Andhra Pradesh High Court - Amravati
Taneeru Sujatha vs Taneeru Giridhara Satyanarayana on 1 August, 2022
THE HON'BLE Ms. JUSTICE B.S.BHANUMATHI
Appeal Suit No.316 of 2012
JUDGMENT:
This appeal is preferred against the judgment and decree, dated 27.01.2011, passed in O.S.No.79 of 2006 on the file of the Court of Senior Civil Judge, Markapur, Prakasam District.
2. The pleadings of the parties, as narrated before the trial Court, in brief, are as follows:
(a) The plaintiff's father, Venkata Ramana and the 2nd defendant's husband, late Srinivasulu are brothers and their father is Satyanarayana and the 1st defendant is their mother. During the life time of Satyanarayana, there was division of the family properties and the plaint A & B schedule properties fell to the share of late Srinivasulu, the husband of the 2nd defendant and therefore, they are his absolute properties. Late Srinivasulu divorced his 1st wife and married the 2nd defendant. He had no happy marital life with the 2nd defendant. He became sick and there were no chances of begetting children. He developed serious heart decease and the cardiologist opined that his heart may collapse at any moment. Late Srinivasulu developed the idea of adopting the plaintiff, his brother's son and ultimately determined to adopt him. On 15.05.2006, Srinivasulu, in a sound disposing state of mind, executed a will deed directing his wife to adopt the plaintiff to him and bequeathing the plaint 'A' schedule house to the plaintiff with absolute rights. In the said will, he directed that the plaintiff and the defendants shall divide the plaint 'B' schedule properties into three equal shares and take each one of such shares.2
BSB, J A.S.No.316 of 2012 The said will was executed and adjusted according to law and it was his last will.
(b) Srinivasulu died on 31.05.2006. On his death, plaint 'A' schedule house vested on the plaintiff alone with absolute right and the plaint 'B' schedule movable properties vested on the plaintiff and the defendants in equal shares. Thus, the plaintiff became the absolute owner of the plaint 'A' schedule house and he became entitled to joint 1/3rd share in the plaint 'B' schedule properties. The 2nd defendant is squatting in the plaint 'A' schedule house and having custody of the 'B' schedule movable and the papers relating to them. Under the evil advice of her parents and local busy bodies, she is not inclined to vacate the plaint 'A' schedule properties. Hence, the suit is filed for the benefit of minor plaintiff and for possession of plaint 'A' schedule house and partition of 'B' schedule movables.
(c) The plaintiff sought the following reliefs:-
" (i) declare title of the plaintiff in the plaint 'A' schedule house and eject the 2nd defendant there from and deliver possession of the 'A' schedule house to the plaintiff through the process of Court;
(ii) pass preliminary and final decrees directing partition of the plaint 'B' schedule movable property into three equal shares and direct delivery of one of such shares to the plaintiff or pay their money value to the plaintiff with interest thereon;
(iii) Award costs of the suit;
(iv) direct enquiry into future mesne profits; and
(v) grant such other reliefs as this Court deems fit and proper
in the circumstances of the case."
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A.S.No.316 of 2012
3. The 1st defendant filed written statement denying all the plaint averments and further contending that Srinivasulu executed a will on 15.05.2006 in a sound and disposing state of mind and it was his last will. According to the said will, this defendant is entitled to 1/3rd share in the plaint 'B' schedule properties. 'A' schedule house absolutely belongs to the plaintiff as per the said will. This defendant never refused to cooperate for partition of the 'B' schedule properties. This defendant is ready to cooperate for partition of the 'B' schedule property and also to pay the requisite stamp duty for engrossing the final decree. Under any circumstances, this defendant is not liable for the suit costs. Hence, the suit may be disposed of accordingly.
