2025 INSC 10
SUPREME COURT OF INDIA
(HON’BLE C.T. RAVIKUMAR, J. AND
HON’BLE RAJESH BINDAL, JJ.)
LEELA
Petitioner
VERSUS
MURUGANANTHAM
Respondent
Civil
Appeal No. 7578 of 2023-Decided on 02-01-2025
Family, Succession,
Partition
Will: Validity of –
When significant suspicious circumstances remained unaddressed
(A) Indian Succession Act, 1925 –
Section 63 – Indian Evidence Act, 1872 – Section 68 - Execution of Will -
Suspicious Circumstances
- The necessity of proving the execution of a Will in legal terms, while the
defendants had presented witnesses to support their claim regarding the Will,
significant suspicious circumstances remained unaddressed, leading to a
conclusion that the Will was not genuine. The judgment highlighted that meeting
the requirements of Section 63 of the Indian Succession Act and Section 68 of
the Indian Evidence Act is insufficient if the surrounding circumstances raise
doubts about the Will’s authenticity.
The
Supreme Court dismissed an appeal regarding the partition of properties left by
Balasubramaniya Thanthiriyar, acknowledging the concurrent findings of the
Trial Court and the High Court. Both courts determined that the Will dated
06.04.1990, produced by the defendants claiming their entitlement as
beneficiaries, was not genuine. The courts also upheld that the illegitimacy of
the second wife and her sons did not disqualify them from receiving a share of
the property, emphasizing the significance of the partition deed dated
04.12.1989 which allotted specific properties to each claimant.
(Para
11, 20)
(B) Indian Succession Act, 1925 –
Section 63 - Execution of Wills - Legal Requirements - Evidence of Attesting
Witnesses - Signature Authenticity - Mental State of Testator - Proving the
execution of a Will requires establishing that the Will was signed by the
testator, who was in a sound state of mind and had understood its contents. The
Court noted discrepancies in the testimonies and evidence presented regarding
the testator’s mental condition and the circumstances under which the Will was
executed. The Court referenced previous judgments to underline that the
legitimacy of a Will cannot solely be determined by an unqualified assertion of
execution without adequate proof addressing potential doubts.
(Para
23)
(C) Partition Deed - Shares
Distribution -
Joint Ownership - The Supreme Court reaffirmed the principle that the partition
of property defined under a clear and executed deed cannot be contested unless
compelling evidence of alteration or illegitimacy of the subsequent claims is
presented. The Court observed that both parties accepted the partition deed's
existence, which established the original ownership and shares of the
properties, thereby requiring that any subsequent claims, including those based
on a contested Will, must address the inherent legality of the partition
arrangement.
(Para 31)
JUDGMENT
C.T. Ravikumar, J. :- The unsuccessful defendant Nos.1
to 3 in OS No.142/1992 which is a suit for partition and allotment of 5/7th
share filed by respondent Nos.1 to 5 herein, filed this appeal against the
judgment dated 15.11.2019 passed by the High Court of Madras, Madurai Bench in
AS No.368/2002 whereby and whereunder the appeal was dismissed and the judgment
and decree in O.S. No. 142 of 1992 dated 27.09.2001 on the file of the
Additional Sub-Court, Tenkasi was confirmed. Essentially, the Trial Court and
the High Court have concurrently declined to accept the case of the appellants
based on the Will dated 06.04.1990. Hereafter in this appeal, for the sake
of convenience, the parties are referred to, in accordance with their rank and
status in the Original Suit, unless otherwise specifically mentioned.
2.
The plaint averments, in brief is as follows: -
The suit schedule properties
originally belonged to one Balasubramaniya Thanthiriyar. He married twice.
