Apoline D' Souza Vs. John D' Souza  Insc 594 (16 May 2007)
S.B. Sinha & Markandey Katju
S.B. SINHA, J :
1. Florine D' Souza executed a will on or about 06.05.1992. She had two
daughters Olivia and Olympia. Both of them had become nuns. The 1st daughter
Olivia died in 1975. The 2nd daughter Olympia died on 27.09.1993.
2. Appellant herein was one of the beneficiaries of the will. He was,
however, not in any way related to the testatrix. The testatrix was owner of
the following properties which were subject-matter of the said will :
"'A' SCHEDULE Property situated in Talipady Village, Mangalore
Taluk, Mulki Sub-Division D.K. bearing following particulars :
Kissam Extent A.C.
Assessment Rs. Ps.
123 - 1A1B (P) Garden 0 - 16 BOUNDARIES :
East : Property allotted to 'B' Schedule belongs to the Same sub-Division.
South : Portion of Sy. No. 123/1A1A West : Portion of Sy. No. 123/1A1A North
: Sy Line With tiled house bearing No. 8 87, with all mamool and easementary
rights with all appurtenants and also all the movables belonging to me."
"'B' SCHEDULE' Property situation in Thalipady Village, Mulki S.D.
Mangalore Taluk, D.K. Bearing following particulars :
Kissam Extent A.C.
Assessment Rs. Ps.
123 1A1B (P) Garden 0 23 BOUNDARIES :
East : Portion of the Sy. No. 123/5, 123/3, 123/1A1B South : Portion of Sy.
No. 123/1A1A West : Property allotted to 'A' Schedule of same Sub- Division
North : Sy. Line 123 5 Garden 0 09 With a tiled house, timbers all mamool and
3. Whereas the property described in Schedule 'A' appended to the said will
was bequeathed in favour of the appellant, the property described in Schedule
'B' thereto was bequeathed in favour of the respondent. Florine died on
13.03.1994. An application for grant of Letters of Administration with a copy
of the will annexed, in terms of Section 276 of the Indian Succession Act, 1925
(for short 'the Act') was filed by the appellant.
Respondent entered a caveat.
4. The plea raised by the respondent in the suit was that the testatrix was
an aged woman and did not have a proper frame of mind at the time of purported
execution of the will to understand the contents thereof.
5. The learned Trial Judge held that the execution of the will had been
proved, stating :
"Circumstances go to show that the defendant had constructed his own
house in one portion of the land that belonged to the old lady. 23 cents of
land was given to the defendant under the will and 16 cents of land including
the old house was given to the plaintiff who attended the old lady during her
old age. I do not find anything unnatural in the bequest made by the old lady.
She has given larger extent of land to the defendant who is the son of the
sister of the Testatrix. That shows that the disposition made by her was
consistent with the natural course of human conduct."
It was held that as the propounder did not take any interest in the matter
of execution of the will, no suspicious circumstances existed.
6. The High Court, however, reversed the said finding of the learned Trial
Judge by reason of the impugned judgment, opining :
i) PW-2, the only attesting witness, examined in the matter, admitted that
she had put her signature on a handwritten will, whereas the will had in fact
been typed in Kannada language. Hence the due execution of the will was not
ii) The will contained various overwritings and cuttings, which establish
existence of suspicious circumstances.
iii) Evidence of PW-2 does not prove either execution or attestation of the
will as per Ex. P-2, as the thumb mark affixed by Florine D' Souza on it was
not got marked in the evidence of PW-2 and she had not identified the thumb
mark on Ex. P-2 as the thumb mark which was affixed by Florine D' Souza in her
iv) Mere fact that the will was a registered one would not dispense with the
requirements of proof of due execution and attestation of the will for grant of
Letters of Administration.
7. Dr. M.P. Raju, learned counsel appearing on behalf of the appellant,
however, submitted :
i) The proof of execution of the will cannot be discarded only because all
the precedent requirements of law had not been fulfilled.
ii) As it was proved that the plaintiff-appellant was serving the testatrix
since 1986, there was no reason to disbelieve the bequest made in her favour by
way of a will.
8. The testatrix was a 96 years old lady. She had been suffering for a long
time. She was bed-ridden. No evidence has been brought on record to show as to
who had drafted the will.
