Himachal Pradesh High Court
Between vs Pamela Mehta And Others on 8 October, 2021
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT
SHIMLA
ON THE 8TH DAY OF OCTOBER, 2021
BEFORE
.
HON'BLE MR. JUSTICE SANDEEP SHARMA
REGULAR SECOND APPEAL No.425 OF 2012
Between:-
PREM SINGH @ PREMA
SON OF SH.SUKHIYA,
R/O VILLAGE KHANOT HARLYAN,
ILLAQUA HATLI,
SUB TEHSIL BALDWARA,
DISTTT.MANDI, H.P.
r ......APPELLANT-DEFENDANT
(BY SH.R.K. BAWA, SENIOR ADVOCATE
WITH MR.ARUN SEHGAL, ADVOCATE.)
AND
SMT.SATYA DEVI,
D/O LATE SH.FITHU @ MAHANTU,
W/O SH.DUMNU RAM
R/O WARD NO.8,
HOUSE NO.128/8,
VILLAGE KHARSHI,
TEHSIL SUNDER NAGAR,
DISTT.MANDI,
H.P. 175002
... RESPONDENT-PLAINTIFF
(BY SH.VIJAY BHATIA, ADVOCATE.)
Whether approved for reporting ? Yes.
This appeal coming up for final hearing this day, the Court
passed the following:
JUDGMENT
Instant Regular Second Appeal, under Section 100 of the Code of Civil Procedure, filed by the appellant-defendant ::: Downloaded on - 31/01/2022 23:11:46 :::CIS 2 (hereinafter referred to as the 'defendant') lays challenge to the judgment and decree dated 28.05.2012 passed by learned District Judge, Mandi, District Mandi, Himachal Pradesh in Civil Appeal No.52 of 2010, reversing the judgment and decree dated .
25.05.2010 passed by learned Civil Judge (Senior Division), Sarkaghat, District Mandi, Himachal Pradesh in case No.113 of 2000, whereby suit for declaration with consequential relief of injunction having been filed by the respondents-plaintiffs (hereinafter referred to as the 'plaintiffs') was dismissed.
2. For having bird's eye view, certain undisputed facts, as emerged from the record, are that the plaintiffs filed suit for declaration with consequential relief of injunction against the defendant averring therein that land denoted by Khewat Khatauni No. 213/248, comprising of Khasra No. 907, 970, 984, 985, 986, 1055/991, 1059/992 Kita 7, measuring 0-13-24 hectare is recorded in the ownership and possession of deceased Fithu and the land denoted by Khewat Khatauni No. 214/249, Khasra No. 971, 971/ and 983, Kita 3, measuring 0-06-39 Hectare is recorded in the ownership of deceased Fithu alongwith other co-sharers and Fithu had got 1/6th share i.e. 0-01-06 Hectares, situate in Village Khanot/491 and the land comprised in Khewat Khatauni No. 134/147 Khasra No.242, 465 and 510 Kita 3, measuring 0- 13-51 Hectare, situate in Village Hariyan/493 (hereinafter referred to as the 'suit land') is recorded in the ownership and possession of deceased Fithu.
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3. Plaintiffs claimed that they are widow and daughter of deceased Fithu and deceased was looked after and maintained by them and after his death, they performed his last rites. Plaintiffs also claimed that the suit land is being cultivated by them and one .
Shri Mohan Lal. Plaintiffs further claimed that the defendant has set up a false and fictitious Will, which was never executed by the deceased. Plaintiffs averred in the plaint that under the garb of Will, the defendant has threatened to take forcible possession of the suit land. The mutation of the suit land is yet to be attested and they being sole heirs of the deceased Fithu alias Mahantu have right of maintenance out of the property of the deceased Fithu. Plaintiffs claimed that deceased Fithu was old and illiterate person and was unable to understand the worldly affairs and as such, the Will set up by the defendant is a false and fictitious document. Plaintiffs also claimed that the defendant in collusion with the witnesses set up a false Will, which was never executed by the deceased. It has further been averred in the plaint that the plaintiffs reported the fact of death of Fithu to the Patwari, who in turn told the plaintiffs that the defendant has set up a Will in his favour. Besides above, the plaintiffs also claimed that deceased Fithu had two wives; one Smt.Kalasi and another Smt. Jugli Devi, (plaintiff No.1) and daughter was born from their union namely; Satya Devi (plaintiff No.2).
4. The aforesaid claim made by the plaintiffs came to be resisted and contested on behalf of the defendant by filing written statement in which he has taken preliminary objections qua cause ::: Downloaded on - 31/01/2022 23:11:46 :::CIS 4 of action and locus standi. It has been specifically stated by the defendant that plaintiff No.1 is neither the wife nor plaintiff No.2 is daughter of deceased Fithu @ Mahantu. Defendant claimed before the Court below that he alongwith his family used to cultivate the .
land of deceased Fithu @ Mahantu and rendered all types of services, whereas, plaintiff No.1 Smt.Jugli Devi remained with deceased Fithu for some time and thereafter left his house and gone with some other person and residing at Sundernagar for the last 40 years. Defendant also claimed that plaintiff No.2 is not the daughter of Fithu @ Mahantu and as such, not entitled to property of deceased. It is further averred by the defendant that the plaintiffs never resided with Fithu and the wife of Fithu was Kalasi Devi and he besides cultivating land of deceased also took care of Fithu and his wife Kalsi. Defendant specifically denied the averments made in the plaint that the deceased Fithu was not in sound state of mind and claimed that deceased Fithu executed a Will in his favour in sound and disposing state of mind and in lieu of his services rendered to him, bequeathed suit property in his favour. Defendant further averred in the written statement that Smt. Kalasi Devi wife of Fithu expired on 31.8.1998 and she was the only wife of Fithu and plaintiffs are in no way related to Fithu.
