2025 INSC 10

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Civil Appeal No. 7578 of 2023

Non-Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal No. 7578 of 2023

Leela & Ors.

…. Appellant(s)

Versus

Muruganantham & Ors.

…Respondent(s)

J U D G M E N T

C.T. RAVIKUMAR, J.

1. The unsuccessful defendant Nos.1 to 3 in OS

No.142/1992 which is a suit for partition and allotment of

5/7

th

share filed by respondent Nos.1 to 5 herein, filed

this appeal against the judgment dated 15.11.2019

passed by the High Court of Madras, Madurai Bench in

AS No.368/2002 whereby and whereunder the appeal

was dismissed and the judgment and decree in O.S. No.

142 of 1992 dated 27.09.2001 on the file of the Additional

Sub-Court, Tenkasi was confirmed. Essentially, the Trial

Court and the High Court have concurrently declined to

accept the case of the appellants based on the Will dated

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Civil Appeal No. 7578 of 2023

06.04.1990. Hereafter in this appeal, for the sake of

convenience, the parties are referred to, in accordance

with their rank and status in the Original Suit, unless

otherwise specifically mentioned.

2. The plaint averments, in brief is as follows: -

The suit schedule properties originally belonged

to one Balasubramaniya Thanthiriyar. He married twice.

Through his first wife, Rajammal (plaintiff

No.4/respondent No.4), he got three sons, namely,

Muruganandam (plaintiff No.1/respondent No.1),

Ganesh Murthy (plaintiff No.2/respondent No.2) and

Kannan (plaintiff No.3/respondent No.3) and one

daughter by name Mahalakshmi (plaintiff

No.5/respondent No.5). While the marriage with the first

wife Rajammal was subsisting, Balasubramaniya married

Leela (petitioner No.1/defendant No.1) and as such, she

is an illegitimate wife. Sivakumar (petitioner

No.2/defendant No.2) and Lt. Mageshwaran (petitioner

No.2/defendant No.3) are the illegitimate sons of

Balasubramaniya through Leela.

3. Earlier, Balasubramaniya Thanthiriyar instituted

O.S. No.504/ 1986 against his first wife and children

through her viz., plaintiff Nos.4, 1 to 3 and 5 respectively.

Later, it was compromised at the instance of the elderly

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Civil Appeal No. 7578 of 2023

villagers and partition of properties effected between

them as per partition deed dated 04.12.1989. As per the

partition deed, his properties were divided into four

schedules. Properties described and contained in the

first-schedule were allotted to himself by

Balasubramaniya Thanthiriyar. The second-schedule

properties consisting of 22 items were allotted to the

share of plaintiffs/respondent Nos.1 to 3 herein viz., his

sons through his first wife and the third-schedule

properties were allotted to his first wife viz.

plaintiff/respondent No.4. The fourth-schedule

properties were allotted in the name of his minor

daughter viz., plaintiff/respondent No.5.

Balasubramaniya died on 28.11.1991.

4. In fact, the lis in the present suit viz., O.S.

No.142/1992 is with respect to the several properties left

to the share of Balasubramaniya Thanthiriyar as per the

aforesaid partition deed and described as suit schedule

properties. According to the plaintiffs, defendant No. 1

is not entitled to any share in the property of deceased

Balasubramaniya Thanthiriyar being an illegitimate wife,

in the sense that they married when the first wife was

alive and that marriage was subsisting. It is the

contention of the plaintiffs that they each have 1/7 share

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Civil Appeal No. 7578 of 2023

and thus, totalling 5/7 share in the properties of

Balasubramaniya Thanthiriyar and respondent Nos.2

and 3 too got 1/7 share each only in such properties. The

first item of the schedule properties is shops buildings

occupied by defendants 4 to 12, the tenants. Conspiring

with them the defendant Nos.1 to 3 attempted to get the

entire amount of rent from the defendant Nos.4 to 12 and

to withdraw the bank deposit. Upon such developments

the plaintiffs issued notices to defendant Nos.4 to 12 and

then, filed H.R. C.O.P. No. 2 to 10 of the year 1992 in the

Court of Tenkasi Rent Controller and deposited the rent

amount. As relates to plucking of coconuts from the

groves mentioned as items 18 to 21 the defendant Nos.1

to 3 created problems and were trying to appropriate the

harvest with the help of the police. In short, the

defendant Nos.1 to 3 are trying to create prejudice to

their shares and also to create encumbrance on the

shares of the plaintiffs. They also pleaded that the

defendant Nos. 1 to 3 claimed execution of a Will in their

favour by Balasubramaniya Thanthiriyar and if they

created any such record, it is a wilful forgery. In short,

according to the plaintiffs they and defendant Nos. 2 and

3 are in joint possession of the suit schedule properties

as co-owners.

