Content Provider | Supreme Court of India |
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e-ISSN | 30484839 |
Language | English |
Access Restriction | NDLI |
Subject Keyword | coercion shifts to the person alleging it 1925-Section 63-Will-Execution of-Onus to prove due execution lies on propounder-Once propounder shows that the testator in sound disposing mind signed the Will of his own free will fraud onus to prove undue influence Succession Act |
Content Type | Text |
Resource Type | Law Judgement |
Jurisdiction | India |
Case Type | Appeal |
Court | Supreme Court of India |
Disposal Nature | Appeal Dismissed |
Headnote | Succession Act, 1925-Section 63-Will-Execution of-Onus to prove due execution lies on propounder-Once propounder shows that the testator 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 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. 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 1 and 2, daughters of P and appellant 3, granddaughter from his third daughter filed suit claiming 1/7th share each in the properties as natural heirs. Respondent nos. 1-7 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 suit holding that Will executed by 'P' was genuine and valid and the bequeathed properties were not amenable to partition. High Court upheld the order of trial court. Hence the present appeal. Appellants contended that the Will propounded by the respondents was not a duly executed Will; that burden to prove due execution of the Will was on the propounders of the Will which they have failed to 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 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. 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 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 1976, and then in 1978 in the proceedings before the forest authorities and that the Will was disclosed to the entire world at the time of its registration in 1980. |
Judge | Hon'ble Mr. Justice A.K. Mathur |
Neutral Citation | 2005 INSC 54 |
Petitioner | Sridevi And Ors. |
Respondent | Jayraja Shetty And Ors. |
SCR | [2005] 1 S.C.R. 862 |
Judgement Date | 2005-01-28 |
Case Number | 3749 |
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