SWARNALATHA & ORS. versus KALAVATHY & ORS. on 30 March 2022

[2022] 1 S.C.R. 847

SWARNALATHA & ORS.

v.

KALAVATHY & ORS.

(Civil Appeal No. 1565 of 2022)

MARCH 30, 2022

[HEMANT GUPTA AND V. RAMASUBRAMANIAN, JJ.]

Will – Suspicious circumstances surrounding execution of theWill – Plea of – Tenability – Two separate Wills left behind by amarried couple (testators) – Both spouses executed a Will each –Appellants are the successors-in-interest of the pre-deceased elder/ first son of the testators – Respondent no.1 and.2 are respectivelythe daughter and other / second son of the testators – District Courtrejected allegations of respondents about suspicious circumstancessurrounding the Wills and granted probate of both the Wills in favourof the appellants – High Court reversed judgment of District ProbateCourt citing various suspicious circumstances including that therewas total exclusion of Respondent no.1-daughter from the bequests– On appeal, held: The exclusion of one of the natural heirs fromthe bequest, cannot by itself be a ground to hold that there aresuspicious circumstances – In the matter of appreciating thegenuineness of execution of a Will, there is no place for the Courtto see whether the distribution made by the testator was fair andequitable to all of his children – Court does not apply Art. 14 of theConstitution to dispositions under a Will – While reversing thejudgment of District Probate Court, the High Court recorded certainsuspicious circumstances, but each such circumstance, neitherindividually nor collectively creates a suspicion – High Courtcompletely overlooked all the above aspects and proceeded to inventreasons to justify a conclusion that seems to have preceded the lineof reasoning – Judgment of the District Court, granting probate ofboth the Wills, restored – Constitution of India, 1950 – Art. 14.

Allowing the appeal, the Court

HELD:1. While reversing the Judgment of the ProbateCourt, the High Court recorded certain suspicious circumstances,but each such circumstance, neither individually nor collectively

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Acreates a suspicion. The High Court completely overlooked allthe above aspects and proceeded to invent reasons to justify aconclusion that seems to have preceded the line of reasoning.[Paras 16, 17 and 18][852-F; 854-C, F]

2. Once it is found that the father not only attested theBmother’s Will (Exhibit P-1) and once it is found that in his ownWill (Exhibit P-2), which is a registered Will, the father had madea mention about the mother’s Will, all the suspiciouscircumstances sought to be projected would automatically fall tothe ground. [Para 20][854-H; 855-A]

C3. When it was not even the case of the respondents thatthe testators were not in a sound and disposing state of mind, theHigh Court found fault with the appellants for not disclosing thenature of the ailments suffered by them. The exclusion of one ofthe natural heirs from the bequest, cannot by itself be a groundto hold that there are suspicious circumstances. The reasonsDgiven in Exhibit P-1 are more than convincing to show that theexclusion of the daughter has happened in a very natural way. IfExhibit P-1 (Will) had been fabricated on blank papers containingthe signatures of the mother, there would have been no occasionfor the father to make a mention in his own Will (ExhibitEP-2) about the execution of the Will by the mother. [Para 21][855-A-C]

4. It is not known how the High Court held the delay on thepart of the appellants in seeking probate of the Wills to be asuspicious circumstance. Exhibit P-1 was executed on 30.01.1995and the testatrix died on 14.08.1995. The father was alive tillF08.08.2000. Therefore, there was no necessity for the appellantsto seek probate of the said Will. After the death of MannarReddiar [testator-father] on 08.08.2000, the appellants obviouslyhad no support, due to the fact that the first son of the testatorsV.M. Chandrasekaran (husband of appellant No.1 and father ofGappellant Nos.2 and 3) had pre-deceased the father MannarReddiar, he having died in October-1999. The occasion for theappellants to seek probate of the Will arose only when therespondents filed the suit for partition in O.S. No.387 of 2005.Therefore, there was actually no delay on the part of the appellantsHin seeking probate. [Paras 22, 23][855-C-F]

