Himachal Pradesh High Court
Partap Singh vs Of on 19 August, 2023
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.575 of 2008 Reserved on: 02.08.2023 .
Date of Decision: 19.08.2023
Partap Singh ....Appellant.
Versus
of
Gurdev Singh & Ors. .....Respondents.
Coram rt
Hon'ble Mr. Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 Yes For the Appellant: Mr. K.D. Sood, Sr. Advocate, with Mr. Mukul Sood, Advocate.
For the Respondents: Mr. Romesh Verma, Sr. Advocate, with Mr. Hitesh Thakur, Advocate.
Rakesh Kainthla, Judge The present appeal is directed against the judgment & decree dated 04.09.2008, passed by learned District Judge, Solan, H.P. (hereinafter referred to as 'First Appellate Court'), vide which, the appeal filed by the 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 19/08/2023 20:34:55 :::CIS 2appellant-plaintiff before learned trial Court was dismissed and judgment & decree passed by the learned Civil Judge (Jr. .
Division), Kasauli, H.P. (hereinafter referred to as 'trial Court') was upheld. (Parties shall hereinafter be referred to in the same manner as they were arrayed before learned trial Court for convenience).
of
2. Briefly stated, the facts giving rise to the present appeal are that the plaintiff filed a civil suit before the rt learned trial Court for seeking a declaration that the land comprised in Khata No.19, Khatauni No.30, Khasra No. 267 & 268, measuring 75-6 Bighas described in the copy of Jamabandi for the year 1995-1996 in Mauja Khadeen, Pargna Nali-Dharti, Tehsil Kasauli, District Solan, H.P. (hereinafter referred to as the suit land) is the ancestral property of the plaintiff. Late Dhani Ram had no right to execute the Will, the deed registered as Deed No. 28 on 24.10.2000 with Sub-Registrar, Kasauli, and the Will, relied upon by the defendants are illegal, null and void. A consequential relief of permanent prohibitory injunction ::: Downloaded on - 19/08/2023 20:34:55 :::CIS 3 for restraining the defendants from causing any loss, injury, or encroachment on the suit land, changing its .
nature or creating any charge over it was also prayed. It was asserted that the suit land was inherited by Dhani Ram from his father Bija Ram, who had inherited it from Shri Shawalia. The pedigree table of the parties is as under:-
of Shawalia | rt Bija Ram | ______________ | | Kanshi Ram Dhani Ram | __________________________ | | | Partap Singh Bir Singh Rajinder Singh
3. The suit land is ancestral. The family of the plaintiff is a Hindu undivided family. Kanshi Ram and the plaintiff constituted a coparcenary. The ancestral property could not be alienated by way of a Will. The plaintiff acquired ownership in the suit land by birth. The ::: Downloaded on - 19/08/2023 20:34:55 :::CIS 4 defendants procured a document stated to be a Will executed by Dhani Ram in their favour. This document was .
registered with Sub-Registrar, Kasauli as Deed No. 28 dated 24.10.2000. The document is illegal, null and void. Late Dhani Ram did not have to execute the Will in favour of the defendants. Dhani Ram had become feeble due to the of advanced stage. His physical and mental conditions were not proper. He was unable to distinguish between good and rt bad. He was ill for one year before his death. The Will does not create any right in favour of the defendants. The thumb impression was obtained by playing fraud and misrepresentation of facts. The suit land was inherited by the plaintiff and his two brothers after the death of Dhani Ram. The suit land is located adjacent to the industrial area of Parwanoo township. The defendants are threatening to alienate the suit land based on the Will. The defendants are also threatening to interfere with the suit land. Hence, the suit was filed to seek the relief mentioned above.
::: Downloaded on - 19/08/2023 20:34:55 :::CIS 54. The suit was opposed by the defendants by filing a written statement taking preliminary objections .
regarding lack of cause of action, locus-standi and maintainability, the plaintiff having not come to the Court with clean hands, and the plaintiff being estopped by his act and conduct to file the present suit. The contents of the of plaint were denied on merits. It was asserted that Dhani Ram executed a Will in favour of the defendants on rt 24.10.2000, which was duly registered with the Sub-
Registrar Kasauli as document no. 68 in Bahi No. 3, Volume No. 28 on 24.10.2000. Document no. 28 was never executed by Dhani Ram. The defendants are the grandsons of Dhani Ram. Dhani Ram had executed a Will on 17.08.1993 duly registered with Sub-Registrar Kasauli as document No. 57 on 17.08.1993 bequeathing his property in favour of his three sons in equal shares. Dhani Ram wanted to give some of the properties to his grandsons, so he executed another Will on 24.10.2000. He had specifically mentioned that only the suit land would be bequeathed to the defendants and the ::: Downloaded on - 19/08/2023 20:34:55 :::CIS 6 remaining property would be divided between his three sons in equal shares as per the earlier Will. The Will was .
executed by Dhani Ram in his sound disposing state of mind. The suit land was self-acquired property of Dhani Ram. It was specifically denied that Dhani Ram was not in a sound disposing state of mind at the time of the execution of of the Will. The plaintiff is out of possession and the suit filed by him is not maintainable. Hence, it was prayed that rt the suit be dismissed.
5. A replication denying the contents of the written statement and affirming those of the plaint was filed.
6. The following issues were framed by the learned trial Court on 03.03.2003:
1. Whether the suit land was ancestral land, which was owned by late Sh. Dhani Ram, as alleged? OPP
2. Whether the family of the plaintiff is a Hindu undivided family and late Sh. Kanshi Ram and the plaintiff constituted a coparcenary, as alleged? OPP ::: Downloaded on - 19/08/2023 20:34:55 :::CIS 7
3. Whether the parties are governed by custom and the ancestral property could not be alienated by way of Will, as alleged? OPP .
4. Whether the plaintiff is co-owner in possession of the suit land, as alleged? OPP
5. Whether the plaintiff has no cause of action to file and maintain the suit? OPD
6. Whether the plaintiff is estopped by his own acts, conduct and acquiescence to file and of maintain the suit? OPD
7. Whether late Sh. Dhani Ram has executed a legal and valid Will in favour of the rt defendants qua his share on 24.10.2000, as alleged? OPD
8. Whether the suit is bad for non-joinder of necessary parties? OPD
9. Whether the suit is not maintainable in the present form? OPD
10. Relief.
7. The parties were called upon to produce the evidence and the plaintiff examined himself as (PW-1) and Vikram Raj Sharma (PW-2). Defendant No. 1 (Gurdev Singh) examined himself as (DW-1), and Bhagat Ram (DW-
2). The plaintiff examined himself (PR-1) and Bhag Singh (PR-2) in rebuttal.
