Holding

Proof of execution under Section 63 is necessary but not sufficient; the court must consider all suspicious circumstances and cannot ignore them when determining the validity of a will.

Summary

The case concerned the validity of an unregistered will executed by an unmarried woman, Akkayamma, bequeathing her property to one of the children of her paramour, Jai Singh. The trial court and a single High Court judge rejected the will, citing nine (later twelve) suspicious circumstances surrounding its execution, including the unusual choice of scribe, the timing of deeds, and the lack of genuine witnesses. The Division Bench of the High Court, exercising letters‑patent jurisdiction, reversed those findings, holding that proof of execution under Section 63 of the Indian Succession Act was sufficient and that the surrounding suspicious circumstances could be ignored. On appeal, the Supreme Court held that compliance with statutory formalities is necessary but not sufficient; the court must examine the totality of circumstances and cannot disregard legitimate suspicions. Consequently, the Division Bench’s judgment was set aside and the appeal was allowed, restoring the lower courts' finding that the will was not proved.

Issues considered

Whether proof of execution of a will under Section 63 of the Indian Succession Act and Sections 67, 68 of the Evidence Act is sufficient to disregard suspicious circumstances surrounding its execution.
Whether the court must consider all surrounding circumstances and satisfy its conscience before accepting a will as genuine.

Legislation cited

Indian Evidence Act, 1872s. 67, s. 68
Indian Succession Act, 1925s. 295, s. 63

Subjects

probatewillIndian Succession Actsuspicious circumstancesproof of willSection 63Evidence Actletters patent appealforgerytestamentary capacity

Judgment

B. VENKATAMUNI A
V.

C.J. AYODHYA RAM SINGH AND ORS.

,, OCTOBER 19. 2006

(S.B. SINHA AND D.K. JAIN, JJ.] B

Indian Succession Act, 1925-Section 63-Evidence Act, 1872-Sections
67 and 68-Application for grant of probate of a Will-Application opposed
,., on the ground that the Will is a forged one-Trial Court held that the Will
could not have been executed by testator in view of presence of a number c
of suspicious circumstances surrounding the execution of the Will-Single
Judge of High Court, in appeal, confirmed the findings of the trial court-
Division Bench, in letters Patent Appeal, reversed the findings of the lower
courts holding that the sourrounding circumstances should be ignored on
the ground that the execution of the Will has been proved under th Succession D
Act-Correctness of-Held, on fac/s there are a number of suspicious
circumstances glaring on the face of the record in execution of the Will,
which cannot be ignored-Hence, Division Bench of the High Court is in
error in proceeding on the premise that compliance of legal formalities as
regards proof of the Will would sub-serve the purpose.
E
An unmarried lady A had been living with one J, a married person.
Respondents 1 to 3 are the children of J through his legally wedded wife. The
respondent filed an application for grant of probate before trial court ofa Will,
which was purported to have been executed by A just three days before her
death. Appellant, who is a legal heir of A, opposed to the prayer for grant of
F
probate in favour of the respondents. In view of the opposition, the trial court
converted the application into a regular suit under section 295 of the Indian
Succession Act, 1925. The appellant contended before the trial court that the
Will was a forged one. The trial court dismissed the suit of the respondents
holding that the Will could not have been executed by A in view of the presence
ofa number of suspicious circumstances surrounding the execution of the G

- Will. An appeal preferred by the respondents was dismissed by Single Judge
of the High Court. Letters Patent Appeal preferred by the respondents was,
however, allowed by the Division Bench of the High Court holding that the
execution of the Will has been found to be proved under section 63 of the Act

-· 787 H
788 SUPREME COURT REPORTS [2006] SUPP. 7 S.C.R.

A and that the surrounding circumstances are not suspicious in nature.
In appeal to this Court, the appellant contended that the High Court erred
in ignoring a large number of surrounding suspicious circumstances in
execution of the Will; and that the High Court erred in holding that once the ~,

Will stands proved under section 63 of the Act, the suspicious circumstances
B should be ignored.