5. The High Court made a mountain out of a molehill, byreading too much into the lack of knowledge on the part ofappellant No.1 about the time of registration of Exhibit P-2 (Will)and the minor contradictions between her statement as PW-1and the statements of PWs 4 and 5. The adverse inference soughtto be drawn by the High Court about the failure of the testatorMannar Reddiar to ensure the presence of the daughter and thesecond daughter-inlaw at the time of execution of Exhibit P-2,has no basis in law. [Para 24][855-F-H]

6. The law relating to suspicious circumstances surroundingthe execution of a Will is already well-settled. Cases in which asuspicion is created are essentially those where either thesignature of the testator is disputed or the mental capacity of thetestator is questioned. In the matter of appreciating thegenuineness of execution of a Will, there is no place for the Courtto see whether the distribution made by the testator was fair andequitable to all of his children. The Court does not apply Article14 to dispositions under a Will. [Para 25][855-H; 856-B-C]

7. It is not difficult for an objective mind to understand thereasons behind the daughter and the second son of the testatorscoming together. Under both the Wills Exhibit P-1 and P-2, theproperties have been equally distributed between the two sons.The first son V.M. Chandrasekaran is now no more. Admittedlyrespondent no.1’s daughter has been given in marriage to V.M.Sivakumar-respondent no.2 (second son of testator). Therefore,if the bequest under the two Wills go, V.M. Sivakumar’s familymay eventually receive 2/3rd share of the properties, which ismore beneficial for V.M. Sivakumar than getting half share underthe Wills. The High Court completely overlooked thisaspect and started analyzing the Wills with suspicion.[Para 26][856-D-E]

8. The impugned judgment of the High Court is set asideand the Judgment of the District Court, granting probate of boththe Wills, is restored. [Para 27][856-F]

Kavita Kanwar vs. Mrs. Pamela Mehta and Ors. AIR2020 SC 544 : H. Venkatachala Iyengar vs. B.N.Thimmajamma, AIR 1959 SC 443 : [1959] 1 Suppl. SCR426 – referred to.

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ACase Law Reference

AIR 2020 2614

Para 25referred toPara 25referred to

[1959] 1 Suppl. SCR 426

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1565Bof 2022.

From the Judgment and Order dated 20.12.2018 of the High Courtof Judicature at Madras in C.M.A. No. 2906 of 2010.

V. Prabhakar, Ms. Jyoti Parasher, S. Rajappa, Advs. for theAppellants.C

Jayanth Muthraj, Sr. Adv., Deivasigamani Saravanan, Mrs.Malavika Jayanth, Advs. for the Respondents.

The Judgment of the Court was delivered by

V. RAMASUBRAMANIAN

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1. The probate granted by the District Court in respect of two lastWills and Testaments, one by the father and another by the mother,having been set aside by the High Court in an appeal under Section 384of the Indian Succession Act, 1925 (hereinafter referred to as “the Act”),one set of legatees claiming under the Will have come up with the aboveEappeal.

We have heard Mr. V. Prabhakar, learned counsel for theappellants and Mr. Jayanth Muthraj, learned senior counsel appearingfor the respondents.

3. The couple, Mannar Reddiar and Adhilakshmiammal had twoFsons by name V.M. Chandrasekaran and V.M. Sivakumar and a daughterby name Kalavathy.

4. The mother Adhilakshmiammal died on 14.08.1995. She leftbehind a Will dated 30.01.1995, bequeathing the properties purchasedby her and the properties which she got from her maternal uncle, inGfavour of her two sons. The daughter Kalavathy was not given anyshare, on the ground that she had already been provided sufficiently.

5. The father Mannar Reddiar died on 08.08.2000. He left behinda Will dated 10.12.1998 bequeathing his properties in favour of his twosons and his grandchildren. The daughter Kalavathy was not allottedHany property even under this Will, but the Will contained reasons.

6. The eldest son V.M. Chandrasekaran died subsequently inOctober, 1999, leaving behind him surviving, his wife Swarnalatha andtwo sons by name C. Karthikeyan and C. Rishikesan, who are theappellants herein.

