IMPORTANT POINT
In the event of suspicion in regard to the genuineness or otherwise, the will must be proved to have been executed in accordance with law establishing that same has been done in presence of at least two witnesses.

Headnote:Indian Succession Act, 1925 - Section 63 - Will - Proof of execution - Petition for probate/Letters of administration by respondent-beneficiary - Trial Court opined that in view of presence of suspicious circumstances surrounding execution of will, same could not be held to have been executed - Appeal was dismissed by Single Judge - Division Bench found that evidence on record satisfied requirements of Section 63 of the Act and execution of will stood proved - Appeal - When Court has to consider probate petition or Letters of Administration, all circumstances should be taken into consideration - Will in question was unregistered - Testator did not know intimately the scribe of will PW1 who was a teacher - No reason for testator to walk to his residence and ask him to scribe the will - Attesting witnesses PWs 2 and 3 and scribe PW1 were stranger to testator - PW2 was son of PW1 and PW3 was relative of plaintiff - Division Bench did not address to the circumstances noticed by Single Judge took an erroneous approach to the issue - Suspicious circumstances pointed out by District Judge and Single Judge were glaring on face of record and could not have been ignored by Division Bench - Impugned judgment was liable to be set aside.
       Held : It may be true, as has been opined by the Division Bench of the High Court, that proof of execution of the Will in terms of Section 63 of the Indian Succession Act and Sections 67 and 68 of the Indian Evidence Act would be a pre-requisite, but, to take the same in evidence it is also trite that while arriving at a finding as to whether the Will has duly been executed or not, the court must satisfy its conscience having regard to the totality of the circumstances. The Will in question was executed on 23.3.1968. It was an unregistered one. She was ordinarily not a resident of District of Chittoor. She used to visit the said place occasionally. She did not know intimately the scribe of the Will, namely, P.W.1-Shri V. Thyagarajan. He was a teacher. There was no reason for Akkayamma to walk to his residence and ask him to scribe the Will. If P.W.1 was not a professional scribe, there may not be any particular reason as to why Akkayamma had chosen him for the said job. In the event of suspicion in regard to the genuineness or otherwise, the Will must be proved to have been executed in accordance with law establishing that the same has been done in presence of at least two witnesses. Although, the court should not approach the question with a suspicion that the Will is not a genuine one, the general guidelines laid down by this Court and the High Court in this behalf should be followed. The issue necessarily involves due appreciation of evidence.(Para 9)
       The scribe, P.W.1, even did not explain as to how he was prevailed upon to draft an important document like Will and what was his experience therefor. It had further been noticed that P.W.2 worked in the same Bank wherein the 1st plaintiff was employed. Plaintiff No.2 was the son of P.W.1 and P.W.3 was also a relative of the plaintiffs. They were, thus, termed as interested witnesses by the learned District Judge.(Para 10)
       The Division Bench of the High Court was, with respect, thus, entirely wrong in proceeding on the premise that compliance of legal formalities as regards proof of the Will would sub-serve the purpose and the suspicious circumstances surrounding the execution thereof is not of much significance.(Para 25)
       The suspicious circumstances pointed out by the learned District Judge and the learned Single Judge of the High Court, were glaring on the face of the records. They could not have been ignored by the Division Bench and in any event, the Division Bench should have been slow in interfering with the findings of fact arrived at by the said court. It applied a wrong legal test and thus, came to an erroneous decision. (Para 26)
       For the reasons aforementioned, the impugned judgment cannot be sustained. It is set aside accordingly. (Para 27)

Judgement Key Points

Based on the provided legal document, the key points relevant to the execution and validity of the will are as follows:

Genuineness and Proper Execution: The will must be proved to have been executed in accordance with law, which requires it to be signed or marked by the testator, and attested by at least two witnesses who have observed the signing or acknowledged the signature (!) (!) .
Presence of Witnesses: The witnesses must have seen the testator sign or affix his mark, or have received a personal acknowledgment of the signature, and must sign the will in the presence of the testator (!) .
Suspicious Circumstances: If there are suspicious circumstances surrounding the execution of the will—such as the testator being of weak mind, signing under undue influence, or the will being unnatural or improbable—these must be satisfactorily explained by the propounder before the will can be accepted as genuine (!) (!) .
Conscience and Totality of Evidence: Courts must satisfy their conscience by considering the totality of circumstances, including the conduct of the testator, the relationship with the witnesses, and the circumstances of execution, rather than relying solely on formal compliance (!) (!) .
Significance of Suspicious Circumstances: The presence of suspicious circumstances increases the burden on the propounder to prove the will's validity. If such circumstances are present, they should be fully explained and satisfactorily removed (!) (!) .
Nature of the Testimony: Witnesses who are interested or strangers to the testator, or who have a potential interest in the outcome, are viewed with suspicion, and their testimonies require careful scrutiny (!) (!) .
Formalities and Substantive Validity: While compliance with statutory formalities (signatures, attestation) is necessary, it is not solely sufficient. The overall conduct, circumstances, and any suspicious elements must be considered to establish the true intention and mental capacity of the testator (!) (!) .
Burden of Proof: The initial burden lies on the propounder to prove the will was executed by the testator in a sound and disposing state of mind, with full understanding and free will. If suspicious circumstances are present, the burden shifts to the caveator or opponent to explain or disprove the validity (!) (!) .
Reappraisal of Evidence: Appellate courts should re-evaluate both factual and legal aspects carefully, especially when suspicious circumstances are involved, and should not interfere unless there is a clear legal or factual error (!) (!) .
Overall Approach: The court's ultimate responsibility is to ensure that the will reflects the true intention of the testator, free from undue influence or coercion, and that it has been executed with proper legal formalities, considering all relevant circumstances rather than relying solely on formal proof (!) (!) .

