SC: Will drawn up in English is valid, even if the testator is ignorant of the language.


Court :
Supreme Court of India

Brief :
The Supreme Court bench comprising of Justices Ranjan Gogoi and R.K. Agrawal held that a Will drawn up in English is valid, even if the person bequeathing his/her property was ignorant of the language, provided the content was explained to the testator. "The lack of knowledge of English even if can be attributed to the testator would not fundamentally alter the situation inasmuch as before registration of the Will the contents thereof can be understood to have been explained to the testator or ascertained from her by the Sub Registrar, PW-4, who had deposed that such a practice is normally adhered to."

Citation :
LEELA RAJAGOPAL & ORS. … APPELLANT (S) VERSUS KAMALA MENON COCHARAN & ORS. … RESPONDENT (S)

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9282 OF 2010
REPORTABLE
LEELA RAJAGOPAL & ORS.      … APPELLANT (S)
VERSUS
KAMALA MENON COCHARAN & ORS. … RESPONDENT (S)
WITH
CIVIL APPEAL NO. 9286 OF 2010
CIVIL APPEAL NO. 7004 OF 2012
RANJAN GOGOI, J.
J U D G M E N T
1.  All  the  three  appeals  being  directed  against  the 
common  judgment  and  order  of  the  High  Court  dated 
18.08.2009 were heard analogously and are being disposed of 
by this order.
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2. In the present  appeals,  which challenge a judgment  of 
reversal  passed by  a  Division  Bench  of  the  High  Court  of 
Madras, determination of what is essentially a question of fact 
confronts  this  Court  exercising its  jurisdiction under  Article 
136 of the Constitution.  The said question is with regard to 
the validity and legality of a Will dated 11.1.1982 executed by 
one K.P. Janaki Amma, the mother of the appellants and the 
first respondent.  The learned Trial  Judge by his order dated 
23.01.2001 dismissed the probate proceedings instituted by 
the first respondent (later converted into a Suit being T.O.S. 
No.  16 of  1994) by holding that  the execution of  the Will 
dated  11.1.1982  is  surrounded  by  a  host  of  suspicious 
circumstances rendering the same legally unacceptable.  The 
aforesaid view of  the learned Trial  Judge of  the High Court 
having been overturned by the Division Bench of  the High 
Court  by  impugned  order  dated  18.08.2009,  the  present 
appeals have been filed.
3. We have heard Mr.  Krishnan Venugopal  and Mr.  Dhruv 
Mehta, learned senior counsels as well as Mr. T. Harish Kumar 
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learned counsel  for  the  appellants  and Mr.  Vijay  Hansaria, 
learned senior counsel appearing for respondent No. 1.
4. Testator Late Janaki Amma had initially executed a Will 
dated 28.12.1981 bequeathing house property bearing No. 8, 
Malony  Road,  T.  Nagar,  Madras-17  in  favour  of  the  first 
respondent  Kamala Menon Cochran and her grand-daughter 
Geetha (daughter of her predeceased daughter Leela).   The 
said Will, inter alia, contained a recital that the testator had 4 
sons.   In  the  Will  dated  28.12.1981  the  testator  had 
acknowledged that her sons are all well settled in life and had 
properties purchased in their  names during the life time of 
their  father.   The testator  had further  stated that  she had 
suffered extreme bereavement on the death of her daughter 
Leela which occurred on 02.02.1975 and therefore out of the 
deep attachment for her grand-daughter, Geetha, and also as 
her second daughter K.P. Kamala Menon i.e. respondent No. 1 
aged 46 years who is a Principal  in a College and a spinster 
she is bequeathing the house property in favour of her grand-
daughter and her daughter to the exclusion of her sons.  The 
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said  Will  dated  28.12.1981  was  superseded/revoked  by  a 
subsequent  Will  dated  11.1.1982  which  contained  similar 
recitals as in the first Will  dated 28.12.1981 except  for  the 
fact that  instead of  4 sons the testator mentioned that  she 
had 5 living sons.   After  the death  of  Janaki  Amma which 
occurred on 27.04.1991 the respondent No. 1 had instituted a 
probate proceedings which was later converted into a suit, as 
the Will was disputed by the sons of the deceased.   
5. The appellants who were the defendants in the suit and 
respondents  before the High Court  had contested the legal 
validity of the Will dated 11.1.1982 by asserting that the same 
was not  a valid instrument  of  conveyance executed on the 
free  volition  of  the  testator;  rather  it  was  dictated  at  the 
instance of the first respondent-daughter who had exercised 
undue influence and coercion on the testator.  To substantiate 
the contentions advanced, the contesting defendants had led 
evidence to show that the Will was executed in circumstances 
which give rise to serious doubts, with regard to its voluntary 
execution by the testator.  
