Rani Purnima Devi & ANR Vs. Kumar
Khagendra Narayan Dev & ANR [1961] INSC 251 (22 August 1961)
WANCHOO, K.N.
GUPTA, K.C. DAS DAYAL, RAGHUBAR
CITATION: 1962 AIR 567 1962 SCR Supl. (3) 195
CITATOR INFO :
F 1964 SC 529 (4) F 1974 SC1999 (7) R 1982 SC
133 (7,8) F 1990 SC 396 (21)
ACT:
Will-Proof-Suspicious circumstances
surrounding execution- Registration of Mill, if dispels all suspicions.
HEADNOTE:
One K filed an application for the grant of
letters of administration with the will attached. This will gave the entire
property to K, a distant relation of the testator, subject to K maintaining the
testator's widow and sister;
other relations including the testator's
daughter were completely left out. There were other suspicious circumstances
surrounding the will viz., that the testator's signatures were not his usual
signatures and were not in the same ink as the rest of the will and that the
testator used to sign blank papers for use in his cases in court and used to
send them to his lawyer through his servants. The will was later registered
without the testator appearing before the sub-registrar and the sub-registrar
only sending his clerk to the residence of the testator for the purpose. Out of
16 persons who signed the will as attesting witnesses only 4 were produced to
prove the will. The trial court held that the will was duly executed and
attested and ordered the issue of letters of administration with the will
annexed to K. 'On appeal the High Co t affirmed the order of the trial court
holding that the suspicious circumstances were dispelled by the registration of
the will.
Held, that the due execution and attestation
of the will were not proved. In view of the suspicious circumstances it was the
duty of the propounded of the will to prove due execution and attestation by
satisfactory evidence which would lead the court to the conclusion that the
suspicious circumstances had been dispelled. This he had failed to do.
The four attesting witnesses produced were
interested and unreliable; none of the independent witnesses who bad signed the
will were produced. The mere fact that the will was registered was not by
itself sufficient to dispel the suspicions without scrutiny of the evidence of
registration.
Registration would dispel the doubt as to the
genuineness of the will only if it was made in such a manner that it was
brought home to the testator that the document of which he was admitting
execution was a will disposing of his property and the testator thereafter
admitted its execution and signed in token thereof. In the present case, the
regis- tration was done in a perfunctory manner and the evidence did not
establish that the testator knew that the document the 196 execution of which
he admitted before the sub-registrar's clerk was his will. The witnesses
produced to prove registration, even if they are treated as attesting
witnesses, failed to prove due execution and attestation of the will.
H.Venkatachala Iyengar v. B. N. Thimmajamma,
(1959) Supp.
1 S. C. R.1426, applied.
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 373/587 Appeal by special leave from the judgment and decree dated February
2, 1954, of the Assam High Court in First Appeal No. 19 of 1950 (Probate).
S. P. Desai and Naunit Lal, for the
appellants.
K. R. Krishnaswami, for respondent No. 1.
1961. August,22. The judgment of the Court
was delivered by WANCHOO, J.-This is an appeal by special leave against the
judgment of the Assam High Court in a probate matter. The main appellant is
Rani Purnima- Debi widow of Kumar Chandra 'Narayan. Deb (hereinafter called the
testator), who died in June 1946. The second appellant is the testator's
married daughter. And application was made by Kumar Khagendra Narayan Deb
(hereinafter referred to as the respondent) before the District Delegate,
Gauhati in August 1946 for grant of letters of administration with the will
annexed. The case of the respondent was that the testator had executed,a.will
on December 29, 1943, in favour of the respondent by which the, testator gave his
,entire property to the respondent subject to the respondent's maintaining the
testator's widow and sister. Objections were filed on behalf of the appellants
to the grant of letters of administration on the basis of the will propounded
by the respondent and three main grounds were urged in that connection,
namely-(i) that the will was not duly and legally.executed and attested, (ii)
that the testator had no sound disposing mind at the time he executed the will,
and (iii) that the will was the ',outcome of unite influence and coercion
exercised by the respondent. While 'the application of the 197 respondent was
pending, another application for probate of another will said to have been
executed by the testator' a few months before his death was made by Kumar
Dwijendra Narayan Deb. The appellants- objected to that will also on the same
grounds and further added that will was a forgery 'Dwjendra Narayan did not
dispute the execution 'of the will. in favour of the respondent but contended
that will had been revoked by the later will in his favour. The respondent,
however contended: that the '.will in favour of Kumar Dwijendra Narayan.Deb'
was a for The two suits arising out of the two applications for probate were.
