Supreme Court: In an appeal filed by the appellants, wife and children of the testator, examining the validity of a Will executed by testator in favour of his sister-respondent, and to determine whether the concurrent findings of the trial court, first appellate court and High Court upholding the will warranted interference, the Division Bench of Ujjal Bhuyan and Vijay Bishnoi*, JJ., affirmed the concurrent findings of all the courts below and held that the will had been duly executed and validly proved. The Court found no suspicious circumstances sufficient to dislodge the will and no infirmity in the appreciation of evidence by the courts below.
The Court held that “exclusion of the natural heirs cannot be sufficient to vitiate the Will in question, particularly when the Will clearly specifies that the testator has not done any injustice to his wife, children, or other relatives, and that he has given enough to his wife and children who are residing at Bombay”.
Factual Matrix
The testator was permanently residing in Bombay and was employed as a Chartered Accountant with reputed companies. Apart from a residential flat in Bombay, he possessed substantial immovable properties situated in Brahmavar and Chanthar Village, Udupi Taluk, Karnataka, including agricultural and ancestral properties. The family of the testator consisted of 2 sisters and 2 brothers. After the demise of his elder sister, the testator took responsibility for her daughters and performed their marriages.
The testator had a wife and 5 children. For management of certain properties, he executed powers of attorney in favour of his brother-in-law on 30 April 1960 and 8 April 1961.
On 15 May 1983, the testator executed his last will bequeathing all the plaint schedule properties in favour of his sister and simultaneously cancelled the powers of attorney earlier executed in favour of his brother-in-law. The testator died on 30 November 1983 at the age of 69 due to a heart attack in Delhi.
Following his death, Appellant 1-wife of the testator approached the Tahsildar, Udupi seeking mutation of the properties in her favour. The Tahsildar issued notice under the Karnataka Land Revenue Act and subsequently mutated the properties in her name on 6 April 1984.
Thereafter, on 22 November 1990, the respondent instituted a suit before the Court of the Additional Civil Judge (Senior Division), Udupi seeking declaration of ownership of the properties on the basis of the will, permanent injunction, recovery of possession of certain schedule properties, mesne profits and compensation.
The appellant filed written statements alleging that the will was false, fabricated and created after the death of the testator by his brothers in collusion with one another. They denied the signatures of the testator and contended that the powers of attorney had never been revoked.
Procedural History
The trial court, by judgment and decree dated 16 December 2008, decreed the suit in favour of the plaintiff-respondent. It declared her owner of the plaint schedule properties under the will and directed delivery of possession of schedule Items 4 to 12. It also ordered an enquiry into mesne profits under Order 20 Rule 12, Civil Procedure Code, 1908 (CPC).
The trial court relied heavily upon the evidence of PW 2, one of the attesting witnesses to the will. He categorically stated that the will had been executed in his presence and that the signatures on the document belonged to the testator. The Court noted that despite making allegations of fraud and fabrication, none of the appellants entered the witness box. It compared the admitted signatures appearing on the earlier powers of attorney with the signatures on the will and concluded that both sets of signatures were made by the same person.
However, the trial court declined to grant permanent injunction on the ground that no reliable evidence or eyewitness testimony had been produced regarding the alleged acts of interference.
The first appellate court dismissed the appeal and affirmed the trial court’s findings, holding that no interference with the trial court’s conclusions was warranted.
The Karnataka High Court dismissed the regular second appeal by judgment 15 November 2012, holding that although the points for determination framed by the first appellate court may not have strictly conformed to Order 41 Rule 31 CPC, detailed reasoning had nonetheless been furnished on every issue canvassed before it. Hence, the judgment could not be set aside merely on technical grounds.
The High Court further observed that the will itself contained recitals explaining that the testator had already provided “enough and more” to his wife and children residing in Bombay. Despite this, the appellants never entered the witness box to furnish details of any properties allegedly given to them. The testimony of the attesting witness was not seriously challenged. Therefore, the High Court held that no substantial question of law arose for consideration.
Issue for Determination
Whether there existed sufficient grounds to interfere with the concurrent findings of fact recorded by all courts upholding the validity of the will?
Analysis
Principles Governing Validity and Execution of Will
The Court referred to Section 68, Evidence Act, 1872 concerning proof of documents required by law to be attested.
