Full Judgment Text
2023INSC847
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.3351 OF 2014
(Arising out of SLP(C) NO.17115/2010)
MEENA PRADHAN & ORS. ...APPELLANT(S)
VERSUS
KAMLA PRADHAN & ANR. …RESPONDENT(S)
J U D G M E N T
SANJAY KAROL, J.
1. The facts, in brief, giving rise to the present appeal are as
under: There was one Bahadur Pradhan who married Meena
Pradhan (Defendant2/Appellant No.1 herein) with whom he had
Signature Not Verified
Digitally signed by
Anita Malhotra
Date: 2023.09.21
16:57:33 IST
Reason:
two children namely, Ravi Kumar (Defendant3/ Appellant No.2
1 CIVIL APPEAL NO.3351 OF 2014
/
herein) and Ku. Sushma (Defendant4 Appellant No.3 herein).
Allegedly, he divorced his first wife and solemnised another
marriage with Kamla Pradhan (Plaintiff1/Respondent No.1 herein)
who gave birth to a child namely Ku. Ritu (Plaintiff2/Respondent
No.2 herein). Bahadur Pradhan (hereinafter referred to as ‘testator’),
seven days before his death (07.08.1992), executed a Will on
30.07.1992 in the presence of two witnesses namely Lok Bahadur
Thapa (not examined) and Suraj Bahadur Limboo (PW2).
2. After the death of the testator, the Plaintiffs filed a case for
receiving the testator’s dues wherein a succession certificate was
issued in favour of Respondent No.1 by VI Additional District
Judge, Jabalpur vide order dated 05.07.1995. Proceedings stood
concluded with the reversal of such an order by the High Court of
Madhya Pradesh in terms of order dated 17.11.1995, quashing the
entire proceedings, observing the authenticity and genuineness of
the Will, in existence to be adjudicated in appropriate proceedings.
3. Pursuant to this order of the High Court, proceedings under
Section 276 of the Indian Succession Act 1925 (hereinafter referred
to as ‘the Succession Act’) for a grant of Probate or Letter of
Administration were initiated by both the Plaintiffs. The Defendants
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challenged the execution of the Will in favour of the Plaintiffs, also
raising an objection about the testator having married Plaintiff
No.1.
4. The Civil Court, Jabalpur, MP vide order dated 11.12.2001, in
Succession Case No. 22/98 while relying on the testimony of an
attesting witness, namely, Suraj Bahadur Limboo (PW2) upheld the
validity of the Will in favour of the beneficiaries and accordingly
issued Letter(s) of Administration. The said order was challenged
by the Defendants. The High Court in repelling the Defendant’s
contention of the Will being a forged document, by discussing the
relevant statutory provisions and decisions of this Court, affirmed
the order of the Civil Court.
5. Hence, the instant Appeal against the final judgment dated
25.03.2010 in Misc. Appeal No. 382 of 2002 passed by the High
Court of Madhya Pradesh, confirming the order of the Civil Court in
Succession Case No.22/98 wherein it upheld the validity of the Will
and issued Letters of Administration.
6. The issue that arises for our consideration is whether there
are sufficient grounds that warrant interference with the concurrent
findings of the fact, upholding validity of a Will.
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7. Before delving into the facts of the case, it is pertinent to
reproduce the relevant provisions dealing with the validity and
execution of the Will.
“ Section 63 of the Indian Succession Act, 1925
Every testator, not being a
Execution of unprivileged wills
soldier employed in an expedition or engaged in actual warfare,
or an airman so employed or engaged, or a mariner at sea, shall
execute his Will according to the following rules:
(a) The testator shall sign or shall affix his mark to the Will, or it
shall be signed by some other person in his presence and by his
direction.
(b) The signature or mark of the testator, or the signature of the
person signing for him, shall be so placed that it shall appear
that it was intended thereby to give effect to the writing as a Will.
(c) The Will shall be attested by two or more witnesses, each of
whom has seen the testator sign or affix his mark to the Will or
has seen some other person sign the Will, in the presence and by
the direction of the testator, or has received from the testator a
personal acknowledgement of his signature or mark, or the
signature of such other person; and each of the witnesses shall
sign the Will in the presence of the testator, but it shall not be
necessary that more than one witness be present at the same
time, and no particular form of attestation shall be necessary.
Section 68 of Indian Evidence Act 1872
Proof of Execution of document required by law to be
attested If a document is required by law to be attested, it shall
not be used as evidence until one attesting witness at least has
been called for the purpose of proving its execution, if there be an
attesting witness alive, and subject to the process of the Court
and capable of giving evidence: xxx”
8. Thus, a bare reading of the abovementioned provisions would
show that the requirements enshrined under Section 63 of the
Succession Act have to be categorially complied with for the
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execution of the Will to be proven in terms of Section 68 of the
Evidence Act.
9. A Will is an instrument of testamentary disposition of
property. It is a legally acknowledged mode of bequeathing a
testator’s property during his lifetime to be acted upon on his/her
death and carries with it an element of sanctity. It speaks from the
death of the testator. Since the testator/testatrix, at the time of
testing the document for its validity, would not be available for
deposing as to the circumstances in which the Will came to be
executed, stringent requisites for the proof thereof have been
statutorily enjoined to rule out the possibility of any manipulation.
