REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(s). 7357 OF 2002   

Balathandayutham and another   ..Appellant(s)

Versus  

Ezhilarasan ..Respondent(s)

J U D G M E N T

GANGULY, J.

1.Heard counsel for the parties.

2. The material facts of the case are: Late  Mr.  

M. Ramachandran, the father of the 1st appellant  

as also of the plaintiff-respondent, had three  

sons, namely, Balathandayutham (1st appellant),  

Ezhilarasan  (plaintiff-respondent)  and  one  

Gnanavoli and two daughters – Kalai Arasi and  1

Isai Amudhu and his wife was Nachiar Ammal.  It  

is not in dispute that Ramachandran acquired  

certain  properties  and  in  his  lifetime  he  

executed  a  Will  which  was  registered  on  

25.09.1972.   By  the said  Will he  bequeathed  

certain properties, from the income of which  

Seva Puja and maintenance of Sri Bala Murugan  

Temple was to be conducted. In respect of his  

other  properties  he  bequeathed  the  same  in  

favour  of  plaintiff-respondent  and  his  other  

son Gnanavoli and two daughters and giving his  

wife life interest.   

3. Insofar as the 1st appellant is concerned, no  

property was bequeathed to him, inter alia, on  

the ground that after education he was staying  

apart and had not shown any interest in the  

family members.  The case in the plaint is that  

since the 1st appellant, the elder brother of  

the plaintiff-respondent, left the family after  

his  education  and  married  another  woman  

belonging  to  some  other  caste  without  the  

consent  of the  parents, no  provision in  the  2

Will dated 25.09.1972 was made by the testator  

in favour of the 1st appellant.  The testator  

Ramachandran died on 23.5.1980 and after his  

death,  the  plaintiff-respondent  was  in  

exclusive possession of the property.  At that  

stage the 1st appellant tried to disturb the  

possession of the plaintiff-respondent with the  

help of some anti social elements.  This led to  

the filing of the suit.  In the suit, the stand  

of  the  1st appellant  was  that  Will  dated  

25.09.1972 was not genuine and the said Will  

had  been  revoked  by  Ramachandran  by  another  

Will  dated  25.4.1980  and  also  thereafter  by  

another  Will  dated  2.5.1980.   Both  the  

appellants claimed their rights under the so-

called  subsequent  Wills.   In  his  rejoinder,  

plaintiff-respondent claimed that the so-called  

subsequent Wills dated 25.4.1980 and 2.5.1980  

are  fabricated and  at the  relevant point  of  

time  Ramachandran  was  bedridden  and  did  not  

have the capacity to execute any Will as he  

died within a few days thereafter on 23.5.1980.  

The Trial Court dismissed the suit upholding  3

the contention of the 1st appellant.  The First  

Appellate  Court,  however,  allowed  the  appeal  

and  decreed  the  suit.  The  stand  of  the  1st  

appellant  herein,  before  the  First  Appellate  

Court, was that Will dated 25.09.1972 was not a  

genuine one and was revoked by the subsequent  

Will dated 25.4.1980.   

4. On  these  facts  the  learned  First  Appellate  

Court  held,  when  the  execution  of  a  Will  

asserted by one party is denied by the other  

party,  then  the  burden  is  on  the  party  who  

relies on the Will to prove its execution.  But  

when execution of the Will is not denied then  

no burden is cast on the party who relies on a  

Will to prove its execution.  Relying on the  

aforesaid principle, the First Appellate Court  

held,  and  in  our  view  rightly,  that  the  

existence of the first Will dated 25.09.1972  

has been admitted.  But the appellants’ case is  

that the same has been revoked. However, there  

is no attesting witness to prove Ex.B-19 dated  

2.5.1980 and Ex.B-20 dated 25.4.1980, which are  4

the two subsequent Wills. The First Appellate  

Court also noted that it was admitted that the  

subsequent  Will  dated  25.4.1980  is  an  

unregistered one and attestors to the said Will  

were alive even though scribe was not alive.  

