Case BriefsSupreme Court

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.”

Brief Background

  • 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by Jessie Jayalakshmi in favour of the Respondent No.2 (minor son of Respondent No.1) and claimed that Exhibit P4 has been replaced by Exhibit D1.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

Case BriefsSupreme Court

Supreme Court: Explaining the requirement under Section 69 of the Evidence Act pertinent to Section 68 of the Evidence Act that the attestation by both the witnesses is to be proved by examining at least one attesting witness, the bench of SK Kaul and KM Joseph, JJ has held if the signature of the person executing the document is proved to be in his handwriting, then attestation of one attesting witness is to be proved to be in his handwriting.

The Court was deciding the following questions:

  • Is it still the requirement of law when both the attesting witnesses are dead that: under Section 69 of the Evidence Act, the attestation as required under Section 63 of the Indian Succession Act, viz., attestation by the two witnesses has to be proved?
  • Or Is it sufficient to prove that the attestation of at least one attesting witness is in his handwriting, which is the literal command of Section 69 of the Evidence Act apart from proving the latter limb?

Writing a detailed judgment running into over 270 pages, the Court said that in a case covered under Section 69 of the Evidence Act, the requirement pertinent to Section 68 of the Evidence Act that the attestation by both the witnesses is to be proved by examining at least one attesting witness, is dispensed with. It explained

“It may be that the proof given by the attesting witness, within the meaning of Section 69 of the Evidence Act, may contain evidence relating to the attestation by the other attesting witness but that is not the same thing as stating it to be the legal requirement under the Section to be that attestation by both the witnesses is to be proved in a case covered by Section 69 of the Evidence Act.”

In short, the Court held that, in a case covered under Section 69 of the Evidence Act, what is to be proved as far as the attesting witness is concerned, is, that the attestation of one of the attesting witness is in his handwriting. The language of the Section is clear and unambiguous. Section 68 of the Evidence Act, as interpreted by this Court, contemplates attestation of both attesting witnesses to be proved. But that is not the requirement in Section 69 of the Evidence Act.

The Court further said that Section 69 of the Evidence Act manifests a departure from the requirement embodied in Section 68 of the Evidence Act. In the case of a Will, which is required to be executed in the mode provided in Section 63 of the Indian Succession Act, when there is an attesting witness available, the Will is to be proved by examining him. He must not only prove that the attestation was done by him but he must also prove the attestation by the other attesting witness.

“This is, no doubt, subject to the situation which is contemplated in Section 71 of the Evidence Act which allows other evidence to be adduced in proof of the Will among other documents where the attesting witness denies or does not recollect the execution of the Will or the other document. In other words, the fate of the transferee or a legatee under a document, which is required by law to be attested, is not placed at the mercy of the attesting witness and the law enables proof to be effected of the document despite denial of the execution of the document by the attesting witness.”

It was further added:

  • in a case, where there is evidence which appears to conform to the requirement under Section 69, the Court is not relieved of its burden to apply its mind to the evidence and find whether the requirements of Section 69 are proved. The reliability of the evidence or the credibility of the witnesses is a matter for the Court to still ponder over.
  • making a totally incorrect statement in a will arouses suspicion. This is on the principle that the testator would not make an incorrect statement when he makes a will. If he makes a rank incorrect statement the inference is that he would not have made that will.
  • the requirements under Section 33 of the Evidence Act are not to be confused with the ingredients to be fulfilled even in a case under Section 11 of the CPC. The applicability of Section 33 of the Evidence Act also does not depend upon the nature of the decision which is rendered in the earlier proceeding.
  • while the burden to prove the will and to satisfy the conscience of the court that there are no suspicious circumstances or if there are any to explain them is on the propounder of the will, the burden to prove that the will is procured by coercion, undue influence or fraud is on the respondents who have alleged the same.

