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2012 DIGILAW 635 (HP)

Sat Pal v. A. Vyas Dev

2012-09-26

RAJIV SHARMA

body2012
JUDGMENT Justice Rajiv Sharma, Judge. This Regular Second Appeal is directed against the judgment and decree dated 31.12.2001 rendered by the learned District Judge, Chamba in Civil Appeal No.56 of 2000. 2. Material facts necessary for the adjudication of this Regular Second Appeal are that appellants-plaintiffs (hereinafter referred to as the ‘plaintiffs’ for convenience sake) filed a suit against the original defendant Smt. Garibo Devi (hereinafter referred to as ‘defendant’ for convenience sake). According to the plaintiffs, land measuring 4 kanals 1 marla was owned and possessed by Mela Ram son of Khushi Ram, father of the plaintiffs. Sh. Mela Ram died on 17.12.1989 living behind the plaintiffs as legal heirs, being sons and daughters. They succeeded to the estate of Mela Ram in equal shares. Deceased Mela Ram was being looked after by the plaintiffs. He had engaged defendant Smt. Garibo Devi as maid servant. She used to look after the house of Mela Ram as well as the suit land as servant whenever Sh. Mela Ram used to go from Banikhet with his sons to Hoshiarpur. According to them, in the year 1988, Mela Ram fell ill and plaintiffs took him to Hoshiarpur. Sh. Mela Ram died after prolonged illness. Defendant in the absence of plaintiffs, got entered illegal and wrong mutation attested regarding the suit land in her favour on the basis of false and forged will. According to the plaintiffs, their father was aged person and neither he contracted second marriage nor he executed any will in favour of Garibo Devi. According to them, the “will” was not genuine document. It is in these circumstances, the suit was filed by the plaintiffs. 3. Suit was contested by the defendant. According to defendant Garibo Devi, Sh. Mela Ram executed a “will” in her favour. According to her, Mela Ram contracted marriage with her and entered into agreement that he would treat Garibo Devi as wife and would provide maintenance to her. She inherited the estate of Mela Ram after his death and now she is sole owner of the suit property. Mela Ram contracted second marriage with defendant and executed a valid “will” in her favour. 4. Defendant No.2 Ramesh Chand has also contested the suit. According to him, he was bona fide purchaser and he has purchased the land vide sale deeds No. 67 and 116 out of Khasra No. 826/775. Mela Ram contracted second marriage with defendant and executed a valid “will” in her favour. 4. Defendant No.2 Ramesh Chand has also contested the suit. According to him, he was bona fide purchaser and he has purchased the land vide sale deeds No. 67 and 116 out of Khasra No. 826/775. Replication to the written statement filed by defendant No.2 was filed by the plaintiffs. 5. Learned Sub Judge 1st Class, Dalhousie framed issues on 26.10.1995. He decreed the suit on 20.6.2000. Defendant Garibo Devi preferred an appeal before the learned District Judge, Chamba where defendant No.2 was added as proforma defendant. Learned District Judge Chamba allowed the appeal. Hence, the present Regular Second Appeal. It was admitted on the following substantial questions of law: 1. “Whether on proper construction of ‘will’ Ex.DW-5/A stated to have been executed by Mela Ram, the requirement of sections 59, 60 and 63 of the Indian Succession Act had been specified and the same could be treated to have been duly executed? 2. Whether the findings of the learned District Judge accepting the genuineness of the will of Mela Ram is based on misreading and misconstruction of Ex.DW-5/A and statements of DW-1 Garibo Devi, DW-6 P.C. Sharma, DW-7 Bishan Dass and DW-8 Vinod Kumar, particularly when the original will was not before the said witnesses, when they deposed about the same? 3. Whether the finding of the District Judge that defendant No.2 was bona fide purchaser for consideration is sustainable and based on no evidence? 4. Whether the District Judge has misdirected himself in drawing wrong inference from facts proved on record and misconstrued the pleadings of parties, oral and documentary evidence in holding that Mela Ram had executed valid will in favour of Garibo Devi in respect of the suit property?” 6. Mr. K.D. Sood, learned Senior Advocate has supported the judgment and decree dated 20.6.2000 passed by the Sub Judge 1st Class. According to him, defendant Garibo Devi has failed to prove the execution of “will”, Ex.DW-5/A. He then contended that Garibo Devi has never contracted marriage with Sh. Mela Ram. He further contended that in “will” no reasons have been assigned why the legal heirs have been excluded from Banikhet’s property. 7. Mr. Anuj Gupta has supported the judgment and decree passed by the learned District Judge. According to him, Mela Ram has contracted marriage with defendant Garibo Devi. Mela Ram. He further contended that in “will” no reasons have been assigned why the legal heirs have been excluded from Banikhet’s property. 7. Mr. Anuj Gupta has supported the judgment and decree passed by the learned District Judge. According to him, Mela Ram has contracted marriage with defendant Garibo Devi. She was looking after Sh. Mela Ram. Mela Ram has only disinherited the plaintiffs from the land at Banikhet and as far as the lands of Indora and Hoshirpur are concerned, plaintiffs have not been disinherited by Mela Ram. According to him, the “will” in question has been duly proved by the defendant by producing the scribe as well as marginal witnesses. 8. I have heard the learned counsel for the parties and have perused the records and pleadings carefully. 9. Since all the substantial questions of law are interconnected and interlinked they are taken up together to avoid repetition of discussions of evidence. 10. It would be apt at this stage to note that the “will” initially produced before the court was photocopy. Defendant Garibo Devi has moved an application for leading secondary evidence. The application was allowed by the learned trial court on 15.11.1999 and defendant Garibo was permitted to lead secondary evidence of the will dated 26.6.1984 registered on 10.4.1987. The trial court has taken into consideration the statement of Garibo Devi (AW-1) and statement of one of the plaintiffs (RW-1) while allowing the application. 