MADHUKAR D. SHENDE versus TARABAI ABA SHEDAGE

Citation: [2002] 1 S.C.R. 132 · Decided: 09-01-2002 · Supreme Court of India · Bench: R.C. LAHOTI · Disposal: Appeal(s) allowed

Cited by 3 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

A 
B 
MADHUKAR D. SHENDE 
v. 
TARABAIABASHEDAGE 
JANUARY 9, 2002 
[R.C. LAHOTI AND BRIJESH KUMAR, JJ.] 
Indian Evidence Act, 1872-Section 68-Will-Proof of execution a/-
Burden of proof lies on propounder to prove competence of testator and 
C execution of will in the manner contemplated by !aw-preponderance of 
probabilities and shifting of onus-suspicion or unnatural circumstances 
attaching to a will have to be explained but assumed suspicion or supposition 
cannot disprove a will-Relationship and status of persons setting up and 
disputing will and pleadings, are relevant and significant-Held, on facts, 
the will is proved-Indian Succession Act, 1925-Section 63. 
D 
E 
Section 3-'Proved', 'Not proved' (in relation to will)-Meaning of 
Sections JI, 13 and 35-Finding upholding due execution of the same 
will by court in a different suit between same parties relating to a different 
property is relevant evidence. 
One B Executed a registered will in favour of her sister's daughter C 
bequeathing four properties including the suit property. B died a day after 
the execution. C transferred her title and possession of the property to 
appellant under a registered sale deed for a consideration of Rs. 5000. 
Defendant claimed title to the property. The appellant filed a suit in trial court 
p against the defendant for declaration of title to the property and for recovery 
of possession. The defendant pleaded that the suit property was orally gifted 
to her by one BK and that she acquired the title by adverse possession. The 
trial court dismissed the suit of the appellant on the finding that the will 
executed by B was not proved. The finding of the trial court was affirmed by 
appellate court. High Court attributed various suspicious circumstances 
G centring around the execution of the will and dismissed the appeal of the 
appellant even though the defendant gave up the plea of acquisition of title by 
adverse possession and conceded that the title in the property vested with B 
and the sale deed executed by C in favour of the appellant was proved. 
H 
In appeal to this Court, the appellant contended that the execution of 
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MADHUKAR D. SHENDE v. TARABAI ABA SHEDAGE 
133 
the will should be treated like any other issue of fact even though certain A 
additional relevant considerations to be taken; that the evidence relating to 
execution of will should not be seen with suspicion and doubt; that the burden 
of proof relating to the execution of will should be seen in the background of 
relationship and status of the parties; that the appellate court and the High 
Court in a different suit proceeding among the same parties relating to B 
another property under the same will, held that the will has been adequately 
proved; and that the said decision of the courts would constitute res judicata 
for the present case. 
The defendant contended that the concurrent finding of facts arrived at 
by the courts below should not be interfered with; that the previous suit- C 
proceedings related to a different property and was based on landlord-tenant 
relationship; and that such finding would not constitute res judicata in the 
present case. 
Allowing the appeal, the Court 
HELD: 1.1. The requirement of proofofa will is the same as any other 
document excepting that the evidence tendered in proof of a will should 
additionally satisfy the requirement of Section 63 of the Indian Succession 
Act, 1925 and Section 68 of the Indian Evidence Act, 1872. If, after considering 
D 
the facts and circumstances as emanating from the material available on 
record, the court either believes that the will was duly executed by the testator E 
or considers the existence of such fact so probable that any prudent person 
ought to act upon the supposition that the will was duly executed by the testator, 
then the factum of execution of will shall be said to have been proved. The 
delicate structure of proof framed by a judicially trained mind cannot stand 
on weak foundation nor survive any inherent defects therein but at the same F 
time ought not to be permitted to be demolished by wayward pelting of stones 
of suspicion and supposition by wayfarers and waylayers. [138-A-C) 
R. v. Hodge, [1838), 2 Lewis CC 227 referred to. 
1.2. The conscience of the court has to be satisfied by the propounder G 
of the will adducing evidence so as to dispel any suspicions or unnatural 
circumstances attaching to a will provided that there is something unna

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