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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(s). 7357 OF 2002
Balathandayutham and another ..Appellant(s)
Versus
Ezhilarasan ..Respondent(s)
J U D G M E N T
GANGULY, J.
1.Heard counsel for the parties.
2. The material facts of the case are: Late Mr.
M. Ramachandran, the father of the 1st appellant
as also of the plaintiff-respondent, had three
sons, namely, Balathandayutham (1st appellant),
Ezhilarasan (plaintiff-respondent) and one
Gnanavoli and two daughters – Kalai Arasi and
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Isai Amudhu and his wife was Nachiar Ammal. It
is not in dispute that Ramachandran acquired
certain properties and in his lifetime he
executed a Will which was registered on
25.09.1972. By the said Will he bequeathed
certain properties, from the income of which
Seva Puja and maintenance of Sri Bala Murugan
Temple was to be conducted. In respect of his
other properties he bequeathed the same in
favour of plaintiff-respondent and his other
son Gnanavoli and two daughters and giving his
wife life interest.
3. Insofar as the 1st appellant is concerned, no
property was bequeathed to him, inter alia, on
the ground that after education he was staying
apart and had not shown any interest in the
family members. The case in the plaint is that
since the 1st appellant, the elder brother of
the plaintiff-respondent, left the family after
his education and married another woman
belonging to some other caste without the
consent of the parents, no provision in the
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Will dated 25.09.1972 was made by the testator
in favour of the 1st appellant. The testator
Ramachandran died on 23.5.1980 and after his
death, the plaintiff-respondent was in
exclusive possession of the property. At that
stage the 1st appellant tried to disturb the
possession of the plaintiff-respondent with the
help of some anti social elements. This led to
the filing of the suit. In the suit, the stand
of the 1st appellant was that Will dated
25.09.1972 was not genuine and the said Will
had been revoked by Ramachandran by another
Will dated 25.4.1980 and also thereafter by
another Will dated 2.5.1980. Both the
appellants claimed their rights under the so-
called subsequent Wills. In his rejoinder,
plaintiff-respondent claimed that the so-called
subsequent Wills dated 25.4.1980 and 2.5.1980
are fabricated and at the relevant point of
time Ramachandran was bedridden and did not
have the capacity to execute any Will as he
died within a few days thereafter on 23.5.1980.
The Trial Court dismissed the suit upholding
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the contention of the 1st appellant. The First
Appellate Court, however, allowed the appeal
and decreed the suit. The stand of the 1st
appellant herein, before the First Appellate
Court, was that Will dated 25.09.1972 was not a
genuine one and was revoked by the subsequent
Will dated 25.4.1980.
4. On these facts the learned First Appellate
Court held, when the execution of a Will
asserted by one party is denied by the other
party, then the burden is on the party who
relies on the Will to prove its execution. But
when execution of the Will is not denied then
no burden is cast on the party who relies on a
Will to prove its execution. Relying on the
aforesaid principle, the First Appellate Court
held, and in our view rightly, that the
existence of the first Will dated 25.09.1972
has been admitted. But the appellants’ case is
that the same has been revoked. However, there
is no attesting witness to prove Ex.B-19 dated
2.5.1980 and Ex.B-20 dated 25.4.1980, which are
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the two subsequent Wills. The First Appellate
Court also noted that it was admitted that the
subsequent Will dated 25.4.1980 is an
unregistered one and attestors to the said Will
were alive even though scribe was not alive.
It was also admitted by the appellant that
testator was not well for about four months
prior to his death. Admittedly Ex.B-19 and
Ex.B-20 were allegedly executed when the
testator was unwell. On those facts the learned
First Appellate Court held that the subsequent
two Wills being Ex.B-19 and Ex.B-20 were not
proved.
5. The High Court held that the finding given by
the First Appellate Court that Ex.B-19 and
Ex.B-20 cannot be said to have been proved in
view of non-compliance with the mandatory
requirement under Sections 68 and 69 of the
Indian Evidence Act is a correct finding. The
High Court found that the first Will which was
executed in 1972 (Ex.A1) was executed while the
testator was residing with the plaintiff and
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his wife and another son in joint family in his
residential house at Villupuram but the
subsequent two Wills Ex.B-19 and
Ex.B-20 were executed at Cuddalore where the 1st
appellant was residing. The fact remains that
in the first Will no provision was made for the
1st appellant but in the second two Wills
provisions were made in favour of the 1st
appellant and they were allegedly executed when
the testator was staying in the house of the 1st
appellant. These two Wills were also executed a
couple of weeks prior to the death of the
testator.
6. At this juncture, the case made out by the
plaintiff-respondent is very relevant.
