Introduction
The case of Lilian Coelho & Ors. Vs. Myra Philomena Coalho¹ presented a significant question regarding the intricate relationship between establishing that a Will has been validly executed and determining whether that Will is "genuine" in the eyes of law. The Hon'ble Supreme Court issued a significant ruling addressing the distinction between the valid execution of a Will and its genuineness. The Hon'ble Bench was considering an Appeal challenging the Judgement of the Hon'ble Division Bench of the Bombay High Court as per which it reversed the Judgement of a Single Judge in a Testamentary Suit. The main legal question was whether proving the valid execution of a Will automatically confirms the Will's authenticity and absence of suspicious circumstances.

Facts of the Case
The Respondent (Plaintiff), Myra Philomena Coalho filed a petition for the grant of Letters of Administration with the Will of the property and credits of her deceased mother. The Letters of Administration (LOA) is a court issued Order that grants a person the legal authority to administer the estate of someone who has died. When the Will is disputed, as in the present case, the parties must not only demonstrate correct execution but also show that the Will is indeed reflective of the testator’s free and voluntary intentions.

The Will dated 07.07.1982 said to be her last Will was propounded whereunder the testatrix bequeathed properties in favour of her two sons namely George and Reginald and the daughter who is the present Respondent, in equal shares. A caveat was filed by another son, Victor. However, during the pendency of the proceedings, Victor died and therefore, the proceedings were continued by his widow. In view of the filing of the caveat, raising objections, the caveat was converted into a suit. The main subject matter of the whole suit was about the Will dated 07.07.1892 in respect of which LOA was prayed for.

The Hon’ble Single Judge after framing the issues found that the Will in question was duly executed but it was shrouded with suspicious circumstances and the Respondent could not satisfy the conscious of the Hon’ble Court by removing such suspicious circumstances resulting in the dismissal of the suit.

Thereafter in the appeal, the Hon’ble Division Bench did not formulate points for consideration and at the same time on reappreciation of the evidence, it was found that the Learned Single Judge had correctly come to the conclusion that the Will in question was validly executed. The Hon’ble Division Bench held that the Learned Single Judge had recorded a finding that the Will is validly executed and it is genuine and observed and held that suspicious circumstances, if any have to be taken into consideration by a Court before recording a finding that the Will is genuine and not after recording a finding that the Will is genuine. In that view, the Hon’ble Division Bench set aside the findings recorded by the Learned Single Judge that the Will is shrouded with suspicious circumstances and consequently, held that the Respondent is entitled to grant of LOA. Accordingly, the Testamentary Suit was decreed in terms of the prayer clause of the suit.

The Apex Court’s key observations
The Hon’ble Apex Court while setting aside the Hon’ble High Court’s approach clarified that establishing a Will’s procedural validity does not end the inquiry. The Hon’ble Court emphasised that the valid execution of a Will and its genuineness are distinct concepts. The Hon’ble Bench observed that -

“Holding that a ‘Will is validly executed’ and a ‘Will is genuine’ cannot be said to be the same. Even if execution is established, the Court must evaluate any suspicious circumstances.”

The Hon’ble Bench further explained that even if it is proved that the Will was executed in accordance with the law, the same cannot lead to the presumption about its genuineness. The Hon’ble Bench observed that the Courts must still turn their attention to resolving whether any suspicious factors undermine the Will’s genuineness.

Legal Reasoning
Issues framed in the Testamentary Suit

1. Does the Plaintiff prove the due execution and attestation of the Will dated 07.07.1982 of the deceased Mrs. Maria Francesca Coelho?
2. Does the Plaintiff prove that the said deceased was of sound and disposing state of mind and has testamentary capacity at the time of execution of the Will dated 07.07.1982?
1. Whether the defendants prove that the deceased was not in a disposing state of mind and did not have testamentary capacity at the time of execution of the Will?Do the defendants prove that the signature of the deceased on the will dated 07.07.1982 was forged?
3. Do the defendants prove that the Will dated 07.07.1982 was executed by the deceased under undue influence, coercion and threats and fraud was played on the deceased by the plaintiff?
4. Whether the plaintiff is entitiled to letters of administration as prayed?
5. What order and decree?

