DEREK A C LOBO & ORS.versusULRIC M A LOBO (DEAD) BY LRS. & ORS.

                 [2023] 16 S.C.R. 1547 : 2023 INSC 1093



                               CASE DETAILS

                         DEREK A C LOBO & ORS.
                                         v.
              ULRIC M A LOBO (DEAD) BY LRS. & ORS.
                       (Civil Appeal No. 5094 of 2011)
                            DECEMBER, 07 2023
          [C.T. RAVIKUMAR AND SANJAY KUMAR, JJ.]
                                HEADNOTES
       Issue for consideration: After appreciating the oral and documentary
evidence, the trial Court decreed the suit (probate of Will) and held that the
plaintiffs are entitled to the grant of probate of the last Will and testament dated
10.11.1992 of their deceased mother C. However, the High Court reversed
the judgment and decree of the trial Court. In view of the undisputed position
that the Will was executed by C, the question to be considered is whether the
circumstances taken as suspicious circumstances by the High Court are in troth,
suspicious circumstances, capable of calling the propounder to dispel them.
     Will – Probate of – The High Court after re-appreciation of the
evidence held that the Will dated 10.11.1992 is shrouded with suspicious
circumstances and reversed the judgment and decree of the trial Court
– Propriety:
      Held: The unrefuted factual position obtained from the evidence on
record is that the testatrix who died on 08.01.1993 at the age of 69 years,
had studied up to S.S.L.C and was able to read and write English – She was
a Municipal Councilor for 6 years besides being an active Social Worker –
PW-3, one of the attesting witnesses to the Will in question, would depose
that the testatrix herself called him to attest the Will and that he had seen
the testatrix reading the papers before putting the signatures – PW-2, who
is one of the sons of testatrix also corroborated the version that PW-3 was
called over phone by his mother to attest the Will and that she had also read
the Will – Nothing to disbelieve their versions was elicited by the defendants
during their cross-examinations – PW-3 deposed that it was in his presence
that the testatrix had signed the Will – It cannot be said that a person afflicted
                                       1547
1548          SUPREME COURT REPORTS                       [2023] 16 S.C.R.


with arthritis would not be in a position to read and understand the contents
of a document – This Court has also adverted to the amendment sought to
be brought in by defendant No.5 by producing Ext.D5 – Evidence on record
would reveal that the testatrix was in hospital for 53 days till her death on
08.01.1993 – Despite such position if the 5th defendant takes a stand that
she was in a sound disposition of mind on 20.11.1992 to execute Ext.D5,
how would he be justified in raising a case that the testatrix was not in a
sound disposition of mind prior to her hospitalization i.e., on 10.11.1992
(Will and testament disputed) – In view of his case attempted to be brought
in through Ext.D5, contention could not have been raised that the testatrix
was not in sound disposition of mind – Also, the legal representatives of
deceased defendant No.5 who alone disputed the execution of Ext.P2 Will,
are not contesting the matter – The testatrix was not illiterate and she did
not put her signature without understanding the contents of the Will – In
the circumstances, the said suspicions that excited the mind of defendant
No.5 and accepted by the High Court cannot survive – Thus, they cannot
be sustained. [Paras 14, 17]
       Will – Suspicious circumstances:
      Held: A party challenging the execution of a Will as suspicious must
plead the suspicious circumstances and then only the propounder would
legally be bound to remove these suspicious circumstances. [Para 15]
       Will – Burden to prove – Shifting the onus:
     Held: Once the burden to prove is discharged by the propounder in
terms of s.63 of the Succession Act and s.68 of the Evidence Act, and by
adducing prima facie evidence proving the competence of the testator,
the onus is on the contestant opposing to show prima facie the existence
of suspicious circumstances so as to shift the onus on the propounder to
dispel them – Without knowing the circumstances, which according to the
contestant opposing are suspicious, how will the propounder be able to dispel
them and to convince the court about its genuineness and validity. [Para 16]
        LIST OF CITATIONS AND OTHER REFERENCES
     Meenakshiammal (Dead) through Lrs. And others v. Chandrasekharan and
Another, [2004] 5 Suppl. SCR 898 : (2005) 1 SCC 280; Madhukar D. Shende v.
Tarabai Aba Shedage, [2002] 1 SCR 132 : (2002) 2 SCC 85 – relied on.
                DEREK A C LOBO & ORS. v.                             1549
          ULRIC M A LOBO (DEAD) BY LRS. & ORS.

