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Wednesday, March 14, 2012

GENUINENESS OF THE WILL - PARTITION= 31. In view of the above discussion, we hold that the learned Single Judge was clearly in error in reversing the well-reasoned finding recorded by the trial Court on the issues of execution of Will dated 10.2.1992 by Shri Harishankar and its genuineness and validity. Consequently, the appeals are allowed, the impugned judgement is set aside and the one passed by the trial Court is restored. The parties are left to bear their own costs.


                                                1



                                                                       NON-REPORTABLE


                        IN THE SUPREME COURT OF INDIA


                         CIVIL APPELLATE JURISDICTION


                      CIVIL APPEAL NOS. 7587-7588 OF 2004




Mahesh Kumar (Dead) By L.Rs.                                           ... Appellants


                                             versus


Vinod Kumar and others                                                 ... Respondents





                                      J U D G M E N T





G. S. Singhvi, J.


1.     These   appeals   are   directed   against   judgment   dated   22.7.2004   of   the


learned Single Judge of the Madhya Pradesh High Court whereby he allowed


the  appeals  filed   by   respondent  No.1  -  Vinod  Kumar  and  respondent   No.2  -


Anand   Kumar,   set   aside   judgment   and   decree   dated   21.11.2002   passed   by   II


Additional District Judge (Fast Track), Harda (hereinafter described as the `trial


Court')   and   decreed   the   suit   filed   by   respondent   No.1   for   declaration,


possession, permanent injunction and recovery of rent in respect of the share of


Shri   Harishankar   (father   of  the   appellant   and   respondent   Nos.1   and   2)   in   the


joint family property.   The learned Single Judge also declared that respondent


                                               2



No.2 shall be entitled to possession of his share in the suit property in terms of


Will dated 9.6.1989 (Ex. P-1) executed by Shri Harishankar.  





2.    For   the   sake   of   convenience,   the   parties   are   being   referred   to   as   the


appellant and the respondents.





3.    Appellant   Mahesh   Kumar   who   is   now   represented   by   his   legal


representatives, respondent Nos. 1 and 2 and their father were members of the


joint family.   In 1965, respondent No.2 took his share and separated from the


joint family.  After 20 years, another partition took place among the remaining


members of the joint family.  In the second partition, respondent No.1 got 9.83


acres land of village Nimchakhurd and a  house situated at Timarni Bazar.  The


appellant got the other house situated at Timarni and cash and Shri Harishankar


got land comprised in Khasra No.92/1, 92/2 and 92/9 situated at Timarni along


with the bungalow constructed over it.





4.    In 1995, respondent No.1 filed Civil Suit No.20A of 1995 and prayed for


grant of a declaration that by virtue of registered Will dated 9.6.1989 executed


by   Shri Harishankar, he had become sole owner of the property shown in red


colour in the map annexed with the plaint and half portion in the shop situated


                                                  3



in the bungalow.  He also prayed for grant of a decree of possession by alleging


that   after   the   death   of   father   Shri   Harishankar,   he   had   asked   the   appellant   to


give shares to the brothers in terms of Will dated 9.6.1989 but latter declined to


do so.  The last prayer made by respondent No.1 was that the appellant may be


directed   to   pay   him   share   in   the   arrears   of   rent   of   the   Bungalow   which   was


leased out to Firm Ramesh Chand Dinesh Kumar Agarwal.





 5.     In his written statement the appellant claimed that after the 2nd  partition,


the   parents   started   living   with   him   and   he   and   his   family   was   looking   after


them. According to the appellant his mother died in January, 1992 and after her


death,   Shri   Harishankar   executed   Will   dated   10.2.1992   and   bequeathed   his


share   to   him   because   he   was   looking   after   the   parents   and   took   care   of   the


mother till her death on 23.1.1992 (Ex. D-2).  He also pleaded that respondent


Nos.1   and   2   were   not   given   anything   because   they   had   already   got   their


respective shares in the joint family property.





 6.     In a separate written statement filed by him through his son Alok Kumar-


cum-special power of attorney, respondent No.2 denied that he had separated


from the joint family in 1965 and taken his share.   Respondent  No.2 pleaded


that he is not bound by the partition which is said to have taken place in 1990


                                                 4



between   the   appellant,   respondent   No.1   and   Shri   Harishankar   and   that   he   is


entitled   to  one-third   share   in  the   agricultural   land  and   other   properties   of  the


joint family.  However, he did not  file counter claim in support of his plea that


he   was   entitled   to   one-third   share   in   what   he   described   as   the   joint   family


property.





7.      Respondent No.1 amended the plaint more than once but did not seek a


declaration   of   invalidity   qua   Will   dated   10.2.1992   on   the   ground   that   Shri


Harishankar had executed the same under the influence of the appellant.





8.      On   the   pleadings   of   the   parties,   the   trial   Court   framed   various   issues


including the following:  


                "(1)      Whether respondent No.2 had separated from the

                joint family in 1965 by taking his share?




                (2)     Whether   the  second   partition   took  place   10  years

                prior to the filing of suit by respondent No.1?




                (3)     Whether Shri Harishankar executed registered Will

                dated   9.6.1989   and   bequeathed   portion   of   his   share   to

                respondent No.1?


                (4)     Whether   Shri   Harishankar   executed   Will   dated

                10.2.1992?


                                             5



             (5)     Whether   Will   dated   10.2.1992   was   valid   and   by

             virtue of that Will Shri Harishankar bequeathed his share

             to the appellant?




9.    After   analysing   the   pleadings   of   the   parties   and   evidence   produced   by


them, the trial  Court dismissed  the suit  vide judgment  dated 21.11.2002. The


following are salient features of the findings recorded by the trial Court:


             (1) Respondent No.2 had separated from the joint family

             in 1965 by taking his share.


