ADIVEKKA AND ORS. versus HANAMAVVA KOM VENKATESH D BY LRS. AND ANR.

Citation: [2007] 6 S.C.R. 264 · Decided: 09-05-2007 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
B 
ADIVEKKA AND ORS. 
V. 
HANAMA VVA KOM VENKA TESH 'D' BY LRS. AND ANR. 
MAY 9, 2007 
[S.B. SINHA AND MARKANDEY KA TIU, JJ.J 
Will-Execution of-Testator executing Will in favour of his niece-
Allegation of suspicious circumstances-Sustainability of Will-Held: 
C 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 
D not genuine-Order of High Court upholding the execution of Will set aside. 
There was a land in the name of H. It is alleged that H executed Will in 
favour of respondent no. I-his niece and bequeathed the land in her favour 
just two weeks prior to his death. Appellants-wife and children ofH were 
unaware of the execution of the Will They applied for mutation of their names 
E after death of H. Respondent No. 1 filed objections and in the meantime, 
allegedly sold the suit lands in favour of respondent no.2-her husband. 
Appellants filed a suit for declaration and permanent injunction since H 
purchased the land by sale of family gold and as such was a joint family 
property; and that the Will was a fabricated document. Respondent No. 1 did 
F not examine herself. She examined her husband in whose favour she had 
allegedly executed a Power of Attorney. A purported attesting witness and 
the Sub-Registrar who registered the document were also examined. Trial 
Judge decreed the suit. High Court set aside the judgment and decree holding 
that the execution of the Will has been proved by the attesting witness and 
the Sub Registrar. Hence the present appeal. 
G 
Appellants contended that the High Court did not address itself on the 
question in regard to a large number <.if suspicious circumstances which would 
clearly go to show that the Will is not a genuine one. 
Respondents contended that the very purpose for which the Will was 
H 
2M 
ADIVEKKA v. HANAMA WA KOM VENKA TESH'D' BY LRS. 
265 
executed as also the proof of execution thereof by H categorically dispels the A 
alleged suspicious circumstances. 
Allowing the appeals, the Court 
HELD: I.I. The High Court was not correct in setting aside the judgment 
of the Trial Judge that execution of Will has not been proved. 
B 
(Para 201 [275-A) 
2.1. 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 C 
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. [Para 14) [270-F, G) 
2.2. 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 D 
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. [Para 14) (270-H; 271-AJ 
E 
2.3. 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 F 
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. I 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 G 
any love and affection for her. Non-examination of the party to the tis would 
lead to drawal of an adverse inference against her. [Para 151 [271-B, C, DJ 

Excerpt shown. Read the full judgment & AI analysis in Lexace.