Madhya Pradesh High Court
Vipin Parera vs David Laghran And Anr. on 25 August, 1998
Equivalent citations: AIR1999MP240, AIR 1999 MADHYA PRADESH 240, (1999) 2 JAB LJ 133, (1999) 1 MPLJ 679, (1999) 3 CIVLJ 544, (1999) 3 CURCC 238
Author: Dipak Misra
Bench: A.K. Mathur, Dipak Misra
JUDGMENT Dipak Misra, J.
1. Correctness of the judgment rendered in the Misc. Appeal No. 1467 94, preferred under Section 299 ot the Indian Succession Act, 1925 (hereinafter referred to as 'the Act'), whereby the learned single Judge of this Court has affirmed the orders passed by the IVth Additional District Judge, Jabalpur in Misc. Judicial Case No. 70/87 and Misc. Judicial Case No. 86/87, is called in question in this Letters Patent Appeal.
2. The respondents No. 1 and 2 filed an application under Section 276 of the Act for grant of probate in respect of the properties of one Mrs. Mavis Ada Lynch, on the ground that she had executed a Will on 18-6-1983 in their favour bequeathing of her movable and immovable properties. It was averred in the said application that the Will was written in her own hand and she had executed it. The present appellant, the caveator, did not file any formal objection to resist the application but filed an application forming the subject-matter of Misc. Judicial Case No. 86/86 for grant of probate on the basis of subsequent Will executed by Mrs. Lynch. In the said application the present appellant claimed that Mrs. Lynch had executed a Will dated 15-8-1987 in his favour and she did so on account of the fact that he was living in the same Bungalow and was known to her for the last two decades. It was also pleaded that she was managing her affairs and performed the last rites. The respondents herein vehemently opposed the application under Section 276 of the Act at the instance of the appellant herein. They denied the execution of the Will dated 15-8-1987. They also disputed the fact that the appellant lived with Mrs. Lynch. They also pleaded that Mrs. Lynch was not in fit condition to execute the Will. They also took the stand that the Will was got executed through Shri Jagdish Tiwari, Advocate who was on friendly terms with the appellant and the attesting witnesses.
3. The Court of first instance accepted the Will dated 18-6-83 as validly executed and attested, and accordingly granted probate to the respondents. He did not accept the Will dated 15-8-87 and held it to be a suspicious document. It is to be noticed here that the appellant preferred Misc. Appeal No. 146/94 challenging the order passed in Misc. Judicial Case No. 70/87 and later on paid the Court-fee and challenged both the orders passed by the learned Additional District Judge.
4. It is relevant to state at this juncture that the original Will dated 18-6-83 was not found during the pendency of the Misc. Appeal and by order dated 9-11-96 a learned Judge of this Court ordered an enquiry in the matter. On the enquiry it was found that the original Will was kept in the record of the case and entire record was sent to this Court. The learned Judge has dealt with this aspect and has observed that on account of negligence of the officers of the Court the Will was lost. The learned Judge has also opined that the probate can be granted on the basis of the photocopy of the Will and has referred to Section 237 of the Act. He has also observed that the original Will was produced before the trial Court in Misc. Judicial Case No. 70/87 and was marked as 'Annexure A-1'. Eventually, the learned Judge has held that the Will was in existence on record till the date of passing of final order on 15-2-94.
5. The learned Judge after scrutiny of the evidence in detail has come to hold that the Will dated 18-6-83 was executed by the testatrix in favour of the respondents, was proved to have been written in her own handwriting, and was signed in presence of Mr. and Mrs. Laughran, Mr. Jones and Mr. Cardis and, therefore, the Will had been duly attested. The learned Judge has placed reliance on the evidence of AW-6, David Laughran and Chandramaya Laughran, PW-7 and had concluded that there had been complete corroboration by the witnesses who have standing in the society. The learned Judge has also observed that the appellant did not seriously dispute the execution and attestation of Will in favour of the respondents in the Trial Court. The learned Judge has also recorded a finding that Mrs. Lynch was of sound disposing mind and was absolutely conscious when she wrote in her own hand executed it in favour of the respondents No. 1 and 2. It is noticed that the plea of the appellant before the learned Judge was that the Will dated 15-8-87, executed in favour of the appellant, is the last Will of the testatrix and being a valid one, the earlier stood automatically revoked. The learned Judge after considering the various aspects of the matter came to hold that the appellant had not proved the execution of the Will as per Section 63(c) of the Act. A finding has also been recorded that the testatrix was not of sound disposing mind at the time of alleged execution of the Will dated 14-8-87. The learned Judge has also observed that the Will is blank in many a place and the details of the property are not given and, therefore, the testimony of the scribe Shri Jagdish Tiwari is not acceptable.
