Umeshchandra Joshi Vs. Mrudula Jyoti Rao & Ors  Insc 974 (15 December 2006)
Sinha & Markandey Katju S.B. Sinha, J.
is the son of Late Umeshchandra Madhav Joshi (hereinafter referred to as
"the deceased"). He owned considerable properties. A Charitable Trust
by the name of "Umesh Yoga Charitable Trust" was created by the
deceased in his native village at Manor. For the said purpose, he donated 7
acres of land of his own. 4 acres of land was said to have been donated by the
appellant herein. Deceased purchased a residential house at Dadar named "Umesh
Dham" in 1949. The first floor of the said house was used for residence,
which he also used for holding Yoga classes and also for manufacture of Hair
Oil. Deceased started yoga classes. He also started manufacture of hair oil,
namely, (Ramtirth Brahmi Hair Oil). Sometime thereafter, he along with his
children shifted his residence to the ground floor of the said house. He had 7
sons and 3 daughters. Appellant herein is his second son. Respondent No. 2
allegedly eloped and married a Muslim boy. Respondent No. 1, however, had an
arranged marriage. The relationship amongst the brothers and sisters, except
respondent No. 2 was said to be cordial. Sudarshan, Jagdish and Pravin were
allegedly helping the testator in management of the business of manufacture of
hair oil. All his sons, namely, Sudarshan, Dr. Vishnu, Jagdish, Arvind, Sunil
and Tarabai (respondent No. 2) lived together at the same house known as 'Umesh
Dham'. Appellant herein and another brother Sunil were not married.
is a doctor of repute. He is a Gynaeocologist and Obstreticist and his
qualifications are M.D. (Obst. and Gyt.), FISC, FCPC, D.G.O.D.F.P. He started
his practice in 1971. He opened a clinic and hospital at Parel.
the records, it appears that the deceased was suffering from malignancy Liposercoma
(sic). There are some evidences on record to show that he was also suffering
from left ventricular failure with Ischemia heart disease. The deceased is said
to have no faith in the allopathy system of medicine. He had developed some
respiratory problem. He was investigated by Dr. Panikar, a student of
Appellant. He was taken to ICU of Breach Candy Hospital on 13.11.1983 by
Appellant and his wife.
14.11.1983, the deceased expressed his desire to execute a Power of Attorney as
also a Will. On his purported instructions, Appellant contacted Mr. M.K. Mahimkar,
Advocate, who was working with M/s Ramesh Shroff & Co. Mr. Mahimkar and
Appellant visited the testator at Breach Candy Hospital. Deceased instructed Mr. Mahimkar to draft a Power of
Attorney before drafting the Will as he expressed a desire to speak to his wife
before executing the Will. He allegedly spoke to his wife. The Will was drafted
the next day. While the Will was being drafted he asked Appellant and Pravin, his
another son to wait outside the room. Appellant and Mr. Mahimkar visited the
hospital during non-visiting hours for execution of the Will. It was drawn up
in Mr. Mahimkar's handwriting allegedly at the spot. They and one Mr. Phadke,
classmate of Mr. Mahimkar entered the cubicle of ICU of the Hospital at 3.30 p.m. for execution of the Will. The deceased sent for Dr.
Bhupender Gandhi, a friend of Appellant for attesting the Will. He reached the
cubicle at about 4.30
p.m. The Will
thereafter was executed.
the deceased was under the treatment of one Dr. Udwadia. of the said Hospital.
Appellant neither treated him nor did he examine him at any point of time. He
even did not know of the diseases he had been suffering from. On 21.11.1983,
the deceased was discharged from the hospital. He received visitors on
22.11.1983. In the early morning of 23.11.1983, he allegedly asked his wife Tarabai
to count the cash lying in the almirah. He died soon after having asked his
wife for coffee.
cremation of the dead body, the factum of execution of the Will by the deceased
was disclosed. A meeting of the family members was arranged in the office of
Mr. Mahimkar for inspection of the Will; consent letters were also prepared; Pravin
signed the same at the spot as he was to leave for Manore. Xerox copies of the
consent letters were prepared. First Respondent herein also signed the consent
letter. On 7.12.1983, a joint consent letter was given by sons of the deceased.