11. Plaintiff Kewal Krishan has appeared as PW-1. According to him, Sh. Mela Ram was his father. He had three sons and two daughters. His mother died in the year 1964-65. His father has never contracted second marriage. His father had property at Banikhet, Hoshiarpur and village Indora. He was resin contractor. He has constructed house at Banikhet and also raised orchard. His father used to stay at Banikhet and Hoshiarpur. He knew defendant Garibo Devi. According to him, she was maid servant of his father. Garibo Devi was wife of Sh. Dharam Singh. Dharam Singh was alive. His father has never contracted marriage with Garibo Devi. His father died at Hoshiarpur. Mutation of the Hoshiarpur land was attested in favour of legal representative. After the death of his father they came to Banikhet and requested Garibo Devi to vacate the house. She prayed that she may be granted some time. Dharam Singh. Dharam Singh was alive. His father has never contracted marriage with Garibo Devi. His father died at Hoshiarpur. Mutation of the Hoshiarpur land was attested in favour of legal representative. After the death of his father they came to Banikhet and requested Garibo Devi to vacate the house. She prayed that she may be granted some time. However, defendant Garibo Devi on the basis of forged “will” got the mutation of the house of Banikhet attested in her favour. When the mutation was attested none of the plaintiffs were informed. Garibo Devi has sold the land. In his cross-examination, he has denied the suggestion that Garibo Devi was living as wife with Mela Ram since 1967. He has denied the suggestion that some proceedings to this effect have taken place in Chamba court. He has denied the suggestion about the agreement dated 25.6.1980. He has also denied the suggestion that in the year 1969, Mela Ram contracted marriage with Garibo Devi. He has seen Garibo Devi living as maid servant. She used to cook food. Garibo Devi has never visited Hoshiarpur. He has denied the suggestion that Mela Ram has executed the will dated 27.6.1984 at Dharamshala. He did not know that the same was registered in the office of Sub Registrar, Dalhousie on 10.4.1987. He did not know whether any land has been mutated in their favour at Banikhet. He has also denied the suggestion that Garibo Devi has sought divorce from Dharam Chand. He has also denied the suggestion that Dharam Chand has died. He has also denied that defendant used to look after Mela Ram. He has admitted in his cross-examination that no appeal was preferred against the mutation since according to him they have not received any summons. In cross-examination by the Advocate of defendant No.2, he deposed that his father died in the year 1989 and mother expired in the year 1964-65. His father used to live at Hoshiarpur. He died at Hoshiarpur. He has admitted that land measuring 5 and 2-16 bighas has been sold by defendant Garibo Devi vide sale deed No. 67 and the mutation was attested in favour of defendant No.2 Ramesh Chand in the year 1989. 12. Gian Chand and Het Ram have appeared as PW-2 and PW-3, respectively, in rebuttal. PW-2 Gian Chand has deposed that he was living at Dharamshala since 1980. 12. Gian Chand and Het Ram have appeared as PW-2 and PW-3, respectively, in rebuttal. PW-2 Gian Chand has deposed that he was living at Dharamshala since 1980. He retired in the year 1974. He knew Mela Ram. He did not know Advocate Vinod Kumar. He has never introduced Sh. Vinod Kumar, Advocate with Mela Ram. 13. PW-3 Het Ram has deposed that he knew Mela Ram, who was resin contractor. He used to visit house of Mela Ram. Garibo Devi was his maid servant and used to look after Mela Ram. He did not know that Garibo Devi has solemnized marriage with Mela Ram under the local custom in the year 1967. 14. Defendant Garibo Devi has appeared as DW-1. According to her, name of her husband was Mela Ram. According to her, marriage was solemnized in the year 1980 and thereafter stated that she was married 80 years ago. Marriage was solemnized at Banikhet. Marriage was registered at Chamba. She and Mela Ram had gone there. She put her thumb impression on the papers. She was earlier married in village Bathari. She and her husband left each other and thereafter she and her husband contracted separate marriages. She contracted marriage with Mela Ram. They started living at Banikhet after marriage. Mela Ram executed “will” in her favour of the house and land. The “will” was executed at Chamba and also at Dharamshala. She and Mela Ram had gone there. She did not know as to who prepared the “will”. However, she came to know that it was prepared by Document Writer and Advocate. She was handed over one copy and was told to keep in safe custody. Mela Ram died 10-12 years ago. She had handed over the copy of the “will” to Patwari. Patwari has attested the mutation. Mela Ram had lands in Hoshiarpur and Shimla Hills, which were given to his sons. She also used to go to Hoshiarpur. She has proved the copy of jamabandi for the year 1991-92 Ex.D-1, copy of agreement Ex.D-3, copy of agreement mark ‘DX’ copy of “will” mark DY, receipt Ex. DZA, copy of Pariwar register Ex.D-4 and copy of ration card Ex. DZB. In her cross-examination, she has deposed that the name of her husband was Dharam Chand. She did not know whether he was alive or not. She has admitted that Mela Ram was Hindu. DZA, copy of Pariwar register Ex.D-4 and copy of ration card Ex. DZB. In her cross-examination, she has deposed that the name of her husband was Dharam Chand. She did not know whether he was alive or not. She has admitted that Mela Ram was Hindu. She has divorced Dharam Chand in Court at Chamba. She did not know when the divorce took place. She did not know when she was married to Mela Ram but stated that it was in the rainy season. She has admitted that Mela Ram was already married. However, his first wife had died. She did not know about the death of his first wife. She did not know who has prepared the documents of marriage. It must be known to Mela Ram. She was 90 years old and thus she did not remember. The documents were prepared after one month of marriage. She has denied the suggestion that she was kept as maid servant by Mela Ram. She has denied the suggestion that she did not visit at the time of death of Mela Ram. She has denied the suggestion that she has not divorced Dharam Chand. She has also denied that no “will” was executed by Mela Ram. She has deposed that at the time of attestation of mutation, summons were issued to the plaintiffs. 