Supreme Court: Appellate court should remand the case when the factual findings of Trial Court are reversed and a re-trial is considered necessary

 Such cases where retrial is considered necessary because of any particular reason and more particularly for the reason that adequate opportunity of leading sufficient evidence to a party is requisite, stand at entirely different footings than the cases where evidence has already been adduced and decision is to be rendered on appreciation of evidence. It also remains trite that an order of remand is not to be passed merely for the purpose of allowing a party to fill-up the lacuna in its case.

25.5. It gets perforce reiterated that the occasion for remand would arise only when the factual findings of Trial Court are reversed and a re-trial is considered necessary by the Appellate Court.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 6076 of 2009

Decided On: 24.04.2020

Shivakumar and Ors. Vs. Sharanabasappa and Ors.

Hon'ble Judges/Coram:

A.M. Khanwilkar, Hemant Gupta and Dinesh Maheshwari, JJ.

Author: Dinesh Maheshwari, J.

Citation: MANU/SC/0395/2020,(2021) 11 SCC 277,2020 SCCONLINE SC 385.

Read full Judgment here: Click here.

Print Page

Whether the appellate court should remand a case because the trial court has not properly appreciated the evidence?

 A conjoint reading of Rules 23, 23A and 24 of Order XLI brings forth the scope as also contours of the powers of remand that when the available evidence is sufficient to dispose of the matter, the proper course for an Appellate Court is to follow the mandate of Rule 24 of Order XLI Code of Civil Procedure and to determine the suit finally. It is only in such cases where the decree in challenge is reversed in appeal and a re-trial is considered necessary that the Appellate Court shall adopt the course of remanding the case. It remains trite that order of remand is not to be passed in a routine manner because an unwarranted order of remand merely elongates the life of the litigation without serving the cause of justice. An order of remand only on the ground that the points touching the appreciation of evidence were not dealt with by the Trial Court may not be considered proper in a given case because the First Appellate Court itself is possessed of jurisdiction to enter into facts and appreciate the evidence. {Para 25.4.}

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 6076 of 2009

Decided On: 24.04.2020

Shivakumar and Ors. Vs. Sharanabasappa and Ors.

Hon'ble Judges/Coram:

A.M. Khanwilkar, Hemant Gupta and Dinesh Maheshwari, JJ.

Author: Dinesh Maheshwari, J.

Citation: MANU/SC/0395/2020,(2021) 11 SCC 277,2020 SCCONLINE SC 385.

Print Page

When Subsequent unregistered will prevail over registered will?

The learned Single Judge then enumerated the following reasons for coming to the conclusion that the execution of Will dated 10.2.1992 was suspicious and the testator had not acted of his own free will:

(8) While the first Will was registered, the executant did not bother to get the second Will registered. {Para 13}

The absence of a categorical recital in Will dated 10.2.1992 that the earlier Will was cancelled is also not relevant because once the execution of the second Will is held as duly proved, the earlier Will automatically becomes redundant because the second Will represents the last wish of the testator.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 7587-7588 of 2004

Decided On: 13.03.2012

 Mahesh Kumar (Dead) By L.Rs.  Vs.  Vinod Kumar and Ors.

Hon'ble Judges/Coram:

G.S. Singhvi and S.J. Mukhopadhaya, JJ.

Print Page

Whether Unfair Disposition Or Unjust Exclusion Of Legal Heirs In A Will Can Be Regarded As A Suspicious Circumstance?

 In the given set-up, a basic question immediately crops up as to

what could be the reason for the testatrix being desirous of providing

unequal distribution of her assets by giving major share to the appellant in

preference to her other two children. The appellant has suggested that the

parents had special affection towards her. Even if this suggestion is taken

on its face value, it is difficult to assume that the alleged special affection

towards one child should necessarily correspond to repugnance towards

the other children by the same mother. Even if the parents had special liking

and affection towards the appellant, as could be argued with reference to

the gift made by the father in her favour of the ground floor of the property

in question, it would be too far stretched and unnatural to assume that by

the reason of such special affection towards appellant, the mother drifted far

away from the other children, including the widowed daughter who was

residing on the upper floor of the same house and who was taking her care.

