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2023 DIGILAW 29 (HP)

Dini Devi (deceased) through LRs v. Kirana Devi

2023-01-07

SATYEN VAIDYA

body2023
JUDGMENT : Satyen Vaidya, J. 1. The judgment and decree dated 28.05.2008, passed by learned Additional District Judge, Fast Track Court, Kullu, in Civil Appeal No. 07/2008, whereby judgment and decree dated 06.12.2007, passed by learned Civil Judge, (Sr. Division) Kullu, in Civil Suit No. 68/2006 was set-aside and reversed, has been assailed by way of instant Regular Second Appeal. 2. Parties hereinafter shall be referred to by the same status as they held before learned Trial Court. Appellants herein were the defendants and respondent herein was the plaintiff. 3. The dispute pertains to the estate of one Smt. Tuli Devi alias Tolu alias Nandhi, who had died issueless on 05.02.2006. She had left behind certain immovable properties. Whereas, plaintiff claimed her entitlement to the estate of Smt. Tuli Devi being her natural heir in the line of succession, defendants claimed their rights in the estate of Smt. Tuli Devi on the basis of an unregistered Will dated 20.01.2006. 4. Plaintiff filed Civil Suit No. 68 of 2006 before learned Trial Court, seeking declaration in her favour as owner in possession of the immovable property left behind by Tuli Devi with a further prayer to permanently restrain the defendants from interfering in the ownership and possession of plaintiff over the suit property on the strength of unregistered Will dated 20.01.2006 and the order of mutation dated 10.03.2006 passed by Assistant Collector IInd Grade, Kullu. In alternative, decree of possession was also claimed. Plaintiff made a specific averment in the plaint that Smt. Tuli Devi was not capable of executing a Will by reason of her being an infirm person. Smt. Tuli Devi was stated to be deaf and dumb and also not possessing sound mental capacity to dispose of her property/land. 5. Defendants contested the suit and claimed the Will dated 20.01.2006 of Tuli Devi to be a legal and valid document. It was submitted that Tuli Devi used to live with the defendants, who were her real sisters. She was being looked after by the defendants and Will was executed by Tuli Devi in lieu of services rendered by the defendants to her. As per defendants, Smt. Tuli Devi was of sound and healthy mind and she was able to execute the Will. It was specifically denied that Tuli Devi was deaf and dumb. As per defendants, Tuli Devi was having sound disposing mind. 6. As per defendants, Smt. Tuli Devi was of sound and healthy mind and she was able to execute the Will. It was specifically denied that Tuli Devi was deaf and dumb. As per defendants, Tuli Devi was having sound disposing mind. 6. On the basis of pleadings of the parties, learned Trial Court framed the following issues:- 1. Whether the plaintiff is the sole heir of late Toli Devi. If so, its effect? OPP. 2. Whether the plaintiff is entitled to the relief of declaration as prayed for ? OPP. 3. Whether Smt. Toli Devi during her life time has executed a valid and genuine will dated 20.01.2006 in favour of the defendants. If so, its effect? OPD. 4. Whether the plaintiff has got no cause of action? OPD. 5. Relief. 7. All other issues except issue No. 3 were decided in negative. The suit of the plaintiff was dismissed. Learned Trial Court upheld the legality and validity of Will dated 20.01.2006 executed by Tuli Devi and on such basis held the defendants to have inherited the estate of Smt. Tuli Devi. 8. Plaintiff assailed the judgment and decree passed by learned Trial Court in appeal under Section 96 of the Code of Civil Procedure (for short “CPC”). Learned First Appellate Court on re-appreciation of evidence found that the defendants had not been able to remove or clear the doubts created on account of suspicious circumstances surrounding the Will. The appeal of the plaintiff was accordingly allowed. The judgment and decree passed by learned Trial Court was set aside. Plaintiff was declared to be owner in possession of the suit land and decree for permanent prohibitory injunction restraining defendants from causing interference in the suit land, was passed. 9. The instant appeal has been admitted, vide order dated 10.07.2008, 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 document exhibit DW3/A and as such palpably erroneous and illegal and if so to what effect? 3. 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 document exhibit DW3/A and as such palpably erroneous and illegal and if so to what effect? 3. Whether the respondent is a successor of the late Smt. Tuli Devi under the provisions of Hindu Succession Act, 1956 or whether the appellant No. 1 and late Smt. Baru Devi real sisters of the deceased are the legal heirs/successors of the deceased under the Hindu Succession Act, 1956 or by virtue of Will exhibit DW3/A?” 10. I have heard learned counsel for the parties and have also gone through the record. 