Mahesh Kumar (D) By Lrs vs Vinod Kumar & Ors

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 7587-7588 OF 2004

Mahesh Kumar (Dead) By L.Rs. ... Appellants

versus

Vinod Kumar and others ... Respondents

J U D G M E N T

G. S. Singhvi, J.

1. These appeals are directed against judgment dated 22.7.2004 of the

learned Single Judge of the Madhya Pradesh High Court whereby he allowed

the appeals filed by respondent No.1 - Vinod Kumar and respondent No.2 -

Anand Kumar, set aside judgment and decree dated 21.11.2002 passed by II

Additional District Judge (Fast Track), Harda (hereinafter described as the `trial

Court') and decreed the suit filed by respondent No.1 for declaration,

possession, permanent injunction and recovery of rent in respect of the share of

Shri Harishankar (father of the appellant and respondent Nos.1 and 2) in the

joint family property. The learned Single Judge also declared that respondent

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No.2 shall be entitled to possession of his share in the suit property in terms of

Will dated 9.6.1989 (Ex. P-1) executed by Shri Harishankar.

2. For the sake of convenience, the parties are being referred to as the

appellant and the respondents.

3. Appellant Mahesh Kumar who is now represented by his legal

representatives, respondent Nos. 1 and 2 and their father were members of the

joint family. In 1965, respondent No.2 took his share and separated from the

joint family. After 20 years, another partition took place among the remaining

members of the joint family. In the second partition, respondent No.1 got 9.83

acres land of village Nimchakhurd and a house situated at Timarni Bazar. The

appellant got the other house situated at Timarni and cash and Shri Harishankar

got land comprised in Khasra No.92/1, 92/2 and 92/9 situated at Timarni along

with the bungalow constructed over it.

4. In 1995, respondent No.1 filed Civil Suit No.20A of 1995 and prayed for

grant of a declaration that by virtue of registered Will dated 9.6.1989 executed

by Shri Harishankar, he had become sole owner of the property shown in red

colour in the map annexed with the plaint and half portion in the shop situated

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in the bungalow. He also prayed for grant of a decree of possession by alleging

that after the death of father Shri Harishankar, he had asked the appellant to

give shares to the brothers in terms of Will dated 9.6.1989 but latter declined to

do so. The last prayer made by respondent No.1 was that the appellant may be

directed to pay him share in the arrears of rent of the Bungalow which was

leased out to Firm Ramesh Chand Dinesh Kumar Agarwal.

5. In his written statement the appellant claimed that after the 2nd partition,

the parents started living with him and he and his family was looking after

them. According to the appellant his mother died in January, 1992 and after her

death, Shri Harishankar executed Will dated 10.2.1992 and bequeathed his

share to him because he was looking after the parents and took care of the

mother till her death on 23.1.1992 (Ex. D-2). He also pleaded that respondent

Nos.1 and 2 were not given anything because they had already got their

respective shares in the joint family property.

6. In a separate written statement filed by him through his son Alok Kumar-

cum-special power of attorney, respondent No.2 denied that he had separated

from the joint family in 1965 and taken his share. Respondent No.2 pleaded

that he is not bound by the partition which is said to have taken place in 1990

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between the appellant, respondent No.1 and Shri Harishankar and that he is

entitled to one-third share in the agricultural land and other properties of the

joint family. However, he did not file counter claim in support of his plea that

he was entitled to one-third share in what he described as the joint family

property.

7. Respondent No.1 amended the plaint more than once but did not seek a

declaration of invalidity qua Will dated 10.2.1992 on the ground that Shri

Harishankar had executed the same under the influence of the appellant.

8. On the pleadings of the parties, the trial Court framed various issues

including the following:

"(1) Whether respondent No.2 had separated from the

joint family in 1965 by taking his share?

(2) Whether the second partition took place 10 years

prior to the filing of suit by respondent No.1?

(3) Whether Shri Harishankar executed registered Will

dated 9.6.1989 and bequeathed portion of his share to

respondent No.1?

(4) Whether Shri Harishankar executed Will dated

10.2.1992?

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(5) Whether Will dated 10.2.1992 was valid and by

virtue of that Will Shri Harishankar bequeathed his share

to the appellant?

9. After analysing the pleadings of the parties and evidence produced by

them, the trial Court dismissed the suit vide judgment dated 21.11.2002. The

following are salient features of the findings recorded by the trial Court:

(1) Respondent No.2 had separated from the joint family

in 1965 by taking his share.

(2) In the 2nd partition, which took place 10 years before

the filing of suit, respondent No.1 got 9.63 acres land in

village Nimchakhurd apart from the house situated at

Timarni Bazar, the appellant got the house situated at

Timarni (Ward No.7) apart from cash and Shri

Harishankar got land comprising in Khasra No.92/1, 92/2

and 92/9 situated at Timarni apart from the bungalow

constructed on the land.