15. DW-2 Gian Singh has deposed that he knew Garibo Devi and Mela Ram. Garibo Devi was wife of Mela Ram. Mela Ram and Garibo Devi used to live as husband and wife. In his cross-examination, he has deposed that the marriage was solemnized in the year 1967 when he was stationed at Matui. He did not attend the marriage. His father has attended the marriage. His father has died. He did not know whether Garibo Devi was married to Dharam Chand. He did not know that Garibo Devi was working as domestic help. 16. DW-3 Chain Singh has produced the Pariwar register. According to him, at page No.18 at Sr. No. 12, family of Mela Ram is mentioned. According to which, names of Mela Ram and Garibo Devi were registered. Mela Ram has died on 17.12.1989. It was registered in Ex.D-4. In his cross-examination, he has admitted that the entries were not in his hand. He could not tell when these entries were made. No. 12, family of Mela Ram is mentioned. According to which, names of Mela Ram and Garibo Devi were registered. Mela Ram has died on 17.12.1989. It was registered in Ex.D-4. In his cross-examination, he has admitted that the entries were not in his hand. He could not tell when these entries were made. He has also admitted that at page 18, house No. 11 is also entered. At page 19, again there is entry of house No.12 though the owner is Sh. Amar Singh. He has admitted in his cross-examination that the entry is made at one place of the entire family. He has admitted that when the family separates, house number also changes and the entry to this effect is also made separately. 17. DW-4 Bhuvneshwar Kumar has produced the record of book No.3, volume No.2 of 1973 to 1990. 18. DW-5 Chet Singh has deposed that he has registered “will” on 10.4.1987. This was produced by Sh. Mela Ram. The “will” was produced at 11.00 A.M. 19. DW-2/1 Ramesh Chand has deposed that he knew Garibo Devi since 1983. At the time of purchasing the land, he has seen the revenue record, according to which, Garibo Devi was shown as owner. The sale deed was executed in the office of Sub-Registrar, Dalhousie. The Sub-Registrar verified the documents and thereafter registered the same. He has shown his ignorance that at the time when he purchased the land, stay order was in existence. 20. DW-6 Sh. O.P. Sharma has deposed that he dictated the “will” at the instance of Mela Ram. He has read over the contents of the same after getting it typed. Sh. Mela Ram after admitting the contents of the “will” to be correct signed the same in his presence and in the presence of Vinod Kumar, Advocate and Prakash Chand. Thereafter, Sh. Vinod Kumar and Prakash Chand also signed the same and he signed it as scribe. He has identified signatures of the witnesses. He has admitted that he has not given the details of the family. According to him, at the time of execution of “will”, only Typist and Mela Ram were present. Sh. Vinod Kumar, Advocate was present at the time of scribing the “will”. 21. DW-7 Sh. Vyas Dev has deposed that he knew Mela Ram. Sh. He has admitted that he has not given the details of the family. According to him, at the time of execution of “will”, only Typist and Mela Ram were present. Sh. Vinod Kumar, Advocate was present at the time of scribing the “will”. 21. DW-7 Sh. Vyas Dev has deposed that he knew Mela Ram. Sh. Mela Ram asked him on 10.4.1987 to come to Sub-Tehsil Office for registration of “will” and he appeared as witness. The “will” was produced before the Tehsildar Chet Singh. It was produced at 11.00 A.M. The “will” was read over by Tehsildar to Mela Ram and thereafter he signed the same. He also signed it. He also identified his signatures on the “will” in red circle. He also identified the signatures of Mela Ram. In his cross-examination, he has admitted that Garibo Devi was his aunt. Mela Ram was resin contractor. He was summoned at Banikhet by Mela Ram. The “will” was typed. Sh. Mela Ram has signed the “will” at two places in his presence and also at the back side of the papers. In his cross-examination, he has admitted that on the front side, the “will” was not signed in his presence. He has admitted that on Ex.DW-5/A his signatures did not exist. He has also admitted that Mela Ram has not signed Ex. DW-5/A. 22. DW-8 Vinod Kumar Vashisth has deposed that Mela Ram has prepared the “will” dated 26.6.1984 in his senses. He has signed the same and thereafter, it was also signed by one of the witnesses Prakash Chand. The “will” was scribed by DW-6 Sh. O.P. Sharma. Mela Ram has signed the same after admitting the contents of the same to be true. He and Prakash Chand were present at that time as witnesses and thereafter in the presence of Mela Ram, they signed as witnesses. In his cross-examination, he deposed that the “will” was executed in the old Court Complex at Dharamshala. Mela Ram was all alone. He was accompanied by witness Prakash Chand and scribe. Mela Ram brought the revenue record. Mela Ram has given the details of property. He has not given the details of his family. The “will” is for specific property. 23. PW-1 Kewal Krishan has deposed that his father never contracted marriage with Garibo Devi. He has also deposed that Garibo Devi was married to Dharam Chand, who was alive. Mela Ram brought the revenue record. Mela Ram has given the details of property. He has not given the details of his family. The “will” is for specific property. 