(a) In cases where the execution.of a
will is shrouded i.n. suspicion its proof
ceases to be a simple lis between the plain-
tiff and the defendant. What generally is an
adversary proceeding becomes in such cases a
matter of the court's conscience. The
presence of suspicious circumstances makes the
initial onus heavier and, therefore, in cases
where the circumstances attendant upon the
execution of the will excite the suspicion of
the court the propounder must remove all
legitimate suspicions before the document can
he accepted as the last will of the testator.
[929 C-F, 930 C-D]
(b) A will has to be proved like any other
document by applying the usual test of the
satisfaction of the prudent mind. [929 F]
(c) Since section 63 of the Succession Act
requires a will to be attested it cannot be
used as an evidence until at least one of the
attesting witnesses is examined, if available.
[929 G]
(d) Unlike other documents the will speaks
from the death of the testator and, therefore,
the maker of the will is never available for
deposing as to the circumstances in which the
will was executed. That circumstance intro-
duces a certain amount of solemnity in proof
of testamentany instruments. [929 H, 930 A]
R. Venkatachala lyengar v.B.N. Thimrnajamma & Others [1959]
Supp. 1 S.C.R. 426, followed.
2. The testator was a man of property and occupied a high
position in society. A genuine will of such a person is not
likely to suffer from the loop-holes and infirmities which
may beset an humbler testamentany instrument.
[931 D, H,932 A]
3. The following circumstances throw a cloud of suspi-
cion on the making of the will by Gobinder Singh:
926
(i) The will is alleged to have been made
in 1945 but it did not see the light of the
day till 1957. It is unacceptable that a
document by which property worth lacs of
rupees was disposed of could have remained a
closely guarded secret from intimate friends
and relatives and from the sole legatee him-
self for over 21/2- years after the testator's
death. [932 A-B]
(ii) The testator had left behind him a
large property and along with it large amount
of litigation which makes it impossible to
believe that upon his death no one bothered to
go through his papers.The explanation of the
defendant that he stumbled upon the will by
chance while going through some papers of his
grandfather is patently lame and unacceptable.
[932 B-D]
(iii) The defendant came out with the
theory of will after the Hindu Succession Act
of 1956 came into force as a result of which
the plaintiff would become an absolute owner
of the property that would fall to her share
as the heir of her husband.[932 G-H, 933 A-B]
(iv) The will was typed Out on both sides
of a single foolscap.paper and was obviously
drafted by a lawyer. No evidence was led as
to who drafted the will and who typed it out.
[933 B-C]
(v) The will was attested by two persons,
both of whom were strangers to the testator's
family and neither of whom could give a proper
account of the execution of the will. In
fact they contradicted each other. [933 C-H]
(vi) The two persons who are alleged to
have been appointed executors were not exam-
ined, though available. Normally, the execu-
tors are not appointed without their consent
or consultation. [934 A-C]
(vii) The will is unnatural and unfair. [934
C]
(viii) The will does not make mention of
many of the near relations and descendants of
the testator. [934 D-F]
(ix) The plaintiff was excluded as an heir
of the testator for the supposed reasons that
she had brought disgrace to the Sibia family
and that her behaviour was such as would not
even bear a mention in the will. No evidence
was led on the misconduct of the plaintiff.
[934 F-G]
(x) The defendant in his evidence did not
offer any explanation any of the suspicious
circumstances. [934 G]
Supreme Court of India
Jaswant Kaur vs Amrit Kaur & Ors on 25 October, 1976
Equivalent citations: 1977 AIR 74, 1977 SCR (1) 925
BENCH:
CHANDRACHUD, Y.V.
GOSWAMI, P.K.
GUPTA, A.C.
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