SAVITHRI AND ORS. v. KARTHYAYANI AMMA AND ORS

Citation: [2007] 11 S.C.R. 404

Court: Supreme Court of India

Bench: S.B. SINHA, H.S. BEDI

Case summary

SAVITHRI AND ORS. v. KARTHYAYANI AMMA AND ORS.pdf

Judgment text

-('· SAVITHRI AND ORS. v. KARTHYAYANI AMMA AND ORS. OCTOBER 12, 2007 [S. B. SINHA AND HARJIT SINGH BEDI, JJ. ] I- '""( Succession Act, 1925-s. 63 - Will-Execution of-Allegation of suspicious circumstances - Execution ofWill by testator in favour of his sister and her children with whom he had been living and who had been looking after him and his medical expenses during major portion ofhis life-Challenge to, by testator's son on the groundofsuspicious circumstances-Held: Will wasproductof. free will-Deprivation ofdue share by natural heirs would not amount to suspicious circumstance- ·Moreso, testator left something for his son-Thus, execution of Will was genuine. >-.... ,• ' ss. 63 and 61-Will-Validityof-Onus ofproof, when there exist suspicious circumstances-Held: Lies on the propounder to explain them to the satisfaction of the court before it can be accepted as genuine-Evidence Act, 1872-s. 68. KN-brother and KK-sister purchased properties.

KK had two children-SN (son) and NN (daughter). Appellants are wife, son and T" daughters ofMN, son ofSN. Respondent no. 1and2 are children and .. respondent no 3 and 8 are grandchildren ofNN. SN and his wife had 1'strained relations and SNwas livingwith his sister and her children who were looking after him and bearing his medical expenses. Partition took place between the parties. SN executed a Will dated 07. 08. 1971 in f respect ofthe properties allotted to him. Value ofproperties allotted in favour ofSNwas Rs. 1000/- which would be in possessionofand enjoyed by NA and her children and MN was to be paid Rs. 500/-. It was >-~ appellant's case that the Will was surrounded by suspicious circumstances as the Registrar was brought to the house of the SAVITHRI v.

KARTHYAYANI AMMA 405 propounder which proved that the testatorwas not in good health and mental condition at the time of execution of the Will; that attesting witness to the Will stated that he had notseen the execution ofthe Will; I that otherwitnesses to the executionoftheWillwere beneficiaries under the Will; that even when executionand registration oftheWill had taken place at the house, no one from the locality had attested the Will as witness. MN fded suit for partition and for cancellation ofWill which -f was allowed. Respondentfiled appeal challengingthe order. High Court y allowed the same. Hence the present appeal. Dismissing the appeal, the Court HELD: 1. Thelegalrequirementin terms ofsection 63 ofthe Indian Succession Act, 1925 and section 68 ofthe Evidence Act, 1872 is that aWilllike any otherdocument is to be proved in terms ofthe pro\-isions of the Act. The onus of proving the Will is on the propounder. Th~ testamentary capacity of the testator must also be established.

Execution of the Will by the testator has to be proved. At least one j_ attestingwitness is required to be examined for the purpose ofproving · the execution of the Will. It is required to be shown that the Will has been signed by the testator with his free will and that at the relevant time hewas in sound disposing state ofmind and understood the nature and effect ofthe disposition. It is also required to be established that he has signed the Will in the presence oftwo witnesses who attested his signature in his presence orin the presence ofeach other. Onlywhen there existsuspicious circumstances, the onus would be on the applicant to explain them to the satisfaction ofthe court before it can be accepted _y as genuine. [Para 14] [415-A, B, C, D] 2. 1.

The submission that ifboth KN and SNwere to bequeath their entire right, title and interest in the properties in favour of the respondents by way offamily arrangement or otherwise, no deed of partition was required to be executed, cannot be accepted as thereby they would have lost their interestin the property during their life time. ~ They evidently intended to have life interest in the property, bequeathing the same in favour of the respondents. The parties are governed by Marumakkattayam School ofHindu Law. The sisters in the family have a role to play. The fact that the testator was totally dependent on his nephew and nieces is beyond any dispute. He lost his employment in the year 1959. Apart from the properties which were subject-matter of the Will, he had no other independent source of income. Being totally dependent on the respondents and having been suffering from cancer, hewas bound to place implicit faith and confidence only upon those who had been looking after him.