Finally, the learned Judge has observed that the mentioning of the cremation expenses in the Will also create a sense of doubt as the testatrix was a Christian. The evidence of the appellant was scanned by the learned Judge who found that his version was far from the truth. The non-registration of the Will during the life-time of Mrs. Lynch has also been taken exception to by the learned Judge. Considering the overwhelming circumstances against the authenticity of the latter Will, the learned Judge concluded that the attempt of the appellant had failed because not only of patching shows but also of warps and woof. Registering this view the learned Judge dismissed the appeal and affirmed the order of the Court of first instance granting probate to respondents Nos. 1 and 2,
6. We have heard Mr. N. S. Kale, learned senior counsel for the appellant and Mr. L. P. Sanghi, learned counsel for the respondents. Assailing the correctness of the judgment of the learned single Judge it is contended by Mr. Kale that the view taken by the learned Judge, that the execution of the Will in favour of the appellant has not been proved as required under Section 63(c) of the Act and, in fact, the analysis of the learned Judge on this score is quite stretched which warrants interference. It is his further submission that the suspicious circumstances which have been enumerated by the learned Judge cannot be regarded as so if the factual backdrop is appreciated in the proper perspective. Acceptance of the Will dated 18-6-83 in favour of the respondents, submits Mr. Kale, is incorrect inasmuch as the said Will is supposed to have been written by the testatrix which is highly improbable because of the tenor of the language which exhibits immense professional skill giving rise to a suspicion which cannot be totally ignored. Mr. Kale has taken us through various observations of the learned single judge and has also placed reliance on the evidence of the witnesses cited on behalf of the respondents to highlight that the learned Judge had fallen into error in his appreciation of the evidence and totality of circumstances.
Mr. Sanghi, learned counsel for the respondents, in his turn, has contended that the learned Judge has dealt in detail with regard to the suspicious circumstances and has rightly held that the second Will purported to be the last one and to have been executed in favour of the appellant is not genuine and the first Will in favour of the respondents is the last Will of the testatrix and has been duly proved.
7. Before we advert to discuss with regard to the soundness of the judgment impugned before us, we feel it necessary to categorise the issues which arise for consideration in the present ap-peal, namely, whether there has been due compliance of Section 63(c) of the Act in respect of the Will dated 15-8-87 as well as 18-6-63; whether the circumstances which have been narrated to be suspicious circumstances in relation to the execution of the second Will are really so; and whether the decision of the learned Judge suffers from any other infirmity.
8. At this juncture we deem it appropriate to indicate the duty of the Court while dealing with a matter relating to grant of probate. In the case of H. Venkatchala Iyengar v. B. N. Thimamjamma, AIR 1959 SC 443 the Apex Court has laid down as under :
"..... It may however, be stated generally that a propounder of the Will has to prove the due and valid execution of the Will and that if there are any suspicious circumstances surrounding the execution of the Will the propounder must remove the said suspicions from the mind of the Court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and broad principles would depend upon the facts and circumstances of each and on the nature and quality of the evidence adduced by the parties. It is quite true that, as observed by Lord Du Parcq in Harmes v. Hinkson, 50 Cal WN 895 : AIR 1946 PC 156 (158) "where a Will is charged with suspicion, the rules enjoin a reasonable scepticism, not an obdurate persistence in disbelief. They do not demand from the Judge even in circumstances of grave suspicion, a resolute, and impenetrable incredulity. He is never required to close his mind to the truth." It would sound platitudinous to say so, but it is nevertheless true that in discovering truth even in such cases the judicial mind must always be open though vigilant, cautious and circumspect."
