Kak Vs. Kumari Sharada Raje & Ors  INSC 698 (24 April 2008)
S.B. Sinha & V.S. Sirpurkar
REPORTABLE CIVIL APPEAL NO. 2965 OF 2008 [Arising out of SLP (Civil) No.
2791 of 2006] WITH
CIVIL APPEAL NOs. 2974,2975,2977 OF 2008 [Arising out of SLP (Civil) Nos.
13865, 5831 and 9080 of 2006] S.B. SINHA, J :
1. Leave granted.
2. These appeals are directed against a judgment and order dated 18.05.2001
passed by a learned Single Judge of the Madhya Pradesh High Court at Indore
dismissing two applications for grant of probate/ letters of administration
with the copy of the annexed Will in respect of the assets of Late Maharani
Sharmishthabai Holkar (hereinafter called as "the testatrix"), the
widow of Late Maharaja Tukoji Rao Holkar, former ruler of the erstwhile Holkar
3. Maharaja Tukoji Rao Holkar died on 21.05.1978 leaving behind four
daughters, Sharada Raje Holkar, Sita Raje Ghatge, Sumitra Raje Dalvi and
Sushila Raje Holkar. He had executed a Will on 27.11.1942 bequeathing all his
properties in favour of the testatrix. Indisputably, a letter of administration
had been granted in favour of the testatrix in respect of the Will dated
27.11.1942 made in her favour by her husband. Apart from the properties
inherited by the testatrix from her husband, she had also her own Stridhan
properties. She purported to have executed a Will on or about 23.08.1978 in
favour of Kumari Sharada Raje. She, however, allegedly executed another Will on
or about 4.11.1992, by reason whereof, she purported to have revoked the Will
executed by her on 23.08.1978 and/ or the Codicil. She appointed one K.R.P.
Singh and the appellant Anil Kak as joint executors. She also appointed Mr.
T.N. Unni, her Chartered Accountant to assist the executors in administering
and distributing the estate and executing the said Will. She categorized her
properties in two parts, viz., Part A and Part B.
Part A consisted of those properties which were bequeathed in her favour by
her husband and Part B consisted of properties other than those specified in
Part A. By reason of the said Will, the said two sets of the properties were to
be administered separately. Whereas Part A properties were bequeathed in favour
of four daughters, Part B properties were sought to be bequeathed in favour of
her four grand children.
4. Indisputably, the said Will was purported to have been attested by one
Gita Sanghi, who examined herself as PW-5 and one Baljit Bawa, who was not
examined. The Will contained a few appendices. Whereas the attesting witnesses
purported to have put their signatures in each page of the Will, they did not
put any signature on the appendices to the said Will.
5. With a view to appreciate the relationship of the parties, we may notice
the family tree, which is as under:
Appellant Anil Kak is the husband of Gangesh Kumari and son-in-law of
Sumitra Raje Dalvi. Appellant Arjun Kak is son of the appellant Anil Kak.
6. Before proceeding further, we may notice that whereas the application for
grant of Letters of Administration with a copy of the Will dated 23.08.1978
annexed, filed by Kumari Sharada Raje was marked as Suit No.
2 of 1998; Anil Kak and Kumar Rampratap filed an application for grant of
probate in their capacity as executors appointed under the said Will dated
4.11.1992, which was marked as Suit No. 3 of 1998. Both the suits were directed
to be consolidated. The parties examined their witnesses in both the suits by
adducing common evidence.
7. Whereas the Will dated 23.08.1978 was a very short document, the Will
dated 4.11.1992 was a detailed one running into six typed pages besides three
long appendices and two statements containing her investments in various shares
within and outside the country.
8. A learned Single Judge of the High Court by reason of the impugned
judgment refused to grant probate and/ or letters of administration in respect
of both the Wills.
9. Whereas Civil Appeals arising out of SLP (C) Nos. 2791, 5831 and 9080 of
2006 have been filed against that part of the judgment whereby and whereunder
grant of probate in respect of the Will dated 4.11.1992 has been rejected,
Civil Appeal arising out of SLP (C) No. 13865 of 2006 was filed in respect of
the Will dated 23.08.1978.
