Holding

The High Court erred in setting aside the trial court; the presence of grave suspicious circumstances mandates that the propounder prove the Will’s genuineness, which was not established, so the trial court’s decree is restored.

Summary

Hanumanthappa, suffering from cancer, executed a Will two weeks before his death bequeathing his sole agricultural land to his niece (Respondent No.1). The wife and children (appellants) were unaware of the Will, claimed it was fabricated, and sought a declaration that the land was joint family property. The trial court held the Will not proved and decreed in favour of the appellants; the High Court reversed, accepting the attesting witness and Sub‑Registrar’s testimony. On appeal, the Supreme Court examined the numerous suspicious circumstances – lack of the niece’s knowledge, non‑examination, unusual registration timing, and the unfair disinheritance of minor children – and held that such suspicion shifts the burden to the propounder to prove genuineness, which was not satisfied. Consequently, the Court set aside the High Court’s order and restored the trial court’s judgment, allowing the appeal.

Issues considered

Whether the Will executed by the testator is valid and proved under Sections 63 and 68 of the Indian Evidence Act.
Whether the presence of suspicious circumstances requires the propounder to discharge the burden of proving the Will’s genuineness.
Whether the disposition of the agricultural land in favour of the niece, disinheriting the testator’s minor children, is lawful.
Whether compliance with statutory formalities alone suffices when grave suspicion surrounds the execution of the Will.

Legislation cited

Indian Evidence Act, 1872s. 63, s. 68
Indian Succession Act

Subjects

Will executionsuspicious circumstancesburden of proofattesting witnessIndian Evidence Actinheritancejoint family propertyprobate

Judgment

A ADIVEKKA AND ORS.
V.

HANAMAVVA KOM VENKATESH 'D' BY LRS. AND ANR.

MAY 9, 2007

B [S.B. SINHA AND MARKANDEY KATIU, JJ.J

Will-Execution of-Testator executing Will in favour of his niece-
Allegation of suspicious circumstances-Sustainability of Will-Held:
C Testator's wife and children unaware ofthe execution ofthe Will-Beneficiary
too unaware and did not know from where and how she obtained possession
of the Will-Beneficiary not examining herself which leads to drawal of
adverse inference against her-Also registration of Will before Sub-Registrar
doubtful-Disposition made in Will unfair, unnatural and improbable as no
sane person for very cogent reasons would disinherit his children-Thus, Will
D not genuine-Order of High Court upholding the execution of Will set aside.

There was a land in the name of H. It is alleged that H executed Will in
favour of respondent no. I-his niece and bequeathed the land in her favour
just two weeks prior to his death. Appellants-wife and children ofH were
unaware of the execution of the Will They applied for mutation of their names
E after death of H. Respondent No. 1 filed objections and in the meantime,
allegedly sold the suit lands in favour of respondent no.2-her husband.
Appellants filed a suit for declaration and permanent injunction since H
purchased the land by sale of family gold and as such was a joint family
property; and that the Will was a fabricated document. Respondent No. 1 did
F not examine herself. She examined her husband in whose favour she had
allegedly executed a Power of Attorney. A purported attesting witness and
the Sub-Registrar who registered the document were also examined. Trial
Judge decreed the suit. High Court set aside the judgment and decree holding
that the execution of the Will has been proved by the attesting witness and
the Sub Registrar. Hence the present appeal.
G
Appellants contended that the High Court did not address itself on the
question in regard to a large number <.if suspicious circumstances which would
clearly go to show that the Will is not a genuine one.

Respondents contended that the very purpose for which the Will was
H 2M
ADIVEKKA v. HANAMAWA KOM VENKATESH'D' BY LRS. 265
executed as also the proof of execution thereof by H categorically dispels the A
alleged suspicious circumstances.