7. Thereafter, the daughter Kalavathy and the surviving son V.M.Sivakumar (of the testators) filed a suit for partition in O.S. No.387 of2005 on the file of the District Munsiff Court, Poonamallee. Upon comingto know of the same, the appellants herein who are the wife and sons ofthe eldest son V.M. Chandrasekaran filed a petition in probate O.P No.1of 2005 on the file of the Principal District Judge, Vellore, under Sections270, 276 and 289 of the Act for the grant of probate of the Wills ofMannar Reddiar and Adhilakshmiammal. The petition was hotly contestedby the daughter and other son of the testators. However, by a judgmentdated 7.06.2010, the District Court granted probate of both the Willsnamely the Will dated 30.01.1995 executed by the motherAdhilakshmiammal and the Will dated 10.12.1998 executed by the fatherMannar Reddiar.

8. Challenging the judgment of the Probate Court, the daughterand the other son of the testators (respondents 1 and 2 herein) filed anappeal under Section 384 of the Act on the file of the High Court ofJudicature at Madras. The said appeal was allowed by the High Courtby the impugned judgment on the ground that there are suspiciouscircumstances surrounding the execution of both the Wills. Therefore,aggrieved by the said judgment, the legatees are on appeal before us.

9. The claim of the appellants before the Probate Court was thatthe parents executed their last Will and Testament, in a sound anddisposing state of mind and that those Wills were executed in the mannerprescribed by law. To establish the execution of the Will of the motherAdhilakshmiammal, in terms of Section 68 of the Indian Evidence Act,1872, the appellants examined Mr. S. Rajasekaran as PW-2. He wasone of the attestors of the Will. The other attestor of the Will was noneelse than the father Mannar Reddiar. One Mr. B. Nithyanandham, thescribe of the Will of the Mother was also examined as PW-3.

10. One Mr. M. Dakshinamurthy, who was one of the attestors ofthe Will of the father Mannar Reddiar, was examined as PW-4 and thescribe of the said Will by name Mr. V. Sivaram, was examined as PW-5.

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A11. While the Will executed by the mother Adhilakshmiammalwas an unregistered Will, the Will executed by the father Mannar Reddiarwas a registered Will. Both these Wills were marked as Exhibits P-1and P-2 respectively. The death certificates of the testators were markedas Exhibits P-3 and P-4 and the copy of the plaint in the partition suitfiled by the respondents was marked as Exhibit P-5.B

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12. The daughter Kalavathy (Respondent No.1) examined herselfas RW-1 and the other brother Shri V.M. Sivakumar (Respondent No.2)examined himself as RW-2. No documents were marked on the side ofthe respondents.C13. The respondents contested the probate proceedings on the

13. The respondents contested the probate proceedings on theground that their parents never executed any Will and that the elder sonV.M. Chandrasekaran played a fraud by taking signatures of the motheron blank papers and fabricating the same into a Will and that in any casethe testators had no right to dispose of the properties by way of a Will.

D14. Before the Probate Court, the respondents focused theirattention on the so-called suspicious circumstances surrounding both theWills. Though the respondents also raised a contention that the testatorshad no right to dispose of those properties by way of a Will, the ProbateCourt rejected the same outright on the ground that the scope ofjurisdiction of the Probate Court was not to decide disputed questions ofEtitle to any property.

15. Insofar as the allegations of suspicious circumstances areconcerned, the Probate Court was not convinced that the circumstanceshighlighted by the respondents raised any suspicion. Therefore, the courtof original jurisdiction ordered the grant of probate.F

16. While reversing the Judgment of the Probate Court, the HighCourt recorded the following findings:

(i) Adhilakshmiammal, the testatrix of the unregistered Will(Exhibit P-1) dated 30.01.1995 was said to be sufferingfrom ailments, prior to the execution of the Will. The ailmentsGcould be physical or mental and while physical ailmentcannot be a ground to question the veracity of the Will,mental ailment will certainly be a ground. The non-furnishingof the particulars of the ailments suffered by the testatrixAdhilakshmiammal created a doubt; H

