Allahabad High Court
Man Singh Son Of Chohal vs Dharam Singh Son Of Munshi Singh on 27 March, 2006
Equivalent citations: 2006(4)AWC3453
Author: S.N. Srivastava
Bench: S.N. Srivastava
JUDGMENT S.N. Srivastava, J.
1. This second appeal has been preferred assailing the judgment and decree dated 25.2.1987 in Civil Appeal No. 127 of 1980 passed by District Judge Saharanpur whereby he reversed the judgment and decree dated 29.2.1980 rendered by the trial court attended with the order of decreeing suit for cancellation of the Will dated 14,10.1976 (Ex. A-16) in O.S. No. 153 of 1978.
2. The plaint allegations inter-alia are that one Munshi, resident of village Bailu Pargana Gangoh District Saharanpur who was the owner of the property in dispute, adopted the plaintiff and thereafter in order to scotch the possibility of future dispute, executed a Will on 1.10.1973 in his favour. The other defendants namely defendants 1 and 2 who are the sons of brother of Munshi, after gaining knowledge of execution of the Will, tried to abduct Munshi and ultimately succeeded in whisking him away on 29.9.1976 in respect of which an application was made to Superintendent of Police Saharanpur. The further allegations are that during the period, the aforesaid Munshi was kept in confinement, the defendants procured a Will executed on 14.10.1976 before Sub Registrar, Sadar Saharanpur despite knowing well that the property fell within the circle of Tahsil Nakur District Saharanpur; that the Will in question executed on 14.10.1976 was null and void the same having been obtained by fraud and by exerting undue influence; that during pendency of suit, the defendant No. 2 executed a registered sale deed in favour of defendant No. 3, namely, All Hasan on 24.5.1978. Besides seeking relief of cancellation of Will in question, a further relief of cancelling of sale deed executed on 24,5.1978 was also prayed for. On the other hand, the defendant filed written statement wherein the allegations of abduction and illegal confinement have been specifically denied and it was pleaded that Munshi had executed the Will dated 14.10.1976 out of his free-will and volition and the allegations of fraud, undue influence and of procuring execution of registered Will dated 14.10.1976 have been categorically repudiated. It has further been pleaded that the defendants were in actual physical possession over the property and that the plaintiff committed murder of Munshi upon gaining knowledge about the Will dated 14.10.1976 and was also tried though, ultimately, he was acquitted; that the Will in favour of defendants was rightly executed by Munshi and there was no illegality, fraud or undue influence as alleged by the plaintiff and in the finally he prayed for dismissal of the suit.
3. It would appear from the record that the trial court framed as many as eight issues. The quintessence of the finding recorded by the trial court is that the Will dated 14.10,1976 was a valid document; that the plaintiff has failed to prove from any materials on record that the Will dated 14.10.1976 was obtained by fraud or by exerting undue influence; that the execution and attestation of the Will was proved as required under the law and in the ultimate analysis, it dismissed the suit vide judgment and decree dated 29.2.1980.
4. An appeal preferred against the said judgment and decree also culminated in being dismissed by the appellate court and thereafter the matter was taken in second appeal No. 3391 of 1980 before this Court. It would appear from the record that the second appeal and cross objections in the first round of litigation were allowed vide judgment and decree dated 15.3.1986 of the Court and the case was remanded to District Judge, Saharanpur to give verdict on limited points as indicated in the judgment attended with further direction that a clear finding be recorded in the light of observations made in the judgment further observing that then controversy arising from the appeal of the plaintiff would be redecided. According to the view held by this Court in the aforesaid judgment indicated in the judgment, no categorical finding had been recorded on the question whether the Will was genuine and whether it superseded the earlier Will and further the main controversy arising out of appeal of the plaintiff having not been decided by the lower appellate court, the matter was found fit to be relegated for being decided on limited points. In view of remand, the appeal was re-registered by the District Judge Saharanpur and vide judgment and decree of the lower appellate court dated 25.2.1987, the appeal was allowed on the grounds that the case bristled with suspicious circumstances which, to rephrase, shocked the conscience of the Court and hence it could not be said that the Will was genuine and was executed by Munshi in favour of defendant-Man Singh and further that the Will Ex. 6 dated 17.10.1973 executed in favour of plaintiff appellant Dharam Singh was not revoked by execution of subsequent Will (Ex.A 16).
