Allahabad High Court
Mrs. Joyce Cynthia Prabhakar & Another vs A.S.K. Sircar on 31 May, 2013
Equivalent citations: AIR 2014 (NOC) 252 (ALL.), 2013 (6) ALJ 688
Bench: Ashok Bhushan, Surya Prakash Kesarwani
HIGH COURT OF JUDICATURE AT ALLAHABAD 1. The question involved in these appeals is regarding validity of Will dated 5.9.1994 executed by Mrs. Edna Diamond Peters. Facts of the Case
2. The admitted pedigree of the family as noted in paragraph 5 of the impugned judgment dated 18.4.2006 is as under :
Shri V.J.S. Seetal From first wife From second wife R.W. Seetal P.Sircar E.D. Peters J.C. Prabhaker A.Seetal son daughter daughter plaintiff in suit (dead) (died-1990) (died-1991) (died-5.1.98) No.5/98 and Anita Simon R.Sircar A.S.K. Earnest Sircar caveat-defendant (daughter) (son) Sircar (died in 1994) no.1 in suit no.13/98 Beneficiary (son) (Beneficiary) (2nd Caveator Petitioner-
Objector) executor for probate in TS 13/98 Rajiv Asha Sircar Sircar (Bene- (Bene-
ficiary) ficiary) 1 2 Pankaj Ritesh (Bene- (Bene-
ficiary) ficiary)
3. Mrs. Edna Diamond Peters (the deceased) served as a teacher in St. Mary's Training College, at Allahabad. She died on 5.1.1998 at Allahabad at the age of 78 years. In Testamentary Suit No. 13 of 1998, Mr. Arnold Sunil Kumar Sircar ( A.S.K. Sircar) her sister's younger son has applied for grant of probate of her will dated 5.9.1994 by which she made the bequest for benefit of Mrs. Asha Sircar; Mr. Pankaj Sircar wife and son of Mr. A.S.K. Sircar of all her estate, certain sums of money to Missionaries of Charity; Sitaram ; Shakuntala; Kamla and Ram Autar ( servants) and 20% of the residual amount each to Mr. Rajiv Sircar; Mrs. Anita Simon; Mr.s Lalitha Francis; Mrs. Joyce Prabhaker and All Saints Cathedral. The suit is contested by Mrs. Joyce Cynthia Prabhakar the step sister and Mrs. Anita Simon, the nice of the deceased. The caveator-defendants have denied the execution of the will by the deceased. In paragraph Nos. 4 and thereafter 5, (c), (d), (f), (k) of their objections, the defendants have pleaded that on 5.9.1994 the deceased was not in a sound physical condition or in sound state of mind nor duly executed the will. The death of her son Ernest, her only child, totally shattered her mental and corporeal faculties, which were already impaired considerably due to her old age and ill health. She was suffering from diabetes, angina and blood pressure for decades and was operated to remove cataract from both her eyes. She was not in a sound and disposing state of mind. Mr. A.S.K. Sircar, the plaintiff - propounder was serving in the Bank. His wife Mrs. Asha Sircar was teaching in Boys High School and their two children Pankaj studying in Christian Medical College in Ludhiana, Punjab, and Ritesh, a student of B.Com were too young to receive her affection and love and to exclude all other relatives. In sub para (f) of para-5, the will is alleged to be forged.
4. In Testamentary Suit No. 5 of 1998 Mrs. Joiyce Cynthia Prabhakar and Mrs. Anita Simon have prayed for 'Letters of Administration' of the estate of Mrs. Edna Diamond Peters ( the deceased) alleging that she died intestate. The papers purporting to be the will of the deceased sent by Mr. A.S.K. Sircar by registered post to Mrs. Lalitha Francis, the daughter of the Mrs. Joyce Cynthia Prabhakar at Bangalore alleged to be executed by the deceased on 5.9.1994 and registered at the office of Sub Registrar, Chail at Allahabad, appears to be a fishy document/ shrouded in circumstances which are suspicious in the extreme besides being an unnatural will excluding all other heirs of the deceased. The signatures purporting to be of that of the deceased do not appear to be genuine and that for two months the alleged executor did not file the petition for probate. It is stated in para 4 of the plaint that apart from the plaintiff, the law applicable to Indian Christians namely Indian Succession Act No. 39 of 1925, the deceased had left behind Mrs. Aruna Seetal; Shunil Sircar ( A.S.K. Sircar); Mr. Anita Simon and Ronald Sircar. The petition is contested by Shri A.S.K. Sircar, who has filed objections / counter affidavit stating that the deceased was in a sound and disposing state of mind, and had executed the will dated 5.9.1994, before her death. The Sub Registrar registered it on the same date. He is the executor named in the will and has filed testamentary case for grant of probate.