::: Downloaded on - 19/08/2023 20:34:55 :::CIS 88. The learned trial Court held that the plaintiff failed to prove that the suit land was ancestral property. He .
had relied upon a Will executed by Dhani Ram in favour of his three sons. He could not take a contradictory plea that the property regarding which the earlier Will was executed was self-acquired property and the property regarding of which the present Will was executed was ancestral property. The defendant succeeded in proving the due rt execution of the Will. There were no suspicious circumstances. The plea that Dhani Ram was not in a sound state of mind, was not proved. The registered Will carries with it a presumption of correctness. Issues Nos. 1 to 6, 8 & 9 were answered in negative, issue No. 7 was answered in affirmative and the suit of the plaintiff was dismissed.
9. Being aggrieved with the judgment and decree passed by the learned trial Court, the plaintiff filed an appeal before the learned District Judge, Solan, H.P. Learned District Judge held that the plaintiff cannot ::: Downloaded on - 19/08/2023 20:34:55 :::CIS 9 challenge the Will executed in favour of the defendants on the ground that the land is ancestral while claiming under .
the Will. The execution of the Will in favour of the defendant was duly proved. The plaintiff purchased land and Dhani Ram had executed a Will to equalize the shares.
The exclusion of natural heir is not a suspicious of circumstance. With these findings, the appeal was dismissed. rt
10. Being aggrieved and dissatisfied with the judgment and decree passed by the learned trial Court, the present appeal has been filed asserting that the learned Courts below did not appreciate the evidence properly. A Hindu coparcener is not entitled to alienate the ancestral property by executing a Will. The earlier Will was in respect of the self-acquired property and was not challenged by any person. There were suspicious circumstances surrounding the execution of the Will propounded by the defendant. Scribe and Sub-Registrar were not examined.
The testimony of the attesting witness was highly ::: Downloaded on - 19/08/2023 20:34:55 :::CIS 10 doubtful. There were suspicious circumstances surrounding the execution of the Will. It was proved that .
Dhani Ram was suffering from a serious ailment and was not competent to execute the Will on 24.10.2000. Learned District Judge failed to examine the evidence independently and critically. Therefore, it was prayed that of the present appeal be allowed and judgment and decree passed by the learned Trial Court be set aside.
rt
11. The appeal was admitted on the following substantial questions of law on 07.11.2008:
"1. Whether in view of the findings recorded by the District Judge that the property being ancestral and Joint Hindu Family Property in the hands of Dhani Ram and Dhani Ram constituted coparcenary with his sons on a proper construction of the provisions of Section 30 of the Hindu Succession Act, could Dhani Ram execute a Will of the suit property in its entirety or could have only willed his un-divided interest which he was having in the property at the time of his death.
2. Whether in view of the findings recorded by the District Judge that the property was Joint Hindu Family ancestral coparcenary property in the hands of Dhani Ram and he ::: Downloaded on - 19/08/2023 20:34:55 :::CIS 11 constituted coparcenary with his three sons and ten grandsons, the findings that the will of the entire property subject matter of the will dated 24.10.2000, are legal and valid.
.
3. Whether the basic document of title the Will Exhibit DW1/B has been misread and misconstrued and wrongly held to be proved when the same was shrouded by suspicious circumstances which have not been explained of and it had not proved that Dhani Ram was in a sound disposing mind at the time of execution of the said Will.
4. Whether the findings recorded that the rt plaintiff was estopped from challenging the Will Exhibit DW1/B having not challenged the earlier will dated 17.08.1993 when it was established that the Will Exhibit DW1/B related to the coparcenary property whereas the earlier will was neither alleged nor proved to be in respect of the ancestral property and was in fact in respect of the self-acquired property."
12. I have heard Mr. K.D. Sood learned Senior Counsel for the appellant/plaintiff and Mr. Romesh Verma, learned Senior Counsel for the respondents/defendants.
13. Mr. K.D. Sood, learned Senior Counsel for the appellant/plaintiff submitted that the learned Courts ::: Downloaded on - 19/08/2023 20:34:55 :::CIS 12 below erred in dismissing the suit. It was duly proved on the record that the suit land was ancestral. Dhani Ram was .
not competent to execute the Will. As per the recital of the Will, Dhani Ram was aged one hundred and two years. His mental capacity was not proved. The Will was shrouded by suspicious circumstances, one of the attesting witnesses of executed an affidavit that he had not attested the Will, thus the due attestation of the Will was not proved as per rt the law. Hence, he prayed that the present appeal be allowed and judgments and decrees passed by learned Courts below be set aside.
14. Mr. Romesh Verma, learned Senior Counsel supported the judgments and decrees passed by the learned Courts below. He submitted that the learned Courts below have rightly held that a person cannot take contradictory pleas. The plaintiff admitted the execution of the Will in his favour and challenged the execution of the Will in favour of the defendants. A Karta is competent ::: Downloaded on - 19/08/2023 20:34:55 :::CIS 13 to execute a Will regarding the ancestral property;
therefore, he prayed that the present appeal be dismissed.
.
15. I have given considerable thought to the rival submissions and have gone through the records of the case carefully.
of Substantial question of law No.1.
16. Copy of Mutation No. 70, (Ext.P4) (Hindi rt Translation Ext.P4/A) shows that Bija Ram was succeeded by Karam Singh, Kanshi Ram and Dhani Ram. This mutation was entered in Vikrami Samvat 1978, which corresponds to 1921. Thus, Bija Ram died before the commencement of the Hindu Succession Act.
17. It was laid down by the Hon'ble Supreme Court in Dipo v. Wassan Singh, (1983) 3 SCC 376 that property inherited from a parental ancestor is ancestral property regarding his male issue, but is absolute property regarding other relations. It was observed:-
"No doubt the properties which have been found by the lower Courts to be ancestral ::: Downloaded on - 19/08/2023 20:34:55 :::CIS 14 properties in the hands of Bua Singh are properties which originally belonged to Bua Singh's ancestors. But Bua Singh was the last male holder of the property and he had no .
male issue. There was no surviving member of a joint family, be it a descendant or otherwise who could take the property by survivorship.
