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CASE NO.: Appeal (civil)  2965 of 2008

PETITIONER: Anil Kak

RESPONDENT: Kumari Sharada Raje & Ors

DATE OF JUDGMENT: 24/04/2008

BENCH: S.B. Sinha & V.S. Sirpurkar

JUDGMENT: J U D G M E N T  REPORTABLE

CIVIL APPEAL NO.     2965             OF 2008 [Arising out of  SLP (Civil) No. 2791 of 2006] WITH CIVIL APPEAL NOs. 2974,2975,2977   OF 2008 [Arising out of  SLP (Civil) Nos. 13865, 5831 and 9080 of 2006]

S.B. SINHA, J :          1.      Leave granted.

2.      These appeals are directed against a judgment and order dated  18.05.2001 passed by a learned Single Judge of the Madhya Pradesh High  Court at Indore dismissing two applications for grant of probate/ letters of  administration with the copy of the annexed Will in respect of the assets of  Late Maharani Sharmishthabai Holkar (hereinafter called as "the testatrix"),  the widow of Late Maharaja Tukoji Rao Holkar, former ruler of the  erstwhile Holkar State.

3.      Maharaja Tukoji Rao Holkar died on 21.05.1978 leaving behind four  daughters, Sharada Raje Holkar, Sita Raje Ghatge, Sumitra Raje Dalvi and  Sushila Raje Holkar.  He had executed a Will on 27.11.1942 bequeathing all  his properties in favour of the testatrix.  Indisputably, a letter of  administration had been granted in favour of the testatrix in respect of the  Will dated 27.11.1942 made in her favour by her husband.  Apart from the  properties inherited by the testatrix from her husband, she had also her own  Stridhan properties.  She purported to have executed a Will on or about  23.08.1978 in favour of Kumari Sharada Raje.  She, however, allegedly  executed another Will on or about 4.11.1992, by reason whereof, she  purported to have revoked the Will executed by her on 23.08.1978 and/ or  the Codicil.  She appointed one K.R.P. Singh and the appellant Anil Kak as  joint executors.  She also appointed Mr. T.N. Unni, her Chartered  Accountant to assist the executors in administering and distributing the  estate and executing the said Will.  She categorized her properties in two  parts, viz., Part A and Part B.   

       Part A consisted of those properties which were bequeathed in her  favour by her husband and Part B consisted of properties other than those  specified in Part A.  By reason of the said Will, the said two sets of the  properties were to be administered separately.  Whereas Part A properties  were bequeathed in favour of four daughters, Part B properties were sought  to be bequeathed in favour of her four grand children.

4.      Indisputably, the said Will was purported to have been attested by one  Gita Sanghi, who examined herself as PW-5 and one Baljit Bawa, who was

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not examined.  The Will contained a few appendices.  Whereas the attesting  witnesses purported to have put their signatures in each page of the Will,  they did not put any signature on the appendices to the said Will.

5.      With a view to appreciate the relationship of the parties, we may  notice the family tree, which is as under:   

       Appellant Anil Kak is the husband of Gangesh Kumari and son-in-law  of Sumitra Raje Dalvi.  Appellant Arjun Kak is son of the appellant Anil  Kak.   

6.      Before proceeding further, we may notice that whereas the application  for grant of Letters of Administration with a copy of the Will dated  23.08.1978 annexed, filed by Kumari Sharada Raje was marked as Suit No.  2 of 1998; Anil Kak and Kumar Rampratap filed an application for grant of  probate in their capacity as executors appointed under the said Will dated  4.11.1992, which was marked as Suit No. 3 of 1998.  Both the suits were  directed to be consolidated.  The parties examined their witnesses in both the  suits by adducing common evidence.   

7.      Whereas the Will dated 23.08.1978 was a very short document, the  Will dated 4.11.1992 was a detailed one running into six typed pages besides  three long appendices and two statements containing her investments in  various shares within and outside the country.

8.      A learned Single Judge of the High Court by reason of the impugned  judgment refused to grant probate and/ or letters of administration in respect  of both the Wills.    9.      Whereas Civil Appeals arising out of SLP (C) Nos. 2791, 5831 and  9080 of 2006 have been filed against that part of the judgment whereby and  whereunder grant of probate in respect of the Will dated 4.11.1992 has been  rejected, Civil Appeal arising out of SLP (C) No. 13865 of 2006 was filed in  respect of the Will dated 23.08.1978.