23. PW-1 Kewal Krishan has deposed that his father never contracted marriage with Garibo Devi. He has also deposed that Garibo Devi was married to Dharam Chand, who was alive. Plaintiffs were looking after their father. He has denied the suggestion that any writing about the marriage of Mela Ram with Garibo Devi was prepared in Chamba courts. He has also denied the suggestion in his cross-examination that the divorce has taken place between Dharam Chand and Garibo Devi. Defendant Garibo Devi while appearing as DW-1 has deposed that her marriage was solemnized with Mela Ram in the year 1980. Thereafter, she stated that the marriage was solemnized 80 years back. She has relied upon agreement mark ‘DX’. The persons who have appeared as witnesses, namely, Bhagwan Dass and Bala have not been produced to prove this document dated 25.6.1980. Defendant Garibo Devi has not led any tangible evidence to establish her marriage with Mela Ram. According to mark ‘DX’, the marriage was solemnized in the year 1967. However, this document was prepared on 25.6.1980. It is not in dispute that defendant Garibo Devi was married to Dharam Chand. According to defendant Garibo Devi, she has sought divorce from Dharam Chand 17-18 years back. This document was also prepared on 25.6.1980. The parties are Hindus. There could not be any divorce on the basis of Ex.D-3. 24. Mr. Anuj Gupta has argued that divorce has taken place between Dharam Chand and defendant Garibo Devi as per custom. This custom has neither been pleaded nor proved. The witnesses of this document, namely, Bhagwan Dass and Bala have also not been produced. According to DW-1, the divorce has taken place in Chamba court, however, no document to this effect has been produced. Defendant Garibo Devi did not know the date of her marriage. 25. The “will” was prepared at Dharamshala in the year 1984 but the same has been registered in the year 1987. There is no explanation forthcoming why the “will” which was got prepared at Dharamshala was registered at Dhalhousie, that too, after three years. The plaintiffs are legal heirs of late Sh. Mela Ram. In Ex.DW-5/A, there is no recital why they have been excluded from the property at Banikhet. There is no explanation forthcoming why the “will” which was got prepared at Dharamshala was registered at Dhalhousie, that too, after three years. The plaintiffs are legal heirs of late Sh. Mela Ram. In Ex.DW-5/A, there is no recital why they have been excluded from the property at Banikhet. Learned District Judge has swayed by only one fact that since the plaintiffs have not been disinherited from the lands situated at Indora and Hoshiarpur, they could be excluded from the land at Banikhet. According to defendant Garibo Devi, the “will” has been executed in her favour being wife of Mela Ram. Defendant Garibo Devi has failed to prove that she was married to Mela Ram. No doubt, the “will” is registered but there are suspicious circumstances, which have not been explained satisfactorily by the propounder. Mela Ram was an old man and according to the plaintiffs, he was being looked after by them at Hoshiarpur. The execution of “will” is also not in accordance with law. The “will” has been scribed by Sh. O.P. Sharma. He has signed the “will” as scribe. According to him, Mela Ram has signed the “will” and thereafter, the same was signed by witnesses, namely, Sh. Vinod Kumar, Advocate Dharamshala and Sh. Prakash Chand. He has not disclosed that he has seen Mela Ram signing the “will”. Sh. Prakash Chand has not been produced by the defendants. Sh. Vinod Kumar while appearing as DW-8 has deposed that the “will” was scribed by Sh. Om Prakash. Sh. Mela Ram has signed the same and at that time Sh. Prakash Chand was also present. They have signed as witnesses. He has also not deposed that he has seen Sh. Mela Ram signing the “will”. 26. Their Lordships of the Hon’ble Supreme Court in Niranjan Umeshchandra Joshi versus Mrudula Jyoti Rao and others, (2006) 13 SCC 433 have held that it is for the propounder to remove suspicious circumstances by leading cogent evidence. Their Lordships have further held that it has also to be proved that testator had signed out of his free will having a sound disposition of mind and not a feeble and debilitated mind, understanding well the nature and effect thereof. Their Lordships have held as under: “32. Section 63 of the Indian Evidence Act lays down the mode and manner in which the execution of an unprivileged Will is to be proved. Their Lordships have held as under: “32. Section 63 of the Indian Evidence Act lays down the mode and manner in which the execution of an unprivileged Will is to be proved. Section 68 postulates the mode and manner in which proof of execution of document is required by law to be attested. It in unequivocal terms states that execution of Will must be proved at least by one attesting witness, if an attesting witness is alive subject to the process of the court and capable of giving evidence. A Will is to prove what is loosely called as primary evidence, except where proof is permitted by leading secondary evidence. Unlike other documents, proof of execution of any other document under the Act would not be sufficient as in terms of Section 68 of the Indian Evidence Act, execution must be proved at least by one of the attesting witnesses. While making attestation, there must be an animus attestandi, on the part of the attesting witness, meaning thereby, he must intend to attest and extrinsic evidence on this point is receivable. 33. The burden of proof that the Will has been validly executed and is a genuine document is on the propounder. The propounder is also required to prove that the testator has signed the Will and that he had put his signature out of his own free will having a sound disposition of mind and understood the nature and effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharged. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In the case of proof of Will, a signature of a testator alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated. However, if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator. [See Madhukar D. Shende v. Tarabai Shedage (2002) 2 SCC 85 and Sridevi & Ors. v. Jayaraja Shetty & Ors. (2005) 8 SCC 784]. Subject to above, proof of a Will does not ordinarily differ from that of proving any other document.” 27. [See Madhukar D. Shende v. Tarabai Shedage (2002) 2 SCC 85 and Sridevi & Ors. v. Jayaraja Shetty & Ors. (2005) 8 SCC 784]. Subject to above, proof of a Will does not ordinarily differ from that of proving any other document.” 