5. The will in dispute was drafted by Pt. Kashi Nath (Advocate) and was typed by Sri B.D. Agarwal, 547 Malviya Nagar, Allahabad. The will was executed by the deceased on 5.9.1994 before Sub-Registrar, First, Allahabad. It was signed by the deceased and her thumb impression were put on the will before the Sub-Registrar and in presence of witness, namely, Pt. Kashi Nath (Advocate), 14(Old) Elgin Road, Allahabad and Sri P.K. Mehrotra, 40-B, S.P Marg, Allahabad. It was produced on the first date when the case was filed and was directed to be kept in a sealed cover with the Registrar of the Court.
6. In the aforesaid Testamentary suits the following issues were decided by the impugned order as under: -
Issues framed Decision on the issue (1) Whether the will executed by Mrs. Edna Peters on 5.9.1994 is valid ?
(2)Whether the said Will has been executed by the Testatrix as her conscious and deliberate act with full awareness of its implications in sound disposing state of mind ?
(3) Whether the said will dated 5.9.1994 is a forged document ?
Para-39:- Issue No. 1 and 2 are thus decided in favour of A.S.K. Sircar the plaintiff in Testamentary Suit No. 13 of 1998 and issue No. 3 against the defendant. The will is held to be validly executed by Mrs. Edna Dimond Peters, the deceased on 5.9.1994 in her sound, disposing mind, conscious and fully aware of its implication before the Sub Registrar, Allahabad (4) Whether the plaintiff of suit No. 13 of 1998 are entitled to probate of the said Will dated 5.9.1994 ?
Para-40:-On the findings recorded on Issue No. 1, 2 and 3 Suit No. 13 of 1998 is liable to be decreed and Mr. A.S.K. Sircar the plaintiff in the Suit is entitled to the probate of the will dated 5.9.1994.
(5) Whether the plaintiff of Suit No. 4 of 1999 are entitled to 'Letters of Administration' in respect of the Estate of Mrs. Edna Diamond Peters ?"
Para-41:-On the findings on Issue No. 1, 2 and 3, the will has been proved to be duly executed and attested in the sound and disposing mind by the deceased of which the plaintiff in Suit No. 13 of 1998 is the executor. The Suit No. 4 of 1999 by step sister and sister's daughter for 'Letters of Administration' after declaring the will to be invalid is liable to be dismissed.
Para-42:-The Suit No. 13 of 1998 is accordingly decreed and Suit No. 5 of 1998 is dismissed. The probate of the execution of the will dated 5.9.1994 is directed to be issued to Mr. A.S.K. Sircar the plaintiff on payment of court fees to the satisfaction of the Registrar General and upon due execution of the Administration Bonds, in accordance with the Rules of the Court. The plaintiff in Suit No. 13 of 1998 is also entitled of the cost of the entire proceedings from the defendants as well as the costs of Suit No. 5 of 1998.
7. We have heard Sri Dhruva Narayan, learned counsel for the appellants and Sri Naveen Sinha, learned Senior Advocate assisted by Sri P.K. Ganguly, learned counsel for the respondents.
Submission of the appellants
8. Sri Dhruva Narayan, learned counsel for the appellants submitted that;
(i)The disputed will is neither attested in accordance with Section 63 of the Indian Succession Act, 1925 nor proved in accordance with the provisions of Section 68 of Indian Evidence Act,
(ii)out of two attesting witnesses of the will namely, Pt. Kashi Nath (Advocate) was not examined and the only other attesting witnesses examined was Sri P.K. Mehrotra (PW-2) who failed to state that each of the attesting witnesses signed the will in presence of the testator or that the testatrix signed the will in presence of the attesting witness. Thus there was no valid attestation as per the Provision 68 of the Indian Evidence Act,
(iii)The evidence of Sri P.K. Mehrotra (PW-2) as demonstrated that he is a witness who has no regards for the truth and was ready and willing to oblige the propounder of the will.
(iv)The will is vitiated as surrounded by following suspicious circumstances which have not been removed.
(a) Heirs of the same degree have been denied who too were entitled to bounty of testator as they had similar claims on her without disclosing reasons therefore.
(b) The propounder has taken an active part in execution or attestation of the will which confers substantial benefit on his wife and sons, bestowing upon them lagacies of almost the entire estate of deceased.
(c) The disputed will is highly improbable, unnatural and unfair, as the will gives no explanation for total exclusion of Mrs. Jyoce Prabhakar and Ronald Sarkar and almost total exclusion of Anita Simon, Rajiv Sirkar and Lalita Francis and the bequest of Rs. 20,600/- each to the last three can not be regarded as fair or just. There is no suggestion that the relations between testatrix and these children were not cordial and affectionate. The record does not show that the testatrix was on such affectionate term with the propounder that she would give her almost entire estate to his wife and children. There was no particular reason why the disputed will should have been executed at that time. There was no explanation why the testatrix should have sold a parcel of land to the propounder on 2.6.1994 hardly three months before the execution of the disputed will on 5.9.1994.
