Punjab-Haryana High Court
Satish Sharma vs Krishan Gopaul ( Since Deceased ) ... on 11 December, 2023
Neutral Citation No:=2023:PHHC:158431
RSA-1761-2023 (O&M) -1- 2023:PHHC:158431
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA-1761-2023 (O&M)
Date of Decision : 11.12.2023
Smt. Satish Sharma ...... Appellant
Versus
Krishan Gopaul (Since Deceased) through his LRs and another
..... Respondents
CORAM : HON'BLE MR. JUSTICE VIKRAM AGGARWAL
***
Present : Mr. Kanwaljit Singh, Senior Advocate with
Ms. Gurmehr Kaur, Advocate, for the appellant.
Mr. Ashish Aggarwal, Senior Advocate with
Mr. Gaurav Arora, Advocate for the respondents/caveators.
***
VIKRAM AGGARWAL, J
1. Defendant Satish Sharma is in second appeal against the
concurrent findings recorded by both the Courts below.
2. A suit for possession by way of partition with consequential
relief of permanent injunction was filed by the plaintiffs-respondents which
came to be decreed by the Court of Civil Judge (Junior Division), Karnal vide
judgment and decree dated 17.11.2015. The appeal preferred by the
defendant-appellant against the said decision was dismissed by the Court of
Additional District Judge, Karnal vide judgment and decree dated 23.01.2023,
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leading to the filing of the present second appeal. (For the sake of
convenience, parties shall be referred to as per their original status).
3. One Pandit Desraj Mishra, who was a resident of Karnal, expired
in 1974. He was survived by his wife Smt. Kailashwanti alias Kailashwati.
The couple had three children namely Krishan Gopaul (son) & Dhiraj Bhanot
and Satish Sharma (daughters). Smt. Kailashwanti was the owner of a house
bearing No.559, situated in Model Town, Karnal (fully described in the
plaint) (hereinafter referred to as 'the disputed house'). It is this house which
is the bone of contention between the siblings.
4 (i). Plaintiffs Krishan Gopaul and Dhiraj Bhanot (both have expired
and are now represented by their legal representatives) filed a suit for
possession by way of partition with consequential relief of permanent
injunction. The case set up was that Smt. Kailashwanti was the owner of the
disputed house. Smt. Kailashwanti was stated to have expired intestate on
26.10.1980 after which the parties to the suit became owners in possession of
the disputed house in equal shares. It was averred that the disputed house was
a source of constant dispute between the parties and despite various efforts,
no headway could be arrived at as the defendant, on account of her adamant
stand did not want to part with the possession of the disputed house and
wanted to usurp the share of the plaintiffs. It was averred that she intended to
alienate the disputed house and since she did not agree to the proposal of
dividing the disputed house in equal shares, the suit was instituted. A
preliminary decree of possession by way of partition was prayed for.
Consequential relief of permanent injunction restraining the defendant from
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alienating any specific portion of the disputed house in excess of her share
and also from changing the nature of the same was sought.
4(ii) The suit was opposed by the defendant. In the written statement,
certain preliminary objections with regard to maintainability, locus standi,
estoppel, the suit not being valued properly for the purposes of Court fee and
jurisdiction etc. were raised. It was averred that a Will dated 31.12.1977 had
been executed by Smt. Kailashwanti in favour of the defendant and that the
defendant had been residing in the disputed house for the last 33 years. On
merits, the relationship between the parties and the factum of Smt.
Kailashwanti having expired on 26.10.1980 and she being the owner of the
disputed house was admitted. It was averred that the defendant had served
Smt. Kailashwanti in her old age and she had been residing with the
defendant since 1977 whereas the plaintiffs had not served Smt. Kailashwanti
in her old age. On account of the service rendered by the defendant to Smt.
Kailashwanti, she executed a Will dated 31.12.1977 in favour of the
defendant.
4(iii). It was also averred that the defendant had spent a huge amount to
renovate the disputed house since it was in a dilapidated condition. All
modern amenities had been provided. It was averred that the plaintiffs were
fully aware about the execution of the Will dated 31.12.1977 and had never
raised any objection to the ownership rights of the defendant over the
disputed house. With the rise in prices, they had become dishonest and had
started asserting their rights over the disputed house.
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4(iv) In the replication, the averments made in the written statement
were denied and those made in the plaint were reiterated. With regard to the
Will, it was averred that no such Will had been executed by Smt.
Kailashwanti. It was averred that Smt. Kailashwanti had expired in 1980 and
no mention of the Will had been made by the defendant till the filing of the
written statement i.e. till 33 years. It was also averred that in the written
statement, no details of the Will were given and even in the reply to the
application moved by the plaintiffs under Order 8 Rule 1-A CPC, it was
averred that the defendant had tried her best to locate the alleged Will but was
not able to locate the same and that she would produce the Will before the
Court as and when she located it. Subsequently, the written statement was
amended and details of the Will were incorporated.
