{"id":63635,"date":"2007-05-16T00:00:00","date_gmt":"2007-05-15T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/apoline-d-souza-vs-john-d-souza-on-16-may-2007"},"modified":"2016-07-01T13:58:36","modified_gmt":"2016-07-01T08:28:36","slug":"apoline-d-souza-vs-john-d-souza-on-16-may-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/apoline-d-souza-vs-john-d-souza-on-16-may-2007","title":{"rendered":"Apoline D Souza vs John D Souza on 16 May, 2007"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Apoline D Souza vs John D Souza on 16 May, 2007<\/div>\n
Author: S.B. Sinha<\/div>\n
Bench: S.B. Sinha, Markandey Katju<\/div>\n
           CASE NO.:\nAppeal (civil)  4608 of 2003\n\nPETITIONER:\nApoline D' Souza\n\nRESPONDENT:\nJohn D' Souza\n\nDATE OF JUDGMENT: 16\/05\/2007\n\nBENCH:\nS.B. Sinha & Markandey Katju\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
S.B. SINHA, J :\n<\/p>\n
1.\tFlorine D’ Souza executed a will on or about 06.05.1992.  She had
\ntwo daughters  Olivia and Olympia.  Both of them had become nuns.   The
\n1st daughter Olivia  died in 1975.  The 2nd daughter Olympia died on
\n27.09.1993.\n<\/p>\n
2.\tAppellant herein was one of the beneficiaries of the will.  He was,
\nhowever, not in any way related to the testatrix.  The testatrix was owner of
\nthe following  properties which were subject-matter of the said will :\n<\/p>\n
\t\t\t\t“‘A’ SCHEDULE<\/p>\n
Property situated in Talipady Village, Mangalore Taluk, Mulki
\nSub-Division D.K. bearing following particulars :\n<\/p>\n
S.\n<\/p>\n
No.\n<\/p>\n
S.D.   No.
\nKissam
\nExtent
\nA.C.<\/p>\n
\nAssessment\nRs.        Ps.\n123<\/span>\n -  1A1B   (P)\nGarden\n0 - 16\n\n\n\tBOUNDARIES :\n<\/pre>\n
\tEast \t:\tProperty allotted to ‘B’ Schedule belongs to the
\n\t\t\tSame sub-Division.\n<\/p>\n
\tSouth\t:\tPortion of Sy. No. 123\/1A1A
\n\tWest\t:\tPortion of Sy. No. 123\/1A1A
\n\tNorth :\tSy Line<\/p>\n
\t\tWith tiled house bearing No. 8  87, with all mamool and
\neasementary rights with all appurtenants and also all the
\nmovables belonging to me.”\n<\/p>\n
\t\t\t\t“‘B’ SCHEDULE’<\/p>\n
Property situation in Thalipady Village, Mulki S.D. Mangalore
\nTaluk, D.K. Bearing following particulars :\n<\/p>\n
S.\n<\/p>\n
No.\n<\/p>\n
S.D. No.
\nKissam
\nExtent
\nA.C.<\/p>\n
\nAssessment\nRs.        Ps.\n123<\/span>\n1A1B  (P)\nGarden\n0  23\n\n\n\tBOUNDARIES :\n<\/pre>\n
\tEast\t:\tPortion  of   the  Sy. No.  123\/5, 123\/3, 123\/1A1B
\n\tSouth :\tPortion of Sy. No. 123\/1A1A
\nWest :\tProperty allotted to ‘A’ Schedule of same Sub-
\nDivision
\n\tNorth\t:\tSy. Line
\n\t123  5\tGarden  0  09
\n\tWith a tiled house, timbers all mamool and easementary rights”\n<\/p>\n
3.\tWhereas the property described in Schedule ‘A’ appended to the said
\nwill was bequeathed  in favour of the appellant, the property described in
\nSchedule ‘B’ thereto was bequeathed in favour of the respondent.  Florine
\ndied on 13.03.1994.  An application for grant of Letters of Administration
\nwith a copy of the will annexed,  in terms of Section 276 of the Indian
\nSuccession Act, 1925 (for short ‘the Act’) was filed by the appellant.
