Holding

The 1992 Will was incomplete because the essential appendices were not part of the document at the time of execution, so it could not be given effect and probate was denied.

Summary

Maharani Sharmishthabai Holkar executed a detailed Will on 4 November 1992 that referred to three appendices containing the specific distribution of her assets. The appendices were not signed by the attesting witnesses and were not in existence at the time of execution. Applications for probate were filed by the executors, but the High Court rejected them on grounds of non‑compliance with s.63 of the Indian Succession Act, lack of attestation of the appendices, and the presence of suspicious circumstances. The Supreme Court held that because the appendices formed an integral part of the Will and were absent at execution, the Will was incomplete and could not be given effect, and therefore probate could not be granted. The Court dismissed the appeals with costs.

Issues considered

Whether the Will dated 4 November 1992 was duly executed in compliance with s.63 of the Indian Succession Act and s.68 of the Evidence Act.
Whether the appendices referenced in the Will are incorporated by reference under s.64 and were part of the Will at the time of execution.
Whether the presence of suspicious circumstances (beneficiary bias, executor involvement, unequal distribution) precludes granting probate.
Whether s.87 of the Indian Succession Act applies to give effect to the testator's intention despite the missing appendices.
Whether the Will is incomplete and therefore incapable of being probated.

Legislation cited

Indian Evidence Act, 1872s. 68
Indian Succession Act, 1925s. 103, s. 63, s. 64, s. 87

Subjects

Will executionProbateIncorporation by referenceSuspicious circumstancesIncomplete willTestamentary intentionIndian Succession ActSection 63Section 64Section 87Section 103Evidence Act Section 68

Judgment

[2008] 6 S.C.R. 1009

ANIL KAK A
v.
KUMAR! SHARADA RAJE & ORS.
(Civil Appeal No. 2965 of 2008)
APRIL 24, 2008
• B
[S.B. SINHA AND V.S. SIRPURKAR, JJ.]

Indian Succession Act, 1925:
ss 63, 87 and 103 - Execution of Will - Genuineness of
- Widow executing Will in favour of one of her daughters - C
Execution of another Will 14 years later- Will in two parts, first
part dealing with property belonging to her husband and
second part with her Stridhan properties - Appendices
appended to the Will - Application for letters of administration
by beneficiary of first Will - Application for grant of probate by D
ioint executors - Rejected by High Court - On appeal, held:
Distribution of assets were to be made as per the appendices
which were to be read as a part of the main Will - Will could
not be given effect by its own - At the time of the purported
execution of Will, appendices did not form part of Will - Thus, E
Will was not complete - Intention of testator could not be
effectuated - Will was surrounded by suspicious
circumstances -Hence, interference not called for
s. 63 - Execution of Will - Mode and manner of proving
- Held : Signatures of executors and attesting witnesses are F
to be proved - Also the statutory conditions imposed by s. 63
and s. 68 of 1872 Act are to be proved - In the event of
existence of suspicious circumstances, party seeking probate
or letters of administration is to adduce evidence to the
satisfaction of the court- Court to adopt a rational approach - G
It has to satisfy its conscience - Evidence Act, 1872 - s. 68.
s. 64 - Incorporation of paper by reference - Principle of
- Held: Document incorporated by reference in another when
1009 H
1010 SUPREME COURT REPORTS [2008] 6 S.C.R.

\-
A it is referred to, as if it would form integral part thereof - It is to
avoid unnecessary repetition of same documents in original
documents-Document must be in existence - Executor must
know its contents - It cannot be brought into existence later
on.
B s. 87 - Efficacy of Will - Intention of the testator - ,
Ascertainment of- Held: Intention of the testator must be found
out from the entire Will - It has to be read as a whole -
Endeavour should be made to give effect to each part of it -
When one part cannot be given effect having regard to another
C part, doctrine of purposive construction as a/so general •
principles of construction of deed could be given effect to -
Interpretation of statutes.
The testatrix inherited properties from her husband
by Will and also had her own Stridhan properties. Testatrix
0
had four daughters. She executed a Will on 23.8.1978 in
favour of one of her daughters viz. KS. It is alleged that in
1992, she revoked the will and executed another Will. She
appointed KRP and the appellant-AK as joint executors
and TN as Chartered Accountant to assist the executors
E in administering and distributing the estate and executing
the Will. The properties were in Part A and 8. Part A
consisted of the properties bequeathed in testatrix's
favour by her husband and Part 8 consisted of properties
other than those specified in Part A. She bequeathed Part
F A properties in favour of her daughters and Part 8 in favour
of her grand children. The Will was executed in presence
of notary. It was attested by the witnesses. Medical
Certificates issued by the doctors were annexed thereto.
The Will contained few appendices. It also contained
G statements containing her investments in various shares
within and outside the country.
KS filed application for grant of Letters of ...
Administration with a copy of the Will dated 23.8.1978 and
AK and KRP filed an application for grant of probate ir.
H
ANIL KAK v. KUMARI SHARADA RAJE & ORS. 1011

_,..,
their capacity as executors appointed under the Will dated A
4.11.1992. Single Judge of the High Court rejected the
application for probate and/or letters of administration in
respect of both the Wills. With regard to the Will dated
4.11.1992, the court held that the execution was not proved
since appendices were not signed by the attesting B
~
witnesses; the Will remained in the custody of AK for a
·j. long time; AK did not examine himself as a witness; as an
unequal division of the properties described in Part B of
the Will effected, there existed suspicious circumstances;
and AK took part in preparation of the Will. The Division c
Bench dismissed the Letter Patent Appeals as not
maintainable. Hence the present appeals.
Appellants contended that the High Court committed
a serious error in passing the impugned judgment as it
failed to take into consideration that the testatrix had D
divided her properties equally amongst her four
-·t daughters as also her grand children, therefore, there did
not exist any circumstance to suspect the genuineness
of the Will; that Appendices were annexed with the Will
for the purpose of bringing out clarities in regard to the E
division of the properties; that Medical certificates
annexed to the Will show that the testatrix had a sound
disposing mind; and that the High Court failed to take into
consideration the effect and purport of sections 64, 87
and 103 of the Indian Succession Act, 1925. F
i'- Respondents contended that the Will dated 4.11.1992
was surroiinded by suspicious circumstances as
appellant-one of the executors was husband of one of
the grand children and son-in-law of one of the daughters,
whose family was the beneficiary of the maximum number G
of properties; that in view of a clear finding of fact arrived
at by the High Court that the appellant not only took away
..... the Will but also did not disclose thereabout to the near
relatives for a long time shows that the execution of the
Will by the testatrix was doubtful; and that appendices H
1012 SUPREME COURT REPORTS [2008] 6 S.C.R.

