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2013 DIGILAW 809 (HP)

Mona Devi v. Amba Dutt Sharma

2013-09-11

RAJIV SHARMA

body2013
JUDGMENT : Rajiv Sharma, J. This Regular Second Appeal is directed against the judgment and decree, dated 19.10.2012 passed by the learned District Judge (Forests), Shimla in Civil Appeal No. 41-S/13 of 2012/10. 2. 'Key facts' necessary for the adjudication of this Regular Second Appeal, are that the respondents/plaintiffs (hereinafter referred to as "the plaintiffs" for the sake of convenience) filed a suit against the appellant/defendant (hereinafter referred to as the "defendant" for the sake of convenience) for declaration, injunction and in the alternative for possession. According to the plaintiffs, Ganga Dutt was exclusive owner in possession of the suit land. He had no male issue. He had only one daughter namely Mona Devi. She was married and residing in her matrimonial home. The plaintiffs used to look after and maintain late Ganga Dutt during his life time. He executed a will on 3.2.2004, Ext.P10 of his entire movable and immovable properties in favour of the plaintiffs as well as defendant in equal shares. The factum of the will was reported to Halqua Patwari and the mutation of inheritance was also entered on the basis of the will, but the Assistant Collector 2nd Grade Kotkhai, attested mutation No.31 dated 28.3.2005 of Chak Rehwat in favour of the defendant ignoring the will. The mutation of inheritance sanctioned in the name of the defendant is wrong and illegal. 3. The suit was contested by the defendant. According to the defendant, late Ganga Dutt was having no male issue. She was only daughter of late Ganga Dutt. The plaintiffs are sons of brother of late Ganga Dutt. Marriage of the defendant was solemnized with Prem Chand, resident of village Machiwra. She along with her husband Prem Chand was residing with late Ganga Dutt in village Bhamrara and Gudel for the last 16 years. She had looked after her mother Radhi Devi and her father late Ganga Dutt. Ganga Dutt was suffering from asthma and he died on 18.3.2004. She denied that the plaintiffs ever rendered services to late Ganga Dutt during his life time. According to her, Ganga Dutt remained hospitalized in various hospitals. Her children were residing with late Ganga Dutt and she was having ration card with late Ganga Dutt at village Gundel. The will set up by the plaintiff is result of fraud and misrepresentation. 4. The replication was filed by the plaintiffs. According to her, Ganga Dutt remained hospitalized in various hospitals. Her children were residing with late Ganga Dutt and she was having ration card with late Ganga Dutt at village Gundel. The will set up by the plaintiff is result of fraud and misrepresentation. 4. The replication was filed by the plaintiffs. The issues were framed by the learned trial court on 28.10.2005 and dismissed the suit vide judgment and decree dated 6.1.2010. 5. The plaintiffs feeling aggrieved by judgment and decree dated 6.1.2010 filed an appeal before the learned first appellate court, who vide judgment and decree dated 19.10.2012 allowed the appeal. Hence, this Regular Second Appeal. It was admitted on following substantial questions of law:- "1. Whether the findings of the learned First Appellate Court are a result of complete misreading of pleadings, evidence and the law as applicable to the facts of the case and particularly documents, Ext.P1, PA, Ext. DW5/A and Ext. DW5/B as also documents Ext. D1 to D11 and as such palpably erroneous, perverse and illegal and if so to what effect? 2. Whether the findings of the learned first appellate court regarding genuineness of the alleged Will Ext.P1 are palpably illegal, perverse and a result of misreading of evidence and the law as applicable to the facts of the case and thus vitiated with material illegality and irregularity?" 6. Mr. Ajay Kumar, learned Senior Advocate has vehemently argued that the learned first appellate court has misread the oral as well as documentary evidence more particularly, documents, Ext.P1, Ext. PA, Ext. DW5/A, DW5/B and Ext. D1 to Ext. D11. He has supported the judgment dated 6.1.2010 passed by the learned trial court. 7. Mr. N.K. Thakur, Senior Advocate, has supported the judgment and decree dated 19.10.2012 passed by the learned first appellate court. 8. I have heard learned counsel for the parties and have gone through the impugned judgments and records carefully. 9. The will, Ext.P1 is dated 3.2.2004. Ganga Dutt died on 18.3.2004. 10. According to PW2, Amba Dutt, the scribe had started to write the will at about 2.00/2.30 P.M.. PW3, Krishan Lal Kalta led his evidence by filing an affidavit. According to him, on 3.2.2004 Ganga Dutt executed the will in sound disposing state of mind. It was scribed by him. Ganga Dutt died on 18.3.2004. 