Adivekka & Ors. Vs. Hanamavva Kom Venkatesh 'D' By Lrs. & Anr  Insc 526 (9
S.B. Sinha & Markandey Katju
S.B. SINHA, J :
1. Requirements in regard to the nature of proof of a Will in view of
existing suspicious circumstances is the question involved in this appeal which
arises from the judgment and order dated 27.08.1998 passed by the High Court of
Karnataka at Bangalore in R.F.A. Nos. 308/94 and 331/94.
2. Before, however, we embark upon the said question, we may notice the
3. Appellants herein are wife and children of one Hanumanthappa, the
testator. The suit property measuring 4 acres 32 guntas stood in his name. He
admittedly was suffering from cancer. He expired on 11.09.1988.
Just two weeks prior to his death, viz., 25.08.1988, he allegedly executed
the Will in favour of Respondent No. 1 herein bequeathing in her favour the
lands in question. Appellants were not aware of the execution of the said Will.
They applied for mutation of their names after the death of Hanumanthappa. An
objection thereto was raised by Respondent No. 1.
Allegedly, in the meantime, Respondent No. 1 had also sold the suit lands in
favour of Respondent No. 2 by a deed of sale dated 16.03.1989.
4. On the aforementioned premise, the appellants filed a suit for
declaration and permanent injunction alleging that the land in question was
purchased by Hanumanthappa by sale of family gold and, thus, was a joint family
property. It was also alleged that the Will in question was a fabricated
5. Respondents in their written statements, however, averred that the Will
was a genuine document.
6. One of the issues which were framed by the learned Trial Judge related to
the execution of the Will. It reads as under:
"(4) Whether the defendant No. 1 proves that she has become full owner
of the suit property on the basis of the Will dated 25.8.88 legally executed by
the deceased Hanumanthappa?"
7. Defendant Respondent No. 1 herein did not examine herself.
She examined her husband in whose favour she had allegedly executed a Power
of Attorney. A purported attesting witness and the Sub-Registrar who registered
the document were also examined.
8. In her evidence, PW-1 (wife of Hanumanthappa) stated:
(i) The testator was suffering from throat cancer and he was not having any
(ii) The testator had not executed any Will in favour of Defendant No.
(iii) Defendant No. 1 had never stayed with her husband in their house.
(iv) Her husband had other properties apart from the suit lands but the same
were not fetching any income.
Husband of Respondent No. 1 (DW-1) and the Power of Attorney holder,
however, in his evidence, stated:
(i) Defendant No. 1 is the daughter of Huchhappa who was brother of her
father in law Hanumanthappa. When Huchhappa married for the second time,
Defendant No. 1 being a child, was looked after and brought up by Hanumanthappa.
(ii) Defendant No. 1 lived in the house of Hanumanthappa for about 12-13
years. After her marriage, she came to his house.
(iii) On 8.04.1982, Hanumanthappa agreed to sell the suit lands to him for a
sum of Rs. 52,000/- and he had paid a sum of Rs. 49,000/- by way of advance.
(iv) Hanumanthappa was suffering from cancer on the left side of the neck,
but even at that time he had good level of understanding.
(v) Hanumanthappa took treatments for about 8 months whereafter only he came
to know that he had been suffering from cancer.
(vi) After the death of Hanumanthappa, he learnt of the Will from one Bhimappa
Banglore Nagappa Yallappa Gokabi. He was told that it had been registered in
the Sub-Registrar's Office. He and his wife, thus, went to Sub-Registrar's
office and collected the Will.
(vii) As per the Will, the name of the Defendant No. 1 was mutated on the
basis of the sale deed. He cultivated the lands for one year and thereafter
sold the same to Respondent No. 2.
The said witness, however, also made out an alternative case.
According to him, on or about 24.08.1971, an agreement to purchase the suit
land was executed in the name of Hanumanthappa for a consideration of Rs.
11,000/- and a sum of Rs. 5000/- was paid by him by way of advance.