      Moturu Nalini Kanth v. Gainedi Kaliprasad (Dead, Through Lrs., 2023
SCC Online SC 1488; Gurdial Kaur & Ors. v. Kartar Kaur & Ors., [1998]
2 SCR 486 : (1998) 4 SCC 384; Ramabai Padmakar Patil (D) Through Lrs.
and Ors. Vs. Rukminibai Vishnu Vekhande and Ors., [2003] 2 Suppl. SCR
583 : (2003) 8 SCC 537 – referred to.
      Nathia Bai and Ors. v. Gangaram and Ors., (2010) 1 MPLJ 140 –
referred to.
      OTHER CASE DETAILS INCLUDING IMPUGNED
             ORDER AND APPEARANCES
     CIVIL APPELLATE JURISDICTION : Civil Appeal No.5094 of 2011.
    From the Judgment and Order dated 21.11.2008 of the High Court of
Karnataka at Bangalore in MFA No.3077 of 2001.
     Appearances:
    Nikhil Nayyar, Sr. Adv., Ms. Pritha Srikumar Iyer, Naveen Hegde,
Abhyudaya Shishodia,, Advs. for the Appellants.
    Devashish Bharuka, Ms. Sarvshree, Ms. Swati Mishra, Advs. for the
Respondents.
       JUDGMENT / ORDER OF THE SUPREME COURT

                              JUDGMENT

     C.T. RAVIKUMAR, J.
     1. This appeal is filed against the judgment and order dated
21.11.2008 passed by the High Court of Karnataka at Bangalore in M.F.A.
No.3077 of 2001 reversing the judgment and decree dated 20.02.2001
passed by the III Additional District Judge, Dakshina Kannada at
Mangalore in O.S. No.21 of 1997.
     2. The suit in question was originally filed as a petition for probate
of the Will dated 10.11.1992, executed by deceased Cecelia Lobo, by
her sons Dr. Derek AC Lobo and Cedric P.A. Lobo who are the joint
executors named therein. In the said proceedings the original defendants 1
and 6, who are the daughters of deceased Cecelia Lobo, put in caveat and
1550         SUPREME COURT REPORTS                        [2023] 16 S.C.R.


disputed its execution and genuineness. Subsequently, it was converted
as an original suit under Section 295 of the Indian Succession Act and
was numbered as O.S. No.21/1997. Evidently, the 5th defendant who
was another brother of the appellants resisted the suit by filing a written
statement and the sisters of the appellants herein who are respondent
Nos. 3 and 7 herein (defendant Nos. 1 and 6 in the suit), jointly filed
a written statement. On the side of the plaintiffs, the first plaintiff got
himself examined as PW-1, defendant No.7 was examined as PW-2 and
one of the attesting witnesses was examined as PW-3. On the side of
the defendants, defendant No.5 was examined as DW-1, one Jathin C.
Patna was examined as DW-2 and a finger print and hand writing expert
by name C.V. Jayadevi was examined as DW-3. After appreciating the
oral and documentary evidence, the trial Court decreed the suit and
held that the plaintiffs are entitled to the grant of probate of the last
Will and testament dated 10.11.1992 of their deceased mother Cecilia
Gertrude Lobo. Further consequential directions were also issued as per
the judgment dated 20.02.2001.
      3. Aggrieved by the judgment and decree of the trial Court, defendant
No.5 preferred appeal viz., M.F.A. No.3077 of 2021, which ultimately
culminated in the impugned judgment. None of the other defendants filed any
appeal against it. After re-appreciation of the evidence the High Court held
that the Will dated 10.11.1992 is shrouded with suspicious circumstances
and reversed the judgment and decree of the trial Court. As a necessary
sequel the suit was dismissed.
     4. As per the order dated 09.07.2009, this Court ordered the parties
to maintain the status quo, as it existed on that date, until further orders.
     5. Heard Mr. Nikhil Nayyar, the learned senior counsel for the
appellants and Mr. Devashish Bharuka, the learned counsel for respondent
Nos. 2 and 3 who were defendant Nos. 1 and 6. None of the other respondents
including the legal representatives of deceased defendant Nos. 3 and 5 have
chosen to contest the matter despite the receipt of notice.
      6. A bare perusal of the judgment and decree of the trial Court as
well as the impugned order would reveal that with respect to the issue of
execution of the Will dated 10.11.1992 by deceased Cecelia Gertrude Lobo
the courts are ad idem, in the sense that it was she who had signed the same
                 DEREK A C LOBO & ORS. v.                                 1551
           ULRIC M A LOBO (DEAD) BY LRS. & ORS.

