Himachal Pradesh High Court
Smt. Leela Alias Bali Devi vs Smt. Drumti Devi on 29 June, 2000
Equivalent citations: AIR2002HP7
Author: Kuldip Chand Sood
Bench: Kuldip Chand Sood
JUDGMENT Kuldip Chand Sood, J.
1. This second appeal under Section 100 of the Code of Civil Procedure arises out of the Judgment and decree of learned District Judge, Mandi. Kullu and Lahaul Spiti Districts at Mandl. H. P. dated May 31, 1993. Smt. Drumti Devi plaintiff and defendant Leela alias Ball Devi, appellant herein, are the daughters of Shri Dilu son of Shri Rattan of village Baniur. Tehsil Chachiot of District Mandi. Shri Dilu died on 3rd of Bhadon 2042 Bk. after prolonged illness. Defendant Leela alias Ball Devi claims the entire property left by Shri Dilu on the basis of a registered Will executed by Shri Dilu in her favour on March 25. 1985. Plaintiff Drumti filed a suit for declaration that the Will executed by Shri Dilu in favour of defendant No. 1 is invalid, null and void and not binding on the interests of the Plaintiff on the properties left by Shri Dilu as detailed in para 1 of the plaint with consequential relief restraining the defendant Smt. Leela alias Bali Devi from forcibly dispossessing the Plaintiff from the suit land or otherwise, changing the nature and transferring the suit land.
2. The case of the plaintiff is that both she and her sister, defendant No. 1, are entitled to inherit and succeed to the estate left by Shri Dilu in village Kut and Surah as described in para 1 of the plaint. The Will set up by defendant No. 1 is shrouded by suspicious circumstances. The Will is challenged on the grounds :
(a) Dilu was an old man of 75 years of age suffering from chronic disease, bed ridden and unable to move about one year prior to his death;
(b) The suit land was being looked after and cultivated jointly by the Plaintiff and Defendant No. 1.
It is the further case of the Plaintiff that the Will have been created by defendant No. 1 and her husband in collusion with the scribe and marginal witnesses as Dilu being bed ridden, with a weak eyesight, could not have executed this Will in sound disposing mind.
There was no necessity for Shri Dilu to have disinherited the plaintiff. The Will, it is further pleaded, is the result of undue influence, coercion, fraud and mis-representation and, therefore, not valid.
3. Defendant No. 1 resists the suit. Allegations are controverted. It is pleaded that plaintiff is not the daughter of Shri Dilu, as she was adopted at young age of fifteen by one Shri Katku. It is denied that the Will is result of any undue influence, fraud or coercion. According to the contesting defendant, she served Dilu till his death. Death ceremonies were also performed by her. The contesting defendant pleads that plaintiff never cultivated the suit land and, therefore, there is no question of plaintiff being dispossessed. According to the defendant, Dilu was hale and hearty and in sound disposing mind when he executed the Will on March 25. 1985 and got it registered in the office of the Sub-Registrar, Chachiot. The Will, it is pleaded^was executed by Shri Dilu of his free will without any influence. The allegation that Will has been created, in collusion with the scribe and marginal witnesses, is denied, According to the contesting defendant, she had not played any part in the execution of the Will.
4. The following issues were settled by the learned trial Court (Sub-Judge 1st Class Court No. II, Mandi) :
1. Whether the Will in question is null and void as alleged? OPP.
2. Whether the plaintiff is not the daughter of the Testator? OPD [Defdts. 1 to 6 except 1 and 4).
3. Relief.
5. Learned trial Court found that Will is a valid document and the fact that plaintiff is daughter of Dilu has no effect. Feeling dissatisfied, the Plaintiff filed an appeal before the learned District Judge, Mandi, which was allowed. Learned District Judge found that Will is invalid as it is shrouded by suspicious circumstances and accordingly, proceeded to decree the suit of the plaintiff. It is in this background that defendant Leela alias Bali Devi has filed the present appeal.
6. This appeal was admitted on the following substantial question of law :
Whether on the evidence on the record, particularly the Scribe, marginal witnesses and Identifier and the clear testimony of Maya Dhar, it was established that Shri Dilu had executed a valid Will in favour of the appellant.
