Between vs Pamela Mehta And Others
2021 Latest Caselaw 4960 HP

        IN THE HIGH COURT OF HIMACHAL PRADESH AT
                         SHIMLA

               ON THE 8TH DAY OF OCTOBER, 2021
                                  BEFORE




                                                                 .
           HON'BLE MR. JUSTICE SANDEEP SHARMA





          REGULAR SECOND APPEAL No.425 OF 2012





          Between:-
          PREM SINGH @ PREMA
          SON OF SH.SUKHIYA,
          R/O VILLAGE KHANOT HARLYAN,





          ILLAQUA HATLI,
          SUB TEHSIL BALDWARA,
          DISTTT.MANDI, H.P.
                    r           ......APPELLANT-DEFENDANT

          (BY SH.R.K. BAWA, SENIOR ADVOCATE

          WITH MR.ARUN SEHGAL, ADVOCATE.)

          AND

          SMT.SATYA DEVI,


          D/O LATE SH.FITHU @ MAHANTU,
          W/O SH.DUMNU RAM
          R/O WARD NO.8,
          HOUSE NO.128/8,




          VILLAGE KHARSHI,
          TEHSIL SUNDER NAGAR,





          DISTT.MANDI,
          H.P. 175002
                                  ... RESPONDENT-PLAINTIFF





           (BY SH.VIJAY BHATIA, ADVOCATE.)
          Whether approved for reporting ? Yes.


                 This appeal coming up for final hearing this day, the Court
    passed the following:

                           JUDGMENT

Instant Regular Second Appeal, under Section 100

of the Code of Civil Procedure, filed by the appellant-defendant

(hereinafter referred to as the 'defendant') lays challenge to the

judgment and decree dated 28.05.2012 passed by learned District

Judge, Mandi, District Mandi, Himachal Pradesh in Civil Appeal

No.52 of 2010, reversing the judgment and decree dated

.

25.05.2010 passed by learned Civil Judge (Senior Division),

Sarkaghat, District Mandi, Himachal Pradesh in case No.113 of

2000, whereby suit for declaration with consequential relief of

injunction having been filed by the respondents-plaintiffs

(hereinafter referred to as the 'plaintiffs') was dismissed.

2. For having bird's eye view, certain undisputed facts,

as emerged from the record, are that the plaintiffs filed suit for

declaration with consequential relief of injunction against the

defendant averring therein that land denoted by Khewat Khatauni

No. 213/248, comprising of Khasra No. 907, 970, 984, 985, 986,

1055/991, 1059/992 Kita 7, measuring 0-13-24 hectare is

recorded in the ownership and possession of deceased Fithu and

the land denoted by Khewat Khatauni No. 214/249, Khasra No.

971, 971/ and 983, Kita 3, measuring 0-06-39 Hectare is recorded

in the ownership of deceased Fithu alongwith other co-sharers

and Fithu had got 1/6th share i.e. 0-01-06 Hectares, situate in

Village Khanot/491 and the land comprised in Khewat Khatauni

No. 134/147 Khasra No.242, 465 and 510 Kita 3, measuring 0-

13-51 Hectare, situate in Village Hariyan/493 (hereinafter referred

to as the 'suit land') is recorded in the ownership and possession

of deceased Fithu.

3. Plaintiffs claimed that they are widow and daughter of

deceased Fithu and deceased was looked after and maintained by

them and after his death, they performed his last rites. Plaintiffs

also claimed that the suit land is being cultivated by them and one

.

Shri Mohan Lal. Plaintiffs further claimed that the defendant has

set up a false and fictitious Will, which was never executed by the

deceased. Plaintiffs averred in the plaint that under the garb of

Will, the defendant has threatened to take forcible possession of

the suit land. The mutation of the suit land is yet to be attested

and they being sole heirs of the deceased Fithu alias Mahantu

have right of maintenance out of the property of the deceased

Fithu. Plaintiffs claimed that deceased Fithu was old and illiterate

person and was unable to understand the worldly affairs and as

such, the Will set up by the defendant is a false and fictitious

document. Plaintiffs also claimed that the defendant in collusion

with the witnesses set up a false Will, which was never executed

by the deceased. It has further been averred in the plaint that the

plaintiffs reported the fact of death of Fithu to the Patwari, who in

turn told the plaintiffs that the defendant has set up a Will in his

favour. Besides above, the plaintiffs also claimed that deceased

Fithu had two wives; one Smt.Kalasi and another Smt. Jugli Devi,

(plaintiff No.1) and daughter was born from their union namely;

Satya Devi (plaintiff No.2).

4. The aforesaid claim made by the plaintiffs came to be

resisted and contested on behalf of the defendant by filing written

statement in which he has taken preliminary objections qua cause

of action and locus standi. It has been specifically stated by the

defendant that plaintiff No.1 is neither the wife nor plaintiff No.2 is

daughter of deceased Fithu @ Mahantu. Defendant claimed before

the Court below that he alongwith his family used to cultivate the

.

land of deceased Fithu @ Mahantu and rendered all types of

services, whereas, plaintiff No.1 Smt.Jugli Devi remained with

deceased Fithu for some time and thereafter left his house and

gone with some other person and residing at Sundernagar for the

last 40 years. Defendant also claimed that plaintiff No.2 is not the

daughter of Fithu @ Mahantu and as such, not entitled to

property of deceased. It is further averred by the defendant that

the plaintiffs never resided with Fithu and the wife of Fithu was

Kalasi Devi and he besides cultivating land of deceased also took

care of Fithu and his wife Kalsi. Defendant specifically denied the

averments made in the plaint that the deceased Fithu was not in

sound state of mind and claimed that deceased Fithu executed a

Will in his favour in sound and disposing state of mind and in lieu

of his services rendered to him, bequeathed suit property in his

favour. Defendant further averred in the written statement that

Smt. Kalasi Devi wife of Fithu expired on 31.8.1998 and she was

the only wife of Fithu and plaintiffs are in no way related to Fithu.

