# MURTHY & ORS v. C. SARADAMBAL & ORS

- **Citation:** [2021] 14 S.C.R. 836
- **Court:** Supreme Court of India
- **Decided:** 2021-12-10
- **Case number:** Civil Appeal No. 4270 of 2010
- **Bench:** L. Nageswara Rao, B. V. Nagarathna
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/murthy-ors-v-c-saradambal-ors-35371
- **Pages:** 27

## Headnote

Will: Suspicious circumstances in execution of will - Bequest
made in the name of testator's son to the exclusion of testator's
daughters - Testator's son lived for eleven years after the death of
their father - Petition seeking Letters of Administration filed fifteen
years after the death of the testator by wife of testator's son -
Daughters of testator defendants sought for dismissal of the petition
on the ground that the will was fabricated - Held: It is highly
improbable that the only son of the testator who was a practicing
advocate and on whom the bequest of the house was made, was
unaware of the execution of the will by his father - It is unnatural
that the father would not have disclosed to his only son about the
bequest of the property and had also not taken his son's assistance
in the drafting as well as execution of the will - The testator had
suffered a paralytic stroke which had affected his speech, mobility
of his right arm and right leg and he was bedridden for a period of
ten months prior to his death - Taking these circumstances into
consideration, a doubt is created as to whether the testator was in a
sound and disposing state of mind at the time of making of the
testament which was fifteen days prior to his death - The said
suspicion in the mind of the Court has not been removed by the
propounder of the will i.e. first plaintiff by producing any contra
medical evidence or the evidence of the doctor who was treating
the testator prior to his death - Testator had himself stated in the
alleged will that he was sick and getting weak even then he is stated
to have "written" the will himself which is not believable - s.63 of
the Succession Act, 1925 categorically states that the testator has
to sign on the will and the signature of the testator must be such
that it would "intend" thereby to give effect to the writing of a will
- Hence, the genuineness of the will must be proved by proving the
intention of the testator to make the testament and for that, all steps
which are required to be taken for making a valid testament must be
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proved by placing concrete evidence before the Court - There is no
evidence as to whom the testator gave instructions to write the will
- The scribe was also not examined - In order to prove the execution
of the document such as a testament, at least one of the attesting
witnesses who had attested the same must be called to give evidence
for the purpose of proof of its execution - One attestor had died -
The second attestor, PW2 had given his evidence - PW2 deposed
that the will could not be registered as the testator was unwell and
in fact, he was bedridden - His deposition was rather fatal to the
case of the beneficiary of the Will - Trial Court had also not believed
the evidence of PW2 - Respondents-plaintiffs were not successful
in proving the validity of the will in accordance with law inasmuch
as the suspicious circumstances surrounding the very execution of
the will were not cleared by any cogent evidence, rather, the
genuineness of will remained in doubt - The alleged Will not being a
valid document in the eye of law, no Letters of Administration can be
granted to the respondents-plaintiffs - Succession Act, 1925 - s.63.
Judgment/Order: Reasoned order - Duty of Appellate court
while affirming, modifying or reversing the judgment of lower court
- Held: The Appellate Court has jurisdiction to reverse, affirm or
modify the findings and the judgment of the Trial Court - However,
while reversing or modifying the judgment of a Trial Court, it is the
duty of the Appellate Court to reflect in its judgment, conscious
application of mind on the findings recorded supported by reasons,
on all issues dealt with, as well as the contentions put forth, and
pressed by the parties for decision of the Appellate Court - No
doubt, when the Appellate Court affirms the judgment of a Trial
Court, the reasoning need not to be elaborate although reappreciation of the evidence and recon

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SUPREME COURT REPORTS
[2021] 14 S.C.R.
[2021] 14 S.C.R. 836
836
MURTHY & ORS.
v.
C. SARADAMBAL & ORS.
(Civil Appeal No. 4270 of 2010)
DECEMBER 10, 2021
[L. NAGESWARA RAO AND B. V. NAGARATHNA, JJ.]
