Full Judgment Text
2025 INSC 1451
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal Nos…………………. of 2025
(@Special Leave Petition (C) Nos.11057-11058 of 2025
K. S. Dinachandran
…. Appellant
Versus
Shyla Joseph & Ors.
.…Respondents
With
Civil Appeal No……………. of 2025
(@Special Leave Petition (C) No.11639 of 2025
J U D G M E N T
K. VINOD CHANDRAN, J.
1. Leave granted.
2. Concurrent findings; disbelieving a will, excluding one
out of nine children, who married out of the community,
holding the estate of the testator partible, is challenged in the
two appeals filed by two defendants.
3.
The parties are referred to as the plaintiff and the
defendants, the first respondent, common in both the appeals,
Signature Not Verified
Digitally signed by
SAPNA BISHT
Date: 2025.12.17
17:18:15 IST
Reason:
is the plaintiff.
Page 1 of 24
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4. The relevant facts to be noticed are that one N.S.
Sreedharan, executed Exhibit B2 will dated 26.03.1988 and
registered it on the very next day, a Sunday, the Sub-Registrar
having come to his house on commission. The will provided
for allocation of the properties to the eight (the defendant Nos.
1 to 8) out of the nine children of the testator; the plaintiff
having been left out. An injunction suit was filed by the
defendant in the year 1990, against the plaintiff, who was the
sole defendant therein, to restrain her from interfering with
the peaceful possession and enjoyment of the suit property. A
copy of the will was produced along with the plaint. The sole
defendant therein did not choose to contest the matter. There
was an ex parte judgment and decree passed by the Principal
Munsif Court of Ernakulam which is produced as Annexure P2.
It was later in the year 2011 that the present suit was filed
seeking partition of the properties of the father.
5. The first defendant who was examined as DW-1 along
with other defendants contested the suit on the strength of the
will. There were two attesting witnesses, one of whom was no
more at the time of trial and the other was examined as DW-2.
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The trial court decreed the suit on the ground that DW-2 only
spoke of the execution of the will by the testator and his own
attestation. Though, the presence of the other attesting witness
at the time of execution was spoken of, his attestation was not
deposed to by DW-2. It was also argued that the deposition of
DW-2 indicated that the testator and he himself affixed their
signatures in the presence of the Sub-Registrar, giving rise to
an anomaly insofar as the will was dated 26.03.1988, while the
registration was on the next day i.e. 27.03.1988, on which day
DW2 according to his own testimony had not visited the house
of the testator, which argument was not accepted even by the
trial court.
6. The High Court found that though in the examination-in-
chief, DW-2 did not depose on the attestation by the other
witness, in cross-examination to a leading question he
answered that all persons signed on the will on the date when
DW-2 signed the same. It was held that by the leading
question, the answer was put in the mouth of the witness and
hence, it lacks probative value and fell short of the mandate
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1
under Section 63(c) of the Indian Succession Act, 1925 read
2
with Section 68 of the Indian Evidence Act, 1872 . The High
Court emphasised the statement of DW-2 in cross examination
that after signing the will on the date when it was prepared, he
had not gone to the house of the testator till his death. Hence,
the attestation by DW-2 itself was found suspicious when DW-
2 also stated that when he reached the house of testator, the
Sub-Registrar and the other witness were present there.
7. Mr.V.Chitambaresh and Mr.A.Hariprasad learned
Senior Counsel for the appellants contended that the
ingredients of Section 68 of the Evidence Act read with Section
63 of the Succession Act, were fully satisfied. DW-2 had not
only spoken of the testator having affixed his signature on the
will, Exhibit B2, but also spoke of his attestation and his
introduction to the other witness by the testator and all of them
having signed the will. Statements were taken out of context to
disbelieve the will and in any event, the earlier will executed,
clearly indicated the mind of the testator insofar as exclusion
of the plaintiff. It is also argued that despite the will having
1
for short, ‘the Succession Act’
2
for short, ‘the Evidence Act’
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come to the notice of the plaintiff in the suit filed in the year
1990, nothing was done for a long period, and the plaintiff is
estopped from challenging the will. The impugned judgment
affirming the judgment of the trial court is clearly erroneous
and against the evidence led in the suit. Both the judgments
have to be reversed and the suit dismissed, is the contention.
8. Mr. P.B. Krishnan, learned Senior Counsel appearing for
the first respondent/plaintiff argued that the first will was not
proved and there can be no reliance placed on the same. It is
also urged that in the earlier suit for injunction only a copy of
the will was produced and, in any event, that was a simpliciter
injunction suit. This would not stand in the way of the co-owner
instituting later, a suit for partition. It is specifically pointed out
from the deposition of DW-2 that he had stated categorically
that his visit to the testator’s house was only once, in the
presence of the Sub-Registrar, in which circumstances his
signature on 26.03.1988, attesting the will and later on the
back of the first page at the time of registration, on the next
day cannot be believed. DW2 also stated that after the day the
will was prepared, he had gone to the house of the testator
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only when he died. Both the trial court and the first appellate
court rightly found the will to be not proved.
9. In support of his submissions, learned counsel for the
respondent relied upon the decisions in Meena Pradhan v.
3
Kamla Pradhan , Rani Purnima Debi & Anr. v. Kumar
4
Khagendra Narayan Deb & Anr. , Janaki Narayan Bhoir v.
5
Narayan Namdeo Kadam , Vishnu Ramkrishna Wani v.
6
Nathu Vittal Wani , Raj Kumari & Ors. v. Surinder Pal
7
Sharma and Mansinghrao Yeshwantrao Patil v.
8
Ramchandra Govindrao Patil .
10. Before we go into the fact adjudication, we would look at
the decisions relied upon by the respondent, in the
chronology of its reporting.