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Civil Appeal No. 7578 of 2023

5. The first defendant/ the first respondent filed a

written statement which was adopted by defendant Nos.

2 and 3/respondents 2 and 3. Now, respondent No. 3 is

no more and he is represented by his legal heirs.

6. In the suit, the appellants herein/the defendants

produced the Will dated 06.04.1990 which is an

unregistered one. They filed a written statement stating

that Balasubramaniya was being harassed and assaulted

by the plaintiffs and it is due to that harassment that the

partition deed dated 04.12.1989 was executed. The

plaintiff/ respondents herein could not claim any right

over the properties based on the partition deed. The

plaintiffs got no right over the first-schedule properties

which was allotted to Balasubramaniya. It is their

contention that the first-schedule properties belonged to

Balasubramaniya and, therefore, after his demise only

the second and third defendants got entitlement.

7. Based on the rival pleadings, the Trial Court

framed the following issues: -

“(i) Whether the plaintiffs are entitled to a

share in the first schedule of the properties?

(ii) Whether the will dated 06.04.1990 is valid?

(iii) Whether the plaintiffs and defendants 2

and 3 are in joint enjoyment of the suit

properties?

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Civil Appeal No. 7578 of 2023

(iv) Whether the plaintiffs are entitled to 5/7

th

share 1n the property?

(v) What are the reliefs available to the

plaintiffs?”

8. On the side of the plaintiffs, PW-1 was examined

and Ext.A1 was marked. On the side of the defendants,

DW-1 and 2 were examined and Ext.B1 and B2 were

marked. The Trial Court decreed the suit in favour of the

plaintiff and against which the defendant/appellant

Nos.1 to 3 preferred first appeal. It is contended that the

Trial Court failed to recognise the significance of Ext.A1

which clearly reveals absence of joint family consisting

of father and the plaintiffs. It was also the contention that

the Trial Court failed to attach due importance to Ext.B2-

Will.

9. Based on the such pleadings the Appellate Court

framed the following issues: -

“(i) Whether the will, dated 06.04.1990, is

valid?

(ii) Whether the respondents are entitled for

5 /7

th

share in the suit properties?

(iii) Whether the appeal is to be allowed?”

10. The High Court considered the materials on record

and after hearing the parties declined to accept the Will

and dismissed the appeal. In this appeal the appellant

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Civil Appeal No. 7578 of 2023

assails the judgment of the High Court as also the

judgment and decree of the Trial Court which was

confirmed by the High Court, raising various grounds.

11. As noticed hereinbefore, deceased

Balasubramaniya Thanthiriyar, while alive, effected a

partition on 04.12.1989. The bone of contention in the

appeal is with respect to the shares allotted thereunder

in favour of Balasubramaniya Thanthiriyar by himself.

When the partition is not in dispute and also the factum

of allotment of the properties under the first schedule

thereunder to Balasubramaniya Thanthiriyar, it has to be

treated that the properties allotted to him were his self-

acquired properties. Even otherwise, with respect to his

exclusive title and ownership over the properties, none

of the parties raised any dispute. While the plaintiffs

contend that they are to partitioned 1/7

th

each among

them, five in number and the two children of

Balasubramaniya Thanthiriyar through the first

appellant/first defendant-Leela; Concurrently, it was

found that the plaintiffs are entitled to 5/7 shares (1/7

th

each) and the two sons born to Balasubramaniya

Thanthiriyar through Leela, though illegitimate, are

entitled to 1/7

th

share each. The concurrent finding in

that regard requires interference if only the finding on

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Civil Appeal No. 7578 of 2023

the validity and enforcement of the alleged Will dated

06.04.1990 is interfered with in this proceeding.