In the ordinary and natural course, a person could be expected to be more

inclined towards the child taking his/her care; and it would be too unrealistic

to assume that special love and affection towards one, maybe blue-eyed,

child would also result in a person leaving the serving and needy child in

lurch. As noticed, an unfair disposition of property or an unjust exclusion of

the legal heirs, particularly the dependants, is regarded as a suspicious

circumstance. The appellant has failed to assign even a wee bit reason for

which the testatrix would have thought it proper to leave her widowed

daughter in the heap of uncertainty as emanating from the Will in question.

Equally, the suggestion about want of thickness of relations between the

testatrix and her son (respondent No.2) is not supported by the evidence on

record. The facts about the testatrix sending good wishes on birthday to her

son and joining family functions with him, even if not establishing a very

great bond between the mother and her son, they at least belie the

suggestion about any strain in their relations. Be that as it may, even if the

matter relating to the son of testatrix is not expanded further, it remains

inexplicable as to why the testatrix would not have been interested in

making adequate and concrete provision for the purpose of her widowed

daughter (respondent No.1).

29.3. The aforesaid factor of unexplained unequal distribution of the

property is confounded by two major factors related with making of the Will

in question: one, the active role played by the appellant in the process; and

second, the virtual exclusion of the other children of testatrix in the process.

As noticed, an active or leading part in making of the Will by the beneficiary

thereunder has always been regarded as a circumstance giving rise to

suspicion but, like any other circumstance, it could well be explained by the

propounder and/or beneficiary.

 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3688 OF 2017

KAVITA KANWAR. Vs.  MRS. PAMELA MEHTA 

Dinesh Maheshwari, J.

Dated: Dated: 19th May, 2020.

Print Page

Precaution to be taken by court while upholding claim of adoption of child

 At this juncture it would be necessary to observe the law laid down by this Court in numerous cases that the burden of proving adoption is a heavy one and if there is no documentary evidence in support of adoption, the Court should be very cautious in relying upon oral evidence. This Court held so in Kishori Lal v. Mst. Chaltibai MANU/SC/0145/1958 : AIR 1959 SC 504, We can do no better than to quote the relevant passage from the above judgment which reads as under:

As an adoption results in changing the course of succession, depriving wives and daughters of their rights and transferring properties to comparative strangers or more remote relations it is necessary that the evidence to support it should be such that it is free from all suspicion of fraud and so consistent and probable as to leave no occasion for doubting its truth. Failure to produce accounts, in circumstances such as have been proved in the present case, would be a very suspicious circumstance.

20. In Rahasa Pandiani (dead) by L.Rs. and Ors. v. Gokulananda Panda and Ors., MANU/SC/0418/1987 : AIR 1987 SC 962, aforesaid aspect was observed as under:

When the Plaintiff relies on oral evidence in support of the claim that he was adopted by the adoptive father in accordance with the Hindu rites, and it is not supported by any registered document to establish that such an adoption had really and as a matter of fact taken place, the Court has to act with a great deal of caution and circumspection. Be it realized that setting up a spurious adoption is not less frequent than concocting a spurious will, and equally, if not more difficult to unmask. And the Court has to be extremely alert and vigilant to guard against being ensnared by schemers who indulge in unscrupulous practices out of their lust for property. If there are any suspicious circumstances, just as the propounder of the will is obliged to dispel the cloud of suspicion, the burden is on one who claims to have been adopted to dispel the same beyond reasonable doubt. In the case of an adoption which is not supported by a registered document or any other evidence of a clinching nature if there exist suspicious circumstances, the same must be explained to the satisfaction of the conscience of the Court by the party contending that there was such an adoption. Such is the position as an adoption would divert the normal and natural course of succession. Experience of life shows that just as there have been spurious claims about execution of a will, there have been spurious claims about adoption having taken place. And the Court has therefore to be aware of the risk involved in upholding the claim of adoption if there are circumstances which arouse the, suspicion of the Court and the conscience of the Court is not satisfied that the evidence preferred to support such an adoption is beyond reproach.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 6378 of 2013

Decided On: 22.11.2017

 Ratanlal  Vs.  Sundarabai Govardhandas Samsuka 

Hon'ble Judges/Coram:

N.V. Ramana and Amitava Roy, JJ.