6
11. Vishnu Ramkrishna found that the defendants failed to
prove the due execution of the will since the one attesting
witness examined, out of the four attestors, only spoke of the
presence of one other attestor along with the testator, when
3
(2023) 9 SCC 734
4
(1962) 3 SCR 195
5
(2003) 2 SCC 91
6
AIR 1949 Bombay 266
7
(2021) 14 SCC 500
8
(1954) 1 SCC 688
Page 6 of 24
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the latter acknowledged her thumb impression in the will. The
witness spoke of his attestation but not that of the other. It was
also held that recourse to Section 71 of the Evidence Act is
impermissible without exhausting the remedy under Section
68 of the Evidence Act of calling the available attesting
witnesses and if they deny or fail to prove the execution, only
then Section 71 of the Evidence Act could be invoked. Though
finding insufficient proof as required under Section 68 of the
Evidence Act, all the same, the High Court remanded the
matter for further evidence of the other three attesting
witnesses said to be available to determine whether there was
due execution of the will. The remand was on dual reasoning;
one, approaching the issue as a ‘Court of Conscience’,
especially, to arrive at a satisfaction as to the last will and
testament of the testator and then, to ensure that the bequest
made in the subject will to a charity, is not defeated.
8
12. Mansinghrao Yeshwantrao Patil cautioned the Courts
from converting a question of fact into a question of law and
mechanical use of time-honoured phrases like ‘the conscience
of the Court being satisfied’ . Though great caution should be
Page 7 of 24
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exercised in upholding a will, where the legal heirs are
divested in whole, proof of a will remains a question of fact and
satisfaction of the conscience of the court is only a rule of
prudence, was the declaration.
4
13. Rani Purnima Debi , a four Judge Bench decision of this
Court disbelieved the will propounded, based on various
suspicious circumstances, including doubts raised about the
testator’s signature itself and the proclivity of the testator to
sign blank papers to be delivered to his lawyer, who was also
one of the three attesting witnesses examined. Especially
considering the very serious suspicions on the due execution
and attestation of the will, the testimony of the two probable
witnesses whose signatures were found on the bottom of the
will; other than those examined as attestors, one the
registration clerk who came on commission and another, who
identified the testator, were found to be grossly insufficient.
The registration clerk merely spoke of having examined the
testator, who admitted execution and the other, having merely
identified the testator at that time, without anything more on
the signature affixed, of the testator or himself.
Page 8 of 24
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3
14. Meena Pradhan succinctly stated the formalities
required under Section 63 of the Succession Act which was
also declared to be of a standard affording sufficient proof to
satisfy a prudent mind and not one of mathematical accuracy.
4
Quite distinct from Rani Purnima Debi which brought forth
various suspicious circumstances in which there was felt a
need for a higher standard of proof of execution.
15. What is relevant for the present case, which does not
bring forth any such suspicious circumstance, is the
requirement that, at least one of the attesting witnesses, if alive
and capable of being examined, shall be examined, who shall
speak on the execution of the testator; which he had witnessed
or was acknowledged by the testator himself, and the
attestation by both witnesses. It is pertinent that in the earlier
suit for injunction, in which the plaintiff herein first appeared
as a defendant and then did not contest, the will was spoken of
and a copy was produced. The suit was one for injunction
simpliciter and there was neither occasion to offer proof of the
will nor was there a declaration of title sought; which disables
a claim of res judicata being raised since the will or title was
Page 9 of 24
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not a matter substantially in issue in the said suit. But the fact
remains that despite knowledge, the plaintiff pleaded no
suspicious circumstances and did not even mention the will in
the plaint. The plaintiff also did not mount the box, and none
were examined on her side. The attesting witness examined,
hence in the facts of this case should speak about the
execution of the will by the testator, his attestation and also
about the attestation of the other witness who was no more, at
the time the suit went to trial.
5
16. In Janaki Narayan Bhoir , the impugned judgment of the
High Court relied on the evidence of the scribe, led under
Section 71 of the Evidence Act, which was found to be
incompetent insofar as one of the two attesting witnesses
failed to prove the attestation of the other and the other,
though available was not examined. This affirms the principle
6
in Vishnu Ramkrishna . In fact, the attesting witness
examined, categorically stated that he was not even aware of
the presence of the other attesting witness in the house
wherein the execution was stated to have occurred. It was
held in paragraph 10 that, “… The one attesting witness
Page 10 of 24
CA@SLP (C) Nos.11057-11058 of 2025 Etc.
examined, in his evidence has to satisfy the attestation of a Will
by him and the other attesting witness in order to prove there
was due execution of the Will. If the attesting witness examined
besides his attestation does not, in his evidence, satisfy the
requirements of attestation of the will by other witness also it falls
short of attestation of will at least by two witnesses for the simple
reason that the execution of the will does not merely mean the
signing of it by the testator but it means fulfilling and proof of all
the formalities required under Section 63 of the Succession Act.
… (sic)”.
7
17. Raj Kumari was also a case in which one of the attesting
witnesses failed to prove the examination of the other witness,
who was not called to the box since he was the husband of one
of the respondents. The principle of exhausting the remedy
under Section 68 of the Evidence Act before invoking Section
71 was reiterated; which question does not arise in the instant
case.
18. Learned Senior Counsel for the appellant relied upon
the decision in H. H. Maharaja Bhanu Prakash Singh v. Tika
Page 11 of 24
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9
Yogendra Chandra to contend that when evidence was
recorded after a long period, minor discrepancies in the
evidence would be a natural consequence. Therein the
evidence was recorded about eight years after the execution
of the will and in the present case, the examination of the
attesting witness was twenty-four years after the execution of
the will. It was argued that it is natural that a witness will not
be able to remember as to when exactly he went to the house
of the testator; which was truthfully spoken of by DW2.
19. Reliance was also placed by the appellant on Gopal
10
Swaroop v. Krishna Murari Mangal and Ors. in which
satisfaction as to the proof of the will was entered, when it was
stated by one of the attesting witnesses that the other attesting
witness was also present at the time the testator affixed his
signature.
