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1994 DIGILAW 845 (RAJ)

Devi Bai v. Godawari

1994-10-28

M.P.SINGH

body1994
Honble SINGH, J. — The opposite party No. 1 Smt. Godawari wife of Girdhari Lal filed an application under Section 276 of the Indian Succession Act, 1925 (for short the Act) for grant of probate. It was stated that her mother Smt. Chhati Bai executed a Will only in her favour though she had three more sisters namely Smt. Devi wife of Mool Chand; Smt. Bhagwani wife of Righumal and Smt. Meera alias Smt. Gopi wife of Ram Chand Tekchandani. This Will relates to National Savings Certificates, Unit Trust of India Certificates and the Fixed deposits in the banks, made by Smt. Chhati Bai. (2). The Will was drafted in English but the name of the scribe was not mentioned. The two attesting witnesses were Purshottam Das son of Ghanshyam Das Sunder Israni. (3). Smt. Godawaris other sister appellants No. 1 and 3 and the opposite party No. 2 came forward with the case that Smt. Chhati Bai had executed a registered Will on 5.07.1991 bequeahing her entire assets among all the four daughters in equal shares. The will relied upon by Smt. Godawari was forged one. The learned Additional Distt. Judge allowed the application and the probate was granted in favour of the opposite party No. 1 (Smt. Godawari). This appeal is directed against that order. (4). Heard Mr. G.L.Pareek, on behalf of the appellants and Mr. P.D. Singh, on behalf of the opposite party No.l. (5). Admittedly, Chhati Bai had four daughters; (1) Smt. Devi Bai, (2) Gopu, (3) Smt. Bhagwani and (4) Smt. Godawari. The Will relied upon by Smt. Godawari did not mention any fact as to why the entire property was being given to her alone, dis-entitling the other daughters from getting their share in the property. (6). Admittedly, Chhati Bai had four daughters; (1) Smt. Devi Bai, (2) Gopu, (3) Smt. Bhagwani and (4) Smt. Godawari. The Will relied upon by Smt. Godawari did not mention any fact as to why the entire property was being given to her alone, dis-entitling the other daughters from getting their share in the property. (6). Moreover, the Will has not been proved in accordance with the provisions of law of Sec. 63 of the Act which reads as follows: — "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 of the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary." (7). In the instant case there is no evidence on record to show that Purshottam Das and Sunder Israni the two attesting witnesses have seen the testator signing the Will and they themselves signed the same in his presence. It was not sufficient for them to have stated only this much that they have seen the testator signing the Will. In addition to that it was the mandatory requirement of the law to make statement that they themselves signed the Will as attestinhg witnesses in the presence of the testator. (8). Supreme Court in the case reported in Girija Dutt V. Gangotri Dutt (1), while considering a similar question held that in order to prove the due attestation of the Will proponder will have to prove that the two attesting withnesses saw the testator signing the Will and they themselves signed the same in the presence of the testator". (9). Applying the ratio in the instant case, while examining the statement made by the two attesting witnesses Purshottam Das and Sunder Israni it was seen that nowhere it has been said that they themselves have signed the Will in the presence of the testator. So the necessary requirement of Section 63 of the Act has not been complied with. (10). Applying the ratio in the instant case, while examining the statement made by the two attesting witnesses Purshottam Das and Sunder Israni it was seen that nowhere it has been said that they themselves have signed the Will in the presence of the testator. So the necessary requirement of Section 63 of the Act has not been complied with. (10). Shri Pareek appearing On behalf of the appellants contended that the Will was extremely suspicious one for the reason it was written in English. The name of the scribe has not been mentioned. He has not been examined even. Admittedly, Smt. Chhati Bai was an illiterate woman. There is no evidence on record to show that the contents of the Will were actually translated, read-over and explained to Smt. Chhati Bai in Hindi and she understood the contents thereof. There was no reason to explain as to why the Will was only in favour of Smt. Godawari excluding the other three daughters. I find substance in this contention. (11). In the case reported in Pushpavati and others V. Chandraja Kadamba and others (2), the Court took the view that it is for the propounder of the Will to prove it and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and the signature of the testator as required by law is sufficient, to discharge the onus which is placed upon the propounder to the Will. Where there are suspicious circumstances, the propuonder of the Will has to explain then away to the satisfaction of the Court. The suspicious circumstances may be as to the genuineness of the signature of the testator, the condition of the 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. If the propounder succeeds in removing the suspicious circumstances the Court would have to give efffect to the Will even if the Will might be unnatural" (12). If the propounder succeeds in removing the suspicious circumstances the Court would have to give efffect to the Will even if the Will might be unnatural" (12). The other case referred to is a decision reported in Mponga Devi and others V. Radha Vallabh (3), wherein it was held that it was the boundenduty of the Court where the executant is an illiterate lady to examine the matter more carefully and not to take it casually by disposing of the matter on merely making comparison of the signature himself. The person relying upon the Will has to remove the doubt in order to get an order of the court. (13). In another case reported in Ram Piari V. Bhagwant and others (4) the Court took the view that suspicious circumstances regarding the genuiness of the Will should always be ruled out by clear and cogent evidence. Documents written in expert professional language cannot be said to be free from suspecion - unless the court comes to definite conclusion that the testator knew that he/she was doing. (14). In another case reported in Guro (Smt.) V. Atma Singh and others (5), the Court took the view that strong burden lay on the propounder to remove the suspicious circumstances. No useful purpose will be served by unnecessarily citing a large number of other cases on this point. Suffice it to say that in the instant case the Will has not been proved in accordance with Section 63 of the Act and inasmuch as the attesting witnesses have not said that the testator has signed before them and they have signed in the presence of the testator. The Scribe of the Will has not been produced. There is no evidence that the contents of the Will were translated in Hindi and explained to Smt. Chhati Bai who was an illiterate lady. There is no evidence to explain as to why the other three daughters have been deprived of the right to inherit the property and the entire property was given to Smt. Godawari only. The Will becomes extremely suspicious. Smt. Godawari respondent No. 1 has miserably failed to prove the due attestation and execution of the Will. The Court below has completely mis-directed itself to the provisions of Sec. 63 of the Act while dealing with the matter for grant of probate under Section 276 of the Act, (15). The Will becomes extremely suspicious. Smt. Godawari respondent No. 1 has miserably failed to prove the due attestation and execution of the Will. The Court below has completely mis-directed itself to the provisions of Sec. 63 of the Act while dealing with the matter for grant of probate under Section 276 of the Act, (15). Accordingly, the appeal succeeds and is allowed.. The order dated 27.4.1994 is hereby set aside.