Madhya Pradesh High Court
Vasudeo Mahadeo Paranjape vs Suman Anant Paranjape And Ors. on 5 July, 1993
Equivalent citations: 1994(0)MPLJ20
ORDER A.R. Tiwari, J.
1. This appeal, filed under Section 299 of the Indian Succession Act, 1925 (for short 'Act'), is directed against the order dated 27th October, 1989, delivered by the Vth Addl. Judge to the Court of the District Judge, Indore in Probate Case No. 67/78, thereby granting Probate of the WILL dated 3rd November, 1974, alleged to be executed by late Mahadeo Paranjape in favour of his daughter-in-law Shrimati Suman, wife of his son Anant.
2. The factual matrix lies in a narrow compass. The Respondent No. 1 (Smt. Suman) filed an application on 8-8-1978 for grant of probate of the will dated 3-11-1974. The testator died on 5-1-1975 at Indore. He was survived by six sons and four daughters. This will is said to be attested by Dinkar (PW-1), the husband of his daughter Smt. Vimal, resident of Dewas and Udaya (PW-2), the husband of his another daughter Smt. Udita, resident of Indore. The description of the property was shown in Annexures-A and B, attached to the aforesaid application. The appellant objected to the grant of probate and denounced the will as forged. It was contended that the testator had lacked the requisite testamentary capacity and had not possessed sound disposing mind at the material time; both physically and mentally, he was an infirm person. The Probate Court, on evaluation of the evidential material both oral and documentary, concluded that Mahadeo executed Will on 3-11-1974 in fit mental condition and that his mental faculty remained satisfactory right upto his death. On the linchpin of this crucial conclusion, the Court allowed the application and granted probate certificate on production of Stamps worth Rs. 1,133.30 Ps. pursuant to the order dated 27-10-1989, impugned in this appeal.
3. I have perused the record and heard Shri Waghmare, Sr. counsel with ShriRavi Waghmare for the appellant and Shri Chaphekar, Sr. Counsel with ShriVasant S. Samvatsar for the Respondent No. 1 and ShriPandey for the respondents Nos. 6, 8, and 10, other respondents opting to be absent.
4. Shri Waghmare has directed manifold attack, scathing in nature, against the impugned order urging the respondent No. 1, propounder of the will, has failed to dispel the doubts and to explain the suspicious circumstances, predigious in number, associated with the alleged will. The points pressed may be catalogued as under-
1) At the relevant time, i.e. 3-11-1974, the testator was 88 years of age and suffered from the disease of paralysis for about 20 years.
2) Prior to the alleged will, the testator had executed the will earlier on 9-4-1971 and there is not satisfactory explanation as to why this had to be superseded by subsequent Will as alleged. The recital in para 2 of the alleged will does not tear up the tenebrosity.
3) Anant, one of the sons, actively participated in the preparation of the Will so as to make his wife, the Respondent No. 1 a beneficiary in destruction of natural succession, but opted to be away from the witness-box.
4) The remaining brothers and daughters were in collusion with Anant and his wife due to strained relations.
5) The counsel (Shri Machalpurkar) and the typist as endorsed on the will, are not examined.
6) The doctors, under whose treatment the testator was, are not examined in proof of the sound disposing mind and thus fit mental condition as put in the issue.
7) The Notary Shanta Kumari Jain (DW- 3), as deposed to by Balwant Vaidya (DW-1), found the testator deprived of the requisite testamentary capacity at the material time.
8) The Propounder withheld the material evidence and thus, failed to explain and remove the suspicious circumstances delivering dent, almost beyond repair, on the alleged genuinenesses of the Will.
9) The Probate Court did not appreciate the evidence in proper perspective and recorded the finding which is not on firm foundation and liable to be subverted.
5. On the other hand, Shri Chaphekar, with his usual vehemence, urged that the aforesaid contentions were evidently non-meritorious and supported the order. ShriPandey submitted that execution of document (Ex. P/2) dated 26-11 -1974 in favour of the Bank indicated the state of sound disposing mind. Shri Chaphekar placed reliance on AIR 1954 SC 280, Ishwardeo Narain Singh v. Smt. Kamta Devi and Ors., AIR 1957SC 875, SurinderKumar and Ors. v. Gian Chand and Ors. and AIR 1955 TC 177, John Simon Comez v. George John Camezto contend that Probate Court is not concerned with validity or construction of Will. The limited question is about execution. He also invited my attention to V Edn. of Indian Succession Act by Paruck (Page 488).