In the case of Rani Purnima Debi v. Kumar Khagendra Narayan Deb, AIR 1962 SC 567 the Apex Court registered the view as follows :
"..... If a Will has been registered, that is a circumstance which may, having regard to the circumstances, prove its genuineness. But the mere fact that Will is registered will not by itself be sufficient to dispel all suspicion regarding where suspicion exists, without submitting the evidence of registration to an examination. If the evidence as to registration was made in such a manner that it was brought home to the testator that the document of which he was admitting execution was a Will disposing of his property and thereafter he admitted its execution and signed it in token thereof, the registration will dispel the doubt as to the genuineness of the Will. But if the evidence as to registration shows that it was done in a perfunctory manner, that the officer registering the Will did not read it over to the testator or did not bring home to him that he was admitting the execution of a Will or did not satisfy himself in some other was (as, for example, by seeing the testator reading the Will) that the testator knew that it was a Will the execution of which he was admitting the fact that the Will was registered would not be of much value." (Quoted from the placitum) At this juncture, we may refer to the decision rendered in the case of Surendra Pal v. Dr. (Mrs.) Saraswati Arora, AIR 1974 SC 1999 wherein their Lordships have held that the propounder of the Will must show that the testator signed the Will that he was in a sound disposing mental state, that he understood the nature and effect of the disposition and that he had signed in the presence of two witnesses. Unless this is established, it cannot be said that the onus cast on the propounder of the Will is discharged.
In the case of Jaswant Kaur v. Amrit Kaur, AIR 1977 SC 74 a three Judge Bench of the Apex Court has expressed thus :
"..... In cases where the execution of a Will is shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant. What, generally is an adversary proceeding becomes in such cases a matter a of the Court's conscience and then the true question which arises for consideration is whether the evidence led by the propounder of the Will is such as to satisfy the conscience of the Court that the Will was duly executed by the testator. It is impossible to reach such satisfaction unless the party which sets up the Will offers a cogent and convincing explanation of the suspicious cir-
cumstances surrounding the making of the Will." Recently in the case of Gurdial Kaur v. Kartar Kaur, (1998) 4 SCC 384 : (AIR 1998 SC 2861) their Lordships reiterating the principles stated as under :
"4. The law is well settled that the conscience of the Court must be satisfied that the Will in question was not only executed and attested in the manner required under the Indian Succession Act, 1925 but it should also be found that the said Will was the product of the free volition of the executor who had voluntarily executed the same after knowing and understanding the contents of the Will. Therefore, whenever there is any suspicious circumstance, the obligation is cast on the propounder of the Will to dispel the suspicious circumstance."
Thus, it is graphically clear that the propounder of the Will has to satisfy the conscience of the Court by dispelling the suspicious circumstances. The Court may have a reasonable scepticism but cannot dwell on adamantine obstinacy. The Court has also to abandon the Coleridgean concept of 'willing suspension of disbelief. The approach has to be conscious, probing, rational, objective and necessarily that of a person in search of truth -- the truth as far one can scan to arrive applying the parameter of human experience.
9. Keeping the aforesaid in view we shall address ourselves with regard to the suspicious circumstances which have been chronologically exposited by the learned single Judge. The circumstances are that the testatrix on the date the alleged second Will was executed, was an octogenarian who had suffered a fracture of left femur for which she was admitted in the private clinic of Dr. Jamdar and she breathed her last on 6-9-87, hardly within three weeks from the date of execution of the Will. Irrefragably, this is a circumstance which creates a sense of suspicion. The Will was not registered during the lifetime but was done after her death i.e. 21-9-87. There is no reference to the earlier Will or even the registered deed of gift in the Will which in ordinary course was expected to be stated. If Mrs. Lynch desired to revoke the earlier Will she would have stated so. There are certain gaps in the Will which are inexplicable. Another circumstance which shows the adroit attempt of the beneficiary is that there is stipulation in the Will that the propounder would be responsible for cremation expenses of Mrs. Lynch, though such a stipulation is inconceivable as she was a Christian. It is also noticed that the learned Judge on scrutiny of the Will has found that in each and every page of the Will there is signature of the testatrix at the bottom but none of the witnesses has stated about this aspect. It is also observed by the learned Judge that there is no space left in the Will at the bottom of the Will for signature of the scribe or the draftsman. It is also found that there are two sets of signatures of the attesting witnesses, one at the bottom of the Will just on the left side of the signature of the testatrix, at leaf No. 5 marked from B to 'B' in case of Mr. Dayal and from K to 'K' in case of Mr. Yadav and they are dated 15-8-87. Thereafter, at the bottom of that page it is written 'PTO'. The learned Judge has referred to the endorsement which reads as under :
"..... Signed and declared by the above, Mrs. Lynch the testator in the presence of us, the undersigned at the same time, and who at her request have hereto signed our name as witnesses in the presence of the testator and in the presence of each other."
