Supreme Court of India
BHARPUR SINGH & ORS.versusSHAMSHER SINGH
- Citation
- 2008 INSC 1429
- Decided
- 12 December 2008
- Disposal
- Appeal(s) allowed
- Bench
- S B SINHA
Holding
The Supreme Court held that the will was not proved as the lower courts failed to consider the suspicious circumstances and statutory requirements, and therefore set aside their orders.
Summary
Ram Devi, a 75‑year‑old widow, executed a will on 30‑March‑1962 in favour of Shamsher Singh, an agnate five degrees removed, disinheriting her two surviving daughters. After her death in 1990, Shamsher Singh sued the daughters (appellants) to set aside a mutation order in their favour, claiming he had looked after the testatrix and was a mortgagee and tenant of her lands. The trial court held that the will was not proved because the testatrix’s mental capacity and the circumstances of execution were doubtful. The appellate court and the Punjab High Court reversed that finding, accepting the will as valid. On appeal, the Supreme Court held that a will must be proved under Section 63(c) of the Indian Succession Act and Section 68 of the Evidence Act, and that registration alone is insufficient. The Court emphasized that suspicious circumstances – shaky signature, possible lack of capacity, undue benefit to the beneficiary, and the testatrix’s dependence on the beneficiary – must be examined and any doubt removed. Finding that the lower courts failed to consider these factors, the Supreme Court set aside their judgments and remanded the matter for fresh determination.
Issues considered
- The will executed by Ram Devi in favour of Shamsher Singh is a legal and valid will.
- Whether the statutory requirements for proving a will under Section 63(c) of the Indian Succession Act, 1925 and Section 68 of the Evidence Act, 1872 have been complied with.
- Whether the presence of suspicious circumstances defeats the presumption of validity of the will.
- The burden of proof when the validity of a will is challenged.
Legislation cited
- Indian Evidence Act, 1872s. 68, s. 69, s. 70, s. 90
- Indian Succession Act, 1925s. 61, s. 63
Subjects
WillProof of WillIndian Succession ActEvidence ActSuspicious circumstancesTestamentary capacityProbateMortgageeDisinheritance
Judgment
[2008] 17 S.C.R. 517
BHARPUR SINGH & ORS. A
v.
SHAMSHER SINGH
(Civil Appeal No. 7250 of 2008)
L
DECEMBER 12, 2008 B
_,
[S.B. SINHA A~D CYRIAC JOSEPH, JJ.]
~.
Indian Succession Act, 1925 - ss. 63 and 61 - Will -
Execution of -Execution of Will by old lady in favour of C
'Agnate' separated by five degrees, disinheriting her daughter
- Beneficiary of Will mortgagee and tenant of testatrix -
Allegation of suspicious circumstances by legal heirs of
testatrix - Trial court holding that beneficiary failed to prove
ex'ecution of legal and valid Will - However, appellate court 0
as also High Court holding that execution of Will proved - On
appeal, held: Court should adopt rational approach and
satisfy ''its conscience as existence of suspicious
circumstances play an important role - Appellate court as also
High Court did not consider these· aspects...;. Even though Will E
was registered, statutory requirements of proving Will need to
be' complied' with - 'Thus, order of High Court as also
appellate court set aside - Matter to be-considered afresh.
I ' O"~
l . . J .
RD, aged 75, years, executed a will in 1962 a.nd
bequeathed her property in favour of the respondent. She F
expired in 1.990 and was survived by two daughters.
Appellants are legal heirs and representatives of RD. In
1993, the respo.ndent ·filed suit against appellants for
setting aside the order of mutation passed in favo·ur of
appellants. Respondent contended that he looked after
RD during 'the life _time; that RD expired in his daughter's · G
house; that RD had disinherited her daughters; and that
he was mortgagee and tenant in respect of some of the
properties of RD. Appellants contended that RD did not
execute any will in view of services· rendered by
-d. · · 517 H
-,
518 SUPREME COURT REPORTS (2008] 17 S.C.R. e
'"
A ,respondent; that RD lost her balance of mind 60 years
ago when her husband died and had not been
possessing sound mental f'!culties; and that RD's ;-~
daughters were looking after her. Trial court held that the
respondent failed to prove that RD executed a legal and
B valid will in his favour out of sound disposing mind. It
granted a decree for declaration to the effect that the
respondent was owner-in-possession of the land and
restrained the appellants from alienating that part of the
land. However, it rejected the other reliefs. Both the ,.._,_
parties filed appeals. Appellate Court as also High Court
c held that the execution of the will was proved and was
not surrounded by suspicious circumstances. Hence the
present appeal. ·"
Allowing the appeal, the Court
D HELD:1.1. A will must be proved having regard to the
provisions contained in clause (c) of Section 63 of the
Indian Succession Act, 1925 and Section 68 of the
Evidence Act, 1872, in terms whereof the propounder of -r i<".Q
a will must prove its execution by examining one or more
attesting witnesses. Where, however, the validity of the
E
Will is challenged on the ground of fraud, coercion or
undue influence, the burden of proof would be on the .
