Madras High Court
Ammu Balachandran vs Mrs. O.T. Joseph (Died) And Others on 6 April, 1995
Equivalent citations: AIR1996MAD442, AIR 1996 MADRAS 442
JUDGMENT
1. This Appeal coming on for hearing on Thursday, the twenty third and Monday, the twenty seventh day of March, 1995, and having stood over for consideration till this day, the Court made the following order:--
This is an Appeal by the third defendant in T.O.S. No. 5 of 1983, on the file of this Court. It relates to the will alleged to have been executed by late O. T. Joseph who died on 10-5-1967. The will, the genuineness of which is challenged by the appellant, was executed on 28-2-1960. As per the said will, he has appointed his wife Philomina Joseph and one of his sons-in-law by name Thomas P. Peter as executors of the will. The application for getting probate was filed by the widow as O. P. No. 236 of 1982. Since it was contentious, the same was converted into a suit and numbered as T.O.S. No. 5 of 1983. The second defendant is the elder daughter of the deceased. Annie Thomas, the second respondent herein and the appellant are other daughters. Apart from them, the deceased had two more daughters, namely, Celine Thomas and Betty Joseph and two more sons John and James.
2. After the Appeal was filed, the original plaintiff (first respondent herein) died. Respondents 4 and 5 are the sons and Respondents 6 to 9 are the children of Respondents 4 and 5. Respondents 4 to 9 were brought on record a legal representatives of the 1st respondent as per order in C.M.P. Nos. 1111 and 1112 of 1991 dated 14-2-1995.
3. In the application for probate, it was averred that testator died on 10-5-1967 at (Old No. 15), New No. 17, Dr. Muniappa Road Kilpauk, Madras-600010, where he was permanently residing, and he had executed his last will on 28-2-1960 in the presence of witnesses. It was alleged that one of his sons-in-law Thomas P. Peter is also named as Executor. But, since he has no objection in the widow filing the petition for probate, he felt it unnecessary to join in the petition. It is also averred that the total value of the assets which are likely to come into the hands of the executor will be about Rs. 93,000/-. It is also averred in paragraph 6 that immediately after the demise of the testator, all the heirs of the deceased expressed their consent to abide by the terms of the will and suggested that there would not be any necessity for probating the will. However, there seems to be some misunderstanding at present, and, as a matter of caution, the petitioner was advised to have the will probated to avoid any complication in future so that the legatees can enjoy what has been bequeathed to them without any difficulty.
4. The first defendant filed a written statement. In that, she has averred that her father had a heart attack and also was suffering from paralysis. In February, 1960, he was not in a sound state of mind and body, and hence he could not have executed the alleged will. At any rate, she contends that the father was living with his sons, who might have prevailed upon him to execute the alleged will. The sons have taken prominent part and have influenced her father. It is also contended that the name and signature subscribed at the foot of the testamentary paper as the party executing the same are not the proper handwriting of the deceased. She also averred that subsequent to the alleged will dated 28-2-1960, another will has been executed by her father. According to her, M. C. Thomas was one of the attesting witnesses to the subsequent will. It is stated that because there is a subsequent will, no probate can be granted for the will dated 28-2-1960. According to this defendant, P. T. Raphael, the first attesting witness to the will dated 28-2-1960, is a cousin of the plaintiff and he is interested in her. For that reason, she contends that his affidavit and testimony cannot be accepted. She also contended that the bequest made in the will is not natural, considering the circumstances. She says that she was helping her father very much financially, and, under normal circumstances, he would not have completely brushed her aside. It is also stated that before the death of her father, one of the unmarried daughters (mentioned in the will) got married, and if really the will is genuine, he would have modified the will. It is also contended that the alleged will was not executed under free will. His sons ought to have prevailed upon him to write the alleged will. She also accuses of inordinate delay in applying for the probate which, according to her, is not properly explained, and that itself is a suspicious circumstance challenging its genuineness. It is also stated that her husband, even though mentioned as a joint executor, was not shown in the will, and he was not aware of the same. This is also one of the factors to contend that the alleged will is not genuine.
5. The property, according to the first defendant, is worth more than Rs. 5 lakhs, and the same is grossly undervalued by the plaintiff. It is also alleged that the will has not been signed by the testator in all pages. She was very much helpful to her parents. She has sent monthly remittance from 1954 to 1961. She has also given a foreign scooter to her brother at the instance of her father and also a costly electric cooking range to Dr. Ragha-van, who was attending on her father. She says that the alleged will does not reflect the true intention of the testator, that it was not written to the dictate of her father, and that her father was prevailed upon by the sons to execute the will. She has also contended that the statement in the petition that her husband has no objection for filing the petition is a deliberate falsehood since he was not made known of the will at all. The allegation that the heirs of the deceased expressed their consent to above abide by the terms of the will and suggested that there would not be any necessity for probating the will, is also false. She prayed that the suit may be dismissed with costs.
6. In the written statement filed by the second defendant, who supported the first defendant, she has also prayed for the dismissal of the suit with costs. It is her case that the will that is sought to be probated was tampered by her brothers. The plaintiff, who is their mother, is very old and infirm, and she is forced to keep silence due to ill-treatment. She further says that the plaintiff is totally depending on her sons, and therefore, she cannot speak the truth regarding this matter. It is her case that her mother was never treated well by her sons and even when her mother suffered heart attacks and had an operation, her two brothers and their wives left her mother alone, and it was her younger sister (third defendant) who had to come to look after her mother. Her mother habitually used to comptain to her daughter of how lonely she was and that her sons rendered no assistance when she was in need of money and it was only the third defendant who provided her mother with clothes, tonics and money. She also accuses the plaintiff for the inordinate delay in filing the petition for probate.
