IMPORTANT POINT
When a Will is surrounded by suspicious circumstances, the person propounding the Will has a very heavy burden to discharge and, unless it is satisfactorily discharged, Courts will be reluctant to treat document as last Will of testator.

Headnote:Will-Execution of Will by Testator wherein he bequeathed his properties in favour of plaintiff-respondent and his other son Gnanavoli and two daughters and giving his wife life interest- Insofar as appellant1, his other son was concerned, no property was bequeathed to him, inter alia, on ground that after education he was staying apart and had not shown any interest in family members- After death of testator plaintiff-respondent was in exclusive possession of the property- At that stage appellant1 tried to disturb possession of plaintiff-respondent with the help of some anti social elements which led to filing of suit- In the suit, stand of appellant1 was that Will dated 25.09.1972 was not genuine and said Will had been revoked by testator by another Will dated 25.4.1980 and also thereafter by another Will dated 2.5.1980- Both the appellants claimed their rights under the so-called subsequent Wills-Trial Court dismissed the suit upholding contention of appellant1- First Appellate Court, however, allowed the appeal and decreed the suit-On appeal High Court held that finding given by First Appellate Court that Ex.B-19 and Ex.B-20 cannot be said to have been proved in view of non-compliance with mandatory requirement under Sections 68 and 69 of Indian Evidence Act was a correct finding - Appeal- Plaintiff’s case that his father, testator, went to a temple for attending a function and from there testator was taken by appellant1 to Cuddalore and coming to know this fact the plaintiff-respondent went to house of appellant 1 and plaintiff-respondent went there and took the testator back to his house at Villupuram where he was staying all these years and where he ultimately died- Therefore, both of subsequent Wills, Ex.B-19 and Ex.B-20 were allegedly executed by the testator a couple of weeks before his death and when he was made to stay in the house of appellant1- Attestors of both of said two Wills were all of Cuddalore and were strangers to the family- Those two Wills surfaced only at the time when appellant1 gave his written statement in 1994 in the suit filed by the plaintiff- respondent- These were suspicious circumstances surrounding Ex. B- 19 and Ex.B-20- When a Will is surrounded by suspicious circumstances, the person propounding the Will has a very heavy burden to discharge and, unless it is satisfactorily discharged, Courts will be reluctant to treat document as last Will of testator- Since appellants did not succeed in discharging its onus of removing suspicious circumstances surrounding Ext B19 & B20- Hence no reason to find any error in the judgment of High Court-Appeal dismissed. (Paras 8 to 10, 14, 15)
       Facts of the Case :
       A Will was executed herein in the instant case by Testator wherein he bequeathed his properties in favour of plaintiff-respondent and his other son Gnanavoli and two daughters and giving his wife life interest. Insofar as appellant1, his other son was concerned, no property was bequeathed to him, inter alia, on ground that after education he was staying apart and had not shown any interest in family members. After death of testator plaintiff-respondent was in exclusive possession of the property. At that stage appellant1 tried to disturb possession of plaintiff-respondent with the help of some anti social elements which led to filing of suit. In the suit, stand of appellant1 was that Will dated 25.09.1972 was not genuine and said Will had been revoked by testator by another Will dated 25.4.1980 and also thereafter by another Will dated 2.5.1980. Both the appellants claimed their rights under the so-called subsequent Wills.Trial Court dismissed the suit upholding contention of appellant1. First Appellate Court, however, allowed the appeal and decreed the suit.On appeal thereagainst High Court held that finding given by First Appellate Court that Ex.B-19 and Ex.B-20 cannot be said to have been proved in view of non-compliance with mandatory requirement under Sections 68 and 69 of Indian Evidence Act was a correct finding.
       2.Present appeal has been filed against said order of High Court.
       Findings of the Court :
       It was Plaintiff’s case that his father, testator, went to a temple for attending a function and from there testator was taken by appellant1 to Cuddalore and coming to know this fact the plaintiff-respondent went to house of appellant 1 and plaintiff-respondent went there and took testator back to his house at Villupuram where he was staying all these years and where he ultimately died. Therefore, both of subsequent Wills, Ex.B-19 and Ex.B-20 were allegedly executed by the testator a couple of weeks before his death and when he was made to stay in the house of appellant1. Attestors of both of said two Wills were all of Cuddalore and were strangers to the family. Those two Wills surfaced only at the time when appellant1 gave his written statement in 1994 in the suit filed by the plaintiff- respondent. These were suspicious circumstances surrounding Ex. B- 19 and Ex.B-20. When a Will is surrounded by suspicious circumstances, the person propounding the Will has a very heavy burden to discharge and, unless it is satisfactorily discharged, Courts will be reluctant to treat document as last Will of testator. Since appellants did not succeed in discharging its onus of removing suspicious circumstances surrounding Ext B19 & B20. Hence no reason to find any error in the judgment of High Court. Appeal was dismissed.