10. The Letters Patent Appeals were filed against the judgment of the
learned Single Judge of the High Court by both the parties which have been
dismissed by the Division Bench of the High Court as not maintainable.
11. The learned counsel appearing for both the parties, have addressed us on
the merit of the matter. We are not considering the correctness or otherwise of
the judgment of the Division Bench of the High Court holding the Letters Patent
Appeals to be not maintainable, nor it is necessary for us so to do.
12. We may also at the outset place on record that no argument has been
advanced in regard to the findings of the learned Single Judge of the High
Court refusing to grant letters of administration in respect of the Will dated
23.08.1978 of the testatrix.
13. The learned Single Judge framed the following issues:
"(1) Whether the alleged Will with its appendices dated 4.11.1992 was
duly executed by late Maharani Sharmishthabai Holkar out of her free will,
while she was in sound disposing state of mind;
(2) Whether the Will dated 4.11.1992 has been acted upon by the parties, if
so, its effect;
(3) Whether late Maharani Sharmishthabai Holkar had executed only one Will,
i.e., dated 23.8.1978 out of her free will while she was in sound disposing
state of mind;"
14. The learned Single Judge in its judgment inter alia held that the
execution of the Will dated 4.11.1992 has not been proved as:
(i) Appendices were not signed by the attesting witnesses;
(ii) The Will remained in the custody of Anil Kak for a long time;
(iii) Anil Kak did not examine himself as a witness;
(iv) As an unequal division of the properties described in Part B of the
Will effected, there existed suspicious circumstances.
(v) Anil Kak took part in preparation of the Will
15. Mr. Arun Jaitley and Mr. R.F. Nariman, learned senior counsel appearing
on behalf of the appellants, in support of the appeal, submitted:
(i) The High Court committed a serious error in passing the impugned
judgment insofar as it failed to take into consideration that the testatrix had
divided her properties equally amongst her four daughters as also her grand
children and, therefore, there did not exist any circumstance to suspect the
genuineness of the Will.
(ii) The High Court committed a serious factual error insofar as it
proceeded on the premise that Part B assets were divided only amongst three
grand children; whereas in fact fourth grand child Vijayendra Ghatge was also a
beneficiary under the Will.
(iii) Appendices were annexed with the Will for the purpose of bringing out
clarities in regard to the division of the properties.
(iv) Medical certificates were annexed to the Will go to show that the
testatrix had a sound disposing mind, and, thus, the burden of proof was on the
caveators to prove contra.
(v) The High Court committed a serious error insofar as it failed to take
into consideration the effect and purport of Sections 64, 87 and 103 of the
Indian Succession Act (for short "the Act").
16. Mr. S.B. Upadhyay, learned senior counsel appearing on behalf of the
respondents, on the other hand, urged:
(i) The Will dated 4.11.1992 was surrounded by suspicious circumstances as
one of the executors was husband of one of the grand children and son-in-law of
one of the daughters, whose family in turn was the beneficiary of the maximum
number of properties, viz., 27 out of 35 items.
(ii) In view of a clear finding of fact arrived at by the High Court that
the appellant Anil Kak had not only taken away the Will, he had also not
disclose thereabout to the near relatives for a long time, is also a pointer to
show that the execution of the Will by the testatrix was doubtful.
(iii) Appendices attached to the Will having been brought into existence at
a later date, the provisions contained in Sections 64, 87 and 103 of the Act
will have no application, in the instant case.
17. Testatrix at the time of execution of the Will was 85 years old. She was
owner of substantial properties.