             (2) In the 2nd partition, which took place 10 years before

             the filing of suit, respondent No.1 got  9.63  acres land in

             village   Nimchakhurd   apart   from   the   house   situated   at

             Timarni   Bazar,   the   appellant   got   the   house   situated   at

             Timarni   (Ward   No.7)   apart   from   cash   and   Shri

             Harishankar got land comprising in Khasra No.92/1, 92/2

             and   92/9   situated   at   Timarni   apart   from   the   bungalow

             constructed on the land.


             (3)     Shri   Harishankar   executed   registered   Will   dated

             9.6.1989   and   bequeathed   his   share   in   the   joint   family

             property to his three sons.


             (4)     The second Will executed by Shri Harishankar on

             10.2.1992   was   valid   and   in   terms   of   that   Will,   the

             appellant acquired the testator's share in the joint family

             property.


             (5)    In the absence of any challenge to the second Will,

             respondent   Nos.1   and   2   were   not   entitled   to   anything

             from the share of Shri Harishankar.


             (6)     Respondent No.2 was not entitled to anything from

             the   remaining   joint   family   property   because   he   had   not

             filed counter claim.


                                                6





10.            Respondent No.1 challenged the judgment and decree of the trial


Court by filing an appeal under Section 96 C.P.C., which was registered as First


Appeal   No.118   of   2003.     Respondent   No.2   also   filed   separate   appeal,   which


was registered as First Appeal No.133 of 2003.   After hearing the counsel for


the   parties   the   learned   Single   Judge   of   the   High   Court   framed   the   following


questions:


               (1)     Whether  in a partition which took place 30

               years   before   the   date   of   the   filing   of   the   suit,

               defendant Anand Kumar got his share in the joint

               family property?


               (2)     Whether   a   partition   took   place   among

               Harishanker, Vinod Kumar and Mahesh Kumar ten

               years before the filing of the suit?


               (3)     Whether   the   deceased   Hari   Shanker

               executed   a   will   on   9.6.89   and   bequeathed   the

               property owned by him, to his three sons?

                               

                             (4)       Whether   on   10.2.92   Hari

               Shanker   executed   a   Will   superseding   the   earlier

               Will dated 9.6.89 and bequeathed his property only

               to defendant Mahesh Kumar?





             11.         The   learned   Single   Judge   then   considered   the   rival


contentions, scrutinize  the record of the trial Court and answered question


nos. 1, 2 and 3 in affirmative and, thereby, confirmed the findings recorded


                                                 7



by   the   trial   Court   that   respondent   No.2   had   separated   from   the   family   in


1965   and   taken   his   share   in   the   joint   family   property;   that   the   second


partition   took   place   among   Shri   Harishankar,   respondent   No.1   and   the


appellant  10 years before filing of the suit and each one of them got their


respective   shares   and   that   Will   dated   9.6.1989   was  duly   executed   by   Shri


Harishankar.     The   learned   Single   Judge   then   proceeded   to   consider   the


fourth question and held that even though respondent No.1 had admitted that


Will dated 10.2.1992 (Exhibit D-2) bears the signatures of Shri Harishankar,


the   same   cannot   be   treated   to   have   been   validly   executed   because   the


mandatory   provision   contained   in   Section   63(c)   of   the   Indian   Succession


Act,   1925   (for   short,   `the   1925   Act')   had   not   been   complied   with.   The


learned   Single   Judge   referred   to   the   statements   of   the   attesting   witnesses,


viz., Sobhag Chand (DW-3) and Kailash Chand (DW-4) and observed:


                "30.    However, for certain other reasons, I am of

                the   opinion   that   the   Will   dated   10-2-92   is   not   a

                validly  attested document.    According  to the case

                of propounder of the Will, the Will was attested by

                Sobhag Chand (DW-3) and Kailash Chand (DW-4)

                but from the evidence of Sobhag Chand (DW-3), it

                is clear that when he signed the Will other attesting

                witness Kailash Chand was not present.


                Sobhag Chand in his deposition has stated thus:  


                "Kailash  Chand mere jaane ke  kitne samay baad

                aaya iski mujhe jaankaari nahi hai."


                                              8



             The witness also states that:



             "Mere hastakshar karne  ke eek do minat baad hi

             Harishankar ji ne hastakshar kiye the."

                                                             

             31.     This   clearly   established   that   Hari   Shankar

             signed  the  Will  in  presence  of the  witness and  at

             that   time   Kailash   was   not   present.   Thus,   Hari

             shankar   did   not   put   his   signature   on   the   Will   in

             presence  of  Kailash  Chand.     Nor  witness  Kailash

             Chand   states   that   he   received   from   the   testator   a

             personal acknowledgement of his signature.  Thus,

             from   the   evidence   of   Sobhag   Chand   it   is

             established  beyond any shadow of doubt that one

             of the attesting witnesses, Kailash did not see the

             testator   signing   the   Will   nor   did   he   receive   from

             the   testator   a   personal   acknowledgement   of

             signature.     Even   if   both   the   witnesses   signed   the

             Will in the presence of the testator the Will cannot

             be   said   to   be   properly   attested   as   both   the

             witnesses did not see the testator signing the Will.

             In the absence of proof that the testator signed the

             Will in presence of both the attesting witnesses or

             his acknowledgment was received, the Will cannot

             be   said   to   be   duly   attested   as   the   imperative

             condition under Clause (c) of Section 63 of the Act

             has  not  been  satisfied.   In order  to  prove  the due

             attestation of the Will, the propounder of the Will

             had   to   prove   that   Sobhag   Chand   and   Kailash   the

             two witnesses saw the testator signing the Will, but

             in   the   present   case,   the   propounder   has   failed   to

             prove   attestation   of   the   Will,   the   same   cannot   be

             said to be validly attested Will."    

