Chattisgarh High Court
Smt. Upasna Gupta vs Girish Chandra Gupta on 17 August, 2022
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
FA No. 69 of 2017
• Smt. Upasna Gupta W/o Satish Chandra Gupta, Aged About 37
Years Profession- House Wife, R/o House No. 203, Old No. 346
Gendram Sao Marg, Ward No.27, Krishna Nagar Ward, Juna
Bilaspur, Tehsil And District Bilaspur,
Chhattisgarh .................Plaintiff, Chhattisgarh
--- Appellant
Versus
1. Girish Chandra Gupta S/o Late Atmaram Gupta, Aged About 46
Years Profession- Business, R/o H-2, Narmada Nagar, Ring
Road No.2, Bilaspur, Tehsil And District Bilaspur,
Chhattisgarh ...............Defendant No.1
2. Satish Chandra Gupta S/o Late Shri Atmaram Gupta, Aged
About 50 Years Profession- Income Tax Conciliator, R/o House
No.203 Old No.346 Gendram Sao Marg, Ward No.27, Krishna
Nagar Ward, Juna Bilaspur, Tehsil And District Bilaspur,
Chhattisgarh ...............Defendant No.2
3. Nagar Palik Nigam Bilaspur, Through Commissioner, Town Hall,
Bilaspur, Tehsil And District Bilaspur,
Chhattisgarh ................Defendant No.3,
---- Respondents
For Appellant : Shri Arvind Shrivastava, Advocate
For Respondents No.1 & 2 : Shri T.K.Jha, Advocate
For Respondent No.3 : Shri Hari Bhagat Agrawal, Sr.
Advocate assisted by Ms. Richa
Dwivedi, Advocate
Hon'ble Shri Justice Gautam Bhaduri &
Hon'ble Shri Justice Radhakishan Agrawal
Judgment On Board
Per Gautam Bhaduri, J.
17/08/2022 Heard.
1. Present appeal is filed by the appellant/plaintiff against the 2 judgment and decree dated 28th November 2016 passed by the learned First Additional District Judge, Bilaspur in Civil Suit No.1A/2013 whereby the suit preferred by the appellant/plaintiff was dismissed. 2 (a) Brief facts of the case are that the appellant/plaintiff filed a suit interalia stating that the suit house bearing No. C-346 (New Number-
203) situated at Mouja Juna Bilaspur, Krishna Nagar Ward No. 27, Bilaspur area 55 x 27 = 3500 sq.ft. which is surrounded by four corners namely by house of Santsoh Sharma in the north, Road in the South, house of Late Adhari Lal Soni in the East, as Gend Ram Sao Marg in the west. The suit house was owned by the testator-Late Atmaram Gupta who died on 03.12.2004. The suit house was constructed by Late Atmaram Gupta who resided over there till his life time. It is pleaded that late Atmaram Gupta had executed a registered WILL dated 28.11.2003 in favour of the plaintiff with respect to the suit house and agricultural land situated at village Mouja Lagra PH. No. 18 R.I. Circle Bilaspur, Tahsil and District Bilaspur. It was further pleaded that after the death of Atma Ram Gupta, the plaintiff became owner of the suit house and came into possession of the same. The defendant No.1 Girish Chand Gupta was residing separately during the life time of Atmaram Gupta and was residing at Narmada Nagar, Bilaspur and never resided in the suit house. It was further pleaded by the plaintiff that when the dispute arose between the parties on the issue of execution of WILL, the appellant/plaintiff filed a civil suit bearing No. 34-A/2010 in the Court of 8th Civil Judge, Bilaspur however, the plaint was rejected under Order VII Rule 11 CPC and presently appeal is pending before the Vth Additional District Judge, Bilaspur. 3 2(b). It was further pleaded that even after having knowledge of the WILL, the defendant Nos.1 & 2 had moved an application for mutation of their names in the municipal records before the Municipal Corporation i.e. defendant No.3. On the basis of such application of the defendant No.1, the defendant No.3, the Corporation had passed the mutation order on 15.12.2010 in favour of defendant Nos.1 and 2. It is stated before passing such mutation order, no notice was ever served upon the plaintiff therefore, the mutation order dated 15.12.2010 is vide ab-iniitio and not binding upon the plaintiff. It is further stated after getting the mutation order in his favour, the defendant No.1 tried to take possession of the said house in the month of July 2011 and was trying to alienate the suit house. It is stated when the appellant/plaintiff came to know about the said mutation order the action of the defendants was challenged by publishing a general notice in the daily newspaper on 29.07.2011. It is also pleaded that despite service of notice upon the defendant No.3 under Section 401 of the Municipal Corporation Act 1956, no action was taken by them to set aside the mutation order dated 15.12.2010. Thus, the instant suit was filed by the plaintiff for declaration of the title and permanent injunction against the defendants on the basis of WILL dated 28.11.2003.
