Chattisgarh High Court
Belasia Bai Siya vs Pradeep Kumar on 16 March, 2009
Author: Dilip Raosaheb Deshmukh
Bench: Dilip Raosaheb Deshmukh
HIGH COURT OF CHATTISGARH AT BILASPUR
Second Appeal No 236 of 1996
1. Belasia Bai Siya
2. Kusum Bai
...Petitioners
Versus
1. Pradeep Kumar
2. Smt. Gitabai
3. State of Madhya Pradesh
...Respondents
Appeal under Section 100 of the Code of Civil Procedure
! Shri Anup Majumdar, counsel for the appellent
^ Shri B P Gupta, counsel for respondents No.1 & 2
Shri P R Patankar,Panel Lawyer for the State/respondent No.3
Honble Shri Dilip Raosaheb Deshmukh, J
Dated: 16/03/2009
: Judgement
JUDGMENT
(Passed on this 16th day of March, 2009) Being aggrieved by the judgment and decree dated 08-01-1996 passed by the 2nd Additional Judge to the Court of District Judge, Rajnandgaon in Civil Appeal No.6-A/1993 reversing the judgment and decree dated 29- 04-1993 passed by the 1st Additional Civil Judge Class II, Rajnandgaon in Civil Suit No.80-A/1991, the appellants/defendants have preferred this appeal. (2) Following substantial questions of law have been framed in this appeal:-
(A) "Whether the first appellate Court was justified in holding that the defences raised by the defendant were barred by limitation as the same were not raised within three years from the date of execution of the will?
(B) Whether under the facts and in the circumstances of the case, the first appellate Court was justified in holding that the plaintiff has proved the execution and attestation of the Will when none of the witnesses had stated that the executant signed the Will in their presence and each of the witnesses signed the Will as attesting witnesses?
(C) Whether under the facts and in the circumstances of the case, is the Will genuine or shrouded with the suspicious circumstances?"
(3) Admittedly, Ramdeo and Ramprasad were brothers.
Mst. Kalibai, widow of Ramprasad was the owner of the lands admeasuring area 8.07 acres comprised in various Khasra as detailed in para 2 of the plaint and situated in Village Charbhatta, P.H.No.86, Revenue Circle Khujji, Tahsil and District Rajnandgaon (henceforth "the suit lands"). Ramprasad had predeceased Mst. Kalibai who also died issueless on 28-04-1980. The appellants/defendants i.e. Belasia Bai and Kusum Bai are the widow and daughter of Bhajanlal who was the son of Ramdeo. Respondent No.2-Gitabai is the widow of Shivprasad and respondent No.1-Pradeep Kumar is her son. After the death of Shivprasad, Gitabai went with Pradeep Kumar to live with Mst. Kalibai. After sometime Belasia Bai, the appellant/defendant No.1 also came to live with Mst. Kalibai along with her daughter Kusumbai. However, after some time, she started living with the sister of Mst. Kalibai. The respondents/plaintiffs instituted Civil Suit No.80- A/1992 for a declaration that the respondent/plaintiff No.1-Pradeep Kumar is the sole owner of the suit lands since Mst. Kalibai had, on 17-05-1978 executed a registered Will whereby she had bequeathed her entire moveable and immovable property to Pradeep Kumar after her death. This Will was scribed by one Lalit Kumar and execution of Will by Mst. Kalibai was attested by Shivnath P.W.2, Mahesh, Dukalu Ram and Dhirpal. After the death of Mst. Kalibai on 28-04-1980, the respondent/plaintiff No.2 moved an application for mutation of the name of respondent/plaintiff No.1- Pradeep Kumar over the suit lands. The Additional Tahsildar by order dated 30-06-1984 while disbelieving the execution of Will by Mst. Kalibai on 17-05-1978, declined and ordered mutation in favour of appellants/defendants. An appeal preferred by the respondent/plaintiff before the Sub Divisional Officer, Rajnandgaon and second appeal before the Additional Commissioner, Raipur and revision thereafter before the Board of Revenue, failed. As a result, the respondents/plaintiffs instituted civil suit for declaration of title over the suit lands. The appellants/defendants resisted the suit on the ground that Will dated 17-05-1978 had been got executed from Mst. Kalibai by fraud. It was further pleaded that three years prior to her death on 28-04-1980 Mst. Kalibai had become very weak due to prolonged illness and was unable to move about on her own and understand the contents of the Will. She had, in her lifetime declared in a baithka that after her death, respondent No.2-Gitabai and appellant/defendant No.1-Belasia Bai would jointly own the suit lands. A counter claim for partition and + share of the suit property was also made in para 14 (B) of the written statement which was filed on 02-12-1987 besides claiming a declaration that the Will dated 17-05-1978 executed by Mst. Kalibai being void was not binding on them.
