Jaswant Kaur Vs. Amrit Kaur & Ors
 INSC 258 (25 October 1976)
CITATION: 1977 AIR 74 1977 SCR (1) 925 1977
SCC (1) 369
CITATOR INFO :
RF 1987 SC 767 (2)
Indian Succession Act, 1925---Sec. 63 legal
will--Genuineness of--Suspicious circumstances--Burden of proof--Degree of
S. Gobinder Singh Sibia was possessed of a
large estate valued at about Rs.15 lacs at the time of his death in the year
1954. He had two wives Gulab Kaur and Dalip Kaur. Dalip Kaur predeceased him
leaving a son and a grandson named Surjit. After the death of S. Gobinder
Singh, Gulab Kaur filed a suit for maintenance, claiming alternatively a
one-half share in the estate left by her husband. Surjit contested the said
suit. After the institution of the suit, the Hindu Succession Act, 1956, came
into force on June 17, 1956 upon the plaintiff giving up her claim for
maintenance and restricting her suit to a half share in her husband's estate,
the defendant made an application for amending his written statement and
pleaded that S. Gobinder Singh had executed a will in the year 1945 bequeathing
practically the entire estate in his favour and leaving a small life interest
in favour of the plaintiff.
The amendment application was filed in March,
1958, after the plaintiff's evidence was over. The Trial Court decreed the
plaintiffs suit and .held that the plaintiff was entitled to a half share in
the estate left by Gobinder Singh and that the defendant had failed to prove
the will. In an appeal flied by the defendant the High Court set aside the
Judgment of the Trial Court and dismissed the plaintiff's suit. The High Court
held that will was duly established.
1. Allowing the appeal, Held: (a) In cases
where the execution.of a will is shrouded i.n. suspicion its proof ceases to be
a simple lis between the plaintiff and the defendant. What generally is an
adversary proceeding becomes in such cases a matter of the court's conscience.
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 he accepted as the last will of
[929 C-F, 930 C-D] (b) A will has to be
proved like any other document by applying the usual test of the satisfaction
of the prudent mind. [929 F] (c) Since section 63 of the Succession Act
requires a will to be attested it cannot be used as evidence until at least one
of the attesting witnesses is examined, if available.
[929 G] (d) 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 was
executed. That circumstance introduces a certain amount of solemnity in proof
of test amentany instruments. [929 H, 930 A] R. Venkatachala lyengar v.B.N.
Thimrnajamma & Others  Supp. 1 S.C.R. 426, followed.
2. The testator was a man of property and
occupied a high position in society. A genuine will of such a person is not
likely to suffer from the loop-holes and infirmities which may beset an humbler
[931 D, H,932 A]
3. The following circumstances throw a cloud
of suspicion on the making of the will by Gobinder Singh:
926 (i) The will is alleged to have been made
in 1945 but it did not see the light of the day till 1957. It is unacceptable
that a document by which property worth lacs of rupees was disposed of could
have remained a closely guarded secret from intimate friends and relatives and
from the sole legatee himself for over 21/2years after the testator's death.
[932 A-B] (ii) The testator had left behind him a large property and along with
it large amount of litigation which makes it impossible to believe that upon
his death no one bothered to go through his papers.The explanation of the
defendant that he stumbled upon the will by chance while going through some
papers of his grandfather is patently lame and unacceptable.
[932 B-D] (iii) The defendant came out with
the theory of will after the Hindu Succession Act of 1956 came into force as a
result of which the plaintiff would become an absolute owner of the property
that would fall to her share as the heir of her husband.[932 G-H, 933 A-B] (iv)
The will was typed Out on both sides of a single foolscap.paper and was
obviously drafted by a lawyer. No evidence was led as to who drafted the will
and who typed it out.
[933 B-C] (v) The will was attested by two
persons, both of whom were strangers to the testator's family and neither of
whom could give a proper account of the execution of the will. In fact they
contradicted each other. [933 C-H] (vi) The two persons who are alleged to have
been appointed executors were not examined, though available. Normally, the executors
are not appointed without their consent or consultation. [934 A-C] (vii) The
will is unnatural and unfair. [934 C] (viii) The will does not make mention of
many of the near relations and descendants of the testator. [934 D-F] (ix) The
plaintiff was excluded as an heir of the testator for the supposed reasons that
she had brought disgrace to the Sibia family and that her behaviour was such as
would not even bear a mention in the will. No evidence was led on the
misconduct of the plaintiff.
