DEREK A C LOBO & ORS. versus ULRIC M A LOBO (DEAD) BY LRS. & ORS.

Citation: [2023] 16 S.C.R. 1547 · Decided: 07-12-2023 · Supreme Court of India · Bench: C.T. RAVIKUMAR · Disposal: Appeal(s) allowed

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Judgment (excerpt)

[2023] 16 S.C.R. 1547 : 2023 INSC 1093
1547
CASE DETAILS
DEREK A C LOBO & ORS.
v.
ULRIC M A LOBO (DEAD) BY LRS. & ORS.
(Civil Appeal No. 5094 of 2011)
DECEMBER, 07 2023
[C.T. RAVIKUMAR AND SANJAY KUMAR, JJ.]
HEADNOTES
Issue for consideration: After appreciating the oral and documentary 
evidence, the trial Court decreed the suit (probate of Will) and held that the 
plaintiffs are entitled to the grant of probate of the last Will and testament dated 
10.11.1992 of their deceased mother C. However, the High Court reversed 
the judgment and decree of the trial Court. In view of the undisputed position 
that the Will was executed by C, the question to be considered is whether the 
circumstances taken as suspicious circumstances by the High Court are in troth, 
suspicious circumstances, capable of calling the propounder to dispel them.
Will – Probate of – The High Court after re-appreciation of the 
evidence held that the Will dated 10.11.1992 is shrouded with suspicious 
circumstances and reversed the judgment and decree of the trial Court 
– Propriety:
Held: The unrefuted factual position obtained from the evidence on 
record is that the testatrix who died on 08.01.1993 at the age of 69 years, 
had studied up to S.S.L.C and was able to read and write English – She was 
a Municipal Councilor for 6 years besides being an active Social Worker – 
PW-3, one of the attesting witnesses to the Will in question, would depose 
that the testatrix herself called him to attest the Will and that he had seen 
the testatrix reading the papers before putting the signatures – PW-2, who 
is one of the sons of testatrix also corroborated the version that PW-3 was 
called over phone by his mother to attest the Will and that she had also read 
the Will – Nothing to disbelieve their versions was elicited by the defendants 
during their cross-examinations – PW-3 deposed that it was in his presence 
that the testatrix had signed the Will – It cannot be said that a person afflicted 
1548	
SUPREME COURT REPORTS	
[2023] 16 S.C.R.
with arthritis would not be in a position to read and understand the contents 
of a document – This Court has also adverted to the amendment sought to 
be brought in by defendant No.5 by producing Ext.D5 – Evidence on record 
would reveal that the testatrix was in hospital for 53 days till her death on 
08.01.1993 – Despite such position if the 5th defendant takes a stand that 
she was in a sound disposition of mind on 20.11.1992 to execute Ext.D5, 
how would he be justified in raising a case that the testatrix was not in a 
sound disposition of mind prior to her hospitalization i.e., on 10.11.1992 
(Will and testament disputed) – In view of his case attempted to be brought 
in through Ext.D5, contention could not have been raised that the testatrix 
was not in sound disposition of mind – Also, the legal representatives of 
deceased defendant No.5 who alone disputed the execution of Ext.P2 Will, 
are not contesting the matter – The testatrix was not illiterate and she did 
not put her signature without understanding the contents of the Will – In 
the circumstances, the said suspicions that excited the mind of defendant 
No.5 and accepted by the High Court cannot survive – Thus, they cannot 
be sustained. [Paras 14, 17]
Will – Suspicious circumstances:
Held: A party challenging the execution of a Will as suspicious must 
plead the suspicious circumstances and then only the propounder would 
legally be bound to remove these suspicious circumstances. [Para 15]
Will – Burden to prove – Shifting the onus:
Held: Once the burden to prove is discharged by the propounder in 
terms of s.63 of the Succession Act and s.68 of the Evidence Act, and by 
adducing prima facie evidence proving the competence of the testator, 
the onus is on the contestant opposing to show prima facie the existence 
of suspicious circumstances so as to shift the onus on the propounder to 
dispel them – Without knowing the circumstances, which according to the 
contestant opposing are suspicious, how will the propounder be able to dispel 
them and to convince the court about its genuineness and validity. [Para 16]
LIST OF CITATIONS AND OTHER REFERENCES
Meenakshiammal (Dead) through Lrs. And others v. Chandrasekharan and 
Another, [2004] 5 Suppl. SCR 898 : (2005) 1 SCC 280; Madhukar D. Shende v. 
Tarabai Aba Shedage, [2002] 1 SCR 132 : (2002) 2 SCC 85 – relied on.
1549
DEREK A C LOBO & ORS. v. 
ULRIC M A LOBO (DEAD) BY LRS. & ORS.
Moturu Nalini Kanth v. Gaine

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