Apex Law Journal
Apex Law Journal
An online law journal reporting latest and important judgments of Hon'ble Supreme Court of India.                                                                                                                         Click here to get free legal updates via email                                                                                                                          Click here to download forms (Address Form, List Of Documents and Memorandum Of Appearance)
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Editor

Neha Goel, Advocate

Advisory Board

S.C. Khunger, Advocate

Rohit Bansal, Advocate

Varinder Singh Kanwar, Advocate

Hittan Nehra, Advocate

Judgments on Will

Tuesday, October 01, 2013
Will

Will — When the execution of the will and construction thereof was the subject matter of consideration, the framing of the question of law cannot be faulted — Civil Procedure Code, 1908, Section 100.

 
Will

Will — Suspicious circumstances — Production and reliance on the will, some 35 years subsequent to its execution, held, by itself is not a suspicious circumstance.

 
Will

Will — Discrepancies in the evidence of attesting witness — Attesting witness giving his deposition some 35 years subsequent to the execution of the will — Credence cannot be given to minor discrepancies.

 
Will

Will — Merely because the will was more than 30 years old, a presumption under Section 90 of the Indian Evidence Act, 1872, held, cannot be drawn that the document has been duly executed and attested by the persons by whom it purports to have been executed and attested — A will has to be proved in terms of Section 63 (c) of the Succession Act read with Section 68 of the Evidence Act — Succession Act, 1925, Sections 63(c) — Evidence Act, 1872, 68 and 90.

 
Friday, January 07, 2011
Will

Will — Any clause in a Will must be collected from the entire instrument and all parts shall be construed with reference to each other — Indian Succession Act, 1925, Section 82. 

 
Will

Will — While interpreting a Will, the Courts would as far as possible place an interpretation that would avoid any part of a testament becoming redundant — So also the Courts will interpret a Will to give effect to the intention of the Testator as far as the same is possible.

 
Will

Will — Testatrix in the first part of the Will bequeathed in absolute terms the property in favour of her daughters with absolute rights of sale, gift, mortgage etc. — However, in the second part of the bequest, the testatrix desired that after the demise of her daughters the property vested in them would devolve upon their female heirs only — Held, stipulation made in the second part of the Will did not in the least affect the legatees being the absolute owners of the property bequeathed to them — The corollary would be that upon their demise the estate owned by them would devolve by the ordinary law of succession on their heirs and not in terms of the Will executed by the Testatrix.

 
Will

Will — Testatrix in the first part of the Will bequeathed in absolute terms the property in favour of her daughters with absolute rights of sale, gift, mortgage etc. — However, in the second part of the bequest, the testatrix desired that after the demise of her daughters the property vested in them would devolve upon their female heirs only — Held, the Testatrix had made an absolute bequest in favour her daughters — It cannot be said that only a life interest was created in favour of daughters followed by an absolute bequest in favour of the grand daughters of the Testatrix — Appeal allowed — Judgment and order passed by the High Court is set aside and that passed by the Trial Court is restored.

 
Thursday, May 13, 2010
Will

Will — Proof of — None of the attesting witnesses, in the present case, have been examined — The scribe, who was examined as DW.2, has not stated that he had signed the Will with the intention to attest — In his evidence, he has merely stated that he was the scribe of the Will — He even admitted that he could not remember the names of the witnesses to the Will — Held, Will has not been duly proved. 

 
Will

Will — Attesting Witness — It is essential that the witness should have put his signature animo attestandi, that is, for the purpose of attesting that he has seen the executant sign or has received from him a personal acknowledgment of his signature — If a person puts his signature on the document for some other purpose, e.g., to certify that he is a scribe or an identifier or a registering officer, he is not an attesting witness — M.L. Abdul Jabbar Sahib v. M.V. Venkata Sastri & Sons, [(1969) 1 SCC 573] relied.

 
Will

Will — Effect of the signature of scribe on a Will — The effect of subscribing a signature on the part of the scribe, held,  cannot be identified to be of the same status as that of the attesting witnesses — The animus to attest, thus, is not available, so far as the scribe is concerned: he is not a witness to the will but a mere writer of the will — — Presence of scribe and his signature appearing on the document does not by itself be taken to be the proof of due attestation unless the situation is so expressed in the document itself — N. Kamalam v. Ayyasamy, [(2001) 7 SCC 503] relied.

