Himachal Pradesh High Court
Naresh Kumar vs Of on 20 September, 2023
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No.202 of 2022
.
Date of Decision: 20.09.2023
Naresh Kumar ...Appellant
Versus
of
Ramesh Kumar and others ...Respondents
Coram
rt
Hon'ble Mr. Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes.
For the Appellant : Mr. Devender K. Sharma, Advocate.
For the Respondents : Mr. Ajay Chandel, Advocate, for
respondent No.1.
Respondents No.2 to 4 already
ex-parte vide order dated
14.9.2022.
Rakesh Kainthla, Judge (Oral)
The present appeal is directed against the judgment & decree dated 30.4.2022, passed by the learned Additional District Judge, Sarkaghat, District Mandi, H.P., vide which the appeal filed by the appellant (defendant before the learned Trial 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 25/09/2023 20:33:16 :::CIS 2Court) was dismissed and the judgment and decree dated 27.04.2019, passed by learned Senior Civil Judge, Court No. 1, .
Sarkaghat, District Mandi, H.P. was upheld. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).
2. Briefly stated, the facts giving rise to the present of appeal are that the plaintiff filed a civil suit before the learned rt Trial Court for seeking a declaration that the last Will dated 8.11.2005 is null and void. Consequential relief of permanent prohibitory injunction for restraining the defendant from interfering with half share of the property of the deceased Duni Chand in view of the earlier Will dated 27.5.2005, executed by the deceased in favour of the plaintiff was also sought. It was pleaded that Duni Chand was the father of the parties. He was a permanent resident of Village Yoh, Tehsil Sarkaghat, District Mandi, H.P. He executed a Will on 27.5.2005 in favour of the parties by bequeathing his property to the plaintiff and defendant in equal share. This Will was duly registered in the office of Sub Registrar, Sarkaghat on 27.5.2005. The father of the plaintiff suffered a paralysis attack after the execution of the Will dated 27.5.2005. He was confined to bed and unable to walk, ::: Downloaded on - 25/09/2023 20:33:16 :::CIS 3 speak and hear. The defendant took Duni Chand to his home and thereafter to Bhoranj upon the false pretext of getting him .
examined in the hospital. The defendant executed a Will on 8.11.2005. The witnesses mentioned in the Will are permanent residents of Tehsil Bhoranj, District Hamirpur and were not known to Duni Chand in any manner. The Will is a false and of fictitious document and was not executed by Duni Chand voluntarily. The plaintiff came to know about the Will when he rt went to the Patwari to get his Will entered in the revenue record.
Hence, the present suit was filed to seek the relief mentioned above.
3. The suit was opposed by filing a written statement, taking preliminary objections regarding lack of maintainability, locus standi and cause of action, the suit not being properly valued for the purpose of court fees and jurisdiction and the plaintiff being estopped to file the present suit by his act and conduct. The contents of the plaint were denied on merits. It was asserted that the Will dated 27.5.2005 was got executed by the plaintiff from Duni Chand forcibly. Duni Chand was not willing to execute any Will in favour of the plaintiff, as the plaintiff never looked after and maintained Duni Chand during his ::: Downloaded on - 25/09/2023 20:33:16 :::CIS 4 lifetime. The defendant used to maintain and look after Duni Chand. Duni Chand executed a Will on 8.11.2005 voluntarily after .
being satisfied with the services rendered by the defendant. The deceased was suffering from malignancy. He was unable to walk, hear and speak. The deceased was got medically checked up at Bhoranj by the Doctors. Duni Chand telephonically called of the plaintiff's wife and asked her to pay him some money to meet the expenditure of medicines; however, she refused.
rt Hence, the deceased executed a Will in favour of the parties bequeathing a larger share to the defendant. Will was executed in a free and sound disposing state of mind by the deceased voluntarily. The suit was filed without any basis. Hence, it was prayed that the suit be dismissed.