In his cross-examination, however, he stated that Hanumanthappa demanded a
sum of Rs. 58,000/- and he was ready to pay Rs. 50,000/-.
No document, however, to show that a sum of Rs. 49,000/- was paid to Hanumanthappa,
was brought on record.
9. The attesting witness Sunkappa (DW-4) sought to prove the execution of
the Will. He had allegedly come to see Hanumanthappa two weeks prior thereto.
Even at that point of time, although the appellants were present, no
discussions on the subject of execution of Will took place. Who had asked him
to go to the registration office for attestation of the Will is not known.
The Sub-Registrar who examined himself as DW-5, in his evidence, did not
state that the contents of the Will were read over and explained to Hanumanthappa.
10. The learned Trial Judge decreed the suit. The High Court, however, by
reason of the impugned judgment reversed the said judgment and decree opining
that the execution of the Will has been proved by DWs 4 and 5.
11. Mr. Shankar Divate, learned counsel appearing on behalf of the
appellants, in support of this appeal, would submit that the High Court did not
address itself on the question in regard to a large number of suspicious
circumstances which would clearly go to show that the Will is not a genuine
12. Mr. Rajesh Mahale, learned counsel appearing on behalf of the
respondents, on the other hand, would submit that the very purpose for which
the Will was executed as also the proof of execution thereof by Hanumanthappa
categorically dispels the alleged suspicious circumstances.
13. Recitals made in the Will are as under:
"You are my elder brother's daughter since your childhood I have looked
after you till your majority. After your majority you have looked after me and
my children and living with me. I trust you that you will look after me even
after my demise. I have a special love for you.
My son Bhimappa is living separately and is not helping me in any way. I
have married a girl. I have left other properties for my minor children and
they will look after it.
For the above stated lands my children do not have any right and I wish that
after me the aforesaid land should go to you hence this Will. I declare you the
complete owner of the aforesaid land after my death. During my life time I will
use the land as per my wish and enjoy the same. After my death as a owner you
can have the possession of the aforesaid land and enjoy the same for generation
After my death except you none have any right or ownership right in the
aforesaid land. After my death you are the complete owner and right holder of
the aforesaid land.
(In the fourth line I have been scored of) I have not mortgaged or executed
any agreement or I have not given possession of the suit lands to anybody. It
has not been attached by any court order or tendered as security. Hence this
will be executed with own will and wish."
14. The subject matter of the Will was a piece of agricultural land
measuring 4 acres 32 guntas. That was the only agricultural land in possession
of the testator. He was although owner of four houses, according to the
appellants, the same had not been generating any income. Admittedly, the
appellants, other than son of Hanumanthappa, were residing with him. It is,
therefore, difficult to believe that the defendant respondent No. 1 had been
looking after him or despite her marriage with DW-1, she had been residing in
It may or may not be true that his son Bhimappa had been residing
separately, but evidently he had been able to perform the marriage of only one
of his daughters and, thus, six other daughters were yet to be married.
Assuming that Respondent No. 1 was brought up by him, she was married.
Her husband was affluent. He could afford to purchase the property in
question. There was, thus, no apparent reason to execute a Will in her favour
depriving his wife and children.
15. Why a Will had to be executed and registered without the knowledge of
his wife by Hanumanthappa has not been explained. There is nothing on record to
show that the testator had any special love or affection for Respondent No. 1.
Respondent No. 1 did not examine herself.
According to her, she was not even aware of the execution of the Will. She
came to know the same at a much later stage, i.e., after lapse of 10-12 months.