[934 F-G] (x) The defendant in his evidence
did not offer any explanation any of the suspicious circumstances. [934 G]
4. The High Court merely recited a few facts
mechanically and without going into the suspicious circumstance accepted the
will as genuine. The High Court did not apply the rule as to the burden of
proof which governs the testamentary proceedings, as set out in the decision of
this Court in lyengar's case to which reference was made in the Trial Court's
Judgment. [838 F-H]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1360 of 1975.
(From the Judgment and Order dated 12-3-1975
of the Punjab & Haryana High Court in Regular First Appeal No. 315/64).
V.M. Tarkunde, E.C. Agrawala and Miss N.
Tarkunde for the, appellant.
Bishan Narain, and Mrs. Urmila Sirur for
respondent No. 1.
Hardev Singh and R.S. Sodhi, for Respondent
The Judgment of the Court was delivered by
CHANDRACHUD, J.--Sardar Gobinder Singh Sibia who was possessed of a large
estate died on December 15, 1954 at the age of about 70.
927 He had taken two wives, Gulab Kaur and
Dalip Kaur. The story of his life follows the familiar pattern--the pretext of
a disagreement with the unwanted wife, special favours for the favourite and
jealous rivalries between the children born of the two.
The following pedigree will facilitate a
better understanding of the issues involved in me case :-Tara Singh Sibia :
Ratan Singh :
Gulab Kaur Gobinder Singh Dalip Kaur
(Plaintiff) (Died--15-12-1954) pre-deceased her husband) (Died--1959) : :
(Appellant) Guraprakash Kaur Gurbachan Singh
pre-deceased his fat her) Joginder Kaur (Died 1971 ) :
Arrit Kaur = Surjit Inder Singh Palvinder
Kaur (Respondent1) (Defendant) (Respondent 5) (Died--1968) : : :
Gobinder Singh Surinder Singh Gopal Inder
Singh (Respondent 2) (Respondent 3) (Respondent 4) After the birth of the
appellant Jaswant Kaur, Gulab Kaur started living or as the story goes, was
compelled to live with her parents. Dalip Kaur had given birth to a daughter
Guraprakash Kaur and a son Gurbachana Singh. Gurbachan died during the
life-time of his father Gobinder Singh, leaving behind his widow Joginder Kaur
who died in 1971. Gurbachan Singh and Joginder Kaur gave birth to two children,
a son Surjit Inder Singh and a daughter Palvinder Kaur. Surjit Inder Singh died
in 1968 leaving behind a widow Amrit Kaur and three sons.
On May 22, 1956 which was about a year and a
half after the death of Sardar Gobinder Singh, his widow Gulab Kaur filed a
suit in forma pauperis claiming maintenance @ Rs. 1000/per month or in the
alternative a one-half share in the properties left by her husband. Her
co-wife's grandson Surjit Inder Singh was the defendant to the suit. He filed
his written statement on January 5, 1957 contending that the plaintiff had
deserted her husband and that she was neither entitled to maintenance nor to
any share in his estate. On these pleadings the trial court struck issues in
the suit on February 1, 1957. At the end of her evidence on August 17, 1957 the
plaintiff gave up her claim for maintenance and stated that she wanted a
one-half share in her husband's estate. The hearing of the suit was adjourned
by the learned trial Judge to August 24, for recording defendant's evidence.
928 In the meanwhile, on. August 20, the
defendant filed an application asking for permission to produce a will stated
to have been made by Sardar Gobinder Singh, on November 26, 1945. The learned
District Judge, Sangrur, who was then seized of the suit rejected that
application and refused to allow the defendant to amend his written statement.
That order was, however, set aside in revision by the Punjab.
High Court which directed the trial court to
allow the defendant to amend Iris written statement and to produce his father's
alleged will. On March 8, 1958 the defendant amended his written statement
contending that by the will, his father had left almost the entire property to
him and that the plaintiff Gulab Kaur was not entitled to any share in the
property under the will. In June, 1958 the plaintiff filed a formal application
seeking leave to amend her plaint giving up her claim for maintenance and
asking for a onehalf share in the properties of her deceased husband. Fresh
issues were thereafter framed on the basis of the amended pleadings. On March
10, 1959 the plaintiff died and her daughter, Jaswant Kaur, who is the
appellant before us, was brought on the record as her legal representative.
The suit was tried eventually by the learned
Senior Sub-Judge, Sangrur, who by his judgment dated June 29, 1964 decreed it.