eventually tried together by the Subordinate Judge at Gauhati. He held that
the, will propounded by Kumar Dwijendra Narayan Deb was not genuine and
therefore dismissed his application. As 'to the win propounded by the,
respondent it was held that it was duly executed and attested and was made by
the testator at a time when he had sound disposing state of mind and that it
was not made under any undue influence and coercion. Consequently the
application of the respondent was allowed and letters of administration With
the copy of the will annexed were ordered to be issued to him.
This was followed by three appeals to the
High Court. One of the appeals was by the present appellants and they contested
the issue of letters of administration in favour of the resp ondent the other
two appeals were by Kumar Dwijendra Narayan Deb. By one appeal he contested the
issue of letters of administration to the respondent and by the other he
contested the finding of' the Subordinate Judge that the will propounded-by him
was not genuine. The three appeals were heard by the High Court together and it
upheld the finding of the trial court that the will in favour of Dwijendra
Narayan was not genuine ; in consequence, the,. two appears filed by him were
dismissed. This order of the High Court has become final and 198 we are not
concerned in the present appeal with the will propounded by Dwijendre, Narayan.
In the appeal. by the appellants, the High Court upheld the findings of the
trial court and dismissed the appeal. The High Court was conscious of the fact
that there were certain suspicious circumstances attending the execution of the
, will in favour of the respondent, but it held that as the will pro- pounded
by the respondent was later registered in January 1944 'the suspicion attending
the execution of the will was dispelled by the fact of registration. The High
Court therefore held that due, execution and attestation of the will had been
proved and it was also proved that the testator was of sound disposing state of
mind at the time of the execution and that there was no undue influence, or
coercion exercised on the testator by the respondent in connection with the
execution of the will.
The appeal before the High Court was heard by
a Division Bench and separate but concurring judgments were delivered by the
learned Judges composing the Bench. Ram Labhaya J.
who delivered the main judgment was not we
much impressed by the alleged suspicious circumstances and held that whatever
suspicion there might be was dispelled by the fact of the registration of the
will later. The learned Chief Justice, who was the other Judge, and who
substantially agreed with Ram Labhaya J. was more impressed by the existence of
suspicious circumstances relating to the execution and attestation of the will
even so he held that the registration of the will was a complete answer to the
suspicious circumstances which undoubtedly existed in this.
case. In the event both the learned Judges
agreed in dismissing the appeal. Eventually the appellants came to this Court
by way of special leave which was granted ; and that is how the matter has come
up before us.
Before we consider the facts of this case it
is well to set out the principles which govern the, 199 proving of a will. This
was considered b this Court in H. Venkatachala Iyengar v. B. N. Thimmajamma(1).
It was observed in that case that the mode of proving a will did not ordinarily
differ from that of proving any other document except as to the special
requirement of attestation prescribed in the case of a will by s.63 of the
Indian Succession Act. The onus of proving the will was on the propounder and
in the absence of suspicious circumstances surrounding the execution of the
will proof of testamentary capacity and signature of the. testator as required
by law was sufficient to discharge the onus. Where, however, there were'
suspicious circumstances, the onus would be on the propounder to explain them
to the satisfaction of the Court before the will could be accepted as genuine.
If the caveats alleged undue influence, fraud or coercion, the onus would be on
him to prove the same. Even where there were no such plea,% but the
circumstances gave rise to doubts, it was for the propounder to satisfy the
conscience of the Court. Further, what are suspicious circumstances was also
considered in this case. The alleged signature of the testator might be very
shaky and doubtful and evidence in support of the propounder's case that the
signature in question was the signature of the testator might not remove the
doubt created by the appearance of the signature., The condition of the
testator's mind might appear to be very feeble and debilitated and evidence
adduced might not succeed in removing the legitimate doubt as to the mental
capacity of the testator ; the dispositions made in the will might appear to be
unnatural, improbable or unfair in the light of relevant circumstances ; or I
the will might otherwise indicate that the said dispositions might 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 was accepted as the last will of (1) [1959] supp. 1
S.C.R.426.
