9 Jun 2023 10:29 AM GMT
Q.41 What are the usual occasions for proving a Will and what is the burden which is on the propounder’s shoulder ? Ans. The question of proving a Will can arise in an ordinary civil litigation or before a testamentary Court. When the Will is propounded by any of the parties to a litigation, the burden to prove the same is always on the propounder. This...
Ans. The question of proving a Will can arise in an ordinary civil litigation or before a testamentary Court. When the Will is propounded by any of the parties to a litigation, the burden to prove the same is always on the propounder. This burden becomes heavier if the execution of the Will is surrounded by suspicious circumstances like –
In such circumstances, the Court would ordinarily be reluctant to treat the document as the last will executed by the person with the requisite testamentary capacity, unless the propounder is able to remove the suspicious circumstances and clear the conscience of the Court. In the absence of any suspicious circumstances surrounding the execution of the Will, proof of due execution of the Will and the testamentary capacity as to whether the testator was in a sound disposing mind, are sufficient to discharge the onus on the propounder. But, if any of the vitiating circumstances such as “undue influence”, “fraud”, “misrepresentation”, “coercion”, “collusion” etc are alleged in the execution of the Will propounded, the burden to prove those circumstances will be on those who attack the Will on such grounds. (Vide –
“This was a case where the wife was practically disinherited and there was unexplained delay in producing the will in public. There the alleged will by a testator gave only a life estate to his daughter who was the only child and who was to get some property at her marriage. The bulk of the estate was vested in the widow of the testator and three other women, namely, his mother, his stepmother and his paternal aunt 'These women though entitled under the Hindu Law only to maintenance were made joint owners equally with the widow of the testator. None of the devisees could get the estate partitioned or alienate it for necessity. It was, however, provided that the lady, who survived the other three devisees, would become the absolute owner of the estate. The widow of the testator would not get her husband's estate, if she predeceased any of her codevisees. The will was not produced until 22 years after its execution though there were occasions to produce it, had it been in existence. Considering these circumstances, the Privy Council observed (at p. 104):
"It is most unlikely that a person having a wife and a minor unmarried daughter, who should be the objects of his affection, would make a will which would practically disinherit them.
That the testament is unnatural and runs counter to the ordinary sentiments of persons, having a status in society similar to that of Harbans Lal, cannot be seriously disputed. But this is not the only circumstance which tells against its genuineness. The will purports to have been executed on 24th August 1900, and the testator died within a month of that date. But it is strange that it was not produced until 1922, after the commencement of the present litigation. During this long period of 22 years, which intervened, there were occasions when the widow or her advisers could have produced the document, if it had been in existence; but they did not do so "
“There may, however, be cases in which the execution of the will may be surrounded by suspicions 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. (Vide para 20)
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. (Vide para 21)
Even though from the proof of the signature of the testator or his acknowledgement that he had signed the Will, it can be presumed that the testator knew the provisions of the instrument and affixed his signature thereto, the said presumption can be rebutted by proof of suspicious circumstances. (vide para 39)
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.” (Vide para 20)
“Indian Succession Act, 1925 -- S.63 -- Will -- Execution -- Genuineness -- If a Will has been registered, that is a circumstance which may, having regard to the circumstances, prove its genuineness -- Mere fact that a will is registered will not by itself be sufficient to dispel all suspicion regarding it where suspicion exists, without submitting the evidence of registration to a close examination -- Registration may take place without the executant really knowing what he was registering
Important Para :23
Indian Succession Act, 1925 -- S.63 -- Will -- Execution -- Genuineness -- Testator not making proper provision for his wife and sister depending on him -- Propounder taking part in execution of will -- Signature of testator not appearing to be his usual signature -- Testator in habit of signing blank papers -- Held propounder was required to satisfactorily explain suspicious circumstances before he could get letters of administration -- Held that broad statement of the clerk that he examined the testator who admitted execution of the will was not sufficient to dispel serious suspicion attaching to due execution and attestation of the will
Important Para(s):5, 16, 24
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.” (Vide para 5)
“The learned Additional District Judge had taken the care of observing that the only circumstance brought out was that the defendants who were the beneficiaries under the will, Ext. D1, had taken an active part in its execution. But he rightly observed that, that by itself was not sufficient to create any doubt either about the testamentary capacity of Mst. Pari or the genuineness of the will. It is quite evident that the testatrix was determined in bequeathing the property to her husband's brother's sons to the exclusion of the plaintiff. It is brought out in evidence that the plaintiff had on July 25, 1972 made a report to the Tehsildar alleging that her mother Mst. Pari had been abducted by the defendants and that they were about to get a conveyance executed by her in their favour. Thereafter on August 23, 1972 i.e., just a day before the execution of the will, she instituted a suit being Civil Suit No. 491/72 claiming a declaration of her title as against her mother Mst. Pari. These circumstances taken together clearly give rise to an inference that the plaintiff knew that her mother was about to execute a will and she tried to prevent her from doing so. But this did riot prevent Mst. Pari from executing the will on the next day. After the execution of the will, Mst. Pari admittedly came and lived with the plaintiff till her death on January 1, 1973. If the allegation that the defendants had procured the will by fraud were to be believed, it was but expected, according to the ordinary course of human conduct, that Mst. Pari would have made a report to the authorities against the defendants or revoked the will. The fact remains that she did not execute another will during her lifetime. This evidently shows that the will, Ext. D1, was a genuine will and was intended to be acted upon.” (Vide para 3)