She also alleges that her mother had been forced to file a petition for probate belatedly because of O.S. No. 766 of 1982 filed against the third defendant at the instigation of the brothers of this defendant. She says that since the third defendant has questioned the authority of the mother over the property, the petition for probate has been filed without any good faith, and that too at the instance of her brothers. She also contends that she, along with the third defendant, has examined the will and has suspicion about the signature that is affixed in the will. She also alleges that even if the signature is found to be genuine, she doubts whether the will has not been forged by substituting the first page. She alleges in paragraph 14 of the written statement that there were many clauses in the will seen by her and her sister which are now not found in the present will sought to be propounded, and, according to her, this is either due to substitution of pages or alternatively due to a fabrication of the whole will with the connivance of the attesting witnesses. She also contends that the plaintiff never showed in original any will to her daughters, and was always evasive and secretive about it. Only when the third defendant questioned about the will, one day, the second son of the plaintiff sent some typed papers stating that it was his father's will in paragraph 20, she further avers that even with regard to the third defendant, the provisions of her father's will have been changed and that there was no stipulation that money and jewels should come to her only at the time of her marriage. The will sought to be probated is sham and fraudulent and, therefore, cannot be given effect to.
7. The third defendant filed a written statement on 8-7-1983, adopting the contentions of the second defendant. But later, the second defendant, on 25-6-1984, filed an application that she may be allowed to withdraw her contest. She also filed an affidavit that she had decided not to contest the case. Since the said application was allowed, the third defendant who had adopted the written statement of the second defendant earlier, filed a separate written statement on 10-7-1984, more or less alleging the same facts.
8, On the above pleadings, the learned Judge who tried the T.O.S., framed the following issues:--
"(1) Whether the will dated 28-2-1960 is the genuine and valid last will of the testator?
(2) Whether the will is the result of undue influence as pleaded by the defendants?
(3) To what relief, if any, are the parties entitled?".
9. The learned Judge held that the will dated 28-2-1960 is genuine and that it is the last will of the testator. The various suspicious circumstances alleged by the appellant and the second respondent herein (first defendant were discussed by the learned Judge to hold that either there is no suspicious circumstance, or if there is any, the same is properly explained by the petitioner (plaintiff). Finally the learned Judge held that the plaintiff is entitled to get the will probated as prayed for. It is against the said judgment, the third defendant has filed this Appeal.
10. The same contentions raised before the learned single Judge were raised before us also.
11. Before we go to the evidence in this case, it is better to discuss the law regarding the proof of will.
12. In (H. Venkata-chala Iyengar v. B. N. Thimmajamma), their Lordships held thus:--
"The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, reference must inevitably be made to the statutory provisions which govern the proof of documents. Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under Section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Sees. 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribed the requirements and the nature of proof which must be satisfied by the party who relies on a document in a Court of law, similarly, Sections 59 and 63 of the Indian Succession Act are also relevant. 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. 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 S. 63 of the Indian Succession Act. As in the case of 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 the such matters.
However, there is one important feature which distinguishes will 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 pro-pounder 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 understanding 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 pro-pounder. 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 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 doubt in the matter.
Apart from the suspicious circumstances above referred to in some cases the will propounded disclosed 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 benefits 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 suspicious by clear and satisfactory evidence. It is in connection with wills that present such suspicious circumstances that decision of English Courts often mention the test of the satisfaction of Judicial Conscience. The test merely 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 deciding a solemn question and it must be fully satisfied that it had been validty executed by the testator who is no longer a.ive.
It is obvious that for deciding material questions of fact which arise in applications for probate or in actions on wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. It may, however, be stated generally that a propounder of the will has to prove the due and valid execution of the will and that if there are any suspicious circumstances surrounding the execution of the will the propounder must remove the said suspicions from the mind of the Court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case on the nature and quality of the evidence adduced by the parties."
13. In (Rani Purnima Debi v. Kumar Khagendra Narayan Deb their Lordships of the Supreme Court followed the decision (supra). In that case, the will was registered. Even if the will was registered, their Lordships held that the registration by itself is not sufficient to prove the execution, if there are suspicious circumstances. In that case, the suspicious circumstances was regarding the exclusion of a natural heir for whom no provision was made, and there was no proper explanation for excluding the heir. But their Lordships held that registration of a will goes along way to prove its genuineness. But if the registration was made in such a manner that was brought him to the testator that the document of which he was admitting execution was a will disposing of his property and thereafter he admitted its execution and signed it in token thereof, the registration will dispel the doubt as the genuineness of the will. But if the evidence as to registration shows that it was done in a perfunctory manner, that the officer registering the will did not read it over to the testator or did not bring home to him that he was admitting the execution of a will or did not satisfy himself in some other way (as, for example, by seeing the testator reading the will) that the testator knew that it was a will the execution of which he was admitting, the fact that the will was registered would not be of much value. Their Lordships also took judicial notice of the fact that the registration may take place without the executant really knowing what he was registering.
14. The above decision has some importance in this case, since one of the suspicious circumstances alleged by the appellant is that the will is not registered. How far the same is satisfactorily explained or whether that is a suspicious circumstance at all, will be considered later.
15. In (Smt. Indu Bala Bose v. Manindra Chandra Bose) also, their Lordships have held that the onus is on the propounder to remove all doubts and explain the circumstances to the full satisfaction of the Court. Their Lordships have held thus:--
"The mode of proving a Will does not ordinarily differ from that of proving any other document except to the special requirement of attestation prescribed in the case of a Will by Section 63 of the Succession Act. The onus of proving the Will on the pro-pounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before the Court accepts the Will as genuine. Even when circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court by completely removing all legitimate suspicions.
The suspicious circumstances may be as to the genuineness of the signature of the testator, the condition of the testator's mind, the dispositions made in the Will being unnatural, improbable or unfair in the light of relevant circumstances or there might be other indications in the Will to show that the testator's mind was not free. If the propounder himself takes a prominent part in the execution of the Will which confers a substantial benefit on him, that is also a circumstance to be taken into account.
If the propounder succeeds in removing the suspicious circumstances the Court would grant probate, even if the Will might be unnatural, and might cut off wholly or inpart near relations."
Thier Lordships further gave the meaning for the words 'suspicious circumstance' thus:--
"Any and every circumstance is not a "suspicious" circumstance. A circumstance would be "suspicious" when it is not normal or is not normally expected in a normal situation or is not expected of a normal person."