On the limits on power of a Hindu to execute a will and effect of Section 30 of the Hindu Succession Act, 1956 thereon

The Court explained that under Mitkashara Law, a Hindu could bequeath his separate and self-acquired properties even prior to the Hindu Succession Act being enacted. A Hindu being a member of the joint family could also possess his separate property which are of various kinds. They include obstructed heritage which is property inherited by a Hindu from another who is a person other than his father, father’s father or great grandfather, Government grant, income of separate property, all acquisitions by means of learning. A Hindu could execute a will bequeathing his separate and selfacquired property. As regards his authority to execute a will concerning his interest in the property of the joint family of which he is a coparcener, the law did not permit such an exercise.

The Court further stated n the case of property of the joint family as long as the property is joint, the right of the coparcener can be described as an interest.

“as long as the family remains joint, a coparcener or even a person who is entitled to share when there is a partition cannot predicate or describe his right in terms of his share. The share remains shrouded and emerges only with division in title or status in the joint family. Once there is a division the share of a coparcener is laid bare.”

Further, after the passage of the Hindu Succession Act even without there being a partition in the sense of a declaration communicated by one coparcener to another to bring about the division it is open to a Hindu to bequeath his interest in the joint family.

“In other words, the words “interest in coparcenary property” can be predicated only when there is a joint family which is in tact in status and not when there is a partition in the sense of there being a disruption in status in the family. Thus, the right of a Hindu in the coparcenary joint family is an interest. Upon disruption or division, it assumes the form of a definite share. When there is a metes and bounds partition then the share translates into absolute rights qua specific properties.”

On the impact of the Hindu Women’s Right to Property Act, 1937

The Court explained that Section 3(2) of the 1937 Act contemplates the situation, where, at the time when the Hindu dies after the enactment of the Act in 1937 (it came into force on 14th April, 1937 and it was repealed by Section 31 of the Hindu Succession Act 1956), in order that the widow acquires the same interest as her husband had under Section 3(2), the Hindu must die when he is not separated from the joint property. If a Hindu, when he dies, is separated and, at least, qua him, there is no Hindu Joint Family, it would not be a case where Section 3(2) would apply.

“… a Hindu when he dies intestate he may have an interest in a Hindu joint family and at the same time also have separate properties. Then qua his separate properties, Section 3(1) would apply whereas in regard to his interest in the joint family, Section 3(2) would govern. Section 3(1) cannot apply as the properties in dispute were not his separate properties.”

[V. Kalyanaswamy (D) v. L. Bakthavatsalam (D), 2020 SCC OnLine SC 584 , decided on 17.07.2020]

Case BriefsHigh Courts

Bombay High Court: Sandeep K. Shinde, J. examined the scope of jurisdiction to be exercised by the Probate Court, and allowed an appeal filed against the order of the Probate Court whereby the appellant’s application under Section 276 of the Indian Succession Act for probate of will of her deceased husband was rejected.

Aggrieved by the said rejection, the appellant preferred the present first appeal. T.S. Ingale, counsel for the appellant submitted that in the proceedings for grant of probate with a will annexed, the Court exercising testamentary jurisdiction is not concerned with title to the property.

Having considered the facts of the case and the settled law as regards the scope of jurisdiction of the Probate Court, the High Court was of the view: “the learned Judge while deciding the application for probate has exceeded his jurisdiction by enquiring into the issues of title in the probate proceedings. The learned Judge while deciding the application for probate ought not to have made enquiry about the  competency of the deceased to bequeath the pensionary benefits to the appellant and ought to have only enquired into, whether the appellant has proved execution of the will  and the deceased was in sound state of mind at the time of executing the will.”

It was also stated that the appellant had proved the genuineness of the will and its due execution. In such circumstances, the Court was of the view that the Probate Application filed by the appellant was required to be allowed. Order was made accordingly, and the impugned order was set aside. [Kamal Mahaling Patil v. Indubhai Mahaling Patil, 2019 SCC OnLine Bom 954, decided on 26-04-2019]