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2010 DIGILAW 1190 (HP)

Chuhru Ram v. Dhani Devi

2010-10-26

DEEPAK GUPTA

body2010
JUDGMENT : Deepak Gupta, J. 1. These two appeals are being disposed of by a common judgment since they arise out of the two cross appeals between the same parties and the issue involved is basically the same. 2. Both the appeals have been admitted on the following questions of law: “1.Whether the disinheriting of the widow from succession is a suspicious circumstance surrounding the execution of the Will? What is the effect of non-explanation for such disinheritance? 2.Whether taking of the testator to the Tehsil compound and calling of the witnesses for the execution of the Will by the propounder can be termed as a suspicious circumstance?” 3. The facts of the case are that Chuhru Ram filed a suit alleging that Dhanni widow of Nantu and her daughters were interfering in the land which had been bequeathed in his favour by Nantu. Dhani Devi and her daughters filed a suit challenging the correctness of the Will. The learned trial Court upheld the Will and accepted the claim of Chuhru Ram and rejected the plea of Dhanni Devi and her daughters. The learned Lower Appellate Court accepted the appeal of Dhanni and came to the conclusion that though Chuhru Ram had been able to prove the execution of the Will, he had not been able to explain the attending suspicious circumstances surrounding the Will. Therefore, the judgment and decree of the learned trial Court was set-aside. This decision is under challenge before this Court. 4. The undisputed facts are that Chuhru Ram was the brother of late Nantu. He was younger to Nantu by about 18 years. Dhanni Devi is the widow of Nantu. Raj Kumari and Kailashan Devi are the daughters of Nantu. Chuhru Ram claims to be sole heir of Nantu on the basis of Will Ext.PW-4/A executed by Nantu on 3rd March, 1990. Admittedly, Nantu died on 20th March, 1990 i.e. within 17 days of the execution of the Will. 5. The only question involved in this case is whether the propounder of the Will Chuhru Ram has been able to explain the alleged suspicious circumstances surrounding the Will. 6. The learned Court below has placed strong reliance on the judgment of a learned Single Judge of this Court in Milkhi Ram and others vs. Smt.Surmoo Devi, 1993 (1) Sim. 5. The only question involved in this case is whether the propounder of the Will Chuhru Ram has been able to explain the alleged suspicious circumstances surrounding the Will. 6. The learned Court below has placed strong reliance on the judgment of a learned Single Judge of this Court in Milkhi Ram and others vs. Smt.Surmoo Devi, 1993 (1) Sim. L.C. 118, wherein after discussing the law on the point this Court held as follows: “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 testator’s 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 not 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-defendants 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.” 7. Shri Rajneesh K. Lal, learned counsel for the appellant has placed reliance upon the judgment of the Apex court in Rabindra Nath Mukherjee and another vs. Panchanan Banerjee (Dead) by LRs. and others, (1995) 4 SCC 459, wherein the Apex court held that deprivation of natural heirs by testatrix should not raise any suspicion because the whole idea behind execution of Will is to interfere with the normal line of succession. However, in the said case the property had been Willed to the sons of a half blood brother whereas the objectors were the descendants of a full blood sister. 8. The Apex Court in Uma Devi Nambiar and others vs. T.C. Sidhan (Dead), (2004) 2 SCC 321 held as follows: “17. However, in the said case the property had been Willed to the sons of a half blood brother whereas the objectors were the descendants of a full blood sister. 8. The Apex Court in Uma Devi Nambiar and others vs. T.C. Sidhan (Dead), (2004) 2 SCC 321 held as follows: “17. A Will is executed to alter the ordinary mode of succession and by the very nature of things it is bound to result in either reducing or depriving the share of natural heir. If a person intends his property to pass to his natural heirs, there is no necessity at all of 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 circumstances especially in a case where the bequest has been made in favour of an offspring…..” 9. Reliance is also placed on a judgment of a Single Judge of the Delhi High Court in Ashok Kumar Dua vs. Ranbir Kumar Dua, 2009 (1) Civil Court Cases 246 (Delhi), in support of the contentions that merely because the propounder plays a dominant role in the execution of the Will this is not a suspicious circumstance by itself. It would be pertinent to mention that the subject matter of dispute before the Delhi High Court was that the propounder of the Will bequeathed his property amongst all the legal heirs. However, the succession was not equal. One of the sons had been given a major share of the property, a daughter was given slightly smaller share. However, in the Will itself it was specifically stated that the four children to whom he was giving very little share were well settled, financially sound and owned houses and bungalows. Therefore, in the Will before the Delhi High Court the testator had clearly set out the reasons why there was unequal distribution of the assets of the testator amongst his legal heirs. 10. Therefore, in the Will before the Delhi High Court the testator had clearly set out the reasons why there was unequal distribution of the assets of the testator amongst his legal heirs. 