The Supreme Court of India recently delivered a significant and exhaustive judgment

on the debatable issues surrounding the execution of a Will and grant of probate in
the matters of testamentary succession under the Indian Succession Act, 1925 9
(Kavita Kanwar v. Mrs Pamela Mehta & Others).
The judgment deals with the characteristic and most used argument of “suspicious
circumstances” to invalidate a Will, or in simple words, to assert that the Will is
unworthy of believing.

A circumstance is considered “suspicious” when it is not normal or is ‘not normally

expected in a normal situation’ or is ‘not expected of a normal person’.
Illustrative instances of suspicious circumstances could be a shaky or doubtful
signature of the testator; 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.
However, such suspicion should be real and valid, and not merely a fantasy of a
doubting mind.
Before coming to the analysis of the judgment, it would be useful to note that the
law of testamentary succession is codified under the Indian Succession Act. Chapter
VI of Part VI of the Act (Sections 74 to 111) deals with the construction of Wills,
while Part IX of the Act deals with the grant of Probate/Letter of Administration.
As a matter of practice for proving a Will, a petition is filed before the
competent court for the grant of probate/letters of administration. After the
petitioner discharges the initial burden of proving the Will by showing compliance
of the provisions of the Act and calling the attesting witness(es), the court calls
upon the contesting party to state its objections to the validity of the Will. At
this stage, the contention of suspicious circumstances surrounding the execution of
the Will is raised by the respondent to say that the disposition of the properties
as stated in the Will is not the genuine wish of the testator. This argument of
suspicious circumstances comes in several hues depending upon the facts and
circumstances of the matter.
Facts of the case
The appellant (a major beneficiary) was a losing party, both in the trial court and
the High Court, whereby the Will of the mother (testator), propounded by the
appellant herself as the executor, was disbelieved. Under this two-page Will, the
appellant was the major beneficiary of the estate of the testator to the exclusion
of other legal heirs, namely one widowed sister and a brother (the respondents).
Interestingly, the property in question came to the mother through the Will of the
father, who was the original owner of the property. During his lifetime, he had
already gifted a portion of the original property to the appellant. It was for the
other remaining portions of the same property that the disputed Will was
formulated.
Another important aspect of the matter was that the Will was partly holographic
(handwritten by the testator) in a way that the first and the last portions of the
Will were written by hand by the testator and the rest of the portions, which
actually dealt with the devolvement of the property, were typed and printed.
Arguments of the parties
It was the case of both respondents that the Will was shrouded with suspicious
circumstances as per the evidence led by them, and therefore, must be disbelieved.
It was argued that in the absence of any dispute with the mother of the
respondents, there was no reason for the mother to exclude her children and
grandchildren. Therefore, the Will is unnatural and does not express the intention
of the testator. Further, the Will so propounded has an additional third page which
has not been filed by the appellant, and therefore, the Will is incomplete.
The appellant, on the contrary, argued that she had discharged the burden of
proving the execution of the Will by the testimony of two attesting witnesses.
Secondly, it was for the testator to decide about the bequeathing of properties.
Evidence before Court
On appreciation of the evidence by the trial court and the High Court, the
following facts emerged out of evidence led by the parties. First, the relations
between the testator mother and the respondents were cordial. It was shown that the
mother was happy with the respondents, one of which had taken good care of her.
Second, the mother could not complete her education beyond Class X and was not
computer literate. Third, the Will had certain sections containing technical and
legal jargon that could not be understood by a layperson.
Fourth, the appellant could not explain why only certain portions were handwritten,
while certain parts were typed out. Fifth, it was found that the testimony of the
appellant stating that she had not participated in the execution of the Will was
wrong and contradictory. It emerged that the appellant, contrary to her evidence
and pleadings, had in fact played a vital role in the execution of the Will.
Lastly, the Court found no credibility in the testimony of the attesting witnesses,
as the daughter of one witness had borrowed money from the appellant and the other
was utterly unknown to the testator.
Curiously, the Court also found that though the appellant had rejected the presence
of third page of the Will in the trial court, before the appeal in the High Court,
she did a volte-face and in fact relied on the third page to dispel the evidence of
suspicious circumstances.
Judgment
The Apex Court, after meticulously analysing the evidence led by the parties and
the law on the subject, dismissed the appeal as it found that “thick clouds of
suspicious circumstances are hovering over the Will in question”.
To arrive at this conclusion, the Court first culled out the legal propositions
from several other landmark judgments. It first relied upon H Venkatachala Iyengar
v. BN Thimmajamma, wherein the Court laid down a few tests to determine the
genuineness of the Will. These included: “Has the testator signed the Will? Did he
understand the nature and effect of the dispositions in the Will? Did he put his
signature to the Will knowing what it contained”?
The Court said that broadly, it is the decision of these questions which will
determine the question of proof of Wills. Though the propounder is not expected to
prove the Will by mathematical certainty and only has to show the execution in
terms of the essential statutory requirements under the Act, in the presence of
suspicious circumstances, the Court would naturally expect that all legitimate
suspicion should be completely removed before the document is accepted as the last
Will of the testator.
The Court then relied on Jaswant Kaur v. Amrit Kaur & Others, which held that in
cases where the Will is shrouded in suspicion, the true question that arises for
consideration is whether the evidence led by the propounder of the Will is such as
to satisfy the conscience of the Court that the Will was duly executed by the
testator.
In another judgment titled Shivakumar & Others. v. Sharanabasppa, the Court held
that if a person challenging the Will alleges fabrication or fraud, undue
influence, coercion etc. 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 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.
Coming to the facts of the present matter, on the issue of non-filing of the
written statement by one of the respondents, the Supreme Court held that the
probate court is a court of conscience and by the very nature and consequence of
the proceedings, filing or non-filing of the written statement or objections by any
party pales into insignificance and is of no effect. It was held,
"The probate proceeding is not merely inter-partes proceeding but leads to judgment
in rem and, therefore, even when no one contests, it does not ipso facto lead to
grant of probate."
After testing the evidence on the threshold of the legal principles stated above,
the Supreme Court dismissed the appeal particularly for the reason that the
appellant tried to mislead the courts by showing her innocence about the execution
of the Will by the testator, even though she played an active part in the execution
of the Will and arranging the witnesses.
The Court further rejected the argument of giving greater presumption of sanctity
to a holographic Will, by observing that the Will in question does not answer the
description of a holographic Will directly because, except for the opening and
concluding paras, the entire Will is in electronic print. It was observed that even
the handwritten portion is not in the diction of the testator and contains typical
legal words like “testament, codicil, give, devise and bequeath” which cannot be
understood by the layperson.
The Court extensively examined the curious flip-flop of the alleged third page of
the Will by the appellant to conclude that if the proof of Will is marred with such
confounding factors, the same can never get the approval of the Court. It
ultimately held that in the totality of circumstances, there appears to be no
reason for the testator to bestow all property to appellant and to exclude other
legal heirs. Therefore, it cannot be said that the testatrix executed and signed
the alleged Will after having understood the meaning, effect and purport thereof.
Conclusion
An impression that may arise in the mind of readers is that if so many factors can
be put forward before the courts against the grant of probate of a Will, is there
any real possibility of a Will standing the scrutiny of the Court? The answer to
that query would be in the negative, as it is well established that any stand-alone
reason individually does not operate against the validity of the Will and may not
be decisive, unless after taking all relevant factors into consideration, the Court
finds the same to be not representing the real wish of the testator.
The Court in such cases applies the celebrated rule, called the “Arm Chair rule”,
of interpretation of a Will which says "You may place yourself, to speak, in (the
testator's) armchair, and consider the circumstances, by which he was surrounded
when he made his Will, to assist you in arriving at his intention."

a) Harimati Debi and Another v Anath Nath Roy Choudhury, wherein the Calcutta High
Court had held that burden of proving an unregistered Will sought to be propounded
after a lapse of more than 20 years is on the propounders by removing all manner of
doubt and suspicion which are likely to arise, by convincing evidence. In the above
decision, the Court held as follows:
"Will -- Burden of proof -- Nature of evidence required -- Burden of proving
unregistered Will sought to be propounded after a lapse of more than 20 years is on
propounders who are required to remove all manner of doubt and suspicion which are
likely to arise by convincing evidence.
The burden of proving a Will in solemn form is cast upon the propounders. Where an
unregistered Will is sought to be propounded after the lapse of more than 20 years
it is required that all manner of doubt and suspicion which are likely to arise
should be removed by them. But where the evidence adduced is of unsatisfactory
nature and the discrepancies therein excite the suspicion of a Probate Court, no
probate can be granted unless such suspicion is removed -- Vellaswamy Servai v
Sivaram Servai, Ram Gopal v Aipna Kunwar and Baikuntha Nath v Prasannamoyee Debya".
(b) Sanjiva @ Sanjiva Bkandary v Vasantha and Others, in the said decision the
Division Bench of this Court held as follows:
"(B) Will -- Suspicious circumstances -- Cumulative effect of suspicious
circumstances surrounding execution of Will to be considered -- Test applicable.
HELD: The cumulative effect of the suspicious circumstances surrounding the
execution of the Will such as the active participation, unnatural disposition,
suppression of the Will for 20 years, the conduct of the propounder of the Will
must be taken and then apply the test whether in the circumstances of the case the
judicial conscience of the Court is satisfied that the propounder has dispelled all
clouds of suspicion with which the execution of the Will is shrouded with".
(c) Kalyan Singh v Smt. Chhoti and Others , the decision is on the point of
genuineness and proof of a Will and further on the point of failure of plaintiff to
remove suspicious circumstance by placing satisfactory evidence on record. The
Supreme Court in the said decision held as follows:
"(B) Succession Act (1925), Section 61 -- Will --Genuineness -- Proof -- Failure of
plaintiff to remove suspicious circumstances by placing satisfactory material on
record -- Will could be said to be not genuine.
A Will is one of the most solemn documents known to law. The executant of the Will
cannot be called to deny the execution or to explain the circumstances in which it
was executed. It is, therefore, essential that trustworthy and unimpeachable
evidence should be produced before the Court to establish genuineness and
authenticity of the Will. It must be stated that the factum of execution and
validity of the Will cannot be determined merely by considering the evidence
produced by the propounder. In order to judge the credibility of witnesses and
disengage the truth from falsehood the Court is not confined only to their
testimony and demeanour. It would be open to the Court to consider circumstances
brought out in the evidence or which from the nature and contents of the documents
itself. It would be also open to the Court to look into surrounding circumstances
as well as inherent improbabilities of the case to reach a proper conclusion on the
nature of the evidence adduced by the party.