10.     The Letters Patent Appeals were filed against the judgment of the  learned Single Judge of the High Court by both the parties which have been  dismissed by the Division Bench of the High Court as not maintainable.

11.     The learned counsel appearing for both the parties, have addressed us  on the merit of the matter.  We are not considering the correctness or  otherwise of the judgment of the Division Bench of the High Court holding  the Letters Patent Appeals to be not maintainable, nor it is necessary for us  so to do.   

12.     We may also at the outset place on record that no argument has been  advanced in regard to the findings of the learned Single Judge of the High  Court refusing to grant letters of administration in respect of the Will dated  23.08.1978 of the testatrix.   

13.     The learned Single Judge framed the following issues:

"(1)    Whether the alleged Will with its appendices  dated 4.11.1992 was duly executed by late  Maharani Sharmishthabai Holkar out of her free  will, while she was in sound disposing state of  mind; (2)     Whether the Will dated 4.11.1992 has been  acted upon by the parties, if so, its effect; (3)     Whether late Maharani Sharmishthabai  Holkar had executed only one Will, i.e., dated  23.8.1978 out of her free will while she was in

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sound disposing state of mind;"   14.     The learned Single Judge in its judgment inter alia held that the  execution of the Will dated 4.11.1992 has not been proved as:

(i)     Appendices were not signed by the attesting witnesses; (ii)    The  Will remained in the custody of Anil Kak for a long time; (iii)   Anil Kak did not examine himself as a witness; (iv)    As an unequal division of the properties described in Part B of the  Will effected, there existed suspicious circumstances. (v)     Anil Kak took part in preparation of the Will

15.     Mr. Arun Jaitley and Mr. R.F. Nariman, learned senior counsel  appearing on behalf of the appellants, in support of the appeal, submitted:

(i)     The High Court committed a serious error in passing the impugned  judgment insofar as it failed to take into consideration that the  testatrix had divided her properties equally amongst her four  daughters as also her grand children and, therefore, there did not  exist any circumstance to suspect the genuineness of the Will. (ii)    The High Court committed a serious factual error insofar as it  proceeded on the premise that Part B assets were divided only  amongst three grand children; whereas in fact fourth grand child  Vijayendra Ghatge was also a beneficiary under the Will. (iii)   Appendices were annexed with the Will for the purpose of  bringing out clarities in regard to the division of the properties. (iv)    Medical certificates were annexed to the Will go to show that the  testatrix had a sound disposing mind, and, thus, the burden of proof  was on the caveators to prove contra. (v)     The High Court committed a serious error insofar as it failed to  take into consideration the effect and purport of Sections 64, 87  and 103 of the Indian Succession Act (for short "the Act").

16.     Mr. S.B. Upadhyay, learned senior counsel appearing on behalf of the  respondents, on the other hand, urged:

(i)     The Will dated 4.11.1992 was surrounded by suspicious  circumstances as one of the executors was husband of one of the  grand children and son-in-law of one of the daughters, whose  family in turn was the beneficiary of the maximum number of  properties, viz., 27 out of 35 items.   (ii)    In view of a clear finding of fact arrived at by the High Court that  the appellant Anil Kak had not only taken away the Will, he had  also not disclose thereabout to the near relatives for a long time, is  also a pointer to show that the execution of the Will by the testatrix  was doubtful. (iii)     Appendices attached to the Will having been brought into  existence at a later date, the provisions contained in Sections 64,  87 and 103 of the Act will have no application, in the instant case.

17.     Testatrix at the time of execution of the Will was 85 years old.  She  was owner of substantial properties.

18.    Although all the four daughters of the testatrix were the beneficiaries  of the properties described in Part A of the Will, detailed directions as to  how the said estate is to be administered had been made therein.  Even in  relation to the criteria as regards distribution of assets including the manner  in which the tax and other liabilities are to be made and how the investments  with banks and others are to be encashed, if necessary to be encashed have  been stated.  More importantly, however, the shares in the companies were  to be held in the joint names of the testatrix as also the joint executors.  The  executors were to hold the same in trust.  Whether the said direction had  been carried out and, if so, how and in what manner is not known.   Executors had also been granted express power to recall and repossess the  jewellery, money or money’s wroth possessed by any beneficiary of the Will

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or legatee but ownership of which was not conferred on them for the purpose  of meeting government dues, liabilities or expenses.    