(v)The testatrix did not know the existence of the will. So there will be no question of revoking it however long afterwards she might have died. The DW-1 in her statement has stated that " in the year 1997 I visited Allahabad last during her life time, I spoke to Mrs. Peters and asked her in 1997 whether she made a will she said, "No", I also told her to make a will."
(vi)Even if it is found that lack of cross examination of the statement of PW-2 to the effect that the sub registrar read out the will to the testatrix and asked her whether she agreed and she said 'Yes', yet cannot mean that the execution of the will was admitted by the testatrix in view of the unrebutted testimony of DW-3. Thus the execution of will was not proved.
(vii)Learned Single Judge has not touched or adverted to the evidence of propounder PW-1 at all and put the burden on the appellants to disprove the will and not on the propounder to prove the will.
(viii)The observation of learned Single Judge that the Sub-Registrar read out and explained the will to the testatrix is based on misreading of statement of PW-2. There is no evidence that the Sub-Registrar explained the will to her.
9. In support of his submissions Sri Dhruva Narayan, learned counsel for the appellants place reliance on the following judgments;
(i)Girja Dutt Singh Versus Gangotri Dutt Singh AIR 1955 S.C. 346 Para 14,
(ii)Ram Piyari Versus Bhagwat AIR 1990 S.C. 1742 Paragraph 2,
(iii)Ramchandra Rambux Vs. Champabai AIR 1965 SC 354 para 8 and 9,
(iv)Kalyan Singh London Trained Cutter Johri Bazar jaipur Vs. Chhoti AIR 1990 SC 396 Para 15 and 16,
(v)Jayalkakshmidev Amma Vs. Janardhan Reddy, AIR 1959(AP)272 para 15 and 16,
(vi)Gopal Krishnaji Vs. Mohd. Haji Latif and others AIR 1968 SC 1413 Para 5,
(vii)H Venkatachala Iyengar Vs. B.N. Thimmajamma AIR 1959 SC 443 para 18, 19, 20 and 21,
(viii)Pushpavathi and others Vs. Chandraraja Kadamba and others, AIR 1973 (3) SCC 291,
(ix)Karnidan Sarda and another Vs. Sailaja Kanta Mitra, AIR 1940 patna 683
10. Sri Naveen Sinha, learned Senior Counsel assisted by Sri P.K. Ganguly, submitted that;
(i)The execution of the will dated 5.9.1994 has been proved,
(ii)The testatrix has executed the will out of her own free will and was in a fit set of mind at the time of the execution of the will, there was no undue influence or any suspicious circumstances.
(iii)The testatrix was capable of making the will and she was knowing that what she is doing. Neither there was any commission of fraud nor any such allegation has been made by the appellants. He referred to the provision of Section 59 read with Explanation 4 and Section 61 read with Illustration (vii) of the Indian Succession Act. The propounder was caring the deceased and helping for her medical treatment.
(iv)The requirement of Section 68 of the Evidence Act, 1872 was satisfied inasmuch as one attesting witness i.e. Sri P.K. Mehrotra (PW-2) was called in witness box and he has proved the execution of the will in question.
(v)There is no allegation in the pleading of the appellants for commission of fraud or undue influence and as such in view of the provision of Orders VI Rule 4 of Code of Civil Procedure, 1908 the negative burden cannot be put on the Respondents. In the petition filed by Mrs. Anita Simon and Mrs. J.C. Prabhakar ( plaintiff in testamentary Suit No. 5/1998 and caveator defendant in testamentary Suit No.13/1998) they have merely alleged that the will is fishy and unnatural. The pleadings was signed only by Mrs. Anita Simon who had not come even in the witness box although she resides in Allahabad. In the objection filed by Mrs. Anita Simon in testamentary case No. 4/1998 in paragraph 5 it has been merely alleged that the will was not executed on 5.9.1994 or on any other date while the will in question is registered will and it has been proved that it was executed on 5.9.1994 by the deceased out of her own free will while in fit mental state. No one has challenged her mental state. In support of the above he referred to the statement of witness and several entries of the diary, letters ( Exhibit 37) and the letter dated 29.8.1995 addressed to propounder of the will which were filed in evidence.
(vi)Since the mental capacity of the testator and her signature on the will is unchallenged and the will is attested by witness and proved by one attesting witness , the execution of the will stands proved.
(vii)The allegation of the appellants that she was old and therefore must have lost her mental capacity is totally imaginary particularly in view of the fact that no evidence was led by the appellants to establish that she had lost her mental capacity due to death of her son.
(viii)The testator survived for four years after she executed the will dated 5.9.1994 and therefore she could have revoked the will if there was anything wrong, she was a well educated lady and a teacher by profession.