5. On the basis of aforesaid pleadings adduced on record

by respective parties, learned Court below, vide order dated

09.07.2004 framed the following issues:-

"1. Whether plaintiffs are sole legal heirs of deceased Fithu and are entitled to succeed

to his estate, as alleged, if so its effect? OPP

2. Whether the Will dated 26-8-1998 executed by deceased by Fithu is false and fictitious document as alleged? OPP

.

3. Whether deceased Fithu executed valid

will dated 26-8-1998 in favour of defendant? OPD

4. Whether the plaintiffs have no cause of action to file the present suit/ OPD

5. Whether the plaintiffs have no locus standi to file the present suit? OPD

6. Relief."

6. Subsequently, on the basis of pleadings as well as

evidence adduced on record, learned trial court below, dismissed

the suit of the plaintiffs vide judgment and decree dated

25.05.2010.

7. Being aggrieved and dissatisfied with the aforesaid

judgment and decree dated 25.05.2010, passed by the learned

trial Court, plaintiffs preferred an appeal under Section 96 of the

Code of Civil Procedure in the Court of learned District Judge,

Mandi, which came to be allowed vide judgment and decree dated

28.05.2012, as a consequence of which, suit of the plaintiffs came

to be allowed.

8. In the aforesaid background, defendant has

approached this court by way of instant appeal, praying therein to

restore the judgment and decree dated 25.05.2010 passed by the

learned trial Court after setting aside the judgment and decree

dated 28.05.2012 passed by learned District Judge, Mandi.

9. Aforesaid appeal filed by the defendant came to be

admitted by this court vide order dated 14.08.2012, on the

following substantial question of law:-

"1. Whether the ld.First Appellate Court has

.

erred in law, in declaring the Will Ex. DW-

2/A having been executed under suspicious circumstances' on the ground that there is no mention of plaintiff No.1 Jugli Devi who had left company of the

executant Fithu @ Mahantu about 40 years prior to the execution of the said Will?"

10. Before adverting to the factual matrix of the case and

exploring the answer to substantial question of law, it may be

noticed that the suit at hand was filed by Smt.Jugli Devi and

Smt.Satya Devi, plaintiffs No.1 and 2, but, Smt.Jugli Devi expired

during the pendency of appeal before the learned District Judge

and as such her name was deleted vide order dated 25.07.2011

and as of today the suit is being contested by Smt.Satya Devi

daughter of Fithu @ Mahantu i.e. plaintiff No.2.

11. Having heard learned counsel for the parties and

perused the material available on record vis-à-vis reasoning

assigned by the first appellate Court, while setting aside the

judgment and decree passed by the trial Court, this Court finds

that the learned trial Court, on the basis of pleadings as well as

evidence adduced on record, arrived at a definite conclusion that

Will Ex.DW-2/A was a valid document and the same was executed

by deceased Fithu bequeathing his property in favour of the

defendant. Though learned trial Court, on the basis of pleadings

as well as evidence led on record, arrived at a conclusion that

plaintiff No.1 Smt.Jugli Devi was married to deceased Fithu and

plaintiff No.2 Satya Devi was born out of their wedlock, but, yet

rejected the claim of the plaintiffs that the Will Ex.DW-2/A

allegedly executed by deceased Fithu is shrouded by suspicious

.

circumstance for the reasons that there was no reason, if any, for

deceased Fithu to not to make provisions of maintenance of his

wife Jugli Devi and daughter Satya Devi, while executing the Will.

Learned trial Court, having taken note of abstract of Parivar

Register Ex.PW-3/A, which was prepared in the year 1982 and

wherein it stood recorded that Smt.Jugli Devi left the company of

deceased Fithu, coupled with the fact that Fithu @ Mahantu after

departure of Jugli Devi had contracted second marriage with

Kalasi Devi, proceeded to hold that since Jugli Devi suddenly

appeared after a lapse of 40 years and she never turned up in the

witness box to explain her position, came to the conclusion that

Will Ex.DW-2/A is not shrouded by suspicious circumstance.

12. Learned District Judge in an appeal filed by the

plaintiffs recorded in para-37 of the judgment that defendant

made efforts to fulfill the ingredients of Section 63 of Indian

Succession Act as well as Section 68 of Indian Evidence Act, but,

merely on this fact, document Ex.DW-2/A cannot be said to be

validly executed document. Learned District Judge recorded in its

judgment that testator has given no reference regarding his wife

Jugli Devi and daughter Satya Devi in the document Ex.DW-2/A

and as such it cannot be said that Will Ex.DW-2/A is not

shrouded by suspicious circumstance. Learned first appellate

Court also observed in its judgment that it is highly improbable for

the testator to not to mention the name of his wife and only

daughter in the document and non-mentioning of such important

fact in the document compels this court to hold that the Will in

.

question is shrouded by suspicious circumstance. Besides above,

learned District Judge, while reversing the findings returned by

the learned trial Court, recorded in its judgment that, "had the Will

been executed by the testator with his sound and disposing state of

mind, then naturally it would have contained recital/reference

regarding his wife and daughter". If the pleadings as well as

evidence led on record by the respective parties are read in its

entirety, this Court finds it difficult to agree with the findings of

learned District Judge that the Will Ex.DW-2/A is shrouded by

suspicious circumstance.