19.     We may at this stage notice a few stipulations made in the said Will   dated 4.11.1992, which are as under:

"B-4. The Executors will distribute the shares in  companies as detailed in Appendix ’B’ together  with the rights accruing thereto. B-5.    The jewellery belonging to me other than  described in Part ’A’ have been divided and  earmarked in different names as per Appendix ’C’.   I bequeath the items of my jewellery accordingly. B-6. I bequeath my shares in companies and  deposit with the Seattle Bank in U.S.A. in favour  of the respective nominees/ joint-holders as per  Appendix.  All expenses, liabilities, taxes, fees,  etc. in realizing and distributing the said assets  shall be borne proportionately by the nominees/  joint-holders."   20.     The Will was purported to have been executed in presence of one  Shanta Kumari Jain, a notary.  Two medical certificates; one issued by Dr.  S.K. Mukherjee and the other by Dr. Normal Sharma, were also annexed  thereto.

21.     It is not denied or disputed that the appellant Anil Kak took an active  part in the matter of preparation and execution of the Will.   

       For proving the said Will, the appellants examined one of the  executors, viz., Kumar Rampratap Singh as PW-1.  He was not aware of the  contents of the Will.  It was handed over to him on 10.09.1993 by Shri T.N.  Unni (PW-6), Chartered Accountant.  It was in turn handed over to Anil  Kak.  The said Will was not executed in his presence.  He was not even  aware of the execution thereof.

22.     Shanta Kumari Jain, Notary, Geeta Sanghi, one of the attesting  witnesses and T.N. Unni examined themselves in support of the case of the  appellants.   

       According to T.N. Unni, he had drafted only pages one to six of the  Will.  The said Will was purported to have been executed at his residence at  Indore.  Geeta Sanghi and Baljeet Bawa were the attesting witnesses.  Baljit  Bawa, as noticed hereinbefore, was not examined.  Geeta Sanghi sought to  prove the testatrix’s signature as also her own signatures on the Will.

23.     It is beyond any doubt or dispute that none of the attesting witnesses  had put their signatures on appendices A to C.  Appendices A to C contain  the list of jewelleries in great details and which jewellery should be given to  which grand daughter.  The Wealth Tax assessment for the year 1992-93  was also annexed by way of a statement showing the market value of the  shares of the companies registered in India.  Another appendix specified that  ACC and TISCO shares were to be equally divided amongst four daughters,  viz., as per their average market value on the date of latest Wealth Tax  assessment.   

       A statement showing the market value of the shares of the companies  registered in U.K. as per the wealth tax assessment for the year 1992-93 was  also annexed.  In regard to the division thereof, it is stated that "each  company’s share is divided equally amongst my four daughters".  Names of  the daughters had again been mentioned therein.  Statement showing the  value of quoted shares as per wealth tax assessment for the year 1992-93 had  also been appended, the division whereof were to be done in the following  manner:

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"The shares in each company will be divided into  six equal divisions.  My grand children Gangesh  Kumari, Jagat Bingley and Ashish Dalvi will get  one Division each and my great grand children are  bequeathed three remaining shares as follows \026  Children of Gangesh Kumari get one division,  Children of Jagat Bingley get one division,  children of Vijayendra Ghatge get one division.  In  case Ashish Dalvi is married and has children  before my demise, the shares in each company will  be divided into seven equal divisions and  distribution remains the same with the additional  division going to the children of Ashish Dalvi."   24.     It also contained bequeaths of jewellery from the personal list of the  testatrix as valued on 31st March, 1992 done by M/s. J.R.M. Bhandari.  It  again contained the statement showing the value of quoted shares in respect  of certain companies and the mode and manner in which division thereof  should be carried out.

25.     It has furthermore been admitted that those appendices did not see the  light of the day when the Will was executed by the testatrix and attested and  notarised.

26.     It has furthermore not been disputed that whereas Gangesh Kumari,  Jagat Bingley and Ashish Dalvi are children of Sumitra Raje Dalvi, the only  other grand child of testatrix Vijayender Ghatge is son of Sita Raje Ghatge.     From the list containing the details of the jewellery, it appears that Vijendera   Ghatge and family had been given one semi rectangle clip set with diamond  and ruby cabochon and two buttons studded with diamonds and pearls set in  gold.  Umika Ghatge  had also been given one square diamond ring and one  bracelet watch set with diamonds ruby and emerald.   

        It furthermore appears that Arjun Kak is also a beneficiary under the  Will.