Will: Suspicious circumstances in execution of will - Bequest
made in the name of testator's son to the exclusion of testator's
daughters - Testator's son lived for eleven years after the death of
their father - Petition seeking Letters of Administration filed fifteen
years after the death of the testator by wife of testator's son -
Daughters of testator defendants sought for dismissal of the petition
on the ground that the will was fabricated - Held: It is highly
improbable that the only son of the testator who was a practicing
advocate and on whom the bequest of the house was made, was
unaware of the execution of the will by his father - It is unnatural
that the father would not have disclosed to his only son about the
bequest of the property and had also not taken his son's assistance
in the drafting as well as execution of the will - The testator had
suffered a paralytic stroke which had affected his speech, mobility
of his right arm and right leg and he was bedridden for a period of
ten months prior to his death - Taking these circumstances into
consideration, a doubt is created as to whether the testator was in a
sound and disposing state of mind at the time of making of the
testament which was fifteen days prior to his death - The said
suspicion in the mind of the Court has not been removed by the
propounder of the will i.e. first plaintiff by producing any contra
medical evidence or the evidence of the doctor who was treating
the testator prior to his death - Testator had himself stated in the
alleged will that he was sick and getting weak even then he is stated
to have "written" the will himself which is not believable - s.63 of
the Succession Act, 1925 categorically states that the testator has
to sign on the will and the signature of the testator must be such
that it would "intend" thereby to give effect to the writing of a will
- Hence, the genuineness of the will must be proved by proving the
intention of the testator to make the testament and for that, all steps
which are required to be taken for making a valid testament must be
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proved by placing concrete evidence before the Court - There is no
evidence as to whom the testator gave instructions to write the will
- The scribe was also not examined - In order to prove the execution
of the document such as a testament, at least one of the attesting
witnesses who had attested the same must be called to give evidence
for the purpose of proof of its execution - One attestor had died -
The second attestor, PW2 had given his evidence - PW2 deposed
that the will could not be registered as the testator was unwell and
in fact, he was bedridden - His deposition was rather fatal to the
case of the beneficiary of the Will - Trial Court had also not believed
the evidence of PW2 - Respondents-plaintiffs were not successful
in proving the validity of the will in accordance with law inasmuch
as the suspicious circumstances surrounding the very execution of
the will were not cleared by any cogent evidence, rather, the
genuineness of will remained in doubt - The alleged Will not being a
valid document in the eye of law, no Letters of Administration can be
granted to the respondents-plaintiffs - Succession Act, 1925 - s.63.
Judgment/Order: Reasoned order - Duty of Appellate court
while affirming, modifying or reversing the judgment of lower court
- Held: The Appellate Court has jurisdiction to reverse, affirm or
modify the findings and the judgment of the Trial Court - However,
while reversing or modifying the judgment of a Trial Court, it is the
duty of the Appellate Court to reflect in its judgment, conscious
application of mind on the findings recorded supported by reasons,
on all issues dealt with, as well as the contentions put forth, and
pressed by the parties for decision of the Appellate Court - No
doubt, when the Appellate Court affirms the judgment of a Trial
Court, the reasoning need not to be elaborate although reappreciation of the evidence and reconsideration of the judgment
of the Trial Court are necessary concomitants - But while reversing
a judgment of a Trial Court, the Appellate Court must be more
conscious of its duty in assigning the reasons for doing so - In the
instant case, High Court has dealt with the judgment of the Trial
Judge in a short cut method, bereft of all reasoning while reversing
the judgment of the Trial Court both on facts as well as law.
Judgment/Order: Duty of Appellate court, while reversing the
judgment of lower court - Held: While writing a judgment of
reversal, an Appellate Court must remain conscious of two principles
- Firstly, the findings of facts based on conflicting evidence arrived
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at by the Trial Court must weigh with the Appellate Court, more so
when the findings are based on oral evidence recorded by the same
Presiding Judge who authors the judgment - If, on an appraisal of
the evidence, it is found that the judgment of the Trial Court suffers
from a material irregularity or is based on inadmissible evidence or
on conjectures and surmises, the Appellate Court is entitled to
interfere with the finding of fact but by assigning cogent reasons
for doing so - Otherwise, the findings of the Trial Court should not
be interfered with lightly on a question of fact - Secondly, while
reversing a finding of fact, it is necessary that the Appellate Court
assigns its own reasons for doing so - This is especially so in case
there are further appeals under s.100, CPC, as the first Appellate
Court is the final court of facts and the said findings are immune
from challenge in a second appeal.
