The person contesting the will alleges undue influence, fraud or coercion, the onus will be on him to prove the same.
Citation
CDJ 2005 SC 186
Sri Devi and others vs Jayaraja shethy and others
Head note
Law of Wills - Proving the Will - Onus of Proof - Suspicious Circumstances - It is well settled proposition of law that mode of proving the will does not differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by Section 63 of the Indian Succession Act, 1925. The onus to prove the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and proof of the signature of the testator, as required by law, need the sufficient to discharge the onus. Where there are suspicious circumstances, the onus would again be on the propounder to explain them to the satisfaction of the court before the will can be accepted as genuine. Proof in either case cannot be mathematically precise and certain and should be one of satisfaction of a prudent mind in such matters. In case the person contesting the will alleges undue influence, fraud or coercion, the onus will be on him to prove the same. As to what are suspicious circumstances have to be judged in the facts and circumstances of each particular case.
Para 11
Indian Succession Act, 1925 - Section 63 - Proving the Will - Onus of Proof - Suspicious Circumstances - It is well settled proposition of law that mode of proving the will does not differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by Section 63 of the Indian Succession Act, 1925. The onus to prove the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and proof of the signature of the testator, as required by law, need the sufficient to discharge the onus. Where there are suspicious circumstances, the onus would again be on the propounder to explain them to the satisfaction of the court before the will can be accepted as genuine. Proof in either case cannot be mathematically precise and certain and should be one of satisfaction of a prudent mind in such matters. In case the person contesting the will alleges undue influence, fraud or coercion, the onus will be on him to prove the same. As to what are suspicious circumstances have to be judged in the facts and circumstances of each particular case.
Para 11
Law of Wills - Suspicious Circumstances - Except that the deceased is 80 years of age and that he died within 15 days of the execution of the will, nothing has been brought on record to show that the testator was not in good health or possessed of his physical or mental faculties - It is not a case where the father had deprived his other children totally from inheritance. Reasons for unequal distribution have been given in the will itself. This had been done by him to balance the equitable distribution of the properties in favour of all his children - Another suspicious circumstances which was highlighted at great length by the learned counsel for the appellant is that the Respondent Nos.8-13 had failed to disclose the will for a period of 4 years in any of the earlier proceedings before the revenue authorities and the forest authorities - It can be safely presumed that the statement that they did not have any right in the land was made by them only after knowing the contents of the will. Both the attesting witnesses have stated that the daughters were present at the time of the execution of the will. This assertion of the two attesting witnesses has not been controverted by either of the daughters by appearing in the witness box. From their presence in the house at the time of the execution of the will, it can reasonably be inferred that they had knowledge about the execution of the will. Under these circumstances, it cannot be held that the execution of the will had not been brought to the notice of the appellants - The statements of the scribe and the two attesting witnesses before the Registrar are in harmony with the statements made by them in the court. Another circumstances, which was stressed during the course of the arguments by the counsel for the appellants was that although it was not necessary to get the will registered, but still the respondents got it registered after a period of 4 years only to lend authenticity to the will. According to Respondent No.13, the will was got registered on the advice of a lawyer to enable them to produce it before various authorities - Since we have come to the conclusion that the daughters were present at the time of execution of the will by the testator and the execution of the same was disclosed at the time of final obeisance ceremony of the testator and that the will had also been brought to the notice of the appellants in the year 1978 during the proceedings before the forest authorities, the registration of the will in the year 1980 by itself does not cast a doubt regarding the execution of the will in the year 1976.
Para 15, 17 & 18
Comparative Citations:
2005 AIR(SCW) 605, 2005 (2) UJ 1157, 2005 (1) Scale 577, 2005 AIR(SC) 780, 2005 (1) JT 547, 2005 (2) SCC 784, 2005 (1) Supreme 684, 2005 (1) SCJ 794, 2005 (1) CTC 443, 2005 (2) LW 89, 2005 (1) CLT 162, 2005 (3) SRJ 38, 2005 (2) SLT 38,
Para 11
Indian Succession Act, 1925 - Section 63 - Proving the Will - Onus of Proof - Suspicious Circumstances - It is well settled proposition of law that mode of proving the will does not differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by Section 63 of the Indian Succession Act, 1925. The onus to prove the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and proof of the signature of the testator, as required by law, need the sufficient to discharge the onus. Where there are suspicious circumstances, the onus would again be on the propounder to explain them to the satisfaction of the court before the will can be accepted as genuine. Proof in either case cannot be mathematically precise and certain and should be one of satisfaction of a prudent mind in such matters. In case the person contesting the will alleges undue influence, fraud or coercion, the onus will be on him to prove the same. As to what are suspicious circumstances have to be judged in the facts and circumstances of each particular case.
Para 11
Law of Wills - Suspicious Circumstances - Except that the deceased is 80 years of age and that he died within 15 days of the execution of the will, nothing has been brought on record to show that the testator was not in good health or possessed of his physical or mental faculties - It is not a case where the father had deprived his other children totally from inheritance. Reasons for unequal distribution have been given in the will itself. This had been done by him to balance the equitable distribution of the properties in favour of all his children - Another suspicious circumstances which was highlighted at great length by the learned counsel for the appellant is that the Respondent Nos.8-13 had failed to disclose the will for a period of 4 years in any of the earlier proceedings before the revenue authorities and the forest authorities - It can be safely presumed that the statement that they did not have any right in the land was made by them only after knowing the contents of the will. Both the attesting witnesses have stated that the daughters were present at the time of the execution of the will. This assertion of the two attesting witnesses has not been controverted by either of the daughters by appearing in the witness box. From their presence in the house at the time of the execution of the will, it can reasonably be inferred that they had knowledge about the execution of the will. Under these circumstances, it cannot be held that the execution of the will had not been brought to the notice of the appellants - The statements of the scribe and the two attesting witnesses before the Registrar are in harmony with the statements made by them in the court. Another circumstances, which was stressed during the course of the arguments by the counsel for the appellants was that although it was not necessary to get the will registered, but still the respondents got it registered after a period of 4 years only to lend authenticity to the will. According to Respondent No.13, the will was got registered on the advice of a lawyer to enable them to produce it before various authorities - Since we have come to the conclusion that the daughters were present at the time of execution of the will by the testator and the execution of the same was disclosed at the time of final obeisance ceremony of the testator and that the will had also been brought to the notice of the appellants in the year 1978 during the proceedings before the forest authorities, the registration of the will in the year 1980 by itself does not cast a doubt regarding the execution of the will in the year 1976.
Para 15, 17 & 18
Comparative Citations:
2005 AIR(SCW) 605, 2005 (2) UJ 1157, 2005 (1) Scale 577, 2005 AIR(SC) 780, 2005 (1) JT 547, 2005 (2) SCC 784, 2005 (1) Supreme 684, 2005 (1) SCJ 794, 2005 (1) CTC 443, 2005 (2) LW 89, 2005 (1) CLT 162, 2005 (3) SRJ 38, 2005 (2) SLT 38,
Equallent citation
ReplyDelete2007(2) CTC 172
2010(2) CTC 667