16. In (Ram Piari v. Bhagwant), the same point came for consideration. In paragraph 2 of the judgment, their Lordships have held thus: --
"Soft corner for grandchildren or like-ability for a son or daughter of their issues is not uncommon to our society. Rather at times it becomes necessary either to provide for the lesser fortunate or to avoid the property from passing out of the family. But when disputes arise between heirs of same degree, and the beneficiary even chooses to deny the blood ties, and that too unsuccessfully, then Court's responsibility of performing its duties carefully and painstakingly multiplies. Unfortunately it was not properly comprehended by any of the Courts, including the High Court which was swayed more by happy marriage of appellant, a consideration which may have been relevant for testator but wholly irrelevant for Courts as their funclion is to judge not to speculate. Although freedom to bequeath one's own property amongst Hindus is absolute both in extent and person, including rank stranger, yet to have testamentary capacity or a disposable mind what is required of propounder to establish is that the testator at time of disposition knew and understood the property he was disposing and persons who were to be beneficiaries of his disposition. Prudence, however, requires reason for denying benefit to those who too were entitled to bounty of testator as they had similar claims on him Absence of it may not invalidate a Will but it shrouds the disposition with suspi-cion_as it does not give any inclining to the mind of the testator to_enable the Court to judge if the disposition was voluntary act. Taking active interest by propounder in execution of Will raises another strong suspicion. In H. Venkata-challiah v. N. Thermajamma it was held to render the Will infirm unless the propounder cleared the suspicion with clear and satisfactory evidence. Mere execution of Will, thus, by producing, prescribing or attesting witness or proving genuineness of testator's thumb impressions by themselves was not sufficient to establish validity of Will unless suspicious circumstances, usual or special, are ruled out and the Court's conscience is satisfied not only on execution but about its authenticity."
From the above paragraph, it is clear that if sufficient explanation is given in the Will for not providing a legal heir, that itself will dispel the suspicious circumstances. It is not the explanation by the propounder for not providing a legal heir but the explanation by the testator himself why he intentionally excluded that legal heir or only provided less for him.
17. In (Kalyan Singh v. Smt. Chooti), their Lordships held that the validity of a Will cannot be determined by merely considering the evidence of the propounder. The Court should look into the surrounding circumstances as well as inherent improbabilities of the case. The relevant portion of the decision reads thus:--
''It has been said almost too frequently to require repetition that a will is one of the most solemn documents known to law. The executant of the Will cannot be called to deny the execution or to explain the circumstances in which it was executed. It is, therefore, essential that trustworthy and unimpeachable evidence should be produced before the Court to establish genuineness and authenticity of the Will. It must be stated that the factum of execution and validity of the Will cannot be determined merely by considering the evidence produced by the propounder. In order to Judge the credibility of witnesses and disengage the truth from falsehood the Court is not confined only to their testimony and demeanour. It would be open to the Court to consider circumstances brought out in the evidence or which appear from the nature and contents of the documents itself. It would be also open to the Court to look into surrounding circumstances as well as inherent improbabilities of the case to reach a proper conclusion on the nature of the evidence adduced by the party......Where there are suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the Court before the Will could be accepted as genuine..... ......"
On facts, their Lordships have held that there are suspicious circumstances and the same have not been properly explained. The long delay in producing the Will was also taken as a circumstance for refusing probate.
18. The decision of our High Court reported in (1994) 1 Mad LJ 216 has also relevance. In that decision, it was held thus:--
"Sec. 68 of the Evidence Act provides that if a document is required by law to be attested, it shall not be used as evidence until one of the attesting witnesses 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. This section lays down the mode of proof of a Will by calling at least one witness but it does not set out or purport to define what is required to be proved. That, however, has been laid down in Sec. 63(c) of the Succession Act. Even if one witness who is called is able to depose to all that is required, by Sec. 63(c) of the Succession Act, for the valid execution of a Will, that would suffice for Sec. 68 of the Evidence Act. Sec. 68 of the Evidence Act does not, in any manner, change or alter the requirements to be proved by Sec. 63(c) of the Succession Act. A reading of Sec. 63(c) of the Succession Act with Sec. 68 of the Evidence Act establishes that a person propounding a Will has to prove that the Will was duly and validly executed and that should be done by not merely establishing that the signature on the Will was that of the testator but also that the attestations were made in the manner contemplated by clause (c) of Sec. 63 of the Succession Act. It is not necessary under Section 68 of the Evidence Act to examine both or all the attesting witnesses."
Regarding the non-registration of Will, the same decision says that the registration is not necessary for proving the genuineness of a Will, though it will go a long way to dispel the doubt regarding the same. Regarding nonregistration, it was held thus:--
"It is true that registration will go a long way to dispel the doubt as to the genuineness of the Will. But where the execution is proved by cogent and acceptable evidence, the Court should not disbelieve the Will merely because it is not registered."
19. One among us (Srinivasan, J.), in 1990 (1) Law Weekly 27 (sic); (Vyjanthimala Bali, Smt. v. Rattan Chaman Bali) had theoccasion to consider a question regarding the proof of Will. Srinivasan, J. has given an exhaustive study of the entire case-law regarding the same and has held thus:--
"The Supreme Court indicated in 1974 SC 1999 that the suspicious circumstances surrounding the execution of the Will would be (a) where the signature is doubtful, (b) the testatories of feeble mind or is overawed by powerful minds interested in getting his property, (c) where in the light of (he relevant circumstances the dispositions appear to be unnatural, improbable and unfair and (d) where there are other reasons for doubting that the dispositions of the Will are not the result of the testator's free Will and mind. It was held that in such cases, where there may be legitimate suspicious circumstances, they must be reviewed and satisfactorily explained before the Will is accepted."
20. In (Girja Datt Singh v. Gangotri Das Singh), their Lordships held that the initial burden of proving that the Will was executed by the testator is on the pro-pounder but when undue influence, fraud and coercion are alleged, it is on the persons contesting the Will on those grounds, to prove the same.
21. The above are the principles on the basis of which a finding regarding the genuineness of a Will has to be arrived at. It also follows that if the provisions of the Will are natural and rationale in character, the question of challenging the Will on the above grounds loses much of its importance. Further, if the testator himself has explained the reason why he does not want to provide a particular heir, a suspicious circumstance cannot be alleged, if the execution is properly proved.
22. Long delay in producing the Will and getting it probated, if properly explained, and if the execution and attestation are properly proved also, is of no avail in granting the probate.