“It is well established that in a case in which a will is prepared under circumstances which raise the suspicion of the court that it does not express the mind of the testator it is for those who propound the will to remove that suspicion. What are suspicious circumstances must he judged in the facts and circumstances of each particular case. If, however, the propounder takes a prominent part in the execution of the will which confers substantial benefits on him that itself is a suspicious circumstance attending the execution of the will and in appreciating the evidence in such a case, the court should proceed in a vigilant and cautious manner. It is observed in Williams on Executors and Administrators", Vol. I, 13th Ed., p. 92 :
"Although the rule of Roman Law that 'Quise scripsit haeredem' could take no benefit under a will does not prevail in the law of England, yet, where the 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."
According to the decision in Fulton v. Andrew, (1875) 7 HL 448, 'those who take a benefit under a will, and have been instrumental in preparing or obtaining it, have thrown upon them the onus of showing the righteousness of the transaction". "There is however no unyielding rule of law (especially where the ingredient of fraud enters into the case) that, when it has been proved that a testator, competent in mind, has had a will read over to him, and has thereupon executed it, all further enquiry is shut out". In this case, the Lord Chancellor, Lord Cairns, has cited with approval the well known observations of Baron Parke in the case of Barry v. Butlin, (1838) 2 Moo PC 480 at p. 482. The two rules of law set out by Baron Parke are :
"first, 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"; "the second is, that, if a party writes or prepares a will under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the court and calls upon 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 propounded does express the true will of the deceased."
“In Sarat Kumari Bibi v. Sakhi Chand, 56 Ind App 62 = ( AIR 1929 PC 45 ) the Judicial Committee made it clear that "the principle which requires the propounder to remove suspicion from the mind of the Court is not confined only to cases where the propounder takes part in the execution of the will and receives benefit under it. There may be other suspicious circumstances attending on the execution of the will and even in such cases it is the duty of the propounder to remove all clouds and satisfy the conscience of the court that the instrument propounded is the last will of the testator".
This view is supported by the following observations made by Lindley and Davey, L. JJ., in Tyrrell v. Painton, 1894 P 151 at pp. 157, 159.
"The rule in (1838) 2 Moo PC 480 1875) 7 HL 948; and Brown v. Fisher (1890) 63 LT 465 is not, in my opinion, confined to the single case in which a will is prepared by or on the instructions of the person taking large benefits under it, but extends to all cases in which circumstances exist which excite the suspicion of the Court; and wherever such circumstances exist, and whatever their nature may be, it is for those who propound the will to remove such suspicion and to prove affirmatively that the testator knew and approved of the contents of the document, and it is only where this is done that the onus is thrown on those who oppose the will to prove fraud or undue influence, or whatever else they rely on to the case made for proving the will."
"It must not be supposed the principle in (1838) 2 Moo PC 480 is confined to cases where the person who prepares the will is the person who takes the benefit under it - that is one state of things which raises a suspicion; but the principle is that wherever a will is prepared under circumstances which raise a well grounded suspicion that it does not express the mind of the testator the Court ought not to pronounce in favour of it unless that suspicion is removed." (Davey L. J.).” (Vide para 6)
“In the light of the above guidelines, the contentions urged against the grant of probate of the Will will have to be considered. Before the Appellate Court eight suspicious circumstances were marshalled which were –
(i) Saraswati Arora who was the sole recipient of the entire benefit of the will herself took part in the execution of the will at the time of execution;
(ii) the dispositions in the will by the testator were unnatural, improbable or unfair as was apparent from the exclusion of the mother Wazir Debi, as well as the exclusion of all the children of Bhim Sain, particularly of Rita, the minor daughter and of Shanta who was at that time unmarried;(iii) none of the attesting witnesses was wholly disinterested;(iv) that no trained lawyer appears to have been engaged in the drawing up or execution of the will;
(v) no special reason could be adduced to explain the execution of the will on February 8, 1961;
(vi) the evidence in support of the will, particularly the evidence of the propounder was unsatisfactory and interested;
(vii) there was evidence to show that some alteration had been made in the date of the will; and
(viii) the attestation clause seems to have been typed in a separate operation after the typed will had been taken out of the typewriter and then reinserted.” (Vide para 8)
NOTE BY VRK: The Trial Court as well as the Appellate Court did not consider the above circumstances to be suspicious and upheld the Will. This was approved by the Supreme Court.