18. Although all the four daughters of the testatrix were the beneficiaries
of the properties described in Part A of the Will, detailed directions as to
how the said estate is to be administered had been made therein. Even in
relation to the criteria as regards distribution of assets including the manner
in which the tax and other liabilities are to be made and how the investments
with banks and others are to be encashed, if necessary to be encashed have been
stated. More importantly, however, the shares in the companies were to be held
in the joint names of the testatrix as also the joint executors. The executors
were to hold the same in trust. Whether the said direction had been carried out
and, if so, how and in what manner is not known.
Executors had also been granted express power to recall and repossess the
jewellery, money or money's wroth possessed by any beneficiary of the Will or
legatee but ownership of which was not conferred on them for the purpose of
meeting government dues, liabilities or expenses.
19. We may at this stage notice a few stipulations made in the said Will
dated 4.11.1992, which are as under:
"B-4. The Executors will distribute the shares in companies as detailed
in Appendix 'B' together with the rights accruing thereto.
B-5. The jewellery belonging to me other than described in Part 'A' have
been divided and earmarked in different names as per Appendix 'C'.
I bequeath the items of my jewellery accordingly.
B-6. I bequeath my shares in companies and deposit with the Seattle Bank in
U.S.A. in favour of the respective nominees/ joint-holders as per Appendix. All
expenses, liabilities, taxes, fees, etc. in realizing and distributing the said
assets shall be borne proportionately by the nominees/ joint-holders."
20. The Will was purported to have been executed in presence of one Shanta
Kumari Jain, a notary. Two medical certificates; one issued by Dr.
S.K. Mukherjee and the other by Dr. Normal Sharma, were also annexed
21. It is not denied or disputed that the appellant Anil Kak took an active
part in the matter of preparation and execution of the Will.
For proving the said Will, the appellants examined one of the executors,
viz., Kumar Rampratap Singh as PW-1. He was not aware of the contents of the
Will. It was handed over to him on 10.09.1993 by Shri T.N.
Unni (PW-6), Chartered Accountant. It was in turn handed over to Anil Kak.
The said Will was not executed in his presence. He was not even aware of the
22. Shanta Kumari Jain, Notary, Geeta Sanghi, one of the attesting witnesses
and T.N. Unni examined themselves in support of the case of the appellants.
According to T.N. Unni, he had drafted only pages one to six of the Will.
The said Will was purported to have been executed at his residence at Indore.
Geeta Sanghi and Baljeet Bawa were the attesting witnesses. Baljit Bawa, as
noticed hereinbefore, was not examined. Geeta Sanghi sought to prove the
testatrix's signature as also her own signatures on the Will.
23. It is beyond any doubt or dispute that none of the attesting witnesses
had put their signatures on appendices A to C. Appendices A to C contain the
list of jewelleries in great details and which jewellery should be given to
which grand daughter. The Wealth Tax assessment for the year 1992-93 was also
annexed by way of a statement showing the market value of the shares of the
companies registered in India. Another appendix specified that ACC and TISCO
shares were to be equally divided amongst four daughters, viz., as per their
average market value on the date of latest Wealth Tax assessment.
A statement showing the market value of the shares of the companies
registered in U.K. as per the wealth tax assessment for the year 1992-93 was
also annexed. In regard to the division thereof, it is stated that "each
company's share is divided equally amongst my four daughters". Names of
the daughters had again been mentioned therein. Statement showing the value of
quoted shares as per wealth tax assessment for the year 1992-93 had also been
appended, the division whereof were to be done in the following manner:
"The shares in each company will be divided into six equal divisions.
My grand children Gangesh Kumari, Jagat Bingley and Ashish Dalvi will get one
Division each and my great grand children are bequeathed three remaining shares
as follows Children of Gangesh Kumari get one division, Children of Jagat
Bingley get one division, children of Vijayendra Ghatge get one division. In
case Ashish Dalvi is married and has children before my demise, the shares in
each company will be divided into seven equal divisions and distribution
remains the same with the additional division going to the children of Ashish
24. It also contained bequeaths of jewellery from the personal list of the
testatrix as valued on 31st March, 1992 done by M/s. J.R.M. Bhandari. It again
contained the statement showing the value of quoted shares in respect of
certain companies and the mode and manner in which division thereof should be
25. It has furthermore been admitted that those appendices did not see the
light of the day when the Will was executed by the testatrix and attested and
26. It has furthermore not been disputed that whereas Gangesh Kumari, Jagat
Bingley and Ashish Dalvi are children of Sumitra Raje Dalvi, the only other
grand child of testatrix Vijayender Ghatge is son of Sita Raje Ghatge.
