Murthy & Ors Vs C.Saradambal & Ors
Forum-Supreme Court of India
Date-10th December, 2021

Sub-When a will can be said to have been made by a person when he was in sound and disposing state of mind?

The Supreme Court in this case was considering an interesting case when the daughter in law opposed the suit for partition of an immovable property when her two sister-in-law claimed their share in the property upon death of their father who had alleged to have given the said property by way of an unregistered will to his only son depriving her two daughters from the property.

The Court was called upon to decide whether the Will in this case for which Letter of Administration was applied by the daughter in law was a genuine will or not as the son to whom the property was given had also died.

The court noted the celebrated decision of the Supreme Court on proof of Will as reported AIR 1959 SC 443 is in the case of H. Venkatachala Iyenger vs. B.N.Thimmajamma where the court relied on various provisions of Evidence Act particularly Section 67 and 68 of the said Act where it is provided that Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution.

Then the court relied on the case of Jaswant Kaur v. Amrit Kaur and others [1977 1 SCC 369], where it was pointed out that when a will is allegedly shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant. What generally is an adversarial proceeding, becomes in such cases, a matter of the Court’s conscience. Thereafter the court taking into account various facts including the fact that the father in law was bedridden and paralytic could not have written the will and allowed the appeal of the daughters.

This judgement is an interesting judgement on what are the precautions to be taken while writing a will so that there is no problem later on in getting the same probated.

Ramesh Patodia
11-12-2021