“ It has been said almost too frequently to require repetition that a will is one of the most solemn documents known to law. The' executant of the will cannot be called to deny the execution or to explain the circumstances in which it was executed. It is, therefore, essential that trustworthy and unimpeachable evidence should be produced before the court to establish genuineness and authenticity of the will. It must be stated that the factum of execution and validity of the will cannot be determined merely by considering the evidence produced by the propounder. In order or judge the credibility of witnesses and disengage the truth from falsehood the court is not confined only to their testimony and demeanour. It would be open to the court to consider circumstances brought out in the evidence or which appear from the nature and contents of the documents itself. it would be also open to the court to look into surrounding circumstances as well as inherent improbabilities; of the case to reach a proper conclusion on the nature of the evidence adduced by the party.” (Vide para 20)
“Ratio in Malkani v. Jamadar, AIR 1987 SC 767 was relied on to dissuade this Court from interfering, both, because the finding that Will was genuine, was a finding of fact and omission to mention reason for disinheriting the daughter or taking prominent part by beneficiary by itself was not sufficient to create any doubt about the testamentary capacity was because of misunderstanding of the correct import of the decision and the circumstances in which it was rendered. Property in Malkani's case was land. Beneficiary was nephew as against married daughter. Anxiety in village to protect landed property or agricultural holdings from going out of family is well known. Even though it cannot be said to be hard and fast rule yet when disinheritance is amongst heirs of equal degree and no reason for exclusion is disclosed, then the standard of scrutiny is not the same and if the Courts below failed to be alive to it as is clear from their orders then their orders cannot be said to be beyond review. Although this Court does not normally interfere with findings of fact recorded by Courts below, but if the finding is recorded by erroneous application of principle of law, and is apt to result in miscarriage of justice then this Court will be justified in interfering under Art.136.” (Vide para 4)
“3. The real question with which we are concerned in this appeal is with regard to the validity of the will Ex.B-12. Admittedly, Lakshmi Amma had her share under a maintenance arrangement, Ext. A-2 dated 17-12-41, under which Schedule-A property was given to her and two sons, namely, the appellant and one Kunjappan Nambiar, who predeceased his mother Lakshmi Amma. In the written statement, the appellant had specifically propounded the registered will executed by his mother, Ex.B-12. The Trial Court, as pointed out by the High Court, saw some suspicious features. First, in normal circumstances mother would not have deprived the daughters on her demise to inherit her estate; the secondly, the will, though a registered one, suspicious features created in the case were not removed even by the evidence of DW-1 and 2, there being enormous benefit under the will and no proof of the signature, nor proper proof of thumb impression of DW-2.
NOTE BY VRK: In this context, it is relevant to take into account a three-Judge Bench ruling of the Supreme Court in Girijanandini Devi v. Bijendra Narain Choudhary AIR 1967 SC 1124 - K. N. Wanchoo; J. C. Shah, R. S. Bachawat - JJ.
“we are unable to agree with counsel for the appellants that where the plaintiff sets up a case that a document relied upon by the defendants in support of their case is a fabrication, it is necessary for him either by his original plaint or by amendment therein to formally plead that the document is a fabrication and that unless he does so he is not entitled to ask the Court to try that plea………………..Whether evidence in support of a party's case is reliable may be raised by the other party without incorporating the contention relating thereto in his pleading. If the rule suggested by counsel for the appellants were to be followed, trial of suits would be highly inconvenient, if not impossible, because at every stage where a party contends that the evidence relied upon by the other side is unreliable he would in the first instance be required to amend his pleading and to set up that case. The Code of Civil Procedure does not contemplate any such procedure and in practice it would, if insisted upon be extremely cumbersome and would lead to great delay and in some cases to serious injustice.” (Vide para 12)
“A Will is executed to alter the ordinary mode of succession and by the very nature of things it is bound to result in either reducing or depriving the share of natural heir. 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 especially in a case where the bequest has been made in favour of an offspring. As held in PPK Gopalan Nambiar v. PPK Balakrishnan Nambiar and Others ( JT 1995 (5) SC 163 ). It is the duty of the propounder 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 circumstance, 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 (See Puspavati and Others v. Chandraja Kadamba and Others ( AIR 1972 SC 2492 )). In Rabindra Nath Mukherjee and Another v. Panchanan Banerjee (dead) by LRs. and Others ( 1995 (4) SCC 459 ). 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 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.” (Vide para 15)
“Will -- Proof of genuineness -- Held, has to be proved by primary evidence -- Suspicious circumstances has to be removed and such burden of proof lies on the propounder -- Burden of proof shifts to the person who alleges the Will as forged or was obtained under undue influence or coercion. The argument that the earlier Will by the same testator was signed by him whereas the impugned subsequent Will was only thumb marked by him, showed that he was unconscious at the time of execution of the Will, was not accepted by the Supreme Court and the impugned Will was held to be genuine.”