200 the testator.,, Farther, a propounder
himself might take a prominent part in the execution of the will which,
conferred on him substantial benefits. If this was so it was generally treated
as a suspicious circumstance attending the execution of the will and the propo under
was required to remove the doubts by clear and satisfactory evidence. But even
where' there were suspicious circumstances and the propounder succeeded in
removing them, the Court would grant probate though the will might be unnatural
and might cut off wholly or in part near relations.
It was urged before us that in view of
concurrent findings of the courts below we should be slow to disturb them. In
view, however, of the suspicious circumstances noted by the High Court and some
differences in 'the approach of the two learned, Judges composing the Bench, we
permitted learned counsel for parties to go into the entire evidence so that we
may be able to judge whether the High Court was right in its conclusion that
the fact of registration had dispelled all suspicions.
Let as now turn to the, facts relating to the
execution of this will. We' have already pointed out that the High Court was of
the view that there., were suspicious circumstances attending the execution of
the will and that it was an unnatural will. The testator left behind him his
widow and his married daughter (who are appellants before us) and an unmarried
sister who was dependent upon him.
Besides these, the testator had a number of
other relations who were much nearer to him than the respondent. Even if we
leave out of account the married daughter and the other nearer relations, the
widow-,'and, the, sister were certainly expected to be properly provided for by
the testator. It is not in dispute that the relations between the testator and
his wife and sister were good. In these circumstances we should have expected
something better than what is provided in the will for those two. All that the
will says is that the wife and the 201 sister would be suitably maintained by
the respondent during their life-time. No amount is specified which should be
given to these two ladies as maintenance and no charge is created on the
properties left by the testator which were considerable. In effect, the two
ladies were left to the tender mercies of the respondent in the matter of their
maintenance. Further the result of this will is that the daughter would be completely
disinherited. The testate or had a number of children but all have died many
years before and only one daughter was alive at the time of his death.
She was married and on behalf of the
propounder it is Raid that the relations between the testator and her husband
were not very happy. The evidence, however, does not show that the relations
between the testator and his son-in-law were particularly strained at the time
of the execution of the will. In any case there is no satisfactory evidence to
show that relations between the testator and his daughter were bad even if the
relations between him and his son-in-law were not of the best. In the
circumstances we should have expected the testator to make some provision for
the daughter, particularly when it is said that she was not well-off. There is
no doubt therefore that the will is most unnatural and that is a suspicious
circumstance which must be satisfactorily explained before the respondent can
get letters of administration.
Another suspicious circumstance is that the
respondent gets the sole benefit under the will subject to the maintenance of
the wife and the sister and he was certainly taking part in the execution of
the will on the date it was executed.
In such ,circumstances the respondent was
required to remove the said suspicion by clear and satisfactory evidence.
Whether he has done so or not will be
considered by us later.
Another suspicious circumstance is that the
signature of the testator does not appear to be his usual signature. That is why
a lot of questions 202 were put to the witnesses whether the testator signed
the will with his left hand or right hand and evidence was also given that the
right hand of the testator had been injured sometime before.
Another suspicious circumstance is that it
has been proved in this case that the testator used to sign blank papers for
use in his cases in court and used to send them to his lawyer through his
servants and these papers could be in the possession of Rameswar Sarma, the
lawyer of the testator, who has appeared as a witness to prove the will and who
was, according to his evidence, consulted by the testator in this matter. Such
papers could also be found in the possession of the testator's mukhtars.
Therefore it was possible to manufacture a will on papers already signed by the
testator ; and that is certainly a suspicious circumstance which had to be
overcome in this case.
Lastly, the High Court has noticed that the
signature of the testator is not in the same ink and may not be with the same pen
with which the body of the will is written. The difference in ink may not
ordinarily be a matter for various suspicion; even so it has to be explained in
the peculiar circumstances of this case when blank papers containing the
testator's signature were available.