Allowing the appeals, the Court

HELD: I.I. The High Court was not correct in setting aside the judgment
of the Trial Judge that execution of Will has not been proved. B
(Para 201 [275-A)

2.1. The subject matter of the Will was a piece of agricultural land.
That was the only agricultural land in possession of the testator. He was
although owner of four houses, according to the appellants, the same had not
been generating any income. Admittedly, the appellants, other than son of H C
were residing with him. Therefore, it is difficult to believe that respondent
no. 1 had been looking after him or despite her marriage with respondent no.
2, she had been residing in his house. [Para 14) [270-F, G)

2.2. It may or may not be true that testator's son B had been residing
separately, but evidently he had been able to perform the marriage of only one D
of his daughters and, thus, six other daughters were yet to be married.
Assuming that respondent No. 1 was brought up by him, she was married.
Her husband was affluent. He could afford to purchase the property in question.
Thus, there was apparent reason to execute a Will in her favour depriving
his wife and children. [Para 14) (270-H; 271-AJ E
2.3. There is no explanation as to why a Will had to be executed and
registered without the knowledge of his wife by H. There is nothing on record
to show that the testator had any special love or affection for respondent no.
1. Respondent No. 1 did not examine herself. According to her, she was not
even aware of the execution of the Will She came to know the same at a much F
later stage, i.e., after lapse of 10-12 months. How and on what basis she
obtained the possession of the original Will is not known. On what basis the
Sub-Registrar handed over possession of the Will to husband of Respondent
No. I has not been disclosed. Had she examined herself, she could have been
accosted with the said question. It could have been shown that H did not have G
any love and affection for her. Non-examination of the party to the tis would
lead to drawal of an adverse inference against her. [Para 151 [271-B, C, DJ

Sardar Gurbakhsh Singh v. Gurdial Singh and Anr., AIR (1927) PC 230,
Marland Pandharinath v. Radhabai, AIR (1931) Born 97; Tutsi and Ors. v.
Chandrika Prasad and Ors., [2006J 8 SCC 322 and Binapani Paul v. Pratima H
266 SUPREME COURT REPORTS [2007] 6 S.C.R.

A Ghosh and Ors., (2007) 6 SCALE 398, relied on. f '
2.4. Grave suspicion in regard to the execution of the Will arises as
husband of respondent No. 1 being her power of attorney holder spoke of an
agreement for sale. According to him, out of a total consideration of Rs.
58,000/- or Rs. 50,000/- as the case may be, a sum of Rs. 49,000 had already
B been paid. If that be so, in ordinary course, he would have tendered the balance
amount. He could have filed a suit for specific performance. At least a notice
in that behalf could have been served. Therefore, husband of respondent No.
1, admittedly had an eye over the property. Why only the agricultural land
possessed by H would be the subject matter of the Will, thus, has not been
C proved. Admittedly he had been suffering from cancer. He died only two weeks
after the execution of the Will. [Para 16) [271-E, F, G)

2.5. Submission of respondent no, 1 that they were in possession of the
land in question, cultivated the same for one year and thereafter sold the same,
ex-facie does not appear to be correct as the lands had been sold by her on
D 16.3.1989 whereas the testator died on 11.9.1988, i.e., within a period of six
months from the date of execution of the Will [Para 16) [271-G; 272-A)

2.6. The disposition made in the Will is unfair, unnatural and ~
improbable as no sane person, save and except for very cogent reasons, would
disinherit his minor children. [Para 17) [272-A)
E
2.7. According to attesting witness he went with the testator at about
4.30 p.m. on 25.8.1998 to Taluk Office. The Will is said to have been first
scribed by bond writer. The same thereafter was typed out by another typist.
It was brought back to the same bond writer. He had allegedly read over the
contents of the Will whereafter only H signed and thereafter the witnesses
F put their signatures. The entire process must have taken about two hours.
How the Will could be registered on the same day, i.e., beyond the office hours >·
is again a matter which is beyond anybody's comprehension. Sub-Registrar
did not say that the Will was executed and registered before him.
[Para 17) (272-8, C]
G
Rabindra Nath Mukherjee and Anr. v. Panchanan Banerjee (Dead) by
LRs. And Ors., [1995) 4 SCC 459; B. Venkatamuni v. C.J. Ayodhya Ram Singh
and Ors., (2006) 11 SCALE 148; Niranjan Umeshchandra Joshi v. Mrudula ·
Jyoti Rao and Ors., (2006) 14 SCALE 186 and Joseph Antony Lazarus (Dead)
By LRs. v. A.J. Francis, [2006) 9 SCC 515, referred to.
H
ADIVEKKA r. HAN AMA VVA KOM VEN KA TESH'D' BY LRS. [S.B SINHA,!.] 26 7

) CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 7400-7401 of A
2000.

