JUDGMENT Kharche S.T., J.
1. By invoking the jurisdiction of this Court under Section 100 of the Code of Civil Procedure, all these four appeals have been filed challenging the judgment dated 31-3-1988 and decree passed by the learned 2nd Additional District Judge in Regular Civil Appeals No. 169/ 85, 172/85, 173/85 and 178 of 1985 whereby the common judgment dated 5-7-1985 passed by the learned Civil Judge, Sr. Dn., in Special Civil Suit No. 46 of 1980 has been confirmed and the plaintiffs suit for possession has been dismissed. Since the questions involved in these appeals are common, all these appeals are being disposed of by this common judgment.
2. Brief facts are required to be stated as under :
The original plaintiffs are the nephews of deceased Dalpat who died on 13-1-1979. The defendant Sarubai is the widow of Dalpat whose first marriage was performed with one Gulab Bonde and out of the first marriage Onkar was born to her. After the death of Gulabrao, Sarubai married Dalpat and she was living with him till his death. Dalpat had left the immovable property including agricultural field as well as the house property which is said to have been gifted in favour of the plaintiffs vide giftdeed dated 30-10-1969. The plaintiffs contended that thereafter the relations between Sarubai and Dalpat became strained and therefore Dalpat had executed a Will dated 13-12-1977 (Ex. 74) in their favour bequeathing the property to them, but this Will was revoked in the year 1979. Dalpat had executed his last Will (Ex. 78) on 11-1-1979 by which he had bequeathed the property in favour of the plaintffs. The last Will was registered and was duly attested on 11-1-1979 when Dalpat was in a fit state of mind and he had executed the said Will by putting his thumb impression on it out of love and affection in favour of the plaintiffs as he was frustrated with the behaviour of his wife Saru. Therefore, the plaintiffs instituted four different suits seeking possession on the strength of the Will.
3. The defendant Sarubai strongly resisted the suit claim and contended that the last Will dated 11-1-1979 has not been duly proved and it has been executed in suspicious circumstances for which no evidence has been adduced by the plaintiffs to explain those suspicious circumstances and, therefore, the plaintiffs are not entitled to the possession of the property which are said to have been bequeathed in their favour.
4. The learned Civil Judge, Sr. Dn., on appreciation of the evidence recorded the finding that the plaintiffs have failed to prove that deceased Dalpat had bequeathed the suit property in their favour under the Will dated 11-1-1979 and dismissed all the suits. Being aggrieved by the judgment and decree passed by the trial Court, the unsuccessful plaintiffs carried appeal to the District court. The learned 2nd Additional District Judge on re-appreciation of the evidence as well as considering the law position has recorded the finding that the plaintiffs have failed to establish that the Will dated 11-1-1979 is a genuine Will executed by Dalpat and consequently the Will is not the last Will of Dalpat and is not a valid Will. Consistent with these findings the Appellate Court dismissed all the appeals. It is this judgment and decree that has been challenged in these appeals.
5. The learned Counsel for the plaintiffs contended that Ex. 73 is a hand written document which was the first Will prepared on 10-12-1977 and thereafter the Will (Ex. 74) was executed on 13-12-1977 by Dalpat and this Will was revoked. He contended that the last Will was executed on 11-1-1979 (Ex. 78) by Dalpat in presence of attesting witnesses. He contended that the witness Harikisen (P.W. 6) is the attesting witness through whom execution of Will has been duly proved. He contended that the Will was registered in presence of Sub-Registrar who was called at home on that day. He contended that the plaintiffs have examined the medical expert to show that the deceased Dalpat was in a fit state of mind and, therefore, execution of the Will has been duly established. He contended that the only requirement of law is that 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 by Section 63 of the Indian Succession Act. He contended that 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. He contended that in the present case, there are no suspicious circumstances and moreover the attesting witness has also been examined and the last Will dated 11-1-1979 executed by Dalpat has been duly proved. He contended that both the courts below have not appreciated the evidence in proper perspective and recorded wrong findings and as such the judgments and decrees passed by both the courts below cannot be sustained in law. In support of these submissions he relied on the decision of the Apex Court in (Uma Devi Nambiar and Ors. v. T.C. Sidhna (Dead)) .
6. Mr. Darda, learned Counsel for the defendant fully supports the impugned judgments and decrees passed by both the courts below and contended that the courts below have recorded concurrent finding that the Will dated 11-1-1979, which is said to have been executed by Dalpat, has not been duly proved as is required under law and moreover there are so many surrounding suspicious circumstances for which no explanation has been furnished by the plaintiff and, therefore, no case has been made out for interference into the impugned judgments and decrees. He contended that the last Will dated 11-1-1979 has not been proved in accordance with law and, therefore, no substantial question of law arises in these appeals and the same may kindly be dismissed.