5. On the basis of aforesaid pleadings adduced on record by respective parties, learned Court below, vide order dated 09.07.2004 framed the following issues:-
"1. Whether plaintiffs are sole legal heirs of deceased Fithu and are entitled to succeed ::: Downloaded on - 31/01/2022 23:11:46 :::CIS 5 to his estate, as alleged, if so its effect? OPP
2. Whether the Will dated 26-8-1998 executed by deceased by Fithu is false and fictitious document as alleged? OPP .
3. Whether deceased Fithu executed valid will dated 26-8-1998 in favour of defendant? OPD
4. Whether the plaintiffs have no cause of action to file the present suit/ OPD
5. Whether the plaintiffs have no locus standi to file the present suit? OPD
6. Relief."
6. Subsequently, on the basis of pleadings as well as evidence adduced on record, learned trial court below, dismissed the suit of the plaintiffs vide judgment and decree dated 25.05.2010.
7. Being aggrieved and dissatisfied with the aforesaid judgment and decree dated 25.05.2010, passed by the learned trial Court, plaintiffs preferred an appeal under Section 96 of the Code of Civil Procedure in the Court of learned District Judge, Mandi, which came to be allowed vide judgment and decree dated 28.05.2012, as a consequence of which, suit of the plaintiffs came to be allowed.
8. In the aforesaid background, defendant has approached this court by way of instant appeal, praying therein to restore the judgment and decree dated 25.05.2010 passed by the learned trial Court after setting aside the judgment and decree dated 28.05.2012 passed by learned District Judge, Mandi. ::: Downloaded on - 31/01/2022 23:11:46 :::CIS 6
9. Aforesaid appeal filed by the defendant came to be admitted by this court vide order dated 14.08.2012, on the following substantial question of law:-
"1. Whether the ld.First Appellate Court has .
erred in law, in declaring the Will Ex. DW-
2/A having been executed under suspicious circumstances' on the ground that there is no mention of plaintiff No.1 Jugli Devi who had left company of the executant Fithu @ Mahantu about 40 years prior to the execution of the said Will?"
10. Before adverting to the factual matrix of the case and exploring the answer to substantial question of law, it may be noticed that the suit at hand was filed by Smt.Jugli Devi and Smt.Satya Devi, plaintiffs No.1 and 2, but, Smt.Jugli Devi expired during the pendency of appeal before the learned District Judge and as such her name was deleted vide order dated 25.07.2011 and as of today the suit is being contested by Smt.Satya Devi daughter of Fithu @ Mahantu i.e. plaintiff No.2.
11. Having heard learned counsel for the parties and perused the material available on record vis-à-vis reasoning assigned by the first appellate Court, while setting aside the judgment and decree passed by the trial Court, this Court finds that the learned trial Court, on the basis of pleadings as well as evidence adduced on record, arrived at a definite conclusion that Will Ex.DW-2/A was a valid document and the same was executed by deceased Fithu bequeathing his property in favour of the defendant. Though learned trial Court, on the basis of pleadings as well as evidence led on record, arrived at a conclusion that ::: Downloaded on - 31/01/2022 23:11:46 :::CIS 7 plaintiff No.1 Smt.Jugli Devi was married to deceased Fithu and plaintiff No.2 Satya Devi was born out of their wedlock, but, yet rejected the claim of the plaintiffs that the Will Ex.DW-2/A allegedly executed by deceased Fithu is shrouded by suspicious .
circumstance for the reasons that there was no reason, if any, for deceased Fithu to not to make provisions of maintenance of his wife Jugli Devi and daughter Satya Devi, while executing the Will. Learned trial Court, having taken note of abstract of Parivar Register Ex.PW-3/A, which was prepared in the year 1982 and wherein it stood recorded that Smt.Jugli Devi left the company of deceased Fithu, coupled with the fact that Fithu @ Mahantu after departure of Jugli Devi had contracted second marriage with Kalasi Devi, proceeded to hold that since Jugli Devi suddenly appeared after a lapse of 40 years and she never turned up in the witness box to explain her position, came to the conclusion that Will Ex.DW-2/A is not shrouded by suspicious circumstance.
12. Learned District Judge in an appeal filed by the plaintiffs recorded in para-37 of the judgment that defendant made efforts to fulfill the ingredients of Section 63 of Indian Succession Act as well as Section 68 of Indian Evidence Act, but, merely on this fact, document Ex.DW-2/A cannot be said to be validly executed document. Learned District Judge recorded in its judgment that testator has given no reference regarding his wife Jugli Devi and daughter Satya Devi in the document Ex.DW-2/A and as such it cannot be said that Will Ex.DW-2/A is not shrouded by suspicious circumstance. Learned first appellate ::: Downloaded on - 31/01/2022 23:11:46 :::CIS 8 Court also observed in its judgment that it is highly improbable for the testator to not to mention the name of his wife and only daughter in the document and non-mentioning of such important fact in the document compels this court to hold that the Will in .
question is shrouded by suspicious circumstance. Besides above, learned District Judge, while reversing the findings returned by the learned trial Court, recorded in its judgment that, "had the Will been executed by the testator with his sound and disposing state of mind, then naturally it would have contained recital/reference regarding his wife and daughter". If the pleadings as well as evidence led on record by the respective parties are read in its entirety, this Court finds it difficult to agree with the findings of learned District Judge that the Will Ex.DW-2/A is shrouded by suspicious circumstance.