The Court referred extensively to precedents including H. Venkatachala Iyengar v. B.N. Thimmajamma, 1958 SCC OnLine SC 31; Bhagwan Kaur v. Kartar Kaur, (1994) 5 SCC 135; Janki Narayan Bhoir v. Narayan Namdeo Kadam, (2003) 2 SCC 91; Yumnam Ongbi Tampha Ibema Devi v. Yumnam Joykumar Singh, (2009) 4 SCC 780 and Shivakumar v. Sharanabasappa, (2021) 11 SCC 277 and summarised settled principles governing proof of wills, including the requirement of execution by the testator, attestation by 2 witnesses, examination of at least one attesting witness, removal of suspicious circumstances, and proof to the satisfaction of a prudent judicial mind rather than mathematical certainty.
Validity of the Will
Applying the settled principles, the Court held that the will had been voluntarily executed by the testator while in a sound disposing state of mind. The execution stood duly proved through the testimony of PW 2, the attesting witness, who specifically deposed that the will was signed in his presence and that both signatures were affixed in the presence of each other.
Claim of Title Based on Will
The Court rejected the appellants’ argument concerning delay in production of the will. It noted that the plaintiff had already made a representation before the Tahsildar in February 1984 disclosing execution of the will. Therefore, the allegation of unexplained delay was unsustainable.
Relying on Balwant Singh v. Daulat Singh, (1997) 7 SCC 137, the Court reiterated that mutation entries do not confer title and exist merely for fiscal purposes. Further on the question of non-registration, the Court referred to Ishwardeo Narain Singh v. Kamta Devi, (1953) 1 SCC 295, wherein it was held that registration of a will is not mandatory and non-registration does not affect its genuineness.
Suspicious Circumstances and Exclusion of Natural Heirs
The Court referred to Rabindra Nath Mukherjee v. Panchanan Banerjee, (1995) 4 SCC 459, where it was held that “mere deprivation of natural heirs, by itself, may not amount to a suspicious circumstance because the whole idea behind the execution of a Will is to interfere with the normal line of succession” and Ram Piari v. Bhagwant, (1990) 3 SCC 364, wherein it was held that “prudence requires reason for denying the benefit of inheritance to natural heirs and an absence of it, though not invalidating the Will in all cases, shrouds the disposition with suspicious as it does not give inking to the mind of the testator to enable the Court to judge that disposition was a voluntary act”. The Court further referred to Indu Bala Bose v. Manindra Chandra Bose, (1982) 1 SCC 20, wherein it was explained that suspicious circumstances must be genuine and not merely based on conjecture.
The Court held that “a testator is legally entitled to dispose of his property according to his own wishes, and unless the exclusion is accompanied by suspicious circumstances affecting the genuineness or due execution of a Will, such exclusion alone does not render a Will invalid”.
Considering the will as a whole, the Court observed that the testator had expressly recorded that he had already sufficiently provided for his wife and children. Therefore, their exclusion from the bequest did not render the will suspicious.
Compliance with Order 41 Rule 31 CPC
The Court rejected the argument regarding non-compliance with Order 41 Rule 31 CPC. It referred to the decision in G. Amalorpavam v. R.C. Diocese of Madurai, (2006) 3 SCC 224 and held that “mere non-compliance with Order 41 Rule 31 CPC may not vitiate the judgment and make it wholly void and may be ignored if there has been substantial compliance with it and the rule should not be interpreted technically to compromise substantial justice”.
The Court held that the first appellate court had meaningfully scrutinised the evidence and therefore the judgment did not suffer from any illegality merely because the points for determination were framed in general terms.
Evidentiary Value of Affidavits
The Court rejected the reliance placed by the appellants on affidavits allegedly denying execution of the will. Referring to Ayaaubkhan Noorkhan Pathan v. State of Maharashtra, (2013) 4 SCC 465, wherein it was held that an affidavit is not evidence within the meaning of Section 3, Evidence Act unless tested through cross-examination.
The Court also found it significant that the affidavits had been filed even before the written statement, despite no notice having been issued by the Court. Consequently, such affidavits could not be relied upon.
Decision
The Court held that all courts below had concurrently and correctly upheld the validity of the will after proper appreciation of evidence. No suspicious circumstances or legal infirmity were established warranting interference under Article 136 of the Constitution.
Accordingly, the Court dismissed appeal and affirmed the impugned judgment of the High Court.
Also Read: Agreement to Sell, Power of Attorney and Will: Supreme Court Reiterates Limits on Transfer of Title
[Parvathi Nairthi v. Laxmi Nairthy, 2026 SCC OnLine SC 911, decided on 21-5-2026]
*Judgment by Justice Vijay Bishnoi
Advocates who appeared in this case:
Mrs. Bina Gupta, AOR, Counsel for the Appellants
Mr. Vinay Navare, Sr. Adv., Ms. Madhusmita Bora, AOR, Mr. Pawan Kishore Singh, Adv., Mr. Dipankar Singh, Adv., Ms. Pavithra V., Adv., Counsel for the Respondents