Let us now turn to the proof of execution
that has been given in this case to see if the suspicions raised above have
been dispelled. The will was alleged to be executed at Na-hawli. It bears the
signatures of as many as sixteen persons as attesting witnesses ; but of these
only three were examined on behalf of the respondent. The respondent also
appeared in the witness box. These three attesting witnesses are Biswanath
Bhattacharya, Rameswar Sarma, and Kulendra Narayan Deb. None of these witnesses
is independent and it was certainly possible for the respondent to produce
other witnesses out of the sixteen who 203 would not be so interested in him.
Bhattacharya is the Purohit of the respondent and that obviously makes him a
person interested in the respondent. Ku Kulendra Narayan Deb is the first
cousin of the respondent and therefore a near relation who would be interested
in him. Rameswar Sarma is a lawyer. He was admittedly working for the test-
ator as such during his life-time. He was questioned whether after the death of
the testator he had become the lawyer of the respondent. He denied that.
Obviously this must have been done by him with the idea of posing that he was
an independent witness; but his son-in-law Dayanand Goswami, who had already
appeared for the respondent, admitted that Sarma was the present pleader of the
respondent. It is obvious therefore that Sarma tried to pose as an independent
witness by. denying what his son-in- law had already stated about his
connection with the respondent. In the circumstances he cannot also be held to
be a disinterested witness, which he tried to be. Besides, none of these three
witnesses belong to Na-hawli, where the execution of the will took place. The
evidence also shows that among the sixteen persons who attested the will there
were persons who were both independent and respectable like Banshidhar Goswami,
a doctor, Jammi-ud-din, an elder of the village and Baneswar Deka, a retired
Sarishtedar ; but no attempt was made to produce these witnesses to dispel the
suspicion arising from the circumstances which we have already mentioned.
Apart from the witnesses being interested,
the actual evidence given by them also does not in our opinion dispel the
suspicion aroused in this case. Bhattacharya, for example, said that he had
been invited by the testator to attend the adoption of respondent as his son
and he went on that date to Na-hawli for that purpose. He further said that he
had gone on a cycle straight to Na-hawali and did not meet anyone on the way.
It seems strange 204 that this witness should have been invited to be present
at an adoption when what the testator was intending to do was to execute a
will. Probably it was felt that a Purohit would be more likely to be invited to
an adoption and therefore this story was put in his mouth. Further Bhattacharya
is contradicted by the respondent and Kulendra Narayan who say that
Bhattacharya had been staying at Kulendra Narayan's place for two days before
and had gone from there to Na-hawli with the respondent and his father and
Kulendra Narayan. The story therefore that Bhattacharya was invited by the
testator is obviously false and if he did go to Na-hawli it must have been in
the company of the respondent and his father whose Purohit he was.
As to the execution itself the witnesses
differ on one very important matter. Bhattacharya said that the wife of the
testator was also present at the execution of the will and raised no objection.
He was asked if any one there suggested that she should also sign and he said
that he did not remember. Kulendra Narayan also said that the wife of the
testator was present when the will was executed and did not object. He even
went to the length of saying that she said that what her husband wanted to do
had been done and the respondent was her son also. The respondent on the other
hand says that the wife of the testator along with the other women was sitting
in the doorway of a room adjoining the portico. He does not suggest that the
wife of the testator was present while the will was executed.
Similarly, Rameswara Sarma stated that the
appellant Rani was in the adjoining house about 20 yards away and did not come
near her husband when the will was executed. Now the fact whether the appellant
Rani was present or not when the will was executed was of great importance and
of the four witnesses who have deposed about the execution of the will
including the respondent, two say one thing and the other two say something 205
quite contradictory. In these circumstances the inference would be that the
story about the execution has been made up and that is why there are
contradictions on such an important mater. In any case there contradictions
hardly help to dispel the suspicion aroused by the circumstances already
mentioned above, A good deal of reliance has been placed on the statement of
Rameswar Sarma who has been practicing as a pleader since 1929 and became an
advocate sometimes in 1948/1949. He was counsel for the testator for the last
few years before his death. Ordinarily, therefore, his evidence would be
entitled to great weight because of his connection with the testator and his
standing is a lawyer, and if it is accepted much of the suspicion might be
dispelled, for he has given explanations as to why the testator made such a
will and has also referred to the advice tendered by him to the testator in
this connection to provide something more beneficial for the daughter, the wife
and the sister and the testator's refusal to do so. But we should have expected
from a witness of this kind strict regard for truth and if 'we were sure that
the witness had strict regard for truth we might have believed his statement.