(b) The 2nd defendant filed written statement with the following averments:
The alleged will, dated 15.05.2006 said to have been executed by Srinivasulu is a forged one. The 1st defendant and the father of the plaintiff, Venkata Ramana with an intention to obtain unlawful gain, created the said will with the help of his relatives. In fact, the 2nd defendant's husband, Thaneeru Srinivasulu and his family members partitioned their joint family properties in the year 1991. After partition of the joint family property, the husband of the 2nd defendant, Srinivasulu, purchased the plaint A schedule building under a registered sale deed, dated 05.08.1992 and obtained possession of it and is, thus his self acquired property. Late Srinivasulu also executed a relinquishment deed, on 30.04.1993 in favour of his father and his brothers. But the mother & brothers executed an agreement on 02.02.2003. The family members of Srinivasulu, are not entitled to the plaint 'A' schedule property.4
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(c) During the life time of the 1st defendant's husband, Satyanarayana, the joint family properties were divided among himself and his three sons, namely, (i) Srinivasu, (ii) Venkata Ramana, and
(iii) Chandrasekhar, who were minors by then, represented by the father, Satyanarayana. Under the said family arrangement, the house bearing Door No.4/227 situated in Rajaji Street, Markapur, and another house bearing No.3/315 was allotted to the parents. Half of the house bearing No.4/227 in Rajaji street shall be enjoyed by the husband of the 1st defendant with absolute rights and the remaining half share shall revert to all the three sons equally after the life time of Satyanarayana and his wife, the 2nd defendant, to be enjoyed by all the three sons with absolute rights. The rest of the house properties were allotted to all the three sons. Satyanarayana died during the year 1999. The husband of this defendant and his two brothers are each entitled to an undivided 1/3rd share in half of the house bearing No.4/227 after the demise of the 1st defendant. The suit was filed by the plaintiff for partition without showing half share in D.No.4/227 in which the husband of this defendant is entitled to 1/3rd joint share along with his two brothers in which this defendant is entitled to an undivided 1/3rd share from out of the half share in the said house. The suit is bad for non joinder of other two brothers who are entitled to an undivided 2/3rd share therein. The plaintiff did not issue any notice nor made any demand for partition of the plaint schedule property. As such, this defendant is not liable for suit costs also. After partition of the joint family properties, the husband of the defendant purchased the plaint 'A' schedule property under a registered sale deed, dated 05.08.1992, and it is the self acquired property of this defendant husband and not joint family property as alleged in the plaint. The 5 BSB, J A.S.No.316 of 2012 alleged idea of 2nd defendant's husband to take the plaintiff as his adopted son, execution of the will dated 15.05.2006 and all further averments in the plaint, are imaginary.
(d) It is true that by the time of death of the defendant's husband, Srinivasulu, there were fixed and other deposits that were standing in his name in postal department, Sahara Bank and Shriram Chits by the time of withdrawal of the said deposits by this defendant, the said amounts under the above head came to Rs.5,20,000/-. The amounts that were shown in plaint 'B' schedule as against the respective dates are not correct. By the time of death of deceased Srinivasulu, he was indebted to several others under various promotes to a tune of Rs.4,00,000/-. As the creditors pressurized, this defendant discharged the burden from out of the amount withdrawn under the above said deposits. This defendant paid Rs.52,300/- to Immadietty Subrahmanyam, Rs.64,100/- to Meda Srimannarayana, Rs.41,300/- to Bondili Hanuman Singh, Rs.46,500/- to Gogu Venkateswarlu all belong to Markapur town. She also paid Rs.72,100/- to Gurram Lakshminarayana of Vinukonda, Rs.50,600/- to Kanumarlapudi Koteswara Rao of Srungavarpukota and Rs.73,100/- to Gurram Subba Rao of Darsi village, in all, a sum of Rs.4,00,000/-. In addition, this defendant incurred an expenditure of Rs.1,00,000/- towards performance of obsequies of her husband. The 1st defendant, who is mother-in-law of this defendant, did not cooperate with this defendant in meeting the above said expenditure. The 1st defendant is bound to share her half share of liability in discharging the family debt incurred by the husband of this defendant. There is absolutely no outstanding balance amount as shown in 'B' schedule to be partitioned in between 6 BSB, J A.S.No.316 of 2012 this defendant and the 2nd defendant. In fact, no amount is due to husband of this defendant either by way of pronote or otherwise shown as against their names.
(e) The defendants further submit that with respect to gold ornaments shown in 'B' schedule of the plaint except three sovereign nonthadu, the rest of the gold ornaments are not at all in possession by the family of this defendant. Likewise, the plaintiff has also shown some silver articles which are non-existent. Hence, the 1st defendant is not all entitled to make a claim against the 'B' schedule movables. The plaintiff is also not entitled to claim anything in the plaint schedule property. The defendants prayed to dismiss the suit.
4. Basing on the above pleadings, the trial Court settled the following issues for trial:-
(i) Whether there was division of the family properties during the life time of Satyanarayana? If so,
(ii) Whether plaint 'A' schedule properties fell to the share of late Srinivasulu?
