Can the defendant plead that will is suspicious due to the exclusion of siblings if siblings have not raised that issue?
TESTAMENTARY COURT:
24.A testamentary court is not a court of suspicion but that of conscience. It has to consider the relevant materials instead of adopting an ethical reasoning. A mere exclusion of either brother or sister per se would not create a suspicion unless it is surrounded by other circumstances creating an inference. In a case where a testatrix is accompanied by the sister of the beneficiary of the Will and the said document is attested by the brother, there is no room for any suspicion when both of them have not raised any issue.
ON FACTS
25.The Appellant has duly complied with the mandate of Section 63 of the Indian Succession Act along with Section 68 of the Indian Evidence Act. PW2 being the brother of the Appellant and the other sister, Ms. Kantha Lakshmi were present at the time of execution of Exhibit P4. They have not raised any demur. Both the Courts found that Exhibit D1 is a forged and fabricated document. The alleged mortgage in favor of Respondent No.1 has not been proved. The Appellate Court, in our considered view, has unnecessarily created a suspicion when there is none. The Respondents have not denied the
factum of the execution of Exhibit P4. The very fact that they made reliance upon Exhibit D1, which took note of Exhibit P4 as validly done, there is no need for any suspicion on the part of the High Court. That too, when the Trial Court did not find any. Such a suspicion, as stated earlier, did not arise from either of the siblings of the Appellant who would otherwise be entitled to a share in the Suit Property. Their exclusion will not enure to the benefit of the Defendants who are bound by the recitals under Exhibit D1 and averments made in their written statement.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.1376-1377 OF 2010
V. PRABHAKARA Vs BASAVARAJ K. (DEAD) BY LR. & ANR.
Author: M.M. SUNDRESH, J.
Dated: October 07, 2021