Meenakshiammal & Ors Vs.
Chandrasekaran & Anr  Insc 673 (3 November 2004)
Ashok Bhan & S.H. Kapadia
This civil appeal, by grant of special leave, is directed against a judgment
and order dated 20.11.1997 of a Single Judge of the Madras High Court allowing
Second Appeal No.1996 of 1982.
For the sake of convenience, the parties herein are referred to as they are
arrayed in the trial Court.
The brief facts giving rise to this appeal are as follows: One Velu Pillai
had two wives. The said Velu Pillai by his first wife had a daughter by name
Kamakshi and a son by name Sivaperumal (hereinafter referred to as
"Siva"). The said Velu Pillai by his second wife had a son by name
Sadasivam and two daughters, Kaveri (spinster) and Gnanambal. That, Kamakshi,
the real sister of Siva, had three children, namely, Meenakshi Ammal (plaintiff
no.1), Arunachalam Pillai (plaintiff no.2) and Palani Velu Pillai (plaintiff
no.3). Appellants herein are the legal representatives of the said plaintiffs.
Defendant no.1, Chandrasekaran (respondent no.1) is the son of Sadasivam
whereas defendant no.2, Vadivelu (respondent no.2) is the son of Gnanambal.
They are the children of the step brother and the step sister of Siva.
Siva died as bachelor on 6.11.1978. Siva and his step brother Sadasivam had
jointly executed a deed of settlement on 10.6.1956. Under the said settlement,
the two brothers settled some of their properties in favour of Kaveri and
divided the rest of their properties amongst themselves.
In the present matter, we are concerned with the separate properties of Siva
Meenakshi, Arunachalam Pillai and Palani Velu Pillai, children of Kamakshi,
instituted title suit bearing O.S. No.247 of 1981 in the Court of District
Munsif of Thiruthuraipundi (hereinafter for the sake of brevity referred to as
"the trial Court) for a declaration and for recovery of possession of the
suit properties of Siva alleging that they were the children of his real sister
and, consequently, were entitled to succeed to his properties;
that defendant nos.1 and 2 were the children of the step brother and the
step sister of the deceased and in the circumstances they, the plaintiffs, were
entitled to succeed to the properties of Siva, in preference to the defendants.
According to the plaintiffs, neither Sadasivam nor Gnanambal, much less than
their children, were entitled to succeed to the properties of late Siva.
In the written statement, the aforestated defendants denied that Siva died
intestate. That, Siva died on 6.11.1978 leaving behind the will dated
19.10.1978 (Ex.B/8). In the written statement, it was submitted that at the
time of his death, Siva was in sound disposing state of mind. It was further
alleged that Siva had devised all his properties under the said will to be
taken in equal share by the said two defendants. That, the said defendants were
put in possession and that they were cultivating the said lands since then. It
was alleged that the said Kamakshi and Siva were not on cordial terms;
that she never looked after her brother, Siva, who resided all along with
his step sister Kaveri. That, Palani Velu, plaintiff no.3 herein, had sued
Siva, during his life time.
In the circumstances, it was urged that Siva disinherited the plaintiffs
vide the aforestated will (Ex.B/8), which was duly executed and attested in
accordance with the provisions of section 63 of the Succession Act, 1925.
On the above pleadings, five issues were framed by the trial Court. We are
mainly concerned with first two issues, namely, (1) Whether the will Ex.B/8 was
true and valid?; and (2) whether the will Ex.B/8 was acted upon? In proof of
the aforestated will, Ex.B/8, the defendants examined five witnesses including
the 2nd defendant (DW1) who deposed that the deceased, Siva, had asked the
defendants to fetch a scribe and the attesting witnesses as he wanted to
execute the will in their favour. Accordingly, they went and fetched the
attesting witnesses and the scribe. DW1 further deposed that Siva was 85 to 90
years old when he died on 6.11.1978 and that he died after 15 days from the
date of execution of the said will. DW1 further deposed that Siva was unable to
walk freely as he had a fracture in his thigh and that he was bed-ridden for a
period of six months before his death. However, DW1 further stated that Siva
was hale and hearty in other respects and he was in sound disposing state of
mind. DW1 further deposed that he was attending on the deceased during his
treatment. DW1 further deposed that the plaintiffs resided in the village, Vettaikaran,
about 15 miles away from the suit village where Siva was living. DW1 further
deposed that Siva was looked after by Kaveri and Sadasivam and, therefore, the
will, Ex.B/8, was duly executed by Siva in favour of the defendants. DW1 denied
that the deceased Siva had become senile and that he was incapable of judging
things for himself. DW1 denied that Ex.B/8 was executed at the instance of the
defendants and without the knowledge of the deceased testator who allegedly
had lost all his mental faculties.
