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SUPREME COURT OF INDIA
13th November 1958
T.L. VENKATARAMA AYYAR, P.B. GAJENDRAGADKAR AND A.K. SARKAR JJ.
H. Venkatachala Iyengar, Appellant
Versus
B.N. Thimmajamma and others, Respondents.
Civil Appeal No. 18 of 1955.
Advocates Appeared
Mr. S. K. Venkataranga Iyengar, Senior Advocate (Mr. N. Keshava Iyengar, Advocate with him), for Appellant; Mr. A. V. Viswanatha Sastri, Senior Advocate (Mr. K. R. Choudhry, Advocate with him), for Respondent No. 1.
- the party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and in deciding how it is to be proved, reference may be made to Sections 67 and 68 of the Evidence Act.
It would prima facie be true like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to except proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters, as held in the case of H. Venkatachala Jyengar v. B.N. Thimajumma, AIR 1959 SC 443 = 1959 SCJ 503 = 1959(2) SCA 230 = 1959 MLJ (Crl) 313. The propounder has to show that the will was signed by the testator that he was at the relevant time in a sound disposing state of mind, that he understood the nature and effect of the dispositions, that he put his signature to the testament of his own free will and that he has signed it in the presence of the two witnesses who attested it in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder discharged, as held in the case of Surender Pal v. Dr. (Mrs.) Saraswati Arora, AIR 1974 SC 1999 = 1974(2) SCC 600.
– there may be cases in which the execution of the will itself is surrounded by suspicious circumstances, such as, where the signature is doubtful, the testator is of feeble mind or is overawed by powerful minds interest in getting his property, or where in the light of the relevant circumstances the dispositions appear to be unnatural, improbable and unfair, or where there are other reasons for doubting that the dispositions of the will are not the result of the testator’s free will and mind. In all such cases where there may be legitimate suspicious circumstances those must be reviewed and satisfactorily explained before the will is accepted.
– where, the propounder has himself taken a prominent part in the execution of the will which confers on him substantial benefit that is itself one of the suspicious circumstances which he must remove by clear and satisfactory evidence. After all, ultimately it is the conscience of the Court that has to be satisfied, as such the nature and quality of proof must be commensurate with the need to satisfy that conscience and remove any suspicion which a reasonable man may, in the relevant circumstances of the case, entertain.
– see H. Venkatachala Iyengar v. B.N. Thimmajamma, AIR 1959 SC 443 = 1959 (Supp) 1 SCR 426 and Rani Purnima Debi v. Khagendra Narayan Deb, AIR 1962 SC 567 = 1962 (3) SCR 195;Saraswati Arora, AIR 1974 SC 1999 = 1974(2) SCC 600.
- where the propounders had taken a prominent part in the execution of the Will and that by itself is generally treated as a suspicious circumstance surrounding the execution of the Will and that the defendants as propounders were required to remove such suspicion by clear and unimpeachable evidence. Reliance may be placed on the decision like H. Venkatachala Iyengar v. B.N. Thimmajamma, AIR 1959 SC 443 = 1959 Supp (1) SCR 4269; Jaswant Kaur v. Amrit Kaur, AIR 1977 SC 74 = 1977(1) SCC 369; Indu Bala Bose v. Manindra Chandra Bose, AIR 1982 SC 133 = 1982(1) SCC 20. In the case of Smt. Malkani v. Jamadar, AIR 1987 Sc 767 = 1987(1) SCC 610 = 1987(1) UJ(SC) 382, on the facts and circumstances it was found that the Will was genuine one and it was intended to be acted upon and it was held that the testamentary capacity of the executrix or the genuineness of the Will cannot be doubted only on the ground that the propounder took active participation in its execution.
in R. Venkatachala Iyengar v. B.N. Thimmajamma, AIR 1959 SC 443 = 1959 Supp (1) SCR 426, the following propositions were laid down:
1. Stated generally, a Will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents so in the case of Will, one cannot insist on proof with mathematical certainty.
2. Since 63 of the Succession Act requires a Will to be attested, it cannot be used as evidence until, as required by Section 68 of the Evidence Act, 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 the court and capable of giving evidence.
3. Unlike other documents, the Will speaks from the death of the testator and therefore the maker of the Will is never available for deposing as to the circumstances in which the Will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last Will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the Will.
4. Cases in which the execution of the Will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking leading part in the making of the Will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the Will. That suspicion cannot be removed by the mere assertion of the propounder that the Will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the Will was made or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attending upon the execution of the Will excite the suspicion of the Court, the propounder must remove all legitimate suspicions before the document can be accepted as the last Will of the testator.
5. It is in connection with Wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the Court is the last Will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the Court has to be satisfied fully that the Will has been validly executed by the testator.
6. If a caveator allege fraud, undue influence, coercion, etc. in regard to the execution of the Will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the Will may raise a doubt as to whether the testator was acting of his own free Will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter. In the case ofSmt. Jaswant Kaur v. Smt. Amrit Kaur, AIR 1977 SC 74 =1977(1) SCC 369 =1977(1) SCR 925 it was observed that it is not as if the burden of proof varies with the riches and social prestige of the testator but habits of life are prone to vary with the means of the man and privileged few who happen to occupy a high place in the social heirachy have easy access to competent legal advice. Normally therefore, a genuine Will of a propertied man, well positioned in society too, does not suffer from the loopholes and infirmities which may understandably beset an humbler testamentary instrument. See also decision in Ramchandra Rambux. v. Champabai, AIR 1965 SC 354.