13. Plaintiff, with a view to prove that Will Ex.DW-2/A is false and fictitious document, besides examining PW-2 Lauka Ram, PW-3 Chaman Lal and PW-4 Amar Nath, also stepped herself into witness box as PW-1 and deposed that Fithu @ Mahantu was her father and Jugli was her mother. She deposed that Jugli was married to her father Fithu @ Mahantu and out of their wedlock she was born. She also deposed that deceased Fithu was married with another lady with the consent of her mother Smt.Jugli and out of the said wedlock, one daughter was born. However, said daughter as well as second wife have now expired. This witness deposed that she performed last rites of her father. In her cross- examination, this witness denied the suggestion that her mother ::: Downloaded on - 31/01/2022 23:11:46 :::CIS 9 lived with Fithu as his concubine. This witness also admitted that Kalasi died on 31.08.1998 and Fithu @ Mahantu died on 04.04.2000. Though this witness admitted that the defendant is nephew of deceased Fithu @ Mahantu but denied that he was .
looking after Fithu @ Mahantu and Kalasi.
14. PW-2 Lauka Ram corroborated the version of PW-1 Satya Devi that Jugli was wife of Fithu @ Mahantu and Satya was his daughter. He also deposed that Fithu was being looked after by the plaintiffs Jugli and Satya Devi. He also deposed that last rites of deceased Fithu @ Mahantu were performed by his daughter Satya Devi. This witness denied that Fithu @ Mahantu was married with Kalasi.
15. Chaman Lal PW-3, Secretary Gram Panchayat, Baldwara, proved copy of Parivar Register Ex.PW-3/A. As per this witness, entry in the Parivar Register was made in the years 1962, wherein it has been recorded that Jugli Devi left her matrimonial home two years prior to 1962. PW-4 Amar Nath proved School leaving certificate of PW-1 Satya Devi (Ex.PW-4/A).
16. Close scrutiny of aforesaid evidence led on record by the plaintiffs, if read in conjunction with the plaint, reveals that marriage interse Fithu @ Mahantu was solemnized and out of their wedlock plaintiff No.2 Satya Devi was born, but Smt.Jugli Devi, two years prior to 1962, left her matrimonial home. School leaving certificate of Satya Devi, plaintiff No.2 (Ex.PW-4/A) reveals that she was daughter of Fithu @ Mahantu, but there is nothing in the statement as well as in the plaint so as to prove the fact that ::: Downloaded on - 31/01/2022 23:11:46 :::CIS 10 defendant, taking undue advantage of old age and unsound mind of the deceased Fithu @ Mahantu, got the Will Ex.DW-2/A executed fraudulently. PW-2 Shri Lauka Ram though stated that Jugli was wife of Mahantu and Satya was his daughter, but, he .
nowhere stated that deceased Fithu @ Mahantu was not being looked after by his nephew Prem Singh and, moreover, this witness categorically denied that Mahantu @ Fithu was married to Kalasi. Whereas, plaintiff No.2 herself stated in her statement before the Court that Fithu @ Mahantu had married to one lady; namely; Kalasi with the consent of her mother Smt.Jugli Devi and out of her wedlock one daughter was born.
17. Prem Singh, while appearing as DW-1, deposed that Fithu @ Mahantu was her uncle, who had executed Will in his favour in lieu of services rendered by him. He also deposed that Mahantu and his wife Kalasi used to reside with him and Satya and Jugli have no relations with Mahantu. He deposed that Jugli was married in village Basotar. This witness deposed that Will was executed on 26.08.1998 and when Will was executed, wife of Mahantu was alive and she died after 4-5 days thereafter. This witness admitted that Mahantu worked at BSL, Sundernagar for about 35-40 years, but denied the suggestion put to him that Jugli Devi was legally wedded wife of Mahantu. In cross-examination, this witness admitted that Mahantu had three brothers, who were residing separately. This witness feigned ignorance regarding the fact that plaintiff No.2 Satya Devi was born out of the marriage between Jugli Devi and Mahantu.
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18. DW-2 Kishore Chand deposed that Will Ex.DW-2/A was got scribed by Mahantu from the deed writer Shri Krishan Chand. He stated that he was called by Mahantu and one Bhumi Chand was also with them. This witness deposed that Mahantu .
hired jeep and took them to deed writer Shri Krishan Chand. Deed writer was working as Petition Writer at Baldwara, but Naib- Tehsildar was not present there, hence, Mahantu took them to Sarkaghat. After scribing the Will, Shri Krishan Chand read over and explained the contents of the same to Mahantu, who accepted the same as correct and thereafter put his signature on it. Thereafter, Shri Prem Singh and this witness put their signatures on it and then the Will was produced before Tehsildar. At the time of execution of the Will, the testator was having sound and disposing state of mind. This witness deposed that deed writer disclosed him that the defendant is serving the testator and these facts have been mentioned in the Will. He also deposed that Mahantu died two years after execution of the Will.
