Himachal Pradesh High Court
Bhag Singh & Anr vs Bachni Devi & Ors on 9 September, 2015
Author: Rajiv Sharma
Bench: Rajiv Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
RSA No. 390 of 2003.
Reserved on: 8.9.2015.
.
Decided on: 9.9.2015.
Bhag Singh & anr. ......Appellants.
Versus
Bachni Devi & ors. .......Respondents.
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
Whether approved for reporting? Yes.
of
For the appellant(s): Mr. Sanjeev Kuthiala, Advocate.
For the respondents: Mr. R.K.Gautam Sr. Advocate, with Mr. Mehar Chand Thakur,
Advocate for respondents No. 1 to 4, 6 to 10 & 12.
----------------------------------------------------------------------------------------------
rt
Justice Rajiv Sharma, J.
This regular second appeal is directed against the judgment and decree of the learned Additional District Judge, Una, H.P. dated 20.6.2001, passed in Civil Appeal RBT No. 117/2000/95.
2. Key facts, necessary for the adjudication of this regular second appeal are that the predecessor-in-interest of the respondents-plaintiffs, namely, Milkhi Ram (hereinafter referred to as the plaintiffs), had instituted a suit for declaration to the effect that the land measuring 39 kanals 6 marlas, as detailed in the head note of the plaint, entered in Jamabandi for the year 1980-81, situated in Village Behilan, Tika Takoli, Teh. Bangana, Distt. Una, was owned and possessed by him and proforma defendants No. 3 & 4, namely Sh. Nasib Singh and Rattan Chand in equal shares and the appellants-defendants, namely, Bhag Singh and Suram Singh (hereinafter referred to as the defendants), had no right, title or interest in it and mutation entered on the basis of Will dated 18.8.1984 was wrong, baseless, void and ::: Downloaded on - 15/04/2017 18:54:29 :::HCHP 2 ineffective. Palu was the owner of the suit land. He died leaving behind plaintiff and defendants No. 3 & 4, namely, Nasib Singh and Rattan Chand.
.
Palu was an old man, aged about 85 years and was mentally unsound. He never executed any Will in favour of the defendants.
3. The suit was contested by the defendants. According to them, the Will was executed in their favour on 18.8.1984. No fraud or undue influence was ever exercised upon deceased Palu. Defendant No. 3 Nasib of Singh also filed the written statement. He has denied the claim of the plaintiffs. Defendant No. 4 Sh. Rattan Chand has supported the claim of the rt plaintiffs.
4. The replication was filed by the plaintiffs. The learned trial Court framed the issues on 19.6.1989. The suit was decreed vide judgment dated 2.2.1995. The defendants, feeling aggrieved, preferred an appeal against the judgment and decree dated 2.2.1995. The learned Additional District Judge, Una, dismissed the appeal on 20.6.2001. Hence, this regular second appeal.
5. The regular second appeal was admitted on the following substantial question of law on 26.9.2003:
"Whether the exclusion of some of the natural heirs in the Will and the active participation of the beneficiaries as also the witnesses being residents of another village would be suspicious circumstances to non suit a registered will and deny the beneficiary the right of property accrued on basis of the registered Will made by the testator in favour of the beneficiary?"
6. Mr. Sanjeev Kuthiala, Advocate, for the appellants, on the basis of the substantial question of law framed, has vehemently argued that the ::: Downloaded on - 15/04/2017 18:54:29 :::HCHP 3 Will dated 18.8.1984 was legal and valid. The Will was duly registered. The Will was executed by late Palu in favour of his clients out of love and .
affection. On the other hand, Mr. R.K.Gautam, Sr. Advocate has supported the judgments and decrees passed by the Courts below.
7. I have heard the learned Advocates for the parties and gone through the judgments and records of the case carefully.
8. The plaintiff Milkhi Ram has appeared as PW-1. He deposed that of his father has died. His age was between 85-90 years. Neither he could see nor hear. He was not in sound state of mind. The land was jointly owned by rt 'Mushtarka' by three brothers. Palu was residing with them. They were serving him. The land was in their possession.
9. PW-2 Piara Singh has also corroborated the statement of PW-1 Milkhi Ram.
10. PW-3 Rattan Chand deposed that the age of Palu was between 85-90 years. He used to lie on the cot. His eye-sight was weak. He was hard of hearing. He was not in sound state of mind. He was not in a position to execute the Will.
11. PW-5/6/7 Subhash Chand deposed that he was working as document writer, at Bangana. He proved Will Ext. PW-7/A. The marginal witness was Sh. Sudu Ram. He has entered the age of Palu Ram as 97 years.
Palu Ram has signed the register. He has read over the contents of the Will to Palu Ram. He after understanding the contents to be true and correct put his thumb impression. It was entered at Sr. No. 114 dated 10.8.1984. Sh.