\-
A attached to the Will having been brought into existence
at a later date, ss. 64, 87 and 103 would not be applicable.
Dismissing the appeals, the Court
HELD: 1.1 Testatrix at the time of execution of the
B Will was 85 years old. She was owner of substantial
properties. Although all the four daughters of the testatrix •
were the beneficiaries of the properties described in Part 1-
A of the Will, detailed directions as to how the said estate
was to be administered as also the criteria as regards
c distribution of assets was made therein. However, the
shares in the companies were to be held in the joint names
of the testatrix as also the joint executors. The executors
were to hold the same in trust. Whether the said direction
had been carried out and, if so, how and in what manner
is not known. Executors had also been granted express
0
power to recall and repossess the jewellery, money or
money's worth possessed by any beneficiary of the Will
or legatee but ownership of which was not conferred on
them for the purpose of meeting government dues,
liabilities or expenses. (Paras 17 and 18) [1022-E-H; 1023-A]
E
1.2 It is not denied or disputed that the appellant-AK,
son-in-law of the daughter of testatrix took an active part
in the matter of preparation and execution of the Will. For
proving the said Will, the appellants examined KRP-PW-
F 1. He was not aware of the contents of the Will. It was ..
handed over to him on 10.9.1993 by T.N. It was in turn
handed over to AK. The said Will was not executed in his
presence. He was not even aware of the execution thereof.
SK-Notary, GS-one of the attesting witnesses and T.N
G examined themselves in support of the case of the
appellants. According to TN, he had drafted only pages
one to six of the Will. The said Will was purported to have
been executed at his residence at Indore. GS ar.d BB were
the attesting witnesses. BB was not examined. GS sought
to prove the testatrix's signature as also her own
H
ANIL KAK v. KUMARI SHARADA RAJE & ORS. 1013

-¥ signatures on the Will. It is beyond any doubt or dispute A
that none of the attesting witnesses had put their
signatures on appendices A to C. (Paras 21 and 22 and
23) [1023-F-H; 1024-A-D]
1.3. It is clearly evident that division has not been
made per strip or per capita but by species. Each one of B
• the jewelleries which was to be bequeathed to each of
·i- the beneficiary thereunder had been specified. Moreover,
from the valuation report, it would appear that the
respective distribution purported to have been made in
terms of the appendices would not make them of equal c
value or nearabout which was the desire of the testatrix.
(Para 28) [1025-H; 1026-A]
2. The rule of incorporation by reference is well-
known. One document is incorporated by reference in
D
another when it is referred to, as if it would form an integral
part thereof. Principle of incorporation by reference was
-·+ evolved so as to avoid unnecessary repetition of the same
documents again and again in different parts of the
original document. For invoking the said principle, a
document must be in existence. It cannot be brought into E
existence later on. The executor of a document must know
what the other document which he intends to incorporate
in the Will contains. (Paras 30 and 31) [1026-D-F]
Sarabjit Rick Singh v. Union of India 2007 (14) SCALE F
""' j"\
-(
263 - relied on.
William Henry Singleton v. Thomas Tomlinson and Ors.
1878 (3) AC 404 - referred to.
Wills by Theobald Sixteenth Edition pp 59-61;
G
Halsbury's Laws of England Fourth Edition, Paragraph 817
pp 433-34 - referred to.
3.1. A distinction must be made between an
incomplete Will and a complete Will although intention of
the testator cannot be effectuated. The testator's intention H
1014 SUPREME COURT REPORTS (2008] 6 S.C.R.

A is collected from a consideration of the whole Will and
not from a part of it. If two parts of the same Will are wholly
irreconcilable, the court of law would not be in a position
to come to a finding that the Will dated 4.11.1992 could be
given effect to irrespective of the appendices. In
B construing a Will, no doubt all possible contingencies are
required to be taken into consideration. Even if a part is
invalid, the entire document need not be invalidated, only
if it forms a severable part. (Para 34) [1028-F-H; 1029-A]
Bajrang Factory Ltd. and Anr. v. University of Calcutta
C and Ors. 2007 (7) sec 183 - relied on.
P Manavala Chetty and five Ors. v. P Ramanujam Chetty
and Anr. 1971 (1) MLJ 127 - referred to.
Bagnall. Re 1948 W.N. 324; Kidd v. North 16 L.J. Ch.
D 117 - referred to.
Halsbury's Laws of England Fourth edition, Volume 50,
p 332-33 - referred to.
3.2 The intention of the testator must be found out
E from the entire Will. It has to be read as a whole. An
endeavour should be made to give effect to each part of
it. Only when one part cannot be given effect to, having
regard to another part, the doctrine of purposive
construction as also the general principles of
F construction of deed may be given effect to. In the instant
case, the Will refers to appendices. The document is one.
It is inseparable. It is not a case where a general division
was to be made leaving the manner of application to the
executors. The principal document provides for the broad
G division, the principles of division laid down therein would
be followed if the appendices are to be taken recourse to.
If the principles of equality is to be given effect to, it was
expected that the testatrix intended to confer the same
benefit or the benefit having same value or nearabout to
H be conferred on each of the legatees. In effect and
ANIL KAK v. KUMAR! SHARADA RAJE & ORS. 1015

_..y
substance, the purported directions contained in the A
appendices which did not see the light of the day on the
date of execution of the Will, make the application of the
directions of the testatrix wholly impossible to be carried
out. It is difficult to comprehend as to how without the
same, the Will can be said to be a complete one so as to B
effectuate the intention of the testator. It is in that sense
' the provisions of section 87 of the Indian Succession Act,
--t·
1925 are applicable. (Para 35). [1032-C-F]
3.3 The High Court assigned good and cogent
reasons in support of its judgment for not accepting the c
evidence of TN. He admitted that the appendices were to
be brought by AK. If the same had not been brought to
the testatrix on the day the Will was executed, it is not
clear as to how the testatrix had knowledge thereabout. It
now almost stands admitted that the appendices did not D
form part of the Will at the time of its purported execution.
--~ If the Will was incomplete the question of its proving the
execution does not arise. An integral part of the document
for the purpose of satisfying the tests laid down under s.
63(1 )(c) of the Act ands. 68 of the Evidence Act must mean E
a complete document.(Para 36) [1032-G; 1033-A]
3.4 The execution of a Will does not only mean
proving of the signatures of the executors and the
attesting witnesses. It means something more. A Will is
not an ordinary document. It although requires to be F
>~ proved like any other documents but the statutory
conditions imposed by reason of section 63(c) of the Act
and section 68 of Evidence Act cannot be ignored. (Para
39) [1035-E, F]
G
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; Adivekka
and Ors. v. Hanamavva Kam Venkatesh (Dead) By LRs. and
Anr 2007 (7) SCC 91 - referred to.
H
1016 SUPREME COURT REPORTS [2008] 6 S.C.R.

