It is certainly on expected lines that the Supreme Court in a most learned, laudable, landmark, logical and latest judgment titled Leela & Ors vs Muruganantham & Ors in Civil Appeal No. 7578 of 2023 and cited in Neutral Citation No.: 2025 INSC 10 and so also in 2025 LiveLaw (SC) 8 in the exercise of its civil appellate jurisdiction that was pronounced most recently on January 2, 2025 while reiterating firmly yet again when the registration of a will would make it valid has made it indubitably clear that mere registration of a will would not make it valid unless the same is not proved as per the requirements of Section 63 of the Indian Succession Act and Section 68 of the Evidence Act. Section 63 delves on the execution of unprivileged wills and Section 68 pertains to the proof of execution of document.
It would be extremely significant to note that the Apex Court Bench comprising of Hon’ble Mr Justice CT Ravikumar and Hon’ble Mr Justice Rajesh Bindal pointed out emphatically that as per Section 68, at least one attesting witness has to be examined to prove execution of a will. In this context, we must note that the Apex Court placed reliance on the recent relevant cases of Moturu Nalini Kanth vs Gainedi Kaliprasad (Dead, through Lrs. 2023 SCC OnLine SC 1488; 2023 INSC 1004 and Derek A.C. Lobo v. Ulric M.A. Lobo (Dead) by LRS. 2023 SCC OnLine 1893; 2023 INSC 1093.
It must be laid bare herein that the Apex Court held that the evidence was not sufficient to prove the validity and the genuineness of the will. It was also opined that the appellants failed to prove the fact that the will was executed by the testator after understanding its contents. The Apex Court before dismissing the appeal thus very rightly held that:
In such circumstances, when the findings are concurrent how can the findings on the validity and genuineness of the Will in question by the Trial Court and the High Court be interfered with. There is no reason to hold that the appreciation and findings are absolutely perverse warranting appellate interference by this Court. No denying it!
At the very outset, this remarkable, robust, recent and rational judgment authored by Hon’ble Mr Justice CT Ravikumar for a Bench of Apex Court comprising of himself and Hon’ble Mr Justice Rajesh Bindal sets the ball in motion by first and foremost putting forth in para 1 that:
The unsuccessful defendant Nos.1 to 3 in OS No.142/1992 which is a suit for partition and allotment of 5/7th share filed by respondent Nos.1 to 5 herein, filed this appeal against the judgment dated 15.11.2019 passed by the High Court of Madras, Madurai Bench in AS No.368/2002 whereby and whereunder the appeal was dismissed and the judgment and decree in O.S. No. 142 of 1992 dated 27.09.2001 on the file of the Additional Sub-Court, Tenkasi was confirmed. Essentially, the Trial Court and the High Court have concurrently declined to accept the case of the appellants based on the Will dated 06.04.1990. Hereafter in this appeal, for the sake of convenience, the parties are referred to, in accordance with their rank and status in the Original Suit, unless otherwise specifically mentioned.
To put things in perspective, the Bench envisages in para 2 that:
The plaint averments, in brief is as follows: -
The suit schedule properties originally belonged to one Balasubramaniya Thanthiriyar. He married twice. Through his first wife, Rajammal (plaintiff No.4/respondent No.4), he got three sons, namely, Muruganandam (plaintiff No.1/respondent No.1), Ganesh Murthy (plaintiff No.2/respondent No.2) and Kannan (plaintiff No.3/respondent No.3) and one daughter by name Mahalakshmi (plaintiff No.5/respondent No.5). While the marriage with the first wife Rajammal was subsisting, Balasubramaniya married Leela (petitioner No.1/defendant No.1) and as such, she is an illegitimate wife. Sivakumar (petitioner No.2/defendant No.2) and Lt. Mageshwaran (petitioner No.2/defendant No.3) are the illegitimate sons of Balasubramaniya through Leela.
As we see, the Bench then discloses in para 3 that:
Earlier, Balasubramaniya Thanthiriyar instituted O.S. No.504/ 1986 against his first wife and children through her viz., plaintiff Nos.4, 1 to 3 and 5 respectively. Later, it was compromised at the instance of the elderly villagers and partition of properties effected between them as per partition deed dated 04.12.1989. As per the partition deed, his properties were divided into four schedules. Properties described and contained in the first-schedule were allotted to himself by Balasubramaniya Thanthiriyar. The second-schedule properties consisting of 22 items were allotted to the share of plaintiffs/respondent Nos.1 to 3 herein viz., his sons through his first wife and the third-schedule properties were allotted to his first wife viz. plaintiff/respondent No.4. The fourth-schedule properties were allotted in the name of his minor daughter viz., plaintiff/respondent No.5. Balasubramaniya died on 28.11.1991.