23. In the light of the above principle, let us consider whether the Will in question has been properly proved.
24. The propounder has to 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. If 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, the Court will be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken as discharged on proof of the essential facts above indicated.
25. To prove the Will, P. W. 2, one of the attestors has been examined. Section 68 of the Evidence Act makes it obligatory on the part of any person who relies on a Will to examine at least one attestor. The Will is attested by two witnesses. One of the attestors is P. W. 2. The second attestor is one M. C. Thomas, who is admittedly dead, on the date when the petition was filed. The other witness who has spoken regarding the proof of the Will is the petitioner herself. The Will is not registered. P.W. 2 is the cousin brother of the plaintiff, i.e., the uncle of the appellant. M. C. Thomas the other attestor is not shown to be related to any of the parties. It is in evidence that P.W. 2 was very much intimate to both the deceased and the plaintiff, in 1950, he was living with them. In 1950, he got married and thereafter he was a daily visitor to the house of the deceased. He was moving with them as a member of the family. In fact, when one of the daughters of the deceased was baptised, P.W. 2 was the God father. It is also in evidence that he was taking the appellant to many places and they were moving so close to one another. P.W. 2 got a job at the instance of the deceased. The relationship of P.W. 2 with the plaintiff is taken as a ground by the appellant to contend that he should not be believed.
26. The proof regarding the execution entirely depends upon the appreciation of the evidence of P.W. 2. The learned Judge before whom P.W. 2 was examined, had the opportunity to see him and appreciate his evidence.
27. In his evidence, P. W. 2 has stated that (he Will dated 28-2-1960 (Ex. P-l) was prepared under ihe guidance of an Advocate, Mr. C. T. Vargheese, who was their family friend. After the same was prepared, the testator called ihe witnesses to get into the room and requested them to sign as witnesses to the Will, So saying, the testator put his signature and then he and M. C. Thomas put their signatures as attestors. He has further said that all the three put the signatures in the presence of each otht;r. He also identified the signature of the testator and also that of the other attestor M. C. Thomas. Along with the petition for probate, he has also filed an affidavit. Even though P.W. 2 was cross-examined for more than a day, nothing useful was brought out from his examination. In this connection, the only allegation against P.W. 2 is that he is closely related to the plaintiff and, therefore, he will speak only for her. In this connection, it is better to note that even after the death of Joseph and even while the proceedings were pending before Court for probate, the appellant herein was having correspondence with the attestor. Ex. D-15 is one of the letters written by the attestor P.W. 2 to the appellant. It is dated 19-10-1972. In that letter, he gives a summary of his relationship with the family. He was attached and affectionate towards the appellant and her younger sister. From that letter, it is also clear that subsequent to the death of the testator, there were some talks about the Will and as to how it should be implemented. P.W. 2 writes to the appellant that he has mediated with others and he wanted that somehow or other the matter should be settled for which he seeks the cooperation of the appellant. In that letter, he gives some details of the Will. He states that the mother has a right of enjoyment, take the inc ome, and there is also a provision for payment of Rs.5,000/- to each of the two unmarried daughters, if they got married after the testator's death. From the letter, it is. clear that the apprehension of the appellant was that she may not get anything if she wa.s married before her father's death. The said apprehension of the appellant was sought to be sorted out by virtue of a settlement. From that letter, it is clear that the appellant was also made known about the Will and also about the provision made therein, for her. Of course, the appellant has a case that the Will mentioned in Ex. D-15 is not the Will that is sought to be propounded, but a later Will alleged to have been executed some time in September 1964. How far the appellant is successful in making out an alternate case will be dealt with later.
28. While P.W. 2 was examined, no question was put to him about any Will of 1964, and it is in evidence that P.W. 2 was an attestor only for one Will which was executed in 1960. Ex. D-15 also makes mention of a Will to which P.W. 2 is an attestor. P.W. 2 also speaks that at the time when the testator signed the Will, he was in a position to understand the nature and effect of the dispositions. He is also very clear that the document which he attested was a typed one and the same was typed in an Advocate's office. He also said that the Will covered about 21/2 pages. He said that he was not present when the instructions were given to the Advocate for preparation of the Will. He also said that he is interested both in the testator and his wife, she being his cousin sister. Not only that, the testator got him a job and he was living in his house and he was very fond of him. P.W. 2 further says that he was treated by the deceased as his own son. He also says that all daughters of the deceased are in very affluent circumstances. A suggestion . was put to the witness that he is speaking on the side of the plaintiff since he got employment for his son through the influence of the testator's brother. The said suggestion was denied by him. He said that his son got the employment on merits when he was successful in the examination. P.W. 2 was examined in March, 1984. From Ex. D-15, it is clear that even in 1971, he was aware of the Will and he wanted to settle the difference of opinion among the members. He also said that even in 1981, he had some correspondence with the appellant and he used to reply for the letters sent by the appellant. He also said that he sent a copy of the Will as requested by the ppellant. A question was put to him whether at the time he attested the Will, pages 1 and 2 were with him at all. He answered that those two papers were pinned together. He also affirmed that the testator, at the time of his death, was quite healthy and also was in a sound state of mind.
29. When he was examined on 30-3-1984, some more questions were put to him. It is seen that to some of the questions, the attestor said that he came to know about the contents of the will only in 1981 and not before that. An argument was put forward on the basis of the said answers that if he came to know about the Will only in 1981, the Will mentioned in Ex. D.I5 cannot be the same. We must note that the Will that is sought to be propounded is of the year 1960, and he is giving evidence more than 20 years after. Nobody has a case that P.W. 2 has attested two Wills. Even according to the evidence of the appellant, the Will of 1964 was attested by her father's friend by name Philip and Abraham. So, naturally, the statement of the attestor that he came to know about the contents of the Will only in 1981, cannot be correct. On going through the evidence of P.W. 2 we can only affirm the findings of the learned Judge, that the Will was properly executed and attested.
30. In this connection, the evidence of P.W. 1 (plaintiff) is also relevant. She also speaks that she was also present when Ex. P-l was signed and attested by the testator and the attestors. She also says that after the same was executed, it was kept in the almirah in the house, and she took possession of it immediately after the death of her husband. While she was examined, no question was put to her about any Will alleged to have been executed in September, 1964.