Citation: (2018) 11 SCC 119

Print Page

Whether execution of will is validly proved if testator was on death bed at time of execution of will deed?

Ex. P/4 discloses that Srimati Mooli Swarnkar attended the school as a teacher up to 1.10.2001, and thereafter she remained on medical leave. It is also not in dispute, that the deceased was suffering from liver cancer and Hepatitis 'B' disease. Admittedly, the will was executed between 7 to 8 a.m. on 18.11.2001, and after few hours she expired on the very same date. The attesting witness of Ex. D/6, namely, Shri Dhannalal Mahavar (NAW/02) has admitted in the cross-examination that he is a government hospital compounder. The deceased was being treated in a hospital at Bhopal. At about 5.30 a.m. on 18.11.2001, a telephone call was received by Shri Brijmohan Soniji, who is the father of respondent no.1, and immediately thereafter he arrived at the site, i.e. in the hospital at Bhopal.

It is admitted by the attesting witness and other witnesses who were allegedly present at the time of the execution of the will that the hands of Srimati Mooli Swarnkar were shivering while signing Ex. D/6. At that point of time, Srimati Mooli Swarnkar was very weak and she was administered drip. The health condition of Srimati Mooli Swarnkar had deteriorated when the drip was being administered. Therefore, in our considered opinion, the first appellate Court was justified in concluding that the propounder of the will was not successful in proving that the will was executed in a healthy state of mind as well as body of the deceased and without any pressure.

The will is surrounded by suspicious circumstances mentioned supra. Similar observation needs to be made in respect of nomination forms also, which were allegedly executed by the deceased just prior to her death on 18.11.2001, i.e., on 16.11.2001. Admittedly, the deceased was on medical leave. The nomination forms allegedly signed by the deceased were placed before the concerned department by the relatives and other family members of the respondents. Upon comparison of the disputed and other signatures of the deceased Srimati Mooli Swarnkar on Ex. P/4, D/7, D/8 and the alleged will Ex. D/6, the first appellate Court on facts has concluded that the signatures found on Ex. D/6 were totally different.

9. We find from the records that the condition of the testator's mind and body was very feeble and debilitated. The signature of the testator was allegedly taken on the death bed while she was administered drip. The dispositions made in the will may not be the result of the testator's free will and mind. In such cases, the Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator.

The presence of such suspicious circumstances naturally tends to make the initial onus very heavy and unless it is satisfactorily discharged, Courts would be reluctant to treat the document as the last will of the testator. Since there are many suspicious circumstances narrated above, and as we are satisfied that the dispositions made in the alleged will may not be as a result of testator's free will and mind, the Civil Court as well as the High Court are not justified in coming to the conclusion that the will Ex.D/6 is duly executed by the deceased.

The respondents being the propounders of the will have failed to satisfy the judicial conscience of this Court regarding due execution of the will. Since the suspicious circumstances relate to the genuineness of the signatures of the testator, as well as the condition of the testator's mind and the dispositions made in the will being unfair, the judgment of the High Court restoring the judgment of the Civil Court is liable to be set aside.

SUPREME COURT OF INDIA

Dr. Prakash Soni Vs. Deepak Kumar and Another

[Civil Appeal No. 6388 of 2009]

Dated:SEPTEMBER 15, 2017.

MOHAN M. SHANTANAGOUDAR

Print Page

Whether it is necessary to remove suspicious circumstances for proof of family settlement?

 The presence of PW-4-Harbans Singh at the time of

execution of the family settlement (Ex.P-1) is not believable. He has

deposed that the document Ex.P-1 was not typed in his presence. He did

not remember that where the document was typed. He further deposed

that the same was signed at petrol pump of Udhampur, but he did not

remember who was the owner of the said petrol pump. He even did not

remember the trade name of said petrol pump. He admitted that no money

transaction took place in his presence. He is the father-in-law of the

plaintiff. Even as per the case of the plaintiff, this family settlement was

executed 2-3 days after his marriage. So, it is not believable that such a

new relative will be roped in such affairs of the family. If in-fact, any

family settlement would have taken place between the parties, it must

have been signed at least by their father, sisters and other family

members, who must be present in the house due to the occasion of the

marriage of the plaintiff. There was also no reason to attest the family

settlement (Ex.P-1) by PW-4-Harbans Singh at the petrol pump, rather

then the house of the plaintiff. The plaintiff also could not tell the name

of the typist and he took the plea that the same was got typed by the

defendant.