20. We cannot but notice that there is clear departure,
10
insofar as the decision in Gopal Swaroop , from the principles
consistently declared in the other decisions above cited and
4
also of a four-judge bench in Rani Purnima Debi . However,
9
1989 Supp (1) SCC 16
10
(2010) 14 SCC 266
Page 12 of 24
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we are of the opinion that we need not look into that aspect,
specifically considering the deposition of DW-2.
21. We think, at this point, it is apposite to extract paragraph
19 to 22 from the decision in H. Venkatachala Iyengar v. B.N.
11
Thimmajamma , as to the proof required in establishing a
will, in varying circumstances: -
19. However, there is one important feature which
distinguishes wills from other documents. Unlike other
documents the will speaks from the death of the
testator, and so, when it is propounded or produced
before a court, the testator who has already departed
the world cannot say whether it is his will or not; and
this aspect naturally introduces an element of solemnity
in the decision of the question as to whether the
document propounded is proved to be the last will and
testament of the departed testator. Even so, in dealing
with the proof of wills the court will start on the same
enquiry as in the case of the proof of documents. The
propounder would be called upon to show by
satisfactory evidence that the will was signed by the
testator, that the testator at the relevant time was in a
sound and disposing state of mind, that he understood
the nature and effect of the dispositions and put his
signature to the document of his own free will.
11
1959 Supp (1) SCR 426
Page 13 of 24
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Ordinarily when the evidence adduced in support of
the will is disinterested, satisfactory and sufficient to
prove the sound and disposing state of the testator's
mind and his signature as required by law, courts
would be justified in making a finding in favour of the
propounder. In other words, the onus on the
propounder can be taken to be discharged on proof of
the essential facts just indicated.
20. There may, however, be cases in which the
execution of the will may be surrounded by suspicious
circumstances. The alleged signature of the testator
may be very shaky and doubtful and evidence in
support of the propounder's case that the signature, in
question is the signature of the testator may not remove
the doubt created by the appearance of the signature;
the condition of the testator's mind may appear to be
very feeble and debilitated; and evidence adduced
may not succeed in removing the legitimate doubt as to
the mental capacity of the testator; the dispositions
made in the will may appear to be unnatural,
improbable or unfair in the light of relevant
circumstances; or, the will may otherwise indicate that
the said dispositions may not be the result of the
testator's free will and mind. In such cases the court
would naturally expect that all legitimate suspicions
should be completely removed before the document is
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accepted as the last will of the testator. The presence of
such suspicious circumstances naturally tends to make
the initial onus very heavy; and, unless it is satisfactorily
discharged, courts would be reluctant to treat the
document as the last will of the testator. It is true that, if
a caveat is filed alleging the exercise of undue
influence, fraud or coercion in respect of the execution
of the will propounded, such pleas may have to be
proved by the caveators; but, even without such pleas
circumstances may raise a doubt as to whether the
testator was acting of his own free will in executing the
will, and in such circumstances, it would be a part of the
initial onus to remove any such legitimate doubts in the
matter.
21. Apart from the suspicious circumstances to which
we have just referred, in some cases the wills
propounded disclose another infirmity. Propounders
themselves take a prominent part in the execution of
the wills which confer on them substantial benefits. If it
is shown that the propounder has taken a prominent
part in the execution of the will and has received
substantial benefit under it, that itself is generally
treated as a suspicious circumstance attending the
execution of the will and the propounder is required to
remove the said suspicion by clear and satisfactory
evidence. It is in connection with wills that present such
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suspicious circumstances that decisions of English
courts often mention the test of the satisfaction of
judicial conscience. It may be that the reference to
judicial conscience in this connection is a heritage from
similar observations made by ecclesiastical courts in
England when they exercised jurisdiction with
reference to wills; but any objection to the use of the
word “conscience” in this context would, in our
opinion, be purely technical and academic, if not
pedantic. The test merely emphasizes that, in
determining the question as to whether an instrument
produced before the court is the last will of the testator,
the court is deciding a solemn question and it must be
fully satisfied that it had been validly executed by the
testator who is no longer alive.
22. It is obvious that for deciding material questions of
fact which arise in applications for probate or in actions
on wills, no hard and fast or inflexible rules can be laid
down for the appreciation of the evidence. It may,
however, be stated generally that a propounder of the
will has to prove the due and valid execution of the will
and that if there are any suspicious circumstances
surrounding the execution of the will the propounder
must remove the said suspicions from the mind of the
court by cogent and satisfactory evidence. It is hardly
necessary to add that the result of the application of
these two general and broad principles would always
Page 16 of 24
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depend upon the facts and circumstances of each case
and on the nature and quality of the evidence adduced
by the parties. It is quite true that, as observed by Lord
Du Parcq in Harmes v. Hinkson [(1946) 50 CWN 895]
“where a will is charged with suspicion, the rules enjoin
a reasonable scepticism, not an obdurate persistence
in disbelief. They do not demand from the Judge, even
in circumstances of grave suspicion, a resolute and
impenetrable incredulity. He is never required to close
his mind to the truth”. It would sound platitudinous to
say so, but it is nevertheless true that in discovering
truth even in such cases the judicial mind must always
be open though vigilant, cautious and circumspect.
(underlining by us for emphasis)
22. The translation of the deposition of DW-2 has been
provided in both the appeals and a copy of the vernacular
Malayalam has also been handed over to us across the Bar
(one of us, Vinod Chandran, J being familiar with the
language). The proof boils down to what has been stated by
the witness. Looking at the chief-examination, it is clearly
stated by DW-2 that he had signed on the thirteenth page and
the back side of the first page of Exhibit B2 will, which was
shown to him. He also affirmed that the signature of the
Page 17 of 24
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executant was that of N.S. Sreedharan, the testator. He also
spoke of N.S. Sreedharan; the testator, Xavier Mash (Teacher)
& himself; the attesting witnesses, as also the Sub-Registrar
being present at that time. If we look at the examination-in-
chief alone, it cannot be said that there was proof of the other
witness having put his signature in the document. In the cross
examination of DW-2 to DW-8, a question was asked as to
whether he saw the testator signing on the document which
was answered in the affirmative. Answering a question as to
his signature, it was said that he signed it in front of the
testator. Again, there was no proof offered of the signature of
the other attesting witness.