27. Their Lordships of the Hon’ble Supreme Court in B. Venkatamuni versus C.J. Ayodhya Ram Singh and others, (2006) 13 SCC 449 have held that while arriving at a finding as to whether the will was duly executed, the Court must satisfy its conscience having regard to the totality of the circumstances of the particular case. Their Lordships have held as under: “9. Akkayamma was not a highly educated lady. She received only primary education. She could only put her signature. She was otherwise worldly. She was of miserly nature. She was originally a resident of Arconam. She knew the importance of registration of document as only a couple of days before her death, i.e., 29th September, 1968 she executed two deeds of settlement in favour of Respondents. We need not go into the question as to whether Plaintiffs-Respondents have sufficiently proved love and affection of Akkayamma for them, but, when a question comes up for consideration before a court in regard to grant of probate or Letters of Administration with a copy of the Will annexed thereto, it is trite that all circumstances should be taken into consideration. It may be true, as has been opined by the Division Bench of the High Court, that proof of execution of the Will in terms of Section 63 of the Indian Succession Act and Sections 67 and 68 of the Indian Evidence Act would be a prerequisite, but, to take the same in evidence it is also trite that while arriving at a finding as to whether the Will has duly been executed or not, the court must satisfy its conscience having regard to the totality of the circumstances. The Will in question was executed on 23.3.1968. It was an unregistered one. She was ordinarily not a resident of District of Chittoor. She used to visit the said place occasionally. She did not know intimately the scribe of the Will, namely, P.W.1-Shri V. Thyagarajan. He was a teacher. There was no reason for Akkayamma to walk to his residence and ask him to scribe the Will. It was an unregistered one. She was ordinarily not a resident of District of Chittoor. She used to visit the said place occasionally. She did not know intimately the scribe of the Will, namely, P.W.1-Shri V. Thyagarajan. He was a teacher. There was no reason for Akkayamma to walk to his residence and ask him to scribe the Will. If P.W.1 was not a professional scribe, there may not be any particular reason as to why Akkayamma had chosen him for the said job. In the event of suspicion in regard to the genuineness or otherwise, the Will must be proved to have been executed in accordance with law establishing that the same has been done in presence of at least two witnesses. Although, the court should not approach the question with a suspicion that the Will is not a genuine one, the general guidelines laid down by this Court and the High Court in this behalf should be followed. The issue necessarily involves due appreciation of evidence. We may notice that in the Will Akkayamma described herself as the father's wife of Shri C.D. Jaya Singh. What is meant by that is not known. While describing herself as the father's wife of C.D. Jaya Singh, it was stipulated that she had been having that status for the last 40 years. Our attention has been drawn to the findings of the learned District Judge by the learned counsel for Respondents that Akkayamma developed love and affection not only for Jai Singh, but also for his children through his first wife and particularly, the 3rd plaintiff who was his daughter. If that be the position, then why she had not bequeathed any property in her favour is difficult to understand. The learned District Judge enumerated nine circumstances which, according to him, were relevant for considering the proof of due execution and attestation of the Will in question, which are as under : 1. Akkayamma lived with Jai Singh, the father of the plaintiffs 1 to 3 and husband of plaintiff No.4 at Arkonam in Tamilnadu while the plaintiffs lived at Chittoor in Andhra Pradesh till Jai Singh and she died. 2. There are indications to show that the plaintiffs were against Akkayamma to some extent when the second plaintiff filed a suit for partition on the ground that Jai Singh squandered the property after he developed contact with Akkayamma. 3. 2. There are indications to show that the plaintiffs were against Akkayamma to some extent when the second plaintiff filed a suit for partition on the ground that Jai Singh squandered the property after he developed contact with Akkayamma. 3. There was no special reason for love and affection between them except that Akkayamma had no children. There was no reason for Akkayamma in particular to choose first plaintiff to bequeath the schedule properties ignoring all other similarly placed persons like plaintiffs 2 and 3. 4. Piecemeal disposal of her properties at different stages and different types of documents Exs. A.1, B.24 and B.25, namely, settlement deed looks unnatural. 5. Akkayamma leaving registered documents Exs. B.24 and B.25 just three day prior to her death as against unregistered will six months prior to her death looks suspicious. 6. The will and settlement deeds almost read similar with same intentions consequently leading to a serious doubt. 7. The signature of Akkayamma on Ex.A.1 as Akkayamma Chevralu for the first time as against her usual signature on many documents including the settlement deeds Ex. B.24 and B.25 coming out just three days prior to her death with signature as Akkayamma speaks of something unnatural in the conduct of her. 8. The omission to mention the execution of Ex.A.1 will or the execution of such property in Exs. B.24 and B.25 is a strong circumstance leaving a serious suspicion on the conduct of Akkayamma. 9. The contents of Ex.A.1, which are conditional and contingent, appear to be unnatural." 14. Section 63 of the Indian Succession Act provides: "63. Execution of unprivileged wills._ * * * (a) the testator shall sign or shall affix his mark to will, or it shall be signed by some other person in his presence and by his direction. (b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will. (b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will. (c) 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." Proof of a Will shall strictly be in terms of the abovementioned provisions. 