LexAPOLINE D' SOUZA versus JOHN D SOUZA
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
APOLINE D' SOUZA
A
v.
JOHN D' SOUZA
MAY 16, 2007
(S.B. SINHA AND MARKANDEY KA TJU, JJ.]
B
Succession Act, 1925-ss. 276 and 63-Letter of administration-Grant
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of-Testatrix executed Will bequeathing property in favour of his nephew and
other who was not related-Trial Court holding execution of Will proved, c
however, set aside by High Court-Held: Due execution of Will was not
proved-Evidence of attesting witness also did not prove execution or
attestation of Will-Will contained overwriting and cuttings which established
existence of suspicious circumstances-Thus, order of High Court upheld-
Evidence Act, 1872-s. 68.
D
F executed a Will bequeathing 23 cents of land in favour of the appellant
and 16 cents in favour of the respondent F had two daughters who were nuns.
Appellant-beneficiary of the Will was not related in any way to F. It is alleged
that the appellant was serving the testatrix during her old age and on account
of which was made the beneficiary. Appellant filed an application for grant of
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Letters of Administration under section 276 of Succession Act, 1925.
Respondent contended that F being an old lady was not in proper frame of
mind at the time of execution of Will to understand its contents. Trial court
held that the execution of Will was proved. However, the High Court set aside
the order. Hence, the present appeal.
Dismissing the appeal, the Court
F
HELD : 1.1. The mode and manner of proofof due execution of a Will
indisputably will depend upon the facts and circumstances of each case. It is
for the propounder of the Will to remove the suspicious circumstances.
(Para 20] (1112-F) G
....
1.2. The testatrix was a 96 years old lady. Sh~ had been suffering for a
long time. She was bed-ridden. No evidence has been brought on record to
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show as to who had drafted the Will. Even if it be assumed that the appellant
had nothing to do in regard to preparation of the draft or registration thereof,
I 103
H
1104
SUPREME COURT REPORTS
[2007] 6 S.C.R.
A nothing has been brought on record to show as to who had drafted the Will,
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or at whose instance it came to be registered.
[Paras 8 and 9) [1107-G; 1108-A)
1.3. Section 68 of the Evidence Act, 1872 provide for the mode and
manner in which execution of the Will is to be proved. Proof of attestation of
B the Will is a mandatory requirement. Attestation is sought to be proved by
PW-2 only. PW-2 is th.e attesting witness. She was called to be a witness to
the execution of the Will. PW-2 categorically stated that the Will was drafted
before her coming to the residence of the testatrix and she had only proved
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her signature as a witness to the execution of the Will but the document was
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c a handwritten one. The original Will is typed in Kannada, although the blanks
were filled up with English letters. There is no evidence to show that the
contents of the Will were read over and explained to the testatrix. Two days
thereafter, the Will was registered, on which date also she was asked to be
present. PW-2 was not known to the testatrix. Why was she called and who
called her to attest the Will is shrouded in mystery. Her evidence is not at all
D satisfactory in regard to the proper frame of mind of the testatrix. There were
several cuttings and overwriting also in the Will.
[Paras 10 and 13) [1108-A, H; 1109-B, CJ
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1.4. Both the daughters of the testatrix were nuns. Therefore, no
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property could be bequeathed in their favour. In fact one of them had expired
long back. Relation of the testatrix with the respondent admittedly was very
cordial. Appellant has not been able to prove that she had been staying with
the t~statrix since 1986 and only on that count she was made a beneficiary
thereof. The Will was full of suspicious circumstances.
[Para 13) (1109-A)
F
Naresh Charan Das Gupta v. Paresh Charan Das Gupta, [1954) SCR
y
1035, distinguished.
B. Venkatamuni v. C.J. Ayodhya Ram Singh & Ors., (2006) 11 SCALE
149; Niranjan Umeshchanda Joshi v. Mrudula Jyoti Rao & Ors., (2006) 14
G SCALE 186; Joseph Antony Lazarus (Dead) By LRs. v. A.J. Francis, (2006) 9
SCC 515; S. Sankaran v. D.Kausalya, (2007) 3 SCALE 186; Benga Behera
& Anr. v. Braja Kishore Nanda & Ors., CA No.3467 of2003 decided by S.C. -
on 15.05.2007; Brahmadat Tewari v. Chaudan Bibi, AIR 1916 Calcutta 374
and Riazu/nisa Begam, Mst. v. Lala Puran Chand, ILR XIX Lucknow 445,
referred to.
H
APOLINE D' SOUZA v. JOHN D' SOUZA [S.BExcerpt shown. Read the full judgment & AI analysis in Lexace.