Prakash Soni vs Deepak Kumar .

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6388 OF 2009

Dr. Prakash Soni ..Appellant

Versus

Deepak Kumar and another ..Respondents

JUDGMENT

MOHAN M. SHANTANAGOUDAR

1. This appeal arises out of the order dated 20.04.2006

passed by the High Court of Madhya Pradesh, Indore Bench in

Civil Revision No. 63/2005, reversing the order dated 8.1.2005

passed by the Additional District Judge, Narsinghgarh, District

Rajgarh, Madhya Pradesh in Civil Appeal No. 80-A/2004,

consequently restoring the order dated 11.07.2002 passed by the

Court of the Civil Judge, Class-I, Narsinghgarh, District Rajgarh, Signature Not Verified Digitally signed by NEELAM GULATI Date: 2017.09.16 11:23:36 IST Reason:

Madhya Pradesh in Succession Case No. 3/2002.

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2. Brief facts leading to this appeal are, that the appellant

herein is the husband of Srimati Mooli Swarnkar, who was

working as an Assistant Teacher in Government Girls Higher

Secondary School Narsinghgarh, District Rajgarh, Madhya

Pradesh; Srimati Mooli Swarnkar died on 18.11.2001, on account

of liver cancer and disease of Hepatitis ‘B’. The married couple,

i.e, the appellant and his wife – Srimati Mooli Swarnkar did not

have any issue, and hence the appellant being her husband and

as her only successor claimed to be entitled to receive the retiral

benefits, such as, Pension, G.P.F., Death-cum-Retirement

Gratuity, Family Welfare Fund, Group Insurance Scheme account

etc.

Hence, the appellant filed an application on 7.5.2002

before the Civil Judge, Class-I, Narsinghgarh, District Rajgarh,

Madhya Pradesh, under Section 372 of the Indian Succession Act

(hereinafter referred to as ‘the Act’), for grant of a succession

certificate of his wife late Srimati Mooli Swarnkar, so as to entitle

him to receive the afore-mentioned retiral benefits. The

respondents herein, who were the sons of the brother of late

Srimati Mooli Swarnkar also laid their claim in respect of the

afore-mentioned retiral benefits of late Srimati Mooli Swarnkar, 3

on the basis of the will, said to have been executed by her on

18.11.2001, i.e., on the day of her death. In other words, the

respondents filed counter claim in the application filed by the

appellant under Section 372 of the Act. The respondents further

claimed, that the deceased had submitted nomination forms

dated 16.11.2001 (Ex. D/1 to D/5) to her employer in which the

names of the respondents were mentioned as her nominees.

3. Learned Civil Judge, Narsinghgarh vide his order dated

9.10.2004 passed in Succession Case No.3/2002 dismissed the

application filed by the appellant for grant of a succession

certificate, and allowed the counter claim put forth by the

respondents. Against the said order passed by the Civil Court,

the appellant preferred Civil Appeal No. 80-A/2004 before the

Additional District Court, Narsinghgarh, which came to be allowed

on 8.1.2005 and consequently the order of the Civil Court,

dismissing the claim of the appellant and allowing the counter

claim of the respondents was set aside. In effect, the Additional

District Judge, Narsinghgarh ordered for grant of a succession

certificate to the appellant. However, the judgment of the

Additional District Court was set aside by the High Court of

Madhya Pradesh, as mentioned supra, in Civil Revision No.

63/2005 on 20.04.2006, and the order of the Civil Court rejecting 4

the application for grant of a succession certificate filed by the

appellant was upheld. Hence, this appeal.

4. Learned advocates on both sides have taken us to the

material available on the record. Learned counsel for the

appellant submitted that the signature of Srimati Mooli Swarnkar

affixed on Ex. D/6 (will in question), does not correspond to the

signatures affixed on certain other documents. Learned counsel

for the appellant contended, that the signatures of Srimati Mooli

Swarnkar found on Ex. P/4, D/7 and D/8 do not tally with the

signature found on Ex. D/6 (disputed signature). He further

submitted that it was not at all possible for the deceased Srimati

Mooli Swarnkar to execute the will on the date of its alleged

execution, inasmuch as she was suffering from liver cancer and

Hepatitis ‘B’ disease and was not in a position to take any

decision on her own free will and immediately after the execution

of the will, she expired. The execution of the alleged will is

surrounded by suspicious circumstances, and such suspicious

circumstances are not explained by the respondents.

Per contra, learned counsel for the respondents

contended, that the Civil Court as well as the High Court are

justified in concluding that the will is duly proved, inasmuch as

one of the attesting witnesses who was alive during the relevant 5

point of time had supported the execution of the document in

question. Since, there is no suspicious circumstance, learned

counsel for the respondents prays for upholding the order of the

High Court.

5. The entire case centers around the proof of due

execution of the alleged will. Ex. D/6 is said to have been

executed by the deceased Srimati Mooli Swarnkar on 18.11.2001.

Indisputably, the deceased Srimati Mooli Swarnkar died on

18.11.2001. The nomination forms in favour of the husband –

appellant herein were executed by the deceased on 3.3.1992.

Similarly, nomination with regard to Provident Fund and

Death-cum-Retirement Gratuity were also executed by the

deceased in favour of the appellant. However, just two days prior

to her death, i.e., on 16.11.2001 at about 7 p.m., the deceased

allegedly executed a nomination form as per Ex.D/1 in favour of

the respondents, and that too in Care Well Hospital at Bhopal.

Similarly, other documents produced by the respondents (Ex.