(4) To prove execution of Will by Mst. Kalibai, the respondents/plaintiffs examined Smt. Gitabai, P.W.1 and attesting witness Shivnath P.W.2 and Ganesh Ram, P.W.3 while the appellants/defendants examined Balasia Bai, D.W.1, Brijlal, D.W.2 and Govind D.W.3. (5) The trial Court on appreciation of evidence held that execution of Will dated 17-05-1978 by Mst. Kalibai was not established by the plaintiffs. In the evidence led by the parties, it noted the following discrepancies: - (i) whether Ganesh Ram, P.W.3 had accompanied Mst. Kalibai to Rajnandgaon, (ii) the respondent/plaintiff No.1-Pradeep Kumar was aged only two years at the time of the execution of Will and could not have looked after Mst. Kalibai and her estate as mentioned in the Will, (iii) whether Mst. Kalibai had come to Kumurda from Charbhatta on foot or by bus.
(iv) Lalit Kumar, the scribe of the Will was not examined while another attesting witness Dukalu Ram was dead and lastly that there was no evidence to show that before affixing her thumb impression on the Will Ex.P- 1, recitals of the document were read over to and admitted by Mst. Kalibai to be correct. It further held that attestation of the execution of the Will was not proved. On the above reasoning, the trial Court dismissed the suit and allowed the counter claim of the appellants/defendants for + share of the suit lands. (6) Being aggrieved, the respondents/plaintiffs preferred Civil Appeal No.6-A/1993 before the 2nd Additional Judge to the Court of District Judge, Rajnandgaon. The lower appellate Court held that execution of Will by Mst. Kalibai could not be doubted because Will Ex.P-1 was a registered document. It also took into consideration the unrebutted testimony of attesting witness Shivnath P.W.2 that the document Ex.P- 1 was written by the scribe after Mst. Kalibai had asked him to prepare a Will in the name of his grandson- Pradeep Kumar. It further held that attestation as required by law, of the execution of the Will by Mst. Kalibai was proved by the attesting witness Shivnath, P.W.2. It further held that the appellants/defendants herein had failed to prove that 2-3 years prior to her death, Mst. Kalibai was unable to move about on account of serious illness. It also took into consideration that the appellant/defendant No.1 had, in her testimony, nowhere deposed that Will Ex.P-1 was a forged document. On these findings, the lower appellate Court reversed the judgment and decree passed by the trial Court and while decreeing the suit in toto in favour of the respondents/plaintiffs dismissed the counter claim as barred by limitation because the registered Will Ex.P-1 dated 17-05-1978 was not challenged within three years from the date of its knowledge by the appellants/defendants. (7) Shri Anup Majumdar, learned counsel for the appellants/defendants and Shri B. P. Gupta, learned counsel for respondents/plaintiffs No.1 & 2 were heard at length. Record is perused.
(8) Learned counsel for the appellants/defendants had, while arguing that the trial Court had rightly held that execution of Will is not proved by the plaintiffs placed the following facts before this Court:-
A. That Lalit Kumar, scribe of the
document Ex.P-1 was not examined.
B. The document Ex.P-1 made a false
recital that Pradeep Kumar was looking after Mst. Kalibai and also her estate because on the date of execution of Will, Pradeep Kumar was barely two years old.
Smt. Gitabai had in her cross-examination para 10, also admitted this fact.
C. There was absolutely no material to show that before affixing her thumb impression on the Will, contents of the Will Ex.P-1 had been read over to and admitted to be correct by Mst. Kalibai.