 
Will

Will — Proof of — The High Court, in the present case, held that proof of the Will was not necessary as the execution of the Will has been admitted in the pleadings in O.S.No.233 of 1998, and in the evidence of P.W.1. — Held, there is no admission about the genuineness or legality of the Will either in the plaint of OS No.233 of 1998 or in the evidence of PW1. — Admission is only about the making of the Will and not the genuineness of the Will — The High Court committed a serious error in setting aside the well considered findings, which the first Appellate Court had recorded upon correct analysis of the pleadings and the evidence. 

 
Will

Will — Suspicious circumstances — Non-description of the schedule property creates a reasonable suspicion as to whether testator executed the Will.

 
Will

Will — Suspicious circumstances — The active participation of the propounder in the writing and the registration of the Will may well create a suspicion about its genuineness.

 
Will

Will — Suspicious circumstances — The registration of the Will by itself was not sufficient to remove the suspicion.

 
Will

Will — Suspicious circumstances — DW2, the scribe of the Will, has given no plausible reasons as to why the Will was presented twice before the Sub Registrar for registration — Nor is it stated by this witness as to why the Will was not registered on the first occasion — Held, it is a suspicious circumstance.

 
Tuesday, December 22, 2009
Will

Will — The High Court, in the present case, has accepted the arguments of the respondent herein that in spite of the fact that the appellant/plaintiff was brought on record as legal representative of Sukhiabai on the basis of the Will, yet he should have led more evidence to prove the Will in order to prove that he had become owner on the basis of the testamentary succession of the concerned house — In short, the High Court came to the conclusion that since the inquiry under Order 22 Rule 5, CPC was of the summary nature and was limited only to the determination of the right of the appellant herein to be impleaded as the legal representative of Sukhiabai, any finding given in that inquiry would not be binding on the defendant (respondent herein) at the final stage of the suit and the plaintiff (appellant herein) would have to again prove the Will in order to establish his ownership vis-à-vis the concerned premises — Held, view of the High Court that the Will had to be proved again, is incorrect — Civil Procedure Code, 1908, Order 22, Rule 5.

 
Friday, June 12, 2009
Will

Will — A male Hindu governed by Mitakshara system is not debarred from making a Will in respect of coparcenary/ancestral property — Hindu Succession Act, 1956, Section 30 read with section 4.

 
Thursday, April 16, 2009
Will

Will — Attesting witness — Held, the attesting witness should speak not only about the testator’s signature or affixing his mark to the will but also that each of the witnesses had signed the will in the presence of the testator.  

 
Wednesday, April 15, 2009
Will

Will — The legal principles in regard to proof of a will are no longer res integra — A will must be proved having regard to the provisions contained in clause (c) of Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872, in terms whereof the propounder of a will must prove its execution by examining one or more attesting witnesses — Where, however, the validity of the Will is challenged on the ground of fraud, coercion or undue influence, the burden of proof would be on the caveator — In a case where the Will is surrounded by suspicious circumstances, it would not be treated as the last testamentary disposition of the testator.

 
Will

Will — Propounder of will must prove :

(i)  that the Will was signed by the testator in a sound and disposing state of mind duly understanding the nature and effect of disposition and he put his signature on the document of his own free will, and

(ii)  when the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of testator’s mind and his signature as required by law, Courts would be justified in making a finding in favour of propounder, and

(iii) If a Will is challenged as surrounded by suspicious circumstances, all such legitimate doubts have to be removed by cogent, satisfactory and sufficient evidence to dispel suspicion.

In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts indicated therein — H. Venkatachala Iyengar vs. B.N. Thimmajamma [AIR 1959 SC 443] relied.

 
Will

Will — Suspicious circumstances — Held, suspicious circumstances like the following may be found to be surrounded in the execution of the Will :

i. The signature of the testator may be very shaky and doubtful or not appear to be his usual signature. 

ii. The condition of the testator’s mind may be very feeble and debilitated at the relevant time. 

iii. The disposition may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provisions for the natural heirs without any reason. 

iv. The dispositions may not appear to be the result of the testator’s free will and mind. 

v.  The propounder takes a prominent part in the execution of the Will. 

vi.  The testator used to sign blank papers. 

vii.  The Will did not see the light of the day for long. 

viii.  Incorrect recitals of essential facts.

The circumstances narrated hereinbefore are not exhaustive — Subject to offer of reasonable explanation, existence thereof must be taken into consideration for the purpose of arriving at a finding as to whether the execution of the Will had duly been proved or not.        

