MEENAKSHIAMMAL (DEAD) THROUGH LRS. AND ORS. versus CHANDRASEKARAN AND ANR.

Citation: [2004] SUPP. 5 S.C.R. 898 · Decided: 03-11-2004 · Supreme Court of India · Bench: ASHOK BHAN · Disposal: Dismissed

Judgment (excerpt)

A 
MEENAKSHIAMMAL (DEAD) THROUGH LRS. AND ORS. 
v. 
CHANDRASEKARAN AND ANR. 
B 
NOVEMBER 3, 2004 
[ASHOK BHAN AND S.H. KAPADIA, JJ.] 
Succession Act,. /925-Section 63-'Will'~Execution-Validity of-
' 
C Claim of property on the strength of Will-Allegation of forgery, t undue 
D 
E 
influence and collilsidn in execution of will-Allegation not made at trial 
stage-Trial Court held the Will pr~ved-L~wer appellate Court held the 
Will forged-High Court held the finding of forgery at appellate stage in 
absence of the plea at trial stage, not permissible-On appeal, held: The 
onus to prove the Will is on the propounder after removing all the legitimate 
suspicions to the satisfaction of the Court-In the present case execution, 
attestation and genuineness of the Will proved by the propounder of the 
Will-In absence of allegation of forgery at trial stage, the onus to prove the 
a/legation not having been discharged, finding of forgery at appellate stage 
is erroneous. 
Appellant-plaintiffs filed a suit for a declaration and for recovery of 
possession of the properties of 'S' on the ground that they being children of 
his real sister were entitled to succeed to his properties in preference to the 
respondent-defendants 1 and 2, they being children of his step-brother and 
step-sister. Defendants took the stand that they were in possession of the suit 
F property on the strength of a Will executed by 'S' by which the suit. property 
was equally divided between the two defendants; that plaintiffs were excluded 
from 'Will' as 'S' and his sister were not in cordial terms and plaintiffs did 
not take care of 'S' in his old age; that at the time of execution of Will though 
'S' was 85 years of age and had suffered fracture, he was mentally alert; that 
the Will was in presence of the witnesses and he had read the Will before 
G. signing it; that he was advised to get the Will registered, but he refused 
saying that he was in good health and would live longer. 
Trial Court dismissed the suit holding that.the 'Will' was proved and 
hence plaintiffs were not entitled to the relief of declaration and for recovery 
H of possession. 
898 
f'" 
MEENAKSHIAMMAL(DEAD) THROUGH LRS. v. CHANDRASEKARAN 
899 
Lower appellate Court allowed the appeal holding that the Will was not A 
proved and the same was forged on the grounds that defendants were 
instrumental in execution of the 'Will'; that no cogent reason has been given 
for non-registration of the 'Will' and exclusion of the plaintiffs therefrom; 
that the 'Will' was written in black ink while the signature of the testator 
was in different ink; though 'S' was undergoing treatment in hospital, the B 
'Will' was executed at home; that there were contradictions in the statements 
of the witnesses. 
In second appeal, High Court reversed the judgment of lower appellate 
Court on the ground that in absence of challenge to the validity of the Will 
and allegation of forgery and undue influence in the plaint, it was not open to C 
lower appellate Court to hold the Will as procured or forged. Hence it held 
the execution of the Will as proved." 
In appeal to this Court, appellants contended that though in the plaint 
forgery was not alleged. but in view of failure to remove the suspicion 
surrounding the Will, lower appellate Court's finding of forgery was right; D 
and that Will was not proved to be genuine. 
Dismissing the appeal, the Court 
HELD: t. The onus of proving the Will is on the propounder and in the 
absence of suspicious circumstances surrounding the execution of the Will, E 
proof of testamentary capacity and proof of the signature of the testator, as 
required by law, is sufficient to discharge the onus. Where, however, there 
are suspicious circumstances, the om~s is on the propounder to explain them 
to the satisfaction of the Court before~it accepts the Will as genuine. Even 
where the circumstances give rise to doubts, it is for the propounder to satisfy 
the conscience of the Court. The suspicious circumstances may be regarding F 
the genuineness of the signature of the testator, the condition of the testator's 
mind, ~he disposition made in the Will being unnatural, improbable or unfair 
in the light of relevant circumstapces, or there might be other indications in 
the Will to show that the testator's mind was not free. In such a case, the 
Court would normally expect that all legitimate suspicions should be G 
completely removed before the document is accepted as the las

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