D. No description of the moveable and immovable property covered under the Will was given in Will Ex.P-1.
E. Despite alleged execution of the Will by Mst. Kalibai on 17-05-1978, it did not surface till 1982, although Mst.
Kalibai died in the year 1980 and lastly, F. Mere registration of the Will is not proof of its authenticity. No endorsement was made by the Sub Registrar, Rajnandgaon on the Will that the contents of the Will had been read over to and admitted by Mst. Kalibai to be true.
(9) On the other hand, Shri B. P. Gupta, learned counsel for respondents/plaintiffs No.1 & 2 argued in support of the finding recorded by the lower appellate Court as follows:-
A. The wholly unrebutted testimony of Shivnath, P.W-2, the attesting witness proved that Mst. Kalibai had herself asked the scribe to write the will in favour of her grandson-Pradeep Kumar.
B. The testimony of Smt. Gitabai, P.W.1 and Shivnath, P.W.2 and admission of Govind, D.W.3 in para 15 showed that Mst. Kalibai was in a good state of health at the time of execution of the Will.
C. The lower appellate Court rightly held that at the time of execution of the Will in favour of Pradeep Kumar, Mst. Kalibai was in good health since defendant's witness-Govind had, in para 14, admitted that at the time of baithka, Mst. Kalibai was in good health.
D. Registration of the Will by Sub Registrar, Rajnandgaon was proof of its authenticity.
E. Since execution of Will by Mst. Kalibai was admitted in the written statement, the burden of proving that the Will had been got executed by fraud, was solely on the appellants/defendants, who had utterly failed to discharge the said burden, and lastly, F. The appellants/defendants did not challenge the rejection of their cross claim in this appeal. First substantial question of law therefore did not arise for determination.
(10) Before dealing with the evidence on record led by the parties relating to the execution of the Will by Mst. Kalibai on 17-05-1978 in favour of respondent No.1-
Pradeep Kumar, I would consider it necessary to elaborately discuss the law relating to execution and proof of Wills. Section 63 of the Indian Succession Act, 1925 lays down the requirements for execution of a Will. The section reads as under:--
"63. Execution of unprivileged Wills. - Every testator, not being a soldier employed in an expedition or engaged in actual warfare, [or an airman so employed or engaged] or a mariner at sea, shall execute his Will according to the following rules :--
(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will;
(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has been some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or 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;"
(11) Therefore, according to this provision, for the due execution of the Will, (i) the testator shall sign and affix his mark to the Will; (ii) signature and mark of the testator shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will; (iii) the Will shall be attested by two or more witnesses; and (iv) each of the said witnesses must have seen the testator sign or affix his mark to the Will and each of them should have signed the Will in the presence of the testator. (12) Section 68 of the Indian Evidence Act, 1872 reads as under:-
68. Proof of execution of document required by law to be attested: If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.
(13) Attestation of the Will is thus not an empty formality. It means signing a document for the purpose of testifying to the signature of the executant. The attesting witness should put his signature on the Will animo attestandi. It may further be noted that according to section 63 of the Indian Succession Act, it is not necessary that more than one witness be present at the same time and no particular form of attestation is necessary. The proviso to Section 68 does not dispense with the calling of an attesting witness for the purpose of proving due execution of the Will by the testator. Since Will is required by law to be attested, execution has to be proved in the manner laid down in Section 68 of the Indian Evidence Act, which requires that at least one attesting witness has to be examined for the purpose of proving execution of such a document.