4(v) From the pleadings of the parties, the trial Court framed the
following issues for adjudication:-
1. Whether the plaintiff is entitled to decree for possession by way
of partition of the suit land detailed in para no.2 of the plaint ? OPP
2. Whether plaintiff is entitled to decree for permanent injunction
for restraining the defendant from alienating any specific portion of
the suit property, as prayed for ? OPP
2A Whether deceased Smt. Kailashwati had even executed any
valid Will regarding suit property in favour of defendant, if so, to
what effect ? OPD
3. Whether suit is not maintainable in the present form ? OPD
4. Whether plaintiff has no locus standi and cause of action to file
the present suit ? OPD
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5. Relief.
4(vi) Parties led their respective evidence. As has been noticed earlier,
the suit was decreed by the trial Court and the appeal preferred by the
defendant against the said decision was dismissed.
5. I have heard learned counsel for the parties.
6 (i). Learned Senior counsel represented the appellant/defendant
submitted that both the Courts below have gravely erred in decreeing the suit
filed by the plaintiffs. It was submitted that the execution of the Will duly
stood proved and that there were no suspicious circumstances surrounding the
Will. It was submitted that the execution of the Will was duly proved on
record since one of the attesting witnesses and the scribe were duly examined.
Reference was made to the oral and documentary evidence produced on the
record of the case and it was submitted that the plaintiffs had never served
Smt. Kailashwanti in her old age as a result of which she executed a Will in
favour of the defendant.
6(ii). Learned Senior counsel assailed the findings of the Courts below
stating that both the Courts had wrongly come to the conclusion that the Will
was shrouded by suspicious circumstances. It was submitted that the Will
was duly in the knowledge of the plaintiffs and the defendant had been
residing in the disputed house for 33 years without any kind of objection from
the plaintiffs. Learned Senior Counsel submitted that this in itself would
show that Smt. Kailashwanti intended to grant the rights qua the disputed
house in favour of the defendant who had served her in her old age. In
support of his contentions, learned Senior counsel placed reliance upon the
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judgments of Hon'ble Supreme Court of India in Mahesh Kumar (Dead) by
L.Rs. Versus Vinod Kumar & Ors. 2012 (2) Civil Court Cases 517 (S.C.),
Leela Rajagopal & Ors. Vs. Kamala Menon Cocharan & Ors. 2014 (4) Civil
Court Cases 758 (S.C.), judgment of Delhi High Court in Rajindra Motwani
Versus State & Ors. 2014 (3) Civil Court Cases 077 (Delhi) as well as the
judgments of Coordinate Benches of this Court in Ram Chand Versus Udai
Singh alias Daya Ram & Ors. 2012 (3) Civil Court Cases 559 (P&H), Raj
Kumar & Ors. Versus Hari Chand (dead) through his LRs. & Ors. 2014
(Suppl.) Civil Court Cases 799 (P&H), Pratibha and another versus Nandi
Devi and others, in RSA No.1184 of 2016, decided on 27.11.2018.
7. Learned Senior Counsel representing the respondents-
caveators/plaintiffs was also heard to some extent. It was submitted that the
concurrent findings recorded by the Courts below were well reasoned and do
not call for any interference. Learned Senior counsel also referred to the oral
and documentary evidence led on the record of the case and supported by the
findings recorded by the Courts below.
8(i). Before adverting to the merits of the appeal, it would be essential
to observe that that the requirement of framing a substantial question of law in
second appeal in terms of the provisions of Section 100 of the Code of Civil
Procedure as had been laid down in various pronouncements by the Hon'ble
Apex Court including Hero Vinoth (minor) versus Seshammal 2006 (5) SCC
545, was subsequently held to be not there by the Hon'ble Apex Court. It was
held that in the States of Punjab and Haryana, it is the provisions of the
Punjab Courts Act, 1918 which would be applicable and, therefore, Section
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100 CPC would not hold the field and, accordingly, there would be no
requirement of framing substantial question of law in second appeal. With
regard to the States of Punjab and Haryana, it was so held in Kirodi (Since
Deceased) through his Lr. Versus Ram Parkash & Ors. 2019 (3) R.C.R.
(Civil) and Satyender and Ors. Versus Saroj and Ors. 2022 (12) Scale 92
respectively.
8(ii). It was further held in the judgment of Satyender and others
Versus Saroj and others (supra) that though the requirement of formulation
of a substantial question of law is not necessary, yet Section 41 of the Punjab
Courts Act requires that only such decisions are to be considered in second
appeal which are contrary to law or to some custom or usage having the force
of law or the Courts below had failed to determine some material issue of law
or custom or usage having the force of law. It was held that what was,
therefore, important was still a "question of law". It was also held that a
second appeal was not a forum where the Court would re-examine or re-
appreciate questions of fact settled by the trial Court and the Appellate Court.