10. According to PW2, Amba Dutt, the scribe had started to write the will at about 2.00/2.30 P.M.. PW3, Krishan Lal Kalta led his evidence by filing an affidavit. According to him, on 3.2.2004 Ganga Dutt executed the will in sound disposing state of mind. It was scribed by him. The contents of the will were read by Ganga Dutt himself and after admitting the same to be correct, he put his signature in the presence of PW4 Hari Krishan and PW5 Chet Ram. The marginal witnesses also put their signatures in the presence of Ganga Dutt. According to him, the will was scribed by him at about 3.35 P.M. and he completed the same within the hour. Ganga Dutt himself read the will. PW4, Hari Krishan is the marginal witness to the will, Ext.P1. He also led his evidence by filing an affidavit. According to him, the will was scribed by Krishan Lal Kalta at the instance of Ganga Dutt. According to him, Ganga Dutt himself read the will and after acknowledging the contents of the will, he put his signature in his presence and Chet Ram. The marginal witnesses also put their signatures in the presence of Ganga Dutt. According to him, firstly the will was signed by Ganga Dutt and thereafter scribe Krishan Lal signed the same. The will was scribed at about 3.30/4.00 P.M.. The paper to scribe the will was provided by Ganga Dutt. Pen was also provided by Ganga Dutt. According to him, scribe of the will and marginal witness Chet Ram had come to the house of Amba Dutt at about 3.00 P.M.. PW5, Chet Ram is also one of the marginal witnesses to the will Ext.P1. He also led his evidence by filing an affidavit. According to him, the will was scribed by Krishan Lal at the instance of Ganga Dutt. Ganga Dutt himself read the contents of the will and he put his signatures in the presence of marginal witnesses. Marginal witnesses also put their signatures in the presence of Ganga Dutt. He categorically admitted that orchard of Ganga Dutt was being looked after by the defendant and her husband during the life time of Ganga Dutt. According to him, firstly, the will was signed by Krishan Lal and thereafter he put his signature. Lastly, the will was signed by Hari Krishan and Ganga Dutt. He categorically admitted that orchard of Ganga Dutt was being looked after by the defendant and her husband during the life time of Ganga Dutt. According to him, firstly, the will was signed by Krishan Lal and thereafter he put his signature. Lastly, the will was signed by Hari Krishan and Ganga Dutt. The scribe had started writing the will at about 2.00/2.30 P.M. 11. According to PW3, Krishan Lal Kalta, first of all the will was signed by Ganga Dutt. PW4, Hari Krishan, deposed that first of all, the will was signed by Ganga Dutt and thereafter by PW3, scribe Krishan Lal. However, PW5 Chet Ram, one of the marginal witnesses to the will, deposed that firstly the will was signed by Krishan Lal (PW3) and thereafter it was signed by him and Hari Krishan PW4. Ganga Dutt had signed the will at the last. 12. Now, there is also variance at what time the will was scribed. According to Amba Dutt, PW2, scribe started to write the will at about 2.00/2.30 P.M. Krishan Lal Kalta, PW3, deposed that he started scribing the will at about 3.30 P.M.. Hari Krishan, PW4, one of the marginal witnesses to the will, Ext.P1, deposed that the will was scribed at about 3.30/4.00 P.M. Chet Ram, PW5, another marginal witness to the will, Ext.P1 deposed that the scribe started writing the will at about 2.00/2.30 P.M.. According to Ext.P1, the will was scribed at 4.00 P.M.. It has come on record that Ganga Dutt was suffering from asthma. The will is dated 3.2.2004. He died on 8.3.2004. He remained hospitalized in various hospitals. The plaintiffs produced on record certified copy of special power of attorney which was alleged to have been executed by Ganga Dutt in favour of Shyama Nand Kalta, which was exhibited as Ext. PA in case No.126-S/10 of 1993. As per special power of attorney, Ganga Dutt was an illiterate person. However, it has come in evidence of PW3, PW4 and PW5 that Ganga Dutt himself read contents of the will. In Special Power of Attorney, Ganga Dutt has put his signature as "Ganga Dutt", whereas in the will, Ext.P1, he signed as "Ganga Dutt Sharma". S. Ahmad, DW5, Assistant Director Examiner of Questioned Documents proved that the will, Ext.P1, was not signed by Ganga Dutt. His opinion to this effect is Ext. In Special Power of Attorney, Ganga Dutt has put his signature as "Ganga Dutt", whereas in the will, Ext.P1, he signed as "Ganga Dutt Sharma". S. Ahmad, DW5, Assistant Director Examiner of Questioned Documents proved that the will, Ext.P1, was not signed by Ganga Dutt. His opinion to this effect is Ext. PW5/A and Ext.PW5/B. Certified copy of special power of attorney, Ext.PA is dated 14.12.1988. The will was scribed on the judicial paper pertaining to the year 2003. However, the will is dated 3.2.2004. This circumstance has also not been explained by the plaintiffs. PW4 and PW5 admitted that the defendant and her husband were looking after the orchard of late Ganga Dutt. There is no mention in the plaint that the one of the plaintiffs Tara Dutt had also rendered services to Ganga Dutt. According to D1 and D2, there were seven members in the family of Ganga Dutt, out of which four