CASE LAW DIGEST ON WILL AND PROBATE

COLLECTED FROM

DEDICATED TO
 INTRODUCTION

What Is a Will?

A document in which a person specifies the method to be applied in the

management and distribution of his estate after his death.

Definition of Will & Other Related Terms

Will: A Will is a solemn document by which a dead man entrusts to the living
to the carrying out of his wishes. S. S.2 (h) of India Succession Act, 1925[1]
provides that Will means the legal declaration of the intention of a person with
respect to his property, which he desires to take effect after his death.

Codicil is an instrument made in relation to a Will, explaining, altering or

adding to its dispositions and is deemed to be a part of the Will. The purpose of
codicil is to make some small changes in the Will, which has already been
executed.

An executor is appointed by the testator, as distinguished from an

administrator who is appointed by the court. Where the Will confers the powers
to collect the outstanding, pay debts and manage the properties, the person
can be said to be appointed as an executor by implication.

Probate is an evidence of the appointment of the executor and unless revoked,

is conclusive as to the power of the executor. The grant of probate to the
executor however does not confer upon him any title to the property.

Letter of Administration is a certificate granted by the competent court to an

administrator where there exists a Will authorizing him to administer the
estate of the deceased in accordance with the Will. If the Will does not name
any executor, an application can be filed in the court for grant of Letter of
Administration for the property.

Attesting means signing a document for the purpose of testifying the signature
of the executants.

Essential Features of a Will

The essential features are-

The documents purporting to be a Will or a testament must be legal, i.e. in

conformity with the law and must be executed by a person legally competent to
make it. Further the declaration of intention must be with respect to the
testator’s property It is a legal document, which has a binding force upon the
family.

In a Will, the testator bequeaths or leaves his property to the person or people
he chooses to leave his assets/belongings. A Hindu person by way of his Will
can bequeath all his property. However, a member of an undivided family
cannot bequeath his coparcenery interest in the family property.

The Will is enforceable only after the death of the testator-

Under section 18 of the Registration Act the registration of a Will is not
compulsory. Also, the SC in Narain Singh v. Kamla Devi [AIR 1954 SC 280]
has held that mere non-registration of the Will an inference cannot be drawn
against the genuines of the Will. However it is advisable to register it as it
provides strong legal evidence about the validity of the Will. It is to be released
only to the testator himself or, after his death, to an authorized person who
produces the Death Certificate .Since a testamentary disposition always speaks
from the grave of the testator, the required standard of proof is very high. The
initial burden of proof is always on the person who propounds the Will.

Hindu Law of Wills- an overview

Who Can Make A Will?

S.59 of ISA provides that every person who is of sound mind and is not a minor
can make a Will.

For Person of unsound mind

U/s. 59 of ISA the existence of a sound mind is a sine quo non for the validity
of the Will. Most of the Wills are not made by young persons who are fully fit
but are made by persons who are aged and bed ridden Hence, law does not
expect that the testator should be in a perfect state of health, or that he should
be able to give complicated instructions as to how his property was to be
distributed. A sound disposing mind implies sufficient capacity to deal with
and understand the disposition of property in his Will -

1) the testator must understand that he is giving away his property to one or
more objects

2) he must understand and recollect the extent of his property

3) he must also understand the persons and the extent of claims included as
well as those who are excluded from the Will.

Minors: A minor who has not completed the age of 18 years is not capable of
making Wills. The onus of proof on determining whether the person was a
minor at the time of making a Will is on the person who has relied upon the
Will. S.12 of the Indian Contract Act also provides that a minor is incompetent
to contract.
Restrictions on a Will

1. Transfer to unborn persons is invalid

Where a bequest is made to a person by a particular description, and there is

no person in existence at the testator’s death who answers that description, the
bequest is void. S.113 of ISA provides that for a transfer to an unborn person,
a prior interest for life has to be created in another person and the bequest
must comprise of whole of the remaining interest of the testator. In Sopher v.
Administrator-General of Bengal [AIR 1944 PC 67] a grandfather made the
bequest to his grandson who was yet to be born, by creating a prior interest in
his son and daughter in law. The Court upheld the transfer to an unborn
person and the Court held that since the vested interest was transferred when
the grandsons were born and only the enjoyment of possession was postponed
till they achieved the age of twenty one the transfer was held to be valid.

In Girish Dutt v. Datadin [AIR 1934 Oudh 35], the Will stated that the
property was to be transferred to a female descendant (who was unborn) only if
the person did not have any male descendant. The Court held that since the
transfer of property was dependent on the condition that there has to be no
male descendant, the transfer of interest was limited and not absolute and
thereby the transfer was void. For a transfer to an unborn person to be held
valid, absolute interest needs to be transferred and it cannot be a limited
interest.

2. Transfer made for perpetuity

S.114 of the ISA, 1925 provides that no bequest is valid whereby the vesting of
the thing bequeathed may be delayed beyond the lifetime of one or more
persons living at the testator’s death and the minority of some person who
shall be in existence at the expiration of that period, and to whom, if he attains
full age, the thing bequeathed is to belong.

The rule against perpetuity provides that the property cannot be tied for an
indefinite period. The property cannot be transferred in an unending way. The
rule is based on the considerations of public policy since property cannot be
made inalienable unless it is in the interest of the community. The rule against
perpetuity invalidates any bequest which delays vesting beyond the life or lives-
in-being and the minority of the donee who must be living at the close of the
last life. Hence property can be transferred to an unborn person who has to be
born at the expiration of the interest created and the maximum permissible
remoteness is of 18 years i.e the age of minority in India.
In Stanely v. Leigh [1732 -2 PWMS 686] it was laid down that for the rule of
perpetuity to be not applicable there has to be 1) a transfer 2) an interest in an
unborn person must be created 3) takes effect after the life time of one or more
persons and during his minority 4) unborn person should be in existence at
the expiration of the interest.

3. Transfer to a class some of whom may come under above rules

S.115 of ISA provides that if a bequest is made to a class of persons with

regard to some of whom it is inoperative by reasons of the fact that the person
is not in existence at the testator’s death or to create perpetuity, such bequest
shall be void in regard to those persons only and not in regard to the whole
class.

A number of persons are said to be a class when they can be designated by

some general name as grandchildren, children and nephews. In Pearks v.
Mosesley[(1880) 5 App Cas 714] defined gift to a class as a gift to all those who
shall come within a certain category or description defined by a general or
collective formula and who if they take at all are to take one divisible subject in
certain proportionate shares.

4. Transfer to take effect on failure of prior Transfer

S.116 of ISA provides that where by reason of any of the rules contained in
sections 113 and 114 and bequest in favour of a person of a class of persons is
void in regard to such person or the whole of such class, any bequest
contained in the same Will and intended to take effect after or upon failure of
such prior bequest is also void.

Muslim Law of Wills an Overview

Wills or Wasiyat

Wills or bequest[s] or Wasiyat derive their authority and sanctity from the
sacred texts of the Quran.

“It is prescribed to you when death approaches any one of you and that he is to
leave any wealth behind, he should bequeath equitably to his parents and
kindred.”

“And such of you as feel the approach of death and are to die and leave wives
behind shall bequeath for their wives a year’s maintenance without requiring
them to quit their homes.”
There are a number of precepts of the Prophet on this subject. The arguments
advanced by the learned doctors in support of this bequest are that there is an
indispensable necessity that man should have the power of making bequests
for, man from the delusion of his hopes, is improvident and deficient in
practice, but when mortal sickness invades him, he gets alarmed at that time;
therefore, he stands in need of compensateion for his deficiencies by means of
his property — and this in such manner that if he should die of the illness, his
object, namely, compensation for his deficiencies and merit in a future state,
may be obtained, but if he were to recover, the property will still be his.

Capacity to make a Will

The testator must be:

(i) In the full possession of his senses at the time. A will made by an insane
person is not valid. If he makes it at a time when he was in full senses but
again relapses to insanity and that condition lasts for at least six months, the
bequest will become invalid, otherwise not.

(ii) He must be of the age of majority.

(iii) He must not be indebted to an extent that his debt is equivalent in value to
his whole property.

(iv) He must not be acting under compulsion or under influence or in jest.

(v) He must be a free person.

Objects in whose favour a Will can be made

A bequest can be only to the extent of a third or 1/3rd of the testator’s property
but not to any further extent.

A bequest to any amount exceeding 1/3rd of the testator’s property is not valid.
In proof of this is the Hadith as reported by Abu Wakas: “In the year of the
Conquest of Mecca, being taken so seriously ill that my life was despaired of,
the Prophet of God came to pay me a visit of consolation. I told him that by the
blessing of God [I had] a great estate but no heir except a daughter, I wish[ed]
to know if I might dispose of it all by will. He replied, ‘No’ and when I went on
asking if I might bequest two-thirds or one-half’ he replied again in the
negative, but when I asked,”If I do so to the extent of one-third, he answered,
‘Yes, you can bequeath one-third of your property by will, and a third part to be
disposed of by will is a great portion; and it is better that you should leave your
heirs affluent than in a state of poverty which might oblige them to beg of
others.”In the case of heirs consenting to it, a bequest of more than one-third of
the property which by itself is not valid becomes valid. Whether the person in
whose favour the Will is made is an heir or not, must be determined not at the
time of the Will but after the testator’s death.

Where the Will is in favour of non-heirs or for a pious or charitable purpose, it

is valid and operative only in respect of one-third of the testator’s estate
without the assent of the heirs and in respect of more then one-third with their
consent.

Executor

The testator may appoint any person to carry out the directions of the testator.
He is called the executor. He may be a man or woman, a stranger, or a relative.
The appointment may be for a specific purpose or may be general. If a
testamentary disposition is invalid, the appointment of the executor would
remain valid so far as the guardianship of minor children and their education
are concerned. It is the duty of the executor to pay the funeral expenses, the
debts and the legacies, and to administer the estate generally.

Critical analysis of the difference between wills – Hindu law and Muslim
law-

1. Governing law-

Hindu law of wills is governed by ISA 1925. Which includes the form of wills,
formalities, capacity, subject matter of wills, and revocation to every other
related matter of wills in a codified manner. Whereas in Muslim law it is
governed by their personal law.

2. perpetuity –

A Hindu will cannot be made for a indefinite period or for time immemorial,
every Hindu will made under due process of law has to be of a definite period of
time. Whereas a Muslim can make a will for an indefinite period in the form of
wakfs or in the name of charity, using the usufructs for the benefit of his own
family.

3. Restriction on devolution of property –

Hindu law – A Hindu testator or specifically a coparcener has full rights of

giving out his entire property in the form of wills to any one of the legal heirs as
well as to any stranger.
Muslim law- Can only give out one third of his property to a stranger and rest
has to given to the family. No one can give out more than one third of his
property without the consent of his legal heirs.