From the list containing the details of the jewellery, it appears that
Vijendera Ghatge and family had been given one semi rectangle clip set with
diamond and ruby cabochon and two buttons studded with diamonds and pearls set
in gold. Umika Ghatge had also been given one square diamond ring and one
bracelet watch set with diamonds ruby and emerald.
It furthermore appears that Arjun Kak is also a beneficiary under the Will.
27. The High Court made a distinction between the documents which are mere
appendices to an otherwise complete Will and those which are part and parcel of
the Will forming its integral part.
28. From what has been noticed hereinbefore it is clearly evident that
division has not been made per stripe or per capita but by species. Each one of
the jewelleries which was to be bequeathed to each of the beneficiary
thereunder had specifically been specified. Moreover, from the valuation
report, it would appear that the respective distribution purported to have been
made in terms of the appendices would not make them of equal value or nearabout
which was the desire of the testatrix.
29. We may now notice the provisions of Sections 64, 87 and 103 of the Act
whereupon strong reliance has been placed by the learned counsel appearing for
Section 64 of the Act reads as under:
"64. Incorporation of papers by reference if a testator, in a will or
codicil duly attested, refers to any other document then actually written as
expressing any part of his intentions, such document shall be deemed to form a
part of the will or codicil in which it is referred to."
30. The rule of incorporation by reference is well-known. One document is
incorporated by reference in another when it is referred to, as if it would
form an integral part thereof. [See Sarabjit Rick Singh v. Union of India 2007
(14) SCALE 263]
31. Principle of incorporation by reference was evolved so as to avoid
unnecessary repetition of the same documents again and again in different parts
of the original document. For invoking the said principle, a document must be
in existence. It cannot be brought into existence later on. The executor of a
document must know what the other document which he intends to incorporate in
the Will contains.
This aspect of the matter has been considered by the House of Lords in
William Henry Singleton v. Thomas Tomlinson and others [1878 (3) AC 404],
wherein it was held:
"The question which arose in the Court below was whether in construing
the will and in determining what the meaning of the testator was, this schedule
could be looked at; and, my Lords, on that point it will be quite sufficient if
I refer to the two propositions which were laid down, and which indeed were not
challenged by any of the counsel at your Lordships' Bar. It was said that there
are certain cases in which, although a document is not admitted to probate,
still it may be referred to in a will in such a way as that you are entitled to
look at the document, because it is virtually incorporated in that which is
admitted to probate;
and the two propositions which were laid down as the tests of the case in
which a document under those circumstances could be looked at were these:
first, that it must be clearly identified by the description given of it in
the will; and secondly, that it must be shown to have been in existence at the
time when the will was executed."
[See also Theobald on Wills, Sixteenth Edition, pages 59-61] In Halsbury's
Laws of England, Fourth Edition, Paragraph 817 at pages 433-34, it is stated:
"Incorporation of documents: In certain cases documents referred to in
a testator's will or codicil, though not themselves duly executed, may be incorporated
in the will and included in the probate[ Re Mardon  P 109 at 112, 
2 All ER 397 at 399.] Such a document must be strictly identified with the
description contained in the will; but extrinsic evidence is admissible for the
purpose of identification [See for instance, Allen v. Maddock (1858) I I Moo
PCC 427; Re Almosnino (1859) I SW & TR 508]. The reference must be to a
document as an existing document [ Re Mordon ] and not to one which is to come
into existence at a future date[Re Sunderland (1866) LR I P & D 198; Re
Reid (1868) 38 LJP & M I;
Durham v. Northen  P 66; Re Smart  P 238. Certainty and
identification is the very essence of incorporation: Croker v. Marquess of
Hertford (1844) 4 Moo PCC 339 at 366, per Dr.