11. Learned counsel for the defendants has raised the contention that the execution of Will Ext. DW3/A was duly proved by DW-4, Sh. Hari Singh, who was the attesting witness to the Will. According to learned counsel for the defendants, requirements of Section 68 of the Indian Evidence Act were fully satisfied. He further submitted that there was nothing unnatural in execution of Will by Smt. Tuli Devi in favour of her real sisters, with whom she was residing since long. As per learned counsel for the defendants, there was no suspicious circumstance surrounding the Will and learned First Appellate Court has been swayed by minor contradictions in the statements of witnesses to arrive at the conclusion that the defendants had failed to remove the suspicion surrounding the Will. 12. On the other hand, learned counsel for the plaintiff has submitted that the findings and conclusions drawn by learned First Appellate Court are in conformity with the facts proved on record and law applicable on the issue. He further submitted that learned Trial Court had erred in upholding the validity of Will Ext.DW3/A by ignoring material aspects of the matter. 13. Tuli Devi had three sisters, namely, Juhi Devi, Baru Devi and Dini Devi (Baru Devi and Dini Devi being defendants). Tuli Devi and Juhi Devi were both married to one Nathu Ram. Tuli Devi had no issue, whereas Smt. Juhi Devi had one son named Dabe Ram. Plaintiff is the daughter of Dabe Ram. On death of Nathu Ram, both Tuli Devi and Juhi Devi inherited his estate in equal shares. Tuli Devi and Juhi Devi were both married to one Nathu Ram. Tuli Devi had no issue, whereas Smt. Juhi Devi had one son named Dabe Ram. Plaintiff is the daughter of Dabe Ram. On death of Nathu Ram, both Tuli Devi and Juhi Devi inherited his estate in equal shares. It is the share of Smt. Tuli Devi, which she had inherited from Nathu Ram that became the subject matter of dispute in the present litigation. 14. Plaintiff while being cross examined on behalf of the defendants had admitted that Tuli Devi was residing with the defendants. The Will Ext.DW3/A was executed on 20.01.2006 in the house of defendant Smt. Dini Devi. There is another undisputed fact that Smt. Tuli Devi died on 05.02.2006, within fifteen days of the execution of Will Ext. DW3/A. 15. As noticed above, plaintiff had specifically pleaded that Smt. Tuli Devi lacked mental capacity to dispose of her property, which fact was denied by the defendants. They had specifically asserted that Smt. Tuli Devi had sound disposing mind. 16. The burden to prove Will lies upon the propounder. Such burden is required to be discharged by proving the due execution of the Will in accordance with Sections 67 and 68 of the Indian Evidence Act and simultaneously the Will needs to be proved having been executed while having sound disposing mind, especially when the mental capacity of testator is in question. Section 59 of the Indian Succession Act specifically provides that a valid will can be executed by a person who has attained the age of majority and is having a sound mind. The Section also provides explanations and illustrations as under for amplification of the term “Sound Mind”. Explanation 1.—A married woman may dispose by will of any property which she could alienate by her own act during her life. Explanation 2.—Persons who are deaf or dumb or blind are not thereby incapacitated for making a will if they are able to know what they do by it. Explanation 3.—A person who is ordinarily insane may make a will during interval in which he is of sound mind. Explanation 4.—No person can make a will while he is in such a state of mind, whether arising from intoxication or from illness or from any other cause, that he does not know what he is doing. Explanation 3.—A person who is ordinarily insane may make a will during interval in which he is of sound mind. Explanation 4.—No person can make a will while he is in such a state of mind, whether arising from intoxication or from illness or from any other cause, that he does not know what he is doing. Illustrations (i) A can perceive what is going on in his immediate neighbourhood, and can answer familiar questions, but has not a competent understanding as to the nature of his property, or the persons who are of kindred to him, or in whose favour it would be proper that he should make his will. A cannot make a valid will. (ii) A executes an instrument purporting to be his will, but he does not understand the nature of the instrument, nor the effect of its provisions. This instrument is not a valid will. (iii) (iii) A, being very feeble and debilitated, but capable of exercising a judgment as to the proper mode of disposing of his property, makes a will. This is a valid will. 17. From the plain reading of aforesaid provisions there remains no doubt that the relevant time for judging the soundness of mind is the time when Will was executed and it also refers to a state of mind in which the person knows what he is doing. 