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Wednesday, Dec 27, 2006
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Court: it's for the propounder to prove that will is genuine

Legal Correspondent

He must also establish testator signed of his own free will

New Delhi: If there is a doubt about the genuineness of a will, the burden of proof that it has been validly executed and that is a genuine document is on the propounder, the Supreme Court has held.

"The propounder is also required to prove that the testator has signed the will and that he put his signature of his own free will having a sound disposition of mind and understood the nature and effect thereof." A Bench consisting of Justices S.B. Sinha and Markandey Katju said: "If sufficient evidence 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 and cogent evidence if there exists any. In the case of proof of will, the signature of a testator alone would not prove the execution thereof, if his mind appears very feeble and debilitated. However, if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator."

The 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 unnatural or wholly unfair in the light of the relevant circumstances and where the propounder himself takes a prominent part in the execution of the will, which confers on him substantial benefit."

Writing the judgment, Justice Sinha said that in such cases the trial court must satisfy its conscience on due execution of the will by the testator and the court would not refuse to probe the matter deeper just because the propounder's signature was otherwise proved. "The proof of a will is required not as a ground of reading the document but to afford the judge reasonable assurance of its being what it purports to be."

The Bench, however, said the "existence of suspicious circumstances alone may not be sufficient. The court may not start with a suspicion and it should not close its mind to find the truth. A resolute and impenetrable incredulity is demanded from the judge even if there exist circumstances of grave suspicion."

In the instant case, the late Umeshchandra Madhav Joshi, who had seven sons and three daughters, was said to have executed a will when he was in an emergency ward, in favour of one of his sons, Niranjan Umeschandra Joshi (appellant) without leaving anything for the other children. The Bombay High Court refused to probate the will holding that the attesting witnesses having been known to the appellant for long, no reliance could be placed on their evidence and that the execution of the will was done suspiciously.

Dismissing the appeal against this judgment, the Bench said, "the appellate court, while exercising its jurisdiction, would ordinarily not interfere with the finding of fact arrived at by the trial court if the view taken by it is reasonable."

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