(iii) Whether the Shri Ram Finance deposits, Sahara deposits, fixed deposits, postal RD bonds and miss deposits, share in 'B' schedule are family properties of Satyanarayana and his sons? If so they fell to the share of late Srinivasulu in the alleged division of family properties?
(iv) Whether promissory notes mentioned in 'B' schedule are unavailable? If so, whether they fell to share of late Srinivasulu in the alleged division of family properties?
(v) Whether the gold properties mentioned in "B" schedule are alienable? If so whether they fell to share of late Srinivasulu in the alleged division of family properties?
(vi) Whether Will of 15.05.2006 alleged to be executed by late Srinivasulu is true, valid and binding on the defendants?
(vii) Whether plaintiff is entitled to the relief of declaration as prayed for?
(viii) Whether plaintiff is entitled to the relief of partition as prayed for?7
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(ix) To what relief?
5. During the course of trial, on behalf of the plaintiffs, PWs 1 to 3 were examined and exhibit A1, registered Will dated 15.05.2006, is marked. On behalf of the defendants, DWs 1 & 2 were examined and exhibits B1 to B8 were marked.
6. On the basis of above oral and documentary evidence and on hearing the counsel for the parties, the trial Court decreed the suit with costs and held that the plaintiff is entitled for decree of 1/3rd share of 'B' schedule property. PW1 is held entitled for declaration as prayed for in 'A' schedule property and 2nd defendant is liable to be ejected from the plaint schedule property within three months from the date of the judgment.
7. Aggrieved by the decree and judgment of the trial Court, the 2nd defendant preferred this appeal.
8. Heard Ms. Nimmagadda Revathi, learned counsel for the appellant/2nd defendant and Sri M.R.S.Srinivas, learned counsel for the 1st respondent/plaintiff.
9. The appellant while reiterating the above contentions further urged, in grounds of appeal, as follows:
(i) The decree and judgment of the Court below are contrary to law, weight of evidence and probabilities of the case;
(ii) The trial Court erred in holding that the plaintiff proved exhibit A1, will, by examining one attestor and scribe;8
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(iii) The trial Court failed to observe the suspicious circumstances surrounding execution of the Will by the deceased Srinivasulu and that though the defendants brought to the notice of the trial Court the suspicious circumstances, which are vital in nature, the trial Court did not choose to appreciate the same and record findings thereon;
(iv) The trial Court failed to consider that though it is the contention of the plaintiff that the deceased testator was suffering from heart problem and being treated by a doctor, and therefore, he intended to execute a will, the plaintiff utterly failed to produce any document or examine the doctor to show that the testator was suffering from heart ailment;
(v) The trial Court did not consider and did not even discuss various discrepancies in the evidence of PWs 1 to 3 regarding the execution of the Will for which there is no explanation from the plaintiff;
(vi) The trial Court failed to consider that the will was not registered though there is sufficient time gap between the date of alleged execution of the will and the date of death of the testator;
(vii) The trial Court failed to take into consideration the fact that PW1 played more active role than the testator in getting the Will prepared and executed in favour of his minor son, which is a suspicious circumstance;
(viii) The trial Court failed to consider that the alleged plea of adoption was not established by the plaintiff;
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(ix) As per the provisions of Hindu Adoptions and Maintenance Act, adoption by a spouse is invalid, if it is without the consent of other spouse.
(x) The trial Court erred in relying upon the evidence and opinion of the handwriting expert in spite of the fact that no contemporaneous signature was sent for comparison and in spite of the settled law that the opinion of a handwriting expert is a weak piece of evidence;
(xi) The trial Court failed to consider that mere proof of signature is not sufficient to prove the execution of the Will;
(xii) The trial Court ought to have dismissed the suit since the will has not been proved to have been executed by the testator in a sound and disposing state of mind;
10. The main contention the appellant is that the Will said to have been executed by her husband is shrouded with many suspicious circumstances which were not explained by the 1st respondent/ plaintiff, yet, the trial Court believed the Will erroneously and even improperly describing it as a registered will though it is an unregistered Will. Learned counsel for the appellant placed reliance o the decision of the Supreme Court in Smt. Jaswant Kaur v. Smt. Amrit Kaur1, wherein the standard of evidence required to prove a Will, as elaborated in the decision in H.Venkatachala Iyangar v. B.N.Thimmajamma2 was affirmed. Paragraph Nos.9 and 10 of the decision in Jaswant Kaur (1 supra) read as under: 1
(1977) 1 Supreme Court Cases 369 2 AIR 1959 SC 443 10 BSB, J A.S.No.316 of 2012 "9. In cases where the execution of a will is shrouded in suspicion, its proof ceases to be a simple Us between the plaintiff and the defendant. What, generally, is an adversary proceeding becomes in such cases a matter of the court's conscience and then the true question which arises for consideration is whether the evidence led by the propounder of the will is such as to satisfy the conscience of the court that the will was duly executed by the testator. It is impossible to reach such satisfaction unless the party which sets up the will offers a cogent and convincing explanation of the suspicious circumstances surrounding the making of the will.
