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1991 DIGILAW 178 (HP)

MILKHI RAM v. SURMOO DEVI

1991-12-16

KAMLESH SHARMA

body1991
JUDGMENT Kamlesh Sharma, J.—This Regular Second Appeal is directed against the decree and judgment dated 21-8-1991 passed by the District Judge Hamirpur, whereby the appeal of respondent-plaintiff was accepted and the decree and judgment dated 18-1-1986 of Sub-Judge 1st Class Hamirpur was set aside and her suit was decreed against the appellants-defendants: 2 The brief facts of the case are that respondent-plaintiff 6led civil suit against the appellants-defendants for possession of the suit land clausing herself to be the only legal heir of its owner Sh Sehad Ram who had died on 11-5-1984 The mutation of inheritance of Sh Sehad Ram was attested in favour of the appellants-defendants on the basis of a will propounded by them. The respondent-plaintiff had challenged this will as forged and fictitious. The appellants defendants had contested the suit and took a number of preliminary objections. On merits their case was that the will executed by Sh. Sehad Ram in tori favour is a valid will. Their defence weighed with the trial court and it dismissed the suit holding that the will was proved to be executed in accordance with law. According to the trial Court, the suspicious circumstances that the sole legal heir was disinherited and one of the propounder the will had taken part in its execution stood explained. But these finding were reversed by the District Judge in the appeal filed by the respondent plaintiff Hence the present Regular Second Appeal. 3. I have heard the learned Counsel for the parties and gone the record. Sh. Bhupendcr Gupta, appearing on behalf of the appellants defendants, submits that though it is a finding of fact that the will propounded by his clients is shrouded by suspicious circumstances which they have failed to explain, yet, if these findings are based on wrong notion and misconception of law, these can be Interfered with in the Regular Second Appeal. According to Mr. Gupta, the wrong notion and misconception of law with the District Judge was that when one of the legal heirs or the sole legal heir is not bequeathed his property by the testator, his will becomes unnatural and also invalid. According to Mr. Gupta, the wrong notion and misconception of law with the District Judge was that when one of the legal heirs or the sole legal heir is not bequeathed his property by the testator, his will becomes unnatural and also invalid. He urges that if execution of the will is proved, as in the present case, the Court is not entitled to consider the terms of the will for deciding whether the testator was justified in disinheriting one of the legal heirs or the sole legal heir. For making these submissions, he has relied upon Ajit Chandra Majumdar v. Akhil Chandra Majumdar, AIR 1960 Cal 551 ; Sonam Topgval Bhutia v. Gompu Bhutia, AIR 1980 Sikkim 33 ; Alok Kumar Aich v. Asoke Kumar Aich and others, AIR 1982 Cal 599 ; Smt. Sushila Devi v. Pandit Krishna Kumar Missir and others, AIR 1971 SC 2236 and Smt. Indu Bala B)se and others v. Munindra Chandra Bose and another, AIR 1982 SC 133 and has tried to distinguish Kalyan Singh v Smt. Chhotl and others, AIR 1990 SC 396 and Ram Piari v. Bhagwant and others, 1990 Marriage LJ 283, relied upon by the District Judge. 4. The argument of Mr. Gupta has been raised to be rejected in view of the law laid down by the Supreme Court in a catena of cases ratio of which has been correctly applied to the facts of the present case. Suffice it to quote the observations made in a few of these judgments where points similar to the present case were decided. 5. In Rani Purnima Debi and another v. Kumar Khagendra Natayan Deb and another, AIR 1962 SC 567, in Para 5 of the judgment, it has been held as under : "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 lyengar v. B. N. Thimmajamma, (1959) Supp(l)SCR 426 ; AIR 1959 SC 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. 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 coersion, 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 propounders 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 testators 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 testators 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 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 where there were 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." 6. In Smt. Suhila Devi v Pandit Krishna Kumar Missir and others, AIR 1971 SC 2236, their Lordships of the Supreme Court In Para 5 of the judgment held as under :— "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 his 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 behaviour but there is no gainsaying the fact that some individuals do behave in an abnormal manner. Judges cannot impose their own standards of behaviour on those who execute wills......" 7. In Smt. Indu Bala Base and others v. Manindra Chandra Base and another, AIR 1982 SC 133, in Paras 7 and 8 of the judgment, the following observations have been made? — "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. 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 signature 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 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. (See AIR 1964 SC 529; 1959 Supp (!) SCR 426 s AIR 1959 SC 443 and (1962) 3 SCR 195 s AIR 1962 SC 567. 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…...." 