Judgement Key Points

The conclusion of the case is that the courts upheld the validity of the original will, which was executed by the testator under proper circumstances and with genuine intent. The courts found that the subsequent wills, which purportedly revoked the original, were surrounded by suspicious circumstances, including their late emergence, the testator’s ill health at the time, and the involvement of strangers as witnesses. Due to these suspicious factors, the burden was on the person propounding the later wills to prove their authenticity convincingly. Since this burden was not satisfactorily discharged, and the suspicions remained unremoved, the courts rejected the subsequent wills as invalid. Consequently, the original will was deemed valid and binding, and the appellant’s claim was dismissed. The decision reaffirmed the importance of strict compliance with statutory requirements and the necessity of dispelling suspicions surrounding the execution of wills to establish their validity (!) .

JUDGMENT

Ganguly, J. —

1.Heard counsel for the parties.

2.The material facts of the case are: Late Mr. M. Ramachandran, the father of the 1st appellant as also of the plaintiff-respondent, had three sons, namely, Balathandayutham (1st appellant), Ezhilarasan (plaintiff-respondent) and one Gnanavoli and two daughters - Kalai Arasi and Isai Amudhu and his wife was Nachiar Ammal. It is not in dispute that Ramachandran acquired certain properties and in his lifetime he executed a Will which was registered on 25.09.1972. By the said Will he bequeathed certain properties, from the income of which Seva Puja and maintenance of Sri Bala Murugan Temple was to be conducted. In respect of his other properties he bequeathed the same in favour of plaintiff-respondent and his other son Gnanavoli and two daughters and giving his wife life interest.

3.Insofar as the 1st appellant is concerned, no property was bequeathed to him, inter alia, on the ground that after education he was staying apart and had not shown any interest in the family members. The case in the plaint is that since the 1st appellant, the elder brother of the plaintiff-respondent, left the family after his education and married another woman belonging to some other caste without the consent of the parents, no provision in the Will dated 25.09.1972 was made by the testator in favour of the 1st appellant. The testator Ramachandran died on 23.5.1980 and after his death, the plaintiff-respondent was in exclusive possession of the property. At that stage the 1st appellant tried to disturb the possession of the plaintiff-respondent with the help of some anti social elements. This led to the filing of the suit. In the suit, the stand of the 1st appellant was that Will dated 25.09.1972 was not genuine and the said Will had been revoked by Ramachandran by another Will dated 25.4.1980 and also thereafter by another Will dated 2.5.1980. Both the appellants claimed their rights under the so- called subsequent Wills. In his rejoinder, plaintiff-respondent claimed that the so-called subsequent Wills dated 25.4.1980 and 2.5.1980 are fabricated and at the relevant point of time Ramachandran was bedridden and did not have the capacity to execute any Will as he died within a few days thereafter on 23.5.1980. The Trial Court dismissed the suit upholding the contention of the 1st appellant. The First Appellate Court, however, allowed the appeal and decreed the suit. The stand of the 1st appellant herein, before the First Appellate Court, was that Will dated 25.09.1972 was not a genuine one and was revoked by the subsequent Will dated 25.4.1980.

4.On these facts the learned First Appellate Court held, when the execution of a Will asserted by one party is denied by the other party, then the burden is on the party who relies on the Will to prove its execution. But when execution of the Will is not denied then no burden is cast on the party who relies on a Will to prove its execution. Relying on the aforesaid principle, the First Appellate Court held, and in our view rightly, that the existence of the first Will dated 25.09.1972 has been admitted. But the appellants’ case is that the same has been revoked. However, there is no attesting witness to prove Ex.B-19 dated 2.5.1980 and Ex.B-20 dated 25.4.1980, which are the two subsequent Wills. The First Appellate Court also noted that it was admitted that the subsequent Will dated 25.4.1980 is an unregistered one and attestors to the said Will were alive even though scribe was not alive. It was also admitted by the appellant that testator was not well for about four months prior to his death. Admittedly Ex.B-19 and Ex.B-20 were allegedly executed when the testator was unwell. On those facts the learned First Appellate Court held that the subsequent two Wills being Ex.B-19 and Ex.B-20 were not proved.

5.The High Court held that the finding given by the First Appellate Court that Ex.B-19 and Ex.B-20 cannot be said to have been proved in view of non-compliance w

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2010 Supreme(SC) 329

2010 (3) Supreme 130SUPREME COURT OF INDIAG.S. Singhvi and Asok Kumar Ganguly, JJ.Balathandayutham and another — Appellants versusEzhilarasan — RespondentCivil Appeal No(s). 7357 of 2002Decided on : 16-04-2010

IMPORTANT POINT When a Will is surrounded by suspicious circumstances, the person propounding the Will has a very heavy burden to discharge and, unless it is satisfactorily discharged, Courts will be reluctant to treat document as last Will of testator.

Cases Referred (3)

2010 (3) Supreme 130
SUPREME COURT OF INDIA
G.S. Singhvi and Asok Kumar Ganguly, JJ.
Balathandayutham and another — Appellants
versus
Ezhilarasan — Respondent
Civil Appeal No(s). 7357 of 2002
Decided on : 16-04-2010

IMPORTANT POINT
When a Will is surrounded by suspicious circumstances, the person propounding the Will has a very heavy burden to discharge and, unless it is satisfactorily discharged, Courts will be reluctant to treat document as last Will of testator.