The Will in the instant case constituting the plaintiff as a sole legatee with no
right whatever to the testator's wife could be said to be unnatural. It casts a
serious doubt on genuineness of the Will. The Will has not been produced for very
many years before the Court or public authorities even though there were occasions
to produce it for asserting plaintiff's title to the property. The plaintiff was
required to remove these suspicious circumstances by placing satisfactory material
on record. He has failed to discharge his duty. Therefore, the conclusion that the
Will was not genuine was proper".
(d) Ram Piari v Bhagwant and Others, is a case of disinheritance amongst heirs of
equal decree, when no reason for exclusion of the daughter disclosed by the
testator -- father, the Supreme Court held as hereunder:
"(B) Constitution of India, Article 136 -- Will -- Proof --Finding of fact --
Interference -- Disinheritance amongst heirs of equal degree -- No reason for
exclusion of daughter disclosed by testator, a father -- Finding of fact as to
genuineness of Will by Courts can be interfered with under Article 136.
Succession Act (1925), Section 61.
R.S.A. No. 974 of 1985 and Civ. Misc. No. 1034-C of 1985, DD: 11-8-1986 (P & H),
reversed.
Where the testator, a father executed a Will bequeathing all his property in favour
of sons of one daughter who had no sore or sour relations with testator and it was
found that even though the testator could sign yet he put his thumb mark on Will
and the professional scribe fetched by beneficiary's father admitted that when he
reached beneficiary's residence where the Will was executed he found testator
covered with quilt with whom he did not talk nor enquire about his health, the
finding as to genuineness of Will recorded by the Court by erroneous application of
principle of law could be interefered with under Article 136. Anxiety in village to
protect landed property or agricultural holdings from going out of family is well
known. Even though it cannot be said to be hard and fast rule yet when
disinheritance is amongst heirs of equal degree and no reason for exclusion is
disclosed, then the standard of scrutiny is not the same and if the Courts failed
to be alive to it then their orders cannot be said to be beyond review".
23. In citing the above decisions, Sri Subba Rao vehemently argued that all the
above decisions are applicable to the instant case in hand, more so, in the
circumstances that the respondent did not discharge his burden to remove the
suspicious circumstances under which the Will at Ex. D-2 came into existence.
24. Sri Subba Rao further argued that in the instant case in hand, all that the
respondent did was to examine himself and two other attestors besides examining the
daughter of the scribe in view of the fact that the scribe is stated to have died
about 10 or 15 years subsequent to the date of execution of the Will and according
to Sri Subba Rao, the learned Civil Judge did not look into the suspicious
circumstance and therefore misled himself to disbelieve the case of the appellants
and further to believe the case of the respondent. Sri Subba Rao further argued
that had the learned Civil Judge applied the 'Armed Chair' Rule, whereby he meant
that the learned Civil Judge had to put himself in the place of the testator, he
would not have come to the conclusion that Ex. D-2-Will was executed by the
testator in the normal course of event. Sri Subba Rao further prayed that this
Court as well apply the said 'Arm Chair' Rule and decide the main issue as to the
truthfulness or otherwise of the execution of the Will-Ex. D-2 by the original
testator-K. Ramaswamaiah.
25. For the aforesaid reasons, Sri Subba Rao prayed that the impugned judgment and
decree passed by the learned Civil Judge be set aside and the suit filed by the
original plaintiff, the mother of appellants 1 and 2 and husband of the appellant 3
be decreed as prayed for.
26. As against the above argument of the learned Counsel for the appellants, Sri
Padubidri Raghavendra Rao while supporting the impugned Judgment and Decree passed
by the learned Civil Judge submitted at the outset that there is no merit in the
instant appeal filed by the sons and the husband of the original plaintiff. It is
the argument of Sri Rao that this Court at the threshhold should remember that the
suit Will-Ex. D-2 came to be executed by the testator on 20-12-1964 and that at
that relevant point of time, the respondent herein was just a lad being aged hardly
about 19 years then and that the entire management of the properties of the
original testator was in the hands of the appellant 3 the husband of the original
plaintiff and that, management of the family business continued to be in his hand
even till 1971, few days earlier to the filing of the suit by his wife. Sri
Raghavendra Rao pointedly drew my attention that the respondent was ill-educated
and that he was not at all worldly wise and it is for that reason, not only during
the life time of Ramaswamaiah, the original testator, but also subsequent to his
death, the appellant 3 continued to manage the affairs of the family and because of
that situation, the respondent was not at all in a position to raise any issue much
less, an issue to give effect to Ex. D-2-Will, no matter that appellant 3 and
further the original plaintiff, his wife were very well aware with regard to the
execution of Ex. D-2-Will by the original testator giving bigger slice in the
properties to the respondent.
27. The learned Counsel for the respondent further argued that all that has to be
looked into by this Court is whether the suit Will-Ex. D-2 is the genuine Will as
contended by the respondent or the same was got up or forged by the respondent as
contended by the original plaintiff and subsequent to her death by the appellants
herein. It is in the argument of Sri Rao that Ex. D-2-Will came into existence in a
very natural way by the testator-K. Ramaswamaiah and that the propounder of the
Will, the respondent herein had in fact successfully proved that Ex. D-2-Will was
very naturally executed and there was no foul play in it. While taking me through
the evidence adduced by the respondent before the learned Civil Judge, Sri
Raghavendra Rao argued that the respondent had examined two of the attestors of the
Will, one Neelam Lakshman Rao-D.W. 2 and another by name Rangappa-D.W. 4, when the
other attestor by name K. Annaiah and the scribe by name Ramanujam Iyengar were no
longer available in view of the fact that they are dead and gone. He further argued
that, to identify the handwriting of the original scribe, the respondent had also
examined his daughter hy name A. Saroja-D.W. 3. He further argued that there was
not much discrepancy in the evidence of these witnesses to doubt that Ex. D-2-Will
was not a genuine Will. Yet another point Sri Raghavendra Rao argued is that, when
the original plaintiff and the appellants herein had set up the theory that suit
Will-Ex. D-2 was not genuine and got-up one, had not even challenged the signature
of the testator. He further pointed out that it is nobody's case that the signature
of the testator-K. Ramaswamaiah as at Ex. D-2a in Ex. D-2 was forged. Sri
Raghavendra Rao pointed out that appellant 3 examined as P.W. 3 had in fact deposed
before the learned Civil Judge that at the time of execution of Ex. D-2-Will, Sri
Rao argued that there was total hollowness in the argument of the other side to say
that the suit Will-Ex. D-2 was forged and got up one. Sri Raghavendra Rao next
submitted that neither the original plaintiff nor her L.Rs. the appellants herein
have in fact not seriously challenged Ex. D-2-Will, despite the appellants herein
have filed rejoinder dated 16-11-1990, wherein in para 1 thereof, they have averred
that deceased Ramaswamaiah had not at all executed any Will as alleged by the
respondent and that the alleged Will was forged, concocted and created by him
subsequent to filing of the suit and that in none of the earlier suits filed by the
respondent in the year 1970 or for that matter, earlier to the same, respondent had
not adverted to the Will in question and that the Will was not at all acted upon by
the parties as contended by the respondent. Therefore, Sri Raghavendra Rao argued
that the suit Will-Ex. D-2 was executed by the original testator in the normal
course of events while he was hale and healthy and in sound state of mind to
execute Ex. D-2-Will. He further argued that when Ex. D-2-Will was proved to be
executed in a very natural way by the propounder-respondent before the learned
Civil Judge, the point that the properties were bequeathed in a totally
disproportionate way by the original testator is of no relevance. While taking me
through the disputed Will-Ex. D-2, Sri Raghavendra Rao submitted that from a
cursory look of the same it gives an impression that the same was executed more
than 30 years ago when the propounder was very young being aged about 19 years and
there is no artificial presentation or suspicious circumstances to doubt the
execution thereof. While taking me through the evidence of D.W. 2-Neelam Lakshman
Rao, one of the attestors, Sri Rao submitted that it is in the evidence of this
witness that the suit Will-Ex. D-2 was written by the scribe by name Ramanuja
Iyengar at the instance of and on narration by the original testator-Ramaswamaiah
and that after the same was written, the testator Ramaswamaiah signed the same and
thereafter, D.W. 2 and yet another attestor K. Annaiah (since dead) signed the same
with the very same pen and that D.W. 4-Margal Rangappa had affixed his L.T.M. and
in identification thereof, the scribe Ramanuja Iyengar had also written in Kannada
therein that the L.T.M. was that of Margal Rangappa and further that in the end,
the scribe had also endorsed therein that 'biklam' was by him and in witness
thereof he had also affixed his signature in Kannada as Ramanuja Iyengar. Sri
Raghavendra Rao further submitted that the evidence of D.W. 2-Neelam Lakshman Rao
is also corroborated by the evidence of yet another attestor Margal Rangappa and
that the writing by the scribe Ramanuja Iyengar is very well identified by D.W. 3-
Sarojamma, his daughter. To appreciate that Ex. D-2-Will was written in a very
natural way, Sri Rao further pointed out that the signature of the testator as at
Ex. D-2-a, the signature of the attestor as at Ex. D-2-b and D. 2-c are all in one
and the same ink when the L.T.M. of D.W. 4, the other attestor by name Margal
Rangappa is in the pad ink and the entire written part of Ex. D-2-Will is in black
ink and is in one and the same hand-writing of the 'biklamdar' Ramanuja Iyengar
very well identified by his daughter Saroja-D.W. 3.
28. The further argument of Sri Raghavendra Rao is that the suit Will-Ex. D-2 is in
consonance with Section 63 of the Indian Succession Act and that under Section 47
of the Registration Act, the Will since not required to be compulsorily
registrable, there is nothing for the appellants to find fault with the same. He
further submitted in this context that the respondent had proved Ex. D-2-Will as
required under Section 68 of the Evidence Act. In view of that circumstance, he
further argued that the suspicious circumstances pointed out by the learned Counsel
for the appellants therefore cannot sustain.
29. In support of the argument of Sri Rao, he had cited before me the following
decisions:
(a) H. Venkatachala Iyengar v B.N. Thimmajamma and Others; 30. Out of the above
decisions cited, I feel that the following decisions are relevant for the purpose
of this case.