4. Quantum of share

In Hindu law wife and mother gets an equal share. In Muslim law it’s done
according to the quantum of interest in the testamentary property provided in
Quran. It even includes property given to more than one wife.

Hindu law- Male heirs get an equal share as compared to females in a Hindu
joint family property. More precisely after 2005 amendment in the Hindu
succession act 1956 where daughters get an equal share as that of a son and
thus share equal rights and liabilities in a coparcenory system of Hindu joint
family.

Muslim law- Male heirs’ gets double the share as compared to the female heirs,
according to the amount provided for devolution of interest in the property.

5. Death Bed Gift -

In Hindu law the concept of “Marz Ul Maut” does not exist in hindu law.
Though a similar concept of death bed gifts happens to be in existence know as
“Donation Mortis Causa”.

Muslim law- The concept of “Marz Ul Maut” exists; it is form of death bed gift.
When person has real apprehension of death due to a particular illness he can
gift out 1/3rd property to any one of the family members or even a stranger.
Also know as gift of amphibious nature. Re beaumont [1902]

6. Formalities-

In Hindu law Sec-63 of the ISA 1925 provides for proper formalities to be
performed for formation of a valid will.

Muslim law- As for official formation of will there is no need of any particular
formalities but mere bonafide intention to make a will would suffice. Even
absence of signature of the testator would not affect the validity of the will.

Hindu law- Sec- 62 of the ISA 1925 deals with will which are revocable and
sec- 70 of the ISA 1925 deals with the method or the manner in which the will
has to be revoked.

Muslim law- There is no prescribed method of revocation of a will (during

lifetime) it can done by merely portraying the intention to revoke it.
7. Probate -

In a Hindu will the executor is bound to take out the probate to show his
authority to execute the will.

Muslim law- In a wassiyat the executor is not bound to show the probate for
executing a will.

8. History of law-

The concept of making a will or wassiyat was unknown to the original Hindu
law or the personal law of Hindus.

Muslim law- Making of a wassiyat is an age old process in Muslim law as it has
been described in Quran; moreover Hedaya contains a detailed description of
Muslim wills or wassiyat.

CASE LAWS

EXECUTION OF A WILL IS REQUIRED TO BE PROVED IN TERMS OF THE

PROVISIONS OF S. 63(C) OF THE SUCCESSION ACT, 1925

The Hon’ble Supreme court of India in Rur Singh (D) Th. LRS. & Ors. Vs
Bachan Kaur JUSTICE S.B. Sinha JUSTICE Dr. Mukundakam Sharma
New Delhi February 12, 2009, Succession Act, 1925 : S. 63(c) -
Execution of a Will is required to be proved in terms of the provisions of s. 63(c)
of the Succession Act, 1925 and s. 68 of the Evidence Act, 1872. The Will was
attested by nine independent persons. Three of them in fact had been
examined. The High Court while holding that a doubt is cast on its validity by
reason of active participation of one of the sons, failed to notice that nine other
independent witnesses attested the Will. Importance cannot be attached to the
fact that although the Sarpanch scribed the Will in Urdu, he at more than one
place signed in English. 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. If the Will was otherwise proved to be genuine and the statutory
requirements therefor were satisfied, 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.

WHEN ORIGINAL WILL WAS LOST WHETHER PRESUMPTION OF

REVOCATION OF WILL BE DRAWN

BENCH OF SUPREME COURT CONSISTING OF JUSTICE FAZAL ALI, SYED

MURTAZA SHINGAL, P.N. IN A CASE OF DURGA PRASAD VS DEVI CHARAN
REPORTED IN AIR 1979 SC 145, The correct legal position may be stated thus:

(i) Where a will has been properly executed and registered by the testator but
not found at the time of death the question whether the presumption that the
testator had revoked the will can be drawn or not will depend on the facts and
circumstances of each case. Even if such a presumption is drawn it is rather a
weak one in view of the habits and conditions of our people.

(ii) Such a presumption is a rebuttable one and can be rebutted by the slightest
possible evidence, direct or circumstantial. For instance, where it is proved that
a will was a strong and clear disposition evincing the categorical intention of
the testator and there was nothing to indicate the presence of any
circumstance which is likely to bring about a change in the intention of the
testator so as to revoke the will suddenly, the presumption is rebutted.

(iii) In view of the fact that in our country most of the people are not highly
educated and do not in every case take the care of depositing the will in the
bank or with the Solicitors or otherwise take very great care of the will as a
result of which the possibility of the will being stolen, lost or surreptitiously
removed by interested persons cannot be excluded, the presumption should be
applied carefully.

(iv) Where the legatee is able to prove the circumstances from which it can be
inferred that there could be absolutely no reason whatsoever for revoking the
will or that the Act of revoking the will was against the temperament and
inclination of the testator, no presumption of revocation of the will can be
drawn.

(v) In view of the express provision of section 70 of the Indian Succession Act
the onus lies on the objector to prove the various circumstances, viz., marriage,
burning, tearing or destruction of the will.
(vi) When there is no obvious reason or clear motive for the testator to revoke
the will and yet the will is not found on the death of the testator it may well be
that the will was misplaced or lost or was stolen by the interested persons.

DOUBTFULL CIRCUMSTANCES OF WILL

Adivekka & Ors. VS Hanamavva Kom Venkatesh 'D' By LRs. & Anr
BENCH: S.B. Sinha & Markandey Katju AIR 2007 SC 2025,

Will-Execution of-Testator executing Will in favour of his niece-Allegation of

suspicious circumstances-Sustainability of Will-Held: Testator's wife and
children unaware of the execution of the Will-Beneficiary too unaware and did
not know from where and how she obtained possession of the Will-Beneficiary
not examining herself which leads to drawal of adverse inference against her-
Also registration of Will before Sub-Registrar doubtful-Disposition made in Will
unfair, unnatural and improbable as no sane person for very cogent reasons
would disinherit his children-Thus, Will not genuine.

Allowing the appeals, the Court HELD:

The High Court was not correct in setting aside the judgment of the Trial Judge
that execution of Will has not been proved.

The subject matter of the Will was a piece of agricultural land. That was the
only agricultural land in possession of the testator. He was although owner of
four houses, according to the appellants, the same had not been generating
any income. Admittedly, the appellants, other than son of H were residing with
him. Therefore, it is difficult to believe that respondent no. 1 had been looking
after him or despite her marriage with respondent no. 2, she had been residing
in his house.

It may or may not be true that testator's son B had been residing separately,
but evidently he had been able to perform the marriage of only one of his
daughters and, thus, six other daughters were yet to be married. Assuming
that respondent No. 1 was brought up by him, she was married. Her husband
was affluent. He could afford to purchase the property in question. Thus, there
was apparent reason to execute a Will in her favour depriving his wife and
children.
There is no explanation as to why a Will had to be executed and registered
without the knowledge of his wife by H. There is nothing on record to show that
the testator had any special love or affection for respondent no. 1. Respondent
No. 1 did not examine herself. According to her, she was not even aware of the
execution of the Will. She came to know the same at a much later stage, i.e.,
after lapse of 10-12 months. How and on what basis she obtained the
possession of the original Will is not known. On what basis the Sub-Registrar
handed over possession of the Will to husband of Respondent No. 1 has not
been disclosed. Had she examined herself, she could have been accosted with
the said question. It could have been shown that H did not have any love and
affection for her. Non-examination of the party to the lis would lead to drawal of
an adverse inference against her.

Grave suspicion in regard to the execution of the Will arises as husband of

respondent No. 1 being her power of attorney holder spoke of an agreement for
sale. According to him, out of a total consideration of Rs. 58,000/- or Rs.
50,000/- as the case may be, a sum of Rs. 49,000 had already been paid. If
that be so, in ordinary course, he would have tendered the balance amount. He
could have filed a suit for specific performance. At least a notice in that behalf
could have been served. Therefore, husband of respondent No. 1, admittedly
had an eye over the property. Why only the agricultural land possessed by H
would be the subject matter of the Will, thus, has not been proved. Admittedly
he had been suffering from cancer. He died only two weeks after the execution
of the Will.

Submission of respondent no, 1 that they were in possession of the land in

question, cultivated the same for one year and thereafter sold the same, ex-
facie does not appear to be correct as the lands had been sold by her on
16.3.1989 whereas the testator died on 11.9.1988, i.e., within a period of six
months from the date of execution of the Will.

The disposition made in the Will is unfair, unnatural and improbable as no

sane person, save and except for very cogent reasons, would disinherit his
minor children. According to attesting witness he went with the testator at
about 4.30 p.m. on 25.8.1998 to Taluk Office. The Will is said to have been
first scribed by bond writer. The same thereafter was typed out by another
typist. It was brought back to the same bond writer. He had allegedly read over
the contents of the Will whereafter only H signed and thereafter the witnesses
put their signatures. The entire process must have taken about two hours.
How the Will could be registered on the same day, i.e., beyond the office hours
is again a matter which is beyond anybody's comprehension. Sub-Registrar did
not say that the Will was executed and registered before him.
WILL LIKE ANY OTHER DOCUMENT IS TO BE PROVED IN TERMS OF THE
PROVISIONS OF THE ACT

Savithri & Ors VS Karthyayani Amma & Ors BENCH: S.B. Sinha & Harjit
Singh Bedi J AIR 2008 SC 300

Dismissing the appeal, the Court HELD:

The legal requirement in terms of section 63 of the Indian Succession Act, 1925
and section 68 of the Evidence Act, 1872 is that a Will like any other document
is to be proved in terms of the provisions of the Act. The onus of proving the
Will is on the propounder. The testamentary capacity of the testator must also
be established. Execution of the Will by the testator has to be proved. At least
one attesting witness is required to be examined for the purpose of proving 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 he was in sound
disposing state of mind and understood the nature and effect of the
disposition. It is also required to be established that he has signed the Will in
the presence of two witnesses who attested his signature in his presence or in
the presence of each other. Only when there exist suspicious circumstances,
the onus would be on the applicant to explain them to the satisfaction of the
court before it can be accepted as genuine.

The submission that if both KN and SN were to bequeath their entire right, title
and interest in the properties in favour of the respondents 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 of the respondents. The parties
are governed by Marumakkattayam School of Hindu 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, 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 of the Will. He could change his mind; he did not. The very fact that
he did not take any step for cancellation of the Will is itself a factor which the
Court may take into consideration for the purpose of upholding the same. The
question as to whether the Registrar 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 it may be noticed that the witness
examined on behalf of the 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 of SN, 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.

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. The witnesses 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 of the Evidence Act, 1872.

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
of mind and understood the nature and effect of disposition, the onus stands
discharged. For this purpose the background fact of the attending
circumstances may also be taken into consideration.