The respondents contended that once the execution of the Will has been
found to be proved under section 63 of the Act, surrounding circumstances

c
should be ignored.

Allowing the appeal, the Court ·-
HELD: 1.1. When a question comes up for consideration before a Court
in regard to grant of probate or Letters of Administration with a copy of the
-
Will annexed thereto, it is trite that all circumstances should be taken into
consideration. The proof of execution of the Will in terms of section 63 of the
D Indian Succession Act, 1925 and Sections 67 and 68 of the Indian Evidence
Act, 1872 would be a pre-requisite, but, to take the same in evidence, while
arriving at a finding as to whether the Will has been duly executed or not,
the Court must satisfy its conscience having regard to the totality of the
circumstances. (792-A-C)
E 1.2. In the event of suspicion in regard to the genuineness or otherwise,
the Will must be proved to have been executed in accordance with law
establishing that the same has been done in presence of at least two witnesses.
Although, the Court should not approach the question with a suspicion that
the Will is not a genuine one, the general guidelines laid down by this Court
F in this behalf should be followed. The issue necessarily involves due
appreciation of evidence. [792-D, E)
1.3. The Division Bench of the High Court was 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
G circumstances surrounding the execution thereof is not of much significance.
The suspicious circumstances 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. It applied a wrong legal test and thus came to an erroneous decision.

H
(800-E-Fl

·-
B. VENKATAMUNI r. C..I. AYODHY A RAM SINGH [S.B. SINl-IA. J.] 789
..... .,, Umabai & Anr. v. Nilkanth Dhondiba Chavan (Dead) by LRs. & Anr., A
120051 6 SCC 243; Surrendra Pal & Ors. v. Dr. (Mrs.) Saraswati Arora &
Anr., 1197412 SCC 600; H. Venkatacha/a Iyengar v. B.N. Thimmajamma &
Ors., 119591 Supp. I SCR 426; Smt. Gura v. Atma Singh & Ors., 1199212
SCR 30; Dau/at Ram & Ors. v. Sodha & Ors., 120051 I SCC 40;
Meenakshiammal (Dead) through LRs. & Ors. v. Chandrasekaran & Anr.,
12005] I SCC 280; Sridevi & Ors. v. Jayaraja Shelly & Ors., 12005) 8 SCC B
784 and Pentakota Satyanarayana & Ors. v. Pentakota Seetharatnam & Ors.,
12005) 8 sec 67, referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4550 of2006.

From the final Judgment and Order dated 26.10.2004 of the High Court C
of Judicature of Andhra Pradesh at Hyderabad in L.P.A. No. 213 of 1988.

T.N. Rao, Manjeet Kirpal, A.V.S. Prasad and V.S. Raju for the Appellant.

V. Balachandran, K. Swami and Prabha Swami for the Respondents.
D
The Judgment of the Court was delivered by

S.B. SINHA, J. Leave granted.

One Smt. B. Akkayamma, although not a highly educated lady, was
carrying on the profession of money lending. She acquired considerable E
property. The immovable properties held and possessed by her were situate
in the District of Chittoor in the State of Andhra Pradesh and at Arkonam in
the State of Tamil Nadu. She was unmarried. She had, however, been living
with one Shri C.D. Jai Singh. Respondent Nos. I to 3 are children of the said
Jai Singh through his legally wedded wife Smt. Shyam Bai. She was original F
plaintiff No. 4 in the suit. She, during the pendency of the suit, however,
expired.

Jai Singh shifted to Arkonam from Tirupati. Akkayamma followed him.
They started living together. She had, however, been visiting Chittoor and
Tirupati occasionally. Plaintiffs-Respondents originally developed a disliking G
for Akkayamma. A· suit was also filed against her, but it appears from the
records that they had later reconciled and she was accepted as a member of
the family. A purported Will was executed by Akkayamma on 23rd March,
1968 bequeathing her properties situate in the District of Chittoor in favour
of respondent No. I herein only. The said Will was an unregistered one. It may
H
790 SUPREME COURT REPORTS [2006] SUPP. 7 S.C.R.