12. The learned Senior Counsel appearing for the

appellants would contend that the Courts below have

erred in arriving at the finding that the said Will is not

genuine and shrouded with suspicious circumstances. It

is the submission that the appellants/defendant Nos.1 to

3 had succeeded in establishing its execution in terms of

Section 63 of the Indian Succession Act, 1925, by

examining two attesting witnesses and Section 68 of the

Indian Evidence Act, 1872. It is also the contention that

both the Trial Court and the High Court have failed to

consider that initially there was a dispute on the entire

property belonging to Balasubramaniya Thanthiriyar

between him, on the one side and his first wife and

children through her born to him on the other side viz.,

O.S. No.504 of 1986 filed by Balasubramaniya

Thanthiriyar himself. It is the further contention that

later, he effected a partition of the said properties

through a partition deed dated 04.12.1989 into four

schedules and except the first schedule the others were

given in favour of the plaintiffs and only thereafter the

property allotted to him was bequeathed as per the Will

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Civil Appeal No. 7578 of 2023

dated 06.04.1990 to the appellants herein. The said Will

was attested by two witnesses, satisfying the statutory

requirement under Section 63 of the Indian Succession

Act. In such circumstances, according to the learned

Senior Counsel the irresistible conclusion could have

been and should have been that Balasubramaniya

Thanthiriyar wanted to give properties to his second wife

and the children born through her and it is the realisation

of his intention in that regard which resulted in execution

of the said Will dated 06.04.1990. It is also the contention

that a scanning of the suspicious circumstances in the

light of the innumerable decisions on the validity of Will,

especially touching the question of suspicious

circumstances which would make a proven Will in the

sense, as executed unworthy to act upon, would reveal

that the circumstances relied on by the Courts in the case

in hand to hold the Will as not genuine being shrouded

with suspicions are absolutely unsustainable as they

were not sufficient to cast a suspicion on the genuineness

of the validly executed Will dated 06.04.1990.

13. The learned counsel appearing for the

respondents would submit that there cannot be any

doubt with respect to the settled position that mere proof

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Civil Appeal No. 7578 of 2023

of an execution of a Will in terms of the requirement

under Section 63 of the Succession Act and Section 68 of

the Evidence Act, though would go to show that the Will

concerned was executed but, that by itself cannot make

the said Will genuine and worthy for acting upon. It is

further submitted that the Courts below have rightly

found concurrently that the said Will is not genuine as it

is shrouded with suspicious circumstances.

14. We are of the considered view that the fate of this

appeal depends upon the decision on the genuineness

and the question whether the suspicious circumstances

are removed/explained to the satisfaction of this Court.

The Will is executed on the stamp papers bought in the

name of petitioner No.1, who was examined as DW-1.

Still, DW-1 categorically denied the case of having

played a role in the execution of the said Will. Before

looking into the alleged and upheld suspicious

circumstances, it is only apposite to refer to the settled

position that though it is the propounder to establish the

execution of the Will and once the same is discharged, it

is for the objector to pinpoint the suspicious

circumstances. It is also the settled position that upon

such objection, it is for the propounder to remove such

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Civil Appeal No. 7578 of 2023

suspicious circumstances. (See the decision of this Court

in Derek A.C. Lobo v. Ulric M.A. Lobo (Dead) by LRS.

1

),

in one among us (C.T. Ravikumar, J.) is a party.

15. Now, we will refer to the suspicious circumstances

pointed out by the Courts below: -

(i) That the first appellant (DW-1) one of the

beneficiaries and the mother of the other

beneficiaries played active role in the execution of

the Will in question and concealed this fact before

the Court;

(ii) Contradictory recitals on the health of the testator

in the Will and the evidence of DW-1 herself

strengthening the same;

(iii) Non-matching of the signature of the testator in

Ext.A1-partition deed and Ext.B2-Will dated

06.04.1990;

(iv) Non-examination of the person who typed the Will;

(v) Non-examination of the Scribe;

(vi) Incongruity with respect to the place of execution

of the Will.

1

2023 SCC OnLine 1893; 2023 INSC 1093

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Civil Appeal No. 7578 of 2023

(vii) Failure to prove that the testator executed the Will

after understanding its contents.

16. At the outset, it is to be stated that legitimacy or

illegitimacy of the second wife and the children born

through the second wife is not a matter of relevance for

consideration in the case on hand as the question is not

in relation to partition of ancestral properties. So also,

the fact of non-inclusion of the first wife and children

through her is not of much relevance in view of the

admitted position that Balasubramaniya Thanthiriyar on

04.12.1989 partitioned his entire properties into four

schedules and allotted three, out of the four, schedules

to them and allotted on the first schedule to himself.

Therefore, the first question is whether the appellants

who claimed under the Will dated 06.04.1990 proved its

execution in accordance with law and if so, still the

question is whether it is shrouded with suspicious

circumstances.