                                                    (underlining is ours)




12.    The learned Single Judge then also referred to some discrepancies in


the statements of the appellant and the attesting witnesses and held that the


                                                   9



appellant failed to discharge the onus of proving that Will dated 10.2.1992


was duly executed by Shri Harishankar and was attested as per the mandate


of Section 63(c) of the 1925 Act.





13.     The learned Single Judge then enumerated the following reasons for


coming   to   the   conclusion   that   the   execution   of   Will   dated   10.2.1992   was


suspicious and the testator had not acted of his own free will:


(1)     The Will was prepared by Shri S. K. Agrawal, Advocate in his office


in   the   presence   of   Shri   Harishankar   and   some   witnesses   including   Bal


Kishan   (father   in   law   of   the   appellant)   and   his   son   (brother   in   law   of   the


appellant) and   there was no reason for Shri Harishankar to have taken the


document to the house of Bal Kishan.


(2)     Both   the  attesting  witnesses   were  chance   witnesses.    Sobhag  Chand


(DW-3) was not called by anybody and there was no reason for him to have


gone   to   the   house   of   Bal   Kishan.     Kailash   Chand   (DW-4)   was   called   by


Vishnu   Prasad   S/o   Bal   Kishan   but   the   appellant   gave   out   that   both   the


witnesses came to meet his father.


(3)     Kailash   Chand   (DW-4)   lives   at   a   distance   of   four   furlong   from   the


house   of   Bal   Kishan   and   there   was   no   reason   why   other   persons   of   the


                                               10



community who were living in the vicinity of Bal Kishan's house were not


called to attest the Will.


(4)    There were material contradictions in the statements of the appellant


and the attesting witnesses.


(5)    The Advocate, who drafted the Will was asked to sign the document


after   the   executant   (Shri   Harishankar)   and   the   two  attesting   witnesses   had


signed the same.


(6)    The   possibility   that   the   signatures   of   Shri   Harishankar   and   the


attesting   witnesses   were   obtained   on  blank   paper  and,   thereafter,   the  draft


was prepared by Shri S. K. Agrawal, Advocate cannot be ruled out because


his   signature  appear  on  the  left   side  at  the  bottom of  the  document  in  the


margin.


(7)    Will  dated 10.2.1992 does  not make  a mention  of the first Will and


general   statement   made   therein   that   the   testator   was   cancelling   the


previously executed Will, if any, did not amount to revocation of Will dated


9.6.1989.


(8)    While the first Will was registered, the executant did not bother to get


the second Will registered.


                                                 11



(9)     There   was   no   reason   for   Shri   Harishankar   to   have   given   his   entire


share to the appellant only on the ground that he had served him and his wife


during their old age.


(10)    The   appellant   had   himself   taken   active   part   in   the   execution   of   the


second Will. The tenor of the statement of the appellant is indicative of the


extra interest taken by him in the execution of the second Will.


(11)    Shri   Harishankar   had  executed   the   second   Will   at  the   persuasion   of


the appellant and thus there was every reason to think that he had influenced


the executant.

             




14.     Shri S. B. Sanyal, learned senior counsel appearing for the appellant


argued that the trial Court had correctly analysed the pleadings and evidence


of the parties for coming to the conclusion that the appellant had succeeded


in   proving   that   Will   dated   10.2.1992   was   validly   executed   by   Shri


Harishankar   and   the   learned   Single   Judge   of   the   High   Court   committed


grave error by setting aside the well reasoned findings recorded by the trial


Court on this issue.   Shri Sanyal emphasised that the learned Single Judge


misread the statement of Sobhag Chand (DW-3) and erroneously observed


that   he   had   signed   the   Will   as   a   witness   even   before   the   executant   Shri


Harishankar had signed the same and that the evidence of the other witness,


                                               12



namely, Kailash Chand (DW-4) was liable to be discarded because he had


not signed the Will in the presence of Sobhag Chand (DW-3).   Shri Sanyal


submitted that in terms of Section 63(c) of the 1925 Act, attestation of the


Will by one witness is sufficient and Will dated 10.2.1992 cannot be treated


invalid   merely   because   the   two   attesting   witnesses   may   not   have


simultaneously appended their signatures or that Kailash Chand (DW-4) was


not   present   when   Sobhag   Chand   (DW-3)   had   attested   the   Will.     Learned


senior counsel further argued that the exclusion of some of the heirs cannot


be a ground for presuming that the Will dated 10.2.1992 was not genuine.


He pointed out that in the first Will also Shri Harishankar had not given any


share to his wife and the daughters but that was not taken as a ground for not


treating the same to be genuine.  Shri Sanyal submitted that non-registration


of   the   second   Will   was   not   relevant   because   the   law   does   not   require


registration  of the  Will.    In support of his submissions,  Shri  Sanyal relied


upon   the   judgments   of   this   Court   in   Uma   Devi   Nambiar   v.   T.   C.   Sidhan


(2004) 2 SCC 321, Sridevi v. Jayaraja Shetty (2005) 2 SCC 784, Pentakota


Satyanarayana v. Pentakota Seetharatnam (2005) 8 SCC 67.





15.    Shri Sudhir Chandra, learned senior counsel appearing for respondent


No.1   supported   the   impugned   judgment   and   argued   that   learned   Single


                                                13



Judge rightly decreed the suit because the finding recorded by the trial Court


on   the   issue   of   validity   of   Will   dated   10.2.1992   was   ex-facie   erroneous.