6. I proceed to examine the merits of the matter.
7. Right at the threshold, I find it apt to notice requirement of Section 281 of the Act which lays down as under-
"Section 281. Verification of petition for probate, by one witness to Will. - Where the application is for probate, the petition shall also be verified by at least one of the witnesses to the Will (when procurable) in the manner or to the effect following, namely:-
"I.C.D., one of the witnesses to the last Will and testament of the testator mentioned in the above petition, declare that I was present and saw the said testator affix his signature (or mark) thereto (or that the said testator acknowledged the writing annexed to the above petition to be his last will and statement in my presence)." "
The aforesaid application for grant of probate was however, submitted in clear violation of this provision. The verification by the witness was permitted by the Probate Court by order dated 21 - 8 -198 0. Pursuant to this, the verification was done by Udaya (PW-2) on 21-8-1980. Later, this was supplemented by Dinkar (PW-1) on 24-11-1980. The order-sheet, however, throws no light about latter part.
8. The attestation has to be in accordance with Section 63 of the Act as also Section 68 of the Evidence Act. In the instant case, the attesting witnesses are two son-in-laws of the testator. In Transfer of Property Act the expression "attestation" has been defined in Section 3 as under-
"Attested", in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgment of his signature or mark, or of the signature of such other person and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary:
9. Before entering into the scrutiny of the evidence, it is proper to notice the position of law. The execution is required to be accomplished in terms of Section 63 of the Act. Section 63 lays down that-
"Section 63. Execution of unprivileged wills. - Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea shall execute his will according to the following rules:
(a) 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.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.
(c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."
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10. It may be seen that Ex. P/l is conspicuously silent as to this description. All that it says is that the document has been executed in presence of two witnesses (not particularised) on today's date (not typed).
11. The issue under examination is about execution and authenticity. The propounder of the Will has to prove the due and valid execution of the Will. It is his further obligation to remove suspicion, if there be any surrounding the Will, from the mind of the Court by cogent and satisfactory evidence.
12. The position of law relating to Wills is settled by plethora of decision s. The following points are thus, required to be borne in mind-
"(1) The burden is on the propounder to prove due and valid execution of the will.
(2) The propounder is required to show by satisfactory evidence that the will was signed by the testator, that at the relevant point of time the testator was in a sound and disposing state of mind, and that he understood the nature and effect of the disposition when he put his signature to the document out of own free will.
(3) Generally speaking when the evidence adduced in support of the will is uninterested and satisfactory Courts would be justified in making the finding in favour of the propounder. The onus upon him can be said to have been discharged on proof of these essential facts.
(4) If, however, there are any suspicious circumstances, surrounding the will, the initial onus becomes very heavy.
(5) The propounder of the will is required to remove the suspicions from the mind of the Court by cogent and satisfactory evidence.
(6) The result of the application of these general and broad principles always depends upon the facts and circumstances of each case and the nature and quality of the evidence adduced by the parties."
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13. The Court below has given insignaia of "independent witnesses" to those who claim to have attested the Will (Ex. P/l) on the ground of relationship with the propounder (Respondent No. 1) as well as the Objector (Appellant). The element of lack of cordiality was, however, overlooked in such estimation.