caveator. In a case where the Will is surrounded by
suspicious circumstances, it would not be treated as the
last testamentary disposition of the testator. [Para 11]
F [527-G, H; 528-A]
1.2. The provisions of Section 90 of the Evidence Act ~
keeping in view the nature of proof required for proving .,..
a Will have no application. A Will must be proved in terms .
of the provisions of Section 63(c) of the Indian
G Succession Act, 1925 and Section 68 of the Evidence Act,
1872. In the event the provisions thereof cannot be
complied with, the other provisions contained therein,
namely, Sections 69 and 70 of the Evidence Act providing
for exceptions in relation thereto would be attracted.
+--
H Compliance with statutory requirements for proving an
BHARPUR SINGH & ORS. v. SHAMSHER SINGH 519
("'
ordinary document is not sufficient, as Section 68 of the A
Evidence Act postulates that execution must be proved
"'-4
by at least one of the attesting witness, if an attesting
witness is alive and subject to the process of the Court
and capable of giving evidence. [Para 14] [531-B-D]
1.3. Suspicious circumstances like the following may B
be 'found to be surrounded in the execution .of the Will:
-;.
(i) The signature of the testator may be very shaky and
.... doubtful or not appear to be his usual signature. (ii) The
..__ condition of the testator's mind may be very feeble and
debilitated at the relevant time. (iii) The disposition may c
be unnatural, improbable or unfair in the light of relevant
......... ,,,,, circumstances like exclusion of or absence of adequate
provisions for the natural heirs without any reason. (iv)
The dispositions may not appear to be the result of the
testator's free will and mind. (v) The propounder takes a
D
prominent part in the execution of the Will. (vi) The
testator used to sign blank papers. (vii) The Will did not
see the light of the day for long. (viii) Incorrect recitals of
----',
~
essential facts. The circumstances narrated are not
,-- exhaustive. Subject to offer of reasonable explanation,
existence thereof must be taken into consideration for E
the purpose of arriving at a finding as to whether the
"'""' execution of the Will had duly been proved or not. [Paras
17 and 18) [532-F-H; 533-A-B]
2.1. Respondent was a mortgagee of the lands
belonging to the testatrix. He is also said to be the tenant F
in respect of some of the properties of the testatrix. It has
'f not been shown that she was an educated lady'1:She had
-~
put her left thumb impression. In the aforementioned
situation, the question, which should have been posed,
was as to whether she could have an independent advice G
in the matter. For the purpose of proof of will, it would be
necessary to consider what was the fact situation
prevailing in the year 1962. Even assuming the
4- subsequent event, viz., the appellants had not been
looking after their mother as has been inferred from the H
520 SUPREME COURT REPORTS
,
[2008] 17 S.C.R. e
· A fact that they received the news of her death only six days
after her death took place, is true, the same would be of
not much significance. [Para 14] [530-G-H; 531-A-B]
· 2.2. The court is required to adopt a rational
approach and is furthermore required to satisfy its
B conscience as existence of suspicious circumstances
play an important role. Unfortunately, the first appellate
court as also the High Court did not advert to these
aspects of the matter. [Para 15] (531-E-F; 532-C]
2.3. The Will was a registered one, but the same by
C itself would not mean that the statutory requirements of
proving the Will need not be complied with. Therefore, in
view of the peculiar facts and circumstances of the case,
the impugned judgment of the High Court as also the first
appellate court is set aside and the matter is directed to
o be considered afresh in the light of the observations made
by· the first appellate court. {Paras 18 and 19] [533-C-D]
H. Venkatachala Iyengar 'vs. B.N. Thimmajamrrfa AIR
(1959) •sc:'443; Niranjan Umeshchandra Joshi vs. Mrudu/a
Jyot(Rao & Ors. (2006) 14 SCALE 186; B. Venkatamuni vs.