Appeal: Right to file appeal - Held: Right to appeal is a
creature of statute - The right to file an appeal by an unsuccessful
party assailing the judgment of the Original Court is a valuable
right and hence a duty is cast on the Appellate Court to adjudicate
a first appeal both on questions of fact and applicable law - Hence,
the re-appreciation of evidence in light of the contentions raised by
the respective parties and judicial precedent and the law applicable
to the case have to be conscientiously dealt with.
Allowing the appeal, the Court
HELD: 1. The respondents-plaintiffs have failed to prove
the will (Ex-P1) in accordance with law inasmuch as they have
not removed the suspicious circumstances, surrounding the
execution of the will. Hence, Ex-P1, not being a valid document
in the eye of law, no Letters of Administration can be granted to
the respondents-plaintiffs. The Trial Judge was right in dismissing
the suit. However, the Appellate Court being the Division Bench
has reversed the judgment and decree passed by the Trial Court
and has decreed the suit. The judgment of the Appellate Court
was written in a cryptic manner. It is observed that the judgment
could be brief and succinct if the Appellate Court is to dismiss an
appeal and affirm the judgment and decree of the Trial Court.
But when the judgment and decree of the Trial court is to be
reversed then it is incumbent upon the Appellate Court to dwell
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into the matter in detail and to give reasons for reversing the
same. Assigning reasons not only makes the judgment
wholesome, but is also necessary in order to deduce and lead to
just conclusions. The High Court has dealt with the judgment of
the Trial Judge in a short cut method, bereft of all reasoning
while reversing the judgment of the Trial Court both on facts as
well as law. It is trite that the Appellate Court has jurisdiction to
reverse, affirm or modify the findings and the judgment of the
Trial Court. However, while reversing or modifying the judgment
of a Trial Court, it is the duty of the Appellate Court to reflect in
its judgment, conscious application of mind on the findings
recorded supported by reasons, on all issues dealt with, as well
as the contentions put forth, and pressed by the parties for
decision of the Appellate Court. No doubt, when the Appellate
Court affirms the judgment of a Trial Court, the reasoning need
not to be elaborate although reappreciation of the evidence and
reconsideration of the judgment of the Trial Court are necessary
concomitants. But while reversing a judgment of a Trial Court,
the Appellate Court must be more conscious of its duty in
assigning the reasons for doing so. [Paras 35, 36, 37][859-E-H;
860-A-D]
2. The right to file an appeal by an unsuccessful party
assailing the judgment of the Original Court is a valuable right
and hence a duty is cast on the Appellate Court to adjudicate a
first appeal both on questions of fact and applicable law. Hence,
the reappreciation of evidence in light of the contentions raised
by the respective parties and judicial precedent and the law
applicable to the case have to be conscientiously dealt with. In
the instant case, the Division Bench of the High Court has simply
reversed the judgment of the Trial Judge in the absence of
reappreciation of evidence and without giving findings on
questions of fact as well as on the applicable law and by not
reasoning as to why the judgment of the Trial Judge was
erroneous. [Paras 41, 42][862-B-D]
Santosh Hazari v. Purushottam Tiwari (deceased) by
LRS (2001) 3 SCC 179; B.V. Nagesh v. H.V. Sreenivasa
Murthy (2010) 13 SCC 530 : [2010] 11 SCR 784; Vinod
Kumar v. Gangadhar (2015) 1 SCC 391 : [2014] 10
SCR 1050 - relied on.
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H.Venkatachala Iyenger vs. B.N.Thimmajamma AIR
1959 SC 443 : [1959] Suppl. SCR 426; Jaswant Kaur
v. Amrit Kaur and others (1977) 1 SCC 369 : [1977] 1
SCR 925; Bharpur Singh and others v. Shamsher Singh
(2009) 3 SCC 687 : [2008] 17 SCR 517; Naranjan
Umeshchandra Joshi v. Mrudula Jyoti Rao, (2006) 13
SCC 433 : [2006] 10 Suppl. SCR 1214; Anil Kak v.
Sharada Raje (2008) 7 SCC 695 : [2008] 6 SCR 1009;
Leela Rajagopal and others v. Kamala Menon
Cocharan and others, (2014) 15 SCC 570 : [2014] 7
SCR 697 - referred to.