25. It is further the settled principle of law that Court can only

act upon on the clear, categoric and unequivocal admission of the parties

to arrive at the conclusion. The vague or the retracted admission carries

no evidentiary value. In the instant case, though initially the defendant in

his part cross-examination has stated that the signatures on the family

settlement looks like his signatures, but in the same breath he added that

these are not his signatures. So, there is no admission on the part of the

defendant that the family settlement (Ex.P-1) bears his signatures. Thus,

the family settlement (Ex.P-1) is surrounded by various suspicious

circumstances, which negates the valid execution thereof. Consequently,

the plaintiff has not been able to establish the genuineness and valid

execution of the family settlement (Ex.P-1) by the defendant.
IN THE HIGH COURT OF PUNJAB AND HARYANA

 AT CHANDIGARH.

R.S.A No.1526 of 2014(O&M)

Date of decision : 01.12.2016

Hargursharan Singh

V

Lt. Col. Hargobind Singh

CORAM : HON'BLE MR. JUSTICE DARSHAN SINGH

Citation: AIR 2017 P&H 3

Print Page

Whether it is mandatory for court to draw presumption U/S 90 of Evidence Act?

The learned counsel for appellants tried to use
section 90 of the Evidence Act in support of his submissions.

Section 90 of the Evidence Act runs as under :-
"90. Presumption as to documents thirty
years old.—Where any document, purporting or
proved to be thirty years old, is produced from
any custody which the Court in the particular case
considers proper, the Court may presume that the
signature and every other part of such document,
which purports to be in the handwriting of any
particular person, is in that person’s handwriting,
and, in the case of a document executed or
attested, that it was duly executed and attested
by the persons by whom it purports to be
executed and attested.
Explanation.—Documents are said to be in
proper custody if they are in the place in which,
and under the care of the person with whom, they
would naturally be; but no custody is improper if it
is proved to have had a legitimate origin, or if the
circumstances of the particular case are such as to
render such an origin probable.
This Explanation applies also to section 81"
The aforesaid provision shows that discretion is given to the
Court by using words 'may presume' to presume due execution
or due attesting of such document. If there are suspicious
circumstances, Court can refuse to raise presumption available
under section 90. In the present matter, the Trial Court refused

to raise such presumption by giving reasons that this document
was never used by Nandlal or even by defendant No. 1 for any
purpose prior to its production in the Court. The Courts below
have observed that there is convincing record to rebut the
presumption which could have been raised in view of section 90
in respect of Exh. 363. This Court has already quoted the
material showing that the family continued to remain joint in all
respects and this record is considered by the Courts below also.
When the finding of the Court is about proof of execution and
section 90 needs to be used for the proof of execution, it
becomes purely matter of discretion and the Appellate Court is
not expected to interfere lightly in finding given by the Trial
Court in such circumstances. 
IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
SECOND APPEAL NO. 215 OF 2002

Madanlal Nandlal Zawar V  Premsukh Ramdayal Zawar,

CORAM : T.V. NALAWADE, J.
DATED : 3rd May, 2016.
Citation: 2017(2) ALLMR 123

Print Page

Whether principles applicable for proof of will is applicable for proof of gift deed?

 Gift­deed at Exhibit­92 is a registered document and was
executed   by   Damduji   in   respect   of   his   self   acquired   property.
Any objection to his competency to execute this document at Exhibit­92
has to be rejected. The only ground on which the lower Appellate Court
has reversed the decree passed by the trial Court is that the gift­deed at
Exhibit­92 was  shrouded  by suspicious circumstances. The trial Court
recorded a finding that two attesting witnesses D.W.1 Shalik and D.W.4
Kishor have proved the gift­deed at Exhibit­92. Without reversing this
finding, the lower Appellate Court, considered the so called suspicious
circumstances.   The   test   of   suspicious   circumstances   available   in
accepting a document of Will, cannot be applied to question the validity
of gift­deed. Once it is found that the document of gift is registered and
the signature of the donor on it, is proved, it cannot be held to be invalid
unless a case of fraud or misrepresentation is made out. The provisions
of Section 123 of the Transfer of Property Act, Section 68 of the Evidence
Act as compared with Section 63 of the Indian Succession Act, have to be
seen.   The   lower   Appellate   Court   has   committed   an   error   of   law   in