E C.J."AyodhYa"Ram Singh & Ors. (2006) 13 sec 449; Anil
Kak v~. Kitmari'Sharada Raje & Ors. (2008) 7 sec 695 and
·Jaswant Kaur vs. ·'Amrit Kaur & Ors. (1977) 1 SCC 369,
referred to.
~ ·'
1
• ·case Law Reference:
~ ~
0
' · , t "l . I I"\ , ' • ,.i. 1
F . . ~ ~AIR (1 ~5~)
' t ""
•
-~q
•J
.~43.
._~
•
,. l . l ' ' 1,;
Referred to Para 12
... (29!).,~) J.4 SC~l;..E 186, . , Referred to Para 13
I. ~~~ .
· , '" (2006). 13 ~sec 449 Relied on Para 14
. ·· (2oo·af7 sec· 695' . ., ·Referred to Para 15
; - , . 1--; ··~.1 ,..,, -: ~-· ,.. .·• i"1-"'1s:~,··~
G (~977), 1 SC~. 3~9. Para 16 ·:t?l~~f~rr~d to
CIVIL APPELLATE,JURISDICTION.: Civil Appeal No.
·7250 of 2008. · · -' , : , , ->' ..:r. •
From the final ~udgmeht ari~ Qrder dated '17.8.2006 of the +-
High Court of Punjab ·and Hafyatia at Gtiaridigarh in R.S.A.'No.
H
BHARPUR SINGH & ORS. v. SHAMSHER SINGH 521
604 of 2000. A
Neeraj Kumar Jain, Bharat Singh, Sandeep Chaturevedi,
Sanjay Singh and Ugra Shankar Prasad for the Appellants.
S.D. Sharma, Balbir Singh Gupta for the Respondent.
The Judgment of the Court was delivered by
B
5.8. SINHA, J. 1. Leave granted.
2. Ram Devi, the testatrix, widow of Jiwan Singh resident
of Village Gharuan, Tehsil Kharar, District Ropar, Punjab, whose
legal heirs and representatives are the appellants, executed a
will on or about 30.3.1962 when she was aged about 75 years C
of age. She breathed her last on 19.6.1990.
To show the relationship between the parties, we may at
the outset notice the genealogical table.
Rattan Singh
I D
I I
Roop Singh Jodh Singh
I I
I I Diwan Singh
Krishan Lal Singh
Singh E
I I
I Ran Singh Harnam Singh
I
I I Jiwan Singh
Nagina Wariam Singh I
I Ram Devi F
Manna Singh
I I I I I
Shamsher Pritam Basso Gurdial Kakko
Singh Kaur Died Kaur Defendant
Died @Dialo G
Defendant
Admittedly, the two surviving daughters of the testatrix,
namely, Smt. Gurdial Kaur alias Dialo and Smt. Kakko were
married and had been living at far away places. Respondent
being the beneficiary under the said Will filed a suit in the year .. H
522 SUPREME COURT REPORTS [2008] 17 S.C.R. e
A 1993 against the appellants, inter alia, praying for setting aside
an order of mutation passed in their favour on the premise that
relying on or on the basis thereof, the appellants had threatened
to alienate the suit land and di.spossess him therefrom.
Plaintiff - Respondent in his plaint alleged that during the
B life time of the testatrix, he used to look after her and in fact
she expired in the house of his daughter Iqbal Kaur.
3. Admittedly, she had four daughters, out of whom the
defendants were alive but were disinherited by her in the said.
Will. However, when an order of mutation was passed in favour
C of appellants, the said suit was filed.
4. Appellants in their written statement denied and
disputed the contentions raised by the plaintiff that Ram Devi '..-
used to be looked after by the plaintiff. According to them, no
will had been executed by Ram Devi in view of services
D rendered by him as alleged or at all. According to them, as
Jiwan Singh, the husband of Ram Devi was murdered about
60 years back, she lost her balance of mind and had not been .1.
possessing sound mental faculties. According to the Jr
defendants, she was being looked after by her daughters.
E 5. The learned Subordinate Judge, 1st Class, Kharar, in
view of the pleadings of the parties, framed the following issues:
"1. Whether the plaintiff is owner in possession of the suit
land?
2. Whether Smt. Ram Devi executed a legal and valid will
F dated 30.3.1962 in favour of the plaintiff, if so, its effect?