4. A replication denying the contents of the written statement and affirming those of the plaint was filed.
5. The learned Trial Court framed the following issues on 24.8.2006:-
1. Whether the plaintiff is entitled for the relief of declaration, as prayed for? OPP.
2. Whether the plaintiff is entitled for the relief of injunction, as prayed for? OPP.::: Downloaded on - 25/09/2023 20:33:16 :::CIS 5
3. Whether late Sh. Duni Chand has executed a genuine will dated 08.11.2005 as alleged? OPD.
4. Whether the will dated 08.11.2005 is false and fake .
document and liable to be set aside, as alleged? OPP.
5. Whether Will dated 27.5.2005 is a genuine document, as alleged?
6. Whether the suit in the present form is not maintainable, as alleged? OPD.
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7. Whether plaintiff has got no cause of action to the present suit, as alleged? OPD.
8. rt Whether suit of the plaintiff has not been properly valued for the purpose of court fees and jurisdiction, as alleged? OPD.
9. Whether plaintiff is estopped from filing the present suit, as alleged? OPD.
10. Relief.
6. The parties were called upon to produce the evidence.
The plaintiff Ramesh Kumar examined himself (PW-1), Bhagirath (PW-2), Ramesh Chand (PW-3), Khem Chand Thakur PW-4), Raj Kumar (PW-5) and Sukh Ram (PW-6). The defendant examined S.C. Guleria (DW-1), Rup Lal Sharma (DW-
2), Suresh Kumar (DW-3), Pratap Singh (DW-4), Amar Nath (DW-5) and himself (DW-6).
7. Initially learned Trial Court dismissed the suit on 10.12.2014. An appeal was preferred, which was decided by the ::: Downloaded on - 25/09/2023 20:33:16 :::CIS 6 learned Additional District Judge, Mandi who remanded the matter to the learned Trial Court with a direction to implead all .
the legal heirs of Duni Chand as party.
8. An application for impleading the legal heirs was filed; however, the legal heirs did not appear to contest the suit and they were proceeded ex-parte.
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9. The Learned Trial Court held that the plaintiff was rt able to prove the due execution of the Will (Ex.PW-3/A) and there was no material to establish that the Will (Ex.PW-3/A) was got executed from Duni Chand forcibly. The Will (Ex.PW-3/A) propounded by the defendant was shrouded in suspicious circumstances. The propounder Naresh Kumar asserted that Duni Chand had gone to get the Will executed himself, whereas the scribe stated that he was accompanied by the propounder and his wife. This shows that the propounder was concealing something from the Court. Duni Chand was admittedly suffering from cancer. He died some days after the execution of the Will.
No Medical Officer was examined to prove the mental condition of Duni Chand. Earlier Will dated 27.5.2005 was executed at Sarkaghat, whereas the second Will dated 8.11.2005 was ::: Downloaded on - 25/09/2023 20:33:16 :::CIS 7 executed at Bhoranj. The witnesses were also residents of Tehsil Bhoranj. Propounder was unable to remove the suspicious .
circumstances surrounding the execution of the Will. Hence, learned Trial Court answered Issues No. 1, 2, 4 and 5 in affirmative, issues No. 3, 6, 7, 8 and 9 in negative and decreed the suit of the plaintiff.
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10. Being aggrieved from the judgment and decree rt passed by the learned Trial Court, the defendant filed an appeal, which was decided by the learned Additional District Judge Sarkaghat, District Mandi, H.P. Learned First Appellate Court held that the onus is upon the propounder to explain the suspicious circumstances. If the conscience of the Court is not satisfied regarding the execution of the Will, the Court will not give effect to the same. Duni Chand was ill and suffering from cancer at the time of the execution of his last Will dated 8.11.2005 (Ex.DW-1/A). The earlier Will dated 27.5.2005 (Ex.PW-
3/A) was executed at Sarkaghat, whereas the last Will dated 8.11.2005 (Ex.DW-1/A) was executed at Bhoranj. The witnesses to the last Will (Ex.DW-1/A) were the residents of Tehsil Bhoranj. The propounder was not able to explain these circumstances. Hence, the appeal was dismissed.
