SWARNALATHA & ORS.versusKALAVATHY & ORS.

                        [2022] 1 S.C.R. 847                              847


                     SWARNALATHA & ORS.                                  A
                                  v.
                       KALAVATHY & ORS.
                   (Civil Appeal No. 1565 of 2022)
                         MARCH 30, 2022                                  B
  [HEMANT GUPTA AND V. RAMASUBRAMANIAN, JJ.]
        Will – Suspicious circumstances surrounding execution of the
Will – Plea of – Tenability – Two separate Wills left behind by a
married couple (testators) – Both spouses executed a Will each –
                                                                         C
Appellants are the successors-in-interest of the pre-deceased elder
/ first son of the testators – Respondent no.1 and.2 are respectively
the daughter and other / second son of the testators – District Court
rejected allegations of respondents about suspicious circumstances
surrounding the Wills and granted probate of both the Wills in favour
of the appellants – High Court reversed judgment of District Probate     D
Court citing various suspicious circumstances including that there
was total exclusion of Respondent no.1-daughter from the bequests
– On appeal, held: The exclusion of one of the natural heirs from
the bequest, cannot by itself be a ground to hold that there are
suspicious circumstances – In the matter of appreciating the
                                                                         E
genuineness of execution of a Will, there is no place for the Court
to see whether the distribution made by the testator was fair and
equitable to all of his children – Court does not apply Art. 14 of the
Constitution to dispositions under a Will – While reversing the
judgment of District Probate Court, the High Court recorded certain
suspicious circumstances, but each such circumstance, neither            F
individually nor collectively creates a suspicion – High Court
completely overlooked all the above aspects and proceeded to invent
reasons to justify a conclusion that seems to have preceded the line
of reasoning – Judgment of the District Court, granting probate of
both the Wills, restored – Constitution of India, 1950 – Art. 14.
                                                                         G
      Allowing the appeal, the Court
      HELD:1. While reversing the Judgment of the Probate
Court, the High Court recorded certain suspicious circumstances,
but each such circumstance, neither individually nor collectively
                                                                         H
                                 847
848            SUPREME COURT REPORTS                      [2022] 1 S.C.R.


A     creates a suspicion. The High Court completely overlooked all
      the above aspects and proceeded to invent reasons to justify a
      conclusion that seems to have preceded the line of reasoning.
      [Paras 16, 17 and 18][852-F; 854-C, F]
            2. Once it is found that the father not only attested the
B     mother’s Will (Exhibit P-1) and once it is found that in his own
      Will (Exhibit P-2), which is a registered Will, the father had made
      a mention about the mother’s Will, all the suspicious
      circumstances sought to be projected would automatically fall to
      the ground. [Para 20][854-H; 855-A]
C           3. When it was not even the case of the respondents that
      the testators were not in a sound and disposing state of mind, the
      High Court found fault with the appellants for not disclosing the
      nature of the ailments suffered by them. The exclusion of one of
      the natural heirs from the bequest, cannot by itself be a ground
      to hold that there are suspicious circumstances. The reasons
D     given in Exhibit P-1 are more than convincing to show that the
      exclusion of the daughter has happened in a very natural way. If
      Exhibit P-1 (Will) had been fabricated on blank papers containing
      the signatures of the mother, there would have been no occasion
      for the father to make a mention in his own Will (Exhibit
E     P-2) about the execution of the Will by the mother. [Para 21]
      [855-A-C]
            4. It is not known how the High Court held the delay on the
      part of the appellants in seeking probate of the Wills to be a
      suspicious circumstance. Exhibit P-1 was executed on 30.01.1995
F     and the testatrix died on 14.08.1995. The father was alive till
      08.08.2000. Therefore, there was no necessity for the appellants
      to seek probate of the said Will. After the death of Mannar
      Reddiar [testator-father] on 08.08.2000, the appellants obviously
      had no support, due to the fact that the first son of the testators
      V.M. Chandrasekaran (husband of appellant No.1 and father of
G     appellant Nos.2 and 3) had pre-deceased the father Mannar
      Reddiar, he having died in October-1999. The occasion for the
      appellants to seek probate of the Will arose only when the
      respondents filed the suit for partition in O.S. No.387 of 2005.
      Therefore, there was actually no delay on the part of the appellants
H     in seeking probate. [Paras 22, 23][855-C-F]
          SWARNALATHA & ORS. v. KALAVATHY & ORS.                        849