13. Plaintiff, with a view to prove that Will Ex.DW-2/A is

false and fictitious document, besides examining PW-2 Lauka

Ram, PW-3 Chaman Lal and PW-4 Amar Nath, also stepped herself

into witness box as PW-1 and deposed that Fithu @ Mahantu was

her father and Jugli was her mother. She deposed that Jugli was

married to her father Fithu @ Mahantu and out of their wedlock

she was born. She also deposed that deceased Fithu was married

with another lady with the consent of her mother Smt.Jugli and

out of the said wedlock, one daughter was born. However, said

daughter as well as second wife have now expired. This witness

deposed that she performed last rites of her father. In her cross-

examination, this witness denied the suggestion that her mother

lived with Fithu as his concubine. This witness also admitted that

Kalasi died on 31.08.1998 and Fithu @ Mahantu died on

04.04.2000. Though this witness admitted that the defendant is

nephew of deceased Fithu @ Mahantu but denied that he was

.

looking after Fithu @ Mahantu and Kalasi.

14. PW-2 Lauka Ram corroborated the version of PW-1

Satya Devi that Jugli was wife of Fithu @ Mahantu and Satya was

his daughter. He also deposed that Fithu was being looked after

by the plaintiffs Jugli and Satya Devi. He also deposed that last

rites of deceased Fithu @ Mahantu were performed by his

daughter Satya Devi. This witness denied that Fithu @ Mahantu

was married with Kalasi.

15. Chaman Lal PW-3, Secretary Gram Panchayat,

Baldwara, proved copy of Parivar Register Ex.PW-3/A. As per this

witness, entry in the Parivar Register was made in the years 1962,

wherein it has been recorded that Jugli Devi left her matrimonial

home two years prior to 1962. PW-4 Amar Nath proved School

leaving certificate of PW-1 Satya Devi (Ex.PW-4/A).

16. Close scrutiny of aforesaid evidence led on record by

the plaintiffs, if read in conjunction with the plaint, reveals that

marriage interse Fithu @ Mahantu was solemnized and out of their

wedlock plaintiff No.2 Satya Devi was born, but Smt.Jugli Devi,

two years prior to 1962, left her matrimonial home. School leaving

certificate of Satya Devi, plaintiff No.2 (Ex.PW-4/A) reveals that

she was daughter of Fithu @ Mahantu, but there is nothing in the

statement as well as in the plaint so as to prove the fact that

defendant, taking undue advantage of old age and unsound mind

of the deceased Fithu @ Mahantu, got the Will Ex.DW-2/A

executed fraudulently. PW-2 Shri Lauka Ram though stated that

Jugli was wife of Mahantu and Satya was his daughter, but, he

.

nowhere stated that deceased Fithu @ Mahantu was not being

looked after by his nephew Prem Singh and, moreover, this

witness categorically denied that Mahantu @ Fithu was married to

Kalasi. Whereas, plaintiff No.2 herself stated in her statement

before the Court that Fithu @ Mahantu had married to one lady;

namely; Kalasi with the consent of her mother Smt.Jugli Devi and

out of her wedlock one daughter was born.

17.

Prem Singh, while appearing as DW-1, deposed that

Fithu @ Mahantu was her uncle, who had executed Will in his

favour in lieu of services rendered by him. He also deposed that

Mahantu and his wife Kalasi used to reside with him and Satya

and Jugli have no relations with Mahantu. He deposed that Jugli

was married in village Basotar. This witness deposed that Will

was executed on 26.08.1998 and when Will was executed, wife of

Mahantu was alive and she died after 4-5 days thereafter. This

witness admitted that Mahantu worked at BSL, Sundernagar for

about 35-40 years, but denied the suggestion put to him that Jugli

Devi was legally wedded wife of Mahantu. In cross-examination,

this witness admitted that Mahantu had three brothers, who were

residing separately. This witness feigned ignorance regarding the

fact that plaintiff No.2 Satya Devi was born out of the marriage

between Jugli Devi and Mahantu.

18. DW-2 Kishore Chand deposed that Will Ex.DW-2/A

was got scribed by Mahantu from the deed writer Shri Krishan

Chand. He stated that he was called by Mahantu and one Bhumi

Chand was also with them. This witness deposed that Mahantu

.

hired jeep and took them to deed writer Shri Krishan Chand. Deed

writer was working as Petition Writer at Baldwara, but Naib-

Tehsildar was not present there, hence, Mahantu took them to

Sarkaghat. After scribing the Will, Shri Krishan Chand read over

and explained the contents of the same to Mahantu, who accepted

the same as correct and thereafter put his signature on it.

Thereafter, Shri Prem Singh and this witness put their signatures

on it and then the Will was produced before Tehsildar. At the time

of execution of the Will, the testator was having sound and

disposing state of mind. This witness deposed that deed writer

disclosed him that the defendant is serving the testator and these

facts have been mentioned in the Will. He also deposed that

Mahantu died two years after execution of the Will.