as testatrix. The trial Court held that the plaintiffs had succeeded in proving
the execution of the Will in terms of the provisions under Section 63 of the
Indian Succession Act, 1925 (for brevity, ‘the Succession Act’) and Section
68 of the Indian Evidence Act, 1872 (for short, ‘the Evidence Act’). However,
even after finding that the Will was executed by Mrs. Cecilia Gertrude Lobo
the High Court reversed the judgment of the trial Court holding that in view
of the suspicious circumstances it could not have been held that the plaintiffs
had succeeded in proving due and valid execution of the Will. In troth, High
Court did not specifically enter into any specific finding regarding the mental
condition of the testatrix for executing the Will in question. The impugned
order would reveal that after elaborately considering the physical state of
the testatrix that she was suffering from arthritis and was in considerable
pain the High Court held that there was nothing on record to show that she
had executed it after understanding its contents. We will dilate on this point
a little later. The suspicious circumstances enumerated by the High Court
are as under:
     (i)   Failure to prove that the testatrix executed the Will after
           understanding its contents;
     (ii) The prominent-participation of the beneficiaries of the Will in
          getting the Will executed;
     (iii) No reason is forthcoming, virtually not discernible, from the Will
           as to why some of the children were dis-inherited by the testatrix;
     (iv) Non-examination of the material witnesses including the advocate
          who prepared the draft Will and;
     (v)   Sale of some of the properties by the plaintiffs after the death of
           the testatrix, but before the grant of probate of the Will.
      7. It was assigning such reasons and taking them as suspicious
circumstances surrounding the subject Will that the High Court reversed
the judgment and decree of the trial Court holding that the trial Court went
wrong in finding that the plaintiffs had succeeded in proving due and valid
execution of the Will dated 10.11.1992.
      8. It is well-nigh settled position that the burden to prove the execution
of the Will is on the propounder(s) and on its discharge the onus would
be on the opposing contestant to establish that it is not valid. Certainly, if
1552          SUPREME COURT REPORTS                         [2023] 16 S.C.R.


suspicious circumstances have been pleaded by the contestant opposing Will
and prima facie shown them to be true, then the onus would be shifted to the
propounder(s) to dispel the suspicious circumstances to the satisfaction of
the court so as to accept it as genuine. In the light of the position so settled
and in view of the fact that the trial Court and the High Court are at issue on
the question whether the Will in question was proved as valid, in accordance
with law, we will have to proceed to consider the said question. In that regard,
in view of the undisputed position that the Will was executed by Cecelia
Gertrude Lobo, the question to be considered is whether the circumstances
taken as suspicious circumstances by the High Court are in troth, suspicious
circumstances, capable of calling the propounder to dispel them.
      9. For a proper consideration of the case on hand it is apposite to refer
to the decision of this Court in “Moturu Nalini Kanth v. Gainedi Kaliprasad
(Dead, Through Lrs.)1” rendered after referring to and relying on various
previous authorities on the legal requirements to prove a Will. This Court
had elaborately considered the essential legal requirements to prove a Will
and ultimately held that mere registration of a Will would not attach to it a
stamp of validity and it must still be proved in terms of the legal mandates
under the said provisions of Section 63 of the Succession Act and Section
68 of the Evidence Act.
      10. Section 63 of the Succession Act prescribes the mode and method
of proving a Will and going by the provisions under Section 68 of the
Evidence Act, though a Will shall not be used as evidence until one of
the attesting witnesses has been examined. It will suffice to examine one
of the attesting witnesses to prove the same. We may hasten to add and
emphasize here that well-founded suspicious circumstance(s) if made out
by any contestant opposing the Will concerned will shift the onus on the
propounder to dispel such circumstance(s) to the satisfaction of the Court.
In the case on hand, there is no dispute with respect to the fact that one of
the attesting witnesses, namely, Gregory Paris was examined and as such,
there can be no case that the mandate under Section 68 of the Evidence Act
was not complied with. There can also be no dispute that the witness had
signed the Will in the presence of the testatrix after she had executed the
same, going by the evidence on record.