A Wills by "Jarman Volume 1, Eight Edition (Sweet &
Maxwell) pp 145-46; "Commentaries on Wills" by Alexander
Vol. I 193-94 - referred to.
3.5 Execution of any other document can be proved
by proving the writings of the document or the contents
8 of it as also the execution thereof, in the event there exists
suspicious circumstances the party seeking to obtain
probate and/ or letters of administration with a copy of
the Will annexed must also adduce evidence to the
satisfaction of the court before it can be accepted as
C genuine. As an order granting probate is a judgment in
rem, the court must also satisfy its conscience before it
passes an order. It may be true that deprivation of a due
share by the natural heir by itself may not be held to be a
suspicious circumstance but it is one of the factors which
D is taken into consideration by the courts before granting
probate of a Will. Unlike other documents, even animus
attestandi is a necessary ingredient for proving the ~ -
attestation. (Paras 40 and 41) [1037-C, D, E, F]
Benga Behera and Anr. v. Braja Kishore Nanda and
E Ors.2007 (7) SCALE 228; B. Venkatamuni v C.J. Ayodhya
Ram Singh and Ors.2006 (11) SCALE 148; Savithri and Ors.
v Karthyayani Amma and Ors. JT 2007 (12) SC 248 - referred
to.
F 4. The execution of the Will became impossible both
in respect of the properties described in Part A and Part
B. The Will is surrounded by suspicious circumstances.
The court is required to adopt a rational approach in a
situation of this nature. Once the court is required to
G satisfy its conscience, existence of suspicious
circumstances play a prominent role. Distribution of
assets, however, was not specifically stated in the Will.
They were to be made as per the appendices annexed
thereto. The appendices which were required to be read
as a part of the main Will so as to effectuate the intention
H
ANIL KAK v. KUMAR! SHARADA RAJE & ORS. 1017
[S.B. SINHA, J.]
-r
of the testatrix have not been proved. The Will by its own A
cannot be given effect to. The Will must be read along
with the appendices. No doubt in construing a Will arm
chair rule is to be adopted. Therefore, the Will was not
complete. It cannot be said that the appendices were very
much in existence at the time when the Will was executed. B
' Existence of a document must mean the actual existence.
"i' Therefore, no case is made out for interference with the
impugned judgment (Paras 38, 37 and 42) [1035-D;
1039-C-F]
CIVILAPPELLATE JURISDICTION: Civil Appeal No. 2965 c
of 2008.
From the Judgment and Order dated 23.1.2006 of the High
Court of Judicature at Madhya Pradesh, Bench at Indore in
LP.A. No. 238/2001 and M.C.C.No. 1097/2005.
D
WITH
-+
Civil Appeal Nos. 2974, 2975, 2977 of 2008.
Arun Jaitley, R.F. Nariman, lndu Malhotra, S.B. Upadhyay,
Shashi M. Kapila, Ramesh Singh, Kunal Tandon, Arjun Suresh, E
Vikas Mehta, Sudhir Nandrajog, Asha Gopalan Nair, Gaurav
Agrawal, Bina Gupta, Kavita Wadia, Shirmangal Sharma,
Shubha Goyal, Sharmila Upadhyay, R.K. Rathore, Kuldip Singh
for the appearing parties.
The Judgment of the Court was delivered by F
A
S.B. SINHA, J. 1. Leave granted.
2. These appeals are directed against a judgment and
order dated 18.05.2001 passed by a learned Single Judge of
the Madhya Pradesh High Court at Indore dismissing two G
applications for grant of probate/ letters of administration with
the copy of the annexed Will in respect of the assets of Late
J,
Maharani Sharmishthabai Holkar (hereinafter called as "the
testatrix"), the widow of Late Maharaja Tukoji Rao Holkar, former
ruler of the erstwhile Holkar State. H
1018 SUPREME COURT REPORTS [2008] 6 S.C.R.

A 3. Maharaja Tukoji Rao Holkar died on 21.05.1978 leaving
behind four daughters, Sharada Raje Holkar, Sita Raje Ghatge,
Sumitra Raje Dalvi and Sushila Raje Holkar. He had executed
a Will on 27.11.1942 bequeathing all his properties in favour of
the testatrix. Indisputably, a letter of administration had been
B granted in favour of the testatrix in respect of the Will dated
27.11.1942 made in her favour by her husband. Apart from the
properties inherited by the testatrix from her husband, she had
t
also her own Stridhan properties. She purported to have
executed a Will on or about 23.08.1978 in favour of Kumari
C Sharada Raje. She, however, allegedly executed another Will
on or about 4.11.1992, by reason whereof, she purported to
have revoked the Will executed by her on 23.08.1978 and/ or
the Codicil. She appointed one K.R.P. Singh and the appellant
Anil Kak as joint executors. She also appointed Mr. T.N. Unni,
her Chartered Accountant to assist the executors in
0
administering and distributing the estate and executing the said
Will. She categorized her properties in two parts, viz., Part A
and Part B.

Part A consisted of those properties which were
E bequeathed in her favour by her husband and Part B consisted
of properties other than those specified in Part A. By reason of
the said Will, the said two sets of the properties were to be
administered separately. Whereas Part A properties were
bequeathed in favour of four daughters, Part B properties
F were sought to be bequeathed in favour of her four grand
children.

4. Indisputably, the said Will was purported to have been
attested by one Gita Sanghi, who examined herself as PW-!5
and one Baljit Bawa, who was not examined. The Will contained
G a few appendices. Whereas the attesting witnesses purported
to have put their signatures in each page of the Will, they did not
put any signature on the appendices to the said Will.
5. With a view to appreciate the relationship of the parties,
H we may notice the family tree, which is as under:
ANIL KAK v. KUMARI SHARADA RAJE & ORS. 1019
[S.S. SINHA, J.]

