2009 Supreme(Mad) 1760

High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE K. RAVIRAJA PANDIAN & THE HONOURABLE MR. JUSTICE P.P.S. JANARTHANA RAJA
Dr. Lodd Surendardas
Versus
Lodd Narendradas & Another
Original Side Appeal No.182 of 2003
Decided on: 16-06-2009

Ratios:
a. Will is to be proved like any other fact.
b. Burden of proof as to genuineness of Will is on the propounder of the Will.
c. It is required to be shown that the Will has been signed by the testator with his free Will and that at the relevant time he was in the sound disposing state of mind and understood the nature and effect of disposition and he has signed the Will in the presence of two attesting witnesses, who attested his signature in his presence or in the presence of each other
d. Where there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court for the court to accept the Will as genuine. Suspicious circumstances may be as to the genuineness of the signatures of the testator, the condition of the testator’s mind, the dispositions made in the Will being unnatural, improbable or unfair in the light of relevant circumstances, or other indications in the Will to show that the testator’s mind was not free.
e. In the case of holographic Will, presumption is greater in favour of the genuineness of the Will

Headnote:(A)Indian Succession Act, 1925(39 of 1925)-Sec.276, 300-Holograph Will-Probate-Burden of proof-Suspicious Circumstances-Deceased executed Will favouring respondents-Respondents applied for probate which was granted-Appellant challenged the order-Contended that it was not genuine and not to be acted upon-Respondents defended the decision of a single judge-Held, Will is to be proved like any other fact- Burden of proof as to genuineness of Will is on the propounder of the Will- It is required to be shown that the Will has been signed by the testator with his free Will and that at the relevant time he was in the sound disposing state of mind and understood the nature and effect of disposition and he has signed the Will in the presence of two attesting witnesses, who attested his signature in his presence or in the presence of each other-In the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus-Where there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court for the court to accept the Will as genuine-Suspicious circumstances may be as to the genuineness of the signatures of the testator, the condition of the testator’s mind, the dispositions made in the Will being unnatural, improbable or unfair in the light of relevant circumstances, or other indications in the Will to show that the testator’s mind was not free- In the case of holographic Will, presumption is greater in favour of the genuineness of the Will-Deceased lived for six years thereafter and conducted many litigations during that period-Depositions of witnesses inspired confidence-Handwriting of deceased proved-Execution of will proved-Appeal dismissed.

       

       (B)Indian Succession Act, 1925(39 of 1925)-Sec.276, 300-Will-Probate-Burden of proof-Suspicious Circumstances-Burden of proof as to genuineness of Will is on the propounder of the Will- Where there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court for the court to accept the Will as genuine-Suspicious circumstances may be as to the genuineness of the signatures of the testator, the condition of the testator’s mind, the dispositions made in the Will being unnatural, improbable or unfair in the light of relevant circumstances, or other indications in the Will to show that the testator’s mind was not free- In the case of holographic Will, presumption is greater in favour of the genuineness of the Will.

       The onus of proving the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court for the court to accept the Will as genuine. Even where circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the court. The suspicious circumstances may be as to the genuineness of the signatures of the testator, the condition of the testators mind, the dispositions made in the Will being unnatural, improbable or unfair in the light of relevant circumstances, or there might be other indications in the Will to show that the testators mind was not free. In such a case the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last Will of the testator. If the propounder himself takes a prominent part in the execution of the Will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. Para 6

       

       (C)Indian Succession Act, 1925(39 of 1925)-Sec.276, 300- Will-Probate-Burden of proof-Suspicious Circumstances-Will is to be proved like any other fact- Burden of proof as to genuineness of Will is on the propounder of the Will- It is required to be shown that the Will has been signed by the testator with his free Will and that at the relevant time he was in the sound disposing state of mind and understood the nature and effect of disposition and he has signed the Will in the presence of two attesting witnesses, who attested his signature in his presence or in the presence of each other.

       A Will like any other document is to be proved in terms of the provisions of the Indian Succession Act and Indian Evidence Act. The onus of proving is on the propounder. The testamentary capacity of the propounder must be established. The execution of the Will by the testator has to be proved. Atleast, one attesting witness is required to be examined for the purpose of proving the execution of the Will. However, it is also required to be shown that the Will has been signed by the testator with his free Will and that at the relevant time he was in the sound disposing state of mind and understood the nature and effect of disposition. It is also required to be established that he has signed the Will in the presence of two attesting witnesses, who attested his signature in his presence or in the presence of each other. Only when there exist suspicious circumstances, the onus would be on the propounder to explain to the satisfaction of the Court before it could be accepted as genuine. Para 7

       (D)Indian Succession Act, 1925(39 of 1925)-Sec.276, 300-Holograph Will-Probate-Burden of proof- In the case of holographic Will, presumption is greater in favour of the genuineness of the Will.

       In the case of holographic Will, presumption is all the more greater in favour of the genuineness of the Will. Para 11

       (E)Indian Succession Act, 1925(39 of 1925)-Sec.276, 300-Holograph Will-Probate-Burden of proof-Suspicious Circumstances-Deceased lived for six years thereafter and conducted many litigations during that period-It supports genuineness of will.

       After the execution of the document the testator lived for six years during which period he had attended to litigation and participated in the proceedings by giving evidence before the Court of law. It is also not the case of the appellant/defendant that the Will is the outcome of any invalidating factor like undue influence, coercion or misrepresentation, etc. If that be the case, the testator could have revoked or cancelled the Will as he has lived for six years after the execution of the Will with sound disposing state of mind.

       Para 13