The Willwas admittedly registered. The testator lived for seven years after execution ofthe Will. Hecould change his mind; he did not. The very fact that he did not take any step for cancellation ofthe Will is itselfa factor which the Court may take into consideration for the purposeofupholding the same. The question as to whether the Registrar was brought to the house ofthe propounderor he had gone to the Registrar's office is not a matterwhich requires serious consideration. But it may be noticed that the witness examined on behalfofthe respondents, DW-2, categorically stated that he had gone to the Registrar's office to get the same registered. Execution of the will might have taken place at the house ofSN, but according to DW-2 he came to his office even after registration. Even the otherWill was also scribed by him and hewas an attesting witness therein also. [Para 12] [414-A, B, C, D, E, F] 2. 2. It is not correct to contend that DW-2 could not have been the attesting witness.

He in his deposition categorically stated that he had seen the Will being read over to the propounder. Thewitnesses and he had seen SN putting his signature on the Will. SN had also seen the . witnesses putting their signatures. This satisfies the requirements of the provisions of section 63 of the Indian Succession Act, 1925 and section 68 ofthe Evidence Act, 1872. [Para 13] [414-F, G] Apoline D 'Souza v. John D 'Souza (2007) 7 SCALE 766, relied on. 2. 3. It was appellant's case that the signature of the testator on the Will was obtained under undue influence or coercion. The onus to prove the same was on them. They have failed to do so. If the propounder proves that the Will was signed by the testator and he at the relevant time was in sound disposing state ofmind and understood SAVITHRI v. KARTHYAYANI AMMA 407 the nature and effectofdisposition, the onus stands discharged. Forthis purpose the background fact ofthe attending circumstances may alsQ be taken into consideration.

[Para 15] [415-D, E] B. Venkatamuni v. CJ. Ayodhya Ram Singh and Ors. , [2006] l SCALE 148 and Nirarifan Umeshchandra Joshi v. Mrudula Jyoti Rao and Ors. , (2006) 14SCALE186, referred to. -t 3. 1. The circumstances relevant for determining the existence of ·y the suspicious circumstances are (i) when a doubt is created in regard to the condition ofmind ofthe testator despite his signatureon theWill; . (ii) when the disposition appears to be unnatural orwholly unfairin the ' lightofthe relevant circumstances; (iii) where propounder himselftakes prominent partin the execution ofWillwhich confers onhim substantial benefit. In the fact situation obtaining herein no such suspicious circumstancewas existing. The court must satisfy its conscience before its genuineness is accepted. Therefore, a rational approach is necessary. -~ [Paras 17and18] [416-G, H; 417-A, B] 3. 2.

Deprivation ofa due share by the natural heirs itselfis not a· factor which would lead to the conclusion that there exist suspicious circumstances. The son was not meeting his father. He had not been attending to him. He was not even meeting the expenses for his treatment from 1959, when he lost his job till his death in 1978. The testator was living with his sister and her children. Ifin that situation, if he executed a Will in their favour, no exception thereto can be taken. Even then, somethingwas left for the appellant. _y [Para 19] [417-B, C, D] 3. 3. The conscience of the court must be satisfied. In the instant case, the High Court has considered the relevant factors. It has been found that the Will was the product ofthe free will. He had executed the Will after knowing and understanding the contents thereof. ,,-i [Para22} [418-E} Joseph AntonyLazarus (Dead) ByL. Rs. v. A. J Francis, [2006] 9SCC I ' ) 515, distinguished. ' ,· H Venkatachala Iyengar v. B. N Thimmajamma and Ors.