(ix)In paragraph 11 of the impugned judgment, the learned Single Judge has recorded the following facts; "Shri Dhruva Narain, learned counsel for the defendants was asked and clarified the pleadings. He stated that after the evidence has been led, he is not in a position to support the allegations of fraud and forgery and has proceeded to challenge the will as an unnatural bequest which in the circumstances which could not have been made by the deceased.......".
(x)In view of the observations in paragraph 11 of the impugned judgment the only question remains with regard to the mental capacity of the testator which has not been challenged. He referred to the findings recorded in the impugned judgment, particularly the findings in paragraph Nos. 11, 12, 34, 35, 37 and 38.
(xi)The onus of proving the will has been discharged by the propounder. The mental capacity of the testator has been established, the execution of the will by the testator has been proved, the requirement of examination of one attesting witness in terms of Section 68 of the Evidence Act has been complied to prove the will. The testator was in sound disposing state of mind and understood the nature and the effect of the disposition and she signed the will before the Sub-Registrar (First), Allahabad and in presence of two witnesses who attested in her presence and in presence of each other. The will is wholly genuine.
11. Mr. Sinha has placed reliance on the following judgments :
(i) Girja Dutt Singh Versus Gangotri Dutt Singh AIR 1955 S.C. 346 Para 14,
(ii) Ram Piyari Versus Bhagwat AIR 1990 S.C. 1742 Paragraph 2,
(iii) Ramchandra Rambux Vs. Champabai AIR 1965 SC 354 para 8 and 9,
(iv) Kalyan Singh London Trained Cutter Johri Bazar jaipur Vs. Chhoti AIR 1990 SC 396 Para 15 and 16,
(v) Jayalkakshmidev Amma Vs. Janardhan Reddy, AIR 1959(AP)272 para 15 and 16,
(vi) Gopal Krishnaji Vs. Mohd. Haji Latif and others AIR 1968 SC 1413 Para 5,
(vii) H Venkatachala Iyengar Vs. B.N. Thimmajamma AIR 1959 SC 443 para 18, 19, 20 and 21,
(viii) Pushpavathi and others Vs. Chandraraja Kadamba and others, AIR 1973 (3) SCC 291,
(ix) Karnidan Sarda and another Vs. Sailaja Kanta Mitra, AIR 1940 patna 683 Discussions and Findings
12. Having heard the learned counsel for the parties and perused the records, we now proceed to examine as to whether the will dated 5.9.1994 is valid, whether this will is surrounded by suspicious circumstances which have not been removed and whether the will is an unnatural bequest. So far as the issue no. 3 whether the will dated 5.9.1994 is forged documents is concerned, the same stands concluded by the findings recorded in paragraph 11 of the impugned judgment which reads as under : -
"Shri Dhruva Narain, learned counsel for the defendants was asked and clarified the pleadings. He stated that after the evidence has been led, he is not in a position to support the allegations of fraud and forgery and has proceeded to challenge the will as an unnatural bequest which in the circumstances which could not have been made by the deceased.
13. Even before us the above quoted findings of learned Single Judge has not been disputed or challenged. Thus undisputedly the will dated 5.9.1994 is not a forged document.
14. With regard to the issue nos. 1 and 2 as decided by the impugned judgment, we find that the learned Single Judge has dealt with these issues in great detail in paragraph nos. 9 to 39 of the impugned judgment and well considered the submissions of learned counsel for the parties and the evidences on record.