While holding so, the judgment in the case of Kirodi (Since Deceased)
through his Lr. Versus Ram Parkash & Ors. (supra) was also considered.
8(iii) The legal position under subject is also required to be
examined:-
8(iv) Section 63 of the Indian Succession Act, 1925 lays down as
under:-
"63 Execution of unprivileged Wills. --Every testator,
not being a soldier employed in an expedition or engaged
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in actual warfare, 12 [or an airman so employed or
engaged,] or a mariner at sea, shall execute his Will
according to the following rules:--
(a) 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 direction.
(b) The signature or mark of the testator, or the signature
of the person signing for him, shall be so placed that it
shall appear that it was intended thereby to give effect to
the writing as a Will.
(c) 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 acknowledgement of
his signature or mark, or 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."
8(v). Further, Section 68 of the Indian Evidence Act, 1872 lays down
as under:-
"68. Proof of execution of document required by law to
be attested.--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, if there be an attesting witness alive, and
subject to the process of the Court and capable of giving
evidence:
(Provided that it shall not be necessary to call an attesting
witness in proof of the execution of any document, not
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being a Will, which has been registered in accordance
with the provisions of the Indian Registration Act, 1908
(16 of 1908), unless its execution by the person by whom it
purports to have been executed is specifically denied.)"
8(vi). In the case of Shashi Kumar Banerjee and others Vs.
Subodh Kumar Banerjee since deceased and after him his legal
representatives and others, AIR 1964 SC 529, a Constitution Bench of the
Hon'ble Apex Court was dealing with the issue of genuineness of a Will.
While referring to the judgment of the Hon'ble Apex Court in the case of H.
Venkata-Chala Iyengar Vs. B. N. Thimmajamma, AIR 1959 (SC) 443 and
Rani Purnima Devi Vs. Khagendra Narayan Dev, AIR 1962 (SC) 567, it
was held that the principles governing the proving of a Will are well settled.
It was held 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 in the case of a Will by Section 63 of the Indian
Succession Act. It was held 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. It was held that
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. It was held that where the caveator alleges undue
influence, fraud and coercion, the onus is on him to prove the same. It was
held 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
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made in the Will being unnatural improbable or unfair etc. These principles
were reiterated recently by the Hon'ble Apex Court in the case of Kavita
Kanwar Vs. Pamela Mehta and others, (2021) 11 SCC 209. It was held by
the Hon'ble Apex Court as under:-
"24. We may now take note of the relevant principles
settled by the consistent decisions in regard to the process
of examination of a Will when propounded before a Court
of law.
24.1. In the case of H. Venkatachala Iyengar (supra), a 3-
Judge Bench of this Court traversed through the vistas of
the issues related with execution and proof of Will and
enunciated a few fundamental guiding principles that have
consistently been followed and applied in almost all
the cases involving such issues. The synthesis and
exposition by this Court in paragraphs 18 to 22 of the said
decision could be usefully reproduced as under:-
"18. What is the true legal position in the matter of
proof of wills? It is well known that the proof of wills
presents a recurring topic for decision in courts and
there are a large number of judicial pronouncements
on the subject. The party propounding a will or
otherwise making a claim under a will is no doubt
seeking to prove a document and, in deciding how it is
to be proved, we must inevitably refer to the statutory
provisions which govern the proof of documents.
Sections 67 and 68, Evidence Act are relevant for this
purpose. Under Section 67, if a document is alleged to
be signed by any person, the signature of the said
person must be proved to be in his handwriting, and
for proving such a handwriting under Sections 45 and
47 of the Act the opinions of experts and of persons
acquainted with the handwriting of the person
concerned are made relevant. Section 68 deals with
the proof of the execution of the document required by
law to be attested; and it provides that such a
document shall not be used as evidence until one
attesting witness at least has been called for the
purpose of proving its execution. These provisions
prescribe the requirements and the nature of proof
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which must be satisfied by the party who relies on a
document in a Court of law. Similarly, Sections 59 and
63 of the Indian Succession Act are also relevant.
Section 59 provides that every person of sound mind,
not being a minor, may dispose of his property by will
and the three illustrations to this section indicate what
is meant by the expression "a person of sound mind" in
the context. Section 63 requires that the testator shall
sign or affix his mark to the will or it shall be signed
by some other person in his presence and by his
direction and that the signature or mark shall be so
made that it shall appear that it was intended thereby
to give effect to the writing as a will. This section also
requires that the will shall be attested by two or more
witnesses as prescribed. Thus the question as to
whether the will set up by the propounder is proved to
be the last will of the testator has to be decided in the
light of these provisions. Has the testator signed the
will? Did he understand the nature and effect of the
dispositions in the will? Did he put his signature to the
will knowing what it contained? Stated broadly it is
the decision of these questions which determines the
nature of the finding on the question of the proof of
wills. It would prima facie be true to say that the will
has to be proved like any other document except as to
the special requirements of attestation prescribed by
section 63 of the Indian Succession Act. As in the case
of proof of other documents so in the case of proof of
wills it would be idle to expect proof with
mathematical certainty. The test to be applied would
be the usual test of the satisfaction of the prudent mind
in such matters.