As we have already pointed out, however this witness does not appear to have
much regard for truth and tried to pose as an independent witness by denying
that he was working as a lawyer for the respondent, when his son-in-law had
already admitted that he was the present pleader of the respondent. In these
circumstances we can place no reliance on his evidence, for if he was capable
of denying his connection with the respondent he- can be capable of colluding
with the respondent in manufacturing the will on signed blank papers which were
admittedly available to him and others. Looking at the evidence of the three
attesting witnesses and the respondent broadly, we must say that evidence does
not dispel the suspicion as to the due execution and attestation of this will.
206 The High Court was also conscious of the
fact hat the evidence as to the execution and attestation of the will was not
very adequate, for the learned chief Justice observed that the evidence on the
point of actual execution might not be very adequate; but the view taken by the
High Court was that more evidence was not necessary in view of the pleadings of
the parties. In this connection the High Court relied on Dwijendra Narayan
Deb's acceptance of the will in favour of the respondent. This in our opinion
was not justified so far as the appellants were concerned, for an admission of
Diwijendra Narayan Deb who must now be held to have put forward a forged will
could not be an added circumstance to support the inadequate evidence led by
the respondent. We are further of the opinion that the High Court was not
justified in executing the inadequacy of the evidence to prove the due
execution and attestation of the will on the basis of the pleadings of the
parties. It is true that the appellants did not say in so many words that the
will propounded by the respondent was a forgery as they did about the will propounded
by Dwijendra Narayan Deb; even so the appellants had put the respondent to
strict proof of due and legal execution and attestation of the will and there
was an issue to that effect. This was not a case where the due and legal
execution and attestation of the will was admitted and the only disputes were
that the testator had not a sound disposing state of mind or had acted under
undue influence or coercion. Though the appellants did not go to the length of
characterising the will as a forgery as they did in the case of the will
propounded by Dwijendra Narayan, they certainly put the respondent to strict
proof of legal and due execution and attestation of the will. In such
circumstances it was the duty of the respondent, particularly in the presence
of auspicious circumstances which have been noted by the High Court, to prove
the due execution and attestation of the will by 207 satisfactory evidence
which would lead Court to the conclusion that the suspicious circumstances had
been dispelled. We do not see how the evidence which has been characterised by
the High Court as inadequate would suffice to dispel the suspicious
circumstances which undoubtedly are present in this case. We have no hesitation
in coming to the conclusion, apart from the question of registration with which
we shall deal presently, that it the evidence which has been produced in this
case were all the evidence available to prove the due execution and attestation
of the will, there could be no doubt that the respondent had failed to satisfy
the Court and dispel the suspicious circumstances which were undoubtedly
present in this case.
Let us now turn to the registration of the
will, for it is on the registration that the High Court has relied strongly to
dispel whatever it also considered suspicious in this case. The contention of
Mr. Desai on behalf of the appellants in this connection is that registration
may be an added circumstance in favour of the genuineness of the will and may
be taken into account in considering whether suspicious circumstances had been
dispelled, but the High Court was not right on the facts of this case in
relying mainly on the registration to hold that all suspicions relating to this
unnatural will had been dispelled. There is no doubt that this will was registered
on January 27, 1944, and there is an endorsement on the will to the effect that
the testator had admitted the execution of it. It will therefore be necessary
to examine the circumstances more closely than the High Court seems to have
done in this case.
It appears that an application was made by
the mukhtar-i-am of the testator (and not by the testator himself) on January
16, 1944, before the Sub-Registrar for registration of the will on commission.
