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1 - 10 of 10 (0.34 seconds)Section 111 in The Indian Evidence Act, 1872 [Entire Act]
Section 114 in The Indian Evidence Act, 1872 [Entire Act]
Jagmohan Singh vs The State Of U. P on 3 October, 1972
In Jagmohan Singh v. The State of
U.P.(1) in which the constitutional validity of awarding of
capital sentence permissible under s. 302 Indian Penal Code
was-challenged, because the American Supreme Court in Furman
v. State of Georgia decided on June 29, 1972, of which only
a copy seems to have been filed, took a particular view
regarding awarding of the capital sentence. The arguments
advanced before the U.S. Supreme Court were adopted in toto
before this Court and in support of the arguments that
capital sentence was unconstitutional substantial reliance
was placed on the social statistics and data prevailing in
foreign countries. This method and approach occasioned the
following comments from the Court to which one of us (Beg,
J.) was a party, Palekar, J., speaking for the Court
observed at p. 550 :
Smt. Kamla Kunwar vs Ratan Lal And Ors. on 17 December, 1969
barring some special ones created by other enactments. has
to be related to a provision of the Evidence Act.
It is true that Wills are. transactions of a nature which
give rise, to certain special considerations affecting their
validity irrespective of the time when or the country in
which they are made. Dispute over Wills invariably arise
after the testator's death so that the alleged maker of the
Will is not before the Court to deny the execution or to
testify about the circumstances in which the alleged
disposition was made. There are such possibilities of fraud
and fabrication, particularly in cases of old and feeble
persons, that Courts have to be very circumspect in dealing
with: them and scrutinize the surrounding circumstances very
carefully. This is not less, if not much more, necessary in
a country like ours where misplaced confidence of un-
sophisticated persons is often abused by cunning and
unscrupulous individuals and perjury is not less frequent
than elsewhere. One of us, Beg., J., had occasion to
examine this aspect of the matter in Smt. Kamla Kunwar v.
Ratan Lal,(1) where it was observed, inter alia, at p. 307 :
H. Venkatachala Iyengar vs B. N. Thimmajamma & Others on 13 November, 1958
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.
The Indian Penal Code, 1860
Section 302 in The Indian Penal Code, 1860 [Entire Act]
Rani Purnima Devi And Another vs Kumar Khagendra Narayan Dev And Another on 22 August, 1961
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.
Motibai Hormusji Kanga vs Jamsetji Hormusji Kanga on 30 November, 1923
in the light of the relevant circumstances. if the caveator
does not discharge the burden which rests upon him in
establishing the circumstances which show that the will had
been obtained by fraud or undue influence a probate of the
will must necessarily be granted if it is established that
the testator had full testamentary capacity and had in fact
executed it validly with a free will and mind. The
observations of the Privy Council in Motibai Hormusjee Kanga
v. Jamsetjee Hormusjee Kanga(1) support the above
proposition. Mr. Ammer Ali observed at p. 33 "It is quite
clear that the onus of establishing capacity lay on the
petitioner. It is also clear that if the caveator impugned
the will on the ground that it was obtained by the exercise
of undue influences, excessive persuasion or moral coercion,
it lay upon him to establish that case." in the light of
what has been stated if the various requirements of a valid
will are established, then as observed by the Privy Council
in Motibai Hormusjee Kanga's came at p. 33 'A man may act
foolishly and even heartlessly; if he acts with full com-
prehension of what he is doing the Court will not interfere
with the exercise of his volition."
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