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Madhya Pradesh High Court · body

2000 DIGILAW 1184 (MP)

Vijay Kumar Bhagwat v. Shrikant

2000-11-02

R.B.DIXIT

body2000
JUDGMENT 1. This appeal involves a peculiar situation where all the attesting witnesses of a registered Will had expired before they could be examined in the trial Court. 2. The facts in brief shorn of details and necessary for the disposal of this appeal lie in a narrow compass. The appellant-plaintiff brought a suit (No. 165-A/ 94) in the Court of Second Civil Judge Class-I, Vidisha, for declaration and possession in respect of suit-house claiming its ownership on the basis of a registered Will dated 29.1.1957 (Ex.D/1) in favour of respondents alleged to have been executed by his father Laxman Rao, as fake and false. He has also claimed mesne profit. It is alleged that respondents had occupied a portion of the suit-house as a tenant of his father and, therefore, also claims mesne profit at the rate of 150/- per month. 3. The respondents-defendants had contested the suit on the ground that the house belonged to father of the appellant. However, since appellant never resided with his father and was carrying on business independently elsewhere while the respondents were living with the father of the appellant and had served him throughout his life and, therefore,' he had bequeathed the suit-property in their favour by a registered Will dated 31.3.1983 and since then they are occupying the house in their capacity as a full owner. 4. The learned trial Court, vide judgment dated 17.9.1996, found the Will executed (Ex.P/7) in favour of the plaintiff well proved. However, disbelieved the Will (Ex.D/1) in favour of the respondents and decreed the suit in favour of the plaintiff-appellant against which respondents filed first appeal before the Second Additional Judge to District Judge, Vidisha, and the learned first appellate Court allowed the appeal holding that the Will in favour of appellant was not at all proved. It is as against the judgment and decree of the first appellate Court, the second appeal has been admitted on the following substantial questions of law: (1) "Whether the Will (Ex.P/7) in favour of the plaintiff-appellant is not required to be proved formally when attesting witnesses are dead? (2) Whether even after Will (Ex.P/7) is not proved and where the alleged Will (Ex.D/1) in favour of the defendants is also not proved, the defendants-respondents are entitled to claim permissive possession as against the real owner of the property? (2) Whether even after Will (Ex.P/7) is not proved and where the alleged Will (Ex.D/1) in favour of the defendants is also not proved, the defendants-respondents are entitled to claim permissive possession as against the real owner of the property? (3) Whether plaintiff-appellant became sole owner of the disputed property after the death of his father Laxman Rao ?" 5. It has been contended by the learned counsel of the appellant that since both the Courts below had come to a definite finding that the suit-house is a self-acquired property of deceased Krishna Bai, grandmother of the appellant, she was within her right to dispose of her property by way of Will in favour of the appellant-plaintiff excluding her son Laxman Rao. It is further to be seen that where all the attesting witnesses by a registered Will are .dead and particularly when the defendant-respondents had not raised any plea causing suspicion on the execution of the Will, the learned first appellate Court erred in law, holding that the Will in favour of appellant was not duly proved. 6. In a larger Bench decision of the Apex Court in case of Rani Purnima Debi and another v. Kumar Khagendra Narayan reported in AIR 1962 SC 507, it was observed that if a Will has been registered, that is a circumstance which may, having regard to the circumstances, prove its genuineness. But the mere fact that a Will is registered will not by itself be sufficient to dispel all suspicion regarding it where suspicion exists, without submitting the evidence of registration to a close examination. If the evidence as to registration on a close examination reveals that the registration was made in such a manner that it was brought 'home to the testator that the document of which he was admitting execution was a Will disposing of his property and thereafter he admitted its execution and signed it in token thereof, the registration will dispel the doubt as to the genuineness of the Will. 7. In case of Shashi Kumar Banerjee and others v. Subodh Kumar Banerjee reported in AIR 1964 SC 529 , it was pointed out that 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 S. 63, Succession Act. In case of Shashi Kumar Banerjee and others v. Subodh Kumar Banerjee reported in AIR 1964 SC 529 , it was pointed out that 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 S. 63, 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 caveat or alleged 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. 8. 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. 