23. However, this missing piece was supplied in cross-
examination by the plaintiff. In the cross-examination by the
plaintiff, DW2 was specifically asked as to whether he had an
acquaintance with Xavier, the other attesting witness. The
answer was that the other attesting witness was known to him
earlier, as introduced to him by the testator. Then a question
was put as to whether the will was written after he reached
there. The answer was in the negative and he added that it was
Page 18 of 24
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already written and ‘ they’ put their signatures on it. Significant
is the question put by the plaintiff, to DW-2 as to whether
himself and ‘others’ put their signatures on the will on the date
on which it was written; answered in the affirmative. Hence, on
the plaintiff’s suggestion, DW-2 affirmed not only the
signature of the testator and himself but also the other attesting
witness.
24. We are definitely of the opinion that DW-2 spoke of the
presence of the testator along with himself and the other
attesting witnesses as also affirmed the signature of the
testator and of both the attesting witnesses in the document.
25. Now, we have to deal with the confusion created as to
whether DW-2 had gone to the house of the testator only on
26.03.1988, the date shown in the will on which day it is
presumed to have been executed. A reading of the deposition
clearly indicates that DW-2 had very close association with the
testator and he was a frequent visitor to the house of the
testator. DW-2 also had a part time job at the textile shop of
the testator and had carried out such work even when he was
working with an auditor; which he stopped after the death of
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the testator. He categorically deposed that the testator had
summoned him to the testator’s house, over telephone, when
he was at the Auditor’s office. At the testator’s house, he saw
the testator’s wife and not the children. He did not reveal the
factum of the will to the children since he understood it as a
confidential matter. To a specific question as to whether the
testator was bedridden, he answered in the negative and
added that but for a small oedema in the legs, the testator had
no ailments, bringing forth no doubts on his physical health,
much less on the sound and disposing state of mind of the
testator; which was never disputed.
26. The specific issue on which the learned Senior Counsel
for the plaintiff lays emphasis, are to two suggestions made in
cross-examination, raising suspicion on the very execution of
the will. The suggestion that “but for the day on which the will
is said to have been prepared, DW-2 has not gone to the house
on any other date to sign the will” , was answered in the
affirmative. A further suggestion that DW2 after 26.03.1988
went to the house of the testator only after his death, was
answered in the affirmative. Since the will is dated 26.03.1988
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and the registration was on the next day, the execution itself is
under a cloud, for reason that DW2 speaks of the presence of
the Sub-Registrar too on the solitary day he was present in the
house of the testator, is the argument.
27. We are unable to agree. The first suggestion only
indicates that on the date the will was prepared, DW2 had
gone to the house of the testator ‘ to sign on it ’ and he had not
visited the testator on any other day, ‘ to sign the will ’. This does
not indicate that DW-2 had not visited the house of the testator
otherwise than on 26.03.1988. It cannot also be said that he was
not present on 27.03.1988; when he was present only for the
registration and not the signing of the will. Another response
emphasised by the plaintiff was to the suggestion that after
26.03.1988, DW-2 had gone to the testator’s house only after
his death. The execution of the will was in the year 1988, the
registration being on the very next day. The examination of
the witness was on 25.05.2012, twenty-four years later. It
would be puerile to think that the witness would have
remembered the visits made to the testator’s house, even for
execution of a will, with mathematical precision, especially
Page 21 of 24
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given his close association and as is seen from the deposition,
a frequent visitor to the testator’s house.
28. We find that in the present case the only suspicion raised
about the execution of the will is the testamentary capacity of
the testator, relatable specifically to his physical disposition,
questioned in the cross-examination of DW2; unequivocally
affirmed as sound. We also reiterate, with respect, that the rule
of prudence; of the caution required in upholding a will which
divests the legal heirs as a whole, is not the situation existing
in the instant case. But, the person excluded was one of the
children of the plaintiff, the sole one excluded. The
propounders of the will are the siblings of the one excluded.
There is a reason stated for such exclusion, the acceptability
of which to our minds, is not what the rule of prudence
dictates. We cannot put the testator in our shoes, and we
should step into his. We cannot substitute our opinions in
place of that of the testator; his desire prompted by his own
justifications. As is trite, we would only ensure that, sitting in
the arm-chair of the testator the rule of prudence is satisfied
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for the exclusion; which on the facts of this case amply satisfies
the judicial conscience.
29. We find absolutely no reason to uphold the judgment of
the High Court which affirmed the judgment of the trial court.
We set aside both and find the will to have been proved
satisfactorily. The presence of the testator and the attesting
witnesses and the signatures affixed on the will by each of
them have been stated by DW-2 in his deposition. What was
lacking in the examination-in-chief was brought out in the
cross examination by way of a positive suggestion. Leading
questions are permitted in cross-examinations and the
response elicited cannot be said to have lesser probative
value, as held by the High Court. The testator was also
established to be of sound and disposing mind at the time of
execution of the will. There can be no interference to the will
which stands proved unequivocally. The judgment and
decree of the High Court and that of the trial court stands set
aside. The plaintiff is found to have no partible claim over the
properties of her father, which by a will have been
bequeathed to the other siblings of the plaintiff.
Page 23 of 24
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30. The learned Senior Counsel for the respondent then
urged that the plaintiff in any event, would be entitled to only
th
1/9 share of the total properties which is a negligible portion
of that held by her father. We are not on equity, and the wish
of the testator assumes pre-eminence. The last will and
testament of the testator cannot be digressed from or
frustrated.
31. The appeals are allowed and the suit stands dismissed.
32. Pending applications, if any, shall stand disposed of.
……..…….………………………. J.