\nRespondent entered a caveat.\n<\/p>\n
4.\tThe plea raised by the respondent in the suit was that the testatrix was
\nan aged woman and did not have a proper frame of mind at the time of
\npurported execution of the will to understand the contents thereof.\n<\/p>\n
5.\tThe learned Trial Judge  held that the execution of the will had  been
\nproved, stating :\n<\/p>\n
“Circumstances go to show that the defendant had
\nconstructed his own house in one portion of the land that
\nbelonged to the old lady.  23 cents of land was given to
\nthe defendant under the will and 16 cents of land
\nincluding the old house was given to the plaintiff who
\nattended the old lady during her old age.  I do not find
\nanything unnatural in the bequest made by the old lady.
\nShe has given larger extent of land to the defendant who
\nis the son of the sister of the Testatrix.  That shows that
\nthe disposition made by her was consistent with the
\nnatural course of human conduct.”\n<\/p>\n
\tIt was held that as the propounder did not take any interest in the
\nmatter of execution of the will,  no suspicious circumstances existed.\n<\/p>\n
6.\tThe High Court, however, reversed the said finding of the learned
\nTrial Judge by reason of the impugned judgment, opining :\n<\/p>\n
i)\tPW-2, the only attesting witness, examined in the matter, admitted
\nthat she had put her signature on a handwritten will, whereas the
\nwill had in fact been typed in Kannada language.  Hence  the due
\nexecution of the will was not proved.\n<\/p>\n
ii)\tThe will contained various overwritings and cuttings, which
\nestablish existence of suspicious circumstances.\n<\/p>\n
iii)\tEvidence of PW-2 does not prove either execution or attestation of
\nthe will as per Ex. P-2, as the thumb mark affixed by Florine D’
\nSouza on it  was not got marked in the evidence of PW-2 and she
\nhad not identified the thumb mark on Ex. P-2 as the thumb mark
\nwhich was affixed by Florine D’ Souza in her presence.\n<\/p>\n
iv)\tMere fact that the will was a registered one would not dispense
\nwith the requirements of proof of due execution and attestation of
\nthe  will for grant of  Letters of Administration.\n<\/p>\n
7.\tDr. M.P. Raju, learned counsel appearing on behalf of the appellant,
\nhowever,  submitted :\n<\/p>\n
i)\tThe proof of execution of the will cannot be discarded only
\nbecause all the precedent requirements of law had not been
\nfulfilled.\n<\/p>\n
ii)\tAs it was proved that the plaintiff-appellant was serving the
\ntestatrix since 1986, there was no reason to disbelieve the bequest
\nmade in her favour by way of a will.\n<\/p>\n
8.\tThe testatrix was a 96 years old lady.  She had been suffering for a
\nlong time.  She was bed-ridden.  No  evidence has been brought on record to
\nshow as to who had drafted the will.\n<\/p>\n
9.\tEven if it be assumed that the appellant had nothing to do in regard to
\npreparation of the draft or registration thereof, nothing has  been brought on
\nrecord to show as to who had drafted the will, or at whose instance it came
\nto be registered.\n<\/p>\n
10.\tPW-2 is the attesting witness.  She was called to be a witness to the
\nexecution of the will.  On or about 06.05.1992, when she had come to the
\nhouse of the testatrix, the will had already been written.  According to her,
\nonly after she had come, the testatrix put her L.T.I..  Two days thereafter, the
\nwill was registered,  on which date also she was asked to be present.\n<\/p>\n
11.\tThe High Court has arrived at a conclusion that the execution of the
\nwill has not been proved in accordance with law.\n<\/p>\n
12.\tWhat should be the mode of proof of execution of a will has been laid
\ndown in Section 63 of the Act in the following terms :\n<\/p>\n
“63. Execution of unprivileged wills.-Every
\ntestator, not being a solider employed in an expedition or
\nengaged in actual warfare, or an airman so employed or
\nengaged, or a mariner at sea, shall execute his will
\naccording to the following rules :\n<\/p>\n
(a)\tThe testator shall sign or shall affix his mark to the
\nwill, or it shall be signed by some other person in
\nhis presence and by his direction.\n<\/p>\n
