MANU/SC/7520/2008

Equivalent Citation: AIR2008SC2195, 3(2008)CLT695, 2008(2)JLJ247(SC), JT2008(5)SC589, 2008-3-LW723, (2008)

5MLJ682(SC), 2008(2)RCR(Civil)918, RLW2009(1)SC760, 2008(6)SCALE597, (2008)7SCC695

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2965 of 2008 (Arising out of SLP (Civil) No. 2791 of 2006) and Civil Appeal Nos.
2974, 2975 and 2977 of 2008 (Arising out of SLP (Civil) Nos. 13865, 5831 and 9080 of 2006)

Decided On: 24.04.2008

Appellants: Anil Kak

Vs.
Respondent: Kumari Sharada Raje and Ors.

Hon'ble Judges/Coram:
S.B. Sinha and V.S. Sirpurkar, JJ.

Counsels:
For Appearing Parties: Arun Jaitley, R.F. Nariman, Indu Malhotra and S.B. Upahyay, Sr. Advs., Shashi
M. Kapila, Ramesh Singh, Kunal Tandon, Arjun Suresh, Vikas Mehta, Sudhir Nandrajog, Asha Gopalan
Nair, Gaurav Agrawal, Bina Gupta, Kavita Wadia, Shirmangal Sharma, Shubha Goyal, Sharmila
Upadhyay, R.K. Rathore and Kuldip Singh, Advs

Case Note:
Indian Succession Act, 1925 - Sections 87 and 103--Will--Probate/ Letters of
Administration--Refusal by High Court--Whether justified?--Held, yes--Will in question not
complete--Not correct to contend that appendices were very much in existence at time
when Will executed--No case made out for interference.

Ratio Decidendi:
Whereas execution of any other document can be proved by proving the writings of the
document or the contents of it as also the execution thereof, in the event there exists
suspicious circumstances the party seeking to obtain probate and/ or letters of
administration with a copy of the Will annexed must also adduce evidence to the
satisfaction of the court before it can be accepted as genuine An order granting probate is
a judgment in rem, therefore, the court must also satisfy its conscience before it passes an
order The Will by its own cannot be given effect to. The Will must be read along with the
appendices

JUDGMENT

S.B. Sinha, J.

1. Leave granted.

2. These appeals are directed against a judgment and order dated 18.05.2001 passed by a learned
Single Judge of the Madhya Pradesh High Court at Indore dismissing two applications for grant of
probate/ letters of administration with the copy of the annexed Will in respect of the assets of Late
Maharani Sharmishthabai Holkar (hereinafter called as "the testatrix"), the widow of Late Maharaja
Tukoji Rao Holkar, former ruler of the erstwhile Holkar State.

3. Maharaja Tukoji Rao Holkar died on 21.05.1978 leaving behind four daughters, Sharada Raje
Holkar, Sita Raje Ghatge, Sumitra Raje Dalvi and Sushila Raje Holkar. He had executed a Will on
27.11.1942 bequeathing all his properties in favour of the testatrix. Indisputably, a letter of
administration had been granted in favour of the testatrix in respect of the Will dated 27.11.1942
made in her favour by her husband. Apart from the properties inherited by the testatrix from her
husband, she had also her own Stridhan properties. She purported to have executed a Will on or
about 23.08.1978 in favour of Kumari Sharada Raje. She, however, allegedly executed another Will
on or about 4.11.1992, by reason whereof, she purported to have revoked the Will executed by her
on 23.08.1978 and/ or the Codicil. She appointed one K.R.P. Singh and the appellant Anil Kak as
joint executors. She also appointed Mr. T.N. Unni, her Chartered Accountant to assist the executors

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in administering and distributing the estate and executing the said Will. She categorized her
properties in two parts, viz., Part A and Part B.

Part A consisted of those properties which were bequeathed in her favour by her husband and Part B
consisted of properties other than those specified in Part A. By reason of the said Will, the said two
sets of the properties were to be administered separately. Whereas Part A properties were
bequeathed in favour of four daughters, Part B properties were sought to be bequeathed in favour of
her four grand children.

4. Indisputably, the said Will was purported to have been attested by one Gita Sanghi, who examined
herself as PW-5 and one Baljit Bawa, who was not examined. The Will contained a few appendices.
Whereas the attesting witnesses purported to have put their signatures in each page of the Will, they
did not put any signature on the appendices to the said Will.

5. With a view to appreciate the relationship of the parties, we may notice the family tree, which is
as under:

Appellant Anil Kak is the husband of Gangesh Kumari and son-in-law of Sumitra Raje Dalvi. Appellant

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Arjun Kak is son of the appellant Anil Kak.

