Madhya Pradesh High Court
Narayan Krishnaji Joshi And Anr. vs Krishnaji Mahadeo Joshi on 29 July, 1957
Equivalent citations: AIR1958MP86, AIR 1958 MADHYA PRADESH 86, 1957 MPLJ 755
JUDGMENT Dixit, J.
1. This is an appeal from a decision of the District Judge of Ujjain rejecting a petition filed by the appellants for the probate of the last will and testament of one Dhondu Balaji Joshi who died at Ujjain on 25th February, 1950. The will that is set up is dated 25th February, 1950, and the appellants claim that they are the cousins of the deceased and that Under the will of which they have been appointed executors, property of the value of Rs. 10564-3-0 has been disposed of in their favour.
The respondent, who also says that he is the cousin of the deceased, opposed the petition for the grant of probate on the ground that the will propounded was invalid for lack of testamentary capacity on the part of the testator and that the petitioners had obtained the will from the deceased through fraud, and undue influence. The learned District Judge came to the conclusion that the petitioners had failed to satisfy him that the instrument set up by them was the last will of a free and capable testator.
2. Having heard Mr. Chaphekar, learned counsel for the appellants, we have reached the conclusion that this appeal must be dismissed. The settled rule with regard to the onus of proof in the case of wills is as stated by Lindley L. J. in Tyrrell v. Painton, 1894 P 151 (A), thus :
"These rules are two : The first, that the onus probandi lies in every case upon the party propounding a will, and he must satisfy the conscience of the Court that the instrument so propounded is the last will of a free and capable testator. The second, is, that if a party writes or prepares a will under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the Court and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed, and it as judicially satisfied that the paper propounded does express the true will of the deceased."
3. In this case, the circumstances in which the alleged will came to be made are that the testator Dhondu, was ill for several days preceding 25th February, 1950, on which date he died; the will was said to be executed and registered on the night of 25th February, 1950, and Dhondu died within 45 Minutes or so of the registration of the will; at the time of the execution and registration of the will Dhondu was so very ill and feeble that he was not in a position to speak anything or even understand anything.
The deceased was a Patwari and could read and write. But ho did not sign the will; his thumb-impression was, however, affixed on the will. These circumstances are amply proved by the evidence of the appellants' own witnesses. Mr. Rasiklal, Pleader, stated that Dhondu suggested to him to prepare a will by a sign of his hand and that at that time his mental condition was such that he was not able to give any instructions with regard to the details of the will, and that he was not even able to speak.
Vamanrao, a witness of the appellants, who prepared the draft of the will gave the evidence that he took the draft to Dhondu two days before his death and suggested to him that he should make a will according to the draft but that the testator did not say anything. Vamanrao further added that at the time the will was registered Dhondu was not in a condition to understand any writing. He stated :
^^e`rd dh gkyr ,slh ugha Fkh fd og le>k ldrk fd D;k fy[kki<h gks jgh gSA** Vamanrao further stated that Dhondu died same 30 or 45 minutes after the registration of the will. Balaprasad, another witness of the appellants, made the statement that when the Sub-Registrar read out the will and asked Dhondu whether he approved It the testator merely moved his neck and did not say anything. On this evidence there can be no doubt as to the correctness of the conclusion drawn by the learned District Judge that the deceased had not the requisite testamentary capacity.
4. Mr. Chaphekar, learned counsel for the appellants, had nothing to say against the statements of Rasiklal, Vamanrao and Balaprasad. He, however, faintly and with some hesitation asked us to consider the statement of Shri Mazharali, the Sub-Registrar, who has been disbelieved by the learned District Judge. Mr. Mazharali was a civil Judge and also a Sub-Registrar on 25th February, 1950.
He went over to the house of the deceased on the night of 25th February, 1950, and made the registration endorsement on the will that the document was read over to the executant and understood by him. The registration of a will is no doubt a solemn act and the fact that a will was registered during the life-time of the testator is not without any importance. But in determining the significance of this fact, a distinction must be drawn between cases where the dispute is as to the execution of the will and cases in which the question raised is about the testamentary capacity of the executant.
The scope of enquiry by the registering officer at the time of registration does not always cover all the circumstances which the Court has to consider when called upon to determine a question of testamentary capacity. The registration endorsement that the will was read over to the executant and understood by him cannot, therefore, be taken as decisive of the testamentary capacity of the testator. The significance of the registration and the effect of the evidence of the Sub-Registrar have to be appraised with due regard to the physical and mental condition of the testator at that time.
Now, in this case Shri Mazharali, who is now Additional District and Sessions Judge at Shajapur, first stated that the will was presented by Dhondu himself for registration; that he read out the will to Dhondu and thereafter Dhondu admitted the execution of the will; and that he had made an endorsement on the will that he found Dhondu in a sound and conscious state. The endorsement which Mr. Mazharali made was ^^?kksMw ds gk'kgokl nq:Lr ik;s x;sA** Mr. Mazharali, however, contradicted himself later on by saying that when he reached the house of Dhondu, he learnt that his condition was very serious and bad; that he did not remember whether Dhondu himself presented the document for registration; and that he did not have any talk with Dhondu before the document was registered but that when he read over the will to Dhondu, Dhondu said ^^eatwj gSA** Mr. Mazharali went to the extent of saying that it was not correct to suggest that at that time Dhondu was not in a position even to say the words ^^eatwj gSA** Shri Mazharali was not able to make any definite statement as to who took him to the house of Dhondu or who gave the will to him for registration. It is difficult to reconcile the statement of Shri Mazharali with the evidence given by Rasiklal, Vamanrao and Balaprasad, and of Ramanlal Vaidya who was attending the deceased and who stated that the testator was unconscious from the evening of 25th February 1950, itself and that he was not able to talk or say anything except uttering ^^gka] gwa** when hailed loudly.
The Sub-Registrar's statement that the will was presented by Dhondu for registration to him and that thereafter when it was read over to Dhondu, he admitted the execution thereof saying ^^eatwj gSA** cannot be accepted having regard to the physical condition of Dhondu deposed to by the appellant's own witnesses. It may be that the will was read over to the testator by the Sub-Registrar and that at that time Dhondu made some movement of his head which the Sub-Registrar took as a symptom of Dhondu's understanding the contents of the will.
The Sub-Registrar is no doubt entitled to form his own opinion as to whether Dhondu understood the contents of the will. But the proved circumstances of the case make it extremely doubtful whether when the will was read out to Dhondu, he heard anything or understood anything. Even if the testator had been able to utter the words ^^eatwj gSA** that would not have sufficed to show that he was really capable of knowing the nature of the disposition made in the will that was being registered.
The Sub-Registrar's evidence does not really establish the fact that the testator was in a sound disposing state of mind, even at the time of registration and still less at the time of the actual execution of the will. In giving the statement that he did, Shri Mazharali's endeavour was clearly to justify his act of registering a will of a dying person who, as the evidence shows, was not able to speak or understand anything at the time the will was read out to him and registered.
This endeavour only heightens the enormity of his unjustifiable act of the registration of the will in this case. We do not wish to criticise further the evidence of Shri Mazharali, But we must say that this Court desires it to be understood that it deprecates and strongly disapproves of any Judicial Officer giving evidence of the type that Shri Mazharali did.
5. For the above reasons, this appeal is dismissed without any order as to costs.
Newaskar, J.
6. I agree.