19. DW-3 Bhumi Chand corroborated the version put

forth by DW-2 Kishore Chand. He deposed that Will Ex.DW-2/A

was executed by testator Mahantu in favour of his nephew Prem

Singh on 26th August, 1998. The Will was scribed by Shri Krishan

Chand, deed writer, and the same was scribed as per the direction

of the testator. After scribing the same, the contents of the Will

were read over and explained to Mahantu, who, after accepting the

contents of the same as correct put his signature on it. He further

deposed that Kishore Chand and Prem Singh put their signatures

on it. He also stated that he put his signatures on the same. He

also deposed that the testator took the Will to Sub-Registrar and

Sub-Registrar again read over and explained the contents of the

Will to Mahantu, who, accepted the contents of the Will as correct

.

and put his signature on it. He also deposed that at the time of

execution of the Will, the testator was having sound and disposing

state of mind. This witness further deposed that the deceased

testator Mahantu was being looked after by the defendant and his

wife and the last rites of Mahantu were also performed by Sh.Prem

Singh. This witness also stated that Mahantu was having only one

wife; namely; Kalasi Devi. This witness feigned ignorance qua the

fact that plaintiff No.1 was wife of the deceased and plaintiff No.2

is his daughter.

20. DW-2, Shri Govind Ram, Naib Tehsildar-cum-Sub

Registrar, deposed that the Will Ex.DW-2/A was produced before

him for registration on 26.08.1998 and when he had inquired from

Mahantu regarding the contents of the Will, he accepted the same

to be correct. He also stated that at the time of execution of the

Will, the testator was having sound and disposing state of mind.

He also deposed that in total four persons appeared before him, 1st

one was testator, 2nd one was identifier and 3rd and 4th were

attesting witnesses of the Will.

21. DW-5 Shri Chandu Ram deposed that Mahantu was

having only one wife; namely; Kalasi Devi. He deposed that

Mahantu was having another wife, but said wife left Mahantu 45

years ago and her whereabouts are not known to anyone.

22. If the statements of the defendant witnesses are read

in conjunction, it leaves no room to agree with Shri Vijay Bhatia,

learned counsel representing the respondent-plaintiffs that

defendant, taking undue advantage of old age and ill health of

.

deceased Fithu @ Mahantu, got the Will Ex.DW-2/A executed

fraudulently. Evidence, as has been discussed hereinbefore,

clearly suggests that at the time of execution of Will Ex.DW-2/A,

deceased testator Mahantu was residing with the family of

defendant and he, in lieu of services rendered by his nephew,

bequeathed the property in favour of defendant by way of Will

Ex.DW-2/A. Though most of the defendant witnesses have denied

the factum with regard to marriage of deceased Fithu @ Mahantu

with plaintiff No.1 Jugli, but yet it can be deduced from the

statement of one of the witness PW-5 Shri Chandu Ram, that

testator Mahantu had contracted marriage with plaintiff No.1

Jugli, but she had left his company 45 years ago and Mahantu

had contracted second marriage with Kalasi Devi. It also clearly

emerge from the evidence led on record that testator Mahantu

himself got the Will Ex.DW-2/A scribed and the same was got

registered in the office of Sub Registrar that too in the presence of

two attesting witnesses, who categorically stated in their

statements that after scribing the Will, scribe Shri Krishan Chand

read over and explained the contents of the Will to testator

Mahantu and he, after accepting them to be correct, put his

signature on the same in their presence. Besides this, it has also

been stated that when the Will was produced before the Sub

Registrar for registration, he, after ascertaining the correctness of

the contents of the Will from the testator Mahantu accepting them

to be correct, put his signatures in his presence.

23. After having carefully perused the entire evidence led

.

on record, it can be safely inferred that Will Ex.DW-2/A was

executed strictly in accordance with law as well as in terms of

provisions contained in Section 68 of the Evidence Act and Section

63 of the Succession Act. Careful perusal of Ex.PW-3/A i.e.

abstract of Parivar Registrar though suggests that Jugli Devi was

married to deceased Fithu @ Mahantu, but, it also stands recorded

in this document that two years prior to 1962, she left the

company of testator deceased Mahantu, meaning thereby majority

of defendant witnesses have denied the factum with regard to

solemnization of marriage interse plaintiff Jugli Devi and testator

Mahantu @ Fithu, but even if it is presumed that marriage interse

them solemnized, it can be safely concluded that in the year 1960

she had left the company of Mahantu @ Fithu. Thereafter, he was

living with his second wife; namely; Kalasi Devi. Ex.PW-4/A,

school leaving certificate of plaintiff No.2, though suggests that she

is daughter of testator Mahantu @ Fithu, but merely such fact

does not entitle her to become a beneficiary of the Will Ex.DW-2/A

executed by the testator Mahantu @ Fithu with sound and

disposing state of mind. Learned District Judge, while reversing

the findings returned by the trial Court, has termed the Will

Ex.DW-2/A to be shrouded with suspicious circumstance on the

ground that since testator has not given reference of his wife Jugli

Devi as well as daughter Satya Devi in the Will and has not

assigned reasons, if any, to disinherit them from his movable or

immovable property, Will Ex.DW-2/A cannot be said to be free

from the suspicious circumstance. However, this Court finds no

.

merit in the aforesaid findings returned by the learned District

Judge, since it stands duly proved on record that plaintiff No.1

Jugli Devi had left the company of testator Fithu @ Mahantu in

the year 1960 and since then she had been living separately with

her daughter plaintiff No.2 in Sundernagar, there was otherwise

no occasion, if any, for the testator Fithu @ Mahantu to bequeath

some of his property in favour of Jugli Devi and his daughter

Satya Devi.