Plaintiff’s case is that his father, the
testator, went to a temple for attending a
function and from there testator was taken by
the 1st appellant to Cuddalore and coming to
know this fact the plaintiff-respondent went to
the house of the 1st appellant and the
plaintiff-respondent went there and took the
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testator back to his house at Villupuram where
he was staying all these years and where he
ultimately died. Therefore, both the
subsequent Wills, namely, Ex.B-19 and Ex.B-20
were allegedly executed by the testator a
couple of weeks before his death and when he
was made to stay in the house of the 1st
appellant. It appears that the attestors of
both the aforesaid two Wills were all of
Cuddalore and were strangers to the family.
Those two Wills surfaced only at the time when
the 1st appellant gave his written statement in
1994 in the suit filed by the plaintiff-
respondent. According to our judgment, these
are suspicious circumstances surrounding Ex. B-
19 and Ex.B-20.
7. The High Court also found on analyzing the
aforesaid facts that there are suspicious
circumstances surrounding the execution of
Ex.B-19 and Ex.B-20 and they are required to be
dispelled by the appellant. The statutory
requirements under Section 68 of the Evidence
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Act and under Section 63 of Indian Succession
Act are to be fulfilled which have not been
done. In this case not a single attesting
witness of Ex.B-19 and Ex.B-20 has been
examined.
8. This Court also thinks that in view of the
discussion made herein above that both the
Ex.B-19 & Ex.B-20 are surrounded by various
suspicious circumstances. When a Will is
surrounded by suspicious circumstances, the
person propounding the Will has a very heavy
burden to discharge. This has been
authoritatively explained by this Court in the
case of H. Venkatachala Iyengar v. B.N.
Thimmajamma & Ors, AIR 1959 SC 443. Justice
P.B. Gajendragadkar, as His Lordship then was,
in para 20 of the judgment, speaking for the
Three Judge Bench in H. Venkatachala (supra)
held that in a case where testator’s mind is
feeble and he is debilitated and there is not
sufficient evidence as to the mental capacity
of the testator or where the deposition in the
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Will is unnatural, improbable or unfair in the
light of the circumstances or it appears that
the bequest in the Will is not the result of
testator’s free will and mind, the Court may
consider that the Will in question is encircled
by suspicious circumstances.
9. Going by this test, as we must, we find that
both the Wills, Ex.B-19 & Ex.B-20 are
surrounded by suspicious circumstances. The
ratio in H. Venkatachala (supra) is that in
such a situation 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 circumstance
naturally tends to make the initial onus very
heavy; and, unless it is satisfactorily
discharged, Courts will be reluctant to treat
the document as the last Will of the testator.”
[see page 452]
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10. Following the aforesaid principle, this Court
is constrained to hold that the appellants did
not succeed in discharging its onus of removing
the suspicious circumstances surrounding Ext
B19 & B20. As such there is no reason for us to
find any error in the judgment of the High
Court.
11. In so far as execution of the Will is
concerned, under Section 63 of the Indian
Succession Act, 1925 it has to be attested by
two or more witnesses, 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 of 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. Section
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68 of the Indian Evidence Act, 1872 further
provides 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 is capable
of giving evidence. There is a proviso under
Section 68 but we are not concerned with the
proviso here.
12. Commenting on these provisions, this Court in
H. Venkatachala (supra) laid down that 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. It was
further held that Section 63 of Indian
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Succession Act 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 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.
[see pg 451]
13. The law thus laid down in H. Venkatachala
(supra) is still holding field and this Court
has followed the same in various other
judgments. [See Madhukar D. Shende v. Tarabai
Aba Shedage, (2002) 2 SCC 85; Niranjan
Umeshchandra Joshi v. Mrudula Jyoti Rao and
others., (2006) 13 SCC 433 and Savithri and
Others v. Karthyayani Amma and Others, (2007)
11 SCC 621]
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14. On consideration of the aforesaid materials,
the High Court affirmed the finding of the
First Appellate Court that Ex.B-19 and Ex.B-20
have not been proved. The High Court, in our
judgment, was right in not interfering with
those findings in the second appeal as no
substantial question of law has been
erroneously decided by the First Appellate
Court.
15. We also affirm the aforesaid finding of the
High Court and dismiss this appeal leaving the
parties to bear their own costs.
…………………..J.
(G.S. SINGHVI)
…………………..J.
(ASOK KUMAR GANGULY)
New Delhi
April 16, 2010
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Related articles
- Indian Succession Act, 1925; Ss. 2(f), 2(h), 63, 211, 212, 213, 214, 218, 219, 220, 221, 227, 235, 263, 273, 278, 297, 307 and 332: Testator bequeathing property in dispute to his son from third wife ignoring other legal heirs-Grant of probate/Letter of (advocatemmmohan.wordpress.com)
- will deed= suspicious circumstances = alterations =Sections 63 and 71 of the Act which have bearing on the decision of the first question read as under: “63. Execution of unprivileged Wills.- Every testator, not being a s (advocatemmmohan.wordpress.com)
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