BALATHANDAYUTHAM & ANR.versusEZHILARASAN

                    [2010] 4 S.C:R. 733

             BALATHANDAYUTHAM & ANR.                           A
                             V.
                      EZHILARASAN
             (Civil Appeal No. 7357 of 2002)
                     APRIL 16, 2010
                                                               B
   [G.S. SINGHVI AND ASOK KUMAR GANGULY, JJ.]

      Indian Succession Act, 1925 - s.63 - Execution of
unprivileged Wills - Execution of registered Will by testator-
Certain properties bequeathed in favour of his sons and C
daughters but no property bequeathed to his eldest son-
claimant - Suit by one of the beneficiaries - Claimant's case
that the first Will was not genuine and had been revoked by
testator by subsequent Wills - First appellate court decreeing
the suit in favour of beneficiary holding that the existence of D
first Will was admitted and the subsequent Wills were not
proved - Upheld by High Court - On appeal, held:
Subsequent Wills are surrounded by various suspicious
circumstances - Claimant failed to discharge its on~of
removing the suspicious circumstances surrounding the Wills E
- Attesting witness orthe Wills also not examined - Thus,
order of High Court upheld - Evidence Act, 1872 - s. 68.

    The father executed a registered Will and
bequeathed certain properties in favour of his two sons-       F
respondent and G; and his two daughters. He did not
bequeath any property to his eldest son-appellant no.1.
The father-testator died on 23.5.1980. Thereafter, the
appellant tried to disturb the poss~ssion of the
respondent. The respondent filed a suit. The appellant
contended that the said Will was not genuine and was           G
revoked by testator by another Will dated 25.4.1980 an~
also thereafter, b/ another Will dated 02.05.1980. The
appellant claimed his rights under the subsequent Wills-
Ex.B-19 and Ex.B-20. The trial court dismissed the suit.
                           733                                 H
    734      SUPREME COURT REPORTS               [2010) 4 S.C.R.


A The first appellate court allowed the appeal and decreed
  the suit. It held that the existence of the first Will has been
  admitted and the subsequent Wills were not proved since
  no attesting witnesses were produced to prove the two
  subsequent unregistered Wills; and the same were
B executed when the testator was unwell. The High Court
  upheld the order. It found that the first Will was executed
  while the testator was residing with the respondent and
  his family at place V and the subsequent Wills were
  executed couple of weeks prior to the death of the
c testator, at place C where appellant was residing. Hence
  the appeal.

          Dismissing the appeal, the Court

       HELD: 1.1. When a Will is surrounded by suspicious
D circumstances, the person propounding the Will has a
  very heavy burden to discharge. 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 Will is unnatural, improbable
E 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 surrounded by suspicious circumstances.
  [Para 8] [739-G-H; 740-A-C]
F
       1.2. Under section 63 of the Indian Succession Act,
  1925, the Will 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
G 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
H witness be present at the same time, and no particular
  BALATHANDAYUTHAM & ANR. v. EZHILARASAN               735


form of attestation shall be necessary. Section 68 of the     A
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     B
the Court is capable of giving evidence. [Para 11] [740-
E-H; 741-A-B]

     2.1. In the instant case, both the subsequent Wills-
Ex.B-19 and Ex.B-20 were allegedly executed by the
testator a couple of weeks before his death and when he       C
was made to stay in the house of the 1st appellant. It
appears that the attestors of both the said two Wills were
all of place C 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   D
respondent. These are suspicious circumstances
surrounding Ex.B-19 and Ex.B-20. The High Court also
found on analyzing the said facts that there are
suspicious circumstances surrounding the execution of
Ex.B-19 and Ex.B-20 and they are required to be dispelled     E
by the appellant. The statutory requirements u/s. 68 of the
Evidence Act and u/s. 63 of Indian Succession Act are to
be fulfilled which have not been done. Not a single
attesting witness of Ex.B-19 and Ex.B-20 was examined.
[Paras 6 and 7] [739-B-F]                                     F

     2.2. Both Ex.B-19 & Ex.B-20 are surrounded by
various suspicious circumstances. The appellants did
not succeed in discharging its onus of removing the
suspicious circumstances surrounding Ext 819 & 820.           G
The High Court upheld the finding of the first appellate
court that Ex.B-19 and Ex.B-20 have not been proved.
The High Court 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. Thus, there is no reason to find any error in the      H
    '736      SUPREME COURT REPORTS               [2010] 4 S.C.R.


A judgment of the High Court. [Paras 8, 10 and 14) [739-G;
  740-F; 742-A-B]

       H. Venkatacha/a Iyengar v. 8.N. Thimmajamma and Ors
  AIR 1959 SC 443; Madhukar 0. Shende v. Tarabai Aba
B Shedage (2002) 2 SCC 85; Niranjan Umeshchandra Joshi
  v. Mrudula Jyoti Rao and Ors. (2006) 13 SCC 433; Savithri
  and Ors. v. Kqrthyayani Amma and Ors. (2007) 11 SCC 621,
  relied on.