Important Para(s):10, 13, 14
“Will -- Proof of genuineness regarding -- Held, burden is upon the person making allegation of undue influence or fraud and mere presence of motive is not enough -- Unregistered Will -- Execution of Will by testator in sound and disposing state of mind is purely a question of fact.
Important Para(s):18, 19, 20, 22”
Any Court considering the admissibility of a Will has to first examine whether the plaintiff who seeks Letters of Administration, has prima facie, proved its execution and the testamentary capacity of the testator. (Vide para 6)
“It is settled by a catena of decisions that any and every circumstance is not a suspicious circumstance. Even in a case where active participation and execution of the Will by the propounders/beneficiaries was there, it has been held that that by itself is not sufficient to create any doubt either about the testamentary capacity or the genuineness of the Will. It has been held that the mere presence of the beneficiary at the time of execution would not prove that the beneficiary had taken prominent part in the execution of the Will. This is the view taken by this Court in Sridevi v. Jayaraja Shetty ( 2005 (2) SCC 784 ). In the said case, it has been held that the onus to prove 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 proof of signature of the testator as required by law would not be sufficient to discharge the onus. In case, the person attesting the Will alleges undue influence, fraud or coercion, the onus will be on him to prove the same and that as to what suspicious circumstances which have to be judged in the facts and circumstances of each particular case.” (Vide para 25)
“Mr Narasimha, learned counsel for the respondents, submitted that the natural heirs were excluded and the legally wedded wife was given a lesser share and, therefore, it has to be held to be a suspicious circumstance. We are unable to countenance the said submission. The circumstances of depriving the natural heirs should not raise any suspicion because the whole idea behind the execution of the Will is to interfere in the normal line of succession and so natural heirs would be debarred in every case of the Will. It may be that in some cases they are fully debarred and some cases partly. This is the view taken by this Court in Uma Devi Nambiar v. T.C. Sidhan ( 2004 (2) SCC 321 ).” (Vide para 26)
“Succession Act, 1925 -- S.63 -- Where active participation and execution of the Will by the propounders/beneficiaries was there, that by itself is not sufficient to create any doubt either about the testamentary capacity or the genuineness of the Will
Succession Act, 1925 -- S.63, S.68 -- Will -- Circumstances of depriving the natural heirs -- It should not raise any suspicion -- Whole idea behind the execution of the Will is to be interfered in the normal line of succession.” Important Para(s):26
“The defendant is admittedly residing separately with his family. The plaintiff has deposed before court that he was looking after the affairs of his father and that the father liked him more. Ext. A1 also recites that the executant has become old and he is looked after by the plaintiff and he is therefore desirous of making a testamentary disposition in favour of the plaintiff. In Vrindavanbai Sambhaji Mana v. Ramchandra Vitha Ganeshkar -- 1995 (5) SCC 215 the apex court accepted the circumstance that the propounder used to take care of the testatrix as relevant while upholding the will. It is well settled that all influences are not unlawful. Persuasion, appeals to the affections or ties of kindred, appeals to a sentiment of gratitude for past services or pity for future destitution, are all legitimate influences which could be brought to bear on a testator to persuade him to make a disposition in favour of the propounder (see Naresh Charan v. Parbesh Charan ( AIR 1955 SC 363 ). It has also come out in evidence of the defendant examined as D.W. 1 that the property where he is residing was given to him by his father orally during his lifetime and it is altogether admeasuring 2.10 acres. The defendant has no case that the father had during his lifetime given any property to the respondent/ plaintiff, the elder son. If under these circumstances, the father thought it fit to make some provision for the plaintiff (the elder son) by bequeathing the plaint schedule properties to him that cannot be characterised as an unnatural bequest amounting to a suspicious circumstance. Hence the said testamentary disposition cannot be highlighted as an improvident transaction since the father had made adequate provision for the defendant during his lifetime. Even though the wife of Velu Nair survived him she had not, until her death, complained of any disinheritance during her lifetime and the question as to whether there was any provision made for the wife of Velu Nair, is, therefore, not germane for consideration.” (Vide para 7)