Maharaja Tukoji Rao A
Holkar
Maharani Sharmishtha
Bai Holkar

Sharada Raje Sita Raje Ghatge Sumitra Raje Dalvi Sushila Raje Holkar
I Hokar 8
+ Sangeeta
Ghatge (D)
Ashish
Dalvi

Umika Ghatge A~un Devina
c
AppellantAnil Kak is the husband of Gangesh Kumari and
son-in-law of Sumitra Raje Dalvi. Appellant Arjun Kak is son of
the appellant Anil Kak.
6. Before procet;cilng further, we may notice that whereas 0
the application for grant of Letters of Administration with a copy
·-t of the Will dated 23.08.1978 annexed, filed by Kumari Sharada
Raje was marked as Suit No. 2 of 1998; Anil Kak and Kumar
Rampratap filed an application for grant of probate in their
capacity as executors appointed under the said Will dated E
4.11.1992, which was marked as Suit No. 3of1998. Both the
suits were directed to be consolidated. The parties examined
their witnesses in both the suits by adducing common evidence.
7. Whereas the Will dated 23.08.1978 was a very short
document, the Will dated 4.11.1992 was a detailed one running F
into six typed pages besides three long appendices and two
statements containing her investments in various shares within
and outside the country.
8. A learned Single Judge of the High Court by reason of
the impugned judgment refused to grant probate and/ or letters G
of administration in respect of both the Wills.
9. Whereas Civil Appeals arising out of SLP (C) Nos.
2791, 5831 and 9080 of 2006 have been filed against that part
of the judgment whereby and whereunder grant of probate in H
1020 SUPREME COURT REPORTS [2008] 6 S.C.R.

A respect of the Will dated 4.11.1992 has been rejected, Civil
Appeal arising out of SLP (C) No. 13865 of 2006 was filed in
respect of the Will dated 23.08.1978.
10. The Letters Patent Appeals were filed against the
judgment of the learned Single Judge of the High Court by both
B the parties which have been dismissed by the Division Bench •
of the High Court as not maintainable.

11. The learned counsel appearing for both the parties,
have addressed us on the merit of the matter. We are not
c considering the correctness or otherwise of the judgment of the
Division Bench of the High Court holding the Letters Patent
Appeals to be not maintainable, nor it is necessary for us so to
do.
12. We may also at the outset place on record that no
D argument has been advanced in regard to the findings of the
learned Single Judge of the High Court refusing to grant letters +- ~
of administration in respect of the Will dated 23.08.1978 of the
testatrix.
13. The learned Single Judge framed the following issues:
E
"(1) Whether the alleged Will with its appendices dated
4.11.1992 was duly executed by late Maharani
Sharmishthabai Holkar out of her free will, while she was,
in sound disposing state of mind;
F (2) Whether the Will dated 4.11.1992 has been acted
upon by the parties, if so, its effect;
(3) Whether late Maharani Sharmishthabai Holkar had
executed only one Will, i.e., dated 23.8.1978 out of her
free will while she was in sound disposing state of mind;"
G
14. The learned Single Judge in its judgment inter alia held
that the execution of the Will dated 4.11.1992 has not been
proved as:
(i) Appendices were not signed by the attesting
H
ANIL KAK v. KUMARI SHARADA RAJE & ORS. 1021
~'(
[S.B. SINHA, J.]

witnesses; A
(ii) The Will remained in the custody of Anil Kak for a
long time;
(iii) Anil Kak did not examine himself as a witness;
; B
(iv) As an unequal division of the properties described
i- in Part B of the Will effected, there existed suspicious
circumstances.

(v) Anil Kak took part in preparation of the Will

15. Mr. Arun Jaitley and Mr. R.F. Nariman, learned senior c
counsel appearing on behalf of the appellants, in support of the
appeal, submitted:
(i) The High Court committed a serious error in passing
the impugned judgment insofar as it failed to take
D
into consideration that the testatrix had divided her
·+ propertif:ls equally amongst her four daughters as
also her grand children and, therefore, there did not
exist any circumstance to suspect the genuineness
of the Will.
E
(ii) The High Court committed a serious factual error
insofar as it proceeded on the premise that Part B
assets were divided only amongst three grand
children; whereas in fact fourth grand child Vijayendra
Ghatge was also a beneficiary under the Will. F
(iii) Appendices were annexed with the Will for the
purpose of bringing out clarities in regard to the
division of the properties.
(iv) Medical certificates were annexed to the Will go to G
show that the testatrix had a sound disposing mind,
and, thus, the burden of proof was on the caveafors
-+ to prove contra.
(v) The High Court committed a serious error insofar as
it failed to take into consideration the effect and H
1022 SUPREME COURT REPORTS [2008] 6 S.C.R.

A purport of Sections 64, 87 and 103 of the Indian
Succession Act (for short "the Act").

16. Mr. S.B. Upadhyay, learned senior counsel appearing
on behalf of the respondents, on the other hand, urged:

B (i) The Will dated 4.11.1992 was surrounded by '
suspicious circumstances as one of the executors +
was husband of one of the grand children and son-
in-law of one of the daughters, whose family in turn
was the beneficiary of the maximum number of
c properties, viz., 27 out of 35 items.

(ii) In view of a clear finding of fact arrived at by the High
Court that the appellant Anil Kak had not only taken
away the Will, he had also not disclose thereabout to
the near relatives for a long time, is also a pointer to
D show that the execution of the Will by the testatrix
was doubtful.
(iii) Appendices attached to the Will having been brought
into existence at a later date, the provisions contained
in Sections 64, 87 and 103 of the Act will have no
E application, in the instant case.

17. Testatrix at the time of execution of the Will was 85
years old. She was owner of substantial properties.
18. Although all the four daughters of the testatrix were the
F beneficiaries of the properties described in Part A of the Will, ,__
detailed directions as to how the said estate is to be
administered had been made therein. Even in relation to the
criteria as regards distribution of assets including the manner
in which the tax and other liabilities are to be made and how the
G investments with banks and others are to be encashed, if
necessary to be encashed have been stated. More importantly,
however, the shares in the companies were to be held in the
joint names of the testatrix as also the joint executors. The
executors were to hold the same in trust. Whether the said
H direction had been carrieci out and, if so, how and in what manner
ANIL KAK v. KUMARI SHARADA RAJE & ORS. 1023
[S.B. SINHA, J.]
,,,.
is not known. Executors had also been granted express power A
to recall and repossess the jewellery, money or money's wroth
possessed by any beneficiary of the Will or legatee but
ownership of which was not conferred on them for the purpose
of meeting government dues, liabilities or expenses.
/' 19. We may at this stage notice a few stipulations made B

+ in the said Will dated 4.11.1992, which are as under:
"B-4. The Executors will distribute the shares in companies
as detailed in Appendix 'B' togetherwith the rights accruing
thereto. c
B-5. The jewellery belonging to me other than described
in Part 'A' have been divided and earmarked in different
names as per Appendix 'C'. I bequeath the items of my
jewellery accordingly.
D
B-6. I bequeath my shares in companies and deposit with
·+ the Seattle Bank in U.S.A. in favour of the respective
nominees/ joint-holders as per Appendix. All expenses,
liabilities, taxes, fees, etc. in realizing and distributing the
said assets shall be borne proportionately by the
nominees/ joint-holders." E

20. The Will was purported to have been executed in
presence of one Shanta Kumari Jain, a notary. Two medical
certificates; one issued by Dr. S.K. Mukherjee and the other by
Dr. Normal Sharma, were also annexed thereto. F
r"
21. It is not denied or disputed that the appellant Anil Kak
took an active part in the matter of preparation and execution of
the Will.
For proving the said Will, the appellants examined one of G
the executors, viz., Kumar Rampratap Singh as PW-1. He was
not aware of the contents of the Will. It was handed over to him
..), on 10.09.1993 by Shri T.N. Unni (PW-6), Chartered Accountant.
It was in turn handed over to Anil Kak. The said Will was not
executed in his presence. He was not even aware of the
H
1024 SUPREME COURT REPORTS [2008] 6 S.C.R.