8. In Kalyan Singh v. Smt Chhoti and others, AIR 1990 SC 396. the learned Judges of the Supreme Court, in Para 20, observed as under :— "It has been said almost too frequently to require repetition that a will is one of the most solemn documents known to law. The executant of the will cannot be called to deny the execution or to explain the circumstances in which it was executed. the learned Judges of the Supreme Court, in Para 20, observed as under :— "It has been said almost too frequently to require repetition that a will is one of the most solemn documents known to law. The executant of the will cannot be called to deny the execution or to explain the circumstances in which it was executed. It is, therefore, essential that trustworthy and unimpeachable evidence should be produced before the court to establish the genuineness and authenticity of the will. It must be stated that the factum of execution and validity of the will cannot j be determined merely by considering the evidence produced by the propounder. In order to judge the credibility of witnesses and disengage the truth from falsehood the court is not confined only to their testimony and demeanour, it would be open to the Court to consider the circumstances brought out in the evidence or which appear from the nature and contents of the document itself. It would be also open to the court to look into surrounding circumstances as well as inherent improbabilities of the case to reach a proper conclusion on the nature of the evidence adduced by the party." Further, in Para 22, it was observed:— ".........The will in the present case, constituting the plaintiff as a sole legatee with no right whatever to the testators wife seems to be unnatural. It casts a serious doubt on genuineness of the will. The will has not been produced for very many years before the court or public authorities even though there were occasions to produced it for asserting plaintiffs title to the property. The plaintiff was required to remove these suspicious circumstances by placing satisfactory material on record. He has failed to discharge his duty. We, therefore, concur with the conclusions of the High Court and reject the will as not genuine." 9. The plaintiff was required to remove these suspicious circumstances by placing satisfactory material on record. He has failed to discharge his duty. We, therefore, concur with the conclusions of the High Court and reject the will as not genuine." 9. In Ram Piari v, Bhagwant and others, 1990 Marriage LJ 283, in Para 4 of the judgment, the learned Judges of the Supreme Court made the following observations:— "Ratio in Maikani v. Jamadar, AIR 1987 SC 767, was relied on to dissuade this Court from interfering, both, because of the finding that will was genuine, was a finding of fact and omission to mention reason for disinheriting the daughter of taking prominent part by beneficiary by itself was not sufficient to create any doubt about the testamentary capacity was because of misunderstanding of the correct import of the decision and the circumstances in which it was rendered. Property in Molkams case was land. Beneficiary was nephew as against married daughter. Anxiety in village to protect landed property of agricultural holdings from going out of family is well known. Even though it cannot be said to be hard and fast rule yet when disinheritance is amongst heirs of equal degree and no reason for exclusion is disclosed, then the standard of scrutiny is not the same and if the courts below failed to be alive to it as is clear from their orders then their orders cannot be said to be beyond review......" 10. The ratio of the above judgments is that besides proving the execution of the will by producing the scribe, the attesting witnesses and genuineness of testators signatures or thumb impression, the propounder of the will must rule out suspicious circumstances Only then the authenticity and genuineness of the will will be established. In the present case, to prove the genuineness of the will, the appellants-defendants are loot able to explain the suspicious circumstances shrouding the will that why the testator disinherited his daughter, who was his sole legal heir, and preferred to bequeath his property in favour of his nephews. The will becomes all the more unnatural when the testator did not mention the fact that he had a daughter when it is the admitted case of the appellants-defendauts also that she was residing in the same village and the testator used to visit her frequently and stay with her. Mr. The will becomes all the more unnatural when the testator did not mention the fact that he had a daughter when it is the admitted case of the appellants-defendauts also that she was residing in the same village and the testator used to visit her frequently and stay with her. Mr. Gupta submits that it is not correct that the testator had not mentioned about his daughter in view of the general statement in the will that natural heirs will have no right in his property. But I find no substance in this submission. 11. The suspicion about the genuineness of the will in question further aggravates by another circumstances that one of the beneficiaries of the will, appellant-defendant, Miikhi Ram, had taken prominent part in the I execution of the will by bringing the testator to the Tehsil and also by I calling the scribe and the witnesses. I, therefore, hold that the appellants-I defendants bad failed to establish the genuineness and authenticity of the will. 12. In the result, the appeal fails and is dismissed in limine. Appeal dismissed.