Property inherited from paternal ancestors is, of course, 'ancestral property' as regards the male issue of the propositus, but it is his absolute of property and not ancestral property as regards other relations. In Mulla's Principles of Hindu Law (15th Edition), it is stated at page 289 :
rt "...........if A inherits property, whether movable or immovable, from his father or father's father, father's father's father, it is ancestral property as regards his male issue. If A has no son, son's son, or son's son's son in existence at the time when he inherits the property, he holds the property as the absolute owner thereof and he can deal with it as he pleases ... .... A person inheriting property from his three immediate paternal ancestors holds it and must hold it, in coparcenary with his sons, son's sons and son's son's sons, but as regards other relations he holds it, and is entitled to hold it, as his absolute property."
18. Again at page 291, it is stated :
::: Downloaded on - 19/08/2023 20:34:55 :::CIS 15"The share which a coparcener obtains on partition of ancestral property is ancestral property as regards his male issue. They take an interest in it by birth, whether they are in .
existence at the time of partition or are born subsequently. Such share, however, is an ancestral property only as regards his male issue. As regards other relations, it is separate property, and if the coparcener dies without leaving male issue, it passes to his heirs by of succession." (Emphasis supplied)
19. Since, Dhani Ram had acquired the property rt from his father; therefore, the nature of property in his hand will be ancestral qua his sons. This mutation was attested regarding Mauja Khadeen, where the suit land is located. No evidence was laid by the defendants to prove that Dhani Ram had acquired the property through his efforts. Hence, the plea that the suit land was ancestral in the hands of Dhani Ram has to be accepted as correct.
20. It was submitted that a coparcener cannot execute a Will regarding the coparcenary property. This is not acceptable. It was laid down by ::: Downloaded on - 19/08/2023 20:34:55 :::CIS 16 Hon'ble High Court in Raksha Kumari v. Chain Singh, 2019 SCC OnLine HP = 2014 AIR 2019 H.P. 96 that a male .
Hindu governed by Mitakshra Law is not debarred from making a Will in respect of the coparcenary/ ancestral property. It was observed:
11. Without going into the question whether of the property in question was ancestral or not and assuming the same to be ancestral, it would be noticed that the issue raised in rt this appeal is no longer res Integra in view of the judgment rendered by a Co-ordinate Bench of this Court in Kartari Devi and others versus Tota Ram, (1992) 1 ShimLC 402 and thereafter the ratio laid down therein was upheld and approved by a learned Division Bench of this Court in Tek Chand versus Mool Raj,1997 2 Hindu LR 306 and both these judgments, in turn, have been approved by the Hon'ble Supreme Court in Sham Lal alias Kuldip versus Sanjeev Kumar and others, (2009) 12 SCC 454 wherein it was observed as under:-
"26. There is no denying that the property in the hands of the deceased Balak Ram was ancestral since admittedly he had inherited the same from his father. In so far as the question whether under the custom governing the parties, a Will could be ::: Downloaded on - 19/08/2023 20:34:55 :::CIS 17 executed in respect of the ancestral property is concerned, the same is no more res integra.
.
27. A learned Single Judge of the High Court in Kartari Devi and Ors. v. Tota Ram, (1992) 1 ShimLC 402 has held that in view of section 30 read with section 4 of the Hindu Succession Act, 1956 a male Hindu governed by the of Mitakshara system is not debarred from making a Will in respect of coparcenary/ancestral property. The rt above view of the learned Single Judge was upheld and approved by a Division Bench of the High Court in Tek Chand v. Mool Raj,1997 2 Hindu LR 306. (Hindu LR p.310, para 14). In view of the above ratio, the learned District Judge has erred in upholding the validity of the Will Ex. DW 1-A only to the extent of the interest of the deceased in the property. Such findings are wrong and liable to be set aside.
12. Thus, what stands now firmly laid down by the Hon'ble Supreme Court is that a male Hindu governed by 'Mitakshara' Law is not debarred from making a Will in respect of coparcenary/ancestral property."
21. Thus, in view of the judgment of this Court a male Hindu governed by 'Mitakshara' is not debarred from making a Will.
::: Downloaded on - 19/08/2023 20:34:55 :::CIS 1822. It was submitted that the Will is valid qua the share of the testator. This submission cannot be .
accepted. This court had noticed the judgment of the Hon'ble Supreme Court in Sham Lal v. Sanjeev Kumar, (2009) 12 SCC 454, wherein the Hon'ble Supreme Court had specifically held that the learned District Judge of erred in holding the validity of Will only to the extent of his interest in the property. Thus, in view of the rt binding precedent of the Hon'ble Supreme Court, the Will executed by Dhani Ram cannot be said to be bad because he constituted a coparcener with his three sons and ten grandsons.
23. In any case, it was never pleaded that Dhani Ram had executed a Will exceeding his share, hence, the Will cannot be held to be bad on the ground that the Will exceeded the share of Dhani Ram. This question of law is answered accordingly.
Substantial question of law No.2.
::: Downloaded on - 19/08/2023 20:34:55 :::CIS 1924. It has been found above that the mutation was attested regarding the property located in Mauja .
Khadeen, wherein the suit property is located. No evidence was led by the defendants that Dhani Ram had acquired the property by his own efforts independent of the property inherited by him from his of father. The existence of a sufficient nucleus was established. It was laid down by the Hon'ble Supreme rt Court of India in D. S. Lakshmaiah and Another versus L. Balasubramanyam and Another 2003 10 SCC 310 =2003 SCC online SC 915,that if the nucleus of joint family property is established, there is a presumption that the property is joint and onus will shift upon the person, who asserts the property to be self-acquired.
It was observed;
"The legal principle, therefore, is that there is no presumption of the property being joint family property only on account of the existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was a nucleus ::: Downloaded on - 19/08/2023 20:34:55 :::CIS 20 with which the joint family property could be acquired, there would be a presumption of the property being joint and the onus would shift on the person who claims it to be self-
.
acquired property to prove that he purchased the property with his funds and not out of joint family nucleus that was available."
25. Therefore, the plea taken by the plaintiff that the earlier Will is related to the self-acquired property, of whereas the present Will is related to the ancestral property cannot be accepted.
rt Substantial Question of Law No.3.
26. The learned trial Court and First Appellate Court concurrently held that Dhani Ram had executed a Will in his sound disposing state of mind and there were no suspicious circumstances surrounding the execution of the Will.
