Case Note & Summary
The appeal before the Supreme Court arose out of a suit for partition, separate possession, and profits filed by the plaintiff-first respondent. The underlying family dispute concerned the estate of one Atmaram, who died on January 13, 1971. Atmaram had two wives, Janki Bai and Rama Bai. The plaintiff and the fourth defendant were the children of Janki Bai, while the first defendant and the second defendant (appellant) were the sons of Rama Bai. Rama Bai was alive when the suit was instituted and was impleaded as the third defendant; however, she died during the pendency of the suit, and her sons, defendants 1 and 2, were impleaded as her legal representatives. This impleadment occurred notwithstanding the plea of the first defendant that Rama Bai had executed a will bequeathing her entire interest in his favour alone. The first appellate court decreed the suit and determined the shares as follows: plaintiff 1/12, first defendant 5/12, and second defendant 6/12, keeping aside the alleged will. The High Court, in second appeal, accepted the will as true and modified the shares to plaintiff 1/12, first defendant 7/12, and second defendant 4/12. Aggrieved by the reduction in his share, the second defendant appealed to the Supreme Court. The core legal question was whether the High Court was justified in modifying the shares based on an unproved will that was not in issue in the suit or in the legal representative proceedings, and whether the burden of proving the will lay on the first defendant. The Supreme Court reasoned that the will said to have been executed by Rama Bai in favour of the first defendant was not in issue in the suit nor in the L.R. application, and no finding with respect to its truth and validity had been recorded. Moreover, notwithstanding the said will, both brothers were impleaded as legal representatives of Rama Bai. Since the first defendant sought to alter the normal rule of succession by putting forward the will, the burden lay upon him to establish its truth and validity. The Court therefore held that the High Court was not justified in modifying the shares as it did. Accordingly, the Supreme Court set aside the judgment and decree of the High Court and restored the judgment and decree of the first appellate court. It was made clear that it would be open to the first defendant to establish the truth and validity of the will in an appropriate suit or proceeding, in which event the inter se shares between defendants 1 and 2 would depend on the finding of the competent court regarding the truth and validity of the will. The second appeal was allowed, but no costs were awarded.
Headnote
A) Succession - Will - Burden of Proof - Not mentioned - The first defendant claimed that deceased Rama Bai executed a will bequeathing her entire interest to him, thereby altering the normal rule of succession; since he was the propounder of the will, the burden lay upon him to establish its truth and validity. The Supreme Court held that the High Court could not accept the will without such proof and without the will being in issue in the suit or legal representative proceedings. Held that the High Court's modification of shares based on the unproved will was unjustified (Paras Not mentioned). B) Civil Procedure - Appellate Court Powers - Consideration of New Plea - Not mentioned - The High Court, in second appeal, modified the shares of defendants 1 and 2 by accepting the will as true, though the will was not in issue in the suit or in the L.R. application and no finding on truth and validity had been recorded. The Supreme Court set aside the High Court judgment and restored the first appellate court decree, leaving it open to the first defendant to prove the will in an appropriate suit or proceeding. Held that an unproved will cannot form the basis for altering shares (Paras Not mentioned).
Issue of Consideration
Whether the High Court was justified in modifying the shares of defendants 1 and 2 on the basis of an unproved will that was not in issue in the suit or in the legal representative proceedings, and whether the burden of proving the will lay on the first defendant as its propounder.
Final Decision
The Supreme Court allowed the second appeal, set aside the judgment and decree of the High Court, and restored the judgment and decree of the first appellate court. It was made clear that the first defendant could establish the truth and validity of the will in an appropriate suit or proceeding, and the inter se shares between defendants 1 and 2 would then depend on the finding of the competent court. No costs.
Law Points
- Burden of proving will lies on propounder
- Will not in issue cannot be relied upon to alter shares
- High Court cannot accept will without issue and finding
- Shares cannot be modified based on unproved will
- Legal representatives impleaded irrespective of alleged will
- Normal rule of succession cannot be displaced without proof of will