3 (a). After service of summons upon the defendants, the defendant No.1 filed his written statement and denied the plaint averment and submitted that the suit house is situated over a part of abadi bhoomi at Juna Bilaspur, bearing Khasra No.12, admeasuring 24.924 hectare. It was stated the suit house exists from the time of their grand father/great grand father. It was denied that the testator-late Atmaram Gupta alone was the exclusive title holder of the suit house to 4 bequeath it by WILL and the defendants No.1 & 2 are title holder in possession of the suit house since their birth. The execution of WILL dated 28.11.2003 by Atmaram Gupta was also denied and it was submitted the family settlement deed dated 12.05.1997 was suppressed and plaintiff himself has prepared the WILL dated 28.11.2003 and obtained signature of the testator-Atmaram Gupta over the WILL forcefully. It was stated the language of the WILL reflects that it was not prepared in a single sitting but the same was prepared after taking sufficient time after consideration of the various aspects. It was stated the testator-Late Atmaram Gupta was not having good health and was suffering from diabetes and was in weak mental condition at the time of execution of WILL. The WILL is also challenged on the ground that the witnesses to the WILL were the brother of the appellant/plaintiff and his friend as such were interested witnesses. 3(b) Further it is pleaded that the names of the witnesses of WILL namely Rashish Kumar Gupta and Kamlesh Namdeo, were written by a pen. It was also denied that after the death of Atma Ram Gupta on 3.12.2004, the plaintiff became the title holder of the suit house. It was pleaded that the defendant No.1 was/is the joint title and possession holder of the suit house along with the others. It was stated that he was residing in another house due to the routine quarrel of appellant/plaintiff and defendant No.2. The defendant No.1 had further submitted that the Civil Suit No. 34-A/2010 was dismissed by the 8 th Civil Judge Class II Bilaspur and the Civil Appeal No. 28-A/2011 was also dismissed on 22.03.2012 when the defendant No.3 raised a demand of arrears of property tax from the defendant No.2 then the defendant No.2 had 5 stated that the tax would be paid by the defendant No.1 because he was in possession of the suit house. It was stated the mutation order is legal and is in accordance with law. It was pleaded the appellant/plaintiff was also apprised about mutation through the daily newspaper. It was stated the appellant/plaintiff is not the owner of the suit house and she along with her husband with the collusion of each other had filed the suit to deprive the defendant No.1 from the property. It was further submitted that the suit house is his ancestral property and defendants No.1 and 2 are the exclusive owner of the suit property.
4. The defendant No.2 too had filed his written statement separately and submitted that the suit house was constructed by their great grand father from his own income. The defendant No.2 further submitted that the relation of defendant No.1 with his father late Atmaram Gupta was not good and defendant No.1 used to make assault upon Late Atmaram Gupta which was reported to the police also. It was stated the defendant No.1 had never taken care of Late Atmaram Gupta and the appellant/plaintiff and defendant No.2 were taking care of Late Atmaram Gupta. After the death of Late Atmaram Gupta, the appellant/plaintiff is in possession of the suit house being the title holder.
