SRIDEVI AND ORS. versus JAYRAJA SHETTY AND ORS.

Citation: [2005] 1 S.C.R. 862 · Decided: 28-01-2005 · Supreme Court of India · Bench: ASHOK BHAN, A.K. MATHUR · Disposal: Dismissed

Judgment (excerpt)

A 
B 
SRIDEVI AND ORS. 
V. 
JAY A RAJA SH ETTY AND ORS. 
JANUARY 28, 2005 
[ASHOK BHAN AND A.K. MATHUR, JJ.] 
Succession Act, 1925-Section 63-Will-Execution of-Onus to prove 
due execution lies on propounder-Once propounder shows that the testator 
C in sound disposing mind signed the Will of his own free will, onus to prove 
undue influence, fraud, coercion shifts to the person alleging it-On facts, 
testator executed the Will bequeathing certain properties in favour of 
respondents-Appellants claiming share in the property on the ground that 
Will was not duly executed-Trial court and High Court dismissing the claim 
upholding the validity of Will-On appeal, held, in the absence of suspicious 
D circumstances surrounding the execution of Will, and the statement of attesting 
witnesses and scribe as to sound disposing mind of testator while signing Will, 
respondents are discharged from burden -of proving the due execution of 
Will-Presence of son in the house at the time of execution of Will itself does 
not prove that he took prominent part in execution of Will-Delay in registration 
of Will explained-Thus, Will duly executed. 
E 
One 'P' father of 4 sons and 3 daughters executed a Will bequeathing 
certain movable and immovable properties to his sons 'D' and 'R'. 
Appellant l and 2, daughters of P and appellant 3, granddaughter from 
his third daughter filed suit claiming I/7th share each in the propertie~i 
F as natural heirs. Respondent nos.l-7 in their written statement admitted 
the contents of plaint. The suit was contested by the grandchildren 
(children of his 3 sons) and 'D' son of P. In the plaint, there was no mention 
about the Will as according to the appellants, it was not brought to their 
notice prior to filing of written statement. Trial court dismissed the su'it 
holding that Will executed by 'P' was genuine and valid and the 
G bequeathed properties were not amenable to partition. High Court upheld 
the order of trial court. Hence the present appeal. 
H 
Appellants contended that the Will propounded by the respondents 
was not a duly executed Will; that burden to prove due execution of the 
862 
SRIDEYI v. J. SHETTY 
863 
Will was on the propounders of the Will which they have failed to A 
discharge; that the Will was surrounded by suspicious circumstances as 
the testator died within 15 days of the execution of the Will and that he 
did not have the testamentary capacity to execute the Will; that respondent 
No. 13 (son of P) had taken a prominent part in the execution of the Will 
as he was present in the house at the time of the alleged execution of the 
Will; that the respondents had failed to disclose the execution of the Will B 
in any of the earlier proceedings before the revenue authorities and the 
• 
forest authorities which were contested between the appellants and 
Respondent Nos. 8-13 and that 'the Will was got registered after a lapse 
of 4 years and did not see the light of the day till it was produced in the 
present proceedings after a lapse of more than 6 years. 
C 
Respondent Nos. 8-13, the grand children contended that the due 
execution of the Will had been proved by the testimony of the scribe and 
the two attesting witnesses coupled with the testimony of the hand-writing 
expert, who have categorically stated that the Will had been executed in 
their presence and the.testator signed the same while in sound disposing D 
mind and in possession of full physical and mental faculties; that need to 
register the Will after a lapse of 4 years arose as per the legal advice given 
to them; that the Will had been disclosed to the respondents at the time 
of final obeisance ceremony of the testator in I 976, and then in 1978 in 
the proceedings before the forest authorities and that the Will was E 
disclosed to the entire world at the time of its registration in 1980. 
Dismissing the appeal, the court 
HELD: 1.1. The mode of proving the Will does not differ from that 
of proving any other document except as to special requirement of F 
attestation prescribed in case of a Will by Section 63 of Indian Succession 
> 
Act, 1925. The onus to prove the Will is on the propounder and in the 
absence of suspicious circumstances surrounding the execution of the Will, 
proof of testamentary capacity and proof of the signature of the testator, 
~-
as required by law, need be sufficient to discharge the onus. Where there 
are suspicious circumstances, the onus would again be on the propounder G 

Excerpt shown. Read the full judgment & AI analysis in Lexace.