“The only reason attributed in support of the alleged testamentary incapacity of Velu Nair was asthma and stomach ache which can hardly be valid reasons to affect the cognitive faculties of a person. What the law requires is a sound state of mind which is different from a sound state of health. It is not the requirement of law that the testator should have a perfect health. (See Pappo v. Kuruvilla - 1994 (2) KLT 278 ). That apart, there is the evidence furnished by Ext. A2 sale deed by which 8 months after Ext. A1 will Velu Nair had sold another item of property for valid consideration to the brother inlaw of P.W.2 on 27-6- 1978. Nobody has assailed Ext. A2 sale deed on the ground that Velu Nair did not have a sound disposing state of mind to execute the said sale deed. If after Ext. A1 will dated 13-10-1388 Velu Nair was able to execute a sale deed with the requisite state of mind and understanding nearly 9 months thereafter it would be futile for the defendant to contend that Velu Nair was not possessed of the requisite testamentary capacity. In Meenakshiammal v. Chandrasekaran, ( 2005 (1) SCC 280 ), the conduct of the testator disposing of another item of property for consideration shortly before the execution of the impugned will, was taken as proof of his having a sound disposing mind. Even the Trial Court has observed in Para.6 of its judgment that there is no evidence to show that Velu Nair was not in a sound disposing state of mind.” (Vide para 8)
“It is true that the signatures of Velu Nair in the first and 2nd pages of Ext. A1 do differ. But they are within the range of natural variation. No doubt, signature of Velu Nair on the reverse of page 1 of Ext. A1 purportedly made at the time of registration of the document differs from the signatures on pages 1 and 2 of Ext. Al. But then, there is also the thumb impression of Velu Nair. The appellant had no plea or even a statement on oath while in the witness box that the signatures in Ext. A1 are not that of his father or that his father did not execute the document or present the same for registration. What the defendant examined as DW.1 stated before Court was that his suspicion is that Ext. A1 was executed by the father who was not in his proper senses. This is what he says: "What I am suspecting is that Exhibit A1 was written without an adequate memory" The plaintiff has in unequivocal terms pleaded in the plaint that Ext. A1 will was executed and registered by Velu Nair, the father. The specific plea taken in Para.3 of the plaint is that on 13-10-1977 Velu Nair had on his own accord go the will written and had signed the same and got it registered by going to the Sub Registry Office at Wandoor and that it was done with the specific intention of giving the properties to the plaintiff out of his special love and affection towards the plaintiff There is no specific denial in the written statement of the assertion made in the plain that the will was signed by Velu Nair. It, therefore, amounts to an admission within the meaning of O.8 R.5 C.P.C. It is significant to note that eventhough DW.1 claimed that there were several signed papers of his father at home, not one was produced, presumably because he has no dispute regarding the signatures in Ext. A1 will. There is no case in the written statement that Velu Nair did not execute the document. Far from that, the specific plea raised in Para.13 of the written statement was that the plaintiff had taken Velu Nair to the doctor at Wandoor under the pretext of taking him for treatment and had got the will executed and registered. If Ext. A1 was really the product of fabrication by resort to forging the signatures of Velu Nair and getting the same registered by practicing impersonation, then there was no need to take Velu Nair to Wandoor under the pretext of treating him since his participation or involvement would have been unnecessary for concocting a false document. Hence the above plea taken in the written statement only means that the defendant has no dispute regarding the execution or registration of the will. As rightly observed by the lower appellate court, this is a case in which the execution and registration of the will are admitted. He does not deny the signature as well. Under these circumstances, the lower appellate court was fully justified in proceeding on the premise that where the execution of the will is admitted, the burden is on the party who assails the document on the ground of fraud or misrepresentation to substantiate the same. Where the will is attacked on allegations of undue influence, fraud, coercion or importunity, the onus is on such person who attacks the instrument to prove the grounds alleged in support of such attack. (Surendra Pal v. Saraswathi AIR 1974 SC 1999 , Shibu v. Deputy Director of Panchayat 2004 (3) KLT SN 60 , Harmes and Another v. Hinkson, AIR 1946 PC 156 ). The burden of proving undue influence, fraud, collusion, forgery etc. is on the party alleging the same. (Meenakshiammal and Others v. Chandrasekaran and Another (2005 (1) SCC 280). There is no law which says that a testamentary instrument is compulsory registrable. On the contrary, S.18 of the Registration Act, 1908 says that registration of Wills and other documents not compulsorily registrable under S.1 7 thereof, is only optional. Even though the registration of a will is only optional, Velu Nair had thought it fit to get the document registered.’ (Vide para 9)
