Case at a Glance
A Bombay-based chartered accountant left his agricultural lands in Udupi to his only sister by a 1983 Will, saying he had already given “enough and more” to his wife and children. After his death, the land was mutated in the wife’s name, and the family later alleged the Will was forged. The trial court, first appellate court and Karnataka High Court all upheld the Will, and the Supreme Court dismissed the family’s appeal. It held that exclusion of natural heirs is not by itself a suspicious circumstance, mutation entries do not confer title, and affidavits of attesting witnesses filed without cross-examination are not evidence.
B. Sheena Nairi, a chartered accountant living in Bombay, owned a flat there and agricultural and ancestral land in Udupi, Karnataka. On 15 May 1983 he executed a Will bequeathing the Udupi properties to his only sister, the plaintiff, and cancelled powers of attorney he had earlier given to his brother-in-law for managing them. The Will recorded: “I have given enough and more to my wife and children who are residing at Bombay.” He died on 30 November 1983. In 1984 the Tehsildar, Udupi mutated the land in the name of his wife, even though the sister had written to the Tehsildar in February 1984 seeking mutation in her favour on the basis of the Will.
In 1990 the sister filed O.S. No. 186 of 1990 for declaration of ownership, possession and mesne profits. The wife and children alleged the Will was forged. The trial court decreed the suit on 16 December 2008, holding the Will proved through an attesting witness — the testator’s brother — and comparing the disputed signature with the signature on the admitted power of attorney. The first appellate court affirmed on 6 August 2012 and the Karnataka High Court dismissed the second appeal on 15 November 2012.
The Key Question Before the Court
Were there sufficient grounds — delay, exclusion of the wife and children, the mutation in the wife’s favour, affidavits of attesting witnesses, and defects in the first appellate judgment — to disturb three concurrent findings upholding the Will?
How the Court Dealt With Each ‘Suspicious Circumstance’
Justice Vijay Bishnoi, writing for the Bench, restated the settled principles for proving a Will under Section 63 of the Indian Succession Act and Section 68 of the Evidence Act, drawing on H. Venkatachala Iyengar v. B.N. Thimmajamma, (1958) 11 SC CK 0008, Shivakumar v. Sharanabasappa, (2020) 04 SC CK 0030 and Meena Pradhan v. Kamla Pradhan, (2023) 09 SC CK 0045. The attesting witness had deposed that he and the testator signed the Will in each other’s presence, and the Court found the Will was executed voluntarily by the testator in a sound state of mind. On delay, it noted that the sister’s 1984 notice to the Tehsildar “itself disclosed all relevant facts, including the execution of the Will”; and relying on Balwant Singh v. Daulat Singh, (1997) 07 SC CK 0003, it reiterated that mutation entries “do not confer title” and are made for fiscal purposes only. Non-registration of the Will was of no significant bearing.
On the exclusion of the wife and children, the Court relied on Rabindra Nath Mukherjee v. Panchanan Banerjee, (1995) 05 SC CK 0055: mere exclusion of natural heirs is not by itself a suspicious circumstance, particularly where, as here, the Will itself gives a reason. The appellants relied on affidavits in which the attesting witnesses allegedly denied signing; but following Ayaaubkhan Noorkhan Pathan v. State of Maharashtra, (2012) 11 SC CK 0005, the Court held that an affidavit is not “evidence” under Section 3 of the Evidence Act unless the deponent is available for cross-examination, and these affidavits — one filed even before the written statement — “cannot be relied upon.” Finally, it held that mere non-compliance with Order XLI Rule 31 CPC “may not vitiate the judgment” where there is substantial compliance.
What the Court Actually Held
- The Will was duly proved through an attesting witness and was executed voluntarily by a testator of sound mind.
- Exclusion of natural heirs is not by itself a suspicious circumstance, especially where the Will records the reason.
- Mutation entries do not confer title; an affidavit of an attesting witness, without an opportunity for cross-examination, is not evidence.
- Non-compliance with Order XLI Rule 31 CPC does not vitiate an appellate judgment where there is substantial compliance; the appeal was dismissed with no order as to costs.
Why This Judgment Matters
- Disputes in which a testator leaves property outside the immediate family are common; this ruling confirms that such a choice, explained in the Will, is not a ground to reject it.
- It reminds families that a mutation in revenue records is no substitute for title under a proved Will.
- It cautions litigants against relying on affidavits from witnesses who are never offered for cross-examination.
What Should Advocates Take Away From the Judgment?
For Families and Testators
- If you intend to leave property outside your immediate family, record your reasons in the Will — the Court gave weight to such a statement here.
- A mutation entry in someone else’s name does not defeat a validly proved Will.
- Raise your claim promptly with the revenue authorities; the beneficiary’s early notice to the Tehsildar helped answer the charge of delay.
For Counsel
- Prove execution through at least one attesting witness under Section 68 and compare signatures with admitted documents.
- Do not rely on affidavits of attesting witnesses unless they are tendered for cross-examination.
- Arguments based on Order XLI Rule 31 defects will fail where the appellate judgment substantially deals with the issues.
Key Takeaways
- Excluding natural heirs is not by itself suspicious.
- Mutation entries are fiscal and do not confer title.
- Untested affidavits are not evidence under Section 3 of the Evidence Act.
- Three concurrent findings upholding the Will were affirmed.
Frequently Asked Questions
Is a Will invalid if it leaves nothing to the wife and children?
No. The Supreme Court held that exclusion of natural heirs is not by itself a suspicious circumstance. In this case the Will itself explained that the testator had already provided for them.
Does mutation of land in revenue records make someone the owner?
No. The Court reiterated that mutation entries do not confer title and are made only for fiscal purposes.
Can an attesting witness’s affidavit denying the Will be relied on?
Not without cross-examination. The Court held such affidavits are not evidence unless the deponent is available for cross-examination, and refused to rely on them.
Conclusion
Parvathi Nairthi v. Laxmi Nairthy, (2026) 05 SC CK 0471 brings together several practical rules of Will litigation: proof through an attesting witness, the limited role of mutation, the weight of a testator’s stated reasons for excluding heirs, and the evidentiary weakness of untested affidavits.
Practical takeaway: A Will that is properly attested and explains why natural heirs are left out will not be set aside merely because the family was excluded or the revenue records show someone else.
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