24. Needless to say that the testator of his own volition

can always bequeath his/her property to any person and is not

under any obligation to bequeath his/her property in favour of

his/her natural legal heirs. Rather, testator in lieu of services

rendered to him/her of his/her own volition can bequeath his/her

property to a person other than his/her natural legal heirs.

25. In the case at hand there is overwhelming evidence

available on record suggestive of the fact that the testator after the

year 1962 had been residing with his second wife Kalasi in the

house of defendant Prem Singh and he was being looked after by

defendant Prem Singh and his family and as such this Court finds

no illegality, if any, in the action of testator bequeathing his entire

property in favour of the defendant in lieu of services rendered to

him. Though the plaintiffs have claimed that testator Fithu @

Mahantu was living with them and they were looking after him but

such plea of them is not supported by cogent and convincing

evidence. Interestingly, Jugli Devi during her life time never chose

to enter witness box in support of her claim and plaintiff No.2

.

Satya Devi deposed as PW-1 that Jugli Devi was wife of testator

Fithu @ Mahantu and she is the daughter of Fithu @ Mahantu.

However, she was unable to rebut documentary evidence led on

record by the defendant in shape of Ex.PW-3/A i.e. abstract of

Parivar Register, where it stands duly recorded that two years

prior to 1962 Jugli Devi left the company of testator Fithu @

Mahantu. Aforesaid factum with regard to entry made in Parivar

Registrar Ex.PW-3/A stands further corroborated by statement

made by PW-5 Chandu Ram, who deposed that Mahantu was

having another wife, but said wife had left Mahantu 45 years ago

and her whereabouts are not known to any one. Save and except

PW-1 Satya Devi and PW-2 Lauka Ram, none of the plaintiff

witnesses supported the case of the plaintiffs that Jugli was wife of

Mahantu and Satya Devi was his daughter. Moreover, these

witnesses were unable to disclose about the date when Mahantu

and Jugli were married. Will Ex.DW-2/A was executed on 26th

August, 1998 i.e. after 38 years of leaving the house of testator

Mahantu by plaintiff Jugli Devi. It nowhere comes in the

pleadings as well as in the evidence led on record by the plaintiffs

that after the year 1960 Jugli Devi had returned back to the house

of Mahantu alongwith her daughter and during the last days of

testator Fithu @ Mahantu, they both were living with him. Since

both the plaintiffs never turned up to take care of testator Fithu @

Mahantu after 1960, there was otherwise no occasion for him to

bequeath share, if any, of his property in favour of the plaintiffs.

Since both the plaintiffs had never come to see testator Fithu @

.

Mahantu during his life time, coupled with the fact that Fithu @

Mahantu had contracted second marriage with Kalasi, there was

no reason, if any, for him to make specific mention with regard to

the plaintiffs in the Will as well as to assign reasons, if any, to not

to give them any part of his movable and immovable property.

26. At this stage, it would be apt to take note of latest

judgment of Hon'ble Apex Court passed in Kavita Kanwar vs.

Pamela Mehta and Others, 2020 SCC Online SC 464, wherein

it has been held that Will cannot be viewed with suspicion only

because the appellant had played an active role in execution

thereof though she is the major beneficiary; or only because the

respondents were not included in the process of execution of the

Will; or only because of unequal distribution of assets; or only

because there is want of clarity about the construction to be

carried out by the appellant; or only because one of the attesting

witnesses being acquaintance of the appellant; or only because

there is no evidence as to who drafted the printed part of the Will

and the note for writing the opening and concluding passages by

the testatrix in her own hand; or only because there is some

discrepancy in the oral evidence led by the appellant; or only

because of any other factor taken into account by the Courts or

relied upon by the respondents. In the aforesaid judgment,

Hon'ble Apex Court has held that an individual factor may not be

decisive but, if after taking all the factors together, conscience of

the Court is not satisfied that the Will in question truly represents

the last wish and propositions of the testator, the Will cannot get

.

the approval of the Court. The Hon'ble Court has held as under:-

"28. There is no doubt that any of the factors taken into account by the Trial Court and the

High Court, by itself and standing alone, cannot operate against the validity of the propounded Will. That is to say that, the Will in question cannot be viewed with suspicion only because the appellant had played an active role in execution thereof though she is

the major beneficiary; or only because the respondents were not included in the process of execution of the Will; or only because of unequal distribution of assets; or only because there is want of clarity about the construction to be carried out by the appellant; or only r because one of the attesting witnesses being acquaintance of the appellant; or only because

there is no evidence as to who drafted the printed part of the Will and the note for writing the opening and concluding passages by the testatrix in her own hand; or only because there is some discrepancy in the oral evidence led by the appellant; or only because

of any other factor taken into account by the Courts or relied upon by the respondents. The relevant consideration would be about the quality and nature of each of these factors and then, the cumulative effect and impact of

all of them upon making of the Will with free agency of the testatrix. In other words, an

individual factor may not be decisive but, if after taking all the factors together, conscience of the Court is not satisfied that the Will in question truly represents the last wish and propositions of the testator, the Will

cannot get the approval of the Court; and, other way round, if on a holistic view of the matter, the Court feels satisfied that the document propounded as Will indeed signifies the last free wish and desire of the testator and is duly executed in accordance with law, the Will shall not be disapproved merely for one doubtful circumstance here or another factor there."