27.     The High Court made a distinction between the documents which are  mere appendices to an otherwise complete Will and those which are part and  parcel of the Will forming its integral part.   

28.     From what has been noticed hereinbefore it is clearly evident that  division has not been made per stripe or per capita but by species.  Each one  of the jewelleries which was to be bequeathed to each of the beneficiary  thereunder had specifically been specified.  Moreover, from the valuation  report, it would appear that the respective distribution purported to have  been made in terms of the appendices would not make them of equal value  or nearabout which was the desire of the testatrix.

29.     We may now notice the provisions of Sections 64, 87 and 103 of the  Act whereupon strong reliance has been placed by the learned counsel  appearing for the appellants.

       Section 64 of the Act reads as under:

"64. Incorporation of papers by reference \026 if a  testator, in a will or codicil duly attested, refers to  any other document then actually written as  expressing any part of his intentions, such  document shall be deemed to form a part of the  will or codicil in which it is referred to."

30.     The rule of incorporation by reference is well-known.  One document  is incorporated by reference in another when it is referred to, as if it would  form an integral part thereof.  [See Sarabjit Rick Singh v. Union of India

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2007 (14) SCALE 263]

31.     Principle of incorporation by reference was evolved so as to avoid  unnecessary repetition of the same documents again and again in different  parts of the original document.  For invoking the said principle, a document  must be in existence.  It cannot be brought into existence later on.  The  executor of a document must know what the other document which he  intends to incorporate in the Will contains.   

       This aspect of the matter has been considered by the House of Lords  in William Henry Singleton v. Thomas Tomlinson and others [1878 (3) AC  404], wherein it was held:

"The question which arose in the Court below was  whether in construing the will and in determining  what the meaning of the testator was, this schedule  could be looked at; and, my Lords, on that point it  will be quite sufficient if I refer to the two  propositions which were laid down, and which  indeed were not challenged by any of the counsel  at your Lordships’ Bar.  It was said that there are  certain cases in which, although a document is not  admitted to probate, still it may be referred to in a  will in such a way as that you are entitled to look  at the document, because it is virtually  incorporated in that which is admitted to probate;  and the two propositions which were laid down as  the tests of the case in which a document under  those circumstances could be looked at were these:  first, that it must be clearly identified by the  description given of it in the will; and secondly,  that it must be shown to have been in existence at  the time when the will was executed."

       [See also Theobald on Wills, Sixteenth Edition, pages 59-61]

       In Halsbury’s Laws of England, Fourth Edition, Paragraph 817 at  pages 433-34, it is stated:

"Incorporation of documents: In certain cases  documents referred to in a testator’s will or codicil,  though not themselves duly executed, may be  incorporated in the will and included in the  probate[ Re Mardon [1944] P 109 at 112, [1944] 2  All ER 397 at 399.] Such a document must be  strictly identified with the description contained in  the will; but extrinsic evidence is admissible for  the purpose of identification [See for instance,  Allen v. Maddock (1858) I I Moo PCC 427; Re  Almosnino (1859) I SW & TR 508]. The reference  must be to a document as an existing document [  Re Mordon ] and not to one which is to come into  existence at a future date[Re Sunderland (1866)  LR I P & D 198; Re Reid (1868) 38 LJP & M I;  Durham v. Northen [1895] P 66; Re Smart [1902]  P 238. Certainty and identification is the very  essence of incorporation: Croker v. Marquess of  Hertford (1844) 4 Moo PCC 339 at 366, per Dr.  Lushington.] The onus of proving the identity of  the document and its existence at the date of the  will lies upon the party seeking to establish it  [Singleton v. Tomlinson], but the court will draw  inferences from the circumstances surrounding the  execution of the will.

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If the will prima facie refers to the document as an  existing document, then, even though it appears  from the surrounding circumstances, namely the  date of the signing of the document, that it was not  in existence at the date when the will was  originally executed, the document may  nevertheless be admitted to probate, since the will  is treated as speaking from the date of its re-  execution by the codicil; but if the will, treated as  speaking at the date of the codicil, still in terms   refers to a future document, the document cannot  be admitted to probate even though it was in  existence at the date of the codicil. [ Re Smart [1902] P 238]."

32.     Section 87 of the Act provides that testator’s intention to be  effectuated as far as possible, stating:

"87. Testator’s intention to be effectuated as far as  possible. \027The intention of the testator shall not  be set aside because it cannot take effect to the full  extent, but effect is to be given to it as far as  possible."  