From the Final Judgment and Order dated 27.08.1998 of the High Court
of Karnataka at Bangalore in RFA Nos. 306 and 331 of 1994.

Shankar Divate for the Appellants. B
Rajesh Mahale for the Respondents.

The Judgment of the Court was delivered by

S.B. SINHA, J. I. Requirements in regard to the nature of proof of a C
Will in view of existing suspicious circumstances is the question involved in
this appeal which arises from the judgment and order dated 27 .08.1998 passed
by the High Court ofKarnataka at Bangalore in R.F.A. Nos. 308/94 and 331/
94.

2. Before, however, we embark upon the said question, we may notice D
the admitted facts.

3. Appellants herein are wife and children of one Hanumanthappa, the
testator. The suit property measuring 4 acres 32 guntas stood in his name.
He admittedly was suffering from cancer. He expired on 11.09.1988. Just two
weeks prior to his death, viz., 25.08.1988, he allegedly executed the Will in E
favour of Respondent No. l herein bequeathing in her favour the lands in
question. Appellants were not aware of the execution of the said Will. They
applied for mutation of their names after the death of Hanumanthappa. An
objection thereto was raised by Respondent No. I. Allegedly, in the meantime,
Respondent No. I had also sold the suit lands in favour of Respondent No. F
2 by a deed of sale dated 16.03.1989.

' 4. On the aforementioned premise, the appellants filed a suit for
declaration and permanent injunction alleging that the land in question was
purchased by Hanumanthappa by sale of family gold and, thus, was a joint
family property. It was also alleged that the Will in question was a fabricated G
document.

5. Respondents in their written statements, however, averred that the
Will was a genuine document.

6. One of the issues which were framed by the learned Trial Judge H
268 SUPREME COURT REPORTS (2007] 6 S.C.R.

A related to the execution of the Will. It reads as under:
"(4) Whether the defendant No. I proves that she has become full
owner of the suit property on the basis of the Will dated 25.8.88
legally executed by the deceased Hanumanthappa?"

B 7. Defendant Respondent No. 1 herein did not examine herself. She
examined her husband in whose favour she had allegedly executed a Power
of Attorney. A purported attesting witness and the Sub-Registrar who
registered the document were also examined.

8. In her evidence, PW- I (wife of Hanumanthappa) stated:
c (i) The testator was suffering from throat cancer and he was not
having any thinking capacity.
(ii) The testator had not executed any Will in favour of Defendant
No. I.
D (fu) Defendant No. I had never stayed with her husband in their
house.
(iv) Her husband had other properties apart from the suit lands but
the same were not fetching any income.

Husband of Respondent No. I (DW-1) and the Power of Attorney
E
holder, however, in his evidence, stated:

(i) Defendant No. I is the daughter of Huchhappa who was brother
of her father in law Hanumanthappa. When Huchhappa married
for the second time, Defendant No. I being a child, was looked
after and brought up by Hanumanthappa.
F
(ii) Defendant No. I lived in the house of Hanumanthappa for about
)..
I2-13 years. After her marriage, she came to his house.
(iii) On 8.04.1982, Hanumanthappa agreed to sell the suit lands to him
for a sum of Rs. 52,000/- and he had paid a sum of Rs.49,000/-
G by way of advance.
(iv) Hanumanthappa was suffering from cancer on the left side of the
neck, but even at that time he had good level of understanding.
(v) Hanumanthappa took treatments for about 8 months whereafter
only he came to know that he had been suffering from cancer.
H
AD!VEKKA r. HANAMAVVA KOM VENKATESH'D' BY LRS. [S.B. SINHA,J.] 269

(vi) After the death ofHanumanthappa, he learnt of the Will from one A
Bhimappa Banglore Nagappa Yallappa Gokabi. He was told that
it had been registered in the Sub-Registrar's Office. He and his
wife, thus, went to Sub-Registrar's office and collected the Will.
(vii) As per the Will, the name of the Defendant No. I was mutated
on the basis of the sale deed. He cultivated the lands for one B
year and thereafter sold the same to Respondent No. 2.