15. The argument of Shri Dhruva Narain, Advocate that the disputed will is neither attested in accordance with Section 63 of the Indian Succession Act, 1925 nor proved in accordance with the provisions of Section 68 of Indian Evidence Act, is contrary to evidences on record. We find that the will in question is a registered will. It was registered by the Sub-Registrar-I, Allahabad. It was signed before the Sub-Registrar -I, Allahabad by testatrix in presence of two attesting witnesses, namely, Sri P.K. Mehrotra (PW-2) and Pt. Kashi Nath (Advocate) who also had signed the will as witnesses at the time of execution of the will before the Sub-Registrar-I, Allahabad. One attesting witness Sri P.K. Mehrotra (PW-2) was examined and he has proved the execution of will in question. In his statement dated 17.2.2003 the PW-2 clearly stated as under : -
^^xokg dks isij ua- ,&5 fn[kkdj iwNk x;k fd D;k vki bl dkxt dks igpkurs gSa xokg us dgk fd ;g ogh olh;r ukek gS tks Jherh ihVlZ us fd;k Fkk vkSj bl ij esjs gLrk{kj ekStwn gSA blds gj ist ij Jherh ihVlZ ds gLrk{kj gSA Jherh ihVlZ us bl ij nLr[kr esjh ekStwnxh esa fd;s FksA bl olh;rukek ds i`"B uEcj ,d vkSj i`"B uEcj 5 ij esjs vkSj felst ihVlZ ds vykok Jh dk'khukFk ds Hkh gLrk{kj gSA tc Jherh ihVlZ us bl olh;rukesa ij vius gLrk{kj cuk;s ml le; ogka esjs vykok Jh dk'khukFk ekStwn FksA ;s nLr[r jftLVªkj lkgc ds lkeus fd;s x;s FksA jftLVªkj lkgc us ;s olh;rukek i<+dj felst ihVlZ dks lquk;k vkSj muls iwNk fd D;k vki bl olh;rukesa esa tks fy[kk gS mlls lger gSA felst ihVlZ us dgk og lger gSa rc jftLVªkj lkgc us muls dgk fd vki bl ij nLr[kr dhft,A jftLVªkj lkgc ds dgus ls felst ihVlZ us bl ij nLr[kr fd;sA mlds ckn jftLVªkj lkgc us eq>ls vkSj Jh dk'khukFk th ls iwNk fd D;k ge yksx xokg gS gekjs gkWa dgus ij jftLVªkj lkgc ds dgus ls ge yksxksa us Hkh nLr[kr fd;s] eq>s ;kn ugha fd nLr[kr igys eSus fd;s Fks ;k Jh dk'khukFk th us fd;s FksA blds ckn jftLVªkj lkgc us ge yksxksa dk vxawBk fu'kku bl olh;rukesa ij vkSj vius vius jftLVj ij Hkh yxok;k A ckn esa dgk fd esjk vkSj felst ihVlZ dk fu'kku vaxwBk yxk Fkk Jh dk'khukFk th dk fu'kku vaxwBk ugha yxk FkkA bl olh;rukesa ds igys i`"B ds ihBs tks bckjr fy[kh gqbZ gS vkSj tks eksgj yxh gqbZ gS og ml dk;ZokbZ dh gS tks jftLVªkj lkgc ds lkeus gqbZ FkhA---------------------------- ftl fnu olh;r gqbZ ml fnu dpsgjh esa dkQh nsj yxhA ml nkSjku esa Jherh ihVlZ ds lkFk muds lEidZ esa Fkk og lkekU; ckrphr dj jgh Fkh] gWal jgh Fkh vkSj eq>s ,slk dksbZ ckr utj ugha vk;h ftlls ;g vkHkkl gks fd mudk ekufld lUrqyu ml le; lgh ugha Fkk-----------------A**
16. From the perusal of the evidence of PW-2, it is evident that the appellants have not even cross examined on the aforesaid specific statement to the effect that the will in question was read by the Sub-Registrar in his office before the testatrix who was a well educated lady and teacher by profession and thereafter she shown her agreement to the disposition made in the will and signed the will in presence of the Sub-Registrar and two witnesses. The witnesses also signed the will in presence of the testatrix and the Sub-Registrar. The testatrix and the PW-2 have also put their thumb impression on the will and the register before the Sub-Registrar. At the time of execution of will the testatrix was quite normal, well balanced and smiling.
17. Thus the argument of learned counsel for the appellants that PW-2 has failed to state that each of the attesting witnesses signed the will in presence of the testator or that the testatrix signed the will in presence of the attesting witnesses and thus there was no valid attestation as per provision of Section 68 of the Indian Evidence Act, is wholly incorrect and deserves to be rejected.
18. Shri Dhruva Narayan, learned counsel for the appellants have laid much emphasis on the statement of Mrs. J.C. Prabhakar ( DW-1) to the effect that "I spoke to Mrs. Peters and asked her in 1997 whether she made a will she said, "No", I also told her to make a will." In the subsequent part of her statement, she stated that she came for about 8 to 10 times to visit her sister (Mrs. Edna Diamond Peters) in Allahabad, after her father's death in 1965 till her death. She further stated that she came Allahabad for last in September, 1997 during the life time of Mrs. Peters . No evidence was produced by the appellants to deny or dispute the signature of Mrs. Edna Diamond Peters on the will and its execution by her before the Sub-Registrar-I, Allahabad on 5.9.1994. Even the DW-1 has stated in the later part of her statement that " I do not know, but evidently she made a will." The learned Single Judge in paragraph nos. 9 to 39 has discussed in great detail, each and every evidences to arrive at the findings that the will in question was executed by Mrs. Edna Diamond Peters, the deceased, on 5.9.1994 as her conscious deliberate act with full awareness of its implications in sound disposing state of mind, before the Sub Registrar, Allahabad.
19. We may further note that in paragraph 35 of the impugned judgment the learned Single Judge has recoded the following findings which has not been even attacked or disputed in the appeal before us : -
"The letters written by the deceased; the diary maintained by her and the accounts kept by her of her households expenses in a neat and clear hand writing with correct calculation from January 1995 to January, 1998, when she died, clearly demonstrate that she was possessed of sharp, intellect, and capable of understanding her affairs. Her bequest does not show that she had forgotten other relatives."