Through his first wife, Rajammal (plaintiff No.4/respondent No.4), he got three
sons, namely, Muruganandam (plaintiff No.1/respondent No.1), Ganesh Murthy
(plaintiff No.2/respondent No.2) and Kannan (plaintiff No.3/respondent No.3)
and one daughter by name Mahalakshmi (plaintiff No.5/respondent No.5). While
the marriage with the first wife Rajammal was subsisting, Balasubramaniya
married Leela (petitioner No.1/defendant No.1) and as such, she is an
illegitimate wife. Sivakumar (petitioner No.2/defendant No.2) and Lt.
Mageshwaran (petitioner No.2/defendant No.3) are the illegitimate sons of
Balasubramaniya through Leela.
3.
Earlier, Balasubramaniya Thanthiriyar instituted O.S. No.504/ 1986 against his
first wife and children through her viz., plaintiff Nos.4, 1 to 3 and 5
respectively. Later, it was compromised at the instance of the elderly villagers
and partition of properties effected between them as per partition deed dated
04.12.1989. As per the partition deed, his properties were divided into four
schedules. Properties described and contained in the first-schedule were
allotted to himself by Balasubramaniya Thanthiriyar. The second-schedule
properties consisting of 22 items were allotted to the share of
plaintiffs/respondent Nos.1 to 3 herein viz., his sons through his first wife
and the third-schedule properties were allotted to his first wife viz.
plaintiff/respondent No.4. The fourth-schedule properties were allotted in the
name of his minor daughter viz., plaintiff/respondent No.5. Balasubramaniya
died on 28.11.1991.
4.
In fact, the lis in the present suit viz., O.S. No.142/1992 is with respect to
the several properties left to the share of Balasubramaniya Thanthiriyar as per
the aforesaid partition deed and described as suit schedule properties.
According to the plaintiffs, defendant No. 1 is not entitled to any share in
the property of deceased Balasubramaniya Thanthiriyar being an illegitimate
wife, in the sense that they married when the first wife was alive and that
marriage was subsisting. It is the contention of the plaintiffs that they each
have 1/7 share and thus, totalling 5/7 share in the properties of
Balasubramaniya Thanthiriyar and respondent Nos.2 and 3 too got 1/7 share each
only in such properties. The first item of the schedule properties is shops
buildings occupied by defendants 4 to 12, the tenants. Conspiring with them the
defendant Nos.1 to 3 attempted to get the entire amount of rent from the
defendant Nos.4 to 12 and to withdraw the bank deposit. Upon such developments
the plaintiffs issued notices to defendant Nos.4 to 12 and then, filed H.R.
C.O.P. No. 2 to 10 of the year 1992 in the Court of Tenkasi Rent Controller and
deposited the rent amount. As relates to plucking of coconuts from the groves
mentioned as items 18 to 21 the defendant Nos.1 to 3 created problems and were
trying to appropriate the harvest with the help of the police. In short, the
defendant Nos.1 to 3 are trying to create prejudice to their shares and also to
create encumbrance on the shares of the plaintiffs. They also pleaded that the
defendant Nos. 1 to 3 claimed execution of a Will in their favour by
Balasubramaniya Thanthiriyar and if they created any such record, it is a
wilful forgery. In short, according to the plaintiffs they and defendant Nos. 2
and 3 are in joint possession of the suit schedule properties as co-owners.
5.
The first defendant/ the first respondent filed a written statement which was
adopted by defendant Nos. 2 and 3/respondents 2 and 3. Now, respondent No. 3 is
no more and he is represented by his legal heirs.
6.
In the suit, the appellants herein/the defendants produced the Will dated
06.04.1990 which is an unregistered one. They filed a written statement stating
that Balasubramaniya was being harassed and assaulted by the plaintiffs and it
is due to that harassment that the partition deed dated 04.12.1989 was
executed. The plaintiff/ respondents herein could not claim any right over the
properties based on the partition deed. The plaintiffs got no right over the
first-schedule properties which was allotted to Balasubramaniya. It is their
contention that the first-schedule properties belonged to Balasubramaniya and,
therefore, after his demise only the second and third defendants got
entitlement.
7.