Lushington.] The onus of proving the identity of the document and its
existence at the date of the will lies upon the party seeking to establish it
[Singleton v. Tomlinson], but the court will draw inferences from the
circumstances surrounding the execution of the will.
If the will prima facie refers to the document as an existing document,
then, even though it appears from the surrounding circumstances, namely the
date of the signing of the document, that it was not in existence at the date
when the will was originally executed, the document may nevertheless be
admitted to probate, since the will is treated as speaking from the date of its
re- execution by the codicil; but if the will, treated as speaking at the date
of the codicil, still in terms refers to a future document, the document cannot
be admitted to probate even though it was in existence at the date of the
[ Re Smart  P 238]."
32. Section 87 of the Act provides that testator's intention to be
effectuated as far as possible, stating:
"87. Testator's intention to be effectuated as far as possible. The
intention of the testator shall not be set aside because it cannot take effect
to the full extent, but effect is to be given to it as far as possible."
33. In a case of this nature, however, in our opinion, Section 87 of the Act
will have no application.
34. If the appendices formed an integral part of the Will and in their
absence the Will was not complete, then the intention of the testator cannot be
effectuated. A distinction must be made between an incomplete Will and a
complete Will although intention of the testator cannot be effectuated.
The testator's intention is collected from a consideration of the whole Will
and not from a part of it. If two parts of the same Will are wholly irreconcilable,
the court of law would not be in a position to come to a finding that the Will
dated 4.11.1992 could be given effect to irrespective of the appendices. In
construing a Will, no doubt all possible contingencies are required to be taken
into consideration. Even if a part is invalid, the entire document need not be
invalidated, only if it forms a severable part. [See Bajrang Factory Ltd. and
Another v. University of Calcutta and Others (2007) 7 SCC 183] In Halsbury's
Laws of England, Fourth edition, Volume 50, page 332- 33, it is stated:
"462. Leading principle of construction: The leading principle of
construction which is applicable to all wills without qualification and
overrides every other rule of construction is that the testator's intention is
collected from a consideration of the whole will taken in connection with any
evidence properly admissible, and the meaning of the will and of every part of
it is determined according to that intention."
In P. Manavala Chetty and five Ors. v. P. Ramanujam Chetty and Anr.
[(1971)1MLJ127] , a single judge of the Madras High Court on the duty of the
court of construction to give intention to the wishes of the testator opined:
"It is the obvious duty of the Court to ascertain and give effect to
the true intentions of the testator and also avoid any construction of the will
which will defeat or frustrate or bring about a situation which is directly
contrary to the intentions of the testator.
At the same time, it must be borne in mind that there are obvious limits to this
doctrine that the Court should try to ascertain and give effect to the
intentions of the testator. The law requires a will to be in writing and it
cannot, consistently with this doctrine, permit parol evidence or evidence of
collateral circumstances to be adduced to contradict or add to or vary the
contents of such a will. No evidence, however powerful it may be, can be given
in a Court of construction in order to complete an incomplete will, or project
back a valid will, if the terms and conditions of the written will are useless
and in-effective to amount to a valid bequest, or to prove any intention or
wish of the testator not found in the will. The testator's declarations or
evidence of collateral circumstances cannot control the operation of the clear
provisions of the will. The provisions of the Indian Succession Act referred to
earlier indicate the limits of the Court's power to take note of the testator's
declarations and the surroundings circumstances, i.e., evidence of collateral
[Emphasis Supplied] As regards two inconsistent wills, with the latter being
an incomplete one, the judgment of Bagnall, Re [ W.N. 324] necessitates
one discussions. In the said case, the testatrix had made two wills, one in
1936 and the other in 1943. In the first will, she gave certain legacies and
disposed of the residue. In the second will, she provided legacies of the same
amounts and in favour of the same persons but did not dispose of the residue.