1   2023 SCC Online SC 1488
                 DEREK A C LOBO & ORS. v.                                1553
           ULRIC M A LOBO (DEAD) BY LRS. & ORS.

      11. Evidently, the trial Court had taken into account the entire evidence
on record to conclude that legal requirements in terms of the provisions under
Section 63 of the Succession Act and under Section 68 of the Evidence Act
have been complied with by the plaintiffs and ultimately to hold that the
plaintiffs have succeeded in proving the execution of the Will.
      12. On the question of execution of the Will dated 10.11.1992,
paragraph 21 of the impugned order itself would reveal that the High Court
after appreciating the pleadings as also the oral evidence including that of
PW-1 and PW-2, and the documentary evidence observed and found that
defendant Nos.1 to 4 and 6 had decided not to contest execution of the Will
and further that it was only defendant No.5 (the appellant therein) who
had contested the execution of the Will, while considering the question
whether acknowledgment given by defendant No.1 and others as also the
letters written by defendant No.1 would help in proving the due and valid
execution of the Will. The relevant recital in that regard in paragraph 21 of
the impugned judgment reads thus:
     “21. ......... It is clear from the evidence of PW.2 as also PW.1 that the
     defendants 1 to 4 and 6 have decided not to contest execution of the will
     and they were supporting the plaintiffs and it was only defendant No.5
     who has contested execution of the will and therefore, any letter written
     by the said parties who are not contesting the case and supporting the
     plaintiff would not in any way be helpful to the plaintiffs and therefore,
     the conduct of the plaintiff and defendants 1 to 4, 6 and 7 has to be
     considered in that behalf and much importance could not be attached
     to the documents which have come into existence at the instance of
     defendants who are supporting the plaintiffs......”
      13. In view of the indisputable position thus obtained and that despite
the grant of probate by the trial Court the 5th defendant alone had chosen to
file appeal against the judgment and decree of the trial Court and further that
defendant No.5 is no more, only the legal representatives of the deceased
defendant No.5 can be permitted to contest on the execution of the Will. But
then, it is a fact that the legal representatives of deceased defendant Nos.3
and 5 have not chosen to contest the matter in the present proceedings despite
being served. Above all, it is an indisputable fact that the 5th defendant had
earlier attempted to bring in a case by way of amendment (though ultimately
1554          SUPREME COURT REPORTS                          [2023] 16 S.C.R.