(14) A combined reading of Section 68 of the Indian Evidence Act, 1872 and Section 63 of the Indian Succession Act, 1925 would thus indicate that a Will to be valid should be attested by two or more witnesses in the manner provided therein and that the propounder thereof should examine at least one attesting witness to prove the Will. The attesting witness should speak not only about the testator's signature or affixing his mark to the Will, but also that each of the witnesses had signed the Will in the presence of the testator. (15) In H. Venkatachala Iyengar vs. B.N.Thimmmajamma and others, AIR 1959 SC 443, it was held that the party propounding a Will or otherwise making a claim under a Will has to discharge the burden to prove its execution in accordance with law. It was observed that unlike other documents, the Will speaks from the death of the testator and so when it is propounded or produced before a Court, the testator who has already departed the world cannot say whether it is his Will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last Will and testament of the departed testator. The propounder would be called upon to show by satisfactory evidence that the Will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. [Emphasis supplied by me] (16) It is also necessary to understand the meaning and true import of the word attestation. In Beni Chand (Since Dead) now by L.Rs. vs. Smt. Kamla Kunwar and others, A.I.R., 1977, Supreme Court, 63, it was held that by attestation is meant the signing of a document to signify that the attestor is a witness to the execution of the document; and by Section 63 (c) of the Succession Act, an attesting witness is one who signs the document in the presence of the executant after seeing the execution of the document or after receiving a personal acknowledgement from the executant as regards the execution of the document. (17) The burden of proving execution of a Will by the testator is always on the propounder of a Will who is not only required to prove due execution of the Will by the testator as required under Section 68 of the Indian Succession Act, 1872 but also to dispel any suspicious circumstances that may be put forth by the other side while denying the execution of Will by the testator.
In Surendra Pal and Others vs. Dr. (Mrs.) Saraswati Arora and another, A.I.R. 1974 Supreme Court 1999, it was held that the propounder has to show that the Will was signed by the testator, that he was at the relevant time in a sound disposing state of mind, that he understood the nature and effect of the dispositions, that he put his signature to the testament of his own free will and that he has signed it in the presence of the two witnesses who attested it in his presence and in the presence of each other. [Emphasis supplied by me] Once these elements are established, the onus which rests on the propounder is discharged. But where there are suspicious circumstances, the onus will be on the propounder to explain them to the satisfaction of the Court before the Will could be accepted as genuine; and where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. (18) In Pushpavati and others vs. Chandraja Kadamba and others, A.I.R. 1972 Supreme Court 2492 (V 59 C 481), it was held that 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 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. (19) The question whether registration of a Will would Ipso facto be sufficient to dispel all suspicion surrounding it came for consideration before the Supreme Court in Rani Purnima Debi and another vs. Kumar Khagendra Narayan Deb and another, A.I.R. 1962 567 (V 49 C 86). It was held that if a Will has been registered, that is a circumstance which may, having regard to the circumstances, prove its genuineness. But the mere fact that a Will is registered will not by itself be sufficient to dispel all suspicion regarding it where suspicion exists, without submitting the evidence of registration to a close examination. If the evidence as to registration on a close examination reveals that the registration was made in such a manner that it was brought home to the testator that the document of which he was admitting execution was a Will disposing of his property and thereafter he admitted its execution and signed it in token thereof, the registration will dispel the doubt as to the genuineness of the Will. But if the evidence as to registration shows that it was done in a perfunctory manner, that the officer registering the Will did not read it over to the testator or did not bring home to him that he was admitting the execution of a Will or did not satisfy himself in some other way (as, for example, by seeing the testator reading the Will) that the testator knew that it was a Will the execution of which he was admitting, the fact that the Will was registered would not be of much value. Registration may take place without the executant really knowing what he was registering.
(20) In Satya Pal Gopal Das vs. Smt. Panchubala Dasi and Others, A.I.R. 1985 Supreme Court 500, there were certain outstanding features to dispel all suspicion that may possibly have attached to the Will executed by the testator and registered on June 30, 1946. The testator had died on March 12, 1950 and took no steps to have the Will cancelled or to revoke it. There was material on record to clinchingly show that the Will was executed by the testator and that the testator had admitted execution of the Will before the Sub Registrar while himself presenting it to the Sub Registrar for registration after calling him to his own residence for that purpose. It is in the background of these outstanding circumstances that the mere fact that the testator had died four years after execution and registration of Will but took no steps to cancel or revoke it would dispel any suspicion that may attach to the Will.
(21) In Rabindra Nath Mukherjee and another vs. Panchanan Banerjee (dead) by L.Rs. and others, AIR 1995 SC 1684, the document was registered and it was on record that the Sub-registrar had explained the contents to the old lady. The Apex Court held that "in case where a Will is registered and the Sub-Registrar certifies that the same had been read over to the executor who, on doing so, admitted the contents, the fact that the witnesses to the document are interested loses significance and execution of Will was duly proved in accordance with law.