8. In another decision of the Apex Court rendered in case of Beni Chand v. Kamla Kunwar reported in AIR 1977 SC 63 , where the testatrix, an old woman aged eighty years, made a Will five days prior to her death bequeathing her extensive properties in favour of her only son's wife and children to the exclusion of her son and another wife and their progeny, during probate proceeding the son alleged that the Will was executed when his mother was unconscious and that an advocate and R, a pre-deceased daughter's son of the testatrix, colluded in the execution of the Will, it was held that the sons behaviour was far too unfilial and remorseless for him to find a place in the affections of his mother. He had bruised her so badly that she could not possibly reward him with a precious inheritance. But she gave her estate not to strangers but to his children born of the first two wives and to the second wife. She also gave him a personal right of residence in one of the houses. 9. It was held in case of Kalyan Singh v. Chhoti reported in AIR 1990 SC 396 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 genuineness and authenticity of the Will. It must be stated that the factum of execution and validity of the Will cannot 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 circumstances brought out in the evidence or which appear from the nature and contents of the documents itself. 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 circumstances brought out in the evidence or which appear from the nature and contents of the documents 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. 10. In case of Satya Pal v. Panchubala Dasi reported in AIR 1985 SC 500 , where a Will was executed in favour of person brought up as a child of testator's family and all properties of testator were bequeathed to legatee under Will leaving no provision for testator's wife and widowed daughter-in-law. However, the Will was executed and presented for registration by testator himself. The testator died four years after execution and registration of Will but taking no steps to cancel or revoke it. It is in' the background of these outstanding circumstances, 'it was held that there was no necessity whatsoever for the testator to make any such false recital. The Will itself was not executed in a clandestine or surreptitious manner. These circumstances, therefore, should dispel any suspicion that otherwise itself attached to the Will. 11. In a Division Bench decision of Patna High Court in case of Haradhan Mahatha v. Dukhu Mahatha reported in AIR 1993 Patna, 129, where the Will was more than 30 years old and executant and attesting witnesses were not alive and no suspicion as to unnaturalness of or tampering with said document was found. It was observed that the principle underlying section 90 of the Evidence Act is that if a document, thirty years old or more, is produced from proper custody and is, on its face, free from suspicion, the Court may presume that it has been duly executed and attested. It is extremely difficult and sometimes impossible to prove handwriting, signature and execution and attestation of ancient documents after lapse of many years. Further reason for incorporating this provision is that if the two conditions enumerated in section 90 are fulfilled, then in relation to documents the execution and attestation of which are not denied, the necessity of formal proof is waived and thereby Court's time is saved. Further reason for incorporating this provision is that if the two conditions enumerated in section 90 are fulfilled, then in relation to documents the execution and attestation of which are not denied, the necessity of formal proof is waived and thereby Court's time is saved. If the executant or attesting witnesses are not alive or available in relation to a document and the genuineness of it is disputed and mode of proof as required under section 69 of the Act is also not possible, the Court should raise a presumption under section 90 of the Act in relation to due execution and attestation of document, if it comes to the conclusion that the document is such that it is likely to have been executed, having regard to the common course of human conduct and there are no circumstances exciting suspicion of the Court such as artificiality and unnaturalness or tampering with document. 12. In a decision of Orissa High Court in case of Shankarsan Parida v. Laxmidhar Nayak reported in AIR 1991 Orissa 23, where learned trial Judge suspected due execution of the Will on account of non-examination of the Sub-Registrar to prove the valid registration of the Will, there is no case that the document was not properly registered. Accordingly, non-examination of the Sub-Registrar was held not a circumstance to doubt the genuineness of the Will. 13. In a Division Bench decision of Kerala High Court in case of KM Varghese and others v. K.M. Oommen and others reported in AIR 1994 Kerala 85, the position of the Will is found to be among those documents which require no satisfactory registration. It was held that in such case, it is enough for compliance of the rules of execution and attestation if the executant actually admits the execution before the Sub-Registrar and the identifying witnesses. It is possible to note that Will is not satisfactorily registrable, it is enough if the testator admits the execution before the Sub-Registrar and the idt:ntifying witnesses. 