9. Even if it be assumed that the appellant had nothing to do in regard to
preparation of the draft or registration thereof, nothing has been brought on
record to show as to who had drafted the will, or at whose instance it came to
10. PW-2 is the attesting witness. She was called to be a witness to the
execution of the will. On or about 06.05.1992, when she had come to the house
of the testatrix, the will had already been written. According to her, only
after she had come, the testatrix put her L.T.I.. Two days thereafter, the will
was registered, on which date also she was asked to be present.
11. The High Court has arrived at a conclusion that the execution of the
will has not been proved in accordance with law.
12. What should be the mode of proof of execution of a will has been laid
down in Section 63 of the Act in the following terms :
"63. Execution of unprivileged wills.-Every testator, not being a
solider 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 of 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."
13. Section 68 of the Indian Evidence
Act, 1872 provides for the mode and manner in which execution of the will
is to be proved. Proof of attestation of the will is a mandatory requirement.
Attestation is sought to be proved by PW-2 only. Both the daughters of the
testatrix were nuns. No property, therefore, could be bequeathed in their
favour. In fact one of them had expired long back. Relation of the testatrix
with the respondent admittedly was very cordial. Appellant before us has not
been able to prove that she had been staying with the testatrix since 1986 and
only on that count she was made a beneficiary thereof. The will was full of
suspicious circumstances. PW-2 categorically stated that the will was drafted
before her coming to the residence of the testatrix and she had only proved her
signature as a witness to the execution of the will but the document was a
handwritten one. The original will is typed in Kannada, although the blanks
were filled up with English letters. There is no evidence to show that the
contents of the will were read over and explained to the testatrix. PW-2 was
not known to her. Why was she called and who called her to attest the will is
shrouded in mystery. Her evidence is not at all satisfactory in regard to the
proper frame of mind of the testatrix. There were several cuttings and
overwritings also in the will.
14. What would be the requirement for proof of a will has recently been
considered by this Court in B. Venkatamuni v. C.J. Ayodhya Ram Singh &
Ors. [2006 (11) SCALE 149], stating :
"15. Proof of a Will shall strictly be in terms of the abovementioned
16. It is, however, well settled that compliance of statutory requirements
itself is not sufficient as would appear from the discussions hereinafter
It was observed :
"20. Yet again Section 68 of the Indian Evidence Act
postulates the mode and manner in which proof of execution of document required
by law to be attested stating that the execution must be proved by at least one
attesting witness, if an attesting witness is alive and subject to the process
of the Court and capable of giving evidence."
It was further observed :
"24. However, having regard to the fact that the Will was registered
one and the propounder had discharged the onus, it was held that in such circumstances,
the onus shifts to the contestant opposing the Will to bring material on record
meeting such prima facie case in which event the onus shifts back on the
propounder to satisfy the court affirmatively that the testator did not know
well the contents of the Will and in sound disposing capacity executed the
25. Each case, however, must be determined in the fact situation obtaining
26. The Division Bench of the High Court was, with respect, thus, entirely
wrong in proceeding on the premise that compliance of legal formalities as
regards proof of the Will would sub-serve the purpose and the suspicious
circumstances surrounding the execution thereof is not of much significance.
27.The suspicious circumstances pointed out by the learned District Judge
and the learned Single Judge of the High Court, were glaring on the face of the
They could not have been ignored by the Division Bench and in any event, the
Division Bench should have been slow in interfering with the findings of fact
arrived at by the said court. It applied a wrong legal test and thus, came to
an erroneous decision."
15. Yet again in Niranjan Umeshchanda Joshi v. Mrudula Jyoti Rao &
Ors. [2006 (14) SCALE 186], this court observed :
"32. Section 63 of the Indian Evidence
Act lays down the mode and manner in which the execution of an unprivileged
Will is to be proved. Section 68 postulates the mode and manner in which proof
of execution of document is required by law to be attested. It in unequivocal
terms states that execution of Will must be proved at least by one attesting
witness, if an attesting witness is alive subject to the process of the court
and capable of giving evidence. A Will is to prove what is loosely called as
primary evidence, except where proof is permitted by leading secondary
evidence. Unlike other documents, proof of execution of any other document
under the Act would not be sufficient as in terms of Section 68 of the Indian Evidence
Act, execution must be proved at least by one of the attesting witnesses.
