NIRANJAN UMESHCHANDRA JOSHI versus MRIDULA JYOTI RAO AND ORS.

Citation: [2006] SUPP. 10 S.C.R. 1214 · Decided: 15-12-2006 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Dismissed

Judgment (excerpt)

A 
NIRANJAN UMESHCHANDRA JOSHI 
v. 
MRIDULA JYOTI RAO AND ORS. 
DECEMBER 15, 2006 
B 
[S.B. SINHA AND MARKANDEY KA TJU, JJ.] 
Succession Act, 1925-Will-Execution of-Allegations of suspicious 
circumstances-Sustainability of-Held: Probate cannot be granted since 
execution of Will was surrounded by suspicious circumstances-Circumstances 
C in which Will was prepared, attested and executed raised doubt about its 
genuineness, though Will bears the signatures of the testator-Disposition 
made in Will by testator unnatural and unfair-Propounder took part in 
execution of Will being sole recipient of legacy-Also non-examination of 
independent witnesses-Thus, order of courts below calls for no interference. 
D 
Deceased was survived by his wife, seven sons and three daughters. He 
appointed appellant-one of his sons as the executor and trustee of his Will 
and bequeathed his residuary estate absolutely to him. Appellant filed 
application for probate. Both the Single Judge and the Division Bench of High 
Court held that though the Will bear the signatures of the deceased and might 
E have been attested by the advocate and the doctor, but circumstances 
surrounding the execution of the Will were suspicious and the appellant could 
not remove the same, thus rejected the prayer for grant of probate. Hence the 
present appeals. 
F 
Dismissing the appeal, the Court 
HELD: I No case has been made out to interfere with the findings of 
both the Single Judge as also the Division Bench of the High Court. 
11233-A-BJ 
2.1. Section 63 of Evidence Act lays down the mode and manner in which 
G the execution of an unprivileged Will is to be proved. Section 68 postulates 
the mode and manner in which proof of execution of document is required by 
law to be attested. It in unequivocal terms states that execution of Will must 
be proved at least by one attesting witness, if an attesting witness is alive 
subject to the process of the court and capable of giving evidence. While 
making attestation, there must be an animus attestandi, on the part of the 
H 
1214 
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NIRANJAN UMESHCHANDRAJOSHI v. MRIDULAJYOTJ RAO 
1215 
attesting witness, meaning thereby, he must intend to attest, and extrinsic A 
evidence on this point is receivable. A Will is to prove what is loosely called 
as primary evidence, except where proof is permitted by leading secondary 
evidence. Unlike other documents, proof of execution of any other document 
under the Act would not be sufficient. (1231-C-Fl 
2.2. The burden of proof that the Will has been validly executed and is B 
a genuine document is on the propounder. The propounder is also required to 
prove that the testator has signed the Will and that he had put his signature 
out of his own free will having a sound disposition of mind and understood the 
nature and effect thereof. If sufficient evidence in this behalf is brought on 
record, the onus of the propounder may be held to have been discharged. But, 
the onus would be on the applicant to remove the suspicion by leading sufficient C 
and cogent evidence if there exists any. In the case of proof of Will, a signature 
of a testator alone would not prove the execution thereof, if his mind may appear 
to be very feeble and debilitated. However, if a defence of fraud, coercion or 
undue influence is raised, the burden would be on the caveator. 
11231-F-H; 1232-A) D 
Madhukar D. Shende v. Tarabai Shedage, [2002) 2 SCC 85 and Sridevi 
and Ors. v. Jayaraja Shetty and Ors., [2005) 8 SCC 784, relied on. 
2.3. Several circumstances described as suspicious circumstances are 
when a doubt is created in regard to the condition of mind of the testator despite 
his signature on the Will; when the disposition appears to be unnatural or E 
wholly unfair in the light of the relevant circumstances; and where propounder 
himself takes prominent part in the execution of Will which confers on him 
substantial benefit. (1232-B-D) 
H Venkatachala Iyengar v. B.N. Thimmajamma and Ors., AIR (1959) 
SC 443 and Management Committee T.K. Ghosh's Academy v. T.C. Polit and F 
Ors., AIR (1974) SC 1495, relied on. 
2.4. The Court must satisfy its conscience as regards due execution of 
the Will by the testator and the court would not refuse to probe deeper into 
the matter only because the signature of the propounder on the Will is 
otherwise proved. The proof a Will is required not as a ground of reading the G 
document but to afford the judge reasonable assurance of it as being what it

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