3. Whether the plaintiff has been mortgagee in possession
of land bearing Kh/Kh. No. 25/59 described in head note
of the plaint?
4. If issue No. 3 is proved, whether equity of redemption
G
has.been extinguished?
5. Whether plaintiff is entitled to decree of permanent
injunction prayed for?
6. Whether the plaintiff is estopped by his act and conduct
H to file the present suit?
BHARPUR SINGH & ORS. v. SHAMSHER SINGH 523
[S.B. SINHA, J.]
7. Relief' A
The learned trial judge held that 'the plaintiff had failed to
... ~ prove that Ram Devi executed a legal and valid will in his favour
out of sound disposing mind.'
Inter alia, opining that the plaintiff was an outsider, it was
furthermore held: B
"Although in the will it finds mention that the legatee
Shamsher Singh is nephew of husband of testatrix and that
Bijla Singh father of Shamsher Singh helped testatrix at
.~
the time of marriage of her daughters, but the plaintiff in
'his pleadings has nowhere pleaded so, nor did any c
evidence in that regard. Thus these contentions in the will
are obviously contrary to factual position and it comes out
that Shamsher Singh is not related to Ram Devi in any way.
The plaintiff did not lead even an iota of evidence to
establish that he had been looking after and serving the D
testatrix till her death. Except the solitary statement of
plaintiff which is a self-serving, no other person from the
.
p'
~
village came forward to support the plaintiff on this point.
PW4 Pritam Singh the only witness from village Ghruan
examined by the plaintiff did not utter even a single word E
in that regard. The plaintiff did not produce any evidence
to prove that he had joint ration card with Smt. Ram Devi
and Ram Devi was having a vote at his address. The
contention of the plaintiff that Ram Devi expired at Rajpura
in the house of his daughter Iqbal Kaur, does not make any
sense since he is silent as to what Ram Devi was doing F
at the house of his daughter at that time. Furthermore, the
t plaintiff did not examine Iqbal Kaur or anybody else from
.
..... Rajpura to establish that Ram Devi was putting up with
Iqbal Kaur, widowed daughter of the plaintiff. The plaintiff
has nowhere pleaded in his pleadings that Smt. Ram Devi G
had been residing with his daughter Iqbal Kaur at Rajpura
and Iqbal Kaur has been looking her. A perusal of the file
goes to show that the plaintiff and prior to his father have
-,J_
been in possession of a portion of suit land as tenant and
ever the remaining suit land as mortgagee. If relations H
524 SUPREME COURi REPORTS [2008] 17 S.C.R. e
A between the plaintiff, his father on one side and Ram Devi
· ·on other side were so cordial and the former had been
·looking·after ahd serving the latter, there was no need for
Ram Devi to mortgage a portion of suit land with them and
to give the remaining land on rent to them. That goes to
show that relations between them were professional and
8
business type. It cuts at the root of the case of plaintiff that
he had been looking after and serving Ram Devi and Ram
Devi.executed
.' a will in his favour out of. love and affection."
' ~
The.learned Subordinate Judge, 1st Class, Kharar, P,unjab,
C by- h·is judgment and decree dated 24.8.1995 decidedr'issue
nos. 1 and 2 in favour of the appellants. The 1~~rn~d, Judge
granted a decree for declaration to the eff~qtc.ttiatJhe P!~intiff
respondent was owner-in-possession of:th~rle1nd,b~aring Kh/
Kh. No. 25/59 Kh. No. 1644(5-0),J645,(3-0);11646 (6,-5), 1647
(6-5), 1648 (5-10) situated at village Gharuan.as" per·~am_~_bandi
D of the year 1988-89 with the·~consequ_ent trelief of per.rnanent
injunction ,restrair;iingrtt:i~·1def~nda11:ts!i-;Lappell~nts.:, from
alien_ating that 'p.ark1pf the ,j~pp in-;suit? .However;~ e>th~r;· reliefs
prayed fOftii'fthe;·SUitwere.no.t: granted:vii _-' ,r· h .• ; ~ 1
··.v a.I :aeing aggrieve'a oy ahd' ci'issatlsfied· therewith 1·both the
E l>~fqies· p_feferfe91appea1s tnere·agalnst.r;· - ~- ,,--c' . ~.L~ · · ; ...