failed to prove) that the Will in question dated 10.11.1992 was subsequently
revoked by the testatrix on 20.11.1992 as per Ext.D5. Two aspects turn out
of it. Firstly, his admission to the fact that the subject Will dated 10.11.1992
was actually executed by the testatrix and she was fully aware of its contents.
We may hasten to add that though the 5th defendant had produced Ext.D5
on 08.06.1999, both the trial Court and the High Court returned findings
against the 5th defendant.
      14. Now, going by the evidence on record, the testatrix was admitted
in Jaslok Hospital, Bombay on 11.11.1992 only for knee replacement
surgery to alleviate the affliction due to arthritis. Evidence on record would
reveal that the testatrix underwent blood transfusion for three days, that
thereafter underwent surgery and her condition became critical and that
she remained in the said hospital for 53 days till her death on 08.01.1993.
Despite such position if the 5th defendant takes a stand that she was in a
sound disposition of mind on 20.11.1992 to execute Ext.D5, how would he
be justified in raising a case that the testatrix was not in a sound disposition
of mind prior to her hospitalization in Jaslok Hospital, Bombay i.e., on
10.11.1992. In view of his case attempted to be brought in through Ext.D5
the 5th respondent could not have raised the contention that the testatrix was
not in sound disposition of mind. This is the second aspect turning out of
Ext.D5. We adverted to the aforesaid aspects revealed from evidence solely
to show the hollowness of the case of the 5th defendant that Ext.P2 – Will
dated 10.11.1992 was not executed with sound disposition. Anyway, the
legal representatives of deceased defendant No.5 who alone disputed the
execution of Ext.P2 Will, are not contesting the matter. The upshot of the
discussion is that the contesting respondent Nos.2 and 3 viz., defendant Nos.1
and 6 in the suit cannot be permitted to dispute the execution of the Will
dated 10.11.1992 and that they can be permitted to urge only for sustaining
the impugned judgment.
      15. Now, we will refer to the cited suspicious circumstances. In
the light of the decision in Gurdial Kaur & Ors. v. Kartar Kaur & Ors.2
there can be no doubt with respect to the position that when suspicious
circumstances exist about the valid execution of a Will, it is the duty of


2   (1998) 4 SCC 384
                 DEREK A C LOBO & ORS. v.                                1555
           ULRIC M A LOBO (DEAD) BY LRS. & ORS.

the person seeking declaration about the validity of the Will to dispel such
suspicious circumstances. In this context, we think it not inappropriate to
refer to a decision of the High Court of Madhya Pradesh, in Nathia Bai
and Ors. v. Gangaram and Ors.3, with which we agree, rendered relying on
the decisions of this Court in Meenakshiammal (Dead) through Lrs. And
others v. Chandrasekharan and Another4 and in P.P.K. Gopalan Nambiar
v. P.P.K. Balakrishnan Nambiar5, that a party challenging the execution
of a Will as suspicious must plead the suspicious circumstances and then
only the propounder would legally be bound to remove these suspicious
circumstances.
     In Nathia Bai’s case it was held thus:-
     “11. The Will is required to be proved just like any other document
     by adducing the additional evidence to prove the ingredients as
     envisaged under Section 63(c) of the Succession Act by examining
     the attesting witness according to Section 68 of the Evidence Act. It
     is also well settled that the propounder of the Will is required to prove
     the Will by removing all suspicious circumstances. Thus, if suspicious
     circumstances would have been pleaded by the defendants, then only
     the plaintiffs, who are the propounder of the Will, were legally bound
     to remove those suspicious circumstances. The contestant opposing the
     Will, according to me, was required to bring the material on record so
     that the Will can be said to be a suspicious document and in that event
     the onus would shift back on the propounder of the Will to satisfy the
     Court by adducing positive evidence that the Will is not suspicious.......
                                                        (Underline Supplied)
     In the decision in Meenakshiammal’s case (supra), it was held in
paragraphs 19 and 20 thus:-
     “19. In the case of Chinmoyee Saha v. Debendra Lal Saha6 it has
     been held that if the propounder takes a prominent part in the



3   (2010) 1 MPLJ 140
4   (2005) 1 SCC 280
5   AIR 1995 SC 1852
6   AIR 1958 Cal 349
1556          SUPREME COURT REPORTS                       [2023] 16 S.C.R.


