Sunday, 26 February 2017

Landmark Judgment on suspicious circumstances surrounding execution of will

    (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:
     (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
    (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
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