've~ 7:SS_y1 , ,_:rit,.-1ksbH\of
Ct ....., - ·. •
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a:;~d'"'M'eM
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l
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a'n~ford~~r
._ ill ~ dated
1
~
1
):~0.1999,
'I ,_I ' '.> _... t - " '......J • "" •
f.r:iP.~ffate cQ"urt~e!~~~ha.t t~~~exdq~ti~[lhf, tpe ~in m~st·n.~ held
)o_RaV°1e~6e1€n ·provea· a·n'a-··n·,j
all 'sUsP.ic·iouk
'·iCircurrlstanbes have
-,.F .b~en
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, ...... ·-Jt,·• i {'i~·..,. ,,.~,
'ai~pell~p, ·slatinc~r: --, ._, , " · ~ _" ~ .-.
/,..~'-.., ~ibi-i
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-~. :"-fj!;~dr4n
-~'~-ii ~- n:~-::: ,:--_;,.:"fj~..,....:,
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'fr ~
....
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~1r\; .9~.,.the :onlyi conpl!:Jsio~ th~~~9i!PJB~i~~~wn, 1 ~~,~h~,t.Nf.~JI is a
1r:ii1 gerwt1J.~,QOC1Jm~n~,af!tjLw~9 ~X~x!:!!~ ditn9ffiJ~~r!·?~~years ...
11'\IV rbaQj< t,}y,,lh~~deCEtaSedr_OU~ 19f h~ft!!?W.nJr~~ ~)Jl,~n~ she
r 1nir:;n~yer1 tri~d 1 tqJ~~ncel-theisam~.: T~~}~fUhat.~.orn!=:;!and of
~ i Ns'·1 the;pece_as_~g w~s,_;Jying RJOr;t.gag~~··k,w!t~ ,t~~}~~P~l of the
G , 1u._11 plaintifLirtilhEM~ven.1:1e,[e~9rd.PP.~~ f:!'.<;>t .ri;l~e:i.n.-m~P~.~r~ was
~iit '-11only c.orrim~~qial;;rel(itigqs,b~~~e!1)h~ e.~fti~~·.·f i~~t pf all,
:wed the:JQrigin~lt rnort~~g~ 'd~~g· ct1@~,jf!9ttC~f!l.~c ~n !h.,~. Jile to
unG !imfi~aJ~ yth~th,~J P,l~iflmfcp_r: ·f!i~;1.fa_t_l)~r~gqt ~h~,Ja...nd in
~. znmirmortgag~ t:9f ~h_eith~r.,th~y,p~rg~a.~,ed;the_ ~ortgag~.~Ji_ghts
H from somebody else. The fact that Shamsher Smgh
BHARPUR SINGH & ORS. v. SHAMSHER SINGH 525
[S.B. SINHA, J.]
.participated in the execution of the will itself does not A
indicate that he exercised any influence over deceased
", Ram Devt"°lf it .was so there was no reason as to why Ram
Devi did not gef it cancelled within more than 28 years of
her life after
-
the•!-<.execution.
• .
The defendants on the other
hand have not proved any ration card or voter list as B
1
claimed by Dialo in her.!?tatement on oath, to indicate that
. the deceased was permanently living with them. In the will,
complete details have. beeh given. It is mentioned that
deceased has four ,daughters and two of them have
already died. If the plaintiff is a stranger, he will not know
' this fact. The will is always" e~ecuted to deviate from the C
• .natural succession. Wthe -deceased wanted that her
daughter would' succe.:eci h'er the!'1,the,re. yja~ no need to
execute the \NHL..;, ' · ·
- .
The appellate court allowed:both the appeals, stating:
D
"As a'result of fore~oirig' discussion, the appeal titled as
Dialo etc. Vs. Shamsher Singh No. 241' of 27.9.1995, RT
No. 148/27.9:1995/27.2.1999 is accepted as issues No.
3 and 4 are decided in favour-of, the .defendants and
against the plaintiff. The appeal titled as Shamsher Singh E 0
Vs.-Dialo etc. it.:.,.
~
Ne). 23617.9.199-5,-RT
•J
Ne>'. ..439/7.9.1995, ,
, ~ 2.6. H~99 is als~. accepted on acco~nt of: ryiy findings on
,_ . issues.•4 No. ,1, and 2 and 5. As a result .thereof, the suit of
~' ~ .._, 1 , I . ,.) r' " ' _ ~ j t .._'
.. . plaintiff is, partly decreed and declaration is granted to the
- ~ effect ,that h~ -h~,s ~ecome owner in possession of the suit
land fully detailed in.the-head note ot.t~e plaint on the basis F
.. ~ , -I L , ~ \..fl ~ i _
of regi_stered will Ex. P2 dated 30.3 ..1962 executed by Ram
Deviwidow of jiwan Singh.' Perma~ent1 injunction is also
granted restraining the defendants from· alienating the suit
property in any manner or interfering in the peaceful
passession of the plaintiff in any manne'r. Further, the suit G
qua relief on the basis of non-redumption· of mortgagee · ·
rights is dismissed."