(AHSANUDDIN AMANULLAH)
…………….……………………. J.
(K. VINOD CHANDRAN)
NEW DELHI
DECEMBER 17, 2025.
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Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal Nos…………………. of 2025
(@Special Leave Petition (C) Nos.11057-11058 of 2025
K. S. Dinachandran
…. Appellant
Versus
Shyla Joseph & Ors.
.…Respondents
With
Civil Appeal No……………. of 2025
(@Special Leave Petition (C) No.11639 of 2025
J U D G M E N T
K. VINOD CHANDRAN, J.
1. Leave granted.
2. Concurrent findings; disbelieving a will, excluding one
out of nine children, who married out of the community,
holding the estate of the testator partible, is challenged in the
two appeals filed by two defendants.
3.
The parties are referred to as the plaintiff and the
defendants, the first respondent, common in both the appeals,
Signature Not Verified
Digitally signed by
SAPNA BISHT
Date: 2025.12.17
17:18:15 IST
Reason:
is the plaintiff.
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4. The relevant facts to be noticed are that one N.S.
Sreedharan, executed Exhibit B2 will dated 26.03.1988 and
registered it on the very next day, a Sunday, the Sub-Registrar
having come to his house on commission. The will provided
for allocation of the properties to the eight (the defendant Nos.
1 to 8) out of the nine children of the testator; the plaintiff
having been left out. An injunction suit was filed by the
defendant in the year 1990, against the plaintiff, who was the
sole defendant therein, to restrain her from interfering with
the peaceful possession and enjoyment of the suit property. A
copy of the will was produced along with the plaint. The sole
defendant therein did not choose to contest the matter. There
was an ex parte judgment and decree passed by the Principal
Munsif Court of Ernakulam which is produced as Annexure P2.
It was later in the year 2011 that the present suit was filed
seeking partition of the properties of the father.
5. The first defendant who was examined as DW-1 along
with other defendants contested the suit on the strength of the
will. There were two attesting witnesses, one of whom was no
more at the time of trial and the other was examined as DW-2.
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The trial court decreed the suit on the ground that DW-2 only
spoke of the execution of the will by the testator and his own
attestation. Though, the presence of the other attesting witness
at the time of execution was spoken of, his attestation was not
deposed to by DW-2. It was also argued that the deposition of
DW-2 indicated that the testator and he himself affixed their
signatures in the presence of the Sub-Registrar, giving rise to
an anomaly insofar as the will was dated 26.03.1988, while the
registration was on the next day i.e. 27.03.1988, on which day
DW2 according to his own testimony had not visited the house
of the testator, which argument was not accepted even by the
trial court.
6. The High Court found that though in the examination-in-
chief, DW-2 did not depose on the attestation by the other
witness, in cross-examination to a leading question he
answered that all persons signed on the will on the date when
DW-2 signed the same. It was held that by the leading
question, the answer was put in the mouth of the witness and
hence, it lacks probative value and fell short of the mandate
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1
under Section 63(c) of the Indian Succession Act, 1925 read
2
with Section 68 of the Indian Evidence Act, 1872 . The High
Court emphasised the statement of DW-2 in cross examination
that after signing the will on the date when it was prepared, he
had not gone to the house of the testator till his death. Hence,
the attestation by DW-2 itself was found suspicious when DW-
2 also stated that when he reached the house of testator, the
Sub-Registrar and the other witness were present there.
7. Mr.V.Chitambaresh and Mr.A.Hariprasad learned
Senior Counsel for the appellants contended that the
ingredients of Section 68 of the Evidence Act read with Section
63 of the Succession Act, were fully satisfied. DW-2 had not
only spoken of the testator having affixed his signature on the
will, Exhibit B2, but also spoke of his attestation and his
introduction to the other witness by the testator and all of them
having signed the will. Statements were taken out of context to
disbelieve the will and in any event, the earlier will executed,
clearly indicated the mind of the testator insofar as exclusion
of the plaintiff. It is also argued that despite the will having
1
for short, ‘the Succession Act’
2
for short, ‘the Evidence Act’
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come to the notice of the plaintiff in the suit filed in the year
1990, nothing was done for a long period, and the plaintiff is
estopped from challenging the will. The impugned judgment
affirming the judgment of the trial court is clearly erroneous
and against the evidence led in the suit. Both the judgments
have to be reversed and the suit dismissed, is the contention.
8. Mr. P.B. Krishnan, learned Senior Counsel appearing for
the first respondent/plaintiff argued that the first will was not
proved and there can be no reliance placed on the same. It is
also urged that in the earlier suit for injunction only a copy of
the will was produced and, in any event, that was a simpliciter
injunction suit. This would not stand in the way of the co-owner
instituting later, a suit for partition. It is specifically pointed out
from the deposition of DW-2 that he had stated categorically
that his visit to the testator’s house was only once, in the
presence of the Sub-Registrar, in which circumstances his
signature on 26.03.1988, attesting the will and later on the
back of the first page at the time of registration, on the next
day cannot be believed. DW2 also stated that after the day the
will was prepared, he had gone to the house of the testator
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only when he died. Both the trial court and the first appellate
court rightly found the will to be not proved.
9. In support of his submissions, learned counsel for the
respondent relied upon the decisions in Meena Pradhan v.
3
Kamla Pradhan , Rani Purnima Debi & Anr. v. Kumar
4
Khagendra Narayan Deb & Anr. , Janaki Narayan Bhoir v.
5
Narayan Namdeo Kadam , Vishnu Ramkrishna Wani v.
6
Nathu Vittal Wani , Raj Kumari & Ors. v. Surinder Pal
7
Sharma and Mansinghrao Yeshwantrao Patil v.
8
Ramchandra Govindrao Patil .
10. Before we go into the fact adjudication, we would look at
the decisions relied upon by the respondent, in the
chronology of its reporting.