19. DW-3 Bhumi Chand corroborated the version put forth by DW-2 Kishore Chand. He deposed that Will Ex.DW-2/A was executed by testator Mahantu in favour of his nephew Prem Singh on 26th August, 1998. The Will was scribed by Shri Krishan Chand, deed writer, and the same was scribed as per the direction of the testator. After scribing the same, the contents of the Will were read over and explained to Mahantu, who, after accepting the contents of the same as correct put his signature on it. He further deposed that Kishore Chand and Prem Singh put their signatures ::: Downloaded on - 31/01/2022 23:11:46 :::CIS 12 on it. He also stated that he put his signatures on the same. He also deposed that the testator took the Will to Sub-Registrar and Sub-Registrar again read over and explained the contents of the Will to Mahantu, who, accepted the contents of the Will as correct .
and put his signature on it. He also deposed that at the time of execution of the Will, the testator was having sound and disposing state of mind. This witness further deposed that the deceased testator Mahantu was being looked after by the defendant and his wife and the last rites of Mahantu were also performed by Sh.Prem Singh. This witness also stated that Mahantu was having only one wife; namely; Kalasi Devi. This witness feigned ignorance qua the fact that plaintiff No.1 was wife of the deceased and plaintiff No.2 is his daughter.
20. DW-2, Shri Govind Ram, Naib Tehsildar-cum-Sub Registrar, deposed that the Will Ex.DW-2/A was produced before him for registration on 26.08.1998 and when he had inquired from Mahantu regarding the contents of the Will, he accepted the same to be correct. He also stated that at the time of execution of the Will, the testator was having sound and disposing state of mind. He also deposed that in total four persons appeared before him, 1st one was testator, 2nd one was identifier and 3rd and 4th were attesting witnesses of the Will.
21. DW-5 Shri Chandu Ram deposed that Mahantu was having only one wife; namely; Kalasi Devi. He deposed that Mahantu was having another wife, but said wife left Mahantu 45 years ago and her whereabouts are not known to anyone. ::: Downloaded on - 31/01/2022 23:11:46 :::CIS 13
22. If the statements of the defendant witnesses are read in conjunction, it leaves no room to agree with Shri Vijay Bhatia, learned counsel representing the respondent-plaintiffs that defendant, taking undue advantage of old age and ill health of .
deceased Fithu @ Mahantu, got the Will Ex.DW-2/A executed fraudulently. Evidence, as has been discussed hereinbefore, clearly suggests that at the time of execution of Will Ex.DW-2/A, deceased testator Mahantu was residing with the family of defendant and he, in lieu of services rendered by his nephew, bequeathed the property in favour of defendant by way of Will Ex.DW-2/A. Though most of the defendant witnesses have denied the factum with regard to marriage of deceased Fithu @ Mahantu with plaintiff No.1 Jugli, but yet it can be deduced from the statement of one of the witness PW-5 Shri Chandu Ram, that testator Mahantu had contracted marriage with plaintiff No.1 Jugli, but she had left his company 45 years ago and Mahantu had contracted second marriage with Kalasi Devi. It also clearly emerge from the evidence led on record that testator Mahantu himself got the Will Ex.DW-2/A scribed and the same was got registered in the office of Sub Registrar that too in the presence of two attesting witnesses, who categorically stated in their statements that after scribing the Will, scribe Shri Krishan Chand read over and explained the contents of the Will to testator Mahantu and he, after accepting them to be correct, put his signature on the same in their presence. Besides this, it has also been stated that when the Will was produced before the Sub ::: Downloaded on - 31/01/2022 23:11:46 :::CIS 14 Registrar for registration, he, after ascertaining the correctness of the contents of the Will from the testator Mahantu accepting them to be correct, put his signatures in his presence.
23. After having carefully perused the entire evidence led .
on record, it can be safely inferred that Will Ex.DW-2/A was executed strictly in accordance with law as well as in terms of provisions contained in Section 68 of the Evidence Act and Section 63 of the Succession Act. Careful perusal of Ex.PW-3/A i.e. abstract of Parivar Registrar though suggests that Jugli Devi was married to deceased Fithu @ Mahantu, but, it also stands recorded in this document that two years prior to 1962, she left the company of testator deceased Mahantu, meaning thereby majority of defendant witnesses have denied the factum with regard to solemnization of marriage interse plaintiff Jugli Devi and testator Mahantu @ Fithu, but even if it is presumed that marriage interse them solemnized, it can be safely concluded that in the year 1960 she had left the company of Mahantu @ Fithu. Thereafter, he was living with his second wife; namely; Kalasi Devi. Ex.PW-4/A, school leaving certificate of plaintiff No.2, though suggests that she is daughter of testator Mahantu @ Fithu, but merely such fact does not entitle her to become a beneficiary of the Will Ex.DW-2/A executed by the testator Mahantu @ Fithu with sound and disposing state of mind. Learned District Judge, while reversing the findings returned by the trial Court, has termed the Will Ex.DW-2/A to be shrouded with suspicious circumstance on the ground that since testator has not given reference of his wife Jugli ::: Downloaded on - 31/01/2022 23:11:46 :::CIS 15 Devi as well as daughter Satya Devi in the Will and has not assigned reasons, if any, to disinherit them from his movable or immovable property, Will Ex.DW-2/A cannot be said to be free from the suspicious circumstance. However, this Court finds no .
merit in the aforesaid findings returned by the learned District Judge, since it stands duly proved on record that plaintiff No.1 Jugli Devi had left the company of testator Fithu @ Mahantu in the year 1960 and since then she had been living separately with her daughter plaintiff No.2 in Sundernagar, there was otherwise no occasion, if any, for the testator Fithu @ Mahantu to bequeath some of his property in favour of Jugli Devi and his daughter Satya Devi.