Based on the rival pleadings, the Trial Court framed the following issues: -
“(i) Whether the plaintiffs are
entitled to a share in the first schedule of the properties?
(ii) Whether the will dated
06.04.1990 is valid?
(iii) Whether the plaintiffs and
defendants 2 and 3 are in joint enjoyment of the suit properties?
(iv) Whether the plaintiffs are entitled to
5/7th share 1n the property?
(v)
What are the reliefs available to the plaintiffs?”
8.
On the side of the plaintiffs, PW-1 was examined and Ext.A1 was marked. On the
side of the defendants, DW-1 and 2 were examined and Ext.B1 and B2 were marked.
The Trial Court decreed the suit in favour of the plaintiff and against which
the defendant/appellant Nos.1 to 3 preferred first appeal. It is contended that
the Trial Court failed to recognise the significance of Ext.A1 which clearly
reveals absence of joint family consisting of father and the plaintiffs. It was
also the contention that the Trial Court failed to attach due importance to
Ext.B2- Will.
9.
Based on the such pleadings the Appellate Court framed the following issues: -
“(i) Whether the will, dated
06.04.1990, is valid?
(ii) Whether the respondents are
entitled for 5 /7th share in the suit properties?
(iii)
Whether the appeal is to be allowed?”
10.
The High Court considered the materials on record and after hearing the parties
declined to accept the Will and dismissed the appeal. In this appeal the
appellant assails the judgment of the High Court as also the judgment and
decree of the Trial Court which was confirmed by the High Court, raising
various grounds.
11.
As noticed hereinbefore, deceased Balasubramaniya Thanthiriyar, while alive,
effected a partition on 04.12.1989. The bone of contention in the appeal is
with respect to the shares allotted thereunder in favour of Balasubramaniya
Thanthiriyar by himself. When the partition is not in dispute and also the
factum of allotment of the properties under the first schedule thereunder to
Balasubramaniya Thanthiriyar, it has to be treated that the properties allotted
to him were his self- acquired properties. Even otherwise, with respect to his
exclusive title and ownership over the properties, none of the parties raised
any dispute. While the plaintiffs contend that they are to partitioned 1/7th
each among them, five in number and the two children of Balasubramaniya
Thanthiriyar through the first appellant/first defendant-Leela; Concurrently,
it was found that the plaintiffs are entitled to 5/7 shares (1/7th each) and
the two sons born to Balasubramaniya Thanthiriyar through Leela, though
illegitimate, are entitled to 1/7th share each. The concurrent finding in that
regard requires interference if only the finding on the validity and
enforcement of the alleged Will dated 06.04.1990 is interfered with in this
proceeding.
12.
The learned Senior Counsel appearing for the appellants would contend that the
Courts below have erred in arriving at the finding that the said Will is not
genuine and shrouded with suspicious circumstances. It is the submission that
the appellants/defendant Nos.1 to 3 had succeeded in establishing its execution
in terms of Section 63 of the Indian Succession Act, 1925, by
examining two attesting witnesses and Section 68 of the Indian
Evidence Act, 1872. It is also the contention that both the Trial Court and the
High Court have failed to consider that initially there was a dispute on the
entire property belonging to Balasubramaniya Thanthiriyar between him, on the
one side and his first wife and children through her born to him on the other
side viz., O.S. No.504 of 1986 filed by Balasubramaniya Thanthiriyar himself.
