Excluding Natural Heirs from a Will Is Not a Suspicious Circumstance, Supreme Court Holds
A bench of Justices Ujjal Bhuyan and Vijay Bishnoi upholds a 1983 Will bequeathing Karnataka properties to a sister, rejecting the wife and children's forgery plea.
The Supreme Court has dismissed a civil appeal challenging the validity of a Will executed in 1983 by a Bombay-based Chartered Accountant, B. Sheena Nairi, who bequeathed his Karnataka properties entirely to his younger sister, Laxmi Nairthy, to the exclusion of his wife and five children. A division bench of Justices Ujjal Bhuyan and Vijay Bishnoi, deciding Civil Appeal No. 6859 of 2014 on 21 May 2026, affirmed concurrent findings of the Trial Court, the First Appellate Court, and the High Court of Karnataka, all of which had upheld the Will. The Court held that the exclusion of natural heirs from a Will does not, by itself, constitute a suspicious circumstance capable of invalidating it, and that the Will had been duly proved through the testimony of an attesting witness.
How the Dispute Reached the Supreme Court
B. Sheena Nairi was a Permanent Resident of Bombay working as a Chartered Accountant. He owned a residential flat in Bombay and substantial immovable properties at Brahmavar and Chanthar Village, Udupi Taluk, Karnataka, consisting primarily of agricultural lands and ancestral properties. He had executed a Power of Attorney in favour of his brother-in-law, Krishnayya Nairi, on 30.04.1960 and 08.04.1961 for the management of certain properties.
On 15.05.1983, the testator executed his last Will bequeathing all the plaint schedule properties to his only surviving sister, Laxmi Nairthy, and simultaneously cancelled the Power of Attorney. He died on 30.11.1983 at the age of 69 years due to a heart attack in Delhi.
After his death, his wife, Parvathi Nairthi, applied before the Tehsildar, Udupi for mutation of the properties in her favour. The Tehsildar issued notice on 01.02.1984 and passed a mutation order on 06.04.1984 transferring the properties to the wife. Laxmi Nairthy had, however, already written to the Tehsildar on 10.02.1984 disclosing the execution of the Will and seeking mutation in her name. She came to know only in October 1990 that Krishnayya Nairi had managed to get the names of the wife and children entered in the revenue records without notice to her. When Krishnayya Nairi and his son attempted to threaten her and cut standing crops, she filed suit.
On 22.11.1990, Laxmi Nairthy instituted O.S. No. 186 of 1990 before the Additional Civil Judge (Senior Division), Udupi, seeking a declaration of ownership under the Will, perpetual injunction over Items 1 to 3 of the plaint schedule properties, recovery of possession of Items 4 to 12, mesne profits, and compensation.
The wife and children filed a written statement contending that the Will was false and fabricated, that the testator had never executed it, and that it was created after his death by his brothers in collusion. The Trial Court, by judgment dated 16.12.2008, decreed the suit in favour of Laxmi Nairthy. The First Appellate Court dismissed the appeal on 06.08.2012. The High Court of Karnataka dismissed the second appeal on 15.11.2012, holding that no substantial question of law arose. The wife and children then approached the Supreme Court.
What the Court Held
The Supreme Court framed the central question as whether sufficient grounds existed to interfere with the concurrent findings of all three courts upholding the validity of the Will. It found none.
The Court held that the Will was duly executed by the testator voluntarily, in a sound state of mind, and that its execution stood proved through the testimony of B. Jagannatha Nairi, one of the attesting witnesses, who was examined as PW2. This witness stated that the testator executed the Will in his presence and that both he and the testator signed it in the presence of each other.
On the exclusion of natural heirs, the Court held that “mere exclusion of the natural heirs from the property of the testator, by itself, cannot be construed as a suspicious circumstance so as to invalidate a Will outrightly.” The testator is legally entitled to dispose of his property according to his own wishes. Unless the exclusion is accompanied by suspicious circumstances affecting the genuineness or due execution of the Will, such exclusion alone does not render it invalid. The Court found added comfort in the Will's own recital that the testator had given enough to his wife and children residing at Bombay and had done no injustice to them.
The Reasoning: Forgery Plea, Delay, Mutation, and Registration
The appellants raised several distinct grounds. The Court addressed each.
Forgery plea not proved. The wife and children alleged the Will was forged, but none of them entered the witness box. The written statement was signed, verified, and affirmed solely by Respondent No. 5, Ganesha @ Ganapayya Nairi, the son of the POA holder, who was also the only defence witness. The Court accepted the respondents' submission that once specific allegations of forgery are made and the propounder proves execution, the burden shifts to the party alleging forgery. The appellants neither examined any expert witness nor asked for the Will to be sent for handwriting examination.