5. This Court admitted this second appeal on substantial questions of law enumerated as substantial questions of law Nos. 1 to 3 which are quoted below.
(1) Whether the execution of the Will dated 14.10.1976 being admitted between the parties and further having been duly proved by the evidence of the appellant, the said Will could be cancelled without any finding that the same was obtained by fraud or undue influence?
(2) Whether there is a presumption of the Will having been executed by the testator of his free will and in a fit disposing state of mind after full comprehension of the contents of the same in view of the endorsement by the Registrar to the above effect on the Will and that the same has not been rebutted on the part of respondent No. 1?
(3) Whether there exists any suspicious circumstance about the Will?
6. Heard learned Counsel for the parties and perused carefully the materials on record.
7. The learned Counsel for the appellant canvassed that none of the grounds spelt out by the lower appellate court for treating the circumstances as enumerated in the judgment as suspicious circumstances could be sustained. It was further urged that the execution of the Will dated 14,10.1976 was proved without there being an iota of suspicious Circumstance and the circumstances cited by the lower appellate court as suspicious circumstances do not constitute suspicious circumstances nor are they borne out from the record. It is further canvassed that the findings of suspicious circumstances are perverse and further finding of lower appellate court that the same shock the conscience of the court are unsustainable in law. It was further canvassed that the entire materials on record clearly go to show that the Will was rightly/duly executed and the Will in favour of plaintiff stood revoked by the Will dated 17.10.1977 which was proved to be a genuine will and finding to the contrary is against the weight of evidence on record. The allegation of fraud and undue influence which is basis of plaint was not found as correct and hence suit is liable to be dismissed.
8. Per contra, Sri Manoj Mishra, appearing for respondents contended that the lower appellate court reckoned with relevant materials, which constituted suspicious circumstances inasmuch as the circumstances which were treated as suspicions circumstances were not explained by the defendant appellant. He further contended that both the attesting witnesses are related and not independent witness coupled with the fact that suspicious circumstances spelt out in the judgment of the appellate court clearly make out a case that no Will dated 14.10.1976 was executed and it was nothing but a fraud committed on Munshi. It is further canvassed that the finding of the lower appellate court is established from the materials on record attended with further contentions that merely non-reversal of some of the grounds would not impair the soundness of the judgment.
9. Both the learned Counsel for the parties copiously cited decisions in support of their respective case, which I propose to deal with in the latter part of this judgment.
10. Having considered the rival submissions of the learned Counsel for the parties, I feel called to take up substantial question No. 3 relating to the aspect of suspicious circumstance about execution of Will dated 14.10.1976 which has bearing on the controversy involved in this appeal.
11. From a close scrutiny of the decision of the lower appellate court it transpires that following circumstances have been considered as suspicious circumstances in the present case.
(a) That the deceased Munshi was a resident of village Balu where the property in question also situates. The village Balu falls within Tahsil Nakur where the office of Sub Registrar also exists but registration of Will dated 14.10.76 Ex A 16 was done at Saharanpur Sub Registrar's office which is at a greater distance from village Balu than Tahsil Nakur.
(b) That Ex A-5 which is a certified copy of the application dated 28.9.77 makes it clear that the plaintiff reported the abduction of Munshi by defendants to the Police. This also constitutes suspicious circumstance.
(c) That both the attesting witnesses were related to defendant Man Singh who is the beneficiary under the Will.
(d) That it is said by the defendant that the deceased Munshi was hospitalized and treated in district Hospital Saharanpur but defendant could not produce any documentary evidence to prove hospitalization of Munshi.
(e) That no independent evidence was produced on behalf of defendant that Munshi was in village Balu before execution of the will dated 14.10.1976.