The Sub-Registrar himself did not go to execute the commission but sent a clerk
of his named Arabali, though the reason given in the application for the issue
of 208 commission viz., respectability was not justified in law and no
commission should have been issued at all. This clerk was apparently a resident
of the same area in which the testator was living and knew him from before. It
is a matter worthy of note in the circumstances of this case the person who
went to inquire from the testator whether he had executed the will was not the
Sub-Registrar himself who would be a more responsible officer than his clerk.
Anyhow, the evidence of the clerk is that he found the testator quite hale and
hearty. The testator came out from the inner apartment to the verandah of the
house and admitted the execution of the will. Thereafter the testator signed at
the bottom of the will in token of his having admitted the genuineness of the
will and Dehiram Bora identified the testator. Thereafter Arabali took the
document to the office of the Sub-Registrar and it was registered. It is on
this registration that the High Court has relied very strongly for dispelling
the suspicion arising in this case.
Before we consider the evidence on this
aspect of the matter further, we should like to refer to a point which seems to
have weighed with the High Court in judging the value of registration. The High
Court thought that four witnesses signed the will at the time of its
registration. It is not quite clear what the High Court meant by this, namely
whether the High Court thought that these four witnesses also attested the will
; but a perusal of the will transcribed in the record (Ex. 3) shows that this
is not correct, for the only person who signed at the bottom of the will at the
time of the visit of Arabali besides Arabali himself and the testator, was
Dehiram Bora. Learned counsel for the respondent was unable to satisfy us how
the High Court got the impression that four witnesses had signed at the bottom
of the will presumably as a matter of attestation when the registration clerk
came on commission. We must therefore proceed on the footing that the High
Court was not 209 right in the view that four persons had signed the will,
whatever that may mean, when Arabali came for registration ;
and insofar as the High Court judgment was
influenced by this circumstance, it suffers from an infirmity.
However, let us look at what actually
happened when Arabali came for the registration of the will. Arabali's own
statement on this point is that he examined Chandra Narayan Deb (i.e. the
testator) at Majikuchi who admitted the execution of the will. This is all that
Arabali has said in this connection. There is nothing in the evidence to show
that the will was read over to the testator or was read by him before he
admitted execution of it. What exactly passed between Arabali and the testator
at this time has also not been given by Arabali and the exact words used by him
in this connection and the exact reply of the testator are also absent from the
evidence. It is true that it is broadly stated by Arabali that he examined the
testator who admitted the execution of the will. That in our opinion is hardly
sufficient in a case of this kind to dispel the serious suspicion which
attaches to the due execution and attestation of this will. Further the evidence
of Arabali is that Dehiram Bora identified the testator. That is all the part
assigned by Arabali to Dehiram Bora, besides the fact that Dehiram Bora signed
at the bottom of the will thereafter. Arabali does not say that Dehiram Bora
was present when the testator had admitted the execution of the will or that
the testator signed at the bottom of the will in the presence of Dehiram Bora
and Dehiram Bora signed it in the presence of the testator. of course, Arabali
does say that the testator signed at the bottom of the will in his presence,
though he does not say that he signed it in the presence of the testator. We
are referring to this aspect of the matter, for it. has been urged that even if
the execution and attestation of December 29, 1943, is, open 210 to doubt the
will must be held to be duly executed and attested before Arabali and Dehiram
Bora.
Coming now to the evidence of Dehiram Bora,
he began by saying that he was present when the will in favour of the
respondent was executed by the testator. Exactly what he meant by this is not
clear because he was undoubtedly pot present when the will was executed on
December 29, 1943.
However, he went on to say that it was
registered in Majikuchi. He identified the testator before the registration
clerk, Arabli, there. After identification be signed at the bottom of the
document as identifier. Thus in his examination-in-chief Dehiram Bora merely
stated that he signed at the bottom of the will as an identifier and did not
say that Arabali had put any questions to the testator about the execution of
the will, and that the testator admitted the execution. In cross-examination he
said that the testator signed in his presence at the bottom of the will. He,
however, never said that the will was read over to the testator or was read by
him and that the testator admitted the execution of the will to him and
thereafter he signed the will at the bottom. Thus all that one finds is that he
signed as a person who identified the testater.