(22) In Gurdial Kaur vs. Kartar Kaur, (1998) 4 SCC 384, their Lordships while reiterating the principles for satisfying the conscience of the Court relating to execution of the Will stated as under:
"4. The law is well settled that the conscience of the court must be satisfied that the Will in question was not only executed and attested in the manner required under the Indian Succession Act, 1925 but it should also be found that the said Will was the product of the free volition of the executor who had voluntarily executed the same after knowing and understanding the contents of the Will. Therefore, whenever there is any suspicious circumstance, the obligation is cast on the propounder of the Will to dispel the suspicious circumstance."
(23) In the case of H. Venkatchalia Iyengar vs. B. N. Thinanjana and others, AIR 1959 S.C. 443, the Apex Court emphasized that the result of the application of the abovementioned general and broad principles would depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties. It was stated as under:
" ------ It may however, be stated generally that a propounder of the Will has to prove the due and valid execution of the Will and that if there are any suspicious circumstances surrounding the execution of the Will the propounder must remove the said suspicions from the mind of the Court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and broad principles would depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties. It is quite true that, as observed by Lord Du Parcq in Hares vs. Hindson, 50 Cal WN (AIR 1946 PC 158) "where a Will is charged with suspicion, the rules enjoin a reasonable skepticism, not an obdurate persistence in disbelief. They do not demand from the Judge even in circumstances of a grave suspicion, a resolute and impenetrable incredulity. He is never required to close his mind to the truth." It would sound platitudinous to say so, but it is nevertheless true that in discovering truth even in such cases the judicial mind must always be open though vigilant, cautious and circumspect."
(24) In Shashi Kumar Banerjee and others vs. Subodh Kumar Banerjee and others, AIR 1964 SC 529, the Supreme Court underlined suspicious circumstances that may attach to the execution of the Will. It was held that if it appeared to the Court that the dispositions made in the Will were unnatural, improbable and unfair in the light of relevant circumstances or that the testator's mind was not free, the burden to dispel such suspicious circumstance attach to the Will was wholly on the propounder. It was held as under:
"The mode of proving a Will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a Will by section 63, Succession Act. The onus of proving the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court before the court accepts the Will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court (emphasis supplied by me). 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. In such a case the court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last Will of the testator."
(25) It is thus now well settled that the burden of proving execution and attestation of the Will in accordance with law is on the propounder. A burden is also cast on the propounder to dispel all suspicious circumstances that may attach to the Will by the testator. In the present case, the appellants/defendants had, in the written statement, raised a suspicion regarding the testamentary capacity of Mst. Kalibai by specifically pleading that three years prior to her death Mst. Kalibai was seriously ill and had become extremely weak and also did not possess the capacity to think or understand. I shall first consider this circumstance pleaded by the appellants/defendants.
(26) In support of the above pleading, the appellants/defendants had, before the trial Court, examined as many as three witnesses. Belasia Bai, the appellant/defendant No.1 had stated in paragraph 5 as under:
" dyh ckbZ dh e`R;q gq;s 10]12 lky gks pqds 5 gSA ejus ds iwoZ dyhckbZz dks lakl dh chekjh gks x;h Fkh vkSj og py ugh ikrh Fkh ml le; xhrk ckbZ rFkk eSa mls mBkdj VV~Vh is'kkc ds fy;s ys tkrs FksA mldh chekjh 2] 3 lky rd jgh vkSj 2] 3 lky ckn mldh e`R;q gks x;hA dyhckbZ dh e`R;q ds i'pkr mldh vafre fdz;k deZ ds ckn esa IkVokjh ds ikl x;h FkhA"
Brijlal D.W.2 had deposed as under in paragraph 3.