(ii) The failure of the legatees to probate the Will of the motherAdhilakshmiammal during the life time of the father MannarReddiar is a suspicious circumstance; A

(iii) According to PW-1, the Will executed by the father MannarReddiar, marked as Exhibit P-2 was written during nighthours of 10.12.1998 but according to the evidence of PWsB4 and 5 (one of the attestors and the scribe) the Will waswritten at 7:00 a.m. and was registered at 3:00 p.m. on10.12.1998. The contradiction between the statement ofPW-1 and the statements of PWs 4 and 5 in this regardcreated suspicion.

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(iv) The ignorance of PW-1 about the date and time ofregistration of the Will of the father was one morecircumstance that created a suspicion.

(v) The failure of the father to ensure the presence of thedaughter and the second daughter-in-law during theexecution of both the Wills is one more circumstancecreating a suspicion.

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(vi) The presence of the first appellant herein at the time ofexecution of both the Wills, despite the appellant No.1 beinga direct beneficiary, is also a circumstance to be taken noticeof.

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(vii) Exhibit P-1 (Will) executed by the mother runs to six pages.The signature of the testatrix is found exactly at the samelocation in pages 4 and 6. The super-imposition of pages 4and 6 shows that the signature of the testatrix had beentaken in Exhibit P-1 (Will) at the same place.

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(viii) The line space in the first part of Exhibit P-1 (Will) is morethan the line space in other parts of the Will. There is somedifference in the style of writing in the first two pages fromthe writing in the last two pages of the Will. The signaturesof the attestors of and the scribe are found within a smallspace. The signature of Mannar Reddiar as an attestingwitness to Exhibit P-1 (Will) is not found below the word‘witness’ but found by the side.

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A(ix)It is not clear as to how appellant No.1 came into thepossession of the Will. There is no material to show whetherthe first appellant’s husband V.M. Chandrasekaranpre-deceased the parents. In this context the delay in seekingprobate creates a serious doubt.

B(x)The total exclusion of the daughter from the bequest andthe failure to mention in the Wills, the dates on which thedaughter was paid certain amounts, are crucial.

17. But each one of the above circumstances, neither individuallynor collectively creates a suspicion. The signature of the motherCAdhilakshmiammal in Exhibit P-1 (Will) is not disputed. It was executedon 30.01.1995 and her husband namely Mannar Reddiar was one of theattestors to the Will. In fact the reading of Exhibit P-1 (Will) goes toshow that the daughter Kalavathy was given in marriage to a bankemployee way back in the year 1970. According to Exhibit P-1 (Will),Dthe daughter was provided 50 sovereigns of gold jewellery at the time ofthe wedding. She was also given various amounts at different points oftime totaling to Rs.75,000/-. It was further claimed in Exhibit P-1 (Will)that the mother gave Rs.25,000/- to the daughter Kalavathy for thepurpose of purchase of two plots of land at Ambattur, in the outskirts ofChennai. The Will also mentions that the daughter’s daughter was givenEin marriage to the second son V.M. Sivakumar. This is the reason whythe second son V.M. Sivakumar joined hands with the daughterKalavathy. Exhibit P-1 also makes a mention about the sum of Rs.40,000/- paid towards the discharge of a debt incurred by Kalavathy’s husband(son-in-law).F18. Unfortunately, the High Court completely overlooked all theabove aspects and proceeded to invent reasons to justify a conclusionthat seems to have preceded the line of reasoning.

19. Similarly Exhibit P-2 (Will of the father) contains recitals tothe effect that the daughter’s daughter was given in marriage to theGsecond son V.M. Sivakumar and that Adhilakshmiammal had left behinda Will dated 30.01.1995.

20. Once it is found that the father Mannar Reddiar not onlyattested the mother’s Will (Exhibit P-1) and once it is found that in hisown Will (Exhibit P-2), which is a registered Will, the father had made aH

mention about the mother’s Will, all the suspicious circumstances soughtto be projected would automatically fall to the ground.

