Supreme Court upholds finding that unregistered Will is not proved; appeal dismissed and partition decree confirmed

A bench of Justices C.T. Ravikumar and Rajesh Bindal heard an appeal challenging the Madras High Court, Madurai Bench judgment affirming a trial court decree in a partition suit. The primary issue related to the validity and genuineness of an unregistered Will dated 06.04.1990 propounded by defendant Nos.1 to 3 in O.S. No.142 of 1992 and whether that Will displaced shares allotted by an earlier partition deed dated 04.12.1989.

The Court dismissed the appeal and affirmed the concurrent findings of the Trial Court and the High Court that the propounded Will was not proved to be genuine and was shrouded with suspicious circumstances. The Court reiterated settled law that execution of a Will must be established under Section 63 of the Indian Succession Act and by examination of attesting witnesses under Section 68 of the Evidence Act, and that proof of execution does not, by itself, render a Will free from challenge where suspicious circumstances existed. The Court, in its reasoning, observed: “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 defendant Nos.2 and 3 also got 1/7th share each in the suit schedule properties.” The Court noted also the settled procedural position that “though it [was] the propounder to establish the execution of the Will and once the same [was] discharged, it [was] for the objector to pinpoint the suspicious circumstances. It [was] also the settled position that upon such objection, it [was] for the propounder to remove such suspicious circumstances.”

Background

The dispute arose out of properties that the deceased Balasubramaniya Thanthiriyar had partitioned by deed dated 04.12.1989 into four schedules and allotted the first-schedule properties to himself. After his death on 28.11.1991, plaintiffs—his children by his first wife—filed O.S. No.142/1992 seeking partition and allotment of 5/7th share. Defendant Nos.1 to 3 (the second wife and her two sons) propounded an unregistered Will dated 06.04.1990 seeking to defeat the plaintiffs’ claim. Plaintiffs alleged the second marriage was subsisting and that defendant No.1 was not entitled to any share; defendants relied on the Will and produced two attesting witnesses.

The Trial Court decreed the suit in favour of the plaintiffs and held that each plaintiff was entitled to 1/7th share (total 5/7) and that defendant Nos.2 and 3 were entitled to 1/7th each. The High Court dismissed the first appeal and sustained the trial court’s conclusions, principally on the ground that the Will was not proved and was shrouded with suspicious circumstances. The Supreme Court considered contested facts including purchase of two stamp papers in the name of defendant No.1, contradictory recitals in the Will — for example, the Will recited both that the testator executed it “with full conscious, with good memory and without instigation by anyone” and that “I suffer from heart disease and got treatment from several doctors” — the non-examination of the scribe and typist, the attesting witness relationship to defendant No.1, and the evidence that, as recorded by an attesting witness, “…the notary public read it over and Balasubramania Thanthiriar signed it.” The Court held that these circumstances were not sufficiently explained and that the propounders failed to prove the testator’s execution of the Will after understanding its contents. The appeal was therefore dismissed and the partition decree confirming the 5/7th allocation to the plaintiffs and 1/7th each to the two children of the second wife was maintained. There were no interim directions; costs were not awarded.

Case Details: Case No.: Civil Appeal No. 7578 of 2023 (2025 INSC 10) Case Title: Leela & Ors. v. Muruganantham & Ors. Appearances: For the Petitioner(s): [Names not indicated in the reported judgment] For the Respondent(s): [Names not indicated in the reported judgment]