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2014 DIGILAW 404 (HP)

Lata Kumari v. Kehar Singh

2014-04-21

TARLOK SINGH CHAUHAN

body2014
JUDGMENT Tarlok Singh Chauhan, Judge The defendants are the appellants, who are aggrieved by the judgment and decree dated 6.6.2000 passed by learned District Judge, Hamirpur in Civil Appeal No. 43 of 1992 whereby he reversed the judgment and decree dated 31 .3.1992 passed by learned Sub Judge, 1st Class (1), Hamirpur, H.P. in Civil Suit No. 103 of 1987. 2. The plaintiff/respondent filed a suit for declaration and permanent prohibitory injunction against the appellants/defendants basing his claim on a Will alleged to have been executed by Sher Singh in his favour on 10.10.83. 3. On the other hand, the defendants/appellants did not deny the existence of Will dated 10.10.83. However, they claimed that such Will having been expressly superseded by a subsequent Will dated 28.10.83. 4. On 3.9.1987, the learned trial Court framed the following issues: 1.Whether deceased Sher Singh executed a valid will on 10.10.83 in favour of plaintiff, as alleged? OPP 2.Whether the plaintiff is entitled to the relief of injunction, as prayed for? OPP 3.Whether deceased Sher Singh executed a valid will dated 28.10.83 in favour of defendants as alleged? OPD 4.Whether plaintiff has cause of action? OPP (onus objected to) 5.Whether plaintiff is estopped by his act and conduct? OPD 6. Whether parties are governed by custom in the matters of alienation, if so, what that custom is? OPD 7.Whether suit property is ancestral qua defendants and deceased Sher Singh? 8.Relief. 5.After recording the evidence, the learned trial Court dismissed the suit. On appeal being carried to the learned lower Appellate Court, the judgment and decree passed by the learned trial Court was reversed and the suit of the plaintiff was decreed. 6.Aggrieved by the judgment and decree passed by the learned lower Appellate Court, the defendants/appellants have filed the present appeal before this Court. 7.On 29.9.2000, the appeal was admitted on the following substantial question of law: “Whether the finding of the learned lower Appellate Court has been arrived at by placing reliance on inadmissible evidence, if so, its effect?” 8.I have heard Mr. Onkar Jairath, learned counsel for the appellants and Mr. Bhupender Gupta, Senior Advocate assisted by Mr. Ajit Jaswal, Advocate, learned counsel for the respondents and have also gone through the records carefully. 9. Mr. Onkar Jairath, learned counsel for the appellants and Mr. Bhupender Gupta, Senior Advocate assisted by Mr. Ajit Jaswal, Advocate, learned counsel for the respondents and have also gone through the records carefully. 9. Mr. Onkar Jairath, learned counsel for the appellants has strenuously argued that the findings recorded by the learned lower Appellate Court are not at all sustainable in the eyes of law since they are based upon the complete misreading of oral and documentary evidence and in fact the learned lower Appellate Court has relied upon inadmissible evidence to reverse the well reasoned judgment of the learned trial Court. 10.In order to substantiate his plea, the learned counsel for the appellants has contended that as a matter of fact in the Will dated 10.10.83 executed in favour of the plaintiff/respondent, there was an express condition to the effect that the plaintiff would serve the testator in future and in case failure to do so, the Will would stand revoked. He further submits that in the entire pleadings of the plaintiff, there is no plea to the effect that he had been rendering service to the testator after the date of execution of the Will Ex.P-1. He further contended that the plaintiff was residing at Ahmedabad in Gujarat State while the deceased Sher Singh was residing at his native village in District Hamirpur and even according to the pleadings of the plaintiff himself, he had not been serving the deceased Sher Singh, though he had tried to establish on record that his wife had been serving the deceased. Moreover, the wife of the plaintiff has not been examined in this case and therefore, an adverse inference deserves to be drawn against the plaintiff. He has further contended that the plaintiff has not pleaded that the deceased Sher Singh used to maintain a diary and therefore, no reliance on the diary Ex.P-2 could have been placed by the learned lower Appellate Court. It is not disputed by the learned counsel for the appellants that the Will dated 10.10.83 is otherwise deemed to have been proved because it finds mention in the alleged Will Ex.D-1 executed in favour of the defendants/appellants. 11.Before this Court proceeds further, it is settled law that propounder is required to dispel all suspicious circumstances surrounding the Will. The Hon’ble Supreme Court in H.Venkatachala Iyengar v. B.N. Thimmajamma and others AiR. 11.Before this Court proceeds further, it is settled law that propounder is required to dispel all suspicious circumstances surrounding the Will. The Hon’ble Supreme Court in H.Venkatachala Iyengar v. B.N. Thimmajamma and others AiR. 1959 Supreme Court, 443 held as under: “18. What is the true legal position in the matter of proof of wills ? It is well known that the proof of wills presents a recurring topic for decision in Courts and there are a large number of judicial pronouncements on the subject. The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68, Evidence Act are relevant for this purpose. Under S. 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Ss. 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a Court of law. Similarly, Ss. 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression “a person of sound mind” in the context. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the will ? Did he understand the nature and effect of the dispositions in the will ? Did he put his signature to the will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribe by S. 