A be, however, noticed that Jai Singh expired on 17th July, 1968. During his
illness, although Akkayamma was possessed of sufficient properties both
movable and immovable, but she did not spend any amount towards his
treatment. Admittedly, she was of miserly nature. Surprisingly, however, she
executed two deeds on 26. 9.1968 transferring her properties situate at Arkonam
in favour of respondents. She expired on 29th September, 1968. Although in
B the Will Respondent No. I alone was the beneficiary thereof, not only
Respondent Nos. 2 and 3, but, as noticed herein before, their mother also filed
an application for grant of probate in the Court of District Judge, Chittoor.
Respondent No.4 herein, who is said to be the tenant in one of the premises
in question, was impleaded as a party therein. Appellant herein was r..Jt .It::.-

C initially imp leaded as a party, although, he was the heir and legal representative
of Akkayamma. He was impleaded at a later stage. The application for grant
of probate was also amended by making an alternative prayer for grant of
Letters of Administration. A caveat in the meantime had also been lodged by
Appellant.
..
D In view of the opposition to the prayer for grant of probate, the learned
District Judge, by an order dated 2.7.1975 directed that O.P.No.102of1970 be
converted into a regular suit in terms of Section 295 of the Indian Succession
Act, 1925. In the said suit, Appellant in his written statement, inter alia,
contended that the Will in question was a forged one. The learned trial court,
E in view of the pleadings of the parties, inter alia, framed the following issues:

"!. Whether the will dt. 23 .3 .1968 alleged to have been executed by
late Akkayamma is true, valid and binding on the defendant?
2 Whether the defendant is a reversioner to the estate of late
Akkayamma?
F 3. Whether this court has no jurisdiction to entertain this suit?
4. Whether this suit is not maintainable for non-compliance with
any of the provisions of Indian Succession Act?
5. Whether the court fee paid is incorrect?
G 6. Whether the plaintiffs are entitled to a probate or letters of
administration in respect of the suit property?
7. Whether the plaintiffs are entitled to declaration prayed for?
8. To what relief?"
H -
B. VENKATAMUNI v. C.J. AYODHYA RAM SINGH [S.B. SINHA.J.] 791
In his judgment dated 28th October, 1981, the learned Judge opined that A,
in view of presence of nine suspicious circumstances surrounding the execution
of the Will, the same could not be held to have been executed by Akkayyamma.
An appeal preferred thereagainst by Respondent Nos. I to 3 was dismissed
by a learned Single Judge of the High Court by a judgment and order dated
19th June, 1995. The learned Single Judge in his judgment, apart from nine B
circumstances enumerated by the learned trial Judge, also added three
circumstances thereto in arriving at a finding that the execution of the said
Will has not been proved.

A Division Bench of the High Court, however, while exercising its
Letters Patent jurisdiction, by reason of the impugned judgment dated 26th C
October, 2004 reversed the said judgments holding that the evidence on
record satisfies the requirements of Section 63 of the Indian Succession Act
and that the trial court as also the learned Single Judge erred in discarding
the Will on circumstances none of which was a suspicious one attending due
execution of the Will. Appellant is, thus, before us.
D
Mr. T.N. Rao, learned counsel appearing on behalf of the appellant
submitted that the Division Bench of the High Court committed a serious error
in ignoring a large number of suspicious circumstances surrounding purported
execution of the Will as opined by the learned District Judge as also the High
Court. It was urged that the Division Bench committed an error in so far as
wrong legal tests were applied in opining that once the Will stands proved, E
the suspicious circumstances enumerated by the trial court and the Single
Judge, take a back.seat. It was submitted that in view of the findings of fact
arrived at by the learned District Judge and the learned Single Judge, the
Division Bench was obliged to consider each of the enumerated circumstances
and in not doing so, it has committed a manifest error. p