                           Case Law Reference:
c          AlR 1959 SC 443         Relied on.           Para 8
           (2002) 2 sec 85         Relied on.           Para 13

           (2006) 13 sec 433       Relied on.           Para 13
D          (2001) 11 sec 621       Relied on.           Para 13

        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    7357 of 2002.

      From the Judgment & Order dated 10.12.2001 of the High
E Court of Judicature at Madras In S.A. No. 130 of 2000.

           V. Prabhakar, R. Chandrachud for the Appellants.

           B. Sridhar, K. Ram Kumar for the Respondent.
F          The Judgment of the Court was delivered by

           GANGULY, J. 1. Heard counsel for the parties.

       2. The material facts of the case are: Late Mr. M.
G Ramachandran, the father of the 1st appellant as also of the
  plaintiff-respondent, had three sons, namely, Balathandayutham
  (1st appellant), Ezhilarasan (plaintiff-respondent) and one
  Gnanavoli and two daughters - Kalai Arasi and lsai Amudhu
  and his wife was Nachiar Ammal. It is not in dispute that
H Ramachandran acquired certain properties and in his lifetime
  BALATHANDAYUTHAM & ANR. v. EZHILARASAN                     737
         [ASOK KUMAR GANGULY, J.]
he executed a Will which was registered on 25.09.1972. By the      A
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       B
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 C
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 Will dated 25.09.1972 was made
by the testator in favour of the 1st appellant. The testator 0
Ramachandran died on 23.5.1980 and after his death, the .
plaintiff-respondent was in exclusive possession of the property.
At that stage ttie 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 E
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- F
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 G
 upholding 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
                                                                    H
    738      SUPREME COURT REPORTS                   [2010] 4 S.C.R.


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
B   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
C   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 the two
    subsequent Wills. The First Appellate Court also noted that it
    was admitted that the subsequent Will dated 25.4.1980 is an
D   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
E   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
F 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.A 1) was executed
  while the testator was residing with the plaintiff and his wife and
G 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
H provisions were made in favour of the 1st appellant and they
  8ALATHANDAYUTHAM & ANR. v. EZHILARASAN                    739
         [ASOK KUMAR GANGULY, J.]
were allegedly executed when the testator was staying in the        A
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,
                                                                    B
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 testator back to his house at Villupuram
where he was staying all these years and where he ultimately        C
died. Therefore, both the subsequent Wills, namely, Ex.8-19
and Ex.8-20 were allegedly executed by the testator a couple
of weeks before his death and when he was made to st~y in
the house of the 1st appellant. It appears that the attestors of
both the aforesaid two Wills were all of Cuddalore and were         D
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.
8-19 and Ex.8-20.                                                   E

      7. The High Court also found on analyzing the aforesaid
facts that there are suspicious circumstances surrounding the
execution of Ex.8-19 and Ex.8-20 and they are required to be
dispelled by the appellant. The statutory requirements under
                                                                    F
Section 68 of the Evidence 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.8-19 and Ex.8-
20 has been examined.

     8. This Court also thinks that in view of the discussion       G
made herein above that both the Ex. 8-19 & 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
    740     SUPREME COURT REPORTS                   [2010] 4 S.C.R.


A   H. Venkatacha/a 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
8 is not sufficient evidence as to the mental capacity of the
  testator or where the deposition in the 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
C 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
D 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
E the last Will of the testator." [see page 452]

          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
F   surrounding Ext 819 & 820. 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
G 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
H Will in the presence of the testator, but it shall not be necessary
  BALATHANDAYUTHAM & ANR. v. EZHILARASAN                      741
         [ASOK KUMAR GANGULY, J.]
that more than one witness be present at the same time, and           A
no particular form of attestation shall be necessary. Section 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     B
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.             C
Venkatacha/a (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         D
be satisfied by the party who relies on a document in a Court
of law. It was further held that Section 63 of Indian 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       E
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       F
be decided in the light of these provisions. [see pg 451]

       13. The law thus laid down in H. Venkatachala (supra) is
still holding fielo and this Court has followed the same in various
other judgments. [See Madhukar D. Shende v. Tarabai Aba               G
Shedage, (2002) 2 SCC 85; Niranjan Umeshchandra Joshi
v. Mrudu/a Jyoti Rao and others., (2006) 13 SCC 433 and
Savithri and Others v. Karthyayani Amma and Others, (2007)
11 sec 6211

     14. On consideration of the aforesaid materials, the High        H
    742      SUPREME COURT REPORTS                 [2010) 4 S.C.R.


A Court affirmed the finding of the First Appellate Court that Ex.B-
   19 and Ex.8-20 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.
B
        15. We also affirm the aforesaid finding of the High Court
   and dismiss this appeal leaving the parties to bear their own
   costs.

    N.J.                                       Appeal dismissed.