The circumstances relevant for determining the existence of the suspicious

circumstances are (i) when a doubt is created in regard to the condition of
mind of the testator despite his signature on the Will; (ii) when the disposition
appears to be unnatural or wholly unfair in the light of the relevant
circumstances; (iii) where propounder himself takes prominent part in the
execution of Will which confers on him substantial benefit. In the fact situation
obtaining herein no such suspicious circumstance was existing. The court
must satisfy its conscience before its genuineness is accepted. Therefore, a
rational approach is necessary.

Deprivation of a due share by the natural heirs itself is 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. If
in that situation, if he executed a Will in their favour, no exception thereto can
be taken. Even then, something was left for the appellant.

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 of the free will. He had executed the Will after knowing and
understanding the contents thereof.

HINDU RIGHT TO MAKE WILL OF UNDIVIDED CO-PARCENARY PROPERTY

THE HONBLE JUSTICE S. NAYAK AND THE HONBLE JUSTICE MANJULA

CHELLUR of Karnataka High Court in the case of Smt. Radhamma And
Ors. vs H.N. Muddukrishna And Ors. Reported in AIR 2006 Kant 68, 2006
(1) KarLJ 176 …. Prior to coming into force of the Hindu Succession Act, no
coparcener could dispose of whole or any portion of his undivided coparcenary
interest by Will. Now, by virtue of Section 30 of the Act, read with Explanation,
a coparcener derives a right to dispose of his undivided share in Mitakshara
joint family property by "Will" or any testamentary disposition, i.e., by virtue of
law. Again, the Court has to see whether a coparcener was divided from the
joint family prior to the execution of the Will and other circumstances. In other
words, the facts and circumstances of each case would also have bearing on
this aspect. …….. Prior to Hindu Succession Act coming into force, a
coparcener was not entitled to either gift or Will his interest in the coparcenary
property. That ban or embargo is removed so far as Will is concerned. His
disability to gift away his undivided interest in the coparcenary property
continues to remain the same even after the codification of Hindu Law, Only a
small portion of the joint family property can be gifted off by manager of the
family for "pios purpose". …………. Section 30 makes it clear that a Hindu
testator may dispose of any property which is capable of being disposed of by
him by Will or other testamentary disposition in accordance with Indian
Succession Act of 1925. The Explanation again clarifies that it is only in
respect of interest of a male Hindu in Mitakshara joint family property.
The disability prevailed till coming into force of Section 30 of the Act is removed
so far as Will is concerned. …………… Having regard to the fact that one of the
cardinal principles of construction of Will is to the extent that it is legally
possible, effect should be given to every disposition contained in the Will unless
the law prevents effect being given to it, ……..

The law relating to the capacity or the right of a Hindu to execute a Will his
share of property in the coparcenary property has seen a sea change
subsequent to coming into force of Hindu Succession Act of 1956. Section
4(1)(a) and (b) of the Act is of relevance, which reads as under:

4. (1) Save as otherwise expressly provided in this Act.--

(a) any text, rule or interpretation of Hindu Law or any custom or usage as part
of that law in force immediately before the commencement of this Act shall
cease to have effect with respect to any matter for which provision is made in
this Act;

(b) any other law in force immediately before the commencement of this Act
shall cease to apply to Hindus insofar as it is inconsistent with any of the
provisions contained in this Act.

46. By reading Section 4(1)(a) and (b), it is very clear if there is any express
provision in the codified law, it is the duty of the Court to look into the said
provision. In other words, it alone shall govern the rights of the parties though
there is radical alteration or modification from the previous law. If no provision
is made in the 'Act', the old law shall be applicable. Therefore, one has to
necessarily look into whether any provision in the Act, either specifically or by
necessary implication empowers or enables a Hindu to Will away his share in
the coparcenary property.

47. After coming into effect of Hindu Succession Act of 1956, it is the duty of
the Court to see the circumstances and the law prevailing on the date of the
death of the testator in order to put a seal of validity and genuineness to the
disputed Will. Section 30 of the Hindu Succession Act, 1956 reads as under:

Section 30. Testamentary succession.-Any Hindu may dispose of by Will or

other testamentary disposition any property, which is capable of being so
disposed of by him, in accordance with the provisions of the Indian Succession
Act, 1925 (39 of 1925) or any other law for the time being in force and
applicable to Hindus.

Explanation.--The interest of a male Hindu in Mitakshara coparcenary property

or the interest of a member of a tarwad, tavazhi, illom, kutumba or kavaru in
the property of the tarwad, tavazhi, illom, kutumba or kavani shall,
notwithstanding anything contained in this Act or in any other law for the time
being in force, be deemed to be property capable of being disposed of by him or
by her within the meaning of this Sub-sections.

Valliammai Achi vs Nagappa Chettiar & Ors 1967 AIR 1153, 1967 SCR (2)
448 A father in a Mitakshara family has a very limited right to make a will and
Pallaniappa's father could not make the will disposing of the entire joint family
property, though he gave the residue to his son. We are therefore of
opinion,that merely because Pallanappa's father made the will and Pallaniappa
probably as a dutiful son took out probate and carried out the wishes of his
father, the nature of the property could not change and it will be joint family
property in the hands of Pallaniappa so far as his male issues are concerned.
Further it is equally well settled that under the Mitakshara law each son upon
his birth takes an interest equal to that of his father in ancestral property,
whether it be movable or immovable. It is very important to note that the right
which the son takes at his birth in the ancestral property is wholly
independent of his father. He does not claim through the father...." (see Mulla's
Hindu Law, Thirteenth Edition, p. 251, para 224). It follows therefore that the
character of the property did not change in this case because of the will of
Pallaniappa's father and it would still be joint family property in the hands of
Pallaniappa so far as his male issue was concerned. Further as soon as the
respondent was adopted he acquired interest in the joint family property in the
hands of Pallaniappa and this interest of his was independent of his father
Pallaniappa. In such circumstances even if Pallaniappa could be said to have
made an election there can be no question of the respondent being bound by
that election, for he is not claiming through his father.

THE TECHNICALITY OF LAW CANNOT BE OVERLOOKED IN CASE OF WILL

ATTESTATION AND ITS PROOF. 2001 SC

N. KAMALAM (DEAD) AND ANOTHER vs AYYASAMY AND ANOTHER, AIR

2001 SC 2802. The relevant paragraphs-28 and 32 read as under: "Para 28 : It
is on this count that the learned Advocate in support of the appeal very
strongly contended that there is existing a responsibility on to the law Courts
to deal with the matter having due regard to the concept of justice.
Technicalities. It has been contended there may be many - but would that sub-
serve the ends of justice; one needs to ponder over the same. Justice oriented
approach cannot be decried in the present day society as opposed to strict
rigours of law; Law Courts existence is dependant upon the present day social
approach and thus cannot and ought not to be administered on sheer
technicalities. The discussion of the law as above, definitely make us ponder
over the legal aspects once more since the tenor of the observations contained
therein obviously looked into being in favour of the technicality rather a justice
oriented approach and in that perspective let us now have review of the whole
situation on the factual context. Masaney Gowder executed a Will said to have
been written by one Arunachalam and attested by Subbaiah and Govindaraju.
The two attesting witnesses were not called to give evidence against them - why
it has not been done? The explanation has been that both the attesting
witnesses were inimical towards appellants and as such there was a refusal on
their part to come to Court and prove the document - how far however the
same is an acceptable evidence; We Will have to examine; but before so doing
the factum of non-availability of the attesting witnesses cannot be discarded
and if so, what would be its consequences. The application for additional
evidence as dealt with herein before, was made after a lapse of about 10 years
after the appeal was filed and the learned judges though it fit to reject such a
prayer and we also do lend out concurrence thereof without taking any
exception - but then what is the effect? we have thus existing on record a
document said to be a Will of one Masaney gowder whose signatures stand
accepted and two attesting witnesses though named in the body of the
document were not made available but the writer of the will or the scribe came
forward and deposed as to the state of affairs on the date of signing of the will,
it would be convenient thus to note the evidence of the scribe and see for
ourselves as to whether even a justice oriented approach would be able to save
the will in the absence of the attesting witnesses. Arunachalam stated in his
examination in Chief as below: "I have written Ex.A.1 `THE WILL', I have
written the WILL EX. A1 for the Sake of Masane Gowder. The said Masane
Gowder has been introduced to me by the Advocate G.M. Nathan who was
formerly have. During the execution of the WILL, Advocate G.M. Nathan was
residing at Thomas Street.At that time Masane Gowder was residing at the
same place after one house of Advocate's home. Before the preparation of the
`WILL' I had been to his house and discussed with him about the details and
he has stated the details. At that time Masane Gowder Mental and Physical
status were found good. After writing the Ex.A.1 the Will, I have read out the
same to him, and he had stated that all were correct. Then in my presence
Masane Gowder had affixed his thumb impression in each page. The affixing of
thumb impression by Masane Gowder in Ex.A1 WILL had been witnessed by
attestor Subbaiah,Govindaraju and myself.The signing of signature for witness
by us, was eye witnessed by Masane Gowder. After the Ex.A1 Will had been
prepared and signed I handed over the `WILL' to Masane Gowder". Para - 32 :
While it is true that Arunachalam, in the facts of the matter under
consideration did write the Will and has also signed it but it is of utmost
requirement that the document ought to be signed by the witnesses in order to
have the statutory requirement fulfilled. Arunachalam has signed the
document as a scribe not as a witness, if there were no signatures available as
witness, probably we would have to specifically deal with such a situation and
to consider that aspect of the matter but presently in the facts situation of the
matter under consideration, we have the advantage of two attesting witnesses,
none of whom have been examined and the factum of their non-availability also
does not satisfactorily been proved. The requirement of the statute when
Arunachalam himself has specifically identified himself as Writer and not as a
witness though in his evidence, he tried to improve the situation, but this
improvement however, cannot said to be accepted. The Will thus fails to have
its full impact and its effect stands out to be non est."

RAJAMMAL vs CHINNATHAL, AIR 1976 MADRAS, AIR 1976 MADRAS 4. In

this case it was held that once the execution of the Will is denied by the alleged
executant the document cannot be admitted in evidence, unless one attesting
witness atleast has been called for proving the execution of the document, if
alive, and subject to the process of the Court. In that case there was no
evidence to show that the attesting witnesses were not alive and none of them
were examined. Therefore, the requirement of Section 68 of the Indian Evidence
Act has not been complied with and as such the Will could not be used in
evidence.