'I '
A execution thereof.
22. Shanta Kumari Jain, Notary, Geeta Sanghi, one of the
attesting witnesses and T.N. Unni examined themselves in
support of the case of the appellants.

B According to T.N. Unni, he had drafted only pages one to
•
six of the Will. The said Will was purported to have been
+-
executed at his residence at Indore. Geeta Sanghi and Baljeet
Bawa were the attesting witnesses. Baljit Bawa, as noticed
hereinbefore, was not examined. Geeta Sanghi sought to prove
c the testatrix's signature as also her own signatures on the Will.

23. It is beyond any doubt or dispute that none of the
attesting witnesses had put their signatures on appendices A
to C. Appendices A to C contain the list of jewelleries in great
details and which jewellery should be given to which grand
D daughter. The Wealth Tax assessment for the year 1992-93 was
also annexed by way of a statement showing the market value +-~
of the shares of the companies registered in India. Another
appendix specified that ACC and TISCO shares were to be
equally divided amongst four daughters, viz., as per their average
E market value on the date of latest Wealth Tax assessment.

A statement showing the market value of the shares of the
companies registered in U. K. as per the wealth tax assessment
for the year 1992-93 was also annexed. In regard to the division
thereof, it is stated that "each company's share is divided equally
F amongst my four daughters". Names of the daughters had again
been mentioned therein. Statement showing the value of quoted "'
shares as per wealth tax assessment for the year 1992-93 had
also been appended, the division whereof were to be done in
the following manner:
G
"The shares in each company will be divided into six equal
divisions. My grand children Gangesh Kumari, Jagat
Bingley and Ashish Dalvi will get one Division each and '-.._

my great grand children are bequeathed three remaining
shares as follows - Children of Gangesh Kumari get one
H
ANIL KAK v. KUMARI SHARADA RAJE & ORS. 1025
[S.B. SINHA, J.]
,¥
division, Children of Jagat Bingley get one division, children A
of Vijayendra Ghatge get one division. In case Ashish
Dalvi is married and has children before my demise, the
shares in each company will be divided into seven equal
divisions and distribution remains the same with the
additional division going to the children of Ashish Dalvi." B
~
24. It also contained bequeaths of jewellery from the
~
'
personal list of the testatrix as valued on 31st March, 1992 done
by Mis. J.R.M. Bhandari. It again contained the statement
showing the value of quoted shares in respect of certain
companies and the mode and manner in which division thereof c
should be carried out.
25. It has furthermore been admitted that those appendices
did not see the light of the day when the Will was executed by
the testatrix and attested and notarised.
D
26. It has furthermore not been disputed that whereas
~--+- Gangesh Kumari, Jagat Bingley and Ashish Dalvi are children
of Sumitra Raje Dalvi, the only other grand child of testatrix
Vijayender Ghatge is son of Sita Raje Ghatge. From the list
containing the details of the jewellery, it appears that Vijendera E
Ghatge and family had been given one semi rectangle clip set
with diamond and ruby cabochon and two buttons studded with
diamonds and pearls set in gold. Umika Ghatge had also been
given one square diamond ring and one bracelet watch set with
diamonds ruby and emerald. F
/)If It furthermore appears thatArjun Kak is also a beneficiary
under the Will.
27. The High Court made a distinction between the
documents which are mere appendices to an otherwise
G
complete Will and those which are part and parcel of the Will
forming its integral part.
28. From what has been noticed hereinbefore it is clearly
evident that division has not been made per stripe or per capita
but by species. Each one of the jewelleries which was to be H
1026 SUPREME COURT REPORTS [2008] 6 S.C.R.

A bequeathed to each of the beneficiary thereunder had "'~
specifically been specified. Moreover, from the valuation report,
it would appear that the respective distribution purported to have
been made in terms of the appendices would not make them of
equal value or nearabout which was the desire of the testatrix.
B 29. We may now notice the provisions of Sections 64, 87
and 103 of the Act whereupon strong reliance has been placed '
by the learned counsel appearing for the appellants. t-
Section 64 of the Act reads as under:
c "64. Incorporation of papers by reference - if a testator, in
a will or codicil duly attested, refers to any other document
then actually written as expressing any part of his intentions,
such document shall be deemed to form a part of the will
or codicil in which it is referred to."
D
30. The rule of incorporation by reference is well-known.
One document is incorporated by reference in another when it +..-
is referred to, as if it would form an integral part thereof. [See
Sarabjit Rick Singh v. Union of India 2007 (14) SCALE 263]

E 31. Principle of incorporation by reference was evolved
so as to avoid unnecessary repetition of the same documents
again and again in different parts of the original document. For
invoking the said principle, a document must be in existence. It
cannot be brought into existence later on. The executor of a
F document must know what the other document which he intends
to incorporate in the Will contains.
·'ll(i1