(a) In H. Venkatachala Iyengar's case, on the point of proof of Will and onus of
proof in paras 18 to 22 the Hon'ble Supreme Court held as hereunder:
"(18) What is the true legal position in the matter of proof of Wills? It is well
known that the proof of Wills presents a recurring topic for decision in Courts and
there are a large number of judicial pronouncements on the subject. The party
propounding a Will or otherwise making a claim under a Will is no doubt seeking to
prove a document and, in deciding how it is to be proved, we must inevitably refer
to the statutory provisions which govern the proof of documents. Sections 67 and
68, Evidence Act are relevant for this purpose. Under Section 67 if a document is
alleged to be signed by any person, the signature of the said person must be proved
to be in his handwriting, and for proving such a handwriting under Sections 45 and
47 of the Act the opinions of experts and of persons acquainted with the
handwriting of the person concerned are made relevant. Section 68 deals with the
proof of the execution of the document required by law to be attested; and it
provides that such a document shall not be used as evidence until one attesting
witness at least has been called for the purpose of proving its execution. These
provisions prescribe the requirements and the nature of proof which must be
satisfied by the party who relies on a document in a Court of law. Similarly,
Sections 59 and 63 of the Indian Succession Act are also relevant. Section 59
provides that every person of sound mind, not being a minor, may dispose of his
property by Will and the three illustrations to this section indicate what is meant
by the expression "a person of sound mind" in the context. Section 63 requires that
the testator shall sign or affix his mark to the Will or it shall be signed by some
other person in his presence and by his direction and that the signature or mark
shall be so made that it shall appear that it was intended thereby to give effect
to the writing as a Will. This Section also requires that the Will shall be
attested by two or more witnesses as prescribed. Thus, the question as to whether
the Will set up by the propounder is proved to be the last Will of the testator has
to be decided in the light of these provisions. Has the testator signed the Will?
Did he understand the nature and effect of the dispositions in the Will? Did he put
his signature to the Will knowing what it contained? Stated broadly it is the
decision of these questions which determines the nature of the finding on the
question of the proof of Wills. It would prima facie be true to say that the Will
has to be proved like any other document except as to the special requirements of
attestation described by Section 63 of the Indian Succession Act. As in the case of
proof of other documents so in the case of proof of Wills it would be idle to
expect proof with mathematical certainty. The test to be applied would be the usual
test of the satisfaction of the prudent mind in such matters.
(19) However, there is one important feature which distinguishes Wills from other
documents. Unlike other documents, the Will speaks from the date of the testator,
and so, when it is propounded or produced before a Court, the testator who has
already departed from the world cannot say whether it is his Will or not; and this
aspect naturally introduces an element of solemnity in the decision of the question
as to whether the document propounded is proved to be the last Will and testament
of the departed testator. Even so, in dealing with the proof of Wills the Court
will start on the same enquiry as in the case of the proof of documents. The
propounder would be called upon to show by satisfactory evidence that the Will was
signed by the testator, that the testator at the relevant time was in a sound and
disposing state of mind, that he understood the nature and effect of the
dispositions and put his signature to the document of his own free Will. Ordinarily
when the evidence adduce in support of the Will is disinterested, satisfactory and
sufficient to prove the sound and disposing state of the testator's mind and his
signature as required by law, Courts would be justified in making a finding in
favour of the propounder. In other words, the onus on the propounder can be taken
to be discharged on proof of the essential facts just indicated.
(20) There may, however, be cases in which the execution of the Will may be
surrounded by suspicious circumstances. The alleged signature of the testator may
be very shaky and doubtful and evidence in support of the propoinder's case that
the signature in question is the signature of the testator may not remove the doubt
created by the appearance of the signature; the condition of the testator's mind
may appear to be very feeble and debilitated; and evidence adduced may not succeed
in removing the legitimate doubt as to the mental capacity of the testator; the
dispositions made in the Will may appear to be unnatural, improbable or unfair in
the light of relevant circumstances; or, the Will may otherwise indicate that the
said dispositions may not be the result of the testator's free Will and mind. In
such cases, the Court would naturally expect that all legitimate suspicions should
be completely removed before the document is accepted as the last Will of the
testator. The presence of such suspicious circumstances naturally tends to make the
initial onus very heavy; and, unless it is satisfactorily discharged, Courts would
be reluctant to treat the document as the last Will of the testator. It is true
that, if a caveat is filed alleging the exercise of undue influence, fraud or
coercion in respect of the execution of the Will propounded, such pleas may have to
be proved by the caveators; but, even without such pleas circumstances may raise a
doubt as to whether the testator was acting of his own free Will in executing the
Will, and in such circumstances, it would be a part of the initial onus to remove
any such legitimate doubts in the matter.
(21) Apart from the suspicious circumstances to which we have just referred in some
cases the Wills propounded disclose another infirmity. Propounders themselves take
a prominent part in the execution of the Wills which confer on them substantial
benefits. If it is shown that the propounder has taken a prominent part in the
execution of the Will and has received substantial benefit under it, that itself is
generally treated as a suspicious circumstance attending the execution of the Will
and the propounder is required to remove the said suspicion by clear and
satisfactory evidence. It is in connection with Wills that present such suspicious
circumstances that decisions of English Courts often mention the test of the
satisfaction of judicial conscience. It may be that the reference to judicial
conscience in this connection is a heritage from similar observations made by
Ecclesiastical Courts in England when they exercised jurisdiction with reference to
Wills; but any objection to the use of the word 'conscience' in this context would
in our opinion be purely technical and academic, if not pedantic. The test merely
emphasizes that, in determining the question as to whether an instrument produced
before the Court is the last Will of the testator, the Court is deciding a solemn
question and it must be fully satisfied that it had been validly executed by the
testator who is no longer alive.
(22) It is obvious that for deciding material questions of fact which arise in
application for probate or in actions on Wills, no hard and fast or inflexible
rules can be laid down for the appreciation of the evidence. It must however, be
stated generally that a propounder of the Will has to prove the due and valid
execution of the Will and that if there are any suspicious circumstances
surrounding the execution of the Will the propounder must remove the said
suspicions from the mind of the Court by cogent and satisfactory evidence. It is
hardly necessary to add that the result of the application of these two general and
broad principles would always depend upon the facts and circumstances of each case
and on the nature and quality of the evidence adduced by the parties. It is quite
true that, as observed by Lord Du Pareqin in Marines v Hinkson, "where a Will is
charged with suspicion, the rules enjoin a reasonable scepticism, not an obdurate
persistence for disbelief. They do not demand from the Judge, even in circumstances
of grave suspicion, a resolute and impenetrable incredulity. He is never required
to close his mind to the truth". It would sound platitudinous to say so, but it is
nevertheless true that in discovering truth even in such cases the judicial mind
must always be open though vigilant, cautious and circumspect".
(b) In Ammu Balachandran's case, supra, the Division Bench of the Madras High Court
held as follows:
"(A) Succession Act (39 of 1925), Section 63 -- Will --Suspicious circumstances --
Will properly executed and proved before Court -- same, however, not registered --
Merely because of that no inference can be drawn against Will.
Case law discussed.
(B) Succession Act (39 of 1925), Section 63 -- Will --Suspicious circumstances --
Will properly executed and attested -- Delay in applying for probate -- Same
properly explained -- Delay cannot be treated as suspicious circumstance for
denying probate.
Case law discussed.
(C) Succession Act (39 of 1925), Section 63 -- Wilt --Suspicious circumstances --
Unnatural bequest -- He has not made any distinction between his children --
Testator having only one house -- He gave all sons only right of enjoyment along
with others -- During the lifetime of testator's widow, they were not to get
anything from building -- It is not surprising that testator has provided for widow
and sons -- They form testator's family.
(D) Succession Act (39 of 1925), Section 63 -- Will --Proof -- Suspicious
circumstances -- Some pages of Will not signed -- That cannot be said to be a
suspicious circumstance -- Will is only a declaration of last Will of the testator
-- One signature on the last page will be sufficient.
(E) Succession Act (39 of 1925), Section 63 -- Will --Execution -- Undue influence
of sons alleged -- Testator living for more than seven years after execution of
Will --He could change it -- Further, sons not getting anything under Will - Undue
influence as alleged is not proved".
(c) By following the earlier decision referred to above in H. Venkachala Iyengar's
case, supra, in yet another decision in Rani Purnima Debi and Another v Kumar
Khagendra Narayan Deb and Another , on the point of mode of proof and onus, the
Supreme Court indicated the principles in para 5 thereof as hereunder:
"(5) Before we consider the facts of this case it is well to set out the principles
which govern the proving of a Will. This was considered by this Court in H.
Venkatachala Iyengar's case, supra. It was observed in that case that the mode of
proving a Will did not ordinarily differ from that of proving any other document
except as to the special requirement of attestation prescribed in the case of a
Will by Section 63 of the Indian Succession Act. The onus of proving the Will was
on the propounder and in the absence of suspicious circumstances surrounding the
"execution of the Will proof of testatamentary capacity and signature of the
testator as required by law was sufficient to discharge the onus. Where, however,
there were suspicious circumstances, the onus would be on the propounder to explain
them to the satisfaction of the Court before the Will could be accepted as genuine.
If the caveator alleged undue influence, fraud or coercion, the onus would be on
him to prove the same. Even where there were no such pleas but the circumstances
gave rise to doubts, it was for the propounder to satisfy the conscience of the
Court. Further, what are suspicious circumstances was also considered in this case.
The alleged signature of the testator might be very shaky and doubtful and evidence
in support of the propounded case that the signature in question was the signature
of the testator might not remove the doubt created by the appearance of the
signature. The condition of the testator's mind might appear to be very feeble and
debilitated and evidence adduced might not succeed in removing the legitimate doubt
as to the mental capacity of the testator; the dispositions made in the Will might
appear to be unnatural, improbable or unfair in the light of relevant
circumstances; or the Will might otherwise indicate that the said dispositions
might not be the, result of the testator's free Will and mind. In such cases, the
Court would naturally expect that all legitimate suspicions should be completely
removed before the document was accepted as the last Will of the testator. Further,
a propounder himself might take a prominent part in the execution of the Will which
conferred on him substantial benefits. If this was so it was generally treated as a
suspicious circumstance attending the execution of the Will and the propounder was
required to remove the doubts by clear and satisfactory evidence. But even where
there were suspicious circumstances and the propounder succeeded in removing them,
the Court would grant probate, though the Will might be unnatural and might cut off
wholly or in part near relations".
(d) In Shashikumar Banerjee's case, supra, on the point of mode of proof and onus,
the Supreme Court indicated the principles as hereunder:
"(a) Succession Act (1925), Sections 63 and 289 -- Will -- Mode of proof -- Onus --
Principles indicated -- When Court would grant probate -- AIR 1958 Cal. 264,
reversed.
The mode of proving a Will does not ordinarily differ from that of proving any
other document except as to the special requirement of attestation prescribed in
the case of a Will by Section 63 of the Succession Act. The onus of proving the
Will is on the propounder and in the absence of suspicious circumstances
surrounding the execution of the Will, proof of testamentary capacity and the
signature of the testator as required by law is sufficient to discharge the onus.