(3) Shri Harishankar executed registered Will dated

9.6.1989 and bequeathed his share in the joint family

property to his three sons.

(4) The second Will executed by Shri Harishankar on

10.2.1992 was valid and in terms of that Will, the

appellant acquired the testator's share in the joint family

property.

(5) In the absence of any challenge to the second Will,

respondent Nos.1 and 2 were not entitled to anything

from the share of Shri Harishankar.

(6) Respondent No.2 was not entitled to anything from

the remaining joint family property because he had not

filed counter claim.

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10. Respondent No.1 challenged the judgment and decree of the trial

Court by filing an appeal under Section 96 C.P.C., which was registered as First

Appeal No.118 of 2003. Respondent No.2 also filed separate appeal, which

was registered as First Appeal No.133 of 2003. After hearing the counsel for

the parties the learned Single Judge of the High Court framed the following

questions:

(1) Whether in a partition which took place 30

years before the date of the filing of the suit,

defendant Anand Kumar got his share in the joint

family property?

(2) Whether a partition took place among

Harishanker, Vinod Kumar and Mahesh Kumar ten

years before the filing of the suit?

(3) Whether the deceased Hari Shanker

executed a will on 9.6.89 and bequeathed the

property owned by him, to his three sons?

(4) Whether on 10.2.92 Hari

Shanker executed a Will superseding the earlier

Will dated 9.6.89 and bequeathed his property only

to defendant Mahesh Kumar?

11. The learned Single Judge then considered the rival

contentions, scrutinize the record of the trial Court and answered question

nos. 1, 2 and 3 in affirmative and, thereby, confirmed the findings recorded

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by the trial Court that respondent No.2 had separated from the family in

1965 and taken his share in the joint family property; that the second

partition took place among Shri Harishankar, respondent No.1 and the

appellant 10 years before filing of the suit and each one of them got their

respective shares and that Will dated 9.6.1989 was duly executed by Shri

Harishankar. The learned Single Judge then proceeded to consider the

fourth question and held that even though respondent No.1 had admitted that

Will dated 10.2.1992 (Exhibit D-2) bears the signatures of Shri Harishankar,

the same cannot be treated to have been validly executed because the

mandatory provision contained in Section 63(c) of the Indian Succession

Act, 1925 (for short, `the 1925 Act') had not been complied with. The

learned Single Judge referred to the statements of the attesting witnesses,

viz., Sobhag Chand (DW-3) and Kailash Chand (DW-4) and observed:

"30. However, for certain other reasons, I am of

the opinion that the Will dated 10-2-92 is not a

validly attested document. According to the case

of propounder of the Will, the Will was attested by

Sobhag Chand (DW-3) and Kailash Chand (DW-4)

but from the evidence of Sobhag Chand (DW-3), it

is clear that when he signed the Will other attesting

witness Kailash Chand was not present.

Sobhag Chand in his deposition has stated thus:

"Kailash Chand mere jaane ke kitne samay baad

aaya iski mujhe jaankaari nahi hai."

8 The witness also states that:

"Mere hastakshar karne ke eek do minat baad hi

Harishankar ji ne hastakshar kiye the."

31. This clearly established that Hari Shankar

signed the Will in presence of the witness and at

that time Kailash was not present. Thus, Hari

shankar did not put his signature on the Will in

presence of Kailash Chand. Nor witness Kailash

Chand states that he received from the testator a

personal acknowledgement of his signature. Thus,

from the evidence of Sobhag Chand it is

established beyond any shadow of doubt that one

of the attesting witnesses, Kailash did not see the

testator signing the Will nor did he receive from

the testator a personal acknowledgement of

signature. Even if both the witnesses signed the

Will in the presence of the testator the Will cannot

be said to be properly attested as both the

witnesses did not see the testator signing the Will.

In the absence of proof that the testator signed the

Will in presence of both the attesting witnesses or

his acknowledgment was received, the Will cannot

be said to be duly attested as the imperative

condition under Clause (c) of Section 63 of the Act

has not been satisfied. In order to prove the due

attestation of the Will, the propounder of the Will

had to prove that Sobhag Chand and Kailash the

two witnesses saw the testator signing the Will, but

in the present case, the propounder has failed to

prove attestation of the Will, the same cannot be

said to be validly attested Will."

(underlining is ours)

12. The learned Single Judge then also referred to some discrepancies in

the statements of the appellant and the attesting witnesses and held that the

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appellant failed to discharge the onus of proving that Will dated 10.2.1992

was duly executed by Shri Harishankar and was attested as per the mandate

of Section 63(c) of the 1925 Act.

13. The learned Single Judge then enumerated the following reasons for

coming to the conclusion that the execution of Will dated 10.2.1992 was

suspicious and the testator had not acted of his own free will:

(1) The Will was prepared by Shri S. K. Agrawal, Advocate in his office

in the presence of Shri Harishankar and some witnesses including Bal

Kishan (father in law of the appellant) and his son (brother in law of the

appellant) and there was no reason for Shri Harishankar to have taken the

document to the house of Bal Kishan.