      5. The High Court made a mountain out of a molehill, by           A
reading too much into the lack of knowledge on the part of
appellant No.1 about the time of registration of Exhibit P-2 (Will)
and the minor contradictions between her statement as PW-1
and the statements of PWs 4 and 5. The adverse inference sought
to be drawn by the High Court about the failure of the testator
                                                                        B
Mannar Reddiar to ensure the presence of the daughter and the
second daughter-inlaw at the time of execution of Exhibit P-2,
has no basis in law. [Para 24][855-F-H]
       6. The law relating to suspicious circumstances surrounding
the execution of a Will is already well-settled. Cases in which a
suspicion is created are essentially those where either the             C
signature of the testator is disputed or the mental capacity of the
testator is questioned. In the matter of appreciating the
genuineness of execution of a Will, there is no place for the Court
to see whether the distribution made by the testator was fair and
equitable to all of his children. The Court does not apply Article      D
14 to dispositions under a Will. [Para 25][855-H; 856-B-C]
       7. It is not difficult for an objective mind to understand the
reasons behind the daughter and the second son of the testators
coming together. Under both the Wills Exhibit P-1 and P-2, the
properties have been equally distributed between the two sons.          E
The first son V.M. Chandrasekaran is now no more. Admittedly
respondent no.1’s daughter has been given in marriage to V.M.
Sivakumar-respondent no.2 (second son of testator). Therefore,
if the bequest under the two Wills go, V.M. Sivakumar’s family
may eventually receive 2/3rd share of the properties, which is
more beneficial for V.M. Sivakumar than getting half share under        F
the Wills. The High Court completely overlooked this
aspect and started analyzing the Wills w ith suspicion.
[Para 26][856-D-E]
      8. The impugned judgment of the High Court is set aside
and the Judgment of the District Court, granting probate of both        G
the Wills, is restored. [Para 27][856-F]
      Kavita Kanwar vs. Mrs. Pamela Mehta and Ors. AIR
      2020 SC 544 : H. Venkatachala Iyengar vs. B.N.
      Thimmajamma, AIR 1959 SC 443 : [1959] 1 Suppl. SCR
      426 – referred to.                                                H
850            SUPREME COURT REPORTS                          [2022] 1 S.C.R.


A                             Case Law Reference
      AIR 2020 2614                    Para 25                   referred to
      [1959] 1 Suppl. SCR 426          Para 25                   referred to
            CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1565
B     of 2022.
            From the Judgment and Order dated 20.12.2018 of the High Court
      of Judicature at Madras in C.M.A. No. 2906 of 2010.
            V. Prabhakar, Ms. Jyoti Parasher, S. Rajappa, Advs. for the
      Appellants.
C
           Jayanth Muthraj, Sr. Adv., Deivasigamani Saravanan, Mrs.
      Malavika Jayanth, Advs. for the Respondents.
            The Judgment of the Court was delivered by
            V. RAMASUBRAMANIAN
D            1. The probate granted by the District Court in respect of two last
      Wills and Testaments, one by the father and another by the mother,
      having been set aside by the High Court in an appeal under Section 384
      of the Indian Succession Act, 1925 (hereinafter referred to as “the Act”),
      one set of legatees claiming under the Will have come up with the above
E     appeal.
             We have heard Mr. V. Prabhakar, learned counsel for the
      appellants and Mr. Jayanth Muthraj, learned senior counsel appearing
      for the respondents.
            3. The couple, Mannar Reddiar and Adhilakshmiammal had two
F     sons by name V.M. Chandrasekaran and V.M. Sivakumar and a daughter
      by name Kalavathy.
             4. The mother Adhilakshmiammal died on 14.08.1995. She left
      behind a Will dated 30.01.1995, bequeathing the properties purchased
      by her and the properties which she got from her maternal uncle, in
G     favour of her two sons. The daughter Kalavathy was not given any
      share, on the ground that she had already been provided sufficiently.
             5. The father Mannar Reddiar died on 08.08.2000. He left behind
      a Will dated 10.12.1998 bequeathing his properties in favour of his two
      sons and his grandchildren. The daughter Kalavathy was not allotted
H     any property even under this Will, but the Will contained reasons.
           SWARNALATHA & ORS. v. KALAVATHY & ORS.                              851
                  [V. RAMASUBRAMANIAN]