14. Although I am not concerned with the construction or validity of will in this proceeding, yet it would be reasonable to notice briefly the portion of the will, which in my view, could X-Ray the mind and its soundness. Para 4 of the Will spoke of bequest to the respondent No. 1 so far as the house was concerned. Yet para 5 embodied the following version-
^^mDr edku dh dher esa :i;s 30]000@& rhl gtkj e; djrk gw¡ vkSj ml izek.k ls esjs gjsd iq=ksa dks :i;s 5]000@& ik¡p gtkj] lkS- lqeu nsosxh;kus Jh oklqnso dks :i;s 5]000@& ik¡p gtkj] Jh okeu dks :i;s 5]000@&] Jh/kj dks :i;s 5]000@& vkSj Jh fo'oukFk dks :i;s 5]000@& ik¡p gtkj rFkk ukjk;.k dks :i;s 5]000@& ik¡[ gtkj fn;s tkosaxsA ;g :i;s esjs ejus ds ckn rFkk tc Hkh mDr edku dtZ ds cks> ls eqDr gksxk rcgh gjsd dks ysus dk gd gksxk dkj.k lnjgw edku eSaus ,UnkSj ijLij lgdkjh cSad esa fxjoh j[kdj vius iq= oklqnso rFkk okeu bUgksadks nwdku ds O;ogkj okLrs nh Fkh &&& MkW- vksd ds :i;ksa dk cks>k mDr edku ij vkt Hkh gSA**
15. Now how to determine the soundness of mind of the testator? What is the extent of liability on this house? The direction is. to the respondent No. 1 to pay to the specified persons in equal proportion as a result of which she would be left with only Rs. 5,000/-. If this is so, then how is the liability to be discharged? And if the direction was with regard to each son, then how Anant was excluded? And in this setting, how the house goes to the respondent No. 1? Where is the coherence and consistency? The reasonable inference deducible from this is that testator did not comprehend or was unable to understand several things. This state of affair seems to have all the makings of an Allenesque comedy. And a Coup de grace of Sorts, the respondent No. 1 wants the Court to accept the authenticity. Where does the needle of suspicion stop then? The person, i.e. Anant, who seems to have orchestrated the piece, felt shy of facing the rigour of cross-examination. Who would let the lambrequin and let the cat out of the bag? Lord Denning expressed himself in the following words -
"This does not mean that the Courts no longer insist on the binding force of the contracts deliberately made. It only means that they will not allow the words, in which they happen to be phrased, to become tyrannical masters. The Court qualifies the literal meaning of the words so as to bring them into accord with the true scope of the contract. Even if the contract is absolute in its terms, never the less if it is not absolute in intent, it will not be held absolute in effect."
16. In 1956, Lord Radcliffeput it elegantly when he said of the parties to an implied term-
"their actual persons should be allowed to rest in peace. In their place there rises the figure of the fair and reasonable man. And the spokesman of the fair and reasonable man, who represents after all no more than the anthropomorphic conception of justice, is and must be the Court itself". See Devis Contractors Ltd. v. Fareham Urban District Council, (1956) AC 696, 728."
17. The Apex Court threw enough light on the subject in AIR 1990 SC 396, Kalyan Singh v. Chhoti, in the following words:
"It has been said almost too frequently to require repetition that a will is one of the most solemn documents known to law. The executant of the 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 must be stated that the factum of execution and validity of the will cannot be determined merely by considering the evidence produced by the propounder. 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 circumstances brought out in the evidence or which appear from the nature and contents of the documents itself. It would be also open to the Court to look into surrounding circumstances as well as inherent improbabilities of the case to reach a proper conclusion. on the nature of the evidence adduced by the party."
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In AIR 1990 SC 1742, Ram Piari v. Bhagwant and Ors., it was held that "The soft corner for grand children or like ability for a son or daughter or their issues is not uncommon to our society. Rather at times it becomes necessary either to provide for the lesser fortunate or to avoid the property from passing out of the family. But when dispute arises between heirs of same degree, and the beneficiary even chooses to deny the blood ties, and that too unsuccessfully, then Court's responsibility of performing its duties carefully and painstakingly multiplies. Unfortunately it was not properly comprehended by any of the Courts, including the High Court which was swayed more by happy marriage of appellant a consideration which may have been relevant for testator but whole irrelevant for Courts as their function is to judge not to speculate. Although freedom to bequeath one's own property amongst Hindus is absolute both in extent and person, including rank stranger, yet to have testamentary capacity or a disposable mind what is required of propounder to establish is that the testator at time of disposition knew and understood the property he was disposing and persons who were to be beneficiaries of his disposition. Prudence, however, requires reason for denying benefit to those who too were entitled to bounty of testator as they had similar claims on him. Absence of it may not invalidate a will but it shrouds the disposition with suspicion as it does not give any inkling to the mind of testator to enable the Court to judge if the disposition was voluntary act. Taking active interest by propounder in execution of will raises another strong suspicion. In H. Venkatachala v. B. N. Thimmajamma, AIR 1959 SC 443, it was held to render the Will infirm unless the propounder cleared the suspicion with clear and satisfactory evidence. Mere execution of Will, by producing scribe or attesting witness or proving genuineness of testator's thumb impressions by themselves was not sufficient to establish validity of Will unless suspicious circumstances, usual or special, are ruled out and the Court's conscience is satisfied not only on execution but about its authenticity. See Kalyan Singh v. Smt. Chhoti (1989) 4 JT 439, AIR 1990 SC 396."
