The Supreme Court has held that a registered Will cannot be accepted merely on the strength of its registration where the statutory requirements governing execution and attestation have not been proved.
The bench of Justice Nongmeikapam Kotiswar Singh and Justice Sanjay Karol ruled that the propounders of a Will must satisfy the requirements of Section 63(c) of the Indian Succession Act, 1925, read with Sections 68 and 69 of the Evidence Act, and must also satisfactorily remove genuine suspicious circumstances surrounding the testamentary document.
The litigation concerned agricultural lands and a house property originally owned by Vaiyapuri Gounder. He had three wives—Mottaiammal, Pappammal and Arukkaniammal. The first two wives had predeceased him, while Arukkaniammal, the third wife, survived him and had no children.
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Following Vaiyapuri Gounder’s death around 1925, Arukkaniammal became entitled to the properties. The dispute arose after her death in 1985 over whether she had died intestate or had validly bequeathed the agricultural property to the four sons of Alamathal through a registered Will dated December 15, 1976, marked as Ex.B-13.
The appellants, claiming through the branches of the first wife, maintained that Arukkaniammal had died intestate and that the properties inherited by her from her husband had to devolve upon the heirs of her husband under Section 15(2)(b) of the Hindu Succession Act, 1956.
The respondents, on the other hand, relied principally upon the registered Will and an earlier registered lease deed dated April 10, 1943, under which they claimed possession of the agricultural property. The Will purported to give the A-schedule agricultural property to the four sons of Alamathal.
The Trial Court examined the Will closely and concluded that it had not been proved in accordance with law. It identified several circumstances that cast doubt on the genuineness and free execution of the testamentary document.
Among the circumstances noted were the description of the property in the Will as self-acquired property, even though it had come to Arukkaniammal from her husband; the absence of an explanation for excluding the heirs of Mottaiammal; and the description of Alamathal as Arukkaniammal’s daughter even though she was the daughter of Pappammal, the second wife of Vaiyapuri Gounder.
The Trial Court also noted that one of the attesting witnesses, Marappa Gounder, was the father-in-law of Nataraja Gounder, one of the beneficiaries. The other attesting witness, Avanashi Gounder, belonged to another village. Arukkaniammal was illiterate and used a thumb impression, while Alamathal, who was central to the respondents’ explanation of the Will, was not examined despite being stated to be capable of appearing before the Court.
The Trial Court further found deficiencies in the proof of attestation. Neither of the two named attesting witnesses entered the witness box. The scribe, K.S. Srinivasa Rao, expressly stated that he had signed the document as the scribe and not as an attesting witness. The Court therefore declined to treat his evidence as satisfying the statutory requirement of attestation.
Consequently, the Trial Court held that the Will was not proved and granted the plaintiffs a preliminary decree for partition, while dismissing the suit for permanent injunction.
The Madras High Court took a different view and upheld the Will insofar as it covered the A-schedule agricultural property.
It relied, among other things, upon the respondents’ evidence that both attesting witnesses were dead and held that Section 69 of the Evidence Act could be invoked. The High Court also relied upon the evidence of the scribe and the son of one of the attesting witnesses.
On the question of suspicious circumstances, the High Court observed that exclusion of some heirs could not by itself be regarded as suspicious because a Will necessarily departs from normal succession. It also accepted the respondents’ explanation that Arukkaniammal had reasons to favour Alamathal’s sons because the branch had been in possession of the property and had cared for her.
The High Court accordingly set aside the Trial Court’s decree, upheld the Will concerning the agricultural property and granted permanent injunction.
The Supreme Court disagreed with the High Court’s approach and emphasised that a Will occupies a distinct position in law.
The Court explained that Section 63 of the Indian Succession Act prescribes how an unprivileged Will must be executed, including the requirement of attestation by at least two witnesses. Section 68 of the Evidence Act, in turn, prescribes the ordinary manner in which such execution must be proved.
Importantly, the Court stressed that the registration of a Will does not eliminate these requirements. Even a registered Will remains subject to proof through an attesting witness where such witness is alive, available and capable of giving evidence. Registration may constitute a circumstance supporting genuineness, but it does not by itself establish testamentary execution and attestation.
The Court distinguished between the testamentary power of a person and proof of the particular Will propounded before the Court. Arukkaniammal undoubtedly had testamentary power over property absolutely held by her, but that did not mean that Ex.B-13 automatically became a valid and enforceable Will.
A significant part of the judgment concerned the legal distinction between a scribe and an attesting witness.
