SUPREME COURT: GENUINENESS OF WILL- Principles governing the adjudicatory process concerning proof of a Will. (DOWNLOAD JUDGEMENT)

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SUPREME COURT: Legal principles applicable to the making of a testamentary document like Will, its proof, and its acceptance by the Court.

The Supreme Court in the judgement dated 24.04.2020 in the case of Shivakumar & ors. Versus Sharanabasappa & ors. Civil Appeal No. 6076 OF 2009 while deciding the appeal challenging the judgement and decree dated 26.10.2007 passed by the High Court of Karnataka at Bangalore whereby, the High Court reversed the judgement and decree dated 12.09.2001 passed by the Court of Civil Judge (Senior Division), Koppal which essentially revolved around the question of genuineness of the Will in question.

    The High Court observed while examining the basic contentions of the defendants that by its very nature, the Will appeared to be a fabricated document. After taking note of the discrepancies in the document itself and other unnatural circumstances as also after analysing the evidence of the star witnesses, the High Court found that the Trial Court had erred in deciding the relevant issue in favour of the plaintiffs and, while reversing the findings of the Trial Court, held that the contested Will was not a genuine one. As the consequence, the judgement and decree passed by the Trial Court were set aside.

THE SUPREME COURT DECIDED ON THE FOLLOWING POINTS ESSENTIAL FOR DETERMINATION OF THE CASE:-

1. As to whether the High Court was right in reversing the decision of the Trial Court and in holding that the contested Will was not a genuine document?

2. As to whether the High Court ought to have considered remanding the case to the Trial Court?

WILL – PROOF AND SATISFACTION OF THE COURT

The Supreme Court has laid down the legal principles applicable to the making of a testamentary document like Will, its proof, and its acceptance by the Court.

The Supreme Court Held as follows:-

"The relevant principles governing the adjudicatory process concerning proof of a Will could be broadly summarised as follows:–

1. Ordinarily, a Will has to be proved like any other document; the test to be applied being the usual test of the satisfaction of the prudent mind. Alike the principles governing the proof of other documents, in the case of Will too, the proof with mathematical accuracy is not to be insisted upon. 

2. Since as per Section 63 of the Succession Act, a Will is required to be attested, it cannot be used as evidence until at least one attesting witness has been called for the purpose of proving its execution, if there be an attesting witness alive and capable of giving evidence.

3. The unique feature of a Will is that it speaks from the death of the testator and, therefore, the maker thereof is not available for deposing about the circumstances in which the same was executed. This introduces an element of solemnity in the decision of the question as to whether the document propounded is the last Will of the testator. The initial onus, naturally, lies on the propounder but the same can be taken to have been primarily discharged on proof of the essential facts which go into the making of a Will. 

4. The case in which the execution of the Will is surrounded by suspicious circumstances stands on a different footing. The presence of suspicious circumstances makes the onus heavier on the propounder and, therefore, in cases where the circumstances attendant upon the execution of the document give rise to suspicion, the propounder must remove all legitimate suspicions before the document can be accepted as the last Will of the testator. 

5. If a person challenging the Will alleges fabrication or alleges fraud, undue influence, coercion et cetera in regard to the execution of the Will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the Will may give rise to the doubt or as to whether the Will had indeed been executed by the testator and/or as to whether the testator was acting of his own free will. In such eventuality, it is again a part of the initial onus of the propounder to remove all reasonable doubts in the matter.

6. A circumstance is “suspicious” when it is not normal or is ‘not normally expected in a normal situation or is not expected of anormal person’. As put by this Court, the suspicious features must be ‘real, germane and valid’ and not merely the ‘fantasy of the doubting mind.’ 

7. As to whether any particular feature or a set of features qualify as “suspicious” would depend on the facts and circumstances of each case. A shaky or doubtful signature; a feeble or uncertain mind of the testator; an unfair disposition of property; an unjust exclusion of the legal heirs and particularly the dependants; an active or leading part in making of the Will by the beneficiary thereunder et cetera are some of the circumstances which may give rise to suspicion. The circumstances above noted are only illustrative and by no means exhaustive because there could be any circumstance or set of circumstances which may give rise to legitimate suspicion about the execution of the Will. On the other hand, any of the circumstance qualifying as being suspicious could be legitimately explained by the propounder. However, such suspicion or suspicions cannot be removed by mere proof of sound and disposing state of mind of the testator and his signature coupled with the proof of attestation. 

8. The test of satisfaction of the judicial conscience comes into operation when a document propounded as the Will of the testator is surrounded by suspicious circumstance/s. While applying such test, the Court would address itself to the solemn questions as to whetherthe testator had signed the Will while being aware of its contents and after understanding the nature and effect of the dispositions in the Will?

9. In the ultimate analysis, where the execution of a Will is shrouded in suspicion, it is a matter essentially of the judicial conscience of the Court and the party which sets up the Will has to offer cogent and convincing explanation of the suspicious circumstances surrounding the Will."

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