Will registration alone insufficient without proper proof under Section 63 Indian Succession Act and Section 68 Evidence Act

The SC dismissed an appeal challenging concurrent findings by the trial court and HC regarding the invalidity of a will dated 06.04.1990. The case involved a partition suit where respondents sought 5/7th share in properties. The court held that mere registration does not validate a will, which must be proved under Section 63 of the Indian Succession Act and Section 68 of the Evidence Act. Despite examining an attesting witness (DW2), the court found suspicious circumstances including the testator's poor health, execution at a distant location, and stamp papers purchased in the first defendant's name. The propounder failed to establish that the testator executed the will with sound mind and understanding of its contents.

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1. ISSUES PRESENTED and CONSIDERED

The core legal questions considered by the Court were:

(i) Whether the plaintiffs are entitled to a share in the first schedule of the propertiesRs.

(ii) Whether the Will dated 06.04.1990 is valid and genuineRs.

(iii) Whether the plaintiffs and defendants 2 and 3 are in joint enjoyment of the suit propertiesRs.

(iv) Whether the plaintiffs are entitled to 5/7th share in the propertyRs.

(v) What reliefs are available to the plaintiffsRs.

These issues were framed both at the trial and appellate stages, with particular emphasis on the validity and genuineness of the Will dated 06.04.1990 and the consequent entitlement of the parties to shares in the property.

2. ISSUE-WISE DETAILED ANALYSIS

Issue (i) & (iv): Entitlement of plaintiffs and defendants to shares in the property

The properties originally belonged to Balasubramaniya Thanthiriyar who had two wives-his first wife Rajammal and second wife Leela, the latter being an illegitimate wife as the first marriage subsisted. The partition deed dated 04.12.1989 divided the properties into four schedules, allotting the first schedule to Balasubramaniya himself, and the remaining schedules to his first wife and children through her.

The plaintiffs contended that defendant No.1 (Leela) was not entitled to any share as she was an illegitimate wife and that the plaintiffs were entitled to 5/7th share in the suit properties. The defendants claimed entitlement under the Will dated 06.04.1990, which purported to be a testamentary disposition by Balasubramaniya in their favour.

The Court noted the admitted fact of partition and allotment of the first schedule properties to Balasubramaniya himself, which were treated as his self-acquired properties. None disputed his exclusive ownership of these properties. The Court found that the plaintiffs were entitled to 5/7th share (1/7th each to five plaintiffs) and the two illegitimate sons of Balasubramaniya through Leela were entitled to 1/7th share each. The concurrent findings of the lower courts on this issue were not interfered with, except insofar as the validity of the Will might affect such shares.

Issue (ii): Validity and genuineness of the Will dated 06.04.1990

The pivotal issue was the validity of the Will propounded by the defendants. The Will was unregistered but attested by two witnesses, satisfying the formal requirements under Section 63 of the Indian Succession Act, 1925, and Section 68 of the Indian Evidence Act, 1872.

The appellants contended that the Will was duly executed with attestation by two witnesses and that the suspicious circumstances alleged by the respondents were insufficient to discredit the Will. They argued that the Will reflected the testator's intention to bequeath his self-acquired properties to his second wife and children through her, following the partition deed of 1989.

The respondents contended that mere proof of execution under Section 63 and Section 68 was not conclusive of the Will's genuineness and that the Will was shrouded with suspicious circumstances making it unreliable.

The Court analyzed the suspicious circumstances highlighted by the lower courts, which included:

• The first appellant (DW-1), a beneficiary and mother of other beneficiaries, actively participated in procuring the Will but denied her involvement before the Court;
• Contradictory statements regarding the health of the testator in the Will and evidence, including that the testator was suffering from heart disease and was under treatment;
• Non-matching signatures of the testator on the partition deed and the Will;
• Non-examination of the person who typed the Will and the scribe;
• Incongruity regarding the place of execution-the Will stated to be executed at Madurai, whereas the testator and family resided at Tenkasi;
• Failure to prove that the testator executed the Will after understanding its contents;
• Stamp papers for the Will were purchased in the name of the first defendant at Tenkasi, yet the Will was executed at Madurai.

The Court observed that DW-1, the first appellant and propounder of the Will, denied her role in its execution despite evidence to the contrary, including the purchase of stamp papers in her name. DW-2, the attesting witness and brother of DW-1, testified that the Will was executed at Madurai and was read over to the testator by a notary public before signing. However, the Will itself did not contain any notation that it was read over, and the testator's health was poor, raising doubts about his capacity to understand the Will fully.

The Court emphasized the settled legal position that while the propounder must prove execution of the Will as per Section 63 and Section 68, the objector must point out suspicious circumstances, and the propounder must then remove such suspicion. The Court found that the suspicious circumstances were not satisfactorily explained or removed by the appellants.

Consequently, the Court concurred with the concurrent findings of the Trial Court and High Court that the Will was not genuine and was shrouded with suspicious circumstances, rendering it unworthy of acceptance.

Issue (iii): Joint enjoyment of properties

The Court noted that the statement of DW-1 herself revealed that until the partition in 1989, the properties were jointly enjoyed by the testator and the plaintiffs. This supported the plaintiffs' claim of joint enjoyment and possession as co-owners of the suit schedule properties.

Issue (v): Reliefs available to plaintiffs

Given the dismissal of the Will's validity, the plaintiffs' entitlement to 5/7th share was upheld. The Court confirmed the decree of partition and allotment as per the partition deed dated 04.12.1989 and the subsequent findings of the lower courts.

3. SIGNIFICANT HOLDINGS

The Court held:

"Though it is the propounder to establish the execution of the Will and once the same is discharged, it is for the objector to pinpoint the suspicious circumstances. It is also the settled position that upon such objection, it is for the propounder to remove such suspicious circumstances."

"The circumstances surrounding the Will were also concurrently held as suspicious. The evidence of DW2 cannot be taken sufficient to prove the execution of the Will in question in the manner it is required to be proved and to accept it as genuine."

"There is no reason to hold that the appreciation and findings are absolutely perverse warranting appellate interference by this Court."

Core principles established include:

• The formal execution of a Will under Section 63 of the Indian Succession Act and proof under Section 68 of the Evidence Act are necessary but not sufficient conditions for its validity; the Will must also be free from suspicious circumstances.
• Where suspicious circumstances are raised, the burden shifts to the propounder to remove them satisfactorily.
• Concurrent findings of fact by the Trial Court and High Court on the genuineness of a Will are entitled to great weight and will not be disturbed unless perverse.
• Partition deeds executed by the owner during lifetime allotting properties to himself are indicative of self-acquired properties and are relevant for determining testamentary disposition.

Final determinations:

The Court dismissed the appeal, affirming the validity of the partition deed and the entitlement of the plaintiffs to 5/7th share, and rejecting the Will dated 06.04.1990 as invalid and not genuine. The defendants were held entitled only to the shares allotted to them as per the partition deed, and the Will could not override that arrangement.

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