(2) Both the attesting witnesses were chance witnesses. Sobhag Chand

(DW-3) was not called by anybody and there was no reason for him to have

gone to the house of Bal Kishan. Kailash Chand (DW-4) was called by

Vishnu Prasad S/o Bal Kishan but the appellant gave out that both the

witnesses came to meet his father.

(3) Kailash Chand (DW-4) lives at a distance of four furlong from the

house of Bal Kishan and there was no reason why other persons of the

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community who were living in the vicinity of Bal Kishan's house were not

called to attest the Will.

(4) There were material contradictions in the statements of the appellant

and the attesting witnesses.

(5) The Advocate, who drafted the Will was asked to sign the document

after the executant (Shri Harishankar) and the two attesting witnesses had

signed the same.

(6) The possibility that the signatures of Shri Harishankar and the

attesting witnesses were obtained on blank paper and, thereafter, the draft

was prepared by Shri S. K. Agrawal, Advocate cannot be ruled out because

his signature appear on the left side at the bottom of the document in the

margin.

(7) Will dated 10.2.1992 does not make a mention of the first Will and

general statement made therein that the testator was cancelling the

previously executed Will, if any, did not amount to revocation of Will dated

9.6.1989.

(8) While the first Will was registered, the executant did not bother to get

the second Will registered.

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(9) There was no reason for Shri Harishankar to have given his entire

share to the appellant only on the ground that he had served him and his wife

during their old age.

(10) The appellant had himself taken active part in the execution of the

second Will. The tenor of the statement of the appellant is indicative of the

extra interest taken by him in the execution of the second Will.

(11) Shri Harishankar had executed the second Will at the persuasion of

the appellant and thus there was every reason to think that he had influenced

the executant.

14. Shri S. B. Sanyal, learned senior counsel appearing for the appellant

argued that the trial Court had correctly analysed the pleadings and evidence

of the parties for coming to the conclusion that the appellant had succeeded

in proving that Will dated 10.2.1992 was validly executed by Shri

Harishankar and the learned Single Judge of the High Court committed

grave error by setting aside the well reasoned findings recorded by the trial

Court on this issue. Shri Sanyal emphasised that the learned Single Judge

misread the statement of Sobhag Chand (DW-3) and erroneously observed

that he had signed the Will as a witness even before the executant Shri

Harishankar had signed the same and that the evidence of the other witness,

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namely, Kailash Chand (DW-4) was liable to be discarded because he had

not signed the Will in the presence of Sobhag Chand (DW-3). Shri Sanyal

submitted that in terms of Section 63(c) of the 1925 Act, attestation of the

Will by one witness is sufficient and Will dated 10.2.1992 cannot be treated

invalid merely because the two attesting witnesses may not have

simultaneously appended their signatures or that Kailash Chand (DW-4) was

not present when Sobhag Chand (DW-3) had attested the Will. Learned

senior counsel further argued that the exclusion of some of the heirs cannot

be a ground for presuming that the Will dated 10.2.1992 was not genuine.

He pointed out that in the first Will also Shri Harishankar had not given any

share to his wife and the daughters but that was not taken as a ground for not

treating the same to be genuine. Shri Sanyal submitted that non-registration

of the second Will was not relevant because the law does not require

registration of the Will. In support of his submissions, Shri Sanyal relied

upon the judgments of this Court in Uma Devi Nambiar v. T. C. Sidhan

(2004) 2 SCC 321, Sridevi v. Jayaraja Shetty (2005) 2 SCC 784, Pentakota

Satyanarayana v. Pentakota Seetharatnam (2005) 8 SCC 67.

15. Shri Sudhir Chandra, learned senior counsel appearing for respondent

No.1 supported the impugned judgment and argued that learned Single

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Judge rightly decreed the suit because the finding recorded by the trial Court

on the issue of validity of Will dated 10.2.1992 was ex-facie erroneous.

Learned senior counsel submitted that depositions of Sobhag Chand (DW-3)

and Kailash Chand (DW-4) were full of contradictions and the learned

Single Judge rightly took cognizance of the same for coming to the

conclusion that the Will was not attested as per the requirement of Section

63(c) of the 1925 Act. Shri Sudhir Chandra pointed out that while the first

Will executed by Shri Harishankar on 9.6.1989 was signed him on each page

and was duly registered at Harda, the second Will was signed only on the

last page and was not registered. He then argued that even though

respondent No. 1 admitted that signatures on Will dated 10.2.1992 were that

of his father Shri Harishankar, this cannot by itself lead to an inference that

the Will was duly executed and was genuine. Learned senior counsel

emphasised that onus of proving due execution of the Will is always on the

propounder and when there are suspicious circumstances, he is duty bound

to remove the same. Shri Sudhir Chandra also pointed out that the attesting

witnesses were not independent persons and this by itself was sufficient to

give rise to a serious suspicion about the genuineness of the Will and the

learned Single Judge rightly discarded their testimony because the same was

contrary to the statement made by the appellant. He submitted that active

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participation of the appellant, who was the sole beneficiary of the Will, was

rightly relied upon the learned Single Judge for holding that the execution of

Will dated 10.2.1992 was highly suspect. In support of his arguments, Shri

Sudhir Chandra relied upon the judgments in H. Venkatachala Iyengar v. B.