18. The question that arises for determination is whether the defendants have been able to discharge the burden? 19. Noticeably, none of the witnesses produced on behalf of the defendants have murmured even a single word about the mental state of testatrix at the time of execution of Will. The witnesses generally stated that the testatrix was neither dumb nor deaf and she was capable of understanding, but, all of them have remained conspicuously silent as to her mental state at most relevant time. None of them stated that at the time of execution of Will, testatrix was able to understand the consequences of her act or in other words she knew what she was doing. This gains importance in the factual background, when in the plaint as well as in her examination-in-chief plaintiff had specifically mentioned about lack of mental incapacity of Smt. Tuli Devi to execute the Will. The plaintiff had filed her examination-in-chief by way of an affidavit Ext. This gains importance in the factual background, when in the plaint as well as in her examination-in-chief plaintiff had specifically mentioned about lack of mental incapacity of Smt. Tuli Devi to execute the Will. The plaintiff had filed her examination-in-chief by way of an affidavit Ext. PW1/A. Paragraphs 4 and 7 of her affidavits are reproduced as under:- “4. That Smt. Tuli Devi alias Tulu Devi alias Nandi Devi was deaf and dumb and as such she was nick named as “NANDHI” which in local dialect means “deaf and dumb person”. She was an imbecile person totally in capable of protecting her interest. It may be added here that Dabe Ram had pre-deceased Smt. Tuli Devi alias Tolu Devi alias Nandi Devi. 7. That during the course of attestation of inheritance mutation of the estate of said Smt. Tuli Devi alias Tolu Devi alias Nandi Devi, defendants Baru Devi and Dini Devi set up an unregistered will dated 20.01.2006 where under they jointly claimed the suit land. Smt. Tuli Devi alias Tolu Devi alias Nandi Devi had never made the aforesaid will and this will has been fabricated and fraudulently procured by the defendants in connivance with their nephew Kamal Chand and the scribe and attesting witnesses of the aforesaid will. This Kamal Chand is a very clever person and he had set his eyes on the suit land. It may be added here that Kamal Chand is the son of the pre-deceased brother of the defendants, namely Bala Ram. Defendants are sisters of Juhi Devi and Smt. Tuli Devi alias Tolu Devi alias Nandi Devi deceased. It may be added here that Smt. Tuli Devi alias Tolu Devi alias Nandi Devi was not capable of making a will by reason of her being an infirm person. She was deaf and dumb. She did not have the mental capacity of disposing off her property/ and by way of will or by any other mode.” Defendants while cross-examining the plaintiff had not disputed her version regarding the lack of mental capacity of Tuli Devi to execute the Will. In this manner, the defendants miserably failed to discharge the onus of proving sound disposing mental condition of the testatrix. 20. Second question that requires adjudication is whether Will Ext DW-3/A was shrouded with suspicion and, if so, whether defendants have been able to remove the same? 21. In Jaswant Kaur Vs. In this manner, the defendants miserably failed to discharge the onus of proving sound disposing mental condition of the testatrix. 20. Second question that requires adjudication is whether Will Ext DW-3/A was shrouded with suspicion and, if so, whether defendants have been able to remove the same? 21. In Jaswant Kaur Vs. Kaur and anr, (1997) 1 SCC 369, Hon’ble Supreme Court observed that when a Will is allegedly shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendants. What generally is an adversary proceeding, becomes in such cases, a matter of the Courts conscience and then, the true question which arises for consideration is, whether, the evidence led by the propounder of the Will is such as would satisfy the conscience of the Court that the Will was duly executed by the testator. 22. In Niranjan Umeshchandra Joshi Vs. Mrudula Jyoti Rao and ors. (2006) 13 SCC 333, Hon’ble Supreme Court has held as under:- “35.We may not delve deep into the decisions cited at the Bar as the question has recently been considered by this Court in B. Venkatamuni v. C.J. Ayodhya Ram Singh & Ors. [ 2006 (11) SCALE 148 ], wherein this Court has held that the court must satisfy its conscience as regards due execution of the Will by the testator and the court would not refuse to probe deeper into the matter only because the signature of the propounder on the Will is otherwise proved. 