, AIR (1959) SC 443, relied on. Ramabai Padmakar Patil (Dead) though L. Rs. and Ors. v. Rulaninibai Vishnu Vekhande andOrs. , (2003) 8 SCC 537; S. Sundaresa Pai andOrs. v. Sumangala T Pai (Mrs. ) andAnr. , (2002] 1SCC630 and Gurdial Kaur and Ors. v. Kartar Kaur and Ors. , (1998] 4 SCC 384, referred to. CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4882 of 2007. From the Judgment and final Order dated 17. 8. 2004 ofthe High Court ofKerala at Emakulam in AS. No. 617of1992(B). Nishe Rajen Shonker (for T. T. K. Deepak & Co. ) for the Appellants. T. L. V. Iyer, S. Prasad, Jay Kishor Singh and Subramoniwn Prasad for the Respondents. The Judgment ofthe Court was delivered by S. B. SINHA, J. 1. Leave granted. 2. The question involved in this appeal is the validity ofa Will dated 07. 08. 1971 executed by one Sankaran Nair. 3.

For the sake ofconvenience, the genealogical table may be noticed at the outset : i- Krishnan Nair Kochukutty [brother] @ Kuttipenamma [sister] [Died unmarried in 1971] [Dead] I I ,, -1 Sankaran Nair Nanikutty Amma y [Died in 1978] [Dead] I I MadhaJan Nair I _I I I D-1 D-2 I ... ( D-3 to D-8 4. The properties in suit were purchased by Krishanan Nair an -inter alia, : "... The plaintiffhad stated that at the time ofexecution ofthe will the testator was not in a sound disposing state ofmind and he did not sign the document after knowing the contents ofthe same. In such circumstances, the propounder has to prove that the testator signed the document in the presence oftwo attesting witnesses who sign_ed it in the presence ofeach other. The important aspect is that Sankaran Nair was not having testamentary capacity at the -1~ time of execution of Ext. Al is more or less admitted by the defendants. In chiefexamination ofPW-4 he has stated that the Sankaran Nair was not able to execute Ext.

A4 and he was not in such a mental condition to execute such a document. That "' statement in chiefexamination is not cross-examined... " It was further observed : h ''... The definite case ofthe plaintiffis that all the documents were executed at the instance ofNarayanan Nair. On cardinal scrutiny of the entire evidence as a whole it can be seen that Narayanan Nair is the actual person behind the execution of all the documents... " The learned Trial Judge also observed: ".. . It is also not proved whether the testator signed the docume? t after knowing the contents ofthe documents. Ifthe relationship of B the testator with the son was so strange, there was no necessify for him to reserve Rs. 500/- to his son in Ext. A4. Ifhe reserves Rs. 500/- to his son in Ext. A4 that means he has an affection towards his son during his life time. Therefore, he might have intended to give the property to his son after his death.

There was no necessity for him to bequeath his property to the defendants who are living along with him and taking the income from the property. That income is sufficient for his maintenance and there is no necessity for bequeathing the entire property to the defendants as Ext. A4... " 6. An appeal preferred thereagainst, however, has been allowed by reason ofthe impugned judgment dated 17. 08. 2004, holding: "... The plaintiffwho could claim as legal heir ofSankaran Nair has no right to challenge the partition deed executed by Sankaran Nair and others except on establishment ofthe fact that Sankaran Nair was not in a position to understand the contents ofthe partition deed or that fraud was played on him while effecting partition which he did not find out during his lite time... " The High Court ftnther observed : -r '·.. .

In the will it is stated that the property bequeathed under the will was obtained by his uncle and his mother and there was partition between himself, uncle and others and the property allotted to him in the prutition was being bequeathed under the will. In the will Sankarru1 Nair has also directed an amount of Rs. 5001 - to be given to the plaintiff Therefore, there is nothing unnatural in Sankaran Nair directing the property obtained by him to be enjoyed by his nephew and niece and their children as they were looking after him during the major portion ofhis life time. In such circumstances I do not think that it can be said that mere disinheritance ofthe legal heir by itselfin the peculiar facts ofthis case will amount to a suspicious circumstance... " 7. Appellants are, thus, before us. 8. Mr.

Nishe Rajen Shonker, learned counsel appearing on behalf ofthe appellants, in support ofthe appeal, would submit that the High ,_ Court committed a serious error in passing the impugnedjudgment insofar as it failed to take into consideration the suspicious circumstances ~ surrounding the Will which have been noticed by the learned Trial Judge. It was contended that as the beneficiaries under the said Will took an active role in the matter ofexecution thereof, the same by itselfwould be sufficient to hold that the execution thereofhad not been proved. Strong reliance, in this behalf, has been placed on H Venkatachala Iyengar v. B. N Thimmajamma. and Ors. , AIR (1959) SC 443. 9. Mr. T. L. V. Iyer, learned Senior Counsel appearing on behalfof the respondents, on the other hand, would submit that the findings ofthe ). -. learned Trial Judge are perverse being beyond the pleadings in the suit.