24. Needless to say that the testator of his own volition can always bequeath his/her property to any person and is not under any obligation to bequeath his/her property in favour of his/her natural legal heirs. Rather, testator in lieu of services rendered to him/her of his/her own volition can bequeath his/her property to a person other than his/her natural legal heirs.
25. In the case at hand there is overwhelming evidence available on record suggestive of the fact that the testator after the year 1962 had been residing with his second wife Kalasi in the house of defendant Prem Singh and he was being looked after by defendant Prem Singh and his family and as such this Court finds no illegality, if any, in the action of testator bequeathing his entire property in favour of the defendant in lieu of services rendered to him. Though the plaintiffs have claimed that testator Fithu @ ::: Downloaded on - 31/01/2022 23:11:46 :::CIS 16 Mahantu was living with them and they were looking after him but such plea of them is not supported by cogent and convincing evidence. Interestingly, Jugli Devi during her life time never chose to enter witness box in support of her claim and plaintiff No.2 .
Satya Devi deposed as PW-1 that Jugli Devi was wife of testator Fithu @ Mahantu and she is the daughter of Fithu @ Mahantu. However, she was unable to rebut documentary evidence led on record by the defendant in shape of Ex.PW-3/A i.e. abstract of Parivar Register, where it stands duly recorded that two years prior to 1962 Jugli Devi left the company of testator Fithu @ Mahantu. Aforesaid factum with regard to entry made in Parivar Registrar Ex.PW-3/A stands further corroborated by statement made by PW-5 Chandu Ram, who deposed that Mahantu was having another wife, but said wife had left Mahantu 45 years ago and her whereabouts are not known to any one. Save and except PW-1 Satya Devi and PW-2 Lauka Ram, none of the plaintiff witnesses supported the case of the plaintiffs that Jugli was wife of Mahantu and Satya Devi was his daughter. Moreover, these witnesses were unable to disclose about the date when Mahantu and Jugli were married. Will Ex.DW-2/A was executed on 26th August, 1998 i.e. after 38 years of leaving the house of testator Mahantu by plaintiff Jugli Devi. It nowhere comes in the pleadings as well as in the evidence led on record by the plaintiffs that after the year 1960 Jugli Devi had returned back to the house of Mahantu alongwith her daughter and during the last days of testator Fithu @ Mahantu, they both were living with him. Since ::: Downloaded on - 31/01/2022 23:11:46 :::CIS 17 both the plaintiffs never turned up to take care of testator Fithu @ Mahantu after 1960, there was otherwise no occasion for him to bequeath share, if any, of his property in favour of the plaintiffs. Since both the plaintiffs had never come to see testator Fithu @ .
Mahantu during his life time, coupled with the fact that Fithu @ Mahantu had contracted second marriage with Kalasi, there was no reason, if any, for him to make specific mention with regard to the plaintiffs in the Will as well as to assign reasons, if any, to not to give them any part of his movable and immovable property.
26. At this stage, it would be apt to take note of latest judgment of Hon'ble Apex Court passed in Kavita Kanwar vs. Pamela Mehta and Others, 2020 SCC Online SC 464, wherein it has been held that Will cannot be viewed with suspicion only because the appellant had played an active role in execution thereof though she is the major beneficiary; or only because the respondents were not included in the process of execution of the Will; or only because of unequal distribution of assets; or only because there is want of clarity about the construction to be carried out by the appellant; or only because one of the attesting witnesses being acquaintance of the appellant; or only because there is no evidence as to who drafted the printed part of the Will and the note for writing the opening and concluding passages by the testatrix in her own hand; or only because there is some discrepancy in the oral evidence led by the appellant; or only because of any other factor taken into account by the Courts or relied upon by the respondents. In the aforesaid judgment, ::: Downloaded on - 31/01/2022 23:11:46 :::CIS 18 Hon'ble Apex Court has held that an individual factor may not be decisive but, if after taking all the factors together, conscience of the Court is not satisfied that the Will in question truly represents the last wish and propositions of the testator, the Will cannot get .
the approval of the Court. The Hon'ble Court has held as under:-
"28. There is no doubt that any of the factors taken into account by the Trial Court and the High Court, by itself and standing alone, cannot operate against the validity of the propounded Will. That is to say that, the Will in question cannot be viewed with suspicion only because the appellant had played an active role in execution thereof though she is the major beneficiary; or only because the respondents were not included in the process of execution of the Will; or only because of unequal distribution of assets; or only because there is want of clarity about the construction to be carried out by the appellant; or only r because one of the attesting witnesses being acquaintance of the appellant; or only because there is no evidence as to who drafted the printed part of the Will and the note for writing the opening and concluding passages by the testatrix in her own hand; or only because there is some discrepancy in the oral evidence led by the appellant; or only because of any other factor taken into account by the Courts or relied upon by the respondents. The relevant consideration would be about the quality and nature of each of these factors and then, the cumulative effect and impact of all of them upon making of the Will with free agency of the testatrix. In other words, an individual factor may not be decisive but, if after taking all the factors together, conscience of the Court is not satisfied that the Will in question truly represents the last wish and propositions of the testator, the Will cannot get the approval of the Court; and, other way round, if on a holistic view of the matter, the Court feels satisfied that the document propounded as Will indeed signifies the last free wish and desire of the testator and is duly executed in accordance with law, the Will shall not be disapproved merely for one doubtful circumstance here or another factor there."