It  was  also  admitted  by  the  appellant  that  

testator  was not  well for  about four  months  

prior  to  his  death.  Admittedly  Ex.B-19  and  

Ex.B-20  were  allegedly  executed  when  the  

testator was unwell. On those facts the learned  

First Appellate Court held that the subsequent  

two Wills being Ex.B-19 and Ex.B-20 were not  

proved.

5. The High Court held that the finding given by  

the  First  Appellate  Court  that  Ex.B-19  and  

Ex.B-20 cannot be said to have been proved in  

view  of  non-compliance  with  the  mandatory  

requirement  under Sections  68 and  69 of  the  

Indian Evidence Act is a correct finding.  The  

High Court found that the first Will which was  

executed in 1972 (Ex.A1) was executed while the  

testator was residing with the plaintiff and  5

his wife and another son in joint family in his  

residential  house  at  Villupuram  but  the  

subsequent  two  Wills  Ex.B-19  and   

Ex.B-20 were executed at Cuddalore where the 1st  

appellant was residing.  The fact remains that  

in the first Will no provision was made for the  

1st appellant  but  in  the  second  two  Wills  

provisions  were  made  in  favour  of  the  1st  

appellant and they were allegedly executed when  

the testator was staying in the house of the 1st  

appellant. These two Wills were also executed a  

couple  of  weeks  prior  to  the  death  of  the  

testator.   

6. At  this  juncture,  the  case  made  out  by  the  

plaintiff-respondent  is  very  relevant.  

Plaintiff’s  case  is  that  his  father,  the  

testator,  went  to  a  temple  for  attending  a  

function and from there testator was taken by  

the 1st appellant to Cuddalore and coming to  

know this fact the plaintiff-respondent went to  

the  house  of  the  1st appellant  and  the  

plaintiff-respondent  went  there  and  took  the  6

testator back to his house at Villupuram where  

he was staying all these years and where he  

ultimately  died.   Therefore,  both  the  

subsequent Wills, namely, Ex.B-19 and Ex.B-20  

were  allegedly  executed  by  the  testator  a  

couple of weeks before his death and when he  

was  made  to  stay  in  the  house  of  the  1st  

appellant.  It appears that the attestors of  

both  the  aforesaid  two  Wills  were  all  of  

Cuddalore  and  were  strangers  to  the  family.  

Those two Wills surfaced only at the time when  

the 1st appellant gave his written statement in  

1994  in  the  suit  filed  by  the  plaintiff-

respondent.  According  to  our  judgment,  these  

are suspicious circumstances surrounding Ex. B-

19 and Ex.B-20.

7. The  High  Court  also  found  on  analyzing  the  

aforesaid  facts  that  there  are  suspicious  

circumstances  surrounding  the  execution  of  

Ex.B-19 and Ex.B-20 and they are required to be  

dispelled  by  the  appellant.  The  statutory  

requirements under Section 68 of the Evidence  7

Act and under Section 63 of Indian Succession  

Act are to be fulfilled which have not been  

done.  In  this  case  not  a  single  attesting  

witness  of  Ex.B-19  and  Ex.B-20  has  been  

examined.

8. This  Court  also  thinks  that  in  view  of  the  

discussion  made  herein  above  that  both  the  

Ex.B-19  &  Ex.B-20  are  surrounded  by  various  

suspicious  circumstances.  When  a  Will  is  

surrounded  by  suspicious  circumstances,  the  

person propounding the Will has a very heavy  

burden  to  discharge.  This  has  been  

authoritatively explained by this Court in the  

case  of  H.  Venkatachala  Iyengar v.  B.N.  Thimmajamma  & Ors,  AIR 1959  SC 443.  Justice  P.B. Gajendragadkar, as His Lordship then was,  

in para 20 of the judgment, speaking for the  

Three Judge Bench in  H. Venkatachala (supra)  held that in a case where testator’s mind is  

feeble and he is debilitated and there is not  

sufficient evidence as to the mental capacity  

of the testator or where the deposition in the  8

Will is unnatural, improbable or unfair in the  

light of the circumstances or it appears that  

the bequest in the Will is not the result of  

testator’s free will and mind, the Court may  

consider that the Will in question is encircled  

by suspicious circumstances.