"3 ---------------- dyh ckbZ e`R;q iwoZ 2] 3 lky ls lkal dh chekjh esa ihfM+r FkhA py ugh ldrh FkhA mls xhrkckbZ csyfl;k ckbZ VV~Vh is'kkc djus ds fy;s lkFk esa idM+ dj ys tkrs FksA"
Govind D.W.3 deposed in paragraph 4 as under:
4 "dyhckbZ dh e`R;q gq;s 10] 11 lky gks x;s gSA dyhckbZ ejus ds 3 lky iwoZ ls nek] [kklh dh chekjh jgh Fkh] og py fQj ugh ldrh FkhA mls cksyus dh 'kfDr ugh FkhA mls xhrkckbZ vkSj csyfl;k ckbZ VV~Vh] is'kkc ds fy;s ys tkrs FksA mldh gkyr xaHkhj FkhA dyhckbZ ds ejus ds ckn mldk fdz;kdze csyfl;k ckbZ vkSj xhrkckbZ us fd;kA"
(27) In cross-examination of the above mentioned witnesses, nothing has been elicited so as to render their above testimony doubtful. On the other hand, a leading question was put to Govind D.W.3 in paragraph 11 that 2 to 3 years prior to her death Mst. Kalibai had become extremely weak. It is well settled that if a witness is not cross-examined on a material point, there is no reason to discard his testimony. The lower appellate Court omitted from its consideration the unrebutted testimony of the abovementioned witnesses on the above material circumstance. It is also pertinent to note that the Will Ex.P.1 itself states as under in the very beginning:
`_eu ds eSa dyhckbZ fo/kok jkeizlkn feJk ,czkEg.k+ fuoklhuh rFkk d`f"k dk xzke pkjHkkBk i0g0u0 86 rglhy o ftyk jktukanxkao dh gWw tks fd eSa dkQh tbZQ gks xbZ gWw rFkk viuk dk;Z Lo;e lEikfnr djus esa vleFkZ gWwA"
Ganeshram P.W.3, a trusted servant of Mst. Kalibai had, in paragraph 6 & 7, also admitted as under: "6/- ......dyhckbZ dh mez ejus ds le; 70] 75 lky dh FkhA dyhckbZ ,dne fl;kuh gks x;h FkhA dyhckbZ dks chekjh Fkh ijarq gYdh Fkh A ;g lgh gSa fd mldks nek] [kklh dh chekjh FkhA (28) The admission by plaintiffs' witness and trusted servant Ganeshram P.W.3 read with the above mentioned contents of the Will and the wholly unrebutted testimony of the above witnesses of the defendants raises a strong suspicion that Mst. Kalibai had become extremely weak and was unable to perform her work on her own at the time of execution of the Will. This renders the testimony of the attested witness Shivnath P.W.2 that Mst. Kalibai went on foot from Charbhatta to Kumurda for boarding the bus and the testimony of Gitabai P.W.1 and Shivnath P.W.2 that on the date of execution of Ex.P.1 Mst. Kalibai was in good health extremely doubtful. The respondents/plaintiffs have thus failed to dispel the suspicion regarding the testamentary capacity of Mst. Kalibai on the date of execution of the Will Ex.P.1.
(29) The registration of the Will Ex.P.1 is put forth by the respondents/plaintiffs as a circumstance for dispelling all suspicion from the Will. However, a perusal of the document i.e. the Will Ex.P.1 shows that it does not contain any endorsement by the Sub-
Registrar that the document was read over in his presence to Mst. Kalibai who had admitted it to be correct before him. The attesting witness Shivnath has also not deposed to that effect. Lalit, scribe of the will, was not examined by the respondents/plaintiffs. Even in the testimony of Shivnath P.W.2, there is nothing to show that the scribe had, after typing the will read it over to Mst. Kalibai who had admitted it to be correct before affixing her thumb impression.