8. The Second Appeal p'referred by appellants herein was
dismissed· by the High Court by reason of the impugned
judgment, holding: . - c H
e
526 SUPREME COURT REPORTS [2008] 17 S.C.R.
A "The Will in question was executed on 30.3.1962 and the
, . .I•
. testator is said to have died on 19.6.1990. The fact that
~
during this entire period, the testator did not have any
second thoughts goes to show about the clarity of the
intention of the testator. The fact that it was registered only
B lends more credence to the validity of the Will. It is als9 in
evidence that Gurdial Kaur and Kako were not staying with
their mother and had not supported her during her life time.
A.
In their testimony, they have stated that they came to know
about the death of Ram Devi about 5 to 6 days after she
had expired. In fact, all the defence witnesses have
c admitted this fact. This is a reflection and a measure of
the relationship of Gurdial Kaur and Kako were having with
their mother at the time of her death. On the other hand,
Ram Devi is said to have died in the house of Iqbal Kaur,
daughter of the plaintiff-respondent. This was sufficient
D reason for the testator to have deprived the natural heirs
of the right to succession." ,..
9. Mr. Neeraj Kumar Jain, learned counsel appearing on
behalf of appellants would submit:-
i. The first appellate court as also the High Court must
E be held to have committed a serious error in
arriving at the aforementioned findings insofar as
they failed to take into consideration that the
respo.ndent/pla.intiff did not produce the Will before
the Revenue authorities and furthermore did not
F make any attempt to file a suit on the basis thereof i-
for a period of three years from the date of death lo....,
of the testatrix.
ii. The plaintiff had not been able to prove that the
relationship between Ram Devi and her daughters
G was strained.
iii. An agnate separated by five degrees cannot be
said to be a relation, which would be a sufficient i..-
ground for an old lady to execute a will in his favour.
iv. No reason has been assigned as to why the
H
BHARPUR SINGH & ORS. v. SHAMSHER SINGH 527
[S.B. SINHA, J.]
daughters have been disinherited by the testratix. A
( "'-1'
i v. The left thumb impression of the testatrix was not
compared with her left thumb impression appearing
in the deed of mortgage which was said to have
been executed in favour of the plaintiff and, thus, no
retiance could have been placed thereupon. B
vi. The beneficiary of the will being mortgagees and
..... tenants coupled with other factors, it should have
--- been held by the courts below that the Will was
st,1rrounded by suspicious circumstances.
10. Mr. S.D. Sharma, learned Senior Counsel appearing c
on behalf of the respondent, on the other hand, would contend:-
i. Shamsher Singh being one of the collaterals and
he having been looking after Ram Devi, the
I
- testatrix, the execution of the Will must be said to
.
.,....
.... ii .
have been proved.
The Will being a registered one, its genuineness
should be presumed. The same in any event having
been executed on 30.3.1962, its execution must be
held to have been proved being a document more
D
than 30 years old. E
iii. The fact that the appellants, although daughters,
came to know about their mother's death six days
-~
after the same had taken place, evidently shows
that they had not been looking after their mother
during her old days. F
t
o..-1 iv. Appellants have failed to prove that they had been
maintaining any relationship with their mother and
at her old age she was being looked after by them.
11. The legal principles in regard to proof of a will are no
G
longer res integra. A will must be proved having regard to the
provisions contained in clause (c) of Section 63 of the Indian
-A Succession Act, 1925 and Section 68 of the Indian Evidence
Act, 1872, in terms whereof the propounder of a will must prove
its execution by examining one or more attesting witnesses.
Where, however, the validity of the Will is challenged on the H
;.
528 . SUPREME COURT REPORTS [2008] 17 S.C.R.
A ground of fraud, coercion or undue influence, the burden of proof
would be on the caveator. In a case where the'wrn is surrounded
by suspicious circumstances, it would llot be 'treated as the last
testam~ntary, disposition of the testator.
