Holding

The appeal is dismissed; the High Court’s order setting aside the grant of letters of administration is affirmed because the will was not proved to have been duly executed and attested.

Summary

Florine D' Souza, a 96‑year‑old bedridden woman, executed a will bequeathing land to Apoline D' Souza (appellant) and John D' Souza (respondent). The appellant, unrelated to the testatrix, claimed the bequest was due to his service to her and applied for letters of administration under Sec. 276 of the Succession Act, 1925. The respondent contested the will, alleging the testatrix lacked testamentary capacity and that the execution was suspicious, citing overwritings, cuttings, and the fact that only one attesting witness (PW‑2) testified, who was not known to the testatrix. The trial court held the will proved; the High Court set aside that finding, ruling that due execution was not established under Sec. 68 of the Evidence Act, 1872. On appeal, the Supreme Court affirmed the High Court, emphasizing that proof of execution must satisfy statutory attestation requirements and that the propounder must dispel any suspicious circumstances, which were not removed in this case. Consequently, the appeal was dismissed and the grant of letters of administration was denied.

Issues considered

Whether the will was duly executed and attested in compliance with Section 63 of the Succession Act, 1925 and Section 68 of the Evidence Act, 1872.
Whether the testatrix possessed the requisite testamentary capacity at the time of execution.
Whether the presence of overwritings, cuttings and a single attesting witness creates sufficient suspicion to defeat proof of due execution.
Whether the appellant is entitled to letters of administration under Section 276 of the Succession Act.

Legislation cited

Indian Evidence Act, 1872s. 68
Indian Succession Act, 1925s. 276, s. 63

Subjects

SuccessionWill executionAttestationEvidence ActSection 68Section 63Letters of AdministrationTestamentary capacitySuspicious circumstancesBeneficiary not related

Judgment

APOLINE D' SOUZA A
v.
JOHN D' SOUZA

MAY 16, 2007

(S.B. SINHA AND MARKANDEY KA TJU, JJ.] B

Succession Act, 1925-ss. 276 and 63-Letter of administration-Grant
~- of-Testatrix executed Will bequeathing property in favour of his nephew and
other who was not related-Trial Court holding execution of Will proved,
however, set aside by High Court-Held: Due execution of Will was not
c
proved-Evidence of attesting witness also did not prove execution or
attestation of Will-Will contained overwriting and cuttings which established
existence of suspicious circumstances-Thus, order of High Court upheld-
Evidence Act, 1872-s. 68.
D
F executed a Will bequeathing 23 cents of land in favour of the appellant
and 16 cents in favour of the respondent F had two daughters who were nuns.
Appellant-beneficiary of the Will was not related in any way to F. It is alleged
that the appellant was serving the testatrix during her old age and on account
of which was made the beneficiary. Appellant filed an application for grant of
Letters of Administration under section 276 of Succession Act, 1925. E
Respondent contended that F being an old lady was not in proper frame of
mind at the time of execution of Will to understand its contents. Trial court
held that the execution of Will was proved. However, the High Court set aside
the order. Hence, the present appeal.

Dismissing the appeal, the Court F

HELD : 1.1. The mode and manner of proofof due execution of a Will
indisputably will depend upon the facts and circumstances of each case. It is
for the propounder of the Will to remove the suspicious circumstances.
(Para 20] (1112-F)
G

.... ('
1.2. The testatrix was a 96 years old lady. Sh~ had been suffering for a
long time. She was bed-ridden. No evidence has been brought on record to
show as to who had drafted the Will. Even if it be assumed that the appellant
had nothing to do in regard to preparation of the draft or registration thereof,
I 103 H
1104 SUPREME COURT REPORTS [2007] 6 S.C.R.
}
A nothing has been brought on record to show as to who had drafted the Will,
or at whose instance it came to be registered.
[Paras 8 and 9) [1107-G; 1108-A)