9. Going by this test, as we must, we find that  

both  the  Wills,  Ex.B-19  &  Ex.B-20  are  

surrounded  by  suspicious  circumstances.  The  

ratio  in  H.  Venkatachala (supra)  is that  in  such  a  situation  the  Court  “would  naturally  

expect that all legitimate suspicions should be  

completely  removed  before  the  document  is  

accepted as the last Will of the testator. The  

presence  of  such  suspicious  circumstance  

naturally tends to make the initial onus very  

heavy;  and,  unless  it  is  satisfactorily  

discharged, Courts will be reluctant to treat  

the document as the last Will of the testator.”  

[see page 452]

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10. Following the aforesaid principle, this Court  

is constrained to hold that the appellants did  

not succeed in discharging its onus of removing  

the  suspicious  circumstances  surrounding  Ext  

B19 & B20. As such there is no reason for us to  

find  any  error  in  the  judgment  of  the  High  

Court.  

11. In  so  far  as  execution  of  the  Will  is  

concerned,  under  Section  63  of  the  Indian  

Succession Act, 1925 it has to be attested by  

two or more witnesses, each of whom has seen  

the testator sign or affix his mark to the Will  

or has seen some other person sign the Will, in  

the  presence,  and  by  the  direction  of  the  

testator, or has received from the testator a  

personal  acknowledgment  of  his  signature  or  

mark, or of the signature of such other person;  

and each of the witnesses shall sign the Will  

in the presence of the testator, but it shall  

not be necessary that more than one witness be  

present  at the  same time,  and no  particular  

form of attestation shall be necessary. Section  10

68  of the  Indian Evidence  Act, 1872  further  

provides if a document is required by law to be  

attested it shall not be used as evidence until  

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 is capable  

of giving evidence. There is a proviso under  

Section 68 but we are not concerned with the  

proviso here.

12. Commenting on these provisions, this Court in  

H. Venkatachala (supra) laid down that Section  68 deals with the proof of the execution of the  

document required by law to be attested; and it  

provides that such a document shall not be used  

as  evidence  until  one  attesting  witness  at  

least  has  been  called  for  the  purpose  of  

proving  its  execution.  These  provisions  

prescribe the requirements and the nature of  

proof which must be satisfied by the party who  

relies on a document in a Court of law. It was  

further  held  that  Section  63  of  Indian  11

Succession Act requires that the testator shall  

sign or affix his mark to the Will or it shall  

be signed by some other person in his presence  

and by his direction and that the signature or  

mark shall be so made that it shall appear that  

it was intended thereby to give effect to the  

writing as a Will. This Section also requires  

that  Will  shall  be  attested  by  two  or  more  

witnesses as prescribed. Thus the question as  

to whether the Will set up by the propounder is  

proved to be the last Will of the testator has  

to be decided in the light of these provisions.  

[see pg 451]

13. The  law  thus  laid  down  in  H.  Venkatachala  (supra) is still holding field and this Court  

has  followed  the  same  in  various  other  

judgments. [See  Madhukar D. Shende v.  Tarabai  Aba  Shedage,  (2002)  2  SCC  85;  Niranjan  Umeshchandra  Joshi v.  Mrudula  Jyoti  Rao  and  others., (2006) 13  SCC 433  and  Savithri  and  Others v.  Karthyayani Amma and Others, (2007)  11 SCC 621]  

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14. On  consideration  of  the  aforesaid  materials,  

the  High  Court  affirmed  the  finding  of  the  

First Appellate Court that Ex.B-19 and Ex.B-20  

have not been proved. The High Court, in our  

judgment,  was  right  in  not  interfering  with  

those  findings  in  the  second  appeal  as  no  

substantial  question  of  law  has  been  

erroneously  decided  by  the  First  Appellate  

Court.   

15. We  also affirm  the aforesaid  finding of  the  

High Court and dismiss this appeal leaving the  

parties to bear their own costs.   

.......................J. (G.S. SINGHVI)

.......................J. (ASOK KUMAR GANGULY)

New Delhi April 16, 2010

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