       execution of the will, which confers a substantial benefit on him,
       the propounder is required to remove the doubts by clear and
       satisfactory evidence. Once the propounder proves that the will was
       signed by the testator, that he was at the relevant time in a sound
       disposing state of mind, that he understood the nature and effect of
       the disposition and put his signature out of his own free will, and
       that he signed it in presence of the witnesses who attested it in his
       presence, the onus, which rests on the propounder, is discharged
       and when allegation of undue influence, fraud or coercion is made
       by the caveator, the onus is on the caveator to prove the same.
       20. In the case of Ryali Kameswara Rao v. Bendapudi
       Suryaprakasarao 7 this Court while discussing the provisions
       of Section 63 of the Succession Act, 1925, has held that the
       suspicion alleged must be one inherent in the transaction itself
       and not the doubt that may arise from conflict of testimony which
       becomes apparent on an investigation of the transaction. That
       suspicious circumstances cannot be defined precisely. They cannot
       be enumerated exhaustively. They must depend upon the facts of
       each case. When a question arises as to whether a will is genuine
       or forged, normally the fact that nothing can be said against the
       reasonable nature of its provisions will be a strong and material
       element in favour of the probabilities of the will. Whether a will
       has been executed by the testator in a sound and disposing state
       of mind is purely a question of fact, which will have to be decided
       in each case on the circumstances disclosed and the nature and
       quality of the evidence adduced. When the will is alleged to have
       been executed under undue influence, the onus of proving undue
       influence is upon the person making such allegation and mere
       presence of motive and opportunity are not enough.
                                                       (Underline supplied)
      The decision in Madhukar D. Shende v. Tarabai Aba Shedage8, in
so far as it is relevant, reads thus:


7   AIR 1962 AP 178
8   (2002) 2 SCC 85
           DEREK A C LOBO & ORS. v.                               1557
     ULRIC M A LOBO (DEAD) BY LRS. & ORS.

“8. The requirement of proof of a will is the same as any other
document excepting that the evidence tendered in proof of a will should
additionally satisfy the requirement of Section 63 of the Evidence Act,
1872. If after considering the matters before it, that is, the facts and
circumstances as emanating from the material available on record of
a given case, the court either believes that the will was duly executed
by the testator or considers the existence of such fact so probable that
any prudent person ought, under the circumstances of that particular
case, to act upon the supposition that the will was duly executed by
the testator, then the factum of execution of will shall be said to have
been proved. The delicate structure of proof framed by a judicially
trained mind cannot stand on week foundation nor survive any inherent
defects therein but at the same time ought not to be permitted to be
demolished by wayward pelting of stones of suspicion and supposition
by wayfarers and waylayers. What was told by Baron Alderson to the
jury in R. v. Hodge may be apposite to some extent:
     ‘The mind is apt to take a pleasure in adapting circumstances
     to one another and even in straining them a little, if need be,
     to force them to form parts of one connected whole, and the
     more ingenious the mind of the individual, the more likely was
     it, considering such matters, to overreach and mislead itself, to
     supply some little link that is wanting, to take for granted some
     fact consistent with its previous theories and necessary to render
     them complete.’
The conscience of the court has to be satisfied by the propounder of
will adducing evidence so as to dispel any suspicions or unnatural
circumstances attaching to a will provided that there is something
unnatural or suspicious about the will. The law of evidence does
not permit conjecture or suspicion having the place of legal proof
nor permit them to demolish a fact otherwise proved by legal and
convincing evidence. Well-founded suspicion may be a ground for
closer scrutiny of evidence but suspicion alone cannot form the
foundation of a judicial verdict – positive or negative.
9. It is well-settled that one who propounds a will must establish the
competence of the testator to make the will at the time when it was
1558           SUPREME COURT REPORTS                            [2023] 16 S.C.R.


       executed. The onus is discharged by the propounder adducing prima
       facie evidence proving the competence of the testator and execution of
       the will in the manner contemplated by law. The contestant opposing
       the will may bring material on record meeting such prima facie case
       in which event the onus would shift back on the propounder to satisfy
       the court affirmatively that the testator did know well the contents
       of the will and in sound disposing capacity executed the same. The
       factors, such as the will being a natural one or being registered or
       executed in such circumstances and ambience, as would leave no room
       for suspicion, assume significance. If there is nothing unnatural about
       the transaction and the evidence adduced satisfies the requirement of
       proving a will, the court would not return a finding of ‘not proved’
       merely on account of certain assumed suspicion or supposition. Who
       are the persons propounding and supporting a will as against the
       person disputing the will and the pleadings of the parties would be
       relevant and of significance.
                                                             (Underline supplied)
      In the decision in P.P.K. Gopalan Nambiar’s case (supra), this Court
held in paragraph 4 thus:-
       “4. On appeal, the sub-ordinate Judge has given various reasons to
       accept the validity of the will. One of the reasons is that it is a registered
       will and the endorsement by the Registrar would show that the testator
       was in a sound disposing state of mind and that it was executed out
       of her free will and that, therefore, the discrepancy in the evidence of
       DW 2, an attestor does not vitiate the validity of the will. On appeal,
       the learned Single Judge without going into the evidence, has stated
       in one sentence that he agrees with the reasoning of the trial court
       and does not agree with the reasoning of the appellate court. We are
       at a loss to appreciate the view taken by the learned Judge. The High
       Court also stated that the whole of the estate given to the son under
       the will would itself generate suspicious circumstance. It is difficult
       to accept the reasoning of the learned Judge. Admittedly, the will was
       executed and registered on 1-11-55 and she died 8 years thereafter
       in the year 1963. When the appellant had propounded the will in his
       written statement, nothing prevented either the respondent or any of
                 DEREK A C LOBO & ORS. v.                                   1559
           ULRIC M A LOBO (DEAD) BY LRS. & ORS.