27. It was submitted on behalf of the appellant/plaintiff that the learned Courts ignored the affidavit executed by Ratti Ram (Ext. PW2/A), the marginal witness to the Will. This affidavit was proved by examining Vikram Raj Sharma, the Notary Public, ::: Downloaded on - 19/08/2023 20:34:55 :::CIS 21 who stated that he had read over and explained the contents of the affidavit to the executants. The .
executant signed the same and Vikram Raj Sharma attested the affidavit. This affidavit was proved to establish that Ratti Ram had not attested the Will and he had signed the document at the instance of Bhagat of Ram. This affidavit is inadmissible to prove the truth of the contents of the affidavit. The witness Ratti Ram rt was required to be examined to prove that he had not attested the Will and this fact could not have been established by proving a document executed by him. It was laid down by the Bombay High Court in Sir Mohammed Yusuf v. D, 1961 SCC OnLine Bom 5= AIR 1968 Bom. 112 that the evidence of contents of the documents are hearsay unless the author is examined.
It was observed:
20. ...... The evidence of the contents contained in the document is hearsay evidence unless the writer thereof is examined before the Court. We, therefore, hold that the attempt to prove the contents ::: Downloaded on - 19/08/2023 20:34:55 :::CIS 22 of the document by proving the signature or the handwriting of the author thereof is to set at nought the well-recognised rule that hearsay evidence cannot be admitted. This .
question has been discussed by Halsbury at paragraph 533 at p. 294 (Halsbury's Law of England, 3rd Edition, Vol. 15) under the heading 'Hearsay' Says Halsbury :
".. .. .. Statements in documents may also be hearsay. So, if A had taken of counsel's opinion before acting, the contents of the opinion would be rt admissible for the same purpose, but not to prove the truth of any statement of fact therein".
21. In paragraph (534) Halsbury has discussed the reasons for the rejection of hearsay evidence and says :
"The reasons advanced for the rejection of hearsay are numerous, among them being the irresponsibility of the original declarant, the depreciation of truth in the process of repetition, the opportunities for fraud which its admission would offer, and the waste of time involved in listening' to idle rumour. The two principal objections, however, appear to be the lack of an oath administered to the originator of the statement, and the absence of opportunity to cross- examine him."::: Downloaded on - 19/08/2023 20:34:55 :::CIS 23
22. The Advocate General drew our attention to a decision of the House of Lords in Maria Sturla v. Filippo Freccia, (1879) 5 A.C.
623. In that case, the report of a committee .
appointed by a public department in a foreign state was admitted in evidence as a public document. It was, however, held that it was not admissible as evidence of all the facts stated therein. In that case, the facts were: The document in question, a report of of certain persons called the Ginunta di Marina at Genoa, was sought to be put in evidence for the purpose of proving that rt person who was formerly consul for the Genoese Republic in London, and the succession to whose daughter, Mrs. Brown, was in question, was a native of Quarto near Genoa and at the time that report was made, aged about forty-five years. The document was tendered for that purpose and for that purpose only.
23. It was conceded that the report was an authentic public document, of the Genoese Government. The statements, however, contained in the report were not based on the evidence of any of the relatives of the consul at Genoa. The information contained therein did not appear to have been received from any member of Mangini's family. One of the well-recognised exceptions under the English Law of Evidence to the reception of hearsay evidence is the evidence relating to pedigree. The only question, which their ::: Downloaded on - 19/08/2023 20:34:55 :::CIS 24 Lordships of the House of Lords were considering was, whether the contents of the report fell within the purview of the above exception and their Lordships held .
that it did not, because the statements contained in the report were not based on the evidence given before the dispute started by any of the members of the deceased's family. We are not concerned with that part of the decision of the House of of Lords in the present case. The point to be noted is that the statements contained in the report were treated as hearsay and since rt they did not fall within the well-recognised exceptions, they were excluded from evidence. To conclude this part of the discussion, we hold, in the first place, that what has been formally proved is the signature of Abreo and not the writing of the body of the document at Ex. 28 and secondly, that even if the entire document is held formally proved, that does not amount to a proof of the truth of the contents of the document. The only person competent to give evidence on the truthfulness of the contents of the document was Abreo.
28. It was laid down by the Hon'ble Supreme Court in J.D. Jain v. State Bank of India, (1982) 1 SCC 143, that statement of a witness made to a person, who is not called as a witness is hearsay and inadmissible ::: Downloaded on - 19/08/2023 20:34:55 :::CIS 25 when the object of the evidence is to establish the truth of what is contained in the statement. It was .
observed:-
"20. The next question is, is the evidence in the domestic enquiry really hearsay, as held by the Tribunal?
21. The word 'hearsay' is used in various of senses. Sometimes it means whatever a person is heard to say; sometimes it means whatever a person declares on the rt information given by someone else. (See Stephen on Law of Evidence).
22. The Privy Council in the case of Subramaniam v. Public Prosecutor, (1956) 1 WLR 965 observed:
"Evidence of a statement made to a witness who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement but the fact that it was made. The fact that it was made quite apart from its truth, is frequently relevant in considering the mental state and conduct thereafter of the witness or some other persons in ::: Downloaded on - 19/08/2023 20:34:55 :::CIS 26 whose presence these statements are made."
29. In Madholal Sindhu v. Asian Assurance Co.
.
Ltd., 1945 SCC OnLine Bom 44= AIR 1954 Bom. 305 the documents were proved by examining the persons acquainted with the handwriting of a person to prove the of contents of the documents as true. This was held to be hearsay and inadmissible. It was observed:
rt "As I have already observed it was futile for Mr Somjee to merely prove the signatures or the handwriting of the persons who signed or wrote the various documents without calling the said persons who were the only persons who could depose to the correctness of the contents of those Various documents. Whether Deshpande, Paranjape or Jamnadas signed or wrote the various documents, was not the only issue before me. If that had been the only issue, the proof of the signatures or the handwriting of Deshpande Paranjape or Jamnadas would have been enough What was in issue, however, before me was apart from Deshpande, Paranjape or Jamnadas having signed or written those documents, whether the contents of those various documents were correct. This certainly could not be proved by Balkrishna Bhagwan Deshmukh who had no personal knowledge whatever about the contents of those various documents. It would have served no purpose ::: Downloaded on - 19/08/2023 20:34:55 :::CIS 27 whatsoever to admit those documents in evidence with the reservation as suggested by Mr. Taraporewalla. I was supported in this conclusion of mine by the remarks of the appeal Court in - '11 Bom .
HCR 242 at p. 246, and I accordingly declined to admit in evidence the said various documents in spite of Balkrishna Bhagwan Deshmukh deposing before me that the said various documents were signed by or were in the handwriting of Deshpande, Paranjape or Jamnadas. (Emphasis supplied) of
30. In the present case the purpose of proving the affidavit is to prove the truth of the contents of the rt affidavit without examining Ratti Ram. Therefore, the said evidence is inadmissible and was rightly not relied upon by the learned Courts.