      6. The eldest son V.M. Chandrasekaran died subsequently in               A
October, 1999, leaving behind him surviving, his wife Swarnalatha and
two sons by name C. Karthikeyan and C. Rishikesan, who are the
appellants herein.
       7. Thereafter, the daughter Kalavathy and the surviving son V.M.
Sivakumar (of the testators) filed a suit for partition in O.S. No.387 of      B
2005 on the file of the District Munsiff Court, Poonamallee. Upon coming
to know of the same, the appellants herein who are the wife and sons of
the eldest son V.M. Chandrasekaran filed a petition in probate O.P No.1
of 2005 on the file of the Principal District Judge, Vellore, under Sections
270, 276 and 289 of the Act for the grant of probate of the Wills of
                                                                               C
Mannar Reddiar and Adhilakshmiammal. The petition was hotly contested
by the daughter and other son of the testators. However, by a judgment
dated 7.06.2010, the District Court granted probate of both the Wills
namely the Will dated 30.01.1995 executed by the mother
Adhilakshmiammal and the Will dated 10.12.1998 executed by the father
Mannar Reddiar.                                                                D
      8. Challenging the judgment of the Probate Court, the daughter
and the other son of the testators (respondents 1 and 2 herein) filed an
appeal under Section 384 of the Act on the file of the High Court of
Judicature at Madras. The said appeal was allowed by the High Court
by the impugned judgment on the ground that there are suspicious               E
circumstances surrounding the execution of both the Wills. Therefore,
aggrieved by the said judgment, the legatees are on appeal before us.
       9. The claim of the appellants before the Probate Court was that
the parents executed their last Will and Testament, in a sound and
disposing state of mind and that those Wills were executed in the manner       F
prescribed by law. To establish the execution of the Will of the mother
Adhilakshmiammal, in terms of Section 68 of the Indian Evidence Act,
1872, the appellants examined Mr. S. Rajasekaran as PW-2. He was
one of the attestors of the Will. The other attestor of the Will was none
else than the father Mannar Reddiar. One Mr. B. Nithyanandham, the             G
scribe of the Will of the Mother was also examined as PW-3.
       10. One Mr. M. Dakshinamurthy, who was one of the attestors of
the Will of the father Mannar Reddiar, was examined as PW-4 and the
scribe of the said Will by name Mr. V. Sivaram, was examined as PW-5.
                                                                               H
852               SUPREME COURT REPORTS                          [2022] 1 S.C.R.


A            11. While the Will executed by the mother Adhilakshmiammal
      was an unregistered Will, the Will executed by the father Mannar Reddiar
      was a registered Will. Both these Wills were marked as Exhibits P-1
      and P-2 respectively. The death certificates of the testators were marked
      as Exhibits P-3 and P-4 and the copy of the plaint in the partition suit
      filed by the respondents was marked as Exhibit P-5.
B
             12. The daughter Kalavathy (Respondent No.1) examined herself
      as RW-1 and the other brother Shri V.M. Sivakumar (Respondent No.2)
      examined himself as RW-2. No documents were marked on the side of
      the respondents.
C            13. The respondents contested the probate proceedings on the
      ground that their parents never executed any Will and that the elder son
      V.M. Chandrasekaran played a fraud by taking signatures of the mother
      on blank papers and fabricating the same into a Will and that in any case
      the testators had no right to dispose of the properties by way of a Will.

D             14. Before the Probate Court, the respondents focused their
      attention on the so-called suspicious circumstances surrounding both the
      Wills. Though the respondents also raised a contention that the testators
      had no right to dispose of those properties by way of a Will, the Probate
      Court rejected the same outright on the ground that the scope of
      jurisdiction of the Probate Court was not to decide disputed questions of
E     title to any property.
             15. Insofar as the allegations of suspicious circumstances are
      concerned, the Probate Court was not convinced that the circumstances
      highlighted by the respondents raised any suspicion. Therefore, the court
      of original jurisdiction ordered the grant of probate.
F
            16. While reversing the Judgment of the Probate Court, the High
      Court recorded the following findings:
            (i)     Adhilakshmiammal, the testatrix of the unregistered Will
                    (Exhibit P-1) dated 30.01.1995 was said to be suffering
                    from ailments, prior to the execution of the Will. The ailments
G
                    could be physical or mental and while physical ailment
                    cannot be a ground to question the veracity of the Will,
                    mental ailment will certainly be a ground. The non-furnishing
                    of the particulars of the ailments suffered by the testatrix
                    Adhilakshmiammal created a doubt;
H
        SWARNALATHA & ORS. v. KALAVATHY & ORS.                             853
               [V. RAMASUBRAMANIAN]