Sudu Ram has deposed that Will dated 10.8.1984 was scribed by Sh.
::: Downloaded on - 15/04/2017 18:54:29 :::HCHP 4Subhash Chand, document writer. He has put his signatures as marginal witness. The Will was produced before the Tehsildar. The Tehsildar did not .
register it since Palu Ram was not capable of executing the Will.
12. Defendant Suram Singh has appeared as DW-1. According to him, Will was scribed by the document writer. Palu Ram was in his senses.
The contents of the Will were read over and explained to Palu Ram.
Thereafter, he after understanding the same to be correct put his thumb of impression. It was witnessed by Om Parkash and Kamal Nath. In his cross-
examination, he has admitted that he was present at the time of execution of rt the Will.
13. DW-2 Tara Chand deposed that he has scribed the Will on 18.3.1979. He has read over the contents to Palu Ram. Palu Ram after admitting the contents to be correct put his thumb impression. Palu Ram was in senses. Om Parkash and Kamal Nath have appeared as marginal witnesses. In his cross-examination, he deposed that his grandson was also with him at the time of execution of the Will. He also asked him why Will was not executed at Bangana.
14. DW-3 Om Parkash is the marginal witness. According to him, the Will was executed by Palu Ram in favour of Suram Singh and Bhag Singh. He was in his senses. The contents of the Will were read over to him.
He, thereafter put his thumb impression. Thereafter, he and Kamal Nath put their signatures. The Will was produced before the Sub Registrar. He is resident of village Satothar.
::: Downloaded on - 15/04/2017 18:54:29 :::HCHP 515. DW-4 Kamal Nath is also the marginal witness of the Will Ext. D-
1. The contents of the Will were read over by the deed writer to Palu Ram.
.
Thereafter, he put his thumb impression over the same. It was registered on 21st.
16. It has come on record that the age of Palu Ram at the time of execution of the Will on 18.8.1984 was 97 years. Earlier also, the Will was prepared on 10.8.1984. It was produced before the Sub Registrar at of Bangana. He refused to register the same. Thereafter, Will was got registered at Amb. Palu Ram was hard of hearing. His eye-sight was also weak. DW-2 rt Tara Chand was deed writer at Amb. DW-3 Om Parkash has admitted that he belongs to village Satothar.
17. PW-5 Subhash Chand has categorically testified that earlier attempt was made to get the Will dated 10.8.1984 registered. However, the Sub Registrar had refused to register the Will. In earlier Will Ext. PW-7/A, the age of Palu Ram was 97 years, however, in Ext. D-1, the age was reduced to 78 years. The defendants have not explained why the Will was got registered at Amb instead of Bangana.
18. Mr. Sanjeev Kuthiala, Advocate, has argued that there is no illegality whereby the land has been bequeathed in favour of the grandsons.
The fact of the matter is that in the Will Ext. D-1, three sons of Palu Ram have been excluded. The reason assigned for bequeathing the property in favour of grandsons was that they were looking after him. However, the Courts below have rightly come to the conclusion that no tangible evidence was led by the defendants to prove that they were looking after the deceased ::: Downloaded on - 15/04/2017 18:54:29 :::HCHP 6 Palu Ram. There is no evidence that Palu Ram was residing with them. PW-
1 Milkhi Ram has categorically deposed that Palu Ram was residing with .
them. It has also come on record that Palu Ram used to stay with granddaughter but he used to come back to his ancestral house. DW-1 Suram Singh has actively participated in the execution of the Will. He has categorically admitted, as noticed hereinabove, that he was present at the time of execution of the Will. He has taken his grandfather to Tehsil Amb and of remained there up to 4:00 PM. The presence of Suram Singh was also admitted by Om Parkash and Kamal Nath at the time of execution of Will.
rt
19. The Will Ext. PW-7/A was scribed in favour of sons of Bhag Singh and Suram Singh and later on it was scribed in favour of Bhag Singh and Suram Singh. Palu has died in the house of Naseeb Singh. Bhag Singh and Suram Singh were residing separately at Village Bhelian. In view of what has been stated hereinabove, is that natural heirs i.e. three sons of Palu Ram could not be excluded. The mere registration of the Will does not make it valid when the other suspicious circumstances have not been removed by the propounders of the Will. The attesting witnesses of Will Ext. D-1 were not from the same village. This circumstance will go against the defendants for the simple reason that earlier attempt was made to get the Will registered at Bangana but the same was returned and thereafter, it was presented before the Registrar at Amb.