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6. The learned Trial Court on a consideration of the cases of 
the parties and the evidence and materials adduced took note 
of  the following circumstances surrounding the execution of 
the Will : 
(i) No specific reason was disclosed as to why 
the sons i.e. the present appellants had been 
excluded from the Will;
(ii) At  the  time  of  execution  of  the  Will  the
respondent  No.  1  had  come  down  from
Tirupathi where she was working as a college
teacher/Principal  to Madras and was staying
with the mother i.e. the testator;
(iii) Only a fortnight  earlier  to the execution of 
the Will  i.e.  on 10.12.1981 the testator  had 
written a letter  (Ex.  P8) to one of  her  sons 
Thangamani  (Predecessor-in-interest  of 
appellants  in  C.A.  No.  9282  of  2010) 
expressing  her  intention  to  partition  the 
house property, which was the subject matter 
of Will, equally among all the children;
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(iv) Non-production  of  the  original  copy  of  the 
Will;
(v) The  discrepancy  in  the  evidence  of  the 
witnesses of  the plaintiff  with regard to the 
place of execution of the Will; and
(vi) The  prominent  part  played  by  the  plaintiff 
(respondent No. 1 herein) in the registration 
of the Will.
These  circumstances,  according  to  the  learned  Trial 
Court, were suspicious enough to justify a conclusion that the 
Will ought not to be accepted as a valid instrument executed 
on the free will and volition of the testator.  
7. In  appeal,  the  High  Court,  on  consideration  of  the 
grounds and reasons which had persuaded the learned Trial 
Court to take the above view,  thought it proper to disagree 
with the same and reverse the consequential findings.  It may 
be noticed, at this stage, that in its very elaborate order the 
High  Court  had  gone  into  each  of  the  circumstances 
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mentioned above; the evidence in support thereof as adduced 
by the parties and the arguments advanced before reversing 
the findings of the learned Trial Court.  
8. Learned  counsels  for  the  appellants,  in  all  the  three 
appeals  before  us,  submitted  that  between  11.1.1982  i.e. 
alleged date of execution of the Will and 27.4.1991 i.e. date of 
death of the testator, the beneficiaries under the Will had not 
informed  anybody  about  the  existence  of  the  Will  which 
according to the learned counsel  is unnatural.   Pointing out 
the evidence with regard to the place of execution of the Will, 
learned counsel  have contended that  there is  an apparent 
inconsistency  in  this  regard  inasmuch  as  while  in  the 
verification  submitted  alongwith  the  probate  petition  as 
required under Sections 281 and 282 of the Indian Succession 
Act, 1925 PW-3 had claimed that the Will was executed in the 
house of the testator, in her evidence, PW-3, had stated that 
the same was  executed in the office of  the Sub-Registrar. 
However, PW-4, the Sub-Registrar who was examined did not 
categorically  depose  about  the  place  where  the  Will  was 
executed.  Reference has been made by the learned counsels 
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for  the  appellants  to  other  suspicious  circumstances, 
enumerated  hereinabove,  to  contend  that  the  same  are 
sufficient  and  adequate  to  justify  rejection  of  the  Will  in 
question.  Specifically, it was argued that no explanation has 
been offered for non-production of  the original  Will  and the 
High Court has accepted the story of loss of the Will  on the 
mere statement of the first respondent.   On the said basis it 
is contended that the first respondent, as the Plaintiff, could 
not have led secondary evidence in support of the Will in the 
absence  of  clear  and  convincing  proof  of  the  loss  of  the 
original Will.  Bringing in a different set of attesting witnesses 
in place of the witnesses who had attested the execution of 
the first  Will  dated 28.12.1981; the non-examination of  the 
attesting witness Seetha Padmanabhan and the examination 
of  the  second  witness  (PW-3)  Jaya  Lakshmi  who  was  a 
colleague of  the plaintiff  are other circumstances which the 
learned  counsel  for  the  appellants  contends  to  be  highly 
suspicious.  The absence of any evidence to show the lack of 
cordial relationship between the testator and her sons and the 
fact that  defendant  No.  4 i.e.  one of  the sons was actually 
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looking after the mother has also been stressed upon to point 
out that there was no reason to exclude the sons under the 
Will.  In fact, learned counsels for the appellants have pointed 
out that PW-2 and   PW-3 had clearly and categorically stated 
that the relationship between the testator and her sons was 
good.   It  is further argued that  the letter dated 10.12.1981 
(Ex.  P8)  of  the mother  to  one of  the sons,  properly  read, 
indicates a very cordial  relationship and the purport thereof 
has  been  thoroughly  misinterpreted  by  the  High  Court  to 
come to the impugned findings and conclusions.  The lack of 
knowledge of English on the part of the testator has also been 
cited as another circumstance to justify its rejection.  Reliance 
has been placed on behalf of the appellants on the decision of 
this  Court  in  H.  Venkatachala  Iyengar   Vs.  B.N. 
