VIJYABEN VASHRAM v. STATE — 1988 DIGILAW 100 (GUJ)

A. P. RAVANI, J. ( 1 ) IN respect of proof of documents how does proof of a will differ from other documents ? This distinction has not been properly grasped by the trial Court and hence the appellant-plaintiff who succeeded in persuading the trial Court that the valid execution of will in question was proved fails in this appeal solely on the ground of absence of proof of legal and valid execution of the will. The appellant-original plaintiff filed a special civil suit for declaration and injunction to the effect that the residential house called Parmar House situated at Vijay Plot Street No. 13 in the city of Rajkot exclusively belongs to her and that defendants Nos. 1 2 and 3 i. e. State of Gujarat and the officers of the Sales Tax Department had no right to affect recovery of the alleged dues of sales tax payable by deceased husband of the plaintiff (Naranbhai Maganbhai) by affecting sale of the property in question. The suit was resisted by defendants Nos. 1 2 and 3 on the ground that the property was not self-acquired property of the deceased and therefore it could not have been disposed of by deceased Naranbhai Bhagwanbhai by executing will in favour of the plaintiff. It was also contended that the will was not validly executed. Defendant No. 4 the is one of the some of the deceased had not filed any written statement and appears to have remained absent in the proceedings. The trial Court after recording evidence and after hearing the parties can to the conclusion that the property was not selfacquired property of the deceased and therefore it could not have been disposed of by him by executing the will. However the trial Court found that the will was validly executed. Even 60 in view of its finding about the character of the property the trial Court ordered to dismiss the suit. Hence the appeal by the original plaintiff. ( 2 ) DECEASED Naranbhai Bhagwanbhai was carrying on business in partnership with two of his sons in the name of Sarvoday Motor Workes. He executed a will dated 28/09/1962 by which according to the plaintiff the house in question was bequeathed to her. The testator Naranbhai Bhagwanbhai died on 28/06/1963 After his death the partnership firm was reconstituted and all his six sons became partners of the firm. He executed a will dated 28/09/1962 by which according to the plaintiff the house in question was bequeathed to her. The testator Naranbhai Bhagwanbhai died on 28/06/1963 After his death the partnership firm was reconstituted and all his six sons became partners of the firm. As the sales tax dues were not paid a notice was issued to defendant No. 4 who was a partner in the firm of which deceased Naranbhai Bhagwanbhai was also a partner. Defendant No. 4 is one of the sons of deceased Naranbhai. According to the respondent_ defendants i. e. the State of Gujarat and the officers of the Sales Tax Department defendant No. 4 was also liable to pay the dues of the sales tax and hence the notice for recovery of dues was also issued to him As per the notice public auction of the property in question was to be held on 25/04/1973 The plaintiff applied to the appropriate officer of the Sales Tax Department and objected to the sale on the ground that the property was self acquired property of deceased Naranbhai and that she had become owner of the property by virtue of the will executed by deceased Naranbhai Bhagwanbhai. The objections were rejected on 23/04/1973 Hence the plaintiff filed the suit for declaration and injunction as stated above. Formerly the suit was filed without serving notice under Sec. 80 of the Civil Procedure Code and hence the same was withdrawn with permission to file fresh suit. The present suit was filed on 16/01/1974 ( 3 ) DEFENDANTS Nos. 1 2 and 3 i. e. State of Gujarat Assistant Commissioner of Sales Tax and the Sales Tax Recovery Mamlatdar respectively resisted the suit on facts as well as on law points. It was contended by the defendant that the dues were in respect of the sales tax and were payable by the firm of Sarvoday Motor Works of which the deceased and his two sons namely Jadav Naran and Shamji Naran were partners. It was contended by the defendant that the dues were in respect of the sales tax and were payable by the firm of Sarvoday Motor Works of which the deceased and his two sons namely Jadav Naran and Shamji Naran were partners. The dues were for the period commencing from Ap 1/04/1960 to 31/03/1969 After the death of Naranbhai the partnership was re-constituted and all his sons had become partners of the firm it was contended by the defendants that the property alleged to have been disposed of by will could not have been so disposed of by the deceased because it was a joint family property The business of Sarvoday Motor Works was also of joint family of deceased Naranbhai Bhagwanbhai. It was also contended that the will was not executed in accordance with law and that it was fraudulent transfer with a view to avoid payment of dues of the Sales Tax Department and that of other creditors. ( 4 ) THE trial Court framed necessary issues. The plaintiff led evidence of herself and that of two other witnesses. After hearing the parties the trial Court came to the conclusion that the will was validly executed but the residential house