Case Law Reference
[1959] Suppl. SCR 426
referred to
Para 30(a)
[1977] 1 SCR 925
referred to
Para 30(b)
[2008] 17 SCR 517
referred to
Para 30(c)
[2006] 10 Suppl. SCR 1214
referred to
Para 30(d)
[2008] 6 SCR 1009
referred to
Para 30(e)
[2014] 7 SCR 697
referred to
Para 30(f)
(2001) 3 SCC 179
relied on
Para 38
[2010] 11 SCR 784
relied on
Para 39
[2014] 10 SCR 1050
relied on
Para 40
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4270
of 2010.
From the Judgment and Order dated 08.12.2008 of the High Court
of Judicature at Madras in O.S.A. No.470 of 2002.
S. Vallinayagam, Rutwik Panda, Advs. for the Appellants.
K. K. Mani, Ms. T. Archana, Advs. for the Respondents.
The Judgment of the Court was delivered by
NAGARATHNA J.
This appeal assails the judgment and decree dated 08th December,
2008 passed by the High Court of Judicature at Madras, in O.S.A. No.
470 of 2002 by which the judgment and decree passed in T.O.S. No. 20
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of 1994, wherein the learned Trial Judge of the High Court had dismissed
the suit for grant of Letters of Administration, was set aside and the said
suit was decreed.
2. For the sake of convenience, the parties shall be referred to in
terms of their status in O.P. No. 150 of 1993 which was converted to
T.O.S. No. 20 of 1994, which was filed for grant of Letters of
Administration.
3. It is the case of the plaintiffs that E. Srinivasa Pillai, father-inlaw of the 1st plaintiff, had died on 19th January, 1978 leaving behind his
last will and testament dated 04th January, 1978. The said will was said
to be executed in the presence of two attestors. The testator E. Srinivasa
Pillai had a son, named S. Damodaran, who died intestate on 03rd June,
1989 at Madras, leaving behind the plaintiff-wife C. Saradambal and his
two daughters viz., D. Prema, aged 20 years and D. Deepalakshmi,
aged 18 years. The testator, apart from his son, S. Damodaran, left
behind two daughters viz., Savitri Ammal, wife of P. M. Elumalai and
Padmavathi, wife of T. Rajaram.
4. The bequest was made in the name of testator's son viz., S.
Damodaran to the exclusion of the testator's daughters in respect of the
house in which the testator and his family were residing, situated at
Premises No.10, Azeez Nagar II Street, Kodambakkam, Madras-24.
The daughters of the testator had filed O.S. No. 5477 of 1990 on the file
of IV Assistant City Civil Judge Court, Madras seeking partition of the
said property. Therefore, it had become necessary for the plaintiffs to
file the petition seeking Letters of Administration.
5. Plaintiff-C.Saradambal averred that she would undertake to
duly administer the estate of the deceased as per the will by paying the
testator's debts and legacies and by making a full and true inventory
thereof and exhibit the same in the Court.
6. The daughters of the testator contested the said testament by
filing a written statement. They averred that the will was fabricated and
the signature of the testator in the said document was forged and the
same was a got-up document by the plaintiff with the help of her husband's
friends who were the attesting witnesses of the will. It averred that the
attestors of the will had no association with the deceased testator, E.
Srinivasa Pillai. The defendants contended that they looked after their
father when he was on his deathbed. It was further contended that
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deceased testator E. Srinivasa Pillai had a paralytic attack and was unable
to write or move. It was urged that the will had to be proved in accordance
with law by removing all suspicious circumstances in connection with
the execution of the same, to the satisfaction of the conscience of the
Court. It was contended that the defendants had been deprived of intestate
succession on account of the fraudulent and forged will.
7. The defendants averred that their father died on 19th January,
1978, that their mother had predeceased him and their brother had also
died in 1989. The defendants also averred that the first plaintiff got married
to the brother of defendants on 07th June, 1970. The second and third
plaintiffs were the daughters born out of the said wedlock. The first
plaintiff willfully deserted her husband and had also filed a Matrimonial
Petition bearing No. 136 of 1988, seeking dissolution of her marriage, by
a decree of divorce but since defendants' brother died on 03rd June,
1989, the said petition for dissolution of marriage became infructuous.