31. Long before the petition was filed in Court, Ex. D-15 was written by P.W. 2 to the appellant. We find that the misunderstanding was continuing and the mother somehow or other wanted to settle the matter. She was very much affectionate towards the appellant and her other daughters, and she used to write to them. We also find that during the years 1971 to 1975, she was in financial difficulties. The sons were not helping her to her expectations. She wrote Exs. D-l, D-2 and D-3 letters to the appellant. We also find that in between, she also wrote Ex.. D-5 letter. It was sent in a sealed cover. The letter is in Mala-yalam. It is dated 22-6-1974. P.W. 1 speaks that she does not know to write English. The letter Ex. D-5 is addressed to her sons. She writes the letter at a time when she was about to undergo an operation. Even before that time, she was not feeling well. From the cover, it is seen that the same is addressed to the appellant, but the letter inside the cover is addressed to her sons. The covering letter is not produced though the appellant admitted that there was a covering letter. She would say that it is now missing. In Ex. D-5, the plaintiff has written that the appellant should be paid Rs. 5,000/- and ornaments worth 15 sovereigns as stated in Papa's Will. She requests her sons that whenever the appellant demands the same, they must pay it without putting the appellant to difficulties. The said letter also has some relevance to prove the genuineness of Ex. P1. A reading of Ex. P1 will show that in so far as the appellant is concerned, the father had provided only Rs. 5.000/- and jewels worth 15 to 20 sovereigns at the time of her marriage. It is in evidence that the appellant got married before the death of her father (the testator) a nd nothing was given to her as dowry. The mother, even after the marriage of the appellant, continued to be affectionate and she wanted her sons to pay the same whenever the appellant demanded. This also shows that the plaintiff was in possession of the Will and she wanted to implement the Will irrespective of the legal implications as suggested in Ex. D-15 by P.W. 2. P.W. 1 was also cross-examined to a great length. But we. do not find any circumstance which goes against her case. At the time when P.W. 1 was examined, she was more than 78. While she was examined on 19-1-1984, she stated that the testator has signed the first page and last page. On the same date, further down she has stated that she does not know where all the testator has signed, but she can make out wherever he has put his signature. In view of the first answer, an argument was put forward that the Will that is produced before Court is not the Will, or at least there is a substitution of the first page. In the Will that is sought to be pro-punded, "there is no signature on pages 1 and 2. Only on the third page, we find the signature; of the testator. We have already said that she has given evidence long after the execution of the Will and at that time (of giving evidence) she was more than 78. She also co'frects herself in the subsequent answer that she does not remember where all her husband had signed, but added that she can identify the signature wherever he had affixed the same. In view of the subsequent answer given by her on the same date without any interval, no argument can be advanced on the basin of the first answer.
32. In this connection, it is also worthwhile to note that P.W. ! has stated that all the daughters have promised that so long as s'he its alive, she will not be dragged to Court, and she has also explained the delay in filing the petition. Considering the evidence of P.Ws. 1 and 2, the finding of the learned Judge regarding the execution of the Will has only to be upheld.
33. Once we have found that the Will was executed by the testator, w.e have to find out whether there are any suspicious circumstances, which vitiate the Will. The suspicious circumstances that are brought to our notice are : (1) Non-registration of the Will; (2) Application for probate has been filed 14 years after the death of the deceased; (3) Unnatural bequest provided in the Will; (4) P.W. 2 is closely related to the plaintiff (P.W. 1), and, therefore, his evidence cannot be believed; (5) There is another Will which has been suppressed by the plaintiff and the brothers of the appellant; and (6) The Will does not contain signatures in pages 1 and 2, and pages 1 and 2 are also not numbered in the Will. It is a typewritten one, and even if the testator has signed the Will, the document that i s produced before Court is a substituted Will, and not the Will that was originally written.
34. We shall deal with the circumstances mentioned above, one by one.
35. Regarding the non-registration of the Will, it is settled law that a Will need not be registered. As early as in AIR 1939 Cal 87 (Kristo Gopal Nath v. Baidya Nath Khan), a Division Bench of that High Court has held thus:--
"The mere fact that a Will is not registered does not make it improbable, much less impossible, that the Will was executed."
36. In (Nand Kumar Singh v. Chander Kishore Saran), following the decision of the Calcutta High Court in AIR 1939 Cal 87 (supra), a Division Bench of that High Court has held thus :--
"The mere fact that a Will is not registered does not make it improbable, much less impossible, that the Will was executed."
37. The Supreme Court had also occasion to consider the same question. In (Ishwardeo Narain Singh v. Kamta Devi), their Lordships have held thus:--
"That as there was nothing in law which requires the registration of a Will and as wills are in a majority of cases not registered at all, to draw any inference against the genuineness of the Will on the ground of its non-registration was wholly unwarranted."
In that case also, their Lordships were construing the genuineness of an unregistered. Will. After considering the entire evidence, their Lordships set aside the judgment, of the Calcutta High Court and held that the Will is genuine. The finding of the High Court that the non-registration was a suspicious circum- stance was set aside.
38. In (supra), their Lordships only held that the registration of a Will goes a long way in proving its genuineness, but from the mere fact that the same is not registered, an inference cannot be drawn that the Will is not genuine. The said interpretation was followed by this Court in the decision reported in (1994) 1 MLJ 216 (supra), to which one among us (Sriniva-san, J.) is a party. In view of the settled law, the non-registration cannot be taken as a circumstance which vitiates the Will. In this connection, it is also worthwhile to note that even if the Will is registered, that will not prove the execution. It is the executed Will that is registered. So, even before the registration, the Will comes into the scene. It is only for the purpose of proving its genuineness or its authenticity, a subsequent registration is effected. If the Will is properly executed and that is proved before Court, merely because it not registered, no inference can be drawn against the same.