(f) That advocate who advised to get registration of will at Saharanpur was not examined in the court which might explain the circumstances of registration of will at Headquarter Saharanpur.
(g) That it was therefore held that these suspicious circumstances were not satisfactorily explained and as such it is not proved that the Will in favour of plaintiff executed on 1.10.1973 was revoked.
12. Before considering the arguments of both the learned Counsels for the parties it is necessary to make a survey of certain case-laws which are germane to the controversy involved in the present case. The first case in which the Apex Court has considered the law relating to suspicious circumstances is H. Venkatachala Iyengar v. B.N. Thimmajamma and Ors. (1959) Suppl. 1 SCR 426 in which speaking on behalf of the Bench Justice Gajendra Gadgakar laid down the following principles.
1. Stated generally, 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 in such matters. As in the case of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty.
2. Since Section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by Section 68 of the Evidence Act, 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.
3. Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will.
4. Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature a feeble mind, unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the Court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator.
5. It is in connection with wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. That test emphasizes that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator.
6. If a caveator alleges fraud, undue influence, coercion etc 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 raise a doubt as to whether the testator was acting of his own free will And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter.
13. The matter was again considered by the Apex Court in Jaswant Kaur v. Amrit Kaur AIR 1997 SC p 74- a Three Judge Bench decision-in which it was laid down that in cases where the execution of a will is shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant. What, generally, is an adversary proceeding becomes in such cases a matter of the court's conscience and then the question which arises for consideration is whether the evidence led by the propounder of the will is such as to satisfy the conscience of the court that the will was duly executed by the testator. It is impossible to reach such satisfaction unless the party which sets up the will offers a cogent and convincing explanation of the suspicious circumstances surrounding the making of the will. Similarly in Kartar Kaur v. Milkhu and Ors. AIR 1997 SC 443, the Apex Court held that where there are suspicious circumstances, the onus should be on propounder to explain them to the satisfaction of the Court before accepting its genuineness. Another case on the point is Meenakshiammal and Ors. v. Chandrasekaran and Anr. in which it was held that the onus to prove undue influence, fraud, collusion, is upon person making such allegations and mere presence of motive and opportunity for the same are not enough. The above principles were also followed in P.P.K. Gopalan Nambiar v. P.P.K. Balakrishnan Nambiar and Ors. 1994 (Suppl.) R.D. 329 (SC) and Ramabai Padmakar Patil v. R.V. Vekhande 2003 (95) RD. 640.
14. The first suspicious circumstance considered by the lower appellate court is that village Balu lies within the sub-district of Tahsil Nakur where Sub Registrar's office Is situated but the registration of Will was preferred at Saharanpur Sub Registrar's office which lies at a greater distance from village Balu than Tahsil Nakur. While considering this circumstance, it is necessary to consider the relevant provisions of law relating to registration. Sections 17, 28 and 29 of the Registration Act maybe abstracted below.
17. (1) The following documents shall be registered if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which Act No. XVI of 1864, or the Indian Registration Act, 1866 (XX of 1866), or the Registration Act, 1871 (VII of 1871), or the Indian Registration Act 1877 (III of 1877),or this Act came or comes into force, namely,
(a) instruments of gift of immoveable property;
(b) other non-testamentary instruments which purport or operate to create, declare assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immoveable property;
(c) non-testamentary instruments, which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest;
(d) leases of immoveable property from year to year, or for any term exceeding one year, or reserving a yearly rent; and
(e) non-testamentary instruments transferring or assigning any decree or order of a court or any award when such decree or order or ward purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immoveable property....
x x x x x x x x x "18. Transfer in perpetuity for benefit of public.-The restrictions in Sections 14, 16 and 17 shall not apply in the case of a transfer of property for the benefit of the public in the advancement of religion, knowledge, commerce, health, safety, or any other object beneficial to mankind."