CHINNA NARASIMHALU vs KURUBARA BASAPPA AND ANOTHER, 1983(1)

KAR.L.J. 183. In this case it is held as under: "A witness to be an attesting
witness need not be labelled as an attesting witness. The place at which the
signature or thumb impression of a witness is subscribed to the document is
not a determining factor for holding that a witness is or is not an attesting
witness. What is required to be seen is as to whether the evidence of the
witness reveals that he has signed the document in the presence of the
executant after seeing execution of the document or that he has signed the
document after receiving the person acknowledgement from the executant as
regards the execution of the document." In the case of documents which are
not compulsorily registerable, the Sub-Registrar or other identifying witnesses
can be regarded as attesting witnesses, if their evidence is in Conformity with
the law relating to attestation. Where the lower Court held that the will was
not valid on the ground that the witness had not signed at the place intended
to be signed by attesting witnesses and therefore he cannot be considered to be
an attesting witness, without considering the evidence of the witnesses, and
therefore the legatee could not be brought on record as L.R. of the deceased
party, the Judgment suffers from a serious infirmity and the order of the Court
under Order 22 Rule 4 and 5 of CPC is revisable."

WILL IS INTERFERENCE OF NORMAL SUCCESSION – NATURAL HEIRS

ARE DEPRIVED IN CASE OF WILL IS USUAL 1995 SC

RABINDRA NATH MUKHERJEE AND ANOTHER vs PANCHANAN BANERJEE

(DEAD) BY LRS. AND OTHERS, . AIR 1995 SC 1684, 1995 SCC (4) 459 In
this case their Lordships have held as under: "The circumstances of
deprivation of natural heirs should not raise any suspicion because the whole
idea behind execution of will is to interefere with the normal line of succession.
So natural heirs would be debarred in every case of will. Of course, it may be
that in some cases they are fully debarred and in others only partially. As in
the present case, the two executors are sons of a half-blood brother of the
testatrix whereas the objectors descendants of a full blood sister, the
disinheritance of the latter could not have been taken as a suspicious
circumstance, when some of her descendants are even beneficiaries under the
Will. The identification by the lawyer could have been regarded as a suspicious
circumstances if a wrong person would have been identified as the testatrix.
That, however, is not the case of the objectors. So, there is no bane in this
circumstance. The third circumstance can not also be said to be suspicious.
Witnesses in such documents verify whether the same had been executed
voluntarily by the person concerned knowing its contents. In case where a will
is registered and the Sub-Registrar certifies that the same had been read over
to the executor who, on doing so, admitted the contents, the fact that the
witnesses to the document are interested loses significance. The documents at
hand were registered and it is on record that the Sub-Registrar had explained
the contents to the old lady. Objection as regards `ubiquitous', cannot be there
if there be other circumstances on record to show the voluntary character of
the document. Such circumstances were present in this case. Taking total view
of the circumstances, which has to be the approach, it must be held that the
Courts below overplayed some circumstances which they regarded as
suspicious and somehow missed some circumstances which bolstered the case
of the propounders."

1980 (1) Kar. L.J. 89 (GANAPATSA GOVINDASA AND OTHERS vs

NINGAPPA RAMAPPA AND OTHERS. In this case relevant paragraph 17 reads
as under: "17. On the validity of the Will, it seems to us, that it would be
proper not to express any opinion in this case. A finding on that question
appears to be uncalled for. Even if the Will is valid, the plaintiff's suit cannot be
thrown out. Ext.P.1. gives him the right to proceed against the legatee. If the
Will is not valid, the plaintiff could proceed against the legal representatives of
Masabi. The fate of the suit does not depend upon the genuineness of the Will,
the investigation of which is therefore, uncalled for in this proceedings. We may
however, observe that the Trial Court was not justified in holding that the will
was not justified in holding that the Will was not proved merely on the ground
that the attestors to the deed did not support it. "An attesting witness who
denies attestation may be contradicted by other evidence and the Court is
competent to disregard the testimony of the attesting witnesses and pronounce
in favour of the Will if it is satisfied from the evidence collectively of from the
circumstances of the case that the requirements of law have been complied
with and the witnesses who had spoken against the will had not spoken the
truth." Vide Kedar Nath vs Rajkumar (1) We may also make it clear that the
proof of a Will is not a matter of mere dispute between contending parties as in
ordinary actions. It is a matter which falls for satisfaction of the judicial
conscience of the Court. If a Will is surrounded by any suspicious
circumstances as it is in the present case, it is always for the propounder to
satisfy the Court by removing such suspicions by cogent and satisfactory
evidence. We leave it at that for any aggrieved party to challenge it in an
appropriate proceeding and we are told already under consideration in a suit as
between some of the legal representatives of Masabi."

REGISTRAR OF DEEDS IS NOT AN ATTESTING WITNESS 2004 SC

Bhagat Ram And Anr. vs Suresh And Ors. AIR 2004 SC 436, The Registrar
of Deeds who had registered a document in discharge of his statutory duty,
does not become an attesting witness to the deed solely on account of his
having discharged the statutory duties relating to the registration of a
document. Registration of any will, and the endorsements made by the
Registrar of Deeds in discharge of his statutory duties do not elevate him to the
status of a 'statutory attesting witness'. However, a registrar can be treated as
having attested to a will if his signature or mark appears on the document akin
to the one placed by an attesting witness and he has seen the testator sign or
affix his mark to the will or codicil or has received from the testator a personal
acknowledgement of his signature or mark and he has also signed in the
presence of the testator. In other words, to be an attesting witness, the
registrar should have attested the signature of the testator in the manner
contemplated by Clause (c) of Section 63 of the Succession Act. No particular
form of attestation is provided. It will all depend on the facts and
circumstances of a case by reference to which it will have to be answered if the
registrar of deeds fulfils the character of an attesting witness also by looking at
the manner in which the events have actually taken place at the time of
registration and the part played therein by the Registrar. .. A Registrar of Deeds
before he be termed an attesting witness, shall have to be called in the witness
box. The court must feel satisfied by his testimony that what he did satisfies
the requirement of being an attesting witness. ….. Registration of a document
does not dispense with the need of proving the execution and attestation of a
document which is required by law to be proved in one manner as provided in
Section 68 of the Evidence Act. Under Section 68 of the Registration Act the
Registrar shall endorse the following particulars on every document admitted to
registration:

(1) the date, hour and place of presentation of the document for registration;

(2) the signature and addition of every person admitting the execution of the
document, and, if such execution has been admitted by the representative,
assign of agent of any person, the signature and addition of such
representative, assign or agent;

(3) the signature and addition of every person examined in reference to such
document under any of the provisions of this Act, and

(4) any payment of money or delivery of goods made in the presence of the
registering officer in reference to the execution of the document, and any
admission of receipt of consideration, in whole or in part, made in his presence
in reference to such execution.

Such particulars as are referred to in Sections 52 and 58 of the Registration

Act are required to be endorsed by Registrar alongwith his signature and date
on document under Section 59 and then certified under Section 60. A
presumption by reference to Section 114 (Illustration (e)) of the Evidence Act
shall arise to the effect that the events containing in the endorsement of
registration, were regularly and duly performed and are correctly recorded.
None of the endorsements, require to be made by the Registrar of Deeds under
the Registration Act, contemplates the factum of attestation within the meaning
of Section 63(c) of the Succession Act or Section 68 of the Evidence Act being
endorsed or certified by the Registrar of Deeds. The endorsements made at the
time of registration are relevant to the matters of the registration only (See:
Kunwar Surendra Bhadur Singh and Ors. v. Thakur Behari Singh and Ors., .
On account of registration of a document, including a will or codicil, a
presumption as to correctness or regularity of attestation cannot be drawn.
Where in the facts and circumstances of a given case the Registrar of Deeds
satisfies the requirement of an attesting witness, he must be called in the
witness box to depose to the attestation. His evidence would be liable to be
appreciated and evaluated like the testimony of any other attesting witness.

BURDEN OF PROOF IN CASE OF WILL AND ITS CIRCUMSTANCES 1977 SC

SETH BENI CHAND vs SMT. KAMLA KUNWAR AND OTHERS AIR 1977 SC
63, 1977 SCR (1) 578, The mere description of a signatory to a testamentary
document as an attesting witness cannot take the place of evidence showing
due execution of the document. An attesting witness is one who signs the
document in the presence of the executant after seeing the execution of the
document or after receiving a personal acknowledgment from the executant as
regards the execution of the document. ….. The onus probandi lies in every
case upon the party propounding a will, and he must satisfy the conscience of
the Court that the instrument so propounded is the last will of a free and
capable testator. Where the circumstances surrounding the execution of the
will are shrouded in suspi- cion, it is the duty and function of the propounder
to remove that suspicion by leading satisfactory evidence, and by offering an
explanation of auspicious circumstances which can satisfy a prudent mind.

IF ATTESTING WITNESS DENIES OR DOES NOT RECOLLECT EXECUTION

IT CAN BE PROVED BY OTHER EVIDENCE 2003 SC

Janki Narayan Bhoir v. Narayan Namdeo Kadam, AIR 2003 SC 761, [(2003)
2 SCC 91] laid down the law on interpretation and application of Section 71 of
the Act in the following terms: "11. Section 71 of the Evidence Act is in the
nature of a safeguard to the mandatory provisions of Section 68 of the
Evidence Act, to meet a situation where it is not possible to prove the execution
of the will by calling the attesting witnesses, though alive. This section provides
that if an attesting witness denies or does not recollect the execution of the will,
its execution may be proved by other evidence. Aid of Section 71 can be taken
only when the attesting witnesses, who have been called, deny or fail to
recollect the execution of the document to prove it by other evidence. Section
71 has no application to a case where one attesting witness, who alone had
been summoned, has failed to prove the execution of the will and other
attesting witnesses though are available to prove the execution of the same, for
reasons best known, have not been summoned before the court. It is clear from
the language of Section 71 that if an attesting witness denies or does not
recollect execution of the document, its execution may be proved by other
evidence. However, in a case where an attesting witness examined fails to prove
the due execution of will as required under clause ( c ) of Section 63 of the
Succession Act, it cannot be said that the will is proved as per Section 68 of the
Evidence Act. It cannot be said that if one attesting witness denies or does not
recollect the execution of the document, the execution of will can be proved by
other evidence dispensing with the evidence of other attesting witnesses though
available to be examined to prove the execution of the will"
Section 71 of the Evidence Act is in the nature of a safeguard to the mandatory
provisions of Section 68, Evidence Act, to meet a situation where it is not
possible to prove the execution of the will by calling attesting witnesses, though
alive. This Section provides that if an attesting witness denies or does not
recollect the execution of the will, its execution may be proved by other
evidence. Aid of Section 71 can be taken only when the attesting witnesses,
who have been called, deny or fail to recollect the execution of the document to
prove it by other evidence. Section 71 has no application to a case where one
attesting witness, who alone had been summoned, has failed to prove the
execution of the will and other attesting witnesses though are available to prove
the execution of the same, for the reasons best known, have not been
summoned before the court. It is clear from the language of Section 71 that if
an attesting witness denies or does not recollect execution of the document, its
execution may be proved by other evidence.