(b)\tThe signature or mark of the testator, or the
\nsignature of the person signing for him, shall be so
\nplaced that it shall appear that it was intended
\nthereby to give effect to the writing as a will.\n<\/p>\n
(c)\tThe will shall be attested by two or more
\nwitnesses, each of whom has seen the testator sign
\nor affix his mark to the will or has seen some other
\nperson sign the will, in the presence and by the
\ndirection of the testator, or has received from the
\ntestator a personal acknowledgement of his
\nsignature or mark, or of the signature of such other
\nperson; and each of the witnesses shall sign the
\nwill in the presence of the testator, but it shall not
\nbe necessary that more than one witness be present
\nat the same time, and no particular form of
\nattestation shall be necessary.”\n<\/p>\n
13.\tSection 68 of the Indian Evidence Act, 1872  provides for the mode
\nand manner in which execution of the will is to be proved.  Proof of
\nattestation of the will is a mandatory requirement.  Attestation is sought to
\nbe proved by PW-2 only.  Both the daughters of the testatrix were nuns.  No
\nproperty, therefore, could be bequeathed in their favour.  In fact one of them
\nhad expired long back.  Relation of the testatrix with the respondent
\nadmittedly was very cordial. Appellant before us has not been able to prove
\nthat she had been staying with the testatrix since 1986 and only on that count
\nshe was made a beneficiary thereof.  The will was full of suspicious
\ncircumstances.  PW-2 categorically stated that the will was drafted before
\nher coming to the residence of the testatrix and she had only proved her
\nsignature as a witness to the execution of the will but the document was a
\nhandwritten one.  The original will is typed in Kannada,  although the blanks
\nwere filled up with English letters.  There is no evidence to show that the
\ncontents of the will were read over and explained to the testatrix.  PW-2 was
\nnot known to her. Why was she called and who called her to attest the will is
\nshrouded  in mystery.  Her evidence is not at all satisfactory in regard to the
\nproper frame of mind of the testatrix. There were several cuttings and
\noverwritings also in the will.\n<\/p>\n
14.\t  What would be the requirement for proof of a will has recently been
\nconsidered by this Court in B. Venkatamuni v. C.J. Ayodhya Ram Singh &
\nOrs.<\/a> [2006 (11) SCALE 149], stating :\n<\/p>\n
“15. Proof of a Will shall strictly be in terms of the
\nabovementioned provisions.\n<\/p>\n
16.  It is, however, well settled that compliance of
\nstatutory requirements itself is not sufficient as would
\nappear from the discussions hereinafter made.”\n<\/p>\n
 \tIt was observed :\n<\/p>\n
\t“20. Yet again Section 68 of the Indian Evidence
\nAct postulates the mode and manner in which proof of
\nexecution of document required by law to be attested
\nstating that the execution must be proved by at least one
\nattesting witness, if an attesting witness is alive and
\nsubject to the process of the Court and capable of giving
\nevidence.”\n<\/p>\n
 \tIt was further observed :\n<\/p>\n
\t“24. However, having regard to the fact that the
\nWill was registered one and the propounder had
\ndischarged the onus, it was held that in such
\ncircumstances, the onus shifts to the contestant opposing
\nthe Will to bring material on record meeting such prima
\nfacie case in which event the onus shifts back on the
\npropounder to satisfy the court affirmatively that the
\ntestator did not know well the contents of the Will and in
\nsound disposing capacity executed the same.\n<\/p>\n
\t25. Each case, however, must be determined in the
\nfact situation obtaining therein.\n<\/p>\n
\t26. The Division Bench of the High Court was,
\nwith respect, thus, entirely wrong in proceeding on the
\npremise that compliance of legal formalities as regards
\nproof of the Will would sub-serve the purpose and the
\nsuspicious circumstances surrounding the execution
\nthereof is not of much significance.\n<\/p>\n
\t27.The suspicious circumstances pointed out by
\nthe learned District Judge and the learned Single Judge of
\nthe High Court, were glaring on the face of the records.