The Supreme Court held that merely writing or signing a Will does not make a person an attesting witness. Attestation requires the necessary animus attestandi—the intention to sign the document for the purpose of witnessing the testator’s execution or acknowledgment.
In the present case, the Will itself separately identified Marappa Gounder and Avanashi Gounder as attesting witnesses and K.S. Srinivasa Rao as the scribe. More importantly, Srinivasa Rao admitted during cross-examination that he had signed only in his capacity as scribe and not as a witness. His own evidence therefore ruled out the necessary intention to attest.
The Court held that his evidence could not substitute for the evidence required from an attesting witness under Section 68 of the Evidence Act.
The Supreme Court reiterated that proof of a testator’s thumb impression or signature alone is insufficient. The statutory attestation ceremony must also be established.
The Court also examined the respondents’ reliance on Section 69 of the Evidence Act, which permits proof of an attested document in circumstances where no attesting witness can be found.
The Supreme Court held that Section 69 cannot be invoked as an alternative method of proof at the choice of the party propounding the Will. The words “if no such attesting witness can be found” constitute a condition precedent.
According to the Court, the enquiry must proceed in sequence: first, the propounder must establish that no attesting witness can be produced; second, the handwriting of at least one attesting witness must be proved; and third, the signature or mark of the person who executed the document must be proved.
The Court accepted that the death of Marappa Gounder had been sufficiently established through his son, D.W.3. However, it found the position concerning Avanashi Gounder materially different.
The only affirmative evidence regarding Avanashi’s death came from D.W.1, one of the beneficiaries, who merely stated that both witnesses were dead. There was no supporting evidence from Avanashi’s relatives, residents of his village, public records or any witness who had made an effort to ascertain whether he was alive, dead or traceable.
The Supreme Court held that the respondents had therefore failed to satisfactorily establish the foundational condition necessary for invoking Section 69.
The Court also rejected an approach of examining suspicious circumstances in isolation.
It observed that individual circumstances might not necessarily be sufficient to invalidate a Will. However, courts must assess their cumulative effect and determine whether the propounder has provided a satisfactory explanation demonstrating that the testator understood and freely adopted the disposition.
In the present case, the Supreme Court identified a combination of circumstances: the inaccurate recital concerning the nature of the property, the incorrect description of Alamathal’s relationship with the testatrix, exclusion of two branches of the family, the relationship between an attesting witness and a beneficiary, the fact that the witnesses came from another village, the beneficiary branch’s existing possession of the property, non-examination of Alamathal, unexplained custody of the original Will and the inadequate foundation for invoking Section 69 of the Evidence Act.
The Court emphasised that these circumstances, considered together, required independent evidence demonstrating that Arukkaniammal herself understood and freely adopted the exact testamentary disposition.
It agreed with the Trial Court that the legitimate doubts surrounding the Will had not been satisfactorily removed.
The respondents had argued that Arukkaniammal lived for nearly nine years after execution of the Will and never revoked it, and that the Will was registered. According to them, these circumstances supported its genuineness.
The Supreme Court, however, did not regard these circumstances as sufficient to overcome the deficiencies in proof and the cumulative suspicious circumstances.
The Court also noted that the evidence concerning delivery and custody of the Will was itself insufficient. D.W.1 claimed that Arukkaniammal delivered the Will to the beneficiaries approximately four months before her death, nearly nine years after its execution. However, there was no independent witness to the alleged delivery and the record did not satisfactorily explain where the original Will had remained during the intervening period.
After holding that the Will had not been proved, the Supreme Court considered the consequence for succession.
The Court held that Arukkaniammal had to be treated as having died intestate in relation to the suit properties. Since the properties had been inherited by her from her husband, Section 15(2)(b) of the Hindu Succession Act, 1956 applied.
The provision directs that property inherited by a female Hindu from her husband or father-in-law, in the absence of a son or daughter of the deceased, devolves upon the heirs of the husband rather than upon the general heirs contemplated under Section 15(1).
Applying this principle, the Supreme Court restored the three-line succession identified by the Trial Court: the line of Ramathal was entitled to one-third, the line of Chellammal to one-third and the line of Pappammal, represented by Alamathal, to one-third. The appellants collectively represented the first two lines and were therefore entitled to two-thirds of the property.
The Court further noted that Ex.B-13 substantially concerned the A-schedule agricultural lands and did not cover the B-schedule house property. Since the Will failed and the partition suit covered both categories of property, the Trial Court had correctly granted the preliminary decree concerning both A and B schedules.
The Supreme Court therefore restored the preliminary decree declaring the plaintiffs collectively entitled to a two-thirds share in the A and B schedule properties.
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