19. 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
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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.
20. There may, however, be cases in which the
execution of the will may be surrounded by suspicious
circumstances. The alleged signature of the testator
may be very shaky and doubtful and evidence in
support of the propounder's case that the signature in
question is the signature of the testator may not
remove the doubt created by the appearance of the
signature; the condition of the testator's mind may
appear to be very feeble and debilitated; and evidence
adduced may not succeed in removing the legitimate
doubt as to the mental capacity of the testator; the
dispositions made in the will may appear to be
unnatural, improbable or unfair in the light of relevant
circumstances; or, the will may otherwise indicate that
the said dispositions may not be the result of the
testator's free will and mind. In such cases the Court
would naturally expect that all legitimate suspicions
should be completely removed before the document is
accepted as the last will of the testator. The presence
of such suspicious circumstances naturally tends to
make the initial onus very heavy; and, unless it is
satisfactorily discharged, Courts would be reluctant to
treat the document as the last will of the testator. It is
true that, if a caveat is filed alleging the exercise of
undue influence, fraud or coercion in respect of the
execution of the will propounded, such pleas may have
to be proved by the caveators; but, even without such
pleas circumstances may raise a doubt as to whether
the testator was acting of his own free will in
executing the will, and in such circumstances, it would
be a part of the initial onus to remove any such
legitimate doubts in the matter.
21. Apart from the suspicious circumstances to which
we have just referred in some cases the wills
propounded disclose another infirmity. Propounders
themselves take a prominent part in the execution of
the wills which confer on them substantial benefits. If
it is shown that the propounder has taken a prominent
part in the execution of the will and has received
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substantial benefit under it, that itself is generally
treated as a suspicious circumstance attending the
execution of the will and the propounder is required to
remove the said suspicion by clear and satisfactory
evidence. It is in connection with wills that present
such suspicious circumstances that decisions of
English Courts often mention the test of the
satisfaction of judicial conscience. It may be that the
reference to judicial conscience in this connection is a
heritage from similar observations made by
ecclesiastical Courts in England when they exercised
jurisdiction with reference to wills; but any objection
to the use of the word 'conscience' in this context
would, in our opinion, be purely technical and
academic, if not pedantic. The test merely emphasizes
that, in determining the question as to whether an
instrument produced before the Court is the last will of
the testator, the Court is deciding a solemn question
and it must be fully satisfied that it had been validly
executed by the testator who is no longer alive.
22. It is obvious that for deciding material questions of
fact which arise in applications for probate or in
actions on wills, no hard and fast or inflexible rules
can be laid down for the appreciation of the evidence.
It may, however, be stated generally that a propounder
of the will has to prove the due and valid execution of
the will and that if there are any suspicious
circumstances surrounding the execution of the will
the propounder must remove the said suspicions from
the mind of the Court by cogent and satisfactory
evidence. It is hardly necessary to add that the result
of the application of these two general and broad
principles would always depend upon the facts and
circumstances of each case and on the nature and
quality of the evidence adduced by the parties. It is
quite true that, as observed by Lord Du Parcq in
Harmes v. Hinkson, 50 Cal W N 895 : (AIR 1946
Privy Council 156), "where a will is charged with
suspicion, the rules enjoin a reasonable scepticism,
not an obdurate persistence in disbelief. They do not
demand from the Judge, even in circumstances of
grave suspicion, a resolute and impenetrable
incredulity. He is never required to close his mind to
the truth". It would sound platitudinous to say so, but
it is nevertheless true that in discovering truth even in
such cases the judicial mind must always be open
though vigilant, cautious and circumspect."
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24.2. In Rani Purnima Debi (supra), this Court referred to
the aforementioned decision in H. Venkatachala Iyengar
and further explained the principles which govern the
proving of a Will as follows:-
"5. Before we consider the facts of this case it is well
to set out the principles which govern the proving of a
will. This was considered by this Court in H.
Venkatachala Iyengar v. B. N. Thimmajamma,
(1959) Supp (1) SCR 426: AIR 1959 Supreme Court
443. It was observed in that case that the mode of
proving a will did not ordinarily differ from that of
proving any other document except as to the special
requirement of attestation prescribed in the case of a
will by section 63 of the Indian Succession Act. The
onus of proving the will was on the propounder and in
the absence of suspicious circumstances surrounding
the execution of the will proof of testamentary capacity
and signature of the testator as required by law was
sufficient to discharge the onus. Where, however, there
were suspicious circumstances, the onus would be on
the propounder to explain them to the satisfaction of
the Court before the will could be accepted as
genuine. If the caveator alleged undue influence, fraud
or coercion, the onus would be on him to prove the
same. Even where there were no such pleas but the
circumstances gave rise to doubts, it was for the
propounder to satisfy the conscience of the Court.