20. In his statement Dr. R.K. Agrawal ( PW-3) has clearly stated that Mrs. Edna Diamond Peters used to come to his clinic with Sri A.S.K. Sircar or with the wife of Sri A.S.K. Sircar and he went once or twice to see Mrs. Peters at her residence then also Sri Sircar and his wife were present and during the course of treatment the mental state of Mrs. Peters was quite prefect. This statement was given by the PW-3 after paper No.A-46/4 to A-46/8 was shown to him and he affirmed that these are prescriptions from July, 1994 to July, 1997. The PW-3 has also stated that in his opinion Mrs. Peter was not suffering from mental depression or disturbance of any kind.
21. In his statement Sri Ronald Sircar (DW-3) has admitted that he new Dr. R.K. Agrawal and Dr. R.K. Agrawal used to treat his aunt Mrs. Peter. Thus the fact that Dr. R.K. Agrawal ( PW-3) used to treat Mrs. Edna Diamond Peters is wholly undisputed. The statement of PW-3 as noted above has neither been disputed nor can be disbelieved under the facts and circumstances of the case. Thus the findings and conclusion in paragraph No. 39 of the impugned judgment that the will is held to be validly executed by Mrs. Edna Dimond Peters, the deceased on 5.9.1994 in her sound, disposing mind, conscious and fully aware of its implication before the Sub-Registrar, Allahabad, does not suffer from any error of law or fact. Thus we find no substance in the submission of learned counsel for the appellants that the will is not genuine or that the testatrix did not know the existence of the will or the execution of the will was not proved.
22. Sri Dhruva Narayana, learned counsel for the appellants next submitted that the will is surrounded by the suspicious circumstances inasmuch as heirs of the same degree have been denied who too were entitled to bounty of the testator, the propounder has taken an active part in the execution or attestation of the will which confers substantial benefit to his wife and son, the disputed will is highly improbable, unnatural and unfair, testatrix did not know the existence of the will, learned Single Judge has not touched or advert to the evidence of the propounder (PW-1) at all and put the burden on the appellants to disprove the will. We find no force in the submission of learned counsel for the appellants. We have already referred to evidences as well as the well considered findings of learned Single Judge in the paragraph nos. 9 to 39 of the impugned judgment and came to the conclusion that the will was validly executed by Mrs. Edna Diamond Peters, the deceased on 5.9.1994 in her sound disposing state of mind and she was conscious and fully aware of its implication. The evidences on record show that Sri A.S.K. Sircar and his wife used to care and help in the medical treatment of Mrs. Edna Diamond Peters, the deceased, who was an old lady and real sister of the mother of Sri A.S.K. Sircar. In his statement the DW-3 has admitted that Mrs. Edna Diamond Peters was holding her bank account in the joint name with Sri A.S.K. Sircar. The DW-2 has admitted in his examination that when the only son of Mrs. Edna Diamond Peters met the accident, on getting information Sri A.S.K. Sircar came and brought him to the hospital. There are sufficient evidences on record that Sri. A.S.K. Sircar and his wife helped in treatment of the son of Mrs. Edna Diamond Peters. Evidences well discussed by the learned Single Judge in the impugned judgment also clearly shows the affection of Mrs. Edna Diamond Peters with Sri A.S.K. Sicar, his wife and son. It is wholly on the testator to whom he choses to give his assets. A will is executed to alter the mode of succession and by the very nature of things it is bound to result in either reducing or depriving the share of a heir. If a person intends his property to pass to all his heir there is no necessity at all of executing a will. The fact that some heirs have been either excluded or lesser share has been given to them, by itself without anything more, cannot be held to be a suspicious circumstance.