Learned senior counsel submitted that depositions of Sobhag Chand (DW-3)


and   Kailash   Chand   (DW-4)   were   full   of   contradictions   and   the   learned


Single   Judge   rightly   took   cognizance   of   the   same   for   coming   to   the


conclusion that the Will was not attested as per the requirement of Section


63(c) of the 1925 Act.  Shri Sudhir Chandra pointed out that while the first


Will executed by Shri Harishankar on 9.6.1989 was signed him on each page


and was duly registered at Harda, the second Will was signed only on the


last   page   and   was   not   registered.     He   then   argued   that   even   though


respondent No. 1 admitted that signatures on Will dated 10.2.1992 were that


of his father Shri Harishankar, this cannot by itself lead to an inference that


the   Will   was   duly   executed   and   was   genuine.   Learned   senior   counsel


emphasised that onus of proving due execution of the Will is always on the


propounder and when there are suspicious circumstances, he is duty bound


to remove the same.  Shri Sudhir Chandra also pointed out that the attesting


witnesses were not independent persons and this by itself was sufficient to


give  rise   to  a   serious  suspicion  about  the  genuineness   of the   Will  and   the


learned Single Judge rightly discarded their testimony because the same was


contrary   to   the   statement   made   by   the   appellant.   He   submitted   that   active


                                               14



participation of the appellant, who was the sole beneficiary of the Will, was


rightly relied upon the learned Single Judge for holding that the execution of


Will dated 10.2.1992 was highly suspect.  In support of his arguments, Shri


Sudhir Chandra relied upon the judgments in H. Venkatachala Iyengar v. B.


N. Thimmajamma  (1959) Supp. 1 SCR 426, Rani Purnima Devi v. Kumar


Khagendra   Narayan   Dev   (1962)   3   SCR   195,   Ramchandra   Rambux   v.


Champabai  (1964)  6  SCR   814,    Moonga   Devi  v.  Radha  Ballabh  (1973)  2


SCC   112,   Surendra   Pal   v.   Dr.   (Mrs.)   Saraswati   Arora   (1974)   2   SCC   600,


Seth Beni Chand (since dead) now by Lrs. v. Kamla Kunwar (1976) 4 SCC


554,   Niranjan   Umeshchandra   Joshi   v.   Mrudula   Jyoti   Rao   (2006)   13   SCC


433,   Lalitaben   Jayantilal   Popat   v.   Pragnaben   Jamnadas   Kataria   (2008)   15


SCC   365,   S.   R.   Srinivasa   v.   S.   Padmavathamma   (2010)   5   SCC   274   and


Balathandayutham v. Ezhilarasan (2010) 5 SCC 770.      




16.    Before   dealing   with   the   respective   arguments,   we   consider   it


necessary to mention that after the death of Shri Harishankar, the appellant


and   respondent   No.  1   had   filed   separate   applications   for   mutation   of  their


name   in   respect   of   land   bearing   Khasra   No.92/1   Raqba   1-63   acres   and


converted   land   bearing   Khasra   Nos.   92/2   and   92/9   Raqba   0-35   acres.   In


support of his claim respondent No. 1 produced Will dated 9.6.1989 and the


appellant produced Will dated 10.2.1992. By an order dated 31.12.1996, the


                                                  15



Tehsildar sanctioned mutation in favour of respondent No. 1. That order was


set  aside  by  Sub-Divisional  Officer,  Harda,  who remanded the case  to the


Tehsildar   for   reinvestigation.   The   appellate   order   was   set   aside   by


Additional Commissioner, Hoshangabad Division by observing that the Will


produced   by   the   appellant   was   suspicious.   The   revisional   order   was


challenged   by   the   appellant   by   filing   a   petition   under   Section   50   of   the


Madhya Pradesh Land Revenue Code, 1959. After examining the record and


considering the arguments made before him, the Administrative Member of


the Revenue Board, Madhya Pradesh vide his order dated 21.7.2000 allowed


the petition and directed that the mutation be done in accordance with Will


dated 10.2.1992. This is evinced from paragraph 5 of order dated 21.7.2000,


the relevant portion of which is extracted below:




        "The   Will   dated   9.6.1989   is   the   registered   Will   and   its

        witnesses   have   also   been   examined.   Therefore,   there   is   no

        doubt in its validity. The statements were also taken of the two

        witnesses of the Will dated 10.2.1992. That although the same

        is   not   registered   but   there   is   no   doubt   in   its   existence.   The

        signature done by Hari Shankar in the Will dated 10.2.1992 has

        been proved by the witness Salig Ram. That it has come in the

        evidence that Hari Shankar were 5 brothers and that he received

        50   acres   of   and   house   in   partition.  That   in   between   the   three

        sons   of  Hari   Shankar   the   partition   had   already   taken   place.   It

        has been a long time since Anand Kumar had separated himself

        and Vinod Kumar separated himself in the year 1984-85. The

        said fact has also come in the evidence. That on the said fact no

        dispute   has   arisen   by   any   party.   The   said   fact   has   also   been

        accepted   by   Vinod   Kumar.   The   present   dispute   is   only   in


                                                  16



       respect   of   the   1-98   acres   of   land   in   village   Timarni   and   on

       which   the   house   has   also   been   built.   That   any   person   can

       execute the Will number of times during his life span and under

       these   circumstances   the   Will   which   has   been   executed   last

       would   be   taken   into   account.   The   suspicion   or   doubt   can   be

       raised if the Will is executed in favour of the third party from

       outside   and   not   in   favour   of   the   natural   legal   heirs   of   the

       deceased. But in case the priority is given only to some of the

       natural legal heirs in comparison to the other natural legal heirs

       then only on this very reason the Will cannot be held as been

       invalid.  That when for once the Will date 10.2.1992 has been

       proved   and   there   is   no   doubt   on   the   part   of   the   testator   Hari

       Shankar in executing the same then under those circumstances

       there   left   no   importance   in   the   old   Will   and   the   proceeding

       would   be   initiated   in   accordance   with   the   new   Will.   That   the

       fact of the new Will been executed on account of bad behaviour

       on the part of Vinod Kumar and Anand Kumar or it has been

       executed on account of the death of the wife of Hari Shankar

       would   not   affect   the   existence   of   the   Will.   Accordingly,   the

       order dated 31.12.1996 of the Trial Court and the order  dated

       30.5.1998   of   the   Additional   Commissioner   are   set   aside.   The

       mutation proceedings would be done in accordance with the last

       Will dated 10.2.1992 of the deceased."