The defendants contended that the first plaintiff never cared for their
brother. It was further contended that their brother, S. Damodaran had
lived for eleven years after the death of their father and he had never
disclosed about the execution of the will by their father.
8. The defendants had issued a legal notice dated 22nd June, 1989
to the plaintiff for partition and separate possession of their two-third
share in the scheduled property and after waiting for a period of two and
a half months, they had filed a suit for partition and separate possession
of the said two-third share of the property.
9. It was further averred that the testator, E. Srinivasa Pillai was
completely bedridden, incapable of writing and understanding anything
for a period of ten months prior to his death. The name of the witnesses
and the name of the person who had drafted the will were never
disclosed. It was further averred that the testator E. Srinivasa Pillai was
working in Binny and Company, Madras and was associated with welleducated and respectable people. That the petition seeking Letters of
Administration was filed fifteen years after the death of the testator.
Hence, the defendants sought for dismissal of the petition seeking Letters
of Administration.
10. Having regard to the objections raised by the defendants, the
Petition was converted into Testamentary Original Suit being T.O.S.
No. 20 of 1994.
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11. The learned Trial Judge on the basis of the pleadings, framed
the following issues for consideration:
"(1) Whether the will was executed by the testator while in a
sound and disposing state of mind? And
(2) To what relief are the parties entitled?"
12. The learned Trial Judge dismissed the suit by judgment and
decree dated 14th January, 2000 by answering the aforesaid issues against
the plaintiffs.
13. Being aggrieved by the impugned judgment and decree passed
by learned Trial Judge, the plaintiffs preferred an appeal being O.S.A.
No. 470 of 2002 before the High Court. The Division Bench vide
impugned judgment and decree dated 8th December, 2008, allowed the
appeal and decreed the suit. Hence this appeal.
14. We have heard Mr. S. Vallinayagam, learned counsel for the
appellants, Sri K. K. Mani, learned counsel for the respondents and
perused the material on record.
15. Learned counsel for the appellants contended that the Division
Bench of the High Court was not right in reversing the judgment of the
learned Trial Judge of the said Court without assigning reasons for doing
so and in that regard drew our attention to the impugned judgment. It
was submitted that the learned Trial Judge had closely perused the
evidence on record, both oral and documentary and had rightly dismissed
the suit. However, the Division Bench of the High Court in the absence
of any reasoning, had reversed the judgment of the learned Trial Judge.
16. It was next submitted that the testament, on the basis of which
the respondents sought grant of Letters of Administration was concocted.
The father of the appellants, namely, E. Srinivasa Pillai was bedridden
prior to his death as he had sustained a paralytic stroke and was not in a
position to sign or write and neither was he in a sound disposing state of
mind. The appellants contended that he could not have even thought of
making the bequest of the house in which he was residing, exclusively in
favour of his son, S. Damodaran. They contended that the very execution
of the will is shrouded in suspicious circumstances inasmuch as even the
signature found on the controversial document is not that of the testator.
Elaborating on the same, it was urged that the respondents had placed
reliance on Exs.P2 and P3 to demonstrate that the signature on the said
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documents tallied with the signatures of the testator on the will. However,
even on a cursory glance of the said signatures it is apparent that they
do not tally. It was submitted that the attempts of the respondents have
been to knock off the house property as if it has been bequeathed to the
husband of respondent No.1 and the father of the respondent No.2 and
3, to the exclusion of the appellants who are the daughters of the
deceased testator. Elaborating the said contention, it was urged that the
testator died within a period of fifteen (15) days after the so-called
execution of the will i.e., 04th January, 1978 as the testator died on 19th
January, 1978.
17. That the appellants herein had filed the suit for partition and
separate possession of the house property being O.S. No.5477 of 1990
before the IV Assistant City Civil Court, Madras and in order to defeat
the rights of the appellants herein in the house property, respondent No.1
had concocted the will of E. Srinivasa Pillai. The said document is a
fabricated and forged document as it had not seen the light of the day
for over fifteen years after the death of the testator and the petition
seeking grant of Letters of Administration was filed only in order to seek
the imprimatur of the Court on the said document.