Mr. V. Bal.achandran, learned counsel appearing on behalf of
respondents, on the other hand, urged that once execution of the Will has
been found to be proved in terms of the provisions of Section 63 of the Indian
Succession Act, even if there existed some discrepancies, the same should
be ignored as the witnesses had deposed after a long time. G
Akkayamma was not a highly educated lady. She received only primary
education. She could only put her signature. She was otherwise worldly. She
was of miserly nature. She was originally a resident of Aronam. She knew the
importance of registration of document as only a couple of days before her
death, i.e., 29th September, I968 she executed two deeds of settlement in H
792 SUPREME COURT REPORTS [2006] SUPP. 7 S.C.R.

A favour of Respondents. We need not go into the question as to whether
Plaintiffs-Respondents have sufficiently proved love and affection of
Akkayamma for them, but, when a question comes up for consideration before
a court in regard to grant of probate or Letters of Administration with a copy
of the Will annexed thereto, it is trite that all circumstances should be taken
into consideration. It may be true, as has been opined by the Division Bench
B of the High Court, that proof of execution of the Will in terms of Section 63
of the Indian Succession Act and Sections 67 and 68 of the Indian Evidence
Act would be a pre-requisite, but, to take the same in evidence it is also trite
that while arriving at a finding as to whether the Will has duly been executed
or not, the court must satisfy its conscience having regard to the totality of
C the circumstances. The Will in question was executed on 23.3.1968. It was an
unregistered one. She was ordinarily not a resident of District of Chittoor. She
used to visit the said place occasionally. She did not know intimately the
scribe of the Will, namely, P. W.1-Shri V. Thyagarajan. He was a teacher. There
was no reason for Akkayamma to walk to his residence and ask him to scribe
the Will. If P.W.1 was not a professional scribe, there may not be any particular
D reason as to why Akkayamma had chosen him for the said job. In the event
of suspicion in regard to the genuineness or otherwise, the Will must be
proved to have been executed in accordance with law establishing that the
same has been done in presence of at least two witnesses. Although, the
court should not approach the question with a suspicion that the Will is not
E a genuine one, the general guidelines laid down by this Court and the High
Court in this behalf should be followed. The issue necessarily involves due
appreciation of evidence. We may notice that in the Will Akkayamma described
herself as the father's wife of Shri C.D. Jaya Singh. What is meant by that
is not known. While describing herself as the father's wife ofC.D. Jaya Singh,
it was stipulated that she had been having that status for the last 40 years.
F Our attention has been drawn to the findings of the learned District Judge
by the learned counsel for Respondents that Akkayamma developed love and
affection not only for Jai Singh, but also for his children through his first wife
and particularly, the 3rd plaintiff who was his daughter. If that be the position,
then why she had not bequeathed any property in her favour is difficult to
G understand. The learned District Judge enumerated nine circumstances which,
according to him, were relevant for considering the proof of due execution
and attestation of the Will in question, which are as under :

I. Akkayamma lived with Jai Singh, the father of the plaintiffs 1 to
3 and husband of plaintiffNo.4 at Arkonam in Tamilnadu while
H the plaintiffs lived at Chittoor in Andhra Pradesh till Jai Singh
B. VENKA TAMUN! v. C.J. AYODHYA RAM SINGH [S.B. SINHA, J.] 793