27. Reliance is also placed upon Rabindra Nath Mukherjee vs. Panchanan Banerjee (Dead) by LRs and Others, ::: Downloaded on - 31/01/2022 23:11:46 :::CIS 19 (1995)4 SCC 459, wherein Hon'ble Apex Court has held that deprivation of the natural heirs by the testator/testatrix cannot be said to be suspicious circumstance because the whole idea behind execution of the Will is to interfere with the normal line of .
succession. The Hon'ble Court has held as under:-
"3. A perusal of the two impugned judgments shows that the following were regarded as suspicious circumstances:
(1) Deprivation of the natural heirs by the testatrix.
(2) Identification of the testatrix before the Sub-registrar by an Advocate of Calcutta who had acted as a lawyer of r one of the executors in some cases.
(3) The witnesses to the documents were interest in the appellants.
(4) Active part played by one Subodh, a close relation of Rabindra, one of the executors, in getting execution of the will. He has been described as ubiquitous.
4. As to the first circumstance, we would observe that this should not raise any suspicion, because the whole idea behind execution of will is to interfere with the normal line of succession. So natural heirs would be debarred in every case of will; of course, it may be that in some cases they are fully debarred and in others only partially. As in the present case, the two executors are sons of a half-blood brother of Saroj Bala, whereas the objectors descendants of a full blood sister, the disinheritence of latter could not have been taken as a suspicious circumstance, when some of her descendants are even beneficiaries under the will.
28. Reliance is also placed upon the judgment of Hon'ble Apex Court in Smt.Sushila Devi vs. Pandit Krishna Kumar ::: Downloaded on - 31/01/2022 23:11:46 :::CIS 20 Missir and Others, 1971(3) SCC 146, wherein the Hon'ble Court has held as under:-
"5. Prima facie, the circumstance that no bequest was made to the appellant by the testator would make the will appear unnatural but if .
the execution of the will is satisfactorily proved, the fact that the testator had not bequeathed any property to one of Ms children cannot make the will invalid. If the bequest made in a will appears to be unnatural then the court has to scrutinise the evidence in support of the execution of the will with a greater degree of care than usual, because every person must be presumed to act in accordance with the normal human behavior but there is no gainsaying the fact that some individuals do behave in an abnormal manner.
Judges cannot impose their own standard of behavior on those who execute wills. As observed by this Court in H. Venkatachala lyengar v. B.N. Thimmaiamma, that the mode of proving a will does not ordinarily differ from that of proving any other document r except as to the special requirement of attestation prescribed by Section 63 of the Indian Succession Act. Proof in either case cannot be mathematically precise and certain and so the test should be one of satisfaction of a prudent mind in such matters. The onus must be on the propounder and in absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and signature of the testator as required by law may be sufficient to discharge the onus. Where, however, there are suspicious circumstances the onus would be on the propounder to explain them to the satisfaction of the court before the will can be accepted as genuine."
29. Reliance is also placed upon the judgment of Hon'ble Apex Court in Pushpavathi and Others vs. Chandraraja Kadamba and Others, (1973)3 SCC 291, wherein the Hon'ble Court has held as under:
"5. The position in law is no longer in doubt. It is for the propounder of the Will to prove it, 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 by law is sufficient, to ::: Downloaded on - 31/01/2022 23:11:46 :::CIS 21 discharge the onus which is placed upon the propounder of the Will. Where there are suspicious circumstances, the propounder of the Will has to explain them away to the satisfaction of the Court. The suspicious circumstances may be as to the genuineness of the signature of the testator, the condition of the testator's mind, the dispositions made in .
the Will being unnatural, improbable or unfair in the light of relevant circumstances or there might be other indications in the Will to show that the testator's mind was not free. If the propounder succeeds in removing the suspicious circumstances the Court would have to give effect to the Will even if the Will might be unnatural in the sense it has cut off wholly or in. part near relations. See : Shashi Kumar v. Subodh Kumar, AIR 1964 SC 529."
30. Reliance is also placed upon Ramabai Padmakar Patil (Dead) through LRs and Others vs. Rukminibai Vishnu Vekhande and Others, (2003)8 SCC 537, wherein the Hon'ble Apex Court has held as under:-
"7. The main reason which weighed with the learned District Judge in discarding the Will, which has also appealed to the High Court, is that Smt. Yamunabai completely disinherited her other daughter and gave the entire property to Smt. Ramabai. In our opinion, the fact that Smt. Yanumabai excluded all other daughter and gave the entire property to the plaintiff Smt. Ramabai could not be a ground to cast any doubt regarding the authenticity of the Will in the facts and circumstances of the case in hand. It is not a case of exclusion of a son who may have been living with the parents or looking after them. It is a case of making provision for a widowed daughter who had been left a destitute on account of death of her husband at a very early age. If the parental property was to be divided equally amongst all the seven sisters, the share inherited by Smt. Ramabai would have been quite small making it difficult for her to survive. The house is situate in a village and is not in a big town or city where it may have any substantial value. In fact, if the background in which the Will was executed is examined carefully, it would be apparent that this was the most natural conduct of the mother and giving of equal shares to all the daughters would have entailed a serious hardship to the plaintiff Smt. Ramabai.::: Downloaded on - 31/01/2022 23:11:46 :::CIS 22
8. A Will is executed to alter the mode of succession and by the very nature of things it is bound to result in either reducing or depriving the share of a natural heir. If a person intends his property to pass to his natural heirs, there is no necessity at all of executing a Will. It is true that a propounder if the Will has to remove all suspicious .