The second will was not described as a codicil to the first, nor did it
expressly revoke it, but it was manifestly incomplete, ended without any stop
and in the middle of a sentence and was signed by the testator at the bottom of
the page leaving a large gap between the last words and the signature. Probate
was granted of both wills. It was held:
(i) Though the second will was far removed in date from the first and was
not called the "last will", it was intended, at any rate so far as it
went, to take the place of the first will, and, therefore, the legacies given
by the second will were in substitution so far as they went for those in the
(ii) An examination of the two documents, did not support the conclusion
that the intention of the testatrix, when she executed the second will, was
entirely to supersede the earlier instrument, and, consequently, the first will
effectively disposed of the residue, and one legacy given in the first will but
not repeated in the second will was not revoked by the latter.
In the judgment, the case of Kidd v. North [ 16 L.J. Ch. at p. 117] was
referred to. There, an incomplete testamentary paper containing a legacy of 500
Pounds in favour of one Bridgett Bibby was admitted to probate with a will and
three codicils of prior date and the question was whether this legacy was in
substitution for a larger sum given by the first codicil. Lord Chancellor,
"When the testamentary papers of which probate is granted appear to
give several legacies to the same persons, it is often extremely difficult to
ascertain what was the real intention of the testator,; and to attain that
object as far as possible certain rules have been laid down and nice
but such rules and distinctions are applicable only to cases in which there
is no internal evidence of intention; for where there that is to be found; it
must prevail. Such is the present case; for I conceive it to be clear that the
last testamentary paper was intended to be in substitution for all the others,
and to supersede the provisions contained in them. It is indeed incomplete; but
the ecclesiastical court having granted probate of it, no question can be made
as to its being testamentary and operative as such so far as it goes. It is
reasonable to give such effect to the incomplete instrument, if it contains
within itself evidence of an intention to make an entirely new disposition;
and for that purpose to undo all that had been done before; but if the new
disposition applies only to part of the subject matter, the instrument being
upon the face of it incomplete, and not applying to other parts, it is
consistent with the principle to give effect to this intention, so far as it is
expressed, but to consider the first disposition as operative, so far as no
substituted disposition is provided in its place."
35. But, the aforementioned principle cannot be applied in the instant case
inasmuch as appendices appended to the Will clearly specify as to how and in
what manner the intention of the testatrix to divide her properties equally
amongst her daughters and/ or her grand children was to be implemented.
It is not a case where a general division was to be made leaving the manner
of application to the executors. The Will refers to appendices. Once it refers
to the appendices indicating that the distribution shall be in terms thereof,
it is difficult to comprehend as to how without the same, the Will can be said
to be a complete one so as to effectuate the intention of the testator. The
intention of the testator in other words must be found out from the entire Will.
It has to be read as a whole. An endeavour should be made to give effect to
each part of it. Only when one part cannot be given effect to, having regard to
another part, the doctrine of purposive construction as also the general
principles of construction of deed may be given effect to. In the instant case,
the document is one. It is inseparable. Whereas the principal document provides
for the broad division, the principles of division laid down therein would be
followed if the appendices are to be taken recourse to. If the principles of
equality as has been suggested by the learned counsel is to be given effect to,
it was expected that the testatrix intended to confer the same benefit or the
benefit having same value or nearabout to be conferred on each of the legatees.
In effect and substance, the purported directions contained in the
appendices which did not see the light of the day on the date of execution of
the Will, make the application of the directions of the testatrix wholly
impossible to be carried out. It is in that sense the provisions of Section 87
of the Act are applicable.