10. There is a long line of decisions bearing on the nature and standard of evidence required to prove a will. Those decisions have been reviewed in an elaborate judgment of this Court in R. Venkatachala Iyengar v. B.N. Thirnmajamma and Ors.[1959] Su.1 S.C.R. 426. The Court, speaking through Gajendragadkar J., laid down in that case the following propositions:-
"1. Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty.
2. Since Section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by Section 63 of the Evidence Act, one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive and subject to the process of the court and capable of giving evidence.
3. Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will.11
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4. Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator.
5. It is in connection with wills, the execution of which is surrounded by suspicious circumstance that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator.
6. If a caveator alleges fraud, undue influence, coercion etc. in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter.
11. She further placed reliance on another decision of the Supreme Court in Ramchandra Rambux v. Champabai and others3 wherein at paragraph Nos.12, 14, 16 and 17, the suspicious circumstances 3 AIR 1965 SUPREME COURT 354 12 BSB, J A.S.No.316 of 2012 shrouding the Will were considered. Paragraph Nos.12, 14 & 17 read as under:
"12. The High Court has analysed the entire evidence adduced by the propounder of the will to prove its due execution by Ramdhan, and along with that evidence, it has also considered certain attendant circumstances. One is the fact that the will is said to have been executed at Hyderabad, which is a place where the appellant resides and carries on his profession as a medical practitioner and not at Peepalgaon, where Ramdhan resided. The evidence adduced in the case shows that on the day prior to the one on which the will purports to have been executed, Ramdhan was at Ghanegaon till the afternoon. This place is 8 miles distant from Peepalgaon, and the nearest railway station is 20 miles distant from Peepalgaon. The will is said to have been executed at about noon, and though it is not impossible, it is highly improbable that Ramdhan could have been present at the place of execution by that time. The third thing is that the will was executed in the house of the appellant. One of the circumstances is that there was no particular reason why the will should have been executed at that time, because there is no suggestion that Ramdhan was not keeping good health. Then again, the property is very considerable, and instead of employing the services of a trained lawyer to draw up the will, a layman like Venkat Rajaram, who has given his profession as "Jagirdari" had been enlisted. The scribe as well as the attesting witnesses are not the personal friends of Ramdhan, though they say they knew him, but appear to be either the friends or neighbours of the appellant. Yet, the appellant wants the Court to believe that all these persons were collected by Ramdhan after his arrival at Hyderabad on the morning of May 23. This, in itself, would be an improbable thing indeed, because Ramdhan would not have had enough time at his disposal for doing it. Again, there is no explanation why he should collect only the friends and acquaintances of the appellant rather than persons, who were his own friends.
14. Finally, there is the circumstance that the will is unnatural in the sense that though Ramdhan left property worth several lakhs, he made no provision for a residence for his wife but gave her only Rs. 40/- per month as her maintenance, and made only paltry 13 BSB, J A.S.No.316 of 2012 bequests to his daughters. It is true that the daughters are married in affluent families, but in the absence of a male issue, a father is normally expected to give at least substantial bequests to his daughters. Instead, the will gives almost the entire property to a distant relative, who, it may be noticed, was neither brought up by the testator, nor was a person who looked after the testator during his declining years. All this is said to have been due to the fact that Ramdhan's relations with his wife had become strained. Indeed, the relationship between Ramdhan and his wife had become so bad that Ramdhan, according to the appellant, suspected that she was trying to poison him. Curiously enough, in spite of this, Ramdhan continued to live with Sitabai right till his death, and had made no arrangement for a person other than her to take charge of the cash and the gold and silver ornaments of the value of a couple of lakhs of rupees or so, in the event of his dying suddenly. There is nothing to suggest that Ramdhan's food was cooked by anyone other than Sitabai.
