IMPORTANT POINT
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 proof of the signature of the testator, as required by law, is sufficient to discharge the onus.

Headnote:(i) Indian Succession Act, 1925-Section 63-Will-Onus of proving the Will is on the propounder-In absence of suspicious circumstances surrounding the execution of Will-Proof of testamentary capacity and proof of signature of 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 Court where it accepts the Will as genuine.
       Held : 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 proof of 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 before it accepts the will as genuine. Even where the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court. The suspicious circumstances may be regarding the genuineness of the signature of the testator, the condition of the testator s mind, the disposition 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 testator s mind was not free. In such a case, the Court would normally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. (Para 16)
       (ii) Indian Succession Act, 1925-Section 63-Will-Validity challenged-Testator was a bachelor-His relationship with his real sister was not cordial-Deceased used to live with his step sister-At the time of execution of Will, he was 85 years old and had suffered fracture-He was looked after by defendants, children of his step sister-Defendants had proved exclusion of plaintiffs, children of real sister of testator, from benefits under the Will.
       Held : In the present case, the evidence on record indicates that Siva was a bachelor. His relationship with his real sister Kamakshi was not cordial. The deceased used to live with his step sister Kaveri. At the time of the execution of the will, Siva was 85 years old and had suffered fracture. He was mentally alert. He was looked after by the defendants. The plaintiffs were nowhere in sight during his hospitalization or his treatment. In the circumstances, the defendants have proved the reason for exclusion of the plaintiffs from the benefits under the will. (Para 17)
       (iii) Indian Succession Act, 1925-Section 63-Will-Execution of-Before signing, testator had read the Will-Will was signed in presence of attesting witnesses-Witnesses had attested in presence of testator-No evidence on record to indicate that testator had become senile.
       Held : In the matter of execution of the will, the evidence of DW2 shows that DW 1 had come to fetch him at the behest of Siva. DW2 wrote the will under the instructions of Siva. Before signing, Siva had read the will. The will was signed in the presence of the attesting witnesses. The said witnesses had attested in presence of Siva. There is no evidence on record to indicate that Siva had become senile. In this connection, it may be pointed out that in October, 1978, Siva had alienated one of his several properties for consideration which circumstance shows that he had a sound disposing mind and that there was no substance in the allegation of the plaintiffs that the testator had become senile. As rightly pointed out by the trial Court, it was the plaintiff s own case, while cross-examining DW 1, that Siva was a prudent and wise man. Further, we are in agreement with the view expressed by the trial Court that even in the cross-examination, there was no suggestion put to DW 1 that the signature on Ex. B/8 was not that of Siva. That, in the cross-examination, no motive was suggested against DW2 to DW5 for supporting the case of the defendants. Further, the evidence indicates that Siva was hale and hearty and he was advised to get the will registered, which he refused, saying that he was in good health and expected to live long. (Para 18)
       In the present case, the propounders of the will have proved that the will was signed by Siva; that at the time of execution of the will, he had a sound disposing state of mind; and that he had reasons to exclude the plaintiffs who did not care for him in his old age. Lastly, as stated above, the onus to prove forgery, undue influence or collusion was on the plaintiffs who have alleged that Ex. B/8 was forged. In the absence of such a plea, the lower appellate Court had erred in holding that the will was forged. We are satisfied on examination of the evidence that execution, attestation and genuineness of the will has been proved as held by the impugned judgment and in the circumstances, we find no merit in this appeal. (Para 22)

JUDGMENT

Kapadia, J.-This civil appeal, by grant of special leave, is directed against a judgment and order dated 20.11.1997 of a Single Judge of the Madras High Court allowing Second Appeal No. 1996 of 1982.

2. For the sake of convenience, the parties herein are referred to as they are arrayed in the trial Court.

3. The brief facts giving rise to this appeal are as follows:-

One Velu Pillai had two wives. The said Velu Pillai by his first wife had a daughter by name Kamakshi and a son by name Sivaperumal (hereinafter referred to as "Siva"). The said Velu Pillai by his second wife had a son by name Sadasivam and two daughters, Kaveri (spinster) and Gnanambal. That, Kamakshi, the real sister of Siva, had three children, namely, Meenakshi Ammal (plaintiff No.1), Arunachalam Pillai (plaintiff No.2) and Palani Velu Pillai (plaintiff No.3). Appellants herein are the legal representatives of the said plaintiffs.

4. Defendant No.1, Chandrasekaran (respondent No.1) is the son of Sadasivam whereas defendant No.2, Vadivelu (respondent No.2) is the son of Gnanambal. They are the children of the step brother and the step sister of Siva.

5. Siva died as bachelor on 6.11.1978. Siva and his step brother Sadasivam had jointly executed a deed of settlement on 10.6.1956. Under the said settlement, the two brothers settled some of their properties in favour of Kaveri and divided the rest of their properties amongst themselves.

6. In the present matter, we are concerned with the separate properties of Siva (since deceased).

7. Meenakshi, Arunachalam Pillai and Palani Velu Pillai, children of Kamakshi, instituted title suit bearing O.S.No. 247 of 1981 in the Court of District Munsif of Thiruthuraipundi (hereinafter for the sake of brevity referred to as "the trial Court") for a declaration and for recovery of possession of the suit properties of Siva alleging that they were the children of his real sister and, consequently, were entitled to succeed to his properties; that defendant Nos. 1 and 2 were the children of the step brother and the step sister of the deceased and in the circumstances they, the plaintiffs, were entitled to succeed to the properties of Siva, in preference to the defendants. According to the plaintiffs, neither Sadasivam nor Gnanambal, much less than their children, were entitled to succeed to the properties of late Siva.

8. In the written statement, the aforestated defendants denied that Siva died intestate. That, Siva died on 6.11.1978 leaving behind the will dated 19.10.1978 (Ex.B/8). In the written statement, it was submitted that at the time of his death, Siva was in sound disposing state of mind. It was further alleged that Siva had devised all his properties under the said will to be taken in equal share by the said two defendants. That, the said defendants were put in possession and that they were cultivating the said lands since then. It was alleged that the said Kamakshi and Siva were not on cordial terms; that she never looked after her brother, Siva, who resided all along with his step sister Kaveri. That, Palani Velu, plaintiff No.3 herein, had sued Siva, during his life time. In the circumstances, it was urged that Siva disinherited the plaintiffs vide the aforestated will (Ex.B/8), which was duly executed and attested in accordance with the provisions of section 63 of the Succession Act, 1925.

9. On the above pleadings, five issues were framed by the trial Court. We are mainly concerned with first two issues, namely, (1) Whether the will Ex.B/8 was true and valid?; and (2) whether the will Ex. B/8 was acted upon?

10. In proof of the aforestated will. Ex.B/8, the defendants examined five witnesses including the 2nd defendant (DW1) who deposed that the deceased, Siva, had asked the defendants to fetch a scribe and the attesting witnesses as he wanted to execute the will in their favour. Accordingly, they went and fetched the attesting witnesses and the scribe. DW1 further deposed that Siva was 85 to 90 years old when he die

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2004 Supreme(SC) 1392

IMPORTANT POINTThe 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 proof of the signature of the testator, as required by law, is sufficient to discharge the onus.

Cases Referred (2)

IMPORTANT POINT
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 proof of the signature of the testator, as required by law, is sufficient to discharge the onus.