36. The High Court has assigned good and cogent reasons in support of its
judgment for not accepting the evidence of Mr. Unni. Mr. Unni admitted that the
appendices were to be brought by Anil Kak. If the same had not been brought to
her on the day the Will was executed, we wonder how the testatrix had knowledge
thereabout. It now almost stands admitted that the appendices did not form part
of the Will at the time of its purported execution. If the Will was incomplete
the question of its proving the execution does not arise. An integral part of
the document for the purpose of satisfying the tests laid down under Section
63(1)(c) of the Act and Section 68 of the Evidence Act must mean a complete
37. In "Jarman on Wills", Volume 1, Eight Edition (Sweet &
Maxwell) at Pages 145-46 on Incomplete Wills, it is stated:
"XII.- Incomplete Wills: Cases sometimes occurred under the old law,
and may possibly arise under the present, in which something more than mere
compliance with legal requirements was made necessary to the efficacy of the
will by the testator himself, he having chose to prescribe to himself a special
mode of execution; for in such case, if the testator afterwards neglects to
comply with the prescribed formalities, the inference to be drawn from these
circumstances is, that he had not fully and definitely resolved on adopting the
paper as his will [ Accordingly, under the old law, which did not require wills
of personalty to be authenticated by the testator's signature or by
attestation, the Prerogative court in several instances refused to probate of
wills, concluding with the words "In Witness", etc , but not signed:
Abbot v. Peters, 4 Hagg. 380. Questions as to the testamentary validity of
incomplete papers rarely occur in practice, now that authentication of
signature and attestation are essential to such validity.] The presumption is
slight where the instrument is duly signed and attested, and perfect in all other
respects, but must apparently be rebutted by some evidence before it can be
admitted to probate.[ Per Sir J. Nicholl in Beaty v.
Beaty. See also 1 Wms. Exors., Pt. 1., Bk. II , Ch.
But this doctrine in favour of imperfect papers obtains only where the
defect is in regard to some formal act, which the testator has prescribed as
necessary for the authentication of his will, and not where it applies to the
contents of the instrument;
for, if in its actual state the paper contains only a partial disclosure if
the testamentary scheme of the deceased, it necessarily fails of effect, even
though its completion was prevented by circumstances beyond his control [
Montefiore v. Montefiore, 23 Ad. 354; see also Griffin v. Griffin, 4 Ves. 197,
This case afforded two sufficient grounds for the rejection of the paper;
first, that it was not the whole will; and secondly, that its completion was
not prevented by inevitable circumstances].
In short, the presumption is always against a paper which bears self-evident
marks of being unfinished; and it behoves those who assert its testamentary
character distinctly to show, either that the deceased intended the paper in
its actual condition to operate as his will, or that he was prevented by
involuntary accident from completing it [Reay v. Cowcher, 1 hagg. 75, 2 ib.
249; Wood v. medley, 1 ib. 661; In b. Robinson, ib. 643; Bragge v. Dyer, 3
hag. 207; Gillow v.
Bourne, 4 Hagg. 192. And to the contrary presumption in favour of a
regularly executed and apparently completed will, vide Shadbolt v. Wagh.
570; Blewitt v. Blewitt, 4 Hagg. 410.]"
To the same effect is Alexander on "Commentaries on Wills" Vol. I,
Exceution at page 193-94 which states:
"prior to the Statute of Wills of 1 Vict., ch. 26, and the American
statutes, which require the same formalities in the execution and attestation
of wills of personalty as in devises of realty, the courts allowed imperfectly
executed testamentary writings to take effect as nuncupative dispositions of
personalty, where it appeared that the testators intended them to operate in
the form in which they were found, and that the failure to completely execute
them arose for some reason other than a purpose to abandon."
It was further stated:
"But the courts always viewed such instruments with suspicion and, in
proportion to the incompleteness of the document, demanded a higher degree of
evidenceBut the more modern day doctrine is that a nuncupative will can be made
only by spoken words or by signs and that, if the words be reduced to writing
by the testator or by someone else at his request, they lose their nuncupative
character. And it seems that under the modern statutes and rulings, even verbal
instructions for drawing up a written will, although spoken in the presence of
the proper number of witnesses, can not be admitted to probate as a nuncupative
38. Section 103 of the Act speaks of a residuary bequest but the same
evidently has no application in this case.