31. The law relating to the execution of the Will was explained by the Hon'ble Supreme Court in Shivakumar v.
Sharanabasappa, (2021) 11 SCC 277 = 2020 SCC Online SC 385 and it was held:-
12. For what has been noticed hereinabove, the relevant principles governing the adjudicatory process concerning proof of a Will could be broadly summarised as follows:-
12.1. Ordinarily, a Will has to be proved like any other document; the test to be applied being the ::: Downloaded on - 19/08/2023 20:34:55 :::CIS 28 usual test of the satisfaction of the prudent mind.
Like the principles governing the proof of other documents, in the case of Will too, the proof with mathematical accuracy is not to be insisted upon.
.
12.2. Since as per Section 63 of the Succession Act, a Will is required to be attested, it cannot be used as evidence until at least one attesting witness has been called for the purpose of proving its execution if there be an attesting of witness alive and capable of giving evidence. 12.3. The unique feature of a Will is that it speaks from the death of the testator and, therefore, the maker thereof is not available for deposing about rt the circumstances in which the same was executed. This introduces an element of solemnity in the decision of the question as to whether the document propounded is the last Will of the testator. The initial onus, naturally, lies on the propounder but the same can be taken to have been primarily discharged on proof of the essential facts, which go into the making of a Will.
12.4. The case in which the execution of the Will is surrounded by suspicious circumstances stands on a different footing. The presence of suspicious circumstances makes the onus heavier on the propounder and, therefore, in cases where the circumstances attendant upon the execution of the document give rise to suspicion, the propounder must remove all legitimate suspicions before the document can be accepted as the last Will of the testator.
::: Downloaded on - 19/08/2023 20:34:55 :::CIS 2912.5. If a person challenging the Will alleges fabrication or alleges fraud, undue influence, coercion et cetera 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 give rise to the doubt or as to whether the Will had indeed been executed by the testator and/or as to whether the testator was acting of his own free will. In such eventuality, it is again a of part of the initial onus of the propounder to remove all reasonable doubts in the matter. 12.6. A circumstance is "suspicious" when it is rt not normal or is 'not normally expected in a normal situation or is not expected of a normal person. As put by this Court, the suspicious features must be 'real, germane and valid' and not merely the 'fantasy of the doubting mind.' 12.7. As to whether any particular feature or a set of features qualify as "suspicious" would depend on the facts and circumstances of each case. A shaky or doubtful signature; a feeble or uncertain mind of the testator; an unfair disposition of property; an unjust exclusion of the legal heirs and particularly the dependants; an active or leading part in making of the Will by the beneficiary thereunder et cetera are some of the circumstances which may give rise to suspicion. The circumstances above-noted are only illustrative and by no means exhaustive because there could be any circumstance or set of circumstances, which may give rise to legitimate suspicion about the execution of the Will. On the ::: Downloaded on - 19/08/2023 20:34:55 :::CIS 30 other hand, any of the circumstances qualifying as being suspicious could be legitimately explained by the propounder. However, such suspicion or suspicions cannot be removed by .
mere proof of sound and disposing state of mind of the testator and his signature coupled with the proof of attestation.
12.8. The test of satisfaction of the judicial conscience comes into operation when a of document propounded as the Will of the testator is surrounded by suspicious circumstance/s. While applying such a test, the Court would address itself to the solemn questions as to rt whether the testator had signed the Will while being aware of its contents and after understanding the nature and effect of the dispositions in the Will.
12.9. In the ultimate analysis, where the execution of a Will is shrouded in suspicion, it is a matter essentially of the judicial conscience of the Court and the party which sets up the Will has to offer a cogent and convincing explanation of the suspicious circumstances surrounding the Will.
32. This position was reiterated in Raj Kumari v.
Surinder Pal Sharma, (2021) 14 SCC 500 = 2019 SCC OnLine SC 1747 and it was held:-
"9. We would first expound on the law relating to the execution and proof of will under the Indian Succession Act and the Evidence Act. Clause (c) of ::: Downloaded on - 19/08/2023 20:34:55 :::CIS 31 Section 63 of the Indian Succession Act reads as follows:
63. Execution of unprivileged wills.-- Every .
testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the following rules -
(a)-(b) * * *
(c) The will shall be attested by two or more of witnesses, each of whom has seen the testator sign or affix his mark to the will or rthas 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 acknowledgement of his signature or mark, or the signature of such other person; and each of the 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. As per the mandate of Clause (c), a Will is required to be attested by two or more witnesses each of whom should have seen the testator sign or put his mark on the Will or should have seen some other person sign the Will in his presence and by the direction of the testator or should have received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person. The Will must be signed by the witness in the presence of the ::: Downloaded on - 19/08/2023 20:34:55 :::CIS 32 testator, but it is not necessary that more than one witness should be present at the same time. No particular form of attestation is necessary. Thus, there is no prescription in the statute that .
the testator must necessarily sign the Will in the presence of the attesting witnesses only or that the attesting witnesses must put their signatures on the Will simultaneously, that is, at the same time, in the presence of each other and the testator.
of
11. The need and necessity for stringent requirements of Clause (c) to Section 63 of the Indian Succession Act has been elucidated and rt explained in several decisions. In H. VenkatachalaIyengar v. B.N. Thimmajamma and Ors. AIR 1959 SC 443 dilating on the statutory and mandatory requisites for validating the execution of the Will, this Court had highlighted the dissimilarities between the Will which is a testamentary instrument vis--vis other documents of conveyancing, by emphasising that the Will is produced before the court after the testator who has departed from the world, cannot say that the Will is his own or it is not the same. This factum introduces an element of solemnity to the decision on the question where the Will propounded is proved as the Last Will or testament of the departed testator. Therefore, the propounder to succeed and prove the Will is required to prove by satisfactory evidence that (i) the Will was signed by the testator; (ii) the testator at the time was in a sound and disposing state of mind; (iii) the testator understood the ::: Downloaded on - 19/08/2023 20:34:55 :::CIS 33 nature and effect of the dispositions; and (iv) that the testator had put his signature on 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 mind of the testator and his signature as required by law, courts would be justified in making a finding in favour of the propounder. Such evidence would discharge the onus on the propounder to prove of the essential facts. At the same time, this Court observed that it is necessary to remove suspicious circumstances surrounding the rt execution of the Will and therefore no hard and fast or inflexible Rules can be laid down for the appreciation of the evidence to this effect.
