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.