5. The defendant No.3/Municipal Corporation, Bilaspur has also filed its written statement separately with respect to the instances of the mutation proceedings. It is submitted by defendant No.3 that on 24.09.2010 an application for mutation was filed by defendant No.1 6 upon which a proclamation (ishtehar) was published on 24.09.2010 in daily newspaper Nai Duniya. No Objection was filed by the appellant/plaintiff nor any WILL of the year 2003 was filed therefore the mutation order was passed in accordance with the law. Defendant No.3 confined these submissions in the written statement to the extent of mutation proceedings only.
6. Considering the pleading made by the respective parties in plaint and the written statement, the trial court had framed 8 issues and after recording evidence of the parties and hearing them, passed the judgment and decree on 28.11.2016 by which the suit of the appellant/ plaintiff is dismissed. Hence, this appeal by the plaintiff/appellant.
7. Upon the pleading of the parties as well as the evidence as produced by them the following points for determination emerges in the present case.
"that whether the appellant/plaintiff has proved the execution of WILL in her favour by Late Atmaram Gupta being the absolute owner and whether the trial court is justified in dismissing the suit of the plaintiff."
8. Learned counsel for the appellant/plaintiff would submit that the present suit was filed on 17.10.2011 when the defendant No.1 was trying to alienate the suit house after getting his name mutated in the record of Municipal Corporation, Bilaspur and the mutation proceedings were done without any hearing to the plaintiff. He further submitted that there was no occasion to disbelieve the attesting witness of the WILL namely Rashish Kumar Gupta (PW-2) who had categorically deposed 7 about due attestation of the WILL. He would further argue that Late Atmaram Gupta had various properties including the suit house and agricultural land at village Lagra. The counsel would submit the allegation that the signature of the testator-Late Atmaram Gupta over the WILL (Ex.D-1) was obtained by pressure was denied by Rashish Kumar Gupta (PW-2), the attesting witness of the WILL and it is not a case where the testator Late Atmaram Gupta died immediately after execution of the WILL. It is submitted that late Atmaram Gupta was mentally and physically fit at the time of execution of WILL and there is no evidence on record to show that the testator was suffering from any serious ailment at the time of execution of the WILL. Referring to the police report made by the testator-Late Atmaram Gupta it is argued that one of his son namely Girish Chand Gupta (defendant No.1) used to assault his father and that might be one of the reason to deprive him of the property.
9. It is further argued that from bare perusal of the contents of the family arrangement (Ex.D-25) it would be clear that the suit house was not the part of the family arrangement and therefore finding of the trial court with respect to the suit house that the WILL was preceded by a family arrangement is an erroneous finding. Referring to the judgment of Hon'ble Apex Court in the matter of Rajkumari and Others Vs. Surendra Pal Sharma reported in Civil Appeal No. 9683/2019, learned counsel for the appellant/plaintiff submits that the WILL is proved by her as per its requirement by leading satisfactory evidence and no doubt can be raised only on assumption and presumption particularly when the WILL was registered. The counsel would submit 8 that Dularam (PW-3) is the witness of oral transaction between the parties who had deposed that his uncle late Nohar Lal Yadav had sold the land of the suit house to Late Atmaram Gupta in the year 1966-67 for consideration of Rs. 90/-. After having it purchased, late Atmaram Gupta had constructed the house. It is submitted that the trial court had completely failed to appreciate the evidence available on record in its right perspective and therefore, the judgment and decree of the court below be set aside.
10. Per contra the learned counsel for the respondent would submit that :
i) the plaintiff has failed to prove the due execution of the WILL dated 28.11.2003 and failed to explain the suspicious circumstances before execution of the WILL.
ii) Since another civil suit No. 34-A/2010 was dismissed in which the issue of execution of WILL dated 28.11.2003 executed by late Atmaram Gupta was in issue, the present suit is not maintainable as barred under Order II Rule 2 CPC and therefore the finding of the learned trial court is correct.
iii) The subject property is the ancestral property of the defendants No.1 and 2 and late Atmaram Gupta was not competent to bequeath the suit house alone because the defendant No.1 and 2 were having right and were entitled to a share on their birth.