Where however there are suspicious circumstances, the onus is on the propounder to
explain them to the satisfaction of the Court before the Court accepts the Will as
genuine. Where the caveator alleges undue influence, fraud and coercion, the onus
is on him to prove the same. Even where there are no such pleas but the
circumstances give rise to doubts, it is for the propounder to satisfy the
conscience of the Court. The suspicious circumstances may be as to the genuineness
of the signature of the testator, the condition of the testator's mind, the
dispositions made in the Will being unnatural, improbable or unfair in the light of
relevant circumstances or there might be other indications in the Will to show that
the testator's mind was not free. In such a case the Court would naturally expect
that all legitimate suspicion should be completely removed before the document is
accepted as the last Will of the testator. If the propounder himself takes part in
the execution of the Will which confers a substantial benefit on him, that is also
a circumstance to be taken into account, and the propounder is required to remove
the doubts by clear and satisfactory evidence. If the propounder succeeds in
removing the suspicious circumstances, the Court would grant probate, even if the
Will might be unnatural and might cut off wholly or in part near relations.
(c) Evidence Act (1872), Section 3 -- Appreciation of evidence -- Evidence of
attesting witnesses to a Will --Slight discrepancy as to time of execution.
Where the evidence of both the attesting witnesses to the Will is that the Will was
executed in the afternoon on the date on which it purported to have been executed,
a slight discrepancy in the evidence of these witnesses as to the time when the
Will was executed is not so serious as to destroy the value of their evidence
especially when the witnesses were giving evidence after 8 or 9 years after the
execution of the Will.
(d) Evidence Act (1872), Section 3 -- Appreciation of evidence -- Chance witness.
The mere fact that the attesting witnesses to a Will happen to be chance witnesses
is no ground for disbelieving their evidence. It may be that it is more usual for
witnesses to be called when a person is intending to execute a Will; even so there
is nothing impossible in advantage being taken of the accidental presence of
witnesses in this connection".
(e) In Rajlakshmi Dassi Bechulal Das's case, supra, this decision is under Section
63 of Indian Succession Act and on the point of proof of execution. The Calcutta
High Court held as hereunder:
"(B) Succession Act (1925), Section 63 -- Proof of execution.
The evidence should be examined collectively and in doing so oral, documentary and
surrounding circumstances should be taken into consideration. Before an evidence is
rejected on grounds of discrepancies the Court must satisfy itself that those
discrepancies cannot be explained on account of defective memory, failing power of
observation".
31. While summing up the argument, Sri Raghavendra Rao submitted that there is no
merit in the instance appeal and the same is filed by the appellants due to heart-
burning, that the respondent got a larger share out of the properties left behind
by the testator and therefore he prayed that the appeal be dismissed.
32. Having heard both sides, the points for my consideration are as hereunder:
(1) Whether the suit Will-Ex. D-2 is executed by the testator-K. Ramaswamaiah and
whether the same is genuine or not and whether the same is proved by the
respondent?
(2) Whether the suspicious circumstances are very well explained by the propounder
of the Will, the respondent herein?
(3) Whether the impugned judgment and decree passed by the learned Civil Judge is
just and proper and that whether the same is called for to be interfered with by
this Court in the instant appeal?
33. Now I proceed to consider the above three points in the light of the arguments
by the learned Counsel appearing for both sides.
34. Regarding Point No. 1:
The original plaintiff-Rajalakshmi Devi the mother of the appellants 1 and 2 and
the wife of appellant 3 had filed a suit in O.S. No. 5 of 1973 for partition and
separate possession as against the respondent and appellant 3 herein of one half of
her share. The appellant 3 was originally impleaded as defendant 2 for the reason
that he was the Manager of the suit properties. They are: Four items of immovable
properties shown in Schedule 'A' to suit and movable properties shown at Serial
Nos. 1 to 3 and 3-A in Schedule 'B' to suit. The said suit O.S. No. 5 of 1973 was
transferred to the Court of the Civil Judge and JMFC, Chintamani. The suit was re-
registered as O.S. No. 5 of 1987. It is in the said suit the respondent herein had
set up in his defence-Ex. D-2 Will executed by one K. Ramaswamaiah, the father of
the original plaintiff and the respondent herein. It is the case of the plaintiff
that the suit Schedules 'A' and 'B' properties originally belonged to K.
Ramaswamaiah and that he died intestate in the year 1965 leaving behind him, his
widow, one Narayanamma, the plaintiff and the respondent herein to succeed to his
estate in l/3rd share each thereof. That the widow Narayanamma died in the year
1971 intestate and therefore the original plaintiff and the respondent herein had
to succeed to suit Schedules 'A' and 'B' properties in equal share. The respondent,
while the case was pending before the Court below had also amended his written
statement to add paras 18(a) and 18(b) to the original written statement to say
that the suit Will-Ex. D-2 was also acted upon as the original plaintiff and the
respondent herein had jointly leased 7 shops among other shops on rentals to one
S.R. Ashwathnarayan and that in H.R.C. No. 14 of 1985 before the Munsiff,
Chintamani filed by the respondent as against the above said S.R. Ashwathanarayana
for not paying rentals and for his eviction, the L.Rs of the deceased plaintiff
(original plaintiff) had filed an impleading application. That thereafter, the
appellants herein had also filed rejoinder to the above amended portion of the
written statement contending that the Will was forged, concocted and created by the
respondent subsequent to filing the suit and that in the earlier suit filed by the
respondent, the Will was not disclosed and that in the lease deed executed by the
original plaintiff and the respondent herein in favour of S.R. Ashwathanarayana,
there was no mention of the Will and therefore, it was denied specifically that the
Will was acted upon. It is to be pointed out at the outset that though Ex. D-2-Will
is not a registered Will, the same is of no consequence in view of the fact that
under Section 47 of the Registration Act, a Will is not an instrument compulsorily
registerable, no matter that under Section 63 of the Indian Succession Act, every
testator not being a soldier employed in an expedition nor engaged in actual
warfare, or an airman so employed or engaged or a mariner at sea, shall execute his
Will according to certain rules more fully set out therein. The Rules under Section
63 of the Indian Succession Act are as hereunder:
"63. Execution of unprivileged Wills.--Every testator, not being a soldier employed
in an expedition nor engaged in actual warfare, or an airman so employed or
engaged, or a manner 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".
35. If we examine the suit Will-Ex. D-2 in the light of the above provisions of
law, it cannot be said that the suit Will is not in consonance with Section 63, for
the same was signed by the testator and the same was attested by three witnesses
each of whom had seen the testator sign or affix his signature to Ex. D-2 - Will
and that the attestors had put their signature to Ex. D-2 -Will as at Ex. D-2-b and
D. 2-c in the presence of the original testator whose signature is found at Ex. D-2
as at Ex. D-2-a. Hence, in my considered view, it cannot be said that the suit
Will, Ex. D-2 is opposed to law.
36. Now I advert to the point whether the respondent had proved the execution of D.
2-Will in consonance with Section 68 of the Evidence Act. The said section of the
Evidence Act demands that one of the attesting witnesses at least be called for the
purpose of proving its execution if there be an attesting witness alive. To quote
Section 68 of the Evidence Act, the same reads as hereunder:
"68. 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
specifically denied".
37. In the instant case the respondent being the propounder of the Will, examined
himself deposing that his late father K. Ramaswamaiah had executed the Will and the
same was signed by him in the presence of three attestors by name Neelam Lakshman
Rao-D.W. 2, Margal Rangappa-D.W. 3 and yet another attestor by name K. Annaiah and
that the scribe was one Ramanuja lyengar who had also signed the same as a
'biklamdar'. He had examined at the first instance D.W. 2-Neelam Lakshman Rao. He
had deposed that the suit Will-Ex. D-2 was written by the scribe Ramanuja lyengar
of Kolar and the same was written on 20-12-1964 at the instance of the testator-K.
Ramaswamaiah and that at the time of execution of the Will, Ramaswamaiah had
disposable state of mind and he was hale and healthy and that the same was written
as per the instructions of Ramaswamaiah and at that time, D.W. 3 and yet another
witness by name K. Annaiah was also present and after the Will was written, the
same was read over and it is thereafter, the testator-Ramaswamaiah signed Ex. D-2-
Will in English and that all of them were then present. He further deposed that
after Ramaswamaiah executed Ex. D-2-Will at Ex. D-2-a, he had affixed his signature
as at Ex. D-2-b and that the other attestor had affixed his signature as at Ex. D-
2-c and that yet another attestor by name Margal Rangappa-D.W. 4 had affixed his
signature as at Ex. D-2-D. In addition to D.W. 2, the respondent-D.W. 1 had also
examined the other attestor-D.W. 4 who had also spoken of Ex. D-2 and its execution
thereof by the testator-K. Ramaswamaiah and further with regard to the attestation
by D.W. 2, K. Annaiah and by himself by affixing his L.T.M. He had also identified
Ex. D-2-Will. Both D.W. 2 as well as D.W. 4 had spoken to the contents of the Will
that the widow Narayanamma was directed to be given Rs. 50/- by the original
plaintiff-Rajalakshmi Devi and the respondent, besides looking after her and
further that out of the suit properties, only one half of 11 shops were bequeathed
jointly by the testator in favour of the original plaintiff-Rajalakshmi Devi and
the respondent. Having gone through the evidence of these two attestors --
witnesses, it appears to me that their evidences appear to be cogent and acceptable
and there is nothing for me to doubt that they were lying before Court to champion
somebody's cause. Furthermore, both these witnesses are sufficiently aged. When
D.W. 2-Neelam Lakshman Rao was aged about 60 years, D.W. 4-Rangappa was aged about
90 years at the time of their giving evidence before the learned Civil Judge.
Nevertheless, I do find some discrepancies in the evidence of these two witnesses,
but to me it appears that they are all minor in nature and do not go to the root of
the matter and one should not forget here for a moment that the said witnesses were
giving evidence before the Court 28 years later to the date of execution of Ex. D-2
- Will.
38. Sri Padubidri Raghavendra Rao had argued that the Will had been written in a
very natural way and there is nothing to doubt. Taking a thread of that limb of the
argument of Sri Raghavendra Rao, I closely scrutinised Ex. D-2-Will. No doubt it is
written in an ordinary sheet of paper as argued by the learned Counsel for the
appellants, but the way it is written it gives an impression that the same is
written in a very natural way. The entire Will is handwritten in two pages of a
foolscap paper. The first page is fully covered to the end without leaving space
even to affix the signature thereunder and it is carried to almost 7/8th of page
No. 2 also and immediately thereafter, the signature of the testator as at Ex. D-2-
a is affixed in the right hand side corner. The signature is clearly made out as by
K. Ramaswamaiah, the testator. In the left hand side corner, D.W. 2 had affixed his
signature as Neelam Lakshman Rao and according to him, the same is affixed by him
as at Ex. D-2-b in Telugu and that signanture is affixed by him on making over the
pen by the testator-K. Ramaswamaiah. Beneath the signature of D.W. 2 as at Ex. D-2-
b, the second attestor's signature as K. Annaiah as at Ex. D-2-c is shown to have
been affixed. It appears to me that the signature as at Ex. J-D-2-a by the testator
and the signature of D.W. 2-Neelam Lakshman Rao and yet another attestor-K. Annaiah
as at Ex. D-2-b and Ex. D-2-c respectively appear to be in one and the same ink. It
cannot therefore be ruled out that the same are also in the very same pen as
deposed by D.W. 2, Ex. D-2-Will does bear the attestation by way of L.T.M. of D.W.
