Mahesh Kumar (Dead)
By L.R.S. Vs. Vinod Kumar and others
Jurisdiction Civil Appeal Nos. 7587-7588 of 2004]
J U D G M E N T
G. S. Singhvi, J.
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 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
the sake of convenience, the parties are being referred to as the appellant and
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.
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 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.
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.
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 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
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.
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?
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.
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:
a. 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?
b. Whether a partition took
place among Harishanker, Vinod Kumar and Mahesh Kumar ten years before the
filing of the suit?
c. Whether the deceased Hari
Shanker executed a will on 9.6.89 and bequeathed the property owned by him, to
his three sons?
d. 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?
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 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
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:
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
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)
learned Single Judge then also referred to some discrepancies in the statements
of the appellant and the attesting witnesses and held that the 9appellant
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.
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:
a. 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.
b. 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.
c. 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 community who were living in the vicinity of Bal
Kishan's house were not called to attest the Will.
d. There were material
contradictions in the statements of the appellant and the attesting witnesses.
e. 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.
f. 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.
g. 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.
h. While the first Will
was registered, the executant did not bother to get the second Will registered.
i. 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.
j. 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.
k. 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.
S. B. Sanyal, . 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
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.
Sudhir Chandra, learned senior counsel appearing for respondent No.1 supported the
impugned judgment and argued that learned Single 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.
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 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.
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 15Tehsildar 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.
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. 171 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.
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 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 19dispositions 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
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)
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.
introduces an element of solemnity in the decision of the question whether the
document propounded 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.
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." (emphasis
supplied)The same view was reiterated in Pentakota Satyanarayana v. Pentakota
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.
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 respect of 2 acres land and the
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.
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 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.
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.
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:
parents were living with the appellant and during the illness of mother the
appellant's wife used to look after her.
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.
S.K. Agarwal is related to him and he was his counsel before the Board of
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.
the appellant was paying municipal tax / nazul tax and rent in respect of the
property which fell to the share of Shri Harishankar.
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.
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 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
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 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.
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.
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 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.
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.
[SUDHANSU JYOTI MUKHOPADHAYA]