33.     In a case of this nature, however, in our opinion, Section 87 of the Act  will have no application.

34.     If the appendices formed an integral part of the Will and in their   absence the Will was not complete, then the intention of the testator cannot  be effectuated.  A distinction must be made between an incomplete Will and  a complete Will although intention of the testator cannot be effectuated.   

       The testator’s intention is collected from a consideration of the whole  Will and not from a part of it.  If two parts of the same Will are wholly  irreconcilable, the court of law would not be in a position to come to a  finding that the Will dated 4.11.1992 could be given effect to irrespective of  the appendices.  In construing a Will, no doubt all possible contingencies are  required to be taken into consideration.  Even if a part is invalid, the entire  document need not be invalidated, only if it forms a severable part. [See  Bajrang Factory Ltd. and Another v. University of Calcutta and Others  (2007) 7 SCC 183]

       In Halsbury’s Laws of England, Fourth edition, Volume 50, page 332- 33, it is stated:  

"462. Leading principle of construction: The  leading principle of construction which is  applicable to all wills without qualification and  overrides every other rule of construction is that  the testator’s intention is collected from a  consideration of the whole will taken in connection  with any evidence properly admissible, and the  meaning of the will and of every part of it is  determined according to that intention."

       In P. Manavala Chetty and five Ors. v. P. Ramanujam Chetty and Anr.  [(1971)1MLJ127] , a single judge of the Madras High Court on the duty of  the court of construction to give  intention to the wishes of the testator  opined:

"It is the obvious duty of the Court to ascertain and  give effect to the true intentions of the testator and  also avoid any construction of the will which will  defeat or frustrate or bring about a situation which  is directly contrary to the intentions of the testator.

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At the same time, it must be borne in mind that  there are obvious limits to this doctrine that the  Court should try to ascertain and give effect to the  intentions of the testator. The law requires a will to  be in writing and it cannot, consistently with this  doctrine, permit parol evidence or evidence of  collateral circumstances to be adduced to  contradict or add to or vary the contents of such a  will. No evidence, however powerful it may be,  can be given in a Court of construction in order to  complete an incomplete will, or project back a  valid will, if the terms and conditions of the  written will are useless and in-effective to amount  to a valid bequest, or to prove any intention or  wish of the testator not found in the will. The  testator’s declarations or evidence of collateral  circumstances cannot control the operation of the  clear provisions of the will. The provisions of the  Indian Succession Act referred to earlier indicate  the limits of the Court’s power to take note of the  testator’s declarations and the surroundings  circumstances, i.e., evidence of collateral  circumstances."                                                 [Emphasis Supplied]

       As regards two inconsistent wills, with the latter being an incomplete  one, the judgment of Bagnall, Re [[1948] W.N. 324] necessitates one  discussions. In the said case, the testatrix had made two wills, one in 1936  and the other in 1943. In the first will, she gave certain legacies and disposed  of the residue. In the second will, she provided legacies of the same amounts  and in favour of the same persons but did not dispose of the residue. The  second will was not described as a codicil to the first, nor did it expressly  revoke it, but it was manifestly incomplete, ended without any stop and in  the middle of a sentence and was signed by the testator at the bottom of the  page leaving a large gap between the last words and the signature. Probate  was granted of both wills.  It was held:

(i)     Though the second will was far removed in date from the first and  was not called the "last will", it was intended, at any rate so far as  it went, to take the place of the first will, and, therefore, the  legacies given by the second will were in substitution so far as they  went for those in the first; (ii)     An examination of the two documents, did not support the  conclusion that the intention of the testatrix, when she executed the  second will, was entirely to supersede the earlier instrument, and,  consequently, the first will effectively disposed of the residue, and  one legacy given in the first will but not repeated in the second will  was not revoked by the latter.