12. In Jaswant Kaur v. Amrit Kaur and Ors. (1977) 1 SCC 369, it was held that suspicion generated by disinheritance is not removed by mere assertion of the propounder that the Will bears the signature of the testator or that the testator was in sound and disposing state of mind when the Will disinherits those like the wife and children of the testator who would have normally received their due share in the estate. At the same time, the testator may have his reasons for excluding them. Therefore, it is obligatory for the propounder to remove all the legitimate suspicions before a Will is accepted as a valid last Will of the testator. Earlier, in Surendra Pal and Ors. v. Dr. (Mrs.) Saraswati Arora and Anr. (1974) 2 SCC 600, this Court had observed that the propounder should demonstrate that the Will was ::: Downloaded on - 19/08/2023 20:34:55 :::CIS 34 signed by the testator and at the relevant time, the testator was in a sound and disposing state of mind and had understood the nature and effect of the dispositions, that he had put his signature on .
the testimony of his own free will and at least two witnesses have attested the Will in his presence. However, suspicion may arise where the signature is doubtful or when the testator is of feeble mind or is overawed by powerful minds interested in getting his property or where the of disposition appears to be unnatural, improbable and unfair or where there are other reasons to doubt the testator's free will and mind. The rt nature and quality of proof must be commensurate with such essentiality so as to remove any suspicion, which a reasonable or prudent man may, in the prevailing circumstances, entertain. Where coercion and fraud are alleged by an objector, the onus is on him to prove the same and on his failure, the probate of the Will must necessarily be granted when it is established that the testator had full testamentary capacity and had in fact executed the Will with a free will and mind. In Rabindra Nath Mukherjee and Anr. v. Panchanan Banerjee (Dead) by L.Rs. and Ors. (1995) 4 SCC 459, this Court had observed that the doubt would be less significant if the Will is registered and the Sub- Registrar certifies that the same was read over to the executor who, on doing so, had admitted the contents. In each case, the court must be satisfied as to the mandate and requirements of Clause (c) to Section 63 of the Indian Succession Act.
::: Downloaded on - 19/08/2023 20:34:55 :::CIS 3513. In Rajagdish Chand Sharma v. Narain Singh Saini (Dead) Through L.Rs. and Ors. (2015) 8 SCC 615, this Court referring to Section 63 of the Indian Succession Act had illustrated that the .
provisions contemplate that in order to validly execute the Will, the testator would have to sign or affix his mark to it or the same has to be signed by some other person in his presence and on his direction. Further, the signature or mark of the testator or signature of the person signing of for him has to be so placed that it was intended to give effect to the writing as a Will. Section 63 mandates that the Will should be attested by two rt or more witnesses each of whom has seen the testator sign or affix his mark to it or has seen some other person sign it in the presence and on the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person and each of the witnesses has signed the Will in the presence of the testator, though it is not necessary that more than one witness be present at the same time and that no particular form of attestation is necessary. The execution and attestation of the Will are mandatory in nature and any failure and deficiency in adhering to the essential requirements would result in the invalidation of the instrument of disposition of the property.
33. Similar is the judgment in Murthy v. C. Saradambal, (2022) 3 SCC 209 = 2021 SCC Online SC 1219, ::: Downloaded on - 19/08/2023 20:34:55 :::CIS 36 wherein it was observed:
"30. Before considering the correctness of the impugned judgment of the Division Bench of the .
High Court, it would be useful to refer to the following judgments of this Court on proof of wills:
(a) One of the celebrated decisions of this Court on proof of a will, reported in AIR 1959 of SC 443 is in the case of H. VenkatachalaIvenger vs. B.N. Thimmaiamma wherein this Court has clearly distinguished rtthe nature of proof required for a testament as opposed to any other document. The relevant portion of the said judgment reads as under:-
"18. 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, 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 handwriting under Sections 45 and 47 of the Act the opinions of experts and persons acquainted with the handwriting of the person concerned ::: Downloaded on - 19/08/2023 20:34:55 :::CIS 37 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 of satisfied by the party who relies on a document in a court of law. Similarly, Sections 59 and 63 of the Indian rt 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 ::: Downloaded on - 19/08/2023 20:34:55 :::CIS 38 of the 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 will. It of would prima facie be true to say that the will has to be proved like any other rt 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."
In fact, the legal principles with regard to the proof of a will are no longer res integra. Section 63 of the Indian Succession Act, 1925 and Section 68 of the Evidence Act, 1872, are relevant in this regard. The propounder of the will must examine one or more attesting witnesses and the onus is placed on the propounder to remove all suspicious circumstances with regard to the execution of the will. In the above-noted case, this Court has stated that the following ::: Downloaded on - 19/08/2023 20:34:55 :::CIS 39 three aspects must be proved by a propounder:-
"(i) that the will was signed by the .
testator in a sound and disposing state of mind duly understanding the nature and effect of disposition and he put his signature on the document of his own free will, and
(ii) when the evidence adduced in of 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 rt required by law, courts would be justified in making a finding in favour of propounder, and
(iii) if a will is challenged as surrounded by suspicious circumstances, all such legitimate doubts have to be removed by cogent, satisfactory and sufficient evidence to dispel suspicion. In other words, the onus on the propounded can be taken to bed is charged on proof of the essential facts indicated therein."
(b) In Jaswant Kaur v. Amrit Kaur and others 1977 1 SCC 369, this Court pointed out that when a will is allegedly shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant. What generally is an adversarial proceeding, becomes in such cases, a matter of the Court's conscience and then, the true ::: Downloaded on - 19/08/2023 20:34:55 :::CIS 40 question which arises for consideration is, whether, the evidence let in by the propounder of the will is such as would satisfy the conscience of the Court that the will was duly executed by the .
testator. It is impossible to reach such a satisfaction unless the party, which sets up the will offers a cogent and convincing explanation with regard to any suspicious circumstance surrounding the making of the will.
of
(c) In Bharour Singh and others v. Shamsher Singh 2009 (3) SCC 687, at Para 23, this Court has narrated a few suspicious circumstances, as being illustrative but not exhaustive, in the following rt manner:-
"23. Suspicious circumstances like the following may be found to be surrounded the execution of the will:
(i) The signature of the testator may be very shaky and doubtful or not appear to be his usual signature.
(ii) The condition of the testator's mind may be very feeble and debilitated at the relevant time.
(iii) The disposition may be unnatural, improbable or unfair in the light of relevant circumstances like the exclusion of or absence of adequate provisions for the natural heirs without any reason.
(iv) The dispositions may not appear to be the result of the testator's free will and mind.
(v) The propounder takes a prominent part in ::: Downloaded on - 19/08/2023 20:34:55 :::CIS 41 the execution of the will.