6. Before proceeding further, we may notice that whereas the application for grant of Letters of
Administration with a copy of the Will dated 23.08.1978 annexed, filed by Kumari Sharada Raje was
marked as Suit No. 2 of 1998; Anil Kak and Kumar Rampratap filed an application for grant of
probate in their capacity as executors appointed under the said Will dated 4.11.1992, which was
marked as Suit No. 3 of 1998. Both the suits were directed to be consolidated. The parties examined
their witnesses in both the suits by adducing common evidence.

7. Whereas the Will dated 23.08.1978 was a very short document, the Will dated 4.11.1992 was a
detailed one running into six typed pages besides three long appendices and two statements
containing her investments in various shares within and outside the country.

8. A learned Single Judge of the High Court by reason of the impugned judgment refused to grant
probate and/ or letters of administration in respect of both the Wills.

9. Whereas Civil Appeals arising out of SLP (C) Nos. 2791, 5831 and 9080 of 2006 have been filed
against that part of the judgment whereby and whereunder grant of probate in respect of the Will
dated 4.11.1992 has been rejected, Civil Appeal arising out of SLP (C) No. 13865 of 2006 was filed in
respect of the Will dated 23.08.1978.

10. The Letters Patent Appeals were filed against the judgment of the learned Single Judge of the
High Court by both the parties which have been dismissed by the Division Bench of the High Court as
not maintainable.

11. The learned Counsel appearing for both the parties, have addressed us on the merit of the
matter. We are not considering the correctness or otherwise of the judgment of the Division Bench of
the High Court holding the Letters Patent Appeals to be not maintainable, nor it is necessary for us so
to do.

12. We may also at the outset place on record that no argument has been advanced in regard to the
findings of the learned Single Judge of the High Court refusing to grant letters of administration in
respect of the Will dated 23.08.1978 of the testatrix.

13. The learned Single Judge framed the following issues:

(1) Whether the alleged Will with its appendices dated 4.11.1992 was duly executed by
late Maharani Sharmishthabai Holkar out of her free will, while she was in sound disposing
state of mind;

(2) Whether the Will dated 4.11.1992 has been acted upon by the parties, if so, its effect;

(3) Whether late Maharani Sharmishthabai Holkar had executed only one Will, i.e., dated
23.8.1978 out of her free will while she was in sound disposing state of mind;

14. The learned Single Judge in its judgment inter alia held that the execution of the Will dated
4.11.1992 has not been proved as:

(i) Appendices were not signed by the attesting witnesses;

(ii) The Will remained in the custody of Anil Kak for a long time;

(iii) Anil Kak did not examine himself as a witness;

(iv) As an unequal division of the properties described in Part B of the Will effected, there
existed suspicious circumstances.

(v) Anil Kak took part in preparation of the Will

15. Mr. Arun Jaitley and Mr. R.F. Nariman, learned senior counsel appearing on behalf of the
appellants, in support of the appeal, submitted:

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 (i) The High Court committed a serious error in passing the impugned judgment insofar as
it failed to take into consideration that the testatrix had divided her properties equally
amongst her four daughters as also her grand children and, therefore, there did not exist
any circumstance to suspect the genuineness of the Will.

(ii) The High Court committed a serious factual error insofar as it proceeded on the
premise that Part B assets were divided only amongst three grand children; whereas in
fact fourth grand child Vijayendra Ghatge was also a beneficiary under the Will.

(iii) Appendices were annexed with the Will for the purpose of bringing out clarities in
regard to the division of the properties.

(iv) Medical certificates were annexed to the Will go to show that the testatrix had a sound
disposing mind, and, thus, the burden of proof was on the caveators to prove contra.

(v) The High Court committed a serious error insofar as it failed to take into consideration
the effect and purport of Sections 64, 87 and 103 of the Indian Succession Act (for short
"the Act").

16. Mr. S.B. Upadhyay, learned senior counsel appearing on behalf of the respondents, on the other
hand, urged:

(i) The Will dated 4.11.1992 was surrounded by suspicious circumstances as one of the
executors was husband of one of the grand children and son-in-law of one of the
daughters, whose family in turn was the beneficiary of the maximum number of
properties, viz., 27 out of 35 items.

(ii) In view of a clear finding of fact arrived at by the High Court that the appellant Anil
Kak had not only taken away the Will, he had also not disclose thereabout to the near
relatives for a long time, is also a pointer to show that the execution of the Will by the
testatrix was doubtful.