N. Thimmajamma (1959) Supp. 1 SCR 426, Rani Purnima Devi v. Kumar

Khagendra Narayan Dev (1962) 3 SCR 195, Ramchandra Rambux v.

Champabai (1964) 6 SCR 814, Moonga Devi v. Radha Ballabh (1973) 2

SCC 112, Surendra Pal v. Dr. (Mrs.) Saraswati Arora (1974) 2 SCC 600,

Seth Beni Chand (since dead) now by Lrs. v. Kamla Kunwar (1976) 4 SCC

554, Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao (2006) 13 SCC

433, Lalitaben Jayantilal Popat v. Pragnaben Jamnadas Kataria (2008) 15

SCC 365, S. R. Srinivasa v. S. Padmavathamma (2010) 5 SCC 274 and

Balathandayutham v. Ezhilarasan (2010) 5 SCC 770.

16. Before dealing with the respective arguments, we consider it

necessary to mention that after the death of Shri Harishankar, the appellant

and respondent No. 1 had filed separate applications for mutation of their

name in respect of land bearing Khasra No.92/1 Raqba 1-63 acres and

converted land bearing Khasra Nos. 92/2 and 92/9 Raqba 0-35 acres. In

support of his claim respondent No. 1 produced Will dated 9.6.1989 and the

appellant produced Will dated 10.2.1992. By an order dated 31.12.1996, the

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Tehsildar sanctioned mutation in favour of respondent No. 1. That order was

set aside by Sub-Divisional Officer, Harda, who remanded the case to the

Tehsildar for reinvestigation. The appellate order was set aside by

Additional Commissioner, Hoshangabad Division by observing that the Will

produced by the appellant was suspicious. The revisional order was

challenged by the appellant by filing a petition under Section 50 of the

Madhya Pradesh Land Revenue Code, 1959. After examining the record and

considering the arguments made before him, the Administrative Member of

the Revenue Board, Madhya Pradesh vide his order dated 21.7.2000 allowed

the petition and directed that the mutation be done in accordance with Will

dated 10.2.1992. This is evinced from paragraph 5 of order dated 21.7.2000,

the relevant portion of which is extracted below:

"The Will dated 9.6.1989 is the registered Will and its

witnesses have also been examined. Therefore, there is no

doubt in its validity. The statements were also taken of the two

witnesses of the Will dated 10.2.1992. That although the same

is not registered but there is no doubt in its existence. The

signature done by Hari Shankar in the Will dated 10.2.1992 has

been proved by the witness Salig Ram. That it has come in the

evidence that Hari Shankar were 5 brothers and that he received

50 acres of and house in partition. That in between the three

sons of Hari Shankar the partition had already taken place. It

has been a long time since Anand Kumar had separated himself

and Vinod Kumar separated himself in the year 1984-85. The

said fact has also come in the evidence. That on the said fact no

dispute has arisen by any party. The said fact has also been

accepted by Vinod Kumar. The present dispute is only in

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respect of the 1-98 acres of land in village Timarni and on

which the house has also been built. That any person can

execute the Will number of times during his life span and under

these circumstances the Will which has been executed last

would be taken into account. The suspicion or doubt can be

raised if the Will is executed in favour of the third party from

outside and not in favour of the natural legal heirs of the

deceased. But in case the priority is given only to some of the

natural legal heirs in comparison to the other natural legal heirs

then only on this very reason the Will cannot be held as been

invalid. That when for once the Will date 10.2.1992 has been

proved and there is no doubt on the part of the testator Hari

Shankar in executing the same then under those circumstances

there left no importance in the old Will and the proceeding

would be initiated in accordance with the new Will. That the

fact of the new Will been executed on account of bad behaviour

on the part of Vinod Kumar and Anand Kumar or it has been

executed on account of the death of the wife of Hari Shankar

would not affect the existence of the Will. Accordingly, the

order dated 31.12.1996 of the Trial Court and the order dated

30.5.1998 of the Additional Commissioner are set aside. The

mutation proceedings would be done in accordance with the last

Will dated 10.2.1992 of the deceased."

(underlining is ours)

The aforesaid order acquired finality because the same was not challenged

by respondent No.1 by filing a petition under Article 226 or Article 227 of

the Constitution.