Sunil also gave his consent letter on the said day separately.
no step was taken for obtaining a probate soon thereafter.
1.4.1985, a deed of assignment in regard to the manufacturing unit of Hair Oil
was executed in favour of Sudarshan for a consideration of Rs. 4 lakhs. As per
the deed of assignment, a sum of Rs. one lakh (hereinafter as Will) was to be
paid on or before 31.12.1986 and the rest of the amount was to be paid on or
Testamentary Application was filed by Appellant on 21.12.1985.
8.1.1987, a joint consent letter was filed by Tarabai, Dr. Vishnu, Arvind and
Sunil in the said Testamentary Application.
14.1.1987, a Promissory Note for Rs.3 lacs was executed by Sudarshan in favour
of Appellant in furtherance of the said deed of assignment. On 10.3.1987, a
Caveat was filed by Mridula, first Respondent without affidavit and on
28.4.1987 an Affidavit was filed by her withdrawing the "no
objection" earlier given for grant of probate. She was allowed to do so
after she affirmed on an affidavit in support thereof.
second respondent also filed a caveat. Thereafter a Testamentary Suit was filed
by Appellant before the Bombay High Court wherein respondents herein were
parties. The hearing was taken up in 1994.
of evidence in the matter commenced on 7.11.1984. It continued upto 8.11.1994.
Arguments were heard and concluded in December 1994.
examined himself in the said proceeding. He had examined his mother Tarabai and
also the attesting witnesses viz., Mr. Mahimkar and Dr. Bhupender Gandhi. He
also examined Dr. Vijay Kumar Panikar.
learned Single Judge of the High Court by a judgment and order dated 28.11.1995
dismissed Appellant's application for grant of probate, inter alia, opining
that 'although respondents herein could not prove that the signatures of the
testator appearing in the Will as also those of the attesting witnesses, were
not theirs; the circumstances surrounding the execution of the Will were so
suspicious that it was impossible to believe that the Will had been executed at
the place, time and in the manner suggested by Appellant'. In arriving at the
said conclusion, the learned Single Judge took into consideration the purpose
for which the Will was proposed to be executed, the manner in which the same
was drafted and executed, the effect thereof and various other circumstances
and in particular the one that Appellant was totally ignorant of the
ailment(s), the deceased was suffering from. The learned Single Judge concluded
that no case for grant of probate had been made out.
Intra-court Appeal was filed by Appellant thereagainst. During the pendency of
the Appeal, Purnima, another sister of Appellant took out Chamber Summons,
revoking her consent to the Probate Petition on 16.6.2003, inter alia, on the
allegations that she had doubts about the genuineness of the alleged Will and
wished to support the respondents herein. Chamber Summons had also been taken
out by Jagdish, Pravin and Dr. Vishnu in the pending appeal. They also revoked
their consent to the probate petition and prayed to be joined with Respondents
herein. In support thereof, an affidavit was affirmed by Jagdish in July 2003
not only questioning the genuineness of the Will but also expressing his shock
and surprise at the fraud played on all the family members by Appellant. By
reason of the impugned judgment dated 4.2.2004, a Division Bench of the High
Court affirmed the judgment and order of the learned Single Judge.
Bhushan, learned Senior Counsel appearing on behalf of Appellant raised the
following contentions in support of the appeal :
Execution of the Will having duly been proved, the High Court committed an
error in passing the impugned judgment. The fact that all the brothers and
sisters of Appellant had given their consent, except Respondent No. 2 herein,
who was under the influence of her husband, who was a Muslim boy clearly
established that the Will was genuine.