(iii) Appendices attached to the Will having been brought into existence at a later date, the
provisions contained in Sections 64, 87 and 103 of the Act will have no application, in the
instant case.

17. Testatrix at the time of execution of the Will was 85 years old. She was owner of substantial
properties.

18. Although all the four daughters of the testatrix were the beneficiaries of the properties described
in Part A of the Will, detailed directions as to how the said estate is to be administered had been
made therein. Even in relation to the criteria as regards distribution of assets including the manner in
which the tax and other liabilities are to be made and how the investments with banks and others are
to be encashed, if necessary to be encashed have been stated. More importantly, however, the
shares in the companies were to be held in the joint names of the testatrix as also the joint
executors. The executors were to hold the same in trust. Whether the said direction had been carried
out and, if so, how and in what manner is not known. Executors had also been granted express
power to recall and repossess the jewellery, money or money's wroth possessed by any beneficiary of
the Will or legatee but ownership of which was not conferred on them for the purpose of meeting
government dues, liabilities or expenses.

19. We may at this stage notice a few stipulations made in the said Will dated 4.11.1992, which are
as under:

B-4. The Executors will distribute the shares in companies as detailed in Appendix 'B'
together with the rights accruing thereto.

B-5. The jewellery belonging to me other than described in Part 'A' have been divided and
earmarked in different names as per Appendix 'C'. I bequeath the items of my jewellery
accordingly.

B-6. I bequeath my shares in companies and deposit with the Seattle Bank in U.S.A. in

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 favour of the respective nominees/ joint-holders as per Appendix. All expenses, liabilities,
taxes, fees, etc. in realizing and distributing the said assets shall be borne proportionately
by the nominees/ joint-holders.

20. The Will was purported to have been executed in presence of one Shanta Kumari Jain, a notary.
Two medical certificates; one issued by Dr. S.K. Mukherjee and the other by Dr. Normal Sharma,
were also annexed thereto.

21. It is not denied or disputed that the appellant Anil Kak took an active part in the matter of
preparation and execution of the Will.

For proving the said Will, the appellants examined one of the executors, viz., Kumar Rampratap
Singh as PW-1. He was not aware of the contents of the Will. It was handed over to him on
10.09.1993 by Shri T.N. Unni (PW-6), Chartered Accountant. It was in turn handed over to Anil Kak.
The said Will was not executed in his presence. He was not even aware of the execution thereof.

22. Shanta Kumari Jain, Notary, Geeta Sanghi, one of the attesting witnesses and T.N. Unni
examined themselves in support of the case of the appellants.

According to T.N. Unni, he had drafted only pages one to six of the Will. The said Will was purported
to have been executed at his residence at Indore. Geeta Sanghi and Baljeet Bawa were the attesting
witnesses. Baljit Bawa, as noticed hereinbefore, was not examined. Geeta Sanghi sought to prove the
testatrix's signature as also her own signatures on the Will.

23. It is beyond any doubt or dispute that none of the attesting witnesses had put their signatures on
appendices A to C. Appendices A to C contain the list of jewelleries in great details and which
jewellery should be given to which grand daughter. The Wealth Tax assessment for the year 1992-93
was also annexed by way of a statement showing the market value of the shares of the companies
registered in India. Another appendix specified that ACC and TISCO shares were to be equally divided
amongst four daughters, viz., as per their average market value on the date of latest Wealth Tax
assessment.

A statement showing the market value of the shares of the companies registered in U.K. as per the
wealth tax assessment for the year 1992-93 was also annexed. In regard to the division thereof, it is
stated that "each company's share is divided equally amongst my four daughters". Names of the
daughters had again been mentioned therein. Statement showing the value of quoted shares as per
wealth tax assessment for the year 1992-93 had also been appended, the division whereof were to
be done in the following manner:

The shares in each company will be divided into six equal divisions. My grand children
Gangesh Kumari, Jagat Bingley and Ashish Dalvi will get one Division each and my great
grand children are bequeathed three remaining shares as follows - Children of Gangesh
Kumari get one division, Children of Jagat Bingley get one division, children of Vijayendra
Ghatge get one division. In case Ashish Dalvi is married and has children before my
demise, the shares in each company will be divided into seven equal divisions and
distribution remains the same with the additional division going to the children of Ashish
Dalvi.

24. It also contained bequeaths of jewellery from the personal list of the testatrix as valued on 31st
March, 1992 done by M/s. J.R.M. Bhandari. It again contained the statement showing the value of
quoted shares in respect of certain companies and the mode and manner in which division thereof
should be carried out.

25. It has furthermore been admitted that those appendices did not see the light of the day when the
Will was executed by the testatrix and attested and notarised.