“Now coming to the alleged absence of the statutory endorsements of the Sub Registrar under S.52, 53 and 60 of the Registration Act, 1908, on Ext. A1, a close scrutiny of the document will show that the document does contain the statutory endorsement of the executant having presented the document for registration and having admitted execution and the identifying witnesses having identified the executant. However, the means employed by the Sub Registry office to incorporate the statutory endorsements has been in the form of ready made seals, but without proper inking. Even the little ink which was on the seal had got smudged rendering it impossible to read the endorsements. It appears that many of the Sub Registry offices are using such ready made seals instead of taking pains to write the statutory endorsements in manuscript form. The affixing of seals has become so ritualistic that least care is taken to ensure that the impression of the seal is properly got affixed on the instrument enabling any person reading the endorsements, to do so without any difficulty. Had proper care been taken in this case, the endorsements could not have been the subject matter of controversy. It is high time that the practice of affixing seals, instead of legibly writing the statutory endorsements on the instruments presented for registration, was discontinued so that the solemn act of statutory compliance by Sub Registrars does not become an empty formality nor does it come up for unsavoury criticism in courts of law. The solemn duty of the Sub Registrar arriving at the requisite satisfaction which he is statutorily enjoined to arrive and if need be, after examining the executant on oath, cannot be delegated to a peon who may mechanically affix a seal prepared in that behalf without knowing the significance or relevance of the same. This is a matter which should engage the attention of the Government. A copy of this judgment shall be forwarded to the Inspector General of Registration, Government of Kerala, Thiruvananthapuram and to the concerned Principal Secretary / Secretary having administrative control over the Registration Department to consider the desirability of dispensing with the unwholesome practice of affixing seals as aforesaid. Even though in view of the decision reported in Judgments Today 1995 (7) SC 177 (Supra), such statutory endorsements by the Sub Registrar can be relied on in proof of the execution of the Will, I am not giving much importance to the same in this case due to the unintelligible nature of those endorsements for the reasons already indicated.” (Vide para 10)
…………………………………………………………………………………………………………………………… “Denial of property to natural heirs or uneven distribution of assets among the heirs under a will etc. do not by themselves constitute suspicious circumstances. The very purpose behind the execution of a will is to disturb the natural order of succession and therefore there cannot be anything unusual about it. (See in this connection Surdaresa Pai and Others v. Mrs. Sumangala T. Pai and Ann ( 2002 KLT 32 ), Madhavi Amma v. Chandrasekharan ( 2004 (3) KLT 60 ), Rabindranath Mukherji v. Panchanan Banerjee ( 1995 (4) SCC 459 ).” (Vide para 12)
“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 demanded from the judge even there exist circumstances of grave suspicion. (See Venkatachala Iyengar (supra).” (Vide para 37)
“23. In the present case the scribe and one of the attesting witnesses to the Will namely Vasu died before the date of examination of the witnesses. The second attesting witness namely Gopalan was also not in good physical condition inasmuch as neither was he able to speak nor was he able to move, the fact which is proved by the deposition of the doctor examined as DW 2. Consequently, as the execution of the Will cannot be proved by leading primary evidence, the propounder i.e. the appellant herein was required to lead secondary evidence in order to discharge his onus of proving the Will as held by this Court to be permissible in Daulat Ram v. Sodha, 2005 KHC 336 : 2005 (1) SCC 40 : AIR 2005 SC 233 : 2005 (2) Mah LJ 170.
24. The only evidence led by appellant - propounder to prove the execution of the Will was by examining DW 4, the son of attesting witness Moolampalli Gopalan and by examining Kolayath Mammed who was an identifying witness to Ext. B3 Will. DW 4 though deposed that the signatures of attesting witness on Ext. B3 are of his father but, however, he did not state that his father was an attesting witness in respect of Ext. B3. On the other hand DW 3 stated that though he knew deceased Chathu but on that day he went to the office of the sub Registrar as an identifying witness for someone else. In his entire deposition there was not even a slightest indication to the fact that he had witnessed the execution of Ext. B3.25. Moreover, no attempt was made by the appellant to prove and establish the mental and physical condition of the testator at the time of execution. Rather the respondent has proved that Chathu, the father of the appellant, was at the time of the alleged execution of the Deed of Will was 82 years of age and he was suffering from serious physical ailments and was not mentally in a good state of mind.26. As against the said evidence led, the evidence led by the appellant cannot be said to be sufficient to satisfy the Court regarding the genuineness and valid execution of the Will. It was also found as a matter of fact by the two Appellate Courts that there was ocean of difference between the signatures of Chathu put on each and every page. In view of the aforesaid suspicious circumstances brought on record regarding the execution of the Will and the same having not been proved in accordance with law, we find no reason to take a different view than what is taken by the first Appellate Court as also by the High Court so far as it concerns the Deed of Will.”
