Supreme Court: Holding that a testamentary court is not a court of suspicion but that of conscience, the bench of Sanjay Kishan Kaul and MM Sundresh*, JJ has set aside the High Court’s order in a suit for execution of Will wherein the Court had “unnecessarily created a suspicion when there is none”, merely because it thought that was no logic in the exclusion of the sister of the beneficiary of the Will. Neither the beneficiary nor his siblings had raised any issues regarding the validity of the Will.
Asking the appellate Courts to consider the relevant materials instead of adopting an ethical reasoning, the Court explained,
“A mere exclusion of either brother or sister per se would not create a suspicion unless it is surrounded by other circumstances creating an inference. In a case where a testatrix is accompanied by the sister of the beneficiary of the Will and the said document is attested by the brother, there is no room for any suspicion when both of them have not raised any issue.”
- The Suit Property originally belonged to one Jessie Jayalakshmi, the maternal aunt of the Appellant/Plaintiff, who, being a spinster, adopted the appellant as her son and the appellant took care of her when she suffered an attack of paralysis.
- The appellant had two siblings, a brother and a sister.
- A registered Will under Exhibit P4 was executed by Jessie Jayalakshmi on 04.09.1985 in favour of the Appellant. The said Will was attested by the brother of the Appellant.
- Jessie Jayalakshmi was also brought to the office of the Sub-Registrar by none other than Kantha Lakshmi, the sister of the appellant.
- The relationship between Kantha Lakshmi and her husband, Respondent No. 1 got strained and they obtained a divorce decree on 26.03.1988.
- Respondent No. 1, while acknowledging the factum of execution of Exhibit P4, introduced Exhibit D1, an unregistered Will, allegedly executed by Jessie Jayalakshmi in favour of the Respondent No.2 (minor son of Respondent No.1) and claimed that Exhibit P4 has been replaced by Exhibit D1.
- Trial Court found Exhibit D1 to be forged.
- The High Court reaffirmed the findings of the Trial Court with respect to the genuineness of Exhibit D1. However, in the absence of any specific pleading coupled with an admission of the execution of Exhibit P4, the High Court suspected that there was no logic in the exclusion of the sister of the Appellant and concluded that there was no basis to leave her out of the Will.
The Supreme Court noticed that,
- The High Court did not give any reasoning whatsoever for differing with the views expressed by the Trial Court.
- The High Court has also committed an error in misconstruing the presence of the sister of the Appellant, Kantha Lakshmi. Her presence in fact adds strength to Exhibit P4 having been executed properly. It is the specific case of the Appellant and his siblings that the deceased, Ms. Jessie Jayalakshmi wanted the property to be given in his favor.
“Their participation coupled with the subsequent conduct would be sufficient enough to uphold Exhibit P4. When there are no suspicious circumstances surrounding the execution of Exhibit P4, there is no need to remove.”
- The High Court after giving adequate reasoning for disbelieving Exhibit D1 that it is forged and fabricated should have kept in mind the conduct and attitude of the Respondent No.1.
“The factors such as the fabrication and severance of relationship between himself and his wife in pursuance of the decree for divorce, coupled with the status while squatting over the Suit Property being the relevant materials, ought to have weighed in its mind instead of questioning Exhibit P4. Had that been done, perhaps it would have come to conclusion that such an exercise is not warranted at the hands of the. Respondents, who not only accepted Exhibit P4 but it did not even question it; except by contending that it is replaced by Exhibit D1.”
Noticing that both the Courts have given adequate reasoning for not believing Exhibit D1, the Court concluded that
“In the absence of pleadings to the contrary, followed by issues framed, it is not open to the Appellate Court to embark upon an exercise which is not required and also not permitted under the law.”
[V. Prabhakara v. Basavaraj K., 2021 SCC OnLine SC 896, decided on 07.10.2021]
*Judgment by: Justice MM Sundresh
For appellant: Advocate Kiran Suri