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters.” “20. There may, however, be cases in which the execution of the will may be surrounded by suspicions circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder’s case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator’s mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator’s free will and mind. In such cases the Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, Courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter. 21. Apart from the suspicious circumstances to which we have just referred in some cases the wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. It is in connection with wills that present such suspicious circumstances that decisions of English Courts often mention the test of the satisfaction of judicial conscience. It may be that the reference to judicial conscience in this connection is a heritage from similar observations made by ecclesiastical Courts in England when they exercised jurisdiction with reference to wills; but any objection to the use of the word ‘conscience’ in this context would, in our opinion, be purely technical and academic, if not pedantic. The test merely emphasizes that, in determining the question as to whether an instrument produced before the Court is the last will of the testator, the Court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive. 22. The test merely emphasizes that, in determining the question as to whether an instrument produced before the Court is the last will of the testator, the Court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive. 22. It is obvious that for deciding material questions of fact which arise in applications for probate or in actions on wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. It may, however, be stated generally that a propounder of the will has to prove the due and valid execution of the will and that it there are any suspicious circumstances surrounding the execution of the will the propounder must remove the said suspicions from the mind of the Court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties. It is quite true that, as observed by Lord Du Parcq in Harmes v. Hinkson, 50 Cal W N 895 : (A I R 1946 P C 156) “where a will is charged with suspicion, the rules enjoin a reasonable scepticism, not an obdurate persistence in disbelief. They do not demand from the Judge, even in circumstances of grave suspicion, a resolute and impenetrable incredulity. He is never required to close his mind to the truth,” It would sound platitudinous to say so, but it is nevertheless true that in discovering truth even in such cases the judicial mind must always be open though vigilent, cautious and circumspect.” “39. In this connection we would like to add that the learned trial Judge appears to have misdirected himself in law inasmuch as he thought that the proof of the signature of the testatrix on the will raised a presumption that the will had been executed by her. In support of this view the learned Judge has referred to the decision of the Calcutta High Court in Surendra Nath v. Jahnavi Charan, I L R 56 Cal 390 : (A I R 1929 Cal 484). In support of this view the learned Judge has referred to the decision of the Calcutta High Court in Surendra Nath v. Jahnavi Charan, I L R 56 Cal 390 : (A I R 1929 Cal 484). In this case no doubt the Calcutta High Court has held that on the proof of the signature of the deceased or his acknowledgment that he has signed the will he will be presumed to have known the provisions of the instrument he has signed; but Mr. Justice B. B. Ghose, in his judgment, has also added that the said presumption is liable to be rebutted by proof of suspicious circumstances and that undoubtedly is the true legal position. What circumstances would be regarded as suspicious cannot be precisely defined or exhaustively enumerated. That inevitably would be a question of fact in each case. Unfortunately the learned trial Judge did not properly assess the effect of suspicious circumstances in the present case to which we have already referred and that has introduced a serious infirmity in his final conclusion. Incidentally we may also refer to the fact that the appellant obtained a power of attorney from the testatrix on the same day; and that has given rise to the argument that the appellant was keen on taking possession and management of the properties under his control even before the death of the tastatrix. There is also another circumstance which may be mentioned and that is that the Sub-Registrar, in whose presence the document was registered on the same day, has not been examined though he was alive at the date of the trial. On these facts then we are inclined to hold that the High Court was justified in reversing the finding of the trial Court on the question of the due and valid execution of the will.” 12.The learned lower Appellate Court noticed some of the suspicious circumstances and accordingly reversed the judgment passed by the learned trial Court. On these facts then we are inclined to hold that the High Court was justified in reversing the finding of the trial Court on the question of the due and valid execution of the will.” 12.The learned lower Appellate Court noticed some of the suspicious circumstances and accordingly reversed the judgment passed by the learned trial Court. These suspicious circumstances was summed up by the learned lower Appellate court as follows: (i) That since the earlier Will was registered will, the latter Will normally ought to have been registered Will particularly taking into consideration the fact that the testator died less than a week of the execution of this document and (ii) There is no mention of the Will dated 28.10.83 in the diary (Ex.P-2) maintained by Sher Singh during his life time though there is a mention of Will dated 10.10.83 (Ex.P-1). According to the learned lower Appellate Court there is no satisfactory reply to such suspicious circumstances. 13.A bare perusal of the Will dated 28.10.83 Ex.D-1 shows that the name of the testator has rather been squeezed in and is distinct in its wording compared to the rest of the Will. The reasons necessitating the execution of the second Will as borne out from this Will, do not appear to be cogent and convincing. Why this Will was not got registered or written from the same document writer or from any other person especially knowing Urdu which language was known to the testator remains a mystery. The Will is alleged to have been written by a layman on the alleged dictates of the deceased testator, yet surprisingly there is no over-writing or cutting in the said Will. Moreover, it has come on record that the active part has been taken by the father of the beneficiary in the execution of the Will for which again there is no plausible explanation. Accordingly the substantial question of law is answered against the appellants. 14.In view of above discussion, the appeal is dismissed and the judgment and decree dated 6.6.2000 passed by learned District Judge, Hamirpur in Civil Appeal No. 43 of 1992 is upheld and affirmed leaving the parties to bear their own costs.