These points collectively emphasize that the validity of a will depends not only on compliance with statutory formalities but also on the absence of suspicious circumstances and the overall integrity of the execution process.

JUDGMENT

S.B. Sinha, J. - Leave granted.

2. One Smt. B. Akkayamma, although not a highly educated lady, was carrying on the profession of money lending. She acquired considerable property. The immovable properties held and possessed by her were situate in the District of Chittoor in the State of Andhra Pradesh and at Arkonam in the State of Tamil Nadu. She was unmarried. She had, however, been living with one Shri C.D. Jai Singh. Respondent Nos.1 to 3 are children of the said Jai Singh through his legally wedded wife Smt. Shyam Bai. She was original plaintiff No.4 in the suit. She, during the pendency of the suit, however, expired.

3. Jai Singh shifted to Arkonam from Tirupati. Akkayamma followed him. They started living together. She had, however, been visiting Chittoor and Tirupati occasionally. Plaintiffs-Respondents originally developed a disliking for Akkayamma. A suit was also filed against her, but it appears from the records that they had later reconciled and she was accepted as a member of the family. A purported Will was executed by Akkayamma on 23rd March, 1968 bequeathing her properties situate in the District of Chittoor in favour of respondent No.1 herein only. The said Will was an unregistered one. It may be, however, noticed that Jai Singh expired on 17th July, 1968. During his illness, although Akkayamma was possessed of sufficient properties both movable and immovable, but she did not spend any amount towards his treatment. Admittedly, she was of miserly nature. Surprisingly, however, she executed two deeds on 26.9.1968 transferring her properties situate at Arkonam in favour of respondents. She expired on 29th September, 1968. Although in the Will Respondent No.1 alone was the beneficiary thereof, not only Respondent Nos. 2 and 3, but, as noticed herein before, their mother also filed an application for grant of probate in the Court of District Judge, Chittoor. Respondent No.4 herein, who is said to be the tenant in one of the premises in question, was impleaded as a party therein. Appellant herein was not initially impleaded as a party, although, he was the heir and legal representative of Akkayamma. He was impleaded at a later stage. The application for grant of probate was also amended by making an alternative prayer for grant of Letters of Administration. A caveat in the meantime had also been lodged by Appellant.

4. In view of the opposition to the prayer for grant of probate, the learned District Judge, by an order dated 2.7.1975 directed that O.P. No.102 of 1970 be converted into a regular suit in terms of Section 295 of the Indian Succession Act, 1925. In the said suit, Appellant in his written statement, inter alia, contended that the Will in question was a forged one. The learned trial court, in view of the pleadings of the parties, inter alia, framed the following issues :

"1.Whether the will dt. 23.3.1968 alleged to have been executed by late Akkayyamma is true, valid and binding on the defendant?

2.Whether the defendant is a reversioner to the estate of late Akkayyamma?

3.Whether this court has no jurisdiction to entertain this suit?

4.Whether this suit is not maintainable for non compliance with any of the provisions of Indian Succession Act?

5.Whether the court fee paid is incorrect?

6.Whether the plaintiffs are entitled to a probate or letters of administration in respect of the suit property?

7.Whether the plaintiffs are entitled to declaration prayed for?

8.To what relief?"

5. In his judgment dated 28th October, 1981, the learned Judge opined that in view of presence of nine suspicious circumstances surrounding the execution of the Will, the same could not be held to have been executed by Akkayyamma. An appeal preferred thereagainst by Respondent Nos.1 to 3 was dismissed by a learned Single Judge of the High Court by a judgment and order dated 19th June, 1995. The learned Single Judge in his judgment, apart from nine circumstances enumerated by the learned trial Judge, also added three circumst

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2006 Supreme(SC) 973

IMPORTANT POINTIn the event of suspicion in regard to the genuineness or otherwise, the will must be proved to have been executed in accordance with law establishing that same has been done in presence of at least two witnesses.

Cases Referred (6)

IMPORTANT POINT
In the event of suspicion in regard to the genuineness or otherwise, the will must be proved to have been executed in accordance with law establishing that same has been done in presence of at least two witnesses.