20. The Division Bench of the Calcutta High Court in the case of Ajit Kumar Maulik vrs. Mukunda Lal Maulik and ors., reported in AIR 1988 Calcutta 196, has held that onus of proving a Will is on the propounder and ::: Downloaded on - 15/04/2017 18:54:29 :::HCHP 7 where there are suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the Court before the Will .
could be accepted as genuine. It has been held as follows:
"7. The learned Additional District Judge has properly discussed the principles to be followed for proving a Will. The onus of proving a will is on the propounder. In the absence of suspicious circumstances surrounding the execution of the Will, the proof of testamentary capacity and the signature of the testator, as required by law, are sufficient to discharge the onus. As stated by the learned Additional District Judge, of where there are suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the court before the Will could be accepted as genuine. The meaning of the term, "onusprobandi", is that if no evidence is given by the party on whom burden is cast, the issue must be found against him, Onus as a rt determining factor of a case can only arise if the evidence pro and, con is so evenly balanced that no conclusion' can be derived therefrom. In such a case, onus will determine the matter. But if a tribunal, after hearing and weighing the evidence, comes to a determinate conclusion, the onus has nothing to do with it and need not be further considered (Harmes v. Hinkson, AIR 1946 PC 156). The "onus probandi is generally discharged by proof of capacity and the factum of execution, from which knowledge and assent to its contents by the testator will be assumed. Once it is proved that a Will has been executed with due solemnity by a person of competent understanding and apparently a free agent, the onus probandi is to be taken to be discharged (Gomtibai v. Kanchhedilal AIR 1949 PC 272). In the present case, there is no dispute about the testamentary capacity of the testatrix, who that on 5-6-59 after executing the Will on 24-4-50 and herself presenting it for registration on 13-2-52. It is no doubt true that the mere fact that the will is registered will not by itself be sufficient to displace any suspicion regarding it, without submitting the evidence of registration to a close scrutiny. In the present case, the endorsement on the back of the will in the office of the Registrar does not show that the contents of the document, of which the testatrix was admitting execution, were brought home to the testatrix. In the circumstances, on the basis of mere registration of the Will, the Will cannot be pronounced as valid Purnima Debi v. Khagendra Narayan, ; Anath Nath Das v. Bijali Bala, . The mere ability to sign one's name does not also necessarily imply the validity of a Will. The testator must have a disposing mind. He must be able to dispose of his property with understanding and reason. He must be able to appreciate his property and to form a judgment with respect to the parties whom he chose to benefit by it after death Surendra Krishna Mondal v. Smt. Ranee Dassi 24 Cal WN 860 : (AIR 1921 Cal 677)]. We have already shown the various provisions of the Will. The evidences of P.W. 1 and D.W. 1 show that D.W. 1, the respondent 1, served if a Military Audit Department and ::: Downloaded on - 15/04/2017 18:54:29 :::HCHP 8 retired in 1962 and is still now drawing pension. D .W. 1 has stated that the respondent 2, Provat, retired about 10 years ago from service. He admits that his brother, Sailen, is unemployed and that his youngest brother, the plaintiff, suffered from glandular T.B. It is in the evidence of .
P.W. 1 that Sailen was unemployed and was totally dependent on them and their mother. It is in his evidence that in 1939 Sailen married and that in 1947 a daughter was born to Sailen. The evidence of P.W. 1 further shows that though he is a graduate, he suffered from glandular T.B. for 12 years, and that it was detected in 1939. In these circumstances, the Will is not at all unnatural or unreasonable or unfair, having regard to the claims of affection on each son of the mother and their respective positions in life when the Will was executed. By making the Will, the testatrix was only making the "provision for future of maintenance of the appellant and Sailen, both of whom had to be maintained by her husband and thereafter by her and had no other means for maintenance after her death. As the Will is to be presumed to be duly executed and attested, on the basis of the presumption under Section 90 of the Evidence Act and has been proved to have been rt duly executed and attested on the basis of the evidence of P.W. 2, the onus probandi has been sufficiently discharged by the appellant, specially when D.W. 1 has no knowledge about the execution of any Will by his mother. These glaring facts were overlooked by the learned Judge in the court below."
21. The learned Single Judge of the M.P. High Court in the case of Bherulal vrs. Ramkunwarbai and others, reported in AIR 1994 M.P. 5, has held that the registration is not proof of due execution of Will. The propounder is required to show that Will was signed by testator and he at that time was in a sound disposing state of mind. It has been held as follows:
"14. As seen, one of the factors to be proved is that the testator at the relevant time was in a sound and disposing state of mind. On this aspect, I find that no proof is offered. It is apt to remember that mere registration is no proof that the will was duly executed as non- registration itself would not ipso facto tell against its genuineness. Is is thus clear that the trial Court has gone wrong in assuming and presuming merely by registration that "Motilal must have executed it".
This is how vitiation begins. And again it was totally overlooked that how DW 2 Ramsahai could depose about so-called pesonal acknowledge ment after such a long lapse of time when such a fact is not endorsed on the document itself. The time factor is to be borne in mind. This may easily consign one to the state of paramnesia. It is hazardous to place implicit faith on such a witness whose version, to say the least, appeared to be apocryphal.
