SC: To Execute Will all Suspicious Circumstances

shall be removed
December 5, 2017

December 05, 2017

Dr. Prakash Soni v. Deepak Kumar and Anr.

Date of Judgment: September 15, 2017

The Supreme Court in a recent judgment deliberated on execution of Will on the death bed by the
Testator. The Court held that in such cases suspicious circumstances if any shall be satisfactorily
discharged otherwise the Courts would be reluctant to treat the document as the last will of the
testator.

Two laws that were covered in the case related to application for grant of succession certificate
under the Indian Succession Act, 1925 and the burden to prove disputed will as last Will of
Testator.

Background

In the case the appeal was preferred against High Court’s (Madhya Pradesh) order passed in
2006, wherein the Court had dismissed the Appellant’s application for succession certificate filed
under Section 372 of the Indian Succession Act.
Brief facts- The deceased’s husband i.e. the Appellant filed an application before the Civil Judge,
District Rajgarh, Madhya Pradesh, under Section 372 of the Indian Succession Act for grant of
succession certificate of his wife late Srimati Mooli Swarnkar. The Appellant’s wife was working as
an Assistant Teacher in Government Girls Higher Secondary School, Madhya Pradesh. She died in
2001 due to liver cancer and Hepatitis ‘B’. The Appellant and Srimati Mooli Swarnkar did not have
any children hence the Appellant being her husband and as her only successor in the case claimed
to be entitled to receive the retiral benefits of her deceased wife. To this, the Respondents filed a
counter claim. The Respondents in the case were the sons of Srimati Mooli Swarnkar’s brother.
The Respondents in the case also claimed their rights in the retiral benefits on the basis of a Will,
said to have been executed by her on the day of her death i.e. 18.11.2001.

The Appellant in the case appealed before the Supreme Court wherein his core contention was
that his deceased wife’s signature appearing on the Will did not correspond to her signatures in
other documents. He also stated that on the alleged date of execution of the Will her wife was not
in a condition to take any decision on her own free will.

Bench’s Verdict

The Supreme Court in view of the facts of the case stated that the entire case revolved around the
proof of due execution of the alleged Will and was surrounded by suspicious circumstances. The
Court observed that as per the presented case, the Will was executed by the deceased Srimati
Mooli Swarnkar on the date of her death and the witnesses who were allegedly present also stated
that hands of Srimati Mooli Swarnkar was shivering while signing the disputed Will.

Alleged Will not a result of testator’s free will and mind– The Court pointed out that at the
time of alleged execution of Will, Srimati Mooli Swarnkar was very weak and she was being
administered drip. The Court also noted that on comparison of the disputed signature on the Will
and other signatures of the deceased, it was observed that they were totally different.

The Court on the basis of facts and circumstances of the case, was of the view that the condition
of the testator’s mind and body was very feeble and debilitated. The signature of the testator was
allegedly taken on the death bed while she was administered drip. The dispositions made in the
will may not be the result of the testator’s free will and mind.

To prove due execution of Will, suspicious circumstances shall be discharged

satisfactorily- The Court held that in such cases, the Court would naturally expect that all
legitimate suspicions should be completely removed before the document is accepted as the last
will of the testator. The presence of such suspicious circumstances naturally tends to make the
initial onus very heavy and unless it is satisfactorily discharged, Courts would be reluctant to treat
the document as the last will of the testator.

The Court observed that in the instant case there were many suspicious circumstances hence the
dispositions made in the alleged will may not be as a result of testator’s free will and mind. The
Court further held that the Respondents being the propounders of the will had failed in the case to
satisfy the judicial conscience of this Court regarding due execution of the will.

In view of the aforesaid, the Court overruled the High Court’s judgment in the case and held that
the Appellant was the successor of the deceased Srimati Mooli Swarnkar iand was entitled to
receive all retiral benefits of his wife.

Take Away

The Supreme Court in the instant case has ruled that while determining the genuineness of the
Will one of the essential aspect is to ensure that the testator made the Will with free will and mind
and at the time of execution of Will was physically and psychologically capable of executing the
same. Another aspect highlighted by the Court in the case relates to the heavy burden on the
party who claims a Will to be the last Will of the testator. The Court stated that in such cases all
the situations giving rise to suspicious circumstances shall be eliminated else the Court would be
reluctant to treat the Will as the last Will of testator.