K S Dinachandran vs Shyla Joseph

2025 INSC 1451 Reportable

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

Civil Appeal Nos…………………. of 2025 (@Special Leave Petition (C) Nos.11057-11058 of 2025

K. S. Dinachandran …. Appellant Versus Shyla Joseph & Ors. .…Respondents With Civil Appeal No……………. of 2025 (@Special Leave Petition (C) No.11639 of 2025

JUDGMENT

K. VINOD CHANDRAN, J.

1. Leave granted.

2. Concurrent findings; disbelieving a will, excluding one

out of nine children, who married out of the community,

holding the estate of the testator partible, is challenged in the

two appeals filed by two defendants.

3. The parties are referred to as the plaintiff and the

Signature Not Verified defendants, the first respondent, common in both the appeals, Digitally signed by SAPNA BISHT

is the plaintiff.

Date: 2025.12.17 17:18:15 IST Reason:

Page 1 of 24

CA@SLP (C) Nos.11057-11058 of 2025 Etc.

4. The relevant facts to be noticed are that one N.S.

Sreedharan, executed Exhibit B2 will dated 26.03.1988 and

registered it on the very next day, a Sunday, the Sub-Registrar

having come to his house on commission. The will provided

for allocation of the properties to the eight (the defendant Nos.

1 to 8) out of the nine children of the testator; the plaintiff

having been left out. An injunction suit was filed by the

defendant in the year 1990, against the plaintiff, who was the

sole defendant therein, to restrain her from interfering with

the peaceful possession and enjoyment of the suit property. A

copy of the will was produced along with the plaint. The sole

defendant therein did not choose to contest the matter. There

was an ex parte judgment and decree passed by the Principal

Munsif Court of Ernakulam which is produced as Annexure P2.

It was later in the year 2011 that the present suit was filed

seeking partition of the properties of the father.

5. The first defendant who was examined as DW-1 along

with other defendants contested the suit on the strength of the

will. There were two attesting witnesses, one of whom was no

more at the time of trial and the other was examined as DW-2.

Page 2 of 24 CA@SLP (C) Nos.11057-11058 of 2025 Etc. The trial court decreed the suit on the ground that DW-2 only

spoke of the execution of the will by the testator and his own

attestation. Though, the presence of the other attesting witness

at the time of execution was spoken of, his attestation was not

deposed to by DW-2. It was also argued that the deposition of

DW-2 indicated that the testator and he himself affixed their

signatures in the presence of the Sub-Registrar, giving rise to

an anomaly insofar as the will was dated 26.03.1988, while the

registration was on the next day i.e. 27.03.1988, on which day

DW2 according to his own testimony had not visited the house

of the testator, which argument was not accepted even by the

trial court.

6. The High Court found that though in the examination-in-

chief, DW-2 did not depose on the attestation by the other

witness, in cross-examination to a leading question he

answered that all persons signed on the will on the date when

DW-2 signed the same. It was held that by the leading

question, the answer was put in the mouth of the witness and

hence, it lacks probative value and fell short of the mandate

Page 3 of 24 CA@SLP (C) Nos.11057-11058 of 2025 Etc. under Section 63(c) of the Indian Succession Act, 19251 read

with Section 68 of the Indian Evidence Act, 18722. The High

Court emphasised the statement of DW-2 in cross examination

that after signing the will on the date when it was prepared, he

had not gone to the house of the testator till his death. Hence,

the attestation by DW-2 itself was found suspicious when DW-

2 also stated that when he reached the house of testator, the

Sub-Registrar and the other witness were present there.

7. Mr.V.Chitambaresh and Mr.A.Hariprasad learned

Senior Counsel for the appellants contended that the

ingredients of Section 68 of the Evidence Act read with Section

63 of the Succession Act, were fully satisfied. DW-2 had not

only spoken of the testator having affixed his signature on the

will, Exhibit B2, but also spoke of his attestation and his

introduction to the other witness by the testator and all of them

having signed the will. Statements were taken out of context to

disbelieve the will and in any event, the earlier will executed,

clearly indicated the mind of the testator insofar as exclusion

of the plaintiff. It is also argued that despite the will having

1 for short, ‘the Succession Act’ 2 for short, ‘the Evidence Act’

Page 4 of 24 CA@SLP (C) Nos.11057-11058 of 2025 Etc. come to the notice of the plaintiff in the suit filed in the year

1990, nothing was done for a long period, and the plaintiff is

estopped from challenging the will. The impugned judgment

affirming the judgment of the trial court is clearly erroneous

and against the evidence led in the suit. Both the judgments

have to be reversed and the suit dismissed, is the contention.