How and on what basis she obtained the possession of the original Will is not
known. On what basis the Sub-Registrar handed over possession of the Will to
DW-1 has not been disclosed. Had she examined herself, she could have been
accosted with the said question. It could have been shown that Hanumanthappa
did not have any love and affection for her. Non- examination of the party to the
lis would lead to drawal of an adverse inference against her. [See Sardar Gurbakhsh
Singh v. Gurdial Singh and Another, AIR 1927 PC 230, Martand Pandharinath v. Radhabai,
AIR 1931 Bom 97, Sri Sudhir Ranjan Paul v. Sri Chhatter Singh Baid & Anr., Tulsi
and Others v. Chandrika Prasad and Others, (2006) 8 SCC 322 and Binapani Paul
v. Pratima Ghosh & Ors, [2007 (6) SCALE 398]
16. Grave suspicion in regard to the execution of the Will arises as husband
of Respondent No. 1 being her power of attorney holder spoke of an agreement
for sale. According to him, out of a total consideration of Rs.
58,000/- or Rs. 50,000/-, as the case may be, a sum of Rs. 49,000/- had
already been paid. If that be so, in ordinary course, he would have tendered
the balance amount. He could have filed a suit for specific performance. At
least a notice in that behalf could have been served. Husband of Respondent No.
1, therefore, admittedly had an eye over the property. Why only the
agricultural land possessed by Hanumanthappa would be the subject matter of the
Will, thus, in our opinion, has not been proved. Admittedly he had been
suffering from cancer. He died only two weeks after the execution of the Will.
Contention of DW-1 that they were in possession of the land in question,
cultivated the same for one year and thereafter sold the same, ex facie does
not appear to be correct as the lands had been sold by her on 16.03.1989
whereas the testator died on 11.09.1988, i.e., within a period of six months
from the date of execution of the Will.
17. The disposition made in the Will is unfair, unnatural and improbable as
no sane person, save and except for very cogent reasons, would disinherit his
minor children. DW-1 does not state as to from where and how he obtained
possession of the original Will.
According to DW-4, he went with the testator at about 4.30 p.m. on 25.08.1998 to Taluk Office. The Will is said to have been first scribed by one bond
writer. The same thereafter was typed out by another typist. It was brought
back to the same bond writer. He had allegedly read over the contents of the
Will whereafter only Hanumanthappa signed and thereafter the witnesses put
their signatures. The entire process must have taken about two hours. How the
Will could be registered on the same day, i.e., beyond the office hours is
again a matter which is beyond anybody's comprehension. DW-5 did not say that
the Will was executed and registered before him.
In Rabindra Nath Mukherjee and Another v. Panchanan Banerjee (Dead) By LRs.
And Others [(1995) 4 SCC 459], wherein reliance has been placed by Mr. Mahale,
the circumstances preceding the execution of the Will were taken into
consideration. This Court in the factual matrix obtaining therein opined:
"8. If a total view is taken of the aforesaid circumstances, which has
to be the approach, we are of the opinion that the courts below overplayed some
circumstances which they regarded as suspicious and somehow missed some
circumstances which bolstered the case of the propounders."
18. We may, however, notice that in B. Venkatamuni v. C.J.
Ayodhya Ram Singh & Ors. [2006 (11) SCALE 148], this Court upon
considering a large number of decisions opined that proof of execution of Will
shall strictly be in terms of Section 63 of the Indian Succession Act. It was
"It is, however, well settled that compliance of statutory requirements
itself is not sufficient as would appear from the discussions hereinafter
It was observed:
"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 emphasised that where there are suspicious circumstances, the onus
would be on the propounder to remove suspicion by leading appropriate evidence
"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
Each case, however, must be determined in the fact situation obtaining
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.
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
records. 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."
19. Yet again in Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao & Ors.
[2006 (14) SCALE 186], this Court held:
"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.
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 document."
Noticing B. Venkatamuni (supra), it was observed:
"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
We may, however, hasten to add that there exists a distinction where
suspicions are well founded and the cases where there are only suspicions
alone. 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
20. We are, therefore, of the considered view that the High Court was not
correct in reversing the judgment of the learned Trial Judge.
21. For the reasons aforementioned, the judgment of the High Court is set
aside and that of the Trial Court is restored. The appeals are allowed. No