Some Landmark Supreme Court Decisions
1. Execution of a Valid Will
Daulat Ram & Ors vs Sodha & Ors on 16 November, 2004.
In order to assess as to whether the Will has been validly executed and is a genuine
document, the propounder has to show that the Will was signed by the testator and
that he had put his signatures to the testament of his own free will; that he was at the
relevant time in a sound disposing state of mind and understood the nature and effect
of the dispositions and that the testator had signed it in the presence of two witnesses.
who attested it in his presence and in the presence of each other. Once these elements
are established, the onus which rests on the propounder is discharged.
2. Proof of a Will:
Madhukar D. Shende vs Tarabai Aba Shedage on 9 January, 2002.
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 the Indian Succession Act, 1925 and Section 68 of the
Indian Evidence Act, 1872.
3. Suspicious Circumstances surrounding the Will
Moturu Nalini Kanth Vs Gainedi Kaliprasad (Dead, through LRs.) (Supreme Court).
The Supreme Court grappled with a complex dispute. At its core was an appeal by the ‘adopted son’ against the High Court’s ruling, which had deemed the registered will and adoption deed as lacking authenticity. In its deliberations, the Supreme Court delved into legal intricacies, particularly drawing attention to Section 63 of the Indian Succession Act and Sections 68 and 69 of the Evidence Act, 1872.
4. Adoption
Ugre Gowda vs Nagegowda (Dead) By Lrs. And Ors on 27 July, 2004.
An adoption of a son does not deprive the adoptive mother of the power to dispose of her separate property by transfer or by will. Transfer of title in favour of the plaintiff had no relevance with the adoption because mere adoption did not deprive of her right to dispose of her own disposable property.
5 Role of Witness
Bench: Doraiswamy Raju, Shivaraj V. Patil.
Where one attesting witness examined to prove the will under Section 68 of the
Evidence Act fails to prove the due execution of the will then the other available
attesting witness has to be called to supplement his evidence to make it complete in all respects.
6. Delay in registration of the WILL
Sridevi & Ors vs Jayaraja Shetty & Ors on 28 January, 2005.
Another suspicious circumstance which was highlighted at great length by the
learned counsel for the appellant is that the Respondent Nos. 8-13 had failed to
disclose the will for a period of 4 years in any of the earlier proceedings before the
revenue authorities and the forest authorities. That the will was got registered after
a lapse of 4 years and did not see the light of the day till the initiation of proceedings
in the present suit. We do not find any substance in this submission as well.
Respondent No. 13 in his testimony has stated that the contents of the will were
disclosed in the year 1976 at the time of final obeisance ceremony of the testator.
7. NOMINEE
Shri Vishin N. Khanchandani & Anr vs Vidya Lachmandas Khanchandani & … on 16 August, 2000.
A nominee could not be treated as being equivalent to an heir or legatee. The
amount of interest under the policy could, therefore, be claimed by the heirs of the
assured in accordance with law of succession governing them.
Note: The position has changed after 2015 as under introduced Insurance Laws
(Amendment) Act, 2015.
8. Probate: Not decisive about title of property
Kanwarjit Singh Dhillon vs Hardyal Singh Dhillon And Ors on 12 October, 2007.
What this Court held in that decision is that once a probate is granted by a
competent court, it would become conclusive of the validity of the Will itself, but,
that cannot be decisive whether the probate court would also decide the title of the
testator in the suit properties which, in our view, can only be decided by the civil
court on evidence.
9 Suspicious circumstances
9.Mahesh Kumar (D) By Lrs vs Vinod Kumar & Ors on 13 March, 2012
Cases in which the execution of the will is surrounded by suspicious circumstances
stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust
disposition of property, the propounder himself taking a leading part in the making
of the will under which he receives a substantial benefit and such other
circumstances raise suspicion about the execution of the will. That suspicion cannot
be removed by the mere assertion of the propounder that the will bears the signature
of the testator or that the testator was in a sound and disposing state of mind and
memory at the time when the will was made.
9 Legal heirs deprived of share in Property
Anil Kak vs Kumari Sharada Raje & Ors on 24 April, 2008.
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 Will.
Unlike other documents, even animus attestandi [ intent to make a Will] is a
necessary ingredient for proving the attestation.
10. Execution of valid Will
Adivekka & Ors vs Hanamavva Kom Venkatesh (D) By … on 9 May, 2007.
Section 68 of the Indian Evidence Act 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.
11. Probate or Letter of Administration
Delhi Development Authority vs Mrs. Vijaya C. Gurshaney & Anr on 26 August, 2003.
It is settled law that the grant of a Probate or Letters of Administration does not
confer title to property. They merely enable administration of the estate of the
deceased.
Thus, it is always open to a person to dispute title even though probate or Letters of
Administration have been granted.
12. Genuineness of unregistered will
Meenakshiammal (Dead) Through … vs Chandrasekaran & Another on 3 November, 2004.
Before signing, Siva (TESTATOR)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. 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.
13. SUSPICIOUS CIRCUMSTANCES
Bharpur Singh & Ors vs Shamsher Singh on 12 December, 2008.
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.
14. SIGNING BY TESTATOR IN PRESENCE OF WITNESS
Gopal Swaroop vs Krishna Murari Mangal & Ors on 25 November, 2010.
Proof of execution of document required by law to be attested – If a document is
required by law to be attested, it shall not be used as evidence until one attesting
witness at least has been called for the purpose of proving its execution, if there be
an attesting witness alive, and subject to the process of the Court and capable of
giving evidence:
Provided that it shall not be necessary to call an attesting witness in proof of the
execution of any document, not being a will, which has been registered in accordance
with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its
execution by the person by whom it purports to have been executed is specially
denied.