BALATHANDAYUTHAM & ANR. versus EZHILARASAN

Citation: [2010] 4 S.C.R. 733 · Decided: 16-04-2010 · Supreme Court of India · Bench: G.S. SINGHVI · Disposal: Dismissed

Judgment (excerpt)

[2010] 4 S.C:R. 733 
BALATHANDAYUTHAM & ANR. 
A 
V. 
EZHILARASAN 
(Civil Appeal No. 7357 of 2002) 
APRIL 16, 2010 
B 
[G.S. SINGHVI AND ASOK KUMAR GANGULY, JJ.] 
Indian Succession Act, 1925 - s.63 - Execution of 
unprivileged Wills - Execution of registered Will by testator-
Certain properties bequeathed in favour of his sons and 
C 
daughters but no property bequeathed to his eldest son-
claimant - Suit by one of the beneficiaries - Claimant's case 
that the first Will was not genuine and had been revoked by 
testator by subsequent Wills - First appellate court decreeing 
the suit in favour of beneficiary holding that the existence of D 
first Will was admitted and the subsequent Wills were not 
proved -
Upheld by High Court -
On appeal, held: 
Subsequent Wills are surrounded by various suspicious 
circumstances - Claimant failed to discharge its on~of 
removing the suspicious circumstances surrounding the Wills 
E 
- Attesting witness orthe Wills also not examined - Thus, 
order of High Court upheld - Evidence Act, 1872 - s. 68. 
The father executed a registered Will and 
bequeathed certain properties in favour of his two sons-
F 
respondent and G; and his two daughters. He did not 
bequeath any property to his eldest son-appellant no.1. 
The father-testator died on 23.5.1980. Thereafter, the 
appellant tried to disturb the poss~ssion of the 
respondent. The respondent filed a suit. The appellant 
contended that the said Will was not genuine and was 
G 
revoked by testator by another Will dated 25.4.1980 an~ 
also thereafter, b/ another Will dated 02.05.1980. The 
appellant claimed his rights under the subsequent Wills-
Ex.B-19 and Ex.B-20. The trial court dismissed the suit. 
733 
H 
734 
SUPREME COURT REPORTS 
[2010) 4 S.C.R. 
A The first appellate court allowed the appeal and decreed 
the suit. It held that the existence of the first Will has been 
admitted and the subsequent Wills were not proved since 
no attesting witnesses were produced to prove the two 
subsequent unregistered Wills; and the same were 
B executed when the testator was unwell. The High Court 
upheld the order. It found that the first Will was executed 
while the testator was residing with the respondent and 
his family at place V and the subsequent Wills were 
executed couple of weeks prior to the death of the 
c testator, at place C where appellant was residing. Hence 
the appeal. 
Dismissing the appeal, the Court 
HELD: 1.1. When a Will is surrounded by suspicious 
D circumstances, the person propounding the Will has a 
very heavy burden to discharge. 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 Will is unnatural, improbable 
E 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 surrounded by suspicious circumstances. 
[Para 8] [739-G-H; 740-A-C] 
F 
1.2. Under section 63 of the Indian Succession Act, 
1925, the Will 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 
G 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 
H witness be present at the same time, and no particular 
BALATHANDAYUTHAM & ANR. v. EZHILARASAN 
735 
form of attestation shall be necessary. Section 68 of the 
A 
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 B 
the Court is capable of giving evidence. [Para 11] [740-
E-H; 741-A-B] 
2.1. In the instant case, both the subsequent Wills-
Ex.B-19 and Ex.B-20 were allegedly executed by the 
testator a couple of weeks before his death and when he 
C 
was made to stay in the house of the 1st appellant. It 
appears that the attestors of both the said two Wills were 
all of place C and were strangers to the family. Those two 
Wills surfaced only at the time when

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