Sita And Another vs Smt . Shushila Devi And Another
2018 Latest Caselaw 2990 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?AFR 
 
Court No. - 16
 

 
Case :- SECOND APPEAL No. - 894 of 2018
 
Appellant :- Sita And Another
 
Respondent :- Smt . Shushila Devi And Another
 
Counsel for Appellant :- Naveen Srivastava
 
Counsel for Respondent :- Sumit Daga
 

 
Hon'ble Ajay Bhanot,J.

Supplementary affidavit filed today is taken on record.

Heard Sri D.V. Jaiswal, learned counsel assisted by Sri Naveen Srivastava, learned counsel for the defendant-appellants, Sri Sumit Daga and Sri Umesh Chandra Shukla, learned counsel for the plaintiff-respondent no.1.

This second appeal arises out of judgment dated 24.07.2018 and decree dated 30.07.2018 passed by District Judge, Bhadohi in Civil Appeal No. 46 of 2017 (Sushila Devi Vs Smt. Sita and others).

Civil proceedings were brought by the plaintiff-respondents against defendant-appellants by instituting Original Suit No. 620 of 2012 (Sushila Devi Vs Sita Devi and others). In the suit the plaintiff prayed for quashment of the Will dated 03.03.2004, purportedly executed by the deceased husband of the plaintiff-respondents. The case of the defendant-appellants before the Trial Court was that the Will was a duly registered document. The deceased Vijendra @ Vrijendra, husband of the plaintiff-respondent no. 1 had good reason to disinherit her from his property, since she was a lady of easy virtue.

Trial Court dismissed the suit. Being aggrieved, the plaintiff-respondent took the judgment and decree passed by the Trial Court in appeal.

The appellate court found various suspicious circumstances surrounding the Will. The fact that a Will is disturbing the regular order of succession and disinheriting the wife and the son of the testator is a suspicious circumstance. It gives good reason for the Court to meticulously enquire into the genuineness of the Will and the issue of suspicious circumstances attending the will. In the course of the enquiry the appellate court found that the case of the defendant-appellants that the plaintiff-respondents, the wife of the deceased Vijendra was a lady of easy virtue which laid a strange relation between two, was false. Evidence supporting the allegations on which the defendant-appellant rests has been discussed by the appellate court in detail. The said evidence has been disbelieved by the appellant on valid grounds.

Secondly, the appellate court also found that on the basis of the testimonies of both the plaintiff and the defendant witness no. 1, that at the time of execution of the Will the deceased Vijendra was suffering from stomach cancer. His physical ailment was debilitating and impaired his ability to think objectively.

Thirdly, no reason was provided by the defendants as to why the deceased Vijendra would disinherit his son. No animosity between the deceased Vijendra and the son has been pleaded or proved.

The fourth suspicious circumstance which dents the credibility of the disputed Will is that it records the age of the deceased testator as 72 years as on the date of execution of the Will in the year 2004. However, the parivar register which was duly proved before the Trial Court records that the deceased testator was born in the year 1965. As per the parivar register the age of the deceased testator was 39 years on the date of execution of the Will deed while at the time of his death he was 41 years of age.

The aforesaid findings of fact narrated in the preceding paragraphs shall now be tested in the light of settled position of law set out in the succeeding paragraphs. This Court in the case of Champa Devi Vs Rama and others, reported at 2014 All.C.J. 1946, while considering the legal consequences of registration of a 'Will', held thus;

"38. In the context of 'Will', particularly when it was a registered document, though not compulsorily registrable under the statute, the Privy Council in Gopal Das and another Vs. Tri Thakurji and others, AIR 1943 PC 83, referring to Section 60 of Registration Act, 1908 (hereinafter referred to as the "Act, 1908") and Section 63 of Act, 1925, said, that even if endorsement of Registrar made under Section 60(2) of Act, 1908 is proved, it remains to be shown that the person admitting execution before Registrar was the same person, i.e., the executor. The registration of 'Will' does not create any presumption of its genuineness, which is to be proved independently and statement of the Registrar is only a piece of evidence which is to be assessed to judge how far it proves that the execution of 'Will' is in accordance with Section 63 of Act, 1925. This view has been referred to and reiterated in Karri Nookaraju Vs. Putra Venkatarao and others, AIR 1974 AP 13; Labh Singh and others Vs. Piara Singh, AIR 1984 P&H 270; and, Baru Ram and others Vs. Smt. Kishani Devi, 1993(1) Shim.L.C. 80."

