REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(s). 7357 OF 2002

Balathandayutham and another

..Appellant(s)

Versus

Ezhilarasan

..Respondent(s)

J U D G M E N T

GANGULY, J.

1.Heard counsel for the parties.

2. The material facts of the case are: Late Mr.

M. Ramachandran, the father of the 1^st appellant

as also of the plaintiff-respondent, had three

sons, namely, Balathandayutham (1^st appellant),

Ezhilarasan (plaintiff-respondent) and one

Gnanavoli and two daughters – Kalai Arasi and

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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 1^st 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 1^st 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

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Will dated 25.09.1972 was made by the testator

in favour of the 1^st 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 1^st 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 1^st 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had been revoked by Ramachandran by another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

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the contention of the 1^st appellant. The First

Appellate Court, however, allowed the appeal

and decreed the suit. The stand of the 1^st

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

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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 eve