Thimmajamma, wherein this Court has clearly
distinguished the nature of proof required for a
testament as opposed to any other document. The
relevant portion of the said judgment reads as
under:-
"18. The party propounding a will or otherwise
making a claim under a will is no doubt seeking to
prove a document and, in deciding how it is to be
proved, we must inevitably refer to the statutory
provisions which govern the proof of
documents. Sections 67 and 68, Evidence Act are
relevant for this purpose. Under Section 67, if a
document is alleged to be signed by any person, the
signature of the said person must be proved to be in
his handwriting, and for proving such a handwriting
under Sections 45 and 47 of the Act the opinions of
experts and of persons acquainted with the
handwriting of the person concerned are made
relevant. Section 68 deals with the proof of the
execution of the document required by law to be
attested; and it provides that such a document shall
not be used as evidence until one attesting witness at
least has been called for the purpose of proving its
execution. These provisions prescribe
the requirements and the nature of proof which must
be satisfied by the party who relies on a document in
a court of law. Similarly, Sections 59 and 63 of the
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NC: 2025:KHC-D:1276
Indian Succession Act are also relevant. Section
59 provides that every person of sound mind, not
being a minor, may dispose of his property by will
and the three illustrations to this section indicate
what is meant by the expression "a person of sound
mind" in the context. Section 63 requires that the
testator shall sign or affix his mark to the will or it
shall be signed by some other person in his presence
and by his direction and that the signature or mark
shall be so made that it shall appear that it was
intended thereby to give effect to the writing as a
will. This section also requires that the will shall be
attested by two or more witnesses as prescribed.
Thus the question as to whether the will set up by the
propounder is proved to be the last will of the
testator has to be decided in the light of these
provisions. Has the testator signed the will? Did he
understand the nature and effect of the dispositions
in the will? Did he put his signature to the will
knowing what it contained? Stated broadly it is the
decision of these questions which determines the
nature of the finding on the question of the proof of
wills. It would prima facie be true to say that the will
has to be proved like any other document except as
to the special requirements of attestation prescribed
by Section 63 of the Indian Succession Act. As in the
case of proof of other documents so in the case of
proof of wills it would be idle to expect proof with
mathematical certainty. The test to be applied would
be the usual test of the satisfaction of the prudent
mind in such matters."
32. 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.
33. In the above noted case, this Court has stated
that the following three aspects must be proved by a
propounder: (Bharpur Singh case, SCC p.696, para
16)
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NC: 2025:KHC-D:1276
"16....(i) that the will was signed by the
testator in a sound and disposing state of
mind duly understanding the nature and
effect of disposition and he put his
signature on the document of his own free
will, and
(ii) when the evidence adduced in support
of the will is disinterested, satisfactory and
sufficient to prove the sound and disposing
state of the testator's mind and his
signature as required by law, courts would
be justified in making a finding in favour of
propounder, and
(iii) if a will is challenged as surrounded by
suspicious circumstances, all such
legitimate doubts have to be removed by
cogent, satisfactory and sufficient evidence
to dispel suspicion. In other words, the
onus on the propounded can be taken to
be discharged on proof of the essential
facts indicated therein."
34. In Jaswant Kaur v. Amrit Kaur and others [1977
1 SCC 369], this Court pointed out that 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.
35. In Bharpur Singh and others v. Shamsher
Singh [2009 (3) SCC 687], at Para 23, this Court has
narrated a few suspicious circumstance, as being
illustrative but not exhaustive, in the following
manner:- (SCC p.699, para 23)
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NC: 2025:KHC-D:1276
"23. Suspicious circumstances like the
following may be found to be surrounded in
the execution of the will:
(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."
36. It was further observed that the circumstances
narrated hereinbefore are not exhaustive. Subject to
offering of a reasonable explanation, existence
thereof must be taken into consideration for the
purpose of arriving at a finding as to whether the
execution of the will had been duly proved or not. It
may be true that the Will was a registered one, but
the same by itself would not mean that the
statutory requirements of proving the will need not
be complied with.
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37. In Naranjan Umeshchandra Joshi v. Mrudula Jyoti
Rao, [(2006) 13 SCC 433], in Paras 34 to 37, this
Court has observed as under:- (SCC pp.447-48)
"34. There are several circumstances
which would have been held to be
described by this Court as suspicious
circumstances:
(i) when a doubt is created in regard to
the condition of mind of the testator
despite his signature on the will;
(ii) When the disposition appears to be
unnatural or wholly unfair in the light of
the relevant circumstances;
(iii) where propounder himself takes
prominent part in the execution of will
which confers on him substantial benefit.
35. We may not delve deep into the decisions cited at
the Bar as the question has recently been considered
by this Courts in B.Venkatamuni v. C.J. Ayodhya Ram
Singh [(2006) 13 SCC 449], wherein this Court has
held that the court must satisfy its conscience as
regards due execution of the will by the testator and
the court would not refuse to probe deeper into the
matter only because the signature of the propounder
on the will is otherwise proved.