4. Of course, the said L.T.M. does not appear to have been marked though D.W. 4 did
speak that he had affixed his L.T.M. to Ex. D-2-Will. Nevertheless, I do find that
his L.T.M. has been duly identified by the scribe, 'Biklamdar' - Ramanuja Iyengar.
In view of the fact that the Biklamdar Ramanuja lyengar was no more, his daughter
Saroja was examined by the respondent, D.W. 1 to identify the handwriting and
signature of her father-Ramanuja lyengar. Therefore, it appears to me that the
respondent-D.W. 1 had made every attempt to prove Ex. D-2-Will by examining D.W. 2
and D.W. 4 the attestors then alive and further to examine the daughter of the
original scribe as D.W. 3 and in my considered view, the respondent had
successfully proved the execution of Will Ex. D-2 by the testator.
39. In this context, it is relevant to refer to the defence set out by the
appellants herein in filing the rejoinder to the amended portion of the written
statement referred to above. In the said rejoinder, the appellants have contended
that the respondent D.W. 1 had forged concocted and created the Will. In para 1 of
the rejoinder, the appellants have stated as hereunder;
"1. The deceased Ramaswamaiah had not at all executed any Will as alleged, by the
defendant. The Will alleged by the defendant is forged, concocted and created by
the defendant subsequent to the filing of this suit. The defendant had filed number
of civil suits in the year 1970 and prior to filing of this suit. But in any of the
suits, the defendant has not stated anything about the alleged Will".
40. From the above, it is clear that it is the specific case of the appellants that
Ex, D-2 Will is forged, concocted and created one subsequent to filing the suit.
But on appreciation of evidence it does not appear that the suit Will-Ex. D-2 was
forged or concocted by the respondent, more particularly, when the appellants
contended that such an act was subsequent to filing of the suit. As a matter of
fact, the same is the conclusion of the learned Civil Judge in partially decreeing
the suit in favour of the appellants. It is pertinent to mention here that the
rejoinder was filed by the appellants after appellant 3 had inspected the suit Will
by resorting to an I.A. for according to him permission for such a perusal and that
it is after the same, in the rejoinder it had been contended that the suit Will-Ex.
D-2 was forged and concocted. But, interestingly enough, the appellants did not say
how and in what manner Ex. D-2-Will was forged and concocted. What is surprising is
that, having contended that the Will was forged and concocted, they have not even
disputed Ex. D-2-a signature of the testator in Ex. D-2-Will at any point of time
either in their pleading or in challenging the evidence of D.W. 2 thereto. Even in
the cross-examination of D.W. 2, D.W. 3 and D.W. 4 there was no serious challenge
to their evidence so as to disbelieve the case of the respondent that the testator
had executed Ex. D-2-Will in a normal way by affixing his signature as at Ex. D-2-
a. Furthermore, the respondents have also not adduced any evidence in support of
their specific case that Ex. D-2-Will was forged, concocted and created by the
respondent. In view of the above circumstances, I am not left with any doubt that
Ex. D-2-Will was executed by the testator-K. Ramaswamaiah in a normal way while he
was in disposable state of mind and that the respondent being the only son and the
original plaintiff was married to appellant 3 much earlier to the execution of Ex.
D-2-Will and settled in life, it is quite natural that a large extent of the suit
properties were bequeathed to the respondent and a small portion of one half of the
share in 11 shops suit Scheduled Item No. 3 as shown in Ex. D-2 - Will was
bequeathed to the original plaintiff-Rajalakshmi Devi, the mother of the appellants
1 and 2 and wife of the appellant 3. Hence, I answer point No. 1 in the affirmative
and in favour of the respondent.
41. Regarding Point Nos. 2 and 3:
The learned Counsel for the appellants while arguing the appeal more importantly
submitted that the suspicious circumstances that the Will had not seen the light
till March, 1973, that the same was not set up in any of the earlier suit or suits
filed by the respondent or for that matter for change of khata in respect of the
properties in respect of which Ex. P-1 to P-27 was produced by the appellants, that
the Class I heir as that of the widow of the testator by name Narayanamma was
totally disinherited, that the Will was not acted upon, etc. were not well
explained by the propounder-respondent. The said part of the argument appears to be
appealing to some extent, but nevertheless, one should not forget the circumstances
under which suit Ex. D-2-Will came into existence in the facts and circumstances of
the case. In this context, it is worth referring to Ex. P-64 and Ex. P-65, the two
inland letters stated to have been written by the respondent to P.W. 3 (appellant
3), when Ex. P-64 is dated 31-7-1971, Ex. P-65 is dated 6-8-1971. Both these two
inland letters were stated to have been written by the respondent to the appellant
3 while the respondent was in Chintamani and the same were written to the
respondent 3 with all reverence to the appellant 3. In the said letters, the
respondent had enquired about the welfare of the appellant 3 and further reported
with regard to progress of certain civil suits pending before the Civil Court in
Chintamani and Kolar. On going through the said Exs. P-64 and P-65 as observed by
the learned Civil Judge in para 27 of the impugned judgment, that contents of the
said letters prove to the hilt the total innocence of the respondent and that he
was not educated and not at all worldly wise. If this is the state of affairs as
late as in the year 1971, one could understand to what extent the respondent was
taken for granted, particularly by the appellant 3 when he was all in all in the
matter of management of the subject properties which he managed as late as till the
year 1972, consequent to the demise of the testator Ramaswamaiah in the month of
November, 1965. It is relevant to mention here that all the family and business
matters including the matters relating to the litigations of the subject properties
were totally controlled by the appellant 3 as he had joined the testator young
while he was 4 years old, when neither the original plaintiff-Rajalakshmi Devi and
the respondent herein were born; furthermore, even during the lifetime of the
testator, Ramaswamaiah, the appellant 3 was all in all being the confident-Manager
of the family affairs of the parties. All the more, he was the nephew and a son in-
law at the house of Ramaswamaiah. In the said circumstances, it cannot be ruled out
that the respondent was totally under the thumb of the appellant 3 all through and
in the said circumstances, it is quite natural that Ex. D-2-Will had not seen the
light of the day till the dispute between the original plaintiff and the appellant
3 on the one side and the respondent on the other cropped up immediately after the
death of Narayanamma, the widow of the testator in the year 1971. In the said
circumstances, it appears to me that it is natural that Ex. D-2-Will was not
adverted to in any of the litigations resorted to by the respondent as against
others. After all, the litigation was conducted by the appellant 3 himself on
behalf of the respondent. I should point out here that the respondent was never a
decision maker even till the year 1972 as admittedly, appellant 3 was the Manager
of the family as well as the business of the family ever since the birth of the
respondent.
42. Yet another situation that cannot be ruled out is that the respondent being
weak, meak, ill-educated and not worldly wise, appeared to be not strong enough to
raise the issue of execution of Ex. D-2-Will either before appellant 3 or before
the original plaintiff-Rajalakshmi Devi. In that view of the matter, in my
considered view, the suspicious circumstances putforth by the learned counsel for
the appellants go to the background, when the suit Will-Ex. D-2 was successfully
proved by the respondent before the learned Civil Judge. Yet another important
factor that occurs to my mind is that the respondent could not create Ex. D-2-Will
unless he was that vigilant, intelligent and bold, for the suit Will-Ex. D-2 was
executed in the year 1964 when he was just a lad of 19 years. If in the year 1971
the respondent was innocent as could be made out in appreciation of Ex. P-64 and
Ex. P-65, the two inland letters he had written to the appellant 3, referred to
above, it is difficult for one to imagine that the respondent could collect the
signature of the testator on a sheet of paper to create Ex. D-2-Will in his favour.
It is totally difficult for one to conceive as to how the respondent could have
managed to get a signature on a sheet of paper if it was true that he had concocted
and created a Will as at Ex. D-2 to deprive the original plaintiff and for that
matter, the widow of the original testator. In the said circumstances, I feel that
the so called suspicious circumstances in the facts and circumstances of the case
loose its credence when the respondent had proved Ex. D-2-Will before the learned
Civil Judge. All the more, in my considered view the respondent had also made every
attempt to remove the suspicious circumstances and that he had succeeded in doing
so before the learned Civil Judge. In the totality of circumstances, it cannot be
ruled out that the testator in anticipation of his death in the near future had
executed Ex. D-2-Will very secretly, probably with the knowledge of the propounder,
taking into account the circumstances, firstly that his only son, the respondent
herein was quite young, ill-educated and not worldly wise to manage the affairs of
the family business, secondly that the appellant 3 herein was managing the whole
affairs of the family and the family business for a considerably long time and as
such, himself and his wife, the original plaintiff-Rajalakshmi Devi were in
dominant position in the given situation and thirdly that in the event of revealing
the fact as to the execution of the Will-Ex. D-2 either to the original plaintiff
or to the appellant 3 herein, it would jeopardise the interest of the respondent 1
and leave the family circumstances in a chaotic situation to the peril of the
respondent; probably it is this bad situation the testator did not want his younger
son to be confronted with after his demise.
43. It is relevant to mention here that as it emerged in the evidence on record,
the testator-Ramaswamaiah who had commenced his business in a very humble way,
later attained business acumen and he moved from his retail business in kerosene to
dealership in petrol and having flourished very well in his petrol business, his
name became popularly known as 'Petrolbunk Ramaswamaiah' in the trade town,
Chintamani. It appears that, he had also developed high connection. Thus he
acquired vast properties during his lifetime; however, for the reasons best known
to him, he did not settle his property in a manner other than one he chose by way
of execution of Ex. D-2, an unregistered Will secretly and that he did in the fag
end of his life and about ten or eleven months earlier to his death in the month of
November, 1965. The successful business man as he was, Ramaswamaiah during his
lifetime did buy all that was possible for him to buy and preserve the same
guardedly for the good to leave the pelf in suit Schedules 'A' and 'B' properties,
in a big way to his progeny to succeed after his demise. But Alas! one thing he
appeared to have not left behind is 'peace' for the daughter, the original
plaintiff and the son, the respondent herein, for there arose bickerings and
misunderstandings in the matter of sharing of the properties and there was a long
drawn litigation for 25 years, passed on from one generation to another. It may
appear to one that, had the original testator settled the properties in between his
daughter and the son during his life-time in definite shares and further, more
openly to the knowledge of both of them, things would not have come to the present
sorry pass. It appears that there remained no business but only vast properties
both movable and immovable soon after the demise of the testator. It is experience
that in pragmatic life, money, property and other good things enjoyable in life
will not bring peace and happiness in one's life unless there is an element of
morals: kindness, concern, love and affection, accommodation, mutual understanding,
sacrifice and the like, inculcated in one's thinking and conduct when the matter is
concerning kith and kin and the dear and the near ones. All the more, blood is
thicker than water. It is not out of context to recall the famous saying that 'man
does not live to eat, but eats to live'. All this may sound philosophical, more
particularly when the parties had totally fallen out due to lack of trust as
against others, and were on warpath and thinking purely in materialistic way and in
mundane equations. It is true that ethics and law are two things apart and they do
not go hand in hand and that they operate in two different fields of human affairs.
