No place for Court to see whether the distribution made by testator was fair and equitable to all of his children

Swarnalatha Vs Kalavathy (Supreme Court of India)

Conclusion: Suspicious circumstances surrounding the execution of will be limited to those where either the signature of the testator was disputed or the mental capacity of the testator was questioned. In the matter of appreciating the genuineness of execution of a Will, there was no place for the Court to see whether the distribution made by the testator was fair and equitable to all of his children.

Held: The issue arose when an unregistered will of mother and registered will of father in a family consisting of father, mother, two sons and daughter, was subject matter of suspicion by the daughter and one son when the both the sons were given share in the both the Will leaving the daughter with no share in Will. Upon death of one of the son, to whom share was given in the estate, the probate was applied by the widow of this son and at this point of time, the daughter challenged that the will was not genuine and had been made on the blank paper already signed and in support submitted several instances of suspicions.  It was held the law relating to suspicious circumstances surrounding the execution of a Will was already well­settled and it need no reiteration. Following the decisions of this Court in Kavita Kanwar vs. Mrs. Pamela Mehta and Ors.1 where this Court referred to almost all previous decisions right from H. Venkatachala Iyengar vs. B.N. Thimmajamma in which a suspicion was created were essentially those where either the signature of the testator was disputed or the mental capacity of the testator was questioned. In the matter of appreciating the genuineness of execution of a Will, there was no place for the Court to see whether the distribution made by the testator was fair and equitable to all of his children. The Court did not apply Article 14 to dispositions under a Will. It was not difficult for an objective mind to understand the reasons behind the daughter and the second son of the testators coming together. Under both the Wills, the properties had been equally distributed between the two sons. The first son was now no more. Admittedly Kalavathy’s daughter had been given in marriage to V.M. Sivakumar (second son of testator). Therefore, if the bequest under the two Wills go, V.M. Sivakumar’s family may eventually receive 2/3rd share of the properties, which was more beneficial for the second son than getting half share under the Wills. Unfortunately, the High Court completely overlooked this aspect and started analyzing the Wills with suspicion. Therefore, the impugned Judgment of the High Court was incapable of being sustained.

FULL TEXT OF THE SUPREME COURT JUDGMENT/ORDER

1. The probate granted by the District Court in respect of two last Wills and Testaments, one by the father and another by the mother, having been set aside by the High Court in an appeal under Section 384 of the Indian Succession Act, 1925 (hereinafter referred to as “the Act”), one set of legatees claiming under the Will have come up with the above appeal.

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