1.3. Section 68 of the Evidence Act, 1872 provide for the mode and
manner in which execution of the Will is to be proved. Proof of attestation of
B the Will is a mandatory requirement. Attestation is sought to be proved by
PW-2 only. PW-2 is th.e attesting witness. She was called to be a witness to
the execution of the Will. PW-2 categorically stated that the Will was drafted
before her coming to the residence of the testatrix and she had only proved )--
_,
her signature as a witness to the execution of the Will but the document was

c a handwritten one. The original Will is typed in Kannada, although the blanks
were filled up with English letters. There is no evidence to show that the
contents of the Will were read over and explained to the testatrix. Two days
thereafter, the Will was registered, on which date also she was asked to be
present. PW-2 was not known to the testatrix. Why was she called and who
called her to attest the Will is shrouded in mystery. Her evidence is not at all
D satisfactory in regard to the proper frame of mind of the testatrix. There were
several cuttings and overwriting also in the Will.
[Paras 10 and 13) [1108-A, H; 1109-B, CJ
'I
~
1.4. Both the daughters of the testatrix were nuns. Therefore, no
property could be bequeathed in their favour. In fact one of them had expired
E long back. Relation of the testatrix with the respondent admittedly was very
cordial. Appellant has not been able to prove that she had been staying with
the t~statrix since 1986 and only on that count she was made a beneficiary
thereof. The Will was full of suspicious circumstances.
[Para 13) (1109-A)
F
Naresh Charan Das Gupta v. Paresh Charan Das Gupta, [1954) SCR y
1035, distinguished.

B. Venkatamuni v. C.J. Ayodhya Ram Singh & Ors., (2006) 11 SCALE
149; Niranjan Umeshchanda Joshi v. Mrudula Jyoti Rao & Ors., (2006) 14
G SCALE 186; Joseph Antony Lazarus (Dead) By LRs. v. A.J. Francis, (2006) 9
SCC 515; S. Sankaran v. D.Kausalya, (2007) 3 SCALE 186; Benga Behera
& Anr. v. Braja Kishore Nanda & Ors., CA No.3467 of2003 decided by S.C.
on 15.05.2007; Brahmadat Tewari v. Chaudan Bibi, AIR 1916 Calcutta 374
and Riazu/nisa Begam, Mst. v. Lala Puran Chand, ILR XIX Lucknow 445,
referred to.
-
H
APOLINE D' SOUZA v. JOHN D' SOUZA [S.B. SINHA, J.] 1105
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4608 of2003. A
From the Final Judgment and Order dated 12.2.2002 of the High Court
of Kamataka at Bangalore in MF A No. 2570 of 1997. (ISA).

Dr. M.P. Raju, P. George Giri and S.P. Sharma for the Appellant.
B
Suvrajyoti Gupta (for Meenakshi Arora) for the Respondent.

The Judgment of the Court was delivered by

S.B. SINHA, J. I. Florine D' Souza executed a will on or about 06.05.1992.
She had two daughters Olivia and Olympia. Both of them had become nuns. C
The 1st daughter Olivia died in 1975. The 2nd daughter Olympia died on
27.09.1993.

2. Appellant herein was one of the beneficiaries of the will. He was,
however, not in any way related to the testatrix. The testatrix was owner of
the following properties which were subject-matter of the said will : D

'"A' SCHEDULE

E
Property situated in Talipady Village, Mangalore Taluk, Mulki Sub-
Division D.K. bearing following particulars :
S. No. S.D. No. Kissam Extent A.C. Assessment
Rs. Ps.
123 - lAIB (P) Garden o - 16 F

BOUNDARIES:

East : Property allotted to 'B' Schedule belongs to the
Same sub-Division.
South: Portion of Sy. No. 123/IAIA G
West : Portion of Sy. No. 123/lA IA
North: Sy Line
With tiled house bearing No. 8-87, with all mamool and easementary
rights with all appurtenants and also all the movables belonging to
me." H
1106 SUPREME COURT REPORTS [2007] 6 S.C.R.

