Exclusion Of A Family Member Per Se Would Not Create Suspicion Regarding Execution Of Will: Supreme Court

While observing that a testamentary court is not a court of suspicion but that of conscience, a Bench of the Supreme Court consisting of Justice Sanjay Kishan Kaul and Justice MM Sundresh has held that a mere exclusion of either brother or sister per se would not create suspicion about a Will, unless it is surrounded by other circumstances creating an inference. When the sister of the beneficiary had accompanied the testatrix and the brother attested a Will, there was no room for suspicion regarding exclusion of the brother and the sister, the Court held.

The Bench held that

"A testamentary court is not a court of suspicion but that of conscience. It has to consider the relevant materials instead of adopting an ethical reasoning. A mere exclusion of either brother or sister per se would not create a suspicion unless it is surrounded by other circumstances creating an inference. In a case where a testatrix is accompanied by the sister of the beneficiary of the Will and the said document is attested by the brother, there is no room for any suspicion when both of them have not raised any issue."

In this case, the High Court had set aside a judgment of a Trial Court upholding a registered Will drawn in favor of the appellant on the ground that there is no logic in the exclusion of the sister of the Appellant and his brother from it.

While considering the powers to be exercised by the First Appellate Court under Section 96 of the CPC, the Bench referred to a judgment in the case of Jagdish Singh v. Madhuri Devi and stated that, "the first appellate court while exercising power under Section 96 can re-do the exercise of the trial court. However, such a power is expected to be exercised with caution. A mere substitution of view, without discussing findings of the Trial Court is not permissible. If two views are possible, it would only be appropriate to go with the view expressed by the trial court."

The court noted the above while pointing out that the trial court alone has the pleasure of seeing the demeanor of the witness. Therefore, it has got its own advantage in assessing the statement of the witnesses, which may not be available to the appellate court.

The Facts

In this case, the Suit Property originally belonged to one Ms. Jessie Jayalakshmi (deceased). The deceased Ms. Jessie Jayalakshmi, a spinster, was the maternal aunt of the Appellant/Plaintiff. Mr. Vijay Kumar and Ms. Kantha Lakshmi were his brother and sister, respectively. It is the case of the Appellant that the deceased, Ms. Jessie Jayalakshmi adopted him as her son and that he took care of her when she suffered an attack of paralysis.

A registered Will was executed by Ms. Jessie Jayalakshmi in favour of the Appellant. The said Will was attested by Mr. Vijay Kumar, brother of the Appellant, who has also been examined as PW2. Ms. Jessie Jayalakshmi was also brought to the office of the Sub-Registrar by none other than Ms. Kantha Lakshmi. The sister of the appellant and her husband (respondent) got divorced, but the husband was permitted to reside in the suit property. When he refused to vacate the property, the appellant filed suit and it was decreed in his favor on December 11, 2003.

The case before the Trial Court

The Defendants/Respondents while acknowledging the factum of execution of the Will, introduced an unregistered Will, allegedly executed by Ms. Jessie Jayalakshmi in favour of the Respondent No.2 (minor son of Respondent No.1). It is their case that old Will has been replaced by the new one. The new Will also speaks of a mortgage in favour of Respondent No.1 on payment of Rs. 31,000/- in favor of the deceased.

The Trial Court decreed the suit in favor of the appellant upon satisfying itself that the parameters as required under Section 63 of the Indian Succession Act read with Section 68 of the Indian Evidence Act have been duly complied with in proving the old Will. On the new Will, exhaustive reasoning was rendered for doubting its genuineness.

The Case before the High Court

The respondent filed an appeal under Section 96 of the CPC in the High Court which reaffirmed the findings of the Trial Court with respect to the genuineness of the new Will, but dismissed the suit on the ground that there is no logic in the exclusion of the sister of the Appellant and PW2 (brother). The appellant filed a review petition, but was dismissed.

After hearing the parties the Bench allowed the appeal and observed that, the Appellant has duly complied with the mandate of Section 63 of the Indian Succession Act along with Section 68 of the Indian Evidence Act. PW2 being the brother of the Appellant and the other sister were present at the time of execution of Exhibit P4. They have not raised any demur. Both the Courts found that the new Will is a forged and fabricated document. The alleged mortgage in favor of Respondent No.1 has not been proved.

"The Appellate Court, in our considered view, has unnecessarily created a suspicion when there is none. The Respondents have not denied the factum of the execution of Exhibit P4. The very fact that they made reliance upon Exhibit D1, which took note of Exhibit P4 as validly done, there is no need for any suspicion on the part of the High Court. That too, when the Trial Court did not find any. Such a suspicion, as stated earlier, did not arise from either of the siblings of the Appellant who would otherwise be entitled to a share in the Suit Property. Their exclusion will not ensure to the benefit of the Defendants who are bound by the recitals under Exhibit D1 and averments made in their written statement."

The Bench held that Section 3 of the Indian Evidence Act defines "a fact". The conduct of a party would be construed as a fact under Section 8. "When a party makes a claim based upon revocation of the earlier Will, as indicated in the subsequent one, the said acknowledgement of the former would form part of a conduct leading to a relevant fact vis-à-vis a fact in issue."

The Court pointed out that Section 17 defines "an admission" which would include a statement both oral and documentary. When such an admission is clear and unequivocal, there is no need to prove it while taking judicial notice. Under Section 58, a fact admitted need not be proved unless the court warrants it.

"Thus, in a case where a party admits the execution of the document in the nature of a Will, which is otherwise proved in accordance with Section 63 and Section 68 of the Indian Succession Act and Indian Evidence Act respectively, it becomes a relevant fact duly proved, in the absence of any discretion by the court. The exercise of discretion is a judicial one and therefore, there must be a basis in asking a party to prove it otherwise."

Regarding registration of Will, the Bench noted that the registration of a Will is only an additional or attending circumstance in proving it, with the rebuttable presumption available under Section 114(e) of the Indian Evidence Act. The Bench observed this while noting that, "Section 17 of the Registration Act deals with documents of which registration is compulsory. A Will being a testamentary document does not find a place under Section 17 which factum is reiterated under Section 18, making such a document to be registered at the option of a party."

Case: V. Prabhakara Vs. S. Basavaraj K. (dead) by LRS & others.