26. It has furthermore not been disputed that whereas Gangesh Kumari, Jagat Bingley and Ashish
Dalvi are children of Sumitra Raje Dalvi, the only other grand child of testatrix Vijayender Ghatge is
son of Sita Raje Ghatge. From the list containing the details of the jewellery, it appears that
Vijendera Ghatge and family had been given one semi rectangle clip set with diamond and ruby
cabochon and two buttons studded with diamonds and pearls set in gold. Umika Ghatge had also
been given one square diamond ring and one bracelet watch set with diamonds ruby and emerald.

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It furthermore appears that Arjun Kak is also a beneficiary under the Will.

27. The High Court made a distinction between the documents which are mere appendices to an
otherwise complete Will and those which are part and parcel of the Will forming its integral part.

28. From what has been noticed hereinbefore it is clearly evident that division has not been made
per stripe or per capita but by species. Each one of the jewelleries which was to be bequeathed to
each of the beneficiary thereunder had specifically been specified. Moreover, from the valuation
report, it would appear that the respective distribution purported to have been made in terms of the
appendices would not make them of equal value or nearabout which was the desire of the testatrix.

29. We may now notice the provisions of Sections 64, 87 and 103 of the Act whereupon strong
reliance has been placed by the learned Counsel appearing for the appellants.

Section 64 of the Act reads as under:

64. Incorporation of papers by reference - if a testator, in a will or codicil duly attested,

refers to any other document then actually written as expressing any part of his
intentions, such document shall be deemed to form a part of the will or codicil in which it
is referred to.

30. The rule of incorporation by reference is well-known. One document is incorporated by reference
in another when it is referred to, as if it would form an integral part thereof. [See Sarabjit Rick Singh
v. Union of India MANU/SC/0041/2008 : (2008)2SCC417 ].

31. Principle of incorporation by reference was evolved so as to avoid unnecessary repetition of the
same documents again and again in different parts of the original document. For invoking the said
principle, a document must be in existence. It cannot be brought into existence later on. The
executor of a document must know what the other document which he intends to incorporate in the
Will contains.

This aspect of the matter has been considered by the House of Lords in William Henry Singleton v.
Thomas Tomlinson and Ors. 1878 (3) AC 404, wherein it was held:

The question which arose in the Court below was whether in construing the will and in
determining what the meaning of the testator was, this schedule could be looked at; and,
my Lords, on that point it will be quite sufficient if I refer to the two propositions which
were laid down, and which indeed were not challenged by any of the counsel at your
Lordships' Bar. It was said that there are certain cases in which, although a document is
not admitted to probate, still it may be referred to in a will in such a way as that you are
entitled to look at the document, because it is virtually incorporated in that which is
admitted to probate; and the two propositions which were laid down as the tests of the
case in which a document under those circumstances could be looked at were these: first,
that it must be clearly identified by the description given of it in the will; and secondly,
that it must be shown to have been in existence at the time when the will was executed.

[See also Theobald on Wills, Sixteenth Edition, pages 59-61]

In Halsbury's Laws of England, Fourth Edition, Paragraph 817 at pages 433-34, it is stated:

Incorporation of documents: In certain cases documents referred to in a testator's will or

codicil, though not themselves duly executed, may be incorporated in the will and included
in the probate[Re Mardon [1944] P 109 at 112, [1944] 2 All ER 397 at 399.] Such a
document must be strictly identified with the description contained in the will; but extrinsic
evidence is admissible for the purpose of identification [See for instance, Allen v. Maddock
(1858) I I Moo PCC 427; Re Almosnino (1859) I SW & TR 508]. The reference must be to
a document as an existing document [Re Mordon] and not to one which is to come into
existence at a future date[Re Sunderland (1866) LR I P & D 198; Re Reid (1868) 38 LJP &
M I; Durham v. Northen [1895] P 66; Re Smart [1902] P 238. Certainty and identification
is the very essence of incorporation: Croker v. Marquess of Hertford (1844) 4 Moo PCC
339 at 366, per Dr. Lushington.] The onus of proving the identity of the document and its
existence at the date of the will lies upon the party seeking to establish it [Singleton v.

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 Tomlinson], but the court will draw inferences from the circumstances surrounding the
execution of the will.

If the will prima facie refers to the document as an existing document, then, even though
it appears from the surrounding circumstances, namely the date of the signing of the
document, that it was not in existence at the date when the will was originally executed,
the document may nevertheless be admitted to probate, since the will is treated as
speaking from the date of its re- execution by the codicil; but if the will, treated as
speaking at the date of the codicil, still in terms refers to a future document, the document
cannot be admitted to probate even though it was in existence at the date of the codicil.