::: Downloaded on - 15/04/2017 18:54:29 :::HCHP 919. As noted, the propounder is required to show by satisfactory and sufficient evidence that the will was signed by the testator, that at that time he was in a sound and disposing mind and that he understood the nature and effect of the disposition and put signature of his own free .
will. The case on hand contains no evidence except cryptic portion of so-
called personal acknowledgment deposed to by a chance witness. His evidence is found to be untrustworthy and undependable.
24. In the circumstances, differing from the findings recorded by the trial Court, I hold that the propounder has failed to prove the execution and authenticity by sufficient and legal evidence and reverse the findings on issues No. 4(a) and (b). In this view of the matter, I consider it unnecessary to allow I.A. No. 2619/91 moved under Order 41, Rule 27 of the Code, and accordingly I reject the same. The question of adoption of was not pressed before me. Hence, I leave the findings on issue Nos. 1(a),
(b) and 2 undisturbed. The finding on issue No. 2 ipso facto perished on invalidity of the will. It is also unnecessary to deal with other points when the will itself is held to be null and void. Rights are regulated by natural succession as per personal law. The authorities relied upon by rt respondents are not applicable here."
22. The Division Bench of Punjab and Haryana High Court in Smt. Bhagyawati vs. General Public and others, 1994-2 PLR 649 has laid down the principles of holding proper execution of the "will" as under:
"19. From the judicial verdicts noted in this judgment and various other pronouncements relied upon by the counsel for the parties, the position which emerges for holding proper execution of the Will is that :--(a) the testator must have a disposing mind free from all extraneous influences with sound mental mind; (b) the testator is presumed to be sane having a mental capacity to make a valid Will until contrary is proved; (c) the Will should be executed in accordance with the provisions of the Act as incorporated in Section 63 of the Act read with Sections 67 and 68 of the Evidence Act. In other words, the testator should have signed or affixed his mark to the Will in the presence of the two witnesses who are required to see the testator signing or affixing his mark on the Will and each of the witnesses should sign the Will in the presence of the testator; (d) the onus of proof of the Will is on the propounder or beneficiary of the Will; (e) the ::: Downloaded on - 15/04/2017 18:54:29 :::HCHP 10 existence of suspicious circumstances make the onus of proof very heavy and such circumstances are required to be removed by the propounder before the document is accepted as a last Will of the .
testator; (f) the mode of proving the Will does not ordinarily differ from that of proving any other document except the special circumstances as incorporated in Section 63 of the Act; and in order to ascertain the free disposing mind free from extraneous considerations, the whole of the attending circumstances in a particular case are required to be taken note of."
of
23. The learned Single Judge of the Punjab and Haryana High Court in the case of Khanda Singh and another vrs. Natha Singh and ors., rt reported in (1994-2) PLR 742, has held that registration of Will itself is not sufficient to prove the sound disposing mind of the testator. The learned Single Judge has further held that it is for the propounder to bring on record that testator had no love and affection for the plaintiff. It has been held as follows:
"7. Exh. D-l is the Will on the basis of which defendants No. 2 and 3 claim that they have become absolute owners of the property of Jaswant Singh, owner. The WilMl alleged to have from executed on 4.10.1978. Tes tator died on 5.10.1978, ie within few hours of the execution of the Will. Will is in favour of Makhan Singh and Darshan sons of Khanda Singh who is the real nephew of testator, Jaswant Singh. Plaintiffs are the nephews of Jaswant Singh, being the sons of Kundha Singh. In the absence of Will, plaintiffs would have succeeded to the property of Jaswant Singh, along with Kundha Singh. It was for the propounders to bring on record that Jaswant Singh had no love and affection for the plaintiffs. No evidence to that effect has been brought on record by the propounders. No reasons find mention in the Will for excluding the plaintiffs. Apart from this, propounders have failed to dispel the other suspicious circumstances surrounding the execution of the Will. According to Gurdev Singh, D.W. 2, Jaswant Singh was lying admitted in the clinic of one Dr. Nagpal two-three days prior to the execution of the Will. Further, according to him, he took Jaswant Singh from clinic to Bhatinda in his own car and dropped him back after the execution of the Will, whereas Jangir Singh, DW-3, has not corroborated the statement of ::: Downloaded on - 15/04/2017 18:54:29 :::HCHP 11 DW-2, Gurdev Singh. According to Jangir Singh (DW-3), Jaswant Singh, testator, and Gurdev Singh had gone to Bhatinda enroute his house, where they left for Bhatinda by train. Both of them in their statements have stated that Jaswant Singh died two-three days after the execution of .