X x x x x x x x x
28. Save as in this part otherwise provide, every document mentioned in Section 17, Sub-section (1), Clauses (a), (b), (c), (d) and (e) Section 17, Sub-section (2) in so far as such documents affects immoveable property and Section 18, Clauses (a), (b), (c), and (cc) shall be presented for registration in the office of a Sub Registrar within whose sub-district the whole or some portion of the property to which such document relates is situated.
X x x x x x x x x "29. (1) Every document not being a document referred to in Section 28, or a copy of a decree or order, may be presented for registration either in the office of the Sub Registrar in whose sub-district the document was executed or in the office of any other sub-Registrar under the State Government at which all the persons claiming under the document desire the copy to be registered.
(2) A copy of a decree or order may be presented for registration in the office the Sub Registrar in whose sub-district the original decree or order was made, or, where the decree or order does not affect immoveable property, in the office of any other Sub Registrar under the State Government at which all the persons claiming under the decree or order desire the copy to be registered.
15. From a combined reading of the above provisions, it would crystallize that like other documents, will is not compulsorily registerable at a place where the property is situated and it can be registered at any other place as well It has coma in the evidence that Munshi used to visit Headquarters quite often even earlier. The oral evidence of defendant also proves that he also used to visit Saharanpur for other purposes including treatment of Munshi. Normally, Saharanpur is a big city and being district headquarters, it is equipped with more facilities than Tahsil Nakur. As it was not compulsorily registerabie at Tahsil Nakur, it hardly matters if a persona gets registration of any document at a place where all the facilities are available, however, shorter or greater the distance may be from the village. Therefore, this Court is of the view that suspicious circumstances as considered by the lower appellate court on the count of registration of the will at Headquarters and not at Tahsil Nakur cannot be treated as suspicious circumstance and lower appellate court committed manifest error of law while considering this circumstance as suspicious circumstance.
16. The other circumstance considered by lower appellate court as suspicious circumstance is that the lawyer on whose advice the Will was registered at Sub-Registrar's office at Saharanpur on 14.10.1976 was not examined by the defendants to explain the circumstances. Having considered the matter in entirety, this Court is of the view that the Advocate on whose advice the Will was registered at Saharanpur was neither a scribe nor an attesting witness and in the circumstances, it was not necessary for the defendant to examine the lawyer, In this connection, the requirement of law to prove a will is to produce attesting witnesses. In the instant case, both the attesting witnesses were produced and they proved the execution/attestation of the Will. Non-production of lawyer who advised registration of will at Saharanpur, in my considered view, cannot constitute a suspicious circumstance. My above view is further reinforced by the Apex Court decision in Ramabai padmakar patil v. R.V. Vekhande 2003 (96) RD 640. Paragraph 9 of the said decision being relevant is excerpted below.
The learned District Judge has observed that Smt. Yamunabai was very old when she executed the Will and she was hard of hearing and was unable to walk. He further observed that Chhaya Dighe who typed the Will and one Shri Tiwari, Advocate, who was present at the time of preparation and execution of the will, were not examined and these facts together created a doubt regarding the authenticity of the will. As discussed earlier, in view of Section 63 of the Indian Succession act and the proviso to Section 68 of the Evidence Act, the requirement of law would be fully satisfied if only one of the attesting witness is examined to prove the will. That this had been done in the present case by examining PW-2 Raghunath Govind Sogale cannot be disputed. No infirmity of any kind had been found in the testimony of this witness. Chhaya Dighe merely typed the Will and she is not an attesting witness nor it is anybody's case that Smt. Yamunabai had put her thumb impression on the Will in her presence, therefore, he examination as witness was wholly redundant. The mere non-examination of the Advocate who was present at the time of preparation or registration of the will cannot, by itself, be a ground to discard the same.
17. Yet another circumstance considered suspicious by the lower appellate is that the attesting witnesses are related to defendant Man Singh who is beneficiary under the Will and are not independent witnesses but are interested witnesses. According to the view of this Court it does not constitute suspicious circumstance regard being had to the ratio of the decision in Rabindra Nath Mukherjee and Anr. v. Panchanan Banerjee and Ors. . In this case 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 who proved attestation of Will dated 14.1.1976 are interested, loses significance. This case was considered in the case of Madhukar Shinde v. Tarabai Aba Shendage in which at page 88 the Apex Court made following observation.