18. It was further contended that the attestors of the so-called
testament were not known to the deceased testator, they are in fact
known to the first plaintiff i.e. respondent No.1 herein.
19. It was further urged that the very execution of the will is
suspicious and therefore the learned Trial Judge had rightly dismissed
the suit of the respondents herein. However, the Appellate Court simply
reversed the judgment and decree passed by the learned Trial Judge
without any reasoning. Hence, it was submitted that the impugned
judgment and decree of the Division Bench of the Appellate Court may
be set aside and the judgment and decree of the learned Trial Judge may
be restored.
20. Per contra, learned counsel for the respondents-plaintiffs in
the suit, drew our attention to the oral and documentary evidence on
record and contended that the execution of the will had been proved in
accordance with Section 68 of the Indian Evidence Act, 1872 and Section
63 of the Indian Succession Act, 1925. The Appellate Court was
convinced about the factum of the execution of the will by the testator
E. Srinivasa Pillai and the fact that there were no suspicious
circumstances surrounding the execution of the will by the testator.
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Therefore, the Appellate Court has rightly set aside the judgment and
decree of the Trial Court. Hence, the same may be confirmed.
21. We have given our thoughtful consideration to the rival
submissions made by the parties.
22. The question that arises for consideration is, whether, the
Appellate Court was justified in setting aside the judgment and decree
of the learned Trial Judge, thereby allowing the appeal filed by the
plaintiffs-respondents herein and consequently, decreeing the suit filed
by them.
23. The relationship between the parties is not in dispute. Deceased
E. Srinivasa Pillai was the father of the husband of first plaintiff as well
as the father of defendants being the daughters. It is also not in dispute
that the testator died on 19th January, 1978. The controversy here is with
regard to the succession to his estate. If he had died intestate, his son
and daughters would have been entitled to succeed to his estate including
the house property, equally. But the petition was filed seeking grant of
Letters of Administration in favour of the plaintiffs, on the basis of the
testament of the deceased, E. Srinivasa Pillai dated 04th January, 1978.
It is also not in dispute that the said testament had not seen the light of
the day for fifteen years and only after the filing of the suit for partition
and separate possession by the appellants, i.e. the daughters of the testator
herein, the respondents herein sought Letters of Administration on the
basis of the will of deceased E. Srinivasa Pillai, which was said to be
executed on 04th January, 1978.
24. Before proceeding to answer the point for determination in
this appeal, it would be useful to cull out the relevant points from the
judgment of the learned Trial Judge as well as the Division Bench of the
High Court.
25. The learned Trial Judge had dismissed the suit despite the
evidence of PW1, being the first plaintiff and PW2, being one of the
attestors of the will (Ex-P1) after considering the same in detail and had
noted the following aspects:
(i)
The testator E. Srinivasa Pillai who is said to have executed
the will (Ex-P1) on 04th January, 1978 had died 15 days
later.
(ii)
The will is an unregistered one.
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(iii)
The testator's son, S. Damodaran was a practicing
advocate.
(iv)
The testator was also educated.
(v)
That the testator was not in a sound and disposing state of
mind as he was seriously ill and weak prior to his death, as
he was suffering from a paralytic attack.
(vi)
PW2 had deposed in his evidence that the testator was
suffering from a paralytic attack and was unable to move
his right hand and right leg prior to his death and he was
confined to the house for about ten months prior to his death
and he was unable to write.
(vii)
The son of the testator was not aware of the execution of
the will and he did not take any step for probate of the
same.
(viii) After the death of testator's son, S. Damodaran, his wifeplaintiff No.1, came forward to seek Letters of
Administration.
(ix)
There were proceedings for divorce between PW1 and her
husband, S. Damodaran and she had also consented for
divorce.
(x)
Though the person who wrote the will was known to the
father-in-law of PW1, his name is not mentioned in the will
nor does the will have any date mentioned in it.
(xi)
The will (Ex-P1) had not seen the light of the day for nearly
fifteen years although the testator's son was a practising
advocate.
(xii)
PW2 admitted that PW1 was outside the room at the time
of the execution of the will whereas PW1 stated that when
the will (Ex-P1) was executed by her father-in-law she
was present. So, there exists a discrepancy in the versions
of evidences by PW1 and PW2.