It is also true that it is wishful thinking to expect both to go together. But a
blend of the two with an introduction of element of compromise in human activities
and behaviour will definitely bring peace and harmony to individuals in particular
and in the process to the society in general. After all, life is short, why not
make it peaceful, pleasant and purposeful. I venture to add this philosophical note
for the reason that, this judgment of mine is a public document, very much
available for public consumption.
44. To depart from the philosophy and the ethics in life and to revert back to the
case in hand, I should say that one should not forget that in the given situation,
the testator Ramaswamaiah was the best Judge of his cause, to execute the suit
Will-Ex. D-2 and in the said circumstances, one should see the same by application
of 'Armed Chair Rule' as argued by the learned counsel for the appellants. This is
actually what I tried to do in discussing the case in the aforementioned paras. In
doing that exercise, I have also gone through the decisions cited by both sides
referred to in paras 22 and 29 as above.
45. To come to the result part of the judgment in this appeal, I only state that,
for the reasons aforementioned, I for one do not find any merit in the instant
appeal, for in my considered view, there is no error in the impugned judgment and
decree passed by the learned Civil Judge. Hence, I do not have any hesitation to
confirm the same. I hereby do so, accordingly.
46. In the result, the appeal fails and accordingly dismissed.

INTRODUCTION:
The Apex Court dealt with the issue of "suspicious circumstances" that could render
the Will unenforceable, in a Special Leave Petition in the case of Kavita Kanwar v.
Pamela Mehta & Ors. (R/Criminal Misc. Application No. 6178 of 2020). The Apex Court
on 19th May, 2020 has pronounced a comprehensive judgment on issues pertaining to
the execution of a Will, factors that may constitute suspicious circumstances to
invalidate a Will and grant of probate in the matters of testamentary and
succession under the Indian Succession Act, 1925.
FACTS:
The case in hand refers to the Will dated 20th May, 2006 of the testatrix Smt.
Amarjeet Mamik (mother) who expired on 21st May, 2006, leaving behind two daughters
and one son. The property in question came to the testatrix through the Will of the
Father dated 14th February, 2001 who was the Original owner of the Assets. The
father in his life time had gifted on 25th January, 2001, the ground floor of the
property to Mrs. Kavita Kanwar whereas the first floor and other portions came to
the testatrix. Mrs. Kavita Kanwar (The Appellant), the younger daughter of the
testatrix was not only the major beneficiary but also the Executor of the Will in
question. Ms. Pamela Mehta (Respondent No. 1) the elder and widowed daughter of the
testatrix who was living with her unmarried daughter on the 1st Floor and also
taking care of the testatrix who was suffering from cancer received no bequest but
only conditions had been stated in the Will which purportedly aim at making a
provision for her residence. Col. (Retd.) Prithviraj Mamik (Respondent No. 2) was
bequeathed the 'credit balance' lying in the bank accounts to the tune of Rs.
5,77,389/ - with a clarification that he shall not inherit any portion of the
immovable assets of the testatrix.
The Appellant being the executor of the Will filed for probate under section 276 of
the Indian Succession Act, 1925 and which application was challenged. The Trial
Court framed the following issues for consideration:
1. Whether the Will dated 20.5.2003 of Smt. Amarjeet Mamik is proper and
valid?
2. Whether the Will dated 20-5-2003 of Smt. Amarjeet Mamik is forged and
fabricated?
3. Whether the Petitioner is entitled to the grant of Probate? Letter of
Administration in respect of Will dated 20.5.2003 of Smt. Amarjeet Mamik
4. Relief.
The Trial Court in its Judgment dated 23rd November, 2009, declined the prayer for
grant of probate of the Will in Question by taking into account the circumstances
which appeared to be suspicious thereby dismissing the Petition on the ground that
the Appellant failed to satisfy the conscience of the Court with regard to
authenticity of the Will and inter alia cited the below mentioned reasons:
1. If the propounder of the Will plays an active role in the execution of
the Will and receives substantial benefit under it, such a circumstance qualifies
to be a suspicious circumstance.
2. Exclusion of the only son (Respondent No. 2) from the immovable
property
3. The elder daughter Respondent No. 1 also did not get any substantial
share although the relationship between the mother and daughter were not strained.
4. The Trial Court was not satisfied in the manner of writing and
execution of Will.
5. The attesting Witnesses were unreliable.
6. There were vague recitals in the Will such as '"other portions" of the
building when the property consisted only of ground and first floor.
Being aggrieved by the decision of the Trial Court, the Appellant approached the
High Court. The High Court in its Judgment also observed that the Appellant was
also actively involved in the execution of the Will and noticed material
contradictions in the testimonies of the Appellant and her witness. Further, the
High Court observed that although the Respondent No. 1 was residing just one floor
above the testatrix and was maintaining good relations with her, yet, only the
Appellant was called at the time of execution of the Will and no reason was
provided for not calling the Respondent No. 1. Furthermore, the Respondent No. 1
was made aware of the execution of such a will only 3 years after the date of its
execution. Secrecy, without informing heirs and without affording an explanation
for such act was yet another suspicious circumstance recorded by the High Court.
The High Court also observed major contradictions in the Testimonies of the
witnesses.
In the circumstances, the High Court vide Judgment dated 27th June, 2014, concurred
and upheld the view of the Trial Court. Being aggrieved by the Judgment of the High
Court the Appellant preferred a Special Leave Petition before the Supreme Court.
ISSUE FOR CONSIDERATION BEFORE THE SUPREME COURT:
Whether the Trial Court and the High Court were justified in declining to grant
probate in relation to the Will as prayed for.
SUBMISSIONS ON BEHALF OF THE APPELLANT:
The Counsel for the Appellant submitted that the execution of the Will as per
section 63 and section 68 had been satisfied and other requirements as per the
Indian Succession Act have been fulfilled and no cogent reason or circumstance had
been established on record against the genuineness of the Will.
Reliance was placed on the judgment of Joyce Primrose Prestor v. Miss Vera Marie
Vas & Ors 1 that greater degree of presumption arises in the case of a "holograph"
Will, which is applicable to the present case too, where the significant contents
relating to the particulars of the person and bequests, in the opening and
concluding passages, are duly written in her own hand by the testatrix. The Counsel
further placed reliance on various judgments namely Leela Rajagopal V. Kamala Menon
Cocharan 2, Ved Mitra Verma v. Dharam Deo Verma3 wherein it was held that mere
presence of the beneficiary of a Will at the time of its execution; or exclusion of
the natural heirs from any benefit; or acquaintance of the propounder with any
witness are not of such suspicious circumstances as to create legitimate doubts on
the genuineness of the Will. In view of the above the Counsel for Appellant
submitted that the Will in question is the genuine last Will of the testatrix and
the Appellant for.
SUBMISSIONS ON BEHALF OF THE RESPONDENTS:
The Counsel for the Respondent No. 1 countered the submission that the Respondent
No. 1 had accepted the claim of the Appellant for probate of the Will and submitted
that the Respondent had all throughout disputed the very execution of the Will by
her mother. Counsel relied on the judgment of H. Venkatachala Iyengar v. B. N.
Thimmajamma4, Rani Purnima Debi v. Kumar Khagendra Narayan Deb5and Smt. Jaswant
Kaur v. Smt. Amrit Kaur6 wherein it was held that a probate Court is a Court of
Conscience where the propounder has to satisfy the conscience of the Court with
removal of suspicious circumstances. A probate Court can also investigate into the
matter of a Will despite the fact that the signature found thereon has been proved
or ingredients of Section 68 of the Succession Act have been complied with.
The Counsel for the Respondent No. 2 submitted that without any rhyme or reason,
such unjustified and unreasonable distribution of assets is not likely to be made
by the testatrix especially keeping in mind the fact that the testatrix did not
have strained relations with any of her children. The Counsel relied on the
Judgment of Ram Piari v. Bhagwant7 which held that disinheritance among heirs of
equal degrees without providing any reason for exclusion of daughter also amounts
to suspicious circumstance. Further, the Counsel questioned the manner of writing
and executing the Will and submitted that the when the main part of the Will was
typed it is questionable why the inconsequential portion was handwritten and such
lacunas in evidence of Appellant raises a possibility that the Will was neither
prepared nor understood by the testatrix.
HELD:
The Apex Court on examining the facts and evidence led in the present case has
observed that "thick clouds of suspicious circumstances are hovering over the Will
in question which have not been cleared; rather every suspicious circumstance is
confounded by another and the curious case of the alleged third page of the will
effectively and completely demolished the case of the Appellant".
The Supreme Court before entering into the factual aspects took note of the legal
provisions and principles governing the execution of a Will, its proof and its
acceptance in a court of law by placing reliance on various judgments to carve out
the legal position.
The Supreme Court took note of the suspicious circumstances in the present case and
stated that any of the suspicious factors taken into account by itself and standing
alone cannot operate against the validity of the propounded Will. The relevant
consideration would be about the quality and nature of each of these facts and then
the cumulative effect and impact of all of them upon making of the Will with free
agency of the testatrix. After taking into consideration all the factors and
holistic view, if the conscience of the Court is not satisfied only then a will is
disapproved by the Court which unfortunately is the case in the present matter in
hand. Negating the Argument of the Counsel for the Appellant, the Court held that
in Joyce Primrose Prestor (Supra) the entire Will was handwritten as against the
fact that in the present case only the opening and concluding paragraphs were
handwritten. The Supreme Court also recorded that there were glaring contradictions
in oral evidence.
In view of the above and taking in account the cogent reasons to affirm the
material findings of the Trial Court and the High Court, the Apex Court held that
the testatrix executed and signed the Will in question as her Will not having
understood the meaning, effect and purport of the contents. Hence, the Supreme
Court upholding the findings and Judgment of the Trial Court and High Court
dismissed the Appeal with costs to the Appellant.