17. The other important fact which needs to be noticed is that the suit fild

by the appellant for eviction of the tenant, i.e., Firm Ramesh Chandra

Dinesh Kumar Agrawal was decreed by the trial Court and possession of the

suit premises was handed over to the appellant. In that suit, respondent No.

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1 had sought his impleadment as party but his prayer was declined by the

trial Court and the revision filed against the trial Court's order was

dismissed by the High Court.

18. We shall now consider whether the appellant had succeeded in

discharging the onus of proving that Will dated 10.2.1992 was validly

executed. For deciding this question it will be useful to notice some of the

precedents in which this Court had considered the mode and manner of

proving a Will. In one of the earliest judgments in H. Venkatachala Iyengar

v. B. N. Thimmajamma (supra), the three Judge Bench noticed the

provisions of Sections 45, 47, 67 and 68 of the Indian Evidence Act, 1872

and Sections 59 and 63 of the 1925 Act and observed:

"Section 63 requires that the testator shall sign or affix his mark

to the will or it shall be signed by some other person in his

presence and by his direction and that the signature or mark

shall be so made that it shall appear that it was intended thereby

to give effect to the writing as a will. This section also requires

that the will shall be attested by two or more witnesses as

prescribed. Thus the question as to whether the will set up by

the propounder is proved to be the last will of the testator has to

be decided in the light of these provisions. Has the testator

signed the will? Did he understand the nature and effect of the

dispositions in the will? Did he put his signature to the will

knowing what it contained? Stated broadly it is the decision of

these questions which determines the nature of the finding on

the question of the proof of wills. It would prima facie be true

to say that the will has to be proved like any other document

except as to the special requirements of attestation prescribed

by Section 63 of the Indian Succession Act. As in the case of

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proof of other documents so in the case of proof of wills it

would be idle to expect proof with mathematical certainty. The

test to be applied would be the usual test of the satisfaction of

the prudent mind in such matters.

However, there is one important feature which distinguishes

wills from other documents. Unlike other documents the will

speaks from the death of the testator, and so, when it is

propounded or produced before a court, the testator who has

already departed the world cannot say whether it is his will or

not; and this aspect naturally introduces an element of

solemnity in the decision of the question as to whether the

document propounded is proved to be the last will and

testament of the departed testator. Even so, in dealing with the

proof of wills the court will start on the same enquiry as in the

case of the proof of documents. The propounder would be

called upon to show by satisfactory evidence that the will was

signed by the testator, that the testator at the relevant time was

in a sound and disposing state of mind, that he understood the

nature and effect of the dispositions and put his signature to the

document of his own free will. Ordinarily when the evidence

adduced in support of the will is disinterested, satisfactory and

sufficient to prove the sound and disposing state of the testator's

mind and his signature as required by law, courts would be

justified in making a finding in favour of the propounder. In

other words, the onus on the propounder can be taken to be

discharged on proof of the essential facts just indicated.

There may, however, be cases in which the execution of the

will may be surrounded by suspicious circumstances. The

alleged signature of the testator may be very shaky and doubtful

and evidence in support of the propounder's case that the

signature, in question is the signature of the testator may not

remove the doubt created by the appearance of the signature;

the condition of the testator's mind may appear to be very feeble

and debilitated; and evidence adduced may not succeed in

removing the legitimate doubt as to the mental capacity of the

testator; the dispositions made in the will may appear to be

unnatural, improbable or unfair in the light of relevant

circumstances; or, the will may otherwise indicate that the said

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dispositions may not be the result of the testator's free will and

mind. In such cases the court would naturally expect that all

legitimate suspicions should be completely removed before the

document is accepted as the last will of the testator. The

presence of such suspicious circumstances naturally tends to

make the initial onus very heavy; and, unless it is satisfactorily

discharged, courts would be reluctant to treat the document as

the last will of the testator. It is true that, if a caveat is filed

alleging the exercise of undue influence, fraud or coercion in

respect of the execution of the will propounded, such pleas may

have to be proved by the caveators; but, even without such

pleas circumstances may raise a doubt as to whether the testator

was acting of his own free will in executing the will, and in

such circumstances, it would be a part of the initial onus to

remove any such legitimate doubts in the matter.

Apart from the suspicious circumstances to which we have just

referred, in some cases the wills propounded disclose another

infirmity. Propounders themselves take a prominent part in the

execution of the wills which confer on them substantial

benefits. If it is shown that the propounder has taken a

prominent part in the execution of the will and has received

substantial benefit under it, that itself is generally treated as a

suspicious circumstance attending the execution of the will and

the propounder is required to remove the said suspicion by clear

and satisfactory evidence. It is in connection with wills that

present such suspicious circumstances that decisions of English

courts often mention the test of the satisfaction of judicial

conscience. It may be that the reference to judicial conscience

in this connection is a heritage from similar observations made

by ecclesiastical courts in England when they exercised

jurisdiction with reference to wills; but any objection to the use

of the word "conscience" in this context would, in our opinion,

be purely technical and academic, if not pedantic. The test

merely emphasizes that, in determining the question as to

whether an instrument produced before the court is the last will

of the testator, the court is deciding a solemn question and it

must be fully satisfied that it had been validly executed by the

testator who is no longer alive."

