Indian Kanoon - Search engine for Indian Law

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. once these elements are established, the onus which rests on the propounder is discharged. But there may be cases in which the execution of the will itself is surrounded by suspicious circumstances, such as, where the signature is doubtful, the testator is of feeble mind or is overawed by powerful minds interested in getting his property, or where in the light of the relevant circumstances the dispositions appear to be unnatural, improbable and unfair, or where there are other reasons for doubting that the dispositions of the will are not the result of the testator's free will and mind. In all such cases where there may be legitimate suspicious circumstances those must be reviewed and satisfactorily explained before the will is accepted. Again in cases were the propounder has himself taken a prominent part in the execution of the will which confers on him substantial benefit that is itself one of the suspicious circumstances which he must remove by clear and satisfactory evidence. After all, ultimately it is the conscience of the Court that has to be satisfied, as such the nature and quality of proof must be commensurate with the need to satisfy that conscience and remove any suspicion which a reasonable man may, in the relevant circumstances of the case, entertain. See H. Venkatachala Iyengar v. B. N. Thimmajamma & Ors;(1) and Rani Purnima Devi and Anr v. Kumar Khagendra Narayan Dep & Another.(2) In the latter case this Court, after referring to the principles stated in the former case emphasised that 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 hi to prove the same. It has been further pointed out that 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 which may be unnatural or unfair or improbable when considered (1) [1959] Supp. 1 S.C.R. 426.

In the light of the above guide-lines, the contentions urged against the grant of probate of the will will have to be considered. Before the Appellate Court eight suspicious circumstances were marshalled which were-(i) Saraswati Arora who was the sole recipient of the entire benefit of the will herself took part in the execution of the will at the time of execution; (ii) the dispositions in the will by the testator were unnatural, improbable or unfair as was apparent from the exclusion of the mother Wazir Debi, as well as the exclusion of all the children of Bhim Sain, particularly of Rita, the minor daughter and of Shanta who was at that time unmarried; (iii) none of the attesting witnesses was wholly disinterested; (ii) that no trained lawyer appears to have been engaged in the drawing up or execution of the will; (V) no special reason could be adduced to explain the execution of the will on February 8. 1961 ; (vi) the evidence in support of the will, parti- cularly the evidence of the propounder was unsatisfactory and interested; (vii) there was evidence to show that some alteration had been made in the date of the will; and (viii) the attestation clause seems to have been typed in a separate operation after the typed will had been taken out of the typewriter and then reinserted.

The Appellate Court agreeing with the Trial Judge held that the first respondent was merely present at the time of the execution of the will and did not have anything to do with its execution. The case of the first appellant was that as a condition of the marriage arrangement, the will was executed and because of that Bhim Sain made no provision for the maintenance of his aged mother or for the maintenance and marriage of his youngest daughter Rita who was then studying. Instead he gave away the entire property to the first respondent which is a suspicious circumstance and raises an inference of undue influence. This submission was clearly negatived, and on the (1) A.I.R. 1924 P.C. 28. (3) (1973) 2 S.C.R. 541.