[Re Smart [1902] P 238].

32. Section 87 of the Act provides that testator's intention to be effectuated as far as possible,
stating:

87. Testator's intention to be effectuated as far as possible.-The intention of the testator

shall not be set aside because it cannot take effect to the full extent, but effect is to be
given to it as far as possible.

33. In a case of this nature, however, in our opinion, Section 87 of the Act will have no application.

34. If the appendices formed an integral part of the Will and in their absence the Will was not
complete, then the intention of the testator cannot be effectuated. A distinction must be made
between an incomplete Will and a complete Will although intention of the testator cannot be
effectuated.

The testator's intention is collected from a consideration of the whole Will and not from a part of it. If
two parts of the same Will are wholly irreconcilable, the court of law would not be in a position to
come to a finding that the Will dated 4.11.1992 could be given effect to irrespective of the
appendices. In construing a Will, no doubt all possible contingencies are required to be taken into
consideration. Even if a part is invalid, the entire document need not be invalidated, only if it forms a
severable part. [See Bajrang Factory Ltd. and Anr. v. University of Calcutta and Ors.
MANU/SC/2653/2007 : (2007)7SCC183 ].

In Halsbury's Laws of England, Fourth edition, Volume 50, page 332- 33, it is stated:

462. Leading principle of construction: The leading principle of construction which is

applicable to all wills without qualification and overrides every other rule of construction is
that the testator's intention is collected from a consideration of the whole will taken in
connection with any evidence properly admissible, and the meaning of the will and of
every part of it is determined according to that intention.

In P. Manavala Chetty and five Ors. v. P. Ramanujam Chetty and Anr. MANU/TN/0286/1966 : (1971)
1MLJ127 , a single judge of the Madras High Court on the duty of the court of construction to give
intention to the wishes of the testator opined:

It is the obvious duty of the Court to ascertain and give effect to the true intentions of the
testator and also avoid any construction of the will which will defeat or frustrate or bring
about a situation which is directly contrary to the intentions of the testator. At the same
time, it must be borne in mind that there are obvious limits to this doctrine that the Court
should try to ascertain and give effect to the intentions of the testator. The law requires a
will to be in writing and it cannot, consistently with this doctrine, permit parol evidence or
evidence of collateral circumstances to be adduced to contradict or add to or vary the
contents of such a will. No evidence, however powerful it may be, can be given in a Court
of construction in order to complete an incomplete will, or project back a valid will, if the
terms and conditions of the written will are useless and in-effective to amount to a valid
bequest, or to prove any intention or wish of the testator not found in the will. The
testator's declarations or evidence of collateral circumstances cannot control the operation
of the clear provisions of the will. The provisions of the Indian Succession Act referred to
earlier indicate the limits of the Court's power to take note of the testator's declarations
and the surroundings circumstances, i.e., evidence of collateral circumstances.

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 [Emphasis Supplied]

As regards two inconsistent wills, with the latter being an incomplete one, the judgment of Bagnall,
Re [[1948] W.N. 324] necessitates one discussions. In the said case, the testatrix had made two
wills, one in 1936 and the other in 1943. In the first will, she gave certain legacies and disposed of
the residue. In the second will, she provided legacies of the same amounts and in favour of the same
persons but did not dispose of the residue. The second will was not described as a codicil to the first,
nor did it expressly revoke it, but it was manifestly incomplete, ended without any stop and in the
middle of a sentence and was signed by the testator at the bottom of the page leaving a large gap
between the last words and the signature. Probate was granted of both wills. It was held:

(i)Though the second will was far removed in date from the first and was not called the
"last will", it was intended, at any rate so far as it went, to take the place of the first will,
and, therefore, the legacies given by the second will were in substitution so far as they
went for those in the first;

(ii) An examination of the two documents, did not support the conclusion that the
intention of the testatrix, when she executed the second will, was entirely to supersede
the earlier instrument, and, consequently, the first will effectively disposed of the residue,
and one legacy given in the first will but not repeated in the second will was not revoked
by the latter.

