Himachal Pradesh High Court
Sh. Pratap Singh & Ors vs Gurdev Singh & Ors on 18 August, 2023
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No.521 of 2007 Reserved on 01.08.2023 Date of decision: 18.08.2023 .
Sh. Pratap Singh & Ors. ......Appellants Versus Gurdev Singh & Ors. ......Respondents Coram:
Hon'ble Mr. Justice Rakesh Kainthla, Judge.
of Whether approved for reporting ?1 Yes.
For the appellants:
rt Mr. Bhupender Gupta, Senior
Advocate, with Ms. Rinki
Kashmiri, Advocate.
For the respondent: Mr. Surinder Saklani, Advocate,
for respondents No.1 to 3 and 4(a) to 4(d).
Respondents No.5(a) to 5(c) and 6(a) to 6(g) ex parte.
Rakesh Kainthla, Judge.
The present appeal is directed against the judgment and decree dated 18.11.2005, passed by learned Additional District Judge (Fast Track Court) Kangra at Dharamshala (hereinafter referred to as the First Appellate Court) in Civil Appeal No.138-N/04/01, vide which, 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.::: Downloaded on - 18/08/2023 20:34:44 :::CIS 2
judgment and decree, dated 11.06.2001, passed by learned Sub Judge (II) Nurpur, District Kangra, H.P. (hereinafter referred to as 'trial court') in Civil Suit No.65 of 1993, was .
reversed. (For the sake of convenience, the parties shall be referred to in the same manner, as they were arrayed before the learned trial court).
of
2. The plaintiffs filed the civil suit before the learned Trial Court for seeking possession by succession rt being the legal heirs of deceased Rangila. They asserted that Rangila was a co-owner in possession of 1/8th share of the land described in Para-1 of the plaint. The pedigree table of the parties is as under:-
Bhupa | Rangila |------------------------------| Smt. Kaushalya Smt. Satya Devi (died before the (alive) (plaintiff death of Rangila) No.6-daughter of deceased Rangila.
| Gurdev Singh, Sukhdev Singh, Surjit Singh, Tara Singh and Smt. Krishna Devi (Plaintiffs No.1 to 5 sons and daughter of Kaushalya) ::: Downloaded on - 18/08/2023 20:34:44 :::CIS 3
3. Rangila had two daughters, namely, Kaushalya Devi and Satya Devi. He had no son and his wife .
predeceased him. Smt. Kaushalya Devi, daughter of Rangila died in the year 1980, leaving behind plaintiffs no. 1 to 5, as her legal heirs. Smt. Satya Devi, the other daughter of Rangila, was alive on the date of filing of the suit.
of Plaintiffs no. 1 to 5 being he successors of Krishna Devi together and Satya Devi succeeded to the estate of Rangila rt to the extent of ½ share each. After the death of Rangila, the defendants got Mutation No.14 attested regarding the estate of Rangila on 25.03.1981 in their favour behind the back of the plaintiffs. No notice was ever issued to the plaintiffs. Rangila never executed any Will during his lifetime. The defendants have no right with the suit land and the mutation attested on the basis of Will is bad. The defendants dispossessed the plaintiffs in April 1981. The plaintiffs requested the defendants to admit their claim, but in vain. Hence, the suit was filed to seek relief of possession.
::: Downloaded on - 18/08/2023 20:34:44 :::CIS 44. The suit was opposed by filing a written statement, wherein the contents of the plaint were denied.
It was asserted that Rangila executed a Will during his .
lifetime in a sound disposing state of mind in the presence of the witnesses. The mutation of inheritance was attested based on Will. The suit was filed without any basis. Hence, it was prayed that the suit be dismissed.
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5. Replication denying the contents of the written rt statement and affirming those of the plaint, was filed.
6. Learned Trial Court framed the following issues on 06.12.1994:-
1. Whether the plaintiffs are the legal heirs of deceased Rangila Ram entitled to succeed, as alleged? OPP
2. Whether deceased Rangila executed a valid Will in favour of the defendants, as alleged? OPD.
3. Whether the plaintiffs have no cause of action, as alleged? OPD
4. Relief.
7. The parties were called upon to produce the evidence and plaintiffs examined Surjeet Singh, plaintiff ::: Downloaded on - 18/08/2023 20:34:44 :::CIS 5 no. 3 (PW-1) and tendered the documents in evidence. The defendants examined Baldev Singh (DW-1), Kesar Singh (DW-2), Chain Singh, (DW-3), Rajesh Kumar (DW-4) and .
Shiv Charan (DW-5). The plaintiffs examined Dumnu Ram (PW-2) and Vijay Pal (PW-3) in rebuttal.
8. The learned Trial Court held that Rangila had of executed a gift deed in favour of the plaintiffs, which shows the intention of Rangila to confer benefits upon the rt plaintiffs. The due execution of the Will was proved and there were no suspicious circumstances surrounding the execution of the Will. The deprivation of legal heirs does not amount to suspicious circumstance. The manner of writing of Will was also not suspicious. There was no need to examine the second attesting witness to the Will. The plaintiffs filed the suit to challenge the mutation and the execution of the Will and such suit is governed by Article 113 of the Limitation Act. The suit was beyond the period of limitation. Hence, Issue No. 1, was answered partly in the affirmative, issues no. 2 & 3 were answered in the affirmative and the suit was dismissed.
::: Downloaded on - 18/08/2023 20:34:44 :::CIS 69. Being aggrieved with the judgment and decree passed by the learned Trial Court, the plaintiffs filed an appeal. The learned First Appellate Court held that no .
reason was assigned by Rangila to exclude the plaintiffs from inheritance. The manner of writing the Will was suspicious because the space between the lines was not consistent. There were various contradictions in the of testimonies of witnesses. The mere execution of attestation of Will is not sufficient and the propounder has rt also to satisfy the conscience of the Court by explaining suspicious circumstances. The propounder failed to do so.
Hence, the appeal was allowed, judgment and decree passed by the learned Trial Court were set aside.
10. Being aggrieved and dissatisfied with the judgment and decree passed by the learned First Appellate Court, the present appeal has been filed asserting that the learned First Appellate Court erred in holding that the propounder had failed to explain the suspicious circumstances surrounding the execution of the Will. The suit was hopelessly barred by limitation as it was filed ::: Downloaded on - 18/08/2023 20:34:44 :::CIS 7 beyond 12 years from the date of the death of Rangila. The suspicious circumstances were not pleaded or proved. The learned Appellate Court failed to consider the gift deed .
executed by Rangila showing his intention to confer the benefits upon the beneficiaries. The execution of the Will was duly proved as per law, hence it was prayed that the present appeal be allowed and the judgment and decree of passed by learned First Appellate Court be set aside.
11. rt The appeal was admitted on the following substantial questions of law, vide order dated 19.03.2008:-
"1. When the plaintiffs filed the suit assailing the Will executed by Sh. Rangeela in favour of the defendants/appellants after lapse of more than 12 years from the date of death, was not the suit barred by limitation? Has not the Lower Appellate Court without reversing the findings of the Trial Court on Issue No. 3 acted beyond its jurisdiction in allowing the appeal?
2. Whether the Lower Appellate Court has committed grave illegality and irregularity in holding Ext. D-1, the Will executed by Sh. Rangeela in favour of the defendant- appellant to be suspicious and doubtful on such considerations which were beyond the scope of the pleadings and evidence?::: Downloaded on - 18/08/2023 20:34:44 :::CIS 8
Has not the Lower Appellate Court acted in excess of jurisdiction in ignoring the pronouncements of this Hon'ble Court and the Supreme Court of India to discard the Will Ex. D-1 on such considerations which .
did not cause any doubt or suspicion on such documents which were proved to have been duly executed and attested?"
12. I have heard Mr. Bhupender Gupta, learned Senior Counsel assisted by Ms. Rinki Kashmiri, for the of appellants and Mr. Surinder Saklani, learned counsel for respondents no. 1 to 3 and 4(a) to 4(d).
rt
13. Mr. Bhupender Gupta, learned Senior Counsel for the appellants submitted the plaintiffs had not pleaded any suspicious circumstance and learned Appellate Court was not justified in discarding the Will by finding the suspicious circumstances without any pleading. The suit was filed after the lapse of 12 years from the date of death of Rangila and the same was barred by limitation. The learned First Appellate Court had not considered the question of limitation and the judgment passed by the learned First Appellate Court suffers from infirmity.
Hence, he has prayed that the present appeal be allowed, ::: Downloaded on - 18/08/2023 20:34:44 :::CIS 9 judgment and decree passed by the learned Appellate Court be set aside and the judgment and decree passed by learned Trial Court be restored.
.
14. Mr. Surinder Saklani, learned counsel for the respondents No.1 1 to 3 and 4(a) to 4(d), supported the judgment and decree passed by the learned First Appellate of Court and submitted that the mere execution of the Will is not sufficient. Learned First Appellate Court had rightly rt held that the propounder is required to explain the suspicious circumstance surrounding the execution of the Will. The propounder had failed to do so and learned First Appellate Court was justified in setting aside the judgment and decree passed by the learned Trial Court. He further submitted that the suit was based on the title and the suit can be filed at any time unless there is a plea of adverse possession. Since no such plea was ever taken by the defendants; therefore, the learned Trial Court erred in holding that the suit was barred by limitation. Hence, he prayed that the appeal be dismissed.
::: Downloaded on - 18/08/2023 20:34:44 :::CIS 1015. I have given considerable thought to the rival submissions at Bar and have gone through the records carefully.
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Substantial Question of law No.1:-
16. Mr. Bhupender Gupta, learned Senior Counsel submitted that the learned Trial Court had rightly held that of the suit was required to be filed within 03 years. He further submitted that the suit was filed for setting aside the Will rt and also the Mutation, which is based on the Will. The plaintiffs were required to seek a declaration before getting the possession. The suit for declaration has to be filed within 3 years under Article 58 of the Limitation Act and the plaintiff cannot avoid the plea of limitation by clever drafting, hence he submitted that the suit be held to be beyond limitation.
17. Mr. Surinder Saklani, learned counsel representing the respondents submitted that the suit was based on the title and the same would be governed by Article 65 of the Limitation Act, 1963. The period of ::: Downloaded on - 18/08/2023 20:34:44 :::CIS 11 limitation will start running from the date when the other party pleads adverse possession. Since no adverse possession was pleaded in this case, therefore, learned .
Trial Court erred in holding the suit to be barred by limitation.