This aspect of the matter has been considered by the
House of Lords in l(Villiam Henry Singleton v. Thomas
Tomlinson and others [1878 (3) AC 404], wherein it was held:
G
"The question which arose in the Court below was whether
in construing the will and in determining what the rn~aning
of the testator was, this schedule could be looked at; and,
my Lords, on that point it will be quite sufficient if I refer to
the two propositions which were laid down, and which
H
ANIL KAK v. KUMAR! SHARADA RAJE & ORS. 1027
[S.B. SINHA, J.]
,+·
indeed were not challenged by any of the counsel at your A
Lordships' Bar. It was said that there are certain cases in
which, although a document is not admitted to probate,
still it may be referred to in a will in such a way as that you
are entitled to look at the document, because it is virtually
I- incorporated in that which is admitted to probate; and the B
two propositions which were laid down as the tests of the
--t case in which a document under those circumstances
could be looked at were these: first, that it must be clearly
identified by the description given of it in the will; and
secondly, that it must be shown to have been in existence c
at the time when the will was executed."
[See also Theobald on Wills, Sixteenth Edition, pages 59-
61]
In Halsbury's Laws of England, Fourth Edition, Paragraph
D
817 at pages 433-34, it is stated:
•·+
"Incorporation of documents: In certain cases documents
referred to in a testator's will or codicil, though not
themselves cjuly executed, may be incorporated in the will
and included in the probate[ Re Mardon [1944] P 109 at E
112, [1944] 2 All ER 397 at 399.] Such a document must
be strictly identified with the description contained in the
will; but extrinsic evidence is admissible for the purpose
of identification [See for instance, Allen v. Maddock (1858)
11 Moo PCC 427; Re Almosnino (1859) I SW & TR 508]. F
l"" The reference must be to a document as an existing
document [ Re Mordon ] and not to one which is to come
into existence at a future date[Re Sunderland (1866) LR
I P & D 198; Re Reid (1868) 38 LJP & M I; Durham v.
Northen [1895] P 66; Re Smart [1902] P 238. Certainty
G
and identification is the very essence of incorporation:
Croker v. Marquess of Hertford (1844) 4 Moo PCC 339
at 366, per Dr. Lushington.] The onus of proving the identity
of the document and its existence at the date of the will
lies upon the party seeking to establish it [Singleton v.
H
1028 SUPREME COURT REPORTS [2008] 6 S.C.R

A Tomlinson], but the court will draw inferences from the
circumstances surrounding the execution of the will.
If the will prima facie refers to the document as an existing
document, then, even though it appears from the
surrounding circumstances, namely the date of the signing
B of the document, that it was not in existence at the date
when the will was originally executed, the document may
nevertheless be admitted to probate, since the will is
treated as speaking from the date of its re- execution by
the codicil; but if the will, treated as speaking at the date
c of the codicil, still in terms refers to a future document, the
document cannot be admitted to probate even though it
was in existence at the date of the codicil.
[Re Smart [1902] P 238]."
D 32. Section 87 of the Act provides that testator's intention
to be effectuated as far as possible, stating: +1
"87. Testator's intention to be effectuated as far as possible.
- The intention of the testator shall not be set aside
because it cannot take effect to the full extent, but effect is
E to be given to it as far as possible."
33. In a case of this nature, however, in our opinion, Section
87 of the Act will have no application.
34. If the appendices formed an integral part of the Will
F and in their absence the Will was not complete, then the intention "'1

of the testator cannot be effectuated. A distinction must be made
between an incomplete Will and a complete Will although
intention of the testator cannot be effectuated.
G The testator's intention is collected from a consideration
of the whole Will and not from a part of it. If two parts of the
same Will are wholly irreconcilable, the court of law would not
be in a position to come to a finding that the Will dated
4.11.1992 could be given effect to irrespective of the
H appendices. In construing a 'Nill, no doubt all possible
ANIL KAK v. KUMAR! SHARADA RAJE & ORS. 1029
[S.B. SINHA, J.]
...-+-
contingencies are required to be taken into consideration. Even A
if a part is inv.alid, the entire document need not be invalidated,
only if it forms a severable part. [See Bajrang Factory Ltd. and
Another v. University of Calcutta and Others (2007) 7 SCC
183]
} In Halsbury's Laws of England, Fourth edition, Volume 50, B
page 332-33, it is stated:
-1-
"462. Leading principle of construction: The leading
principle of construction which is applicable to all wills
without qualification and overrides every other rule of c
construction is that the testator's intention is collected from
a consideration of the whole will taken in connection with
any evidence properly admissible, and the meaning of the
will and of every part of it is determined according to that
intention."
0
In P Manavala Chetty and five Ors. v. P Ramanujam
•+ Chetty and Anr [(1971)1 MLJ127], a single judge of the Madras
High Court on the duty of the court of construction to give intention
to the wishes of the testator opined:
"It is the obvious duty of the Court to ascertain and give E
effect to the true intentions of the testator and also avoid
any construction of the will which will defeat or frustrate or
bring about a situation which is directly contrary to the
intentions of the testator. At the same time, it must be
borne in mind that there are obvious limits to this doctrine F
f-<t.
that the Court should try to ascertain and give effect to the
intentions of the testator. The law requires a will to be in
writing and it cannot, consistently with this doctrine, permit
parol evidence or evidence of collateral circumstances to
be adduced to contradict or add to or vary the contents of G
such a will. No evidence, however powerful it may be,
can be given in a Court of construction in order to
~~ complete an incomplete will, or project back a valid will,
if the terms and conditions of the written will are useless
and in-effective to amount to a valid bequest, or to prove H
1030 SUPREME COURT REPORTS (2008] 6 S.C.R.

A any intention or wish of the testator not found in the will.
The testator's decl~rations or evidence of collateral
circumstances cannot control the operation of the clear
provisions of the will. The provisions of the Indian
Succession Act referred to earlier indicate the limits of the
B Court's power to take note of the testator's declarations
and the surroundings circumstances, i.e .. evidence of
collateral circumstances."

[Emphasis Supplied]
c As regards two inconsistent wills, with the latter being an
incomplete one, the judgment of Bagnall, Re [[1948] W.N. 324]
necessitates one discussions. In the said case, the testatrix had
made two wills, one in 1936 and the other in 1943. In the first
will, she gave certain legacies and disposed of the residue. In
the second will, she provided legacies of the same amounts
0
and in favour of the same persons but did not dispose of the
residue. The second will was not described as a codicil to the +- 4
first, nor did it expressly revoke it, but it was manifestly
incomplete, ended without any stop and in the middle of a
sentence and was signed by the testator at the bottom of the
E page leaving a large gap between the last words and the
signature. Probate was granted of both wills. It was held:
(i) Though the second will was far removed in date from
the first and was not called the "last will", it was
F intended, at any rate so far as it went, to take the
place of the first will, and, therefore, the legacies
given by the second will were in substitution so far as
.'
they went for those in the first;
(ii) An examination of the two documents, did not
G support the conclusion that the intention of the
testatrix, when she executed the second will, was
entirely to supersede the earlier instrument, and,
consequently, the first will effectively disposed of the
residue, and one legacy given in the first will but not
H repeated in the second will was not revoked by the
ANIL KAK v. KUMARI SHARADA RAJE & ORS. 1031
[S.B. SINHA, J.]