(emphasis supplied)

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19. The ratio of H. Venkatachala Iyengar's case was relied upon or referred

to in Rani Purnima Devi v. Kumar Khagendra Narayan Dev (supra), Shashi

Kumar Banerjee v. Subodh Kumar Banerjee AIR 1964 SC 529, Surendra Pal v.

Dr. (Mrs.) Saraswati Arora (supra), Seth Beni Chand (since dead) now by Lrs. v. Kamla Kunwar (supra), Uma Devi Nambiar v. T.C. Sidhan (supra), Sridevi v.

Jayaraja Shetty (supra), Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao

(supra) and S. R. Srinivasa v. S. Padmavathamma (supra). In Jaswant Kaur v.

Amrit Kaur, (1977) 1 SCC 369 the Court analysed the ratio in H. Venkatachala

Iyengar's case and culled out the following propositions: -

"1. Stated generally, a will has to be proved like any other

document, the test to be applied being the usual test of the

satisfaction of the prudent mind in such matters. As in the case

of proof of other documents, so in the case of proof of wills,

one cannot insist on proof with mathematical certainty.

2. Since Section 63 of the Succession Act requires a will to be

attested, it cannot be used as evidence until, as required by

Section 68 of the Evidence Act, one attesting witness at least

has been called for the purpose of proving its execution, if there

be an attesting witness alive, and subject to the process of the

court and capable of giving evidence.

3. Unlike other documents, the will speaks from the death of the

testator and therefore the maker of the will is never available

for deposing as to the circumstances in which the will came to

be executed. This aspect introduces an element of solemnity in

the decision of the question whether the document propounded

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is proved to be the last will and testament of the testator.

Normally, the onus which lies on the propounder can be taken

to be discharged on proof of the essential facts which go into

the making of the will.

4. Cases in which the execution of the will is surrounded by

suspicious circumstances stand on a different footing. A shaky

signature, a feeble mind, an unfair and unjust disposition of

property, the propounder himself taking a leading part in the

making of the will under which he receives a substantial benefit

and such other circumstances raise suspicion about the

execution of the will. That suspicion cannot be removed by the

mere assertion of the propounder that the will bears the

signature of the testator or that the testator was in a sound and

disposing state of mind and memory at the time when the will

was made, or that those like the wife and children of the testator

who would normally receive their due share in his estate were

disinherited because the testator might have had his own

reasons for excluding them. The presence of suspicious

circumstances makes the initial onus heavier and therefore, in

cases where the circumstances attendant upon the execution of

the will excite the suspicion of the court, the propounder must

remove all legitimate suspicions before the document can be

accepted as the last will of the testator.

5. It is in connection with wills, the execution of which is

surrounded by suspicious circumstances that the test of

satisfaction of the judicial conscience has been evolved. That

test emphasises that in determining the question as to whether

an instrument produced before the court is the last will of the

testator, the court is called upon to decide a solemn question

and by reason of suspicious circumstances the court has to be

satisfied fully that the will has been validly executed by the

testator.

6. If a caveator alleges fraud, undue influence, coercion etc. in

regard to the execution of the will, such pleas have to be proved

by him, but even in the absence of such pleas, the very

circumstances surrounding the execution of the will may raise a

doubt as to whether the testator was acting of his own free will.

22

And then it is a part of the initial onus of the propounder to

remove all reasonable doubts in the matter."

20. In Uma Devi Nambiar v. T.C. Sidhan (supra), the Court held that active

participation of the propounder / beneficiary in the execution of the Will or

exclusion of the natural heirs cannot lead to an inference that the Will was not

genuine. Some of the observations made in that case are extracted below:

"A Will is executed to alter the ordinary mode of succession

and by the very nature of things, it is bound to result in either

reducing or depriving the share of natural heirs. If a person

intends his property to pass to his natural heirs, there is no

necessity at all of executing a Will. It is true that a propounder

of the Will has to remove all suspicious circumstances.

Suspicion means doubt, conjecture or mistrust. But the fact that

natural heirs have either been excluded or a lesser share has

been given to them, by itself without anything more, cannot be

held to be a suspicious circumstance especially in a case where

the bequest has been made in favour of an offspring. As held in

P.P.K. Gopalan Nambiar v. P.P.K. Balakrishnan Nambiar it is

the duty of the propounder of the Will to remove all the

suspected features, but there must be real, germane and valid

suspicious features and not fantasy of the doubting mind. It has

been held that if the propounder succeeds in removing the

suspicious circumstance, the court has to give effect to the Will,

even if the Will might be unnatural in the sense that it has cut

off wholly or in part near relations. (See Pushpavathi v.