The two attesting witnesses on account of their acquaintance with the family, could have naturally known and identified the executants. The inference that merely because of being classmates they would be interested in obliging their classmate's mother so as to benefit her and go to the extent of deposing falsely is too far fetched.
18. In considering the above decisions, this Courts of the view that in case a will is executed in favour of a family member, normally a person chooses his relatives or the person closely associated with the family to stand witness, In the case in hand, the examination of two witnesses who are relatives, is quite normal and does not come within suspicious circumstance.
19. The yet another circumstance which was considered as suspicious circumstances does not exist at all particularly when both the attesting witnesses in their statement have clearly proved execution and attestation of will and nothing could be found in the cross examination coupled with the fact that the Will dated 14.10.1976 was executed in favour of family members by deceased Munshi who are descendants of his real brother.
20. The next suspicious circumstance delineated by the lower appellate Court was Ex, 5, which is a letter-dated 28.9.76 The lower appellate court considered this application and allegations made therein as suspicious circumstance shrouding the Will-dated 14.10.1976. From the materials on record, it is clear that in case the allegations had been established it would have been given a cause for cognizable offence. The allegations made in that application, Ex 5 were not proved by the plaintiff and there is no evidence on record that any action was taken by the police in the matter and therefore, the lower appellate court erred in law in considering this circumstance as suspicious circumstance.
21. The next circumstance, which was treated as suspicious circumstance was that papers relating to hospitalization were not filed. In my considered view, this circumstance cannot be treated as suspicious circumstance in view of the facts that it is proved from the record that Munshi used to visit Saharanpur quite often and he had been to Saharanpur for the purposes of his treatment as well. These facts stand established from the statements of D.Ws.
22. it is proved from the record that on 12.10.1976, the plaintiff committed theft in the house, which is a joint house of defendant and deceased Munshi and for this crime; he was convicted and sentenced for fine. From the plaint allegations, the plaintiff has made specific pleading that he was adopted son of Munshi and due to love and affection, the will was executed in his favour on 1.10.1973. The trial court specifically found on the basis of evidence of the parties that he was not an adopted son of Munshi and disbelieved plaintiff's case. The lower appellate court has not set aside this finding of the trial court.
23. In the above conspectus it would appear that all these facts are borne out from the record and are very relevant in the present case, which were not taken into consideration by the lower appellate court.
24. Considering the facts and circumstances of the case in totality, this Court is of the view that execution of the Will dated 14.10.1976 is not surrounded by any suspicious circumstance. As execution and attestation of will is completely proved; Munshi was in a fit and disposing mind; that it was a registered will and therefore, the lower appellate court erred in considering the circumstances as delineated in its judgment as suspicious circumstances.
25. In the result, this Court finds no suspicious circumstances existing about attestation and execution of the Will dated 14.10.1976 and the finding the plaintiff's case and the evidence adduced. The findings of the trial court have been recorded on valid grounds and are supported by evidence on record. It may be noted here that the trial court found that there is no fraud if or undue influence in the execution of the Will dated 14.10.1976. The lower appellate court did not record any finding on these two points. The suit is mainly based on the allegations that the Will dated 14.10.76 was outcome of the fraud and undue influence exerted by defendants on Munshi, the testator of the Will. The findings of the trial court are borne out from the materials on record. In the absence of any finding by the lower appellate court on the point of fraud and undue influence in the execution of the Will dated 14.10.1976, this Court is of the view that the lower appellate court illegally decreed the suit and the trial court rightly dismissed the suit on the finding that there is no fraud or that any influence was exerted on Munshi.
26. In view of the above discussions made above, the questions 1 and 3 are decided accordingly.
27. In the result, second appeal succeeds and is allowed and the impugned decree passed by the lower appellate court is set aside. The suit in consequence shall stand dismissed. In the facts and circumstances of the case, there will be no order as to costs.