The learned Judge held that the defendant who set up the will had failed to
prove that it was the last will and testament of his grand-father Gobinder
Singh and alternatively, that even on the assumption that the will was proved,
it must be deemed to have been revoked on account of certain dispositions made
by the testator after the making of the will. This alternative conclusion that
the will stood revoked by implication is clearly unsupportable and the
appellant, who disputes the will, did not urge that consideration before us.
The revocation of an unpriviledged will is an act only a little less solemn
than the making of the will itself and has to comply with statutory requirements
contained in section 70 of the Succession Act.
Holding that the defendant had failed to
discharge his onus of proving the will, the trial court granted to the
plaintiff a decree for a one-half share in the properties of her husband. In
doing this, the Court relied on "overwhelming documentary evidence"
showing that according to the custom by .which the parties were governed, a
sonless widow was entitled to a one-half share in the estate of her husband, as
an equal sharer with the male progeny born of a co-wife. That the parties were
governed in this matter by customary law was "openly conceded" in the
trial court, the point of dispute being restricted on this point to 'the
question as to what in fact was the custom. It was common ground before us that
if the will goes, the plaintiff will be entitled to a half share in the estate
of her husband Gobinder Singh.
Aggrieved by the judgment of the trial court,
the defendant Surjit Inder Singh filed First Appeal No. 315 of 1964 in the High
Court of Punjab and Haryana. During the pendency of the appeal, the defendant
died on October 22, 1968 and his widow Amrit Kaur, her three sons, and his
sister Palvinder Kaur were brought on the record as his legal representatives.
They are respondents 1 to 5 to this appeal. By its judgment dated March 12,
1975 the High Court set aside the judgment 929 the trial court, allowed the
appeal and dismissed the plaintiff's suit. The High Court has held, or appears
to have held, that the will was duly established. Since the will excludes the plaintiff
as a sharer in the testator's estate, the suit had to fail, custom or no
custom. This appeal by special leave is directed against the judgment of the
The defendant who is the principal legatee
and for all practical purposes the sole legatee under the will, is also the
propounder of the will. It is he who set up the will in answer to the
plaintiff's claim in the suit for a one-half share in her husband's estate.
Leaving aside the rules as to the burden of proof which are peculiar to the proof
of testamentary instruments, the normal rule which governs any legal proceeding
is that the burden of proving a fact in issue lies on him who asserts it, not
on him who denies it.
In other words, the burden lies on the party
which would fail in the suit if no evidence were led on the fact alleged by
him. Accordingly, the defendant ought to have led satisfactory evidence to
prove the due execution of the will by his grand-father Sardar Gobinder Singh.
In cases where the execution of a will is
shouded in suspicion, its proof ceases to be a simple lis between the plaintiff
and the defendant. What, generally, is an adversary proceeding becomes in such
cases a matter of the court's conscience and then the true question which
arises for consideration is whether the evidence led by the propounder of the
will is such as to satisfy the conscience of the court that the will was duly
executed by the testator.
It is impossible to reach such satisfication
unless the party which sets up the will .offers a 'cogent and convincing
explanation of the suspicious circumstances surrounding the making of the will.
There is a long line of decisions bearing on
the nature and standard of evidence required to prove a will. Those decisions
have been reviewed in an elaborate judgment of this Court in R. Venkatachala
Iyengar v.B.N. Thirnmajamma & Others. (1) The Court, speaking through
Gajendragadkar J., laid down in that case the following positions :-
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 ease 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 63 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
3. Unlike other documents, the will speaks
from the death o[ 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
(1)  Supp. I S.C.R. 426.