which was disposed of by the will was not of the sole ownership of the deceased. Therefore the Court held that the deceased had no right to dispose of the same by will. The trial Court also came to the conclusion that the bequest by will was a fraudulent transfer. In this view of the matter the trial Court dismissed the suit of the plaintiff by its judgment and decree dated 16/01/1976 ( 5 ) THE learned Counsel for the appellant assailed the finding arrived at by the trial Court with regard to the character of the property. In his submission the finding that the property was not self-acquired property of the deceased is not proper and the same is contrary to the evidence on record In his submission the trial Court was not justified in rejecting the evidence of the plaintiff mainly on the ground that the plaintiff who is an illiterate widow and aged about 66 years on the date of deposition stated that her sons were not staying with her when the will was executed and that she had no knowledge where her sons were working. This is surely an incorrect or erroneous statement. This is surely an incorrect or erroneous statement. But this erroneous or inaccurate part of her deposition should not have been taken as a relevant circumstances while deciding the character of the property. Analysing the record of the case it is evident that the trial Court had not taken into consideration the deposition of Chhotalal Amrutlal Parekh (Exh. 84 ). The residential house was mortgaged by the deceased to this witness some time in February 1963 The mortgage deed is at Exh. 86. The land on which the house has been built was purchased by the deceased as far back as on 29/07/1936 (Exh. 85 ). It is obvious that the trial Court has completely ignored this evidence which throws light on the character of the property. ( 6 ) IT is evident from the deposition of the plaintiff herself and Pravinchandra Natwarlal (Exh. 72) that the deceased was a skilled workman. In the beginning of his career he served in some motor works. There is nothing on record to show that there was any ancestral property or the nucleus from which the land could have been purchased by the deceased. On the contrary it appears that the deceased was a self-made man. He had built up his business by hard work and his innate skill. It is unfortunate that the effect of documents Exh. 85 and Exh. 86 has not been considered at all by the trial Court. Having regard to this state of evidence we are of the opinion that the finding arrived at by the trial Court that the property was not self-acquired property of the deceased Naranbhai Bhagwanbhai cannot be sustained. Hence the finding on this point is required to be reversed and set aside. ( 7 ) THE learned Counsel for the respondents has tried to support the judgment and decree by taking recourse to the provisions of Order 41 Rule 22 of the Civil Procedure Code. The respondents contend that the finding arrived at by the trial Court as regards the valid execution of the will is not sustainable. In our opinion the contention so raised on behalf of the respondents is very well founded. The respondents contend that the finding arrived at by the trial Court as regards the valid execution of the will is not sustainable. In our opinion the contention so raised on behalf of the respondents is very well founded. ( 8 ) THE term will has been defined in Sec. 2 (h) of the Indian Succession Act 1925 According to this definition the important characteristics of a will are: (I) There must be a legal declaration by the testator. (II) The declaration must be with respect to the property of the testator. (III) The declaration must be to the effect that it is to operate after the death of the testator and that it has to be given effect after the death of the testator. (IV) That the declaration must be of the intention of the testator. Every person of sound mind not being a minor may dispose of his property by will (S. 59 ). The will should be signed by the testator or it should have been signed by some other person in his presence and by his direction. The will is required to be attested by two or more witnesses. Each witness must have seen the testator sign or affix his mark or some other person sign the will in the presence of and by the direction of the testator. In case the will is already signed each witness must have received from the testator a personal acknowledge ment of his signature or mark or of the signature of such other person signing for him (S. 63 ). ( 9 ) PROVISIONS of Secs. 66 and 67 of the Indian Evidence Act which provides for proof of documents apply to the proof of will also. However proof of will is somewhat different inasmuch as testator will be no more there in the world to depose about his own signature or about what has been depicted or written down in the will. In this connection following observations of the Supreme Court in the case of H. Venkatachala Iyengar v. Chimmajamma and Ors. However proof of will is somewhat different inasmuch as testator will be no more there in the world to depose about his own signature or about what has been depicted or written down in the will. In this connection following observations of the Supreme Court in the case of H. Venkatachala Iyengar v. Chimmajamma and Ors. AIR 1959 SC 443 are very much important:"unlike other documents the will speaks from the death of the testator and 50 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. . . . . . . 