16. We have already adverted to the fact that no particular reason has been even indicated by the appellant as to why Ramdhan thought of executing a will long before his death. If his idea in doing so was to make certain that his property does not fall in Sitabai's hands after his death one would have expected him to make some arrangement for keeping the movables out of her reach. He, however, made no such arrangement. Further, he would have also taken the precaution of registering the will, so that any challenge to its genuineness could not have been successfully made.
17. Further, there is no unimpeachable evidence to show that the will was brought to light immediately after Ramdhan's death, which would have been the case if it were a genuine will. On the other hand, there is one circumstance which suggests that the claim on the basis of Ramdhan's will was not even thought of by the appellant till long after Ramdhan's death. The circumstance is the continuance of Sitabai in possession of the cash, gold and silver articles and other movables, even subsequent to Ramdhan's death. Of course, the appellant has given the explanation that he allowed her to remain in possession on his behalf, but his evidence is wholly incredible. Indeed, the appellant has said that he instituted the suit because he found Sitabai parting with portions of 14 BSB, J A.S.No.316 of 2012 Ramdhan's movables in favour of her daughters and strangers after the death of Ramdhan. At least, one thing will allow from this that according to him Sitabai was more interested in her daughters than in him. If, therefore, he had a genuine claim to Ramdhan's property, he would not have allowed Sitabai to remain in possession of Ramdhan's movables. At least, he would have obtained from her a document containing the list and description of the movables and also an admission to the effect that she was entrusted with them by the appellant and that she had no right in them. Had she refused to execute such a document, one would have naturally expected the appellant to institute a suit for their possession immediately. There is no explanation for the absence of such a document, and thus this is also a circumstance which militates against the genuineness of the will."
12. Learned counsel for the appellant referred to various circumstances in this case as suspicion, such as, the will being not registered though there was sufficient time gap between the date of will and the date of death of the testator; not providing life estate to the 2nd defendant in respect of 'A' schedule property and totally excluding her from 'A' schedule property which is a residential house and thereby not even providing her with a shelter during her life time; alleged execution of Will at the age of 37 years without there being any proof of any ill-health the deceased said to have been suffering from, while the evidence shows that he was attending his business within a week before his death and he died of mere sudden cardiac arrest; providing 1/3rd share to the 2nd defendant in 'B' schedule properties which are unspecified and imaginary; not even taking the signatures of any person related to the 2nd defendant on the parental side on the alleged Will; the Will is said to have been scribed by an advocate's Clerk who is not a professional writer and that too, at the dictation of the deceased who does not have any legal knowledge; that attestors to the alleged Will are related to the propounder's mother 15 BSB, J A.S.No.316 of 2012 and not examining the attestor who is the third party; that the wish of the deceased as per the alleged Will is that the minor would perform funeral ceremonies, but the ceremonies were performed by PW1 but not by minor; that though as per the alleged Will, the 2nd defendant is entitled to only 1/3rd of share in 'B' schedule properties, allowed her to withdraw the entire amount; that the statement in the Will is vague with reference to the cancelation of the earlier Will without mentioning in whose favour or on what date it was executed and that the difference in line space in the first age and the 2nd page of the alleged Will and the signature of the attestor is on one side of the paper only but not on both pages. She added that 3rd party second attestor has not been examined, whereas interested witness 1st attestor was examined and that an advocate clerk with whom the deceased had no acquaintance is said to have scribed the will in an unusual way. Thus, the alleged Will does not stand to the scrutiny of the test for genuineness, as per the submission of the learned counsel for the appellant.
13. Nextly, she contended that the report of the expert from the Truth Labs is very much suspicious as initially, a letter was addressed by the Truth Labs that the signature sent for comparison is not fit due to long time gap between the disputed signature and the admitted signatures, but, suddenly after PW1 assumed the post of Junior Assistant, he immediately took up the matter suo motu and examined the document and submitted report. She further submitted that even on technical ground also, the report of PW4 suffers from credibility and cannot be relied upon.
