When testator was illiterate, burden was on propounder of Will to satisfy judicial conscience of Court

If judicial conscience of a final court of fact is not satisfied about the valid execution of the Will, it raises no substantial question of law – Supreme Court

In a recent judgment, Supreme Court has held that when the testator was an illiterate person, the burden was heavy on the propounder of the Will to satisfy the judicial conscience of the Court that the Will was executed by the testator with free will and full understanding of its contents.

ABCAUS Case Law Citation:
5179 (2026) (07) abacus.in SC

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In the instant case, the appellant/Plaintiff, namely, wife of the deceased husband (the testator) had instituted a Civil Suit for declaration that she is the sole owner in possession of the suit schedule property being the only surviving class I heir of the testator.

The plaintiff’s husband, was an illiterate agriculturist; he was the sole owner of the suit schedule property. He died intestate leaving no issue and the plaintiff was his sole heir. It was alleged that defendants have no right, title or interest over the suit schedule property; yet, on the basis a forged will, the defendants got the revenue records mutated in their favour.

It was argued that the deceased husband had never executed any will and the said will was an act of fraud / undue influence and as such void; besides, the deceased husband had no reason to disinherit his wife (i.e., the plaintiff) who was in possession of the suit schedule property.

The Trial Court noted that by virtue of intestate succession, the plaintiff would be the owner in possession of the property. The Trial Court also considered Jamabandi entries and observed that land was mortgaged with State on account of loan taken by the testator and thereafter, it was redeemed by plaintiff and in this respect, mutation was also attested. The same day, mutation was attested in the name of defendants on the basis of Will. The Trial Court observed that when both mutations were attested at the same day, it was incumbent upon the revenue authorities to make clear factum of possession, but that has not been done.

The Trial Court decreed the suit, thereby declaring the plaintiff as owner in possession of the suit schedule property, and issued permanent prohibitory injunction restraining the defendants from interfering with the possession of the plaintiff over the suit property.

The first appellate court observed that the plaintiff, being the only legal heir and legally wedded wife of the testator was disinherited without any rhyme or reason. Further relationship of the beneficiaries was not proved, date of will was much non before the death of the testator. There was no local witness and there were unwarranted cuttings.

The first appellate court held that will is a solemn document and judicial conscience of the court must be satisfied as to its execution, and where the will is shrouded in suspicious circumstances, the propounder of the will must explain the same and dispel the doubts

The Hon’ble High Court admitted the appeal of the defendants on the question as to whether the suspicious circumstances relied upon by two courts below in declaring the impugned will as invalid are suspicious circumstances surrounding the execution of said Will, and, if so, whether the suspicious circumstances had been satisfactorily explained?

The High Court took the view that when attestation of the Will is duly proved by the attesting witness, the execution of the Will would stand proved, and the Will, being a registered document, ought not to have been discarded for the reasons assigned by the courts below.

The Hon’ble Supreme Court noted the law regarding proof of Wills and onus of proving the Will in the absence of suspicious circumstances as laid down by the Apex Court

The Hon’ble Supreme Court observed that proof of will is not just an exercise to prove the signature of the testator on the Will and its attestation in terms of Section 63 of the Succession Act; rather it is an exercise to satisfy the Court’s conscience that the testator had signed the Will with free will being aware of its contents and after understanding the nature and effect of the dispositions in the Will. Where there are suspicious circumstances regarding the execution of the Will, the propounder must explain those circumstances and dispel all reasonable doubts regarding its execution. Judicial pronouncements have left the phrase ‘suspicious circumstances’ open-ended so as to encompass any circumstance which creates doubt about the Will being expression of the free will of the testator, though it would not include a figment of imagination or fantasy of a doubting mind.  Such doubt may arise from a shaky or doubtful signature of the testator; a feeble or uncertain mind of the testator; an unfair disposition of property; an unjust exclusion of the legal heirs, particularly the dependents; active or leading part played by the beneficiary in making of the will etcetera.

The Hon’ble Supreme Court observed that in the present case, the beneficiaries under the Will are not the natural heirs of the testator. Therefore, on the face of it, the disposition appears abnormal and creates doubt therefore, an explanation was required and if there are suspicious circumstances raising doubts about the Will, it is the duty of the propounder to explain those suspicious circumstances to dispel the doubts and satisfy the Court’s conscience.

The Hon’ble Supreme Court observed that there were two material statements in the Will which were found incorrect, namely, that the beneficiaries were the testator’s nephews and that the testator resided with them, and that they had been providing food and clothing to the testator and his wife. Further, illiteracy of the testator coupled with incorrect statements in the Will raised a serious doubt as to whether the testator executed the Will after fully understanding its content. In such circumstances, registration of the Will with proper endorsement of the Sub-Registrar would have been of some help to the propounder, but there are cuttings at the back of the Will where endorsement of the Sub-Registrar is recorded and there was no initial of the Sub Registrar against those cuttings, which made things worse for the propounder.         

The Hon’ble Supreme Court further noted that the cuttings at the back of the Will which were not uninitialed by the Registrar deprived the propounder of the Will the benefit of its registration which would have otherwise raised a presumption that the contents of the Will were read over to its executant.

The Hon’ble Supreme Court concluded that the testator was an illiterate person, therefore, the burden was heavy on the propounder of the Will to satisfy the judicial conscience of the Court that the Will was executed by the testator with free will and full understanding of its contents. Further, disposition in favour of the respondents, who were not close relatives, while disinheriting the widow i.e., the sole Class I heir of the testator, was unnatural and raised suspicion. The first appellate court found that the explanation offered in the Will to disinherit the sole Class I heir (i.e., the wife of the testator) was incorrect. Also, incorrect statement in the Will, alleged to be scribed on the instructions of the testator, coupled with the fact that the testator was an illiterate person, who could only use his thumb impression to execute a document, raises serious doubt as to whether the Will was executed by the testator with free will and full understanding of the nature and effect of the dispositions made therein

The Hon’ble Supreme Court held that there were suspicious circumstances shrouding the execution of the Will which remained unexplained by its propounder to dispel the doubts regarding its valid execution by the testator. Once that is the position, the finding of the first appellate court discarding the Will as one which fails to satisfy its judicial conscience, is a finding which cannot be said to be perverse or irrational.

The Hon’ble Supreme Court observed that a Full Bench of the Court had held that the conscience of the Court being satisfied” cannot convert a question of fact into one of law. Only where a court of fact rejects the Will by taking into consideration such circumstances as suspicious, which are figments of imagination or fantasy of a doubting mind and are not real or germane to the valid execution of the Will, a question of law may arise, and the decision may be interfered with in a second appeal. Similarly, if the decision of a court of fact is vitiated by an erroneous approach in law, like placing onus to establish allegations of fraud, undue influence etc. on the caveator, the Court may interfere with the finding of fact.

The Hon’ble Supreme Court held that all circumstances put together raised a serious doubt that the Will was executed by the testator with free will and full understanding of the nature and effect of the dispositions made therein.

The Hon’ble Supreme Court opined that if the judicial conscience of a final court of fact is not satisfied about the valid execution of the Will, it raises no substantial question of law for the second appellate court to interfere with the findings returned by the first appellate court.

Accordingly, it was held that the Will was rightly discarded by the first appellate court and the trial court. The judgment and order of the High Court was set aside. The decree passed by the trial court as affirmed by the first appellate court was affirmed.

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