930 This aspect 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 circumstance 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. And then it is a part of
the initial onus of the propounder to remove all reasonable doubts in the
We will now set out briefly the provisions of
the will which is dated November 26,1945. The will consists of 9 paragraphs, by
the first of which the testator appointed Sardar Kesho Ram, a Judge of the High
Court of Patiala, and Sardar Bahadur Ranjit Singh a contractor of Delhi, as
executors. By paragraph 2 the testator bequeathed the whole of his property,
movable and immovable, to his grandson Surjit Inder Singh who is the defendant
in the present suit. By paragraph 3 the testator gave to his wife Dalip Kaur a
life-interest in a house at Simla, called Kenilworth. The testator provided by
paragraph 4 that if the house was later acquired by the Government or was sold
by himself Dalip Kaur would be entitled to receive from his estate a sum equal
to the compensation fixed in the acquisition proceedings or equal 931 to the sale
price. The amount was to be deposited in approved securities, Dalip Kaur being
entitled only to the interest thereon. On her demise, the house or the amount
in deposit was to vest absolutely in the defendant. Paragraph 5gave to Dalip
Kaur the right of residence in a part of the house. at Sangrur, paragraph 6
gave to her the right to use during her life-time the jewellery and ornaments
and paragraph 7 states expressly that she will have no right to alienate any of
the properties in which she was given a life-interest. Paragraph 8 provides
that Dalip Kaur had the right to live jointly with the defendant but in case
there were differences between them, she would be entitled to receive from him
an annual sum. of Rs. 5,000 for her maintenance. This amount was to constitute
a charge on a land at Karmsar, District Lyallpur. Paragraph 9 of the will
recites that the plaintiff Gulab Kaur had given birth to a daughter Jaswant
Kaur in 1898, that Jaswant Kaur was married happily in 1913 to Sardar Gurbax
Singh Mansahia, that after Jaswant Kaur's marriage Gulab Kaur started
misbehaving and left for her parents' house, taking jewellery worth about Rs.
50,000 with her. It is further stated .in paragraph 9 that Gulab Kaur was
"leading her life in a way which would not bear mention here" and
that therefore she did not deserve to get any allowance at all from the
testator's property. The defendant was however directed to pay to her a monthly
sum of Rs. 50 for her maintenance provided that she lived in a part of the house
at Sangrur and her conduct remained worthy of the Sibia family. Paragraph 9
expressly mentions that Gulab Kaur would have no right to any share in the
The testator, Sardar Gobinder Singh, was a
man of property and occupied a high position in society. By a modest estimate,
the property which he disposed of by his will was of the value of rupees ten to
fifteen lakhs. A registered power of attorney (EX. D/2) which he had executed
seven months before the will on April 6. 1945 shows that he owned extensive
movable and immovable properties, had a bank account in several banks and that
various legal proceedings to which he was a party were pending in "all the
States of British India". Gobinder Singh describes himself in the power of
attorney as a "big biswedar" and says that he had "a large
business to attend to". The evidence of Kartar Singh, Gurcharan Singh and
Teja Singh (P.Ws. 4, 5 and 6) shows that Sardar Gobinder Singh owned over 15000
bighas of land, several houses and several cars including a Rolls Royce. sardar
Ratan Singh, the father of Gobinder Singh, was the President of the Council of
Regency .in the erstwhile State of Jind, while Gobinder Singh himself held
"distinguished and responsible posts" in Jind such as the Nazim, the
Private Secretary to the Maharaja and a Minister in his government.
It is the will of a man of such affluence and
social status which has to be judged in this case. It is not as if the burden
of proof varies with the riches and social prestige of the testator but habits
of life arc prone to vary with the means of the man and the privileged few who
happen to occupy a high place in the social hierarchy have easy access to
competent legal advice. Normally therefore, a genuine will of a propertied man.
well-positioned in society too. does not suffer from 932 the loopholes and
infirmities which may understandably beset an humbler testamentary instrument.
Circumstances are too numerous to mention
which throw a cloud of suspicion on the making of the will by Gobinder Singh.
The will is alleged to have been made on November 26, 1945 but it did not see
the light of day till August 20, 1957. Being an ambulatory document, it may be
granted that there may be no occasion for anyone to know of its existence until
the death of the testator on December 15, 1954. But it is understandable that a
document by which property worth lakhs of rupees was disposed of should have
remained a closely guarded secret from the whole world of intimate friends and
relatives, nay, from the sole legatee himself, for over 21/2 years after the
testator's death. The testator had left behind him a large property and along
with it a large amount of litigation which makes it impossible to believe that
upon his death in December 1954, no one bothered to go through his papers which
would reflect the state and extent of his property. The explanation of the
defendant that he hit upon the will by chance while going through some papers
of his grand-father is therefore patently lame and unacceptable.
There is an ominous significance in the date
on which the defendant applied for production of the will in the present suit.