x x x x
18. I shall apply these tests to estimate whether Ex. P/1 is infirm? Now is the time to come to facts of the case as deposed to by the witnesses of both the sides. PW-1 Dinkar said that the Will, typed one, was there. It was read over by Anant. He does not say that on being read over Mahadeo accepted it to be correct. All that he says that he signed it on each page. More or less, to the same effect is the version of PW-2 Udaya. PW-3 Shridhar, PW-4 Shashikant, PW-5 Suman, PW-6 Avinash and PW-7 Yadav spoke of normal and fit mental condition. Now no one threw light on the undernoted facts and features -
(a) Who instructed for preparation of Will.? What is the place - house or office - for instructions?
(b) Who drafted it?
(c) Where was it typed?
(d) How the value was assessed at Rs. 30,000/- and who estimated?
(e) What is meant by distribution in equal proportion if the house was intended to be given to Suman?
(f) Why names of witnesses were not particularised in typed portion?
(g) Who is responsible for the size of the document extending to four pages ?
(h) Why Vasudeo was not permitted to participate in the proceedings when PW-2 Uday stated on oath that at the relevant time Mahadeo lived with Vasudeo andAnant (para 1).
(i) Who put the date (3-11-1974) on Ex. P/1?
19. The aforesaid features introduced the element of suspicion and are not explained by the propounder through trustworthy and unimpeachable evidence.
20. The respondent No. 1 Suman, the so called beneficiary feigned ignorance by vomitting out the following statement-
^^e`R;qi= fy[kk x;k ml le; eSa ogk¡ ekStwn ugha FkhA**
21. The evidence in oppugnation is not easily discardable. DW-1 Balwant asserted that Mahadeo had lost mental balance. He was bed ridden, robbed of his senses. The Notary Shanti Kumari Jain (DW-3) had come to attest Ex. D/1 (i.e. Ex. P/l). She had refused to do so as Mahadeo was not found in a fit mental condition. It is different matter that DW-3 failed to corroborate this version in absolute terms. The memory seems to have failed her. DW-2 Govind and DW-4 Vasudeo pledged their oath in proof of cachexy and unfitness. DW-1 was however, unable to throw light on Ex. D/1.
22. In matter of wills, the conscience of the Court must be fully satisfied. In the instant case, the following situations played on mind and definite doubts emerging thereform, were not dispelled
1) The counsel is not examined.
2) The instructions are not proved.
3) The typist is withheld.
4) Anant is kept away.
5) The date of typing of Ex. P/1 is not proved.
6) None of the other sons was examined by the propounder, barring Shridhar (PW-3).
7) The doctors, treating the testator, were not put in the witness-box.
8) The recitals in Ex. P/1, running in four pages, are vague at several places like what prompted to cancel earlier Will? What was the extent of loan on the house in question? From what source it would be paid? Who supplied the value of the house? What were other previous writings? Whether house would be sold and quantified proportion would be paid to sons by Suman?
9) Ex. P/1 is on plain paper.
10) It is neither registered, nor notaried.
11) The Will is of 3-11 -1974; the testator died on 5-1 -1975. No light is thrown on repyment of loan.
12) The application of probate was filed after inordinate delay on 8-8-1978 i.e. after about 3 years and 7 months from the date of death.
13) Initially there was no verification as required under Section 281 of the Act.
14) Two in-laws, figured as attesting witnesses. One of them had to be called from Dewas.
15) Surrounding circumstances spelt out suspicion-indicating want of genuineness and authenticity.