      the contesting defendants to file a rejoinder i.e. additional written
      statement with leave of the court under Order 8, Rule 9 pleading the
      invalidity of the will propounded by the appellant. Nothing has been
      stated in the pleadings. Even in the evidence when the appellant was
      examined as DW 1 and his attestation was as DW 2, nothing was stated
      with regard to the alleged pressure said to have been brought about
      by the appellant to execute the will. In the cross-examination by the
      first respondent, no attempt was even made to doubt the correctness
      of the Will.
      5. Under these circumstances, the suspicion which excited the mind
      of the District Munsif is without any basis and he picked them from
      his hat without fact-foundation. The Subordinate Judge had rightly
      considered all the circumstances and upheld the will. The High Court,
      without examining the evidence, by merely extracting legal position set
      out by various decisions of this Court has upset the finding of the fact
      recorded by the Subordinate Judge in one sentence. It is trite that it is
      the duty of the propounder of the will to prove the will and to remove
      all the suspected features. But there must be real, germane and valid
      suspicious features and not fantasy of the doubting mind.”
                                                          (Underline supplied)
      16. In the light of the aforesaid decisions, it can be safely said that once
the burden to prove is discharged by the propounder in terms of Section 63
of the Succession Act and Section 68 of the Evidence Act, and by adducing
prima facie evidence proving the competence of the testator, the onus is
on the contestant opposing to show prima facie the existence of suspicious
circumstances so as to shift the onus on the propounder to dispel them.
Without knowing the circumstances, which according to the contestant
opposing are suspicious, how will the propounder be able to dispel them
and to convince the court about its genuineness and validity. We are saying
that the contestant opposing the Will has to raise surrounding suspicious
circumstances specifically and not vaguely or in a general manner. A case
of well-founded suspicion has to exist to cause shifting of onus back to the
propounder once he discharged his burden to prove the execution of the
Will. We may hasten to add that we shall not be understood to have held
that failure of the party/parties to plead suspicious circumstances would
1560         SUPREME COURT REPORTS                        [2023] 16 S.C.R.


automatically make the court to take a Will as validly proved even where
the circumstance(s) raising doubt is inherent in the document. Certainly,
in such circumstances the propounder has to convince the court and dispel
such suspicious circumstances.
      17. Sequentially, it is only apropos to consider the tenability of the
finding of the High Court that the plaintiff had failed to prove that the
Will was executed by the testatrix with knowledge of the contents, and
taking it as one of the suspicious circumstances. The unrefuted factual
position obtained from the evidence on record is that the testatrix who
died on 08.01.1993 at the age of 69 years, had studied up to S.S.L.C and
was able to read and write English. She was a Municipal Councilor for
6 years, Trustee of Mangalore Port Trust, a Member of Cheshire Home,
Mangalore and President of Christian Planters Guild, Chickmagalur
besides being an active Social Worker. We have already found that PW-
3, one of the attesting witnesses to the Will in question was examined to
satisfy the statutory mandate to prove execution. PW-3, would depose that
the testatrix herself called him to attest the Will and that he had seen the
testatrix reading the papers before putting the signatures. PW-2, who is
one of the sons of testatrix also corroborated the version that PW-3 was
called over phone by his mother to attest the Will and that she had also
read the Will. Nothing to disbelieve their versions was elicited by the
defendants during their cross-examinations. PW-3 deposed that it was
in his presence that the testatrix had signed the Will. It cannot be said
that a person afflicted with arthritis would not be in a position to read
and understand the contents of a document. We have also adverted to
the amendment sought to be brought in by defendant No.5 by producing
Ext.D5 and what turns out of it. When the above being the position, by
no stretch of imagination it can be taken that the testatrix was illiterate
or put her signature without understanding the contents of the Will. In
the circumstances, the said suspicions excited the mind of defendant
No.5 and accepted by the High Court cannot survive. In other words,
they cannot be sustained.
      18. Another circumstance treated as suspicious circumstance by the
High Court is the prominent participation of the beneficiaries under the Will
in the matter of its execution. The allegation of prominent participation as
relates execution of a Will suggests some kind of influential interference
                 DEREK A C LOBO & ORS. v.                                 1561
           ULRIC M A LOBO (DEAD) BY LRS. & ORS.