Thimmajamma and Others
1
  as well  as on a more recent 
pronouncement  in  Bharpur  Singh  and  Others   Vs. 
Shamsher Singh
2
 to contend that active participation of the 
first respondent in execution and registration of the Will ought 
to be viewed by us as raising serious doubts with regard to 
1
2
 1959 Supp (1) SCR 426
 2009(3) SCC 687
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the voluntary execution of the Will by the testator.   Two other 
decisions of this Court in Rani Pnrnima Debi and Another 
Vs.  Kumar  Khagendra Narayan Deb and Another
Apoline D’souza  Vs. John D’souza
4
3
 and 
 have also been placed 
to contend that the absence of any evidence to show that the 
Will  was read over and explained to the testator,  in view of 
her  lack  of  knowledge  of  English,  would  be  crucial  for 
determination of the authenticity of the Will in question.
9. Opposing  the  arguments  advanced  on  behalf  of  the 
appellants,  Shri  Vijay  Hansaria,  learned  senior  counsel 
appearing  for  respondent  No.  1  has  argued  that  the 
acceptance or  rejection of  the Will,  in the ultimate analysis 
would depend on the satisfaction of the judicial conscience of 
the Court with regard to its due execution.  Shri Hansaria has 
submitted  that  no  single  circumstance  would  be 
determinative of the question and it is the cumulative effect 
thereof which would be vital to the adjudication required to be 
made  by  the  Court.   The  mere  participation  of  the  first 
respondent in the execution and registration of the Will; her 
3
4
 (1962) 3 SCR 195
 2007 (7) SCC 225
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presence in Madras at the time of execution of the Will will in 
no way affect the validity thereof, it is contended.  Insofar as 
the  discrepancy  in  the  place  of  execution  of  the  Will  is 
concerned, Shri Hansaria has pointed out that the verification 
filed alongwith the application for probate was in the standard 
form prescribed by the Original Side Rules of the High Court of 
Judicature at Madras (Form No. 55 which mentions the place 
of execution as the House of …….). Insofar as the loss of the 
original Will is concerned it is submitted that the same was in 
custody of the testator and was found to be missing only after 
her  death.   It  is  in  these  circumstances  that  the  probate 
proceedings were instituted on the basis of the certified copy 
of  the Will  which is authorised under  the provisions of  the 
Indian Succession Act.   Insofar  as the issue with regard to 
knowledge of English of the testator is concerned, apart from 
pointing out the relevant part of the evidence of the witnesses 
to show that the testator could read and understand English, 
it is argued that PW-4 (Sub-Registrar) had deposed that in all  
cases of registration the testator is asked whether he/she is 
aware of the contents of the Will.  Shri Hansaria has cited the 
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decision  of  this  Court  in  Pentakota  Satyanarayana and 
Others   Vs.  Pentakota  Seetharatnam and  Others
contend that  mere active participation in the registration of 
the Will by itself would not be a vitiating factor.  Reliance has 
also been placed on two decisions of this Court in  Mahesh 
Kumar  (Dead)  by Lrs.   Vs.  Vinod Kumar  and Others
and  Ved Mitra Verma  Vs.  Dharam Deo Verma
that  mere  exclusion of  the other  heirs  will  not  vitiate  the 
disposition made by a Will.
10. A Will may have certain features and may have been 
executed in certain circumstances which may appear to be 
somewhat unnatural.  Such unusual features appearing in a 
Will  or  the  unnatural  circumstances  surrounding  its 
execution will  definitely justify a close scrutiny before the 
same can be accepted.  It is the overall assessment of the 
Court on the basis of such scrutiny; the cumulative effect of 
the unusual features and circumstances which would weigh 
with the Court in the determination required to be made by 
5
6
7
 2005 (8) SCC 67
 2012 (4) SCC 387
 2014 (9) SCALE 219
7
5
 to 
 to show 
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it.   The judicial  verdict,  in the last  resort,  will  be on the 
basis  of  a consideration of  all  the unusual  features  and 
suspicious  circumstances  put  together  and  not  on  the 
impact of any single feature that may be found in a Will or 
a singular circumstance that may appear from the process 
leading to its execution or registration.  This, is the essence 
of the repeated pronouncements made by this Court on the 
subject including the decisions referred to and relied upon 
before us.  