Footnotes
1. 1996 SCALE (3)596
2. (2014) 15 SCC 570
3. (2014) 15 SCC 578
4. AIR 1959 SC 443
5. (1962) 3 SCR 195
6. (1977)1 SCC 369
7. (1990) 3 SCC 364

The Apex Court in the matter namely H. Venkatachala Iyengar vs. B.N. Thimmajamma &
Ors. [AIR 1959 SC 443]   dealt with an interesting and important question i.e. what
is the true legal position in the matter of proof of wills?

It observed that the party propounding a will or otherwise making a claim under a
will is no doubt seeking to prove a document and thus what is to be seen is that
how it is to be proved?
The basic statutory provisions governing the proof of documents that can be
referred are Sections 67 and 68 of the Evidence Act. Under Section 67, if a
document is alleged to be signed by any person, the signature of the said person
must be proved to be in his handwriting and for proving such handwriting under
sections 45 and 47 of the Act the opinions of experts and of persons acquainted
with the handwriting of the person concerned are relevant.
Section 68 deals with the proof of the execution of the document required by law to
be attested and it provides that such a document should not be used as evidence
until one attesting witness has atleast been called for the purpose of proving its
execution.
The above provisions prescribe the requirements and the nature of proof which must
be satisfied by the party relying on a document in a court of law. Similarly,
sections 59 and 63 of the Indian Succession Act are also relevant. Section 59
provides that every person of sound mind, not being a minor, may dispose of his
property by will and the three illustrations to this section indicate what is meant
by the expression “a person of sound mind” in the context.
Section 63 of the Succession Act requires that the testator shall sign or affix his
mark to the will or it shall be signed by some other person in his presence and by
his direction and that the signature or mark shall be so made that it shall appear
that it was intended thereby to give effect to the writing as a will. This section
also requires that the will shall be attested by two or more witnesses as
prescribed. 
Thus the question as to whether “will” set up by the propounder is proved to be the
last “will” of the testator has to be decided in the light of these provisions.
Further, it is the answer to following questions become relevant to ascertain the
nature of finding on the question of the proof of wills, i.e. whether the testator
has signed the will? Did he understand the nature and effect of the dispositions in
the will? Did he put his signature to the will knowing what it contained?
Will has to be proved like any other document except as to the special requirements
of attestation prescribed by Section 63 of the Indian Succession Act. As in the
case of proof of other documents so in the case of proof of wills it would be idle
to expect proof with mathematical certainty. The test to be applied would be the
usual test of the satisfaction of the, prudent mind in such matters.
However, one important feature distinguishing wills from other documents is that
unlike other documents the will speaks from the death of the testator, and so, when
it is propounded or produced before a court, the testator who has already departed
the world cannot say whether it is his will or not; and this aspect introduces an
element of solemnity in the decision of the question as to whether the document -
propounded is proved to be the last will and testament of the departed testator.
Even so, in dealing with the proof of wills the court will start on the same
enquiry as in the case of the proof of documents. The propounder would be called
upon to show by satisfactory evidence that the will was signed by the testator,
that the testator at the relevant time was in a sound and disposing state of mind,
that he understood the nature and effect of the dispositions and put his signature
to the document of his own free will. Ordinarily when the evidence adduced in
support of the will is disinterested, satisfactory and sufficient to prove the
sound and disposing state of the testator’s mind and his signature as required by
law, courts would be justified in making a finding in favour of the propounder. 
There may, however, be cases in which the execution of the will may be surrounded
by suspicious circumstances. The alleged signature of the testator may be very
shaky and doubtful and evidence in support of the propounder’s case that the
signature, in question is the signature of the testator may not remove the doubt
created by the appearance of the signature; the condition of the testator’s mind
may appear to be very feeble and debilitated; and evidence adduced may not succeed
in removing the legitimate doubt as to the mental capacity of the testator; the
dispositions made in the will may appear to be unnatural, improbable or unfair in
the light of relevant circumstances; or, the will may otherwise indicate that the
said dispositions may not be the result of the testator’s free will and mind. In
such cases the court would naturally expect that all legitimate suspicions should
be completely removed before the document is accepted as the last will of the
testator. The presence of such suspicious circumstances naturally tends to make the
initial onus very heavy; and, unless it is satisfactorily discharged, courts would
be reluctant to treat the document as the last will of the testator. It is true
that, if a caveat is filed alleging the exercise of undue influence, fraud or
coercion in respect of the execution of the will propounded, such pleas may have to
be proved by the caveators; but, even without such pleas circumstances may raise a
doubt as to whether the testator was acting of his own free will in executing the
will, and in such circumstances, it would be a part of the initial onus to remove
any such legitimate doubts in the matter.
Apart from the suspicious circumstances, in some cases the wills propounded
disclose another infirmity. Propounders themselves take a prominent part in the
execution of the wills which confer on them substantial benefits. If it is shown
that the propounder has taken a prominent part in the execution of the will and has
received substantial benefit under it, that itself is generally treated as a
suspicious circumstance attending the execution of the will and the propounder is
required to remove the said suspicion by clear and satisfactory evidence. 
It is obvious that for deciding material questions of fact which arise in
applications for probate or in actions on wills, no hard and fast or inflexible
rules can be laid down for the appreciation of the evidence. It may, however, be
stated generally that a propounder of the will has to prove the due and valid
execution of the will and that if there are any suspicious circumstances
surrounding the execution of the will the propounder must remove the said
suspicions from the mind of the court by cogent and satisfactory evidence. The
result of the application of these two general and broad principles would always
depend upon the facts and circumstances of each case and on the nature and quality
of the evidence adduced by the parties.

The Supreme Court noted that an unfair disposition of property or an unjust

exclusion of the legal heirs, especially the dependents is considered as a
suspicious circumstance. In the case of Kavita Kanwar vs. Pamela Mehta, the Trial
Court and the High Court stated that the following were the unexplained suspicious
circumstances concerning the Will in question in a probate proceeding initiated by
a woman who claimed that her mother had executed it:
• 1. That she, the major beneficiary, played an active role in the
execution of the Will at issue and tried to conceal this fact before the Court;
• 2. That there was no valid explanation why the testatrix’s only son and
other daughter were not included in the execution of the Will and why they were
excluded from the majority of the estate in question;
• 3. That there was no lucidity about the construction which is assumed
to be carried out by her;
• 4. That the way the Will was written and executed with technical and
legal terms was extremely doubtful and
• 5.  That the witnesses who are attesting were unreliable, and there
were discrepancies in the witnesses’ statements.
In appeal, the Apex Court noted that the Trial Court and the High Court cannot
work against the viability of the propounded Will. It said that the pertinent
assessment would be about the quality and nature of all of these aspects, and then
the cumulative effect and impact of all of them on the testatrix’s free agency
in making of the Will. In other words, an individual aspect might not be
conclusive, but if, after considering all the aspects together, the Court’s
morals is not satisfied that the Will in question actually reflects the testator’s
last wishes and ideas, the Will cannot receive the Court’s approval; and, in other
words, if, from a systemic point of view, the Court is satisfied that the document
submitted as Will for sure signifies the last free wish and aspiration of the
testator and is aptly executed in accordance with law, the Will shall not be
disapproved only for one doubtful situations here or another factor there.
The court then analyzed each one of these situations thoroughly. Specifically, it
mentioned that the Testatrix’s unequal distribution of assets by granting the
daughter major share in comparison to her two other children (one of whom was her
widowed daughter).
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The court observed that no explanation had been provided as to why the testatrix
should have found it acceptable to abandon her widowed daughter in the heap of
confusion. The Court has said that the evidence does not help regarding the
contention that the testatrix relationship with her son was tense. The court added
that two other considerations complicate this unexplained disproportionate
allocation of the property:  The appellant’s active role in the case; and second,
the virtual exclusion of the testatrix’s other children throughout the phase.
The Will in question was shown to be a Holographic Will, where the testatrix duly
writes the contents pertaining to the person’s circumstances and bequeaths in the
opening and closing sections. Yet the Court acknowledged that the entire Will is in
electronic print apart from the opening and closing sections, and that it does not
react explicitly to the idea of a “holograph” Will.
The court concluded that the Will in issue is threatened by numerous suspicious
circumstances that are of a specific type that have gone unexplained in type. The
appeal was dismissed with costs of Rs 50,000.
Suspicious circumstances
Definition: 
Circumstances in the preparing or signing of a document which give rise to
suspicion as to the signatory’s mental ability, or fraud or duress.
Suspicious circumstances such as the following may be considered to be surrounded
in the execution of the Will.
1. Beneficiary participation in the preparation of the will
2.  Confidentiality and rapidity in the preparation of the will
3. An unknown change in the testator’s behavior toward others
4. The testator sign on blank papers
5. An abnormal and unjust disposition of property and
6. The testator’s signature may be trembling and uncertain or not appear to be his
usual signature
7. The condition of the testator’s mind may be very weak and in infirm state
at the pertinent time.
8. The dispositions may not appear to be the result
of the testator’s free will and mind.
Circumstances of suspicion may result from circumstances concerning the preparing
of the will, circumstances seeming to bring into question the capacity of the
testator, or circumstances which indicate that the testator ‘s free will was
overborne by actions of coercion or fraud.
It is essential that drafters of Will be aware of and observe for any suspicious
circumstances that may exist when the instructions are taken. Preparing a will in
the existence of suspicious circumstances merely raises the risk that in following
years, the will drafts person might end up in testifying about the validity of the
Will.
Relevant legal provisions
For this context, Sections 68 and Section 63(c) of the Indian Evidence Act are
relevant.
Section 68 of the Indian Evidence Act says that if a document is bound by law to be
certified, it shall not be used as evidence unless at least one attesting witness
has been summoned for the purpose of proving its execution where an
attesting witness is alive and subject to the Court’s proceedings and is able to
give evidence. Given that it is not appropriate to call an attesting witness to
prove the execution of any document which is not a will and is recorded in
compliance with the provisions of the Indian Registration Act of 1908 (16 of 1908),
unless it is specifically refused its execution by the individual by whom it claims
to have been executed.
Section 63(c) of the Indian Evidence Act says that the will shall be attested by
two or more witnesses, each of whom has seen the testator’s sign or affix his mark
to the will or has seen any other person sign the testament in the existence and by
the supervision of the testator, or has obtained from the tester a personal
acknowledgment of his or her signature or mark or signature from that other person;
and each of the witnesses shall sign the Will in the attendance of the testator,
but it shall not be crucial that more than one witness to attend at the same time,
and no specific form of attestation shall be essential.
In addition to these statutory provisions, other tests to show the execution of a
Will in compliance with the Will must be fulfilled. Those are:
1) Did the testator signed the will?
2) Has he understood the nature and effect of the dispositions in the will?
3) Had he kept his signature to the Will by knowing what it contained?