7. I have heard learned counsel for the parties who have taken me through the record.
8. Learned District Judge found following circumstances as suspicious :
(i) the Will excludes plaintiff, daughter of the testator;
(ii) at the time of execution of the Will, testator was of old age and ailing;
(iii) defendant No. 1, the beneficiary of the Will and her husband, took active part in the execution of the Will.
9. The question which arises for consideration is whether the Will have validly been executed and whether there are suspicious circumstances attached to the execution of the Will. Section 63 of the Indian Succession Act provides for the execution and attestation of the Wills which may be reproduced for convenience :
"63. Every testator, not being a soldier employed in an expedition or engaged in actual warfare or an airman so employed or a mariner at seas, shall execute his Will according to the following rules :
(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
(b) 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 a Will.
(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other persons, and each witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."
10. It may be noticed that according to Section 63 of the Indian Succession Act. three things are necessary lor valid executing of the Will :--
(1) It must be in writing;
(2) It must be duly signed by the testator; and (3) It must be duly attested by at least two witnesses.
11. It needs no emphasis that 11 is the duty of the prepounder of the Will to show, by satisfactory evidence, that, the Will has been executed by the testator as contemplated under Section 63 of the Act. The execution of the Will has to be proved within the parameters of Section 63 and the law requires strict, compliance of this provision. It is for the prepounder of the Will to prove by impeccable evidence that. :
(a) the Will was signed by the testator.
(b) the testator at the relevant time was in sound and disposing state of mind, and
(c) he understood the nature and effect of putting his signature on the document of his own free will,
12. Section 63(c) of the Indian Succession Act and Section 3 of the Transfer of Property Act though do not provide for a particular form of attestation but nonetheless, it is necessary, as required by Section 68 of the Indian Evidence Act, that at least one of the attesting witnesses should be examined to prove the 'due execution' of the Will. It is the duty of the propounder of the Will to prove from the witness (es) that the witness (es) saw the testator signing the Will and that they themselves signed the Will in the presence of the testator.
13. For a valid attestation of the Will, the following conditions must be specified ;
(a) The Will must be attested by at least two witnesses;
(b) Each of these :
(i) must either see the testator sign or affix his mark to the Will or must see some other person sign the Will in the presence and by the direction of the testator, or
(ii) must receive from the testator a personal acknowledgment of his signature or mark or of the signature of such other person.
(iii) Each of these must sign the Will.
(iv) They must sign in the presence of the testator.
14. If any of these four conditions is not satisfied, the attestation is bad and the Will invalid.
15. The Will executed by Dilu is placed on the record as Exhibit DW2/A. The perusal of this Will shows that it was scribed by Shri Girdhari Lal Sharma (DW 2), Document. Writer, at Chachiot, Shri Tara son of Shri Karam Singh (DW 4) and Amar Singh (DW 3) are the marginal witnesses. The Will was registered on the same day by the Sub-Registrar in the presence of the testator, Achhar Singh, Ex-President of Gram Panchayat Siaz and the marginal witnesses. The Will recites that Shri Dilu, testator, is about 75 years of age, he lias become old and remain sick. He has two daughters both of whom are married. One of his daughters Drumti (Plaintiff) lives with her in-laws and his second daughter Leela alias Ball Devi (defendant No. 1) lives with him and is looking after him for long period and, therefore, he bequeathes all his properties, both movable and immovable, in favour of his daugther Leela alias Ball Devi (defendant No. 1). Defendant No. 1 has produced apart from the scribe of the Will, both the attesting witnesses. It is the evidence of Shri Girdhari Lal, the scribe of the Will, that he scribed the Will at the instance of Shri Dilu Ram, testator, in the presence of witnesses Tara and Amar Singh. The contents of the Will were read over to Dilu who after admitting the contents to be correct, signed the Will Exhibit DW 2/A at place Exhibit DW 2/B. Thereafter. Tara Chand and Amar Slngh, both marginal witnesses, signed the Will in the presence of Shri Dilu. To similar effect is the testimony of Shri Amar Singh (DW 3), the marginal witness. It is his evidence that he belong to the village of Dilu. The Will Ext. DW 2/A was scribed by the Document Writer the contents of which were read over and explained to Sh. Dilu who admitting the contents to be correct, signed the Will in his presence and in presence of Tara Chand. the other marginal witness, after admitting the contents to be correct and thereafter he and Tara Chand signed the Will. To similar effect is the testimony of Tara Chand (DW 4). There is nothing in the cross-examination of any of the witnesses which may show that Dilu was not of sound disposing mind at the time of execution of the Will. Amar Singh (DW 3) specifically states that Sh. Dilu had good health and he could hear prop-
erly. Suggestion of the plaintiff in cross-examination that on the date of execution of the Will, Dilu was critically ill, is denied. Thus, the due execution of the Will is proved. Both the attesting witnesses state that Dilu was being looked after by defendant Leela alias Ball Devi, The plaintiff has not led any evidence to show that Will was not duly executed. The only case of the plaintiff is that the Will is shrouded by suspicious circumstances as plaintiff has been disinherited and Dilu was a sick person. From the evidence discussed above, it is proved that the Will Ext. DW 2/A was executed by deceased Dilu of his free will which was attested by two witnesses, namely, Amar Singh (DW 3) and Tara (DW 4). Each of the witnesses saw the testator Dilu signing the Will and each of the witnesses signed the Will in the presence of the testator.