DW2, Vaithinathan, the scribe deposed that as requested by Siva, he was
taken by DW1 to Siva's residence, where in the presence of Siva and under his
instructions, the will was written and that too in the presence of the
attesting witnesses. That in the presence of DW2, Siva, had read the contents
of the will before subscribing his signature thereon. Further, in the present
case, the defendants also examined the attesting witnesses, who have deposed in
proof of the execution of the said will.
They have deposed that the deceased Siva was in a sound disposing state of
mind and he had executed the will on his own.
In the light of the above evidence, vide judgment and decree dated
30.9.1981, passed by the trial Court, it was held, that, the said will, Ex.B/8,
was really and voluntarily executed by Siva in favour of the defendants.
The trial Court also found that the defendants had taken possession of the
properties bequeathed to them under Ex.B/8 in pursuance of the said will. That
the defendants were in possession and enjoyment of the suit lands in their own
right in pursuance of the said will. That the will was proved and acted upon by
the defendants and consequently, the plaintiffs were not entitled to the relief
of declaration and for recovery of possession. In view of the said findings,
the suit was dismissed.
Being aggrieved, the plaintiffs preferred an appeal bearing A.S. No.48 of
1982 in the Sub-Court, Nagapattinam (hereinafter for the sake of brevity
referred to as "the lower appellate Court) which came to the conclusion,
that, the defendants were instrumental in execution of the will (Ex.B/8)
inasmuch as DW1 had brought the attesting witnesses to the house of Siva.
That, although the will was dated 19.10.1978 and though Siva was hale and
hearty as alleged, no steps were taken to get the will registered till
6.11.1978 when the testator died. That, no cogent reason had been given for
non- registration of the will during the said period. That, no reason had been
given as to why Siva had excluded the children of his own sister, Kamakshi.
That, the will is written by DW2 in black ink whereas the signature of the
testator is in a different ink and consequently Ex.B/8 was forged. That,
although Siva was undergoing treatment in the hospital, Ex.B/8 was executed at
his residence. That, there were contradictions in the evidence of the
witnesses. In the circumstances, it was held, that the will dated 19.10.1978
executed by Siva was not proved. In the result, the appeal was allowed and the
judgment and decree of the trial Court was set aside.
Aggrieved, the respondents herein preferred Second Appeal No.1996/82 in the
High Court. In the said appeal, the High Court formulated the following
substantial question of law:
"Whether the Lower Appellate Court is right in law in holding that suit
"Will" was procured and forged one in spite of the fact that there
was no pleading and no evidence to that effect?" Answering the above
question, it was held by the High Court that in the plaint, there was no
challenge to the validity or genuineness of the will despite the fact that full
particulars of the will were supplied to the plaintiffs by the reply dated
26.1.1979. That, the will was produced in the suit by the defendants who had
proved the same. It has been further held that the plaintiffs had not alleged
forgery or undue influence in the plaint and in the absence of such pleas, it
was not open to the lower appellate Court to hold that the will was procured or
forged. The High Court examined the evidence and came to the conclusion that
the execution of the will by Siva was proved; that Siva was at the time of
execution of the will having sound disposing mind and in the circumstances, the
findings recorded by the lower appellate Court were perverse and not proper. In
the result, the appeal was allowed and the judgment and decree of the trial
Court, dismissing the suit, was restored. Hence, this civil appeal.
Mr. K.B. Sounder Rajan, learned advocate appearing on behalf of the
appellants submitted that the plaintiffs had instituted the suit for
declaration and for recovery of possession in which the defendants set up
Ex.B/8. He submitted that although in the plaint, forgery was not alleged, the
lower appellate Court was right in returning the finding of forgery as the defendants
who relied on the will had failed to remove the suspicious circumstances
surrounding the will, including use of different ink between the signature of
Siva in Ex.B/8 and the contents thereof. In this connection, learned advocate
for the appellants submitted that the attesting witnesses were brought to the
house of Siva by the defendants.