8. Mr. P.B. Krishnan, learned Senior Counsel appearing for

the first respondent/plaintiff argued that the first will was not

proved and there can be no reliance placed on the same. It is

also urged that in the earlier suit for injunction only a copy of

the will was produced and, in any event, that was a simpliciter

injunction suit. This would not stand in the way of the co-owner

instituting later, a suit for partition. It is specifically pointed out

from the deposition of DW-2 that he had stated categorically

that his visit to the testator’s house was only once, in the

presence of the Sub-Registrar, in which circumstances his

signature on 26.03.1988, attesting the will and later on the

back of the first page at the time of registration, on the next

day cannot be believed. DW2 also stated that after the day the

will was prepared, he had gone to the house of the testator

Page 5 of 24 CA@SLP (C) Nos.11057-11058 of 2025 Etc. only when he died. Both the trial court and the first appellate

court rightly found the will to be not proved.

9. In support of his submissions, learned counsel for the

respondent relied upon the decisions in Meena Pradhan v.

Kamla Pradhan3, Rani Purnima Debi & Anr. v. Kumar

Khagendra Narayan Deb & Anr.4, Janaki Narayan Bhoir v.

Narayan Namdeo Kadam5, Vishnu Ramkrishna Wani v.

Nathu Vittal Wani6, Raj Kumari & Ors. v. Surinder Pal

Sharma7 and Mansinghrao Yeshwantrao Patil v.

Ramchandra Govindrao Patil8.

10. Before we go into the fact adjudication, we would look at

the decisions relied upon by the respondent, in the

chronology of its reporting.

11. Vishnu Ramkrishna6 found that the defendants failed to

prove the due execution of the will since the one attesting

witness examined, out of the four attestors, only spoke of the

presence of one other attestor along with the testator, when

3 (2023) 9 SCC 734 4 (1962) 3 SCR 195 5 (2003) 2 SCC 91 6 AIR 1949 Bombay 266 7 (2021) 14 SCC 500 8 (1954) 1 SCC 688

Page 6 of 24 CA@SLP (C) Nos.11057-11058 of 2025 Etc. the latter acknowledged her thumb impression in the will. The

witness spoke of his attestation but not that of the other. It was

also held that recourse to Section 71 of the Evidence Act is

impermissible without exhausting the remedy under Section

68 of the Evidence Act of calling the available attesting

witnesses and if they deny or fail to prove the execution, only

then Section 71 of the Evidence Act could be invoked. Though

finding insufficient proof as required under Section 68 of the

Evidence Act, all the same, the High Court remanded the

matter for further evidence of the other three attesting

witnesses said to be available to determine whether there was

due execution of the will. The remand was on dual reasoning;

one, approaching the issue as a ‘Court of Conscience’,

especially, to arrive at a satisfaction as to the last will and

testament of the testator and then, to ensure that the bequest

made in the subject will to a charity, is not defeated.

12. Mansinghrao Yeshwantrao Patil8 cautioned the Courts

from converting a question of fact into a question of law and

mechanical use of time-honoured phrases like ‘the conscience

of the Court being satisfied’. Though great caution should be

Page 7 of 24 CA@SLP (C) Nos.11057-11058 of 2025 Etc. exercised in upholding a will, where the legal heirs are

divested in whole, proof of a will remains a question of fact and

satisfaction of the conscience of the court is only a rule of

prudence, was the declaration.

13. Rani Purnima Debi4, a four Judge Bench decision of this

Court disbelieved the will propounded, based on various

suspicious circumstances, including doubts raised about the

testator’s signature itself and the proclivity of the testator to

sign blank papers to be delivered to his lawyer, who was also

one of the three attesting witnesses examined. Especially

considering the very serious suspicions on the due execution

and attestation of the will, the testimony of the two probable

witnesses whose signatures were found on the bottom of the

will; other than those examined as attestors, one the

registration clerk who came on commission and another, who

identified the testator, were found to be grossly insufficient.

The registration clerk merely spoke of having examined the

testator, who admitted execution and the other, having merely

identified the testator at that time, without anything more on

the signature affixed, of the testator or himself.

Page 8 of 24 CA@SLP (C) Nos.11057-11058 of 2025 Etc.

14. Meena Pradhan3 succinctly stated the formalities

required under Section 63 of the Succession Act which was

also declared to be of a standard affording sufficient proof to

satisfy a prudent mind and not one of mathematical accuracy.

