Important point
Where Grave suspicion existed in regard to execution of Will then execution of will was held to be not duly proved.

Headnote:Indian succession Act – Section 63 - Indian Evidence Act – Section 68 – Will – Execution of Will by testator bequeathing lands in question in favour of Respondent 1 his elder brother’s daughter – Execution of will challenged by appellants wife and children of testator alleging that will in question was a fabricated document – Suit for declaration and permanent injunction filed by appellants - Decreed by Trial Judge – On appeal, High Court reversed decree opining that execution of will had been proved by evidence of DW4 attesting witness and DW5 Sub Registrar - Appeal – Evidence to show that Appellants, other than son of testator, were residing with him - Difficult to believe that respondent 1 had been looking after Testator or despite her marriage with DW-1, she had been residing in his house – Testator had been able to perform marriage of only one of his daughters and, six other daughters were yet to be married – Even if it was held that Respondent1 was brought up by Testator, she was married and her husband was affluent - No apparent reason for Testator to execute a Will in favour of respondent1 depriving his wife and children – No explanation offered why a Will had to be executed and registered without knowledge of his wife by Testator - Nothing on record to show that testator had any special love or affection for Respondent 1 - Respondent 1 not examined herself –Non-examination of party to lis lead to drawal of an adverse inference against her - No disclosure as to on what basis Sub-Registrar handed over possession of Will to DW-1 husband of Respondent 1 - Disposition made in Will unfair, unnatural and improbable as no sane person, save and except for very cogent reasons, would have disinherited his minor children – Execution of will held to be not duly proved - High Court held unjustified in reversing judgment of Trial Judge – Impugned judgment of High Court being unsustainable set aside and that of Trial Court upheld. (Paras 14 to 17,20,21)
       Facts of the case :
       A Will was executed herein in the instant case by testator bequeathing lands in question in favour of Respondent 1 his elder brother’s daughter. Execution of will was challenged by appellants wife and children of testator alleging that will in question was a fabricated document. A Suit for declaration and permanent injunction was filed by appellants which was decreed by Trial Judge. On appeal, High Court reversed decree opining that execution of will had been proved by evidence of DW4 attesting witness and DW5 Sub Registrar.
       Present Appeal has been filed against said order of High Court.
       Findings of the Court:
       The Court held that Evidence on record showed that Appellants, other than son of testator, were residing with him. It was difficult to believe that respondent 1 had been looking after Testator or despite her marriage with DW-1, she had been residing in his house. Testator had been able to perform marriage of only one of his daughters and, six other daughters were yet to be married. Even if it was held that Respondent1 was brought up by Testator, she was married and her husband was affluent. There was no apparent reason for Testator to execute a Will in favour of respondent1 depriving his wife and children. No explanation was offered why a Will had to be executed and registered without knowledge of his wife by Testator. There was nothing on record to show that testator had any special love or affection for Respondent 1. Respondent 1 not examined herself. No disclosure as to on what basis Sub-Registrar handed over possession of Will to DW-1 husband of Respondent-1. Disposition made in Will unfair, unnatural and improbable as no sane person, save and except for very cogent reasons, would have disinherited his minor children. Execution of will held to be not duly proved. High Court held unjustified in reversing judgment of Trial Judge. Impugned judgment of High Court being unsustainable set aside and that of Trial Court upheld.

JUDGMENT

S.B. SINHA, J.—

1.Requirements in regard to the nature of proof of a Will in view of existing suspicious circumstances is the question involved in this appeal which arises from the judgment and order dated 27.08.1998 passed by the High Court of Karnataka at Bangalore in R.F.A. Nos. 308/94 and 331/94.

2.Before, however, we embark upon the said question, we may notice the admitted facts.

3.Appellants herein are wife and children of one Hanumanthappa, the testator. The suit property measuring 4 acres 32 guntas stood in his name. He admittedly was suffering from cancer. He expired on 11.09.1988. Just two weeks prior to his death, viz., 25.08.1988, he allegedly executed the Will in favour of Respondent No.1 herein bequeathing in her favour the lands in question. Appellants were not aware of the execution of the said Will. They applied for mutation of their names after the death of Hanumanthappa. An objection thereto was raised by Respondent No.1. Allegedly, in the meantime, Respondent No.1 had also sold the suit lands in favour of Respondent No. 2 by a deed of sale dated 16.03.1989.

4.On the aforementioned premise, the appellants filed a suit for declaration and permanent injunction alleging that the land in question was purchased by Hanuman-thappa by sale of family gold and, thus, was a joint family property. It was also alleged that the Will in question was a fabricated document.

5.Respondents in their written statements, however, averred that the Will was a genuine document.

6.One of the issues which were framed by the learned Trial Judge related to the execution of the Will. It reads as under:

“(4) Whether the defendant No.1 proves that she has become full owner of the suit property on the basis of the Will dated 25.8.88 legally executed by the deceased Hanumanthappa?”

7.Defendant Respondent No.1 herein did not examine herself. She examined her husband in whose favour she had allegedly executed a Power of Attorney. A purported attesting witness and the Sub-Registrar who registered the document were also examined.

8.In her evidence, PW-1 (wife of Hanumanthappa) stated :

(i)The testator was suffering from throat cancer and he was not having any thinking capacity.

(ii)The testator had not executed any Will in favour of Defendant No.1.

(iii)Defendant No.1 had never stayed with her husband in their house.

(iv)Her husband had other properties apart from the suit lands but the same were not fetching any income.

Husband of Respondent No.1(DW-1) and the Power of Attorney holder, however, in his evidence, stated:

(i)Defendant No.1 is the daughter of Huchhappa who was brother of her father in law Hanuman-thappa. When Huchhappa married for the second time, Defendant No.1 being a child, was looked after and brought up by Hanumanthappa.

(ii)Defendant No.1 lived in the house of Hanumanthappa for about 12-13 years. After her marriage, she came to his house.

(iii)On 8.04.1982, Hanuman-thappa agreed to sell the suit lands to him for a sum of Rs. 52,000/- and he had paid a sum of Rs. 49,000/- by way of advance.

(iv)Hanumanthappa was suffering from cancer on the left side of the neck, but even at that time he had good level of understanding.

(v)Hanumanthappa took treatments for about 8 months whereafter only he came to know that he had been suffering from cancer.

(vi)After the death of Hanuman-thappa, he learnt of the Will from one Bhimappa Banglore Nagappa Yallappa Gokabi. He was told that it had been registered in the Sub-Registrar’s Office. He and his wife, thus, went to Sub-Registrar’s office and collected the Will.

(vii)As per the Will, the name of the Defendant No.1 was mutated on the basis of the sale deed. He cultivated the lands for one year and thereafter sold the same to Respondent No.2.

The said witness, however, also made out an alternative case. According to him, on or about 24.08.1971, an agreement to purchase the suit land was executed in the name of Hanumanthappa for a consideration of Rs. 11,000/- and a sum of Rs. 5000/- was paid b

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2007 Supreme(SC) 679

Important pointWhere Grave suspicion existed in regard to execution of Will then execution of will was held to be not duly proved.

Cases Referred (8)

Important point
Where Grave suspicion existed in regard to execution of Will then execution of will was held to be not duly proved.