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Will Cannot be Suspected merely Because Beneficiary helped the Testator in preparing the Will

Raj Kumar Makkad ,
  05 June 2020       Share Bookmark

Court :
Supreme Court of India
Brief :
The Supreme Court was dealing with an appeal by special leave against the judgment whereby the Delhi High Court had dismissed the appeal preferred by the present appellant and had affirmed the judgment passed by the Additional District Judge in a Probate Case resulting in rejection of the appellant’s prayer for grant of probate in relation to the Will executed by the mother of the contesting parties.
Citation :
Civil Appeal no. 3688/2017 decided on

The immovable property in question in New Delhi was originally of the ownership of father of the contesting parties, husband of testatrix. The ground floor of this property was given in gift to the appellant, whereas the first floor came to the testatrix by way of the Will of her husband, upon his death. The appellant, married daughter of the testatrix, was living in a different locality. Son of the testatrix, who was serving in Army, was posted in Shimla. The testatrix was residing at the said ground floor of the building in question. The respondent No.1, the widowed daughter of the testatrix, was residing at the 1st floor of the same building with her own daughter and was taking care of the testatrix who was a cancer patient. The appellant had played an active role in the process of making the Will which excluded the other children of testatrix.

Trial Court and High Court’s decision:
The prayer of the appellant for grant of probate in relation to the Will in question had been declined concurrently by the Trial Court and by the High Court after finding several unexplained suspicious circumstances surrounding the Will in question. 

The Trial Court and the High Court concurrently found the following unexplained suspicious circumstances: 

  1. that appellant, the major beneficiary, played an active role in execution of the Will in question and attempted to conceal this fact before the Court; 
  2. that there had not been any plausible reason for non-inclusion of the only son and other daughter of the testatrix in the process of execution of the Will and for excluding them from the major part of the estate in question; 
  3. that there was no clarity about the construction supposed to be carried out by the appellant;
  4. that the manner of writing and execution of the Will with technical and legal words was highly doubtful; and 
  5. that the attesting witnesses were unreliable and there were contradictions in the statements of the witnesses. 

These factors made the Trial Court and the High Court feel dissatisfied as to whether the testatrix duly executed the Will in question after understanding its contents. 

Aggrieved, the petitioner-appellant, who was the major beneficiary thereunder, filed an appeal in the Supreme Court. 

Supreme Court’s observations:
The Supreme Court acknowledged that the appellant has suggested that the parents had special affection towards her. However, even if this suggestion is taken on its face value, the bench found it difficult to assume that the alleged special affection towards one child should necessarily correspond to repugnance towards the other children by the same mother. The Court stated that even if the parents had special liking and affection towards the appellant, as could be argued with reference to the gift made by the father in her favour of the ground floor of the property in question, it would be too far stretched and unnatural to assume that by the reason of such special affection towards appellant, the mother drifted far away from the other children, including the widowed daughter who was residing on the upper floor of the same house and who was taking her care.

The top court took note of the following general principles:

  • Any irrelevant misdescription or error is not to operate against the Will; and approach has to be to give effect to a Will once it is found to have been executed in the sound state of mind by the testator while exercising his own free will. 
  • As per Section 81 of the Succession Act, extrinsic evidence is inadmissible in case of patent ambiguity or deficiency in the Will.
  • It is well settled that when the Will is surrounded by suspicious circumstances, the Court would expect that the legitimate suspicion should be removed before the document in question is accepted as the last Will of the testator. 
  • Any document propounded as a Will cannot be used as evidence unless at least one attesting witness has been examined for the purpose of proving its execution, if such witness is available and is capable of giving evidence as per the requirements of Section 68 of the Evidence Act.

The Supreme Court referred its landmark decision in H. Venkatachala Iyengar v. B.N. Thimmajamma (1958 Latest Caselaw 112 SC), in which the following important observations were made,

  • the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these questions: Has the testator signed the will? Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained?
  • The presence of suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, Courts would be reluctant to treat the document as the last will of the testator.
  • If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence.

The Court referred to its decision in Rani Purnima Debi v. Kumar Khagendra Narayan Deb (1961 Latest Caselaw 251 SC), in which it was observed that if the dispositions made in the will might appear to be unnatural, improbable or unfair in the light of relevant circumstances; or the will might otherwise indicate that the said dispositions might not be the result of the testator's free will and mind, even where there were no such pleas but the circumstances gave rise to doubts, it was for the propounder to satisfy the conscience of the Court.

However, the bench also took note of the Constitution Bench decision of the Supreme Court in the case of Shashi Kumar Banerjee and Ors. v. Subodh Kumar Banerjee and Ors., had observed that mere exclusion of the natural heirs or giving of lesser share to them, by itself, will not be considered to be a suspicious circumstance.

The Apex Court also relied on Leela Rajagopal and Ors. v. Kamala Menon Cocharan and Ors. (2014 Latest Caselaw 561 SC) wherein the Supreme Court expounded that ultimately, the judicial verdict in relation to a Will and suspicious circumstances shall be on the basis of holistic view of the matter with consideration of all the unusual features and suspicious circumstances put together and not on the impact of any single feature.

