April 2, 2022 In Uncategorized


A Division Bench of the Supreme Court comprising of Justice Hemant Gupta and Justice V. Ramasubramanian, while deciding the case of Swarnalatha & ors. v. Kalavathy & ors. Civil Appeal No.1565 of 2022, passed a Judgment dated 30.03.2022 and held that genuineness of a will is not based on whether the distribution is fair and equitable.

In this case, a couple had 3 children, 2 Sons (V.M. Chandrasekaran and V.M. Sivakumar) and 1 Daughter (Kalavathy). The Mother (Testatrix) died on 14.08.1995, leaving behind a Will dated 30.01.1995, bequeathing her property to her 2 sons. The Daughter was not given any share on the ground that she was already given sufficiently. The Father (Testator) died on 08.08.2000, leaving behind a Will dated 10.12.1998, bequeathing his property to his 2 Sons and Grandchildren. The eldest son died in October, 1999, leaving behind his Wife and 2 Sons, who were the Appellants- original Defendants in this case.

The younger Son (V.M. Sivakumar) and the Daughter of the Testator (Respondents-original Plaintiff), filed a Suit for Partition before District Court of Madras. Subsequently, the Appellants filed a Petition for Grant of Probate of both the Wills. The District Court of Madras vide Order dated 07.06.2010, granted Probate of both the Wills. The Respondents challenged this Order of the District Court dated 07.06.2010 by filing an Appeal before the High Court of Madras under Section 384 of the Indian Succession Act, 1925 (Appeal). The High Court allowed this Appeal on the ground that the Daughter was not given any share in the Wills and that the Wills were executed under suspicious circumstances. (The date of High Court Order is not known to us, as it is not reported in the Judgment) Aggrieved by this Order of the High Court, the Appellants preferred an Appeal before the Supreme Court.

The Appellants contended that both the Wills were executed in sound mind, in the manner prescribed by law. While the Respondents contended that their parents did not execute any Will and the eldest son took signature of their Mother on blank paper and fabricated the same into a Will.

The Apex Court observed that the Will neither individually nor collectively created any suspicion. The Will of the Mother discloses that the Daughter was provided with sufficient property at the time of her marriage and also later. The Will   also   mentions   that   the   daughter’s   daughter   was   given in marriage to the second Son V.M. Sivakumar. This is the reason why the second Son V.M. Sivakumar joined hands with the Daughter, Kalavathy. It also mentions about a particular amount paid for discharge of a debt incurred by the Daughter’s Husband. The Apex Court further observed that the High Court completely overlooked all the above aspects and proceeded to invent reasons to justify a conclusion that seems to have preceded the line of reasoning.

The Will of the Testator was registered, while that of the Testatrix was not registered. The Supreme Court observed that the Testator’s Will had a mention about the Mother’s Will. If the Will of the Mother was fabricated without the knowledge of the Respondents as claimed by them, the same would not have been mentioned by the Testator/ Father in his Will. The Apex Court further noted that when it was not even the case of the Respondents that the Testator and the Testatrix were not in a sound and disposing state of mind while making the Will, the High Court found fault with the Appellants for not disclosing the nature of the ailments suffered by them. The exclusion of one of the natural heirs from the bequest, cannot by itself be a ground to hold that there are suspicious circumstances.

The Supreme Court went on to say that the law relating to suspicious circumstances surrounding the execution of a Will is already well settled and it does not need reiteration. The Apex Court referred the case of Kavita Kanwar vs. Mrs. Pamela Mehta and Ors; AIR 2020 SC 544, and noted that suspicion occurs generally when the signature or the mental capacity of the testator is in dispute or questionable. The Supreme Court said, “In the matter of appreciating the genuineness of execution of a Will, there is no place for the Court to see whether the distribution made by the testator was fair and equitable to all of his children. The Court does not apply Article 14 to dispositions under a Will.”

The Apex Court observed that in this case, the property was equally divided between the two sons in both the Wills, the eldest son was no more and Mrs. Kalavathy’s Daughter was admittedly promised in marriage to the younger son of the Testator. Thus, if bequest under the two Wills were done in favor of the Sons, Mr. Sivakumar’s family may eventually receive 2/3rd share of the properties, which is more beneficial for Mr. Sivakumar than getting half share under the Wills. Therefore, the Supreme Court, in view of these observations reversed the Order of the High Court and restored the Order of the District Court granting Probate of both the Wills.


Anuradha Kumari


The Indian Lawyer & Allied Services


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