By her suit which was filed on May 22, 1956 the plaintiff Gulab Kaur had
originally asked for maintenance' and in the alternative for a one-half share
in the estate of her husband. Under the Punjab customary law by which the
parties were governed, the plaintiff, being a sonless widow. was entitled to an
equal share in the property of her husband. along with the male progeny born
from a co-wife. But the customary .law gave to the sonless widow only a limited
and not an absolute interest in the estate of her husband. The Hindu Succession
Act, 30 of 1956.came into force on June 17, 1956 which explains why the
plaintiff at the end of her evidence on August 17, 1957 expressly gave up her
claim for maintenance and restricted her demand in the suit to a one-half share
in her husband's estate. So long as the plaintiff was entitled only to
maintenance or to a limited interest in her husband's property, the defendant
was content to meet that claim by raising pleas like desertion and misconduct
The passing of the Hindu Succession Act changed the entire complexion of the
suit, raising at least a reasonable apprehension' that on account of the
provisions of that Act the plaintiff would become an absolute owner of a part
of her husband's estate. By section 8 of the Act, the widow becomes an heir to
the husband's estate on intestate succession, along with other heirs mentioned
in Class I of the Schedule. And by section 14(1), any property possessed by a
female Hindu whether acquired before or after the Act becomes her absolute
property subject to the provisions of sub-section (2) which would have no
application in the instant case. By reason of section 14, the provisions of the
Act have generally an overriding effect on custom and usage. On August 17, 1957
the plaintiff's evidence was over and the suit was adjourned to August 24 for
defendant's evidence. In the meanwhile, on August 20, the defendant filed an
application stating 933 that he had accidentally discovered a will made by the
plaintiffs husband Gopinder Singh and asking for permission to produce that
will. The defendant has not stated why he suddenly thought of examining his
grand-father's papers in between the conclusion of the plaintiff's evidence on
the 17th and the 20th of August. His case is one of a purely providential
discovery and neither in the application for production of the will nor in his
evidence did he give the haziest details of the discovery. We are surprised
that the High Court should have so readily accepted the story that the
defendant stumbled across the will.
The will has been typed out on both sides of
a single foolscap paper and is obviously drafted by a lawyer. No evidence at
all has been led as to who drafted the will and who typed it out. The will uses
some trite legal jargon but it does not show where it was executed and contains
no description whatsoever of any of the extensive properties bequeathed to the
The will has been attested by two persons
called Dinshaw H.M. Framjee and Pali Ram. It is intriguing that a person in the
position of Sardar Gobinder Singh should choose these two strangers as
attesting witnesses to a very solemn and important document. Dinshaw Framjee
was a trader in Simla and Pali Ram was his servant. Framjee has stated in his
evidence that he did not remember where Gobinder Singh used to stay in Simla,
that he did not know for how long he was staying in Simla before the
attestation of the will, that he was unable to state whether he had met
Gobinder Singh after the attestation of the will and that he was unable to give
the approximate time of the day when the will was attested--forenoon, afternoon
or evening. Framjee was sure about one thing only, that he had not attested the
will at night. He attempted to say that he was on friendly terms with the
testator's family but he was unable to give even the approximate ages of the
testator's son and daughter.
Under the stress of cross-examination, he had
to admit eventually that he knew nothing about the testator,s family or family
Pali Ram, the other attesting witness, did'
not remember the date or the year of the execution of the will but said that it
was probably executed in 1945. He did not know the testator and was a total
stranger to him. Whereas Framjee stated that the will was attested in 'his
business premises which were on the ground floor, Pali Ram says that Framjee
sent for him from the business premises to his residence, which was on the
The utter improbability of the testator
accosting these two strangers for getting his will attested and the fundamental
contradictions in their evidence render it impossible to hold that they
attested the will at the instance of the testator as alleged. A man of
importance that the testator was, he could not ever have left the validity of
his will to depend on the unpredictable attitude of unknown elements like
Framjee and Pali Ram. Pali Ram claims to have read the will before attesting
it. It iS not known why. if he knew that the property 934 was bequeathed to the
defendent, he did not, at least after the testator's death, inform the defendant
of the existence of the will.
