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2023 (12) TMI 1413 - SC - Indian LawsExecution of will in accordance with the legal requirements under the Indian Succession Act 1925 and the Indian Evidence Act 1872 - prominent participation in its execution - HELD THAT - It is well-nigh settled position that the burden to prove the execution of the Will is on the propounder(s) and on its discharge the onus would be on the opposing contestant to establish that it is not valid. Certainly if suspicious circumstances have been pleaded by the contestant opposing Will and prima facie shown them to be true then the onus would be shifted to the propounder(s) to dispel the suspicious circumstances to the satisfaction of the court so as to accept it as genuine. In the light of the position so settled and in view of the fact that the trial Court and the High Court are at issue on the question whether the Will in question was proved as valid in accordance with law we will have to proceed to consider the said question. In that regard in view of the undisputed position that the Will was executed by Cecelia Gertrude Lobo the question to be considered is whether the circumstances taken as suspicious circumstances by the High Court are in troth suspicious circumstances capable of calling the propounder to dispel them. Section 63 of the Succession Act prescribes the mode and method of proving a Will and going by the provisions Under Section 68 of the Evidence Act though a Will shall not be used as evidence until one of the attesting witnesses has been examined. It will suffice to examine one of the attesting witnesses to prove the same - the trial Court had taken into account the entire evidence on record to conclude that legal requirements in terms of the provisions Under Section 63 of the Succession Act and Under Section 68 of the Evidence Act have been complied with by the Plaintiffs and ultimately to hold that the Plaintiffs have succeeded in proving the execution of the Will. Once the burden to prove is discharged by the propounder in terms of Section 63 of the Succession Act and Section 68 of the Evidence Act and by adducing prima facie evidence proving the competence of the testator the onus is on the contestant opposing to show prima facie the existence of suspicious circumstances so as to shift the onus on the propounder to dispel them. Without knowing the circumstances which according to the contestant opposing are suspicious how will the propounder be able to dispel them and to convince the court about its genuineness and validity - A case of well-founded suspicion has to exist to cause shifting of onus back to the propounder once he discharged his burden to prove the execution of the Will. The allegation of prominent participation as relates execution of a Will suggests some kind of influential interference on the testator/testatrix. There cannot be any doubt with respect to the position that the mere presence of executor or any beneficiary under a Will at the time of the execution of the Will ipso facto will not invalidate it or is sufficient to cast suspicion on the execution of the Will. At any rate it is for the person raising the same to prove that it was not a mere presence in the vicinity and it was capable of influencing the testator/testatrix. Conclusion - There are no hesitation to hold that the trial Court had rightly considered all the circumstances to come to the conclusion that Ext.P2 Will was validly executed and it was proved by the Appellants. The circumstances were taken as suspicious by the High Court sans foundation and the High Court erred in holding the subject Will dated 10.11.1992 as not proved. Appeal allowed.
ISSUES PRESENTED and CONSIDERED
The core legal issues considered in this judgment were:
ISSUE-WISE DETAILED ANALYSIS 1. Valid Execution of the Will The legal framework for proving a Will's execution is governed by Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act. The Court noted that the trial court found the Will to be duly executed, as one of the attesting witnesses was examined, satisfying the statutory requirements. The Supreme Court reiterated that the burden of proof initially lies with the propounder of the Will, which shifts to the contestant if suspicious circumstances are demonstrated. The Court found that the High Court erred in its assessment by failing to appreciate the evidence that supported the Will's execution, including the testimony of an attesting witness who confirmed the testatrix signed the Will after understanding its contents. 2. Suspicious Circumstances The High Court identified several suspicious circumstances, including the testatrix's physical condition, the beneficiaries' involvement, and the exclusion of certain heirs. The Supreme Court addressed each point:
The Court emphasized that suspicious circumstances must be well-founded and not merely speculative, citing precedents where the burden shifts only if genuine suspicion is established. 3. Non-examination of the Advocate The Supreme Court found that the non-examination of the advocate who drafted the Will was not a legal requirement and did not constitute a suspicious circumstance. The Court cited precedent that the Will's validity is primarily established through the attesting witnesses, not the drafter. 4. Sale of Properties The sale of properties by the Plaintiffs before probate was granted was considered by the High Court as a suspicious circumstance. However, the Supreme Court found no legal basis for this view, as the Will had been acted upon, indicating its acceptance by the parties involved. SIGNIFICANT HOLDINGS The Supreme Court restored the trial court's judgment, affirming the Will's validity and setting aside the High Court's decision. Key principles established include:
The Court concluded that the trial court correctly found the Will to be validly executed, and the High Court's identification of suspicious circumstances lacked a factual basis.
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