::: Downloaded on - 25/09/2023 20:33:16 :::CIS 811. Being aggrieved from the judgments and decrees passed by the learned Courts below, the defendant has filed the .
present appeal asserting that the learned Courts below erred in holding that the defendant had failed to prove that the earlier Will dated 27.5.2005 was not genuine and was not executed by Duni Chand in his sound disposing state of mind. The Will dated of 27.5.2005 was revoked by Duni Chand by executing his last Will on 8.11.2005 giving sufficient reasons for the revocation of the rt Will. The deceased was happy with the services rendered by the defendant and the plaintiff had failed to provide the medical expenses to the deceased. The dispositions were natural, and probable and could not be doubted on the ground that some benefit was conferred upon the beneficiary as compared to other legal heirs. The learned Courts below erred in describing the normal circumstances as suspicious; therefore, it was prayed that the present appeal be allowed and the judgments and decrees passed by the learned Courts below be set aside.
12. The following substantial questions of law were proposed in the memorandum of appeal:-
1. Whether the learned First Appellate Court as well as the learned Trial Court below misconstrued and ::: Downloaded on - 25/09/2023 20:33:16 :::CIS 9 misread oral as well as documentary evidence led by the parties which resulted in rendering wrong findings in the judgment and decree?
.
2. Whether the learned Courts below committed error of law in holding Ex.DW-1/A i.e. Will dated 8.11.2005 shrouded by suspicious circumstances.
3. Whether the findings given by the learned Courts below are perverse in nature and unsustainable in the of eyes of law qua holding the Will dated 8.11.2005 shrouded by suspicious circumstances?
4. Whether defendant No.1 duly proved the valid rt execution and attestation of the Will dated 8.11.2005 in accordance with law and the depositions made in the will are natural, probable and fair in the light of the circumstances stated in the last will itself?
13. I have heard Mr. Devender K. Sharma, learned Counsel for the appellant-defendant no. 1 and Mr. Ajay Chandel, learned Counsel for the respondent no.1/ plaintiff.
14. Mr. Devender K. Sharma, learned Counsel for the appellant-defendant no. 1 submitted that the learned Courts below erred in holding that the mental capacity of the testator was not proved. There is a distinction between physical and mental health and the learned Courts below erred in equating the two. The presence of the beneficiary is not a suspicious circumstance. The fact that the witnesses belonged to different Tehsils could also not be considered to be suspicious ::: Downloaded on - 25/09/2023 20:33:16 :::CIS 10 circumstances. The plea of fraud or force was not properly pleaded and the learned Courts below erred in taking note of the .
same. There was no suspicious circumstance and the learned Courts below erred in holding that the Will was shrouded in suspicious circumstances. Hence, he prayed that the appeal be allowed and the judgments and decrees passed by learned Courts of below be set aside.
15. rt Mr. Ajay Chandel, learned Counsel for respondent no.1/plaintiff supported the judgments and decrees passed by the learned Courts below and submitted that no interference is required with the same. Learned Courts below had rightly held that the propounder was concealing the material facts from the Court. It is an admitted case that the testator was suffering from cancer. As per the evidence of the plaintiff, he was unable to move in May and it is highly dobtful that he would have been in a position to appear before the Tehsildar by himself, as claimed by the propounder. The scribe contradicted the propounder by saying that he and his wife were present. The propounder failed to remove the suspicious circumstances surrounding the execution of the Will. The learned Trial Court had rightly decreed the suit and there is no infirmity in the judgments and ::: Downloaded on - 25/09/2023 20:33:16 :::CIS 11 decrees passed by the learned Courts below. The appeal does not involve any substantial question of law. Hence, he prayed that .
the appeal be dismissed.
16. I have given considerable thought to the rival submissions at the bar and have gone through the record carefully.
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17. Learned counsel for the appellant relied upon the rt judgment of Hon'ble Supreme Court in Ishwar Dass Jain v. Sohan Lal, (2000) 1 SCC 434: 1999 SCC OnLine SC 1235, wherein it was observed at page 440:
"11. There are two situations in which interference with findings of fact is permissible. The first one is when material or relevant evidence is not considered which, if considered would have led to an opposite conclusion. This principle has been laid down in a series of judgments of this Court in relation to Section 100 CPC after the 1976 Amendment. In Dilbagrai Punjabi v. Sharad Chandra [1988 Supp SCC 710] while dealing with a second appeal of 1978 decided by the Madhya Pradesh High Court on 20-8-1981, L.M. Sharma, J. (as he then was) observed that: (SCC pp. 712-13, para 5) "The court (the first appellate court) is under a duty to examine the entire relevant evidence on record and if it refuses to consider important evidence having direct bearing on the disputed issue and the error which arises is of a magnitude that it gives birth to a substantial question of law, the High Court is fully authorised to set aside the finding. This is the situation in the present case."::: Downloaded on - 25/09/2023 20:33:16 :::CIS 12
In that case, an admission by the defendant tenant in the reply notice in regard to the plaintiff's title and the description of the plaintiff as "owner" of the property .