Important Para(s):12, 14, 16, 17”
“Succession Act, 1925 -- S.276 -- Criminal Procedure Code, 1973, S.30 Evidence Act, 1872, S.40, S.41, S.42, S.43 -- Penal Code, 1860, S.24, S.420, S.444, S.468 - Will -- Forgery -- Effect of pendency of a probate proceeding vis a vis a criminal case involving allegations of forgery of a Will ' No relief granted because the criminal case was instituted much prior to initiation of probate proceeding and because of the conduct of the appellant and the stage in which the probate proceedings are pending -- Constitution of India, Art.136. (Vide para 53)
Evidence Act, 1872 -- S.41, S.43 -- S.41 would become applicable only when a final judgment is rendered -- A judgment rendered by a Probate Court is a judgment in rem -- It is binding on all Courts and authorities -- Being a judgment in rem it will have effect over other judgments – A judgment in rem is conclusive in a criminal as well as in a civil proceeding.” (Vide para 41)
“In the instant case, the suspicious circumstance appears to be that when the Will was being executed, the thumb impression over the alleged Will was also taken by the beneficiaries and the document - writer was shown to be scribe of the document, whereas the document was not scribed by him. However, late Phoolbasa Bai although filed written statement before her death, but she did not whisper anything about the Will in the written statement. Admittedly, the Will was allegedly executed in 1977 whereas the written statement was filed some time in 1987. Taking into consideration all these facts, we do not filed any error in the conclusion arrived at by the High Court. The said finding, therefore, needs no interference by this Court.” (Vide para 20)
“Will -- An unfair disposition of property or an unjust exclusion of legal heirs, particularly dependants, is regarded as a suspicious circumstance -- Succession Act, 1925, S.61 and S.63
Will -- An active or leading part in making of Will by beneficiary is regarded as a circumstance giving rise to suspicion but, like any other circumstance, it can well be explained by propounder and / or beneficiary
Will -- When can a Will be viewed with suspicion -- An individual factor may not be decisive but, if after taking all factors together, conscience of Court is not satisfied that Will in question truly represents last wish and propositions of the testator, Will cannot get the approval of Court -- Succession Act, 1925, S.61 and S.63
Important Para(s):27, 28
Will -- When Will is surrounded by suspicious circumstances, Court would expect that legitimate suspicion should be removed before document in question is accepted as the last Will of the testator -- Succession Act, 1925, S.61 and S.63 Important Para(s):23
Will -- If there is an ambiguity or deficiency on the face of a Will, no extrinsic evidence as to intentions of the testator shall be admitted -- Succession Act, 1925, S.81
Held: Handwritten portions carry such formal and legal expressions like "testament" and "set and subscribed my hand", which are the tools of the language employed by a person who is conversant with legal format and requirements for execution of such a document; and, ordinarily, a layperson like the testatrix is not expected to be conversant with them. The printed portion also carries the expressions like "codicil', "give, devise and bequeath", which are not the expressions of a layperson. In the given circumstances, the want of evidence as to who drafted the printed portion and the said note (for copying on the dotted lines) becomes an added factor towards suspicion as to whether the contents of the document in question are, in fact, expressive of the actual desire of the testatrix towards succession of her property. This set of suspicious circumstances concerning the process of execution of the document in question reaches to impenetrable finale by another major part of contradictions in oral evidence. The appellant asserted in her testimony that the testatrix discussed the contents of the Will with the attesting witnesses but both of them (PW-2 and PW- 3) consistently maintained that the contents were not discussed with them. Thus, the appellant has failed to clear the doubts as to whether what is found written in the document in question (both by hand and in print) carry and convey the last wish of the testatrix. Going yet further, when the core contents of the document in question are examined, what we find is another load of several unclear doubts and variety of uncertainties. We would hasten to observe that as per S.81 of the Succession Act, if 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. Thus, everything related with the true intention of testatrix in the present case is to be gathered from the contents of the Will in question itself. Important Para(s):29, 30.”
Q.42 Has the propounder of the Will a duty to satisfy the conscience of the Court in a case where there is no plea taken regarding the suspicious circumstances which are, however, present in the evidence adduced in the case ?