16. Learned District Judge has observed that the testator had two daughters, both of them married and one of the daughters Smt. Drumtl has been disinherited without any plausible explanation. Learned District Judge also took into consideration the plea of the defendant that though plaintiff was born from the deceased but was adopted by one Katku and that the defendant has not been able to prove this fact and concluded that the reason for disinheriting the plaintiff is non-existent. Learned District Judge further noticed that no explanation is given in the Will as to why Drumti has been disinherited and this raises suspicion as to the execution of the Will. The fact that plaintiff a daughter of Shri Dilu deceased has been disinherited in itself is not a suspicious circumstance so as to doubt the genuineness of the Will. in Ravindra Nath Mukherjee v. Panchanan Banerjee (dead by L.Rs.), 1995 (4) SLJ 2824, it was observed that a Will contains the last desire of a testator. The Courts, therefore, should normally act in accordance with the wishes of the person concerned. If the Courts were to doubt either the genuineness or validity of the maker of the Will, they would be loathe to work in accordance with what has been stated in the Will in that case, the natural heirs were disinherited by the Will in this context, Their Lordships observed :
"As to the first circumstance, we would observe that this should not raise any suspicion, because the whole idea behind execution of Will is to interfere with the nor-
mal line of succession. So natural heirs would be debarred in every case of Will; of course, it may be that in some cases they are fully debarred and in others only partially. As in the present case, the two executors are sons of a half-blood brother of Saroj Bala. whereas the objectors descendants of a full blood sister, the disinheritance of latter could not have been taken as a suspicious circumstance, when some of her descendants are even beneficiaries under the Will".
17. Merely because the plaintiff has been disinherited, would not render the Will invalid. So far the falsity of the version of the defendant that plaintiff was adopted by one Katku after her birth is concerned, the same is not altogether false. Plaintiff Drumti in her cross-examination admits that her mother died seven days after her birth and she was brought up by her uncle and his wife who were staying with her father. in any event, this can hardly be a circumstance which may render the Will Invalid.
18. Learned District Judge has observed that the testator at the time of execution of the Will was very old and due to illness, was confined to bed.
19. The validity of a Will depends on the testator being of sound disposing mind at the time of making of the Will and not on his advanced age. It is true that Shrl Dilu testator, at the time of the execution of the Will was of 75 years of age but advance age does not and cannot lead to the presumption that he was not of sound disposing mind (See : Tirath Singh v. Sajjan Singh (Died) through his L.Rs., 1998 (1) SLJ 232). Apart from the self-serving statement of Drumti Plaintiff to the effect that Dilu was mentally unwell, there is no other evidence to show that Dilu was not of sound disposing rnind. The very fact that Dilu walked 14 kms. from his house to Chachlot alone to execute the Will and get it registered would show that he was neither physically nor mentally invalid.
20. Will Exhibit DW 2/A is a registered document. From this a presumption arises that testator, at the time of execution of the Will was having sound disposing mind, particularly, when there is no evidence that at the time of execution of the Will, Dilu was suffering from any mental ailment or other disability or was incapable of making Will.