adopting such method. Apart from this, the learned counsel could not
point out any such circumstances creating doubt in acceptance of the
evidence of attesting witnesses on the registered gift­deed at Exhibit­92.
The   lower   Appellate   Court   could   not   have   therefore,   disturbed   the
findings recorded by the trial Court rejecting the claim of the plaintiff in
respect of the house property and holding that the gift­deed at Exhibit­92
was suspicious and confers no title upon the defendants. The finding to
that effect as recorded by the lower Appellate Court cannot be sustained.
The substantial question of law is answered accordingly.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO.335 OF 2015
Shalik s/o Damdu Dhobale,

V
 Sitaram s/o Damdu Dhobale,

­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­
CORAM:  R.K. DESHPANDE, J.
DATE:          17th  JUNE, 2016.
Citation: 2017(1) ALLMR 603

Print Page

Whether active participation by beneficiary of will in execution of will amounts to suspicious circumstance?

 It is settled by a catena of decisions that any and every circumstance is not a suspicious circumstance. Even in a case where active participation and execution of the Will by the profounder/beneficiaries was there, it has been held that that by itself is not sufficient to create any doubt either about the testamentary capacity or the genuineness of the Will. It has been held that the mere presence of the beneficiary at the time of execution would not prove that the beneficiary had taken prominent part in the execution of the Will. This is the view taken by this Court in Sridevi and Ors. v. Jayaraja Shetty and Ors., MANU/SC/0065/2005 : AIR2005SC780 . In the said case, it has been held that the onus to prove the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will proof of testamentary capacity and the proof of signature of the testator as required by law not be sufficient to discharge the onus. In case, the person attesting the Will alleges undue influence, fraud or coercion, the onus will be on him to prove the same and that as to what suspicious circumstances which have to be judged in the facts and circumstances of each particular case.

Citation : AIR 2005 SC 4362

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 5941-5942 of 2005 

Decided On: 29.09.2005

 Pentakota Satyanarayana 

Vs.

 Pentakota Seetharatnam and Ors.

Print Page

Whether natural heirs are excluded is suspicious circumstance invaliding will?

Mr. Narsimha, learned counsel for the respondents, submitted that the natural heirs were excluded and legally wedded wife was given a lesser share and, therefore, it has to be held to be a suspicious circumstance. We are unable to countenance the said submission. The circumstances of depriving the natural heirs should not raise any suspicion because the whole idea behind the execution of the will is to be interfered in the normal line of succession and so natural heirs would be debarred in every case of the Will. It may be that in some cases they are fully debarred and some cases partly. This is the view taken by this Court in Uma Devi Nambiar and Ors. v. T.C.Sidhan (Dead) MANU/SC/1026/2003 : AIR2004SC1772 .

Citation : AIR 2005 SC 4362

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 5941-5942 of 2005 [Arising out of S.L.P. (Civil) Nos. 21835-21836 of 2003]

Decided On: 29.09.2005

 Pentakota Satyanarayana 

Vs.

 Pentakota Seetharatnam and Ors.

Coram:

Ruma Pal and AR. Lakshmanan, JJ.

Print Page

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:
 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.
Read full judgment here:Click here

Print Page

What will not be suspicious circumstance surrounding execution of will?

This Court has held that the mode of proving a will does not ordinarily differ from that of proving any other document except to the special requirement of attestation prescribed in the case of a will by Section 63 of the Successions Act. 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 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 the court accepts the will as genuine. Even where circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the court. The suspicious circumstances may be as to the genuineness of the signatures 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 naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes a prominent part in the execution of the will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the court would grant probate, even if the will might be unnatural and might cut off wholly or in part near relations. MANU/SC/0278/1963 : AIR1964SC529

8. Needless to say that any and every circumstance is not a `suspicious' circumstance. A circumstance would be `suspicious' when it is not normal or is not normally expected in a normal situation or is not expected of a normal person.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1872 of 1970

Decided On: 18.11.1981

 Smt. Indu Bala Bose and Ors.
Vs.
 Manindra Chandra Bose and Anr.