That, the defendants, who were the sole beneficiaries, were instrumental in
procuring the will. That, there was no reason for Siva to exclude the
plaintiffs. That, no reason has been given for not getting the will registered
till 23.4.1980. That, Siva had become senile and was ailing at the time of the
will. That, the will was got made under undue influence. In the circumstances,
it was urged, that, the will is not proved to be genuine. It was urged that the
High Court had erred in interfering with the well reasoned judgment of the
lower appellate Court.
We do not find any merit in this civil appeal. The onus of proving 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, is sufficient to discharge the
onus. Where, however, there are suspicious circumstances, the onus is on the
propounder to explain them to the satisfaction of the Court before it accepts
the will as genuine. Even where the circumstances give rise to doubts, it is
for the propounder to satisfy the conscience of the Court. The suspicious
circumstances may be regarding the genuineness of the signature of the
testator, the condition of the testator's mind, the disposition made in the
will being unnatural, improbable or unfair in the light of relevant
circumstances, or there might be other indications in the will to show that the
testator's mind was not free. In such a case, the Court would normally expect
that all legitimate suspicions should be completely removed before the document
is accepted as the last will of the testator.
In the present case, the evidence on record indicates that Siva was a
bachelor. His relationship with his real sister Kamakshi was not cordial. The
deceased used to live with his step sister Kaveri. At the time of the execution
of the will, Siva was 85 years old and had suffered fracture. He was mentally
alert. He was looked after by the defendants. The plaintiffs were nowhere in
sight during his hospitalization or his treatment. In the circumstances, the
defendants have proved the reason for exclusion of the plaintiffs from the benefits
under the will.
In the matter of execution of the will, the evidence of DW2 shows that DW1
had come to fetch him at the behest of Siva. DW2 wrote the will under the
instructions of Siva. Before signing, Siva had read the will. The will was
signed in the presence of the attesting witnesses. The said witnesses had
attested in presence of Siva. There is no evidence on record to indicate that
Siva had become senile. In this connection, it may be pointed out that in
October, 1978, Siva had alienated one of his several properties for
consideration which circumstance shows that he had a sound disposing mind and
that there was no substance in the allegation of the plaintiffs that the
testator had become senile. As rightly pointed out by the trial Court, it was
the plaintiff's own case, while cross-examining DW1, that Siva was a prudent
and wise man. Further, we are in agreement with the view expressed by the trial
Court that even in the cross- examination, there was no suggestion put to DW1
that the signature on Ex.B/8 was not that of Siva. That, in the
cross-examination, no motive was suggested against DW2 to DW5 for supporting
the case of the defendants.
Further, the evidence indicates that Siva was hale and hearty and he was
advised to get the will registered, which he refused, saying that he was in
good health and expected to live long.
In the case of Sm. Chinmoyee Saha v. Debendra Lal Saha & others reported
in [AIR 1985 Calcutta 349], it has been held that if the propounder takes a
prominent part in the execution of the will, which confers a substantial
benefit on him, the propounder is required to remove the doubts by clear and
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.
In the case of Ryali Kameswara Rao v. Bendapudi Suryaprakasarao & others
reported in [AIR 1962 AP 178] 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.
In the case of Madhukar D. Shende v. Tarabai Aba Shedage reported in [AIR
2002 SC 637], it has been held as follows: "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
Succession Act, 1925 and
Section 68 of the Indian 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 weak 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, 1838, 2 Lewis CC
227 may be apposite to some extent "The mind was 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 hole;
and the more ingenuous 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
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
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 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
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." In the present case, the propounders of the
will have proved that the will was signed by Siva; that at the time of
execution of the will, he had a sound disposing state of mind; and that he had
reasons to exclude the plaintiffs who did not care for him in his old age.
Lastly, as stated above, the onus to prove forgery, undue influence or
collusion was on the plaintiffs who have alleged that Ex.B/8 was forged. In the
absence of such a plea, the lower appellate Court had erred in holding that the
will was forged. We are satisfied on examination of the evidence that
execution, attestation and genuineness of the will has been proved as held by
the impugned judgment and in the circumstances, we find no merit in this
In the result, the appeal fails and is dismissed, with no order as to costs.