(xiii) PW2 had admitted that he had filed the affidavit on the
request of the advocate and not on his own accord.
Therefore, no weight could be attached to the evidence of
PW2.
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(xiv) Daughters of the deceased had filed a partition suit being
O.S. No. 5977 of 1990. It is only, thereafter, that proceedings
were commenced by the plaintiffs for grant of Letters of
Administration.
(xv)
Since the testator was not healthy prior to his death and
was suffering from paralysis, he was not in a position to
write (sign). Hence, it is doubtful that he had executed the
will.
(xvi) The attestator himself had admitted about the health
condition of the testator by stating that he could not be taken
to the Sub-Registrar's office for the registration of the will
on account of the paralytic attack.
(xvii) Execution of the will is itself suspicious and the evidence
regarding execution of the will has not dispelled the
suspicious circumstances.
(xviii) The bequest is also questioned inasmuch as the daughters
have no share in the house property.
26. In view of the aforesaid points, the learned Trial Judge dismissed
the suit filed by the plaintiffs-respondents herein.
27. The Division Bench before whom the appeal was preferred,
after observing that Section 68 of the Indian Evidence Act, 1872, has to
be complied with to establish proof of the will, noted that only one of the
attesting witnesses, namely, Varadan was examined as PW2, as the
other attesting witness, namely, Dakshinamurthy was not alive to be
examined so as to corroborate the genuineness of the will which is
permissible in law.
28. In Paragraphs 8 to 11 of the judgment, the Division Bench of
the High Court has observed as under:
"8. This Court has also verified the signatures of the testator in
the will with those of the signatures available in the previous
documents namely, Ex-P2 school Leaving Certificate, and ExP3, Building Plan. On verification, this Court has no hesitation to
hold that the signatures available in the will are tallied with the
signatures available in the School Leaving Certificate and the
Building Plan. Though it is stated by the respondents that the legates
filed matrimonial petition against the appellant, in the absence of
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any order thereon, this Court cannot give much importance to
such proceedings. Also, the respondents filed a suit for partition
of the suit property on the file of IV Assistant City Civil Court,
Chennai, which is stated to be pending.
9. It is argued by the learned counsel for the respondents that
there is an inordinate delay in initiating the proceedings for probate
of the will. In this context, it is to be stated that the time taken and
the reasons adduced for initiation of probate proceedings are the
factors to be considered on the peculiar facts and circumstances
of this case. Hence, the said argument fails.
10. The proof and validity of the will has to be examined on the
settled propositions of law such as the evidence of the attestor,
comparison of signatures of the testator, legal principles, intention
of the testator and other circumstances. However, the learned
single Judge proceeded on the sole ground that the will had not
been probated for a long time. Therefore, the reasoning given by
the learned single Judge cannot be sustained, as the legal principles
are not properly follows.
11. For the foregoing reasons and in view of the discussion made
above, the judgment of the learned single Judge is legally infirmed
and the same is set aside. As such, this O.S.A. is allowed. No
costs. Consequently, the connected C.M.P.No.9517 of 2006 and
1492 of 2008 are closed."
29. With the aforesaid observations, the judgment of the learned
Trial Judge was reversed by the Division Bench.
30. Before considering the correctness of the impugned judgment
of the Division Bench of the High Court, it would be useful to refer to
the following judgments of this Court on proof of wills:
(a) 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
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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
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."
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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. In the above
noted case, this Court has stated that the following three aspects must
be proved by a propounder:-
"(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."
(b) 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.
(c) 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:-
"23. Suspicious circumstances like the following may be found to
be surrounded in the execution of the will:
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(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."
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.
(d) In Naranjan Umeshchandra Joshi v. Mrudula Jyoti Rao, [(2006)
13 SCC 433], in Paras 34 to 37, this Court has observed as under:-
"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
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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."
(e) This Court in Anil Kak v. Sharada Raje, [(2008) 7 SCC 695],
held as under:-
"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.
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55. Unlike other documents, even animus attestandi is a
necessary ingredient for proving the attestation."
(f) Similarly, in Leela Rajagopal and others v. Kamala Menon
Cocharan and others, [(2014) 15 SCC 570], this Court opined as under:-
"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.
31.