11. In support of the submission of respondent/defendant No.1, placed reliance upon a decision reported in (2021) 11 SCC 277:2020 SCC Online SC 385 in the matter of Shivakumar and Others Vs. 9 Sharanabasappa and Others, wherein it has been held that "in likewise situation where the natural line of inheritance is broken by such intervention of WILL then it would be the duty of the propounder of the WILL to prove the WILL." He would submit that Suman Bala (DW-3) widow daughter of the testator-Late Atmaram Gupta had raised the issue before the court that even had placed the photographs to show that the photographs attached to the WILL was not that of her father. Counsel would further submit that the language of the WILL whereby certain amount was paid to daughters is doubtful as neither the source of such payment nor proof has been shown but in order to create a situation to deprive other heirs, such insertion of wordings were made in the WILL. The counsel would submit that the document Ex.P-32 (Map) bears the signature of Late Atmaram Gupta which would show that the property in question was of Late Anand Ram Gupta and not that of Atmaram Gupta. It is again stated that no evidence is on record to show that the subject property of WILL was the self acquired property of Atmaram Gupta. He further submits that the attesting witness was the interested witness who is the brother of the propounder therefore it would be doubtful to accept the WILL specially when the natural heirs were disowned. The counsel would submit that the judgment and decree passed by the learned court below is well merited and do not call for any interference.
12. We have heard counsel for the parties at length and perused the documents.
13. The first question which arises for consideration would be that whether the trial court has rightly held the suit of the appellant/plaintiff 10 is barred under Order II Rule 2 CPC. We would like to discuss this issue first. The pleading would show the appellant/plaintiff herself pleaded at para 7 of her plaint that other civil suit No. 34-A/2010 was filed by her in the Court of 8th Civil Judge Class II Bilaspur in which the plaint was rejected under Order VII Rule 11 CPC and in such said civil suit, same WILL dated 28.11.2003 was the subject matter with respect to the agricultural land at village Lagra. The document Ex.D/2 is the copy of plaint filed by appellant/plaintiff Upasna Gupta. From perusal of the document Ex.D-2 i.e. plaint of civil suit No. 34-A/2010 it appears that the said civil suit was filed on 27.08.2012 and the instant suit was filed at much prior date i.e. 17.10.2011.
14. Thus the instant civil suit was filed at earlier point of time with respect to the suit house which is not the subject matter of subsequent civil suit No. 34-A/2010. The parties in both the civil suits are different except appellant/plaintiff and defendants No.1 and 2. In the civil suit No. 34-A/2010, the cause of action was said to have arisen on 14.05.2009 when the Board of Revenue had passed an order against the plaintiff and further it is pleaded on 17.06.2009 when the Tahsildar, Bilaspur had passed the order of partition of the revenue land. Whereas in the instant civil suit, the cause of action is pleaded to have taken place in the month of July 2011 when the defendant No.1 was trying to alienate the suit house situated at the city of Bilaspur. Thus in both the suits, the property, cause of action and the parties are different. Therefore the provisions of Order II Rule 2 CPC would not be attracted. In order to attract Order II Rule 2 CPC, it mandates that "every suit shall include the whole of the claim which the plaintiff is 11 entitled to make in respect of cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court." Further Order II Rule 2 CPC and Rule 3 purports that "where a plaintiff omits to sue in respect of or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished." Order II Sub Rule 3 of CPC purports that "any person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted unless leave of the court succeeds."