6
11. Vishnu Ramkrishna found that the defendants failed to
prove the due execution of the will since the one attesting
witness examined, out of the four attestors, only spoke of the
presence of one other attestor along with the testator, when
3
(2023) 9 SCC 734
4
(1962) 3 SCR 195
5
(2003) 2 SCC 91
6
AIR 1949 Bombay 266
7
(2021) 14 SCC 500
8
(1954) 1 SCC 688
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the latter acknowledged her thumb impression in the will. The
witness spoke of his attestation but not that of the other. It was
also held that recourse to Section 71 of the Evidence Act is
impermissible without exhausting the remedy under Section
68 of the Evidence Act of calling the available attesting
witnesses and if they deny or fail to prove the execution, only
then Section 71 of the Evidence Act could be invoked. Though
finding insufficient proof as required under Section 68 of the
Evidence Act, all the same, the High Court remanded the
matter for further evidence of the other three attesting
witnesses said to be available to determine whether there was
due execution of the will. The remand was on dual reasoning;
one, approaching the issue as a ‘Court of Conscience’,
especially, to arrive at a satisfaction as to the last will and
testament of the testator and then, to ensure that the bequest
made in the subject will to a charity, is not defeated.
8
12. Mansinghrao Yeshwantrao Patil cautioned the Courts
from converting a question of fact into a question of law and
mechanical use of time-honoured phrases like ‘the conscience
of the Court being satisfied’ . Though great caution should be
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exercised in upholding a will, where the legal heirs are
divested in whole, proof of a will remains a question of fact and
satisfaction of the conscience of the court is only a rule of
prudence, was the declaration.
4
13. Rani Purnima Debi , a four Judge Bench decision of this
Court disbelieved the will propounded, based on various
suspicious circumstances, including doubts raised about the
testator’s signature itself and the proclivity of the testator to
sign blank papers to be delivered to his lawyer, who was also
one of the three attesting witnesses examined. Especially
considering the very serious suspicions on the due execution
and attestation of the will, the testimony of the two probable
witnesses whose signatures were found on the bottom of the
will; other than those examined as attestors, one the
registration clerk who came on commission and another, who
identified the testator, were found to be grossly insufficient.
The registration clerk merely spoke of having examined the
testator, who admitted execution and the other, having merely
identified the testator at that time, without anything more on
the signature affixed, of the testator or himself.
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3
14. Meena Pradhan succinctly stated the formalities
required under Section 63 of the Succession Act which was
also declared to be of a standard affording sufficient proof to
satisfy a prudent mind and not one of mathematical accuracy.
4
Quite distinct from Rani Purnima Debi which brought forth
various suspicious circumstances in which there was felt a
need for a higher standard of proof of execution.
15. What is relevant for the present case, which does not
bring forth any such suspicious circumstance, is the
requirement that, at least one of the attesting witnesses, if alive
and capable of being examined, shall be examined, who shall
speak on the execution of the testator; which he had witnessed
or was acknowledged by the testator himself, and the
attestation by both witnesses. It is pertinent that in the earlier
suit for injunction, in which the plaintiff herein first appeared
as a defendant and then did not contest, the will was spoken of
and a copy was produced. The suit was one for injunction
simpliciter and there was neither occasion to offer proof of the
will nor was there a declaration of title sought; which disables
a claim of res judicata being raised since the will or title was
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not a matter substantially in issue in the said suit. But the fact
remains that despite knowledge, the plaintiff pleaded no
suspicious circumstances and did not even mention the will in
the plaint. The plaintiff also did not mount the box, and none
were examined on her side. The attesting witness examined,
hence in the facts of this case should speak about the
execution of the will by the testator, his attestation and also
about the attestation of the other witness who was no more, at
the time the suit went to trial.
5
16. In Janaki Narayan Bhoir , the impugned judgment of the
High Court relied on the evidence of the scribe, led under
Section 71 of the Evidence Act, which was found to be
incompetent insofar as one of the two attesting witnesses
failed to prove the attestation of the other and the other,
though available was not examined. This affirms the principle
6
in Vishnu Ramkrishna . In fact, the attesting witness
examined, categorically stated that he was not even aware of
the presence of the other attesting witness in the house
wherein the execution was stated to have occurred. It was
held in paragraph 10 that, “… The one attesting witness
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examined, in his evidence has to satisfy the attestation of a Will
by him and the other attesting witness in order to prove there
was due execution of the Will. If the attesting witness examined
besides his attestation does not, in his evidence, satisfy the
requirements of attestation of the will by other witness also it falls
short of attestation of will at least by two witnesses for the simple
reason that the execution of the will does not merely mean the
signing of it by the testator but it means fulfilling and proof of all
the formalities required under Section 63 of the Succession Act.
… (sic)”.
7
17. Raj Kumari was also a case in which one of the attesting
witnesses failed to prove the examination of the other witness,
who was not called to the box since he was the husband of one
of the respondents. The principle of exhausting the remedy
under Section 68 of the Evidence Act before invoking Section
71 was reiterated; which question does not arise in the instant
case.
18. Learned Senior Counsel for the appellant relied upon
the decision in H. H. Maharaja Bhanu Prakash Singh v. Tika
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9
Yogendra Chandra to contend that when evidence was
recorded after a long period, minor discrepancies in the
evidence would be a natural consequence. Therein the
evidence was recorded about eight years after the execution
of the will and in the present case, the examination of the
attesting witness was twenty-four years after the execution of
the will. It was argued that it is natural that a witness will not
be able to remember as to when exactly he went to the house
of the testator; which was truthfully spoken of by DW2.
19. Reliance was also placed by the appellant on Gopal
10
Swaroop v. Krishna Murari Mangal and Ors. in which
satisfaction as to the proof of the will was entered, when it was
stated by one of the attesting witnesses that the other attesting
witness was also present at the time the testator affixed his
signature.