Subsequent withdrawal of the consent by Mrudula would also show that she had
changed her mind only on the ground of not having been paid an amount of Rs.50,000/-
as was allegedly promised to her which cannot be relied upon.
The evidence brought on records clearly show:
The deceased was of sound mind and, thus, had the capacity of making his Will
Indisputably, the deceased having executed the Will and the same having been
attested by Shri Mahimkar and Dr. Gandhi, the genuineness thereof could not
have been questioned.
The background of hospitalization of the deceased had not been appreciated by
the High Court in its proper perspective, as it failed to consider that he had
always been reluctant to take allopathic drugs and was, thus, expected to be in
the hospital for a short period.
The deceased was kept in the ICU, not because his condition was serious but
because no bed was available. elsewhere.
Although she was suffering from cancer, the same being within tolerable limits,
it was not necessary to put him under any sedative.
Deceased left hospital in good health. He was brought home by Niranjan. He went
to his office on the first floor and met all his family members. On 22.11.1983,
he signed a letter of authority addressed to the Punjab National Bank. He had
also expressed his desire to go to the village after his discharge from the
On 22.11.1983, he met many of his friends and enquired about their various
activities. On 23.11.1983 at 3.00 a.m. he
asked Tarabai, his wife to prepare coffee for him.
Mrudula has been visiting her father during his illness and at least she should
have testified in the witness box to depose that in regard to the deceased's
mental condition and having not done so, she now should not be permitted to
take a different stand.
Despite overwhelming evidence of his being in a proper state of mind, no
evidence was adduced on behalf of Appellant.
The High Court committed a serious error insofar as it failed to take into
consideration that Appellant did not play an unprominent role in the
preparation of the Will and was not even present at the time when instructions
were being given for its preparation on 15.11.1983 as also at the time of
never visited his father and did not know anything about the ailments his
father was suffering from, which cannot be said to be unnatural, particularly
when he was only a gynecologist and not an oncologist.
Dutta and Mr. Sunil Kumar Gupta, learned Senior counsel appearing on behalf the
first and second Respondents respectively, on the other hand, submitted :
Both the learned Single Judge and Division Bench of the High Court having
arrived at a concurrent finding of fact, this Court should not interfere
The circumstances in which the Will was prepared, attested and executed,
namely, in a cubicle of ICCU raise serious doubts about the genuineness
independent witness having been examined, for reasons being known to the
appellant, the impugned judgment cannot be faulted as particularly
non-examination of the doctor who had been attending the deceased at Breach Candy Hospital having not been explained, the case
must be held to be shrouded in mystery.
Both the attesting witnesses Dr. Gandhi and Mr. Panikar being known to the
Appellant for a long time, no reliance has rightly been placed on their
evidence by the High Court.
There was no reason as to why the deceased would not leave anything for his
other children, particularly when he was running a business and the residential
house was not being used for any charitable purpose.
Like Appellant, Sunil, who was the youngest of all, was also unmarried and
having been residing with his father and unemployed, it was unnatural that no
arrangement was made for him.
Deceased having been suffering from a serious ailment, it was unlikely that he
expressed his desire to execute a Power of Attorney and Will at the same time.
reason has been assigned and no explanation has been offered as to why no step
was taken immediately for grant of probate despite the fact no objection was
raised by any of the legal heirs, except the second respondent.
explanation has been offered as to why the business of manufacture of hair oil
would be transferred to Sudarshan for valuable consideration.