circumstances. Suspicion means doubt, conjecture or mistrust. But the fact that natural heirs have either been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be suspicious circumstance especially in a case where the request has been made in favour of an offspring. In PPK Gopalan Nambiar v. PPK Balakrishan Manbiar and Ors., AIR (1995) SC 1852 it has been held that it is the duty of the propounder of the Will to remove all the suspected features, but there must be real, germane and valid suspicious features and not fantasy of the doubting mind. In this case, the fact that the whole estate was given to the son under the Will depriving two daughters was held to be not a suspicious circumstance and the finding to the contrary recorded by r the District Court and the High Court was reversed. In Pushpavati and Ors. v. Chandraja Kadanba and Ors., AIR (1972) SC 2492, it has been held that if the propounder succeeds in removing the suspicious circumstance, the Court would have to give effect to the Will, even if the Will might be unnatural in the sense that it has cut off wholly or in part near relations. In Rabindra Nath Mukherjee and Anr. v. Panchanan Banerjee (dead) by Lbs. and Ors., [1950] 4 SCC 459, it was observed that the circumstance of deprivation of natural heirs should not raise any suspicion because the whole idea behind execution of the Will is to interfere with the normal line of succession in and so, natural heirs would be debarred in every case of Will. Of course, it may be that in some cases they are fully debarred and in some cases partly. The concurrent finding recorded by the District Court and the High Court for doubting the genuineness of the Will on the aforesaid ground was reversed."
31. In case titled: Uma Devi Nambiar and Others vs. T.C. Sidhan (dead), (2004)2 SCC 321, the Hon'ble Apex Court has held that mere exclusion of natural heirs or rejection of their share would not itself amount to suspicious circumstance. The Hon'ble Court has held as under:-
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"16. A Will is executed to alter the ordinary mode of succession and by the very nature of things it is bound to result in either reducing or depriving the share of natural heir. If a person intends his property to pass to his natural heirs, there is no necessity at all of executing a Will. It is true that a propounder of the Will has to remove all suspicious circumstances.
.
Suspicion means doubt, conjecture or mistrust. But the fact that natural heirs have either been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be a suspicious circumstance especially in a case where the bequest has been made in favour of an offspring. As held in PPK Gopalan Nambiar v. PPK Balakrishnan Nambiar and Ors. (AIR 1995 SC 1852) it is the duty of the propounder of the Will to remove all the suspected features, but there must be real, germane and valid suspicious features and not fantasy of the doubting mind. It has been held that if the propounder succeeds in removing the suspicious circumstance, the Court has to give effect to the Will, even if the Will might be unnatural in the sense that it has cut off r wholly or in part near relations (See Puspavati and Ors. v. Chandraja Kadamba and Ors. (AIR 1972 SC 2492). In Rabindra Nath Mukherjee and Anr. v. Panchanan Banerjee (dead) by LRs. and Ors. (1995 (4) SCC 459), it was observed that the circumstance of deprivation of natural heirs should not raise any suspicion because the whole idea behind execution of the Will is to interfere with the normal line of succession and so, natural heirs would be debarred in every case of Will. Of course, it may be that in some cases they are fully debarred and in some cases partly."
32. In case titled Pentakota Satyanarayana and Others vs. Pentakota Seetharatnam and Others, (2005)8 SCC 67, the Hon'ble Apex Court has held as under:-
"26. Mr. Narsimha, learned counsel for the respondents, submitted that the natural heirs were excluded and legally wedded wife was given a lesser share and, therefore, it has to be held to be a suspicious circumstance. We are unable to countenance the said submission. The circumstances of depriving the natural heirs should not raise any suspicion because the whole idea behind the execution of the will is to be interfered in the ::: Downloaded on - 31/01/2022 23:11:46 :::CIS 24 normal line of succession and so natural heirs would be debarred in every case of the Will. It may be that in some cases they are fully debarred and some cases partly. This is the view taken by this Court in Uma Devi Nambiar and Others vs. T.C.Sidhan (Dead) (2004) 2 SCC
321."
.
33. Reliance is placed upon Savithri and Others vs. Karthyayani Amma and Others, (2007)11 SCC 621, wherein the Hon'ble Apex Court has held as under:-
"22. Deprivation of a due share by the natural heirs itself is not a factor which would lead to the conclusion that there exist suspicious circumstances. For the said purpose, as noticed hereinbefore, the background facts should also be taken into consideration. The son was not meeting his father. He had not been attending to him. He was not even meeting the expenses for his treatment from r 1959, when he lost his job till his death in 1978. The testator was living with his sister and her children. If in that situation, if he executed a Will in their favour, no exception thereto can be taken. Even then, something was left for the appellant.
23. In Ramabai Padmakar Patil (Dead) though L.Rs. and Others v. Rukminibai Vishnu Vekhande and Others [(2003) 8 SCC 537], this Court held :
"8. A Will is executed to alter the mode of succession and by the very nature of things it is bound to result in either reducing or depriving the share of a natural heir. If a person intends his property to pass to his natural heirs, there is no necessity at all of executing a Will. It is true that a propounder of the Will has to remove all suspicious circumstances. Suspicion means doubt, conjecture or mistrust. But the fact that natural heirs have either been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be a suspicious circumstance, especially in a case where the bequest has been made in favour of an offspring"[See also S. Sundaresa Pai and Others v.
Sumangala T. Pai (Mrs.) and Another - 2002 (1) SCC 630]"::: Downloaded on - 31/01/2022 23:11:46 :::CIS 25
34. In Mahesh Kumar (dead) by LRs vs. Vinod Kumar and Others, (2012)4 SCC 387, the Hon'ble Apex Court has held as under:-
.