10. As far as the second point is concerned it would be pertinent to mention that admittedly the testator in the case before the Delhi High Court was an educated person and was worked as Cashier of the Arya Samaj Society and the learned Court held that he was an educated person and was of sound disposing mind and could not have been easily influenced only because the beneficiary of the Will had taken active part in the preparation of the Will. 11. Lastly, reliance has been placed upon the judgment of a learned Single Judge of this Court in Om Parkash and others vs. Bhup Singh and others, Latest HLJ 2009 (HP) 106, wherein also it was held that merely the presence of the beneficiary at the time of attestation of the Will does not show exercise of any undue influence upon the testator. 12. Each case has to be decided on its own facts. True it is that if there is only one suspicious circumstance the Court may not interfere in the wishes of the testator and may uphold the Will. When a person executes a Will it is obvious that his intention is to break the natural line of succession. If the testator wants that his property should devolve as per the laws of succession then there is no need to execute the Will. The need to execute a Will arises only when the testator does not want that his property should devolve as per the laws of succession applicable to his community and wishes that his property should go to a particular person(s). Therefore, merely because natural heirs are excluded by itself may not be a suspicious circumstance. Having said so, there must be some evidence or material on record to show what was the need to exclude the natural heirs. 13. In the Will in question Ext.PW-4/A the testator Nantu has made reference to his daughters and stated that they are married and they are happy in their respective homes and therefore he is executing the Will, bequeathing his entire property to his brother Chuhru Ram. Surprisingly, there is no mention of his wife Dhanni Devi in the entire Will. 13. In the Will in question Ext.PW-4/A the testator Nantu has made reference to his daughters and stated that they are married and they are happy in their respective homes and therefore he is executing the Will, bequeathing his entire property to his brother Chuhru Ram. Surprisingly, there is no mention of his wife Dhanni Devi in the entire Will. There is no explanation worth the name as to why Dhanni Devi was excluded. 14. It would also be pertinent to mention that Chuhru Ram himself has admitted that Dhanni Devi is an extremely a poor lady and if the entire property of Nantu comes to his share then Dhanni Devi will be left with nothing to survive upon. Why would a husband executing a Will leaving his wife totally destitute? It can only be if his relations with his wife had broken down so completely and he did not therefore want to give any of his property to his wife. This is not the position in the case in hand. Though Chuhru Ram states that the relations between Nantu and his wife Dhanni were not very good he was forced to admit in cross examination that there was no litigation between them and he also admits that Dhanni Devi was residing with her husband. 15. PW-7 Geegru Ram is a witness produced by Chuhru Ram. He in cross examination has clearly admitted that there was no litigation between the husband and wife and he had never heard of there being any physical or other fights between the two. He states that their relations were like any other married couple wherein some disputes always occur between husband and wife. In such a situation, not mentioning the name of the wife in the Will and her totally exclusion from the property becomes a very suspicious circumstance. 16. There are other suspicious circumstances surrounding the Will. The Will has been scribed by a lawyer Sh.C.D. Singh Guleria. Surprisingly one of the attesting witnesses to the Will is his father. The other attesting witness to the Will is the real brother-in-law (Jija) of the beneficiary Chuhru Ram who had admitted that there are number of houses in the village but according to him Nantu had told him not to involve any of these persons in the preparation of the Will. The other attesting witness to the Will is the real brother-in-law (Jija) of the beneficiary Chuhru Ram who had admitted that there are number of houses in the village but according to him Nantu had told him not to involve any of these persons in the preparation of the Will. The other suspicious circumstance is that the beneficiary of the Will Chuhru has taken an active role in the preparation of the Will. It was he who arranged the lawyer and the witnesses for preparation of the Will. 17. It has also come in evidence that the deceased was suffering from Cancer. Though detailed record of his treatment is not available the fact that he died within 17 days of the alleged execution of the Will also shows that he may have been in such a state of mind where he could have been easily influenced by his brother Chuhru. 18. Each of the above circumstances by themselves may not have been sufficient to hold that the Will has not been proved but when cumulative effect of all the circumstances especially the main circumstance where the wife has been left destitute is taken into consideration, I am of the considered view that the learned lower Appellate Court was totally justified in holding that Chuhru Ram the propounder and beneficiary of the Will had failed to explain the suspicious circumstances surrounding the Will. 19. In view of the above discussion, both the questions of law are answered against the appellant. Both the appeals are dismissed. The judgment and decree of the learned Court below is upheld. No order as to costs.