The said witness, however, also made out an alternative case. According
to him, on or about 24.08.1971, an agreement to purchase the suit land was
executed in the name of Hanumanthappa for a consideration of Rs. 11,000/-
and a sum of Rs. 5000/- was paid by him by way of advance. C
In his cross-examination, however, he stated that Hanumanthappa
demanded a sum of Rs. 58,000/- and he was ready to pay Rs. 50,000/-.

No document, however, to show that a sum of Rs. 49,000/- was paid to
Hanumanthappa, was brought on record. D
9. The attesting witness Sunkappa (DW-4) sought to prove the execution
of the Will. He had allegedly come to see Hanumanthappa two weeks prior
thereto. Even at that point of time, although the appellants were present, no
discussions on the subject of execution of Will took place. Who had asked
him to go to the registration office for attestation of the Will is not known. E

The Sub-Registrar who examined himself as DW-5, in his evidence, did
not state that the contents of the Will were read over and explained to
Hanumanthappa.

10. The learned Trial Judge decreed the suit. The High Court, however, F
by reason of the impugned judgment reversed the said judgment and decree
opining that the execution of the Will has been proved by DWs 4 and 5.

11. Mr. Shankar Divate, learned counsel appearing on behalf of the
appellants, in support of this appeal, would submit that the High Court did G
not address itself on the question in regard to a large number of suspicious
circumstances which would clearly go to show that the Will is not a genuine
one.

12. Mr. Rajesh Mahale, leamed counsel appearing on behalf of the
respondents, on the other hand, would submit that the very purpose for H
270 SUPREME COURT REPORTS (2007) 6 S.C.R.

A which the Will was executed as also the proof of execution thereof by 1
Hanumanthappa categorically dispels the alleged suspicious circumstances.

13. Recitals made in the Will are as under:

"You are my elder brother's daughter since your childhood I have
B looked after you till your majority. After your majority you have
looked after me and my children and living with me. I trust you that
you will look after me even after my demise. I have a special love for
you.

My son Bhimappa is living separately and is not helping me in any
c way. I have married a girl. I have left other properties for my minor
children and they will look after it.

For the above stated lands my children do not have any right and I
wish that after me the aforesaid land should go to you hence this Will.
I declare you the complete owner of the aforesaid land after my death.
D During my life time I will use the land as per my wish and enjoy the
same. After my death as a owner you can have the possession of
the aforesaid land and enjoy the same for generation to generation.-

After my death except you none have any right or ownership right in
the aforesaid land. After my death you are the complete owner and
E right holder of the aforesaid land. (In the fourth line I have been
scored of)

I have not mortgaged or executed any agreement or I have not given
possessi-On of the suit lands to anybody. It has not been attached
by any court order or tendered as security. Hence this will be executed
F with own will and wish."

14. The subject matter of the Will was a piece of agricultural land
measuring 4 acres 32 guntas. That was the only agricultural land in possession
of the testator. He was although owner of four houses, according to the
appellants, the same had not been generating any income. Admittedly, the
G appellants, other than son of Hanumanthappa, were residing with him. It is,
therefore, difficult to believe that the defendant respondent No. I had been
looking after him or despite her marriage with DW-1, she had been residing
in his house.