Further, what are suspicious circumstances was also
considered in this case. The alleged signature of the
testator might be very shaky and doubtful and
evidence in support of the propounder's case that the
signature in question was the signature of the testator
might not remove the doubt created by the appearance
of the signature. The condition of the testator's mind
might appear to be very feeble and debilitated and
evidence adduced might not succeed in removing the
legitimate doubt as to the mental capacity of the
testator; the dispositions made in the will might
appear to be unnatural, improbable or unfair in the
light of relevant circumstances; or the will might
otherwise indicate that the said dispositions might not
be the result of the testator's free will and mind. In
such cases, the Court would naturally expect that all
legitimate suspicions should be completely removed
before the document was accepted as the last will of
the testator. Further, a propounder himself might take
a prominent part in the execution of the will which
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conferred on him substantial benefits. If this was so it
was generally treated as a suspicious circumstance
attending the execution of the will and the propounder
was required to remove the doubts by clear and
satisfactory evidence. But even when where there
suspicious circumstances and the propounder
succeeded in removing them, the Court would grant
probate, though the will might be unnatural and might
cut off wholly or in part near relations." (emphasis
supplied)
24.3. In the case of Indu Bala Bose (supra), this Court
again said,-
"7. This Court has held that the mode of proving a
Will does not ordinarily differ from that of proving any
other document except to the special requirement of
attestation prescribed in the case of a Will by section
63 of the Succession Act. 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. 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. Even where
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 signatures 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 suspicions should be completely removed
before the document is accepted as the last Will of the
testator. If the propounder himself takes a prominent
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 part near
relations.
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8. Needless to say that any and every circumstance is
not a "suspicious" circumstance. A circumstance
would be "suspicious" when it is not normal or is not
normally expected in a normal situation or is not
expected of a normal person." (emphasis supplied)
24.4. We may also usefully refer to the principles
enunciated in the case of Jaswant Kaur (supra) for dealing
with a Will shrouded in suspicion, as follows: -
"9. In cases where the execution of a will is shrouded
in suspicion, its proof ceases to be a simple lis
between the plaintiff and the defendant. What,
generally, is an adversary proceeding becomes in such
cases a matter of the court's conscience and then the
true question which arises for consideration is
whether the evidence led by the propounder of the will
is such as to satisfy the conscience of the court that the
will was duly executed by the testator. It is impossible
to reach such satisfaction unless the party which sets
up the will offers a cogent and convincing explanation
of the suspicious circumstances surrounding the
making of the will." (emphasis supplied)
24.5. In the case of Uma Devi Nambiar (supra), this Court
extensively reviewed the case law dealing with a Will,
including the Constitution Bench decision of this Court in
the case of Shashi Kumar Banerjee and Ors. v. Subodh
Kumar Banerjee and Ors.: AIR 1964 Supreme Court 529,
and observed that mere exclusion of the natural heirs or
giving of lesser share to them, by itself, will not be
considered to be a suspicious circumstance. This Court
observed, inter alia, as under:-
"15. Section 63 of the Act deals with execution of
unprivileged Wills. 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 direction. 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 some 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 Indian
Evidence Act, 1872 (in short the "Evidence Act")
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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 of this Court ........ A
Constitution Bench of this Court in Shashi Kumar
Banerjee's case succinctly indicated the focal position
in law as follows: (AIR p. 531, para 4)
"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 in the
case of a Will by section 63 of the Indian Succession
Act. 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.
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 part near relations."
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 earlier reducing or depriving the share of
natural heirs. If a person intends his property to pass
to his natural heirs, there is no necessity at all of
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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 specially in a case where the bequest
has been made in favour of an offspring. As held in
P.P.K. Gopalan Nambiar v. P.P.K. Balakrishnan
Nambiar and Ors.: [1995] 2 SCR 585, it is the duty of
the propunder 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 circumstances, the court
has 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 LRs. and
Ors.: AIR 1995 Supreme Court 1684, 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."
24.6. In the case of Mahesh Kumar (supra), this Court
indicated the error of approach on the part of the High
Court while appreciating the evidence relating to the Will
as follows:-
"44. The issue which remains to be examined is
whether the High Court was justified in coming to the
conclusion that the execution of the will dated 10-2-
1992 was shrouded with suspicion and the appellant
failed to dispel the suspicion? At the outset, we deem it
necessary to observe that the learned Single Judge
misread the statement of Sobhag Chand (DW3) and
recorded something which does not appear in his
statement. While Sobhag Chand categorically stated
that he had signed as the witness after Shri
Harishankar had signed the will, the portion of his
statement extracted in the impugned judgment gives an
impression that the witnesses had signed even before
the executant had signed the will.
