What is duty of propounder of will if natural legal heirs are excluded in will?

Whenever the execution of a will is denied, burden is always on the propounder to ward off all suspicious circumstances surrounding the will. Principles to this effect have been succinctly enunciated by the Hon'ble apex court in the case of H. Venkatachala Iyengar v. B.N. Thimmajamma (MANU/SC/0115/1958 : AIR 1959 SC 443). In the said case, it is held that the propounder is not only expected to prove due execution of the will, but also to prove that the executant, i.e. testator was in a sound disposing state of mind at that time.

13. Whenever a legatee intends to exclude his natural heir, who would otherwise inherit the property, is expected to indicate strong reasons for such exclusion. The recitals in Ex. P1 disclose that Chandramma- wife of Chandrappa was not leading a good life and that her character was suspicious. Nobody is examined to prove such a serious allegation. Whenever the genuineness of a will is disputed, one of the attesting witnesses must be examined to support the same in terms of Section 68, Evidence Act and Section 63, Indian Succession Act.

In the case of Ram Piary v. Bhagwat (MANU/SC/0306/1990 : AIR 1990 SC 1742), the Hon'ble apex court has held that there must be some strong reason to exclude the natural heirs. 

The legal principles that could be drawn from the decisions referred to above is that the propounder of a will is expected to prove its due execution and if there are suspicious circumstances, the propounder must before remove the suspicious circumstances by adducing cogent and acceptable evidence, though every circumstance may not be suspicious circumstance.

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

R.S.A. Nos. 1952/2005 and 220/2006

Decided On: 18.03.2016

 Chennappa Gowda and Ors.
Vs.
 N.C. Rajashekara and Ors.

Hon'ble Judges/Coram:A.V. Chandrashekara, J.

Citation:AIR 2016 (NOC)622 Kar

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Whether exclusion of natural legal heirs from inheritance is suspicious circumstance surrounding execution of Will?

 I do not find any substance in the contentions raised by the learned counsel for the appellant-defendant no.3. Defendant no. 3 has based his claim on the basis of the Will dated 06.10.1998(Ex.DW6/A/DW7/1). This is an admitted fact that the original Will was not produced in the Court. So, the original Will has not seen the day of the light. Only, the certified copy thereof has been produced in evidence by defendant no.3. No explanation has been given by the appellant as to why the original Will was not produced in evidence. It is also an admitted fact that no permission was taken by defendant no.3 to lead the secondary evidence to produce the certified copy of the Will dated 06.10.1998. Thus, the non production of the original Will raises the adverse inference against defendant no.3-appellant.

The learned First Appellate Court has categorically mentioned that DW-7 Kishan Chand Yadav, the scribe cannot be considered to be the attesting witness and legally no fault can be found with these observations of the learned First Appellate Court. DW-8 Rajesh, the attesting witness of the Will has been a tenant of the beneficiary for the last more than 25 years. His presence at the time of execution of the Will is seriously suspected as he could not tell as to whether the Will was written by the deed writer in his own hand writing or was got typed by him. DW-9 Sube Singh is also not the attesting witness of the Will. He has examined simply to identify the signatures of his brother Jagdish, another witness of the Will.

The learned First Appellate Court has also narrated the suspicious circumstances surrounding the Will dated 06.10.1998 that no reason has been given by the testator as to why the other natural legal heirs were excluded from inheritance. It was also found from the evidence on record that Sardar Singh was not on good speaking terms with defendant no.3. He has misused the power of attorney earlier executed by deceased Sardar Singh in favour of defendant no.3 and executed the lease deed of the land owned by Sardar Singh in favour of his wife. Due to which Sardar Singh has got canceled his power of attorney. In these circumstances, it was not plausible that Sardar Singh  would have executed the Will in favour of defendant no. 3 Jai Singh- appellant. Mere, this fact that said Will is registered, is no ground to establish the valid execution of the Will. Thus, I do not find any infirmity in the findings recorded by the learned First Appellate Court.

Punjab-Haryana High Court

Jai Singh vs Pavitra Devi & Ors on 7 January, 2016

CM No. 75-C of 2016 in/and R.S.A No. 31 of 2016 (O&M)       
CORAM : HON'BLE MR. JUSTICE DARSHAN SINGH

Citation;AIR 2016(NOC) 276 P&H

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