20. We cannot but notice that there is clear departure,
10
insofar as the decision in Gopal Swaroop , from the principles
consistently declared in the other decisions above cited and
4
also of a four-judge bench in Rani Purnima Debi . However,
9
1989 Supp (1) SCC 16
10
(2010) 14 SCC 266
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we are of the opinion that we need not look into that aspect,
specifically considering the deposition of DW-2.
21. We think, at this point, it is apposite to extract paragraph
19 to 22 from the decision in H. Venkatachala Iyengar v. B.N.
11
Thimmajamma , as to the proof required in establishing a
will, in varying circumstances: -
19. However, there is one important feature which
distinguishes wills from other documents. Unlike other
documents the will speaks from the death of the
testator, and so, when it is propounded or produced
before a court, the testator who has already departed
the world cannot say whether it is his will or not; and
this aspect naturally introduces an element of solemnity
in the decision of the question as to whether the
document propounded is proved to be the last will and
testament of the departed testator. Even so, in dealing
with the proof of wills the court will start on the same
enquiry as in the case of the proof of documents. The
propounder would be called upon to show by
satisfactory evidence that the will was signed by the
testator, that the testator at the relevant time was in a
sound and disposing state of mind, that he understood
the nature and effect of the dispositions and put his
signature to the document of his own free will.
11
1959 Supp (1) SCR 426
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Ordinarily when the evidence adduced in support of
the will is disinterested, satisfactory and sufficient to
prove the sound and disposing state of the testator's
mind and his signature as required by law, courts
would be justified in making a finding in favour of the
propounder. In other words, the onus on the
propounder can be taken to be discharged on proof of
the essential facts just indicated.
20. There may, however, be cases in which the
execution of the will may be surrounded by suspicious
circumstances. The alleged signature of the testator
may be very shaky and doubtful and evidence in
support of the propounder's case that the signature, in
question is the signature of the testator may not remove
the doubt created by the appearance of the signature;
the condition of the testator's mind may appear to be
very feeble and debilitated; and evidence adduced
may not succeed in removing the legitimate doubt as to
the mental capacity of the testator; the dispositions
made in the will may appear to be unnatural,
improbable or unfair in the light of relevant
circumstances; or, the will may otherwise indicate that
the said dispositions may not be the result of the
testator's free will and mind. In such cases the court
would naturally expect that all legitimate suspicions
should be completely removed before the document is
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accepted as the last will of the testator. The presence of
such suspicious circumstances naturally tends to make
the initial onus very heavy; and, unless it is satisfactorily
discharged, courts would be reluctant to treat the
document as the last will of the testator. It is true that, if
a caveat is filed alleging the exercise of undue
influence, fraud or coercion in respect of the execution
of the will propounded, such pleas may have to be
proved by the caveators; but, even without such pleas
circumstances may raise a doubt as to whether the
testator was acting of his own free will in executing the
will, and in such circumstances, it would be a part of the
initial onus to remove any such legitimate doubts in the
matter.
21. Apart from the suspicious circumstances to which
we have just referred, in some cases the wills
propounded disclose another infirmity. Propounders
themselves take a prominent part in the execution of
the wills which confer on them substantial benefits. If it
is shown that the propounder has taken a prominent
part in the execution of the will and has received
substantial benefit under it, that itself is generally
treated as a suspicious circumstance attending the
execution of the will and the propounder is required to
remove the said suspicion by clear and satisfactory
evidence. It is in connection with wills that present such
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suspicious circumstances that decisions of English
courts often mention the test of the satisfaction of
judicial conscience. It may be that the reference to
judicial conscience in this connection is a heritage from
similar observations made by ecclesiastical courts in
England when they exercised jurisdiction with
reference to wills; but any objection to the use of the
word “conscience” in this context would, in our
opinion, be purely technical and academic, if not
pedantic. The test merely emphasizes that, in
determining the question as to whether an instrument
produced before the court is the last will of the testator,
the court is deciding a solemn question and it must be
fully satisfied that it had been validly executed by the
testator who is no longer alive.
22. It is obvious that for deciding material questions of
fact which arise in applications for probate or in actions
on wills, no hard and fast or inflexible rules can be laid
down for the appreciation of the evidence. It may,
however, be stated generally that a propounder of the
will has to prove the due and valid execution of the will
and that if there are any suspicious circumstances
surrounding the execution of the will the propounder
must remove the said suspicions from the mind of the
court by cogent and satisfactory evidence. It is hardly
necessary to add that the result of the application of
these two general and broad principles would always
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depend upon the facts and circumstances of each case
and on the nature and quality of the evidence adduced
by the parties. It is quite true that, as observed by Lord
Du Parcq in Harmes v. Hinkson [(1946) 50 CWN 895]
“where a will is charged with suspicion, the rules enjoin
a reasonable scepticism, not an obdurate persistence
in disbelief. They do not demand from the Judge, even
in circumstances of grave suspicion, a resolute and
impenetrable incredulity. He is never required to close
his mind to the truth”. It would sound platitudinous to
say so, but it is nevertheless true that in discovering
truth even in such cases the judicial mind must always
be open though vigilant, cautious and circumspect.
(underlining by us for emphasis)
22. The translation of the deposition of DW-2 has been
provided in both the appeals and a copy of the vernacular
Malayalam has also been handed over to us across the Bar
(one of us, Vinod Chandran, J being familiar with the
language). The proof boils down to what has been stated by
the witness. Looking at the chief-examination, it is clearly
stated by DW-2 that he had signed on the thirteenth page and
the back side of the first page of Exhibit B2 will, which was
shown to him. He also affirmed that the signature of the
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executant was that of N.S. Sreedharan, the testator. He also
spoke of N.S. Sreedharan; the testator, Xavier Mash (Teacher)
& himself; the attesting witnesses, as also the Sub-Registrar
being present at that time. If we look at the examination-in-
chief alone, it cannot be said that there was proof of the other
witness having put his signature in the document. In the cross
examination of DW-2 to DW-8, a question was asked as to
whether he saw the testator signing on the document which
was answered in the affirmative. Answering a question as to
his signature, it was said that he signed it in front of the
testator. Again, there was no proof offered of the signature of
the other attesting witness.
