Important point
Mode and manner of proof of due execution of a will indisputably will depend upon the facts and circumstances of each case. It is for the propounder of the will to remove the suspicious circumstances.

Headnote:Indian succession Act, 1925 – Section 276 - Indian evidence Act, 1872 – Section 68 –Will – Execution of will by testatrix – Testatrix was a 96 years old lady who had been suffering for a long time and was bed-ridden - No evidence brought on record to show as to who had drafted Will - Nothing on record to show as to who had drafted Will, or at whose instance it came to be registered - No property, could be bequeathed in favour of daughters of testatrix as both were nuns - Relation of testatrix with respondent was very cordial - Appellant unable to prove that she had been staying with testatrix since 1986 and only on that account she was made a beneficiary of Will thereof - Will was full of suspicious circumstances – Categorical statement of PW-2 that will was drafted before her coming to residence of testatrix and she had only proved her signature as a witness to execution of will but document was a handwritten one - Original will was typed in Kannada, although blanks were filled up with English letters - No evidence to show that contents of will were read over and explained to testatrix - PW-2 was not known to testatrix - Why was PW2 called and who called her to attest will was shrouded in mystery - Evidence of Pw2 was not at all satisfactory in regard to proper frame of mind of the testatrix - There were several cuttings and over writings also in will - It is for propounder of will to remove suspicious circumstances – However since propounder failed to remove suspicious circumstances – Hence held that Execution of Will was not duly proved – Appeal having no merit dismissed. (Paras 8,9,10,13,20,21)
       Facts of the case :
       A will was executed by testatrix herein in the instant case bequeathing Schedule Property “A” in favour of appellant and Schedule property “B” in favour of Respondent. An Application for grant of letters of Administration was preferred by appellant. Suit there against was filed by respondent there against on plea that testatrix was an aged woman and not had a proper frame of mind at time of purported execution of will to understand contents thereof. Trial Court held that execution of will was duly proved. High Court on appeal reversed findings of Trial judge on ground that PW2 only attesting witness admitted that she had put her signature on a handwritten Will whereas Will had in fact been typed in Kannada language, and that Will contained various overwriting and cuttings which established existence of suspicious circumstances.
       Present appeal has been filed against said order of High Court.
       Findings of the Court :
       The court held that Testatrix was a 96 years old lady who had been suffering for a long time and was bed-ridden. No evidence was brought on record to show as to who had drafted Will or at whose instance it came to be registered. No property, could be bequeathed in favour of daughters of testatrix as both were nuns. Relation of testatrix with respondent was very cordial. Appellant was unable to prove that she had been staying with testatrix since 1986 and only on that count she was made a beneficiary of Will thereof. Will was full of suspicious circumstances. Categorical statement of PW-2 that will was drafted before her coming to residence of testatrix and she had only proved her signature as a witness to execution of will but document was a handwritten one. Original will was typed in Kannada, although blanks were filled up with English letters. No evidence to show that contents of will were read over and explained to testatrix. PW-2 was not known to testatrix. Why was PW2 called and who called her to attest will was shrouded in mystery. Evidence of Pw2 was not at all satisfactory in regard to proper frame of mind of the testatrix. There were several cuttings and over writings also in will. It is for propounder of will to remove suspicious circumstances. However since propounder failed to remove suspicious circumstances. Hence held that Execution of Will was not duly proved. Appeal having no merit was dismissed accordingly.

JUDGMENT

S.B. SINHA, J.—

1.Florine D’ Souza executed a will on or about 06.05.1992. She had two daughters Olivia and Olympia. Both of them had become nuns. The 1st daughter Olivia died in 1975. The 2nd daughter Olympia died on 27.09.1993.

2.Appellant herein was one of the beneficiaries of the will. He was, however, not in any way related to the testatrix. The testatrix was owner of the following properties which were subject-matter of the said will :

“‘A’ SCHEDULE

xxx xxx xxx xxx

Property situated in Talipady Village, Mangalore Taluk, Mulki Sub-Division D.K. bearing following particulars :

S.S.D. No.KissamExtentAssessment

No.A.C.Rs.P.s123- 1A1B (P)Garden0 - 16

BOUNDARIES :

East:Property allotted to ‘B’ Schedule belongs to the Same sub-Division.

South:Portion of Sy. No. 123/1A1A

West:Portion of Sy. No. 123/1A1A

North :Sy Line

With tiled house bearing No. 8 87, with all mamool and easementary rights with all appurtenants and also all the movables belonging to me.”

“‘B’ SCHEDULE’

xxx xxx xxx xxx

Property situation in Thalipady Village, Mulki S.D. Mangalore Taluk, D.K. Bearing following particulars :

S.S.D. No.KissamExtentAssessment

No.A.C.Rs.P.s123- 1A1B (P)Garden0 - 23

BOUNDARIES :

East:Portion of the Sy. No. 123/5, 123/3, 123/1A1B

South:Portion of Sy. No. 123/1A1A

West:Property allotted to ‘A’ Schedule of same Sub-Division

North:Sy. Line

123 – 5Garden 0 — 09

With a tiled house, timbers all mamool and easementary rights”

3.Whereas the property described in Schedule ‘A’ appended to the said will was bequeathed in favour of the appellant, the property described in Schedule ‘B’ thereto was bequeathed in favour of the respondent. Florine died on 13.03.1994. An application for grant of Letters of Administration with a copy of the will annexed, in terms of Section 276 of the Indian Succession Act, 1925 (for short ‘the Act’) was filed by the appellant. Respondent entered a caveat.

4.The plea raised by the respondent in the suit was that the testatrix was an aged woman and did not have a proper frame of mind at the time of purported execution of the will to understand the contents thereof.

5.The learned Trial Judge held that the execution of the will had been proved, stating :

“–Circumstances go to show that the defendant had constructed his own house in one portion of the land that belonged to the old lady. 23 cents of land was given to the defendant under the will and 16 cents of land including the old house was given to the plaintiff who attended the old lady during her old age. I do not find anything unnatural in the bequest made by the old lady. She has given larger extent of land to the defendant who is the son of the sister of the Testatrix. That shows that the disposition made by her was consistent with the natural course of human conduct.”

It was held that as the propounder did not take any interest in the matter of execution of the will, no suspicious circumstances existed.

6.The High Court, however, reversed the said finding of the learned Trial Judge by reason of the impugned judgment, opining :

i)PW-2, the only attesting witness, examined in the matter, admitted that she had put her signature on a handwritten will, whereas the will had in fact been typed in Kannada language. Hence the due execution of the will was not proved.

ii)The will contained various overwritings and cuttings, which establish existence of suspicious circumstances.

iii)Evidence of PW-2 does not prove either execution or attestation of the will as per Ex. P-2, as the thumb mark affixed by Florine D’ Souza on it was not got marked in the evidence of PW-2 and she had not identified the thumb mark on Ex. P-2 as the thumb mark which was affixed by Florine D’ Souza in her presence.

iv)Mere fact that the will was a registered one would not dispense with the requirements of proof of due execution and attestation of the will for grant of Letters of Administration.

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2007 Supreme(SC) 774

Important pointMode and manner of proof of due execution of a will indisputably will depend upon the facts and circumstances of each case. It is for the propounder of the will to remove the suspicious circumstances.

Cases Referred (2)

Important point
Mode and manner of proof of due execution of a will indisputably will depend upon the facts and circumstances of each case. It is for the propounder of the will to remove the suspicious circumstances.