D/2, D/3, D/4 and D/5) were also executed by the deceased in

favour of the respondents at the very point of time. The deceased

allegedly executed the will in question before the Oath

Commissioner on 18.11.2001 as per Ex.D/6 in the early hours of

18.11.2001. The letter allegedly written by the deceased Srimati 6

Mooli Swarnkar as per Ex. D/7 discloses that she has informed

the authorities that the appellant has been asking money from

her and he had beaten her quite often, and hence she is

cancelling the nomination executed in favour of the appellant,

and then she has cancelled the nomination made in favour of the

appellant.

6. Shri Dhannalal Mahavar – respondents’ witness has

deposed that on 18.11.2001 at about 7 to 8 a.m., deceased

Srimati Mooli Swarnkar executed the will and that he signed the

will as an attesting witness. The witnesses on behalf of the

respondents have also deposed, that there was no cordial

relationship between the appellant and the deceased for ten years

prior to her death. They have also deposed about the cancellation

of the nomination made earlier in favour of the appellant.

7. Curiously, the High Court has not at all discussed the

case as put forth by the appellant. We find that the approach of

the High Court is one sided. The non-consideration of the

material placed by the appellant herein before the High Court has

constrained us to verify the entire evidence to satisfy our judicial

conscience. On consideration of the entire material on record, we

find that the will is surrounded by suspicious circumstances.

8. Ex. P/4 discloses that Srimati Mooli Swarnkar attended 7

the school as a teacher up to 1.10.2001, and thereafter she

remained on medical leave. It is also not in dispute, that the

deceased was suffering from liver cancer and Hepatitis ‘B’ disease.

Admittedly, the will was executed between 7 to 8 a.m. on

18.11.2001, and after few hours she expired on the very same

date. The attesting witness of Ex. D/6, namely, Shri Dhannalal

Mahavar (NAW/02) has admitted in the cross-examination that he

is a government hospital compounder. The deceased was being

treated in a hospital at Bhopal. At about 5.30 a.m. on

18.11.2001, a telephone call was received by Shri Brijmohan

Soniji, who is the father of respondent no.1, and immediately

thereafter he arrived at the site, i.e. in the hospital at Bhopal. It

is admitted by the attesting witness and other witnesses who

were allegedly present at the time of the execution of the will

that the hands of Srimati Mooli Swarnkar were shivering while

signing Ex. D/6. At that point of time, Srimati Mooli Swarnkar

was very weak and she was administered drip. The health

condition of Srimati Mooli Swarnkar had deteriorated when the

drip was being administered. Therefore, in our considered

opinion, the first appellate Court was justified in concluding that

the propounder of the will was not successful in proving that the

will was executed in a healthy state of mind as well as body of the

deceased and without any pressure. The will is surrounded by 8

suspicious circumstances mentioned supra. Similar observation

needs to be made in respect of nomination forms also, which were

allegedly executed by the deceased just prior to her death on

18.11.2001, i.e., on 16.11.2001. Admittedly, the deceased was on

medical leave. The nomination forms allegedly signed by the

deceased were placed before the concerned department by the

relatives and other family members of the respondents. Upon

comparison of the disputed and other signatures of the deceased

Srimati Mooli Swarnkar on Ex. P/4, D/7, D/8 and the alleged will

Ex. D/6, the first appellate Court on facts has concluded that the

signatures found on Ex. D/6 were totally different.

9. We find from the records that the condition of the

testator’s mind and body was very feeble and debilitated. The

signature of the testator was allegedly taken on the death bed

while she was administered drip. The dispositions made in the

will 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. 9

Since there are many suspicious circumstances narrated above,

and as we are satisfied that the dispositions made in the alleged

will may not be as a result of testator’s free will and mind, the

Civil Court as well as the High Court are not justified in coming

to the conclusion that the will Ex.D/6 is duly executed by the

deceased. The respondents being the propounders of the will

have failed to satisfy the judicial conscience of this Court

regarding due execution of the will. Since the suspicious

circumstances relate to the genuineness of the signatures of the

testator, as well as the condition of the testator’s mind and the

dispositions made in the will being unfair, the judgment of the

High Court restoring the judgment of the Civil Court is liable to

be set aside.

10. Accordingly, the instant appeal is allowed, the judgment

of the High Court dated 20.04.2006 passed in Civil Revision No.

63/2005, restoring the judgment of the Civil Court dated

9.10.2004 passed in Succession Case No. 03/2002 is set aside,

and the judgment of the first appellate Court dated 8.1.2005

passed in Civil Appeal No. 80-A/2004 is restored. It is held that

the appellant, being successor of the deceased Srimati Mooli

Swarnkar, is entitled to receive all retiral benefits of his wife,

such as, Pension, Gratuity, G.P.F., Family Welfare Fund, 10

Insurance etc. No order as to costs.

…………………………………….J. [ARUN MISHRA]

…………………………………....J. [MOHAN M. SHANTANAGOUDAR] NEW DELHI;

SEPTEMBER 15, 2017.

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ITEM NO.1502 COURT NO.10 SECTION IV-A

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

Civil Appeal No(s). 6388/2009

PRAKASH SONI Appellant(s)

VERSUS

DEEPAK KUMAR & ANR. Respondent(s)

Date : 15-09-2017 This appeal was called on for hearing today.

For Appellant(s) Ms. Pratibha Jain, AOR

For Respondent(s) Mr. Mohd. Parvez Dabas, Adv.

Mr. Uzmi Jameel Husain, Adv.

Mr. Shakil Ahmed Syed, AOR

Hon'ble Mr. Justice Mohan M. Shantanagoudar pronounced the judgment of the Bench comprising Hon'ble Mr. Justice Arun Mishra and His Lordship.

Appeal is allowed in terms of the Signed Non Reportable Judgment.

(NEELAM GULATI) (TAPAN KUMAR CHAKRABORTY) COURT MASTER (SH) BRANCH OFFICER

(Signed Non Reportable Judgment is placed on the file)