17. There is a concurrent version with respect to the

place of the execution of the Will. Though, the recitals in

the Will would show that with respect to the health of

Balasubramaniya Thanthiriyar contradictory versions

appear in the said Will. In one part of the Will it is stated,

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Civil Appeal No. 7578 of 2023

“with full conscious, with good memory and without

instigation by anyone” and at the same time in another

part it is stated, “I suffer from heart disease and got

treatment from several doctors”. The Court also took note

of the fact that defendant No.1 herself stated that the

health of her husband was in bad condition and as there

was a danger to his life, he executed the Will at Madurai

and had no role in the preparation of the Will. The Courts

found that two pages of the stamp papers were bought in

the name of defendant No.1 from Tenkasi and still

defendant No.1 contended that she did not participate in

the execution of the Will. DW-1 stated in her written

statement that till the partition in 1989, when the

properties were enjoyed jointly, no problem had

occasioned to him. It is taken that the said statement of

DW-1 itself would reveal that the properties were jointly

enjoyed.

18. The Courts below on appreciation of the evidence

concurrently found that the version of DW-1 that she had

not participated in the execution of the Will and that she

was not aware of the execution of the Will, is incorrect.

19. In the light of the rival contentions and the

evidence discussed in detail by the Trial Court and then

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by the High Court, the question is whether the appellant

succeeded in proving the execution of the Will and if so,

whether the appellants who disputed its execution and

also challenged the Will on the ground of existence of

suspicious circumstances would m ake the same

unreliable and not worthy for proceeding further.

20. There can be no doubt with respect to the manner

in which execution of a Will is to be proved. In the light

of plethora of decisions including the decisions in

Moturu Nalini Kanth v. Gainedi Kaliprasad (Dead,

through Lrs.)

2

and in Derek AC Lobo’s case (supra) this

position is well settled that mere registration of a Will

would not attach to it a stamp of validity and it must still

be proved in terms of the legal mandates under the

provisions of Section 63 of the Indian Succession Act and

Section 68 of the Evidence Act. It is not the case of the

appellant that the Will dated 06.04.1990 is a registered

one.

21. Now, Section 63 of the Succession Act reads thus:-

“63. Execution of unprivileged wills.—Every

testator, not being a soldier employed in an

expedition or engaged in actual warfare, [or

an airman so employed or engaged,] or a

2

2023 SCC OnLine SC 1488; 2023 INSC 1004

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Civil Appeal No. 7578 of 2023

mariner at sea, shall execute his will

according to the following rules:—

(a) The testator shall sign or shall affix his

mark to the will, or it shall be signed by some

other person in his presence and by his

direction.

(b) The signature or mark of the testator, or

the signature of the person signing for him,

shall be so placed that it shall appear that it

was intended thereby to give effect to the

writing as a will.

(c) The will shall be attested by two or more

witnesses, each of whom has seen the testator

sign or affix his mark to the will or has seen

some other person sign the will, in the

presence an d by the direction of the testator,

or has received from the testator a personal

acknowledgment of his signature or mark, or

of the signature of such other person; and each

of the witnesses shall sign the will in the

presence of the testator, but it shall not be

necessary that more than one witness be

present at the same time, and no particular

form of attestation shall be necessary.”

22. Section 68 of the Evidence Act makes it clear that

at least one attesting witness has to be examined to

prove execution of a Will. It is true that in the case at

hand DW2 was the attesting witness who was examined

in Court. Therefore, the question is whether they had

deposed to the effect that the Will in question was

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Civil Appeal No. 7578 of 2023

executed in accordance with sub-rules (a) to (c)

thereunder.

23. The Trial Court rightly held that the propounder of

the Will has to establish by satisfactory evidence that the

Will was signed by the testator, that the testator at the

relevant time was in a sound disposing state of mind and

that he understood the nature and effect of the

dispositions and put his signature out of his own free will.

24. The first appellant, who was defendant No.1 and

the propounder of the Will, was examined as DW1. Her

categoric case is that Balasubramaniya Thanthiriyar was

not living with the plaintiffs. In her written statement she

stated that he had executed the unregistered Will dated

06.04.1990 without instigation from anyone when had

good memory. Her deposition would reveal that she

herself and her sons viz., defendant Nos.2 and 3 were the

beneficiaries of the Will. She did not divulge the fact that

two pages on the stamp papers on which the Will was

typed were bought in her name from Tenkasi. Still, she

deposed that she had not played any role in the

execution of the Will. DW2 who is the attesting witness

to the Will in question is the brother of DW1, the first

appellant. Going by her oral evidence, it was DW1, her

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brother who had brought the same to her. She had also

deposed that in 1990 her husband, the testator was

unwell and was under treatment in Madras and his health

was in bad condition. Add to it, she deposed that his and

her life was in danger from the sons of his first wife. Thus,

if DW1 is to be believed the testator’s physical and also

mental conditions were not in sound disposition, as held

by the Trial Court and appreciating the evidence the

Courts have found that there is no such circumstance of

threat as alleged and attempted to be proved by the first

defendant (DW1) necessitating the testator to execute

the Will.