It is the further contention that later, he effected a partition of the said
properties through a partition deed dated 04.12.1989 into four schedules and
except the first schedule the others were given in favour of the plaintiffs and
only thereafter the property allotted to him was bequeathed as per the
Will dated 06.04.1990 to the appellants herein. The said Will was attested
by two witnesses, satisfying the statutory requirement under Section
63 of the Indian Succession Act. In such circumstances, according to the
learned Senior Counsel the irresistible conclusion could have been and should
have been that Balasubramaniya Thanthiriyar wanted to give properties to his
second wife and the children born through her and it is the realisation of his
intention in that regard which resulted in execution of the said Will dated
06.04.1990. It is also the contention that a scanning of the suspicious
circumstances in the light of the innumerable decisions on the validity of
Will, especially touching the question of suspicious circumstances which would
make a proven Will in the sense, as executed unworthy to act upon, would reveal
that the circumstances relied on by the Courts in the case in hand to hold the
Will as not genuine being shrouded with suspicions are absolutely unsustainable
as they were not sufficient to cast a suspicion on the genuineness of the
validly executed Will dated 06.04.1990.
13.
The learned counsel appearing for the respondents would submit that there
cannot be any doubt with respect to the settled position that mere
proof of an execution of a Will in terms of the requirement
under Section 63 of the Succession Act and Section 68 of
the Evidence Act, though would go to show that the Will concerned was executed
but, that by itself cannot make the said Will genuine and worthy for acting
upon. It is further submitted that the Courts below have rightly found
concurrently that the said Will is not genuine as it is shrouded with
suspicious circumstances.
14.
We are of the considered view that the fate of this appeal depends upon the
decision on the genuineness and the question whether the suspicious
circumstances are removed/explained to the satisfaction of this Court. The Will
is executed on the stamp papers bought in the name of petitioner No.1, who was
examined as DW-1. Still, DW-1 categorically denied the case of having played a
role in the execution of the said Will. Before looking into the alleged and
upheld suspicious circumstances, it is only apposite to refer to the settled position
that though it is the propounder to establish the execution of the Will and
once the same is discharged, it is for the objector to pinpoint the suspicious
circumstances. It is also the settled position that upon such objection, it is
for the propounder to remove such suspicious circumstances. (See the
decision of this Court in Derek A.C. Lobo v. Ulric M.A. Lobo (Dead) by
LRS.), in one among us (C.T. Ravikumar, J.) is a party.
15.
Now, we will refer to the suspicious circumstances pointed out by the Courts
below: -
(i) That the first appellant
(DW-1) one of the beneficiaries and the mother of the other beneficiaries
played active role in the execution of the Will in question and concealed this
fact before the Court;
(ii) Contradictory recitals on
the health of the testator in the Will and the evidence of DW-1 herself
strengthening the same;
(iii) Non-matching of the
signature of the testator in Ext.A1-partition deed and Ext.B2-Will dated
06.04.1990;
(iv)
Non-examination of the person who typed the Will;
(v) Non-examination of the
Scribe;
(vi) Incongruity with respect to
the place of execution of the Will.
(vii)
Failure to prove that the testator executed the Will after understanding its
contents.
16.
At the outset, it is to be stated that legitimacy or illegitimacy of the second
wife and the children born through the second wife is not a matter of relevance
for consideration in the case on hand as the question is not in relation to
partition of ancestral properties. So also, the fact of non-inclusion of the
first wife and children through her is not of much relevance in view of the
admitted position that Balasubramaniya Thanthiriyar on 04.12.1989 partitioned
his entire properties into four schedules and allotted three, out of the four,
schedules to them and allotted on the first schedule to himself. Therefore, the
first question is whether the appellants who claimed under the Will dated
06.04.1990 proved its execution in accordance with law and if so, still the question
is whether it is shrouded with suspicious circumstances.
17.
There is a concurrent version with respect to the place of the execution of the
Will. Though, the recitals in the Will would show that with respect to the
health of Balasubramaniya Thanthiriyar contradictory versions appear in the
said Will. In one part of the Will it is stated, “with full conscious,
with good memory and without instigation by anyone” and at the same time in
another part it is stated, “I suffer from heart disease and got treatment from
several doctors”. The Court also took note of the fact that defendant No.1
herself stated that the health of her husband was in bad condition and as there
was a danger to his life, he executed the Will at Madurai and had no role in
the preparation of the Will. The Courts found that two pages of the stamp
papers were bought in the name of defendant No.1 from Tenkasi and still
defendant No.1 contended that she did not participate in the execution of the
Will. DW-1 stated in her written statement that till the partition in 1989,
when the properties were enjoyed jointly, no problem had occasioned to him. It
is taken that the said statement of DW-1 itself would reveal that the
properties were jointly enjoyed.