                                                                (underlining is ours)


The aforesaid order acquired finality because the same was not challenged


by respondent No.1 by filing a petition under Article 226 or Article 227 of


the Constitution.




17.    The other important fact which needs to be noticed is that the suit fild


by   the   appellant   for   eviction   of   the   tenant,   i.e.,   Firm   Ramesh   Chandra


Dinesh Kumar Agrawal was decreed by the trial Court and possession of the


suit premises was handed over to the appellant.  In that suit, respondent No.


                                                   17



1 had sought his impleadment as party but his prayer was declined by the


trial   Court   and   the   revision   filed   against   the   trial   Court's   order   was


dismissed by the High Court.




18.    We   shall   now   consider   whether   the   appellant   had   succeeded   in


discharging   the   onus   of   proving   that   Will   dated   10.2.1992   was   validly


executed. For deciding this question it will be useful to notice some of the


precedents   in   which   this   Court   had   considered   the   mode   and   manner   of


proving a Will. In one of the earliest judgments in H. Venkatachala Iyengar


v.   B.   N.   Thimmajamma   (supra),   the   three   Judge   Bench   noticed   the


provisions of Sections 45, 47, 67 and 68 of the Indian Evidence Act, 1872


and Sections 59 and 63 of the 1925 Act and observed:


       "Section 63 requires that the testator shall sign or affix his mark

       to   the   will   or   it   shall   be   signed   by   some   other   person   in   his

       presence   and   by   his   direction   and   that   the   signature   or   mark

       shall be so made that it shall appear that it was intended thereby

       to give effect to the writing as a will. This section also requires

       that   the   will   shall   be   attested   by   two   or   more   witnesses   as

       prescribed.  Thus the question as to whether the will set up by

       the propounder is proved to be the last will of the testator has to

       be   decided   in   the   light   of   these   provisions.   Has   the   testator

       signed the will? Did he understand the nature and effect of the

       dispositions   in   the   will?   Did   he   put   his   signature   to   the   will

       knowing what it contained? Stated broadly it is the decision of

       these  questions which determines  the nature of the finding on

       the question of the proof of wills.  It would prima facie be true

       to say  that the will  has to be  proved like any other  document

       except   as   to   the   special   requirements   of   attestation   prescribed

       by Section 63 of the Indian Succession Act. As in the case of


                                          18



proof   of   other   documents   so   in   the   case   of   proof   of   wills   it

would be idle to expect proof with mathematical certainty. The

test to be applied would be the usual test of the satisfaction of

the prudent mind in such matters.


However,   there   is   one   important   feature   which   distinguishes

wills   from   other   documents.   Unlike   other   documents   the   will

speaks   from   the   death   of   the   testator,   and   so,   when   it   is

propounded   or   produced   before   a   court,   the   testator   who   has

already departed the world cannot say whether it is his will or

not;   and   this   aspect   naturally   introduces   an   element   of

solemnity   in   the   decision   of   the   question   as   to   whether   the

document   propounded   is   proved   to   be   the   last   will   and

testament of the departed testator. Even so, in dealing with the

proof of wills the court will start on the same enquiry as in the

case   of   the   proof   of   documents.   The   propounder   would   be

called upon to show by satisfactory evidence that the will was

signed by the testator, that the testator at the relevant time was

in a sound and disposing state of mind, that he understood the

nature and effect of the dispositions and put his signature to the

document  of   his   own   free   will.  Ordinarily   when   the   evidence

adduced in support of the will is disinterested, satisfactory and

sufficient to prove the sound and disposing state of the testator's

mind   and   his   signature   as   required   by   law,   courts   would   be

justified   in   making   a   finding   in   favour   of   the   propounder.   In

other   words,   the   onus   on   the   propounder   can   be   taken   to   be

discharged on proof of the essential facts just indicated.


There   may,   however,   be   cases   in   which   the   execution   of   the

will   may   be   surrounded   by   suspicious   circumstances.   The

alleged signature of the testator may be very shaky and doubtful

and   evidence   in   support   of   the   propounder's   case   that   the

signature,   in   question   is   the   signature   of   the   testator   may   not

remove   the   doubt   created   by   the   appearance   of   the   signature;

the condition of the testator's mind may appear to be very feeble

and   debilitated;   and   evidence   adduced   may   not   succeed   in

removing the legitimate doubt as to the mental capacity of the

testator;   the   dispositions   made   in   the   will   may   appear   to   be

unnatural,   improbable   or   unfair   in   the   light   of   relevant

circumstances; or, the will may otherwise indicate that the said


                                                19



dispositions may not be the result of the testator's free will and

mind.   In   such   cases   the   court   would   naturally   expect   that   all

legitimate suspicions should be completely removed before the

document   is   accepted   as   the   last   will   of   the   testator.   The

presence   of   such   suspicious   circumstances   naturally   tends   to

make the initial onus very heavy; and, unless it is satisfactorily

discharged, courts would be reluctant to treat the document as

the   last   will   of   the   testator.  It   is   true   that,   if   a   caveat   is   filed

alleging   the   exercise   of  undue   influence,   fraud   or   coercion   in

respect of the execution of the will propounded, such pleas may

have   to   be   proved   by   the   caveators;  but,   even   without   such

pleas circumstances may raise a doubt as to whether the testator

was   acting   of   his   own   free   will   in   executing   the   will,   and   in

such   circumstances,   it   would   be   a   part   of   the   initial   onus   to

remove any such legitimate doubts in the matter.