the Will, whereas it now stands admitted that Jaswant Singh died a few hours after the execution of the Will. Gurdev Singh, DW-2, has also stated that Dr. Nagpal had declared Jas want Singh's case to be hopeless one and, for that matter, he was removed to the village where he died. This part of the statement is indicative of the fact that condition of Jaswant Singh, a day prior to his death was very critical and the doctor had lost all hopes of his recovery. It was for this reason that he was sent back to his village where he died in the early hours of the morning. Dr. Nagpal who treated him during his illness before his death was not of examined. In the facts and circumstances of this case, it was clearly incumbent upon the present appellants to prove that at the time of execution of the Will, the testator was in a sound mental health and thus, knew, understood and approved the contents of the Will. Appellants in this case have failed to discharge the burden and satisfy the conscience rt of the Court by proving that the testator had a sound disposing mind at the time of execution of the Will. Registration of a Will itself is not sufficient to prover the sound disposing mind of the testator. The mere fact that the Will is registered one, is not enough to hold that the Will was duly executed. It is not unknown that registration may take place without executant really knowing what he was registering. Before the document could be accepted as the last Will of the testator, the propounders were required to dispel each and every suspicious circumstances surrounding the execution of the Will. In the present case. I am satisfied that the Courts below have rightly concluded that the Will, Exh. D-1, is not proved to be a genuine Will executed by Jaswant Singh in favour of defendants No. 2 and 3 with a free disposing mind."
24. The learned Single Judge of the Kerala High Court in the case of Vattakam Purath Parambil Ananda Bhai and another vrs. Kanaka Bhai and others, reported in AIR 1995 Kerala 208, has held that mere registration of Will does not give rise to presumption of its genuineness. It has been held as follows:
"4. Merely because a Will is registered its genuineness cannot be presumed. Registration of a Will does not change the onus of proof from its propounder to the challenger. Whether a Will is registered or not, it is for the propounder to establish by reliable evidence that the Will was signed by the testator, that he at the relevant time was in a sound and disposing state of mind and that he fully realised the nature and effect of the disposition and signed it on his own free will. As the burden is ::: Downloaded on - 15/04/2017 18:54:29 :::HCHP 12 heavily upon the propounder to prove the Will he cannot adopt the stand that the registration of the Will itself is a circumstance to dispel any suspicious circumstance. When the genuineness of the Will is challenged the propounder has necessarily to substantiate his case regarding its .
genuineness even in a case where it is registered. At best registration of a Will though not required by law is only a piece of evidence of the execution. But it cannot have greater sanctity.
Both the courts below, on appraisal of evidence, held that Ext. B1 Will is not genuine. That being a finding of fact this Court cannot interfere in the Second Appeal. The appeal is dismissed. No costs."
25. Their lordships of the Hon'ble Supreme Court in the case of of Gurdial Kaur and others vrs. Kartar Kaur and others, reported in (1998) 4 SCC 384, have held that the conscience of the Court must be satisfied that rt 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 executant who had voluntarily executed the same after knowing and understanding the contents of the Will. Their lordships have further held that whenever there is any suspicious circumstance, the obligation is cast on the propounder of the Will to dispel suspicious circumstance. It has been held as follows:
"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 executant 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 suspicous circumstance. As in the facts and circumstances of the case, the Court of Appeal below did not accept the valid execution of the will by indicating reasons and coming to a specific finding that suspicion had not been dispelled to the satisfaction of the Court and such finding of the Court of Appeal below has also has been upheld by the High Court by the impugned judgement, we do not find any reason to interfere with such decision. This appeal, therefore, fails and is dismissed without any order as to costs."::: Downloaded on - 15/04/2017 18:54:29 :::HCHP 13
26. The Division Bench of the Karnataka High Court in the case of Virupakshappa Malleshappa and ors. vrs. Smt. Akkamahadevi and .
others, reported in AIR 2002 Karnataka 83, has held that when the testator had excluded his wife and children from inheritance and preferred his brother and there was no evidence to show that brother and his children had shown greater love and affection to testator as against his wife and children, the Will would be surrounded by suspicious circumstances. It has of been held as follows:
"9. The Trial Court has assigned mainly three reasons to hold that the rt first defendant has not proved the Will. Firstly, on a careful consideration and appreciation of the evidence of D.W. 2, who was the attesting witness to the Will, it has taken the view that his evidence cannot be accepted to prove the Will. Secondly, the Trial Court has taken into consideration the suspicious circumstances manifest in the Will. Thirdly, the Trial Court has taken the view that since D.W. 2 in his evidence, has not stated that the attesting witnesses had signed the Will in the presence of the testator of the Will, the requirement of law that the attesting witnesses must sign in the presence of the testator having not been satisfied, it must be held that the Will is not proved. On careful reappraisal of the evidence on record by us, we have no reason to differ from the first of the two reasons assigned by the Trial Court referred to above, to take the view that the first defendant has failed to prove the Will. But we are unable to accept the third reason assigned by the Trial Court as a valid ground to reject the Will in the light of the evidence of D.W. 2. However, merely because the third reason referred to above assigned by the Trial Court, is not a valid reason, by that itself it is not possible to take the view that the finding recorded by the Trial Court that the first defendant had failed to prove the Will requires to be nullified. As noticed by us earlier, the Trial Court, on close examination and scrutiny of the evidence of D.W. 2, has taken the view that his evidence cannot be accepted to come to the conclusion that deceased Siddaramappa had executed Will, Exhibit D. 11 as claimed by him. In paragraph 15 of the judgment, the Trial Court has carefully analysed the evidence of D.W. 2. We are in total agreement with the reasons assigned by the Trial Court to reject the evidence of D.W. 2. As rightly pointed out by the Trial Court, D.W. 2 has admitted in his evidence that on the date of the execution of the Will, he was about 46 years younger in age to the testator of the Will, late Siddaramappa. Further, even according to D.W. 2, at no point of time, Siddaramappa had asked him to act as an elder either in the affairs of his family or business; and it is only for the first ::: Downloaded on - 15/04/2017 18:54:29 :::HCHP 14 time on the date of the execution of the Will, casually he met D.W. 2 who was standing in front of his shop and asked him to come to his mill at 2.00 p.m. D.W. 2 does not even state that they had any discussion at that time about the intention of Siddaramappa executing the Will and D.W. 2 .