36. The proof a Will is required not as a ground of reading the document but to afford the judge reasonable assurance of it as being what it purports to be. 37. We may, however, hasten to add that there exists a distinction where suspicions are well founded and the cases where there are only suspicions alone. Existence of suspicious circumstances alone may not be sufficient. The court may not start with a suspicion and it should not close its mind to find the truth. A resolute and impenetrable incredulity is demanded from the judge even there exist circumstances of grave suspicion.” 23. Thus, the Courts, while adjudicating on the validity of Will, have been burdened with duty to scan the facts more minutely than in any other adversarial litigation. The conscience of the Court has to be satisfied as regards the validity and genuineness of Will. Thus, the Courts, while adjudicating on the validity of Will, have been burdened with duty to scan the facts more minutely than in any other adversarial litigation. The conscience of the Court has to be satisfied as regards the validity and genuineness of Will. Though, the factors which may appear to be suspicious in fact situation of one case may not be so in another and vice-a-versa. Each and every case, for the purposes of suspicious circumstances, has to be decided on its peculiar facts, however, any fact, that directly or indirectly relates to the question of soundness of mind of the testator/ testatrix of the Will, should catch the attention of the adjudicator and if any such fact reasonably appears to be improbable by the standard of prudent man, such fact can be taken to be suspicious circumstances surrounding the execution of Will. 24. In search for answer to second question, as posed above, again the status of mental faculty of testatrix at the time of execution of Will Ext. DW-3/A gains relevance. As held above, defendants have failed to prove that the testatrix was having sound disposing mind at the time of execution of Will. On the other hand the statement of plaintiff rendered by her on oath remained unchallenged. 25. In addition the existence of frail health of testatrix at the time of execution of Will has been established. It has been proved that she was a patient of epilepsy and was also bedridden. The weak physical condition by itself may not be a circumstance to raise questions about the mental capacity of a person to dispose his/her property by testamentary succession, however, in the facts of the instant case, the physical condition of Tuli Devi becomes relevant for the reasons firstly, that defendants have not discharged their burden and secondly, she died within fifteen days of the execution of the Will. 26. As noticed above, the fact that the testatrix was not keeping good health and was bed ridden on the date of alleged execution of Will and she died within fifteen days thereafter is sufficient to prick the conscience of the Court to peep deep into the facts. 27. In Murthy and Ors. Vs. C. Saradambal and Ors. 2022 (2) Civil Court Cases 209 (SC), Hon’ble Supreme Court observed as under:- “33. We shall now discuss each of the aforesaid aspects. 27. In Murthy and Ors. Vs. C. Saradambal and Ors. 2022 (2) Civil Court Cases 209 (SC), Hon’ble Supreme Court observed as under:- “33. We shall now discuss each of the aforesaid aspects. (a) The date of the will (Ex-P1) is 04th January, 1978. The testator E. Srinivasa Pillai died on 19th January, 1978, within a period of fifteen days from the date of execution of the will. Even on reading of the will, it is noted that the testator himself has stated that he was sick and getting weak even then he is stated to have “written” the will himself which is not believable. It has been deposed by PW2, one of the attestors of the will, that the will could not be registered as the testator was unwell and in fact, he was bedridden. It has also come in evidence that the testator had suffered a paralytic stroke which had affected his speech, mobility of his right arm and right leg. He was bedridden for a period of ten months prior to his death. Taking the aforesaid two circumstances into consideration, a doubt is created as to whether the testator was in a sound and disposing state of mind at the time of making of the testament which was fifteen days prior to his death. (b) No evidence of the doctor who was treating the testator has been placed on record so as to prove that the testator was in a sound and disposing state at the time of the execution of the will. (c) The fact that the testator died within a period of fifteen days from the date of the execution of the will, casts a doubt on the thinking capacity and the physical and mental faculties of the testator. The said suspicion in the mind of the Court has not been removed by the propounder of the will i.e. first plaintiff by producing any contra medical evidence or the evidence of the doctor who was treating the testator prior to his death.” 