"49. The attitude of respondent Nos. 1 and 2 left Shri Harishankar and his wife with no choice but to live with the appellant, who along with his wife and children took care of the old parents and looked after them during their illness. Therefore, there was nothing unnatural or unusual in the decision of Shri Harishankar to give his share in the joint family property to the appellant. Any person of ordinary prudence would have adopted the same course and would not have given anything to the ungrateful children from his/ her share in the property."
35. Reliance is also placed upon Leela Rajagopal and Others vs. Kamala Menon Cocharan and Others, (2014)15 SCC 570, wherein it has been held that the exclusion of sons is not a suspicious circumstance when reasons for exclusion of sons is apparent from Will itself. In the case at hand, testator has categorically recited in the Will that he is bequeathing his property in favour of defendant on account of services rendered by him. In the aforesaid case, the Hon'ble Apex Court has held as under:-
"14. In the present case, a close reading of the Will indicates its clear language, and its unambiguous purport and effect. The mind of the testator is clearly discernible and the reasons for exclusion of the sons is apparent from the Will itself. Insofar as the place of execution is concerned, the inconsistency appearing in the verification filed alongwith the application for probate by PW-3 and the oral evidence of the said witness tendered in Court is capable of being understood in the light of the fact that the verification is in a standard form (Form No. 55) prescribed by the Madras High Court on the Original Side, as already noticed. Besides, in the facts of ::: Downloaded on - 31/01/2022 23:11:46 :::CIS 26 the present case the participation of the first respondent in the execution and registration of the Will cannot be said to be a circumstance that would warrant an adverse conclusion. The conduct of the first respondent in summoning her friend (PW-3) to be an attesting witness and in taking the .
testator to the office of the Sub Registrar should, again, not warrant any adverse conclusion. It also cannot escape notice that the Will dated 11.1.1982 is identical with the contents of the earlier Will dated 28.12.1981.
Insofar as the execution of the Will dated 28.12.1981 and its registration is concerned no active participation has been attributed to the first respondent. The change of the attesting witnesses and the non-examination of Seetha Padmanabhan who had attested the second Will dated 11.1.1982 has been sufficiently explained."
36. Reliance is also placed upon Ved Mitra Verma vs. Dharam Deo Verma, (2014)15 SCC 578, wherein the Hon'ble Apex Court has held that execution of Will in favour of one of his son and exclusion of the other children was in itself not a suspicious circumstance. The property being self-acquired, it is the Will of the testator that has to prevail. The Hon'ble Court has held as under:-
"8. The exclusion of the other children of the Testator and the execution of the Will for the sole benefit of one of the sons i.e. the respondent, by itself, is not a suspicious circumstance. The property being self-acquired, it is the will of the Testator that has to prevail.
14. All the alleged suspicious circumstances surrounding the execution of the Will being capable of being understood in the manner indicated above and the requirement of Section 69 of the Indian Evidence Act, 1872 having been satisfied by the evidence of PW-3, we find that in the present case, the findings and conclusions recorded by the High Court ::: Downloaded on - 31/01/2022 23:11:46 :::CIS 27 would not call for any interference. Consequently and for the reasons aforesaid, we dismiss the appeal leaving the parties to bear their own costs.
.
37. It is quite apparent from the aforesaid exposition of law as laid down by the Hon'ble Apex Court from time to time that mere exclusion of natural heirs from the Will cannot be said to be suspicious circumstance; especially, when testator bequeathed his property in favour of person who had been looking after him. Though initially onus is always on the propounder of the Will to prove it 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 by law is sufficient, to discharge the onus which is placed upon the propounder of the Will.
38. In the case at hand evidence led on record by the defendant clearly reveals that he being propounder successfully discharged onus on him that Will Ex.DW-2/A was free from suspicious circumstance and it was executed by the testator in sound and disposing state of mind. It was upon the plaintiffs who alleged that Will is a fictitious and false document to prove that beneficiary i.e. defendant got the Will executed by exercising undue or coercion influence. However, in the case at hand, as has been discussed in detail, plaintiffs have not been able to prove that Will is a false and fictitious document and the same is the result of coercion and undue influence exercised by defendant upon the ::: Downloaded on - 31/01/2022 23:11:46 :::CIS 28 testator. Since for more than 45 years prior to execution of Will plaintiffs never turned up to take care of deceased Fithu @ Mahantu, who was allegedly their husband and father respectively, their exclusion from the Will by no stretch of imagination can be .
termed to be suspicious circumstance.
39. This Court finds that learned first appellate Court has erred in appreciating the evidence in its right perspective and there is total misreading, mis-interpretation and misconstruction of evidence made available on record by respective parties, as a result of which erroneous findings have come on record, which are not sustainable in the eye of law and as such same deserve to be rectified in accordance with law. The substantial question of law is answered accordingly.
40. Consequently, in view of detailed discussion made hereinabove as well as law laid down by Hon'ble Apex Court, this Court sees valid reason to interfere in the judgment and decree passed by first appellate Court, which is apparently not based upon the proper appreciation of evidence as well as law. Accordingly judgment and decree passed by learned first appellate Court is set aside and that of the learned trial Court is restored. This appeal is allowed. There shall be no order as to costs.
41. Interim order, if any, stands vacated. All miscellaneous applications are disposed of.
October 8, 2021 (Sandeep Sharma)
(aks) Judge
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