The fact that another sister and three brothers of Appellant revoked their
consents and expressed doubts as regards the genuineness of the Will also
establishes that the execution of the Will was surrounded by suspicious
Theory set up by the propounder that the Will was executed in furtherance of
the Charitable Trust activities having been found to be not correct and the
property of the deceased comprised not only of a business but also a residential
house clearly goes to show that the High Court was correct in opining that the
execution of the Will has not been proved by Appellant.
adverting to the rival contentions of the parties, as noticed herein before, we
would place on record that three brothers of appellant, namely, Arvind, Vishnu
and Sunil had filed interlocutory applications before this Court for their impleadment
in this Appeal. Mr. Jaideep Gupta, appearing in support of the said application
submitted that they are supporting the appellants.
learned Single Judge as also the Division Bench of the High Court had taken
great pains in analyzing the evidence, both oral and documentary, brought on
learned Judges proceeded on the basis that the Will in question bear the
signatures of the deceased and might have been attested by Mr. Mahimkar,
Advocate and Dr. Bhupender Gandhi, but circumstances surrounding the execution
of the Will being suspicious and the appellant having not been able to remove
the same, the prayer for grant of probate should not be granted.
circumstances enumerated by the learned Division Bench in affirming the
judgment and order passed by the learned Single Judge are as under :
The Propounder took part in execution of the Will, being sole recipient of the
The dispositions made in the Will by the testator are unnatural, unfair and
improbable as wife and grand children were excluded from the benefit thereof
despite the fact that he had love and likings for all.
There is no recital in the Will that Respondent No. 2 was to be specifically
Why the Will had been executed by the testator within 24 hours of his
hospitalization has not been explained.
Witnesses to the Will were interested persons, and evidence adduced in support
of execution of the Will was unsatisfactory, particularly when the doctor
treating him had not been examined.
The ailment from which the testator had been suffering was not being disclosed
which shows that he might have been terminally ill as within eight days from
execution of the Will, he died.
There was no satisfactory evidence to show as to why the testator sent for Dr.
Gandhi for attestation of the Will although he did not have much acquaintance
No satisfactory evidence was brought on record as regards the cause of death of
There is no explanation as to why the appellant and others visited the hospital
during non-visiting hours in the ICU cubicle for execution of the Will.
the evidence brought on record, it appears that the deceased knew that he had
been suffering from cancer for 10-15 years prior to his death as he claimed
that he was cured of his disease because of his practices in yoga. Admittedly,
he was suffering from Liposarcoma which is a malignancy of fat cells. He was
also suffering from left ventricular failure.
ailments were serious ones as was expressed by Dr. Bhupender Gandhi in his
deposition. Dr. Gandhi happened to be a long standing friend of the appellant.
He admitted to have met the deceased only once or twice but never treated him;
even never examined him. Dr. Panikar was a student of the appellant. He was a
young doctor. He had regularly been checking up the deceased medically. From
the evidence of Panikar, it appears that the deceased knew that he had been
suffering from cancer but according to him as he used to do yogas, he was cured
of the said disease. He was suffering from respiratory trouble also. Deceased
although was not taking any allopathic medicine, he could be persuaded to be hospitalised.
Panikar assured him that he would be hospitalized only for one night. Whether
necessary or not, he was admitted in ICU. The treatment started immediately.
Presumably because he would not take any oral allopathic drugs, he was put on
intravenous fluid. If he was aware of the fact that he would remain in the
hospital for one day only, it does not appeal to any reason as to why he would
think of execution of a Power of Attorney as also of execution of a Will in favour
of Appellant at the same time. If he was under the impression that he was no
longer suffering from cancer, it was expected that he would think of execution
of any document only after he came back home. He asked the appellant only to
contact M/s. Shroff & Co.
not say about Mr. Mahimkar. Mr. Mahimkar was said to have been deputed by the
firm. No evidence to that effect was led. Admittedly, he was known to the
appellant since 1976. He had handled the Habeas Corpus petition before the
Bombay High Court filed by the husband of Respondent No. 2. Mahimkar came with
Appellant. He was accompanied by a Clerk.
were allowed to enter ICU without any prior appointment. There is nothing to
show that permission of the hospital authorities had been taken in regard to
the visit of persons who were not his relatives. In the small cubicle of ICU
which was separated by curtains only and there were other serious patients,
Power of Attorney and the Will were said to have been drafted.