On perusal of the Judgement of the Learned Single Bench in the Testamentary Suit, the Hon’ble Apex Court observed that the issues No.1 and 2 were answered in the affirmative and thereby were in favour of the Respondent. Issue Nos. 2 (a) to 4 were answered in the negative and thereby were in favour of the Respondent. The Hon’ble Apex Court further noted that the thereafter the Learned Single Judge considered the findings against issue nos. 5 and 6 and held that the Respondent is not entitled to the grant of LOA as prayed for. A perusal of the impugned Judgement of the Hon’ble Division Bench of the High Court would reveal that the findings of the Learned Single Judge against issue nos. 1 to 4 were taken by the Hon’ble Division Bench findings tantamount to a finding regarding the genuineness of the Will in question. On perusal of the Judgement of the Learned Single Judge, the Hon’ble Apex Court noted that there was a conspicuous absence of any specific finding regarding genuineness of the Will and that the Hon’ble Division Bench had not held that there is such a specific finding by the Learned Single bench. The Hon’ble Apex Court further observed that -

“...in the absence of a definite finding regarding the genuineness of the Will by the learned Single Judge in the Testamentary Suit whether the Division Bench was justified in holding that the learned Single Judge had made a specific finding regarding the genuineness of the Will without considering the question whether the cumulative effect of the findings returned by the learned single Judge could be taken as a finding on the genuineness of the Will in question in the affirmative and thereby making a further probe as to whether the Will in question is surrounded by suspicious circumstances before further consideration. We are of the considered view that the said approach of the Division Bench cannot be said to be correct. A reasoned judgement of a Single Judge cannot be interfered with without a deep consideration.”

The Hon’ble Supreme Court in the present case dissected the fine difference between validity and genuineness of a Will. The Hon’ble Court observed that valid execution pertains to adherence to legal formalities i.e. compliance with Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872 that is proving that the testator duly signed the Will in the presence of the witnesses.

Section 63 of the Indian Succession Act, 1925 -
“63. Execution of unprivileged Wills.-
Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules:-(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.

(b)The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.

(c)The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.”

Section 68 of the Indian Evidence Act, 1872 -
“68. Proof of execution of document required by law to be attested.
If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence :[Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (XVI of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.] [Inserted by Act 31 of 1926, Section 2.]”

Genuineness of the Will - The Hon’ble Apex Court observed that Genuineness of a Will involves a broader evaluation of intent, absence of undue influence and freedom from any kind of suspicious circumstances.

Suspicious Circumstances - The Hon’ble Apex Court reiterated that even a validly executed Will could be deemed to be untrustworthy if it is shrouded by suspicious circumstances. The Hon’ble Court further added that it is the responsibility of the propounder to dispel such doubts to the Court’s satisfaction. The Hon’ble Bench explained that the Learned Single Judge recognised that although the Will looked validly executed, there were unresolved concerns that the propounder failed to adequately dispel. The Hon’ble High Court’s mistake, as identified by the Hon’ble Supreme Court deduces that the Hon’ble High Court erroneously presumed that a finding of valid execution necessarily establishes genuineness. The Hon’ble Supreme Court noted that the Learned Single Judge had never given a final finding of “genuineness”, but merely of “valid execution”. Therefore, the presence of suspicious circumstances remained an open issue which needed proper scrutiny.

Precedents cited by Hon’ble Apex Court
The Hon’ble Supreme Court reinforced its reasoning by relying on earlier judgments that emphasise on the dual requirements of execution and genuineness. Some of them are:

1. Kavita Kanwar Versus Pamela Mehta & Ors.²
   This case re emphasized the legal requirement for due execution under Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872.
    
2. Derek A.C. Lobo & Ors. Versus Ulric M.A. Lobo (Dead) by LRS³
   This case clarified that mere registration or facial compliance with technical formalities is insufficient, the Courts mut examine the entire evidence to exclude any suspicious factors.
   
   Decision of the Supreme Court
   The Hon’ble Apex Court set aside the Bombay High Court’s judgment emphasising the necessity for a thorough analysis of the case. It remanded the case for fresh consideration by the Hon’ble High Court directing them to examine all the factual and legal issues more particularly those relating to the Will’s authenticity and the removal of suspicious circumstances.

By - Soumya Kamat