Apart from the suspicious circumstances to which we have just

referred,   in  some  cases   the   wills   propounded   disclose   another

infirmity. Propounders themselves take a prominent part in the

execution   of   the   wills   which   confer   on   them   substantial

benefits.  If   it   is   shown   that   the   propounder   has   taken   a

prominent   part   in   the   execution   of   the   will   and   has   received

substantial benefit under it, that itself is generally treated  as a

suspicious circumstance attending the execution of the will and

the propounder is required to remove the said suspicion by clear

and   satisfactory   evidence.   It   is   in   connection   with   wills   that

present such suspicious circumstances that decisions of English

courts   often   mention   the   test   of   the   satisfaction   of   judicial

conscience. It may be that the reference to judicial conscience

in this connection is a heritage from similar observations made

by   ecclesiastical   courts   in   England   when   they   exercised

jurisdiction with reference to wills; but any objection to the use

of the word "conscience" in this context would, in our opinion,

be   purely   technical   and   academic,   if   not   pedantic.   The   test

merely   emphasizes   that,   in   determining   the   question   as   to

whether an instrument produced before the court is the last will

of   the   testator,   the   court   is   deciding   a   solemn   question   and   it

must be fully satisfied that it had been validly executed by the

testator who is no longer alive."

                                                         (emphasis supplied)


                                                 20





19.    The ratio of  H. Venkatachala Iyengar's case was relied upon  or referred


to   in   Rani   Purnima   Devi   v.   Kumar   Khagendra   Narayan   Dev   (supra),  Shashi


Kumar Banerjee v. Subodh Kumar Banerjee AIR 1964 SC 529, Surendra Pal v.


Dr. (Mrs.) Saraswati Arora (supra), Seth Beni Chand (since dead) now by Lrs.


v. Kamla Kunwar (supra), Uma Devi Nambiar v. T.C. Sidhan (supra), Sridevi v.


Jayaraja   Shetty   (supra),   Niranjan   Umeshchandra   Joshi   v.   Mrudula   Jyoti   Rao


(supra) and  S. R. Srinivasa v. S. Padmavathamma (supra).  In  Jaswant Kaur v.


Amrit Kaur, (1977) 1 SCC 369 the Court analysed the ratio in H. Venkatachala


Iyengar's case and culled out the following propositions: -




         "1.   Stated   generally,   a   will   has   to   be   proved   like   any   other

       document,   the   test   to   be   applied   being   the   usual   test   of   the

       satisfaction of the prudent mind in such matters. As in the case

       of proof  of other  documents, so  in  the case   of proof  of  wills,

       one cannot insist on proof with mathematical certainty.


       2. Since Section 63 of the Succession Act requires a will to be

       attested,   it   cannot   be   used   as   evidence   until,   as   required   by

       Section  68  of  the  Evidence   Act,  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.


       3. Unlike other documents, the will speaks from the death of the

       testator   and   therefore   the   maker   of  the   will   is   never   available

       for deposing as to the circumstances in which the will came to

       be executed. This aspect introduces an element of solemnity in

       the decision of the question whether the document propounded


                                         21



is   proved   to   be   the   last   will   and   testament   of   the   testator.

Normally, the onus which lies on the propounder can be taken

to be discharged on proof  of the essential facts which go into

the making of the will.


4.   Cases   in   which   the   execution   of   the   will   is   surrounded   by

suspicious circumstances stand on a different footing. A shaky

signature,   a   feeble   mind,   an   unfair   and   unjust   disposition   of

property,   the   propounder   himself   taking   a   leading   part   in   the

making of the will under which he receives a substantial benefit

and   such   other   circumstances   raise   suspicion   about   the

execution of the will. That suspicion cannot be removed by the

mere   assertion   of   the   propounder   that   the   will   bears   the

signature of the testator or that the testator was in a sound and

disposing state of mind and memory at the time when the will

was made, or that those like the wife and children of the testator

who would normally receive their due share in his estate were

disinherited   because   the   testator   might   have   had   his   own

reasons   for   excluding   them.   The   presence   of   suspicious

circumstances  makes  the initial  onus  heavier  and therefore,  in

cases where the circumstances attendant upon the execution of

the will excite the suspicion of the court, the propounder must

remove   all   legitimate   suspicions   before   the   document   can   be

accepted as the last will of the testator.


5.   It   is   in   connection   with   wills,   the   execution   of   which   is

surrounded   by   suspicious   circumstances   that   the   test   of

satisfaction   of   the   judicial   conscience   has   been   evolved.   That

test emphasises that in determining the question as to whether

an instrument produced before the court is the last will of the

testator,   the   court   is   called   upon   to   decide   a   solemn   question

and by reason of suspicious circumstances the court has to be

satisfied   fully   that   the   will   has   been   validly   executed   by   the

testator.


6. If a caveator alleges fraud, undue influence, coercion etc. in

regard to the execution of the will, such pleas have to be proved

by   him,   but   even   in   the   absence   of   such   pleas,   the   very

circumstances surrounding the execution of the will may raise a

doubt as to whether the testator was acting of his own free will.


                                                    22



        And   then   it   is   a   part   of   the   initial   onus   of   the   propounder   to

        remove all reasonable doubts in the matter."




20.     In  Uma Devi Nambiar v. T.C. Sidhan (supra), the Court  held that active


participation   of   the   propounder   /   beneficiary   in   the   execution   of   the   Will   or


exclusion of the natural heirs cannot lead to an inference that the Will was not


genuine. Some of the observations made in that case are extracted below:




        "A   Will   is   executed   to   alter   the   ordinary   mode   of   succession

        and by the very nature of things, it is bound to result in either

        reducing   or   depriving   the   share   of   natural   heirs.   If   a   person

        intends   his   property   to   pass   to   his   natural   heirs,   there   is   no

        necessity at all of executing a Will. It is true that a propounder

        of   the   Will   has   to   remove   all   suspicious   circumstances.