being required to sign the Will as an attesting witness to the Will. D.W. 2 has further admitted in his evidence that there are other elderly persons who are more closely connected with the said Siddaramappa; D.W. 2 was not his close friend; and D.W. 2 was known to Siddaramappa since he was also a businessman like Siddaramappa, and was also related to him.
In the chief examination, D.W. 2 has stated that "when he went to oil mill, the Will was being written", and after the Will was written, "Siddaramappa went through the Will"; and after going through the Will, "Siddaramappa affixed his signature to the Will". However, in the cross-
of examination, D.W. 2 has stated that "the writing of the Will started after he "went to the oil mill"; and after he went to the mill, Siddaramappa started narrating the contents of the Will and the same was reduced into writing by Thotappa. This inconsistency, in our view, is sufficient to reject the evidence of D.W. 1. The timing of the writing of the Will; the rt signing of the Will by the testator and the attesting witnesses signing the Will are very crucial factors. Normally, if the attesting witness is a truthful witness, there cannot be any inconsistency with regard to these facts. Further, the evidence of D.W. 2 also would clearly indicate that he would not have been the natural choice of deceased Siddaramappa to pick him up as the attesting witness and take him into confidence for the purpose of executing the Will, especially when he is excluding his wife and children from inheriting his properties. The consequence of disclosure of such a Will to his wife and children by D.W. 2 would be serious and it would have driven Siddaramappa of incurring displeasure of his wife and children also or alienating their affection and warmth. Admittedly, late Siddaramappa and his wife and children had mutual affection for each other. D.W. 2 has admitted in his evidence that he and the 4th defendant-Basavaraj were friends. D.W. 2 has also admitted that Siddaramappa had friends of his own age and he had acquaintance with many people. When Siddaramappa intended that his properties should go to the first defendant, who is admittedly having half share in the joint family properties along with him excluding his wife and children who are the natural heirs to succeed to his properties, in our view, he would have taken care to take the assistance of his close associates who could be taken into confidence. Though there is no bar that an youngster like D.W. 2, who is not closely associated with the said Siddaramappa to be an attesting witness to the Will, as rightly pointed out by the Trial Court, the normal conduct of a person would be to take the assistance of a confident of the testator of the Wilt as the assisting witness. Further, as noticed by us earlier, the inconsistency in the evidence of D.W. 2 with regard to the crucial facts relating to the time of the writing of the Will makes the version of D.W. 2 highly doubtful and unreliable. In our view, if D.W. 2 was actually present at the time of preparation of the Will, there cannot be two versions, at one stage saying that when he went to the oil mill, the Will was being written; and at another saying, that the ::: Downloaded on - 15/04/2017 18:54:29 :::HCHP 15 writing of the Will started after he went to the mill. No doubt, the other attesting witness Sangappa Pampanashettar, according to D.W. 2, had expired 15 days prior to the date of his giving evidence i.e., 17-6-1994. D.W. 1 was examined on 3rd December, 1993. It is not known why steps .