Chandraraja Kadamba.) In Rabindra Nath Mukherjee v.

Panchanan Banerjee it was observed that the circumstance of

deprivation of natural heirs should not raise any suspicion

because the whole idea behind execution of the Will is to

interfere with the normal line of succession and so, natural heirs

would be debarred in every case of Will. Of course, it may be

that in some cases they are fully debarred and in some cases

partly."

23

(emphasis supplied)

The same view was reiterated in Pentakota Satyanarayana v. Pentakota

Seetharatnam (supra).

21. In the light of the above, it is to be seen whether the appellant succeeded

in proving that Shri Harishankar had executed Will dated 10.2.1992 and the

same was duly attested as per the mandate of Section 63(c) of the 1925 Act.

22. In his statement filed in the form of affidavit under Order XVIII Rule 4

Code of Civil Procedure the appellant categorically stated that respondent No. 1

separated from the joint family in 1985 and got a house at Timarni apart from

10 acres land situated at Village Nimacha. The appellant further stated that his

father and respondent No. 1 were running Anand Medical stores as a

partnership which was dissolved and the medical store was handed over to

respondent No. 1; that after dissolution of the partnership, he started a shop of

seeds, fertilizer and pesticides and he and his wife and daughter served the

parents till their death. According to the appellant, after the death of the mother,

his father-in-law had invited his family members including the father for "dehli

chudane" ceremony and at that time his father got prepared Will and signed the

same in the presence of witnesses, who also appended their signatures. The

appellant also stated that he was paying nazul tax, house tax, rent, etc., in

24

respect of 2 acres land and the bungalow. He also stated that the Revenue Board

had passed order for mutation of his name and that in furtherance of the decree

passed in the eviction suit, he obtained possession of the bungalow from the

tenant. Along with the affidavit, the appellant produced several documents

including the receipts showing payment of the rent and various taxes and

conversion of a portion of the agricultural land. He also produced copies of the

judgment and order passed by the Civil Court and the Revenue Board.

23. The appellant was subjected to lengthy cross-examination by the counsel

for respondent Nos. 1 and 2. In reply to one of the questions put by the counsel

for respondent No. 1, the appellant stated that there was a partition in 1985 in

which respondent No. 1 was given 10 acres land at Nimacha and house situated

at Gandhi Chowk, Timarni. In response to another question, the appellant stated

that his father had put signatures on Exhibit D-2 in his presence and that his

father and others did not sign on the first page because the writing was not

complete. The appellant also stated that Kailash Chand (DW-4) had signed

before Sobhag Chand and Sh. S.K. Agarwal had signed after his father and two

witnesses had signed the Will. In reply to the question put by the counsel for

respondent No. 2, the appellant stated that till 1965 all the brothers and parents

lived together and, thereafter, respondent No. 2 separated from the joint family.

In reply to another question, the appellant gave out that Sobhag Chand and

25

Kailash Chand are neither related to his father nor are they his friends but knew

him and they used to visit his in-laws. The appellant also stated that his father

had told the witnesses that he had executed Will because he was happy with the

services rendered by the appellant and his wife. The appellant gave out that the

two attesting witnesses do not belong to his caste and the houses of the persons

belonging to his caste are at a distance from his in-laws house.

24. The evidence of Sobhag Chand (DW-3) and Kailash Chand (DW-4) was

also filed in the form of affidavits. They categorically stated that Shri

Harishankar had read out the Will in their presence and they appended

signatures after Shri Harishankar had signed the same. The attesting witnesses

were cross-examined at length about the time of their attesting the Will. Sobhag

Chand denied the suggestion that he had signed the Will before Shri

Harishankar had signed the same. He expresses his ignorance about the time

when Kailash Chand had come. He also expressed his ignorance as to after how

much time Kailash Chand came to the house of Bal Kishan. Although, there is

some difference about the point of time when the two attesting witnesses

appended their signatures on the Will but both have stood gruelling cross-

examination on the factum of their having signed as witnesses after the

executant, viz., Shri Harishankar had signed the Will in their presence and that

too after reading out the same.

26

25. From what we have noted above, it is clear that the appellant succeeded

in discharging the onus of proving that the Will dated 10.2.1992 had in fact

been executed by Shri Harishankar and he had signed the same in the presence

of the attesting witnesses who also appended their signatures in his presence.

The fact that Shri Harishankar was in a sound state of health (physically and

mentally) is established from the statement of respondent No.2 who

categorically denied the suggestion that the mental and physical condition of his

father deteriorated 5-6 months prior to his death or that he had lost his mental

balance. In his statement, respondent No.1 did not suggest that the physical and

mental health of his father was not good at the time of execution of Will dated

10.2.1992. Not only this, he made the following important admissions:

i) The parents were living with the appellant and during the illness of

mother the appellant's wife used to look after her.

ii) The expenses incurred in the funeral of the mother were paid by the

appellant.

iii) The Board of Revenue decided the case of mutation in favour of the

appellant and he did not challenge the order of the Board of Revenue.

iv) Shri S.K. Agarwal is related to him and he was his counsel before the

Board of Revenue.