11. In  the  present  case,  a  close  reading  of  the  Will 
indicates its clear language,  and its unambiguous purport 
and effect.  The mind of the testator is clearly discernible 
and the reasons for exclusion of the sons is apparent from 
the  Will  itself.   Insofar  as  the  place  of  execution  is 
concerned,  the inconsistency appearing in the verification 
filed alongwith the application for probate by PW-3 and the 
oral  evidence  of  the  said  witness  tendered  in  Court  is 
capable of being understood in the light of the fact that the 
verification is in a standard form (Form No. 55) prescribed 
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by the Madras High Court on the Original Side, as already 
noticed.   Besides,  in  the  facts  of  the  present  case  the 
participation of  the first respondent  in the execution and 
registration of the Will cannot be said to be a circumstance 
that would warrant an adverse conclusion. The conduct of 
the first respondent in summoning her friend (PW-3) to be 
an attesting witness and in taking the testator to the office 
of the Sub Registrar should, again, not warrant any adverse 
conclusion. It also cannot escape notice that the Will dated 
11.1.1982 is identical  with the contents of the earlier Will 
dated 28.12.1981.   Insofar  as the execution of  the Will 
dated  28.12.1981  and  its  registration  is  concerned  no 
active  participation  has  been  attributed  to  the  first 
respondent.  The change of the attesting witnesses and the 
non-examination of Seetha Padmanabhan who had attested 
the  second  Will  dated  11.1.1982  has  been  sufficiently 
explained.
12. The  lack  of  knowledge  of  English  even  if  can  be 
attributed to the testator would not fundamentally alter the 
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situation inasmuch as  before registration of  the Will  the 
contents thereof can be understood to have been explained 
to  the  testator  or  ascertained  from  her  by  the  Sub 
Registrar,  PW-4, who had deposed that such a practice is 
normally adhered to.   The non-production of  the original 
Will  and  reliance  on  the  certified  copy  thereof  is  a 
circumstance which has been reasonably explained by the 
first  respondent  (plaintiff).   The  original  Will,  after  its 
execution on 11.1.1982, was in the custody of the testator 
and it is only on the day or her death i.e. 27.4.1991 that the 
first  respondent  (plaintiff)  could  find  that  the  Will  was 
missing from the envelope marked ‘KPP Will’.   The stand of 
the  plaintiff  that  the  original  Will  was  lost  while  in  the 
custody of her mother and her knowledge of such loss on 
the day of her mother’s death cannot be disbelieved merely 
because no report  in this  regard was  lodged before the 
police.
13. All  the unusual  and allegedly suspicious circumstances 
being capable of  being understood in the manner indicated 
above, we cannot find any fault with the conclusions reached 
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by the High Court while reversing the judgment of the learned 
Trial Court.
14. Before parting we would like to observe that  the very 
fact  that  an appeal  to this Court  can be lodged only upon 
grant  of  special  leave  to appeal  would indicate  the highly 
circumscribed  nature  of  the  jurisdiction  of  this  Court.   In 
contrast to a statutory appeal, an appeal lodged upon grant of 
special leave pursuant to a provision of the Constitution would 
call for highly economic exercise of the power which  though 
wide to  strike at  injustice wherever  it  occurs  must  display 
highly judicious application thereof.   Determination of  facts 
made by the High Court  sitting as a first appellate court  or 
even while concurring as a second appellate court would not 
be reopened unless the same give rise to questions of  law 
that require a serious debate or discloses wholly unacceptable 
conclusions of  fact  which plainly demonstrate a travesty of 
justice.  Appreciation or  re-appreciation   of  evidence must 
come to a halt at some stage of the judicial proceedings and 
cannot  percolate  to  the  constitutional  court  exercising 
jurisdiction under Article 136.
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15. We, accordingly, dismiss these appeals affirm the order 
dated 18.08.2009 passed by the Division Bench of  the High 
Court in Original  Side Appeal  No.  185 of 2001.  However,  in 
the facts and circumstances of the case, we make no order as 
to cost.
NEW DELHI,
SEPTEMBER 08, 2014.
 
        ...………….…………………J.
                       [RANJAN GOGOI]
   ..….…....……………………J.
                       [R.K. AGRAWAL]
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Vassu Arora
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