S. SUNDARESA PAI AND ORS. versus MRS. SUMANGALA T. PAI AND ANR.

Citation: [2001] SUPP. 5 S.C.R. 366 · Decided: 28-11-2001 · Supreme Court of India · Bench: R.P. SETHI · Disposal: Appeal(s) allowed

Judgment (excerpt)

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. S. SUNDARESA PAI AND ORS. 
v. 
MRS. SUMANGALA T. PAI AND ANR. 
NOVEMBER 28, 2001 
[R.P. SETHI AND Y.K. SABHARWAL, JJ.] 
Wills : 
Execution of the documents-Legality of-Uneven distribution qf assets 
by the testator-Cannot render the document illegal-Such distribution is pure 
discretion o,f the executant. 
Respondent No. 1 filed a suit against the appellant, respondent No. 2 
and her father claiming I/6th share of the properties left behind by her 
mother dying intestate. Appellants, respondent No. 2 and their father 
submitted that the property of their mother should be dealt according to 
the Will. Trial Court dismissed the suit holding that the Will had been duly 
proved. High Court set aside the order. Since the father of respondent No. 
I died during the pendency of the suit, she amended the plaint claiming 11 
5th share of property instead of I/6th share. High Court remanded the suit 
to the Trial Court. Hence the present appeal. 
Allowing the appeal, the Court 
HELD : 1.1. The uneven distribution of assets by the testator amongst 
children , by itself, cannot be taken as a cil'cumstance causing suspicion 
surrounding the execution of the Will. The distribution of assets lies squarely 
within the pure discretion of the executant of the Will. [368-G-H) 
1.2. In the instant case all the appellants and respondent No. 2 
supported the uneven distribution of assets in the Will. Only respondent 
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No.I questioned the Will. Respondent No. 2-widowed daughter did not 
question the uneven distribution of the assets; rather supported it even 
though she was more deserving. The Will had been formally proved in 
view of the testimony of the attesting witness. Further, the non-registration 
of the Will executed by the mother and registration of the Will executed by 
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the father of respondent No. 1 does not create any doubt about the due 
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S. SUNDARESA PAI v. SUMANGALA T. PAI [SABHARWAL, J.] 
367 
execution of the Will. Thus, the fiudiag that the Will was not proved and is 
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unnatural on the basis of uneven distribution of assets by the testator 
cannot be sustained. [368-G;H; 369-C; G] 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5301of1992. 
From the Judgment and Order dated 19.12..90 of the Kerala High Court 
in A.S. No. 56 of 1986. 
C.S. Vaidyanathan, Ramy Chako, Lakshmi Narayana, S.S. Khanduja, 
Gopal Krishnan for the Appellants. 
E.M.S. Anam for the Respondents. 
The Judgment of the Court was delivered by 
Y.K. SABHARWAL, J. Respondents I and 2 in this appeal are daugh-
ters of one Indira Bai. Appellants are her three sons. Indira Bai died on 13th 
November, 1981. 
In April, 1983, respondent no. I instituted a suit against the appellants, 
respondent no.2 and her father claiming that Indira Bai died intestate on 13th 
November, 1981 and she is entitled to l/6th share in the properties left behind 
by her. She also pleaded that if there is any Will that is forged. All the 
defendants, namely, father, three brothers and one sister of the plaintiff/re-
spondent no. 1 took the stand that Indira Bai had left behind a Will dated 26th 
August, 1981 and her properties are to be dealt with as per the Will. The father 
of respondent no. I who was defendant no. I in the suit died during the 
pendency of the suit. 
On appreciation of evidence the trial court held that the Will had been 
duly proved and the suit was dismissed. In the first appeal, the judgment df the 
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trial court was reversed by the High Court. The findings of the trial court 
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upholding the Will dated 26th August, 1981 were reversed by the impugned 
judgment. It was held that the will had not been proved and the plaintiff was 
entitled to I/6th share in the assets of Indira Bai. Since the husband of Indira 
Bai died during the pendency of the suit and respondent no. I disputed the 
execution of will by her father and proceeding on the basis that her father died 
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SUPREME COURT REPORTS 
[2001] SUPP. 5 S.C.R. 
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intestate, the plaintiff by amending the plaint claimed I/5th share instead of II 
6th in the estate of Indira Bai. The High Court directed remand of the suit to 
the trial court for fresh disposal in the light of the findings in respect of the 
will dated 26th August, 1981. The trial court was directed to decide whether 
respondent no.I inherited I/6th or I/5th share in the estate of Indira Bai. The 
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judgment of the High Court has been challenged in this appeal by sons of Indira 
Bai. The other s

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