It may or may not be true that his son Bhimappa had been residing
H
ADIVEKKAv.HANAMAVVAKOMVENKATESH'D'BYLRS.[S.B.SINHA,J.] 271
separately, but evidently he had been able to perform the marriage of only one A
of his daughters and, thus, six other daughters were yet to be married.
Assuming that Respondent No. 1 was brought up by him, she was married.
Her husband was affluent. He could afford to purchase the property in
question. There was, thus, no apparent reason to execute a Will in her favour
depriving his wife and children.
B
15. Why a Will had to be executed and registered without the knowledge
of his wife by Hanumanthappa has not been explained. There is nothing on
record to show that the testator had any special love or affection for
Respondent No. 1. Respondent No. 1 did not examine herself. According
to her, she was not even aware of the execution of the Will. She came to know C
the same at a much later stage, i.e., after lapse of 10-12 months. How and
on what basis she obtained the possession of the original Will is not known.
On what basis the Sub-Registrar handed over possession of the Will to DW-
I has not been disclosed. Had she examined herself, she could have been
accosted with the said question. It could have been shown that
Hanumanthappa did not have any love and affection for her. Non-examination D
of the party to the lis would lead to drawal of an adverse inference against
_.., her. [See Sardar Gurbakhsh Singh v. Gurdial Singh and Anr., AIR (1927)
>- PC 230, Marland Pandharinath v. Radhabai, AIR (1931) Born 97, Sri Sudhir
Ranjan Paul v. Sri Chhatter Singh Baid & Anr., Tutsi and Ors. v. Chandrika
Prasad and Ors.,[2006] 8 SCC 322 and Binapani Paul v. Pratima Ghosh & E
Ors., (2007) 6 SCALE 398]

16. Grave suspicion in regard to the execution of the Will arises as
husband of Respondent No. 1 being her power of attorney holder spoke of
an agreement for sale. According to him, out of a total consideration of Rs.
58,000/- or Rs. 50,000/-, as the case may be, a sum of Rs. 49,000/- had already p
been paid. If that be so, in ordinary course, he would have tendered the
balance amount. He could have filed a suit for specific performance. At least
a notice in that behalf could have been served. Husband of Respondent No.
I, therefore, admittedly had an eye over the property. Why only the agricultural
land possessed by Hanumanthappa would be the subject matter of the Will,
thus, in our opinion, has not been proved. Admittedly he had been suffering G
from cancer. He died only two weeks after the execution of the Will.

Contention of DW-1 that they were in possession of the land in question,
cultivated the same for one year and thereafter sold the same, ex facie does
not appear to be correct as the lands had been sold by her on 16.03.1989 H
272 SUPRE°ME COURT REPORTS [2007) 6 S.C.R.

A whereas the testator died on 11.09.1988, i.e., within a period of six months from 1..
the date of execution of the Will. ,

17. The disposition made in the Will is unfair, unnatural and improbable
as no sane person, save and except for very cogent reasons, would disinherit
his minor children. DW-1 does not state as to from where and how she
B obtained possession of the original Will.

According to DW-4, he went with the testator at about 4.30 p.m. on
25.08.1998 to Taluk Office. The Will is said to have been first scribed by one
bond writer. The same thereafter was typed out by another typist. It was
brought back to the same bond writer. He had allegedly read over the
C contents of the Will whereafter only Hanumanthappa signed and thereafter
the witnesses put their signatures. The entire process must have taken about
two hours. How the Will could be registered on the same day, i.e., beyond
the office hours is again a matter which is beyond anybody's comprehen~ion.
DW-5 did not say that the Will was executed and registered before him.
D
In Rabindra Nath Mukherjee and Anr. v. Panchanan Banerjee (Dead)
By LRs. And Ors., [ 1995] 4 SCC 459, wherein reliance has been placed by Mr.
Mahale, the circumstances preceding the execution of the Will were taken into
consideration. This Court in the factual matrix obtaining therein opined:

E "8. If a total view is taken of the aforesaid circumstances, which has
to be the approach, we are of the opinion that the courts below
overplayed some circumstances which they regarded as suspicious
and somehow missed some circumstances which bolstered the case
of the propounders."

F 18. We may, however, notice that in B. Venkatamuni v. C.J. Ayodhya
Ram Singh & Ors., (2006) 11 SCALE 148, this Court upon considering a large
number of decisions opined that proof of execution of Will shall strictly be
in terms of Section 63 of the Indian Succession Act. It was furthermore held:

"It is, however, well settled that compliance of statutory
G requirements itself is not sufficient as would appear from the
discussions hereinafter made."