       In the judgment, the case of Kidd v. North [ 16 L.J. Ch. at p. 117] was  referred to. There, an incomplete testamentary paper containing a legacy of  500 Pounds in favour of one Bridgett Bibby was admitted to probate with a  will and three codicils of prior date and the question was whether this legacy  was in substitution for a larger sum given by the first codicil. Lord  Chancellor, held, thus:

"When the testamentary papers of which probate is  granted appear to give several legacies to the same  persons, it is often extremely difficult to ascertain  what was the real intention of the testator,; and to  attain that object as far as possible certain rules  have  been laid down and nice distinctions taken;  but such rules and distinctions are applicable only  to cases in which there is no internal evidence of  intention; for where there that is to be found; it

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must prevail. Such is the present case; for I  conceive it to be clear that the last testamentary  paper was intended to be in substitution for all the  others, and to supersede the provisions contained  in them. It is indeed incomplete; but the  ecclesiastical court having granted probate of it, no  question can be made as to its being testamentary  and operative as such so far as it goes. It is  reasonable to give such effect to the incomplete  instrument, if it contains within itself evidence of  an intention to make an entirely new disposition;  and for that purpose to undo all that had been done  before; but if the new disposition applies only to  part of the subject matter, the instrument being  upon the face of it incomplete, and not applying to  other parts, it is consistent with the principle  to  give effect to this intention, so far as it is  expressed, but to consider the first disposition as  operative, so far as no substituted disposition is  provided in its place."

35.     But, the aforementioned principle cannot be applied in the instant case  inasmuch as appendices appended to the Will clearly specify as to how and  in what manner the intention of the testatrix to divide her properties equally  amongst her daughters and/ or her grand children was to be implemented.

       It is not a case where a general division was to be made leaving the  manner of application to the executors.  The Will refers to appendices.  Once  it refers to the appendices indicating that the distribution shall be in terms  thereof, it is difficult to comprehend as to how without the same, the Will  can be said to be a complete one so as to effectuate the intention of the  testator.  The intention of the testator in other words must be found out from  the entire Will.  It has to be read as a whole.  An endeavour should be made  to give effect to each part of it.  Only when one part cannot be given effect  to, having regard to another part, the doctrine of purposive construction as  also the general principles of construction of deed may be given effect to.  In  the instant case, the document is one.  It is inseparable.  Whereas the  principal document provides for the broad division, the principles of division  laid down therein would be followed if the appendices are to be taken  recourse to.  If the principles of equality as has been suggested by the  learned counsel is to be given effect to, it was expected that the testatrix  intended to confer the same benefit or the benefit having same value or  nearabout to be conferred on each of the legatees.   

       In effect and substance, the purported directions contained in the  appendices which did not see the light of the day on the date of execution of  the Will, make the application of the directions of the testatrix wholly  impossible to be carried out.  It is in that sense the provisions of Section 87  of the Act are applicable.

36.     The High Court has assigned good and cogent reasons in support of its  judgment for not accepting the evidence of Mr. Unni.  Mr. Unni admitted  that the appendices were to be brought by Anil Kak.  If the same had not  been brought to her on the day the Will was executed, we wonder how the  testatrix had knowledge thereabout.  It now almost stands admitted that the  appendices did not form part of the Will at the time of its purported  execution.  If the Will was incomplete the question of its proving the  execution does not arise.  An integral part of the document for the purpose of  satisfying the tests laid down under Section 63(1)(c) of the Act and Section  68 of the Evidence Act must mean a complete document.

37.     In "Jarman on Wills", Volume 1, Eight Edition (Sweet & Maxwell) at  Pages 145-46 on Incomplete Wills, it is stated:

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"XII.- Incomplete Wills: Cases sometimes  occurred under the old law, and may possibly arise  under the present, in which something more than  mere compliance with legal requirements was  made necessary to the efficacy of the will by the  testator himself, he having chose to prescribe to  himself a special mode of execution; for in such  case, if the testator afterwards neglects to comply  with the prescribed formalities, the inference to be  drawn from these circumstances is, that he had not  fully and definitely resolved on adopting the paper  as his will [ Accordingly, under the old law, which  did not require wills of personalty to be  authenticated by the testator’s signature or by  attestation, the Prerogative court in several  instances refused to probate of wills, concluding  with the words "In Witness", etc , but not signed:  Abbot v. Peters, 4 Hagg. 380. Questions as to the  testamentary validity of incomplete papers rarely  occur in practice, now that authentication of  signature and attestation are essential to such  validity.] The presumption is slight where the  instrument is duly signed and attested, and perfect  in all other respects, but must apparently be  rebutted by some evidence before it can be  admitted to probate.[ Per Sir J. Nicholl in Beaty v.  Beaty. See also 1 Wms. Exors., Pt. 1., Bk. II , Ch.  II, s.2.].