18. The applicability of the period of limitation in a of suit based on inheritance, was considered by the Division Bench of the Punjab & Haryana High Court in Mohinder rt Singh v. Kashmira Singh, 1984 SCC OnLine P&H 588=AIR 1985 P & H 215. It was held that the inheritance does not remain in abeyance and the property vests in the legal heirs after the death of the owner. When the heirs are out of possession, the suit has to be filed for possession and such a suit can only be defeated by taking a plea of adverse possession. The relevant paras of the aforesaid judgment read as under:-
"4. The only contention raised before us by Mr. G. R. Majithia, learned Senior Advocate, on behalf of the appellants, was that the plaintiff after the death of Niranjan Singh was required to file a suit for possession on the basis of inheritance within twelve years of the date of ::: Downloaded on - 18/08/2023 20:34:44 :::CIS 12 death of the last male holder failing which he was not entitled to a decree for possession as prayed for by him.
5. On the other hand, the learned counsel for the .
respondent submitted that no period was prescribed under the Limitation Act for filing a suit for possession on the basis of inheritance and that a suit for possession on the basis of title is governed by Article 65 of the Limitation Act, 1963, the relevant portion of which reads as under: -
of "Descriptio Period of Time from which n of suit limitatio period begins to run rt n
65. For Twelve When the possession possession years of the defendant of becomes adverse to immovable the plaintiff.
property or any interest therein based on the title
6. After hearing the learned counsel for the parties, I find force in the contention of the learned counsel for the respondent. It is well well-established principle of law that inheritance does not remain in abeyance and the heirs after the death of the last male holder succeed to the property of the deceased in accordance with law. Kashmira Singh, being the son of Niranjan Singh deceased, was entitled to ::: Downloaded on - 18/08/2023 20:34:44 :::CIS 13 1/3rd share in the land in dispute. After the death of Niranjan Singh, he was not required to file any suit for possession on the basis of inheritance. He had become a full owner of his share in the property on the death of the last .
male holder. For establishing his right as an heir, he was not required to file a suit. However, a situation may arise when the heir is a riot in possession of the property inherited. In that event, a suit for possession may have to be filed and on contest, the same may fail on the of defendant proving that he has perfected his title by adverse possession. It is such a type of suit, which is governed by the provisions of Article 65 rt of the Limitation Act. In this view of the matter, with respect, I find that the view taken by R. N. Mittal, J. in Naginder Singh's case (1983 Cur LJ (Civ and Cri) 432) (supra) that it is well settled that a suit for possession on the ground of inheritance should be filed within a period of twelve years from the date when the inheritance opens, does not lay down the correct law. The decisions to which reference has been made in para 9 of the judgment by the learned Judge, do not lay down any such rule. On the other hand, in all those decisions it was adverse possession of the defendants which was upheld. Thus I hold that no period of limitation is prescribed for filing a suit for possession on the basis of inheritance."
19. This judgment was followed by Hon'ble Punjab & Haryana High Court in Ganpat v. Lachhman, 2008 SCC ::: Downloaded on - 18/08/2023 20:34:44 :::CIS 14 OnLine P&H 200 = 2008(4) Civil Court Cases 298(P&H).
20. Similar view was taken in Rajkumari Amrit Kaur v. Maharani Deepinder Kaur, 2020 SCC Online P&H 680, .
wherein it was observed:
"229(v). Reference can be made to Mohinder Singh and another vs. Kashmira Singh, 1985 PunLJ 82 and Ganpat and another vs. Laxman and others, of 2008 150 PunLR 624 to show that the limitation to claim by adverse possession is to continue for 12 years under Article 65 of the Limitation Act to mature into the right of ownership. It is a well- rt established principle of law that inheritance does not remain in abeyance and the heirs after the death of the last male holder succeed to the property in accordance with law. In Mohinder Singh and another's case (supra), the view expressed in Nagender Singh's case, 1983 Cur. LJ 432 was over ruled and it was held that no period of limitation was prescribed for filing suit for possession on the basis of inheritance. The suit is on the basis of title which immediately vested in the plaintiff after the demise of Raja. It was for the defendants to claim inheritance or title on the basis of Will within limitation and the same was never done."
21. It was held in Pehalwan Singh v. Laddo Bibi, 2001 SCC OnLine P&H 571 that the person in whose favour the Will has been executed, will act adversely to the interest ::: Downloaded on - 18/08/2023 20:34:44 :::CIS 15 of natural heirs when the mutation is attested and the limitation will start commencing from that day. It was observed:
.
"[14] Plaintiff's suit was within time as the cause of action to them arose when Pehalwan Singh chose to act adversely to the interest of Sucha Singh and Jit Singh. Pehalwan Singh got the mutation entered on 18.3.1982. They got a of cause of action on 20.4.1984 when the mutation was sanctioned. Prior to 18.3.1982, the plaintiffs were believing the inheritance to have devolved upon them equally. There is no limitation so far rt as a suit based on inheritance is concerned. It is for the other party to plead and prove adverse possession. In this case, the adverse act commenced on 18.3.1982 or on 20.1.1984 and, therefore, the suit instituted in 1992 is well within limitation."
22. In the present case, the Mutation was attested on 25.03.1981, whereas the present suit was filed on 25.02.1993, i.e. within 12 years, therefore, the same is within limitation.
23. No contrary precedent was brought to the notice of the Court; hence, the plea that the suit was required to be filed within three years from the date of ::: Downloaded on - 18/08/2023 20:34:44 :::CIS 16 attestation of the mutation, cannot be accepted and as such, the first substantial question of law is answered accordingly.
.
Substantial Question of law No.2:
24. Learned First Appellate Court held that the Will was shrouded in suspicious circumstances. The statement of of attesting witness Kesar Singh was contradictory. The natural heirs were debarred and no reason for the same was rt given in the Will. The proof of due execution and attestation is not sufficient, as the conscience of the Court has to be satisfied by removing/explaining the suspicious circumstances surrounding the execution of the Will. The propounder had failed to remove/explain those circumstances; hence, the learned First Appellate Court refused to rely upon the Will.
25. It was submitted on behalf of the appellants that the learned First Appellate Court erred in discarding the Will based on the suspicious circumstances. No such circumstances were pleaded and learned Appellate Court ::: Downloaded on - 18/08/2023 20:34:44 :::CIS 17 was not justified in considering the suspicious circumstances. This submission has some force. It was laid down by Hon'ble Delhi High Court in S. Amarjit Singh v.
.
State, 1998 SCC OnLine Del 398 = AIR 1999 Delhi 33, that the suspicious circumstances have to be pleaded and proved and those cannot be urged for the first time before the Appellate court. It was observed:-
of "10. I am in agreement with the contention of Mr. rt Mariaputham that suspicious circumstances ought to have been pleaded and urged. Those cannot be pleaded or urged for the first time before the appellate Court specially when the foundation of such a suspicious circumstance was not laid before the Probate Court nor pleaded otherwise Supreme Court in the case of P.P.K. Gopalan Nambiar v. Balakrishnan Nambiar reported in 1995 Supp (2) SCC 664 : (AIR 1995 SC 1852) observed that any suspicious circumstance ought to be urged by the objector should be pleaded and proved. Without such pleading and proof, it cannot be taken into consideration. A similar view was expressed by the Apex Court in the case of Trojan and Co. Ltd. v. Nagappa Chettiar reported in 1953 SCR 789 : (AIR 1953 SC 235), as well as in the case of Srivenkataramana Devaru v. State of Mysore reported in 1958 SCR 895 : (AIR 1958 SC 255 at p.
263, para 14) where the Apex Court laid down ::: Downloaded on - 18/08/2023 20:34:44 :::CIS 18 the law as such :
"The object of requiring a party to put forward his pleas in the pleadings is to enable the opposite party to controvert .
them and to adduce evidence in support of his case. And it would be neither legal nor just to refer to evidence adduced with reference to a matter which was actually in issue and on the basis of that evidence, to come to a finding on a matter which was not in issue, and decide the rights of the of parties on the basis of that finding. We have accordingly declined to entertain this contention."
rt
11. In this view of the matter, this Court is not inclined to entertain such of suspicious circumstances, which were neither pleaded nor proved before the probate Court..."
26. In the present case, the plaintiffs did not plead any suspicious circumstance. It was only asserted in Para-
5 of the plaint that Rangila died intestate without leaving any Will. The defendants got Mutation No. 14 sanctioned in their favour in connivance with the revenue staff. No Will was executed by Rangila. Thus, the case of the plaintiffs was the denial of the execution of the Will. They never claimed that the Will was shrouded in suspicious circumstances and should be discarded due to suspicious ::: Downloaded on - 18/08/2023 20:34:44 :::CIS 19 circumstances.
27. The law relating to the execution of the Will was explained by the Hon'ble Supreme Court in Shivakumar v.
.
Sharanabasappa, (2021) 11 SCC 277 =2020 SCC Online SC 385 and it was held:-
12. For what has been noticed hereinabove, the relevant principles governing the adjudicatory of process concerning proof of a Will could be broadly summarised as follows:-
rt 12.1. Ordinarily, a Will has to be proved like any other document; the test to be applied being the usual test of the satisfaction of the prudent mind. Alike the principles governing the proof of other documents, in the case of Will too, the proof with mathematical accuracy is not to be insisted upon.
12.2. Since as per Section 63 of the Succession Act, a Will is required to be attested, it cannot be used as evidence until at least one attesting witness has been called for the purpose of proving its execution if there be an attesting witness alive and capable of giving evidence. 12.3. The unique feature of a Will is that it speaks from the death of the testator and, therefore, the maker thereof is not available for deposing about the circumstances in which the same was ::: Downloaded on - 18/08/2023 20:34:44 :::CIS 20 executed. This introduces an element of solemnity in the decision of the question as to whether the document propounded is the last Will of the testator. The initial onus, naturally, lies on the propounder but .
the same can be taken to have been primarily discharged on proof of the essential facts, which go into the making of a Will.
12.4. The case in which the execution of the Will is surrounded by suspicious of circumstances stands on a different footing. The presence of suspicious circumstances makes the onus heavier on rt the propounder and, therefore, in cases where the circumstances attendant upon the execution of the document give rise to suspicion, the propounder must remove all legitimate suspicions before the document can be accepted as the last Will of the testator.
12.5. If a person challenging the Will alleges fabrication or alleges fraud, undue influence, coercion et cetera in regard to the execution of the Will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the Will may give rise to the doubt or as to whether the Will had indeed been executed by the testator and/or as to whether the testator was acting of his own free will. In such eventuality, it is again a ::: Downloaded on - 18/08/2023 20:34:44 :::CIS 21 part of the initial onus of the propounder to remove all reasonable doubts in the matter.