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45. Another patent error committed by the learned
Single Judge is that he decided the issue relating to
validity of the will by assuming that both the attesting
witnesses were required to append their signatures
simultaneously. Section 63(c) of the 1925 Act does not
contain any such requirement and it is settled law that
examination of one of the attesting witnesses is
sufficient. Not only this, while recording an adverse
finding on this issue, the learned Single Judge omitted
to consider the categorical statements made by DW 3
and DW 4 that the testator had read out and signed
the will in their presence and thereafter they had
appended their signatures.
46. The other reasons enumerated by the learned
Single Judge for holding that the execution of will was
highly suspicious are based on mere
surmises/conjectures. The observation of the learned
Single Judge that the possibility of obtaining
signatures of Shri Harishankar and attesting witnesses
on blank paper and preparation of the draft by Shri
S.K. Agarwal, Advocate on pre-signed papers does not
find even a semblance of support from the pleadings
and evidence of the parties. If Respondent 1 wanted to
show that the will was drafted by the advocate after
Shri Harishankar and attesting witnesses had signed
blank papers, he could have examined or at least
summoned Shri S.K. Agarwal, Advocate, who had
represented him before the Board of Revenue. ...."
24.7. Another decision cited on behalf of the appellant in
the case of Leela Rajagopal may also be referred where
this Court summarised the principles that ultimately, the
judicial verdict in relation to a Will and suspicious
circumstances shall be on the basis of holistic view of the
matter with consideration of all the unusual features and
suspicious circumstances put together and not on the
impact of any single feature. This Court said,-
"13. A will may have certain features and may have
been executed in certain circumstances which may
appear to be somewhat unnatural. Such unusual
features appearing in a will or the unnatural
circumstances surrounding its execution will definitely
justify a close scrutiny before the same can be
accepted. It is the overall assessment of the court on
the basis of such scrutiny; the cumulative effect of the
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unusual features and circumstances which would
weigh with the court in the determination required to
be made by it. The judicial verdict, in the last resort,
will be on the basis of a consideration of all the
unusual features and suspicious circumstances put
together and not on the impact of any single feature
that may be found in a will or a singular circumstance
that may appear from the process leading to its
execution or registration. This, is the essence of the
repeated pronouncements made by this Court on the
subject including the decisions referred to and relied
upon before us."
24.8. We need not multiply the references to all and other
decisions cited at the Bar, which essentially proceed on
the aforesaid principles while applying the same in the
given set of facts and circumstances. Suffice would be to
point out that in a recent decision in Civil Appeal No.
6076 of 2009: Shivakumar & Ors. v. Sharanabasppa &
Ors., decided on 24.04.2020, this Court, after traversing
through the relevant decisions, has summarised the
principles governing the adjudicatory process concerning
proof of a Will as follows:-
"1. Ordinarily, a Will has to be proved like any other
document; the test to be applied being the usual test of
the satisfaction of the prudent mind. Alike the
principles governing the proof of other documents, in
the case of Will too, the proof with mathematical
accuracy is not to be insisted upon.
2. Since as per section 63 of the Succession Act, a Will
is required to be attested, it cannot be used as
evidence until at least one attesting witness has been
called for the purpose of proving its execution, if there
be an attesting witness alive and capable of giving
evidence.
3. The unique feature of a Will is that it speaks from
the death of the testator and, therefore, the maker
thereof is not available for deposing about the
circumstances in which the same was executed. This
introduces an element of solemnity in the decision of
the question as to whether the document propounded
is the last Will of the testator. The initial onus,
naturally, lies on the propounder but the same can be
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taken to have been primarily discharged on proof of
the essential facts which go into the making of a Will.
4. The case in which the execution of the Will is
surrounded by suspicious circumstances stands on a
different footing. The presence of suspicious
circumstances makes the onus heavier on the
propounder and, therefore, in cases where the
circumstances attendant upon the execution of the
document give rise to suspicion, the propounder must
remove all legitimate suspicions before the document
can be accepted as the last Will of the testator.
5. If a person challenging the Will alleges fabrication
or alleges fraud, undue influence, coercion et cetera in
regard to the execution of the Will, such pleas have to
be proved by him, but even in the absence of such
pleas, the very circumstances surrounding the
execution of the Will may give rise to the doubt or as
to whether the Will had indeed been executed by the
testator and/or as to whether the testator was acting of
his own free will. In such eventuality, it is again a part
of the initial onus of the propounder to remove all
reasonable doubts in the matter.
6. A circumstance is "suspicious" when it is not
normal or is `not normally expected in a normal
situation or is not expected of a normal person'. As put
by this Court, the suspicious features must be `real,
germane and valid' and not merely the `fantasy of the
doubting mind.'
