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2024 (1) TMI 1432 - SC - Indian LawsSuit for partition and allotment of 5/7th share filed by respondent Nos.1 to 5 herein - entitlement to a share in the first schedule of the properties - validity of will dated 06.04.1990 - joint enjoyment of the suit properties of plaintiffs and defendants 2 and 3 - entitlement to 5/7th share in the property. Whether the appellant succeeded in proving the execution of the Will and if so whether the appellants who disputed its execution and also challenged the Will on the ground of existence of suspicious circumstances would make the same unreliable and not worthy for proceeding further? - HELD THAT - There can be no doubt with respect to the manner in which execution of a Will is to be proved. In the light of plethora of decisions including the decisions in MOTURU NALINI KANTH VERSUS GAINEDI KALIPRASAD (DEAD) THROUGH L. RS. 2023 (11) TMI 1346 - SUPREME COURT and in DEREK AC LOBO AND ORS. VERSUS ULRIC MA LOBO (DEAD) BY L. RS. AND ORS. 2023 (12) TMI 1413 - SUPREME COURT this position is well settled 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 provisions of Section 63 of the Indian Succession Act and Section 68 of the Evidence Act. It is not the case of the appellant that the Will dated 06.04.1990 is a registered one. Section 68 of the Evidence Act makes it clear that at least one attesting witness has to be examined to prove execution of a Will. It is true that in the case at hand DW2 was the attesting witness who was examined in Court. Therefore the question is whether they had deposed to the effect that the Will in question was executed in accordance with sub-rules (a) to (c) thereunder - The Trial Court rightly held that the propounder of the Will has to establish by satisfactory evidence that the Will was signed by the testator that the testator at the relevant time was in a sound disposing state of mind and that he understood the nature and effect of the dispositions and put his signature out of his own free will. The very case of the first defendant viz. DW1 is that the testator was being looked after by her. She was residing at Tenkasi and if the testator used to stay there with her and her deposition is to the effect that she was not aware that her husband was going to execute a Will at Madurai and then the proven fact is that two stamp papers on which 2 pages of the Will were typed were purchased in the name of the first defendant from Tenkasi create some suspicion. As noted earlier the health of testator was in bad condition and if so the case that the execution of the Will was at a far away place from Madurai is also a matter casting suspicion. Evidently it was taking into consideration all the aforesaid and such other circumstances that the High Court arrived at the finding that the execution of the Will itself was not proved. The circumstances surrounding the Will were also concurrently held as suspicious. Conclusion - The evidence of DW2 cannot be taken sufficient to prove the execution of the Will in question in the manner it is required to be proved and to accept it as genuine. It can only be held that the defendants have failed to prove that the testator executed the Will by putting his signature after understanding its contents. In such circumstances when the findings are concurrent how can the findings on the validity and genuineness of the Will in question by the Trial Court and the High Court be interfered with. There is no reason to hold that the appreciation and findings are absolutely perverse warranting appellate interference by this Court. It is also to be noted that the defendant Nos.2 and 3 also got 1/7th share each in the suit schedule properties. Appeal dismissed.