In this case, however, there is little or no difficulty in finding out the probable reason why Bhim Sain while making the will did not provide for his mother and his youngest daughter. These reasons are elaborately set out in the judgment of the Appellate Court. No doubt the learned Judge who delivered the judgment of the Bench did say that the exclusion of the mother as well as his children particularly Rita the minor daughter and Shanta showed the disposition to be unnatural, improbable and unfair and would give rise to suspicious circumstances. in order to understand what the testator intended and why he intended so, one has to get into his arm-chair to ascertain his frame of mind and the circumstances in which he made the will. As we have stated, Bhim Sain lost his first wife on April 13, 1959. On August 16, 1960 just over a year after her death, Bhim Sain went to the police station and made a complaint against his son (Surendra Pal). This complaint as recorded in the general diary showed that Surendra Pal had been "continuously insulting, abusing and threatening to subject him to violence and incapacitate him and deform him". According to Bhim Sein his son was doing all these because he had been found out in the act of removing jewelleries and cash from the vaults, safe and steel almirah. On August 25, 1960 nine days after his first complaint, Bhim Sain went to the Court of the Chief Presidency Magistrate and made a formal complaint against the appellant unders.350of the Indian Penal Code. The complaint which he lodged before the Court shows that he had tried to bring up his son properly by giving him a sound education and also by initiating him into his own line of business. The son, however, picked up "high ways of living and luxurious habits" and used to waste money recklessly. in order to bring him back to the normal path of life he thought of placing him in a responsible position so that he might be cured and with this end in view Bhim Sain made over his business ventures under the name and style of Card Board Paper Products Company to his son. After the death of his wife in April 1959 he thought that be would get his son married to a respectable family and hoped that such a marriage would induce him to settle down. Accordingly he got him married to a girl from a highly respectable family. But in spite of showering all his affection, his son (the first appellant) was insulting him and making demands upon him for moneys and putting him in fear of life. He then set out the details as to how the first appellant had removed jewelleries valued at about Rs. 25,774/- as also some cash from the locker of a Godrej Steel Almirah which used to be kept in the room of the first appellant, and how, when Bhim Sain discovered this loss and asked him about this theft, the first appellant flew into a rage, used provoking language and tried to assault him. Thereafter the first appellant was regularly threatening him and he had even removed his double-barrel gun and cartridges from his Almirah and kept it with him causing him constant fear. It will be observed that these complaints against the son, whatever may be the justification, were made long prior to the advertisement in the matrimonial column of the Sunday Tribune, Ambala. At this time Shanta the third daughter was admittedly living not with her father but with her brother the first appellant and so was Rita the youngest daughter. Though some attempt was made to show that Rita and Bhim Sain were on good terms, the evidence as pointed out by both the Courts belies the assertion. Rita, though 13 years old came back from the school even before the second marriage of her father. However, she did not stay with her father but lived with her brother. An attempt was made to show that the father used to go and see her when she went back to school and thereafter used to meet her at the Victoria Memorial. All this has been negatived. In our view, one thing stands out clearly and that is the relations between the father on the one hand and the first appellant and the two daughters on the other were strained and bitter. If at all, there was positive hostility between them. The son and the daughters never came to see Bhim Sain even when he was dying. The appellant did not take his son to see his grandfather even though the first appellant admitted that his father was anxious to see his grandson. The evidence of Amalendu that Bhim Sain had gone to see Rita in Simla has been disbelieved. The Trial Judge called Amalendu a coward and a liar. The Appellate Court considered his evidence to be unsatisfactory and rejected it. The conclusion to which both the Courts have arrived at is that Bhim Saint entered into an agreement with the first appellant in October 1960 long before the meeting between the first respondent and the deceased in answer to the advertisement had taken place. in that agreement Bhim Sain made provision for the maintenance and marriage of Shanta who was to reside with the first appellant. He had also provided for the maintenance and residence of Rita though in that agreement no mention was made about her marriage. The learned Advocate for the first appellant made much of this omission as also the omission to provide for the maintenance of his mother who was living with him. But as the learned Judges of the Division Bench of the Calcutta High Court pointed out, Bhim Sain was only 55 years of age when he married and made the will. He perhaps did not expect to die so soon, nor did lie think that he would not be able to perform the marriage of Rita, nor provide for the maintenance of his mother during her lifetime. Perhaps he did not entertain any doubt that the first respondent in whose favour he had willed the properties would not discharge the obligations which he would have to discharge when he was alive. At the time of the marriage, with a positively hostile family such as he had, the thing that would be uppermost in Bhim Sain's mind is what would happen to his wife if she was left unprovided for. Bhim Sain's family would consider Saraswati a stranger to the family and she would be regarded as an interloper even after her :marriage and if anything were to happen to him she would be left to the mercy of his inimical children. It is but natural for Bhim Sain in these circumstances to provide for his newly wed wife even without that wife asking or importuning her husband to do so. Apart from this thinking one important circumstance is however ignored, and that is, Saraswati was not a gold-digger as the expression goes. She was an educated lady, came from a good family, had been a medical practitioner for about 13 years, had her own status in life and was as lonely and longing for a male companion as Bhim Sain was for a woman companion. In the letter written by Puri to Bhim Sain's Personal Assistant giving particulars of Saraswati's education and family, she has described herself as follows :