and she died. A
2. There are indications to show that the plaintiffs were against
Akkayamma to some extent when the second plaintiff filed a suit
for partition on the ground that Jai Singh squandered the property
after he developed contact with Akkayamma.
3. There was no special reason for love and affection between B
them except that Akkayamma had no children. There was no
reason for Akkayamma in particular to choose first plaintiff to
bequeath the ~chedule properties ignoring all other similarly
placed persons like plaintiffs 2 and 3.
4. Piecemeal disposal of her properties at different stages and
c
different types of documents Exs. A.I, B.24 and B.25, namely,
settlement deed looks unnatural.
5. Akkayamma leaving registered documents Exs. B.24 and B.25
just three day prior to her death as against unregistered will six D
months prior to her death looks suspicious.
6. The will and settlement deeds almost read similar with same
intentions consequently leading to a serious doubt.
7. The signature of Akkayamma on Ex.A. I as Akkayamma Chevralu
for the first time as against her usual signature on many E
documents including the settlement deeds Ex. B.24 and B.25
coming out just three days prior to her death with signature as
Akkayamma speaks of something unnatural in the conduct of
her.
8. The omission to mention the execution of Ex.A. I will or the F
execution of such property in Exs. B.24 and B.25 is a strong
circumstance leaving a serious suspicion on the conduct of
Akkayamma.
9. The contents of Ex.A. I, which are conditional and contingent,
appear to be unnatural." G
The learned Single Judge in his judgment agreed therewith. Both the
learned District Judge as also the High Court pointed out a number of
infirmities in the testimonies of the !st plaintiff as also P.Ws. I- the scribe and
P. Ws. 2 and 3 - the attesting witnesses. To disbelieve their evidences in H
regard to the execution of the Will (Exhibit A. I), the learned courts pointed
794 SUPREME COURT REPORTS [2006] SUPP. 7 S.C.R.

A out that if Akkayamma wanted to execute a Will, she would have done so in
her own house or in the house of plaintiffs. P. Ws. I to 3, on their own
showing, were strangers to her. They had not even seen Jai Singh. They had
no occasion to meet Akkayamma at any point of time and they had expressed
their ignorance about her. They even did not know whether Jai Singh was
alive at the time of their deposition. According to them, on the date of
B execution of the Will Jai Singh had not expired, which was not a fact. All this,
and rightly so, could not be ignored by the trial judge as also by the High
Court. The scribe, P.W.I, even did not explain as to how he was prevailed
upon to draft an important document like Will and what was his experience
therefor. It had further been noticed that P.W.2 worked in the same Bank
C wherein the 1st plaintiff was employed. Plaintiff No.2 was the son of P.W.1
and P.W.3 was also a relative of the plaintiffs. They were, thus, termed as
interested witnesses by the learned District Judge. The learned Singe Judge
on further re-appreciation of evidence added three more circumstances stating
as the suspicious ones, which are as under :
D l. Akkayamma came all the way from Arkonam to Chittoor and
went to the house of a stranger P.W.2 while thinking of leaving
a will only in favour of first plaintiff without any background or
reason and the said conduct lends no explanation on the part
of the plaintiffs.
E 2. It appears that Akkayamma who is said to be a miserly lady -
when she did not spare any property while her paramour -
husband like Jai singh was on death-bed, thought of leaving a
Will in favour of plaintiff No. I for no reason.
3. Akkayamma appears to have included some of.the properties
F found in Ex.A I in Exs. B.24 and B.25 also as detailed by the
learned District Judge."

In an intra-court appeal, the Division Bench undoubtedly may be entitled
to re-apprise both questions of fact and law, but the following dicta of this
G Court in Umabai & Anr. v. Nilkanth Dhondiba Chavan (Dead) By LRs. &
Anr., [2005] 6 SCC 243, could not have been ignored by it, whereupon the
learned counsel for Respondents relied:

"It may be, as has been held in Asha Devi v. Dukhi Sao, [1974]
2 sec 492 that the power of the appellate court in intra-court appeal
H is not exactly the same as contained in Section 100 of the Code of
Civil Procedure but it is also well known that entertainment of a letters
B. VENKATAMUNI v. C.J. AYODHYA RAM SINGH [S.B. SINHA,J.] 795
patent appeal is discretionary and normally the Division Bench would A
not, unless there exist cogent reasons, differ from a finding of fact
arrived at by the learned Single Judge. Even as noticed hereinbefore,
a court of first appeal which is the final court of appeal on fact may
have to exercise some amount of restraint."