signed by the defendant were not considered by the first appellate court while holding that the plaintiff had not proved his title. The High Court interfered with the finding on the ground of non-consideration of vital evidence and this Court affirmed the said decision. That was upheld. In Jagdish Singh v. Natthu Singh [(1992) 1 SCC 647] with reference to a second appeal of 1978 disposed of of on 5-4-1991, Venkatachaliah, J. (as he then was) held:
(SCC p. 652, para 10) "... where the findings by the court of facts is vitiated by non-consideration of relevant evidence or by an rt essentially erroneous approach to the matter, the High Court is not precluded from recording proper findings."
Again in Sundra Naicka Vadiyar v. Ramaswami Ayyar [1995 Supp (4) SCC 534] it was held that where certain vital documents for deciding the question of possession were ignored -- such as a compromise, an order of the Revenue Court -- reliance on oral evidence was unjustified. In yet another case in Mehrunnisa v. Visham Kumari (1998) 2 SCC 295 arising out of second appeal of 1988 decided on 15-1-
1996, it was held by Venkataswami, J. that a finding arrived at by ignoring the second notice issued by the landlady and without noticing that the suit was not based on earlier notices, was vitiated and the High Court could interfere with such a finding. This was in the second appeal of 1988 decided on 15-1-1996.
12. The second situation in which interference with findings of fact is permissible is where a finding has been arrived at by the appellate court by placing reliance on inadmissible evidence which if it was omitted, an opposite conclusion was possible. In Sri Chand Gupta v. Gulzar Singh (1992) 1 SCC 143 it was held that the High Court was right in interfering in the second appeal where the lower appellate court relied upon an admission of a ::: Downloaded on - 25/09/2023 20:33:16 :::CIS 13 third party treating it as binding on the defendant. The admission was inadmissible as against the defendant. This was also a second appeal of 1981 disposed of on 24- .
9-1985.
18. Learned counsel for the respondent no. 1-plaintiff, on the other hand, relied upon the judgment of Hon'ble Supreme Court in State of Haryana v. Harnam Singh, (2022) 2 SCC of 238 : (2022) 1 SCC (Civ) 736: 2021 SCC OnLine SC 1130 and submitted that the concurrent findings of the Will regarding the rt validity/invalidity of the Will is not a substantial question of law and it is not permissible for the High Court to go into the same while deciding an appeal under Section 100 of CPC. It was observed at page 243:-
11. Thus, the High Court erred in formulating the question of law on the basis that the will was proved in terms of Section 63 of the Succession Act, 1925. In fact, both the fact-finding courts--the trial court and the first appellate court, had found that the will was not proved. The evidence of the witnesses was disbelieved as they failed to inspire the confidence of fact-finding courts. The High Court, however, went into a detailed factual enquiry to come to its findings. We are of the opinion that an enquiry of such nature was impermissible while hearing an appeal under Section 100 of the Civil Procedure Code, 1908.
12. In our opinion the finding of the trial court and the first appellate court ought not to have been interfered with by the High Court. We do not find any perversity in the judgment of the first two courts of facts.::: Downloaded on - 25/09/2023 20:33:16 :::CIS 14
19. It was laid down in T. Ramalingeswara Rao v. N. Madhava Rao, (2019) 4 SCC 608: (2019) 2 SCC (Civ) 594: 2019 SCC .
OnLine SC 474 that the High Court cannot interfere with the concurrent findings of fact unless the same are perverse. It was observed at page 610:
"11. When the two courts below have recorded concurrent of findings of fact against the plaintiffs, which are based on appreciation of facts and evidence, in our view, such findings being concurrent in nature are binding on the rt High Court. It is only when such findings are found to be against any provision of law or the pleading or evidence or are found to be wholly perverse, a case for interference may call for by the High Court in its second appellate jurisdiction.