A "'B' SCHEDULE'

Property situation in Thalipady Village, Mulki S.D. Mangalore Taluk,
D.K. Bearing following particulars :
B S. No. S.D. No. Kissam Extent A.C. Assessment
Rs. Ps.
123 I AIB (P) Garden 0 - 23

BOUNDARIES:

c East : Portion of the Sy. No. 123/5, 123/3, 123/IAIB
South: Portion of Sy. No. 123/IAIA
West : Property allotted to 'A' Schedule of same Sub-
Division

D North : Sy. Line
123-5 Garden 0-09
With a tiled house, timbers all mamool and easementary rights"

3. Whereas the property described in Schedule 'A' appended to the said
..
E will was bequeathed in favour of the appellant, the property described in
Schedule 'B' thereto was bequeathed in favour of the respondent. Florine
died on 13.03.1994. An application for grant of Letters of Administration with
a copy of the will annexed, in terms of Section 276 of the Indian Succession
Act, 1925 (for short 'the Act') was filed by the appellant. Respondent entered
a caveat.
F
4. The plea raised by the respondent in the suit was that the testatrix
was an aged woman and did not have a proper frame of mind at the time of 'r
purported execution of the will to understand the contents thereof.

5. The learned Trial Judge held that the execution of the will had been
G proved, stating :
" ... Circumstances go to show that the defendant had constructed his
own house in one portion of the land that belonged to the old lady.
23 cents of land was given to the defendant under the will and 16
cents of land including the old house was given to the plaintiff who
H
APOLINE D' SOUZA v. JOHN D' SOUZA [S.B. SINHA, J.] 1107
attended the old lady during her old age. I do not find anything A
unnatural in the bequest made by the old lady. She has given larger
extent of land to the defendant who is the son of the sister of the
Testatrix. That shows that the disposition made by her was consistent
with the natural course of human conduct."

It was held that as the propounder did not take any interest in the B
matter of execution of the will, no suspicious circumstances existed.

6. The High Court, however, reversed the said finding of the learned
Trial Judge by reason of the impugned judgment, opining :

i) PW-2, the only attesting witness, examined in the matter, admitted C
that she had put her signature on a handwritten will, whereas the
will had in fact been typed in Kannada language. Hence the due
execution of the will was not proved.

ii) The will contained various overwritings and cuttings, which
establish existence of suspicious circumstances. D
iii) Evidence of PW-2 does not prove either execution or attestation
of the will as per Ex. P-2, as the thumb mark affixed by Florine D'
Souza on it was not got marked in the evidence of PW-2 and sr~
had not identified the thumb mark on Ex. P-2 as the thumb mark
which was affixed by Florine D' Souza in her presence. E
iv) Mere fact that the will was a registered one would not dispense
with the requirements of proof of due execution and attestation
of the will for grant of Letters of Administration.

7. Dr. M.P. Raju, learned counsel appearing on behalf of the appellant,
however, submitted : F
i) The proof of execution of the will cannot be discarded only
because all the precedent requirements of law had not been fulfilled.

ii) As it was proved that the plaintiff-appellant was serving the
testatrix since I 986, there was no reason to disbelieve the bequest G
made in her favour by way of a will.

8. The testatrix was a 96 years old lady. She had been suffering for a
long time. She was bed-ridden. No evidence has been brought on record to
show as to who had drafted the will.
H
1108 SUPREME COURT REPORTS [2007] 6 S.C.R.

A 9. Even if it be assumed that the appellant had nothing to do in regard
to preparation of the draft or registration thereof, nothing has been brought
on record to show as to who had drafted the will, or at whose instance it came
to be registered.

10. PW-2 is the attesting witness. She was called to be a witness to the
B execution of the will. On or about 06.05.1992, when she had come to the house
of the testatrix, the will had already been written. According to her, only after
she had come, the testatrix put her LT.I.. Two days thereafter, the will was
registtred, on which date also she was asked to be present.

C 11. The High Court has arrived at a conclusion that the execution of the
will has not been proved in accordance with law.

12. What should be the mode of proof of execution of a will has been
laid down in Section 63 of the Act in the following terms :

"63. Execution of unprivileged wills.-Every testator, not being a
D solider employed in an expedition or engaged in actual warfare, or an
airman so employed or engaged, or a mariner at sea, shall execute his
will according to the following rules :

(a) The testator shall sign or shall affix his mark to the will, or it shall
be signed by some other person in his presence and by his
E direction.
(b) The signature or mark of the testator, or the signature of the
person signing for him, shall be so placed that it shall appear that
it was intended thereby to give effect to the writing as a will.

