Important pointThe propounder of the Will has to show that the Will was signed by the testator; that he was at the relevant time in sound disposing state of mind, that he understood the nature and effect of dispositions and had put his signatures to the testament of his own free will and that he had signed it in the presence of the two witnesses who attested in his presence and in the presence of each other.

Headnote:(i) Indian Succession Act, 1925—Section 63—Will—Mode of proving—Special requirement of attestation—Onus to prove the Will is on the propounder—In absence of suspicious circumstances surrounding execution of Will, proof of testamentary capacity and proof of signature of testator need be sufficient to discharge the onus—Proof should be one of satisfaction of a prudent mind in such matters—As to what are suspicious circumstances have to be judged in the facts and circumstances of each particular case.
       Held : It is well settled proposition of law that mode of proving the will does not differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by Section 63 of the Indian Succession Act, 1925. The onus to prove the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and proof of the signature of the testator, as required by law, need be sufficient to discharge the onus. Where there are suspicious circumstances, the onus would again be on the propounder to explain them to the satisfaction of the court before the will can be accepted as genuine. Proof in either case cannot be mathematically precise and certain and should be one of satisfaction of a prudent mind in such matters. In case the person contesting the will alleges undue influence, fraud or coercion, the onus will be on him to prove the same. As to what are suspicious circumstances have to be judged in the facts and circumstances of each particular case. (Para 11)
       The propounder of the will has to show that the will was signed by the testator; that he was at the relevant time in sound disposing state of mind; that he understood the nature and effect of dispositions and had put his signatures to the testament of his own free will and that he had signed it in the presence of the two witnesses who attested in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged. (Para 14)
       (ii) Indian Succession Act, 1925—Section 63—Will—Validity challenged—Will allegedly executed by father in favour of his sons—Challenged by daughters—DW2, the scribe, in his testimony has categorically stated that the Will was scribed by him at the dictation of the testator—Two attesting witnesses deposed that the testator had signed the Will in their presence while in sound disposing state of mind after understanding the nature and effect of disposition made by him. Their testimony inspires confidence being fully corroborated by statement of handwriting expert—Testator was 80 years of age at the time of execution of Will—He died after 15 days of execution of Will—Appellants have failed to bring out anything which could have put a doubt regarding physical or mental incapacity of testator to execute the Will—It was not a case where father had deprived his other children totally from inheritance—Reasons for unequal distribution have been given in the Will itself—Whether the Will had been duly executed—(Yes).
       Held : The testimony of the Scribe (DW-2) and the two attesting witnesses (DWs. – 3 & 4) is fully corroborated by the statement of handwriting expert (DW-5). The will runs into 6 pages. The testator had signed each of the 6 pages. Hand-writing expert compared the signatures of the testator with his admitted signatures. He has opined that the signatures on the will are that of the testator. In our view, the will had been duly executed. Coming to the suspicious circumstances surrounding the will, it may be stated that although the testator was 80 years of age at the time of the execution of the will and he died after 15 days of the execution of the will, the two attesting witnesses and the scribe have categorically stated that the testator was in sound state of health and possessed his full physical and mental faculties. Except that the deceased is 80 years of age and that he died within 15 days of the execution of the will, nothing has been brought on record to show that the testator was not in good health or possessed of his physical or mental faculties. From the cross-examination of the scribe and the two attesting witnesses, the appellants have failed to bring out anything which could have put a doubt regarding the physical or mental incapacity of the testator to execute the will. Submission of the learned counsel for the appellants that the testator had deprived the other heirs of his property is not true. The family properties had been partitioned in the year 1961. The shares which were given to Dharmaraja Kadamba and Raviraja Kadamba were in possession of tenants and vested in the State Government after coming into force of Karnataka Land Reforms (Amendment) Act, 1973 whereas the properties which had been given to the daughters were in the personal cultivation of the family. The testator while executing the will bequeathed the properties which had fallen to his share in the partition and which he had inherited from his brother which were in his personal cultivation in favour of his two sons Dharmaraja Kadamba and Raviraja Kadamba and gave the right to receive compensation to other heirs of the properties which were under the tenants and had vested in the State Government. It is not a case where the father had deprived his other children totally from inheritance. Reasons for unequal distribution have been given in the will itself. This had been done by him to balance the equitable distribution of the properties in favour of all his children. (Paras 14 and 15)
       (iii) Indian Succession Act, 1925—Section 63—Will—Validity—Appellants case that respondent 13 had taken prominent part in execution of Will as he was present in the house at the time of alleged execution of Will—Daughters, appellants were also present in the house at the time of execution of the Will—Whether mere presence in the house at the time of execution of Will would prove taking prominent part in execution of Will—(No).
       Held : Apart from establishing his presence in the house, no other part is attributed to Respondent No.13 regarding the execution of the will. Mere presence in the house would not prove that he had taken prominent part in the execution of the will. Moreover, both the attesting witnesses have also stated that the daughters were also present in the house at the time of execution of the will. The attesting witnesses were not questioned regarding the presence of the daughters at the time of the execution of the will in the cross-examination. The presence of the daughters in the house at the time of execution of the will itself dispels any doubt about the so-called role which Respondent No. 13 had played in the execution of the will. They have not even stepped into the witness box to say as to what sort of role was played by Respondent No. 13 in the execution of the will. (Para 16)
       (iv) Indian Succession Act, 1925—Section 63—Will—Registration after a lapse of 4 years—Whether a suspicious circumstance—(No)—Contents of the Will were disclosed at the time of final obeisance ceremony of the testator—Daughters were present at the time of execution of the Will—Whether delay in registration of the Will by itself would cast a doubt regarding the execution of the Will—(No).
       Held : According to Respondent No. 13, the will was got registered on the advice of a lawyer to enable them to produce it before various authorities. Since we have come to the conclusion that the daughters were present at the time of execution of the will by the testator and the execution of the same was disclosed at the time of final obeisance ceremony of the testator and that the will had also been brought to the notice of the appellants in the year 1978 during the proceedings before the forest authorities, the registration of the will in the year 1980 by itself does not cast a doubt regarding the execution of the will in the year 1976. (Para 18)