In the judgment, the case of Kidd v. North 16 L.J. Ch. at p. 117 was referred to. There, an
incomplete testamentary paper containing a legacy of 500 Pounds in favour of one Bridgett Bibby
was admitted to probate with a will and three codicils of prior date and the question was whether this
legacy was in substitution for a larger sum given by the first codicil. Lord Chancellor, held, thus:

When the testamentary papers of which probate is granted appear to give several legacies
to the same persons, it is often extremely difficult to ascertain what was the real intention
of the testator,; and to attain that object as far as possible certain rules have been laid
down and nice distinctions taken; but such rules and distinctions are applicable only to
cases in which there is no internal evidence of intention; for where there that is to be
found; it must prevail. Such is the present case; for I conceive it to be clear that the last
testamentary paper was intended to be in substitution for all the others, and to supersede
the provisions contained in them. It is indeed incomplete; but the ecclesiastical court
having granted probate of it, no question can be made as to its being testamentary and
operative as such so far as it goes. It is reasonable to give such effect to the incomplete
instrument, if it contains within itself evidence of an intention to make an entirely new
disposition; and for that purpose to undo all that had been done before; but if the new
disposition applies only to part of the subject matter, the instrument being upon the face
of it incomplete, and not applying to other parts, it is consistent with the principle to give
effect to this intention, so far as it is expressed, but to consider the first disposition as
operative, so far as no substituted disposition is provided in its place.

35. But, the aforementioned principle cannot be applied in the instant case inasmuch as appendices
appended to the Will clearly specify as to how and in what manner the intention of the testatrix to
divide her properties equally amongst her daughters and/ or her grand children was to be
implemented.

It is not a case where a general division was to be made leaving the manner of application to the
executors. The Will refers to appendices. Once it refers to the appendices indicating that the
distribution shall be in terms thereof, it is difficult to comprehend as to how without the same, the
Will can be said to be a complete one so as to effectuate the intention of the testator. The intention
of the testator in other words must be found out from the entire Will. It has to be read as a whole. An
endeavour should be made to give effect to each part of it. Only when one part cannot be given
effect to, having regard to another part, the doctrine of purposive construction as also the general
principles of construction of deed may be given effect to. In the instant case, the document is one. It
is inseparable. Whereas the principal document provides for the broad division, the principles of
division laid down therein would be followed if the appendices are to be taken recourse to. If the
principles of equality as has been suggested by the learned Counsel is to be given effect to, it was
expected that the testatrix intended to confer the same benefit or the benefit having same value or
near about to be conferred on each of the legatees.

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In effect and substance, the purported directions contained in the appendices which did not see the
light of the day on the date of execution of the Will, make the application of the directions of the
testatrix wholly impossible to be carried out. It is in that sense the provisions of Section 87 of the Act
are applicable.

36. The High Court has assigned good and cogent reasons in support of its judgment for not
accepting the evidence of Mr. Unni. Mr. Unni admitted that the appendices were to be brought by Anil
Kak. If the same had not been brought to her on the day the Will was executed, we wonder how the
testatrix had knowledge thereabout. It now almost stands admitted that the appendices did not form
part of the Will at the time of its purported execution. If the Will was incomplete the question of its
proving the execution does not arise. An integral part of the document for the purpose of satisfying
the tests laid down under Section 63(1)(c) of the Act and Section 68 of the Evidence Act must mean
a complete document.

37. In "Jarman on Wills", Volume 1, Eight Edition (Sweet & Maxwell) at Pages 145-46 on Incomplete
Wills, it is stated:

XII.- Incomplete Wills: Cases sometimes occurred under the old law, and may possibly
arise under the present, in which something more than mere compliance with legal
requirements was made necessary to the efficacy of the will by the testator himself, he
having chose to prescribe to himself a special mode of execution; for in such case, if the
testator afterwards neglects to comply with the prescribed formalities, the inference to be
drawn from these circumstances is, that he had not fully and definitely resolved on
adopting the paper as his will [Accordingly, under the old law, which did not require wills
of personalty to be authenticated by the testator's signature or by attestation, the
Prerogative court in several instances refused to probate of wills, concluding with the
words "In Witness", etc , but not signed: Abbot v. Peters 4 Hagg. 380. Questions as to the
testamentary validity of incomplete papers rarely occur in practice, now that
authentication of signature and attestation are essential to such validity.] The presumption
is slight where the instrument is duly signed and attested, and perfect in all other
respects, but must apparently be rebutted by some evidence before it can be admitted to
probate. [Per Sir J. Nicholl in Beaty v. Beaty. See also 1 Wms. Exors., Pt. 1., Bk. II , Ch.
II, s.2.].

But this doctrine in favour of imperfect papers obtains only where the defect is in regard to
some formal act, which the testator has prescribed as necessary for the authentication of
his will, and not where it applies to the contents of the instrument; for, if in its actual state
the paper contains only a partial disclosure if the testamentary scheme of the deceased, it
necessarily fails of effect, even though its completion was prevented by circumstances
beyond his control [Montefiore v. Montefiore 23 Ad. 354; see also Griffin v. Griffin 4 Ves.
197, n. This case afforded two sufficient grounds for the rejection of the paper; first, that
it was not the whole will; and secondly, that its completion was not prevented by
inevitable circumstances].