Ans. Yes. Even when there is no plea that the execution of the Will is shrouded by suspicious circumstances, but the circumstances give rise to a doubt, it is on the propounder to satisfy the conscience of the Court. (Vide para 17 of Joseph John Peter Sandy v. Veronica Thomas Rajkumar (2013) 3 SCC 801 = AIR 2013 SC 2028 – Dr. B. S. Chauhan, F. M. Ibrahim Kalifullah – JJ.)
Execution of the Will for the sole benefit of one of the sons of the testator excluding all other children, is not by itself suspicious. (Vide Vedmitraverma v. Dharam Deo Verma (2014) 15 SCC 578 – Ranjan Gogoi, S. A. Bobde - JJ).
Q.43 When by the Will the natural order of succession to the testator is disturbed and legacies have been created in favour of the propounder/beneficiary is not the onus of the propounder heavy to remove the said suspicious circumstance ?
NOTE BY VRK: The extreme view taken in Chukka Reddy v. Lachma Reddy (1969) II S.C.W.R. 605 – 3 Judges –has not been generally accepted. My respectful submission is that merely because the natural order of succession to the testator has been disturbed, it cannot by itself be a suspicious circumstance. The very purpose of executing a Will in certain cases may be to disturb the natural order of succession. Moreover, the above observation runs counter to the verdict of a Constitution Bench of the Supreme Court of India in Shashi Kumar Banerjee v. Subodh Kumar Banerjee AIR 1964 SC 529 = 1964 KHC 465 (SC) – 5
Judges wherein the Supreme Court has observed as follows:- “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.” (Emphasis supplied by me)
In Uma Devi Nambiar v. T.C. Sidhan (2004) 2 SCC 321 = AIR 2004 SC 1772 = 2004 (2) KLT 75 the Apex Court observed as follows:-
“A Will is executed to alter the ordinary mode of succession and by the very nature of things, it is bound to result in either 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 for executing a Will”.
Q.44 Supposing the evidence adduced on the side of the propounder of the Will falls short of an important element of the execution or attestation of the Will, can the Court, instead of non-suiting the propounder, act as a Court of Conscience ?
Ans. Yes. Dealing with technicalities raised while assailing a testamentary disposition, Chief Justice M.C. Chagla speaking for the Division Bench in Vishnu Ramkrishna Wani v. Nathu Vithal Wani AIR 1949 Bombay 266 - M. C. Chagla - CJ and P. B. Gajendragadkar – J,observed as follows:-
“We are dealing with the case of a will and we must approach the problem as a Court of Conscience. It is for us to be satisfied whether the document put forward is the last will and testament of Gangabai. If we find that the wishes of the testatrix are likely to be defeated or thwarted merely by reason of want of some technicality, we as a Court of Conscience would not permit such a thing to happen. We have not heard Mr. Dharap on the other point; but assuming that Gangabai had a sound and disposing mind and that she wanted to dispose of her property as she in fact has done, the mere fact that the propounders of the will were negligent and grossly negligent in not complying with the requirements of Section 63 and proving the will as they ought to have, should not deter us from calling for the necessary evidence in order to satisfy ourselves whether the will was duly executed or not”.
The guiding principle in Section 87 of the Indian Succession Act, 1925 is also no way different. The said Section reads as follows:-
“87. Testator’s intention to be effectuated as far as possible – The intention of the testator shall not be set aside because it cannot take effect to the full extent, but effect is to be given to it as far as possible.
The testator by a Will made on his death-bed bequeathed all his property to CD for life and after his death to a certain hospital. The intention of the testator cannot take effect to the full extent because the gift to the hospital is void under Section 118, but it will take effect so far as regards the gift to CD”.
NOTE BY VRK: One aspect to be noted regarding the above illustration is that after the Supreme Court of India declared Section 118 of the Act to be invalid an unconstitutional in John Vallamattom v. Union of India (2003) 6 SCC 611 = AIR 2003 SC 2902 – 3 Judges, the bequest to the hospital will be valid.
Q.45 What is the course to be adopted by the Court when two constructions, one in favour of and the other against the Will propounded, are reasonably possible ?
Ans. Ordinarily, a construction leading to intestacy is to be avoided in cases where two constructions are reasonably possible.
Where one of the two reasonable constructions would lead to intestacy, that should be discarded in favour of a construction which does not create any such hiatus. (Vide Pearey Lal v. Rameshwar Das AIR 1963 SC 1703 - 4 Judges – S. J. Imam, J. L. Kapur, K. Subba Rao, J. R. Mudholkar - JJ).