Right to equality does not apply to wills, orders HC

NT Correspondent

Bengaluru: The High Court of Karnataka has said that while appreciating the genuineness of a Will, the courts are not meant to see if there was fair and equitable distribution of property by the testator to all his children. The Court can concern itself only with the genuineness of the signature and whether the testator had the right mental capacity to execute the Will. Thus Article 14 of the Constitution (Right to Equality) does not apply to Wills and testaments.

Citing the Supreme Court case of Kavita Kanwar Vs Mrs Pamela Mehta, Justice V Srishananda said, “In a given case the signature of the testator is disputed or the mental capacity of the testator is questioned. In the matter of appreciating the genuineness of the execution of a Will, there is no place for the Court to see whether the distribution made by the testator was fair and equitable to all his children. It is further held that the Court is not required to apply Article 14 of the Constitution of India, to dispositions under a Will.”

The dispute started with one of the daughters of SS Murthy Rao and Rangamma seeking partition of property, a residential house in Palace Orchards, Sadashivanagar, movable properties including jewels and machinery in a workshop.

The people involved in the dispute are the four children of SS Murthy Rao and Rangamma and their grandchildren. The son of SS Murthy Rao contended that Murthy Rao executed a Will in 1981 before his death. Rangamma also executed a will on the same day and another Will and Codicil in 1983.

He claimed the immovable property was willed to him and the movable properties were shared among the siblings at the behest of the pontiff of the Udupi mutt. The Trial Court ruled that the four children of SS Murthy Rao and Rangamma were entitled for 1/4th share in the property. This was challenged in the High Court by the son, S Krishna Rao in 2008.

The HC gave its judgment recently. Krishna Rao had died in the meantime and was represented by his wife and daughter. The High Court said that unless the contesting party provides material to challenge the genuineness of the Will, no strict proof of the will is required.

Setting aside the 2008 judgment and decree of the Trial Court, it said, “The pro-pounder is not expected to prove a Will by mathematical certainty. Thus, while appreciating the material evidence placed on record, the court is not expected to look for strict proof. In a given case, the rule to be applied in such cases is the celebrated rule namely, ‘Arm Chair rule’,” the Court said.

The Court said that there is no challenge to the genuineness of the Will in the present case. “If any such evidence is placed by the person who opposes the Will, the onus would again shift back to pro-pounder. In the case on hand, there is no rebuttal evidence placed by the plaintiff who is contesting the genuineness of the Wills and Codicil.”