7. As to whether any particular feature or a set of
features qualify as "suspicious" would depend on the
facts and circumstances of each case. A shaky or
doubtful signature; a feeble or uncertain mind of the
testator; an unfair disposition of property; an unjust
exclusion of the legal heirs and particularly the
dependants; an active or leading part in making of the
Will by the beneficiary thereunder et cetera are some
of the circumstances which may give rise to suspicion.
The circumstances above-noted are only illustrative
and by no means exhaustive because there could be
any circumstance or set of circumstances which may
give rise to legitimate suspicion about the execution of
the Will. On the other hand, any of the circumstance
qualifying as being suspicious could be legitimately
explained by the propounder. However, such suspicion
or suspicions cannot be removed by mere proof of
sound and disposing state of mind of the testator and
his signature coupled with the proof of attestation.
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8. The test of satisfaction of the judicial conscience
comes into operation when a document propounded
as the Will of the testator is surrounded by
suspicious circumstance/s. While applying such
test, the Court would address itself to the solemn
questions as to whether the testator had signed the
Will while being aware of its contents and after
understanding the nature and effect of the
dispositions in the Will?
9. In the ultimate analysis, where the execution of
a Will is shrouded in suspicion, it is a matter
essentially of the judicial conscience of the Court
and the party which sets up the Will has to offer
cogent and convincing explanation of the
suspicious circumstances surrounding the Will."
9 (i). Reverting to the case in hand, It is unfortunate that real brothers
and sisters are fighting a legal battle over a house owned by their mother Smt.
Kailashwanti. Their father Pandit Desraj Mishra expired in the year 1974 and
Smt. Kailashwanti expired on 26.10.1980. Admittedly, the defendant has
been residing in the disputed house since 1977. The suit was filed in the year
2013. Whether the plaintiffs had consented to the defendant residing in the
disputed house and whether Smt. Kailashwanti had executed a Will in favour
of the defendant are issues which need to be addressed. It is a bit strange that
the defendant kept on residing in the disputed house till the filing of the suit
without any objection from any quarter. At the same time, it is equally
strange that the alleged Will dated 31.12.1977 never saw the light of the day
till the filing of the suit.
9(ii) Certain facts are admitted. The relationship between the parties
is admitted. Smt. Kailashwanti being the owner of the disputed house is
admitted. The question which needs to be addressed is as to whether the
property of Smt. Kailashwanti i.e. the disputed house would devolve upon the
legal heirs of Smt. Kailashwanti by way of succession or in accordance with
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the Will dated 31.12.1977. As per the plaintiffs, the same will devolve as per
succession whereas, as per the defendant, she would be the sole and exclusive
owner of the disputed house in view of the Will dated 31.12.1977 executed in
her favour by her mother Smt. Kailashwanti. We shall straightway refer to
the Will Ex.D1. It is an unregistered document. Further, it has been thumb
marked by Smt. Kailashwanti. There were two attesting witnesses namely
Mukhtiar Singh and Sh. Mehar Chand. The scribe was Sh. R.L.Dhammi.
Considering the fact that the Will was drafted by a scribe, its format and its
placement is somewhat strange. One witness namely Mukhtiar Singh had
signed on the first page on the side margin of the Will and there is also thumb
impression of Kailashwanti on the side margin of the said page. The second
witness Mehar Chand signed on the second page on the side margin and the
thumb impression of Smt. Kailashwanti are at the bottom of the said page.
This is not the normal format of a Will and once the scribe was there, the
placement of the signatures of both the witnesses would be expected to be at
the bottom as also on the side margins.
9(iii) Ex.P-4 and Ex.P-7 were two documents produced on record
which were the conveyance deed of the disputed house and a money-order
form on which there were signatures of Smt. Kailashwanti. The conveyance
deed was executed in November, 1963 and it bears the signatures (though in
Hindi) of Smt. Kailashwanti. The money-order receipt also bears the
signatures of Smt. Kailashwanti in Hindi. This receipt was of May 1980. It,
therefore, means that prior to the execution of the alleged Will and also after
that i.e. in the year 1963 and 1980 Smt. Kailashwanti appended her signatures
on two documents vis. a conveyance deed and a money-order receipt. These
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documents were duly exhibited during the course of evidence and were not
objected to. It had also come on record that Sh. Desraj Mishra was an
advocate. It is, therefore, quite unnatural that Smt. Kailashwanti put her
thumb impressions on the alleged Will instead of appending her signatures.
The onus to prove that the Will had been executed was upon the defendant
and the defendant did not examine any expert to prove that the thumb
impressions were of Smt. Kailashwanti.
9(iv). In so far as the attesting witnesses and the scribe are concerned,
one attesting witness Mukhtiar Singh stepped into the witness box as DW2.