(ii)     The failure of the legatees to probate the Will of the mother     A
         Adhilakshmiammal during the life time of the father Mannar
         Reddiar is a suspicious circumstance;
(iii)    According to PW-1, the Will executed by the father Mannar
         Reddiar, marked as Exhibit P-2 was written during night
         hours of 10.12.1998 but according to the evidence of PWs          B
         4 and 5 (one of the attestors and the scribe) the Will was
         written at 7:00 a.m. and was registered at 3:00 p.m. on
         10.12.1998. The contradiction between the statement of
         PW-1 and the statements of PWs 4 and 5 in this regard
         created suspicion.
                                                                           C
(iv)     The ignorance of PW-1 about the date and time of
         registration of the Will of the father was one more
         circumstance that created a suspicion.
(v)      The failure of the father to ensure the presence of the
         daughter and the second daughter-in-law during the                D
         execution of both the Wills is one more circumstance
         creating a suspicion.
(vi)     The presence of the first appellant herein at the time of
         execution of both the Wills, despite the appellant No.1 being
         a direct beneficiary, is also a circumstance to be taken notice   E
         of.
(vii)    Exhibit P-1 (Will) executed by the mother runs to six pages.
         The signature of the testatrix is found exactly at the same
         location in pages 4 and 6. The super-imposition of pages 4
         and 6 shows that the signature of the testatrix had been          F
         taken in Exhibit P-1 (Will) at the same place.
(viii) The line space in the first part of Exhibit P-1 (Will) is more
       than the line space in other parts of the Will. There is some
       difference in the style of writing in the first two pages from
       the writing in the last two pages of the Will. The signatures       G
       of the attestors of and the scribe are found within a small
       space. The signature of Mannar Reddiar as an attesting
       witness to Exhibit P-1 (Will) is not found below the word
       ‘witness’ but found by the side.
                                                                           H
854               SUPREME COURT REPORTS                         [2022] 1 S.C.R.


A           (ix)    It is not clear as to how appellant No.1 came into the
                    possession of the Will. There is no material to show whether
                    the first appellant’s husband V.M. Chandrasekaran
                    pre-deceased the parents. In this context the delay in seeking
                    probate creates a serious doubt.
B           (x)     The total exclusion of the daughter from the bequest and
                    the failure to mention in the Wills, the dates on which the
                    daughter was paid certain amounts, are crucial.
             17. But each one of the above circumstances, neither individually
      nor collectively creates a suspicion. The signature of the mother
C     Adhilakshmiammal in Exhibit P-1 (Will) is not disputed. It was executed
      on 30.01.1995 and her husband namely Mannar Reddiar was one of the
      attestors to the Will. In fact the reading of Exhibit P-1 (Will) goes to
      show that the daughter Kalavathy was given in marriage to a bank
      employee way back in the year 1970. According to Exhibit P-1 (Will),
D     the daughter was provided 50 sovereigns of gold jewellery at the time of
      the wedding. She was also given various amounts at different points of
      time totaling to Rs.75,000/-. It was further claimed in Exhibit P-1 (Will)
      that the mother gave Rs.25,000/- to the daughter Kalavathy for the
      purpose of purchase of two plots of land at Ambattur, in the outskirts of
      Chennai. The Will also mentions that the daughter’s daughter was given
E     in marriage to the second son V.M. Sivakumar. This is the reason why
      the second son V.M. Sivakumar joined hands with the daughter
      Kalavathy. Exhibit P-1 also makes a mention about the sum of Rs.40,000/
      - paid towards the discharge of a debt incurred by Kalavathy’s husband
      (son-in-law).
F            18. Unfortunately, the High Court completely overlooked all the
      above aspects and proceeded to invent reasons to justify a conclusion
      that seems to have preceded the line of reasoning.
             19. Similarly Exhibit P-2 (Will of the father) contains recitals to
      the effect that the daughter’s daughter was given in marriage to the
G
      second son V.M. Sivakumar and that Adhilakshmiammal had left behind
      a Will dated 30.01.1995.
             20. Once it is found that the father Mannar Reddiar not only
      attested the mother’s Will (Exhibit P-1) and once it is found that in his
      own Will (Exhibit P-2), which is a registered Will, the father had made a
H
           SWARNALATHA & ORS. v. KALAVATHY & ORS.                                855
                  [V. RAMASUBRAMANIAN]