But this doctrine in favour of imperfect papers  obtains only where the defect is in regard to some  formal act, which the testator has prescribed as  necessary for the authentication of his will, and not  where it applies to  the contents of the instrument;  for, if in its actual state the paper contains only a  partial disclosure if the testamentary scheme of the  deceased, it necessarily fails of effect, even though  its completion was prevented by circumstances  beyond his control [ Montefiore v. Montefiore, 23  Ad. 354; see also Griffin v. Griffin, 4 Ves. 197, n.  This case afforded two sufficient grounds for the  rejection of the paper; first, that it was not the  whole will; and secondly, that its completion was  not prevented by inevitable circumstances].

In short, the presumption is always against a paper  which bears self-evident marks of being  unfinished; and it behoves those who assert its  testamentary character distinctly to show, either  that the deceased intended the paper in its actual  condition to operate as his will, or that he was  prevented by involuntary accident from  completing it [Reay v. Cowcher, 1 hagg. 75, 2 ib.  249; Wood v. medley, 1 ib. 661; In b. Robinson,  ib. 643; Bragge v. Dyer, 3 hag. 207; Gillow v.  Bourne, 4 Hagg. 192. And to the contrary  presumption in favour of a regularly executed and  apparently completed will, vide Shadbolt v. Wagh.  570; Blewitt v. Blewitt, 4 Hagg. 410.]"

        To the same effect is Alexander on "Commentaries on Wills" Vol. I,  Exceution at page 193-94 which states:

"prior to the Statute of Wills of 1 Vict., ch. 26, and  the American statutes, which require the same

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formalities in the execution and attestation of wills  of personalty as in devises of realty, the courts  allowed imperfectly executed testamentary  writings to take effect as nuncupative dispositions  of personalty, where it appeared that the testators  intended them to operate in  the form in which they  were found, and that the failure to completely  execute them arose for some reason other than a  purpose to abandon."

       It was further stated:

"But the courts always viewed such instruments  with suspicion and, in proportion to the  incompleteness of the document, demanded a  higher degree of evidence\005But the more modern  day doctrine is that a nuncupative will can be made  only by spoken words or by signs and that, if the  words be reduced to writing by the testator or by  someone else at his request, they lose their  nuncupative character.  And it seems that under the  modern statutes and rulings, even verbal  instructions for drawing up a written will, although  spoken in the presence of the proper number of  witnesses, can not be admitted to probate as a  nuncupative will."  

38.     Section 103 of the Act speaks of a residuary bequest but the same  evidently has no application in this case.   

       The execution of the Will becomes impossible both in respect of the  properties described in Part A and Part B.   

39.     Furthermore, the Will is surrounded by suspicious circumstances.

       The execution of a Will does not only mean proving of the signatures  of the executors and the attesting witnesses.  It means something more.  A  Will is not an ordinary document.  It although requires to be proved like any  other documents but the statutory conditions imposed by reason of Section  63(c) of the Act and Section 68 of the Indian Evidence Act cannot be  ignored.   

       In B. Venkatamuni v. C.J. Ayodhya Ram Singh & Ors. [2006 (11)  SCALE 148], this Court held:

"It is, however, well settled that compliance of  statutory requirements itself is not sufficient as  would appear from the discussions hereinafter  made."

       It was observed:

"Yet again Section 68 of the Indian Evidence Act  postulates the mode and manner in which proof of  execution of document which is required by law to  be attested stating that the execution must be  proved by at least one attesting witness, if an  attesting witness is alive and subject to the process  of the Court and capable of giving evidence."

       Yet again in Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao &  Ors. [2006 (14) SCALE 186], this Court held: "Section 63 of the Indian Succession Act

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lays down the mode and manner of execution of an  unprivileged Will.  Section 68 of the Indian  Evidence Act postulates the mode and manner of  execution of document which 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.   The burden of proof that the Will has been validly  executed and is a genuine document is on the  propounder.  The propounder is also required to  prove that the testator has signed the Will and that  he had put his signature out of his own free will  having a sound disposition of mind and understood  the nature and effect thereof.  If sufficient evidence  in this behalf is brought on record, the onus of the  propounder may be held to have been discharged.   But, the onus would be on the applicant to remove  the suspicion by leading sufficient and cogent  evidence if there exists any.  In the case of proof of  Will, a signature of a testator alone would not  prove the execution thereof, if his mind may  appear to be very feeble and debilitated.  However,  if a defence of fraud, coercion or undue influence  is raised, the burden would be on the caveator.   [See Madhukar D. Shende v. Tarabai Shedage  (2002) 2 SCC 85 and Sridevi & Ors. v. Jayaraja  Shetty & Ors. (2005) 8 SCC 784]. Subject to  above, proof of a Will does not ordinarily differ  from that of proving any other document."