latter. A
In the judgment, the case of Kidd v: North [ 16 L.J. Ch. at
p. 117] was referred to. There, an incomplete testamentary

l
paper containing a legacy of 500 Pounds in favour of one
Bridgett Bibby was admitted to probate with a will and three
codicils of prior date and the question was whether this legacy B
was in substitution for a larger sum given by the first codicil.
-t Lord Chancellor, held, thus:
"When the testamentary papers of which probate is
granted appear to give several legacies to the same c
persons, it is often extremely difficult to ascertain what
was the real intention of the testator,; and to attain that
object as far as possible certain rules have been laid
down and nice distinctions taken; but such rules and
distinctions are applicable only to cases in which there is
D
no internal evidence of intention; for where there that is to
be found; it must prevail. Such is the present case; for I
r+ conceive it to be clear that the last testamentary paper
was intended to be in substitution for all the others, and to
supersede the provisions contained in them. It is indeed
incomplete; but the ecclesiastical court having granted E
probate of it, no question can be made as to its being
testamentary and operative as such so far as it goes. It is
reasonable to give such effect to the incomplete instrument,
if it contains within itself evidence of an intention to make
an entirely new disposition; and for that purpose to undo F
;_;, all that had been done before; but if the new disposition
applies only to part of the subject matter, the instrument
being upon the face of it incomplete, and not applying to
other parts, it is consistent with the principle to give effect
to this intention, so far as it is expressed, but to consider G
the first disposition as operative, so far as no substituted
disposition is provided in its place."
......
35. But. the aforementioned principle cannot be applied
in the instant case inasmuch as appendices appended to the
H
1032 SUPREME COURT REPORTS [2008] 6 S.C.R.

A Will clearly specify as to how and in what manner the intention
, ....

of the testatrix to divide her properties equally amongst her
daughters and/ or her grand children was to be implemented.
It is not a case where a general division was to be made
leaving the manner of application to the executors. The Will refers
B to appendices. Once it refers to the appendices indicating that
the distribution shall be in terms thereof, it is difficult to
comprehend as to how without the same, the Will can be said
f
to be a complete one so as to effectuate the intention of the
testator. The intention of the testator in other words must be
c found out from the entire Will. It has to be read as a whole. An
endeavour should be made to give effect to each part of it. Only
when one part cannot be given effect to, having regard to another
part, the doctrine of purposive construction as also the general
principles of construction of deed may be given effect to. In the
D instant case, the document is one. It is inseparable. Whereas
the principal document provides for the broad division, the
'f-- 1
principles of division laid down therein would be followed if the
appendices are to be taken recourse to. If the principles of
equality as has been suggested by the learned counsel is to be
E given effect to, it was expected that the testatrix intended to
confer the same benefit or the benefit having same value or
nearabout to be conferred on each of the legatees.
In effect and substance, the purported directions contained
in the appendices which did not see the light of the day on the
F date of execution of the Will, make the application of the
directions of the testatrix wholly impossible to be carried out. It .'
is in that sense the provisions of Section 87 of the Act are
applicable.
36. The High Court has assigned good and cogent
G
reasons in support of its judgment for not accepting the evidence
of Mr. Unni. Mr. Unni admitted that the appendices were to be
brought by Anil Kak. If the same had not been brought to her on
the day the Will was executed, we wonder how the testatrix had
knowledge thereabout. It now almost stands admitted that the
H
ANIL KAK v. KUMAR! SHARADA RAJE & ORS. 1033
[S.B. SINHA, J.]
:r+·
appendices did not form part of the Will at the time of its A
purported execution. If the Will was incomplete the question of
its proving the execution does not arise. An integral part of the
document for the purpose of satisfying the tests laid down under
Section 63(1 )(c) of the Act and Section 68 of the Evidence Act
I must mean a complete document. B

---\· 37. In "Jarman on Wills", Volume 1, Eight Edition (Sweet
& Maxwell) at Pages 145-46 on Incomplete Wills, it is stated:
"XII.- Incomplete Wills: Cases sometimes occurred under
the old law, and may possibly arise under the present, in c
which something more than mere compliance with legal
requirements was made necessary to the efficacy of the
will by the testator himself, he having chose to prescribe
to himself a special mode of execution; for in such case,
if the testator afterwards neglects to comply with the
D
prescribed formalities, the inference to be drawn from
; A-
these circumstances is, that he had not fully and definitely
resolved on adopting the paper as his will [Accordingly,
under the old law, which did not require wills of personalty
to be authenticated by the testator's signature or by
attestation, the Prerogative court in several instances E
refused to probate of wills, concluding with the words "In
Witness", etc , but not signed: Abbot v. Peters, 4 Hagg.
380. Questions as to the testamentary validity of

~ . incomplete papers rarely occur in practice, now that
authentication of signature and attestation are essential F
to such validity.] The presumption is slight where the
instrument is duly signed and attested, and perfect in all
other respects, but must apparently be rebutted by some
evidence before it can be admitted to probate.[ Per Sir J.
Nicholl in Beaty v. Beaty. See also 1 Wms. Exors., Pt. 1., G
Bk. II , Ch. II, s.2.].
-~ But this doctrine in favour of imperfect papers obtains
only where the defect is in regard to some formal act,
which the testator has prescribed as necessary for the
H
1034 SUPREME COURT REPORTS (2008] 6 S.C.R.

A authentication of his will, and not where it applies to the
contents of the instrument; for, if in its actual state the
paper contains only a partial disclosure ifthe testamentary
scheme of the deceased, it necessarily fails of effect, even
though its completion was prevented by circumstances
B beyond his control [ Montefiore v. Montefiore, 23 Ad. 354;
see also Griffin v. Griffin, 4 Ves. 197, n. This case afforded
two sufficient grounds for the rejection of the paper; first,
that it was not the whole will; and secondly, that its
completion was not prevented by inevitable
c circumstances].

In short, the presumption is always against a paper which
bears self-evident marks of being unfinished; and it
behoves those who assert its testamentary character
distinctly to show, either that the deceased intended the
D paper in its actual condition to operate as his will, or that
he was prevented by involuntary accident from completing
it [Reayv. Cowcher, 1 hagg. 75, 2 ib. 249; Wood v. medley,
1 ib. 661; In b. Robinson, ib. 643; Bragge v. Dyer, 3 hag.
207; Gillow v. Bourne, 4 Hagg. 192. And to the contrary
E presumption in favour of a regularly executed and
apparently completed will, vide Shadbolt v. Wagh. 570;
Blewitt v. Blewitt, 4 Hagg. 410.]"

To the same effect is Alexander on "Commentaries on
Wills" Vol. I, Exceution at page 193-94 which states:
F
"prior to the Statute of Wills of 1 Viet., ch. 26, and the -I '

American statutes, which require the same formalities in
the execution and attestation of wills of personalty as in
devises of realty, the courts allowed imperfectly executed
testamentary writings to take effect as nuncupative
G
dispositions of personalty, where it appeared that the
testators intended them to operate in the form in which
they were found, and that the failure to completely execute
them arose for some reason other than a purpose to
-
abandon."
H
ANIL KAK v. KUMARI SHARADA RAJE & ORS. 1035
[S.B. SINHA, J.]