Reference may be made to Gurpal Singh v. Darshan Singh, 1998 (1) SLJ 174. in that case, a contention was raised that testator, at the time of execution of the Will, was not of sound disposing mind. in this context, it was observed :
".....The Will Ext. D3 is a registered document. From this, a presumption arises that testator of a Will was having sound disposing mind at the time of making the Will and it was executed by him especially when there is no evidence to show that at the time of execution of the Will, Phuman Singh was suffering from any mental ailment......."
21. Learned District Judge has referred to a recital in the Will that the testator is an old and ailing man and concluded that as testator was of ripe age, therefore, his eyesight, hearing capacity and memory has impaired. I am afraid, the conclusion is based on the surmises. I have already said that mere fact that a person is of an advance age does not lead to the presumption that such person is not of sound disposing mind.
22. The next circumstance on which the suspicion as to the execution of the Will is sought to be raised is that beneficiary Leela alias Ball Devi took active part in the execution of the Will. Learned Distt. Judge has referred to the testimony of Maya Dhar to the effect that defendant Leela and her husband followed Dilu when Dilu went to Chachiot to execute the Will. Learned District Judge noticed that it is not explained why defendant and her husband followed Dilu to Chachiot on the next day, which raises suspicion and shows uncalled for interest of the defendant in the execution of Will by Shri Dllu. Learned District Judge also commented that statement of Maya Dhar. husband of defendant No. 1 to the effect that when they reached Chachiot. the Will had already been scribed, is false. I am afraid. learned District Judge has misread the evidence of Maya Dhar (DW 2). What he has stated is that Document Writer, scribe of the Will, knew Dilu personally and that Dilu left the house one day before the execution of the Will and they followed him the next day and when they reached Chachiot, Will had already been scribed. Sh. Tara Chand (DW 4) nowhere states that Maya Dhar and defendant Leela had accompanied Dilu to Chachiot. What he states is that he is not aware if Dllu was accompanied by Maya Dhar and Leela on March 24, 1985 to Chachiot and rightly so as he himself arrived at Chachiot on March 25. 1985 when the Will was executed. Therefore, he could have no knowledge about the arrival of Maya Dhar and defendant. in any event, with the passage of time, memory of the witnesses regarding details is likely to blur and this minor discrepancy in the evidence is bound to occur. Otherwise also, presence of the beneficiary or such beneficiary accompanying the testator for the execution of a Will. would not show that undue influence was exercised by the beneficiary in the execution of the Will. The Will was registered on the same day and the endorsement of the Sub-Registrar shows that the contents of the Will were read over and explained to Shri Dllu by the Sub-Registrar who admitted the contents to be correct. It is now well settled that mere presence of the beneficiary or their accompanying the testator would not show exercise of undue influence in the execution of the Will (See Tirath Singh v. Sajjan Singh (Died) through his L.Rs. 1998 (1) SLJ 232). in Gun Parkash v. Bhola Nath, AIR 1997 Him Pra 27, the Will was scribed in the presence of family members of the beneficiary. The testator was an old lady and natural heirs were deprived by her. in this context, it was observed :
"No doubt, presence of the family members of the defendants has been stated to be there by the plaintiffs witnesses, but that by itself will not make the Will suspicious unless something more than that is established. The Will in question in the instant case is registered and the deceased was identified by an Advocate before the Sub-Registrar. Simply because the testator was an old lady and natural heirs have been deprived by her is not by itself suspicious circumstance to discard the same....."
23. It may be remembered that deceased testator Shri Dilu was living at the relevant time with defendant No. 1 and there is nothing unnatural in defendant, the beneficiary, being present at the time of execution of the Will.
24. These are the only circumstances on which the learned District Judge discarded and invalidated the Will Exhibit DW 2/A. These circumstances, as discussed, cannot be said to be such which may raise such suspicion so as to invalidate the Will.
25. No other point is urged before me.
26. in result, the appeal is allowed, impugned judgment and decree of learned District Judge, Mandi, dated May 31, 1993 in Civil Appeal No. 77 of 1990 is set aside and that of learned Sub-Judge 1st Class. Court No. 2. Mandi dated March 25, 1985 is restored. The suit of the plaintiff stands dismissed. The plaintiff/respondent shall pay costs throughout.