While making attestation, there must be an animus attestandi, on the part of
the attesting witness, meaning thereby, he must intend to attest and extrinsic
evidence on this point is receivable.
33. The burden of proof that the Will has been validly executed and is a
genuine document is on the propounder. The propounder is also required to prove
that the testator has signed the Will and that he had put his signature out of
his own free will having a sound disposition of mind and understood the nature
and effect thereof. If sufficient evidence in this behalf is brought on record,
the onus of the propounder may be held to have been discharged. But, the onus
would be on the applicant to remove the suspicion by leading sufficient and
cogent evidence if there exists any. In the case of proof of Will, a signature
of a testator alone would not prove the execution thereof, if his mind may
appear to be very feeble and debilitated. However, if a defence of fraud,
coercion or undue influence is raised, the burden would be on the caveator.
[See Madhukar D. Shende v. Tarabai Shedage (2002) 2 SCC 85 and Sridevi &
Ors. v. Jayaraja Shetty & Ors. (2005) 8 SCC 784]. Subject to above, proof
of a Will does not ordinarily differ from that of proving any other
Noticing B. Venkatamuni (supra), it was observed:
"36. The proof a Will is required not as a ground of reading the
document but to afford the judge reasonable assurance of it as being what it
purports to be.
37. We may, however, hasten to add that there exists a distinction where
suspicions are well founded and the cases where there are only suspicions
Existence of suspicious circumstances alone may not be sufficient. The court
may not start with a suspicion and it should not close its mind to find the
truth. A resolute and impenetrable incredulity is demanded from the judge even
there exist circumstances of grave suspicion. [See Venkatachala Iyengar
[See also Joseph Antony Lazarus (Dead) By LRs. v. A.J. Francis, (2006) 9 SCC
16. In S. Sankaran v. D. Kausalya [2007 (3) SCALE 186], it was stated :
"6. A learned Single Judge of the High Court by his judgment dated
25.5.1996 held that the will dated 24.9.1986 was genuine and was not a forged
one. The learned Single Judge took into consideration various factors e.g. that
the testator himself presented the will for execution, and there was a dispute
between the testator and his elder daughter and hence he wanted to bequeath his
properties to his second daughter and the sons born to her, etc.
7. In appeal the Division Bench of the Madras High Court set aside the
judgment of the learned Single Judge but without a proper consideration of the
various facts and circumstances of the case mentioned by the learned Single
Judge in his very elaborate judgment.
8. The Division Bench was evidently influenced by the fact that the elder
daughter was deprived of her share in her father's property. However, the
Division Bench has not taken into consideration the various considerations
which according to learned Single Judge motivated the testator to deprive his
elder daughter, the respondent herein."
[See also Benga Behera & Anr. v. Braja Kishore Nanda & Ors. C.A.
No.3467 of 2003 - disposed of on 15.05.2007]
17. Reliance placed by Dr. Raju on Brahmadat Tewari v. Chaudan Bibi [AIR
1916 Calcutta 374] and Riazulnisa Begam, Mst v. Lala Puran Chand [ILR XIX Lucknow
445] are misplaced.
18. The requirements to prove execution of the will are laid down under
Section 63 of the Act only in the year 1925. The law has since undergone a
change. In any event, this Court is bound by the decisions of this Court.
19. In Naresh Charan Das Gupta v. Paresh Charan Das Gupta [1954 SCR 1035]
whereupon again reliance has been placed, this Court has categorically held :
"It cannot be laid down as a matter of law that because the witnesses
did not state in examination-in-chief that they signed the will in the presence
of the testator, there was no due attestation. It will depend on the
circumstances elicited in evidence whether the attesting witnesses signed in
the presence of the testator. This is a pure question of fact depending on
appreciation of evidence. The finding of the Court below that the will was duly
attested is based on a consideration of all the materials, and must be accepted"
20. The ratio of the said decision does not assist the appellant, as the
mode and manner of proof of due execution of a will indisputably will depend
upon the facts and circumstances of each case. It is for the propounder of the
will to remove the suspicious circumstances, which has not been done in this
21. For the reasons aforementioned, there is no merit in this appeal, which
is accordingly dismissed. In the facts and circumstances of the case, there
shall, however, be no order as to costs.