F (c) The will shall 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 acknowledgement of his signature or mark, or of the
signature of such other person; and each of the witnesses shall
G 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."

13. Section 68 of the Indian Evidence Act, 1872 provides for the mode
and manner in which execution of the will is to be proved. Proof of attestation
H of the will is a mandatory requirement. Attestation is sought to be pro~ed by
APOLINE D :;ouzA v. JOHN D' SOUZA [S.B. SINHA, J.] l l()C)
PW-2 only. Both the daughters of the testatrix were nuns. No property, A
therefore, could be bequeathed in their favour. In fact one of them had expired
long back. Relation of the testatrix with the respondent admittedly was very
cordial. Appellant before us has not been able to prove that she had been
staying with the testatrix since 1986 and only on that count she was made
a beneficiary thereof. The will was full of suspicious circumstances. PW -2
categorically stated that the will was drafted before her coming to the residence B
of the testatrix and she had only proved her signature as a witness to the
execution of the will but the document was a handwritten one. The original
will is typed in Kannada, although the blanks were filled up with English
letters. There is no evidence to show that the contents of the will were read
over and explained to the testatrix. PW-2 was not known to her. Why was she C
called and who called her to attest the will is shrouded in mystery. Her
evidence is not at all satisfactory in regard to the proper frame of mind of the
testatrix. There were several cuttings and overwritings also in the will.

14. What would be the requirement for proof of a will has recently been
considered by this Court in B. Venkatamuni v. C.J. Ayodhya Ram Singh & D
Ors., [2006] 11 SCALE 149, stating:

"15. Proofof a Will shall strictly be in terms of the abovementioned
provisions.

16. It is, however, well settled that compliance of statutory requirements E
itself is not sufficient as would appear from the discussions hereinafter
made."

It was observed :

"20. Yet again Section 68 of the Indian Evidence Act postulates F
the mode and manner in which proof of execution of document required
y by law to be attested stating that the execution must be proved by
at least one attesting witness, if an attesting witness is alive and
subject to the process of the Court and capable of giving evidence."

It was further observed : G
"24. However, having regard to the fact that the Will was registered
one and the propounder had discharged the onus, it was held that in
such circumstances, the onus shifts to the contestant opposing the
Will to bring material on re~ord meeting such prima facie case in which
event the onus shifts back on the propounder to satisfy the court H
1110 SUPREME COURT REPORTS [2007] 6 S.C.R.

A affirmatively that the testator did not know well the contents of the
Will and in sound disposing capacity executed the same.

25. Each case, however, must be determined in the fact situation
obtaining therein.

26. The Division Bench of the High Court was, with respect, thus,
B
entirely wrong in proceeding on the premise that compliance of legal
formalities as regards proof of the Will would sub-serve the purpose
and the suspicious circumstances surrounding the execution thereof
is not of much significance.

c 27.The suspicious circumstances pointed out by the learned District
Judge and the learned Single Judge of the High Court, were glaring
on the face of the records. They could not have been ignored by the
Division Bench and in any event, the Division Bench should have
been slow in interfering with the findings of fact arrived at l;>y the said
court. It applied a wrong legal test and thus, came to an erroneous
D decision."

15. Yet again in Niranjan Umeshchanda Joshi v. Mrudula Jyoti Rao &
Ors., [2006] 14 SCALE 186, this court observed:

"32. Section 63 of the Indian Evidence Act lays down the mode
E and manner in which the execution of an unprivileged Will is to be
proved. Section 68 postulates the mode and manner in which proof
of execution of document is required by law to be attested. It in
unequivocal terms states that execution of Will must be proved at
least by one attesting witness, if an attesting witness is alive subject
to the process of the court and capable of giving evidence. A Will is
F to prove what is loosely called as primary evidence, except where
proof is permitted by leading secondary evidence. Unlike other y
documents, proof of execution of any other document under the Act
would not be sufficient as in terms of Section 68 of the Indian Evidence
Act, execution must be proved at least by one of the attesting
G witnesses. While making attestation, there must be an animus
attestandi, on the part of the attesting witness, meaning thereby, he
must intend to attest and extrinsic evidence on this point is receivable.