12.6. A circumstance is "suspicious" when .
it is not normal or is 'not normally expected in a normal situation or is not expected of a normal person. As put by this Court, the suspicious features must be 'real, germane and valid' and not merely the 'fantasy of the doubting mind.' of 12.7. As to whether any particular feature or a set of features qualify as "suspicious"
would depend on the facts and circumstances of each case. A shaky or rt doubtful signature; a feeble or uncertain mind of the testator; an unfair disposition of property; an unjust exclusion of the legal heirs and particularly the dependants; an active or leading part in making of the Will by the beneficiary thereunder et cetera are some of the circumstances which may give rise to suspicion. The circumstances above-noted are only illustrative and by no means exhaustive because there could be any circumstance or set of circumstances, which may give rise to legitimate suspicion about the execution of the Will. On the other hand, any of the circumstances qualifying as being suspicious could be legitimately explained by the propounder. However, such suspicion or suspicions cannot be removed ::: Downloaded on - 18/08/2023 20:34:44 :::CIS 22 by mere proof of sound and disposing state of mind of the testator and his signature coupled with the proof of attestation. 12.8. The test of satisfaction of the judicial .
conscience comes into operation when a document propounded as the Will of the testator is surrounded by suspicious circumstance/s. While applying such a test, the Court would address itself to the solemn questions as to whether the testator had signed the Will while being of aware of its contents and after understanding the nature and effect of the rt dispositions in the Will?
12.9. In the ultimate analysis, where the execution of a Will is shrouded in suspicion, it is a matter essentially of the judicial conscience of the Court and the party which sets up the Will has to offer a cogent and convincing explanation of the suspicious circumstances surrounding the Will.
28. This position was reiterated in Raj Kumari v.
Surinder Pal Sharma, (2021) 14 SCC 500 = 2019 SCC OnLine SC 1747 and it was held:-
"9. We would first expound on the law relating to the execution and proof of Wills under the Indian Succession Act and the Evidence Act. Clause (c) of Section 63 of the Indian Succession Act reads as follows:::: Downloaded on - 18/08/2023 20:34:44 :::CIS 23
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)-(b) * * *
(c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark of to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or rt has received from the testator a personal acknowledgement 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.
10. As per the mandate of Clause (c), a Will is required to be attested by two or more witnesses each of whom should have seen the testator sign or put his mark on the Will or should have seen some other person sign the Will in his presence and by the direction of the testator or should have received from the testator a personal acknowledgement of his signature or mark, or of the signature of such other person. The Will must be signed by the witness in the presence of ::: Downloaded on - 18/08/2023 20:34:44 :::CIS 24 the testator, but it is not necessary that more than one witness should be present at the same time. No particular form of attestation is necessary. Thus, there is no prescription in the statute that the testator must necessarily sign .
the Will in the presence of the attesting witnesses only or that the attesting witnesses must put their signatures on the Will simultaneously, that is, at the same time, in the presence of each other and the testator.
11. The need and necessity for stringent of requirements of Clause (c) to Section 63 of the Indian Succession Act has been elucidated and explained rt in several decisions. In H. Venkatachala Iyengar v. B.N. Thimmajamma and Ors. AIR 1959 SC 443 dilating on the statutory and mandatory requisites for validating the execution of the Will, this Court had highlighted the dissimilarities between the Will which is a testamentary instrument vis--vis other documents of conveyancing, by emphasising that the Will is produced before the court after the testator who has departed from the world, cannot say that the Will is his own or it is not the same. This factum introduces an element of solemnity to the decision on the question where the Will propounded is proved as the Last Will or testament of the departed testator. Therefore, the propounder to succeed and prove the Will 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 ::: Downloaded on - 18/08/2023 20:34:44 :::CIS 25 dispositions; and (iv) that the testator had put his signature on the document of his own free will. Ordinarily, when the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing .
state of mind of the testator and his signature as required by law, courts would be justified in making a finding in favour of the propounder.
Such evidence would discharge the onus on the propounder to prove the essential facts. At the same time, this Court observed that it is of necessary to remove suspicious circumstances surrounding the execution of the Will and therefore no hard and fast or inflexible Rules rt can be laid down for the appreciation of the evidence to this effect.
12. In Jaswant Kaur v. Amrit Kaur and Ors. (1977) 1 SCC 369, it was held that suspicion generated by disinheritance is not removed by mere assertion of the propounder that the Will bears the signature of the testator or that the testator was in sound and disposing state of mind when the Will disinherits those like the wife and children of the testator who would have normally received their due share in the estate. At the same time, the testator may have his own reasons for excluding them. Therefore, it is obligatory for the propounder to remove all the legitimate suspicions before a Will is accepted as a valid last Will of the testator. Earlier, in Surendra Pal and Ors. v. Dr. (Mrs.) Saraswati Arora and Anr. (1974) 2 SCC 600, this Court had observed that the propounder should demonstrate that the Will was signed by the ::: Downloaded on - 18/08/2023 20:34:44 :::CIS 26 testator and at the relevant time, the testator was in a sound and disposing state of mind and had understood the nature and effect of the dispositions, that he had put his signature on the testimony of his own free will and at least .
two witnesses have attested the Will in his presence. However, suspicion may arise where the signature is doubtful or when the testator is of feeble mind or is overawed by powerful minds interested in getting his property or where the disposition appears to be unnatural, improbable of and unfair or where there are other reasons to doubt the testator's free will and mind. The nature and quality of proof must be rt commensurate with such essentiality so as to remove any suspicion, which a reasonable or prudent man may, in the prevailing circumstances, entertain. Where coercion and fraud are alleged by an objector, the onus is on him to prove the same and on his failure, the probate of the Will must necessarily be granted when it is established that the testator had full testamentary capacity and had in fact executed the Will with a free will and mind. In Rabindra Nath Mukherjee and Anr. v. Panchanan Banerjee (Dead) by L.Rs. and Ors. (1995) 4 SCC 459, this Court had observed that the doubt would be less significant if the Will is registered and the Sub- Registrar certifies that the same was read over to the executor who, on doing so, had admitted the contents. In each case, the court must be satisfied as to the mandate and requirements of Clause (c) to Section 63 of the Indian Succession Act.
::: Downloaded on - 18/08/2023 20:34:44 :::CIS 2713. In Jagdish Chand Sharma v. Narain Singh Saini (Dead) Through L.Rs. and Ors. (2015) 8 SCC 615, this Court referring to Section 63 of the Indian Succession Act had illustrated that the provisions contemplate that in order to validly .
execute the Will, the testator would have to sign or affix his mark to it or the same has to be signed by some other person in his presence and on his direction. Further, the signature or mark of the testator or signature of the person signing for him has to be so placed that it was intended of to give effect to the writing as a Will. Section 63 mandates that the Will should be attested by two or more witnesses each of whom has seen the rt testator sign or affix his mark to it or has seen some other person sign it in the presence and on the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person and each of the witnesses has signed the Will in the presence of the testator, though it is not necessary that more than one witness be present at the same time and that no particular form of attestation is necessary. The execution and attestation of the Will are mandatory in nature and any failure and deficiency in adhering to the essential requirements would result in the invalidation of the instrument of disposition of the property.
29. Similar is the judgment in Murthy v. C. Saradambal, (2022) 3 SCC 209 = 2021 SCC Online SC 1219, wherein it was observed:
::: Downloaded on - 18/08/2023 20:34:44 :::CIS 28"30. Before considering the correctness of the impugned judgment of the Division Bench of the High Court, it would be useful to refer to the following judgments of this Court on proof of wills:
.
(a) One of the celebrated decisions of this Court on proof of a will, reported in AIR 1959 SC 443 is in the case of H. Venkatachala Ivenger vs. B.N. Thimmaiamma wherein this Court has clearly distinguished the nature of proof of required for a testament as opposed to any other document. The relevant portion of rt the said judgment reads as under:-
"18. The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68, the Evidence Act are relevant for this purpose. Under Section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such handwriting under Sections 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals ::: Downloaded on - 18/08/2023 20:34:44 :::CIS 29 with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness .
at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof, which must be satisfied by the party who relies on a document in a of court of law. Similarly, Sections 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides rt that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression "a person of sound mind" in the context. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to be the last ::: Downloaded on - 18/08/2023 20:34:44 :::CIS 30 will of the testator has to be decided in the light of these provisions. Has the testator signed the will? Did he understand the nature and effect of the dispositions in the will? Did he .
put his signature to the will knowing what it contained? Stated broadly it is the decision of these questions, which determines the nature of the finding on the question of the proof of will. It would prima facie be true of to say that the will has to be proved like any other document except as to the special requirements of rt attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills, it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters."
In fact, the legal principles with regard to the proof of a will are no longer res integra. Section 63 of the Indian Succession Act, 1925 and Section 68 of the Evidence Act, 1872, are relevant in this regard. The propounder of the will must examine one or more attesting witnesses and the onus is placed on the propounder to remove all suspicious circumstances with regard to the ::: Downloaded on - 18/08/2023 20:34:44 :::CIS 31 execution of the will. In the above- noted case, this Court has stated that the following three aspects must be proved by a propounder:-
.
"(i) that the will was signed by the testator in a sound and disposing state of mind duly understanding the nature and effect of disposition and he put his signature on the document of his own free will, and of
(ii) when the evidence adduced in support of the will is rt disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, courts would be justified in making a finding in favour of propounder, and
(iii) if a will is challenged as surrounded by suspicious circumstances, all such legitimate doubts have to be removed by cogent, satisfactory and sufficient evidence to dispel suspicion. In other words, the onus on the propounded can be taken to bed is charged on proof of the essential facts indicated therein."::: Downloaded on - 18/08/2023 20:34:44 :::CIS 32
(b) In Jaswant Kaur v. Amrit Kaur and others 1977 1 SCC 369, this Court pointed out that when a will is allegedly shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant. What generally is an .
adversarial proceeding, becomes in such cases, a matter of the Court's conscience and then, the true question which arises for consideration is, whether, the evidence let in by the propounder of the will is such as would satisfy the conscience of the Court that the will was duly of executed by the testator. It is impossible to reach such a satisfaction unless the party, which sets up the will offers a cogent and convincing rt explanation with regard to any suspicious circumstance surrounding the making of the will.
(c) In Bharour Singh and others v. Shamsher Singh 2009 (3) SCC 687, at Para 23, this Court has narrated a few suspicious circumstances, as being illustrative but not exhaustive, in the following manner:-
"23. Suspicious circumstances like the following may be found to be surrounded the execution of the will:
(i) The signature of the testator may be very shaky and doubtful or not appear to be his usual signature.
(ii) The condition of the testator's mind may be very feeble and debilitated at the relevant time.
(iii) The disposition may be unnatural, improbable or unfair in the light of ::: Downloaded on - 18/08/2023 20:34:44 :::CIS 33 relevant circumstances like the exclusion of or absence of adequate provisions for the natural heirs without any reason.
.
(iv) The dispositions may not appear to be the result of the testator's free will and mind.
(v) The propounder takes a prominent part in the execution of the will.