As things stands, the Bench points out in para 4 that:
In fact, the lis in the present suit viz., O.S. No.142/1992 is with respect to the several properties left to the share of Balasubramaniya Thanthiriyar as per the aforesaid partition deed and described as suit schedule properties. According to the plaintiffs, defendant No. 1 is not entitled to any share in the property of deceased Balasubramaniya Thanthiriyar being an illegitimate wife, in the sense that they married when the first wife was alive and that marriage was subsisting. It is the contention of the plaintiffs that they each have 1/7 share and thus, totalling 5/7 share in the properties of Balasubramaniya Thanthiriyar and respondent Nos.2 and 3 too got 1/7 share each only in such properties.
The first item of the schedule properties is shops buildings occupied by defendants 4 to 12, the tenants. Conspiring with them the defendant Nos.1 to 3 attempted to get the entire amount of rent from the defendant Nos.4 to 12 and to withdraw the bank deposit. Upon such developments the plaintiffs issued notices to defendant Nos.4 to 12 and then, filed H.R. C.O.P. No. 2 to 10 of the year 1992 in the Court of Tenkasi Rent Controller and deposited the rent amount. As relates to plucking of coconuts from the groves mentioned as items 18 to 21 the defendant Nos.1 to 3 created problems and were trying to appropriate the harvest with the help of the police. In short, the defendant Nos.1 to 3 are trying to create prejudice to their shares and also to create encumbrance on the shares of the plaintiffs. They also pleaded that the defendant Nos. 1 to 3 claimed execution of a Will in their favour by Balasubramaniya Thanthiriyar and if they created any such record, it is a wilful forgery. In short, according to the plaintiffs they and defendant Nos. 2 and 3 are in joint possession of the suit schedule properties as co-owners.
Do note, the Bench notes in para 5 that:
The first defendant/the first respondent filed a written statement which was adopted by defendant Nos. 2 and 3/respondents 2 and 3. Now, respondent No. 3 is no more and he is represented by his legal heirs.
Do also note, the Bench then notes in para 6 that:
In the suit, the appellants herein/the defendants produced the Will dated 06.04.1990 which is an unregistered one. They filed a written statement stating that Balasubramaniya was being harassed and assaulted by the plaintiffs and it is due to that harassment that the partition deed dated 04.12.1989 was executed. The plaintiff/respondents herein could not claim any right over the properties based on the partition deed. The plaintiffs got no right over the first-schedule properties which was allotted to Balasubramaniya. It is their contention that the first-schedule properties belonged to Balasubramaniya and, therefore, after his demise only the second and third defendants got entitlement.
Do further note, the Bench notes in para 14 that:
We are of the considered view that the fate of this appeal depends upon the decision on the genuineness and the question whether the suspicious circumstances are removed/explained to the satisfaction of this Court. The Will is executed on the stamp papers bought in the name of petitioner No.1, who was examined as DW-1. Still, DW-1 categorically denied the case of having played a role in the execution of the said Will. Before looking into the alleged and upheld suspicious circumstances, it is only apposite to refer to the settled position that 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. (See the decision of this Court in Derek A.C. Lobo v. Ulric M.A. Lobo (Dead) by LRS. 2023 SCC OnLine 1893; 2023 INSC 1093.), in one among us (C.T. Ravikumar, J.) is a party.
Most significantly, the Bench encapsulates in para 20 what constitutes the cornerstone of this notable judgment postulating that:
There can be no doubt with respect to the manner in which execution of a Will is to be proved. In the light of plethora of decisions including the decisions in Moturu Nalini Kanth v. Gainedi Kaliprasad (Dead, through Lrs.) 2023 SCC OnLine SC 1488; 2023 INSC 1004 and in Derek AC Lobo’s case (supra) this position is well settled that mere registration of a Will would not attach to it a stamp of validity and it must still be proved in terms of the legal mandates under the provisions of Section 63 of the Indian Succession Act and Section 68 of the Evidence Act. It is not the case of the appellant that the Will dated 06.04.1990 is a registered one.