       [See also Adivekka and Others v. Hanamavva Kom Venkatesh (Dead)  By LRs. and Another (2007) 7 SCC 91]

40.     Whereas execution of any other document can be proved by proving  the writings of the document or the contents of it as also the execution  thereof, in the event there exists suspicious circumstances the party seeking  to obtain probate and/ or letters of administration with a copy of the Will  annexed must also adduce evidence to the satisfaction of the court before it  can be accepted as genuine.

41.     As an order granting probate is a judgment in rem, the court must also  satisfy its conscience before it passes an order.

       It may be true that deprivation of a due share by the natural heir by  itself may not be held to be a suspicious circumstance but it is one of the  factors which is taken into consideration by the courts before granting  probate of a Will.   

       Unlike other documents, even animus attestandi is a necessary  ingredient for proving the attestation.   

       In Benga Behera & Anr. v. Braja Kishore Nanda & Ors. [2007 (7)

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SCALE 228], this Court held:

"46.    Existence of suspicious circumstances itself  may be held to be sufficient to arrive at a  conclusion that execution of the Will has not duly  been proved."

       In B. Venkatamuni v. C.J. Ayodhya Ram Singh & Ors. [2006 (11)  SCALE 148], it was stated:

"However, having regard to the fact that the Will  was registered one and the propounder had  discharged the onus, it was held that in such  circumstances, the onus shifts to the contestant  opposing the Will to bring material on record  meeting such prima facie case in which event the  onus shifts back on the propounder to satisfy the  court affirmatively that the testator did not know  well the contents of the Will and in sound  disposing capacity executed the same.

       Each case, however, must be determined in  the fact situation obtaining therein.   

       The Division Bench of the High Court was,  with respect, thus, entirely wrong in proceeding on  the premise that compliance of legal formalities as  regards proof of the Will would sub-serve the  purpose and the suspicious circumstances  surrounding the execution thereof is not of much  significance.

       The suspicious circumstances pointed out by  the learned District Judge and the learned Single  Judge of the High Court, were glaring on the face  of the records.  They could not have been ignored  by the Division Bench and in any event, the  Division Bench should have been slow in  interfering with the findings of fact arrived at by  the said court.  It applied a wrong legal test and  thus, came to an erroneous decision."

       Yet again in Savithri & Ors. v. Karthyayani Amma & Ors. [JT 2007  (12) SC 248], this Court held:

"18.    We do not find in the fact situation obtaining  herein that any such suspicious circumstance was  existing.  We are not unmindful of the fact that the  court must satisfy its conscience before its  genuineness is accepted.  But what is necessary  therefor, is a rational approach.   

19.     Deprivation of a due share by the natural  heirs itself is not a factor which would lead to the  conclusion that there exist suspicious  circumstances.   For the said purpose, as noticed  hereinbefore, the background facts should also be  taken into consideration.  The son was not meeting  his father.  He had not been attending to him.  He  was not even meeting the expenses for his  treatment from  1959, when he lost his job till his  death in 1978.  The testator was living with his

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sister and her children.  If in that situation, if he  executed a Will in their favour, no exception  thereto can be taken.  Even then, something was  left for the appellant."

42.     The court is, thus, required to adopt a rational approach in a situation  of this nature.  Once the court is required to satisfy its conscience, existence  of suspicious circumstances play a prominent role.  The Will, as noticed  hereinbefore, is in two parts.  Whereas the first part deals with the property  belonging to the husband of the testatrix, the second part deals with the  properties which purportedly belongs to her.  Distribution of assets,  however, was not specifically stated in the Will.  They were to be made as  per the appendices annexed thereto.  The appendices which were required to  be read as a part of the main Will so as to effectuate the intention of the  testatrix have not been proved.  The Will by its own cannot be given effect  to.  The Will must be read along with the appendices.  No doubt in  construing a Will arm chair rule is to be adopted.  The Will was, therefore,  not complete.  It is not correct to contend that the appendices were very  much in existence at the time when the Will was executed.  Existence of a  document must mean the actual existence.

       We are, therefore, of the opinion that no case has been made out for  interference with the impugned judgment.

43.     For the reasons aforementioned, the appeals are dismissed with costs.   Counsel’s fee assessed at Rs. 50,000/-.