27

v) The application for impleadment filed by him in the suit instituted by the

appellant against the tenant was dismissed by the trial Court and the order of the

trial Court was upheld by the High Court.

vi) That the appellant was paying municipal tax / nazul tax and rent in

respect of the property which fell to the share of Shri Harishankar.

26. Thus, even from the statement of respondent No.1 it is established that

the Will (Exhibit D-2) was signed by his father Shri Harishankar and on the

strength of Exhibit D-2 the appellant had succeeded before the Board of

Revenue and the Civil Court.

27. The issue which remains to be examined is whether the High Court was

justified in coming to the conclusion that the execution of Will dated 10.2.1992

was shrouded with suspicion and the appellant failed to dispel the suspicion. At

the outset, we deem it necessary to observe that the learned Single Judge

misread the statement of Sobhag Chand (DW-3) and recorded something which

does not appear in his statement. While Sobhag Chand categorically stated that

he had signed as the witness after Shri Harishankar had signed the Will, the

portion of his statement extracted in the impugned judgment gives an

impression that the witnesses had signed even before the executant had signed

the Will. Another patent error committed by the learned Single Judge is that he

28

decided the issue relating to validity of the Will by assuming that both the

attesting witnesses were required to append their signatures simultaneously.

Section 63(c) of the 1925 Act does not contain any such requirement and it is

settled law that examination of one of the attesting witnesses is sufficient. Not

only this, while recording an adverse finding on this issue, the learned Single

Judge omitted to consider the categorical statements made by DW-3 and DW-4

that the testator had read out and signed the Will in their presence and thereafter

they had appended their signatures.

28. The other reasons enumerated by the learned Single Judge for holding

that the execution of Will was highly suspicious are based on mere

surmises/conjectures. The observation of the learned Single Judge that the

possibility of obtaining signatures of Shri Harishankar and attesting

witnesses on blank paper and preparation of the draft by Shri S. K. Agarwal,

Advocate on pre-signed papers does not find even a semblance of support

from the pleadings and evidence of the parties. If respondent No.1 wanted

to show that the Will was drafted by the advocate after Shri Harishankar and

attesting witnesses had signed blank papers, he could have examined or at

least summoned Shri S. K. Agarwal, Advocate, who had represented him

before the Board of Revenue. On being examined before or by the Court,

Shri S. K. Agarwal could have testified whether he had prepared the Will on

29

pre-signed papers. However, the fact of the matter is that it was neither the

pleaded case of respondent No. 1 nor any evidence was produced by him to

prove that Shri Harishankar and the attesting witnesses had signed the blank

papers and, thereafter, Shri S.K. Agarwal prepared the Will.

29. The mere fact that Kailash Chand lives at a distance of about four

furlong from the house of Bal Kishan (father in law of the appellant) has no

bearing on the issue relating to validity of the Will nor the non-examination

of the persons belonging to the same community has got any relevance. The

absence of a categorical recital in Will dated 10.2.1992 that the earlier Will

was cancelled is also not relevant because once the execution of the second

Will is held as duly proved, the earlier Will automatically becomes

redundant because the second Will represents the last wish of the testator.

30. The fact that the appellant was present at the time of execution of Will

dated 10.2.1992 and that the testator did not give anything to respondent Nos. 1

and 2 from his share in the joint family property are not decisive of the issue

relating to genuineness or validity of the Will. The evidence produced by the

parties unmistakably show that respondent No. 2 had separated from the family

in 1965 after taking his share and respondent No. 1 also got his share in the 2nd

partition which took place in 1985. Neither of them bothered to look after the

30

parents in their old age. The attitude of respondent Nos. 1 and 2 left Shri

Harishankar and his wife with no choice but to live with the appellant, who

along with his wife and children took care of the old parents and looked after

them during their illness. Therefore, there was nothing unnatural or unusual in

the decision of Shri Harishankar to give his share in the joint family property to

the appellant. Any person of ordinary prudence would have adopted the same

course and would not have given anything to the ungrateful children from his /

her share in the property.

31. In view of the above discussion, we hold that the learned Single Judge

was clearly in error in reversing the well-reasoned finding recorded by the trial

Court on the issues of execution of Will dated 10.2.1992 by Shri Harishankar

and its genuineness and validity. Consequently, the appeals are allowed, the

impugned judgement is set aside and the one passed by the trial Court is

restored. The parties are left to bear their own costs.

........................................................J.

[G.S. SINGHVI]

......................................................J.

[SUDHANSU JYOTI MUKHOPADHAYA]

New Delhi,

31

March 13, 2012.