39. The second suspicious circumstance that is alleged is, long delay in filing the petition for probating the Will. The plaintiff has stated the reason why she delayed the filing of the petition. According to her, after the testator's death, all the legal heirs agreed to abide by the provisions contained therein, and every one thought that there was no necessity to get a probate. It has also come out in evidence of P.W. 1 and also D.W. 1 that both parties wanted to avoid Court at least during the lifetime of the plaintiff. The necessity for filing a petition before Court arise only when the appellant put forward a claim over the building which is the subject matter of the Will. It is in evidence that long after the death of the testator, the appellant and her husband began to reside in the scheduled building. The appellant's husband was also paying the rent and was issuing receipts to the plaintiff. From the Will, it is clear that the mother was entitled to realise the entire rent and appropriate it for herself, and she had a right of enjoyment till her lifetime. Before the appellant began to occupy the schedule building, there were other tenants who were paying the rent to the plaintiff. It is also clear from evidence that it was the only source of livelihood for the mother (plaintiff). When that was defaulted, demands were made by the mother for paying the same. Finally, she has to approach the Court. At that time, the appellant put forward a claim that she is a co-owner, and that she is not liable to pay rent. Naturally, when such a defence was taken the plaintiff was compelled to move the Court for getting a probate. Till that claim was put forward by the appellant, there was no necessity for getting a probate. Till that time, the appellant was also not putting forward any claim over the building.
40. That apart in view of the decision of the Privy Council in AIR 1945 PC 105 (Manindra Chandra Lala v. Mahalaxmi Bank Ltd.), the said quesiion also has to be answered only against the appellant. It was held in that decision thus :--
"Delay in applying for probate miturally gives rise to some suspicion but when the execution and attestation of the Will is proved the suspicion no longer operates."
The learned Judge has believed the evidence of P.W. 1. Further, we have held that the Will was properly executed by the testator and also properly attested. In view of that finding also we find that even if there is any delay, the same is properly explained and that cannot be treated as a suspicious circumstance for denying a probate.
41. The third suspicious circumstance alleged by the appellant is that there is unnatural bequest provided in Ex. P-l. In this connection, it is better to look into the law reported in AIR 1962 Andh Pra 180 (sic), where a Division Bench of that High Court, following the earlier decisions, has held thus:--
"As to the second rule formulated by Baron Parke, it has been pointed out by Lindley and Davy L. JJ. in Tyrrell v Painton, 1894 p. 151 that it is not confined merely to a case in which a Will is prepared by or on instructions of the person taking large benefits under it, but, extends to all cases in which circumstances exist which excite the suspicion of the Court. The principle of the decision in 1894, p. 151 has been consistently upheld in several cases by the Privy Council (vide Sarat Kumari Bibi v. Sakhi Chand, 56 Mad LJ 180 : (AIR 1929 PC 45) and Vellaswamy Servai v. Sivaraman Servai, 58 Mad LJ 114 : (AIR 1930 PC 24)). The suspicion referred to in the decision of 1894, p. 151 must be, as pointed out by Jenkins, C.J. and Woodroffee, J. in Jarat Kumari Dassi v. Bissessur Dutt, (1912) ILR 39 Cal 245.
"one inherent in the transaction itself, and not the doubt that may arise from a conflict or testimony which becomes apparent on an investigation of the transaction."
What these suspicious circumstances are, cannot be defined precisely, or enumerated exhaustively. They must depend necessarily upon the facts of each case. Though a propounder has the obligation to prove the Will in accordance with law and remove all well grounded suspicions, the quantum of proof that can be expected cannot conform to scientific exactitude or mathematical precision. The standard of proof can only be one that will satisfy a normal prudent person.
It may, however, be observed that when a question arises as to whether the Will is genuine or a forgery, normally the fact that nothing can be said against the reasonable nature of the provisions will be a strong and material element in favour of the probabity of the Will (vide Bamasundari Debi v. Tara Sundari Debi, (1892) ILR 19 Cal 65 (PC)). In Ml. Jagrani Koer v. Durga Parshad, ILR 36 All 93 at p. 98 : (AIR 1914 All 72) (PC). Lord Shaw observed as follows:--
"In the case of a Will reasonable, natural and proper in its terms, it is not in accordance with sound rules of construction to apply to it those canons which demand a rigorous scrutiny of documents of which the opposite can be said, namely, that they are unnatural, unreasonable, or tinged with impropriety."
These principles long established by the wisdom of the Judges of the Highest Courts are not valued only for general guidance, for ultimately, whether a Will has been really executed by the testator in a sound and disposing state of mind is purely a question of fact which will have to be decided in each case on the circumstances disclosed and on the nature and Auality of the evidence adduced."
If the bequest is reasonable and rationale in character, the allegation of suspicious circumstance loses much of its importance.
42. The same High Court, namely, the Andhra Pradesh High Court, in another Division Bench Judgment reported in (1978) 1 Andh LT 407 (K. Jwala Narasimha Reddy v. Narayana Reddy), has held thus :
"where suspicion arises from the nature of the case put forward by the person claiming under the Will, he alone should remove that suspicion which his case creates. If, however, suspicion against the Will arises from the facts and circumstances of the case put forth by the opposite side, then the court should see whether those facts and circumstances giving rise to such a suspicion are proved before calling upon the claimant under the Will to explain or remove such a suspicion. The intention of the testator as declared in the Will disposing his property is of'paramount importance. The very first question to be considered is whether the dispositions in the_Will_ are natural, fair, reasonable and probable. That goes a long way in effecting the theory of vitiating suspicious circumstances, xxx xxx "The suspicions on the basis of which a Will can be invalidated should be legitimate and well founded. They must be inherent in the transaction itself which is challenged. Mere conflict of testimony cannot be raised to the level of legitimate and well-grounded suspicious circumstances which are capable of vitiating the execution of the Will itself."
We have already referred to (supra). In that case, their Lordships held that although freedom to bequeath one's own property amongst Hindus is absolute both in extent and person, including rank stranger, yet to have testamentary capacity or a disposable mind what is required of propounder to establish is that the testator at time of disposition knew and understood the property he was disposing and persons who were to be beneficiaries of his disposition. Prudence, however, requires reason for denying benefit to those who too were entitled to bounty of testator as they had similar claims on him. Absence of it may not invalidate a Will but it shrounds the disposition with suspicion as it does not give any inkling to the mind of the testator, to enable the Court to judge if the disposition was voluntary act. From this, it is clear that if reason is provided in the Will itself for disinheriting a heir or for giving only a lesser share, that removes the suspicious circumstances.