(vi) The testator used to sign blank of papers.
(vii) The will did not see the light of the rt day for long.
(viii) Incorrect recitals of essential facts."
It was further observed that the circumstances narrated hereinbefore are not exhaustive. Subject to offering a reasonable explanation, the existence thereof must be taken into consideration for the purpose of arriving at a finding as to whether the execution of the will had been duly proved or not. It may be true that the Will was a registered one, but the same by itself would not mean that the statutory requirements of proving the will need not be complied with.
(d) In Naranjan Umeshchandra Joshi v. Mrudula Jyoti Rao, (2006) 13 SCC 433, in Paras 34 to 37, this Court has observed as under:-
"34. There are several circumstances which would have been held to be described by this Court as suspicious circumstances:::: Downloaded on - 18/08/2023 20:34:44 :::CIS 34
(i) when a doubt is created in regard to the condition of mind of the testator despite his signature on the will;
.
(ii) When the disposition appears to be unnatural or wholly unfair in the light of the relevant circumstances;
(iii) where the propounder himself takes a prominent part in the execution of the will which confers of on him substantial benefit.
35. We may not delve deep into the decisions cited at the Bar as the question has recently been considered by this Courts rt in B. Venkatamuni v. C.J. Ayodhya Ram Singh [(2006) 13 SCC 449], wherein this Court has held that the court must satisfy its conscience as regards due execution of the will by the testator and the court would not refuse to probe deeper into the matter only because the signature of the propounder on the will is otherwise proved.
36. The proof of a will is required not as a ground of reading the document but to afford the Judge reasonable assurance of it as being what it purports to be.
37. We may, however, hasten to add that there exists a distinction where suspicions are well founded and cases where there are only suspicions alone. The existence of suspicious circumstances alone may not be sufficient. The court may not start with suspicion and it should not close its mind to ::: Downloaded on - 18/08/2023 20:34:44 :::CIS 35 find the truth. A resolute and impenetrable incredulity is not demanded from the Judge even if there exist circumstances of grave suspicion."
.
(e) This Court in Anil Kak v. Sharada Raje, [(2008) 7 SCC 695], held as under:-
52. Whereas execution of any other document can be proved by proving the writings of the document or the contents of it as also the execution thereof, in the event of there exist suspicious circumstances the party seeking to obtain probate and/or letters of administration with a copy of the rtwill annexed must also adduce evidence to the satisfaction of the court before it can be accepted as genuine.
53. As an order granting probate is a judgment in rem, the court must also satisfy its conscience before it passes an order.
54. It may be true that deprivation of a due share by (sic to) the natural heir by itself may not be held to be a suspicious circumstance but it is one of the factors, which is taken into consideration by the courts before granting probate of a will.
55. Unlike other documents, even animus attestandi is a necessary ingredient for proving the attestation."
(f) Similarly, in Leela Rajagopal and others v. Kamala Menon Cocharan and others, [(2014) 15 SCC 570], this Court opined as under:-
::: Downloaded on - 18/08/2023 20:34:44 :::CIS 36"13. A will may have certain features and may have been executed in certain circumstances, which may appear to be somewhat unnatural. Such unusual features appearing in a will or the .
unnatural circumstances surrounding its execution will definitely justify scrutiny before the same can be accepted. It is the overall assessment of the court on the basis of such scrutiny; the cumulative effect of the unusual features and of circumstances which would weigh with the court in the determination required to be made by it. The judicial verdict, in the last rt resort, will be on the basis of a consideration of all the unusual features and suspicious circumstances put together and not on the impact of any single feature that may be found in a will or a singular circumstance that may appear from the process leading to its execution or registration. This is the essence of the repeated pronouncements made by this Court on the subject including the decisions referred to and relied upon before us"
30. The present appeal has to be decided as per the parameters laid down by the Hon'ble Supreme Court.
31. Baldev Singh (DW-1) wrote the Will. He stated that Will (Ext. D-1) was written by him at the instance of Rangila Ram. It was read over and explained to him and he ::: Downloaded on - 18/08/2023 20:34:44 :::CIS 37 had acknowledged its correctness. He put his thumb mark on the Will. Gurdev Singh and Kesar Singh Lamberdar attested the Will in the presence of Rangila Ram. He .
identified the signatures of witnesses as well as his signatures on the Will.
32. The learned First Appellate Court discarded his of testimony on the ground that he was not a professional document writer and no reason was assigned why Rangila rt should have asked him to write the Will. The reason assigned by the learned First Appellate Court to discard the testimony of this witness was not proper, as there is no requirement of law that the Will is to be written by a professional document writer. Baldev Singh admitted in his cross-examination that his Panchayat and Panchayat of Rangila are located adjacent to each other. Therefore, it was natural that he should have been called. Thus, the reason assigned by the learned Appellate Court for discarding his testimony is not acceptable.
33. Kesar Singh Lamberdar ( DW-2) attested the ::: Downloaded on - 18/08/2023 20:34:44 :::CIS 38 Will. He stated that he had put his signatures on the Will (Ext. D-1). The Will was executed by Rangila. Baldev Singh wrote the Will at the instance of Rangila and it was read .
over and explained to Rangila, who put his thumb mark in the token of the acknowledgment of the correctness of the Will in his presence and in the presence of Gurdev Singh.
of
34. The learned Appellate Court held that there is contradiction in his testimony and the contents of the Will, rt inasmuch as, he had mentioned that no reference was made to the daughters in his Will, whereas, Will mentions the daughters of Rangila.
35. The Will was written on 05.01.1981. The statement of this witness was recorded on 21.09.1999 after the lapse of 18 years. The human memory fails with time and does not behave like a video recorder; therefore, the contradiction is bound to occur regarding the details and the same is not sufficient to invalidate the Will. In any case, it was laid down by the Hon'ble Supreme Court in Meenakshiammal v. Chandrasekaran, (2005) 1 SCC 280 = ::: Downloaded on - 18/08/2023 20:34:44 :::CIS 39 2004 SCC OnLine SC 1397 that the suspicion must be one inherent in the transaction itself. It is not a suspicion that arises on conflict of testimonies. It was observed:
.
"20. In the case of Ryali Kameswara Rao v. Bendapudi Suryaprakasarao AIR 1962 AP 178 the Court while discussing the provisions of Section 63 of the Succession Act, 1925, has held that the suspicion alleged must be one of inherent in the transaction itself and not the doubt that may arise from a conflict of testimony which becomes apparent on an investigation of the transaction. That rt suspicious circumstances cannot be defined precisely. They cannot be enumerated exhaustively. They must depend upon the facts of each case. When a question arises as to whether a will is genuine or forged, normally the fact that nothing can be said against the reasonable nature of its provisions will be a strong and material element in favour of the probabilities of the will. Whether a will has been executed by the testator in a sound and disposing state of mind is purely a question of fact, which will have to be decided in each case on the circumstances disclosed and the nature and quality of the evidence adduced. When the will is alleged to have been executed under undue influence, the onus of proving undue influence is upon the person making such allegation and the mere presence of motive and opportunity are not enough."::: Downloaded on - 18/08/2023 20:34:44 :::CIS 40
36. Similarly, it was held by this Court in Shakuntala Devi v. Savitri Devi, 1996 SCC OnLine HP 12= AIR 1997 HP 43 that contradictions in the statements of witnesses do not .
amount to suspicious circumstances. It was held:
"23. The District Judge has relied heavily on the contradictions appearing in the depositions of DW.1 Satya Devi, DW. 2 Keshav Ram, DW 3 Sher Singh and DW.4 Amar Singh with regard to the of execution of the Will. Such contradictions, which are of a minor nature, will not be a suspicious circumstance. The memory fades rt away with the passage of time and when evidence is being given after a lapse of six years, the witnesses cannot be expected to make a parrot-like statement on each and every minor aspect of the cast Therefore, the District Judge has erred in relying upon such minor contradictions coming in the statements of various witnesses."
37. Learned First Appellate Court also held that Kesar Singh Lamberdar belongs to a different village and this is a suspicious circumstance. This cannot be accepted.
It was laid down by this Court in Naudha alias Budhia Versus Sudershan Singh 1998 (1) S.L.C. 388 that the witnesses be-
longing to a different village is not a suspicious circum-
::: Downloaded on - 18/08/2023 20:34:44 :::CIS 41stance to invalidate the execution of the Will. It was ob-
served:
12. In Ishwar Dutt v. Smt. Leela Devi and others, .
1997 (1) SLJ 684 a question arose whether the joining of attesting witnesses who did not belong to the village of the testator would be a suspicious circumstance. It was held that the mere fact that attesting witnesses are not from the village of the testator would not be a of suspicious circumstance.
13. The High Court of Punjab and Haryana also in Tara Singh v. Smt Shanti and others, 1988 PLJ rt 77 has held that it is not by itself sufficient to disbelieve the witnesses or create any suspicion if the attesting witnesses of the will are not from the village of the testator.
38. Similarly, it was held in Jagdish v. Shibi Devi, 2019 SCC OnLine HP 1008 = 2019 (3) Civil Court Cases 564, that a Will cannot be doubted on the ground that the attest-
ing witnesses did not belong to the village of the testator.
39. It was submitted that Baldev Singh is known to the defendants (beneficiaries) and this is also a suspicious circumstance. This submission is not acceptable. It was laid down in Prem Singh v. Padam Singh, 1999 SCC OnLine HP 40 = AIR 2000 H.P. 103 that generally ::: Downloaded on - 18/08/2023 20:34:44 :::CIS 42 known persons are associated as witnesses and there is nothing suspicious in it. It was observed:
"26. The plaintiff also relied on the alleged .
suspicious circumstance that the marginal witnesses of the Will Ex.DW-2/A are closely related to defendant Padam Singh, the beneficiary under the Will. This circumstance cannot be treated as suspicious because the execution of a Will in the natural course will of be attested by known persons, which may include the near relations of the beneficiary. There is no evidence whatsoever to show that defendant Padam Singh himself was present rt at the time of the execution of the Will and acted to bring about the Will in a manner which may render it a suspicious document. The learned District Judge has, therefore, rightly concluded that the Will in question is duly executed valid Will of deceased Nanda."
40. Similar is the judgment in Bhago vs. Ram Kumar RSA 368 of 1996 decided on 30.06.2008, wherein it was held:
"The mere fact that he was related to the defendants in one way or the other, is not sufficient to hold that he could not have been associated as an attesting witness. The Will is normally written in the presence of one of the persons known to the executants and it is only at times that unknown persons are associated if they are holding some office of the Panchayat and are other respectable persons ::: Downloaded on - 18/08/2023 20:34:44 :::CIS 43 of the locality. The mere fact of joining DW-3 Siri Ram related to the defendants distantly, cannot be said to be a suspicious circumstance which has been clearly discussed by the learned first Appellate Court."