In short, the presumption is always against a paper which bears self-evident marks of
being unfinished; and it behoves those who assert its testamentary character distinctly to
show, either that the deceased intended the paper in its actual condition to operate as his
will, or that he was prevented by involuntary accident from completing it [Reay v. Cowcher
1 hagg. 75, 2 ib. 249; Wood v. medley 1 ib. 661; In b. Robinson, ib. 643; Bragge v. Dyer,
3 hag. 207; Gillow v. Bourne 4 Hagg. 192. And to the contrary presumption in favour of a
regularly executed and apparently completed will, vide Shadbolt v. Wagh. 570; Blewitt v.
Blewitt 4 Hagg. 410.]

To the same effect is Alexander on "Commentaries on Wills" Vol. I, Execution at page 193-94 which
states:

prior to the Statute of Wills of 1 Vict., ch. 26, and the American statutes, which require the
same formalities in the execution and attestation of wills of personalty as in devises of
realty, the courts allowed imperfectly executed testamentary writings to take effect as
nuncupative dispositions of personalty, where it appeared that the testators intended them
to operate in the form in which they were found, and that the failure to completely
execute them arose for some reason other than a purpose to abandon.

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It was further stated:

But the courts always viewed such instruments with suspicion and, in proportion to the
incompleteness of the document, demanded a higher degree of evidence.... But the more
modern day doctrine is that a nuncupative will can be made only by spoken words or by
signs and that, if the words be reduced to writing by the testator or by someone else at
his request, they lose their nuncupative character. And it seems that under the modern
statutes and rulings, even verbal instructions for drawing up a written will, although
spoken in the presence of the proper number of witnesses, can not be admitted to probate
as a nuncupative will.

38. Section 103 of the Act speaks of a residuary bequest but the same evidently has no application in
this case.

The execution of the Will becomes impossible both in respect of the properties described in Part A
and Part B.

39. Furthermore, the Will is surrounded by suspicious circumstances.

The execution of a Will does not only mean proving of the signatures of the executors and the
attesting witnesses. It means something more. A Will is not an ordinary document. It although
requires to be proved like any other documents but the statutory conditions imposed by reason of
Section 63(c) of the Act and Section 68 of the Indian Evidence Act cannot be ignored.

In B. Venkatamuni v. C.J. Ayodhya Ram Singh and Ors. MANU/SC/4692/2006 : AIR2007SC311 , this
Court held:

It is, however, well settled that compliance of statutory requirements itself is not sufficient
as would appear from the discussions hereinafter made.

It was observed:

Yet again Section 68 of the Indian Evidence Act postulates the mode and manner in which
proof of execution of document which is required by law to be attested stating that the
execution must be proved by at least one attesting witness, if an attesting witness is alive
and subject to the process of the Court and capable of giving evidence.

Yet again in Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao and Ors. MANU/SC/8788/2006 :
AIR2007SC614 , this Court held:

Section 63 of the Indian Succession Act lays down the mode and manner of execution of
an unprivileged Will. Section 68 of the Indian Evidence Act postulates the mode and
manner of execution of document which is required by law to be attested. It in
unequivocal terms states that execution of Will must be proved at least by one attesting
witness, if an attesting witness is alive subject to the process of the court and capable of
giving evidence. A Will is to prove what is loosely called as primary evidence, except
where proof is permitted by leading secondary evidence. Unlike other documents, proof of
execution of any other document under the Act would not be sufficient as in terms of
Section 68 of the Indian Evidence Act, execution must be proved at least by one of the
attesting witnesses. While making attestation, there must be an animus attestandi, on the
part of the attesting witness, meaning thereby, he must intend to attest and extrinsic
evidence on this point is receivable.

The burden of proof that the Will has been validly executed and is a genuine document is
on the propounder. The propounder is also required to prove that the testator has signed
the Will and that he had put his signature out of his own free will having a sound
disposition of mind and understood the nature and effect thereof. If sufficient evidence in
this behalf is brought on record, the onus of the propounder may be held to have been
discharged. But, the onus would be on the applicant to remove the suspicion by leading
sufficient and cogent evidence if there exists any. In the case of proof of Will, a signature
of a testator alone would not prove the execution thereof, if his mind may appear to be
very feeble and debilitated. However, if a defence of fraud, coercion or undue influence is

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 raised, the burden would be on the caveator. [See Madhukar D. Shende v. Tarabai
Shedage MANU/SC/0016/2002 : [2002]1SCR132 and Sridevi and Ors. v. Jayaraja Shetty
and Ors. MANU/SC/0065/2005 : AIR2005SC780 ]. Subject to above, proof of a Will does
not ordinarily differ from that of proving any other document.