25. Now, going by DW1, she had no role in the

preparation of the Will. But the undisputed and proven

fact is that two stamp papers on which the Will was typed

were brought in the name of the first defendant from

Tenkasi. In this context, it is also to be seen that the

attesting witness who was examined as DW2 in Court is

admittedly the brother of the first defendant viz., DW1

and further that it is her case that the Will in question was

given to her by DW2 in Tenkasi.

26. Now, another circumstance which was taken into

account by the Courts below is that nothing is on record

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to show that the testator had executed the Will after

understanding its contents. Though DW2 deposed that

the notary public read over the Will and then

Balasubramaniya signed it. The Courts below correctly

took note of the fact revealed from the very Will that such

noting that it was read over to the testator is absent there.

Another situation crops up for consideration if DW2 is

believed. If the testator was in good health and Will was

prepared at his direction and he himself was able to

dictate it why it should be read over to him before

putting signature. The deposition of DW2 was thus: -

“…the notary public read it over and

Balasubramania Thanthiriar signed it.”

27. Though in normal circumstances there was no

necessity to examine the scribe and the non-examination

of the scribe cannot be a suspicious circumstance, it was

taken note of by the Courts in the circumstances

explained above.

28. The circumstances under which DW2 came into the

possession of the Will is also a matter which was

exponable either by DW1 or DW2. This is because

according to DW1, her brother-DW2 gave the same to

her in Tenkasi and the noting in the Will and the

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evidence of DW2 would go to show that it was executed

at Madurai.

29. In the circumstances, paragraph 21 of the

impugned judgment also assumes relevance. It reads

thus:-

“21. On the side of the respondents, it is stated

that the will executed in a far away place from

where the testator used to reside and the

attesting witness not known to the testator are

suspicion circumstance to disprove the will. It

is stated that the will is stated to have been

executed at Madurai whereas the testators

residence was at Tenkasi and that the

evidence of D.W.1 and D.W.2 was that D.W.1

was not present at Madurai and the evidence

of D.W.1 was that she was not aware that her

husband was going to execute a will at

Madurai and that the stamp papers were

purchased in the name of the first defendant at

Tenkasi and these circumstance creates

suspicion regarding the execution of the will.”

30. The very case of the first defendant viz., DW1 is that

the testator was being looked after by her. She was

residing at Tenkasi and if the testator used to stay there

with her and her deposition is to the effect that she was

not aware that her husband was going to execute a Will

at Madurai and then, the proven fact is that two stamp

papers, on which 2 pages of the Will were typed, were

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Civil Appeal No. 7578 of 2023

purchased in the name of the first defendant from

Tenkasi, create some suspicion. As noted earlier, the

health of testator was in bad condition and if so, the case

that the execution of the Will was at a far away place from

Madurai is also a matter casting suspicion. Evidently, it

was taking into consideration all the aforesaid and such

other circumstances that the High Court arrived at the

finding that the execution of the Will itself was not

proved. The circumstances surrounding the Will were

also concurrently held as suspicious.

31. In the circumstances, the evidence of DW2 cannot

be taken sufficient to prove the execution of the Will in

question in the manner it is required to be proved and to

accept it as genuine. It can only be held that the

defendants have failed to prove that the testator

executed the Will by putting his signature after

understanding its contents. In such circumstances, when

the findings are concurrent how can the findings on the

validity and genuineness of the Will in question by the

Trial Court and the High Court be interfered with. There

is no reason to hold that the appreciation and findings

are absolutely perverse warranting appellate

interference by this Court. It is also to be noted that the

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defendant Nos.2 and 3 also got 1/7

th

share each in the suit

schedule properties.

32. For all these reasons the appeal has to fail.

Consequently, it is dismissed. In the circumstances,

there is no order as to costs.

……………………, J.

(C.T. Ravikumar)

……………………, J.

(Rajesh Bindal)

New Delhi;

January 02, 2025.