Nothing unusual in denying property to ungrateful children: SC

Genuineness of a will cannot be disputed merely because the testator declined share in the family property to "ungrateful children", and had bequeathed it solely to one of the sons who looked after the aged parents till their death, the Supreme Court has ruled.

A bench of justices GS Singhvi and SJ Mukhopadhaya set aside a judgement of the Madhya Pradesh High Court which disbelieved the veracity of a will executed by Harishankar to one of his son Mahesh Kumar to the exclusion of two other sons - Vinod Kumar and Anand Kumar.

"Therefore, there was nothing unnatural or unusual in the decision of Shri Harishankar to give his share in the joint family property to the appellant. Any person of ordinary prudence would have adopted the same course and would not have given anything to the ungrateful children from his/her share in the property," Justice Singhvi writing the judgement said.

The bench said that in the present case the evidence clearly proved that Harishankar had willed the property to Mahesh Kumar instead of the other two sons as the former along with his wife and kids had taken care of the aged parents till their death.

Hence it felt that the high court had wrongly assumed that the Will was shrouded in suspicion owing to the exclusion of property to the other children by Harishankar which was executed on February 10, 1992.

"The evidence produced by the parties unmistakably show that respondent No. 2 had separated from the family in 1965 after taking his share and respondent No.1 also got his share in the 2nd partition which took place in 1985. Neither of them bothered to look after the parents in their old age.

"The attitude of respondent Nos. 1 and 2 left Shri Harishankar and his wife with no choice but to live with the appellant, who along with his wife and children took care of the old parents and looked after them during their illness," the apex court said.

The apex court further said that it was neither mandatory that the will should be appended simultaneously by the witnesses, nor was it necessary that if a second will is prepared it must specify that the first one stood cancelled.

"Another patent error committed by the learned single judge is that he decided the issue relating to validity of the will by assuming that both the attesting witnesses were required to append their signatures simultaneously.

"Section 63(c) of the 1925 Act (Transfer of Property) does not contain any such requirement and it is settled law that examination of one of the attesting witnesses is sufficient.

"The absence of a categorical recital in will dated February 10, 1992 that the earlier will was cancelled is also not relevant because once the execution of the second one is held as duly proved, the earlier will automatically becomes redundant because the second will represents the last wish of the testator," the apex court said.