The learned counsel would contend that the learned Trial Judge failed to notice that although two Wills had been executed - one by Krishnan Nair on 06. 08. 1971 and another by Sankaran Nair on 07. 08. 1971, only the latter one was in question. The learned Counsel urged that although the partition had taken place on 27. 07. 1971, as the testators intended to keep life interest for themselves, the said Wills were executed soon after the partition. "'i- 10. We may notice certain peculiar features ofthis case. The value ofthe joint family properties was assessed at Rs. 4,000/-. The share of Sankaran Nair being I/4th therein, the value ofthe properties allotted in his favour was only Rs. 1,000/-. Out of the said properties, in terms of the said Will, a sum ofRs. 500/- was to be paid to the plaintiff. In the said Will it was stated : ~ "My day-to-day affairs well as treatment are being looked after and is rendered in a sincere manner and according to my wishes SAVITHRI v.

KARTHYAYANI AMMA [SINHA, l] 413 by Sankunny Menon & Karthiyani Amma who are (the children A ofmy late sister Nani Kutty Amma) and her children. And I do believe that they will continue to behave in the sam~ was (sic) future also. And I, hereby declare that after my death, all the assets in my name as well as the property in the B Schedule which has devolved upon me by the above mentioned deed, shall vest in and be taken possession ofand enjoyed by my late sister Nanikutty Aroma's children, Sankunni Menon and Karthyayani anGl her children and nobody else will have any right whatsoever over my assets or property. Within an year ofmy death, a sum ofrupees five hundred shall be given to my son Madhavan and a receipt for the same shall be obtained by Karthyayani Arnrna. Ifthe above mentioned sum is not given to Madhavan within I year and for that a receipt is not obtained, he is entitled to get an interest 0£ Yz% per hundred rupees, until he receives the money.

Ifthe amount, is not accepted even after knowing about the above amount he shall not have any right to claim any interest as stated above. Item No. 2 ofthe schedule which I have received as may lawful share, is hereby charged for the realization ofthe above said amount. l£ my uncle, Krishnan Nair, expires after my death, then for his funeral. and other related rituals an amount which may extend upto Rs. 250/ -, shall be borne by Karthyayani Amma, This Will shall come into force only in the event of and on my death. I hereby retain and have all rights and authority to cancel this will or redraft the same · or dispose of my properties as per my wish. I also hereby state _y' that, in the event of any such act, the same shall be done only, F through a document made to that end. After deciding and agreeing as above the witnesses signs below. I have signed in this will only in Pullapra Village and is being numbered after producing it in the Trichur Registrar Office. " 11.

We would proceed on the basis that at the time ofexecution of the said Will, the testator was unwell. The test, however, is as to whether · he possessed mental capacity to understand the contents ofthe Will and · whether the same was free and/or voluntary. 12. Submission ofthe learned counsel that ifboth Krishnan Nair and Sankaran Nair were to bequeath their entire right, title and interest in the properties in favour of the respondents herein, by way of family arrangement or otherwise, no deed of partition was required to be executed, cannot be accepted as thereby they would have lost their interest in the property during their life time. They evidently intended to have life interest in the property, bequeathing the same in favour ofthe respondents. It must also be borne in mind that the parties are governed by Marumakkattayam School ofHindu Law. The sisters in the family have a role to play.

The fact that the testator was totally dependent on his nephew and nieces is beyond any dispute. He lost his employment in the year 1959. Apart from the properties which were subject-matter ofthe Will, he had no other independent source ofincome. Being totally dependent on the respondents having been 8uffering from cancer, he was bound to place implicit faith and confidence only upon those who had been looking after him. The Will was admittedly registered. The testator lived for seven years after execution ofthe Will. He could change his mind; he did not. The very fact that he did not take any step for cancellation ofthe Will is itself factor which the Court may take into consideration for the purpose of upholding the same. 'The question as to whether the Registerer was brought to the house of the propounder or he had gone to the Registrar's office is not a matter which requires serious consideration.