.
41. This position was also recognized by the Hon'ble Supreme Court in Indu Bala Bose Versus Manindra Chandra Bose (1982) 1 SCC 20, wherein it was held:
of "With regard to the circumstance that the scribe and the attesting witnesses were either employees or friends or relations of the propounders' group, the answer is simple. rt Nobody would normally invite a stranger or a foe to be a scribe or a witness of a document executed by or in his favour; normally a known and reliable person, a friend or a relation is called for the purpose. The same argument applies to P.W. 3 who is said to be a partisan witness for the reason that he was the testator's advocate. But there is nothing to show that he was not telling the truth in his deposition."
42. Hence, the Will is not suspicious because the scribe and witnesses were known to the beneficiaries.
43. Baldev Singh stated in his cross-examination that he was called by Parkash on 05.01.1981, who told him ::: Downloaded on - 18/08/2023 20:34:44 :::CIS 44 that Rangila was calling him. Kesar Singh, (DW-2) also stated in his cross-examination that he was called by Parkash, Gurdev, Gian, Partap, and Nathu, who were .
present in the house. It was submitted that the presence of the beneficiaries and their active participation is a suspicious circumstance. This is not acceptable. It was laid down by Punjab & Haryana High Court in Tirath Singh Ver-
of sus Sajjan Singh 1997 (2) Civil Court Cases 299 (P&H) that the mere fact that the beneficiary accompanied the testator rt from the village and was present when the Will was being scribed is no ground to make the execution of the Will sus-
picious. It was held:
Kartar Singh (D.W.3) also stated in his cross- examination that when they started from the village, he, Tirath Singh, Ralla, Harbhajan Singh, and Karnail Singh were together. According to the learned counsel for the respondent, it clearly goes to show that Tirath Singh and Karnail Singh appellants had taken an active part in getting the Will executed from Ralla in their favour. There is no substance in this contention. It was not elicited from Gobind Parshad (D.W.2) and Kartar Singh (D.W.3) as to how and in what manner Tirath Singh and Karnail Singh had taken an active part in the ::: Downloaded on - 18/08/2023 20:34:44 :::CIS 45 execution of the Will or that Ralla was influenced by them to execute that Will in their favour. The mere fact that at the time of scribing the Will, they were present or that they had accompanied Ralla from the village to the Court .
compound where the Will was scribed, is not sufficient to draw an inference that they had exercised any undue influence on Ralla and under the influence, Ralla had executed the Will in their favour.
44. Similarly, it was held in Leela v. Drumti Devi, of 2000 SCC OnLine HP 20 = AIR 2000 HP 7 that the mere presence of the beneficiary or his accompanying the rt testator will not establish the exercise of undue influence in the execution of the Will. It was held:
"Otherwise, also, the presence of the beneficiary or such beneficiary accompanying the testator for the execution of a Will, would not show that undue influence was exercised by the beneficiary in the execution of the Will. The Will was registered on the same day and the endorsement of the Sub-Registrar shows that the contents of the Will were read over and explained to Shri Dilu by the Sub-Registrar who admitted the contents to be correct. It is now well settled that the mere presence of the beneficiary or their accompanying the testator would not show the exercise of undue influence in the execution of the Will (See Tirath Singh v. Sajjan Singh (Died) through his L.Rs. 1998 (1) SLJ ::: Downloaded on - 18/08/2023 20:34:44 :::CIS 46
232). In Gun Parkash v. Bhola Nath, AIR 1997 Him Pra 27, the Will was scribed in the presence of family members of the beneficiary. The testator was an old lady and natural heirs were deprived by her. In this context, it was observed :
.
"No doubt, the presence of the family members of the defendants has been stated to be there by the plaintiff's witnesses, but that by itself will not make the Will suspicious unless something more than that is established. The Will in of question in the instant case is registered and the deceased was identified by an rt Advocate before the Sub-Registrar. Simply because the testator was an old lady and natural heirs have been deprived by her is not by itself suspicious circumstance to discard the same......."
23. It may be remembered that deceased testator Shri Dilu was living at the relevant time with defendant No. 1 and there is nothing unnatural in the defendant, the beneficiary, being present at the time of execution of the Will.
45. Similarly, it was held in Kartar Chand Versus Mathura Dass 2004 Latest HLJ 105 that the mere fact that the beneficiary was accompanying the testatrix who was at an advanced age is not a suspicious circumstance. It was held:
10. This Court in Smt. Leela alias Bali Devi (supra) relying upon Tirath Singh and others v. Sajjan Singh (Died) through his L.Rs. and others, 1998(1) ::: Downloaded on - 18/08/2023 20:34:44 :::CIS 47 S.LJ. 232 and Gun Parkash and another v. Bhola Nath, AIR 1997 H.P 27, held that the fact that the beneficiary accompanied the testator for the execution of a Will, would not show that undue influence was exercised by the beneficiary in the .
execution of the Will. The presence of the family members of the beneficiary in itself will not make the Will suspicious unless something more than that is established. Simply because the testatrix was an old lady, suffering from tuberculosis and the fact that her natural heirs of were deprived in itself will not be a suspicious circumstance to discard the Will.
46. Therefore, the submission that the beneficiaries rt had taken active participation in the Will making it bad cannot be accepted.
47. It was submitted that Will is not signed by Gurdev Singh and due attestation of the Will has not been proved. It appears from the perusal of the Will that Gurdev Singh had signed the Will; thereafter his parentage and other details were mentioned. This can be deciphered from bare perusal of the Will, inasmuch as, the handwriting of the person, who wrote the name of Gurdev Singh is different from the handwriting of the person, who wrote the parentage and the address. Baldev Singh and ::: Downloaded on - 18/08/2023 20:34:44 :::CIS 48 Kesar Singh Lamberdar have consistently stated that the witnesses had put their signatures in the presence of Rangila. It was suggested to Baldev Singh that the thumb .
mark on the Will was not put by Rangila Ram and the Will was prepared after the death of Rangila in connivance with the defendants and the witnesses. A similar suggestion was given to Kesar Singh Lamberdar. It is apparent from of the cross-examination of these witnesses that plaintiffs did not dispute the fact that attesting witnesses had put rt their signatures. They had only disputed the thumb mark of Rangila. Hence, the submission that the due execution of the Will is not proved is not acceptable.
48. The defendants had also proved a gift deed (Ext.
D-2), which bore the thumb mark of the Rangila. No efforts were made by plaintiffs to get the thumb mark on the gift deed compared with the thumb mark on the Will.
Therefore, the suggestion given on their behalf that the thumb mark on the Will was not put by Rangila, has not been substantiated by the report of the Expert.
::: Downloaded on - 18/08/2023 20:34:44 :::CIS 4949. Learned Appellate Court held that natural heirs were debarred and this is a suspicious circumstance. This submission cannot be accepted because the whole idea of .
executing the will is to interfere with the natural line of succession. It was laid down by this Court Naudha alias Bidhia Vs. Sudarshan Singh & Another 1998 (1) S.L.C. 388, that exclusion of the natural heir from the Will is not a sus-
of picious circumstance and no reason is required to be as-
signed for such exclusion. It was observed:
rt "10. The Apex Court in Rabindra Nath Mukherjee and another v. Panchanan Banerjee (Dead) by LRs. and others, 1995 (4) SLJ 2824 has held that deprivation of natural heirs is not by itself a suspicious circumstance because the whole idea behind the execution of the will is to interfere with the normal line of succession. Therefore, the natural heirs would be debarred in every case of a will. It may be that in some cases such natural heirs are fully debarred while in some cases they may be debarred only partially.
Relying on the above ratio of the Apex Court, the mere fact that the plaintiff, being a son and natural heir, was debarred from succession would not be a suspicious circumstance surrounding the execution of the will Ex. DW- 2/A. Besides, it may be stated that the two courts below have concurrently held the plaintiff to be ::: Downloaded on - 18/08/2023 20:34:44 :::CIS 50 not the son of the deceased.
This Court in Shakuntala Devi v. Savitri Devi, AIR 1997 HP 43 has held that under the law, no reasons are required to be given by a testator for .
disinheriting one or more of his natural legal heirs while making the will. Therefore, in the present case as well, failure on the part of the deceased to record reasons for dis-inheriting the plaintiff from succession would not render the will Ex. DW-2/A as doubtful."
of
50. It was laid down by this Court in Prem Singh alias Prema Vs. Satya Devi 2021 Lawsuit HP 702 that a Will rt cannot be said to be bad due to unequal distribution of the assets. It was held:-
26. At this stage, it would be apt to take note of the latest judgment of the Hon'ble Apex Court passed in Kavita Kanwar vs. Pamela Mehta and Others,2020 SCCOnlineSC 464, wherein it has been held that Will cannot be viewed with suspicion only because the appellant had played an active role in the execution thereof though she is the major beneficiary; or only because the respondents were not included in the process of execution of the Will; or only because of unequal distribution of assets; or only because there is want of clarity about the construction to be carried out by the appellant;
or only because one of the attesting witnesses being acquaintance of the appellant; or only because there is no evidence as to who drafted ::: Downloaded on - 18/08/2023 20:34:44 :::CIS 51 the printed part of the Will and the note for writing the opening and concluding passages by the testatrix in her own hand; or only because there is some discrepancy in the oral evidence led by the appellant; or only because .
of any other factor taken into account by the Courts or relied upon by the respondents. In the aforesaid judgment, Hon'ble Apex Court has held that an individual factor may not be decisive but, if after taking all the factors together, the conscience of the Court is not of satisfied that the Will in question truly represents the last wish and propositions of the testator, the Will cannot get the approval of the rt Court. The Hon'ble Court has held as under:-
"28. There is no doubt that any of the factors taken into account by the Trial Court and the High Court, by itself and standing alone, cannot operate against the validity of the propounded Will. That is to say that, the Will in question cannot be viewed with suspicion only because the appellant had played an active role in the execution thereof though she is the major beneficiary; or only because the respondents were not included in the process of execution of the Will; or only because of unequal distribution of assets; or only because there is want of clarity about the construction to be carried out by the appellant; or only because one of the attesting witnesses being an acquaintance of the appellant; or only because there is ::: Downloaded on - 18/08/2023 20:34:44 :::CIS 52 no evidence as to who drafted the printed part of the Will and the note for writing the opening and concluding passages by the testatrix in her own hand; or only because there is some discrepancy in the .
oral evidence led by the appellant; or only because of any other factor taken into account by the Courts or relied upon by the respondents. The relevant consideration would be about the quality and nature of each of these factors and of then, the cumulative effect and impact of all of them upon making of the Will with the free agency of the testatrix. In other rt words, an individual factor may not be decisive but, if after taking all the factors together, the conscience of the Court is not satisfied that the Will in question truly represents the last wish and propositions of the testator, the Will cannot get the approval of the Court; and, another way round, if on a holistic view of the matter, the Court feels satisfied that the document propounded as Will indeed signifies the last free wish and desire of the testator and is duly executed in accordance with the law, the Will shall not be disapproved merely for one doubtful circumstance here or another factor there."