Quite distinct from Rani Purnima Debi4 which brought forth

various suspicious circumstances in which there was felt a

need for a higher standard of proof of execution.

15. What is relevant for the present case, which does not

bring forth any such suspicious circumstance, is the

requirement that, at least one of the attesting witnesses, if alive

and capable of being examined, shall be examined, who shall

speak on the execution of the testator; which he had witnessed

or was acknowledged by the testator himself, and the

attestation by both witnesses. It is pertinent that in the earlier

suit for injunction, in which the plaintiff herein first appeared

as a defendant and then did not contest, the will was spoken of

and a copy was produced. The suit was one for injunction

simpliciter and there was neither occasion to offer proof of the

will nor was there a declaration of title sought; which disables

a claim of res judicata being raised since the will or title was

Page 9 of 24 CA@SLP (C) Nos.11057-11058 of 2025 Etc. not a matter substantially in issue in the said suit. But the fact

remains that despite knowledge, the plaintiff pleaded no

suspicious circumstances and did not even mention the will in

the plaint. The plaintiff also did not mount the box, and none

were examined on her side. The attesting witness examined,

hence in the facts of this case should speak about the

execution of the will by the testator, his attestation and also

about the attestation of the other witness who was no more, at

the time the suit went to trial.

16. In Janaki Narayan Bhoir5, the impugned judgment of the

High Court relied on the evidence of the scribe, led under

Section 71 of the Evidence Act, which was found to be

incompetent insofar as one of the two attesting witnesses

failed to prove the attestation of the other and the other,

though available was not examined. This affirms the principle

in Vishnu Ramkrishna6. In fact, the attesting witness

examined, categorically stated that he was not even aware of

the presence of the other attesting witness in the house

wherein the execution was stated to have occurred. It was

held in paragraph 10 that, “…The one attesting witness

Page 10 of 24 CA@SLP (C) Nos.11057-11058 of 2025 Etc. examined, in his evidence has to satisfy the attestation of a Will

by him and the other attesting witness in order to prove there

was due execution of the Will. If the attesting witness examined

besides his attestation does not, in his evidence, satisfy the

requirements of attestation of the will by other witness also it falls

short of attestation of will at least by two witnesses for the simple

reason that the execution of the will does not merely mean the

signing of it by the testator but it means fulfilling and proof of all

the formalities required under Section 63 of the Succession Act.

… (sic)”.

17. Raj Kumari7 was also a case in which one of the attesting

witnesses failed to prove the examination of the other witness,

who was not called to the box since he was the husband of one

of the respondents. The principle of exhausting the remedy

under Section 68 of the Evidence Act before invoking Section

71 was reiterated; which question does not arise in the instant

case.

18. Learned Senior Counsel for the appellant relied upon

the decision in H. H. Maharaja Bhanu Prakash Singh v. Tika

Page 11 of 24 CA@SLP (C) Nos.11057-11058 of 2025 Etc. Yogendra Chandra9 to contend that when evidence was

recorded after a long period, minor discrepancies in the

evidence would be a natural consequence. Therein the

evidence was recorded about eight years after the execution

of the will and in the present case, the examination of the

attesting witness was twenty-four years after the execution of

the will. It was argued that it is natural that a witness will not

be able to remember as to when exactly he went to the house

of the testator; which was truthfully spoken of by DW2.

19. Reliance was also placed by the appellant on Gopal

Swaroop v. Krishna Murari Mangal and Ors.10 in which

satisfaction as to the proof of the will was entered, when it was

stated by one of the attesting witnesses that the other attesting

witness was also present at the time the testator affixed his

signature.

20. We cannot but notice that there is clear departure,

insofar as the decision in Gopal Swaroop10, from the principles

consistently declared in the other decisions above cited and

also of a four-judge bench in Rani Purnima Debi4. However,

9 1989 Supp (1) SCC 16 10 (2010) 14 SCC 266

Page 12 of 24 CA@SLP (C) Nos.11057-11058 of 2025 Etc. we are of the opinion that we need not look into that aspect,

specifically considering the deposition of DW-2.

21. We think, at this point, it is apposite to extract paragraph

19 to 22 from the decision in H. Venkatachala Iyengar v. B.N.

Thimmajamma11, as to the proof required in establishing a

will, in varying circumstances: -

19. However, there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will.

11 1959 Supp (1) SCR 426

Page 13 of 24 CA@SLP (C) Nos.11057-11058 of 2025 Etc. Ordinarily 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 the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.