The scribe also appeared as DW3. However, the other attesting witness
namely Sh. Mehar Chand was not examined and no reason was given for his
non-examination. The testimony of both DW2 Mukhtiar Singh and DW3 Sh.
R.L.Dhammi was not found to be trustworthy by the Courts below. I have
also perused their statements. It is quite strange that Smt. Kailashwanti
decided to execute her Will on a cold day of December i.e. 31.12.1977 and
allegedly went to the Tehsil premises to get the Will scribed when the Courts
were closed. Mukhtiar Singh, while appearing as DW2 stated, in his cross-
examination that his father had sent him for being a witness to the Will as
Smt. Kailashwanti had asked his father to come as a witness but he was busy
in some work. He stated that the defendant was also accompanying Smt.
Kailashwanti when she went for execution of the Will. He stated that he was
illiterate. It is quite strange that an illiterate person was called as a witness to
the Will. Normally a person would call some literate person as a witness so
that in case of any dispute, he would at least be in a position to support the
Will. DW2 Mukhtiar Singh stated that he did not know the other witness
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Mehar Chand previously. He denied many questions and feigned ignorance
about many facts. Similarly the scribe Sh. R.L.Dhammi stated that he did not
remember as to whether the defendant was accompanying Smt. Kailashwanti
or not. However, her signatures/thumb impressions were not there in his
register. He did not retain a copy of the Will in his register. He also did not
make an entry with regard to the execution of the Will in his register. His
register which was brought in the Court during the evidence contained blank
pages. He stated that he had not seen the identification proof of Smt.
Kailashwanti. He further stated that he had never had a permanent seat in the
Karnal Tehsil but used to go there for work.
9(v). The analysis of the oral and documentary evidence clearly shows
that the execution of the Will does not stand fully proved and that there are a
number of questions which were left unanswered. The Will Ex.D1 does not
qualify the test laid down in the judgments referred to in the preceding
paragraphs. Another thing which has not been explained by the defendant is
as to why the Will dated 31.12.1977 did not see the light of the day till the
suit was filed and why no effort was made by the defendant to get the
disputed house mutated in her favour on the basis of the Will. It cannot be
ruled out that the defendant had been residing in the disputed house with the
consent of the plaintiffs but once the plaintiffs felt that she was not getting the
house transferred in the names of all of them, the suit was filed. Had the Will
been executed, there was no reason why no efforts were made to get the
disputed house transferred in the name of the defendant.
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9(vi). Still further, it also came in the evidence that the plaintiffs had
participated in the last rites of Smt. Kailashwanti and there is no concrete
evidence on the record that the plaintiffs had not served Smt. Kailashwanti in
her old age as a result of which she executed the Will in favour of the
defendant.
9(vii). It is, therefore, abundantly clear that the execution of the Will
was not proved by the defendant and further, the Will was also shrouded by
suspicious circumstances. Both the Courts below, therefore, did not commit
any illegality in decreeing the suit and rejecting the stand of the defendant.
9(viii) I have gone through the judgments relied upon by learned Senior
counsel representing the appellant/defendant. In the case of Mahesh Kumar
(Dead) by L.Rs. Versus Vinod Kumar & Ors. (supra) the Hon'ble Apex
Court held that the mere fact that the propounder was present at the time of
the execution of the Will would not affect the genuineness or validity of the
Will. This judgment will not come to the aid of the appellant as she has not
been non-suited only on the ground of having been present at the time of
execution of the Will but on the contrary she has been non-suited on account
of many other circumstances which have been discussed in the preceding
paragraphs. For the same reason, the judgment in the case of Leela
Rajagopal & Ors. Vs. Kamala Menon Cocharan & Ors. (supra) will not
come to the aid of the appellant.
9(ix). The judgment in the case of Ram Chand Versus Udai Singh
alias Daya Ram & Ors. (supra) was given in the peculiar facts of that case
and would not apply to the facts of the present case. In the case of Raj
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Kumar & Ors. Versus Hari Chand (dead) through his LRs. & Ors., a
Coordinate Bench of this Court held that merely because there were thumb
impressions on the Will instead of signatures, it would not amount to
suspicious circumstances and that the thumb impressions are rather more
authentic and difficult to tamper with. This judgment would also not come to
the aid of appellant/defendant since no efforts were made to prove that thumb
impressions were actually of Smt. Kailashwanti and further as to under what
circumstances before and after execution of the Will, Smt. Kailashwanti had
been appending her signatures instead of thumb impressions. It has to be
borne in mind that the onus to prove the Will was upon the defendant which
she did not successfully discharge.
In view of the aforementioned facts and circumstances, I do not
find any ground to interfere in the well reasoned judgments passed by both
the Courts below. Accordingly, finding no merit in the present appeal, the
same is dismissed.
(VIKRAM AGGARWAL)
JUDGE
11.12.2023
mamta
Whether speaking/reasoned Yes/No
Whether Reportable Yes/No
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