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 under stood the nature and effect of the disposition and put his signature to the document of his own free will. "the aforesaid principles have been reiterated by the Supreme Court in the case of Smt. Indu Bala Bose and Ors. v. Manindra Chandra Bose and Anr. AIR 1982 SC 133 . ( 10 ) IN view of the aforesaid settled legal position a person who propounds the will or produces the will before the Court and wants the Court to rely upon the same has to prove that: (I) the will in question is the legal declaration of the intention of the deceased; (II) the testator when executed the will was in a sound and disposing state of mind; and (III) the testator had executed the will of his own free will meaning thereby he was a free agent when he executed the will. ( 11 ) IN the light of the aforesaid principles the evidence on the record may be examined. Evidence of plaintiff Vijayaben Vashram (Exh. 38) and attesting witness Pravinchandra Natwarlal (Exh. 72) is relevant on this point. ( 11 ) IN the light of the aforesaid principles the evidence on the record may be examined. Evidence of plaintiff Vijayaben Vashram (Exh. 38) and attesting witness Pravinchandra Natwarlal (Exh. 72) is relevant on this point. The plaintiff has stated to the effect that her husband had signed the will in her presence and that Prabhudas and Pravinbhai (attesting witnesses) had attested the same in her presence; that the will is registered and that by the will she has been given Parmar House which belonged to her husband. Attesting -witness Shri Pravinchandra (Exh. 72) has stated in his deposition to the effect that he was called before about 15 years by deceased Naranbhai Bhagwanbhai. The deceased was in and he has made the will on which he has put his attestation. He has further stated that the deceased had signed the will in his presence and another attesting witness had also signed in his presence. ( 12 ) BOTH these witnesses do not say anything whatsoever as regards the instructions given by the deceased to anyone for drafting the will nor anyone of them say that the contents of the will were written down as per the instructions given by the deceased. It may be that the will might not have been written in their presence but none of them even say that the deceased had told to any one of them as to what was written in the will or that it reflected the intention of the deceased. There is no evidence whatsoever as regards the instructions given by the deceased for drafting the will. There is nothing on the record to show as to who drafted the will and as per whose instructions it was drafted. Even in the will Exh. 73 it is not stated as to who was the scribe of the will and as per whose instructions it was written down and by whom? Therefore the basic requirement for a validly executed will that it should be a legal declaration of the intention of the testator is not proved as far as the will in question is concerned. On this point the evidence is that of Vijayaben and that of Pravinchandra the attesting witness. Both these persons are eloquently silent on this point. Therefore the basic requirement for a validly executed will that it should be a legal declaration of the intention of the testator is not proved as far as the will in question is concerned. On this point the evidence is that of Vijayaben and that of Pravinchandra the attesting witness. Both these persons are eloquently silent on this point. ( 13 ) THE second requirement for validly executed will is that it should have been executed by a person having sound and disposing state of mind. From the evidence led by Shri Pravinchandra (Exh. 72) the attesting witness it has come on record that the deceased was ill when he executed the will. In his cross-examination the witness has admitted that the deceased was suffering from cancer ar d was bedridden when he executed the will. Neither the plaintiff Vijayaben nor the attesting witness Pravinchandra stated in their evidence that when the deceased testator signed the will be was in sound disposing state of mind. There is no evidence whatsoever as regards the mental capacity of the deceased testator at the time of execution of the will. In case of an ordinary document when signature of the authority of the document is proved it may be presumed that the document is lawfully executed. But as stated hereinabove as far as proof of will is concerned the state of mind of the testator is very important. Unless it is proved that the deceased testator executed the will in sound disposing state of mind the will cannot be said to be legal and valid. It was for the plaintiff to prove that the deceased-testator was in sound and disposing state of mind at the time of execution of the will. Since there is Do evidence whatsoever on this point it has got to be held that this requirement of law has also not been proved in the instant case. ( 14 ) THE plaintiff ought to have proved that at the time of execution of the will the testator was a free agent. Neither the plaintiff or the attesting witness Shri Pravinchandra (Exh. 72) deposed that the testator had voluntarily executed the will and that he was a free