But we may notice that the witness examined on behalfofthe respondents, Raveendran (DW- 2), categorically stated that he had gone to the Registrar's office to get the same registered. Execution ofthe will might have taken place at the house ofNanikutty Amma, but according to DW-2 he came to his office even after registration. Even the other Will was also scribed by him and he was an attesting witness therein also. 13. It is not correct to contend that DW-2 could not have been the attesting witness. He in hjs deposition categorically stated that he had seen the Will being read over to. the propounder. The witnesses and he had seen Sankaran Nair putting his signature on the Will. Sankaran Nair had also seen the witnesses putting their signatures. This satisfies the requirements ofthe provisions ofthe Section 63 ofthe Indian Succession Act, 1925 and Section 68 ofthe Indian Evidence Act, 1872. [See Apoline r-· 't D' Souza v: John D' Souza (2007) 7 SCALE 766]. 14.

The legal requirements in terms ofthe said provisions are now well-settled. A Will like any other document is to be proved in terms of the provisions ofthe Indian Succession Act and the Indian Evidence Act. The onus ofproving the Will is on the propounder. The testamentary J3 Lapacity of the testator must also be established. Execution ofthe Will ~ by the testator has to be proved. At least one attesting witness is required y· to be examined Jl. 1r ;. he purpose ofproving the execution ofthe Will. It is required to be shown that the Will has been signed by the testator with his free will and that at the relevant time he was in sound disposing state ofmind and understood the nature and effect ofthe disposition. It is also required to be established that he has signed the Will in the presence Qf two witnesses who attested his signature in his presence or in the presence ofeach other.

Only when there exist suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the court before it can be accepted as genuine. . -'. 1 15. We may, however, notice that according to the appellants themselves, the signature ofthe testator on the Will was obtained under undue influence or coercion. The onus to prove the same was on thedi. They have failed to do so Ifthe propounder proves that the Will was signed by the testator and he at the relevant time was in sound disposing state of mind and understood the nature and effect ofdisposition, the onus stands discharged. For the aforementioned purpose the background fact ofthe attending circumstances may also be taken into consideration. [See B. Venkatamuni v. CJ Ayodhya Ram Singh and Ors. , (2006) 11 _,, SCALE 148]. 16. In Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao & Ors.

, (2006) 14 SCALE 186, this Court held: "Section 63 ofthe Indian Evidence Act lays down the mode and manner in which the execution ofan unprivileged Will is to be proved. Section 68 postulates the mode and manner in which proof /.. f of execution ofdocument is required by law to be attested. It 1n unequivocal tem1s states that execution ofWill must be proved at least by one attesting witness, ifan attesting witness is alive subject ~ [2007] 11 S. C. R. -{-Y to the process ofthe court and capable ofgiving evidence. A Will is to prove what is loosely called as primary evidence, except where proof is permitted by leading secondary evidence. Unlike other documents, proofofexecution ofany other document under the Act would not be sufficient as in terms of Section 68 ofthe Indian Evidence Act, execution must be proved at least by one of the attesting witnesses. While making attestation, there must be an ho. animus attestandi, on the part ofthe attesting witness, meaning ..... ,.

thereby, he must intend to attest and extrinsic evidence on this point is receivable. The burden of proof that the Will has been validly executed and is a genuine document is on the propounder. The propounder ~ is also required to prove that the testator has signed the Will and that he had put his signature out ofhis own free will having a sound disposition ofmind and understood the nature and effect thereof. Ifsufficient evidence in this behalfis brought on record, the onus ofthe propounder may be held to have been discharged. But, the ~ f onus would be on the applicant to remove the suspicion by leading J sufficient and cogent evidence ifthere exists any. In the case of proofofWill, a signature ofa testator alone would not prove the execution thereof, ifhis mind may appear to be very feeble and debilitated. However, ifa defence of fraud, coercion or undue " influence is raised, the burden would be on the caveator. [See Madhukar D. Shende v.

