K. S. Dinachandran Vs Shyla Joseph & Ors. (Supreme Court of India)
SC Upholds Will Excluding One Daughter; Leading Questions in Cross-Examination Can Prove Attestation
The Supreme Court, in K.S. Dinachandran vs. Shyla Joseph & Ors., set aside the concurrent findings of the Trial Court and the High Court and upheld the validity of a registered will dated 26.03.1988, by which a father bequeathed his properties to eight out of his nine children, excluding one daughter who had married outside the community. The excluded daughter had filed a suit for partition, which was decreed by the Trial Court and affirmed by the High Court on the ground that the will was not duly proved in terms of Section 63(c) of the Indian Succession Act, 1925 read with Section 68 of the Evidence Act, 1872.
Reversing these findings, the Supreme Court held that the will stood duly proved through the testimony of the surviving attesting witness (DW-2). Though DW-2 did not expressly depose in his examination-in-chief about the attestation by the other witness (since deceased), this deficiency was cured in cross-examination, where DW-2 affirmed—on a positive suggestion put by the plaintiff—that all persons, including the testator and both attesting witnesses, had signed the will on the same day. The Court clarified that leading questions are permissible in cross-examination & answers elicited thereto cannot be discarded as having lesser probative value.
The Court further observed that minor inconsistencies or lack of precise memory, especially when evidence is recorded more than two decades after execution of the will, cannot by themselves create suspicious circumstances. The testator’s sound and disposing state of mind was clearly established, and there were no circumstances warranting a heightened standard of proof. The mere fact that one child was excluded did not render the will unnatural or suspicious, particularly when the Court is required to place itself in the arm-chair of the testator rather than substitute its own notions of fairness.
Holding that the statutory requirements for proving a will were satisfied and the judicial conscience stood duly satisfied, the Supreme Court allowed the appeals, dismissed the partition suit, and upheld the testamentary disposition in favour of the other siblings.
FULL TEXT OF THE SUPREME COURT JUDGMENT/ORDER
1. Leave granted.