27. Reliance is also placed upon Rabindra Nath

Mukherjee vs. Panchanan Banerjee (Dead) by LRs and Others,

(1995)4 SCC 459, wherein Hon'ble Apex Court has held that

deprivation of the natural heirs by the testator/testatrix cannot be

said to be suspicious circumstance because the whole idea behind

execution of the Will is to interfere with the normal line of

.

succession. The Hon'ble Court has held as under:-

"3. A perusal of the two impugned judgments

shows that the following were regarded as suspicious circumstances:

(1) Deprivation of the natural heirs by the testatrix.

(2) Identification of the testatrix before the Sub-registrar by an Advocate of Calcutta who had acted as a lawyer of r one of the executors in some cases.

(3) The witnesses to the documents were interest in the appellants.

(4) Active part played by one Subodh, a close relation of Rabindra, one of the executors, in getting execution of the will. He has been described as ubiquitous.

4. As to the first circumstance, we would observe that this should not raise any suspicion, because the whole idea behind execution of

will is to interfere with the normal line of succession. So natural heirs would be debarred in every case of will; of course, it

may be that in some cases they are fully debarred and in others only partially. As in the present case, the two executors are sons of a half-blood brother of Saroj Bala, whereas the objectors descendants of a full blood

sister, the disinheritence of latter could not have been taken as a suspicious circumstance, when some of her descendants are even beneficiaries under the will.

28. Reliance is also placed upon the judgment of Hon'ble

Apex Court in Smt.Sushila Devi vs. Pandit Krishna Kumar

Missir and Others, 1971(3) SCC 146, wherein the Hon'ble Court

has held as under:-

"5. Prima facie, the circumstance that no bequest was made to the appellant by the testator would make the will appear unnatural but if

.

the execution of the will is satisfactorily

proved, the fact that the testator had not bequeathed any property to one of Ms children cannot make the will invalid. If the bequest made in a will appears to be unnatural then the court has to scrutinise the evidence in

support of the execution of the will with a greater degree of care than usual, because every person must be presumed to act in accordance with the normal human behavior but there is no gainsaying the fact that some individuals do behave in an abnormal manner.

Judges cannot impose their own standard of behavior on those who execute wills. As observed by this Court in H. Venkatachala lyengar v. B.N. Thimmaiamma, that the mode of proving a will does not ordinarily differ from that of proving any other document r except as to the special requirement of attestation prescribed by Section 63 of the

Indian Succession Act. Proof in either case cannot be mathematically precise and certain and so the test should be one of satisfaction of a prudent mind in such matters. The onus must be on the propounder and in absence of suspicious circumstances surrounding the

execution of the will, proof of testamentary capacity and signature of the testator as required by law may be sufficient to discharge the onus. Where, however, there are suspicious circumstances the onus would be on the

propounder to explain them to the satisfaction of the court before the will can be accepted as genuine."

29. Reliance is also placed upon the judgment of Hon'ble

Apex Court in Pushpavathi and Others vs. Chandraraja

Kadamba and Others, (1973)3 SCC 291, wherein the Hon'ble

Court has held as under:

"5. The position in law is no longer in doubt. It is for the propounder of the Will to prove it, 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 which is placed upon the propounder of the Will. Where there are suspicious circumstances, the propounder of the Will has to explain them away to the satisfaction 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. If the propounder succeeds in removing the suspicious circumstances the Court would

have to give effect to the Will even if the Will might be unnatural in the sense it has cut off wholly or in. part near relations. See : Shashi Kumar v. Subodh Kumar, AIR 1964 SC 529."

30. Reliance is also placed upon Ramabai Padmakar

Patil (Dead) through LRs and Others vs. Rukminibai Vishnu

Vekhande and Others, (2003)8 SCC 537, wherein the Hon'ble

Apex Court has held as under:-

"7. The main reason which weighed with the learned District Judge in discarding the Will, which has also appealed to the High Court, is

that Smt. Yamunabai completely disinherited her other daughter and gave the entire property to Smt. Ramabai. In our opinion, the fact that Smt. Yanumabai excluded all other

daughter and gave the entire property to the plaintiff Smt. Ramabai could not be a ground to cast any doubt regarding the authenticity

of the Will in the facts and circumstances of the case in hand. It is not a case of exclusion of a son who may have been living with the parents or looking after them. It is a case of making provision for a widowed daughter who

had been left a destitute on account of death of her husband at a very early age. If the parental property was to be divided equally amongst all the seven sisters, the share inherited by Smt. Ramabai would have been quite small making it difficult for her to survive. The house is situate in a village and is not in a big town or city where it may have any substantial value. In fact, if the background in which the Will was executed is examined carefully, it would be apparent that this was the most natural conduct of the mother and giving of equal shares to all the daughters would have entailed a serious hardship to the plaintiff Smt. Ramabai.