It is commented by the learned single Judge that the signature of Mr. Dayal has not been proved and his address has not been given. It is also pointed out that there is no signature of the testatrix on page No. 6. We have ourselves perused the Will and we find that the aforementioned circumstances which have been narrated vividly by the learned single Judge are based on close scrutiny of the Will and proper analysis of the evidence. That apart on the basis of the appreciation of evidence of Dr. Jamdar, NA.W-7, and on scrutiny of the documents, namely, Ex. D-2, Ex. A-10 and Ex. A-12, the learned single Judge has observed that this witness has deposed that he had treated Mrs. Lynch on 20th and 25th of August and found her mentally alert and fit. But he had not stated about seeing her on 14-8-87. This witness has opined that she died on account of septicaemia, a kind of blood poisoning was an independent disease or was a consequence of open trochanter reduction done in his hospital as per Ex. A-12. The learned single Judge has also taken note of the fact that Dr. Jamdar is an Orthopaedic Surgeon and was not a specialist in respect of the disease from which Mrs. Lynch was suffering. The sound disposing mind is a pre-requisite for accepting a Will as a valid one. It has to be borne in mind, he who makes a Will, at the time of making it must have 'animus testandi' i.e. a mind to dispose, a firm resolution and advised determination to execute a Will. On consideration of the entire evidence, we find that the appreciation made by the learned single Judge with regard to the sound disposing mind of the testatrix is impregnable. We may hasten to add here that the learned single Judge has dealt in detail with regard to the genuineness of the various documents of the evidence brought on record with regard to the health of Mrs. Lynch and has arrived at his conclusions. There is no compelling reason to differ with the same.
10. Now we shall advert to deal with the circumstance in which the Will dated 14-8-87 was brought into existence. The scribe of the second Will is Mr. Jagdish Tiwari, Advocate who was examined as NA.W-9. It is in his evidence that he went to the hospital of Dr. Jamdar for checkup of one of his relatives and there he came to know that Mrs. Lynch was admitted. He went to meet her and she requested him to scribe a Will in favour of the appellant. As she was not able to supply the details of the property, the same being not available in the hospital, he left the blank spaces in the Will at time of drafting of the same. The learned Judge has scrutinised the evidence of this witness in great detail and has recorded the finding that his version is not credible. The learned Judge has commented the manner in which the document was written, the non-examination of the typist (though the Will is a typed one), the non-mentioning of the attesting witnesses by him and non-proving of his signature on the Will and non-description of the properties in the Will. Similarly, he has also taken exception to the fact that scribe Mr. Jagdish Tiwari had neither referred to the draft of the Will nor did he produce it. He has found irreconcilable discrepancies in the version of the appellant Vivian Parera and that of Mr. Jagdish Tiwari. The learned single Judge has also found that the Will dated 15-8-87 had been signed at the bottom of the every page by Mrs. Lynch and it is dated 15-8-87. Her signature in every page has not been spoken to by the witnesses. Quite apart from the above, the non-registration of the Will during the life-time of Mrs. Lynch has also been considered as a factor against the propounder. It appears that Mrs. Lynch was alive for a period of three weeks but no effort was made to get the Will registered during that period. The story as putforth by the appellant is that on 4-6-87 David Laughran pulled the chair to cause fracture to Mrs. Lynch has been disbelieved by the learned Judge by considering the various aspects of the allegation. The learned Judge has opined that the adroit and ingenious contrivance of the appellant to exposit to the world that the Will in his favour was executed because of some sort of cruel treatment by Mr. Laughran has exposed himself and, in fact, has the boomerang effect. On evaluating the evidence on record in a studied manner, we have no hesitation to approve the view taken by the learned single Judge in this regard.