By the will the testator appointed Sardar
Kesho Ram, a Judge of the High Court of Patiala and one Sardar Bahadur Ranjit
Singh as executors. Both of these persons were fortunately available for giving
evidence but neither of them was examined in the case. Normally, executors are
not appointed without their consent or at least without a prior consultation
with them. Respondent 1, the defendant's widow, is the daughter of the executor
Ranjit Singh. The marriage was performed during the testator's life-time and we
find it hard to believe that he would not disclose even to Ranjit Singh that he
had made a will appointing him as one of the executors and that Ranjit Singh's
son-in-law, that is to say the testator's grandson, was the sole legatee under
The will is unnatural and unfair in more than
one respect. At the time that the will is alleged to have been made, the
testator had a daughter Guraprakash Kaur who was born of Dalip Kaur and a
daughter-in-law Joginder Kaur, being the widow of the testator's predeceased
son Gurbachan Singh who was also born of Dalip Kaur. Gurbachan Singh and
Joginder Kaur gave birth to the defendant Surjit Inder Singh and to a daughter
Palvinder Kaur. The will contains not even a fleeting reference either to the
testator's daughter or the widowed daughter-in-law or to the granddaughter
Palvinder Kaur. It is urged that all of these persons were happily placed in
life and it was therefore needless for the testator to provide for them. If that
be so, it was usually unnecessary to refer to the appellant Jaswant Kaur who
also, it is common ground, has been married happily.
The plaintiff Gulab Kaur has been wholly
excluded as an heir of the testator for the supposed reason; that She had
brought disgrace to the Sibia family and that her behaviour was such as would
not even 'bear mention in the will. Not only that no evidence was led to show
any misconduct on the part of Gulab Kaur but the evidence of Jaswant Kaur
(P.W.2) shows that for about 7 or 8 years prior to 1956 Gulab Kaur had lost her
eyesight. One of the issues in the suit namely, issue No. 2, arising from the
original pleadings was whether the plaintiff was disentitled to maintenance for
the reason that she had deserted her husband. The judgment of the trial court
shows that the defendant led no evidence in support of that issue and that
during the course of arguments, the defendant's counsel did not press the
particular issue. The plaintiff on the other hand led evidence in rebuttal and
accepting that evidence the trial court rejected the contention that she had
deserted her husband.
it seems to us difficult to believe that a
person in the position of S. Gobinder Singh who was possessed of a large
estate, would disinherit so many of his near relatives including his wife Gulab
Kaur and shower his bounty on the grandson, to the exclusion of everyone else.
935 Quite a few other circumstances can be
mentioned which raise a grave suspicion as regards the making of the will but
the circumstances enumerated above are, tin our opinion, sufficient to discard
the will. The defendant in his evidence has offered no explanation of any of
these. circumstances. He has totally failed to discharge the heavy onus which
lay on him of explaining the suspicious circumstance surrounding the execution
of the will and of establishing that the document which he propounded was the
last will and testament of his grand-father Gobiner Singh.
Learned counsel for' the respondents contends
that the defendant did not offer any explanation of these suspicious
circumstances because the will was not challenged in the trial court on the
ground that its execution was shrouded in suspicion. It is impossible to accept
this contention because even the learned District Judge who had rejected the
defendant's application for production of the will and the consequent amendment
of the written statement had observed in his order dated September 13, 1957
that it was inconceivable that the defendant did not know about the will and
that the possibility of :itís being forged cannot be excluded. This itself was
sufficient notice to the defendant as to the nature of the burden which he had
to discharge. Counsel for the defendant also contended that the testator must
have kept the will a closely guarded secret because if the will was published,
Gulab Kaur and her daughter would have created some trouble. This argument, in
the context of the various facts adverted to above, has to be rejected. The
testator might have wished to keep the will a secret from Gulab Kaur and her
daughter but it is impossible to appreciate that he would frustrate the very
object of making the will by suppressing it from the defendant and from the
executors, one of whom was highly placed and the other of whom is the
Frankly, though with respect, it surprises us
that the High Court should have accepted the will as genuine. It observes:
"It is evident from the above evidence that there are no suspicious
circumstances about the execution or the contents of the will." We could
have understood if the High Court were to say that the defendant had given a
valid explanation of the suspicious circumstances surrounding the execution of
the will. But to say that there is nothing in the case to excite the court's
suspicion and to accept the will as genuine on that premise is wholly un-understandable.
The High Court does not refer to a single
circumstance out of the many that we have discussed and the operative part of
the judgment just recites a few facts mechanically as if there could possibly
be no answer to the validity of the will. The High Court has not referred in
its judgment even in passing to the rule as to the burden of proof which
applies to testamentary proceedings. If only it had taken the trouble of
looking at the decision of this Court in Iyengar's case, which is copiously
extracted in the judgment of the Trial Court, it would have realized what its
true duty was in the case.
936 For these reasons we allow the appeal,
set aside the judgment of the High Court and restore that of the trial court.
The appellant will be entitled to recover from the respondents the costs of
this Court and of the High Court.