8. A Will is executed to alter the mode of succession and by the very nature of things it is bound to result in either reducing or depriving the share of a natural heir. If a person intends his property to pass to his natural heirs, there is no necessity at all of executing a Will. It is true that a propounder if the Will has to remove all suspicious

.

circumstances. Suspicion means doubt,

conjecture or mistrust. But the fact that natural heirs have either been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be suspicious circumstance especially in a case

where the request has been made in favour of an offspring. In PPK Gopalan Nambiar v. PPK Balakrishan Manbiar and Ors., AIR (1995) SC 1852 it has been held that it is the duty of the propounder of the Will to remove all the suspected features, but there must be real,

germane and valid suspicious features and not fantasy of the doubting mind. In this case, the fact that the whole estate was given to the son under the Will depriving two daughters was held to be not a suspicious circumstance and the finding to the contrary recorded by r the District Court and the High Court was reversed. In Pushpavati and Ors. v. Chandraja

Kadanba and Ors., AIR (1972) SC 2492, it has been held that if the propounder succeeds in removing the suspicious circumstance, the Court would have to give effect to the Will, even if the Will might be unnatural in the sense that it has cut off wholly or in part near

relations. In Rabindra Nath Mukherjee and Anr. v. Panchanan Banerjee (dead) by Lbs. and Ors., [1950] 4 SCC 459, it was observed that the circumstance of deprivation of natural heirs should not raise any suspicion because

the whole idea behind execution of the Will is to interfere with the normal line of succession

in and so, natural heirs would be debarred in every case of Will. Of course, it may be that in some cases they are fully debarred and in some cases partly. The concurrent finding recorded by the District Court and the High

Court for doubting the genuineness of the Will on the aforesaid ground was reversed."

31. In case titled: Uma Devi Nambiar and Others vs.

T.C. Sidhan (dead), (2004)2 SCC 321, the Hon'ble Apex Court

has held that mere exclusion of natural heirs or rejection of their

share would not itself amount to suspicious circumstance. The

Hon'ble Court has held as under:-

"16. A Will is executed to alter the ordinary mode of succession and by the very nature of things it is bound to result in either reducing or depriving the share of natural heir. If a person intends his property to pass to his natural heirs, there is no necessity at all of executing a Will. It is true that a propounder of the Will has to remove all suspicious circumstances.

.

Suspicion means doubt, conjecture or

mistrust. But the fact that natural heirs have either been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be a suspicious circumstance especially in a case where the

bequest has been made in favour of an offspring. As held in PPK Gopalan Nambiar v. PPK Balakrishnan Nambiar and Ors. (AIR 1995 SC 1852) it is the duty of the propounder of the Will to remove all the suspected features, but there must be real, germane and valid

suspicious features and not fantasy of the doubting mind. It has been held that if the propounder succeeds in removing the suspicious circumstance, the Court has to give effect to the Will, even if the Will might be unnatural in the sense that it has cut off r wholly or in part near relations (See Puspavati and Ors. v. Chandraja Kadamba and Ors. (AIR

1972 SC 2492). In Rabindra Nath Mukherjee and Anr. v. Panchanan Banerjee (dead) by LRs. and Ors. (1995 (4) SCC 459), it was observed that the circumstance of deprivation of natural heirs should not raise any suspicion because the whole idea behind execution of

the Will is to interfere with the normal line of succession and so, natural heirs would be debarred in every case of Will. Of course, it may be that in some cases they are fully debarred and in some cases partly."

32. In case titled Pentakota Satyanarayana and

Others vs. Pentakota Seetharatnam and Others, (2005)8 SCC

67, the Hon'ble Apex Court has held as under:-

"26. Mr. Narsimha, learned counsel for the respondents, submitted that the natural heirs were excluded and legally wedded wife was given a lesser share and, therefore, it has to be held to be a suspicious circumstance. We are unable to countenance the said submission. The circumstances of depriving the natural heirs should not raise any suspicion because the whole idea behind the execution of the will is to be interfered in the

normal line of succession and so natural heirs would be debarred in every case of the Will. It may be that in some cases they are fully debarred and some cases partly. This is the view taken by this Court in Uma Devi Nambiar and Others vs. T.C.Sidhan (Dead) (2004) 2 SCC

321."

.

33. Reliance is placed upon Savithri and Others vs.

Karthyayani Amma and Others, (2007)11 SCC 621, wherein

the Hon'ble Apex Court has held as under:-

"22. Deprivation of a due share by the natural heirs itself is not a factor which would lead to the conclusion that there exist suspicious

circumstances. For the said purpose, as noticed hereinbefore, the background facts should also be taken into consideration. The son was not meeting his father. He had not been attending to him. He was not even meeting the expenses for his treatment from r 1959, when he lost his job till his death in

1978. The testator was living with his sister and her children. If in that situation, if he executed a Will in their favour, no exception thereto can be taken. Even then, something was left for the appellant.

23. In Ramabai Padmakar Patil (Dead) though L.Rs. and Others v. Rukminibai Vishnu Vekhande and Others [(2003) 8 SCC 537], this Court held :

"8. A Will is executed to alter the mode of succession and by the very nature of things it is bound to result in either

reducing or depriving the share of a natural heir. If a person intends his property to pass to his natural heirs, there is no necessity at all of executing

a Will. It is true that a propounder of the Will has to remove all suspicious circumstances. Suspicion means doubt, conjecture or mistrust. But the fact that natural heirs have either been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be a suspicious circumstance, especially in a case where the bequest has been made in favour of an offspring"[See also S.

                            Sundaresa      Pai   and     Others     v.
                            Sumangala T. Pai (Mrs.) and Another -
                            2002 (1) SCC 630]"

34. In Mahesh Kumar (dead) by LRs vs. Vinod Kumar

and Others, (2012)4 SCC 387, the Hon'ble Apex Court has held

as under:-

.