15. Reading of both the plaints together i.e. the one which was filed earlier on 17.10.2011 and the subsequent suit on 27.08.2012, it shows that the present suit was filed in respect of the suit property house at Bilaspur within the Municipal limits and cause of action was said to be on the basis of mutation of the name of the respondents/defendants 1 & 2 on 15.12.2010 by Municipal Corporation. Whereas the subsequent suit was for agricultural land at Village Lagra and the cause of action prima facie arose after order of Board of Revenue on 14.05.2009 and order by Tahsildar on 17.06.2009 for partition of agricultural land at village Lagra. Therefore, the cause of action as pleaded in both the cases are different and the property being situated at different places, the first suit which is the instant case would not be barred under Order II Rule 2 CPC.
16. Further learned court below has averred about the family 12 arrangement dated 12.05.1997 which is marked as Ex.D-25 to negate the WILL. On perusal of the said document of family arrangement, it shows that there were 5 parties to such arrangement i.e. Late Atmaram-the testator along with Satish Chand Gupta, Son and daughter Ku. Saroj Bala, another daughter Kumari Suman Bala and son Girish Chand Gupta. It shows that Late Atmaram Gupta being head of the family tried to settle the property in favour of the legal heirs i.e. son and daughters and the documents state that he wants to settle all his movable and immovable properties in between his sons. The words 'his personal property' has been used for the purpose of settlement and it bears the signature of all the defendants including the daughters and the testator-Atmaram Gupta. Therefore when the subject property was shown to be the sole and exclusive property of Late Atmaram Gupta the defendants being the party to such document and have signed it, they would be estopped to challenge the same on the ground the suit property was not exclusive property of Atmaram Gupta.
17. Further reading of the said family arrangement would show that the house in question was carved out of such family arrangement and primarily it was in respect of the property situated at village Lagra in the agricultural lands. It was further agreed that part of it was to be sold to bear the expenses of marriage of his daughters. It further purports that the sale consideration would be divided in between the parties equally and in respect of the suit property house situated at Bilaspur, it was stated part of it would be enjoyed by Satish Chand Gupta for his practice and part of it would be enjoyed by Girish Chand Gupta. The 13 respondent/defendant though tried to establish that the house in question was the ancestral property but nothing has been filed on record to establish the same. Certain documents were requisitioned by the defendant under RTI which are Ex.D-33 but the Municipal Corporation has not been able to supply any document in support to show that the house in question was constructed by late Anand Ram Gupta, the grand father of the defendants. The document Ex.D-32 (Map) has been filed but source of it is from whose possession and from whose custody it came to fore and whether it belongs to the same suit property, is not clear and no inference can be drawn on that basis alone.
18. Another document which is on record is the copy of the Civil Suit Ex.D-2, which shows that in respect of the agricultural land situated at village Lagra, a civil suit was filed wherein certain portion of the land was sold by Girish Chand Gupta, one of the son of Late Atmaram Gupta, Shashi Kiran Gupta and Smt. Suman Bala Gupta, daughters of Atmaram Gupta and they have executed the sale deed in favour of defendants No. 5 to 8. The said civil suit was bearing No. 238-A/2014. In such suit the sale and mutation was subject matter of dispute and was under challenge. Reading the contents of the said allegations along with facts of sale and transfer, primarily it appears that though the family arrangement was made on 12.05.97 but the parties did not acted upon it. As per arrangement, the sale of agricultural land was to be made jointly by the parties to the settlement deed whereas the contents of the plaint filed by the defendant would show that the sale was executed solely by three of the parties and was not joint sale of 14 property of village Lagra. Therefore, by act of parties, it is clear though the family arrangement was arrived at but was not acted upon by the parties. Therefore on due consideration on the issue, we arrive at a finding that Late Atmaram Gupta was having the exclusive right and title over the suit house to bequeath the same.
19. Now turning to the issue of WILL by Late Atmaram Gupta, the principles of arm chair theory is required to be applied as laid down by the Apex Court in the matter of Lakshmana Nadar and Others Vs. B. Ramier (AIR 1953 SC 304) further followed by Navneet Lal alias Rangi Vs. Gokul and Others (AIR 1976 SC 794). The Supreme Court in these cases had deliberated the ratio that the arm chair theory is required to be adopted meaning thereby the Court is required to sit at the arm chair of testator to test the correctness of WILL.
