The Supreme Court has set aside the concurrent findings of the High Court and the Trial Court, upholding the validity of a will that excluded one of the testator’s nine children who had married outside the community. The Bench of Justice Ahsanuddin Amanullah and Justice K. Vinod Chandran ruled that the wish of the testator assumes pre-eminence and cannot be frustrated by considerations of equity.
The case involved a dispute over the estate of N.S. Sreedharan, who executed a will in 1988 bequeathing his properties to eight of his nine children, excluding the plaintiff (respondent herein). The Trial Court and the High Court had declared the will invalid, holding that the attesting witness failed to prove the attestation by the other witness as required by law. The Supreme Court reversed these findings, holding that the evidence of the attesting witness, when read as a whole including cross-examination, unequivocally proved the execution of the will. Consequently, the plaintiff’s suit for partition was dismissed.
Background of the Case
The testator, N.S. Sreedharan, executed a will (Exhibit B2) on March 26, 1988, which was registered the following day. The will allocated properties to eight of his children (defendants) while excluding the plaintiff.
In 1990, the defendants filed an injunction suit against the plaintiff to restrain her from interfering with the property, producing a copy of the will. The plaintiff did not contest the suit, resulting in an ex parte judgment against her.
Decades later, in 2011, the present suit was filed by the plaintiff seeking partition of her father’s properties. The defendants contested the suit relying on the will. The Trial Court decreed the suit in favor of the plaintiff, reasoning that the sole surviving attesting witness (DW-2) proved only his own attestation and the testator’s execution, but failed to depose regarding the attestation by the second witness.
The High Court affirmed this view, noting that although DW-2 admitted to the presence of the other witness during cross-examination, the answer was in response to a leading question and thus lacked probative value.
Arguments of the Parties
The Appellants (Defendants): They contended that the requirements of Section 68 of the Indian Evidence Act, 1872 read with Section 63 of the Indian Succession Act, 1925 were fully satisfied. They argued that DW-2 had spoken of the testator’s signature, his own attestation, and the presence of the other witness. It was submitted that statements were taken out of context to disbelieve the will.
The Respondents (Plaintiff): They argued that the will was not proved as DW-2’s testimony was contradictory. It was pointed out that DW-2 claimed to have visited the testator’s house only once, yet the will was dated March 26 and registered on March 27. They relied on precedents including Meena Pradhan v. Kamla Pradhan and Rani Purnima Debi v. Kumar Khagendra Narayan Deb to argue that the attestation requirements were not met.
Court’s Analysis
The Supreme Court analyzed the deposition of DW-2 in detail. The Court observed that while the examination-in-chief of DW-2 did not explicitly state that the other witness signed the will, this “missing piece was supplied in cross-examination by the plaintiff.”
During cross-examination, when asked if he and “others” put their signatures on the will on the date it was written, DW-2 answered in the affirmative. The Court rejected the High Court’s view that answers to leading questions in cross-examination lack probative value.
“Leading questions are permitted in cross-examinations and the response elicited cannot be said to have lesser probative value, as held by the High Court.”
Addressing the alleged discrepancy regarding the dates of execution and registration, the Court noted that the examination took place 24 years after the will’s execution. Referencing H. H. Maharaja Bhanu Prakash Singh v. Tika Yogendra Chandra, the Court held that minor discrepancies are natural after a long lapse of time.
“It would be puerile to think that the witness would have remembered the visits made to the testator’s house, even for execution of a will, with mathematical precision.”
The Court further observed that the testator was established to be of sound and disposing mind, and the only “suspicion” raised was the exclusion of one daughter. The Court firmly stated that it cannot substitute its opinion for the testator’s desire.
“The propounders of the will are the siblings of the one excluded. There is a reason stated for such exclusion, the acceptability of which to our minds, is not what the rule of prudence dictates. We cannot put the testator in our shoes, and we should step into his.”
Decision
The Supreme Court allowed the appeals, setting aside the judgments of the High Court and the Trial Court. The Court held that the will stands proved unequivocally and the plaintiff has no partible claim over the properties.
Addressing the respondent’s plea that the plaintiff would legally be entitled to only a 1/9th share, the Court remarked:
“We are not on equity, and the wish of the testator assumes pre-eminence. The last will and testament of the testator cannot be digressed from or frustrated.”
The suit filed by the plaintiff was dismissed.
Case Details:
- Case Title: K. S. Dinachandran v. Shyla Joseph & Ors.
- Case Number: Civil Appeal Nos. of 2025 (@SLP (C) Nos. 11057-11058 of 2025)
- Coram: Justice Ahsanuddin Amanullah and Justice K. Vinod Chandran
- Citation: 2025 INSC 1451