16) Ex. P/1 was denounced as forged. Yet no attempt was made to examine the Hand Writing Expert.
17) No evidence was led to prove incorporation of hand-written date on the document. Why was it not typed in the body of the document?
23. The Case is, thus, marred and barred by 'suspicion-galore'. Truth seems to have been so much polluted that falsehood has taken its place and truth buried under deep debris. The dextrous drama seems to have been staged with the willing assistance of two in-laws with obvious adroitness and alacrity only to throw dust in the eyes of law. It is this design which needs to be repelled. There has to be no antinomy between law and justice.
24. It needs to be mentioned that both the sides placed reliance on certain authorities but the particular facts and features of this case themselves spoke eloquently. After all, at bottom, it is a question of sufficiency or insufficiency of the evidence and its appreciation in proper perspective.
25. The parties have also produced some documents in this case. However, on consideration, I find that these documents do not advance the case Df~respondent No. 1 at all and I hold that these must be allowed to rest in peace.
26. It is seen that the appreciation of evidence by the Court below is rather superficial and perfunctory, and falls appallingly short of the standard of proof required in such matters. The evidence is not handled carefully and cautiously. It is noticed that the conclusion is sought to be reinforced by the undernoted observations contained in para 30 of the order-
"From the perusal of Will Ex. P/l it can be said that Mahadeo has kept in mind the interest of his sons and provided for them in the Will?"
Nothing can be farther from truth than this observation. What is the implication of this? What is the basis of documenting the figure of Rs. 30,000/-? And, was it intended that sons should get the benefit in equal proportion? And what about the loan part?
27. The conclusions are thus, not on firm foundation and, being conjectural, are too shaky tobe sustained. The execution as well as authenticity both are extremely doubtful, while disengaging truth from falsehood the Court has to be alive to the following features
(a) The testator was aged 88 years.
(b) The testator suffered from paralysis for about 20 years.
(c) Several particulars are omitted from Ex. VI1.
(d) The document Ex. P/1 does not even contain the endorsement that it was read over by Anant and accepted as correct by the executor.
(e) There is no medical evidence in proof of the physical and mental condition. The oral evidence does not inspire confidence. Ex.P/2 is not dependable.
28. The professional expertise in any documentation cannot convert nonsense into sense. Standard of scrutiny is certainly higher in such matters. The Probate Court seems to have shown no concern to this requirement.
29. In the ultimate analysis, differing from the findings recorded by the Court below, I hold that the propounder has failed to prove the execution and authenticity of the Will (Ex. P/1), by sufficient and satisfactory evidence. Suspicious circumstances, prodigious in number so listed above are not ruled out.
30. As scrutinised above, the evidence was found to be less than sufficient and satisfactory. The function of the Court is to judge, not to speculate. The essence of the analysis, as noted in the preceding para, to put it briefly but luculently, is that the propounder offered no evidence, as is summarised in para 12(2) above, to prove that Mahadeo understood the nature and effect of the disposition as contained in Ex. P/l, since none stated that he (Mahadeo) understood and accepted the contents as correct. Even in case of deposition in Court, an endorsement at the end to lend authenticity and credibility, is put as "read over and accepted correct" - R.O.A. C. This is not demonstrated by evidence. This flaw, fatal in effect, is also responsible for "menosyllabic-no'' to the prayer for probate. The order must, therefore, be anaesthetized.
31. It may be mentioned that the proof of mere signature, even if it were to be so assumed, would not be enough. Tersely stated, Court's conscience is not satisfied as regards execution and authenticity. Even, the remand at this distance of time, when doctors are said to be dead and counsel, whose name appears in Ex. P/l, is reported to be unwell, can offer no cure. And to cap it all, it would be unjust to compel the parties to remain lugged into this type of litigation under the umbrella of teasing illusion. The beginning must have its end.
32. Consequently, the order, impugned in this appeal, is held to be deciduous. It is accordingly, set aside. Sequel to this, the Probate Certificate, issued on 4th November, 1989, is also rendered sterile.
33. The appeal is, thus, allowed. The application presented for grant of probate shall stand dismissed.
34. In view of the peculiar facts and fluctuating fortunes, the parties are left to bear their own costs as incurred. The record of the Court below is directed to be returned.