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14. On the other hand, learned counsel for the 1st respondent/ plaintiff submitted that the Will is genuine and stands the test of proof and relied on the decision of the Supreme Court in H.Venkatachala Iyengar v. B.N.Thimmajamma (2nd supra) at paragraph Nos.18 to
22. They read as under:
"18. What is the true legal position in the matter of proof of wills? It is well-known that the proof of wills presents a recurring topic for decision in courts and there are a large number of judicial pronouncements on the subject. The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under sections 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, sections 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression "a person of sound mind" in the context. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to be the last will of the 17 BSB, J A.S.No.316 of 2012 testator has to be decided in the light of these provisions. Has the testator signed the will? Did he understand the nature and effect of the dispositions in the will ? Did he put his signature to the will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters.
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.
20. 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 18 BSB, J A.S.No.316 of 2012 created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate 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 substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said 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 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 19 BSB, J A.S.No.316 of 2012 the testator, the court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive.
22. It is obvious that for deciding material questions of fact which arise in applications for probate or in actions on wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. It may, however, be stated generally that a propounder of the will has to prove the due and valid execution of the will and that if there are any suspicious circumstances surrounding the execution of the will the propounder must remove the said suspicions from the mind of the court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties. It is quite true that, as observed by Lord Du Parcq in Harmes v. Hinkson (1946) 50 C.W.N. 895, "where a will is charged with suspicion, the rules enjoin a reasonable scepticism, not an obdurate persistence in disbelief. They do not demand from the judge, even in circumstances of grave suspicion, a resolute and impenetrable incredulity. He is never required to close his mind to the truth". It would sound platitudinous to say so, but it is nevertheless true that in discovering truth even in such cases the judicial mind must always be open though vigilant, cautious and circumspect."
He further placed reliance on the decision of the Supreme Court in Mahesh Kumar (dead) by L.Rs. v. Vinod Kumar and others 4 , wherein suspicious circumstances were discussed and whereas, such suspicious circumstances do not exist in the present case.
15. Nextly, he relied on the decision in Rabindra Nath Mukherjee v. Panchanan Banerjee 5 , wherein it was observed that the whole idea behind execution of will is to interfere with the normal line of succession and so natural heirs would be debarred in every case of 4 (2012) 4 Supreme Court Cases 387 5 (1995) 4 Supreme Court Cases 459 20 BSB, J A.S.No.316 of 2012 Will. Of course, it may be that in some cases they are fully debarred and in others only partially and therefore, the disinheritance of the successors could not have been taken as a suspicious circumstance. To the same effect, a reference was made to the decision of the Supreme Court in PPK Gopalan Nambiar v. PPR Balakrishna Nambiar 6 . He further referred to the observations of the Supreme Court in R.N. Mukherjee (5th supra) at paragraph No.7 whereunder, it is held that somebody has to take necessary steps in such matters, but if he happens to be one close to the executor, some eyebrow is bound to rise. Even so, if there be other circumstances on record to show the voluntary character of the document, the eye brows should get dropped down. Such circumstances narrated therein are as follows:
"(1) Making of two codicils by Saroj Bala, last of which was about three years after the execution of will. The need for these arose because the testatrix had made use some of the properties listed in the will. So, the testatrix knew what was the will for and why it needed change.
(2) The testatrix executed an FDR of Rs. 15,000/- on 2.8.67, which shows that she was not so immobile or senile as sought to be made out by the respondents. The fact that her signature in the FDR was shaky has no cutting edge, because nearing 90 at the relevant time, the signature could have well been shaky because of old age.
(3) Testatrix sold some property in February 67 and received the sale price, which shows her consciousness as to how to deal with her properties."
16. Nextly, learned counsel referred to the decision in Smt. Indu Bala Bose and others v. Manindra Chandra Bose and another7, 6 1995 Supp(2) SCC 664 7 (1982) 1 Supreme Court Cases 20 21 BSB, J A.S.No.316 of 2012 wherein the meaning of suspicious circumstance is discussed as any and every circumstance is not a "suspicious" circumstance. A circumstance would be "suspicious" when it is not normal or is not normally expected in a normal situation or is not expected of a normal person. He has further drawn the attention of this Court to the other portions of the decision in the cited case, wherein the previous decisions are discussed and relevant to the facts of the present case. They run from paragraphs 9 to 14 and after discussing the evidence on record, it was found that no suspicious circumstances existed in that case. Further, the Supreme Court mentioned the rule, as observed by the Privy Council, that "where a Will is charged with suspicion, the rules enjoin a reasonable skepticism, not an obdurate persistence in disbelief. They do not demand from the judge, even in circumstances of grave suspicion, a resolute ad impenetrable incredulity. He is never required to close his mind to the truth.