18.
The Courts below on appreciation of the evidence concurrently found that the
version of DW-1 that she had not participated in the execution of the Will and
that she was not aware of the execution of the Will, is incorrect.
19.
In the light of the rival contentions and the evidence discussed in detail by
the Trial Court and then
by
the High Court, the question is whether the appellant succeeded in proving the
execution of the Will and if so, whether the appellants who disputed its
execution and also challenged the Will on the ground of existence of suspicious
circumstances would make the same unreliable and not worthy for proceeding
further.
20.
There can be no doubt with respect to the manner in which execution of a Will
is to be proved. In the light of plethora of decisions including the decisions
in Moturu Nalini Kanth v. Gainedi Kaliprasad (Dead, through Lrs.) and in
Derek AC Lobo’s case (supra) this position is well settled that mere
registration of a Will would not attach to it a stamp of validity and it must
still be proved in terms of the legal mandates under the provisions
of Section 63 of the Indian Succession Act and Section
68 of the Evidence Act. It is not the case of the appellant that the Will
dated 06.04.1990 is a registered one.
21.
Now, Section 63 of the Succession Act reads thus:-
“63. Execution of unprivileged
wills.—Every testator, not being a soldier employed in an expedition or engaged
in actual warfare, [or an airman so employed or engaged,] or a mariner at
sea, shall execute his will according to the following rules:—
(a) The testator shall sign or
shall affix his mark to the will, or it shall be signed by some other person in
his presence and by his direction.
(b) The signature or mark of the
testator, or the signature of the person signing for him, shall be so placed
that it shall appear that it was intended thereby to give effect to the writing
as a will.
(c) The will shall be attested by
two or more witnesses, each of whom has seen the testator sign or affix his
mark to the will or has seen some other person sign the will, in the presence
an d by the direction of the testator, or has received from the testator a
personal acknowledgment of his signature or mark, or of the signature of such
other person; and each of the witnesses shall sign the will in the presence of
the testator, but it shall not be necessary that more than one witness be
present at the same time, and no particular form of attestation shall be
necessary.”
22. Section
68 of the Evidence Act makes it clear that at least one attesting witness
has to be examined to prove execution of a Will. It is true that in the case at
hand DW2 was the attesting witness who was examined in Court. Therefore, the
question is whether they had deposed to the effect that the Will in question
was executed in accordance with sub-rules (a) to (c) there under.
23.
The Trial Court rightly held that the propounder of the Will has to establish
by satisfactory evidence that the Will was signed by the testator, that the
testator at the relevant time was in a sound disposing state of mind and that
he understood the nature and effect of the dispositions and put his signature
out of his own free will.
24.
The first appellant, who was defendant No.1 and the propounder of the Will, was
examined as DW1. Her categoric case is that Balasubramaniya Thanthiriyar was
not living with the plaintiffs. In her written statement she stated that he had
executed the unregistered Will dated 06.04.1990 without instigation from anyone
when had good memory. Her deposition would reveal that she herself and her sons
viz., defendant Nos.2 and 3 were the beneficiaries of the Will. She did not
divulge the fact that two pages on the stamp papers on which the Will was typed
were bought in her name from Tenkasi. Still, she deposed that she had not
played any role in the execution of the Will. DW2 who is the attesting witness
to the Will in question is the brother of DW1, the first appellant. Going by
her oral evidence, it was DW1, her brother who had brought the same to
her. She had also deposed that in 1990 her husband, the testator was unwell and
was under treatment in Madras and his health was in bad condition. Add to it,
she deposed that his and her life was in danger from the sons of his first
wife. Thus, if DW1 is to be believed the testator’s physical and also mental
conditions were not in sound disposition, as held by the Trial Court and
appreciating the evidence the Courts have found that there is no such
circumstance of threat as alleged and attempted to be proved by the first
defendant (DW1) necessitating the testator to execute the Will.