However, in a case where an attesting witness examined fails to prove the due
execution of will as required under clause (c) of Section 63 of the Succession
Act, it cannot be said that the Will is proved as per Section 68 of the Evidence
Act. It cannot be said that if one attesting witness denies or does not
recollect the execution of the document, the execution of will can be proved by
other evidence dispensing with the evidence of other attesting witnesses though
available to be examined to prove the execution of the will. Yet, another reason
as to why other available attesting witnesses should be called when the one
attesting witness examined fails to prove due execution of the Will is to avert
the claim of drawing adverse inference under Section 114 illustration (g) of
Evidence Act. Placing the best possible evidence, in the given circumstances,
before the Court for consideration, is one of the cardinal principles of Indian
Evidence Act. Section 71 is permissive and an enabling Section permitting a
party to lead other evidence in certain circumstances. But Section 68 is not
merely an enabling Section. It lays down the necessary requirements,
which the Court has to observe before holding that a document is
proved. Section 71 is meant to lend assistance and come to the rescue of a
party who had done his best, but driven to a state of helplessness and
impossibility cannot be let down without any other means of proving due
execution by "other evidence" as well. At the same time Section 71 cannot be
read so as to absolve a party of his obligation under Section 68 read with
Section 63 of the Act and liberally allow him, at his will or choice to make
available or not a necessary witness otherwise available and amenable to the
jurisdiction of the court concerned and confer a premium upon his omission or
lapse, to enable him to give a go bye to the mandate of law relating to proof of
execution of a will.
 Turning to the facts of the case on hand, it is evident that only one
attesting witness Prabhakar Sinkar, examined in the case, did not prove the
execution of the Will inasmuch as he did not prove the attestation of the Will by
the other attesting witness Wagle who though available was not examined. The
scribe examined in the case was not an attesting witness, which is clear from
the evidence on record and as rightly conceded so by learned counsel for the
respondent before us. Hence, it is unnecessary to go into the question whether
the scribe in this case could or could not be an attesting witness. The evidence
of Sinkar, the only attesting witness, does not satisfy the mandatory
requirements of Section 68 of the Evidence Act. We are not in a position to
accept the contention urged on behalf of the respondent that the evidence of
other witnesses, namely, that of the respondent and the scribe could be
considered under Section 71 of the Evidence Act. Section 71 has no
application when the one attesting witness, who alone has been summoned,
has failed to prove the execution of the will and other attesting witness though
available has not been examined. When the document is not proved as
mandatorily required under Section 68 of the Evidence Act, the provision of
Section 71 of the Evidence Act, which is permissive, and enabling in certain
circumstances as discussed above does not help the respondent. In Vishnu
Ramkrishna & Ors. v. Nathu Vithal & Ors. [(AIR) 1949 Bom. 266], Chagla, C.J.,
speaking for the Division Bench in similar circumstances has stated that
although Section 63 of the Succession Act requires that a will has to be
attested by two witnesses, Section 68 of the Evidence Act permits the execution
of the will to be proved by only one attesting witness being called. Where the
attesting witness, who is called to prove the execution, is not in a position to
prove the attestation of the will by the second witness, the evidence of the
witness called falls short to the mandatory requirements of Section 68. Section
71 of the Evidence Act can only be requisitioned when the attesting witnesses
who have been called failed to prove the execution of the will by reason of either
denying their own signatures or denying the signature of the testator or having
no recollection as to the execution of the document. This Section has no
application when one attesting witness has failed to prove the execution of the
will and other attesting witnesses were available who could prove the execution
if they were called.

WHEN THE ORIGINAL WILL IS LOST – LOSS OF ORIGINAL TO BE

PROVED 2007 SC

Benga Behera & Anr vs Braja Kishore Nanda & Ors (AIR 2007 SC 1975), A
document upon which a title is based is required to be proved by primary
evidence, and secondary evidence may be given under Section 65(c) of the
Evidence Act. Loss of the original, therefore, was required to be proved. In a
case of this nature, it was obligatory on the part of the first respondent to
establish the loss of the original Will, beyond all reasonable doubt. His
testimony in that behalf remained uncorroborated. Furthermore, secondary
evidence, could be led by production of a certified copy given in terms of the
provisions of the Indian Registration Act. In support of the proof of the Will,
purported Xerox copy and a certified copy thereof have been produced. In the
Xerox copy, an endorsement has been made by an advocate that the executant
was his client and it was written by his clerk in his office on his dictation,
whereas in the certified copy there is no such endorsement of the advocate. A
question has also been raised as to whether a certificate by Sub-Registrar at
the time of registration proves attestation. A Sub-Registrar in the matter of
registration of a document acts under the provisions of the Registration Act,
1908. S.52 of the 1908 Act prescribes the duty of Registering Officer when
document is presented in terms thereof. The signature of every person
presenting a document for registration is required to be endorsed on every such
document at the time of presentation. If an authority in performance of a
statutory duty signs a document, he does not become an attesting witness
within the meaning of s.3 of the Transfer of Property Act and s.63 of the
Succession Act. "Animus attestandi" is a necessary ingredient for proving the
attestation. If a person puts his signature in a document only in discharge of
his statutory duty, he may not be treated to be an attesting witness.

A question has also been raised as to whether a certificate by Sub-Registrar at

the time of registration proves attestation. A Sub-Registrar in the matter of
registration of a document acts under the provisions of the Registration Act,
1908 (1908 Act). Section 52 of the 1908 Act prescribes the duty of Registering
Officer when document is presented in terms thereof. The signature of every
person presenting a document for registration is required to be endorsed on
every such document at the time of presentation. Section 58 prescribes the
particulars to be endorsed on documents admitted to registration, such as :

"(a) Signature of the person admitting the execution of the document;

(b) Any money or delivery of goods made in presence of Registering Officer in

reference to the execution of the document shall be endorsed by the Registering
Officer in the document presented for Registration.

Therefore this is the only duty cast on the Registering authority to endorse on
the will, i.e. to endorse only the admission or execution by the person who
presented the document for registration. The compliance of this provision leads
to the legal presumption that the document was registered and nothing else.."

If an authority in performance of a statutory duty signs a document, he does

not become an attesting witness within the meaning of Section 3 of the
Transfer of Property Act and Section 63 of the Succession Act. The term
`attestation' means: "to `attest' is to bear witness to a fact. The essential
conditions of valid attestation are (i) two or more witnesses have seen the
executant sign the instrument (ii) each of them has signed the instrument in
presence of the executant.

"Animus attestandi" is a necessary ingredient for proving the attestation. If a

person puts his signature in a document only in discharge of his statutory
duty, he may not be treated to be an attesting witness. ….. The said witness
did not know the testatrix personally. Even her parentage was not asked for
and inquired into. He was examined eight years after the registration. It is
difficult for any ordinary person after a period of eight years, inter alia, on the
basis of a certified copy to depose in regard to evidence of such nature,
particularly, in a case where a Will has been executed on the day on which she
had executed a deed of sale in favour of a complete stranger. His evidence,
therefore, does not inspire confidence. In any event he cannot be said to have
proved due execution or attestation of the Will.

It is now well settled that requirement of the proof of execution of a Will is the
same as in case of certain other documents, for example Gift or Mortgage. The
law requires that the proof of execution of a Will has to be attested at least by
two witnesses. At least one attesting witness has to be examined to prove
execution and attestation of the Will. Further, it is to be proved that the
executant had signed and/or given his thumb impression in presence of at
least two attesting witnesses and the attesting witnesses had put their
signatures in presence of the executant.

WHEN THE WILL CAN BE DOUBTED

Joseph Antony Lazarus (Dead) by LRs v. A.J. Francis [(2006) 9 SCC

515] in which the Apex Court has held that non-mention in the Will about
other sons of testatrix while bequeathing the entire property to two sons alone
and suspicious circumstances of execution of the Will like old age, indifferent
health of testatrix, existence of two different signatures of testatrix on each
page of the Will, registration of the Will after one year, non- examination of
advocate who had drafted the Will and Sub- Registrar before whom Will was
presented for registration makes genuineness of the Will doubtful.

Honourable Supreme Court Niranjan Umeshchandra v. Mrudula Jyoti Rao

and Ors, AIR 2007 SC 614, in which it has been held by the Apex Court that
execution of Will while the testator was admitted in ICU of hospital and other
circumstances make genuineness of execution of the Will suspicious.

Court in H. Venkatachala Iyengar vs B.N. Thimmajamma and others (AIR

1959 SC 443), wherein the following circumstances were held to be relevant
for determination of the existence of the suspicious circumstances :

(i) When a doubt is created in regard to the condition of mind of the testator
despite his signature on the Will;

(ii) When the disposition appears to be unnatural or wholly unfair in the light of
the relevant circumstances;

(iii) Where propounder himself takes prominent part in the execution of Will
which confers on him substantial benefit.

Honourable Supreme Court Niranjan Umeshchandra v. Mrudula Jyoti Rao

and Ors, AIR 2007 SC 614, wherein it is held as follows: There are several
circumstances which would have been held to be described by the Supreme
Court as suspicious circumstances. These circumstances are (i) When a doubt
is created in regard to the condition of mind of the testator his signature on the
Will; (ii) When the disposition appears to be unnatural or wholly unfair in the
light of the relevant circumstances; (iii) Where propounder himself takes
prominent part in the execution of Will which confers on him substantial
benefit.

In Ramabai Padmakar Patil (Dead) though L.Rs. and Others v. Rukminibai

Vishnu Vekhande and Others [(2003) 8 SCC 537], Court held : 8. A Will is
executed to alter the mode of succession and by the very nature of things it is
bound to result in either reducing or depriving the share of a natural heir. If a
person intends his property to pass to his natural heirs, there is no necessity
at all of executing a Will. It is true that a propounder of the Will has to remove
all 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 itself without anything 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 Others v.
Sumangala T. Pai (Mrs.) and Another - 2002 (1) SCC 630].

MODE OF PROVING WILL

Savithri & Ors vs Karthyayani Amma & Ors (2007) 11 SCC 621] A Will like
any other document is to be proved in terms of the provisions of the Indian
Succession Act and the Indian Evidence Act. The onus of proving the Will is on
the propounder. The testamentary capacity of the propounder must also be
established. Execution of the Will by the testator has to be proved. At least one
attesting witness is required to be examined for the purpose of proving 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 he was in sound
disposing state of mind and understood the nature and effect of the
disposition. It is also required to be established that he has signed the Will in
the presence of two witnesses who attested his signature in his presence or in
the presence of each 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.

In Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao & Ors. [2006 (14)
SCALE 186], Court held : Section 63 of the Indian Evidence Act lays down the
mode and manner in which the execution of an unprivileged Will is to be
proved. Section 68 postulates the mode and manner in which proof of
execution of document is required by law to be attested. It in unequivocal
terms states that execution of Will must be proved at least by one attesting
witness, if an attesting witness is alive subject to the process of the court and
capable of giving 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, proof of execution of any other document under the
Act would not be sufficient as in terms of Section 68 of the Indian Evidence
Act, execution must be proved at least by one of the attesting witnesses. While
making attestation, there must be an animus attestandi, on the part of the
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 of his own free will having a sound
disposition of mind and understood the nature and effect thereof. If sufficient
evidence in this behalf is brought on record, the onus of the propounder may
be held to have been discharged. But, the onus would be on the applicant to
remove the suspicion by leading sufficient and cogent evidence if there exists
any. In the case of proof of Will, a signature of a testator alone would not prove
the execution thereof, if his mind may appear to be very feeble and debilitated.
However, if a 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, proof of a Will does not ordinarily differ from that
of proving any other document.

Gurdial Kaur and Others v. Kartar Kaur and Others [(1998) 4 SCC 384],
wherein it was held : 4. The law is well settled that the conscience of the 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 of the free volition of the
executant who had voluntarily executed the same after knowing and
understanding the contents of the 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 of the
case, the court of appeal below did not accept the valid execution of the Will by
indicating reasons and coming to a specific finding that suspicion had not been
dispelled to the satisfaction of the Court and such finding of the court of appeal
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.

Honourable Supreme Court Janki Narayan Bhoir v. Narayan Namdeo

Kadam, (2003) 2 SCC 91, at Page 102, wherein the Honourable Supreme
Court has held that 'although Will is required to be attested by two witnesses,
it could be proved by examining one of the attesting witnesses as per Section
68 of the Indian Evidence Act and further, one attesting witness examined
should be in a position to prove an execution of the Will and as per Section 71
of the Indian Evidence Act, if an attesting witness denies or does not recollect
execution of the document, its execution may be proved by other evidence and
moreover, this Section has no application when one attesting witness has failed
to prove the execution of the Will and other attesting witnesses were available
who could prove the execution if they were called.'
Court in Mst. Karmi Vs. Amru reported in AIR 1971 SC 745, a widow who
succeeds to the property of her deceased husband on the strength of his will,
cannot claim any right other than those conferred by the will. Thus life estate
given to her under a will cannot become an absolute estate under the
provisions of Section 14 (2) of the Hindu Succession Act, 1956.

In Navneet Lal Vs Gokul and others reported in 1976 (1) SCC 630, a bench
of three judges of this court was concerned with an almost identical situation,
wherein a life estate was created by the testator in favour of his wife. After
going through the will, this Court held that it was permissible for the testator
to create a limited estate in favour of his wife by making a will.

S.B. Itigi and anr vs Sulochana and ors ILR 2007 Kar 247 wherein
Karnataka High court has observed that, non signing on the first page of the
Will creates doubt, in normal course the signature of the testator will be upon
all the pages.

The Apex Court in a judgment reported in 2008 AIR SCW 5666 in the
matter of Baljinder Singh vs. Rattan Singh has held, the Will executed and
registered not at place where testator usually visited or resided. The attesting
witness not known to testator, and Will does not make any reference to the real
son of the testator creates a Will as suspicious.

In Shivdev Kaur (D) by L.Rs. & Ors. v. R.S. Grewal (Civil Appeal
Nos.5063-5065 of 2005, decided on 20.3.2013), Court dealt with the issue
of Section 14(2) of the Act 1956 and held :- “Thus, in view of the above, the law
on the issue can be summarised to the effect that if a Hindu female has been
given only a “life interest”, through Will or gift or any other document referred
to in Section 14 of the Act 1956, the said rights would not stand crystallised
into the absolute ownership as interpreting the provisions to the effect that she
would acquire absolute ownership/title into the property by virtue of the
provisions of Section 14(1) of the Act 1956, the provisions of Sections 14(2) and
30 of the Act 1956 would become otios. Section 14(2) carves out an exception
to rule provided in sub-section (1) thereof, which clearly provides that if a
property has been acquired by a Hindu female by a Will or gift, giving her only
a “life interest”, it would remain the same even after commencement of the Act
1956, and such a Hindu female cannot acquire absolute title.”

WILL UNDER SUSPICIOUS CIRCUMSTANCES

THE HON'BLE MR. JUSTICE N. KUMAR AND THE HON'BLE MR. JUSTICE
H. S. KEMPANNA of Karnataka High Court in the case of Smt Sulochana
Manvi vs Chitriki Shivayogappa Decided on 8 August, 2012

It is well settled that if the persons who would get the property of the testator
by inheritance are deprived of the said property by a Will and no reasons are
coming forward to explain this disinheritance, that itself constitutes a
suspicious circumstance. Then again a duty is cast on the propounder of the
Will to remove the said suspicious circumstance. In the Will all that has been
said is, testator has performed the marriages of his daughter and the plaintiff
and none of them are living with him. He has given them gold ornaments and
stree dhana; he does not want any dispute after his death in respect of his
share in the joint family property and therefore he is making the Will.
Absolutely no material is placed on record by the propounder of the Will to
show what is that stree dhana given to the plaintiff and to the other daughters.
In so far as gold ornaments are concerned, it is customary in a Hindu family
especially when people are coming from a fairly affluent rich family as that of
the parties to the proceedings, daughters are given these gold ornaments. That
cannot be construed as a share in a joint family property. If any property is
given as stree dhana out of the joint family property, probably that would be a
sufficient ground to deny a share in the joint family property. Though there is a
reference to stree dhana in the Will, absolutely no evidence is place on record.
On the contrary, the evidence on record discloses, not an inch in the joint
family property is given to the plaintiff in particular and to the daughters of the
deceased testator. If no stree dhana property out of the joint family property is
given and if no reasons are given for denying the daughters of the family and
the plaintiff who is a son's daughter, that itself constitutes a suspicious
circumstance, which compels the propounder to give satisfactory explanation
to discharge the said suspicious circumstance. No evidence is coming forward
in this direction. If really the testator wanted to exclusively give his share in the
joint family property to his two sons and he had no intention of giving any such
property to his daughters or to the plaintiff who is none other than a son's
daughter and he bequeathed his undivided share under Ex.D.3, three years
thereafter he has effected a partition of the joint family property by way of a
Registered Partition Deed- Ex.P.2 dated 05.08.1959. In the said registered
partition deed there is no reference to this Will-Ex.D.3. The recitals in the said
partition deed makes it clear in order to prevent any disputes arising in future
and consequently the family getting into difficulties, the parties, i.e., the
testator and his two sons, decided that it is proper to live separately. Therefore
they effected partition of all the joint family properties under Ex.P.2; the gold
and silver utensils and other household articles were distributed, then the
immovable properties were divided into three shares, i.e., A, B & C. 'A' share
was allotted to the share of the testator; 'B' and 'C' shares were allotted to the
share of the defendant nos. 1 and 2. Full description of the properties were
given. On the day the partition deed was executed the testator Totappa was not
in a position to affix his signature due to a paralytic stroke and therefore he
put his left hand thumb impression, it is on 05.08.1959. He died on
15.03.1960. It is in this context, it is necessary to find out when did this
paralytic stroke occurred, because as the Will was executed on 26.07.1956 it is
necessary to find out whether the testator was in a sound state of mind. Even
in the absence of any specific contention, a propounder in order to succeed in a
Court of law in proving the Will owes a duty to establish to the satisfaction of
the Court that the testator was in a sound state of mind and that he executed
the Will out of his own free Will. The Apex Court in the aforesaid judgment has
held that the condition of the testator's mind may appear to be very feeble and
debilitated and therefore when the disposition made in the Will is unnatural,
improbable or unfair and when the Will indicates that the said disposition may
not be the result of the testator's free Will and mind, the presence of such
suspicious circumstances naturally tends to make initial onus very heavy and
unless it is satisfactorily discharged, Courts should be reluctant to treat the
document as the last Will of the testator. The propounder has to show by
satisfactory evidence that the Will was signed by the testator and the testator
at the relevant time was in a sound and disposing state of mind, that he
understood the nature and effect of the disposition and put his signature to the
document out of his own free will. In this background when admittedly in 1959
the testator had a paralytic stroke and immediately thereafter he died the Will
having come into existence about three years prior to the partition deed, unless
the propounder of the Will by satisfactory evidence satisfy the Court that the
testator was in a sound state of mind on the date of execution of the Will; the
Will cannot be said to have proved in accordance with law. If the Will is validly
executed and inspite of the Will if a partition deed has come into existence in
the year 1959 and in 1960 when the testator died, by virtue of the Will these
two brothers would get equal share in the separate property of the testator. The
evidence of DW1 shows he was also aware of the Will, he was an Advocate by
profession, his senior is the attesting witness to the said Will. Strangely no
effort is made to approach the District Registrar with a request to open the Will
and furnish them a copy of the Will. By virtue of the bequest defendant nos. 1
and 2 got substantial immovable properties on the death of their father. By
virtue of the Will, when they are claiming these properties, it was incumbent
upon them to approach the Revenue Authorities for effecting mutation entries
on the basis of the Will. The evidence on record do not disclose any such
attempt made on the part of the defendant nos. 1 and 2. The mutation entries
effected are not based on the Will. Therefore yet another suspicion arises in the
mind of the Court, whether there was a Will as propounded by the defendants;
whether it was deposited with the District Registrar; even if it is deposited why
the testator gave a go bye to the Will and executed a Registered Gift Deed
claiming 1/3 share in the joint family property under the Partition Deed and
why the defendant nos. 1 and 2 after the death of the testator did not make use
of this Will to claim right to his separate property and get the mutation entries
made in their favour in terms of the Will. Absolutely no evidence is forthcoming
to explain these suspicious circumstances.

Supreme Court in the case of Chiranjilal Shrilal Goenka

(deceased) Through LRs v. Jasjit Singh and others, (1993) 2 SCC 507,
wherein it has been held that the Succession Act is a self-contained code
insofar as the question of making an application for probate, grant or refusal of
probate or an appeal carried against the decision of the probate court. The
probate proceedings shall be conducted by the probate court in the manner
prescribed in the Act and in no other way. The only issue in a probate
proceeding relates to the genuineness and due execution of the will and the
court itself is under duty to determine. The probate court does no more than
establish the factum of the will and the legal character of the executor. It does
not decide any question of title or of the existence of the property itself.