\nThey could not have been ignored by the Division Bench
\nand in any event, the Division Bench should have been
\nslow in interfering with the findings of fact arrived at by
\nthe said court.  It applied a wrong legal test and thus,
\ncame to an erroneous decision.”\n<\/p>\n
15.\tYet again in Niranjan Umeshchanda Joshi v. Mrudula Jyoti Rao &
\nOrs.<\/a> [2006 (14) SCALE 186], this court observed :
\n“32. Section 63 of the Indian Evidence Act lays
\ndown the mode and manner in which the execution of an
\nunprivileged Will is to be proved.  Section 68 postulates
\nthe mode and manner in which proof of execution of
\ndocument is required by law to be attested.  It in
\nunequivocal terms states that execution of Will must be
\nproved at least by one attesting witness, if an attesting
\nwitness is alive subject to the process of the court and
\ncapable of giving evidence.  A Will is to prove what is
\nloosely called as primary evidence, except where proof is
\npermitted by leading secondary evidence.  Unlike other
\ndocuments, proof of execution of any other document
\nunder the Act would not be sufficient as in terms of
\nSection 68 of the Indian Evidence Act, execution must be
\nproved at least by one of the attesting witnesses.  While
\nmaking attestation, there must be an animus attestandi,
\non the part of the attesting witness, meaning thereby, he
\nmust intend to attest and extrinsic evidence on this point
\nis receivable.\n<\/p>\n
33. The burden of proof that the Will has been
\nvalidly executed and is a genuine document is on the
\npropounder.  The propounder is also required to prove
\nthat the testator has signed the Will and that he had put
\nhis signature out of his own free will having a sound
\ndisposition of mind and understood the nature and effect
\nthereof.  If sufficient evidence in this behalf is brought on
\nrecord, the onus of the propounder may be held to have
\nbeen discharged.  But, the onus would be on the applicant
\nto remove the suspicion by leading sufficient and cogent
\nevidence if there exists any.  In the case of proof of Will,
\na signature of a testator alone would not prove the
\nexecution thereof, if his mind may appear to be very
\nfeeble and debilitated.  However, if a defence of fraud,
\ncoercion or undue influence is raised, the burden would
\nbe on the caveator.  [See Madhukar D. Shende v. Tarabai
\nShedage<\/a> (2002) 2 SCC 85 and Sridevi & Ors. v. Jayaraja
\nShetty & Ors.<\/a> (2005) 8 SCC 784]. Subject to above,
\nproof of a Will does not ordinarily differ from that of
\nproving any other document.”\n<\/p>\n
\tNoticing B. Venkatamuni (supra), it was observed:\n<\/p>\n
  \t“36. The proof a Will is required not as a ground
\nof reading the document but to afford the judge
\nreasonable assurance of it as being what it purports to be.\n<\/p>\n
 \t37. We may, however, hasten to add that there
\nexists a distinction where suspicions are well founded
\nand the cases where there are only suspicions alone.
