New Delhi: The Supreme Court on Monday (July 6) held that where a Will is surrounded by suspicious circumstances, mere examination of an attesting witness is not enough to prove its valid execution, and that the propounder bears the additional burden of dispelling those doubts and satisfying the judicial conscience that the document truly represents the free and informed wishes of the testator.
A Bench of Justices Manoj Misra and K.V. Viswanathan made these observations while restoring a decree in favour of a widow who had been disinherited under a Will executed by her husband eighteen years before his death, setting aside a Himachal Pradesh High Court judgment that had upheld the Will in second appeal.
The appellant, Sardari Lal, is the legal representative of Bhambo Devi, who had sued Bishan Dass and others for a declaration that she was the sole owner in possession of property left by her husband Chhajju, an illiterate agriculturist who died intestate in 1992 without children. The defendants resisted the suit on the strength of a registered Will dated November 6, 1974, under which Chhajju had purportedly bequeathed his entire estate to them, describing them as his nephews who had rendered services to him and his wife, though the defendants were not close relatives of the testator.
Both the Trial Court and the First Appellate Court had rejected the Will as suspicious and decreed the suit for the plaintiff, holding that the disinheritance of the wife remained unexplained, that the claimed relationship and services of the beneficiaries were not established, and that unexplained cuttings on the reverse of the Will where the Sub-Registrar's endorsement showed the presenter's name altered from “Laxmi Kant Bassi” to “Chhajju” without initials — cast doubt on its registration. The High Court, however, reversed these concurrent findings in second appeal, holding that once due execution stood proved through an attesting witness under Section 63 of the Indian Succession Act, the document could not be discarded merely because it disinherited the wife or bore unexplained cuttings.
Reversing the High Court, the Supreme Court held that proving a Will is not confined to establishing its execution and attestation under Section 63; that is only the first step. The propounder must also satisfy the court that the testator signed with full understanding of its contents and dispel any suspicious circumstances. The Court observed:
the exercise is complete when the propounder satisfies the Court's conscience that the testator had signed the Will with free will, being aware of its contents, and after understanding the nature and effect of the dispositions in the Will.
Examining the facts, the Court found the disposition unnatural since the beneficiaries were non-relatives while the sole surviving Class I heir, the widow who had cared for the testator until his last day was completely excluded. It held that where a testator disinherits a dependent with whom he had no discord, in favour of persons under no legal obligation to him, an explanation is required. The reasons furnished in the Will that the wife possessed sufficient jewellery and cash, and that the beneficiaries had rendered services as “nephews” were found factually incorrect, including on the admission of the defendants' own witness that the couple lived separately from the beneficiaries and that the wife had tended to the testator throughout his life.
The Court further noted that Chhajju was illiterate and could only thumb-mark the document, so incorrect recitals in a Will scribed on his instructions raised doubt as to whether its contents were truly understood by him. It held:
illiteracy of the testator coupled with incorrect statements in the Will raises a serious doubt as to whether the testator executed the Will after fully understanding its content.
On the cuttings at the back of the Will, the Court examined the original record and found that the Sub-Registrar's endorsement had originally named “Laxmi Kant Bassi” as the person presenting the document, with the name later altered to “Chhajju” without any initials by the registering officer. Since the Registration Act, 1908 requires the registering officer to verify the identity of the presenter, the absence of any endorsement over the alteration deprived the Will of the presumption that its contents were read over to, and admitted by, the testator at registration deepening, rather than dispelling, the doubts arising from his illiteracy and the unnatural disposition in favour of strangers to the family.
Rejecting the High Court's approach, the Bench held that the existence of suspicious circumstances, and whether they stood satisfactorily explained, are essentially questions of fact, and the First Appellate Court's finding disbelieving the Will could not be termed perverse so as to warrant interference under Section 100 CPC. Distinguishing its earlier decision in Madhukar D. Shende versus Tarabai Aba Shedage, where the beneficiary was the testator's own niece and the challenger a stranger to the family, the Court noted that here the challenge came from the sole Class I heir herself while the beneficiaries were unrelated persons — a materially different position warranting closer scrutiny.
The Court also rejected the respondents' contention that the plaintiff's failure to examine herself, or any other witness, was fatal to the suit, holding that since her status as the sole surviving legal heir was never traversed in the written statement, it stood admitted on the pleadings, and the burden to prove due execution of the Will remained, throughout, on its propounder.
Allowing the appeal, the Supreme Court set aside the judgment and decree of the High Court and restored the decree of the Trial Court, as affirmed by the First Appellate Court, declaring the appellant's predecessor-in-interest the owner in possession of the suit property. No order was made as to costs.
Appearances: Ms. Radhika Gautam appeared for the appellant; Shri Rajesh Gupta appeared for the respondents.
Case Title: Sardari Lal versus Bishan Dass & Ors.