Landmark judgements
Amara Venkata Subbaiah and Sons and Ors. v. Shaik Hussain Bi and Ors.
In this case, the issue is that whether it is valid to execute the Will in favour
of Respondent? The AP High Court held that the Will is surrounded by suspicious
circumstances and additionally claimed that the respondent had failed to
clearly prove his execution and also had failed to describe and exclude all
suspicious circumstances surrounding his execution. Consequently, execution of Will
cannot be handled as a validly executed codicil, and it does not change the
provisions made by the testator in any way. Thus appeal is permitted.
Jaswant Kaur v. Amrit Kaur and others 
The Supreme Court observed that the cases in which the execution of the Will is
surrounded by suspicious circumstances stand on a different basis. A shaky
signature, a frail mind, an unequal and unreasonable disposition of land, the
propounder himself playing a leading role in creating the will from which he
derives a considerable profit and certain other situations cause doubt about the
execution of the Will. It is a known principle of law that each decision shall be
applied as per the facts and circumstances of the case in question.
PPK Gopalan Nambiar v. Balakrishnan Nambiar and others
The Supreme Court has held that there must be real, relevant and valid suspicious
characteristics and not a fantasy of the dubious mind.
Joseph Antony Lazarus (dead) by LRs. v. A.J.Francis
The Supreme Court held that the failure to mention other testatrix’s sons in the
Will while leaving the entire property to two sons only would lead to legitimate
suspicious circumstances and further failure to examine the Advocate who
drafted the Will and Sub-Register before whom the Will was provided for
registration would also result in the suspicious circumstances.
Indu Bala Bose v. Manindra Chandra Bose 
The Supreme Court described the term “suspicious” in the following words  –
“Needless to clarify that every and all situation is not a ‘suspicious’ situation.
A situation may be suspicious because it is not usual or is not expected naturally
in a common case or is not expected from a regular individual.”
Adivekka and others v. Hanamavva Kom Venkatesh (dead) by LRs. and another
The Supreme Court stated that non-examination of the propounder often generates
suspicious circumstances and due to that, unfavourable inference can be drawn.
Gurdial Kaur and others v. Katrar Kaur and others
The Supreme Court stated that the scribe of the Will in discourse had deposed that
he had not known the executor of the Will and that some of the legitimate heirs had
been disinherited in the Will for no cause whatsoever and therefore suspicious
circumstances emerged.
Critical analysis
A Will which is covered by suspicious circumstances cannot be held to be a valid
document. There are many factors like 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 benefit and other circumstances
raise suspicion in the execution of the Will. There are some necessary methods like
close observation and questioning of the testator which may sometimes reveal
suspicious circumstances by which one can extract suspicious circumstances in the
will. The extraction of these circumstances is also based on the work of will
drafters.
Section 68 and Section 63(c) of the Indian Evidence Act are very much relevant for
this purpose which gives clear-cut information for proving the execution of will
without any suspicious circumstances. The Landmark Judgements serves the purpose as
to what are suspicious circumstances have to be judged in the facts and
circumstances of each particular case.
In the case of Kavita Kanwar v. Pamela Mehta, Supreme Court held that in case of
any unfair disposition or unjust exclusion of legal heirs in a will, it can be
regarded as a suspicious circumstance. This Judgement added lucidity to the topic
suspicious circumstances in wills.
Conclusion
There are suspicious circumstances in a vast array of situations and they are not
necessarily menacing in nature. Often, a careful observation and questioning of the
testator reveals some of non-exhaustive list of circumstances which could lead to
the labeling of suspicious circumstances and thus reverses the burden of proof in a
case of testamentary capacity.
Drafters should therefore spend even more time in questioning such a testator and
in confirming documents and ownership documentation as to whether the suspicious
circumstances are adequate to question whether the proposed testator has ample
mental capacity.

The Doctrine of “Suspicious Circumstances”

In addition to testamentary capacity, the propounder of a will must establish “that
the testator knew and approved of the contents thereof.” With regard to this
requirement, the Supreme Court of Canada in Lidstone, 1931 SCR 695
“When it has been established that a will has been duly executed by a testator
having testamentary capacity, and also established that it was read by, or read
over to, the testator before execution, there arises ordinarily, in the absence of
suspicious circumstances, a strong presumption that he knew and approved of its
contents, but there is no inflexible rule on the subject. If, however, there are
circumstances which arouse the suspicions of the Court — as, for example, if the
will was prepared by a person who takes a benefit under it – the party propounding
the will must remove the suspicion by proving that the testator knew and approved
of the contents of the document, and it is only when this has been done that the
onus of proving fraud or undue influence is thrown on the opponents of the will.”
The doctrine of suspicious circumstances may arise in circumstances in which the
background concerning the making of the will gives rise or should give rise to some
suspicion.
The doctrine is intended to ensure that there is no doubt that the making of the
will was the free and voluntary act of the testator.
In dealing with the will, the Supreme Court of Canada in Vout v. Hay 1995 125
D.L.R. (4th) stated that when dealing with the doctrine of suspicious circumstances
and the onus of proof, the party alleging undue influence must prove it, and the
question becomes which is more persuasive: the evidence calling into question the
validity of the will (the suspicious circumstances) or the evidence supporting it.
It is crucial that a will practitioner look for and identify factors which might
appear to be suspicious and to ensure that there is ample evidence to override
those circumstances as having had an effect on the testator, prior to the execution
of the will. Again there should be a detailed record made of the practitioner’s
observations after “probing the mind of the potential will maker” , and the notes
preserved.
A seemingly in-exhaustive short list of the innumerable circumstances which might
be suspicious is as follows:
(a) where a gift is made to a person with whom the testator had a close
relationship but which was not known or recognized by the testator’s family;
(b) where a gift is made to a person who is in a position to influence the
testator, such as a care-giver, or the worst example, the party preparing the will;
(c) where an apparently unwarranted, undeserving, or unpopular gift is made to a
beneficiary who, in the minds of the those left behind, should not receive the
gift;
(d) where a gift is made to a beneficiary to whom the testator has had no close
relationship, such as a charity;
(e) where the division of assets among the children of the testator is
substantially unequal, or a certain child or children are harshly treated;
(f) where the will substantially deviates from previous wills . Always review
previous wills prior to taking instructions and having a new will executed.;
(g) where a gift is made to a person standing in a fiduciary relationship;
(h) where the beneficiary accompanies the testator on each trip to your office
during the process to complete the will;
(i) where you receive the testator’s instructions from someone other than the
testator;
(j) where there has been a recent serious illness or hospitalization;
(k) where there is any question at all about testamentary capacity;
(l) where there are indications of alcohol abuse or medications that are
potentially mind altering, being used;
(m) where there is a hasty or unwise marriage or common-law relationship;
(n) where there is evidence of depression;
(o) where there is a language/cultural disability or illiteracy;
(p) if you have been asked to prepare a will for someone by which you are to
inherit, then you should ensure that the testator receives independent legal
advice, and preferably take no part whatsoever in the preparation of the will.
(q) The recent widower and the young woman to inherit everything scenario
In circumstances where the testator has a will and substantial changes are being
made, it would be prudent for the wills drafter to enquire of the testator as to
the provisions of the previous will and the reasons for the changes.
Similarly if a child or children are being disinherited, the wills drafter should
consider preparing a detailed memorandum pursuant to the provisions of the Wills
Variation Act, ( now S 60 WESA) and enclosing a copy of that signed memorandum with
the original will. The memorandum’s facts must be accurate so that the testator is
not subsequently viewed by the court as being vindictive, as opposed to objective.
Laszlo v Lawton 2013 BCSC 305
The law relating to testamentary capacity and suspicious circumstances was
canvassed in Laszlo v Lawton 2013 BCSC 305.
The court recognized that faltering mental capacity is prone to fluctuate and the
court authorities permit variation of the degree of capacity required at these
pivotal times.
To lack of testamentary capacity does not mean that the testator must be in a
perpetual state of substandard competence. Seemingly rational persons may be
without mental capacity while seemingly compromised persons may possess it. It may
change in fluctuate slightly or wildly so that at times a person may be of sound
mind, while at other times may not be.
The Courts recognize that dementia can impair a testator’s mental powers, such that
he or she is not capable of making a will, however, a diagnosis of dementia,
standing alone, does not automatically correspond to testamentary incapacity.
Similarly, a person who is judicially declared incapable of managing his or her
affairs pursuant to adult guardianship legislation or suffers a chronic psychotic
illness such as schizophrenia may still have the capacity to make a valid will.
The issue of whether a testator has the requisite capacity to make a will is a
question of fact to be determined in all of the circumstances. Testamentary
capacity, however, is not a medical concept her diagnosis- it is a legal construct.
Medical evidence, while important and relevant, is neither essential nor conclusive
in determining the presence or absence of testamentary capacity.
Lay witnesses who have known the testator for many years can be very significant
witnesses, and it is open to the court to accord greater weight to lay evidence
than to medical evidence, or reject the medical evidence altogether.
The leading decision of Vout v Hay (1995) 2 SCR 876 , affirmed that the legal
burden of proving due execution of the will and both testamentary capacity and that
the testator knew and approved of the contents of the will is with the party
propounding the impugned a will.
There is a rebuttable presumption that the testator does it stop the requisite
knowledge and approval and testamentary capacity were the will was duly executed.
The Vout decision clarified that the presumption may be rebutted by evidence of
well grounded suspicions, known as “suspicious circumstances” relating to one or
more of the following circumstances:
1) surrounding the preparation of the will;
2) tending to call in to question the capacity of the testator;
3) tending to show that the free will of the testator was overborne by acts of
coercion or fraud.
This presumption, places and evidentiary burden on the party challenging the will
to induce or point to some evidence which accepted, would tend to negative
knowledge and approval or testamentary capacity Vout at para. 27.
The usual civil standard of proof, namely proof on a balance of probabilities
generally applies to dispelling the suspicious circumstances that have been raised.
As a practical matter, the extent of proof required will be proportionate to the
gravity of the suspicion, which will vary with the circumstances peculiar to each
case.
The courts are clear that a general miasma of suspicion that something is unsavory
may have occurred will not be sufficient. Clark v. Nash (1989) 61 DLR (4th) 409
BCCA
Conclusion
Suspicious circumstances exist in a wide array of situations and are not
necessarily sinister in their nature. Very often a close observation and
questioning of the testator will reveal one or more of a non-exhaustive list of
circumstances which might give rise to being labeled suspicious circumstances and
thus reversing the onus of proof in a testamentary capacity case.
Accordingly, will drafters should spend extra time questioning such a testator, and
confirming records and ownership documentation in determining whether the
suspicious circumstances are sufficient to question whether the proposed testator
has sufficient mental capacity.