(Also read on Validity of Unregistered Wills and How to make a WIll.)
The Hon’ble Supreme Court, (Division Bench of Mr. Justice G.S. Singhvi and Mr. Justice Sudhansu Jyoti Mukhopadhaya) in the case of Mahesh Kumar (D) By Lrs. vs Vinod Kumar & Ors (read entire judgement here.) has held that that active participation of the propounder / beneficiary in the execution of the Will or exclusion of the natural heirs cannot lead to an inference that the Will was not genuine.
The Hon’ble Supreme
Court set aside a judgement of the Madhya Pradesh High Court which disbelieved
the validity of a will executed by one Shri Harishankar to the exclusion of two
of his sons.
The D.B. observed
that:
“The attitude of Respondent Nos. 1 and 2 left Shri Harishankar and his
wife with no choice but to live with the appellant, who along with his wife and
children took care of the old parents and looked after them during their
illness. Therefore, there was nothing unnatural or unusual in the decision of
Shri Harishankar to give his share in the joint family property to the
appellant. Any person of ordinary prudence would have adopted the same course
and would not have given anything to the ungrateful children from his / her
share in the property”
The Hon’ble
Division Bench set aside the impugned judgment stating: “We hold that the
single judge was clearly in error in reversing the well-reasoned finding
recorded by the trial court on the issues of execution of will dated 10th February, 1992 by
Harishankar and its genuineness and validity.”
The Supreme Court
had in its decision in Uma Devi Nambiar & Ors vs T.C. Sidhan (Dead) (Read here.) held
that:
“A Will is executed to alter the ordinary mode of succession and by the very nature of things it is bound to result in either reducing or depriving the share of natural heir. If a person intends his property to pass to his natural heirs, there is no necessity at all of executing a Will. It is true that a propounder of the Will has to remove all suspicious circumstances. Suspicion means doubt, conjecture or mistrust. But the fact that natural heirs have either been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be a suspicious circumstance especially in a case where the bequest has been made in favour of an offspring. As held in PPK Gopalan Nambiar v. PPK Balakrishnan Nambiar and Ors. (AIR 1995 SC 1852) it is the duty of the propounder of the Will to remove all the suspected features, but there must be real, germane and valid suspicious features and not fantasy of the doubting mind. It has been held that if the propounder succeeds in removing the suspicious circumstance, the Court has to give effect to the Will, even if the Will might be unnatural in the sense that it has cut off wholly or in part near relations”
The
Apex Court in P.P.K. Gopalan Nambiar vs P.P.K. Balakrishnan
Nambiar (available here) had also stated that:
“It
is trite that it is the duty of the propounder of the will to prove the will
and to remove all the suspected features. But there must be real, germane and
valid suspicious features and not fantasy of the doubting mind.”
Pushpavathi
And Ors. vs Chandraraja Kadamba:
“If the propounder succeeds in removing the suspicious circumstances the Court would have to give effect to the Will even if the Will might be unnatural in the sense it has cut off wholly or in. part near relations. See : Shashi Kumar v. Subodh Kumar.” (Read whole judgement here)
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