– is generally meant that the testator at the time when he made the Will had a sound and disposing state of mind and memory, as observed in H. Venkatachala Iyenger v. B.N. Thimmajamma, AIR 1959 SC 443 = 1959 Supp (1) SCR 426.
Certainly. Based on the provided legal document, here are the key legal principles and considerations:
The court applies a standard of satisfaction based on the conscience of the court, which does not demand mathematical certainty but reasonable assurance (!) (!) .
Suspicious Circumstances and Burden of Proof:
Prominent participation of the propounder in executing the will, especially when they benefit substantially, is considered a suspicious circumstance that must be satisfactorily explained (!) (!) .
Mental Capacity and Understanding:
The court examines whether the testator understood the contents and was capable of appreciating the consequences of signing the will, especially when the testator was old or ill (!) (!) .
Formalities of Execution:
The signature and attestation must be made in the presence of the testator, and the testator's signature should be made intentionally to give effect to the document as a will (!) (!) .
Suspicious or Unnatural Dispositions:
The court assesses whether the dispositions are consistent with the relationship and circumstances of the testator, and whether there are legitimate reasons for any unnatural provisions.
Evidence and Credibility:
The court considers the probabilities and circumstances surrounding the execution, including the presence of independent witnesses and the testator's mental state at the time (!) (!) .
Role of Interested Parties:
The court remains vigilant to ensure that the will reflects the true intentions of the testator, free from undue influence or fraud.
Overall Approach:
In summary, the proof of a will hinges on satisfying the court that it was executed properly, with the testator of sound mind, and without undue influence, especially when suspicious circumstances are present. The propounder must dispel all reasonable doubts by clear, cogent, and convincing evidence to establish the authenticity and validity of the will.
Judgement
P. B. GAJENDRAGADKAR, J. : This appeal arises from a suit brought by the appellant in the Court of the Subordinate Judge, Mysore, as the sole executor of the will alleged to have been executed by one Lakshmamma on 22nd August 1945, (Ex. A). In this suit the appellant claimed a declaration that the said Lakshmamma was the owner of the properties mentioned in the schedule attached to the plaint and as such was entitled to dispose of them by a will; and he asked for consequential reliefs purporting to give effect to the bequests made by the said will. The schedule attached to the plaint describes the properties covered by the will under five items. First three items in the schedule refer respectively to 5, 4 and 4 agricultural lands at Hampapura village, whereas the fourth item includes 9 lands at Arjunahalli village and the last item is a vacant site in Hampapura village. According to the plaint, under the will respondent 1 was entitled only to a life interest in items 1 and 2 and that on her death the said items would vest in respondents 2 to 4 and respondent 5 respectively. Since respondent 1 was in possession of all the five items, the appellant claimed a decree for possession against respondent 1 in respect of items 3, 4 and 5 and a declaration that respondent 1 was to have only a life interest in items 1 and 2. By his plaint the appellant also claimed to recover Rs. 2,100 which had been collected by respondent 1 by way of income from the suit lands and a further prayer was made for the payment of current mesne profits by respondent 1.
2. Before referring to the pleadings of the parties it would be relevant to mention the material facts in regard to their relationship which are not in dispute. One Annaji Iyengar who died in July 1903 left behind him is adopted son, the appellant, and two daughters Gundamma alias Ranganayakamma who is still alive and Lakshmamma alias Achamma who is alleged to have executed the will in suit and died thereafter on 26th September 1945, at Mandya. Respondents 2 to 4 are the sons of the appellant. Lakshmamma was married to Sadagopalachar who died in December 1908. The couple had three children, a son named Narayana Iyengar who died on 14th January 1944, without any issue and left behind him his widow respondent 1; and the two remaining children of Lakshmamma were daughters Thirumalamma and Yadugiramma. Both of them are dead. Thirumalamma was married to one G. Parthasarathy Iyengar by whom she had a son of weak intellect, who died pending litigation, and three daughters Neelu, Jaya and Padmini. Yadugiramma was married to Kalbagal Garudachar and by him she had a son Narasimha Iyengar, respondent 5, and daughter Lilly. Kalbagal Garudachar had a son S. G. Kalbagal (hereinafter described as Junior Kalbagal) from his first wife. Jaya was married to Kalbagal Junior. The claim made by the appellant under the will is resisted by respondent 1. Respondents 2 to 5 have not appeared in the proceedings.
3. According to the case set out by the appellant in his plaint Annaji Iyengar had made a gift of properties, items 1 an 2, in favour jointly of Lakshmamma and Sadagopalachar under a registered deed of gift on 16th February 1902 (Ex. D). It was also alleged that the said Annaji Iyengar had executed a will on 31st August 1901, (Ex. B2(a)) under which he had bequeathed in favour of Lakshmamma and Sadagopalachar hypothecation bonds to the extent of Rs.10,320 as gift with the express stipulation that the survivor of the legatees should take the whole of the bequest by survivorship. The appellant alleged that Sadagopalachar was a man of very moderate means and had given up his petty job in the registration department in order to manage the properties received by him and his wife from Annaji Iyengar. During the course of the management Sadagopalachar used the cash of rupees 10,320 received by bequest under the will of Annaji Iyengar to buy some immoveable properties including items 3 and 4. Since Sadagopalachar
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