were not taken to examine Sangappa Pampanashettar immediately after the completion of the evidence of D.W. 1. Further, the scribe of the Will one Thotappa has not been examined. No explanation has been offered for his non-examination. Neither D.W. 1 nor D.W. 2, in their evidence, explained as to why the said Thotappa was not examined. In our view, examination of Thotappa was very important for reasons more than one. The execution of the Will was seriously disputed by the plaintiff. The Will, prima facie, is surrounded by suspicious circumstances. It had not seen the light of the day till the date of filing of the suit. It excludes the of wife and children of the testator of the Will from inheriting his properties though they are Class 1 heirs and he had all love and affection for them. The other attesting witness was not available to be examined as he had died before the conclusion of the trial of the suit. In Exhibit D. 4, the age of Sid-daramappa was mentioned as '34' but it is admitted by rt both D.W. 1 and D.W. 2 that he was more than 70 years on the date of the execution of the Will. The scribe of the Will would have been the best person to explain the discrepancy in the age of Siddaramappa referred to in Will, Exhibit D. 11. We are of the view that in a matter like this, having regard to the facts and circumstances of the case, the non- examination of the scribe of the Will the aforesaid Thotappa casts a serious doubt with regard to the case set up by the first defendant about the execution of the Will by late Siddaramappa. We are of the view that Thotappa, who is stated to have written the Will, was not examined by the first defendant either for the fear of contradictions in the evidence of the said Thotappa and the evidence of D.W. 1 being placed before the Court and on the ground that the falsity of the case as set up by the first defendant being exposed, or on the ground that the said Thotappa was not ready and willing to give a false evidence before the Court. Further, if the evidence of D.W. 1 is also appreciated along with the suspicious circumstances shrouding the Will, we have no hesitation to take the view that the version of D.W. 2 that Siddaramappa had executed the Will in his presence, cannot be accepted as true. Both D.W. 1 and D.W. 2, in their evidence, have admitted that late Siddaramappa had lot of love and affection for his wife and children. P.W. 1 also has stated that her father had lot of love and affection for his children and he intended to give properties to them. Admittedly, the 6th defendant, who is one other daughter of Siddaramappa and who is deserted by her husband, was living in the joint family along with Siddaramappa, her mother and defendants 1 to 3 with her young children. This indicates that Siddaramappa was taking care of his daughter and her children, who were not looked after well by her husband. The wife of Siddaramappa was comparatively old in age. Under these circumstances, it is not the normal human conduct for any husband, father or grandfather to exclude his wife who is of advanced age and the daughter and her children, who are not taken care of by her husband, to leave them to the ::: Downloaded on - 15/04/2017 18:54:29 :::HCHP 16 mercy of his younger brother and his son-in-law who is appointed as the executor of the Will. Further, we cannot overlook the fact that the son- in-law of the first defendant, was not only appointed as the executor of the Will, but was also given the right to manage the properties along with .
the first defendant. There is no explanation offered as to what prompted Siddaramappa to execute the Will, Exhibit D. 11 ignoring his wife and children. It is not as if the first defendant and his children are in financial need and they have shown greater love and affection to Siddaramappa as against his wife and children. When the first defendant and his children have half share in the joint family properties, it is not possible to believe that late Siddaramappa would have given his share also to the first defendant by making a provision for payment of only Rs. 20,000/- to the second plaintiff and at the rate of Rs. 2,000/- per month of to his wife with the right of residence on the southern half portion of the house to her and with further instructions to the first defendant to educate the children of the 6th defendant and get them married. There is no charge created on the property to protect the interest of his wife and also the 6th defendant and her children who are required to be educated rt and married. According to the contents of the Will, the first plaintiff was given agricultural lands at Daroji Village. P.W. 2, in her evidence, has stated that no agricultural property situated at Daroji was given to her.
The defendants have not placed any evidence to show that the first plaintiff was given any agricultural properties situated at Daroji Village. If, as a matter of fact, some agricultural property was given as recited in the Will, it would not have been difficult for the first defendant to place documentary evidence before the Court. Therefore, we will have to proceed on the basis that the recital in Will, Exhibit D. 11 that agricultural land situated at Daroji Village were given to the first plaintiff, is false. Can it be expected that a father who had not given any property to the first plaintiff, would recite in the Will stating that he has given some properties to her, especially when he had all the love and affection to his daughter, to give scope to his daughter to develop a feeling that her father has lied. Therefore, we have every reason to think that the recital in the Will that some agricultural properties of Daroji Village were given to the first plaintiff was deliberately made to explain as to why she was being excluded from giving any property by late Siddaramappa. Further, it is also necessary to state that when there is no dispute between Siddaramappa and his children and two of his sons-in- law i.e., the husbands of the plaintiffs, we are also not able to understand as to why he would prefer the 4th defendant to appoint him as the executor of the Will and give him the right to manage the joint family properties along with his brother, the first defendant. The recitals in the Will that the 4th defendant was entitled to manage the properties along with the first defendant is indicative of the fact that he is the brain behind in getting the Will prepared as a defence to the suit filed seeking partition and in that effort, he has taken the assistance of D.W. 2, who is his friend. We also find that there is no merit in the submission of the learned Counsel for the appellants made relying upon the judgment of the Supreme Court in the case of Beni Chand, supra, to the effect that the ::: Downloaded on - 15/04/2017 18:54:29 :::HCHP 17 exclusion of the wife and children from the Will does not create any doubt about the genuineness of the Will. The decision of the Hon'ble Supreme Court in the case of Beni Chand, supra, purely based on the facts of that case where there was serious difference of opinion between .