25.
Now, going by DW1, she had no role in the preparation of the Will. But the
undisputed and proven fact is that two stamp papers on which the Will was typed
were brought in the name of the first defendant from Tenkasi. In this context,
it is also to be seen that the attesting witness who was examined as DW2 in
Court is admittedly the brother of the first defendant viz., DW1 and further
that it is her case that the Will in question was given to her by DW2 in
Tenkasi.
26.
Now, another circumstance which was taken into account by the Courts below is
that nothing is on record to show that the testator had executed the Will
after understanding its contents. Though DW2 deposed that the notary public
read over the Will and then Balasubramaniya signed it. The Courts below
correctly took note of the fact revealed from the very Will that such noting
that it was read over to the testator is absent there. Another situation crops
up for consideration if DW2 is believed. If the testator was in good health and
Will was prepared at his direction and he himself was able to dictate it why it
should be read over to him before putting signature. The deposition of DW2 was
thus: -
“…the notary public read it over
and Balasubramania Thanthiriar signed it.”
27.
Though in normal circumstances there was no necessity to examine the scribe and
the non-examination of the scribe cannot be a suspicious circumstance, it was
taken note of by the Courts in the circumstances explained above.
28.
The circumstances under which DW2 came into the possession of the Will is also
a matter which was exponable either by DW1 or DW2. This is because according to
DW1, her brother-DW2 gave the same to her in Tenkasi and the noting in the Will
and the evidence of DW2 would go to show that it was executed at Madurai.
29.
In the circumstances, paragraph 21 of the impugned judgment also assumes
relevance. It reads thus:-
“21. On the side of the
respondents, it is stated that the will executed in a far away place from where
the testator used to reside and the attesting witness not known to the testator
are suspicion circumstance to disprove the will. It is stated that the will is
stated to have been executed at Madurai whereas the testators residence was at
Tenkasi and that the evidence of D.W.1 and D.W.2 was that D.W.1 was not present
at Madurai and the evidence of D.W.1 was that she was not aware that her
husband was going to execute a will at Madurai and that the stamp papers were
purchased in the name of the first defendant at Tenkasi and these circumstance
creates suspicion regarding the execution of the will.”
30.
The very case of the first defendant viz., DW1 is that the testator was being
looked after by her. She was residing at Tenkasi and if the testator used to stay
there with her and her deposition is to the effect that she was not aware that
her husband was going to execute a Will at Madurai and then, the proven fact is
that two stamp papers, on which 2 pages of the Will were typed,
were purchased in the name of the first defendant from Tenkasi, create
some suspicion. As noted earlier, the health of testator was in bad condition
and if so, the case that the execution of the Will was at a far away place from
Madurai is also a matter casting suspicion. Evidently, it was taking into
consideration all the aforesaid and such other circumstances that the High
Court arrived at the finding that the execution of the Will itself was not
proved. The circumstances surrounding the Will were also concurrently held as
suspicious.
31.
In the circumstances, the evidence of DW2 cannot be taken sufficient to prove
the execution of the Will in question in the manner it is required to be proved
and to accept it as genuine. It can only be held that the defendants have
failed to prove that the testator executed the Will by putting his signature
after understanding its contents. In such circumstances, when the findings are
concurrent how can the findings on the validity and genuineness of the Will in
question by the Trial Court and the High Court be interfered with. There is no
reason to hold that the appreciation and findings are absolutely perverse
warranting appellate interference by this Court. It is also to be noted that
the defendant Nos.2 and 3 also got 1/7th share each in the suit schedule
properties.
32.
For all these reasons the appeal has to fail. Consequently, it is dismissed. In
the circumstances, there is no order as to costs.
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