7. This Court has given thoughtful consideration to the contentions canvassed by the learned Counsel for the parties. It is well settled law that a Will is a document which has got to be proved in accordance with the provisions of Section 63 of the Indian Evidence Act which deals with the execution of the unprivileged Will. It lays down that 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 discretion. It further lays down that the Will shall be attested by two or more witnesses, each of whom has seen the testator signing or affixing his mark to the Will or has seen other person sign the Will in the presence and by the direction of the testator and each of the witnesses shall sign the Will in the presence of the testator. Section 68 of the Evidence Act mandates examination of one attesting witness in proof of a Will, whether registered or not. The law relating to the manner and onus of proof and also the duty cast upon the Court while dealing with a case based upon a Will has been examined in considerable detail in several decisions.
8. In Umadevi's case , cited supra, the Apex Court has followed the decision of Constitution Bench of Apex Court in (Shashi Kumar Banerjee v. Subodh Kumar Banerjee) and reproduced para 4 of the said judgment which is 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 by Section 63 of the Indian Succession Act, the onus of proving the Will is on the propoundeir 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. 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. If the propounder himself takes part in the execution of the Will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the Court would grant probate, even if the Will might be unnatural and might cut off wholly or in par near relations.
9. Having regard to the settled position of law in respect of discharge of onus of proof in respect of proving the last Will, it would be obvious that both the courts below have considered and appreciated the evidence and have recorded the finding that there are surrounding suspicious circumstances. The first circumstance is that one hand written document (Ex. 73) purported to be the Will of Dalpat was written on 10-12-1977, thereafter the second Will (Ex. 74) was executed on 13-12-1977 by which the properties were bequeathed in favour of the plaintiffs but without reserving the right of maintenance of defendant Sarubai and the last Will (Ex. 78) is said to have been executed on 11-1-1979 just before two days of death of Dalpat who died on 13-1-1979. The last Will is said to have been registered, but it is a fact that the Sub-Registrar was called upon to remain present at home in whose presence the propounder is said to have executed the said Will by putting his thumb impression. Moreover, in this Will (Ex. 78) the life interest in favour of Sarubai has been created. The plaintiffs did not explain as to why the life interest was not reserved in favour of the defendant at the time of execution of the Will dated 13-12-1977. It appears from the various dates that the propounder was suddenly thinking to dispose of his properties, and in the Will dated 13-12-1977 he did not create any life interest in favour of his wife and for the first time on 11 -1 -1979 just two days before his death he had created life interest in favour of the defendant Sarubai. Therefore it is not possible to accept the contention of the learned Counsel for the plaintiffs that there were strained relations between Dalpat and his wife and, therefore, the properties have been bequeathed in favour of the plaintffs. Moreover, the Appellate Court has observed in para 10 of the judgment as under :
As to the execution of Will, evidence of attesting witness Shri Bhupta (P.W. 6) Ex. 77 shows that he did not know other attesting witness Gomaji nor he could say whether he was present at the time of execution of the Will. Admittedly, Gomaji is a peon working in the school of appellant and obviously at the relevant time he must be under his authority since he was cited as attesting witness in both documents at Ex. 74 and 78. The plaintiff did not give any explanation for his non-examination before the Court.
10. In this view of the matter, examination of other attesting witness was essential. However, the plaintiff who is the pro-pounder of the Will appears to have executed the Will in suspicious circumstances and behind the back of the defendant which throws a doubt on its veracity and genuineness. The surrounding circumstances also point out that the Will Ex. 78 was not executed by deceased Dalpat out of his free Will and consent but the appellants appear to have taken advantage of fragile, physical and mental health of the deceased and his helplessness in the circumstances at the relevant time. Consequently, the Appellate Court has confirmed the judgment and decree passed by the trial Court by which the suit stood dismissed.
11. The plaintiffs have examined the medical expert to show that Dalpat was in a fit state of mind for executing the Will in their favour, but Dr. Rathi in whose hospital Dalpat was admitted, has not been examined. In such circumstances, it is difficult to uphold the contention of the learned Counsel for the plaintiffs that the dispositions made in the Will were natural, probable and fair. The Appellate Court has recorded finding of facts based on proper appreciation of evidence and since the Appellate Court is the final Court for fact finding, this Court is not required to re-appreciate the evidence. Fact remains that in view of the suspicious surrounding circumstances, it cannot be said that the Will is a genuine Will. On the contrary, the suspicious circumstance would show that the dispositions made in the Will were unnatural, improbable and unfair in the light of the circumstances. Therefore, this Court is of the considered opinion that no substantial question of law is involved in this appeal which is liable to be dismissed. In the result, the appeal is dismissed. There shall be no order as to costs.