\nExistence of suspicious circumstances alone may not be
\nsufficient.  The court may not start with a suspicion and it
\nshould not close its mind to find the truth.  A resolute and
\nimpenetrable incredulity is demanded from the judge
\neven there exist circumstances of grave suspicion.  [See
\nVenkatachala Iyengar (supra)]”\n<\/p>\n
[See also Joseph Antony Lazarus (Dead) By LRs. v. A.J. Francis,<\/a> (2006) 9
\nSCC 515].\n<\/p>\n
16.\tIn S. Sankaran v. D. Kausalya<\/a> [2007 (3) SCALE 186], it was stated :\n<\/p>\n
\t\t“6. A learned Single Judge of the High Court by
\nhis judgment dated 25.5.1996 held that the will dated
\n24.9.1986 was genuine and was not a forged one. The
\nlearned Single Judge took into consideration various
\nfactors e.g. that the testator himself presented the will for
\nexecution, and there was a dispute between the testator and
\nhis elder daughter and hence he wanted to bequeath his
\nproperties to his second daughter and the sons born to her,
\netc.\n<\/p>\n
\t\t7. In appeal the Division Bench of the Madras
\nHigh Court set aside the judgment of the learned Single
\nJudge but without a proper consideration of the various
\nfacts and circumstances of the case mentioned by the
\nlearned Single Judge in his very elaborate judgment.\n<\/p>\n
\t\t8. The Division Bench was evidently influenced by
\nthe fact that the elder daughter was deprived of her share in
\nher father’s property. However, the Division Bench has not
\ntaken into consideration the various considerations which
\naccording to learned Single Judge motivated the testator to
\ndeprive his elder daughter, the respondent herein.”
\n[See also Benga Behera & Anr. v. Braja Kishore Nanda & Ors.<\/a>  C.A.
\nNo.3467 of 2003 – disposed of on 15.05.2007]\t\t<\/p>\n
17.\tReliance placed by Dr. Raju on Brahmadat Tewari v. Chaudan Bibi
\n[AIR 1916 Calcutta 374] and Riazulnisa Begam, Mst v. Lala Puran Chand<\/a>
\n[ILR XIX Lucknow 445] are misplaced.\n<\/p>\n
18.\tThe requirements to prove execution of the will are laid down under
\nSection 63 of the Act only in the year 1925.  The law has since undergone a
\nchange.  In any event, this Court is bound by the decisions of this Court.\n<\/p>\n
19.\tIn Naresh Charan Das Gupta v. Paresh Charan Das Gupta<\/a> [1954 SCR
\n1035] whereupon again reliance has been placed, this Court has
\ncategorically held :\n<\/p>\n
“It cannot be laid down as a matter of law that because
\nthe witnesses did not state in examination-in-chief that
\nthey signed the will in the presence of the testator, there
\nwas no due attestation.  It will depend on the
\ncircumstances elicited in evidence whether the attesting
\nwitnesses signed in the presence of the testator.  This is a
\npure question of fact depending on appreciation of
\nevidence.  The finding of the Court below that the will
\nwas duly attested is based on a consideration of all the
\nmaterials, and must be accepted”\n<\/p>\n
20.\tThe ratio of the said decision does not assist the appellant, as the
\nmode and manner of proof of due execution of a will indisputably will
\ndepend upon the facts and circumstances of each case.  It is for the
\npropounder of the will to remove the suspicious circumstances, which has
\nnot been done in this case.\n<\/p>\n
21.\tFor the reasons aforementioned, there is no merit in this appeal, which
\nis accordingly dismissed.  In the facts and circumstances of the case, there
\nshall, however, be no order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Apoline D Souza vs John D Souza on 16 May, 2007 Author: S.B. Sinha Bench: S.B. Sinha, Markandey Katju CASE NO.: Appeal (civil) 4608 of 2003 PETITIONER: Apoline D’ Souza RESPONDENT: John D’ Souza DATE OF JUDGMENT: 16\/05\/2007 BENCH: S.B. Sinha & Markandey Katju JUDGMENT: J U D G M E […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-63635","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nApoline D Souza vs John D Souza on 16 May, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/apoline-d-souza-vs-john-d-souza-on-16-may-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Apoline D Souza vs John D Souza on 16 May, 2007 - 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