execution of the Will was allegedly deferred by a day as deceased wanted to
consult his wife. According to her, she raised no objection to the execution of
the Will in favour of Appellant. Whether the youngest son and other children
were taken into confidence or not, is not known. Power of Attorney would have
served the necessity of representing the deceased before various authorities
and banks. The very fact that he wanted to execute a Power of Attorney clearly
shows that he did not believe that he would meet his end soon. Ordinarily, a
person would not think of execution of a Power of Attorney and a Will
simultaneously. Although, he chose to execute the Will, he evidently did not
have any document with him for the purpose of instructing the Advocate
effectively and in details. No document had been handed over to Mr. Mahimkar by
the appellant and the deceased.
came to the hospital with a Clerk, dictated the Will then and there and the
same was executed by the deceased. Dr. Gandhi although a friend of the
appellant deposed in his evidence that the deceased had not known him very
intimately. Why, thus, he had been called as an attesting witness is a mystery.
A nurse had allegedly tried to contact him. Whether he could be contacted or
not is not known. He, however, walked almost immediately after the Will was
drafted. He attested the signatures of testator.
Will, the deceased had, inter alia, declared:- "I, Umeshchandra Madhav
Joshi of Bombay, Indian Inhabitant, aged 76 years, residing at Umeshdham, 27,
2nd Vincent Square Street, Dadar, Bombay 400 014, do hereby revoke all my
former Wills and testamentary dispositions and declare this to be my last Will
appoint my son Dr. Niranjan Umeshchandra Joshi to be the Executor and Trustee
of this my last Will.
Whatever movable and immovable estate I am seized and possessed of or otherwise
well and sufficiently entitled, the same belong to me absolutely and no one has
any claim or interest whatsoever to or in the same or any part thereof and I am
entitled to make such dispositions thereof as are hereinafter contained."
xx xx xx "7. I declare that all the rest and residue of my estate wheresoever
situate, after payment of funeral expenses, debts, liabilities, probate duty,
costs, charges and expenses of management and administration is hereinafter
referred to as my "Residuary Estates".
devise and bequeath my residuary estate to my son Dr. Niranjan Umeshchandra
authorize and empower my executor and Trustee to postpone the realization, sale
and/or conversion of my estate or any part thereof for so long as he shall
think fit." Why other terms of the Will had to be inserted is not known.
There were two schedules in the Will. The first schedule thereof reads as under:-
Valuation of the movable and immovable property of the deceased in the State of
Cash in the house Rs. 2,434.00
Household goods, furniture Rs. 1,000.00
Cash in Bank:
Punjab National Bank, Khodadad Circle, Dadar, Bombay 400 014 Current A/c No. 1835
Punjab National Bank, Khodadad
Circle, Dadar, Bombay 400 014 A/c No. 8794 Rs. 32,316.47
Leasehold property consisting of Leasehold land with building standing thereon
known as Umeshdham, Vincent Square, Street No.2, Dadar, Matunga Estate, Dadar,
Bombay 400 014, as per the Valuation report of M/s. Design Collaboration,
Architects, Bombay Rs.4,00,000.00 5. Securities:
with Bombay Electric Supply And Transport Undertaking as security For payment
of energy bill etc. paid Under Receipt No.61253 dated 27.5.80 Rs. 4,850.00
------------------ Rs.8,12,066.32 Deduct amount shown in Schedule No.II
Rs.4,77,605.30 ------------------ Net Total Rs.3,34,461.02 =========== Schedule
II details his liabilities to each of such persons named therein, amounting to
Rs.4,77,605.30. Mr. Mahimkar or Dr. Gandhi do not say that documents required
to prepare the Will were with the deceased.