agent at the time of execution of the will. In ordinary circumstances this might not be necessary to be stated. Neither the plaintiff or the attesting witness Shri Pravinchandra (Exh. 72) deposed that the testator had voluntarily executed the will and that he was a free agent at the time of execution of the will. In ordinary circumstances this might not be necessary to be stated. However in the instant case it has been brought on record and that too from the evidence of the plaintiff that the testator was in and bed-ridden and that he was suffering from serious disease of cancer when the will was executed. Therefore it has sot to be held that where the will was executed the testator was not a free agent and there is no evidence whatsoever to show that the testator executed the will of his free volition. ( 15 ) THE aforesaid important elements for proof of valid execution of the will are lacking in this case. Moreover the burden of proof on the plaintiff (or on the persons who propounded the will in such cases) is of two types: (1) to discharge the burden as regards the legal and valid execution of the will; (2) to remove the suspicious circumstance surrounding the execution of the will so as to satisfy the conscience of the Court. As far as the second aspect is concerned there are certain suspicious circumstances concerning the execution of the will. They are as follows: (I)THE sales tax dues were for the period prior to the death of the deceased. In his life time he had incurred huge debt even by mortgaging the residential house. This is evident from Exh. 86. Ordinarily all the heirs could not be excluded from the estate but this is what has happened in this case. All the sons have been excluded while an attempt has been made to protect the interests of plaintiff i. e. widow of the deceased. This circumstance ought to have been explained by the plaintiff as to why this had become necessary ? There is no evidence whatsoever to explain this suspicious circumstance. (II) There is an allegation in the written statement that the will has been executed fraudulently with a view of defraud the creditors and to defeat the claims of the Revenue. This circumstance ought to have been explained by the plaintiff as to why this had become necessary ? There is no evidence whatsoever to explain this suspicious circumstance. (II) There is an allegation in the written statement that the will has been executed fraudulently with a view of defraud the creditors and to defeat the claims of the Revenue. Coupled with this allegation if it is considered that all the male members have been excluded and that the deceased was suffering from serious disease of cancer the probability that the will might have been executed at the instance of all the sons of the deceased so that their liability be avoided and they may be able to enjoy the residential house cannot be ruled out unless satisfactorily explained (III) The testator was a person of advanced age. Ordinarily will would be executed in advanced stage. But in the instant case it is clear that the deceased testator had already executed a will earlier on 26/10/1961 That will has been cancelled by will Exh. 73. Why execution of second will become necessary ? This circumstance has remained unexplained ( 16 ) IN this connection reference may be made to the decision of the Supreme Court in the case of Indu Bala Bose (supra ). In Para 7 of the judgment it is stated as follows:"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 testators 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 testators 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 help that is also a circumstances to be taken into account and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder himself takes a prominent part in the execution of the will which confers a substantial benefit on help that is also a circumstances 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 out off wholly or in part near relations. It is true that each and every circumstance cannot be labelled as a suspicious circumstance. Something which may appear to be suspicious if understood in proper context may turn out to be innocuous. Therefore as indicated by Supreme Court in the case of Indu Bala Bose (supra):"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. "in the instant case the aforesaid circumstances are not expected in normal situation. At any rate the aforesaid circumstances do raise doubt in the mind of the Court Therefore it was incumbent Upon the plaintiff to lead satisfactory evidence to remove the doubts and satisfy the conscience of the Court. As stated hereinabove there is not a word in the entire evidence explaining any of the aforesaid circumstances. ( 17 ) IN above view of the matter both on the count of proof of requirement of duly and validly executed will and on the count of removal of suspicion concerning the execution of the will the plaintiff has led no evidence much less any satisfactory evidence. Therefore the finding arrived at by the trial Court that the will is validly executed cannot be sustained and the same is hereby reversed and set aside. 18 In above view of the matter the appeal fails and the same is hereby dismissed with costs. It is needless to clarify that interim relief if any 8 earlier stands vacated. Appeal dismissed. .