Supreme Court in the case of Balbir Singh Wasu v. Lakhbir Singh and
others, (2005) 12 SCC 503, wherein the court had, while dealing with the
contention that section 213 of the Succession Act which requires an executor
to obtain probate before establishing his claim under the will was not
applicable outside the Presidency Towns of Calcutta, Madras and Bombay,
observed that assuming the said contention to be correct, section 213 does not
prohibit the executor from applying for probate as a matter or prudence or
convenience to the courts in other parts of the country not covered by section
213. It was submitted that in the light of the aforesaid decisions, it was
incumbent upon the plaintiffs to first obtain probate or letters of
administration in respect of the will failing which, the civil court could not have
granted any relief on the basis of the will to the plaintiff. It was, accordingly,
urged that the appeal does give rise to substantial questions of law, as
proposed or as may be otherwise deemed fit by this Court and as such deserves
to be admitted.
Supreme Court in the case of Clarence Pais and others v. Union of India,
AIR 2001 SC 1151, (2001) 4 SCC 325 had occasion to deal with Section 213.
Laying down the scheme of operation of Sub-section (2) of Section 213 of the
1925 Act, the Apex Court observed at para 6 as follows: "The effect of Section
213(2) of the Act is that the requirement of probate or other representation
mentioned in Sub-section (1) for the purpose of establishing the right as an
executor or legatee in a Court is made inapplicable in case of Will made by
Mohammedans and in the case of Wills coming under Section 57(c) of the Act.
Section 57(c) of the Act applies to all Wills and codicils made by any Hindu,
Buddhist, Sikh or Jaina, or after the First day of January, 1927 which does not
relate to any immovable property situate within the territory formerly subject to
the Lieutenant-Governor of Bengal or within the local limits of the ordinary civil
jurisdiction of the High Courts of Judicature at Madras and Bombay, or in
respect of property within those territories......... .... ..... ..... A combined reading
of Sections 213 and 57 of the Act would show that where the parties to the Will
are Hindus or the properties in dispute are not in territories falling under
Section 57 (a) and (b), Sub-section (2) of Section 213 of the Act applies and
Sub-section (1) has no application. As a consequence, a probate will not be
required to be obtained by a Hindu in respect of a Will made outside those
territories or regarding the immovable properties situate outside those
territories ".

Court in Mrs. Hem Nolini Judah v. Mrs. Isolyne Sarojbashini Bose,

AIR (1962) SC 1471, held as follows : "The words of S.213 are not restricted
only to those cases where the claim is made by a person directly claiming as a
legatee. The section does not say that no person can claim as a legatee or as an
executor unless he obtains probate or letters of administration of the will under
which he claims. What it says is that no right as an executor or legatee can be
established in any Court of Justice, unless probate or letters of administration
have been obtained of the will under which the right is claimed, and therefore,
it is immaterial who wishes to establish the right as a legatee or an executor.
Whosoever wishes to establish that right whether it be a legatee or an executor
himself on somebody else who might find it necessary in order to establish his
right to establish the right of some legatee or executor from whom he might
have derived title, he cannot do so unless the will under which the right as a
legatee or executor is claimed has resulted in the grant of a probate or letters of
administration."
In Cherichi v.Ittianam & others [AIR 2001 Kerala 184], it has been held
that the prohibition under section 213 of Indian Succession Act is regarding
establishing any right under the will without probate and that section cannot
be understood as one by which the vesting of right as per the provisions of the
will is postponed until the obtaining of probate or letters of administration. The
will takes effect on the death of the testator and what section 213 says is that
the right as executor or legatee can be established in any Court only if probate
is obtained. Therefore, section 213(1) does not prohibit the use of will which is
unprobated as evidence for purposes other than establishment of right as
executor or legatee. Therefore, the requirement of obtaining probate becomes
relevant at the time when the establishment of right as executor or legatee is
sought to be made on the basis of a will in a court of justice.

In Sheonath Singh v. Madanlal reported in [AIR 1959 Raj. 243], it was held
that Section 213 does not vest any right. It only regulates the procedure of
proving a will. It is distinct from section 211. It lays down a rule of procedure
and not of any substantive right.

G.V. Raju vs Smt. L.K. Gowramma 2004 (2) KarLJ 317 The respondent is
an Hindu and the Will made by her father is in respect of property which is
situate outside the territorial limits of the ordinary civil jurisdiction of the High
Courts of Judicature at Madras and Bombay and, therefore, the probate will
not be required to be obtained by her in respect of a Will made in her favour.

Court in Ishwardeo Narain Singh v. Smt. Kamta Devi & Ors. [AIR 1954 SC
980] wherein, inter alia, it was held : The Court of Probate is only concerned
with the question as to whether the document put forward as the last will and
testament of a deceased person was duly executed and attested in accordance
with law and whether at the time of such execution the testator had sound
disposing mind. The question whether a particular bequest is good or bad is
not within the purview of the probate Court.

Basanti Devi vs Raviprakash Ramprasad Jaiswal AIR 2008 SC 295 It is now

well settled that an application for grant of probate is a proceeding in rem. A
probate when granted not only binds all the parties before the Court but also
binds all other persons in all proceedings arising out of the Will or claims
under or connected therewith. Being a judgment in rem, a person, who is
aggrieved thereby and having had no knowledge about the proceedings and
proper citations having not been made, is entitled to file an application for
revocation of probate on such grounds as may be available to him. We are,
therefore, of the opinion that the application for revocation of the grant of
probate should have been entertained.

In the case of H. Venkatachala Iyengar v. B.N. Thimmajamma, [1959 Supp

(1) SCR 426] Gajendragadkar J. stated the true legal position in the
matter of proof of Wills. The aforesaid statement of law was further
clarified by Chandrachud J. in the case of Jaswant Kaur v Amrit Kaur
[(1977) 1 SCC 369] as follows:

1. Stated generally, a will has to be proved like any other document, the test to
be applied being the usual test of the satisfaction of the prudent mind in such
matters. As in the case of proof of other documents, so in the case of proof of
wills, one cannot insist on proof with mathematical certainty.

2. Since Section 63 of the Succession Act requires a will to be attested, it

cannot be used as evidence until, as required by Section 68 of the Evidence
Act, one attesting witness at least has been called for the purpose of proving its
execution, if there be an attesting witness alive, and subject to the process of
the court and capable of giving evidence.

3. Unlike other documents, the will speaks from the death of the testator and
therefore the maker of the will is never available for deposing as to the
circumstances in which the will came to be executed. This aspect introduces
an element of solemnity in the decision of the question whether the document
propounded is proved to be the last will and testament of the testator.
Normally, the onus which lies on the propounder can be taken to be discharged
on proof of the essential facts which go into the making of the will.

4. Cases in which the execution of the will is surrounded by suspicious

circumstances stand on a different footing. A shaky signature, a feeble mind,
an unfair and unjust disposition of property, the propounder himself taking a
leading part in the making of the will under which he receives a substantial
benefit and such other circumstances raise suspicion about the execution of
the will. That suspicion cannot be removed by the mere assertion of the
propounder that the will bears the signature of the testator or that the testator
was in a sound and disposing state of mind and memory at the time when the
will was made, or that those like the wife and children of the testator who
would normally receive their due share in his estate were disinherited because
the testator might have had his own reasons for excluding them. The presence
of suspicious circumstances makes the initial onus heavier and therefore, in
cases where the circumstances attendant upon the execution of the will excite
the suspicion of the court, the propounder must remove all legitimate
suspicions before the document can be accepted as the last will of the testator.

5. It is in connection with wills, the execution of which is surrounded by

suspicious circumstances that the test of satisfaction of the judicial conscience
has been evolved. That test emphasises that in determining the question as to
whether an instrument produced before the court is the last will of the testator,
the court is called upon to decide a solemn question and by reason of
suspicious circumstances the court has to be satisfied fully that the will has
been validly executed by the testator.

6. If a caveator alleges fraud, undue influence, coercion etc. in regard to the

execution of the will, such pleas have to be proved by him, but even in the
absence of such pleas, the very circumstances surrounding the execution of
the will may raise a doubt as to whether the testator was acting of his own free
will. And then it is a part of the initial onus of the propounder to remove all
reasonable doubts in the matter."

(2008) 10 SCC 489 ( G. Gopal vs C. Baskar and others) It is well settled that
if a person who has even a slight interest in the estate of the testator is entitled
to file caveat and contest the grant of probate of the will of the testator.

Smt. Shobha Kshirsagar vs Smt. Janki Kshirsagar And Anr. AIR 1987 MP
145 Section 213 of the same Act provides that unless the Court of competent
jurisdiction has granted probate of the will under which the right is claimed, no
right as an executor or a legatee can be established, but the provisions do not
apply to all cases of wills made by any Hindu. True it is that this section shall
not apply to the will made in the instant case, but the provision of Section 216
is noteworthy because of its mandatory character. Although it is not obligatory
to obtain a probate in case of wills made by any Hindu, but when a probate is,
in fact, obtained, there can be no doubt that Section 216 shall become
operative immediately in such a case. Notice must also be taken of Section 217
which provides that grant of a probate is made only in accordance with the
provisions of Part IX of the said Act. The other provision to be noted is Section
227 which provides that when a probate of a Will is granted, then it renders
valid all intermediary acts of the executor as he may have done after the death
of the testator. Therefore, when under a Will any guardian is appointed and he
is appointed an executor of the Will, it will be a question of deciding his right
under the Will to deal with the property of the minor for whose guardianship of
person and property any application is made at any time. According to me,
therefore, when two different Wills, materially different in object and purpose,
are propounded in support of a claim for guardianship, it will be necessary to
obtain probate of any Will to prove the genuineness of the Will and of the right
that has accrued under the Will.

Chiranjilal Shrilal Goenka ... vs Jasjit Singh And Ors 1993 SCR (2) 454,
1993 SCC (2) 507 Court of Probate has the exclusive jurisdiction and a Civil
Court in the Original Side or Arbitrator even on consent of parties has no
jurisdiction to adjudicate upon the proof or validity of a Will propounded by the
executor since the Probate Court does not decide the question of title.
............. The grant of Probate by a Court of competent jurisdiction is in the
nature of a proceeding in rem. So long as the order remains in force it is
conclusive as to the due execution and validity of the will unless it is duly
revoked as per law. It binds not only upon all the parties made before the Court
but also upon all other persons in all proceedings arising out of the Will or
claims under or connected therewith. The decision of the Probate. Court,
therefore, is the judgment in rem. The probate granted by the competent court
is conclusive of the validity of the Will until it is revoked and no evidence can
be admitted to impeach it except in a proceeding taken for revoking the
probate. ............... The Probate Court has been conferred with exclusive
jurisdiction to grant probate of the Will of the deceased annexed to the petition
(suit); on grant or refusal thereof, it has to preserve the original will produced
before it. The grant of probate is final subject to appeal, if any, or revocation if
made in terms of the provision of the Succession Act It is a judgment in rem
and conclusive and binds not only the parties but also the entire world. The
award deprives the parties of statutory right of appeal provided under section
299. Thus the necessary conclusion is that the Probate Court alone has
exclusive jurisdiction and the Civil Court on original side or the Arbitrator does
not get jurisdiction, even if consented to by the parties, to adjudicate upon the
proof or validity of the Will propounded by the executrix, the appellant.

