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TMI Blog2023 (12) TMI 1413X X X X Extracts X X X X X X X X Extracts X X X X ..... iew 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 con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... put in caveat and disputed its execution and genuineness. Subsequently, it was converted as an original suit Under Section 295 of the Indian Succession Act and was numbered as O.S. No. 21/1997. Evidently, the 5th Defendant who was another brother of the Appellants resisted the suit by filing a written statement and the sisters of the Appellants herein who are Respondent Nos. 3 and 7 herein (Defendant Nos. 1 and 6 in the suit), jointly filed a written statement. On the side of the Plaintiffs, the first Plaintiff got himself examined as PW-1, Defendant No. 7 was examined as PW-2 and one of the attesting witnesses was examined as PW-3. On the side of the Defendants, Defendant No. 5 was examined as DW-1, one Jathin C. Patna was examined as DW-2 and a finger print and hand writing expert by name C.V. Jayadevi was examined as DW-3. After appreciating the oral and documentary evidence, the trial Court decreed the suit and held that the Plaintiffs are entitled to the grant of probate of the last Will and testament dated 10.11.1992 of their deceased mother Cecilia Gertrude Lobo. Further consequential directions were also issued as per the judgment dated 20.02.2001. 3. Aggrieved by the jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Court are as under: (i) Failure to prove that the testatrix executed the Will after understanding its contents; (ii) The prominent-participation of the beneficiaries of the Will in getting the Will executed; (iii) No reason is forthcoming, virtually not discernible, from the Will as to why some of the children were dis-inherited by the testatrix; (iv) Non-examination of the material witnesses including the advocate who prepared the draft Will and; (v) Sale of some of the properties by the Plaintiffs after the death of the testatrix, but before the grant of probate of the Will. 7. It was assigning such reasons and taking them as suspicious circumstances surrounding the subject Will that the High Court reversed the judgment and decree of the trial Court holding that the trial Court went wrong in finding that the Plaintiffs had succeeded in proving due and valid execution of the Will dated 10.11.1992. 8. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same, going by the evidence on record. 11. Evidently, 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. 12. On the question of execution of the Will dated 10.11.1992, paragraph 21 of the impugned order itself would reveal that the High Court after appreciating the pleadings as also the oral evidence including that of PW-1 and PW-2, and the documentary evidence observed and found that Defendant Nos. 1 to 4 and 6 had decided not to contest execution of the Will and further that it was only Defendant No. 5 (the Appellant therein) who had contested the execution of the Will, while considering the question whether acknowledgment given by Defendant No. 1 and others as also the letters written by Defendant No. 1 would help in proving the due and valid execution of the Will. The relevant recital in that regard in paragraph 21 of the impugned judgment reads thus: 21.......... It is clear f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 92 to execute Ext.D5, how would he be justified in raising a case that the testatrix was not in a sound disposition of mind prior to her hospitalization in Jaslok Hospital, Bombay i.e., on 10.11.1992. In view of his case attempted to be brought in through Ext.D5 the 5th Respondent could not have raised the contention that the testatrix was not in sound disposition of mind. This is the second aspect turning out of Ext.D5. We adverted to the aforesaid aspects revealed from evidence solely to show the hollowness of the case of the 5th Defendant that Ext.P2 - Will dated 10.11.1992 was not executed with sound disposition. Anyway, the legal representatives of deceased Defendant No. 5 who alone disputed the execution of Ext.P2 Will, are not contesting the matter. The upshot of the discussion is that the contesting Respondent Nos. 2 and 3 viz., Defendant Nos. 1 and 6 in the suit cannot be permitted to dispute the execution of the Will dated 10.11.1992 and that they can be permitted to urge only for sustaining the impugned judgment. 15. Now, we will refer to the cited suspicious circumstances. In the light of the decision in Gurdial Kaur and Ors. v. Kartar Kaur and Ors. (1998) 4 SCC 384 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct of the disposition and put 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. 20. In the case of Ryali Kameswara Rao v. Bendapudi Suryaprakasarao AIR 1962 AP 178 this Court while discussing the provisions of Section 63 of the Succession Act, 1925, has held that the suspicion alleged must be one inherent in the transaction itself and not the doubt that may arise from conflict of testimony which becomes apparent on an investigation of the transaction. That suspicious circumstances cannot be defined precisely. They cannot be enumerated exhaustively. They must depend upon the facts of each case. When a question arises as to whether a will is genuine or forged, normally the fact that nothing can be said against the reasonable nature of its provisions will be a strong and material element in favour of the probabilities of the will. Whether a will has been executed by the testator in a sound and disposing state of mind is purely a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ermit them to demolish a fact otherwise proved by legal and convincing evidence. Well-founded suspicion may be a ground for closer scrutiny of evidence but suspicion alone cannot form the foundation of a judicial verdict - positive or negative. 9. It is well-settled that one who propounds a will must establish the competence of the testator to make the will at the time when it was executed. The onus is discharged by the propounder adducing prima facie evidence proving the competence of the testator and execution of the will in the manner contemplated by law. The contestant opposing the will may bring material on record meeting such prima facie case in which event the onus would shift back on the propounder to satisfy the court affirmatively that the testator did know well the contents of the will and in sound disposing capacity executed the same. The factors, such as the will being a natural one or being registered or executed in such circumstances and ambience, as would leave no room for suspicion, assume significance. If there is nothing unnatural about the transaction and the evidence adduced satisfies the requirement of proving a will, the court would not return a finding of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition set out by various decisions of this Court has upset the finding of the fact recorded by the Subordinate Judge in one sentence. It is trite that it is the duty of the propounder of the will to prove the will and to remove all the suspected features. But there must be real, germane and valid suspicious features and not fantasy of the doubting mind. (Underline supplied) 16. In the light of the aforesaid decisions, it can be safely said that 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. We are saying that the contestant opposing the Will has to raise surrounding suspicious circumstances specifically and not vaguely or in a general manner. A case of well-fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt No. 5 and accepted by the High Court cannot survive. In other words, they cannot be sustained. 18. Another circumstance treated as suspicious circumstance by the High Court is the prominent participation of the beneficiaries under the Will in the matter of its execution. 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. So also, the other reason assigned by the High Court that the advocate who drafted the Will was not examined, according to us cannot be said to be a legal requirement at all and at any rate, the non- examination of the advocate who drafted the Will cannot be a ground to discard the Will since it was proved by examining an attesting witness and no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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