21. When it was not even the case of the respondents that thetestators were not in a sound and disposing state of mind, the High Courtfound fault with the appellants for not disclosing the nature of the ailmentssuffered by them. The exclusion of one of the natural heirs from thebequest, cannot by itself be a ground to hold that there are suspiciouscircumstances. The reasons given in Exhibit P-1 are more than convincingto show that the exclusion of the daughter has happened in a very naturalway. If Exhibit P-1 (Will) had been fabricated on blank papers containingthe signatures of the mother, there would have been no occasion for thefather to make a mention in his own Will (Exhibit P-2) about the executionof the Will by the mother.

22. We do not know how the High Court held the delay on thepart of the appellants in seeking probate of the Wills to be a suspiciouscircumstance. Exhibit P-1 was executed on 30.01.1995 and the testatrixdied on 14.08.1995. The father was alive till 08.08.2000. Therefore, therewas no necessity for the appellants to seek probate of the said Will.After the death of Mannar Reddiar on 08.08.2000, the appellants obviouslyhad no support, due to the fact that V.M. Chandrasekaran (husband ofappellant No.1 and father of appellant Nos.2 and 3) had pre-deceasedthe father Mannar Reddiar. It is recorded in the impugned Judgmentthat V.M. Chandrasekaran died in October-1999.

23. The occasion for the appellants to seek probate of the Willarose only when the respondents filed the suit for partition in O.S. No.387of 2005. Therefore, there was actually no delay on the part of theappellants in seeking probate.

24. The High Court made a mountain out of a molehill, by readingtoo much into the lack of knowledge on the part of appellant No.1 aboutthe time of registration of Exhibit P-2 (Will) and the minor contradictionsbetween her statement as PW-1 and the statements of PWs 4 and 5.The adverse inference sought to be drawn by the High Court about thefailure of the testator Mannar Reddiar to ensure the presence of thedaughter and the second daughter-in- law at the time of execution ofExhibit P-2, has no basis in law.

25. The law relating to suspicious circumstances surrounding theexecution of a Will is already well-settled and it needs no reiteration. It is A

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Aenough if we make a reference to one of the recent decisions of thisCourt in Kavita Kanwar vs. Mrs. Pamela Mehta and Ors.[1]wherethis Court referred to almost all previous decisions right from H.Venkatachala Iyengar vs. B.N. Thimmajamma[2]. But cases in whicha suspicion is created are essentially those where either the signature ofthe testator is disputed or the mental capacity of the testator is questioned.BThis can be seen from the fact that almost all previous decisions of thisCourt referred to in Kavita Kanwar (supra) list out circumstances, whichin the context of the lack of sound and disposing state of mind of thetestator, became suspicious circumstances. In the matter of appreciatingthe genuineness of execution of a Will, there is no place for the Court toCsee whether the distribution made by the testator was fair and equitableto all of his children. The Court does not apply Article 14 to dispositionsunder a Will.

26. It is not difficult for an objective mind to understand the reasonsbehind the daughter and the second son of the testators coming together.DUnder both the Wills Exhibit P-1 and P-2, the properties have been equallydistributed between the two sons. The first son V.M. Chandrasekaran isnow no more. Admittedly Kalavathy’s daughter has been given in marriageto V.M. Sivakumar (second son of testator). Therefore, if the bequestunder the two Wills go, V.M. Sivakumar’s family may eventually receive2/3[rd] share of the properties, which is more beneficial for V.M. SivakumarEthan getting half share under the Wills. Unfortunately, the High Courtcompletely overlooked this aspect and started analyzing the Wills withsuspicion. Therefore, the impugned Judgment of the High Court isincapable of being sustained.

27. In view of the above the appeal is allowed. The impugnedFjudgment of the High Court is set aside and the Judgment of the PrincipalDistrict Court, Vellore granting probate of both the Wills, is restored.There will be no order as to costs.

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Bibhuti Bhushan Bose

Appeal allowed.

1 AIR 2020 SC 544

H2 AIR 1959 SC 443