 
Will

Will — Held, it may be true that the Will was a registered one, but the same by itself would not mean that the statutory requirements of proving the Will need not be complied with.  

 
Friday, March 13, 2009
Will

Will — Execution of — Held, execution of a Will is required to be proved in terms of the provisions of Section 63(c) of the Indian Succession Act and Section 68 of the Indian Evidence Act.  

 
Will

Will — Suspicious circumstances — Only because one of the beneficiaries attested the Will, the same would not mean that he had taken active part in it.

 

 
Will

Will — Suspicious circumstances — Fact that the Will has been scribed by Gurbachan Singh, Sarpanch in Urdu although he had chosen to sign in English at more than one place, held, cannot be said to be a suspicious circumstance — In a village, a person may be more proficient in the vernacular language than English although he may be able to sign his name in English.

 
Will

Will — Suspicious circumstances — Contention that the village panchayat record wherein the factum of the execution of the Will has been registered having not been produced, the Will cannot be said to be genuine — Held, not tenable — Only because the panchayat register was not produced, the same by itself would not lead to the conclusion that the Will would be held to have not been executed, particularly when two courts competent to arrive at findings of fact held it otherwise. 

 
Wednesday, August 13, 2008
Will

Will — Grant of probate — Held, the Court, while granting probate of the will, must take into consideration all relevant factors — It must be found that the Will was product of a free will — The testator must have full knowledge and understanding as regards the contents thereof — For the said purpose, the background facts may also be taken note of — Where, however, a plea of undue influence was taken, the onus wherefor would be on the objector and not on the offender.   

 
Sunday, August 12, 2007
Will

Will — The Court granting Letters of Administration with a copy of the Will annexed, or probate must satisfy itself not only about the genuineness of the Will but also satisfy itself that it is not fraught with any suspicious circumstances.

 
Will

Will — Existence of suspicious circumstances itself may be held to be sufficient to arrive at a conclusion that execution of the Will has not duly been proved. 

 
Will

Will — Non-production of the original Will stating that the Will got lost, gives rise to an inference that it might have been that the Will did not contain the thumb impression of the testatrix.

 
Monday, December 11, 2006
Will

Will — Application for grant of probate — If the contents of Will are found to be vague despite the genuineness, the grant of probate, held, may be declined — Whether the terms stipulated therein are capable of being implemented, would be a matter of construction of the Will at the hands of the Court.

 
Monday, June 05, 2006
Will

Will — Interpretation of — The Court, held, does not sit in appeal over the right or wrong of the testator’s decision — The Court’s role is limited to examining whether the instrument propounded as the last Will of the deceased is or is not that by the testator and whether it is the product of the free and sound disposing mind — It is only for the purpose of examining of authenticity or otherwise of the instrument propounded as the last Will, that the Court looks into the nature of the bequest.

 
Will

Will — The contents of the will, held, have to be appreciated in the context of his circumstances, and not vis-a-vis the rule for intestate succession — It is only for this limited purpose that the Court examines the nature of bequest — The Court does not substitute its own opinion for what was the testator’s Will or intention as manifested from a reading of the written instrument — After all, a Will is meant to be an expression of his desire and therefore, may result in disinheritance of some and grant to another.

 
Will

Will — If a Will appears on the face of it to have been duly executed and attested in accordance with the requirements of the Statute, a presumption of due execution and attestation applies.

 
Friday, May 12, 2006
Will

Will — Execution — Will written by junior of testator who is a senior advocate — Whether unnatural ? — Held, no — Plea that nothing prevented the testator from writing the will himself, held, is no ground to reject a will which is otherwise perfect.

 
Will

Will — Suspicious Circumstances — Beneficiary never applied for probate or for mutation of the property in his name soon after the death of testator — No reason to dislodge the will which is otherwise valid.

 
Will

Will — Attesting witness — Scribe — There is no requirement in law that a scribe cannot be an attesting witness — For attestation what is required is an intention to attest.

 
Will

Will — Testator governed by Travoncore Christian Sucession Act, 1917 under which married daughter if given Rs.5,000/- or more cannot inherit under the Act — Testator having a son and two daughters — Daughters have been married — Testator as yet executing will — Whether a suspicious circumstance ? — Held, no — It was all the more important for the testator to  make the will because as a senior advocate he knew that the validity of the Act had been questioned in the Supreme Court and in the event of the Act being declared invalid, the course inheritance would change and daughters would get a share in his estate, which he did not want. 

 
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