on the testator/testatrix. There cannot be any doubt with respect to the
position that the mere presence of executor or any beneficiary under a Will
at the time of the execution of the Will ipso facto will not invalidate it or
is sufficient to cast suspicion on the execution of the Will. At any rate, it is
for the person raising the same to prove that it was not a mere presence in
the vicinity and it was capable of influencing the testator/testatrix. So also,
the other reason assigned by the High Court that the advocate who drafted
the Will was not examined, according to us cannot be said to be a legal
requirement at all and at any rate, the non-examination of the advocate who
drafted the Will cannot be a ground to discard the Will since it was proved
by examining an attesting witness and no other circumstances surround it to
make suspicious. We are fortified in our view by the decision of this Court
in “Ramabai Padmakar Patil (D) Through Lrs. and Ors. Vs. Rukminibai
Vishnu Vekhande and Ors.9”.
      19. That apart (Ext.P3 and Ext.P4) documents would undoubtedly show
that the Will in question was acted upon by the parties. In that context, it is
relevant to note that the oral testimony of DW-1 would reveal that during his
examination he would admit the receipt of Rs.5,000/- under the Will. That
apart his evidence would reveal that the firm was dissolved on 27.03.1987
and subsequently as per Exhibit P-8 (Memorandum of Understanding),
the partnership was re-constituted. As per the division, the group to which
DW-1 is a party got 62 acres of Coffee Estate known as Sheegekan Estate
in Jaagra Village Chicmagalur District, a Tile Factory called Modern Tile
Works in B.C. Road, Bantwal. He also deposed to the fact that under the
Will executed by his father, he got 23 cents of land in Mangalore. Moreover,
his evidence would reveal that the parties including himself who got such
properties had subsequently sold them. This was relied on by the appellants
to canvas the position that they would go to show that there was nothing
unnatural about the exclusion of some of the children while making the Will.
In this context, it is to be noted that a Will is usually executed to alter the
natural mode of Succession and hence, consequential result of reduction
or deprival of the share of a natural heir. If the testator does not intend so
there is no necessity at all for executing a Will.



9   (2003) 8 SCC 537
1562           SUPREME COURT REPORTS                        [2023] 16 S.C.R.


      20. In the said circumstances, we have no hesitation to hold that the
trial Court had rightly considered all the circumstances to come to the
conclusion that Ext.P2 Will was validly executed and it was proved by the
appellants. The circumstances were taken as suspicious by the High Court
sans foundation and the High Court erred in holding the subject Will dated
10.11.1992 as not proved. Hence, the judgment and order dated 21.11.2008
passed by the High Court of Karnataka at Bangalore in M.F.A. No.3077
of 2001 is set aside and the judgment and decree dated 20.02.2001 passed
by the III Additional District Judge, Dakshina Kannada at Mangalore, in
O.S. No.21 of 1997 is restored and confirmed. The appeal is accordingly
allowed. There shall be no order as to costs.
       21. Pending application(s), if any, shall stand(s) disposed of.


Headnotes prepared by:                                          Appeal allowed.
Ankit Gyan