11. Besides the suspicious circumstances and the unconsummate skill exposed by the appellant in making an effort to grab the property of Mrs. Lynch, the execution of the Will as enjoined under Section 63(c) of the Act has also not been accepted by the learned single Judge. Ordinarily, we would have dealt with this aspect at the beginning, but we thought it appropriate to narrate the overwhelming suspicious circumstances that surround the alleged execution of the Will so that we can answer the issue whether the pro-pounder has dispelled the suspicious circumstances and satisfied the conscience of the Court. As mandated under Section 63(c) of the Act the Will must be attested by two or more witnesses. As required under Section 68 of the Evidence Act it is not imperative to examine both the attesting witnesses. Examination of one of the attesting witnesses testifying the fact of attestation and execution meets the requirement. In the case at hand, on scrutiny of the evidence of NA.W-5, Y. Dayal and NA. W-6, Nandkishore, and the evidence of the scribe, Shri Jagdish Tiwari the learned single Judge has come to hold that the evidence of Nandkishore is most unnatural and unreliable. This witness had no acquaintance with Mrs. Lynch. But on 15-8-87 he went to the house of Vivian Perera and after being told by his father, he went to Mrs. Lynch's house in search of the Vivian Perera. There he found that Mrs. Lynch was lying on her bed. She ascertained from him that he was an employee of the High Court and she asked him to become a witness to her Will. The learned single Judge has also taken exception to the fact that the testatrix had been the Vice-Principal of the Christ Church girls' School and it was improbable that she would rely on a total stranger. It is also observed by the learned single Judge that this witness was working as a Lift Man in the High Court and had no knowledge in (of) English. Quite apart from the above, the said witness is utterly silent about appending the signature just after or almost simultaneously with that of Y. Dayal. The learned Judge has also observed that it is not clear from the evidence that Y. Dayal was present at the time of the execution of the Will. It is further found that Y. K. Yadav, NA.W-6, has not supported the case of the appellant that the testatrix executed the Will in presence of both the witnesses and that both the witnesses signed the Will in presence of the testatrix. Considering these aspects, the learned single Judge has opined that the appellant did not prove the execution of the Will as enjoined under Section 63(c) of the Act. The reasons ascribed by the learned single Judge are cogent and germane to the issue and based on the proper analysis of the evidence, and hence withstand close scrutiny.
12. As far as the Will dated 18-6-83, Ex. A-1's photocopy is concerned, we find that the same has been accepted by the learned single Judge to be genuine one and properly executed. Mr. Kale, learned senior counsel, has questioned he genuineness of the said Will on the ground that a mere look at the Will would indicate that the same could not have been written by Mrs. Lynch as the language used therein clearly shows expertise in the legal profession. He has seriously criticised the view expressed by the learned single Judge in accepting the testimony of the attesting witnesses to the said Will, solely on the ground that they are respectable persons in the society. To appreciate the aforesaid submission canvassed by the learned counsel for the appellant, we have carefully perused the finding recorded by the learned single Judge and scrutinised the aforesaid Will by bestowing our concern and anxiety. On a studied analysis of the document and the evidence on record we find that there is nothing to disbelieve that Mrs. Lynch drafted the Will in her own hand-writing. There is evidence that she had read over the Will to the attesting witnesses of the Will. Nothing has been elicited in the cross-examination to discredit the testimony of the attesting witnesses. The requirement of Section 63(c) has been duly complied with. The witnesses, namely, David Laughran, AW-6 and Chandramaya Laughran, AW-7, have stood embedded in their version and the minor discrepancies in their evidence, which have been highlighted by Mr. Kale, do not persuade us to dislodges the findings recorded by the learned single Judge who has accepted their version as unimpeachable. The contention of the learned counsel that the learned single Judge reposed implicit faith in the testimony of the witnesses because of their social status is not correct inasmuch as we have seen that the learned Judge apart from keeping in view the respectable position of the witnesses has also analysed the evidence in proper perspective to opine that they are truthful witnesses. The ultimate conclusion of the learned single Judge is that the Will dated 18-6-83, has been duly executed and proved, cannot be found fault with.
13. In view of our preceding analysis, we affirm the view taken by the learned single Judge. Resultantly, the Letters Patent Appeal is dismissed. However, in the peculiar facts and circumstances of the case, the parties shall bear their respective costs of this appeal.