were adults and three were minors. The contradictions in the statements of the witnesses about the manner in which the will has been executed including the time of execution were major and not minor in nature, as held by the learned first appellate court. It was necessary for the propounder of the will to explain, who obtained the judicial paper in the year 2003 on which the will was scribed on 3.2.2004. The learned first appellate court has failed to take into consideration the fact that in the will, Ext.P1 Ganga Dutt signed as "Ganga Dutt Sharma", whereas he used to sign as "Ganga Dutt". This is one of the suspicious circumstances, which has been overlooked by the learned first appellate court. The plaintiffs have failed to dispel the surrounding suspicious circumstances. They have also failed to prove the will in accordance with Section 63 of the Indian Succession Act and Section 68 of the Evidence Act. Accordingly, the plaintiffs have failed to prove the execution of the will, Ext.P1 dated 3.2.2004. 13. The Will is required to be attested by two or more witnesses and each of whom has to see the testator sign or affix his mark to the will and each of the witnesses are required to sign the Will in the presence of the testator. This procedure is mandatory. 14. 13. The Will is required to be attested by two or more witnesses and each of whom has to see the testator sign or affix his mark to the will and each of the witnesses are required to sign the Will in the presence of the testator. This procedure is mandatory. 14. Their Lordships of Hon'ble Supreme Court in M.B. Ramesh v. K.M. Veeraje Urs, (2013) 7 SCC 490 : AIR 2013 SC 2088 have held as under:- "18. That takes us to the crucial issue involved in the present case, viz. with respect to the validity and proving of the concerned will. A Will, has to be executed in the manner required by S 63 of the Succession Act. Section 68 of the Evidence Act requires the will to be proved by examining at least one attesting witness. Section 71 of the Evidence Act is another connected section "which is permissive and an enabling section permitting a party to lead other evidence in certain circumstances", as observed by this Court in paragraph 11 of Janki Narayan Bhoir v. Narayan Namdeo Kadam, reported in 2003 (2) SCC 91 : AIR 2003 SC 761 and in a way reduces the rigour of the mandatory provision of Section 68. As held in that judgment Section 71 is meant to lend assistance and come to the rescue of a party who had done his best, but would otherwise be let down if other means of proving due execution by other evidence are not permitted. At the same time, as held in that very judgment the section cannot be read to absolve a party of his obligation under Section 68 of the Evidence Act read with Section 63 of the Succession Act to present in evidence a witness, though alive and available. 19. The relevant provisions of these three sections read as follows: "Section 63 of the Succession Act "63. Execution of unprivileged wills.- Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the following rules:- (a) ..... (b) ..... Execution of unprivileged wills.- Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the following rules:- (a) ..... (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." Section 68 of the Evidence Act "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 it's execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence..." Section 71 of the Evidence Act "71. Proof when attesting witness denies the execution.- If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence." 20. In the present matter, there is no dispute that the requirement of Section 68 of the Evidence Act is satisfied, since one attesting witness i.e. PW-2 was called for the purpose of proving the execution of the will, and he has deposed to that effect. The question, however, arises as to whether the will itself could be said to have been executed in the manner required by law, namely, as per Section 63 (c) of the Succession Act. PW-2 has stated that he has signed the will in the presence of Smt. Nagammanni, and she has also signed the will in his presence. The question, however, arises as to whether the will itself could be said to have been executed in the manner required by law, namely, as per Section 63 (c) of the Succession Act. PW-2 has stated that he has signed the will in the presence of Smt. Nagammanni, and she has also signed the will in his presence. It is however contended that his evidence is silent on the issue as to whether Smt. Nagammanni executed the will in the presence of M. Mallaraje Urs, and whether M. Mallaraje Urs also signed as attesting witness in the presence of Smt. Nagammanni. Section 63 (c) of the Succession Act very much lays down the requirement of a valid and enforceable will that it shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will, and each of the witnesses hassigned the will in the presence of the testator. As held by a bench of three judges of this Court (per Gajendragadkar J. as he then was) way back in R. Venkatachala