Balathandayutham & Anr vs Ezhilarasan

Gnanavoli and two daughters - Kalai Arasi and 1 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 2 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had been revoked by Ramachandran by another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 3 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genuine one and was revoked by the subsequent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 4 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 5 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 6 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 7 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 8 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] 9

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 10 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 11 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] 12

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 13