It was observed:

"Yet again Section 68 of the Indian Evidence Act postulates the mode
H and manner in which proof of execution of document required by law
ADIVEKKA v. HANAMA VVA KOM VENKA TESH 'D' BYLRS. [S.B. SINHA,J.] 273
to be attested stating that the execution must be proved by at least A
one attesting witness, if an attesting witness is alive and subject to
the process of the Court and capable of giving evidence.'1

It was emphasised that where there are suspicious circumstances, the
onus would be on the propounder to remove suspicion by leading appropriate
evidence stating: B
"However, having regard to the fact that the Will was registered one
and the propounder had discharged the onus, it was held that in such
circumstances, the onus shifts to the contestant opposing the Will to
bring material on record meeting such prima facie case in which event C
the onus shifts back on the propounder to satisfy the court
affirmatively that the testator did not know well the contents of the
Will and in sound disposing capacity executed the same.

Each case, however, must be determined in the fact situation
obtaining therein.
D
The Division Bench of the High Court was, with respect, thus,
entirely wrong in proceeding on the premise that compliance of legal
formalities as regards proof of the Will would sub-serve the purpose
and the suspicious circumstances surrounding the execution thereof
is not of much significance. E
The suspicious circumstances pointed out by the learned District
Judge and the learned Single Judge of the High Court, were glaring
on the face of the records. They could not have been ignored by the
Division Bench and in any event, the Division Bench should have
been slow in interfering with the findings of fact arrived at by the said F
court. It applied a wrong legal test and thus, came to an erroneous
decision."

19. Yet again. in Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao
& Ors., (2006) (14) SCALE 186, this_ Court held:
G
"Section 63 of the Indian Evidence Act lays down the mode and
manner in which the execution of an unprivileged Will is to be proved.
Section 68 postulates the mode and manner in which proof of execution
of document is required by law to be attested. It in unequivocal terms
states that execution of Will must be proved at least by one attesting
witness, if an attesting witness is alive subject to the process of the H
274 SUPREME COURT REPORTS [2007] 6 S.C.R.

A court and capable of giving evidence. A Will is to prove what is
loosely called as primary evidence, except where proof is permitted by
leading secondary evidence. Unlike other documents, proof of
execution of any other document under the Act would not be sufficient
as in terms of Section 6S of the Indian Evidence Act, execution must
be proved at least by one of the attesting witnesses. While making
B attestation, there must be an animus attestandi, on the part of the
attesting witness, meaning thereby, he must intend to attest and
extrinsic evidence on this point is receivable.

The burden of proof that the Will has been validly executed and
c is a genuine document is on the propounder. The propounder is also
required to prove that the testator has signed the Will and that he had
put his signature out of his own free will having a sound disposition
of mind and understood the nature and effect thereof. If sufficient
evidence in this behalf is brought on record, the onus of the
propounder may be held to have been discharged. But, the onus
D would be on the applicant to remove the suspicion by leading sufficient
and cogent evidence ifthere exists any. In the case of proof of Will,
a signature of a testator alone would not prove the execution thereof,
if his mind may appear to be very feeble and debilitated. However,
if a defence of fraud, coercion or undue influence is raised, the burden
E would be on the caveator. [See Madhukar D. Shende v. Tarabai
Shedage, [2002] 2 SCC 85 and Sridevi & Ors. v. Jayaraja Shetty &
Ors., [2005] 8 SCC 784]. Subject to above, proof of a Will does not
ordinarily differ from that of proving any other document."

Noticing B. Venkatamuni (supra), it was observed:
F
"The proof a Will is required not as a ground of reading the
document but to afford the judge reasonable assurance of it as being
what it purports to be.

We may, however, hasten to add that there exists a distinction
G where suspicions are well founded and the cases where there are only
suspicions alone. Existence of suspicious circumstances alone may
not be sufficient. The court may not s1art with a suspicion and it
should not close its mind to find the truth. A resolute and impenetrable
incredulity is demanded from the judge even there exist circumstances
of grave suspicion. [See Venkatachala Iyengar (supra)]"
H
ADIVEKKAv.HANAMAVVAKOMVENKATESH'D'BYLRS.[S.B.SINHA,J.] 275

[See also Joseph Antony Lazarus (Dead) By LRs. v. A.J. Francis, [2006] 9 SCC A
515]

20. We are, therefore, of the considered view that the High Court was
not correct in reversing the judgment of the learned Trial Judge.

21. For the reasons aforementioned, the judgment of the High Court is B
set aside and that of the Trial Court is restored. The appeals are allowed. No
costs.

N.J. Appeals allowed.