28. It can also not be ignored that DW-3 Prem Chand, who allegedly scribed the Will was not a Document Writer. It was also not the case of the defendants that DW-3 had ordinarily been indulging in writing the documents. This witness himself also did not say that he had any experience in scribing the Wills. It can also not be ignored that DW-3 Prem Chand, who allegedly scribed the Will was not a Document Writer. It was also not the case of the defendants that DW-3 had ordinarily been indulging in writing the documents. This witness himself also did not say that he had any experience in scribing the Wills. In such circumstances, it is neither understandable nor explained as to why only DW-3 was called to scribe the Will. Sh. Prem Chand while appearing as DW-3 has deposed in his cross- examination that he knew DW-2 Kamal Chand since his birth. Sh. Kamal Chand has appeared as special attorney of defendants as DW-2. He was also present at the time of execution of Will. Record reveals that during the pendency of the present litigation, DW-3 Prem Chand along with another has now inherited the suit property from original defendants, so he is the ultimate beneficiary. The role of Sh. Kamal Chand, keeping in view the facts and circumstances of the case, cannot be said to be beyond suspicion of being an interested person. 29. At this stage, it is also noticed that none of the defendants had appeared in the witness box. They had not come forward to discharge the onus to prove the mental faculty of testatrix at the time of execution of the Will. Admittedly, both the defendants were present at the time of execution of the Will and defendant Dini Devi had played an active role in its execution by inviting the scribe as well as attesting witnesses. The abstention of defendants from making deposition before the court also appears to have been devised to avoid cross-examination. They were the best persons to depose about the mental health of testatrix and as such their conduct not only is sufficient to draw adverse inference against defendants but also is relevant as far as removal of suspicions is concerned. 30. DW-2 while appearing as witness did not say anything regarding the mental faculty of testatrix except that Tuli Devi was not deaf and dumb and rather was a wise lady able to talk and understand loss and profit and future consequences. Such statement of DW-2 explained the physical and mental state of the testatrix generally. It was definitely not referable to the time when Will was purportedly executed. 31. Such statement of DW-2 explained the physical and mental state of the testatrix generally. It was definitely not referable to the time when Will was purportedly executed. 31. Additionally, the discrepancy noticed by learned First Appellate Court in the statements of witnesses produced by defendants cannot be said to be insignificant. It was noticed that according to scribe of the Will, DW-3, he had firstly, prepared the rough draft of the Will and thereafter the final Will was scribed on the basis of rough draft. DW-4 the attesting witness to the Will, though, stated that Will was scribed in his presence, but denied knowledge about the rough draft of the Will. Further, DW-2 Kamal Chand when confronted with the factum regarding rough draft of the Will stated that the rough draft was subsequently torn by the scribe, whereas the scribe DW-3 stated that he had kept the rough draft in his bag. 32. In light of above analysis, there is no hesitation to hold that the execution of Will Ext DW-3/A was shrouded with suspicious circumstances and defendants have failed to remove them. Though the testatrix was being looked after by the defendants and DW-2, Kamal Chand, but that does not necessarily imply that Tuli Devi really intended to bequeath her estate in their favour. Rather, in the given circumstances, the defendants ought to have been more conscious to satisfy the conscience of the Court. 33. Learned Trial Court had upheld the validity of the Will only on getting satisfied about the fulfillment of requirement of Section 68 of the Indian Evidence Act. The remaining mandatory requirement as to legal proof of a Will was clearly left out. 34. In result, the substantial questions of law, as noticed above, are decided accordingly. The judgment and decree dated 28.05.2008, passed by learned Additional District Judge, Fast Track Court, Kullu, in Civil Appeal No. 07/2008, is affirmed as the defendants have failed to prove that the Will Ext. DW3/A was legally and validly executed document. 35. The appeal of the appellants/defendants is accordingly dismissed, so also the pending miscellaneous application, if any.