17. Nextly, he placed reliance on the decision of the Supreme Court in Shashi Kumar Banerjee and others v. Subodh Kumar Banerjee (since died represented by LRs.)8, wherein at paragraph No.5, well settled principles which govern the proving of a will are discussed and submitted that the mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by Section 63 of the Indian Succession Act and thus, the evidence cannot be examined under suspicious eyes and as such, the Will has been rightly believed by the trial Court as the plaintiff has examined the attestor and duly proved the will as required under law. In the 8 AIR 1964 SC 529 22 BSB, J A.S.No.316 of 2012 same paragraph, it is further observed that the onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signature of the testator as required under law is sufficient to discharge the onus, but where there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court before the Court accepts the will as genuine.
18. He referred to the decision of the Supreme Court in Uma Devi Nambiar v. T.C.Sidhan9, wherein the etiological expression of the will is discussed apart from discussing the interpretation of the Will.
19. With regard to adoption, he placed reliance on the decision of the Supreme Court in V. T. S. Chandrasekhara Mudaliar (since deceased) and after him his legal representatives and others v. Kulandaivelu Mudaliar and others10, wherein at paragraph No.20, the object of adoption by a widow is stated to be two-fold, namely, (1) to secure the performance of the funeral rites of the person to whom the adoption is made as well as to offer pindas to that person and his ancestors, and (2) to preserve the continuance of his lineage. Therefore, he submitted that the deceased intended to adopt the plaintiff solely with this object and to protect the interests of his wife, 2nd defendant, by adopting the plaintiff so that he would provide her help and assistance throughout her life. He further submitted that since the deceased proposed adoption of the plaintiff, the entire property in 'A' schedule was given to him and therefore, the 2nd defendant need not worry about her maintenance and expenses and thus, there is no suspicious circumstance which is because, she is 9 (2004) 2 Supreme Court Cases 321 10 (1963) 2 SCR 440 23 BSB, J A.S.No.316 of 2012 excluded from 'A' schedule property. Insofar as proof of ill-health of the deceased is concerned, he referred to the evidence on record and submitted that there is no surprise that the deceased executed Will in favour of the plaintiff due to his ill-health.
20. With regard to the opinion of the expert, he submitted that the plaintiff is banging on the fact that the report was submitted to the letter from the lab, but failed to make out circumstances to disbelieve the report on technical ground, and thus, the report of PW4 remained unshaken. With regard to the will, he already submitted that the 2nd defendant was not clear in taking a plea as to fabrication of the will as she did not specify whether signature is forged or she admits the signatures but denies the contents. He also submitted that the propounder being active in preparation of the will does not per se a suspicious circumstance. Since the beneficiary, i.e., the plaintiff was only five years old in the year 2006, when the deceased died, the funeral ceremonies were performed by his father/PW1 and there is nothing to suspect for not fulfilling the wish of the deceased in the will that his funeral ceremonies be performed by the minor.
21. The rules of interpretation of will are well settled as stated by the Supreme Court in the decisions referred supra. The burden of dispelling the suspicious circumstance is on the propounder of the will. (Vide decision in Sashi Kumar Banerjee (supra). Thus, it is not just a compliance of the requirement under Section 63 of the Indian Succession Act for proving the will is enough, besides, that the propounder has to discharge the onus of proving the will by dispelling the suspicious circumstances surrounding the execution of the will. The Supreme Court observed that the onus of proving the will is on the 24 BSB, J A.S.No.316 of 2012 propounder and in the absence of suspicious circumstances surrounding execution of the will, proof of testamentary capacity and the signature of the attestor as required by law is sufficient to discharge the onus. Thus, it contemplates that absence of suspicious circumstances is an indispensible element to hold that a will is said to have been proved by considering the proof of testamentary capacity and signature of the attestor in proof as per law. Unlike in the other documents, the proof of will requires elimination of the suspicious circumstances. In the present case, though one of the attestors is examined and he speaks of execution of the will by the attestor in a sound and disposing state of mind, his evidence and the evidence of the scribe must be read to believe their veracity, in the light of the circumstances which are pointed to be suspicious by the appellant.