Tarabai Shedage, [2002] 2 SCC 85 and Sridevi & Ors. v. Jayaraja Shetty & Ors. , [2005] 8 SCC 784]. Subject to above, proofofa Will does not ordinarily differ .. ,_ from that ofproving any other document. " 17. Therein, this court also took into consideration the decision of this Court in H Venkatachala Iyengar (supra), wherein the following circumstances were held to be relevant for determination ofthe existence ofthe suspicious circumstances : "(i) When a doubt is created in regard to the condition ofmind of h the testator despite his signature on the Will; (ii) When the disposition appears to be unnatural or wholly unfair . in the light ofthe relevant circumstances; .. (iii) Where propounder himself takes prominent part in the execution ofWill which confers on him substantial benefit. " 18. We do not find in the fact situation obtaining herein that any such suspicious circumstance was existing.

We are not unmindful ofthe fact that the court must satisfy its conscience before its genuineness is accepted But what is necessary therefor, is a rational approach. 19. Deprivation ofa due share by the natural heirs itselfis not a factor which would lead to the conclusion that there exist suspicious , circumstances. For the said purpose, as noticed hereinbefore, the background facts should also be taken into consideration. The son was not meeting his father. He had not been attending to him. He was not even meeting the expenses for his treatment from 1959, when he lost his job till his death in 1978. The testator was living with his sister and her children. Ifin that situation, ifhe executed a Will in their favour, no exception thereto P can be taken. Even then, something was left for the appellant. 20. In Ramabai Padmakar Patil (Dead) though L. Rs. and Ors. v. Rukminibai Vishnu Vekhande and Ors. , [2003] 8 SCC 537, this Court held: "8.

A Will is executed to alter the mode ofsuccession and by the , very nature of things it is bound to result in either reducing or depriving the share ofa natural heir. Ifa person intends his property to pass to his natural heirs, there is no necessity at all ofexecuting a Will. It is true that a propounder ofthe Will has to remove all _y suspicious circumstances. Suspicion means doubt, conjecture or mistrust. But the fact that natural heirs have either been excluded or a lesser share has been given to them, by itselfwithout anything 1 more, cannot be held to be a suspicious circumstance, especially in a case where the bequest has been made in favour of an , offspring.... " [See also S. Sundaresa Pai and Ors. v. Sumangala T Pai (Mrs. ) and Anr. , [2002] 1 SCC 630]. 21. Strong reliance has been placed by the learned counsel on ;... , -{7 Gurdial Kaur and Ors. v. Kartar Kaur and Ors. , [1998] 4 SCC 384, . A wherein it was held '. ;, "4.

The jaw is well settled that the conscience ofthe court must be satisfied that the Will in question was not only executed and attested in the manner required under the Indian Succession Act, 1925 but it should also be found that the said Will was the product ofthe free volition ofthe executant who had voluntarily executed the same after knowing and understanding the contents ofthe Will. Therefore, whenever there is any suspicious circumstance, the """' obligation is cast on the propounder of the Will to dispel the suspicious circumstance. As in the facts and circumstances ofthe case, the court ofappeal below did not accept the valid execution ofthe Will by indicating reasons and coming to a specific finding that suspicion had not been dispelled to the satisfaction ofthe Court and such finding ofthe court ofappeal below has also been upheld by the High Court by the impugned judgment, we do not find any ~ reason to interfere with such decision. This appeal, therefore, fails )..

and is dismissed without any order as to costs. " 22. There is no dispute in regard to the proposition that the conscience ofthe court must be satisfied. In the instant ~ase, the High Court has considered the relevant factors. It has been found that the Will was the product ofthe free will. He had executed the Will after knowing and understanding the contents thereof. 23. Joseph Antony Lazarus (Dead) By L. Rs. v. A. J Francis, [2006] . 9 sec 515' whereupon again reliance was placed, one of the I circumstances was that the names ofthe two sons ofthe testator had not i- ~ been mentioned therein. The said decision cannot be said to have any application to the instant case. t 24. For the reasons aforementioned, we do not find any legal infirmity in the judgment ofthe High Court. The appeal is dismissed. However, in the facts and circumstances ofthe case, there shall be no order ac; to costs. } .... N. J. Appeal dismissed.