In the said decision, it was further noticed: B
Yet in Manjzmath Anandappa v. Tammanasa, [2003] JO SCC 390
it was held : (SCC p. 403, para 36)

"36. It is now also well settled that a court of appeal should not
ordinarily interfere with the discretion exercised by the courts below." C
The Division Bench of the High Court did not address itself to the
circumstances noticed by the learned Single Judge, but proceeded on the
premise that once execution is duly proved, the court may not probe deeper
into the matter stating :
D
"If the various requirements of a valid will are established, then
as observed by the Privy Council in Motibai Hormusjee 's case, "A
man may act foolishly and ever heartlessly; if he acts with full
comprehension of what he is doing the Court will not interfere with
the exercise of his volition."
E
Section 63 of the Indian Succession Act provides :

"63. Execution of unprivileged wills.

* * *
(a) the testator shall sign or shall affix his mark to will, or it shall F
be signed by some other person in his presence and by his
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. G

(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 H
796 SUPREME COURT REPORTS (2006] SUPP. 7 S.C.R.

A 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."

Proof of a Will shall strictly be in terms of the abovementioned provisions.
B
It is, however, well settled that compliance of statutory requirements
itself is not sufficient as would appear from the discussions hereinafter made.

The approach of the Division Bench of the High Court did not address
itself the right question. It took an erroneous approach to the issue as would
C appear from the decision of this Court in Surendra Pal & Ors. v. Dr. (Mrs.)
Saraswati Arora & Anr., [1974] 2 SCC 600, whereupon again Mr. V.
Balachandran himself placed reliance, wherein the law was stated in the
following terms :

"The propounder has to show that the Will was signed by the
D testator; that he was at the relevant time in a sound disposing state
of mind, that he understood the nature and effect of the dispositions,
that he put his signature to the testament of his own free will and that
he has signed it in the presence of the two witnesses who attested
it in his presence and in the presence of each other. Once these
elements are established, the onus which rests on the propounder is
E discharged. But there may be cases in which the execution of the Will
itself is surrounded by suspicious circumstances, such as, where the
signature is doubtful, the testator is of feeble mind or is overawed by
powerful minds interested in getting his property, or where in the light
of the relevant circumstances the dispositions appear to be unnatural,
F improbable and unfair, or where there are other reasons for doubting
that the dispositions of the Will are not the result of the testator's free
will and mind. In all such cases where there may be legitimate suspicious
circumstances those must be reviewed and satisfactorily explained
before the Will is accepted. Again in cases where the propounder has
himself taken a prominent part in the execution of the Will which
G confers on him substantial benefit that is itself one of the suspicious
circumstances which he must remove by clear and satisfactory
evidence. After all, ultimately it is the conscience of the court that has
to be satisfied, as such the nature and qualify of proof must be
commensurate with the need to satisfy that conscience and remove
H any suspicion which a reasonable man may, in relevant circumstances
B. VENKA TAMUNI v. C.J. AYODHY A RAM SINGH [S.B. SINHA, .I.] 797
of the case, entertain." A
In H. Venkatachala Iyengar v. B.N. Thimmajamma & Ors., [1959)
Supp. I SCR 426, it was opined :

"However, there is one important feature which distinguishes wills
from other documents. Unlike other documents the will speaks from B
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 C
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 D
put his signature to the document of his own free will. 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 E
proof of the essential facts just indicated.

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 F
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 G
unnatural, improbable or unfair in the light ofrelevant 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 accepted as the last will
of the testator. The presence of such suspicious circumstances H
798 SUPREME COURT REPORTS [2006] SUPP. 7 S.C.R.

A 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
B 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."

c opinedIn: Smt. Guro v. Atma Singh & Ors., [1992] 2 SCR 30, this Court has
"With regard to proof of a will, the law is well-settled that the
mode of proving a will does not ordinarily differ from that of proving
any other document except as to the special requirement prescribed
in the case of a will by section 63 of the Indian Succession Act. The
D
onus of proving the will is on the propounder and in the absence of
suspicious circumstances surrounding the execution of the will, proof
of testamentary capacity and signature of the testator as required by
law is sufficient to discharge the onus. Where, however there were
suspicious circumstances, the onus would be on the propounder to
E explain them to the satisfaction of the court before the will could be
accepted as genuine. Such suspicious circumstances may be a shaky
signature, a feeble mind and unfair and unjust disposal of property or
the propounder himself taking a leader part in the making of the will
under which he receives a substantial benefit. The presence of
suspicious circumstances makes the initial onus heavier and the
F
propounder must remove all legitimate suspicion before the document
can be accepted as the last will of the testator."