Judgement Key Points

Key Points: - The onus to prove a will lies on the propounder, and proof of testamentary capacity and testator’s signature suffices in the absence of suspicious circumstances (!) . - In the presence of suspicious circumstances, the propounder must dispel them to the court’s satisfaction before the will is accepted as genuine (!) . - The required elements of due execution include: testator’s signature, sound disposing mind, understanding of the disposition’s nature and effect, and signing in the presence of two attesting witnesses who sign in the testator’s presence (!) . - Attestation must be in the presence of each other and the testator; the witnesses must witness the signing (!) . - Testimony of the scribe and attesting witnesses, corroborated by a handwriting expert, can establish due execution and genuineness of the will (!) (!) . - Mere presence of a person at the time of execution is not by itself proof of taking a prominent part in execution (!) . - Delayed registration of a will does not by itself cast doubt on its execution if other evidence supports validity (!) (!) .

What is the required mode of proving a will under Section 63 of the Indian Succession Act, 1925?

What are the circumstances under which the onus to prove a will shifts to the propounder in the presence of suspicious circumstances?

What constitutes due execution and attestation of a will, and how do the statements of the scribe, attesting witnesses, and handwriting expert affect its validity?

Judgment

Plaintiffs who are the appellants have filed this appeal assailing the judgment and decree passed by the High Court of Karnataka in Regular First Appeal No. 715 of 1988 to the extent it has gone against them. By the impugned judgment, the High Court has affirmed the judgment and decree passed by the Trial Court.

Facts :

2. One Padmayya Kambali was the owner of the disputed suit properties. He had four sons and three daughters. Appellant Nos. 1 & 2 are the daughters and appellant No.3 is the granddaughter through the third daughter who has died. Defendant-respondent Nos. 1 to 12 are the grandchildren of Padmayya Kambali through his three sons and 13th Respondent is his 4th son. Padmayya Kambali died on 13.4.1976. At the time of his death he left behind vast properties some of which he had inherited from his brother and includes properties which vested in the Stage of Karnataka in respect of which compensation was paid. He executed a will dated 28.3.1976 (Exhibit D-1) which was got registered on 11.9.1980.

3. Appellants filed the suit being Original Suit No. 5 of 1981 for partition and separate possession of 1/7th share for each of the appellants of the properties described in the Schedules ‘A’, ‘B’, ‘C’ and ‘D’ attached to the plaint. Schedule properties ‘A’, ‘B’ and ‘C’ are immovable properties whereas ‘D’ schedule properties are movable properties. It was alleged in the plaint that the suit properties are the Joint Hindu Family properties and the appellants being the natural heirs are entitled to 1/7th share each in the suit properties. It was also averred that respondents were enjoying the properties to the exclusion of the appellants and were not willing to partition the properties or come to a reasonable or amicable settlement. Nothing has been stated about the will in the plaint as according to them it had not been brought to their notice prior to the filing of the written statement. Respondent Nos. 1-7 in their written statement admitted the contents of the plaint. Respondent Nos. 8-12, wife and children of Darmaraja Kadamba (a pre-deceased son of the testator), and Respondent No.13 - Raviraja Kadamba contested the suit. According to them, there was a partition in the family under a Registered Partition Deed (Exhibit D-4) dated 4.1.1961. Under the said partition, the female members were allotted major shares in the properties which were in personal cultivation and enjoyment of the family whereas Dharmaraja Kadamba (deceased) - husband & father of Respondent Nos. 8 to 12 and Raviraja Kadamba - Respondent No.13, were allotted properties which were in possession of the tenants. After the coming into force of the Karnataka Land Reforms (Amendment) Act, 1973, Act 1 of 1974, all tenanted lands vested in the Government and the two sons were left with no properties. In order to correct the injustice done to these two sons, Padmayya Kambali bequeathed schedule properties ‘A’ and ‘B’ (which were not under the tenants) in their favour and the daughter i.e. the appellants were given the right to receive compensation in lieu of the lands which were with the tenants and had vested in the Government under the Land Reforms Act. It was averred that Padmayya Kambali executed the will of his own while in sound disposing mind. At the time of execution of the will, he was in possession of his physical and mental faculties. It was averred that except the properties which are the subject matter of this appeal and are shown in schedule ‘A’ & ‘B’ to the will, other properties were amenable to partition. Insofar as immovable properties are concerned, they were divided amongst the heirs soonafter the death of Padmayya Kambali. It was also averred that the contents of the will executed by the testator were disclosed at the time of final obeisance ceremony of Padmayya Kambali in the year 1976.

4. The Trial Court framed relevant issues. Appellants examined PWs 1 to 4 and got marked Exhibits P-1 to P-15. The respondents examined 5 witnesses which

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2005 Supreme(SC) 156

What is the required mode of proving a will under Section 63 of the Indian Succession Act, 1925?

What are the circumstances under which the onus to prove a will shifts to the propounder in the presence of suspicious circumstances?

What constitutes due execution and attestation of a will, and how do the statements of the scribe, attesting witnesses, and handwriting expert affect its validity?

Cases Referred (5)