        Suspicion means doubt, conjecture or mistrust. But the fact that

        natural   heirs   have   either   been   excluded   or   a   lesser   share   has

        been given to them, by itself without anything more, cannot be

        held to be a suspicious circumstance especially in a case where

        the bequest has been made in favour of an offspring. As held in

        P.P.K. Gopalan Nambiar v. P.P.K. Balakrishnan Nambiar it is

        the   duty   of   the   propounder   of   the   Will   to   remove   all   the

        suspected   features,   but   there   must   be   real,   germane   and   valid

        suspicious features and not fantasy of the doubting mind. It has

        been   held   that   if   the   propounder   succeeds   in   removing   the

        suspicious circumstance, the court has to give effect to the Will,

        even if the Will might be unnatural in the sense that it has cut

        off   wholly   or   in   part   near   relations.   (See   Pushpavathi   v.

        Chandraraja   Kadamba.)   In   Rabindra   Nath   Mukherjee   v.

        Panchanan   Banerjee   it   was   observed   that   the   circumstance   of

        deprivation   of   natural   heirs   should   not   raise   any   suspicion

        because   the   whole   idea   behind   execution   of   the   Will   is   to

        interfere with the normal line of succession and so, natural heirs

        would be debarred in every case of Will. Of course, it may be

        that   in   some   cases   they   are   fully   debarred   and   in   some   cases

        partly."


                                                  23



                                                                 (emphasis supplied)




The   same   view   was   reiterated   in   Pentakota   Satyanarayana   v.   Pentakota


Seetharatnam (supra).




21.     In the light of the above, it is to be seen whether the appellant succeeded


in   proving   that  Shri   Harishankar   had   executed   Will   dated   10.2.1992   and   the


same was duly attested as per the mandate of Section 63(c) of the 1925 Act.




22.     In his statement filed in the form of affidavit under Order XVIII Rule 4


Code of Civil Procedure the appellant categorically stated that respondent No. 1


separated from the joint family in 1985 and got a house at Timarni apart from


10 acres land situated at Village Nimacha. The appellant further stated that his


father   and   respondent   No.   1   were   running   Anand   Medical   stores   as   a


partnership   which   was   dissolved   and   the   medical   store   was   handed   over   to


respondent No. 1; that after dissolution of the partnership, he started a shop of


seeds,   fertilizer   and   pesticides   and   he   and   his   wife   and   daughter   served   the


parents till their death. According to the appellant, after the death of the mother,


his  father-in-law had invited his family members including the father for "dehli


chudane" ceremony and at that time his father got prepared Will and signed the


same   in   the   presence   of   witnesses,   who   also   appended   their   signatures.   The


appellant   also   stated   that   he   was   paying   nazul   tax,   house   tax,   rent,   etc.,   in


                                                  24



respect of 2 acres land and the bungalow. He also stated that the Revenue Board


had passed order for mutation of his name and that in furtherance of the decree


passed   in   the   eviction   suit,   he   obtained   possession   of   the   bungalow   from  the


tenant.   Along   with   the   affidavit,   the   appellant   produced   several   documents


including   the   receipts   showing   payment   of   the   rent   and   various   taxes   and


conversion of a portion of the agricultural land. He also produced copies of the


judgment and order passed by the Civil Court and the Revenue Board.




23.     The appellant was subjected to lengthy cross-examination by the counsel


for respondent Nos. 1 and 2. In reply to one of the questions put by the counsel


for respondent No. 1, the appellant stated that there was a partition in 1985 in


which respondent No. 1 was given 10 acres land at Nimacha and house situated


at Gandhi Chowk, Timarni. In response to another question, the appellant stated


that his  father had put signatures  on Exhibit  D-2 in his presence  and that his


father   and   others   did   not   sign   on   the   first   page   because   the   writing   was   not


complete.   The   appellant   also   stated   that   Kailash   Chand   (DW-4)   had   signed


before Sobhag Chand and Sh. S.K. Agarwal had signed after his father and two


witnesses had signed the Will. In reply to the question put by the counsel for


respondent No. 2, the appellant stated that till 1965 all the brothers and parents


lived together and, thereafter, respondent No. 2 separated from the joint family.


In   reply   to   another   question,   the   appellant   gave   out   that   Sobhag   Chand   and


                                              25



Kailash Chand are neither related to his father nor are they his friends but knew


him and they used to visit his in-laws. The appellant also stated that his father


had told the witnesses that he had executed Will because he was happy with the


services rendered by the appellant and his wife. The appellant gave out that the


two attesting witnesses do not belong to his caste and the houses of the persons


belonging to his caste are at a distance from his in-laws house.




24.    The evidence of Sobhag Chand (DW-3) and Kailash Chand (DW-4) was


also   filed   in   the   form   of   affidavits.   They   categorically   stated   that   Shri


Harishankar   had   read   out   the   Will   in   their   presence   and   they   appended


signatures after Shri Harishankar had signed the same. The attesting witnesses


were cross-examined at length about the time of their attesting the Will. Sobhag


Chand   denied   the   suggestion   that   he   had   signed   the   Will   before   Shri


Harishankar   had   signed   the   same.   He   expresses   his   ignorance   about   the   time


when Kailash Chand had come. He also expressed his ignorance as to after how


much time Kailash Chand came to the house of Bal Kishan. Although, there is


some   difference   about   the   point   of   time   when   the   two   attesting   witnesses


appended   their   signatures   on   the   Will   but   both   have   stood   gruelling   cross-


examination   on   the   factum   of   their   having   signed   as   witnesses   after   the


executant, viz., Shri Harishankar had signed the Will in their presence and that


too after reading out the same.