22. The deceased was admittedly a young man of 37 years. Normally a person of that age does not expect death to execute a will. Here, in this case, he is stated to be suffering from cardiac illness and as per the advice of the doctor, he was likely not to survive for long time and might die any time shortly thereafter and thus, he executed the alleged will. To prove that he was examined by any cardiologist, neither name of the any doctor was mentioned nor was any medical record produced to show that he had such severe cardiac illness which made him to execute the will. It is a very important circumstance since it is the basis which prompted the deceased is said to have executed the will. It is so lightly taken by the plaintiff by failing to prove the same. It is a very casual statement made by PW1 without there being any substantial proof thereof.
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23. On the other hand, the 2nd defendant elicited in the cross- examination of PW1 that the deceased attended his business activity even a week prior to his death. If at all, the deceased was suffering from serious ill-health and PW1, as stated in his evidence that he insisted the deceased to take medical treatment, but PW1 could not take the deceased to doctor, is true, PW1 would know the doctor who treated the deceased or the hospital where he was treated and the medical record of initial treatment taken by the deceased. If the deceased was suffering from so serious illness of cardiac problem as he expected his death at any moment, it is surprising that there is no medical record available, nor was he treated in the hospital to attend to such serious illness. This suspicious circumstance has not been dispelled by the plaintiff.
24. According to PW1, the alleged proposal of adoption is to the knowledge of the 2nd defendant. If so, there is no iota of evidence on record that she gave such consent nor is there any evidence that she had such knowledge. Nothing prevented them from taking any written document or taking her signature on the will if offering was done with her knowledge and consent. The alleged execution of the will behind the back of the 2nd defendant, inspite of attributing her consent to the alleged adoption is yet another important circumstance which throws suspicion on the execution of the alleged will.
25. Nextly, complete exclusion of the 2nd defendant from 'A' schedule property by not even providing life interest or right of residence in the property is yet another important suspicious circumstance. The explanation offered in this regard only during the course of arguments that on adoption of the plaintiff by the 2nd 26 BSB, J A.S.No.316 of 2012 defendant, she would be provided right of residence, the plaintiff being adopted son is not satisfactory. The very prayer sought by the plaintiff in respect of 'A' schedule property is not just declaration, but recovery of possession of the property, meaning thereby, excluding her from even residence.
26. As rightly contended, if the will was in existence as on the date, as mentioned therein, PW1 having knowledge that the plaintiff had 1/3rd share in 'B' schedule property, allowing the 2nd defendant to withdraw some of the items of property covered by 'B' schedule is yet another suspicious circumstance which could not be dispelled.
27. Performance of funeral ceremonies by PW1 excluding the minor plaintiff from participating in the performance of funeral ceremonies is not duly explained. The reason argued is that since the plaintiff was five years old only, his father/PW1 has performed rituals. If the knowledge of the deceased is that he may die shortly after execution of the will and he knows that the plaintiff was a young boy of five years old, still having wish to have his funeral ceremonies being performed by him, yet, such wish not being fulfilled cannot be ignored. If the said will was in existence, the wish of the deceased would have been fulfilled substantially either by performing rituals keeping the minor by the side of PW1 as is normally done some time which fact can be judicially taken note of.
28. The suspicious circumstances explained by the learned counsel for the appellant narrated in the preceding discussion, worth consideration and have not been properly explained by the 1st respondent. It is pertinent to mention that it was argued on behalf of the 1st respondent that the appellant remarried after the death of her 27 BSB, J A.S.No.316 of 2012 husband/testator and the apprehension is found to be true, and thus, the adoption of the plaintiff was felt important to continue the lineage. This submission is not founded on pleading and proof. It may also be an apprehension or reason for relying on the said will by the plaintiff.
29. Thus, since the plaintiff could not establish the will by dispelling suspicious circumstances, mere examination of the testator and the scribe of the will does not wholly discharge the burden of the plaintiff to establish his right over the suit schedule property as claimed. The trial Court, just by relying on their evidence decreed the suit without considering the documentary evidence placed by the 2nd defendant to show that the deceased was conducting business even after a week subsequent to the date of the alleged will. For all these reasons, the suit is liable to be dismissed and the impugned decree and judgment are liable to be set aside.
30. In the result, the appeal is allowed setting aside the decree and judgment, dated 27.01.2011, passed in O.S.No.79 of 2006 by the Senior Civil Judge, Markapur, Prakasam District, and the suit is dismissed.
There shall be no order as to costs.
Miscellaneous petitions pending, if any, shall stand closed.
________________ B.S BHANUMATHI, J 01st August, 2022 RAR