New Delhi: The Supreme Court of India has reaffirmed that a testator enjoys near-absolute freedom to dispose of property through a Will, holding that the mere exclusion of a wife and children in favour of a sister does not by itself constitute a “suspicious circumstance” sufficient to invalidate a Will.
A Division Bench of Justice Ujjal Bhuyan and Justice Vijay Bishnoi dismissed the appeal preferred by the wife and children of the deceased, thereby affirming the concurrent findings of the Trial Court, the First Appellate Court, and the High Court of Karnataka, all of which had upheld the validity of the Will executed by B. Sheena Nairi, a Chartered Accountant based in Bombay.
The facts giving rise to the litigation trace back to the execution of a Will by which the testator bequeathed all his plaint schedule properties, comprising agricultural lands and ancestral properties, exclusively to his younger sister, to the complete exclusion of his wife and their five children.
The testator passed away on 30.11.1983. Following his death, his wife approached the Tehsildar, Udupi, and obtained a mutation order dated 06.04.1984, transferring the properties in her favour.
Thereafter, the sister filed a civil suit in 1990 seeking a declaration of ownership under the Will, recovery of possession, and mesne profits. The wife and children resisted the suit on the ground that the Will was false and fabricated, alleging that it was created by the testator’s brothers after his death. However, notably, none of the wife or children stepped into the witness box to substantiate this plea of forgery, nor did they request the examination of a handwriting expert.
The Trial Court allowed the suit, relying on the testimony of one of the attesting witnesses and the testator’s own brethren, who categorically deposed that the Will was executed in his presence and bore the testator’s genuine signature. The First Appellate Court and the High Court of Karnataka confirmed these findings.
Before the Supreme Court, the appellants argued, inter alia, that there was an unexplained delay of seven years in producing the Will; that the Will was unregistered; that the exclusion of the wife and children without reason constituted a suspicious circumstance; and that the First Appellate Court had failed to comply with the requirements of Order XLI Rule 31 of the Code of Civil Procedure, 1908.
The Supreme Court rejected each of these contentions. On the question of delay, the Court held that Laxmi Nairthy had made a representation to the Tehsildar as early as 10.02.1984, shortly after the testator’s death, disclosing the execution of the Will, and that all Courts had concurrently found no unexplained delay. On the mutation entries obtained by the wife, the Court reiterated the settled position in Balwant Singh v. Daulat Singh that mutation entries do not confer title and are effected merely for fiscal purposes.
On the non-registration of the Will, the Court relied on its earlier decision in Ishwardeo Narain Singh v. Kamta Devi, reiterating that there is nothing in law which requires the registration of a Will, and that drawing an inference against genuineness merely on account of non-registration is wholly unwarranted. This reaffirmation is significant, as courts are occasionally persuaded by the absence of registration to treat a Will with greater suspicion than the law warrants.
The most substantive issue was whether the exclusion of the testator’s wife and children from the Will constituted a suspicious circumstance vitiating the disposition. The Court drew on its precedents in Rabindra Nath Mukherjee v. Panchanan Banerjee and Indu Bala Bose v. Manindra Chandra Bose to hold that mere deprivation of natural heirs, by itself, may not amount to a suspicious circumstance, since the very purpose of executing a Will is to interfere with the normal line of succession.
Critically, the Will itself recorded that the testator had already given sufficient properties to his wife and children residing in Bombay and had done no injustice to them, a recital that the Court found adequately explained the exclusion and dispelled any suspicious inference.
On the procedural challenge under Order XLI Rule 31 of CPC, the Court held, following G. Amalorpavam v. R. C. Diocese of Madurai, that substantial compliance with the provision suffices and that non-compliance would not vitiate a judgment if the appellate court had properly considered the entire evidence and given reasons, even if the points of determination were framed in general terms.
The Court also addressed the evidentiary value of affidavits filed by the attesting witnesses purportedly denying their attestation of the Will. Relying on Ayaaubkhan Noorkhan Pathan v. State of Maharashtra, the Court held that an affidavit is not “evidence” within the meaning of Section 3 of the Indian Evidence Act, 1872, unless the Court permits its use under Order XIX of CPC and the deponent is made available for cross-examination. Since those affidavits had been filed even before the written statement was filed, and the witnesses had not been subjected to cross-examination, no reliance could be placed on them.
Dismissing the appeal and affirming the impugned judgment, the Supreme Court concluded that the concurrent findings of all three Courts upholding the validity of the Will were well-reasoned and warranted no interference.
Case Title: Parvathi Nairthi (Dead) and Ors. v. Laxmi Nairthy (Dead) Through LRs. and Ors. (Civil Appeal No. 6859 of 2014)