Yet again Section 68 of the Indian Evidence Act postulates the mode
and manner in which proof of execution of document required by law to be
G 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.

This Court in Daulat Ram & Ors. v. Sodha & Ors., [2005] I SCC 40,
stated the law thus :
H
B. VENKATAMUNI v. C.J. AYODHYARAM SINGH [S.B. SINHA,J.) 799
"Will being a document has to be proved by primary evidence A
except where the court permits a document to be proved by leading
secondary evidence. Since it is required to be attested, as provided
in Section 68 of the Indian Evidence Act, 1872, it cannot be used as
evidence until one of the attesting witnesses 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 and capable of B
giving evidence. In addition, it has to satisfy the requirements of
Section 63 of the Indian Succession Act, 1925. In order to assess as
to whether the Will has been validly executed and is a genuine
document, the propounder has to show that the Will was signed by
the testator and that he had put his signatures to the testament of his C

-
own free will; that he was at the relevant time in a sound disposing
state of mind and understood the nature and effect of the dispositions
and that the testator had signed it in the presence of two witnesses
who attested it in his presence and in the presence of each other.
Once these elements are established, the onus which rests on the
propounder is discharged. But where there are suspicious D
circumstances, the onus is on the propounder to remove the suspicion
by leading appropriate evidence. The burden to prove that the Will
was forged or that it was obtained under undue influence or coercion ,
or by playing a fraud is on the person who alleges it to be so."

[Emphasis supplied] E

Yet again in Meenakshiammal (Dead) Through & Ors. v.
Chandrasekaran & Anr., [2005] I SCC 280, it was stated :

"In the case of Chinmoyee Saha v. Debendra Lal Saha it has
been held that if the propounder takes a prominent part in the execution F
of the will, which confers a substantial benefit on him, the propounder
is required to remove the doubts by clear and satisfactory evidence.
Once the propounder proves that the will was signed by the testator,
that he was at the relevant time in a sound disposing state of mind,
that he understood the nature and effect of the disposition and put G
his signature out of his own free will, and that he signed it in presence
of the witnesses who attested it in his presence, the onus, which rests
on the propounder, is discharged and when allegation of undue
influence, fraud or coercion is made by the caveator, the onus is on
the caveator to prove the same."
H
800 SUPREME COURT REPORTS (2006] SUPP. 7 S.C.R.

A (See also Sridevi & Ors. v. Jayaraja Shetty & Ors., (2005] 8 SCC 784].)

The principle was reiterated in Pentakota Satyanarayana & Ors. v.
Pentakota Seetharatnam & Ors., (2005) 8 SCC 67, wherein it was stated :

"In the instant case, the propounders were called upon to show
B 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. In other
words, the onus on the propounder can be taken to be discharged on
proof of the essential facts indicated above."
c
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 record meeting such prima facie case in which event the onus
D shifts back on the propounder to satisfy the court affirmatively that the
testator did not know well the contents of the Will and in sound disposing
capacity executed the same.

Each case, however, must be determined in the fact situation obtaining
therein.
E The Division Bench of the High Court was, with respect, thus, 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.

The suspicious circumstances pointed out by the learned District Judge
F
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 by the said court. It applied a wrong legal test
and thus, came to an e1Toneous decision.
G
For the reasons aforementioned, the impugned judgment cannot be
sustained. It is set aside accordingly. The appeal is allowed with costs.
Counsel fee assessed at Rs. I0,000/-.

B.S. Appeal allowed.
H