Mere Exclusion Of Sibling From Will Not A Ground To Suspect Its Genuineness : Supreme Court

While dealing with the validity of a Will, the Supreme Court observed that a mere exclusion of a sibling per se from the Will would not create a suspicion against it, unless it is surrounded by other suspicious circumstances.The Court stated that a testamentary court is not a "court of suspicion" but a "court of conscience" that has to consider relevant materials instead of adopting ethical reasoning.In this case, the Will was registered and its execution was admitted. The bench of Justices SK Kaul and MM Sundresh in the present case was dealing with an appeal against a judgment of the High Court which had doubted the genuineness of a Will upon which the appellant was basing his claim by observing that there was no logic for excluding the appellant's siblings from the Will and that evidence by the attesting witness was not sufficient enough to remove the suspicion around the Will (Exhibit P4). The Top Court while setting aside the High Court's judgement in V Prabhakara v Basavaraj K (Dead) by LR and Another. observed that, "A testamentary court is not a court of suspicion but that of conscience. It has to consider the relevant materials instead of adopting ethical reasoning. A mere exclusion of either brother or sister per se would not create a suspicion unless it is surrounded by other circumstances creating an inference. In a case where a testatrix is accompanied by the sister of the beneficiary of the Will and the said document is attested by the brother, there is no room for any suspicion when both of them have not raised any issue." Factual Background A registered will (exhibit P4) was executed in favour of V Prabhakara ("appellant" in the present case) by Ms Jessie Jayalakshmi ("deceased") on September 4, 1985, who had adopted the appellant as her son. The will was attested by the Appellant's brother (Mr Vijay Kumar) and even the deceased was brought to the sub registrar's office. Although the deceased and her husband (Respondent No 1) obtained a divorce decree on March 26, 1988, her husband was permitted to reside in the suit property. The appellant filed a suit for declaration and possession of when the deceased's husband and her son (Respondent No 2) refused to vacate the suit property (residential house for which appellant paid all statutory dues.) Case Before Trial Court Before the trial court, the Respondents acknowledged the factum of execution of the registered will (exhibit P4) but introduced an unregistered will (exhibit D1) which was allegedly executed between the deceased and respondent no 2. It was also their contention that D1 spoke about the mortgage between the deceased and her husband upon payment of Rs 31,000 in the deceased's favour. The trial court on December 11, 2003, decreed the suit after being satisfied that to prove exhibit P4 (registered will) parameters u/s 63 of the Indian Succession Act r/w section 68 of the Indian Evidence Act,1872 were complied with. The court also gave reasons while doubting the genuineness of exhibit D1. Case Before High Court Aggrieved, the Respondents approached the High Court invoking section 96 of Code of Civil Procedure, 1908. Although the High Court affirmed the reasons for doubting the genuineness of the unregistered will (exhibit D1), the High Court entertained a suspicion and dismissed the suit while allowing the appeal. The High Court observed that there was no logic for excluding the appellant's siblings from the will and that evidence by attesting witness was not sufficient enough to remove the suspicion around exhibit P4. The appellant had also filed an application for review which was dismissed by the High Court on November 23, 2007. Aggrieved, the appellant approached the Top Court. Counsel's Contentions The appellant's counsel contended that exhibit P4 was a registered document that was deposed by the appellant's brother and an attesting witness. He also contended that the fact that the appellant's sister accompanied the deceased showed that the will was registered properly. The counsel also contended that there was no pleading disputing exhibit P4 and that the High Court created its own suspicion. On the other hand, the Respondent's counsel contended that the question as to whether there existed a suspicious circumstance was a fact that could not be adjudicated by invoking Article 136. It was also the counsel's contention that there was no reason for exclusion of the appellant's siblings from the will. Relying on the judgements in Joseph Antony Lazarus (Dead) byLRs v A.J. Francis, (2006) 9 SCC 515 and Mahesh Kumar (Dead) By LRs v Vinod Kumar & Ors., (2012) 4 SCC 387 the counsel submitted that the first appellate court had got adequate jurisdiction to satisfy itself on the suspicion surrounding exhibit P4. Supreme Court's Observations Considering that the conduct of a party would be construed as a fact under section 8...

Mere Exclusion Of Sibling From Will Not A Ground To Suspect Its Genuineness : Supreme Court

Shruti Kakkar

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