36. The proof of a will is required not as a ground of
reading the document but to afford the Judge
reasonable assurance of it as being what it purports
to be.
37. We may, however, hasten to add that there
exists a distinction where suspicions are well founded
and the cases where there are only suspicions alone.
Existence of suspicious circumstances alone may not
be sufficient. The court may not start with a suspicion
and it should not close its mind to find the truth. A
resolute and impenetrable incredulity is not
demanded from the Judge even if there exist
circumstances of grave suspicion."
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38. This Court in Anil Kak v. Sharada Raje, held as
under:- (Bharpur Singh case, SCC p.698, para 20)
"20. This Court in Anil Kak v. Sharada Raje opined
that the court is required to adopt a rational
approach and is furthermore required to satisfy its
conscience as existence of suspicious circumstances
plays an important role, holding:
52. Whereas execution of any other
document can be proved by proving the
writings of the document or the contents
of it as also the execution thereof, in the
event there exists suspicious
circumstances the party seeking to obtain
probate and/or letters of administration
with a copy of the will annexed must also
adduce evidence to the satisfaction of the
court before it can be accepted as
genuine.
53. As an order granting probate is a
judgment in rem, the court must also
satisfy its conscience before it passes an
order.
54. It may be true that deprivation of a
due share by (sic to) the natural heir by
itself may not be held to be a suspicious
circumstance but it is one of the factors
which is taken into consideration by the
courts before granting probate of a will.
55. Unlike other documents, even animus
attestandi is a necessary ingredient for
proving the attestation."
39. Similarly, in Leela Rajagopal and others v.Kamala
Menon Cocharan and others, this Court opined as
under:- (SCC p.576, para 13)
"13. A will may have certain features and
may have been executed in certain
circumstances which may appear to be
somewhat unnatural. Such unusual
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features appearing in a will or the
unnatural circumstances surrounding its
execution will definitely justify a close
scrutiny before the same can be accepted.
It is the overall assessment of the court on
the basis of such scrutiny; the cumulative
effect of the unusual features and
circumstances which would weigh with the
court in the determination required to be
made by it. The judicial verdict, in the last
resort, will be on the basis of a
consideration of all the unusual features
and suspicious circumstances put together
and not on the impact of any single
feature that may be found in a will or a
singular circumstance that may appear
from the process leading to its execution
or registration. This, is the essence of
the repeated pronouncements made by
this Court on the subject including the
decisions referred to and relied upon
before us."
20. Having taken note of the declarations made by the
Hon'ble Supreme Court in the above judgments, it is the duty
of the propounder of the Will to prove the Will beyond
reasonable doubt and suspicious circumstances has to be
removed from the mind of the Court. Mere examining the
witnesses to prove the Will is not sufficient unless same is to be
proved in accordance with Section 63 of the Indian Succession
Act and Section 68 of the Evidence Act. The propounder of the
Will must examine one or more attesting witnesses and onus is
on the propounder of the Will to remove all suspicious
circumstances with regard to the execution of the Will. Applying
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NC: 2025:KHC-D:1276
to the said principle in the case on hand, the plaintiff in OS
No.33/2008, places reliance on the registered Will dated
28.01.1999 (Ex.P15) in which PW2 and PW3 are the attesting
witnesses and deposed about the execution of the Will by the
testator and also seen the execution of Will by the testator. On
the other hand, the Will dated 08.12.2005 (Ex.D5) sought to be
produced by the plaintiff in OS No.36/2008, wherein defendant
Nos.2 and 3 deposed that they have no knowledge regarding
the execution of Will. Undoubtedly, Will dated 08.12.2005
(Ex.D5) is not a registered Will. The testator (Smt. Devi) died
on 20.01.2006 within one month from the execution of Will
according to the plaintiff in OS No.36/2008. The First Appellate
Court after considering the entire material on record and taking
into consideration that Smt. Devaki had executed earlier Will
dated 10.02.1983, which was cancelled and reflected in the
registered Will dated 28.01.1999, which makes it clear that the
plaintiff in OS No.33/2008 has proved the execution of the Will
dated 28.01.1999 in a manner known to law and on the other
hand, the plaintiff in OS No.36/2008 has not proved the
execution of Will by the testator and the said Will is surrounded
with suspicious circumstances and therefore, the Trial Court
- 51 -
NC: 2025:KHC-D:1276
has committed an error in not appreciating the evidence in
right perspective, however, same has been rectified by the First
Appellate Court by re-appreciating the material on record in a
manner known to law under Order 41 Rule 31 of CPC and
therefore, I do not find any acceptable ground to interfere with
the well reasoned judgment and decree passed by the First
Appellate Court. The appellant herein has not made out a case
for formulation of substantial question of law as required under
Section 100 of CPC. Accordingly, appeals are dismissed. The
judgment and decree dated 08.12.2017 in RA No.33/2013 and
RA No.36/2013 on the file of First Appellate Court is herein
confirmed.
Sd/-
(E.S.INDIRESH)
JUDGE
SMM
CT:ANB