Hon'ble Judges/Coram:
A.N. Sen and Baharul Islam, JJ.

Citation:A.I.R. 1982, Supreme Court, 133

Print Page

Whether valid will can be dislodged on ground that particular heir was excluded?

Every testamentary disposition disrupts the natural line of succession.1 Wills, by their very nature, usually result in the reduction or deprivation of the share of a natural heir; were it otherwise, no will would be necessary. The exclusion, therefore, of a particular heir or even of a large number of heirs is not ipso facto a suspicious circumstance sufficient to dislodge an otherwise valid will,2 or make it 'unnatural'.

IN THE HIGH COURT OF BOMBAY

Testamentary Suit No. 89 of 1999 in Testamentary Petition No. 1205 of 1998

Decided On: 05.02.2015

 Madhuri Pukharaj Baldota
Vs.
 Omkarlal Daulatram Banwat and Ors.

Coram:G.S. Patel, J.

Citation:2015 (4)Mh.L.J.327.

Print Page

Whether test of suspicious circumstances can be applied to question validity of gift deed?

Gift­deed at Exhibit­92 is a registered document and was
executed   by   Damduji   in   respect   of   his   self   acquired   property.
Any objection to his competency to execute this document at Exhibit­92
has to be rejected. The only ground on which the lower Appellate Court
has reversed the decree passed by the trial Court is that the gift­deed at
Exhibit­92 was  shrouded  by suspicious circumstances. The trial Court
recorded a finding that two attesting witnesses D.W.1 Shalik and D.W.4
Kishor have proved the gift­deed at Exhibit­92. Without reversing this
finding, the lower Appellate Court, considered the so called suspicious
circumstances.   The   test   of   suspicious   circumstances   available   in
accepting a document of Will, cannot be applied to question the validity
of gift­deed. Once it is found that the document of gift is registered and
the signature of the donor on it, is proved, it cannot be held to be invalid
unless a case of fraud or misrepresentation is made out.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO.335 OF 2015
Shalik s/o Damdu Dhobale,

V 
Sitaram s/o Damdu Dhobale,

­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­
CORAM:  R.K. DESHPANDE, J.
DATE:          17th  JUNE, 2016.
Citation: 2016(6) MHLJ 824

Print Page

How to appreciate evidence for grant of probate if there are suspicious circumstances?

 Where suspicious circumstances are present, they do not ipso
facto preclude the grant of Probate. The Plaintiff must be given an
opportunity to dispel them.Kunvarjeet Singh Khandpur v Kirandeep Kaur and Ors., (2008) 8 SCC
463. This is only to satisfy the judicial
conscience that there is nothing untoward.Smt. Jaswant Kaur v Smt. Amit Kaur, (1977) 1 SCC 369. When more than one
such circumstance exists, the cumulative effect must be

considered.S.R Srinivasa Rao and Ors. v S. Padmavathamma (2010) 5 SCC 274.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY & INTESTATE JURISDICTION
TESTAMENTARY SUIT NO. 20 OF 2005
IN
TESTAMENTARY PETITION NO. 753 OF 2004
SHIRISH POPATLAL SHAH, v ARUN POPATLAL SHAH,
CORAM : G.S.Patel, J.
Dated : 8th July 2016
Citation: 2016(6) MHLJ 257

Print Page

Whether execution of will can be doubted on ground that it was executed in different language?