14. It is possible to note that Will is not satisfactorily registrable, it is enough if the testator admits the execution before the Sub-Registrar and the idt:ntifying witnesses. 14. In case of P.P.K. Gopalan Nambiar v. PPK Balakrishnan Nambiar reported in AIR 1995 SC 1852 , where the Subordinate Judge has given various reasons to accept the validity of the Will and one of the reasons is that it is a registered Will and the endorsement by the Registrar would show that the testator was in a sound disposing state of mind and that it was executed out of her free will and that, therefore, the discrepancy in the evidence of DW2, an attestator, does not vitiate the validity of the Will. On appeal, the learned Single Judge without going into the evidence, has stated in one sentence that he agrees with the reasoning of the trial Court and does not agree with the reasoning of the appellate. It was observed that under' the circumstances, the suspicion excited the mind of the' District Munsif is without any basis and he picked them from his hat without fact foundation. The Subordinate Judge had rightly considered all the circumstances and upheld the Will. The High Court, without examining the evidence, by merely extracting legal position set out by various decisions of this Court, has upset the finding of the fact recorded by the Subordinate Judge in one sentence. It is trite that it is the duty of the propounder of the Will to prove the Will and to remove all the suspected features. But there must be real, germane and valid suspicious features and not fantasy of the doubting mind. 15. In case of Labh Singh and others v. Piara Singh reported in AIR 1984 P & H 270, where the Sub-Registrar testified that he had read over the Will to the testator who admitted having executed the same, the endorsement was then thumb-marked by the testator and signed by the Sub-Registrar, it was held that it would be reasonable to gather from these circumstances that the Sub-Registrar had not merely registered the Will formally but had appended his attestation for the purpose of attesting the fact that the testator had personally acknowledged his thumb impression on the document. 16. 16. In a Division Bench decision of the Calcutta High Court in case of Paresh Charan Das Gupta v. Naresh Charan Das Gupta reported in (1952) 2 Calcutta ILR 56, it was affirmed that onus probandi lies on the person who propounds the Will and the onus is in general discharged by proof of capacity and the fact of execution. Strict affirmative proof of due attestation is not always absolutely necessary, the true test is whether the testator might have seen and not whether he did see the witnesses sign their names. 17. In view of the aforesaid proposition of law regarding attestation of the Will, it will be appropriate to appreciate the evidence produced by both the parties in respect of execution of respective Wills. Vijay Kumar (PW 1) was a minor at the time of the execution of Will (Ex.P/1) in his favour. Krishna Gopal Vyas (PW 2) was informed by Krishna Bai that now her days are numbered and, therefore, she will bequeath the disputed house in favour of her grandson and later on he learnt that Krishna Bai died. After the death of Krishna Bai, Laxman Rao started living with him as tenant of the house. The mother of defendant was also residing with them. The plaintiff-appellant usually remained out. 18. PW 4 Martand Rao Shevde had stated that in the year 1957, Krishna Bai had executed a Will in favour of plaintiff-appellant. At that time, he was working in the Court and therefore, had liberty to have seen Krishna Bai executing the Will and Dattu Bhaiya Mule, Ramchandra Rao signing as witnesses. Petition-writer Daulat Singh had prepared it. Both the attesting witnesses are dead. The fact of death of attesting witnesses is not in dispute. From the evidence of this witness, it is proved that Krishna Bai attested the Will in presence of two witnesses, who had also signed before him. There is nothing in his cross-examination to disbelieve the evidence of this witness. The learned Appellate Court had not assigned any proper reasons for disbelieving him. 19. Defendant Suresh (BW1) also claims the disputed house on the basis of a Will dated 31.3.1982 (Ex.D/1) executed by Laxman Rao, father of the appellant, in his favour. According to him, appellant never lived with his father after the death of his mother and whenever he came to Vidisha, he always resided with his Mausa Martand Rao. 19. Defendant Suresh (BW1) also claims the disputed house on the basis of a Will dated 31.3.1982 (Ex.D/1) executed by Laxman Rao, father of the appellant, in his favour. According to him, appellant never lived with his father after the death of his mother and whenever he came to Vidisha, he always resided with his Mausa Martand