The burden of proof, the authenticity of a 'Will' was cast on the propounder by the Hon'ble Supreme Court in the case of Niranjan Umeshchandra Joshi Vs Mrudula Jyoti Rao and others, reported at AIR 2007 SC 614. The Hon'ble Supreme Court in Niranjan Umeshchandra Rao (supra) laid down the law in the following terms;

"33. The burden of proof that the Will has been validly executed and is a genuine document is on the propounder. The propounder is also required to prove that the testator has signed the Will and that he had put his signature out of his own free will having a sound disposition of mind and understood the nature and effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharged. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In the case of proof of Will, a signature of a testator alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated. However, if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator. (See Madhukar D. Shende Vs. Tarabai Shedage 2002(1) SCR 132 and Sridevi and others Vs. Jayaraja Shetty and others, AIR 2005 SC 780). Subject to above, proof of will does not ordinarily differ from that of proving any other document."

The distinction in the method of proof of a 'Will' as compared to other documents was highlighted by the Hon'ble Supreme Court in the case of H. Venkatachala Iyengar Vs B.N. Thimmajamma, reported at AIR 1959 SC 443, the Hon'ble Supreme Court discussed the features which distinguished the Will from other documents and also the method of proofing a 'Will'. In para 20 the Hon'ble Supreme Court held thus;

"20. However, there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated."

The statutory injunction of proving a 'Will' is laid out in the Evidence Act. Considering the scheme of the Evidence Act in relation to proof of 'Will' the Hon'ble Supreme Court in Bhagwan Kaur Vs Kartar Kaur, reported at 1994 SCC (5) 135, laid down the law in the following terms;

"4. Decision on due execution of will, strictly speaking, is not primarily arriving at a finding of fact, as it has an admixture of law due to the specific requirements of Section 63 of the Indian Succession Act, 1925 towards due execution. A method is proceeded (sic provided) in which a will shall be duly executed. It inter alia provides that the will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary. In the matter of proof of a will Section 68 of the Indian Evidence Act, 1872 enjoins that if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution."

A similar issue claimed the attention of Hon'ble Supreme Court in the case of Bharpur Singh and others Vs Shamsher Singh, reported at AIR 2009 SC 1766, wherein the Hon'ble Supreme Court held thus;

"A Will must be proved in terms of the provisions of Section 63(c) of the Indian Succession Act, 1925. When the Will is allegedly shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and defendant. An adversarial proceeding in such cases becomes a matter of Court's conscience and propounder of the Will has to remove all suspicious circumstances to satisfy that Will was duly executed by testator wherefore cogent and convincing explanation of suspicious circumstances shrouding the making of Will must be offered. "

In such circumstances the burden of proving the Will in accordance with law clearly lay upon the defendant-appellant. The defendant-appellant failed to prove the Will in accordance with law. The defendant-appellant produced one Surendra Vishwakarma DW-2 the attesting witness of the Will. However, when he appeared in Court the defendant-appellant moved an application to recall the aforesaid witness. The attesting witness did not appear in the the witness box to prove the Will or face the cross examination. Consequently, the Will not be proved in accordance with Sections 68 and 71 of the Evidence Act.

The findings of fact returned by the appellate court are impeccable. There is no infirmity in the findings of fact as made by the appellate court. The law on various legal issues which arose for consideration is well settled.

In view of the narrative in the preceding paragraphs, no substantial question of law arises for consideration in the instant second appeal.

The second appeal lacks merit and is dismissed.

Order Date :- 1.10.2018

Pravin