It was further stated: A
"But the courts always viewed such instruments with
suspicion and, in proportion to the incompleteness of the
document, demanded a higher degree of evidence ... But
the more modern day doctrine is that a nuncupative will
can be made only by spoken words or by signs and that, B
)
if the words be reduced to writing by the testator or by
-t someone else at his request, they lose their nuncupative
character. And it seems that under the modern statutes
and rulings, even verbal instructions for drawing up a
written will, although spoken in the presence of the proper c
number of witnesses, can not be admitted to probate as
a nuncupative will."
38. Section 103 of the Act speaks of a residuary bequest
but the same evidently has no application in this case.
D
The execution of the Will becomes impossible both in
;. .+\ respect of the properties described in Part A and Part B.
39. Furthermore, the Will is surrounded by suspicious
circumstances.
E
The execution of a Will does not only mean proving of the
signatures of the executors and the attesting witnesses. It means
something more. A Will is not an ordinary document. It although
requires to be proved like any other documents but the statutory
conditions imposed by reason of Section 63(c) of the Act and F
Section 68 of the Indian Evidence Act cannot be ignored.
f i
In B. Venkatamuni v: C.J. Ayodhya Ram Singh & Ors.
[2006 (11) SCALE 148], this Court 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
H
1036 SUPREME COURT REPORTS [2008] 6 S.C.R.

..f.,
A the mode and manner in which proof of execution of
document which is required by law to be attested stating
that the execution must be proved by at least one attesting
witness, if an attesting witness is alive and subject to the
process of the Court and capable of giving evidence."
B Yet again in Niranjan Umeshchandra Joshi v. Mrudula
Jyoti Rao & Ors. [2006 (14) SCALE 186], this Court held:
-,..
"Section 63 of the Indian Succession Act lays down the
mode and manner of execution of an unprivileged Will.
c Section 68 of the Indian Evidence Act postulates the mode
and manner of execution of document which 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 court and capable of giving evidence. A
D
Will is to prove what is loosely called as primary evidence,
except where proof is permitted by leading secondary T ~
evidence. Unlike other documents, proof of execution of
any other document under the Act would not be sufficient
as in terms of Section 68 of the Indian Evidence Act,
E execution must be proved at least by one of the attesting
witnesses. While making 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.
F
The burden of proof that the Will has been validly executed
'
and 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
G
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 would be on the applicant to remove the
suspicion by leading sufficient and cogent evidence if there
H
ANIL KAK v. KUMAR! SHARADA RAJE & ORS. 1037
[S.B. SINHA, J.]
... t-
exists any. In the case of proof of Will, a signature of a 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 would be on the caveator. [See
) Madhukar D. Shende v. Tarabai Shedage (2002) 2 SCC B
85 and Sridevi & Ors. v. Jayaraja Shetty & Ors. (2005) 8
'1- SCC 784]. Subject to above, proof of a Will does not
ordinarily differ from that of proving any other document."

[See also Adivekka and Others v. Hanamavva Kam
Venkatesh (Dead) By LRs. and Another (2007) 7 SCC 91] c
40. Whereas execution of any other document can be
proved by proving the writings of the document or the contents
of it as also the execution thereof, in the event there exists
suspicious circumstances the party seeking to obtain probate
D
and/ or letters of administration with a copy of the Will annexed
t-+ must also adduce evidence to the satisfaction of the court before
it can be accepted as genuine.
41. As an order granting probate is a judgment in rem, the
court must also satisfy its conscience before it passes an order. E
It may be true that deprivation of a due share by the natural
heir by itself may not be held to be a suspicious circumstance
but it is one of the factors which is taken into consideration by
the courts before granting probate of a Will.
F
! .... Unlike other documents, even animus attestandi is a
necessary ingredient for proving the attestation.
In Benga Behera & Anr. v. Braja Kishore Nanda & Ors.
[2007 (7) SCALE 228], this Court held:
G
"46. Existence of suspicious circumstances itself may be
held to be sufficient to arrive at a conclusion that execution
of the Will has not duly been proved."
In B. Venkatamuni v. C.J. Ayodhya Ram Singh & Ors.
[2006 (11) SCALE 148], it was stated: H
1038 SUPREME COURT REPORTS [2008] 6 S.C.R.

.+ ...
A "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
B 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
c situation obtaining therein.
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
D
circumstances surrounding the execution thereof is not of
much significance. +- ~
The suspicious circumstances pointed out by the learned
District Judge and the learned Single Judge of the High
E 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
court. It applied a wrong legal test and thus, came to an
F erroneous decision."

Yet again in Savithri & Ors. v. Karthyayani Amma & Ors.
., '
[JT 2007 (12) SC 248], this Court held:
"18. We do not find in the fact situation obtaining herein
that any such suspicious circumstance was existing. We
G
are not unmindful of the fact that the court must satisfy its
conscience before its genuineness is accepted. But what
is necessary therefor, is a rational approach. ,_
19. Deprivation of a due share by the natural heirs itself is
H not a factor which would lead to the conclusion that there
ANIL KAK v. KUMARI SHARADA RAJE & ORS. 1039
[S.B. SINHA, J.]

exist suspicious circumstances. For the said purpose, as A
noticed hereinbefore, the background facts should also
be taken into consideration. The son was not meeting his
father. He had not been attending to him. He was not even
meeting the expenses for his treatment from 1959, when
) he lost his job till his death in 1978. The testator was living B
with his sister and her children. If in that situation, if he
executed a Will in their favour, no exception thereto can
be taken. Even then, something was left for the appellant."

42. The court is, thus, required to adopt a rational approach
in a situation of this nature. Once the court is required to satisfy C
its conscience, existence of suspicious circumstances play a
prominent role. The Will, as noticed hereinbefore, is in two parts.
Whereas the first part deals with the property belonging to the
husband of the testatrix, the second part deals with the
properties which purportedly belongs to her. Distribution of D
assets, however, was not specifically stated in the Will. They
were to be made as per the appendices annexed thereto. The
appendices which were required to be read as a part of the
main Will so as to effectuate the intention of the testatrix have
not been proved. The Will by its own cannot be given effect to. E
The Will must be read along with the appendices. No doubt in
construing a Will arm chair rule is to be adopted. The Will was,
therefore, not complete. It is not correct to contend that the
appendices were very much in existence at the time when the
Will was executed. Existence of a document must mean the F
actual existence.
We are, therefore, of the opinion that no case has been
made out for interference with the impugned judgment.
43. For the reasons aforementioned, the appeals are G
dismissed with costs. Counsel's fee assessed at Rs.50,000/-.
N.J. Appeals dismissed.