Iyengar v. B N. Thimmajamma, reported in AIR 1959 SC 443 , that a will has to be proved like any other document except that evidence tendered in proof of a will should additionally satisfy the requirement of Section 63 of the Succession Act, apart from the one under Section 68 of the Evidence Act. 21. The propositions laid down in Venkatachala Iyengar (supra) have been followed and explained in another judgment of a bench of three Judges in Smt. Jaswant Kaur v. Smt Amrit Kaur, reported in AIR 1977 SC 74 , wherein the law has been crystallized by Y.V. Chandrachud J (as he then was), into the following propositions:- "10. There is a long line of decisions bearing on the nature and standard of evidence required to prove a will. Those decisions have been reviewed in an elaborate judgment of this Court in R. Venkatachala Iyengar v. B.N. Thirnmajamma and Ors., AIR 1959 SC 443 . The Court, speaking through Gajendragadkar J., laid down in that case the following propositions :- 1. Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. The Court, speaking through Gajendragadkar J., laid down in that case the following propositions :- 1. Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty. 2. Since Section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by Section 63 of the Evidence Act, 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. 3. Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will. 4. Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator. 5. It is in connection with wills, the execution of which is surrounded by suspicious circumstance that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator. 6. If a caveator alleges fraud, undue influence, coercion etc. in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter." 15. Their Lordships of the Hon'ble Supreme Court in Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao and others, (2006) 13 SCC 433 : AIR 2007 SC 614 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. 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. 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 : AIR 2002 SC 637 and Sridevi & Ors. v. Jayaraja Shetty & Ors., (2005) 8 SCC 784 : AIR 2005 SC 780 ]. Subject to above, proof of a Will does not ordinarily differ from that of proving any other document." 16. [See Madhukar D. Shende v. Tarabai Shedage, (2002) 2 SCC 85 : AIR 2002 SC 637 and Sridevi & Ors. v. Jayaraja Shetty & Ors., (2005) 8 SCC 784 : AIR 2005 SC 780 ]. Subject to above, proof of a Will does not ordinarily differ from that of proving any other document." 16. Their Lordships of the Hon'ble Supreme Court in B. Venkatamuni v. C.J. Ayodhya Ram Singh and others, (2006) 13 SCC 449 : AIR 2007 SC 311 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 pre-requisite, 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. 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. 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. 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. 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. 17. Their Lordships of the Hon'ble Supreme Court in Apoline D' Souza v. John D' Souza, (2007) 7 SCC 225 : AIR 2007 SC 2219 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." 18. Their Lordships of the Hon'ble Supreme Court in Babu Singh and others v. Ram Sahai alias Ram Singh, (2008) 14 SCC 754 : AIR 2008 SC 2485 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 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 : AIR 2008 SC 300 }" 19. Their Lordships of the Hon'ble Supreme Court in Lalitaben Jayantilal Popat v. Pragnaben Jamnadas kataria and others, (2008) 15 SCC 365 : AIR 2009 SC 1389 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." 20. Their Lordships of the Hon'ble Supreme Court in K. Laxmanan v. Thekkayil Padmini and others, (2009) 1 SCC 354 : AIR 2009 SC 951 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 : AIR 1972 SC 2492 . 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." 21. Their Lordships of the Hon'ble Supreme Court in Bharpur Singh and others v. Shamsher Singh, (2009) 3 SCC 687 : AIR 2009 SC 1766 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. 22. Their Lordships of the Hon'ble Supreme Court in Yumnam Ongbi Tampha Ibema Devi v. Yumnam Youkumar Singh and others, (2009) 4 SCC 780 while interpreting section 63 of the Succession Act, 1925 have held 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." 23. Their Lordships of the Hon'ble Supreme Court in S.R. Srinivasa and others v. S. Padmavathamma, (2010) 5 SCC 274 : 2010 AIR SCW 3935 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." 24. In view of the discussions and analysis made hereinabove, this regular second appeal is allowed and the judgment and decree dated 19.10.2012 passed by the learned District Judge (Forest), Shimla is set aside and the judgment and decree passed by the learned Civil Judge (Sr. Divn.) Theog, District Shimla, dated 6.1.2010 in Civil Suit No.94/1 of 2005, is restored. Pending application(s), if any, stands disposed of. There shall, however, be no order as to costs.