"49. The attitude of respondent Nos. 1 and 2 left Shri Harishankar and his wife with no choice but to live with the appellant, who along with his wife and children took care of the old parents and looked after them during their

illness. Therefore, there was nothing unnatural or unusual in the decision of Shri Harishankar to give his share in the joint family property to the appellant. Any person of ordinary prudence would have adopted the same course and would not have given

anything to the ungrateful children from his/ her share in the property."

35. Reliance is also placed upon Leela Rajagopal and

Others vs. Kamala Menon Cocharan and Others, (2014)15 SCC

570, wherein it has been held that the exclusion of sons is not a

suspicious circumstance when reasons for exclusion of sons is

apparent from Will itself. In the case at hand, testator has

categorically recited in the Will that he is bequeathing his property

in favour of defendant on account of services rendered by him. In

the aforesaid case, the Hon'ble Apex Court has held as under:-

"14. In the present case, a close reading of the Will indicates its clear language,

and its unambiguous purport and effect. The mind of the testator is clearly discernible and the reasons for exclusion of the sons is apparent from the Will itself. Insofar as the place of execution is concerned, the inconsistency appearing in the verification filed alongwith the application for probate by PW-3 and the oral evidence of the said witness tendered in Court is capable of being understood in the light of the fact that the verification is in a standard form (Form No. 55) prescribed by the Madras High Court on the Original Side, as already noticed. Besides, in the facts of

the present case the participation of the first respondent in the execution and registration of the Will cannot be said to be a circumstance that would warrant an adverse conclusion. The conduct of the first respondent in summoning her friend (PW-3) to be an attesting witness and in taking the

.

testator to the office of the Sub

Registrar should, again, not warrant any adverse conclusion. It also cannot escape notice that the Will dated 11.1.1982 is identical with the contents of the earlier Will dated 28.12.1981.

Insofar as the execution of the Will dated 28.12.1981 and its registration is concerned no active participation has been attributed to the first respondent. The change of the attesting witnesses and the non-examination of

Seetha Padmanabhan who had attested the second Will dated 11.1.1982 has been sufficiently explained."

36. Reliance is also placed upon Ved Mitra Verma vs.

Dharam Deo Verma, (2014)15 SCC 578, wherein the Hon'ble

Apex Court has held that execution of Will in favour of one of his

son and exclusion of the other children was in itself not a

suspicious circumstance. The property being self-acquired, it is

the Will of the testator that has to prevail. The Hon'ble Court has

held as under:-

"8. The exclusion of the other children of the Testator and the execution of the

Will for the sole benefit of one of the sons i.e. the respondent, by itself, is not a suspicious circumstance. The property being self-acquired, it is the will of the Testator that has to prevail.

14. All the alleged suspicious circumstances surrounding the execution of the Will being capable of being understood in the manner indicated above and the requirement of Section 69 of the Indian Evidence Act, 1872 having been satisfied by the evidence of PW-3, we find that in the present case, the findings and conclusions recorded by the High Court

would not call for any interference. Consequently and for the reasons aforesaid, we dismiss the appeal leaving the parties to bear their own costs.

.

37. It is quite apparent from the aforesaid exposition of

law as laid down by the Hon'ble Apex Court from time to time that

mere exclusion of natural heirs from the Will cannot be said to be

suspicious circumstance; especially, when testator bequeathed his

property in favour of person who had been looking after him.

Though initially onus is always on the propounder of the Will to

prove it 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 which is placed upon the

propounder of the Will.

38. In the case at hand evidence led on record by the

defendant clearly reveals that he being propounder successfully

discharged onus on him that Will Ex.DW-2/A was free from

suspicious circumstance and it was executed by the testator in

sound and disposing state of mind. It was upon the plaintiffs who

alleged that Will is a fictitious and false document to prove that

beneficiary i.e. defendant got the Will executed by exercising undue

or coercion influence. However, in the case at hand, as has been

discussed in detail, plaintiffs have not been able to prove that Will

is a false and fictitious document and the same is the result of

coercion and undue influence exercised by defendant upon the

testator. Since for more than 45 years prior to execution of Will

plaintiffs never turned up to take care of deceased Fithu @

Mahantu, who was allegedly their husband and father respectively,

their exclusion from the Will by no stretch of imagination can be

.

termed to be suspicious circumstance.

39. This Court finds that learned first appellate Court has

erred in appreciating the evidence in its right perspective and

there is total misreading, mis-interpretation and misconstruction

of evidence made available on record by respective parties, as a

result of which erroneous findings have come on record, which are

not sustainable in the eye of law and as such same deserve to be

rectified in accordance with law. The substantial question of law is

answered accordingly.

40. Consequently, in view of detailed discussion made

hereinabove as well as law laid down by Hon'ble Apex Court, this

Court sees valid reason to interfere in the judgment and decree

passed by first appellate Court, which is apparently not based

upon the proper appreciation of evidence as well as law.

Accordingly judgment and decree passed by learned first appellate

Court is set aside and that of the learned trial Court is restored.

This appeal is allowed. There shall be no order as to costs.

41. Interim order, if any, stands vacated. All

miscellaneous applications are disposed of.

    October 8, 2021                                 (Sandeep Sharma)
       (aks)                                             Judge