                                                 26



25.     From what we have noted above, it is clear that the appellant succeeded


in   discharging   the   onus   of   proving   that   the   Will   dated   10.2.1992   had   in   fact


been executed by Shri Harishankar and he had signed the same in the presence


of the attesting witnesses  who also appended their signatures in his presence.


The fact  that Shri Harishankar was in a sound state of health (physically  and


mentally)   is   established   from   the   statement   of   respondent   No.2   who


categorically denied the suggestion that the mental and physical condition of his


father deteriorated 5-6 months prior to his death or that he had lost his mental


balance.  In his statement, respondent No.1 did not suggest that the physical and


mental health of his father was not good at the time of execution of Will dated


10.2.1992.  Not only this, he made the following important admissions:




i)      The   parents   were   living   with   the   appellant   and   during   the   illness   of


mother the appellant's wife used to look after her.




ii)     The   expenses   incurred   in   the   funeral   of   the   mother   were   paid   by   the


appellant.




iii)    The   Board   of   Revenue   decided   the   case   of   mutation   in   favour   of   the


appellant and he did not challenge the order of the Board of Revenue.




iv)     Shri   S.K.   Agarwal   is  related   to  him  and  he  was  his  counsel   before  the


Board of Revenue.


                                                 27



v)      The application for impleadment filed by him in the suit instituted by the


appellant against the tenant was dismissed by the trial Court and the order of the


trial Court was upheld by the High Court.




vi)     That   the   appellant   was   paying   municipal   tax   /   nazul   tax   and   rent   in


respect of the property which fell to the share of Shri Harishankar.




26.     Thus, even from the statement of respondent No.1 it is established that


the   Will   (Exhibit   D-2)   was   signed   by   his   father   Shri   Harishankar   and  on   the


strength   of   Exhibit   D-2   the   appellant   had   succeeded   before   the   Board   of


Revenue and the Civil Court.




27.     The issue which remains to be examined is whether the High Court was


justified in coming to the conclusion that the execution of Will dated 10.2.1992


was shrouded with suspicion and the appellant failed to dispel the suspicion. At


the   outset,   we   deem   it   necessary   to   observe   that   the   learned   Single   Judge


misread the statement of Sobhag Chand (DW-3) and recorded something which


does not appear in his statement. While Sobhag Chand categorically stated that


he   had   signed   as   the   witness   after   Shri   Harishankar   had   signed   the   Will,  the


portion   of   his   statement   extracted   in   the   impugned   judgment   gives   an


impression that the  witnesses had signed even before the executant had signed


the Will. Another patent error committed by the learned Single Judge is that he


                                                 28



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 does not contain any such requirement and it is


settled law that examination of one of the attesting witnesses is sufficient. Not


only this, while recording an adverse finding on this issue, the learned Single


Judge omitted to consider the categorical statements made by DW-3 and DW-4


that the testator had read out and signed the Will in their presence and thereafter


they had appended their signatures.




28.     The other reasons enumerated by the learned Single Judge for holding


that   the   execution   of   Will   was   highly   suspicious   are   based   on   mere


surmises/conjectures.  The   observation of the  learned  Single   Judge  that the


possibility   of   obtaining   signatures   of   Shri   Harishankar   and   attesting


witnesses on blank paper and preparation of the draft by Shri S. K. Agarwal,


Advocate on pre-signed  papers does not find even a semblance  of support


from the pleadings and evidence of the parties.   If respondent No.1 wanted


to show that the Will was drafted by the advocate after Shri Harishankar and


attesting witnesses had signed blank papers, he could have examined or at


least   summoned   Shri   S.   K.   Agarwal,   Advocate,   who   had   represented   him


before  the  Board  of  Revenue.  On  being examined before  or by  the Court,


Shri S. K. Agarwal could have testified whether he had prepared the Will on


                                                29



pre-signed papers.  However, the fact of the matter is that it was neither the


pleaded case of respondent No. 1 nor any evidence was produced by him to


prove that Shri Harishankar and the attesting witnesses had signed the blank


papers and, thereafter, Shri S.K. Agarwal prepared the Will.




29.    The   mere   fact   that   Kailash   Chand   lives   at   a   distance   of   about   four


furlong from the house of Bal Kishan (father in law of the appellant) has no


bearing on the issue relating to validity of the Will nor the non-examination


of the persons belonging to the same community has got any relevance.  The


absence of a categorical recital in Will dated 10.2.1992 that the earlier Will


was cancelled is also not relevant because once the execution of the second


Will   is   held   as   duly   proved,   the   earlier   Will   automatically   becomes


redundant because the second Will represents the last wish of the testator.




30.    The fact that the appellant was present at the time of execution of Will


dated 10.2.1992 and that the testator did not give anything to respondent Nos. 1


and 2 from his share in the joint family property are not decisive of the issue


relating to genuineness or validity of the Will. 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


                                                  30



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. 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.




31.     In view of the above discussion, we hold that the learned Single Judge


was clearly  in error in reversing the well-reasoned finding recorded by the trial


Court on the issues of execution of Will dated 10.2.1992 by Shri Harishankar


and   its   genuineness   and   validity.   Consequently,   the   appeals   are   allowed,   the


impugned   judgement   is   set   aside   and   the   one   passed   by   the   trial   Court   is


restored. The parties are left to bear their own costs.





                                            ........................................................J.

                                            [G.S. SINGHVI]





                                            ......................................................J.

                                             [SUDHANSU JYOTI MUKHOPADHAYA]

New Delhi,


                   31



March 13, 2012.