the mother and the son and in those circumstances, the Hon'ble Supreme Court took the view that merely because the son was excluded by the mother, is not a ground to cast suspicion on the genuineness of the Will. In this connection, it is useful to refer to the observation made by the Supreme Court in the said decision, which reads as follows:
"Son is excluded by mother as his behaviour was far too unfilial and remorseless, for him, to find a place in the affections of his mother".
of In our view, the principle laid down by the Hon'ble Supreme Court in the decision relied upon by the learned Counsel for the appellants is of no assistance to her. Therefore, on careful consideration of the evidence of D.W. 2 and the suspicious circumstances surrounding the Wilt, we are rt fully satisfied that Will, Exhibit D. 11 is a got up document and it is not the last Will of late Siddaramappa. Therefore, the Trial Court did not rightly act upon the Will put forward by the defendants."
27. The Division Bench of the Delhi High Court in the case of Raja Ram Singh vrs. Arjun Singh and another, reported in AIR 2002 Delhi 338, has held that when the plaintiff was only beneficiary and has undertaken active part in execution of Will as he himself had called attesting witnesses and was himself present when they attested the Will, it will amount to suspicious circumstance. It has been held as follows:
"15. For the reasons stated above the only conclusion which can be arrived at is that the Will allegedly executed by late Ram Richhpal Ex.
P11 is not a genuine Will. It could not have been executed by Ram Richhpal on 24th March, 1963 nor he could have bequeathed the entire house in favor of appellant."
28. Their lordships of the Hon'ble Supreme Court in the case of Gopal Swaroop vrs. Krishna Murari Mangal and others, reported in (2010) 14 SCC 266, have held that careful analysis of provisions of Section ::: Downloaded on - 15/04/2017 18:54:29 :::HCHP 18 63 of the Succession Act, 1925 would show that the proof of execution of Will would require the following aspects to be proved:
.
" 17. A careful analysis of the provisions of Section 63 would show that proof of execution of a Will would require the following aspects to be proved:
(1) That the Testator has signed or affixed his mark to the Will or the Will has been signed by some other person in the presence and under the direction of the Testator. (2) The signature or mark of the Testator or the signature of the persons signing for him is of so placed has to appear that the same was intended thereby to give effect to the writing as a Will.
(3) That the Will has been attested by two or more witnesses each one of whom has signed or affixed his mark to the Will or has rt been seen by some other person signing the Will in the presence and by the direction of the Testator or has received from Testator a personal acknowledgement of the signature or mark or the signature of each other person.
(4) That each of the witnesses has singed the Will in the presence of the Testator.
18. The decisions of this Court in Bhagwan Kaur W/o Bachan Singh v.
Kartar Kaur W/o Bachan Singh & Ors. 1994 (5) SCC 135, Seth Beni Chand (since dead) now by L.Rs. v. Smt. Kamla Kunwar and Ors. 1976 (4) SCC 554, Janki Narayan Bhoir v. Narayan Namdeo Kadam 2003 (2) SCC 91,Gurdev Kaur and Ors. v. Kaki and Ors. 2007 (1) SCC 546, Yumnam Ongbi Tampha Ibema Devi v. Yumnam Joykumar Singh and Ors., 2009 (4) SCC 780, Rur Singh (dead) Through LRs. and Ors. v.Bachan Kaur, 2009 (11) SCC 1 and Anil Kak v. Kumari Sharada Raje and Ors. 2008 (7) SCC 695 recognize and reiterate the requirements enumerated above to be essential for the proof of execution of an unprivileged Will like the one at hand. It is, therefore, not necessary to burden this judgment by a detailed reference of the facts relevant to each one of these pronouncements and the precise contention that was urged and determined in those cases. All that needs to be examined is whether the requirements stipulated in Section 63 and distinctively enumerated above have been satisfied in the instant case by the appellant propounder of the Will."
29. Mr. Sanjeev Kuthiala, Advocate, has relied upon the judgment of the Hon'ble Supreme Court in the case of Rabindra Nath Mukherjee and another vrs. Panchanan Banerjee (dead) by LRs and others, reported in ::: Downloaded on - 15/04/2017 18:54:29 :::HCHP 19 (1995) 4 SCC 459. In the instant case, the natural heirs have been excluded and the Will has also not been proved in accordance with law. The marginal .
witnesses have not stated that the testator had put his thumb impression and thereafter they have signed the Will as marginal witnesses. The substantial question of law is answered accordingly.
30. Consequently, there is no merit in this appeal and the same is dismissed, so also the pending application(s), if any. The judgments and of decrees passed by both the Courts below are affirmed.
September 09, 2015,
(karan)
rt ( Rajiv Sharma ),
Judge.
::: Downloaded on - 15/04/2017 18:54:29 :::HCHP