20. There may, however, be cases in which the execution of the will may be surrounded by suspicious 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

Page 14 of 24 CA@SLP (C) Nos.11057-11058 of 2025 Etc. 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. It is true that, 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.

21. 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. It is in connection with wills that present such

Page 15 of 24 CA@SLP (C) Nos.11057-11058 of 2025 Etc. suspicious circumstances that decisions of English courts often mention the test of the satisfaction of judicial conscience. It may be that the reference to judicial conscience in this connection is a heritage from similar observations made by ecclesiastical courts in England when they exercised jurisdiction with reference to wills; but any objection to the use of the word “conscience” in this context would, in our opinion, be purely technical and academic, if not pedantic. The test merely emphasizes that, in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive.

22. It is obvious that for deciding material questions of fact which arise in applications for probate or in actions on wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. It may, however, be stated generally that a propounder of the will has to prove the due and valid execution of the will and that if there are any suspicious circumstances surrounding the execution of the will the propounder must remove the said suspicions from the mind of the court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and broad principles would always Page 16 of 24 CA@SLP (C) Nos.11057-11058 of 2025 Etc. depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties. It is quite true that, as observed by Lord Du Parcq in Harmes v. Hinkson [(1946) 50 CWN 895] “where a will is charged with suspicion, the rules enjoin a reasonable scepticism, not an obdurate persistence in disbelief. They do not demand from the Judge, even in circumstances of grave suspicion, a resolute and impenetrable incredulity. He is never required to close his mind to the truth”. It would sound platitudinous to say so, but it is nevertheless true that in discovering truth even in such cases the judicial mind must always be open though vigilant, cautious and circumspect.

(underlining by us for emphasis)

22. The translation of the deposition of DW-2 has been

provided in both the appeals and a copy of the vernacular

Malayalam has also been handed over to us across the Bar

(one of us, Vinod Chandran, J being familiar with the

language). The proof boils down to what has been stated by

the witness. Looking at the chief-examination, it is clearly

stated by DW-2 that he had signed on the thirteenth page and

the back side of the first page of Exhibit B2 will, which was

shown to him. He also affirmed that the signature of the

Page 17 of 24 CA@SLP (C) Nos.11057-11058 of 2025 Etc. executant was that of N.S. Sreedharan, the testator. He also

spoke of N.S. Sreedharan; the testator, Xavier Mash (Teacher)

& himself; the attesting witnesses, as also the Sub-Registrar

being present at that time. If we look at the examination-in-

chief alone, it cannot be said that there was proof of the other

witness having put his signature in the document. In the cross

examination of DW-2 to DW-8, a question was asked as to

whether he saw the testator signing on the document which

was answered in the affirmative. Answering a question as to

his signature, it was said that he signed it in front of the

testator. Again, there was no proof offered of the signature of

the other attesting witness.

23. However, this missing piece was supplied in cross-

examination by the plaintiff. In the cross-examination by the

plaintiff, DW2 was specifically asked as to whether he had an

acquaintance with Xavier, the other attesting witness. The

answer was that the other attesting witness was known to him

earlier, as introduced to him by the testator. Then a question

was put as to whether the will was written after he reached

there. The answer was in the negative and he added that it was

Page 18 of 24 CA@SLP (C) Nos.11057-11058 of 2025 Etc. already written and ‘they’ put their signatures on it. Significant

is the question put by the plaintiff, to DW-2 as to whether

himself and ‘others’ put their signatures on the will on the date

on which it was written; answered in the affirmative. Hence, on

the plaintiff’s suggestion, DW-2 affirmed not only the

signature of the testator and himself but also the other attesting

witness.

24. We are definitely of the opinion that DW-2 spoke of the

presence of the testator along with himself and the other

attesting witnesses as also affirmed the signature of the

testator and of both the attesting witnesses in the document.

25. Now, we have to deal with the confusion created as to

whether DW-2 had gone to the house of the testator only on

26.03.1988, the date shown in the will on which day it is

presumed to have been executed. A reading of the deposition

clearly indicates that DW-2 had very close association with the

testator and he was a frequent visitor to the house of the

testator. DW-2 also had a part time job at the textile shop of

the testator and had carried out such work even when he was

working with an auditor; which he stopped after the death of

Page 19 of 24 CA@SLP (C) Nos.11057-11058 of 2025 Etc. the testator. He categorically deposed that the testator had

summoned him to the testator’s house, over telephone, when

he was at the Auditor’s office. At the testator’s house, he saw

the testator’s wife and not the children. He did not reveal the

factum of the will to the children since he understood it as a

confidential matter. To a specific question as to whether the

testator was bedridden, he answered in the negative and

added that but for a small oedema in the legs, the testator had

no ailments, bringing forth no doubts on his physical health,

much less on the sound and disposing state of mind of the

testator; which was never disputed.