15. It is, however, well settled that compliance of statutory requirements itself is not sufficient as would appear from the discussions hereinafter made. 23. Each case, however, must be determined in the fact situation obtaining therein. 28. Their Lordships of the Hon’ble Supreme Court in Apoline D’ Souza versus John D’ Souza, (2007) 7 SCC 225 have held that section 68 of the Evidence Act, 1872 provides for the mode and manner in which execution of the will is to be proved. Their Lordships have further held that proof of attestation of the will is a mandatory requirement. Their Lordships have held as under: “13. Section 68 of the Indian Evidence Act, 1872 provides for the mode and manner in which execution of the will is to be proved. Proof of attestation of the will is a mandatory requirement. Attestation is sought to be proved by PW-2 only. Both the daughters of the testatrix were nuns. No property, therefore, could be bequeathed in their favour. In fact one of them had expired long back. Relation of the testatrix with the respondent admittedly was very cordial. Appellant before us has not been able to prove that she had been staying with the testatrix since 1986 and only on that count she was made a beneficiary thereof. The will was full of suspicious circumstances. In fact one of them had expired long back. Relation of the testatrix with the respondent admittedly was very cordial. Appellant before us has not been able to prove that she had been staying with the testatrix since 1986 and only on that count she was made a beneficiary thereof. The will was full of suspicious circumstances. PW-2 categorically stated that the will was drafted before her coming to the residence of the testatrix and she had only proved her signature as a witness to the execution of the will but the document was a handwritten one. The original will is typed in Kannada, although the blanks were filled up with English letters. There is no evidence to show that the contents of the will were read over and explained to the testatrix. PW-2 was not known to her. Why was she called and who called her to attest the will is shrouded in mystery. Her evidence is not at all satisfactory in regard to the proper frame of mind of the testatrix. There were several cuttings and overwritings also in the will. 20. The ratio of the said decision does not assist the appellant, as the mode and manner of proof of due execution of a will indisputably will depend upon the facts and circumstances of each case. It is for the propounder of the will to remove the suspicious circumstances, which has not been done in this case.” 29. Their Lordships of the Hon’ble Supreme Court in Babu Singh and others versus Ram Sahai alias Ram Singh, (2008) 14 SCC 754 have held that when genuineness of a will is in question, apart from execution and attestation of will, it is also the duty of a person seeking declaration about the validity of the will to dispel the surrounding suspicious circumstances existing, if any. Their Lordships have further held that in terms of section 68 of the Evidence Act, although it is not necessary to call more than one attesting witness to prove due execution of a will but that would not mean that an attested document shall be proved by the evidence of one attesting witness only and two or more attesting witnesses need not be examined at all. Their Lordships have further held that section 68 envisages the necessity of more evidence than mere attestation, as the words “at least” have been used therein. Their Lordships have further held that section 68 envisages the necessity of more evidence than mere attestation, as the words “at least” have been used therein. Their Lordships have further held that the will is to be attested by two witnesses in terms of section 63 (1) (c) of the Succession Act, 1925. Their Lordships have further held that not only the execution of will be proved, but actual execution must also be attested by at least two witnesses and the attestation of will in question must be in conformity with the provisions of section 3 of the Transfer of Property Act. Their Lordships have further held that ‘attestation’ and ‘execution’ connote two different meanings. Their Lordships have held as under: “12. Indisputably a Will is to be attested by two witnesses in terms of Section 68 of the Indian Evidence Act (Act). Indisputably, the requirement of Section 63(1)(c) of the Indian Succession Act is required for to be complied with for proving a writ. Section 68 of the Act mandates proof by attesting witnesses of not merely of execution but also attestation by two witnesses. That is to say, not only the execution of Will must be proved but actually execution must be attested by at least two witnesses. Attestation must of execution of Will be in conformity with the provisions of Section 3 of the Transfer of Property Act. 13. 'Attestation' and 'execution' connote two different meanings. Some documents do not require attestation. Some documents are required by law to be attested. 14. In terms of Section 68 of the Act, although it is not necessary to call more than one attesting witness to prove due execution of a Will but that would not mean that an attested document shall be proved by the evidence of one attesting witness only and two or more attesting witnesses need not be examined at all. Section 68 of the Act lays down the mode of proof. It envisages the necessity of more evidence than mere attestation as the words 'at least' have been used therein. When genuineness of a Will is in question, apart from execution and attestation of Will, it is also the duty of a person seeking declaration about the validity of the Will to dispel the surrounding suspicious circumstances existing if any. It envisages the necessity of more evidence than mere attestation as the words 'at least' have been used therein. When genuineness of a Will is in question, apart from execution and attestation of Will, it is also the duty of a person seeking declaration about the validity of the Will to dispel the surrounding suspicious circumstances existing if any. Thus, in addition to proving the execution of the Will by examining the attesting witnesses, the propounder is also required to lead evidence to explain the surrounding suspicious circumstances, if any. Proof of execution of the Will would, inter alia, depend thereupon. 