If therefore these two witnesses, namely,
Arabali and Dehiram Bora are to be treated as attesting witnesses for the
purpose of s.63 of the Indian Succession Act, 1925 (39 of 1925), it is clear
that they completely fail to prove due execution and attestation of the Will as
required by that section. So all that we come to is that there is a bald
statement of Arabali to the effect that' he examined the testator who admitted
the execution of the will and there is the statement of Dehiram Bora that at
that time he identified the testator before Arabali. It is on this that the
will was later registered by the Sub-Registrar.
We may refer to one more circumstance that
has been urged before us. It is said that the will 211 undoubtedly existed in
January 1944 as evidenced by its registration. Therefore, if this was not a
genuine will of the testator he would have taken steps to revoke it, for he
died almost 21 years after the registration of the will.
This, however, assumes that the testator knew
of the existence of this will. If he did not know of the existence of this will
there would be no question of his revoking it, however long afterwards he might
have died. Now the evidence that the testator knew of the existence of this
will consists only of what happened on December 29, 1943 and on the date when
Arabali went to Majikuchi on commission in connection with the registration of
the will. We have already dealt with the evidence with respect to these two
dates and if that evidence is insufficient to prove due execution and
attestation of the will, as we hold it is, it would also be insufficient to
show that the testator knew after the end of January 1944, that such a will
existed. In the absence, therefore, of the knowledge of the testator, about the
existence of this will, this circumstance loses all its force.
There is no doubt that 'if a will has been
registered, that is a circumstance which may, having regard to the
circumstances, prove its genuineness. But the mere fact that a will is
registered will not by itself be sufficient to dispel all suspicion regarding
it where suspicion exists, without submitting the evidence of registration to a
close examination. If the evidence as to registration on a close examination
reveals that the registration was made in such a manner that it was brought
home to the testator that the document of which he was admitting execution was
a will disposing of his property and thereafter he admitted its execution and
signed it in token thereof, the registration will dispel the doubt as to the
genuineness of the will.
But if the evidence as to registration shows
that it was done in a perfunctory manner, that the officer registering the will
did not read it over to the testator or did not 212 bring home to him that he
was admitting the execution of a will or did not satisfy himself in some other
way (as, for example, by seeing the testator reading the will) that the
testator knew that it was a will the execution of which he was admitting, the
fact that the will Was registered would not be of much value. It is not unknown
that registration may take place without the executant really knowing what he
was registering. Law reports are full of cases in which registered wills have
not been acted upon (see' for example, Vellasaway Sarvai v. L. Sivaraman
Servai, (1) Surendra Nath Lahiri v. Jnanendra Nath Lahiri ( 2 )and Girji Datt
Singh v. Gangotri Datt Singh)(3). Therefore, the mere fact of registration may
not by itself be enough to dispel all suspicion that may attach to the
execution and attestation of a will; though the fact that there has been
registration would be an important circumstance in favour of the will being
genuine if the evidence as to registration establishes that the testator
admitted the execution of the will after knowing that it was a will the
execution of which he was admitting.
The question therefore is whether in the
circumstances of the present case the evidence as to registration discloses
that the testator knew that he was admitting the execution of a will when he is
said to have put down his signature at the bottom of the will in the presence
of Arabali. We have scrutinized that evidence carefully and we must say that
the evidence falls short of satisfying us in the circumstances of this case
that the testator knew that the document the execution of which he was
admitting before Arabali and at the bottom of which he signed was his will.
Therefore we are left with the bald fact of registration which in our opinion
is insufficient in the circumstances of this case to dispel the suspicious
circumstances which (1) (1930) I.L.R. 8 Ran. 179.
(2) A.I.R. 1932 Cal. 574.
(3) A.I.R. 1955 S.C. 346.
213 we have enumerated above. We are
therefore not satisfied about the due execution and attestation of this will by
the testator and hold that the propounder has been unable to dispel the
suspicious circumstances which surround the execution and attestation of this
will. In the circumstances, no letters of administration in favour of the
respondent can 'be granted on the basis of it.
We therefore allow the appeal, set aside. the
.judgments of the High Court and the trial court and dismiss the suit arising
out of the application for probate made by the respondent. The appellants will
get their cost,% throughout from the respondent, Kumar Khagendra Narayan Deb.
Appeal allowed.
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