26. The specific issue on which the learned Senior Counsel

for the plaintiff lays emphasis, are to two suggestions made in

cross-examination, raising suspicion on the very execution of

the will. The suggestion that “but for the day on which the will

is said to have been prepared, DW-2 has not gone to the house

on any other date to sign the will”, was answered in the

affirmative. A further suggestion that DW2 after 26.03.1988

went to the house of the testator only after his death, was

answered in the affirmative. Since the will is dated 26.03.1988

Page 20 of 24 CA@SLP (C) Nos.11057-11058 of 2025 Etc. and the registration was on the next day, the execution itself is

under a cloud, for reason that DW2 speaks of the presence of

the Sub-Registrar too on the solitary day he was present in the

house of the testator, is the argument.

27. We are unable to agree. The first suggestion only

indicates that on the date the will was prepared, DW2 had

gone to the house of the testator ‘to sign on it’ and he had not

visited the testator on any other day, ‘to sign the will’. This does

not indicate that DW-2 had not visited the house of the testator

otherwise than on 26.03.1988. It cannot also be said that he was

not present on 27.03.1988; when he was present only for the

registration and not the signing of the will. Another response

emphasised by the plaintiff was to the suggestion that after

26.03.1988, DW-2 had gone to the testator’s house only after

his death. The execution of the will was in the year 1988, the

registration being on the very next day. The examination of

the witness was on 25.05.2012, twenty-four years later. It

would be puerile to think that the witness would have

remembered the visits made to the testator’s house, even for

execution of a will, with mathematical precision, especially

Page 21 of 24 CA@SLP (C) Nos.11057-11058 of 2025 Etc. given his close association and as is seen from the deposition,

a frequent visitor to the testator’s house.

28. We find that in the present case the only suspicion raised

about the execution of the will is the testamentary capacity of

the testator, relatable specifically to his physical disposition,

questioned in the cross-examination of DW2; unequivocally

affirmed as sound. We also reiterate, with respect, that the rule

of prudence; of the caution required in upholding a will which

divests the legal heirs as a whole, is not the situation existing

in the instant case. But, the person excluded was one of the

children of the plaintiff, the sole one excluded. The

propounders of the will are the siblings of the one excluded.

There is a reason stated for such exclusion, the acceptability

of which to our minds, is not what the rule of prudence

dictates. We cannot put the testator in our shoes, and we

should step into his. We cannot substitute our opinions in

place of that of the testator; his desire prompted by his own

justifications. As is trite, we would only ensure that, sitting in

the arm-chair of the testator the rule of prudence is satisfied

Page 22 of 24 CA@SLP (C) Nos.11057-11058 of 2025 Etc. for the exclusion; which on the facts of this case amply satisfies

the judicial conscience.

29. We find absolutely no reason to uphold the judgment of

the High Court which affirmed the judgment of the trial court.

We set aside both and find the will to have been proved

satisfactorily. The presence of the testator and the attesting

witnesses and the signatures affixed on the will by each of

them have been stated by DW-2 in his deposition. What was

lacking in the examination-in-chief was brought out in the

cross examination by way of a positive suggestion. Leading

questions are permitted in cross-examinations and the

response elicited cannot be said to have lesser probative

value, as held by the High Court. The testator was also

established to be of sound and disposing mind at the time of

execution of the will. There can be no interference to the will

which stands proved unequivocally. The judgment and

decree of the High Court and that of the trial court stands set

aside. The plaintiff is found to have no partible claim over the

properties of her father, which by a will have been

bequeathed to the other siblings of the plaintiff.

Page 23 of 24 CA@SLP (C) Nos.11057-11058 of 2025 Etc.

30. The learned Senior Counsel for the respondent then

urged that the plaintiff in any event, would be entitled to only

1/9th share of the total properties which is a negligible portion

of that held by her father. We are not on equity, and the wish

of the testator assumes pre-eminence. The last will and

testament of the testator cannot be digressed from or

frustrated.

31. The appeals are allowed and the suit stands dismissed.

32. Pending applications, if any, shall stand disposed of.

……..…….………………………. J.

(AHSANUDDIN AMANULLAH)

…………….……………………. J.

(K. VINOD CHANDRAN)

NEW DELHI DECEMBER 17, 2025.

Page 24 of 24 CA@SLP (C) Nos.11057-11058 of 2025 Etc.