was admitted in the hospital on an emergency basis. Evidently when he was
admitted in ICU, he would not be permitted to carry documents with him. It is
unnatural that he would remember all the details of his assets including the
amount of cash and the amount lying in bank as also the details of his
the schedules of the Will were meticulously drafted. Tarabai in her deposition
did not say that she or Appellant had furnished all those details to Mahimkar
in advance. Except they, in the given situation, no other could do so. An
inference can, therefore, be safely drawn that Appellant had a role to play in
execution of the Will. Story of the Will being drafted in the cubicle of ICU of
the Hospital, thus, cannot be believed. In all probabilities, Will was drafted
by Mahimkar in his Chamber. It may also be borne in mind that as the deceased could
only sign in English, question of his dictating the Will and at least the term
thereof was wholly unlikely. Will has been drafted by a professional. The
theory set up by the propounder that he believed that the appellant would carry
out his charitable activities is not reflected from the Will. No reason has
been assigned as to why he had chosen Appellant alone for taking the entire
benefit of the legacy.
of some interest to notice that although the amount of cash in hand had already
been disclosed in the first schedule of the Will but when he came back, he
asked Tarabai to count the cash once over again. What was the amount, if any,
found in the cash-box is not known.
true that the contesting respondents did not examine themselves, but it is
equally true that apart from his mother and friends, nobody was examined on
behalf of Appellant also. If the other sons had implicit faith in their father
and accepted that the Will was genuine, they could also have been examined.
They indisputably signed consent letters. We do not know under what
circumstances, consent letters were obtained. Only Pravin had given consent in
the Solicitor's office; others gave their consent at a later stage.
was the frame of mind of the deceased could have been best stated by the Doctor
who was attending on him. Appellant curiously even was not aware of the
ailments, the deceased was suffering from. It is expected that he would have
known at least the ailments of his father, particularly when he was diagnosed
to be suffering for ventricular failure.
other three sons, particularly Sunil had been helping the deceased in carrying
on the business. There is no averment in the Will how the business and the
Trust would be run.
directions in regard to running of the Trust were also expected to be given in
manner in which the death certificate of the deceased had been issued also
raises some suspicions. Although, he expired at his own house, and he was
declared dead by Dr. Panikar; the death certificate was prepared in a printed
form. It was filled up in hand but the time of death was shown as 7.00 a.m. The cause of death is said to be respiratory
failure. How the printed form was filled in, may better be stated in the words
of the learned Single Judge:
next important document is the Medical Certificate showing the cause of death
given by Dr. Panikar. It is a printed form which is filled in hand wherein the
time of death is shown as 7 a.m. and against "Disease of condition
directly leading to death" the following is written in hand:
"Respiratory failure"and as against "approximate interval
between onset and death" 8 days are mentioned. Under "Antecedent
Cause" and "Morbid conditions, if any, giving rise to the above
cause, stating the underlying condition least" "Bronchopneumonia
& Liposarcoma" in hand are entered into and as against
"Approximate interval between onset and death" `20 days' are
mentioned. It is signed by Dr. Panikar with his full name written under the
signature and as against "Address or rubber stamp of the
institution". Rubber stamp showing "Parel Hospital, 94, Shri Parmar Guruji Marg, Parel,
Bombay-400 012" is affixed." Who had filled up the form in not known.
It is nobody's case that Dr. Panikar was attached to Parel Hospital.
in the death report entered into the Municipal record of the Bombay hospital the cause of death was
shown to be Bronchopneumonia and Liposarcoma.
learned Single Judge has also noticed that there are documents to show that the
deceased was being treated by several other doctors including Dr. Anibhut P. Vohra.
All the persons including 'Tarabai' curiously did not know the nature of
ailments the deceased was suffering from and the period of his illness. In her
deposition, she was confronted with her affidavit in earlier litigations but
she profusely denied the averments and contents thereof. She had also denied
the signatures of persons on the documents pertaining to earlier litigation
other than herself and her husband on various documents with which she was
confronted with. There is no reason as to why she should do so particularly
when her categorical stand in the earlier litigations was that deceased had
been suffering from various ailments since a long time.
conduct of Appellant in executing the deed of assignment in favour of Sudarshan
even before filing the application for grant of probate cannot also be
appreciated. Before the grant of probate, he had no legal authority in that
63 of the Indian Evidence Act lays down the mode and manner in which the
execution of an unprivileged Will is to be proved.