20. The next question for consideration would be the validity of the WILL dated 28.11.2003. In the backdrop of the facts, the WILL dated 28.11.2003 Ex.D-1 was executed by late Atmaram Gupta. The Apex Court has held in the case of Rajkumari and Others Vs. Surendra Pal Sharma reported in Civil Appeal No. 9683/2019, the propounder in order to succeed the WILL as genuine, 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 nature and effect of the dispositions; and iv) that the testator had put his signature on the document of his own free WILL. Similar proposition has been laid down in the matter of Shivakumar and Others Vs. Sharanabasappa and Others reported 15 in (2021) 11 SCC 277:2020 SCC Online SC 385 and parameters have been laid down to test as to the circumstances which may give right to suspicious circumstances about the WILL in question. Such laid down principles when are translated in the present facts of this case, Ex.D-1 would show it is a registered WILL. Further the two attesting witnesses Rashish Kumar Gupta and Kamlesh Namdev are the persons before whom the WILL was executed on 28.11.2003. After execution of will the testator died on 03.12.2004. So there has been a considerable gap of time in between execution of the WILL and the death of the testator. There is no evidence on record to show that Late Atmaram Gupta was mentally and physically unfit to execute the WILL. The attesting witness Rashish Gupta (PW-2) had deposed that the WILL dated 28.11.2003 was prepared by Late Atmaram Gupta before him. He has further deposed that after WILL was typed according to his dictation, Atmaram Gupta read it and after understanding the same signed the WILL in presence of the attesting witnesses at all the pages and at the last page he had put his thumb impression. Thereafter the attesting witness along with other witness namely Kamlesh Namdeo had signed the WILL. In further examination before the court, he had deposed that Atmaram Gupta has signed the WILL before the Registrar and put his thumb impression.
21. In cross-examination of this witness, he had further deposed that in the office of the Registrar he was called to sign the WILL as a witness and was not at the behest of respondent/defendant No.2 Satish Chand Gupta, husband of the appellant/plaintiff. In cross- examination he had further deposed that the WILL was dictated by late 16 Atmaram Gupta at shop named Bilaspur Typing and he was called to sign the WILL and thereafter they went to the office of Sub-Registrar and he signed the WILL. In the statement of this witness nothing has come forward to raise a doubt.
22. The Apex Court in the matter of Kalyan Singh Vs. Smt. Chhoti and Others reported in AIR 1990 SC 396 has observed that "a WILL is one of the most solemn document known to law. The executant of WILL cannot be called to deny the execution or to explain the circumstances in which it was executed. It is therefore, essential that trustworthy and unimpeachable evidence should be produced before the Court to establish genuineness and authenticity of the WILL. It further states that the factum of execution and validity of WILL cannot be determined merely by considering the evidence produced by the propopunder. In order to judge the credibility of witnesses and disengage the truth from falsehood the court is not confined only to their testimony and demeanour. It would be open to the court to consider the circumstances brought out in the evidence or which appears from nature and contents of the documents itself. It is further ordered that it is open to the Court to look into surrounding circumstances as well as the inherent probabilities of the case to reach to a proper conclusion on the nature of evidence adduced by the party.