43. Now let us consider whether the bequest made in Ex. P.1 is natural.
44. The testator had five daughters, two sons and a widow, at the time of his death. He was not a millionaire. He had only one building to bequeath, and that too having an area of 23/4 grounds. On the date when he died in 1967, the value of the property was not that much. We also find that he was in great difficulties, and, apart from the said asset, he has not accumulated anything during his lifetime. From the evidence also, it is clear that he had to mortgage the same twice or thrice and he had to borrow even an amount of Rs. 150/ - on the basis of a promissory note, But during his lifetime, he maintained his wife and children properly and was having a decent living. The above facts are very clear from Ex. D.20, a letter written by the wife of P. W. 2 to one of the daughters of the testator, in 1982, and also from Ex. P-6 and P-8. This being the financial position of the testator, he cannot provide everyone according to their requirements. After giving the names of all his daughters, he says that in so far as his eldest daughter is concerned, he is not providing anything to her, because, she has been given dowry and also because she is in affluent circumstances. At the same time, he did not forget to provide to his grand-daughter Minni. Of course, it is a small amount. To the second daughter Annie, he says, she was not given any dowry, and, for that reason, even though she is not provided with anything, her daughter Neena must be given Rs. 2,500/- at the time of her marriage or earlier, if required. Likewise, in so far as. the third daughter Celine is concerned, he says that because she was given dowry, she need not be provided with anything. At the time when. Ex. P. 1 was executed, the appellant and her younger sister alone remained unmarried. Hence, in so far as they are concerned, he had stated that they must be given Rs. 5,000/- each and also ornaments worth 15 to 20 sovereigns. This, he says, must be provided to them by collecting the rent from the upper portion of the building and by keeping it in bank deposit separately. In so far, as his widow and tons are concerned, he gave them a right of enjoyment. He did not provide any absolute right to any of them. He further said that the right of enjoyment must be along with the unmarried daughters and the ultimate ownership must vest with the children of his sons. A reading of the Will makes it clear that he did not make any distinction between his children and if any distinction had been made, a reason has also been assigned for the same. He treated all of them equally. If the sons had influenced the father, he would have provided them with the ownership of the building. What he has given them is only a right of enjoyment along with others, and, during the lifetime of the widow, they are not entitled to get anything from the building An argument was taken that testator had thought of his daughters-in-law at a time when they had not been married. But at the same time, he had not provided anything for his daughters. The said argument has no merit. When we take the case of his (testator's) own daughters, what he says is, that they will be given dowry. To those daughters to whom dowry has been given, nothing is provided. To the married daughters to whom dowry was not given, provision is made to the grandchildren. It is nothing surprising that the testator had provided for the widow and sons, because, they form the testator's family. But, so far as the daughters are concerned, they go out of the family. So, it is not a case where a different treatment has been given. A reading of the Will makes it clear that the provision in the Will is natural.
45. In this connection, certain other factors are also necessary to be considered. The second defendant filed her written statement on 7-7-1983 and the appellant (3rd defendant) filed a memo on 8-7-1993 adopting the written statement of the 2nd defendant. After the issues were settled, the trial began on 15-7-1983. P.W. 1 was examined on various dates between 15-7-1983 and 16-2-1984. P.W. 2 was examined on various dates between 16-3-1984 and 30-3-84. The examination of the appellant (third defendant) began on 12-7-1984 and it was completed on 3-9-1984. After the third defendant began to give her evidence, she filed the present written statement on 16-7-1984. By that time, even her chief-examination was over. She filed an application requesting for permission to file a written statement on the ground that the second defendant had withdrawn from the contest. Even in the written statement filed on 16-7-1984 she has not stated that her father has executed a Will in September, 1964. Her pleadings are as vague as they could be. She was also questioned about the vagueness. She says that she has purposely put in vague pleadings and that she is definite only at the time of her examination. Even according to D.W. 1, she saw the alleged Will sometime in December, 1964. So far as she was concerned the provisions were similar. She further says that the ultimate ownership over the property vested with the children of the sons and all the unmarried daughters were provided only with a right of enjoyment. Even though there is no pleading or evidence to substantiate the same, even if we believe the evidence of D. W. 1, one thing is clear, i.e., the father wanted that the ultimate benefit must go only to the grandchildren born to the sons, and the daughters should not be provided with any portion of the ownership. We are not saying that there is a subsequent Will as alleged by the appeliant, but this is a circumstance to prove that the testator intentionally did not want to provide any portion of the building to any of his daughters. That is also, a circumstance to prove the natural bequest provided under Ex.P-1.
46. Regarding the contention that P. W. 2 is closely related to P.W. 1, and, therefore, he cannot be believed. We have already answered this in the earlier part of this judgment. According to us, he is the best of persons who can be relied on both by. the deceased, plaintiff and by Court, and he has no axe to grind, and he has not gained anything by creating the Will. He is equally related to all. Hence the said convention is also rejected.
47. We have already stated that the contention regarding the existence of another Will is not raised by any of the daughters. Of course, in paragraph 14 of the written statement filed by the second defendant, there is a mention about different bequests. But the same is also vague. It reads thus:--
"This defendant states that there were many clauses in the Will seen by her and her sister which are now not found in the present Will sought to be propounded and this is either due to substitution of pages or alternatively due to a fabrication of the whole Will with the connivance of the attesting witnesses." .