[27] Reliance is also placed upon Rabindra Nath Mukherjee vs. Panchanan Banerjee (Dead) by LRs and Others, 1995 4 SCC 459, wherein Hon'ble Apex Court has held that deprivation of the ::: Downloaded on - 18/08/2023 20:34:44 :::CIS 53 natural heirs by the testator/testatrix cannot be said to be a suspicious circumstance because the whole idea behind the execution of the Will is to interfere with the normal line of succession. The Hon'ble Court has held as under:-
.
"3. A perusal of the two impugned judgments shows that the following were regarded as suspicious circumstances:
(1) Deprivation of the natural heirs by the testatrix.
of (2) Identification of the testatrix before the Sub-registrar by an Advocate of Calcutta who had acted as a lawyer of one of the executors in rt some cases.
(3) The witnesses to the documents were interested in the appellants. (4) Active part played by one Subodh, a close relation of Rabindra, one of the executors, in getting execution of the will. He has been described as ubiquitous.
4. As to the first circumstance, we would observe that this should not raise any suspicion because the whole idea behind the execution of the will is to interfere with the normal line of succession. So natural heirs would be debarred in every case of will; of course, it may be that in some cases they are fully debarred and in others only partially. As in the present case, the two executors are sons of a half-::: Downloaded on - 18/08/2023 20:34:44 :::CIS 54
blood brother of Saroj Bala, whereas the objector's descendants of a full-blood sister, the disinheritance of the latter could not have been taken as a suspicious circumstance when some of her .
descendants are even beneficiaries under the will.
28. Reliance is also placed upon the judgment of the Hon'ble Apex Court in Smt. Sushila Devi vs. Pandit Krishna Kumar Missir and Others, 1971 3 SCC 146, wherein the Hon'ble Court has held of as under:-
"5. Prima facie, the circumstance that no rtbequest was made to the appellant by the testator would make the will appear unnatural but if the execution of the will is satisfactorily proved, the fact that the testator had not bequeathed any property to one of Ms children cannot make the will invalid. If the bequest made in a will appears to be unnatural then the court has to scrutinise the evidence in support of the execution of the will with a greater degree of care than usual because every person must be presumed to act in accordance with the normal human behaviour but there is no gainsaying the fact that some individuals do behave in an abnormal manner. Judges cannot impose their own standard of behaviour on those who execute wills. As observed by this Court in H. Venkatachala Iyengar v. B.N. Thimmaiamma, the mode of proving a will ::: Downloaded on - 18/08/2023 20:34:44 :::CIS 55 does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed by Section 63 of the Indian Succession Act. Proof, in either case, .
cannot be mathematically precise and certain and so the test should be one of satisfaction of a prudent mind in such matters. The onus must be on the propounder and in the absence of suspicious circumstances surrounding the of execution of the will, proof of testamentary capacity and signature of the testator as required by law may be sufficient to rt discharge the onus. Where, however, there are suspicious circumstances the onus would be on the propounder to explain them to the satisfaction of the court before the will can be accepted as genuine."
29. Reliance is also placed upon the judgment of the Hon'ble Apex Court in Pushpavathi and Others vs. Chandraraja Kadamba and Others, 1973 3 SCC 291, wherein the Hon'ble Court has held as under:
"5. The position in law is no longer in doubt. It is for the propounder of the Will to prove it, and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and the signature of the testator as required by law is sufficient, to discharge the onus which is placed upon the propounder of the Will. Where there are ::: Downloaded on - 18/08/2023 20:34:44 :::CIS 56 suspicious circumstances, the propounder of the Will has to explain them away to the satisfaction of the Court. The suspicious circumstances may be as to the genuineness of the signature of the .
testator, the condition of the testator's mind, the dispositions made in the Will being unnatural, improbable or unfair in the light of relevant circumstances or there might be other indications in the Will to show that the testator's mind was not free.
of If the propounder succeeds in removing the suspicious circumstances the Court would have to give effect to the Will even if rt the Will might be unnatural in the sense it has cut off wholly or in. part near relations. See Shashi Kumar v. Subodh Kumar, 1964 AIR(SC) 529."
30. Reliance is also placed upon Ramabai Padmakar Patil (Dead) through LRs and Others vs. Rukminibai Vishnu Vekhande and Others, 2003 8 SCC 537, wherein the Hon'ble Apex Court has held as under:-
"7. The main reason, which weighed with the learned District Judge in discarding the Will, which has also appealed to the High Court, is that Smt. Yamunabai completely disinherited her other daughter and gave the entire property to Smt. Ramabai. In our opinion, the fact that Smt. Yanumabai excluded all other daughters and gave the entire property to the plaintiff Smt. Ramabai could not be a ground to cast any ::: Downloaded on - 18/08/2023 20:34:44 :::CIS 57 doubt regarding the authenticity of the Will in the facts and circumstances of the case in hand. It is not a case of exclusion of a son who may have been living with the parents or looking after them. It is a case of .
making provision for a widowed daughter who had been left destitute on account of the death of her husband at a very early age. If the parental property was to be divided equally amongst all the seven sisters, the share inherited by Smt. of Ramabai would have been quite small making it difficult for her to survive. The house is situated in a village and is not in a rt big town or city where it may have any substantial value. In fact, if the background in which the Will was executed is examined carefully, it would be apparent that this was the most natural conduct of the mother and giving equal shares to all the daughters would have entailed a serious hardship to the plaintiff Smt. Ramabai.
8. A Will is executed to alter the mode of succession and by the very nature of things, it is bound to result in either reducing or depriving the share of a natural heir. If a person intends his property to pass to his natural heirs, there is no necessity at all of executing a Will. It is true that a propounder of the Will has to remove all suspicious circumstances. Suspicion means doubt, conjecture or mistrust. But the fact that natural heirs have either been excluded or a lesser ::: Downloaded on - 18/08/2023 20:34:44 :::CIS 58 share has been given to them, by itself without anything more, cannot be held to be a suspicious circumstance, especially in a case where the request has been made in favour of an offspring. In PPK Gopalan .
Nambiar v. PPK Balakrishnan Nambiar and Ors., 1995 AIR(SC) 1852 it has been held that it is the duty of the propounder of the Will to remove all the suspected features, but there must be real, germane and valid suspicious features and not a fantasy of of the doubting mind. In this case, the fact that the whole estate was given to the son under the Will depriving two daughters rt was held to be not a suspicious circumstance and the finding to the contrary recorded by the District Court and the High Court was reversed. In Pushpavati and Ors. v. Chandraja Kadanba and Ors., 1972 AIR(SC) 2492, it has been held that if the propounder succeeds in removing the suspicious circumstance, the Court would have to give effect to the Will, even if the Will might be unnatural in the sense that it has cut off wholly or in part near relations. In Rabindra Nath Mukherjee and Anr. v. Panchanan Banerjee (dead) by Lbs. and Ors.,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 the execution of the Will is to interfere with the normal line of succession in and so, natural heirs would ::: Downloaded on - 18/08/2023 20:34:44 :::CIS 59 be debarred in every case of Will. Of course, it may be that in some cases they are fully debarred and in some cases partly. The concurrent finding recorded by the District Court and the High Court .
for doubting the genuineness of the Will on the aforesaid ground was reversed."
31. In a case titled: Uma Devi Nambiar and Others vs. T.C. Sidhan (dead), 2004 2 SCC 321, the Hon'ble Apex Court has held that mere exclusion of natural heirs or rejection of their of share would not itself amount to a suspicious circumstance. The Hon'ble Court has held as under:-
rt "16. A Will is executed to alter the ordinary mode of succession and by the very nature of things, it is bound to result in either reducing or depriving the share of a natural heir. If a person intends his property to pass to his natural heirs, there is no necessity at all of executing a Will. It is true that a propounder of the Will has to remove all suspicious circumstances. Suspicion means doubt, conjecture or mistrust. But the fact that natural heirs have either been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be a suspicious circumstance, especially in a case where the bequest has been made in favour of an offspring. As held in PPK Gopalan Nambiar v. PPK Balakrishnan Nambiar and Ors., 1995 AIR(SC) 1852 it is the duty of the ::: Downloaded on - 18/08/2023 20:34:44 :::CIS 60 propounder of the Will to remove all the suspected features, but there must be real, germane and valid suspicious features and not a fantasy of the doubting mind. It has been held that if the propounder succeeds .
in removing the suspicious circumstance, the Court has to give effect to the Will, even if the Will might be unnatural in the sense that it has cut off wholly or in part near relations (See Puspavati and Ors. v. Chandraja Kadamba and Ors., 1972 AIR(SC) of 2492. In Rabindra Nath Mukherjee and Anr. v. Panchanan Banerjee (dead) by LRs. and Ors, 1995 4 SCC 459, it was observed that rt the circumstance of deprivation of natural heirs should not raise any suspicion because the whole idea behind the execution of the Will is to interfere with the normal line of succession and so, natural heirs would be debarred in every case of Will. Of course, it may be that in some cases they are fully debarred and in some cases partly."
32. In a case titled Pentakota Satyanarayana and Others vs. Pentakota Seetharatnam and Others, 2005 8 SCC 67, the Hon'ble Apex Court has held as under:-
"26. Mr Narsimha, learned counsel for the respondents, submitted that the natural heirs were excluded and the legally wedded wife was given a lesser share and, therefore, it has to be held to be a suspicious circumstance. We are unable to ::: Downloaded on - 18/08/2023 20:34:44 :::CIS 61 countenance the said submission. The circumstances of depriving the natural heirs should not raise any suspicion because the whole idea behind the execution of the will is to interfere in the .
normal line of succession and so natural heirs would be debarred in every case of the Will. It may be that in some cases they are fully debarred and in some cases partly. This is the view taken by this Court in Uma Devi Nambiar and Others vs. T.C.Sidhan of (Dead), 2004 2 SCC 321."
33. Reliance is placed upon Savithri and Others vs. Karthyayani Amma and Others, 2007 11 SCC 621, rt wherein the Hon'ble Apex Court has held as under:-
"22. Deprivation of a due share by the natural heirs itself is not a factor, which would lead to the conclusion that there exist suspicious circumstances. For the said purpose, as noticed hereinbefore, the background facts should also be taken into consideration. The son was not meeting his father. He had not been attending to him.