23. In the present case, we find that the will was admittedly registered. The testator lived for about four years after execution of the will. She could have changed her mind but she did not. The very fact that she did not take any steps for cancellation of the will executed by her on 5.9.1994 is itself a factor which the Court may take into consideration for the purpose of upholding the same. The argument of Sri Dhruva Narayana, learned counsel for the appellants that PW-2 has stated that he alongwith Mrs. Peter went for registration of the will in the car of Mr. A.S.K. Sircar ( PW-1) is not a matter which may give rise to suspicious circumstances inasmuch as the execution of will by Mrs. Peters in her sound, disposing state of mind has been found to be proved. It is relevant to note that Mr. A.S.K. Sircar, his wife and son were caring and helping in the medical treatment of Mrs. Peters and she appears to be very close to them inasmuch as she even got added the name of Sri A.S.K. Sircar in her bank accounts. These facts are well supported by evidences of PW-1 and PW-3. The specific and positive statement of Dr. R.K. Agrawal ( PW-3) as briefly discussed in paragraph No. 20 and 21 above is wholly undisputed. Sri D.Simon ( DW-2) husband of the appellant No. 2 was even totally unaware about medical treatment of Mrs. Peters as evident from his statement in cross examination dated 8.5.2003 as under : -
^^eq>s bl ckjs esa dksbZ tkudkjh ughs gS fd Jherh bZ0 ihVlZ dks Mk0 ds ;gka fn[kkus dkSu ys tkrkA** Sri Ronald Raj Kumar Sircar ( DW-3) in his statement dated 12.4.2004 has answered in ngative the question "whether he ever went to Dr. R.K. Agrawal taking Smt. Peters." The statement of Dr. R.K. Agrawal ( PW-3) as discussed in para 20 and 21 above is undisputed. Thus it is established that PW-1, his wife and son were caring Smt. Peters and helping in her medical treatment and as a natural consequence thereof she was having affection for them.
24. A perusal of the long line of decisions including the judgments cited by learned counsel for the appellants and the respondents reveals the well settled legal requirement for proving a will as under :
(i)The will like any other document is to be proved in terms of the provisions of the Succession Act,
(ii)The onus of proving the will is on the propounder,
(iii)The testamentary capacity of the testator must also be established,
(iv)Execution of the will by testator has to be proved,
(v)At least one attesting witness is required to be examined for the purpose of proving the execution of the will,
(vi)It is required to be shown that the will has been signed by testator with his free will and that at the relevant time he was in his sound disposing state of mind and understood the nature and effect of the disposition,
(vii)It is also required to be established that the testator has signed the will in the presence of two witnesses who attested his signature in his presence or in the presence of each other.
(viii)Only when there exist suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the court before the will can be accepted as genuine,
(ix)The suspicious circumstances can be said to exist when a doubt is created in regard to the condition of mind of the testator despite his signature on the will; when the disposition appears to be unnatural or wholly unfair in the light of the relevant circumstances and where propounder himself takes prominent part in the execution of will which confers on him substantial benefit.
25. In the case of Savithri and others Vs. Karthyayani Amma and others (2007) 11 SCC 621 vide paragraph Nos. 17, 18, 19 and 20, the Hon'ble Supreme Court has laid down the law as under :-
"17. The legal requirements in terms of the said provisions are now well- settled. A Will like any other document is to be proved in terms of the provisions of the Indian Succession Act and the Indian Evidence Act. The onus of proving the Will is on the propounder. The testamentary capacity of the propounder must also be established. Execution of the Will by the testator has to be proved. At least one attesting witness is required to be examined for the purpose of proving the execution of the Will. It is required to be shown that the Will has been signed by the testator with his free will and that at the relevant time he was in sound disposing state of mind and understood the nature and effect of the disposition. It is also required to be established that he has signed the Will in the presence of two witnesses who attested his signature in his presence or in the presence of each other. Only when there exist suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the court before it can be accepted as genuine.
18. We may, however, notice that according to the appellants themselves, the signature of the testator on the Will was obtained under undue influence or coercion. The onus to prove the same was on them. They have failed to do so. If the propounder proves that the Will was signed by the testator and he at the relevant time was in sound disposing state of mind and understood the nature and effect of disposition, the onus stands discharged. For the aforementioned purpose the background fact of the attending circumstances may also be taken into consideration. [See B. Venkatamuni v. C.J. Ayodhya Ram Singh and Others (2006) 11 SCALE 148].
19. In Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao & Ors. [2006 (14) SCALE 186], this Court held :
32. Section 63 of the Succession Act lays down the mode and manner in which the execution of an unprivileged Will. Section 68 of the Evidence Act postulates the mode and manner of which proof of execution of document which is required by law to be attested. It in unequivocal terms states that execution of Will must be proved at least by one attesting witness, if an attesting witness is alive subject to the process of the court and capable of giving evidence. A Will is to prove what is loosely called as primary evidence, except where proof is permitted by leading secondary evidence. Unlike other documents, proof of execution of any other document under the Act would not be sufficient as in terms of Section 68 of the Evidence Act, execution must be proved at least by one of the attesting witnesses. While making attestation, there must be an animus attestandi, on the part of the attesting witness, meaning thereby, he must intend to attest and extrinsic evidence on this point is receivable.
33. The burden of proof that the Will has been validly executed and is a genuine document is on the propounder. The propounder is also required to prove that the testator has signed the Will and that he had put his signature out of his own free will having a sound disposition of mind and understood the nature and effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharged. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In the case of proof of Will, a signature of a testator alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated. However, if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator. [See Madhukar D. Shende v. Tarabai Aba Shedage (2002) 2 SCC 85 and Sridevi & Ors. v. Jayaraja Shetty & Ors. (2005) 8 SCC 784]. Subject to above, proof of a Will does not ordinarily differ from that of proving any other document."