(30) Gitabai P.W.1, the respondent/plaintiff No.2, admittedly did not accompany Mst. Kalibai to Rajnandgaon at the time of execution of the Will. The learned trial Court had also considered that Ganeshram, the trusted servant of Mst. Kalibai, had also not accompanied Mst. Kalibai to Rajnandgaon and thus did not witness the execution of the Will by Mst. Kalibai. It is thus extremely surprising as to how witness Shivnath took the responsibility of taking Mst. Kalibai to Rajnandgaon for execution of the Will when he admitted in paragraph 30 that he did not even understand what was meant by a Will. Although Shivnath P.W.2 deposed that Mst. Kalibai had affixed thumb impression in his presence yet it does not appear from his testimony as to whether the thumb impression was affixed by Mst. Kalibai in his presence before the Scribe or after being taken to the Sub-Registrar. Thus there is no evidence to show that before affixing her thumb impression before the Sub-Registrar the testator had admitted execution of the Will or that the contents of the Will were read over to her and admitted by her. Therefore, the mere registration of the Will ipso facto would not be of any value because registration might have taken place without the executant really knowing what she was registering. Thus mere registration of the Will Ex.P.1 does not dispel the highly suspicious circumstances attached to the Will Ex.P.1. (31) It is true that under Section 68 of the Indian Evidence Act, examination of only one attesting witness is sufficient for proving the execution of a Will but, as has been discussed earlier, attestation of the Will is not an empty formality. In the facts and circumstances of the case, the highly deteriorated status of health of Mst. Kalibai and her testamentary incapacity, it was essential that the testimony of the attesting witness ought to have shown that the document Ex.P.1 was read over and explained to Mst. Kalibai who admitted it to be correct before affixing her thumb impression and that it was only thereafter that the attesting witness had signed the document. (32) As has been discussed earlier, the dispositions made in the Will being unnatural, improbable or unfair in the light of the relevant circumstances, could also be an indication to show that the testator's mind was not free. In the Will Ex.P.1 it had been stated that due to old age her grandson Pradeep Kumar alone was taking care of Mst. Kalibai in all respects and also managing her estate. Admission of Gitabai P.W.1 in paragraphs 10 and 11 leave no room for any doubt that the aforesaid contents of the Will were false because on the date of execution of the Will Pradeep Kumar was aged only two years and could not have taken any care of Mst. Kalibai. It is also noteworthy that in the Will after the words "Shiv Prasad" the words "guardian father Shiv Prasad" have been written by hand, which has not been attested by Mst. Kalibai. There is no mention on the document that the words mentioned above were added before registration. It cannot be ruled out that the words "guardian father Shiv Prasad" were added subsequently after the registration of the Will. (33) Having thus considered the evidence on record in its entirety with utmost circumspection, I am of the considered opinion that the propounder of the Will has failed to dispel the highly suspicious circumstances relating to the testamentary capacity of the testator, the improbable dispositions made in the Will and also to show that the Will was read over to and admitted by Mst. Kalibai to be correct before affixing her thumb impression before the Sub-Registrar. The lower appellate Court was thus not justified in holding that the plaintiffs had proved execution and attestation of the Will in accordance with law. Substantial question of law `B' is accordingly answered. Substantial question of law `C' is also answered that the respondents/plaintiffs have failed to prove due execution of the Will by Mst. Kalibai and attestation of the Will Ex.P.1 and dispel the extremely suspicious circumstances surrounding the Will. The Will Ex.P.1, therefore, cannot be said to be a genuine Will of Mst. Kalibai.
(34) As regards the first substantial question of law, suffice it to say that it does not arise for determination because no such ground was taken in second appeal by the appellants/defendants. However, once it is held that the respondents/plaintiffs had failed to prove due execution and attestation of the Will Ex.P.1 by Mst. Kalibai as required by law, the question of the challenge to the said Will by the appellants/defendants by raising a cross-objection before the learned trial Court loses significance and it must be held that the suit instituted by the respondents/plaintiffs for a declaration that the respondent No.1 is the sole owner of the suit land on the basis of Will Ex.P.1 must fail and the counter claim by the appellants/defendants in the written statement para 14 (B) deserves to be and was rightly granted by the learned trial Judge.
(35) In the result, the appeal is allowed. The impugned judgment and decree dated 08.01.1996 passed in Civil Appeal 6-A/1993 by the 2nd Additional Judge to the Court of District Judge, Rajnandgaon is set aside. The suit instituted by the respondents/plaintiffs is dismissed. The relief of partition granted by the learned 1st Additional Civil Judge Class II, Rajnandgaon in Civil Suit No. 80-A/1991 by judgment and decree dated 29.04.1993 to the appellants/defendants is affirmed. The appellants/defendants are entitled to + share in the suit land after partition.
(36) In the facts and circumstances of the case, parties shall bear their own cost. A decree be drawn accordingly.
JUDGE