12. Such was not the case made out in the High Court. It is for this reason, we are of the view that the High Court should not have interfered in the findings of the two courts below and instead, the findings should have been upheld by the High Court."
20. Therefore, the present case has to be seen in the light of the judgments of the Hon'ble Supreme Court and it has to be determined whether the reliance was placed upon some inadmissible evidence to record the findings or some material evidence was ignored. If the view taken by the learned Courts below was a possible view, it is not permissible to interfere with that view while exercising the jurisdiction under Section 100 of ::: Downloaded on - 25/09/2023 20:33:16 :::CIS 15 CPC, even if the High Court would have taken another view, had the matter been decided by it at the first instance.
.
21. The defendant asserted in para-2 of the written statement that Duni Chand had not executed the Will dated 27.5.2005 voluntarily and the Will was got executed from him forcibly. The defendant propounded a Will (Ex.DW-1/A), in of which it was specifically mentioned that the testator had rt executed a Will in May 2005 at Sarkaghat and the same should be treated as cancelled/revoked. It was laid down by Hon'ble Supreme Court in Bhagwat Sharan v. Purushottam, (2020) 6 SCC 387: 2020 SCC OnLine SC 348 that a person claiming under a Will cannot challenge the remaining portion of the Will. It was observed at page 397:
"26. It is also not disputed that the plaintiff and Defendants 1 to 3 herein filed suit for eviction of an occupant in which he claimed that the property had been bequeathed to him by Hari Ram. According to the defendants, the plaintiff having accepted the will of Hariram and having taken benefit of the same, cannot turn around and urge that the will is not valid and that the entire property is a joint family property. The plaintiff and Defendants 1 to 3 by accepting the bequest under the will elected to accept the will. It is a trite law that a party cannot be permitted to approbate and reprobate at the same time. This principle is based on the principle of the doctrine of election. In respect of wills, this doctrine has been held to mean that a person who takes benefit of a ::: Downloaded on - 25/09/2023 20:33:16 :::CIS 16 portion of the will cannot challenge the remaining portion of the will. In Rajasthan State Industrial Development & Investment Corpn. v. Diamond & Gem .
Development Corpn. Ltd. [Rajasthan State Industrial Development & Investment Corpn. v. Diamond & Gem Development Corpn. Ltd., (2013) 5 SCC 470 : (2013) 3 SCC (Civ) 153: AIR 2013 SC 1241], this Court made an observation that a party cannot be permitted to "blow hot and cold", "fast and loose" or "approbate and reprobate". Where one party knowingly accepts the of benefits of a contract or conveyance or an order, it is estopped to deny the validity or binding effect on him of such contract or conveyance or order.
27. The doctrine of election is a facet of the law of rt estoppel. A party cannot blow hot and blow cold at the same time. Any party which takes advantage of any instrument must accept all that is mentioned in the said document. It would be apposite to refer to the treatise Equity--A Course of Lectures by F.W. Maitland, Cambridge University, 1947, wherein the learned author succinctly described the principle of election in the following terms:
"The doctrine of election may be thus stated: that he who accepts a benefit under a deed or will or other instrument must adopt the whole contents of that instrument, must conform to all its provisions and renounce all rights that are inconsistent with it...."
This view has been accepted to be the correct view in Karam Kapahi v. Lal Chand Public Charitable Trust [Karam Kapahi v. Lal Chand Public Charitable Trust, (2010) 4 SCC 753 : (2010) 2 SCC (Civ) 262]. The plaintiff having elected to accept the will of Hari Ram, by filing a suit for eviction of the tenant by claiming that the property had been bequeathed to him by Hari Ram, cannot now turn around and say that the averments made by Hari Ram that the property was his personal property, is incorrect."
::: Downloaded on - 25/09/2023 20:33:16 :::CIS 1722. Therefore, in view of the binding precedent of the Hon'ble Supreme Court, it was not permissible for the defendant .
to say that the testator had not executed a Will in May 2005 when the execution of such Will was acknowledged by the testator in a Will propounded by the defendant.
