Propounder Taking Prominent Part In Will's Execution & Getting Substantial Benefit Raises Suspicions, Must Be Dispelled: Supreme Court

The Supreme Court ruled that a propounder who substantially benefits from a Will and participates in its execution raises suspicion, which must be dispelled with clear evidence. The propounder is expected to testify about the proper execution, the presence of attesting witnesses, and other key details. The Court further held that under Section 68 of the Indian Evidence Act, 1872, presenting one attesting witness is insufficient to prove execution unless they confirm the presence and actions of the other attesting witnesses.“we find that only Shri Nilmohan Sarkar who is one of the attesting witnesses has let in his evidence as DW-3. On a reading of the said evidence, it becomes apparent that he has not mentioned in his examination-in-chief as to who the other attesting witnesses of the said testament was, whether they were present at the time when he attested the Will or it was done in their absence and no other details with regard to the attestation of the Will has been mentioned by the said witness in the course of his examination-in-chief. In his cross-examination also, he has demonstrated his ignorance about the date of execution of the Will; the place of his drafting and other such crucial details. He has however, denied that there was a collusion between defendant No.1 and the advocate's clerk and the Will was prepared giving a retrospective date.”, the Court said.The bench comprising Justice BV Nagarathna and Justice N Kotiswar Singh was hearing the case pertaining to a dispute over the partition of ancestral and self-acquired properties. The properties involved were allotted to the family by the State Government and subsequently inherited by the parties.The plaintiff/appellant filed a suit seeking a partition of the suit property, which was contested by the defendant/respondent contending that the part of the suit property owned by Kanaki Bala Ghosh had been bequeathed to them by way of an unprivileged Will, therefore the trial court's decision not recognizing the Will and granting 1/6th share in the suit property to the plaintiff was wrong.The High Court reversed the trial court's decision and upheld the validity of the Will recognizing the respondent's absolute right in the property.Challenging the High Court's decision, the plaintiff/Appellant approached the Supreme Court contending that the High Court erred in validating the Will since the Will was not proved as per Section 63 of the Hindu Succession Act read with Section 68 of the Evidence Act. The Appellant argued that, although one of the attesting witnesses (DW-3) testified in court about the Will under Section 68 of the Evidence Act, the witness failed to identify the other attesting witnesses, confirm their presence during attestation, or provide details of the attestation process. Moreover, the propounder of the Will (DW-2) claiming to have witnessed the attesting witnesses signing the Will, also failed to prove the particulars of the Will and the witnesses who signed the Will.Overturning the High Court's decision, the Court upheld the Appellant's argument that, although one attesting witness testified, their testimony did not confirm the presence or signatures of the other witnesses during the attestation.The Court also observed that when the propounder of the Will (DW-1), during his examination-in-chief, claimed to have witnessed the attesting witnesses signing the Will, it was expected of him to specify the identities of those witnesses. However, DW-1 failed to provide any details to establish that there were at least two attesting witnesses who had attested the Will."Even though only one attesting witnesses was called to let in evidence in the matter, at least the propounder of the Will ought to have testified with regard to the proper execution of the Will inasmuch as details regarding the presence of the attesting witnesses at the time of the execution of the will and other crucial details are conspicuous by their absence. In the circumstances, we find that the evidence let in by the propounder of the Will is lacking in material particulars so as to come to a conclusion that there has been proof of the Will.", the court observed.Reference was drawn to the case of H. Venkatachala Iyengar v. B.N. Thimmajamma (1959), where the Court speaking through Gajendragadker J. outlined the rigorous standards for proving a Will. The Court observed that suspicious circumstances, such as when the propounder benefits substantially from Will, must be resolved by leading clear and cogent evidence."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...

Propounder Taking Prominent Part In Will's Execution & Getting Substantial Benefit Raises Suspicions, Must Be Dispelled: Supreme Court

Yash Mittal

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