In this connection, paragraph 5 of the written statement of the third defendant is also relevant. In that, she has stated that there is a subsequent Will by her father and M. C. Thomas was one of the attestors to the subsequent Will. We have already stated that M. C. Thomas is one of the attestors to Ex. P-l. In that written statement also, no further details are given. When the appellant (third defendant) was examined, she said that the attestors to the alleged Will of September, 1964 are her father's friends Philips and Abraham. No attempt was made to prove the existence of such a Will, nor any of the attestors has been examined. We are well aware that in the case of an application for probate, the pleadings are not of much importance. It is settled law that it is for the propounder to satisfy the Court that the Will that is sought to be propounded is the last Will of the testator, and also prove the ingredients as per law. But we cannot say that the pleadings have no place at all. Especially in this case when an additional written statement has been filed after the evidence began, P.Ws. 1 and 2 were not questioned anything about a subsequent Will of 1964. This gains importance when it is taken along with the absence of any mention of the alleged 1964 Will in the subsequent written statement. From the evidence of the appellant, it is clear that it is through her, the second defendant came to know about another Will. The case of the first defendant is also the same. If that be so, the only piece of evidence regarding 1964 Will can be only from the appellant and none else. At the time of the arguments of the appellant, it was conceded that the signature appearing in Ex. P. 1 is that of the testator. So long as there is no proof that the father had executed any other Will, this can only be treated as the last Will. From the circumstances, it is clear that there cannot be any such Will, and the contention of the appellant that her father executed a Will in September, 1964 is only an after thought. We held that Ex. P-1 is the last Will executed by the testator.
48. All the other suspicious circumstances alleged can be considered together. In (Smt. Rejeshwari Rani Palhak v. Smt. Ninja Guleri), their Lordships held that merely because Will is typewritten that cannot be a suspicious circumstance. In this case, it is in evidence that the document was prepared and typewritten by the Advocate of the testator under his instructions. All the pages of the instrument are typewritten by using the same machine. In view of the said posit ion and also taking into consideration the evidence of P.Ws. 1 and 2, the contention that because it is typewritten, the document is a fraudulent one in nature, cannot be accepted.
49. The other suspicious circumstances are, that there is no signature in pages 1 and 2 and those pages are also not numbered in the Will. The argument that is taken is that pages 1 and 2 must have been subsequently substituted, and that is why page number is not found in those pages. If pages 1 and 9 have been subsequently substituted, in that attempt, the numbering of pages 1 and 2 would not have been forgotten as it is an obvious thing. Again, pages 1 and 2 are appearing on a single sheet of paper, and as such, there is no necessity for numbering the first sheet and there was only one more sheet and since it was a separate sheet, the page number was given. We must also remember that P.W. 2 has stated that when he signed in the Will, there were two sheets pinned together. In the absence of any other positive evidence, no inference can be drawn that pages 1 and 2 were subsequently substituted. The other suspicious circumstance alleged is that the Will is not signed in all the pages. That also cannot be said to be a suspicious circumstance since the Will is only a declaration of the last Will of the testator. Law does not say that every page should be signed. In paruck on The Tndian Succession Act, Eighth Edition, 1993, the learned Author has commented on this point, at pages 118 and 119 of that book. The learned Author says that if a Will is written on several sheets of paper, it is not necessary that all the pages should be severally signed. One signature on the last sheet, made with the intention of executing the Will is sufficient. Section 63 of the Indian Succession Act only says that the signature or mark of the testator or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as Will. The signature or mark of the testator can be either at the commencement or at the end, but it must be so placed that it shall appear that it was intended to give effect to the instrument as a Will. Under the English Law, there is a slight difference. At pages 118 and 119 of the said book, the learned Author has said thus:--
".... In England the Law is different. The Will Act, 1837, Sec. 9, enacted that no Will was valid unless it was signed "at the foot or end thereof. The Will Act Amendment Act, 1852, Section 1, provided that "every Will shall, so far as regards the position of the signature of the testator be deemed to be valid if the signature shall be so placed at or after or following or under or beside or opposite to the end of the Will, that it shall be apparent on the fact of the Will that the testator intended to give effect by such his signature to the writing signed as his Will... but no signature shall be operative to give effect to any disposition or direction which is underneath or which follows it". The signature on the top right hand corner of the Will is not valid according to English law."
In so far as the Indian Succession Act is concerned, the learned Author has stated (at page 119) thus:--
"... the signature need not necessarily be at the end of the Will. It does not matter in what part of the Will the testator signs. In the Wills executed in vernacular language it is usual to put the signature on the top of the Will. This is valid execution."
All the suspicious circumstances alleged by the appellant are no circumstances which vitiate the Will.
5O. The appellant also relied . on the following decisions :-- (Ramachandra v. Champabai), (Satya Pal v. Panchubala Dasi) and (Chiranjilal Shrilal Goenka v. Jasjit Singh. All those cases are regarding the nature of proof that is required in the matter of a will which is questioned on the ground of suspicious circumstances. All the decisions are unanimous in the view that unless the suspicious circumstances are removed, the pro'pounder is not entitled to get a probate. We have already held that in view of the provisions made in the will which are natural and rational, there cannot be any suspicious circumstance, and even if there is any, the same is properly explained and proved in this case.
51. The appellant also argued that Ex. P-1 was executed at the influence of her brothers, and that the same does not express the intention of the testator. In (supra), it is held that where the caveator alleges undue influence, fraud or coercion, it is for him/her to prove the ingredients and satisfy the Court that the document produced in Court is defectivc for those reasons. Except the mere a. egations in the written statement of defendants 2 and 3, there is no proof resulting the same. Even the details of undue influence, coercion of fraud arc not given in the pleading. The first defendant has not entered the box to speak about the same. Naturally she cannot speak anything about it. She was away out of India. The appellant also cannot challenge the will on the above grounds. According to the appellant, the father was ill and had a paralytic stroke in 1959 and subsequently in 1967 before his death. She does not speak anything about the mental faculties of her father at the time when Ex. A-1 was executed. Whether the father was influenced by the sons and whether it is undue, is also not spoken to by her. The nature of influence which made the testator execute Ex. P-l is also not spoken to by her. Once we find that Ex. P-1 was properly executed in 1960, the long period that elapsed till his death is also to be taken into consideration. The testator died only in May 1967. He had lived for more than seven years to change the same if he really wanted. The appellant had no case that all the seven years, her father was under the influence of his sons.
52. The story of undue influence also cannot be believed, for, the sons never gained anything as per Ex. P-1. If the father died intestate, they could have atleast gained same share in the property. They lost it in view of Ex. P-1. What they gained was only a right of enjoyment with others. So, this circumstance also improbabilises the story of undue influence, fraud and coercion.
53. Finally, we reject all the contentions of the appellant. We confirm the decision of the learned single Judge. The Appeal is dismissed with no order as to costs.
54. Appeal dismissed.