It has always been the Plaintiff’s case that the Testator could
communicate in English, and did so reasonably well. It is nobody’s
case that the Will is fabricated because the Testator could not speak
English. The only case, as I understand it, is that it was exceedingly
odd for him to have done so considering he had written his previous
wills in Gujarati and took great pride in his mother tongue. A very
similar argument was taken before a Division Bench of the Calcutta
High Court in Sanat Kumar Das v Arati Das. (2009) 4 CHN 593 (DB).Here, the testator,

who was educated in English, had signed the Will in Bengali.
Though the caveators in this matter were aware that the testator
knew Bengali, they had not known him to sign in that language
before. The High Court dismissed the submission. It is settled law,
the Division Bench said, that the Probate Court cannot require

proof ‘beyond reasonable doubt’
, nor must the Court proceed on a
presumption that the Will is suspicious. I am in most respectfulagreement with this decision. I do not find that the language of the
Will is troublesome enough to doubt its veracity. Every person is at
liberty to draw up their Will in whatever language they please; and
once there is, as we have here, proof that the testator was fluent in
more than one language, this aspect, on its own, assumes nosignificance at all. I am therefore unable to accept Mr. Narula’s

submission in this regard.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY & INTESTATE JURISDICTION
TESTAMENTARY SUIT NO. 20 OF 2005
IN
TESTAMENTARY PETITION NO. 753 OF 2004
SHIRISH POPATLAL SHAH,

v
ARUN POPATLAL SHAH,

CORAM : G.S.Patel, J.

Dated : 8th July 2016
Citation: 2016(6) MHLJ 257

Print Page

How to ascertain suspicious circumstances while proving execution of will?

It is true that it is for the propounder of a Will to
remove all suspicious circumstances, but these circumstances must
either appear from the document itself or must be shown to exist by cogent evidence. 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY & INTESTATE JURISDICTION
TESTAMENTARY SUIT NO. 20 OF 2005
IN
TESTAMENTARY PETITION NO. 753 OF 2004
SHIRISH POPATLAL SHAH,
v
ARUN POPATLAL SHAH,
CORAM : G.S.Patel, J.
Dated : 8th July 2016
Citation: 2016(6) MHLJ 257

Print Page

Supreme Court: Golden rules for appreciation of evidence in case of will

There is a long line of decisions bearing on the nature and standard of evidence required to prove a will. Those decisions have been reviewed in an elaborate judgment of this Court in R. Venkatachala Iyengar v.B.N. Thirnmajamma & Others. [1959] Supp. I S.C.R. 426. The Court, speaking through Gajendragadkar J., laid down in that case the following positions :--

1. Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the ease of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty.

2. Since section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by section 63 of the Evidence Act, one attesting witness at least has .been called for the purpose of proving its execution, if there be an attesting witness alive and subject to the process of the court and capable of giving evidence.

3. Unlike other documents, the will speaks from the death o[ the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed.

This aspect introduces an element of solemnity in the deci- sion of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will.

4. Cases in which the execution of the will is surround- ed by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he re- ceives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disin- herited because the testator might have had his own reasons for excluding them. 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 be accepted as the last will of the testator.

5. It is in connection with wills, the execution of which is surrounded by suspicious circumstance that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator.

6. If a caveator alleges fraud, undue influence, coer- cion etc. in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execu- tion' of the will may raise a doubt as to whether the testa- tor was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasona- ble doubts in the matter.

Supreme Court of India

Jaswant Kaur vs Amrit Kaur & Ors on 25 October, 1976

Equivalent citations: 1977 AIR 74, 1977 SCR (1) 925, 1977 SCC (1) 369

BENCH:
CHANDRACHUD, Y.V.
GOSWAMI, P.K.
GUPTA, A.C.

Print Page

Whether court can grant probate of will if there are suspicious circumstances?

Where suspicious circumstances are present, they do not ipso
facto preclude the grant of Probate. The Plaintiff must be given an
opportunity to dispel them.Kunvarjeet Singh Khandpur v Kirandeep Kaur and Ors., (2008) 8 SCC
463. This is only to satisfy the judicial
conscience that there is nothing untoward.Smt. Jaswant Kaur v Smt. Amit Kaur, (1977) 1 SCC 369. When more than one
such circumstance exists, the cumulative effect must be
considered.S.R Srinivasa Rao and Ors. v S. Padmavathamma (2010) 5 SCC 274.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY & INTESTATE JURISDICTION
TESTAMENTARY SUIT NO. 20 OF 2005
IN
TESTAMENTARY PETITION NO. 753 OF 2004
SHIRISH POPATLAL SHAH,

v
ARUN POPATLAL SHAH,

CORAM : G.S.Patel, J.

Dated : 8th July 2016
Citation: 2016(6) MHLJ 257

Print Page