15. The Court, while granting probate of the will, must take into consideration all relevant factors. It must be found that the will was product of a free will. The testator must have full knowledge and understanding as regards the contents thereof. For the said purpose, the background facts may also be taken note of. Where, however, a plea of undue influence was taken, the onus wherefor would be on the objector and not on the offender. {See Savithri & Ors. v. Karthyayani Amma & Ors. [JT (2007) 12 SC 248]}” 30. Their Lordships of the Hon’ble Supreme Court in Lalitaben Jayantilal Popat versus Pragnaben Jamnadas kataria and others, (2008) 15 SCC 365 have held that section 63 (c) of Succession Act, 1925 provides that attestation of will by two or more witness is mandatory. Their Lordships have further held that the will has to be proved not only by proving the signature of the executor but it should be found to be free from any suspicious circumstances. Their Lordships have held as under: “11. The law in regard to proof of a valid Will is now well settled. It has to be proved not only by proving the signature of the executor but it should be found to be free from any suspicious circumstances. Section 63(c) of the Indian Succession Act reads as under: "Section 63.--Execution of unprivileged Wills --Every testator, not being a soldier employed in an expedition or engaged in actual warfare, 1 [or an airman so employed or engaged,] or a mariner at sea, shall execute his Will according to the following rules :- (a) and (b) ... Section 63(c) of the Indian Succession Act reads as under: "Section 63.--Execution of unprivileged Wills --Every testator, not being a soldier employed in an expedition or engaged in actual warfare, 1 [or an airman so employed or engaged,] or a mariner at sea, shall execute his Will according to the following rules :- (a) and (b) ... (c) 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." 12. Indisputably, the said provision is mandatory in nature. A Will is required to be attested by two or more witnesses. Section 68 of the Evidence Act provides that the propounder must prove execution and attestation of the Will by examining at least one of the attesting witnesses. What is meant by the word `attestation' is defined in Section 3 of the Transfer of Property Act which reads as under : Section 3.--Interpretation-clause--In this Act, unless there is something repugnant in the subject or context,- XXX XXX XXX "attested", in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgment of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary. 20. Whether a Will is surrounded by suspicious circumstances or not is essentially a question of fact. 20. Whether a Will is surrounded by suspicious circumstances or not is essentially a question of fact. We have noticed hereinbefore that there was a large number of suspicious circumstances in the instant case. We have also pointed out that suspicious circumstances appear on the face of the Will. Inferences of suspicious circumstances must be drawn having regard to the evidence of Ranjit Singh. Even the statutory requirements for proof of the Will have not been complied with. It is a trite law that execution of a Will must be held to have been proved not only when the statutory requirements for proving the Will are satisfied but the Will is also found to be ordinarily free from suspicious circumstances. When such evidences are brought on record, the Court may take aid of the presumptive evidences also." 31. Their Lordships of the Hon’ble Supreme Court in K. Laxmanan versus Thekkayil Padmini and others, (2009) 1 SCC 354 have reiterated that onus to prove the will lies on the propounder. Their Lordships have further held that even where plea of suspicious circumstances is not raised but circumstances give rise to doubt, the propounder must satisfy the conscience of the court by removing such doubt. Their Lordships have held as under: “18. It is only as against the judgment and findings that the items of property covered by Ext. B2 and B3 are available for division that the second appeal was preferred by the fifth defendant in the High Court of Kerala. Therefore, the properties covered by Ext. B1 and B4 namely items 1 to 3, 13 and 14 are no longer in dispute and the conclusions arrived at by the first appellate court that the said items are not available for division are final and binding on the parties. 19.What is in dispute and is open to further litigation are only the properties covered by Ext. B2 and B3 which were held by both the appellate courts to be available for division. Since we are concerned with the legality of execution of Deed of Will and Deed of Gift, Section 68 of the Act would have some relevance, which reads as follows:- "68. Proof of execution of document required by law to be attested. B2 and B3 which were held by both the appellate courts to be available for division. Since we are concerned with the legality of execution of Deed of Will and Deed of Gift, Section 68 of the Act would have some relevance, which reads as follows:- "68. Proof of execution of document required by law to be attested. - If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence. Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied." Strong reliance was placed on this provision also by the learned counsel appearing for the parties. A bare reading of the aforesaid provision will make it crystal clear that so far as a Deed of Will is concerned, the position in law is no longer in doubt for the onus of proving the Will is on the propounder. The propounder has to prove the legality of the execution and genuineness of the said Will by proving absence of suspicious circumstances surrounding the said Will and also by proving the testamentary capacity and the signature of the testator. Once the same is proved, it could be said that the propounder has discharged the onus. 19. When there are suspicious circumstances regarding the execution of the Will, the onus is also on the propounder to explain them to the satisfaction of the Court and only when such responsibility is discharged, the Court would accept the Will as genuine. Even where there are no such pleas, but circumstances give rise to doubt, it is on the propounder to satisfy the conscience of the Court. Even where there are no such pleas, but circumstances give rise to doubt, it is on the propounder to satisfy the conscience of the Court. Suspicious circumstances arise due to several reasons such as with regard to genuineness of the signature of the testator, the conditions 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. The aforesaid view is taken by us in consonance with the decision of this Court in Shashi Kumar Banerjee v. Subodh Kumar Banerjee ( AIR 1964 SC 529 ) and Pushpavathi v. Chandraraja Kadamba ( (1973) 3 SCC 291 ). 20. So far as Section 68 of the Act is concerned, it categorically provides that a Will is required to be attested and therefore, it cannot be used as evidence until at least one of the attesting witnesses is called for the purpose of proving its execution provided such attesting witness is alive, and subject to the process of the court and capable of giving evidence.” 32. Their Lordships of the Hon’ble Supreme Court in Bharpur Singh and others versus Shamsher Singh, (2009) 3 SCC 687 have held that when natural heirs disinherited and propounder taking interest in the will even though the will was registered one, the propounder must prove due execution of will. Their Lordships have further held that the fact that the propounder took interest in execution of the will is one of the factors which should be taken into consideration for determination of due execution of the will. Their Lordships have further held that the fact that the propounder took interest in execution of the will is one of the factors which should be taken into consideration for determination of due execution of the will. Their Lordships have further held that the propounder of will must prove: i) that the will was signed by the testator in a sound and disposing state of mind duly understanding the nature and effect of disposition and he put his signature on the document of his own free will, and ii) when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator’s mind and his signature as required by law, courts would be justified in making a finding in favour of propounder. 33. Their Lordships of the Hon’ble Supreme Court in Yumnam Ongbi Tampha Ibema Devi versus Yumnam Youkumar Singh and others, (2009) 4 SCC 780 while interpreting section 63 of the Succession Act, 1925 have held that as under: “11. As per provisions of Section 63 of the Succession Act, for the due execution of a Will (1) the testator should sign or affix his mark to the Will; (2) the signature or the mark of the testator should be so placed that it should appear that it was intended thereby to give effect to the writing as a Will; (3) the Will should be attested by two or more witnesses, and (4) each of the said witnesses must have seen the testator signing or affixing his mark to the Will and each of them should sign the Will in presence of the testator. 12. The attestation of the Will in the manner stated above is not an empty formality. It means signing a document for the purpose of testifying of the signatures of the executant. The attested witness should put his signature on the Will animo attestandi. It is not necessary that more than one witness be present at the same time and no particular form of attestation is necessary. Since a Will is required by law to be attested, execution has to be proved in the manner laid down in section and the Evidence Act which requires that at least one attesting witness has to be examined for the purpose of proving the execution of such a document. 13. Since a Will is required by law to be attested, execution has to be proved in the manner laid down in section and the Evidence Act which requires that at least one attesting witness has to be examined for the purpose of proving the execution of such a document. 13. Therefore, having regards to the provisions of Section 68 of the Evidence Act and Section 63 of the Succession Act, a Will to be valid should be attested by two or more witnesses in the manner provided therein and the propounder thereof should examine one attesting witness to prove the will. The attesting witness should speak not only about the testator's signature or affixing his mark to the will but also that each of the witnesses had signed the will in the presence of the testator.” 34. Their Lordships of the Hon’ble Supreme Court in S.R. Srinivasa and others versus S. Padmavathamma, (2010) 5 SCC 274 have held that where relying on will, beneficiary thereof sought to deny right of deceased’s heirs to inherit under section 15 (2) (a), onus to prove execution and genuineness of the will lay on him. Their Lordships have held as under: “36. As noticed earlier by virtue of Section 15(2) (a) of the Act, the appellants would inherit the property in dispute. This right is sought to be defeated by defendant No.1 on the basis of the Will dated 18.6.1974, allegedly executed by Puttathayamma. Defendant No.1 being the sole beneficiary under the Will claims that the plaintiffs can not claim to `inherit' the property on the basis of intestate succession. Undoubtedly, therefore, it was for defendant No.1 to prove that the Will was duly executed, and proved to be genuine.” 35. Defendant No.2 has purchased the land after the civil suit was filed. He has neither pleaded nor proved that he was a bona fide purchaser of the property. Consequently, the substantial questions of law are answered accordingly. 36. In view of observations and discussions made hereinabove, the Regular Second Appeal is allowed. Judgment and decree passed by the first appellate court dated 31.12.2001 is set aside and that of the trial court dated 20.6.2000 is restored. Pending application(s), if any, also stands disposed of. There shall, however, be no order as to costs.