1. ISSUES PRESENTED and CONSIDERED
The core legal questions considered by the Court were: (i) Whether the plaintiffs are entitled to a share in the first schedule of the properties? (ii) Whether the Will dated 06.04.1990 is valid and genuine? (iii) Whether the plaintiffs and defendants 2 and 3 are in joint enjoyment of the suit properties? (iv) Whether the plaintiffs are entitled to 5/7th share in the property? (v) What reliefs are available to the plaintiffs? These issues were framed both at the trial and appellate stages, with particular emphasis on the validity and genuineness of the Will dated 06.04.1990 and the consequent entitlement of the parties to shares in the property. 2. ISSUE-WISE DETAILED ANALYSIS Issue (i) & (iv): Entitlement of plaintiffs and defendants to shares in the property The properties originally belonged to Balasubramaniya Thanthiriyar who had two wives-his first wife Rajammal and second wife Leela, the latter being an illegitimate wife as the first marriage subsisted. The partition deed dated 04.12.1989 divided the properties into four schedules, allotting the first schedule to Balasubramaniya himself, and the remaining schedules to his first wife and children through her. The plaintiffs contended that defendant No.1 (Leela) was not entitled to any share as she was an illegitimate wife and that the plaintiffs were entitled to 5/7th share in the suit properties. The defendants claimed entitlement under the Will dated 06.04.1990, which purported to be a testamentary disposition by Balasubramaniya in their favour. The Court noted the admitted fact of partition and allotment of the first schedule properties to Balasubramaniya himself, which were treated as his self-acquired properties. None disputed his exclusive ownership of these properties. The Court found that the plaintiffs were entitled to 5/7th share (1/7th each to five plaintiffs) and the two illegitimate sons of Balasubramaniya through Leela were entitled to 1/7th share each. The concurrent findings of the lower courts on this issue were not interfered with, except insofar as the validity of the Will might affect such shares. Issue (ii): Validity and genuineness of the Will dated 06.04.1990 The pivotal issue was the validity of the Will propounded by the defendants. The Will was unregistered but attested by two witnesses, satisfying the formal requirements under Section 63 of the Indian Succession Act, 1925, and Section 68 of the Indian Evidence Act, 1872. The appellants contended that the Will was duly executed with attestation by two witnesses and that the suspicious circumstances alleged by the respondents were insufficient to discredit the Will. They argued that the Will reflected the testator's intention to bequeath his self-acquired properties to his second wife and children through her, following the partition deed of 1989. The respondents contended that mere proof of execution under Section 63 and Section 68 was not conclusive of the Will's genuineness and that the Will was shrouded with suspicious circumstances making it unreliable. The Court analyzed the suspicious circumstances highlighted by the lower courts, which included:
The Court observed that DW-1, the first appellant and propounder of the Will, denied her role in its execution despite evidence to the contrary, including the purchase of stamp papers in her name. DW-2, the attesting witness and brother of DW-1, testified that the Will was executed at Madurai and was read over to the testator by a notary public before signing. However, the Will itself did not contain any notation that it was read over, and the testator's health was poor, raising doubts about his capacity to understand the Will fully. The Court emphasized the settled legal position that while the propounder must prove execution of the Will as per Section 63 and Section 68, the objector must point out suspicious circumstances, and the propounder must then remove such suspicion. The Court found that the suspicious circumstances were not satisfactorily explained or removed by the appellants. Consequently, the Court concurred with the concurrent findings of the Trial Court and High Court that the Will was not genuine and was shrouded with suspicious circumstances, rendering it unworthy of acceptance. Issue (iii): Joint enjoyment of properties The Court noted that the statement of DW-1 herself revealed that until the partition in 1989, the properties were jointly enjoyed by the testator and the plaintiffs. This supported the plaintiffs' claim of joint enjoyment and possession as co-owners of the suit schedule properties. Issue (v): Reliefs available to plaintiffs Given the dismissal of the Will's validity, the plaintiffs' entitlement to 5/7th share was upheld. The Court confirmed the decree of partition and allotment as per the partition deed dated 04.12.1989 and the subsequent findings of the lower courts. 3. SIGNIFICANT HOLDINGS The Court held: "Though it is the propounder to establish the execution of the Will and once the same is discharged, it is for the objector to pinpoint the suspicious circumstances. It is also the settled position that upon such objection, it is for the propounder to remove such suspicious circumstances." "The circumstances surrounding the Will were also concurrently held as suspicious. The evidence of DW2 cannot be taken sufficient to prove the execution of the Will in question in the manner it is required to be proved and to accept it as genuine." "There is no reason to hold that the appreciation and findings are absolutely perverse warranting appellate interference by this Court." Core principles established include:
Final determinations: The Court dismissed the appeal, affirming the validity of the partition deed and the entitlement of the plaintiffs to 5/7th share, and rejecting the Will dated 06.04.1990 as invalid and not genuine. The defendants were held entitled only to the shares allotted to them as per the partition deed, and the Will could not override that arrangement.
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