23. The learned Courts below discarded the Will (Ex.DW-
of 1/A) on three grounds -- first, the defendant had concealed his rt presence on the spot, second, the mental capacity of the testator was not established which was necessary keeping in view the illness of the testator and third, the Will was executed at Bhoranj without any justification, especially when the earlier Will (Ex.PW-3/A) was executed at Sarkaghat by the deceased.
24. The defendant while appearing as DW-6 stated that he had accompanied the testator to Bhoranj Hospital the 8th November, 2005. The Doctor examined the testator and issued the prescription slip. The defendant took the prescription slip to medical store where the testator met some persons known to him. The testator talked to them and thereafter he accompanied them after telling the defendant to wait for some time at the medical store. He returned with the testator after 1-1½ hours.
::: Downloaded on - 25/09/2023 20:33:16 :::CIS 18The testator did not disclose anything to him on that day and informed him after 10-12 days that he had executed a Will at .
Bhoranj.
25. This version was falsified by S.C. Guleria (DW-1), who stated in his cross-examination that Naresh Kumar and his wife came to him to get the Will written at 10.30 a.m. Duni Chand was of ill but he could walk.
26. rt This witness was put forward as a witness of truth by the defendant and his testimony is binding upon him. The statement of this witness clearly shows that the defendant Naresh Kumar and his wife were not only present but had gone to the scribe to get the Will written. It is true that the mere presence of the beneficiary at the time of the execution of the Will is not a suspicious circumstance as laid down by the Hon'ble Supreme Court in Pentakota Satyanarayan and others Vs. Pentakota Seetharatnam and others (2005) 8 SCC 67 but the fact that the propounder had lied to conceal his presence would legitimately lead to suspicion regarding the motive of the propounder to do so.
::: Downloaded on - 25/09/2023 20:33:16 :::CIS 1927. Bhagirath (PW-2) stated in his cross-examination that Duni Chand was unable to walk on the date of the execution .
of the earlier Will. His son carried him on his back from the home. Sub Registrar used to sit on the second floor and Duni Chand was lifted to the office of the Sub Registrar. Suresh Kumar (DW-3) also admitted that Duni Chand had suffered paralysis of and was unable to move. It was mentioned in the Will (Ex.DW-
1/A) that the testator was seriously ill (Sakhat Bimar). It was rt further stated in the last lines of the Will that his hands were shaking due to the illness; therefore, he was putting his thumb impression instead of putting the signatures. It is admitted that Duni Chand died on 25.11.2005 within one month of the execution of the Will.
28. Keeping in view the recital in the Will and the statements of the witnesses, it is highly unlikely that the deceased would have been in a position to go to the Sub Registrar to get the Will executed on his own. In these circumstances, learned Courts below were justified in doubting the circumstances surrounding the execution of the Will. The defendant instead of explaining these circumstances compounded them by telling a falsehood that he had not ::: Downloaded on - 25/09/2023 20:33:16 :::CIS 20 accompanied the testator to the Sub Registrar and had remained in the medical store. The situation would have been otherwise .
had the propounder come to the Court with fairness and disclosed that he had carried the testator to the Sub Registrar as per his wishes. The Court would not have been alarmed in such a situation. Thus, the first circumstance relied on by the learned of Courts below cannot be said to be irrelevant or not raising the suspicion regarding the execution of the Will.
rt
29. It was duly established that the testator was seriously ill (as per his own admission in the Will), he had suffered paralysis and he was unable to move. He died within a month of the execution of the Will. Therefore, in these circumstances, learned Courts below cannot be faulted for insisting upon the proper proof of the mental state and the capacity of the testator to execute the Will. There be no dispute with the submission that there is a distinction between physical and mental illness and that physical illness does not lead to mental illness. However, in case a person suffering from cancer and paralysis is unable to move and dies within one month of the execution of the Will, the Court would require proper proof that the testator had understood the recitals and had put his/her thumb ::: Downloaded on - 25/09/2023 20:33:16 :::CIS 21 impression/signatures in a proper sound disposing state of mind. Such evidence was lacking in the present case.
.