12. This Court in H. Venkatachala Iyengar vs. B.N.
B Thimmajamma [AIR-1959 SC 443) opined that the fact that
the propounder took interest in execution of the Will is one of
the factors. which should be taken into consideration for
determination of due execution of the, Will. It was also held that
one of the important features which distinguishes Will from other
·c documents is that the Will speaks from the date~bf 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
D be the last will and testament of the departed testator.
It was also held that the propounder of will must prove:
(i) that the Will was signed by. the testator in a sound
and disposing state of mind duly understanding the
nature and effect of disposition and he put his
E
signature on the document of his own free will, and
(ii)
when the evidence adduced in ·support of the Will
is disinterested, satisfactory and sufficient to prove
the sound and disposing state of testator's mind and
his signature as required by law, Courts would be
justified in making a finding in favour of propounder,
.3?o ~,..,, · " 1and ,
bnr. '~'~fii)' '. 1f-'a'Wlll is·challenged as surrounded by suspicious
iFf"'l ··~ :o 1circi.ilnstalfces,.:a11 such legitimate doubts have to
:_--G '.:'fl r:"\l_ I • r-:be_·removed-~y;cogent;1_~·~tisf~cto_ry and sufficient
::. '"':i-.;::1 ·evidence to d1speJ st1sp1c1on/· .''""l\1'.:1 ·· "
:.silJ"'1nJ6ther 'viords;:-the 6nu~s'6h·the.-'prop'6uhder·can·oe·'taken
to~ be''d.lsch'arged 'on pfoofi'cif'the ·efssentiaHacts'fod icated
• ,. ., •' f ,· ( - t ' . . '• . '
therein. · ·· ,·: ..- · ,-
~ -:_..,~~ ;;:: ::Jr. · - i .
~· iH ·_1J~11 .--i .' ' . ,"" . ·. ;. . :t
•
II('
BHARPUR SINGH & ORS. v. SHAMSHER SINGH
[S.B. SINHA, J.]
529
It was moreover held:- A
.._ ·"1' "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 B
testator may not remove the doubt created by the
appearance of the signature; the condition of the testato~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; c.
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
D
.. removed before the document is 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 E
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 F
t 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."
13. This Court in Niranjan Umeshchandra Joshi vs.
Mrudula Jyoti Rao & Ors. [2006 (14) SCALE 186], held: G
"33. The burden of proof that the Will has been validly
executed and is a genuine document is on the propounder.
-,),
The propounder is also required to prove that the testator
• has signed the Will and that he had put his signature out
of his own free will having a sound disposition of mind and H
530 SUPREME COURT REPORTS · [2008] 17 S.C·.R
.e
'.,,;-
"'-I
A understood the nature and effect thereof. If sufficient
evidence in this behalf is brought on record, the onus of t~
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
B any. In the case of proof of Will, a signature of a testator
alone would not prove the execution thereof, if his mind r
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
c Sridevi and Ors. v. Jayaraja Sheffy and Ors. (2005) 8
SCC 784]. Subject to above, proof of a Will does not
ordinarily differ from that of proving any other document.
34. There are several circumstances which would have
been held to be described (sic) by this Court as suspicious
D circumstances:
(i) When a doubt is created in regard to the condition ,:..
of mind of the testator despite his signature on the
Will; •
ii-
E (ii) When the disposition appears to be unnatural or
wholly unfair in the light of the relevant
circumstances;
(iii) Where propounder himself takes prominent part in
the execution of Will which confers on him
F substantial benefit.
[See H. Venkatachala Iyengar v. B.N. Thimmajamma -t-·
and Ors. AIR 1959 SC 443 and Management Committee ~
TK. Ghosh's Academy v. TC. Pa/it and Ors. AIR 1974
SC 1495]"
G 14. Respondent was a mortgagee of the lands belonging
to the testatrix. He is also said to be the tenant in respect of ·
some of the properties of the testatrix. It has not been shown
A:-
that she was an educated lady. She had put her left thumb
H
impression. In the aforementioned situation, the question, which
should have been posed, was as to whether she could have
•
BHARPUR SINGH & ORS. v. SHAMSHER SINGH 531
,. ,.) [S.B. SINHA, J.]
an independent advice in the matter. For the purpose of proof A
--( ~ ,, of will, it would be necessary to consider what was the fact
situation prevailing in the year 1962. Even assuming the
subsequent event, viz., the appellants had not been looking after
their mother as has been inferred from the fact that they
received the news of her death only six days after her death B
took place, is true, the same, in our opinion, would be of not
much significance.