The Trial Court had itself compared the disputed signature on the Will with the admitted signature on the Power of Attorney and found sufficient coordination in the writing, placement of dots, and formation of the underline to conclude both were made by the same person. The First Appellate Court held that the Trial Court possessed this power and that no handwriting expert was necessary.
Affidavits of attesting witnesses. The appellants relied on affidavits purportedly filed by both attesting witnesses denying they had signed the Will. The Court rejected this, applying the principle from Ayaaubkhan Noorkhan Pathan v. State of Maharashtra and Others that an affidavit is not “evidence” within the meaning of Section 3 of the Indian Evidence Act, 1872 unless the Court passes an order under Order XIX of CPC and the deponent is available for cross-examination. The Court also noted that these affidavits were filed even before the written statement was filed on 18.02.1991, and all courts had questioned how the witnesses came to know about the enquiry when no notice had been issued to them.
Delay in producing the Will. The appellants argued the suit was filed seven years after the Will's execution and six years after mutation in their favour, with no explanation. The Court rejected this. All three courts had concurrently found that Laxmi Nairthy had given a representation to the Tehsildar as early as 10.02.1984, disclosing the execution of the Will, and that she filed suit only after being threatened in October 1990. The Court found no unexplained delay.
Mutation entries. The Court reiterated the settled position, relying on Balwant Singh and Another v. Daulat Singh (Dead) by LRs. and Others, that mutation entries do not confer title and are effected merely for fiscal purposes to enable the State to realise tax from the person recorded in revenue records.
Non-registration of the Will. The Court held that the Will's lack of registration had no significant bearing on its validity, citing Ishwardeo Narain Singh v. Kamta Devi and Others, which had held that there is nothing in law requiring registration of a Will and that drawing an inference against genuineness on the ground of non-registration is wholly unwarranted.
Principles on Will Validity Restated
The Court set out the governing legal framework by drawing on a line of precedents including H. Venkatachala Iyengar v. B.N. Thimmajamma And Others, Bhagwan Kaur v. Kartar Kaur And Others, Janki Narayan Bhoir v. Narayan Namdeo Kadam, Yumnam Ongbi Tampha Ibema Devi v. Yumnam Joykumar Singh And Others, and Shivakumar And Others v. Sharanabasappa And Others.
The principles distilled include: a Will must satisfy the formalities under Section 63 of the Succession Act; at least one attesting witness alive and subject to the process of the court must be examined under Section 68 of the Indian Evidence Act, 1872; the attesting witness must speak to both the testator's signature and to having signed the Will in the testator's presence; where suspicious circumstances exist, the propounder must remove all legitimate suspicion; and one who alleges fraud, fabrication, or undue influence must prove it.
On what qualifies as a suspicious circumstance, the Court quoted from Indu Bala Bose & Ors. v. Manindra Chandra Bose & Anr.: “A circumstance would be ‘suspicious’ when it is not normal or is not normally expected in a normal situation or is not expected of a normal person.” Suspicious circumstances must be “real, germane and valid” and not merely the fantasy of a doubting mind, as held in Shivakumar v. Sharanabasappa.
On the specific question of excluding natural heirs, the Court acknowledged the position in Ram Piari v. Bhagwant and Ors. that prudence requires some reason for denying natural heirs the benefit of inheritance, and that an absence of such reason, while not invalidating the Will in all cases, may shroud the disposition with suspicion. However, the Court found that in this case the Will itself provided the reason: the testator had expressly stated he had given enough to his wife and children.
Order XLI Rule 31 of CPC: Substantial Compliance Sufficient
The appellants contended that the First Appellate Court had not complied with Order XLI Rule 31 of CPC because the points for determination it framed were general in nature. The High Court had itself acknowledged this but treated it as a technicality.
The Supreme Court rejected the contention. Relying on G. Amalorpavam And Others v. R. C. Diocese of Madurai and Others, the Court held that non-compliance with Order XLI Rule 31 does not vitiate a judgment and make it wholly void if there has been substantial compliance and the second appellate court can ascertain the findings of the lower appellate court. Where the appellate court has considered the entire evidence on record, discussed it in detail, reached conclusions supported by reasons, and there has been an honest endeavour to consider the controversy between the parties, the judgment is valid even without formally framed points for determination. The Court found that the First Appellate Court had done precisely this.
Outcome
The Supreme Court dismissed Civil Appeal No. 6859 of 2014 and affirmed the judgment of the High Court of Karnataka dated 15.11.2012. The concurrent findings of all three courts upholding the validity of the Will were confirmed. Pending applications, if any, were disposed of. No order as to costs was made.