The execution of the Will becomes impossible both in respect of the properties
described in Part A and Part B.
39. Furthermore, the Will is surrounded by suspicious circumstances.
The execution of a Will does not only mean proving of the signatures of the
executors and the attesting witnesses. It means something more. A Will is not
an ordinary document. It although requires to be proved like any other
documents but the statutory conditions imposed by reason of Section 63(c) of
the Act and Section 68 of the Indian Evidence Act cannot be ignored.
In B. Venkatamuni v. C.J. Ayodhya Ram Singh & Ors. [2006 (11) SCALE
148], this Court held:
"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 which is 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."
Yet again in Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao &
Ors. [2006 (14) SCALE 186], this Court held:
"Section 63 of the Indian Succession Act lays down the mode and manner
of execution of an unprivileged Will. Section 68 of the Indian Evidence Act
postulates the mode and manner of execution of document which 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
[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
[See also Adivekka and Others v. Hanamavva Kom Venkatesh (Dead) By LRs. and
Another (2007) 7 SCC 91]
40. Whereas execution of any other document can be proved by proving the
writings of the document or the contents of it as also the execution thereof,
in the event there exists suspicious circumstances the party seeking to obtain
probate and/ or letters of administration with a copy of the Will annexed must
also adduce evidence to the satisfaction of the court before it can be accepted
41. As an order granting probate is a judgment in rem, the court must also
satisfy its conscience before it passes an order.
It may be true that deprivation of a due share by the natural heir by itself
may not be held to be a suspicious circumstance but it is one of the factors
which is taken into consideration by the courts before granting probate of a
Unlike other documents, even animus attestandi is a necessary ingredient for
proving the attestation.
In Benga Behera & Anr. v. Braja Kishore Nanda & Ors. [2007 (7) SCALE
228], this Court held:
"46. Existence of suspicious circumstances itself may be held to be
sufficient to arrive at a conclusion that execution of the Will has not duly
In B. Venkatamuni v. C.J. Ayodhya Ram Singh & Ors. [2006 (11) SCALE
148], it was stated:
"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." Yet again in Savithri & Ors. v. Karthyayani Amma & Ors. [JT 2007
(12) SC 248], this Court held:
"18. We do not find in the fact situation obtaining herein that any
such suspicious circumstance was existing. We are not unmindful of the fact
that the court must satisfy its conscience before its genuineness is accepted.
But what is necessary therefor, is a rational approach.
19. Deprivation of a due share by the natural heirs itself is not a factor
which would lead to the conclusion that there exist suspicious circumstances.
For the said purpose, as noticed hereinbefore, the background facts should also
be taken into consideration. The son was not meeting his father. He had not
been attending to him. He was not even meeting the expenses for his treatment
from 1959, when he lost his job till his death in 1978. The testator was living
with his sister and her children. If in that situation, if he executed a Will
in their favour, no exception thereto can be taken. Even then, something was
left for the appellant."
42. The court is, thus, required to adopt a rational approach in a situation
of this nature. Once the court is required to satisfy its conscience, existence
of suspicious circumstances play a prominent role. The Will, as noticed
hereinbefore, is in two parts. Whereas the first part deals with the property
belonging to the husband of the testatrix, the second part deals with the
properties which purportedly belongs to her. Distribution of assets, however,
was not specifically stated in the Will. They were to be made as per the
appendices annexed thereto. The appendices which were required to be read as a
part of the main Will so as to effectuate the intention of the testatrix have
not been proved. The Will by its own cannot be given effect to. The Will must
be read along with the appendices. No doubt in construing a Will arm chair rule
is to be adopted. The Will was, therefore, not complete. It is not correct to
contend that the appendices were very much in existence at the time when the
Will was executed. Existence of a document must mean the actual existence. We are, therefore, of the opinion that no case has been made out for
interference with the impugned judgment.
43. For the reasons aforementioned, the appeals are dismissed with costs. Counsel's fee assessed at Rs. 50,000/-.
Pages: 1 2 3