33. The burden of proof that the Will has been validly executed
and is a genuine document is on the propounder. The propounder is
H also required to prove that the testator has signed the Will and that
APOLINE D' SOUZA v. JOHN D' SOUZA (S.B. SINHA, J.) 1111

1 he had put his signature out of his own free will having a sound A
disposition of mind and understood the nature and effect thereof. If
sufficient evidence in this behalf is brought on record, the onus of the
propounder may be held to have been discharged. But, the onus
would be on the applicant to remove the suspicion by leading sufficient
and cogent evidence if there exists any. In the case of proof of Will,
a signature of a testator alone would not prove the execution thereof, B
if his mind may appear to be very feeble and debilitated. However, if
a defence of fraud, coercion or undue influence is raised, the burden
would be on the caveator. [See Madhukar D. Shende v. Tarabai
Shedage, (2002] 2 SCC 85 and Sridevi & Ors. v. Jayaraja Shetty &
Ors., (2005] 8 SCC 784. Subject to above, proof of a Will does not
ordinarily differ from that of proving any other document."
c
Noticing B. Venkatamuni (supra), it was observed:

"36. The proof 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. D
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 E
incredulity is demanded from the judge even there exist circumstances
of grave suspicion. [See Venkatachala Iyengar (supra)]"

(See also Joseph Antony Lazarus (Dead) By LRs. v. A.J. Francis, (2006] 9 SCC
515].
F
16. In S. Sankaran v. D. Kausa/ya, (2007] 3 SCALE 186, it was stated:

"6. A learned Single Judge of the High Court by his judgment
dated 25.5.1996 held that the will dated 24.9.1986 was genuine and was
not a forged one. The learned Single Judge took into consideration
various factors e.g. that the testator himself presented the will for G
execution, and there was a dispute between the testator and his elder
daughter and hence he wanted to bequeath his properties to his
~- second daughter and the sons born to her, etc.
7. In appeal the Division Bench of the Madras High Court set
aside the judgment of the learned Single Judge but without a proper H
1112 SUPREME COURT REPORTS (2007) 6 S.C.R.

A consideration of the various facts and circumstances of the case
mentioned by the learned Single Judge in his very elaborate judgment.

8. The Division Bench was evidently influenced by the fact that
the elder daughter was deprived of her share in her father's property.
However, the Division Bench has not taken into consideration the
various considerations which according to learned Single Judge
B
motivated the testator to deprive his elder daughter, the respondent
herein."

[See also Benga Behera & Anr. v. Braja Kishore Nanda & Ors. C.A. No.3467
of2003, disposed ofon 15.05.2007] }-

C 17. Reliance placed by Dr. Raju on Brahmadat Tewari v. Chaudan Bibi
AIR (1916) Calcutta 374 and Riazulnisa Begam, Mst v. Lala Puran Chand
[!LR XIX Lucknow 445] are misplaced.

18. The requirements to prove execution of the will are laid down under
Section 63 of the Act only in the year 1925. The law has since undergone a
D change. In any event, this Court is bound by the decisions of this Court.

19. In Naresh Charan Das Gupta v. Paresh Charan Das Gupta, (1954]
SCR I 035 whereupon again reliance has been placed, this Court has
categorically held : -<

" .... It cannot be laid down as a matter of law that because the witnesses
E did not state in examination-in-chief that they signed the will in the
presence of the testator, there was no due attestation. It will depend
on the circumstances elicited in evidence whether the attesting
witnesses signed in the presence of the testator. This is a pure
question of fact depending on appreciation of evidence. The finding
of the Court below that the will was duly attested is based on a
F consideration of all the materials, and must be accepted .... "

20. The ratio of the said decision does not assist the appellant, as the
mode and manner of proof of due execution of a will indisputably will depend
upon the facts and circumstances of each case. It is for the propounder of
the will to remove the suspicious circumstances, which has not been done
G in this case.

21. For the reasons aforementioned, there is no merit in this appeal,
which is accordingly dismissed. In the facts and circumstances of the case,
there shall, however, be no order as to costs.
H N.J. Appeal dismissed.