(vi) The testator used to sign blank papers.
(vii) The will did not see the light of the day for .
long.
(viii) Incorrect recitals of essential facts." It was further observed that the circumstances narrated hereinbefore are not exhaustive. Subject to offering a reasonable explanation, the existence thereof must be taken into of consideration for the purpose of arriving at a finding as to whether the execution of the will had been duly proved or not. It may be true that rt the Will was a registered one, but the same by itself would not mean that the statutory requirements of proving the will need not be complied with.
(d) In NaranjanUmeshchandra Joshi v. MrudulaJyoti Rao, (2006) 13 SCC 433, in Paras 34 to 37, this Court has observed as under:-
"34. There are several circumstances which would have been held to be described by this Court as suspicious circumstances:
(i) when a doubt is created in regard to the condition of mind of the testator despite his signature on the will;
(ii) When the disposition appears to be unnatural or wholly unfair in the light of the relevant circumstances;
(iii) where the propounder himself takes a prominent part in the execution of the will which confers on him substantial benefit.::: Downloaded on - 19/08/2023 20:34:55 :::CIS 42
35. We may not delve deep into the decisions cited at the Bar as the question has recently been considered by this Courts in B. Venkatamuni v. C.J. Ayodhya Ram Singh [(2006) 13 SCC 449], wherein .
this Court has held that the court must satisfy its conscience as regards due execution of the will by the testator and the court would not refuse to probe deeper into the matter only because the signature of the propounder on the will is otherwise proved.
of
36. The proof of a will is required not as a ground of reading the document but to afford the Judge reasonable assurance of it as being what it rt purports to be.
37. We may, however, hasten to add that there exists a distinction where suspicions are well founded and cases where there are only suspicions alone. The existence of suspicious circumstances alone may not be sufficient. The court may not start with suspicion and it should not close its mind to find the truth. A resolute and impenetrable incredulity is not demanded from the Judge even if there exist circumstances of grave suspicion."
(e) This Court in Anil Kak v. SharadaRaje, [(2008) 7 SCC 695], held as under:-
52. Whereas execution of any other document can be proved by proving the writings of the document or the contents of it as also the execution thereof, in the event there exist suspicious circumstances the party seeking to obtain probate and/or letters of administration with a copy of the will annexed ::: Downloaded on - 19/08/2023 20:34:55 :::CIS 43 must also adduce evidence to the satisfaction of the court before it can be accepted as genuine.
53. As an order granting probate is a judgment in .
rem, the court must also satisfy its conscience before it passes an order.
54. It may be true that deprivation of a due share by (sic to) the natural heir by itself may not be held to be a suspicious circumstance but it is one of the factors, which is taken into consideration by the of courts before granting probate of a will.
55. Unlike other documents, even animus attestandi is a necessary ingredient for proving the rt attestation."
(f) Similarly, in Leela Rajagopal and others v. Kamala Menon Cocharan and others, [(2014) 15 SCC 570], this Court opined as under:-
"13. A will may have certain features and may have been executed in certain circumstances, which may appear to be somewhat unnatural. Such unusual features appearing in a will or the unnatural circumstances surrounding its execution will definitely justify scrutiny before the same can be accepted. It is the overall assessment of the court on the basis of such scrutiny; the cumulative effect of the unusual features and circumstances which would weigh with the court in the determination required to be made by it. The judicial verdict, in the last resort, will be on the basis of a consideration of all the unusual features and suspicious circumstances put together and not on the impact of any single feature that may be found in a will or a singular ::: Downloaded on - 19/08/2023 20:34:55 :::CIS 44 circumstance that may appear from the process leading to its execution or registration. This is the essence of the repeated pronouncements made by this Court on the subject including the decisions .
referred to and relied upon before us"
34. The present question has to be decided as per the parameters laid down by the Hon'ble Supreme Court.
35. Bhagat Ram (DW-2) is the attesting witness to of the Will. He stated in his proved affidavit (Ext.PW-1/A) that Dhani Ram had talked to him about executing a Will rt in favour of his grandson. Dhani Ram told him about the earlier Will. The Will was written at Kasauli. It was read over and explained to Dhani Ram. Dhani Ram put his thumb impression on the Will. Bhagat Ram and Ratti Ram put their signatures as attesting witnesses. The Will was presented before the Sub-Registrar, who registered the same. The Will was executed by Dhani Ram in his sound disposing state of mind. He stated in his cross-
examination that he did not remember, who had accompanied him on the date of execution of the Will.
Dhani Ram was getting treatment at Kalka. He did not ::: Downloaded on - 19/08/2023 20:34:55 :::CIS 45 remember the time of reaching Kasauli. He had put his signatures before the Tehsildar. The documents were .
purchased by Rajinder. They were handed over to Ghanshyam.
36. Both the learned Courts below have concurrently held that his testimony is reliable. There of is nothing in his cross-examination to show that he is making an incorrect statement. He could not recollect rt some facts surrounding the execution of the Will, however, it was natural as the Will was executed in the year 2000 and this witness was deposing in the year 2006. A person is bound to forget the details after the lapse of time. He was aged 88 years on the date of deposition and due allowance has to be given to the failure of memory because of his age. His testimony could not have been discarded due to his failure to recall the facts.
37. It was submitted that Dhani Ram had mentioned his age as 102 years in the Will (Ext.DW-
::: Downloaded on - 19/08/2023 20:34:55 :::CIS 461/B). Hence, an inference can be drawn that he would have been unable to understand the nature of .
disposition due to his advanced state. This submission cannot be accepted. It was laid down bythis Court in Shanti Devi Vs Dali Devi & Anr 2002 (2) SLJ 1095 that the old age of the executant does not show that he was not of in a sound disposing state of mind. It was observed:-
"16. The second contention of Mr. Bhardwaj, rt learned counsel for the appellant, that Munshi Ram was 90 years of age and therefore, was not in disposing mind at the time of execution of the Will is concerned, it has no substance. There is nothing on record to show that the testator was not in sound disposing mind at the time of execution of the Will. It is true that the validity of a will depends on the testator being of sound disposing mind at the time of the making of the Will but at the same time, a sound disposing mind does not depend upon the advanced age. The mere fact that Munshi Ram was 90 years of age at the time of execution of the will, would not lead to the conclusion that he was not in sound disposing mind. In Tirath Singh & Ors v. Sajjan Singh (Died) through his LRs & Ors. 1998(1) S.L.J. 232 it was held that mere advanced age Will does not lead to any presumption that the testator was not of ::: Downloaded on - 19/08/2023 20:34:55 :::CIS 47 sound disposing mind. The very fact that the Will in question was got registered by the testator on the same date shows that the testator was of sound disposing mind at the .