mention about the mother’s Will, all the suspicious circumstances sought         A
to be projected would automatically fall to the ground.
       21. When it was not even the case of the respondents that the
testators were not in a sound and disposing state of mind, the High Court
found fault with the appellants for not disclosing the nature of the ailments
suffered by them. The exclusion of one of the natural heirs from the             B
bequest, cannot by itself be a ground to hold that there are suspicious
circumstances. The reasons given in Exhibit P-1 are more than convincing
to show that the exclusion of the daughter has happened in a very natural
way. If Exhibit P-1 (Will) had been fabricated on blank papers containing
the signatures of the mother, there would have been no occasion for the
                                                                                 C
father to make a mention in his own Will (Exhibit P-2) about the execution
of the Will by the mother.
       22. We do not know how the High Court held the delay on the
part of the appellants in seeking probate of the Wills to be a suspicious
circumstance. Exhibit P-1 was executed on 30.01.1995 and the testatrix
                                                                                 D
died on 14.08.1995. The father was alive till 08.08.2000. Therefore, there
was no necessity for the appellants to seek probate of the said Will.
After the death of Mannar Reddiar on 08.08.2000, the appellants obviously
had no support, due to the fact that V.M. Chandrasekaran (husband of
appellant No.1 and father of appellant Nos.2 and 3) had pre-deceased
the father Mannar Reddiar. It is recorded in the impugned Judgment               E
that V.M. Chandrasekaran died in October-1999.
       23. The occasion for the appellants to seek probate of the Will
arose only when the respondents filed the suit for partition in O.S. No.387
of 2005. Therefore, there was actually no delay on the part of the
appellants in seeking probate.                                                   F
       24. The High Court made a mountain out of a molehill, by reading
too much into the lack of knowledge on the part of appellant No.1 about
the time of registration of Exhibit P-2 (Will) and the minor contradictions
between her statement as PW-1 and the statements of PWs 4 and 5.
The adverse inference sought to be drawn by the High Court about the             G
failure of the testator Mannar Reddiar to ensure the presence of the
daughter and the second daughter-in- law at the time of execution of
Exhibit P-2, has no basis in law.
      25. The law relating to suspicious circumstances surrounding the
execution of a Will is already well-settled and it needs no reiteration. It is   H
856               SUPREME COURT REPORTS                           [2022] 1 S.C.R.


A     enough if we make a reference to one of the recent decisions of this
      Court in Kavita Kanwar vs. Mrs. Pamela Mehta and Ors.1 where
      this Court referred to almost all previous decisions right from H.
      Venkatachala Iyengar vs. B.N. Thimmajamma2. But cases in which
      a suspicion is created are essentially those where either the signature of
      the testator is disputed or the mental capacity of the testator is questioned.
B
      This can be seen from the fact that almost all previous decisions of this
      Court referred to in Kavita Kanwar (supra) list out circumstances, which
      in the context of the lack of sound and disposing state of mind of the
      testator, became suspicious circumstances. In the matter of appreciating
      the genuineness of execution of a Will, there is no place for the Court to
C     see whether the distribution made by the testator was fair and equitable
      to all of his children. The Court does not apply Article 14 to dispositions
      under a Will.
              26. It is not difficult for an objective mind to understand the reasons
      behind the daughter and the second son of the testators coming together.
D     Under both the Wills Exhibit P-1 and P-2, the properties have been equally
      distributed between the two sons. The first son V.M. Chandrasekaran is
      now no more. Admittedly Kalavathy’s daughter has been given in marriage
      to V.M. Sivakumar (second son of testator). Therefore, if the bequest
      under the two Wills go, V.M. Sivakumar’s family may eventually receive
      2/3rd share of the properties, which is more beneficial for V.M. Sivakumar
E     than getting half share under the Wills. Unfortunately, the High Court
      completely overlooked this aspect and started analyzing the Wills with
      suspicion. Therefore, the impugned Judgment of the High Court is
      incapable of being sustained.
             27. In view of the above the appeal is allowed. The impugned
F     judgment of the High Court is set aside and the Judgment of the Principal
      District Court, Vellore granting probate of both the Wills, is restored.
      There will be no order as to costs.

      Bibhuti Bhushan Bose                                             Appeal allowed.
G




      1
          AIR 2020 SC 544
      2
H         AIR 1959 SC 443