He was not even meeting the expenses for his treatment from 1959 when he lost his job till his death in 1978. The testator was living with his sister and her children. If in that situation, if he executed a Will in their favour, no exception thereto can be taken. Even then, something was left for the appellant.
23. In Ramabai Padmakar Patil (Dead) ::: Downloaded on - 18/08/2023 20:34:44 :::CIS 62 though L.Rs. and Others v. Rukminibai Vishnu Vekhande and Others, 2003 8 SCC 537, this Court held :
"8. A Will is executed to alter the .
mode of succession and by the very nature of things, it is bound to result in either reducing or depriving the share of a natural heir. If a person intends his property to pass to his natural heirs, there is no necessity at all of executing a Will. It is true that a of propounder of the Will has to remove all suspicious circumstances. rt Suspicion means doubt, conjecture or mistrust. But the fact that natural heirs have either been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be a suspicious circumstance, especially in a case where the bequest has been made in favour of an offspring"[See also S. Sundaresa Pai and Others v. Sumangala T. Pai (Mrs.) and Another, 2002 1 SCC 630"
51. In Mahesh Kumar (dead) by LRs vs. Vinod Kumar and Others, 2012 (4) SCC 387, the Hon'ble Apex Court has held as under:-
"49. The attitude of respondents Nos. 1 and 2 left Shri Harishankar and his wife with no choice but to live with the appellant, who ::: Downloaded on - 18/08/2023 20:34:44 :::CIS 63 along with his wife and children took care of the old parents and looked after them during their illness. Therefore, there was nothing unnatural or unusual in the decision of Shri Harishankar to give his .
share in the joint family property to the appellant. Any person of ordinary prudence would have adopted the same course and would not have given anything to the ungrateful children from his/ her share in the property."
of
52. Reliance is also placed upon Leela Rajagopal and Others vs. Kamala Menon Cocharan and Others, 2014 15 rt SCC 570, wherein it has been held that the exclusion of sons is not a suspicious circumstance when reasons for exclusion of sons is apparent from Will itself. In the case at hand, the testator has categorically recited in the Will that he is bequeathing his property in favour of the defendant on account of services rendered by him. In the aforesaid case, the Hon'ble Apex Court has held as under:-
"14. In the present case, a close reading of the Will indicates its clear language, and its unambiguous purport and effect. The mind of the testator is clearly discernible and the reasons for the exclusion of the sons is apparent from the Will itself. Insofar as the place of execution is ::: Downloaded on - 18/08/2023 20:34:44 :::CIS 64 concerned, the inconsistency appearing in the verification filed along with the application for probate by PW-3 and the oral evidence of the said witness tendered in Court is capable of being understood in .
the light of the fact that the verification is in a standard form (Form No. 55) prescribed by the Madras High Court on the Original Side, as already noticed. Besides, in the facts of the present case, the participation of the first respondent in of the execution and registration of the Will cannot be said to be a circumstance that would warrant an adverse conclusion. The rt conduct of the first respondent in summoning her friend (PW-3) to be an attesting witness and in taking the testator to the office of the Sub Registrar should, again, not warrant any adverse conclusion. It also cannot escape notice that the Will dated 11.1.1982 is identical to the contents of the earlier Will dated 28.12.1981. Insofar as the execution of the Will dated 28.12.1981 and its registration is concerned no active participation has been attributed to the first respondent. The change of the attesting witnesses and the non-examination of Seetha Padmanabhan who had attested the second Will dated 11.1.1982 has been sufficiently explained."
36. Reliance is also placed upon Ved Mitra Verma vs. Dharam Deo Verma, 2014 15 SCC 578, wherein the Hon'ble Apex Court has held that execution ::: Downloaded on - 18/08/2023 20:34:44 :::CIS 65 of Will in favour of one of his sons and exclusion of the other children was in itself not a suspicious circumstance. The property being self-acquired, it is the Will of the testator that has to prevail. The Hon'ble Court has held as .
under:-
"8. The exclusion of the other children of the Testator and the execution of the Will for the sole benefit of one of the sons i.e. the respondent, by itself, is not a suspicious circumstance. The property of being self-acquired, it is the will of the Testator that has to prevail. rt 14. All the alleged suspicious circumstances surrounding the execution of the Will being capable of being understood in the manner indicated above and the requirement of Section 69 of the Indian Evidence Act, 1872 having been satisfied by the evidence of PW-3, we find that in the present case, the findings and conclusions recorded by the High Court would not call for any interference. Consequently and for the reasons aforesaid, we dismiss the appeal leaving the parties to bear their own costs.
37. It is quite apparent from the aforesaid exposition of law as laid down by the Hon'ble Apex Court from time to time that the mere exclusion of natural heirs from the Will cannot be said to be a suspicious circumstance; especially when the testator bequeathed his property in favour of a person who had been looking after him. Though initially, the onus is ::: Downloaded on - 18/08/2023 20:34:44 :::CIS 66 always on the propounder of the Will to prove it and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and the signature of the testator as required by law is sufficient, to .
discharge the onus which is placed upon the propounder of the Will.
53. Therefore, the Will cannot be held to be bad be-
cause of the exclusion of the natural heirs.
of
54. It was submitted on behalf of the plaintiffs that the Will has unequal spacing, which makes it suspicious.
rt Learned Trial Court held that there was no unequal spacing to show that the Will was written to adjust the thumb mark on the Will. It was laid down by Punjab & Haryana High Court in Phool Singh and others vs. Smt. Santhosh and others, 2018 (1)HLR 379 that when a Will is handwritten, the spacing between the lines cannot be exactly equal. It was held:-
"15. I have examined the Will, which is Ex.P1 on the record. It was a handwritten Will. It runs into two pages. There is not much difference in the space between the lines on the first page and the second page. When the Will is written with hand, the spacing between the lines cannot be exactly equal. Both the ::: Downloaded on - 18/08/2023 20:34:44 :::CIS 67 pages of the Will are duly thumb marked by the testator. On the first page, the thumb impression is at the end of the page, whereas on the second page, the thumb impression is where the narration of Will comes to an end.
.
The thumb impressions cannot be said to be at inappropriate places. On the second page, the narration of the Will goes up to half of the page and thereafter immediately thumb impressions of the testator is found to be affixed. Therefore, it cannot be said that the of Will is doubtful because there is a small difference in the space between the lines on both pages."
55. rt In the present case, there is a small difference in the spacing, which is normal and it cannot be held that the Will was written unnaturally and the submission that Will has to be ignored due to unequal spacing, is not acceptable.
56. Learned Trial Court held that the second attesting witness was not examined and this is a suspicious circumstance. Learned Trial Court has rightly relied upon the judgment of Nihal Kaur v. Jugraj Singh, 1997 SCC OnLine P&H 565 = 1997 (Suppl.) Civil Court Cases 679 (P & H), wherein it was observed:-
::: Downloaded on - 18/08/2023 20:34:44 :::CIS 68"11. It is true, as has been contended by Mr. Bindra, that Baljit Singh the second, attesting witness had not been examined, but I am of the opinion that no adverse inference can be drawn from such omissions."
.
57. Thus, the Learned First Appellate Court erred in discarding the Will due to the non-examination of the second attesting witness.
of
58. Chain Singh (DW-1), proved the gift deed (Ext.
D-2) written by Rangila. The plaintiff admitted that no rt suit was filed to declare the gift deed invalid. This shows that plaintiffs have not taken any action for setting aside the gift deed executed by Rangila, even though; it came to their knowledge during the pendency of the suit. The gift deed is duly registered and is proved by the statements of Chain Singh (DW-1) and Rajesh Kumar (DW-2). This clearly shows that Rangila had affinity with the defendants and that is why he had executed a gift deed in their favour.
In these circumstances, the execution of the Will by Rangila in favour of the defendants was properly explained.
59. It was mentioned in the Will that two daughters ::: Downloaded on - 18/08/2023 20:34:44 :::CIS 69 of Rangila were married and they were residing in their matrimonial homes. They were not taking care of Rangila.
It was submitted that one daughter Kaushalya Devi had .
died in the year 1980 and the fact that her name was mentioned in the Will shows that the Will was not written by Rangila. No death certificate has been filed to prove the date of death of Kaushyala. It also mentions the year of of death and not the exact date, therefore, the Will cannot be held to be bad, because it was mentioned that two rt daughters were married and were residing in their matrimonial homes.
60. Learned First Appellate Court also held that the execution of the gift deed cast a suspicion because the deceased had no reason to execute the Will after the execution of the gift deed. This reasoning is not acceptable.
The deceased had gifted some part of his property. He could not be expected to gift the rest of the property and fend for himself without any property. He hoped that the defendants would take care of him, but a prudent person will always retain something for him in case the ::: Downloaded on - 18/08/2023 20:34:44 :::CIS 70 expectation is not fulfilled by the person in whom the confidence is reposed. Therefore, the execution of the Will after the execution of the gift deed will not be a suspicious .
circumstance.
61. The plaintiffs also examined Vijay Pal Singh (PW-3) to prove that the green judicial papers were not of being used in the year 1981 and only white judicial papers were being used. However, he is not the best witness to rt prove this fact. He admitted in his cross-examination that he was not aware when the white judicial papers came into circulation and when their circulation was stopped. He also stated that he was not aware when the Will (Ext. D-1) was written, and the circulation of green papers started.
Therefore, his testimony is not sufficient to conclude that green judicial papers were not available in the year 1981 and white papers were available at that time.
62. Learned First Appellate Court also held that it was not proved that the testator was in his sound disposing state of mind. This finding cannot be sustained. Plaintiff ::: Downloaded on - 18/08/2023 20:34:44 :::CIS 71 Surjeet Singh did not say in his testimony that Rangila was not in his sound disposing state of mind at the time of the execution of the Will. It was not suggested to Baldev Singh .
(DW-1) in his cross-examination that Rangila was not in his sound disposing state of mind at the time of the execution of Will. Similarly, it was also not suggested to Kesar Singh that Rangila was not in his sound disposing of state of mind at the time of execution of the Will.
Therefore, the findings recorded by the learned First rt Appellate Court that Rangila was not proved to be in his sound disposing state of mind, are contradictory to the record. It was laid down in Ashok Baury v. State, 2021 SCC OnLine Del 1248= 2021 (279) DLT 561 that there is a pre-
sumption in favour of sanity and the burden lies on the person, who challenges it to prove that the person was in-
sane. It was observed:
"8. Soundness of mind, for the purposes of con- tracting, is defined in Section 12 of the Indian Contract Act, 1872 and which in my view would have application in the matter of soundness of mind requisite for making of a Will as well. As per the said provision, (i) a person is said to be ::: Downloaded on - 18/08/2023 20:34:44 :::CIS 72 of sound mind, if, at the time of the making of the contract, he is capable of understanding it and of forming a rational judgment as to its ef- fect upon his interests; (ii) a person who is usu- ally of unsound mind, but occasionally of sound .
mind, may make a contract when he is of sound mind; and, (iii) a person who is usually of sound mind, but occasionally of unsound mind, may not make a contract when he is of unsound mind.