Rao. He has no knowledge as to how Laxman Rao acquired the disputed house. Laxman Rao resided with their family before his death for about 45-50 years. During this period, he had no chance to see the wife of Laxman Rao. He could not say as to what necessitated Laxman Rao to bequeath his property to them. He has further admitted that Laxman Rao had suffered a paralytic attack before execution of Will in their favour and that is why he could not sign the Will, although he was literate. The Registrar was called at the residence for the purpose of execution of Will. Witness Mahesh Prasad (DW 3), who was called as an attesting witness of the Will, was never subsequently called for cross-examination by other side and, therefore, his statement cannot be read in evidence. 20. Smt. Kamla Tiwari (DW 2) lives in neighbourhood of the defendants. She admitted that after the death of appellant's mother, she had never seen appellant residing in the house. It is pertinent to note that appellant Vijay Kumar was repeatedly asked in para 14 of his cross-examination, a question on behalf of the defendants that the mother of the defendants lived for about 30 years with his father Laxman Rao and had looked after him. In the circumstances, perhaps it seem~ that there was some difference between appellant and his father on account of his keeping the mother of the defendants with him after the death of his wife and that is why the appellant always remained out and even during casual visits to his father did not choose to reside with him, but resided with near relations. Further it can be gathered from this evidence that the grandmother did not like that her acquired property could pass to her son, rather out of love and affection, bequeathed the same to her grandson. Thus, suspicion regarding execution is more towards the Will propounded by the defendants rather than that of the appellant. Further it can be gathered from this evidence that the grandmother did not like that her acquired property could pass to her son, rather out of love and affection, bequeathed the same to her grandson. Thus, suspicion regarding execution is more towards the Will propounded by the defendants rather than that of the appellant. The endorsement of the Sub-Registrar on the Will produced on behalf of the appellant is also indicative about due execution and attestation of it wherein it has been mentioned that Krishna Bai had admitted execution of the Will and signed in presence of two witnesses T. Mulle and Ram Chandra Rao. Since the house in dispute has been amply proved to be self-acquired property of Krishna Bai and the execution and attestation of Will has been properly proved in favour of the appellant, the father of the appellant subsequently, even after being recorded as owner of the property, was left with no testamentary capacity to execute any Will in respect of the disputed house in favour of the defendants. 21. After considering all circumstances and the testamentary capacity of the grandmother of the appellant, it can be gathered that the registration of the Will in favour of the appellant assumes importance. In a case where due execution of a Will is disputed, the conscience of the Court must be satisfied and the view taken by the trial Court on appreciation of the evidence as to its due execution has to be respected. When the attesting witnesses are dead, the Will could be proved by bringing on record evidence of a witness who had seen the attestator and the witnesses signing the Will. That formality has duly been proved by the evidence of Martand Rao in this case. In the circumstances, from the affirmative proof of due attestation is not absolutely necessary and the Court ought to make a reasonable inference in the facts and circumstances of the case. 21. In aforesaid view of the matter, the formulated substantial questions of law are answered as follows: (1). Where attesting witnesses are dead, the registered Will is not required to be proved formally and it would be sufficient if it is proved that at the time of execution of the Will, the testator was in a position to understand its execution. In aforesaid view of the matter, the formulated substantial questions of law are answered as follows: (1). Where attesting witnesses are dead, the registered Will is not required to be proved formally and it would be sufficient if it is proved that at the time of execution of the Will, the testator was in a position to understand its execution. (2) Since in this case, the Will in favour of appellant is proved, the father of appellant had lost any testamentary capacity to execute any Will in favour of the defendants. They are, therefore, not entitled even to claim permissive possession of the house. (3) On the strength of Will and also in absence of formal proof of Will in favour of the defendants, the appellant is entitled to inherit disputed house from his father and became its sole owner after the death of his father. 22. Consequently, the appeal succeeds and is allowed. The impugned judgment of 1st Appellate Court is set aside and that of the trial Court is confirmed.