relevant time. See Gurpal Singh v. Darshan Singh 1998 (1) S.L.J. 174. Mr Bhardwaj. learned counsel for the appellant was unable to point out any evidence on record except that of a self-serving statement of the plaintiff, that the testator was not of sound disposing mind.
of There is no merit in the contention that the appellant was mentally incapacitated to execute a valid Will.
rt
38. This position was reiterated in Om Prakash & others Vs Bhup Singh & others 2009 HLJ 106,wherein it was observed:-
"6. The mere fact that the testator was old does not conclusively establish that he was not possessed of the sound mental disposing state of mind and was not in a position to understand the disposition, which he was making. This fact had to be established by leading reliable evidence and was not a mere matter of conjecture and inference. Once the due execution of the will was established the intention of the testator as expressed in the will was to be given effect.::: Downloaded on - 19/08/2023 20:34:55 :::CIS 48
39. Therefore, no presumption can be drawn from the old age of Dhani Ram that he could not .
understand the nature of the Will.
40. It is undisputed that the Will was registered.
It was laid down by this Court in Tirath Singh Versus Sajjan Singh 1988 (1) S.L.J. 232 that the mere fact that of the deceased was an old person cannot lead to any inference that he was not in a sound disposing state of rt mind when the Will was registered. It was observed:
"The Will was registered on December 13, 1972. It carries the endorsement of the Sub-
Registrar. Harbhajan Singh Lambardar and Kartar Singh (DW.3) attesting witnesses of the Will were also present at that time. The Sub-
Registrar certified that the Will was read over to Ralla who admitted the contents of it as correct and then he thumb-marked the same. From this, it has to be presumed that at the time of registration of the Will, Ralla was having a sound disposing mind and it was executed by him while in his full senses. From the mere fact that the testator of the Will, namely Ralla, was of advanced age, "no presumption can be drawn that he was not having sound disposing mind. Therefore, the contention in that respect is repelled."::: Downloaded on - 19/08/2023 20:34:55 :::CIS 49
41. Similar is the judgment in Gurpal Singh Versus Darshan Singh 1998 (1) S.L.J. 174, wherein it was held:
.
"......The Will Ext. D3 is a registered document.
From this, a presumption arises that the 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 of the Will, Phuman Singh was suffering from any mental ailment......."
42. It was laid down in Ashok Baury v. State, 2021 SCC rt OnLine Del 1248= 2021 (279) DLT 561 that there is a presumption in favour of sanity and the burden lies on the person, who challenges it to prove that the person was insane. It was observed:
"8. Soundness of mind, for the purposes of contracting, is defined in Section 12 of the Indian Contract Act, 1872 and which in my view would have application in the matter of soundness of mind requisite for making of a Will as well. As per the said provision, (i) a person is said to be of sound mind, if, at the time of the making of the contract, he is capable of understanding it and of forming a rational judgment as to its effect upon his interests; (ii) a person who is usually of unsound mind, but occasionally of sound mind, may make a contract when he is of sound mind;::: Downloaded on - 19/08/2023 20:34:55 :::CIS 50
and, (iii) a person who is usually of sound mind, but occasionally of unsound mind, may not make a contract when he is of unsound mind.
.
9. As would be obvious from the above, a common thread is found to run between Section 12 of the Contract Act and Section 59 of the Indian Succession Act.
10. Chapter VII titled "Of the Burden of Proof", of Part III titled "Production and Effect of of Evidence", of the Evidence Act deals with the issue with which this Court is concerned herewith. Per Section 101 thereunder, whosoever desires any Court to give judgment as to any legal rt right or liability dependent on the existence of facts, which he asserts, must prove that those facts exist. Since the propounder of a Will as per Section 59 of the Indian Succession Act is required to prove that the testator at the time of the making of the Will was of sound mind, the burden of proof would be on the propounder. However, that would be so where none is opposing the Will propounded and the Will has to be proved for the satisfaction of the Court. However when a document propounded as Will is contested, what would be required to be proved is only what is in issue and only if the party disputing the document propounded as a Will disputes/controverts that the testator/testatrix, at the time of making the Will was of sound mind, would soundness of mind be in issue and required to be proved. However if the soundness of mind is not specifically denied then as per the Rules aforesaid contained in Order VIII Rule 5 of ::: Downloaded on - 19/08/2023 20:34:55 :::CIS 51 the CPC, soundness of mind shall be deemed to have been admitted. In the event of denial of the soundness of mind, the question as herein arises, on whom the onus should be, whether on the .
propounder or the opposite party, arises.
11. Section 114 under the aforesaid Chapter VII of Part III of the Evidence Act enables the Court to presume the existence of any fact which it thinks likely to have happened, regard being had to the of common course of natural events, human conduct and public and private business, in their relation to the facts of the case.
12. The common course of natural events and rt human conduct is soundness of mind and unsoundness of mind an aberration. If a testator/testatrix has led a normal life, and performed day-to-day functions in the normal course of human conduct, the presumption under Section 114 would be of soundness rather than unsoundness of mind."
43. In the present case, there is no evidence that Dhani Ram was not of a sound disposing state of mind at the time of execution of the Will. Both the learned Courts below have concurrently found that Dhani Ram had executed the Will in his sound disposing state of mind and there is nothing on record to show that this conclusion is perverse. Therefore, it is not permissible to ::: Downloaded on - 19/08/2023 20:34:55 :::CIS 52 interfere with this finding of fact while deciding the present appeal.
.
44. It was mentioned in the Will (Ext.DW-1/B) that the testator had executed a Will in favour of his sons on 17.08.1993. He also wanted to give something to his grandchildren; therefore, he was executing a of Will in favour of his grandchildren. The reason assigned by Dhani Ram to execute the Will in favour of rt his grandchildren cannot be said to be illusory. Dhani Ram would have some affinity with his grandchildren and the execution of the Will in their favour cannot be said to be suspicious.
45. No other suspicious circumstances were pleaded or proved. Hence, it cannot be said that Will executed by Dhani Ram was shrouded by suspicious circumstances and the substantial question of law is decided, accordingly.
Final Order ::: Downloaded on - 19/08/2023 20:34:55 :::CIS 53 In view of the above, the present appeal fails and is dismissed, so also pending application(s), if any.
.
(Rakesh Kainthla) Judge of 19th August, 2023 (Shivender) rt ::: Downloaded on - 19/08/2023 20:34:55 :::CIS