After traversing through its relevant decisions, the bench summarised the principles governing the adjudicatory process concerning proof of a Will as follows: – 

  1. “Ordinarily, a Will has to be proved like any other document; the test to be applied being the usual test of the satisfaction of the prudent mind. Alike the principles governing the proof of other documents, in the case of Will too, the proof with mathematical accuracy is not to be insisted upon. 
  2. Since as per Section 63 of the Succession Act, a Will is required to be attested, it cannot be used as evidence until at least one attesting witness has been called for the purpose of proving its execution, if there be an attesting witness alive and capable of giving evidence. 
  3. The unique feature of a Will is that it speaks from the death of the testator and, therefore, the maker thereof is not available for deposing about the circumstances in which the same was executed. This introduces an element of solemnity in the decision of the question as to whether the document propounded is the last Will of the testator. The initial onus, naturally, lies on the propounder but the same can be taken to have been primarily discharged on proof of the essential facts which go into the making of a Will. 
  4. The case in which the execution of the Will is surrounded by suspicious circumstances stands on a different footing. The presence of suspicious circumstances makes the onus heavier on the propounder and, therefore, in cases where the circumstances attendant upon the execution of the document give rise to suspicion, the propounder must remove all legitimate suspicions before the document can be accepted as the last Will of the testator. 
  5. If a person challenging the Will alleges fabrication or alleges fraud, undue influence, coercion et cetera in regard to the execution of the Will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the Will may give rise to the doubt or as to whether the Will had indeed been executed by the testator and/or as to whether the testator was acting of his own free will. In such eventuality, it is again a part of the initial onus of the propounder to remove all reasonable doubts in the matter. 
  6. A circumstance is “suspicious” when it is not normal or is ‘not normally expected in a normal situation or is not expected of a normal person’. As put by this Court, the suspicious features must be ‘real, germane and valid’ and not merely the ‘fantasy of the doubting mind.’ 65 
  7. As to whether any particular feature or a set of features qualify as “suspicious” would depend on the facts and circumstances of each case. A shaky or doubtful signature; a feeble or uncertain mind of the testator; an unfair disposition of property; an unjust exclusion of the legal heirs and particularly the dependants; an active or leading part in making of the Will by the beneficiary thereunder et cetera are some of the circumstances which may give rise to suspicion. The circumstances above-noted are only illustrative and by no means exhaustive because there could be any circumstance or set of circumstances which may give rise to legitimate suspicion about the execution of the Will. On the other hand, any of the circumstance qualifying as being suspicious could be legitimately explained by the propounder. However, such suspicion or suspicions cannot be removed by mere proof of sound and disposing state of mind of the testator and his signature coupled with the proof of attestation. 
  8. The test of satisfaction of the judicial conscience comes into operation when a document propounded as the Will of the testator is surrounded by suspicious circumstance/s. While applying such test, the Court would address itself to the solemn questions as to whether the testator had signed the Will while being aware of its contents and after understanding the nature and effect of the dispositions in the Will? 
  9. In the ultimate analysis, where the execution of a Will is shrouded in suspicion, it is a matter essentially of the judicial conscience of the Court and the party which sets up the Will has to offer cogent and convincing explanation of the suspicious circumstances surrounding the Will.”

Noting that probate proceeding is ultimately a matter of conscience of the Court, the Supreme Court stated that, “filing or non-filing of written statement or objections by any party pales into insignificance and is of no effect. Even then, the requirement of proof is not obviated. When the proceeding is solemn in nature like that for probate, which leads to judgment in rem, it is beyond the cavil that mere non-filing of caveat or opposition is not decisive of the matter.”

The Supreme Court observed that, 
“There is no doubt that any of the factors taken into account by the Trial Court and the High Court, by itself and standing alone, cannot operate against the validity of the propounded Will. That is to say that, the Will in question cannot be viewed with suspicion only because the appellant had played an active role in execution thereof though she is the major beneficiary; or only because the respondents were not included in the process of execution of the Will; or only because of unequal distribution of assets; or only because there is want of clarity about the construction to be carried out by the appellant; or only because one of the attesting witnesses being acquaintance of the appellant; or only because there is no evidence as to who drafted the printed part of the Will and the note for writing the opening and concluding passages by the testatrix in her own hand; or only because there is some discrepancy in the oral evidence led by the appellant; or only because of any other factor taken into account by the Courts or relied upon by the respondents.”

The Supreme Court further stated that, 
“The relevant consideration would be about the quality and nature of each of these factors and then, the cumulative effect and impact of all of them upon making of the Will with free agency of the testatrix. In other words, an individual factor may not be decisive but, if after taking all the factors together, conscience of the Court is not satisfied that the Will in question truly represents the last wish and propositions of the testator, the Will cannot get the approval of the Court; and, other way round, if on a holistic view of the matter, the Court feels satisfied that the document propounded as Will indeed signifies the last free wish and desire of the testator and is duly executed in accordance with law, the Will shall not be disapproved merely for one doubtful circumstance here or another factor there.”


Supreme Court held:
The bench stated that in the ultimate analysis, it is satisfied that the Will in question is surrounded by various suspicious circumstances which are material in nature and which have gone unexplained. The cumulative effect of these suspicious circumstances is that it cannot be said that the testatrix was aware of and understood the meaning, purport and effect of the contents of the Will in question. The appellant, while seeking probate, not only failed to remove and clear the aforesaid suspicious circumstances but even contributed her own part in lending more weight to each and every suspicious circumstance.

Therefore, it was held that the Will in question cannot be probated from any standpoint. The appeal was dismissed with costs of ₹50,000 payable by the appellant to the respondent No. 1 and respondent No. 2.

Bench: Justice A.M. Khanwilkar, Justice Dinesh Maheshwari
Case Title: Kavita Kanwar v. Mrs. Pamela Mehta & Ors.
Case Details: Civil Appeal No. 3688 of 2017

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Published in Property Law
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