30. It was admitted that the earlier Will was executed at Sarkaghat, District Mandi and the second Will was executed at Bhoranj, District Hamirpur in a different Tehsil and different Districts. Naresh Kumar (DW-6) stated that his house is at a of distance of 5 kilometres from Sarkaghat whereas Bassi rt (Bhoranj) is at a distance of 15 kilometres from his house. There is no explanation as to why the testator would choose a place which is far away from his home instead of a place which was nearer to his home. An explanation was given that the testator had gone to Bhoranj, where he was medically treated and the deceased chose to get the Will executed at Bhoranj. This explanation is not supported by any contemporaneous record.
No medical prescription of the date when the Will was executed was placed on record. As per the defendant, the Will was written at around noon after the testator was examined in the hospital, whereas S.C. Guleria, Scribe (DW-1) stated that the defendant and his wife came to him at 10:30 AM. This makes the version of the defendant doubtful that the testator had gone to the Sub Registrar after getting himself examined. In these ::: Downloaded on - 25/09/2023 20:33:16 :::CIS 22 circumstances, the prescription slip or the record of the hospital was required to show that the testator was examined in the .
hospital and in the absence of the same, learned Courts below were justified in casting aspersion on the execution of the Will.
31. The learned Courts below held that the witnesses to the Will (Ex.DW-1/A) were the residents of Tehsil Bhoranj, of District Hamirpur, which was a different Tehsil and District. The rt defendant stated that the testator met the persons who were known to him in the medical store and thereafter he accompanied them to the Sub Registrar. The witnesses did not state any such fact in their testimonies.
32. Suresh Kumar (DW-3), the marginal witness to the Will admitted in his cross-examination that the propounder is his brother-in-law related to him by the village. This shows that the propounder had not only met the scribe but he had also associated the witness related to him. This is another circumstance to cast doubt regarding the execution of the Will.
33. Therefore, in these circumstances, the mere proof of the signatures/thumb mark of the testator was not sufficient and the Courts were entitled to ask the propounder to satisfy its ::: Downloaded on - 25/09/2023 20:33:16 :::CIS 23 conscience regarding the due execution of the Will. This duty was cast upon the Court even if no such plea was raised by the .
party. It was laid down by the Hon'ble Supreme Court in the celebrated case of H. Venkatachala Iyengar v. B.N. Thimmajamma, 1959 Supp (1) SCR 426: AIR 1959 SC 443 that the propounder is bound to remove the suspicious circumstances before the Court of acts upon the Will. It was observed:
rt "19. However, there is one important feature which distinguishes wills from other documents. Unlike other documents, the will speaks from the death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will.
Ordinarily, when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.
::: Downloaded on - 25/09/2023 20:33:16 :::CIS 2420. 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 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 rt the testator's free will and mind. In such cases, the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter.
21. Apart from the suspicious circumstances to which we have just referred, in some cases the wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has received a substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the ::: Downloaded on - 25/09/2023 20:33:16 :::CIS 25 propounder is required to remove the said suspicion by clear and satisfactory evidence. It is in connection with wills that present such suspicious circumstances that .
decisions of English courts often mention the test of the satisfaction of judicial conscience. It may be that the reference to judicial conscience in this connection is a heritage from similar observations made by ecclesiastical courts in England when they exercised jurisdiction with reference to wills; but any objection to the use of the word "conscience" in this context would, in our opinion, be of purely technical and academic, if not pedantic. The test merely emphasizes that, in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is deciding a solemn rt question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive.
34. In the present case, the circumstances required proper explanation and if no explanation was provided, the Courts cannot be faulted on the ground that no such pleas were taken by the person challenging the execution of the Will.
35. No other point was urged.
36. Therefore, the learned Courts below have properly appreciated the evidence led before them and there is no perversity in the judgments and decrees passed by the learned Courts below.
37. In view of the above, no substantial question of law arises in the present case; hence the appeal is dismissed.
::: Downloaded on - 25/09/2023 20:33:16 :::CIS 2638. Pending application(s), if any, also stand(s) disposed of.
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(Rakesh Kainthla) Judge 20th September, 2023 (Chander) of rt ::: Downloaded on - 25/09/2023 20:33:16 :::CIS