[See also Adivekka and Ors. v. Hanamavva Kom Venkatesh (Dead) By LRs. and Anr.
MANU/SC/2486/2007 : AIR2007SC2025 ]

40. Whereas execution of any other document can be proved by proving the writings of the
document or the contents of it as also the execution thereof, in the event there exists suspicious
circumstances the party seeking to obtain probate and/ or letters of administration with a copy of the
Will annexed must also adduce evidence to the satisfaction of the court before it can be accepted as
genuine.

41. As an order granting probate is a judgment in rem, the court must also satisfy its conscience
before it passes an order.

It may be true that deprivation of a due share by the natural heir by itself may not be held to be a
suspicious circumstance but it is one of the factors which is taken into consideration by the courts
before granting probate of a Will.

Unlike other documents, even animus attestandi is a necessary ingredient for proving the attestation.

In Benga Behera and Anr. v. Braja Kishore Nanda and Ors. MANU/SC/7673/2007 : (2007)9SCC728 ,
this Court held:

46. Existence of suspicious circumstances itself may be held to be sufficient to arrive at a

conclusion that execution of the Will has not duly been proved.

In B. Venkatamuni v. C.J. Ayodhya Ram Singh and Ors. MANU/SC/4692/2006 : AIR2007SC311 , it

was stated:

However, having regard to the fact that the Will was registered one and the propounder
had discharged the onus, it was held that in such circumstances, the onus shifts to the
contestant opposing the Will to bring material on record meeting such prima facie case in
which event the onus shifts back on the propounder to satisfy the court affirmatively that
the testator did not know well the contents of the Will and in sound disposing capacity
executed the same.

Each case, however, must be determined in the fact situation obtaining therein.

The Division Bench of the High Court was, with respect, thus, entirely wrong in proceeding
on the premise that compliance of legal formalities as regards proof of the Will would sub-
serve the purpose and the suspicious circumstances surrounding the execution thereof is
not of much significance.

The suspicious circumstances pointed out by the learned District Judge and the learned
Single Judge of the High Court, were glaring on the face of the records. They could not
have been ignored by the Division Bench and in any event, the Division Bench should have
been slow in interfering with the findings of fact arrived at by the said court. It applied a
wrong legal test and thus, came to an erroneous decision.

Yet again in Savithri and Ors. v. Karthyayani Amma and Ors. MANU/SC/8061/2007 : AIR2008SC300 ,
this Court held:

18. We do not find in the fact situation obtaining herein that any such suspicious
circumstance was existing. We are not unmindful of the fact that the court must satisfy its
conscience before its genuineness is accepted. But what is necessary therefor, is a rational
approach.

19. Deprivation of a due share by the natural heirs itself is not a factor which would lead
to the conclusion that there exist suspicious circumstances. For the said purpose, as

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 noticed hereinbefore, the background facts should also be taken into consideration. The
son was not meeting his father. He had not been attending to him. He was not even
meeting the expenses for his treatment from 1959, when he lost his job till his death in
1978. The testator was living with his sister and her children. If in that situation, if he
executed a Will in their favour, no exception thereto can be taken. Even then, something
was left for the appellant.

42. The court is, thus, required to adopt a rational approach in a situation of this nature. Once the
court is required to satisfy its conscience, existence of suspicious circumstances play a prominent
role. The Will, as noticed hereinbefore, is in two parts. Whereas the first part deals with the property
belonging to the husband of the testatrix, the second part deals with the properties which
purportedly belongs to her. Distribution of assets, however, was not specifically stated in the Will.
They were to be made as per the appendices annexed thereto. The appendices which were required
to be read as a part of the main Will so as to effectuate the intention of the testatrix have not been
proved. The Will by its own cannot be given effect to. The Will must be read along with the
appendices. No doubt in construing a Will arm chair rule is to be adopted. The Will was, therefore,
not complete. It is not correct to contend that the appendices were very much in existence at the
time when the Will was executed. Existence of a document must mean the actual existence.

We are, therefore, of the opinion that no case has been made out for interference with the impugned
judgment.

43. For the reasons aforementioned, the appeals are dismissed with costs. Counsel's fee assessed at
Rs. 50,000/-.

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