10. Relying on H. Venkatachala Iyengar v. B.N. Thimmajamma,
1959 Supp (1) SCR 426 (3Judge Bench), Bhagwan Kaur v.
Kartar Kaur, (1994) 5 SCC 135 (3Judge Bench), Janki Narayan
Bhoir v. Narayan Namdeo Kadam, (2003) 2 SCC 91 (2Judge
Bench) Yumnam Ongbi Tampha Ibema Devi v. Yumnam
Joykumar Singh, (2009) 4 SCC 780 (3Judge Bench) and
(3Judge
Shivakumar v. Sharanabasappa, (2021) 11 SCC 277
Bench), we can deduce/infer the following principles required for
proving the validity and execution of the Will:
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i. The court has to consider two aspects: firstly, that the
Will is executed by the testator, and secondly, that it was
the last Will executed by him;
ii.
It is not required to be proved with mathematical
accuracy, but the test of satisfaction of the prudent
mind has to be applied.
iii. A Will is required to fulfil all the formalities required
under Section 63 of the Succession Act, that is to say:
(a) The testator shall sign or affix his mark to the Will or
it shall be signed by some other person in his presence
and by his direction and the said signature or affixation
shall show that it was intended to give effect to the
writing as a Will;
(b) It is mandatory to get it attested by two or more
witnesses, though no particular form of attestation is
necessary;
(c) Each of the attesting witnesses must have seen the
testator sign or affix his mark to the Will or has seen
some other person sign the Will, in the presence and by
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the direction of the testator, or has received from the
testator a personal acknowledgment of such signatures;
(d) Each of the attesting witnesses shall sign the Will in
the presence of the testator, however, the presence of all
witnesses at the same time is not required;
iv.
For the purpose of proving the execution of the Will, at
least one of the attesting witnesses, who is alive, subject
to the process of court, and capable of giving evidence,
shall be examined;
v. The attesting witness should speak not only about the
testator’s signatures but also that each of the witnesses
had signed the will in the presence of the testator;
vi.
If one attesting witness can prove the execution of the
Will, the examination of other attesting witnesses can be
dispensed with;
vii.
Where one attesting witness examined to prove the Will
fails to prove its due execution, then the other available
attesting witness has to be called to supplement his
evidence;
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viii.
Whenever there exists any suspicion as to the execution
of the Will, it is the responsibility of the propounder to
remove all legitimate suspicions before it can be
accepted as the testator's last Will. In such cases, the
initial onus on the propounder becomes heavier.
ix.
The test of judicial conscience has been evolved for
dealing with those cases where the execution of the Will
is surrounded by suspicious circumstances. It requires
to consider factors such as awareness of the testator as
to the content as well as the consequences, nature and
effect of the dispositions in the Will; sound, certain and
disposing state of mind and memory of the testator at
the time of execution; testator executed the Will while
acting on his own free Will;
x. One who alleges fraud, fabrication, undue influence et
cetera has to prove the same. However, even in the
absence of such allegations, if there are circumstances
giving rise to doubt, then it becomes the duty of the
propounder to dispel such suspicious circumstances by
giving a cogent and convincing explanation.
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xi. Suspicious circumstances must be ‘real, germane and
1
valid’ and not merely ‘the fantasy of the doubting mind’ .
Whether a particular feature would qualify as
‘suspicious’ would depend on the facts and
circumstances of each case. Any circumstance raising
suspicion legitimate in nature would qualify as a
suspicious circumstance for example, a shaky
signature, a feeble mind, an unfair and unjust
disposition of property, the propounder himself taking a
leading part in the making of the Will under which he
receives a substantial benefit, etc.
11. In short, apart from statutory compliance, broadly it has to be
proved that (a) the testator signed the Will out of his own free Will,
(b) at the time of execution he had a sound state of mind, (c) he was
aware of the nature and effect thereof and (d) the Will was not
executed under any suspicious circumstances.
12. Coming to the facts of the case, a careful perusal of the
relevant material on record and applying the provisions and the
case laws it is evident that the Will was duly executed by the
testator in the presence of witnesses out of his free Will in a sound
1 Shivakumar (supra)
9 CIVIL APPEAL NO.3351 OF 2014
disposing state of mind and the same stands proven through the
testimony of one of the attesting witnesses, namely, Suraj Bahadur
Limboo who was examined as PW2 by the Civil Court. This witness
categorically states that the testator executed the Will in question
and, both he and the testator signed the Will in the presence of
each other.
13. As far as allegations made by the defendants are concerned,
we are of the opinion that there is no evidence on record to
conclude that the deceased was not in a fit or stable mental
condition at the time of execution of a Will, or that a Will was
executed under suspicious circumstances, or the presence of any
element of undue influence.
14. Thus, in the case at hand, we are of the opinion that both the
courts below have rightly noted that the relevant provisions were
complied with, and given the wellreasoned order upholding the
validity of the Will, the same does not warrant interference of this
court.
15. As far as the allegations of second marriage and bigamy are
concerned, we refrain from entertaining such submissions as the
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same is not a relevant factor in deciding the main lis, which is
confined to the validity of the Will.
16. This Appeal is bereft of any merit and hence dismissed. Since
the validity of the Will stands proven according to settled principles
of law, consequential benefits be disbursed accordingly.
17. Interlocutory Application(s) if any, stand disposed of. No order
as to costs.
……..……………..J.
(ABHAY S. OKA)
…………………….J.
(SANJAY KAROL)
st
Date : 21 September, 2023;
Place: New Delhi.
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