68 postulates the mode and manner in which proof of execution of document is
required by law to be attested. It in unequivocal terms states that execution
of Will must be proved at least by one attesting witness, if an attesting
witness is alive subject to the process of the court and capable of giving
evidence. A Will is to prove what is loosely called as primary evidence, except
where proof is permitted by leading secondary evidence.
other documents, proof of execution of any other document under the Act would
not be sufficient as in terms of Section 68 of the Indian Evidence Act,
execution must be proved at least by one of the attesting witnesses. While
making attestation, there must be an animus attestandi, on the part of the
attesting witness, meaning thereby, he must intend to attest and extrinsic
evidence on this point is receivable.
burden of proof that the Will has been validly executed and is a genuine
document is on the propounder. The propounder is also required to prove that
the testator has signed the Will and that he had put his signature out of his
own free will having a sound disposition of mind and understood the nature and
effect thereof. If sufficient evidence in this behalf is brought on record, the
onus of the propounder may be held to have been discharged.
the onus would be on the applicant to remove the suspicion by leading
sufficient and cogent evidence if there exists any. In the case of proof of
Will, a signature of a testator alone would not prove the execution thereof, if
his mind may appear to be very feeble and debilitated. However, if a defence of
fraud, coercion or undue influence is raised, the burden would be on the caveator.
[See Madhukar D. Shende v. Tarabai Shedage (2002) 2 SCC 85 and Sridevi &
Ors. v. Jayaraja Shetty & Ors. (2005) 8 SCC 784].
to above, proof of a Will does not ordinarily differ from that of proving any
are several circumstances which would have been held to be described by this
Court as suspicious circumstances :-
When a doubt is created in regard to the condition of mind of the testator
despite his signature on the Will;
When the disposition appears to be unnatural or wholly unfair in the light of
the relevant circumstances;
Where propounder himself takes prominent part in the execution of Will which
confers on him substantial benefit.
H. Venkatachala Iyengar v. B.N. Thimmajamma & Ors., AIR 1959 SC 443 and
Management Committee T.K. Ghosh's Academy v. T.C. Palit & Ors. AIR 1974 SC
1495] We may not delve deep into the decisions cited at the Bar as the question
has recently been considered by this Court in B. Venkatamuni v. C.J. Ayodhya
Ram Singh & Ors. [2006 (11) SCALE 148], wherein this Court has held that
the court must satisfy its conscience as regards due execution of the Will by
the testator and the court would not refuse to probe deeper into the matter
only because the signature of the propounder on the Will is otherwise proved.
proof a Wille is required not as a ground of reading the document but to afford
the judge reasonable assurance of it as being what it purports to be.
may, however, hasten to add that there exists a distinction where suspicions
are well founded and the cases where there are only suspicions alone. Existence
of suspicious circumstances alone may not be sufficient.
court may not start with a suspicion and it should not close its mind to find
the truth. A resolute and impenetrable incredulity is demanded from the judge
even there exist circumstances of grave suspicion. [See Venkatachala Iyengar
(supra)] Even if we apply the tests laid down by this Court in large number of
decisions, including the ones referred to hereinbefore, we are of the opinion
that no case has been made out to interfere with the findings of both the
learned Single Judge as also the Division Bench of the High Court.
(supra), this Court has also opined that the appellate court while exercising
its jurisdiction would ordinarily not interfere with the finding of fact
arrived at by the learned Trial Judge if the view taken by it is reasonable.
We, therefore, agree with the conclusions arrived at by the High Court.
appeal is dismissed with costs. Counsel's fee assessed at Rs. 25,000/-.