23. In the instant case, as per Section 68 of the Evidence Act, the attesting witness has been examined. The Apex Court in the matter of Shivakumar and Others Vs. Shranabasappa and Others reported in (2021) 11 SCC 277:2020 SCC Online SC 385 has at para 11.8 reiterated the law laid down in the case of Uma Devi Nambiar Vs. 17 T.C.Sidhan (2004) 2 SCC 321 wherein reviewed the case law dealing with the WILL to a large extent and, while referring to the Constitution Bench decision of this Court in Shashi Kumar Banerjee Vs. Subodh Kumar Banerjee, AIR 1964 SC 529, observed that merely because the natural heirs have either been excluded or lesser share had been given to them, by itself, will not be considered to be outcome of suspicious circumstance. The Court observed, inter alia, as under :
"15. Section 63 of the Act deals with execution of unprivileged WILLs. It lays down that the testator shall sign or shall affix his mark to the WILL or it shall be signed by some other person in his presence and by his direction. It further lays down that the WILL shall be tested by two or more witnesses, each of whom has seen the testator signing or affixing his mark to the WILL or has seen some other person sign the WILL, in the presence and by the direction of the testator and each of the witnesses shall sign the WILL in the presence of the testator. Section 68 of the Indian Evidence Act, 1872 (in short "the Evidence Act") mandates examination of one attesting witness in proof of a WILL, whether registered or not. The law relating to the manner and onus of proof and also the duty cast upon the court while dealing with a case based upon a WILL has been examined in considerable detail in several decisions of this Court. A Constitution Bench of this Court in Shashi Kumar Banerjee Vs. Subodh Kumar Banerjee (supra) succinctly indicated the focal position in law as follows:
(AIR p.531, para 4) '4. The mode of providing a WILL does not ordinarily differ from that of proving any other document except a t the special requirement of attestation prescribed in the case of a WILL by Section 63 of the Indian Succession Act. The onus of proving the WILL is on the propounder 18 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. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court before the court accepts the WILL as genuine. Where the caveator alleges undue influence, fraud ad coercion, the onus is on him to prove the same. Even where there are no such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience 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 th WILL being unnatural, improbable or unfair in the light of the relevant circumstances or there might be other indications in the WILL to show that the testator's mind was not free. In such a case the court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last WILL of the testator. If the propounder himself takes part in the execution of the WILL which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the court would grant probate, even if the WILL might be unnatural and might cut off wholly or in part near relations.'
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 earlier reducing or depriving th share of natural heirs. If a person intends his property to pass to his natural heirs, there is no necessity at all of executing 19 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 beheld to be a suspicious circumstance especially in a case where the bequest has been made in favour of an offspring. As held in P.P.K. Gopalan Nambiar Vs. P.P.K. Balkrishnan Nambiar1995 Supp. (2) SCC 664, 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 circumstances, the court has 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 Rabindranath Mukherjee Vs. Panchanan Banerjee (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."
24. In the facts of this case, the other heirs have been executed the document Ex.P-15 which is a report made by the father i.e. the testator against his son Girish Chand Gupta to the police cannot be ignored wherein complaint was made by father that he was subjected to assault by one of the son namely Girish Chand Gupta (the resp. No.1.). Therefore deprivation of this natural heir may not raise any doubt considering the fact the son used to assault father which led to police 20 report. Deprivation of other heirs may be for the reason as per language of the family arrangement that certain properties were sold for marriage of the daughters and further the deposition of one of the daughter namely Suman Mala (DW-3) would show that she was also settled with the property and she was holding some property at Village Lagra as against the family arrangement. Though the averments have been made that the WILL Ex.D-1 do not contain photographs of the father of the defendants but except that statement nothing has been brought on record to show to prove the actual photographs of late testator though certain photographs have been produced by the defendants to mark their identity. The statement of PW-2 wherein it has been stated that the photograph attached in the WILL was of Atmaram Gupta which has not been refuted. In these circumstances we hold that the registered WILL was executed in favour of the appellant/plaintiff by late Atmaram Gupta-the testator and the WILL has been proved beyond all suspicion.
25. In the result, the appeal is allowed. The judgment and decree of the learned court below is set aside. The prayer in terms of the prayer made in the plaint is allowed with declaration in favour of the appellant/ plaintiff. No order as to cost(s).
A decree be drawn accordingly.
Sd/- Sd/-
(Gautam Bhaduri) (Radhakishan Agrawal)
Judge Judge
suguna
21
Head Note
- To give finding about the authenticity of WILL, the Court is
required to sit in the arm chair of testator.
- WILL is genuine and is required to be proved by satisfactory
evidence beyond suspicion.
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