B. Manjunatha Prabhu And Ors. vs C.G. Srinivas And Ors. AIR 2005 Kant
136, ILR 2005 KAR 467, 2005 (4) KarLJ 85 Article 137 of the Limitation Act
would not apply to the proceedings filed for grant of probate or Letters of
Administration with or without the Will annexed. Before concluding, we must
point out that though the proceedings filed for grant of probate or Letters of
Administration may not come within the mischief of Article 137 of the
Limitation Act, 1963, yet the delay aspect is relevant to test the genuineness of
the Will propounded. Delay in taking steps gives rise to suspicion and the
longer the delay the stronger the suspicion.

Arokiamary vs Sampammal ILR 1990 KAR 3917, 1990 (2) KarLJ

379 Whereas the object of grant of Succession Certificate does not determine
any question of title or decide what property does or does not belong to the
estate of the deceased; it merely enables the party to whom a certificate is
granted to collect any debt or security belonging to the deceased. Thus the
object is to facilitate the collection of debt and/or debts and not to enable the
parties to litigate questions of disputed title. Section 383 of the Indian
Succession Act specifically provides that the certificate granted under Part X
may be revoked for any reasons falling under Clauses (a) to (e) in that Section.
Clause (e) specifically provides that a certificate granted under Part X may be
revoked if the decree or order made by a Competent Court in a suit or other
proceeding with respect to effects comprising debts or securities specified in
the certificate renders it proper that the certificate should be revoked.
Therefore, it is open to a party entitled to the estate of the deceased irrespective
of the fact that he has not been granted a succession certificate, to file a suit in
a Civil Court and establish his right to the estate of the deceased and in that
event, the succession certificate issued to any other person in respect of such
estate of the deceased will have to be revoked.

Smt. Indu Bala Bose & Ors. v. Manindra Chandra Bose & Anr. reported in
[AIR 1982 SC 133], it has been held that a circumstance would be
"suspicious" when it is abnormal or is not normally expected in a normal
situation or is not expected of a normal person.

Honourable Apex Court in Pentakota Satyanarayana v. Pentakota

Seetharatnam reported in (2005) 8 Supreme Court Cases 67 A perusal of
Ex.B9 (in original) would show that the signatures of the Registering Officer
and of the identifying witnesses affixed to the registration endorsement were, in
our opinion, sufficient attestation within the meaning of the Act. The
endorsement by the sub-registrar that the executant has acknowledged before
him execution did also amount to attestation. In the original document the
executants signature was taken by the sub-registrar. The signature and thumb
impression of the identifying witnesses were also taken in the document. After
all this, the sub-registrar signed the deed. ……………… It is true that
registration of the Will does not dispense with the need of proving, execution
and attestation of a document which is required by law to be proved in the
manner as provided in Section 68 of the Evidence Act. The Registrar has made
the following particulars on Ex.B9 which was admitted to registration, namely,
the date, hour and place of presentation of document for registration, the
signature of the person admitting the execution of the Will and the signature of
the identifying witnesses. The document also contains the signatures of the
attesting witnesses and the scribe. Such particulars are required to be
endorsed by the Registrar along with his signature and date of document. A
presumption by a reference to Section 114 of the Evidence Act shall arise to the
effect that particulars contained in the endorsement of registration were
regularly and duly performed and are correctly recorded. In our opinion, the
burden of proof to prove the Will has been duly and satisfactorily discharged by
the appellants. The onus is discharged by the propounder adducing prima facie
evidence proving the competence of the testator and execution of the Will in the
manner contemplated by law. In such circumstances, the onus shift to the
contestant opposing the Will to bring material on record meeting such prima
facie case in which event the onus shift back on the propounder to satisfy the
court affirmatively that the testator did know well the contents of the Will and
in sound disposing capacity executed the same. ……………..It is settled by a
catena of decisions that any and every circumstance is not a suspicious
circumstance. Even in a case where active participation and execution of the
Will by the propounders/beneficiaries was there, it has been held that that by
itself is not sufficient to create any doubt either about the testamentary
capacity or the genuineness of the Will. It has been held that the mere presence
of the beneficiary at the time of execution would not prove that the beneficiary
had taken prominent part in the execution of the Will. This is the view taken by
this Court in Sridevi & Ors vs. Jayaraja Shetty & Ors, (2005) 2 SCC 784. In the
said case, it has been held that the onus to prove the will is on the propounder
and in the absence of suspicious circumstances surrounding the execution of
the will proof of testamentary capacity and the proof of signature of the testator
as required by law not be sufficient to discharge the onus. In case, the person
attesting the Will alleges undue influence, fraud or coercion, the onus will be
on him to prove the same and that as to what suspicious circumstances which
have to be judged in the facts and circumstances of each particular case.
…………….The circumstances of depriving the natural heirs should not raise
any suspicion because the whole idea behind the execution of the will is to be
interfered in the normal line of succession and so natural heirs would be
debarred in every case of the Will. It may be that in some cases they are fully
debarred and some cases partly. This is the view taken by this Court in Uma
Devi Nambiar and Others vs. T.C.Sidhan (Dead) (2004) 2 SCC 321. ……………

Sunanda Kom Vittal Pai vs Mukund Srinivas Shanbhat ILR 1989 KAR
2676, 1989 (2) KarLJ 364 In our view it is only to cases to which Section
213(1) is attracted, no other Court except the District Court concerned would
have jurisdiction to decide the issue as to the validity of the will and to grant
probate or letter of administration. In such a case even if there was an earlier
suit claiming right or title to the property as a legatee under a will and it had
been decided by the Court in which the suit was filed or even in appeal, the
decision in such a suit, of the original Court or the first Appellate Court or even
the High Court in first or second appeal would not operate as resjudicata as in
such a case the Court before which the suit was instituted would have had no
jurisdiction to go into the genuineness or validity of the will. But if in a case to
which the bar created under Section 213(1) is not attracted if the party chooses
to file a suit claiming right or title to the property on the basis of a will and for
purposes of deciding such a suit it becomes necessary for the Court before
which the suit is filed to decide the question regarding the validity of the will
also and that question is decided, such a decision becomes final and binding
on the parties and thereafter if the same party chooses to file an application
under Section 276 of the Succession Act, the decision rendered' in the suit
would operate as resjudicata.

In Banarsi Dass vs. Teeku Dutta (Mrs) and another, (2005) 4 SCC 449 it
was held to the following effect:- " The main object of a succession certificate is
to facilitate collection of debts on succession and afford protection to the
parties paying debts to the representatives of deceased persons. All that the
succession certificate purports to do is to facilitate the collection of debts, to
regulate the administration of succession and to protect persons who deal with
the alleged representatives of the deceased persons. Such a certificate does not
give any general power of administration on the estate of the deceased. The
grant of a certificate does not establish title of the grantee as the heir of the
deceased. A succession certificate is intended as noted above to protect the
debtors, which means that where a debtor of a deceased person either
voluntarily pays his debt to a person holding a certificate under the Act, or is
compelled by the decree of a court to pay it to the person, he is lawfully
discharged. The grant of a certificate does not establish a title of the grantee as
the heir of the deceased, but only furnishes him with authority to collect his
debts and allows the debtor to make payments to him without incurring any
risk. In order to succeed in the succession application the applicant has to
adduce cogent and credible evidence in support of the application...."

HON'BLE MR. JUSTICE ARUN BHANSALI of Rajasthan High Court in the

case of Kaidar Nath & Ors vs Amar Nath & Ors Decided on 22 February,
2013 The legal position that under Section 57 of the Act probate is not
required to be obtained in the State of Rajasthan does not create a bar under
the said provision against instituting a proceeding before a Court of competent
jurisdiction seeking probate of a Will. Once the propounder of the Will, in his
discretion, files an application under Section 276 of the Act, seeking probate of
a Will, it is well within the jurisdiction of the Court to decide the probate
proceedings, which requires the Court to decide whether the Will is the last
Will of the deceased and whether the same was surrounded by suspicious
circumstances, if any.

THE HON'BLE MR.JUSTICE K.N.KESHAVANARAYANA of Karnataka High

Court in the case of Mrs Joyce Enet Ugare vs James J P Roche Decided on
19 June, 2012 Therefore, the learned District Judge is justified in rejecting the
contention raised with regard to the jurisdiction of the District Judge to grant
Probate. Therefore, the said finding recorded by learned District Judge is sound
and reasonable and is in accordance with law.

In Re: Gordon Frederic Muirhead ... vs Unknown AIR 1959 Kant 83, AIR
1959 Mys 83, (1958) 36 MysLJ The question which is referred to us for
decision is whether or not this Court has jurisdiction to grant probate and/or
letters of administration in respect of an estate, the whole of which is within
the State of Mysore. The answer to this question, from whatever point of view it
may be considered, can only be in the affirmative. …………… The highest civil
court of appeal in the State of Mysore was Originally the chief court which
subsequently came to be named as the "High Court." In the year 1914 the State
of Mysore passed a Regulation being Regulation VI of 1914 to provide for the
grant of probates of Wills and letters of administration to the estates of
deceased persons. ………….. Section 51 of the said Regulation provides that
the District Judge shall have jurisdiction in granting and revoking probates
and letters of administration in all cases within his District Section 85 of the
said Regulation reads as follows:-- "The High Court shall have concurrent
jurisdiction with the District Judge in the exercise of all the powers hereby
conferred upon the District Judge." ………… Therefore, under the law as it
stood prior to the date when the new Succession Act (Act XXXIX of 1925) came
into force in the State of Mysore, the High Court had the same jurisdiction as
the District Judge in granting probates and letters of administration. ……………

In P.H. Alphonso v. Dr. C.F. DeCosta and Ors., (AIR 1964 Mysore 187), a
Bench of this Court held that revocation of the grant of the probate cannot be
made retrospectively and the order of revocation must take effect from the date
of application made for the purpose. At page 190, it was observed thus : "...The
executor is competent to enter into contracts on behalf of the estate and
possesses power to dispose of the property of the deceased vested in him in
such manner as he thinks fit. We have also referred to the liability of the
executor to be sued by a person interested in the property and intending to
avoid the alienations made by him. The contracts entered into and the
alienations made by an administrator are valid until they are set aside by a
competent Court at the instance of person is interested in the property. A
retrospective revocation is not therefore contemplated by law. Any order of
revocation passed under Section 263 of the Act must take effect from the date
of the application made for the purpose."