9. As would be obvious from the above, a com-
of mon thread is found to run between Section 12 of the Contract Act and Section 59 of the Indian Succession Act.
rt
10. Chapter VII titled "Of the Burden of Proof", of Part III titled "Production and Effect of Evi-
dence", of the Evidence Act deals with the issue with which this Court is concerned herewith. Per Section 101 thereunder, whosoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts, which he asserts, must prove that those facts exist. Since the propounder of a Will as per Sec- tion 59 of the Indian Succession Act is required to prove that the testator at the time of the making of the Will was of sound mind, the bur-
den of proof would be on the propounder. How- ever, that would be so where none is opposing the Will propounded and the Will has to be proved for the satisfaction of the Court. How- ever when a document propounded as Will is contested, what would be required to be proved is only what is in issue and only if the party dis-::: Downloaded on - 18/08/2023 20:34:44 :::CIS 73
puting the document propounded as a Will dis- putes/controverts that the testator/testatrix, at the time of making the Will was of sound mind, would soundness of mind be in issue and re- quired to be proved. However if the soundness .
of mind is not specifically denied then as per the Rules aforesaid contained in Order VIII Rule 5 of the CPC, soundness of mind shall be deemed to have been admitted. In the event of denial of the soundness of mind, the question as herein arises, on whom the onus should be, whether on of the propounder or the opposite party, arises.
11. Section 114 under the aforesaid Chapter VII of Part III of the Evidence Act enables the Court to rt presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the case.
12. The common course of natural events and human conduct is soundness of mind and un- soundness of mind an aberration. If a testator/testatrix has led a normal life, and per- formed day-to-day functions in the normal course of human conduct, the presumption un- der Section 114 would be of soundness rather than unsoundness of mind."
63. In the present case, there is no evidence of the insanity of Rangila. Thus, the Learned Appellate Court erred in holding that Rangila was not in his sound disposing state of mind.
::: Downloaded on - 18/08/2023 20:34:44 :::CIS 7464. It was submitted that he mentioned his age as 83 years in the Will and a presumption can be drawn that he was unable to understand the nature of the act. It was laid .
down by this Court in Shanti Devi Vs Dali Devi & Anr 2002(2) SLJ 1095 that the old age of the executant does not show that she was not in a sound disposing state of mind. It was observed:-
of "16. The second contention of Mr Bhardwaj.
learned counsel for the appellant, that Munshi rt Ram was 90 years of age and therefore, was not in disposing mind at the time of execution of the Will is concerned, it has no substance. There is nothing on record to show that the testator was not in sound disposing mind at the time of execution of the Will. It is true that the validity of a will depends on the testator being of sound disposing mind at the time of the making of the Will but at the same time, a sound disposing mind does not depend upon the advanced age.
The mere fact that Munshi Ram was 90 years of age at the time of execution of the will, would not lead to the conclusion that he was not in sound disposing mind. In Tirath Singh & Ors v. Sajjan Singh (Died) through his LRs & Ors. 1998(1) S.L.J. 232 it was held that mere advanced age Will does not lead to any presumption that the testator was not of sound disposing mind. The very fact that the Will in question was got registered by the testator on the same date ::: Downloaded on - 18/08/2023 20:34:44 :::CIS 75 shows that the testator was of sound disposing mind at the relevant time. See Gurpal Singh v. Darshan Singh 1998 (1) S.L.J. 174. Mr Bhardwaj. learned counsel for the appellant was unable to point out any evidence on record except that of a .
self-serving statement of the plaintiff, that the testator was not of sound disposing mind. There is no merit in the contention that the appellant was mentally incapacitated to execute a valid Will.
65. This position was reiterated in Om Prakash & of others Vs Bhup Singh & others 2009 HLJ 106, wherein it was observed:-
rt "6. The mere fact that the testator was old does not conclusively establish that he was not possessed of the sound mental disposing state of mind and was not in a position to understand the disposition, which he was making. This fact had to be established by leading reliable evidence and was not a mere matter of conjecture and inference. Once the due execution of the will was established the intention of the testator as expressed in the will was to be given effect.
66. Therefore, no presumption can be drawn from the old age of Rangila that he could not understand the nature of the Will.
::: Downloaded on - 18/08/2023 20:34:44 :::CIS 7667. Therefore, the reasons assigned by the learned First Appellate Court to invalidate the Will, are not proper.
68. The Learned Trial Court had discussed all the .
suspicious circumstances and had given valid reasons for dispelling them. Learned First Appellate Court did not dispel these reasons while reversing the judgment passed of by the learned Trial Court. It was laid down by Hon'ble Supreme Court in Somakka v. K.P. Basavaraj, (2022) 8 SCC rt 261 = 2022 SCC OnLine SC 736 that the Appellate Court must come into close quarters with the reasoning assigned by the learned Trial Court and then assigned its reasoning for arriving at a different finding. It was observed:-
"29.1 In Santosh Hazari vs. Purushottam Tiwari, (2001) 3 SCC 179 para 15 (relevant portion of para 15) is reproduced below:
'15...The appellate court has jurisdiction to reverse or affirm the findings of the Trial Court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the mind and record findings supported by reasons, on all the issues arising along with the ::: Downloaded on - 18/08/2023 20:34:44 :::CIS 77 contentions put forth, and pressed by the parties for decision of the appellate court. . while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by .
the Trial Court and then assign its reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it.' of 29.2 In H.K.N. Swami vs. Irshad Basith, (2005) 10 SCC 243, this Court again reiterated the same principle in paragraph 3 of the rt judgment:
'3. The first appeal has to be decided on facts as well as on law. In the first appeal, parties have the right to be heard both on questions of law all issues and to decide the case by giving reasons. Unfortunately, the High Court, in the present case has not recorded any finding either on facts or on law. Sitting as the first appellate court it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording the finding regarding title.' 29.3 In 2015, this Court again in Vinod Kumar vs. Gangadhar, (2015) 1 SCC 391 considering the previous judgment recorded its view in paras 18 and 19 which are reproduced hereunder:::: Downloaded on - 18/08/2023 20:34:44 :::CIS 78
'18. In our considered opinion, the High Court did not deal with any of the submissions urged by the appellant and/or the respondent nor it took note of the grounds taken by the appellant in .
grounds of appeal nor made any attempt to appreciate the evidence adduced by the parties in the light of the settled legal principles and decided case law applicable to the issues arising in the case with a view to find out as to whether of the judgment of the Trial Court can be sustained or not and if so, how, and if not, why.
rt
19. Being the first appellate court, it was the duty of the High Court to have decided the first appeal keeping in view the scope and powers conferred on it under Section 96 read with Order 41 Rule 31 CPC mentioned above. It was unfortunately not done, thereby, resulting in causing prejudice to the appellant whose valuable right to prosecute in the first appeal on facts and law was adversely affected which, in turn, deprived him of a hearing in the appeal in accordance with law. It is for this reason, that we are unable to uphold the impugned judgement of the High Court.' 29.4 Very recently, this Court in 2022 (to which one of us, Brother Abdul Nazeer, J. was a member) in Manjual and Others vs. Shyamsundar and Others, (2022) 3 SCC 90, reiterated the same view in para 8 thereof, which is reproduced hereunder:::: Downloaded on - 18/08/2023 20:34:44 :::CIS 79
'8. Section 96 of the Code of Civil Procedure, 1908 (for short, CPC') provides for the filing of an appeal from the decree passed by a court of original jurisdiction. Order 41 Rule 31 of the CPC .
provides the guidelines to the appellate court for deciding the appeal. This rule mandates that the judgment of the appellate court shall state
(a) points for determination;
of
(b) the decision thereon;
(c) the reasons for the decision; and rt (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled.
Thus, the appellate court has the jurisdiction to reverse or affirm the findings of the Trial Court. It is settled law that an appeal is a continuation of the original proceedings. The appellate court's jurisdiction involves a rehearing of appeal on questions of law as well as fact. The first appeal is a valuable right, and, at that stage, all questions of fact and law decided by the Trial Court are open for reconsideration. The judgment of the appellate court must, therefore, reflect a conscious application of mind and must record the court's findings, supported by reasons for its decision in respect of all the issues, along with the contentions put forth and pressed by the parties. Needless to say, the first ::: Downloaded on - 18/08/2023 20:34:44 :::CIS 80 appellate court is required to comply with the requirements of Order 41 Rule 31 CPC and non-observance of these requirements leads to infirmity in the judgment."
.
69. This position was reiterated in Dheeraj Singh v.
Greater Noida Industrial Development Authority, 2023 SCC OnLine SC 768, wherein it was observed:
of "19. In the case of Santosh Hazari Vs. Purushottam Tiwari (Dead) by LRs. (2001) 2 SC 407, this Court held that the court of appeal has a duty to apply its mind to all issues rt raised before it and to discharge such duty, it must also record its findings against all such issues raised. For the sake of convenience, the relevant paragraph of the said judgment is being extracted herein:
"The Appellate Court has jurisdiction to reverse or affirm the findings of the trial court. The first appeal is a valuable right of the parties and unless restricted by law. The whole case is therein open for rehearing both on questions of fact and law. The judgment of the Appellate Court must, therefore, reflect its conscious application of mind, and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the Appellate ::: Downloaded on - 18/08/2023 20:34:44 :::CIS 81 Court. While reversing a finding of fact the Appellate Court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a .
different finding. This would satisfy the Court hearing a further appeal that the First Appellate Court had discharged the duty expected of it."
20. In the case of Madhukar and Ors. Vs. Sangram and Ors. (2001) 4 SCC 756, this Court, of while reiterating the principles laid down in the Santosh Hazari Judgment (Supra), observed that the court of first appeal has a rt duty to record its findings qua all the issues raised before it, and in cases where the High Court fails to do the same, the matter must be remanded to the same court again for fresh adjudication.."
70. In the present case, learned First Appellate Court had failed to discharge its duty and the judgment and decree passed by it, is not sustainable; hence, this substantial question of law is answered accordingly.
Final Order:
71. In view of the above, the present appeal is allowed and judgment and decree passed by learned First Appellate Court are set aside, while judgment and decree ::: Downloaded on - 18/08/2023 20:34:44 :::CIS 82 passed by learned Trial Court are restored.
Accordingly, the appeal stands disposed of, so also the pending application(s), if any.
.
(Rakesh Kainthla ) Judge 18th August, 2023 (Reena) of rt ::: Downloaded on - 18/08/2023 20:34:44 :::CIS