20. Therein, this court also took into consideration the decision of this Court in H. Venkatachala Iyengar (supra), wherein the following circumstances were held to be relevant for determination of the existence of the suspicious circumstances :
"34.......(i) When a doubt is created in regard to the condition of mind of the testator despite his signature on the Will;
(ii) When the disposition appears to be unnatural or wholly unfair in the light of the relevant circumstances;
(iii) Where propounder himself takes prominent part in the execution of Will which confers on him substantial benefit."
26. The judgment in the case of Ram Piyari ( supra) relied by Sri Dhruva Narayana is distinguishable on the facts and does not support the case of the appellants inasmuch as in that case the will was executed by the father one day before his death bequeathing all his property in favour of son of his sister, disinheriting his daughter, whereas in the present set of facts the testatrix was not having any surviving son or daughter and the propounder Sri A.S.K. Sircar was his real sister's son who used to care her and help her in her medical treatment. Sri J.C. Prabhakar ( Appellant and DW-1) is the step sister of the testatrix who according to her statement has visited merely 8 to 10 times to her sister (Mrs. Edna Diamond Peters) in Allahabad from 1965 till the year 1997 i.e. in about 32 years. Anita Simon ( Appellant no. 2 is the daughter of the brother of the testatrix she did not come even in the witness box. Her husband Mr. Diamond Simon ( DW-2) was examined and in his statement dated 2.5.2003 he stated that the copy of the will was received by his wife Smt. Anita Simon and he has read it and when he was shown the original will then after reading the original will he said that if this will is accepted then almost entire assets of Mrs. Edna Diamond Peters shall go to the wife and son of Sri A. Sunil Sircar and very little shall be received by others. DW-2 also admitted that he is residing at Stanely Road and his brother resides in Newzeland and the other brother resides with his father. Neither he nor Mrs. J.C. Prabhakar could bring on record any evidence that they were caring Mrs. Peters or helping in her medical treatment in her old age.
27. The judgment of Hon'ble Supreme Court in the case of Ramchandra Rambux (supra) relied by the appellants for the proposition of surrounding suspicious circumstances is well settled but it has to be applied on the facts of each case. We have come to the conclusion that on the facts of the present case and evidence on record the will in question is quite genuine and valid. Thus this judgment is of no help to the appellants. The next judgment of Hon'ble Supreme Court in the case of Kalyan Singh London Trained Cutter Johri Bazar Jaipur relied by the learned counsel for the appellants is distinguishable on the facts of the present case inasmuch as in that case the court has found the evidence of plaintiff PW-3, the PW-4 and PW-7 to be far from satisfactory. The judgment in the case of Gopal Krishnaji ( supra) is of no help of the appellant in the facts and circumstances of the present case. The judgment in the case of H. Venkatachala Iyengar ( supra) relied by the learned counsel for the appellants is with reference to Sections 67 and 68 of the Evidence Act to prove a will. In the present set of facts the learned Single Judge while passing the impugned judgment has well considered the facts and evidence on record and applied settled principles of law for proving a will and correctly found the will to be valid one.
28. On the facts and circumstances of the present case and evidences on record, we find that the will in question dated 5.9.1994 has been proved in terms of the provision of the Succession Act and the Indian Evidence Act. The Principles as laid down in the case of Savithri and others (supra) and the principles briefly summarised by us in para 24 above for proving a will, stands fully satisfied in the present set of facts and evidences on record. The findings recorded by the learned Single Judge after well discussing each and every evidence do not suffer from any error of law or facts. We further find that no evidence has been brought on record by the appellants to prove that the signature of the testatrix on the will was obtained under undue influences and coercion whereas in view the law laid down in para 18 of the judgment in the case of Savithri ( supra) the onus lies on them to prove it but they failed to do so. Mr. A.S.K. Sircar has proved that the will was executed by the testatrix with her own free will and she at the relevant time was in sound disposing state of mind and well understood the nature and effect of the disposition and thus he discharged the burden.
29. In view of the discussion made above and the findings arrived by us, we are of the view that the will dated 5.9.1994 executed by Mrs. Edna Diamond Peters is wholly valid and she had executed the said will in her conscious and deliberate act with full awareness of its implications in sound disposing state of mind and thus the plaintiff of Suit No.13 of 1998 have been validly held by the learned Single Judge to be entitled to the probate of the will dated 5.9.1994. The plaintiff of Suit No. 4/1999 are not entitled to the 'letters of administrations' in respect of estate of Mrs. Edna Diamond Peters in as much as the will has been proved to be a valid will. In view of the above, impugned judgment passed by learned Single Judge is upheld and both the special appeals filed by the appellants are hereby dismissed. The parties shall bear their own costs.