23. However, this missing piece was supplied in cross-
examination by the plaintiff. In the cross-examination by the
plaintiff, DW2 was specifically asked as to whether he had an
acquaintance with Xavier, the other attesting witness. The
answer was that the other attesting witness was known to him
earlier, as introduced to him by the testator. Then a question
was put as to whether the will was written after he reached
there. The answer was in the negative and he added that it was
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already written and ‘ they’ put their signatures on it. Significant
is the question put by the plaintiff, to DW-2 as to whether
himself and ‘others’ put their signatures on the will on the date
on which it was written; answered in the affirmative. Hence, on
the plaintiff’s suggestion, DW-2 affirmed not only the
signature of the testator and himself but also the other attesting
witness.
24. We are definitely of the opinion that DW-2 spoke of the
presence of the testator along with himself and the other
attesting witnesses as also affirmed the signature of the
testator and of both the attesting witnesses in the document.
25. Now, we have to deal with the confusion created as to
whether DW-2 had gone to the house of the testator only on
26.03.1988, the date shown in the will on which day it is
presumed to have been executed. A reading of the deposition
clearly indicates that DW-2 had very close association with the
testator and he was a frequent visitor to the house of the
testator. DW-2 also had a part time job at the textile shop of
the testator and had carried out such work even when he was
working with an auditor; which he stopped after the death of
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the testator. He categorically deposed that the testator had
summoned him to the testator’s house, over telephone, when
he was at the Auditor’s office. At the testator’s house, he saw
the testator’s wife and not the children. He did not reveal the
factum of the will to the children since he understood it as a
confidential matter. To a specific question as to whether the
testator was bedridden, he answered in the negative and
added that but for a small oedema in the legs, the testator had
no ailments, bringing forth no doubts on his physical health,
much less on the sound and disposing state of mind of the
testator; which was never disputed.
26. The specific issue on which the learned Senior Counsel
for the plaintiff lays emphasis, are to two suggestions made in
cross-examination, raising suspicion on the very execution of
the will. The suggestion that “but for the day on which the will
is said to have been prepared, DW-2 has not gone to the house
on any other date to sign the will” , was answered in the
affirmative. A further suggestion that DW2 after 26.03.1988
went to the house of the testator only after his death, was
answered in the affirmative. Since the will is dated 26.03.1988
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and the registration was on the next day, the execution itself is
under a cloud, for reason that DW2 speaks of the presence of
the Sub-Registrar too on the solitary day he was present in the
house of the testator, is the argument.
27. We are unable to agree. The first suggestion only
indicates that on the date the will was prepared, DW2 had
gone to the house of the testator ‘ to sign on it ’ and he had not
visited the testator on any other day, ‘ to sign the will ’. This does
not indicate that DW-2 had not visited the house of the testator
otherwise than on 26.03.1988. It cannot also be said that he was
not present on 27.03.1988; when he was present only for the
registration and not the signing of the will. Another response
emphasised by the plaintiff was to the suggestion that after
26.03.1988, DW-2 had gone to the testator’s house only after
his death. The execution of the will was in the year 1988, the
registration being on the very next day. The examination of
the witness was on 25.05.2012, twenty-four years later. It
would be puerile to think that the witness would have
remembered the visits made to the testator’s house, even for
execution of a will, with mathematical precision, especially
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given his close association and as is seen from the deposition,
a frequent visitor to the testator’s house.
28. We find that in the present case the only suspicion raised
about the execution of the will is the testamentary capacity of
the testator, relatable specifically to his physical disposition,
questioned in the cross-examination of DW2; unequivocally
affirmed as sound. We also reiterate, with respect, that the rule
of prudence; of the caution required in upholding a will which
divests the legal heirs as a whole, is not the situation existing
in the instant case. But, the person excluded was one of the
children of the plaintiff, the sole one excluded. The
propounders of the will are the siblings of the one excluded.
There is a reason stated for such exclusion, the acceptability
of which to our minds, is not what the rule of prudence
dictates. We cannot put the testator in our shoes, and we
should step into his. We cannot substitute our opinions in
place of that of the testator; his desire prompted by his own
justifications. As is trite, we would only ensure that, sitting in
the arm-chair of the testator the rule of prudence is satisfied
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for the exclusion; which on the facts of this case amply satisfies
the judicial conscience.
29. We find absolutely no reason to uphold the judgment of
the High Court which affirmed the judgment of the trial court.
We set aside both and find the will to have been proved
satisfactorily. The presence of the testator and the attesting
witnesses and the signatures affixed on the will by each of
them have been stated by DW-2 in his deposition. What was
lacking in the examination-in-chief was brought out in the
cross examination by way of a positive suggestion. Leading
questions are permitted in cross-examinations and the
response elicited cannot be said to have lesser probative
value, as held by the High Court. The testator was also
established to be of sound and disposing mind at the time of
execution of the will. There can be no interference to the will
which stands proved unequivocally. The judgment and
decree of the High Court and that of the trial court stands set
aside. The plaintiff is found to have no partible claim over the
properties of her father, which by a will have been
bequeathed to the other siblings of the plaintiff.
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30. The learned Senior Counsel for the respondent then
urged that the plaintiff in any event, would be entitled to only
th
1/9 share of the total properties which is a negligible portion
of that held by her father. We are not on equity, and the wish
of the testator assumes pre-eminence. The last will and
testament of the testator cannot be digressed from or
frustrated.
31. The appeals are allowed and the suit stands dismissed.
32. Pending applications, if any, shall stand disposed of.
……..…….………………………. J.
(AHSANUDDIN AMANULLAH)
…………….……………………. J.
(K. VINOD CHANDRAN)
NEW DELHI
DECEMBER 17, 2025.
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