:... ~ The provisions of Section 90 of the Indian Evidence Act
keeping in view the nature of proof required for proving a Will
have no application. A Will must be proved in terms of the c
-·
provisions of Section 63( c) of the Indian Succession Act, 1925
and Section 68 of the Indian Evidence Act, 1872. In the event
the provisions thereof cannot be complied with, the other
provisions contained therein, namely, Sections 69 and 70 of the
Indian Evidence Act providing for exceptions in relation thereto
would be attracted. Compliance with statutory requirements for D
_, proving an ordinary document is not sufficient, as Section 68
.......,
('- of the Indian Evidence Act postulates that execution must be
""
proved by at least one of the attesting witness, if an attesting
witness is alive and subject to the process of the Court and
capable of giving evidence. {See B. Venkatamuni vs. C.J. E
Ayodhya Ram Singh & ors. [(2006) 13 SCC 449]}
15. This Court in Anil Kak vs. Kumari Sharada Raje &
Ors. [(2008) 7 sec 695] opined that court is required to adopt
a rational approach and is furthermore required to satisfy its
conscience as existence of suspicious circumstances play an F
_.;
t important role, holding:
"52. Whereas execution of any other document can be
proved by proving the writings of the document or the
contents of it as also the execution thereof, in the event
there exists suspicious circumstances the party seeking G
to obtain probate and/ or letters of administration with a
copy of the Will annexed must also adduce evidence to
-,)
the satisfaction of the court before it can be accepted as
genuine.
H
532 SUPREME COURT REPORTS [2008] 17 S.C.R.
A 53. As an order granting probate is a judgment in rem, the
court must also satisfy its conscience before it pass·es an
order.
54. It may be true that deprivation of a due share by {sic
to) the natural heir by itself may not be held to be a
B suspicious circumstance but it is one of the factors which
is taken into consideration by the courts before granting
probate of a Will.
55. Unlike other documents, even animus attestandi is a
necessary ingredient for proving the attestation."
C Unfortunately, the first appellate court as also the High court
did not advert to these aspects of the matter.
16. We may notice that in Jaswant Kaur vs. Amrit Kaur &
ors. [(1977) 1 SCC 369] this Court pointed out that when the
·-
Will is allegedly shrouded in suspicion, its proof ceases to be
D a simple lis between the plaintiff and defendant. An adversarial
proceeding in such cases becomes a matter of Court's
conscience and propounder of the Will has to remove all ).
suspicious circumstances to satisfy that Will was duly executed
by testator wherefor cogent and convincing explanation of
E suspicious circumstances shrouding the making of Will must
1
be offered.
17. Suspicious circumstances like the following may be
found to be surrounded in the execution of the Will:
i. The signature of the testator may be very shaky and
F doubtful or not appear to be his usual signat1;Jre.
+ ,....._
ii. The condition of the testator's mind may be very
feeble and debilitated at the relevant tinie.
iii. The disposition may be unnatural, improbable or
unfair in the light of relevant circumstances like
G exclusion of or absence of adequate provisions for
'
the natural heirs without any reason.
iv. The dispositions may not appear to be the result A..-
of the testator's free will and mind.
H v. The propounder takes a prominent part in the
BHARPUR SINGH & ORS. v. SHAMSHER SINGH 533
.... [S.B. SINHA, J.]
execution of the Will. A
"Y-. "°[
vi. The testator used to sign blank papers.
vii. The Will did not see the light of the day for long.
viii. Incorrect recitals of essential facts.
18. The circumstances narrated hereinbefore are not B
exhaustive. Subject to offer of reasonable explanation,
existence thereof must be taken into consideration for the
... purpose of arriving at a finding as to whether the execution of
the Will had duly been proved or not.
It may be true that the Will was a registered one, but the c
same by itself would not mean that the statutory requirements
of proving the Will need not be complied with.
19. We, therefore, keeping in view the peculiar facts and
circumstances of this case, are of the opinion that the impugned
judgment of the High Court as also the first appellate court D
should be set aside and the matter be directed to be
considered afresh in the light of the observations made
... ... hereinbefore by the first appellate court. It is ordered
accordingly.
The appeal is allowed with the aforementioned E
obse·rvations and directions. However, in the facts and
circumstances of the case, there shall be no order as to costs.
N.J. Appeal allowed.
,_...
-
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