It is worth noting that the Bench notes in para 15 that:
Now, we will refer to the suspicious circumstances pointed out by the Courts below:
- That the first appellant (DW-1), one of the beneficiaries and the mother of the other beneficiaries, played an active role in the execution of the Will in question and concealed this fact before the Court;
- Contradictory recitals on the health of the testator in the Will and the evidence of DW-1 herself strengthening the same;
- Non-matching of the signature of the testator in Ext.A1-partition deed and Ext.B2-Will dated 06.04.1990;
- Non-examination of the person who typed the Will;
- Non-examination of the Scribe;
- Incongruity with respect to the place of execution of the Will;
- Failure to prove that the testator executed the Will after understanding its contents.
Be it noted, the Bench notes in para 16 that:
At the outset, it is to be stated that legitimacy or illegitimacy of the second wife and the children born through the second wife is not a matter of relevance for consideration in the case on hand as the question is not in relation to partition of ancestral properties. So also, the fact of non-inclusion of the first wife and children through her is not of much relevance in view of the admitted position that Balasubramaniya Thanthiriyar on 04.12.1989 partitioned his entire properties into four schedules and allotted three, out of the four, schedules to them and allotted on the first schedule to himself. Therefore, the first question is whether the appellants who claimed under the Will dated 06.04.1990 proved its execution in accordance with law and if so, still the question is whether it is shrouded with suspicious circumstances.
It would be instructive to note that the Bench notes in para 17 that:
There is a concurrent version with respect to the place of the execution of the Will. Though, the recitals in the Will would show that with respect to the health of Balasubramaniya Thanthiriyar contradictory versions appear in the said Will. In one part of the Will it is stated, with full conscious, with good memory and without instigation by anyone and at the same time in another part it is stated, I suffer from heart disease and got treatment from several doctors. The Court also took note of the fact that defendant No.1 herself stated that the health of her husband was in bad condition and as there was a danger to his life, he executed the Will at Madurai and had no role in the preparation of the Will. The Courts found that two pages of the stamp papers were bought in the name of defendant No.1 from Tenkasi and still defendant No.1 contended that she did not participate in the execution of the Will. DW-1 stated in her written statement that till the partition in 1989, when the properties were enjoyed jointly, no problem had occasioned to him. It is taken that the said statement of DW-1 itself would reveal that the properties were jointly enjoyed.
It cannot be lost sight of that the Bench points out in para 30 that:
The very case of the first defendant viz., DW1 is that the testator was being looked after by her. She was residing at Tenkasi and if the testator used to stay there with her and her deposition is to the effect that she was not aware that her husband was going to execute a Will at Madurai and then, the proven fact is that two stamp papers, on which 2 pages of the Will were typed, were purchased in the name of the first defendant from Tenkasi, create some suspicion. As noted earlier, the health of testator was in bad condition and if so, the case that the execution of the Will was at a far away place from Madurai is also a matter casting suspicion. Evidently, it was taking into consideration all the aforesaid and such other circumstances that the High Court arrived at the finding that the execution of the Will itself was not proved. The circumstances surrounding the Will were also concurrently held as suspicious.
Most forthrightly, the Bench lays bare in para 31 holding that:
In the circumstances, 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. It can only be held that the defendants have failed to prove that the testator executed the Will by putting his signature after understanding its contents. In such circumstances, when the findings are concurrent how can the findings on the validity and genuineness of the Will in question by the Trial Court and the High Court be interfered with. There is no reason to hold that the appreciation and findings are absolutely perverse warranting appellate interference by this Court. It is also to be noted that the defendant Nos.2 and 3 also got 1/7th share each in the suit schedule properties.
Finally and as a corollary, we see that the Bench then concludes by holding aptly in para 32 that:
For all these reasons the appeal has to fail. Consequently, it is dismissed. In the circumstances, there is no order as to costs.
In sum, we thus see that the Apex Court has clearly laid down that mere registration of a will won’t make it valid unless its execution is proved as per Evidence Act. It was also very rightly pointed out that the health of the testator was in bad condition and if so, the case that the execution of the will was at a far away place from Madurai is also a matter casting serious aspersion. We have discussed other factors also which raised serious questions on its execution properly and so the appeal was rightly rejected. No denying it!
Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh
