In a recent case of Murthy and Others vs C. Saradambal and Others Civil Appeal No.4270 of 2010, a Two Judge Bench of the #SupremeCourt comprising of Justice L. Nageswara Rao and Justice B.V. Nagarathna passed a Judgment dated 10-12-2021, declaring the #Will #invalid. The Apex Court held that circumstances surrounding execution of the Will were #suspicious and that such suspicion led to legitimate doubts that were not dispelled by the #propounder of the Will.
In this case, one, Mr. E. Srinivasa Pillai had executed a Will dated 04-01-1978 (Will) and later, passed away on 19-01-1978 (Deceased/Testator). The Will is said to have been attested by two Witnesses. The Testator had a Son, named, Damodaran, who died intestate on 03-06-1989, leaving behind his Wife, Mrs. C. Saradambal, and two Daughters (Plaintiffs). The Testator also had two Daughters, namely Savitri Ammal and Padmavathi. As per the said Will, the house in which the Testator and his family were residing (Property), was bequeathed to his Son, Damodaran, to the exclusion of the two Daughters of the Testator.
Hence, the Testator’s Daughters filed a Partition Suit bearing No. O.S. No. 5477 of 1990, in the City Civil Court, Madras, seeking partition of the said Property. Thereafter, the Plaintiffs filed a Testamentary Original Suit (T.O.S.) bearing No. 20 of 1994 before the Trial Court, Madras, seeking Letters of Administration. In this Petition, the Plaintiffs undertook to duly administer the estate of the Deceased, as per his Will. But the Testator’s Daughters (Defendants) challenged the Will on the ground that (a) it was fabricated, (b) the signature of the Testator in the Will was forged, (c) the said Will was made up by the Plaintiff with the help of her Husband’s friends, who were the attesting Witnesses in the Will, (d) the Witnesses had no association with the Testator, (e) in fact, the Defendants were the ones who looked after the Deceased when he was on his death bed, (f) the Deceased had a paralytic attack and was unable to write or move for a period of 10 months prior to his death, (g) the Plaintiff’s Late Husband lived on for 11 years after his Father’s (Testator) death, but he never disclosed any information about the Will to the Defendants, (h) the Plaintiffs filed the Petition seeking Letters of Administration in 1994, i.e. 15 years after the death of the Testator and (i) the Defendants had been deprived of intestate succession on account of fraudulent and forged Will produced by the Plaintiffs. Hence, the Plaintiffs had to prove the Will by removing all suspicious circumstances in connection with the execution of the Will, to the satisfaction of the conscience of the Court. After considering the arguments of all the Parties, the Trial Court dismissed the T.O.S. No. 20 of 1994 filed by the Plaintiffs, vide Judgment dated 14-01-2000 and held that the execution of the Will is suspicious for the aforesaid reasons and the evidence put forth by the Plaintiffs has not dispelled the suspicious circumstances.
Aggrieved, the Plaintiffs filed an Appeal bearing O.S.A. No. 470 of 2002 before the Madras High Court and the Division Bench allowed the Appeal and reversed the Trial Court’s Judgment, vide Impugned Judgment dated 08-12-2008.
Aggrieved by the High Court Judgment dated 08-12-2008, the Defendants (Daughters of the Testator) filed an Appeal before the Supreme Court. The Apex Court passed a Judgment dated 10-12-2021 and made the following observations:
1) That in this case, the Plaintiffs filed T.O.S. No. 20 of 1994 in the Trial Court seeking Letters of Administration on the basis of a Will that is said to have been executed in 1978, i.e. the said Will had not seen the light of the day for 15 years. Also, the said case was filed by the Plaintiffs only after the Defendants filed a Suit for Partition in 1990.
2) That the propounder of a testamentary document has to prove the said document as per Section 68 of the Evidence Act 1872 and Section 63 of the Indian Succession Act 1925, for the purpose of proving the execution of the same. The relevant provisions are reproduced below for easy reference:
Section 68 of the Evidence Act 1872:
- Proof of execution of document required by law to be attested
If a document is required by law to be attested, it shall not be used as evidence until 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:
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.
Section 63 of the Indian Succession Act 1925:
- 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 and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or 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.
3) That the propounder has to (a) satisfy the Court that the will was signed by the testator in a sound and disposing state of mind and out of own free will and (b) examine one or more attesting witnesses and remove all suspicious circumstances regarding execution of the will.
4) That generally, the following kinds of circumstances are described as “suspicious”, in the case of execution of a will:
i) Signature of the testator is very shaky and doubtful
ii) Signature of the testator does not appear to be his usual signature
iii) Deteriorating condition of the testator at the time of execution of will
iv) Unfair and unnatural disposition of property in the will, say, for instance, property has been bequeathed only to some legal heirs to the exclusion of the other legal heirs
v) Propounder takes a prominent part in the execution of the will, which confers on him / her substantial benefit
vi) Testator used to sign blank papers
vii) The will did not see the light of the day for long
viii) Incorrect recitals of essential facts
ix) Other such unusual features and circumstances
5) That in this case, a doubt regarding genuineness of the Will arose on the following grounds:
a) That the Testator had suffered a paralytic stroke and was bedridden for 10 months prior to his death. So, a doubt is created as to whether the Testator was in a sound and disposing state of mind at the time of making of the Will, which was 15 days prior to his death.
b) The Plaintiffs have not produced any medical evidence or the evidence of a doctor, who was treating the Testator prior to his death, so as to prove that the Testator was in a sound and disposing state at the time of the execution of the Will.
c) The fact that the Testator died within a period of 15 days from the date of the execution of the Will, casts a doubt on the thinking capacity and the physical and mental faculties of the Testator. Thus, it is not proved that the signature of the Testator was such that it was intended thereby to give effect to the writing of the Will. Hence, the requirement of Section 63 (b) of the Indian Succession Act 1925 is not fulfilled.
d) Further, the fonts of the recital of the Will and the Testator’s signature did not match. Hence, it is doubtful if the Testator himself wrote and signed the Will. In the event that the Will was written by a third party, there is no evidence as to whom the Testator gave instructions to, to write his Will. The scribe has also not been examined.
e) Moreover, as required by Section 68 of the Evidence Act 1872, one of the Witnesses who is alive was examined by the Trial Court. As per the Witness, there was no date written on the top of the Will. This aspect also casts a doubt as to whether the Will was executed by the Testator during his lifetime.
f) Also, as per the Witness, the Testator’s Son, who was a practicing Advocate, was unaware about the execution of the Will by his Father. It is unnatural that the father would not have disclosed to his only son about the bequest of the property, (particularly when the son was a practicing advocate) and had also not taken his son’s assistance in the drafting as well as execution of the will.
Thus, based on the aforesaid grounds, the Supreme Court held that the Plaintiffs have not been able to prove the validity of the Will and remove the suspicious circumstances surrounding the execution of the Will by producing cogent evidence. Therefore, the Will has been declared to be a concocted and invalid document, so, the Letters of Administration cannot be granted to the Plaintiffs. As a result, the Apex Court upheld the Trial Court Judgment dated 14-01-2000 and set aside the High Court Judgment dated 08-12-2008.
Testamentary Courts have by and large set aside wills when the execution of the will is surrounded by suspicious circumstances. The above case is an example. Though under the general law, the Court does not probe into the bequests made by the testator and accepts the same at face value, it generally, looks at circumstances that exist during the execution of a will. In the event that the Court feels, that there are suspicious circumstances, a will is declared null and void. The beneficiaries of the void will are then put on the same footing as the other beneficiaries and the division of the testator’s assets is done as per the law.
The Indian Lawyer
Sushila Ram Varma
Chief Consultant and Editor
The Indian Lawyer