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CASE NO.: Appeal (civil)  4608 of 2003

PETITIONER: Apoline D’ Souza

RESPONDENT: John D’ Souza

DATE OF JUDGMENT: 16/05/2007

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T

S.B. SINHA, J :

1.      Florine D’ Souza executed a will on or about 06.05.1992.  She had  two daughters  Olivia and Olympia.  Both of them had become nuns.   The  1st daughter Olivia  died in 1975.  The 2nd daughter Olympia died on  27.09.1993.  

2.      Appellant herein was one of the beneficiaries of the will.  He was,  however, not in any way related to the testatrix.  The testatrix was owner of  the following  properties which were subject-matter of the said will :

                               "’A’ SCHEDULE

               \005            \005            \005            \005            \005                                      Property situated in Talipady Village, Mangalore Taluk, Mulki  Sub-Division D.K. bearing following particulars :  

S.  No. S.D.   No. Kissam Extent A.C. Assessment Rs.        Ps. 123  -  1A1B   (P) Garden 0 - 16

       BOUNDARIES :         East    :       Property allotted to ’B’ Schedule belongs to the                         Same sub-Division.

       South   :       Portion of Sy. No. 123/1A1A         West    :       Portion of Sy. No. 123/1A1A         North : Sy Line

               With tiled house bearing No. 8 \026 87, with all mamool and  easementary rights with all appurtenants and also all the  movables belonging to me."   

                                         "’B’ SCHEDULE’

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               \005                    \005                    \005            \005     

Property situation in Thalipady Village, Mulki S.D. Mangalore  Taluk, D.K. Bearing following particulars :  

S.  No. S.D. No. Kissam Extent A.C. Assessment Rs.        Ps. 123 1A1B  (P) Garden 0 \026 23

       BOUNDARIES :         East    :       Portion  of   the  Sy. No.  123/5, 123/3, 123/1A1B         South : Portion of Sy. No. 123/1A1A West :  Property allotted to ’A’ Schedule of same Sub- Division         North   :       Sy. Line         123 \026 5      Garden  0 \026 09         With a tiled house, timbers all mamool and easementary rights"   

3.      Whereas the property described in Schedule ’A’ appended to the said  will was bequeathed  in favour of the appellant, the property described in  Schedule ’B’ thereto was bequeathed in favour of the respondent.  Florine  died on 13.03.1994.  An application for grant of Letters of Administration  with a copy of the will annexed,  in terms of Section 276 of the Indian  Succession Act, 1925 (for short ’the Act’) was filed by the appellant.   Respondent entered a caveat.    

4.      The plea raised by the respondent in the suit was that the testatrix was  an aged woman and did not have a proper frame of mind at the time of  purported execution of the will to understand the contents thereof.    5.      The learned Trial Judge  held that the execution of the will had  been  proved, stating :

"\005Circumstances go to show that the defendant had  constructed his own house in one portion of the land that  belonged to the old lady.  23 cents of land was given to  the defendant under the will and 16 cents of land  including the old house was given to the plaintiff who  attended the old lady during her old age.  I do not find  anything unnatural in the bequest made by the old lady.   She has given larger extent of land to the defendant who  is the son of the sister of the Testatrix.  That shows that  the disposition made by her was consistent with the  natural course of human conduct."

       It was held that as the propounder did not take any interest in the  matter of execution of the will,  no suspicious circumstances existed.   

6.      The High Court, however, reversed the said finding of the learned  Trial Judge by reason of the impugned judgment, opining :

i)      PW-2, the only attesting witness, examined in the matter, admitted  that she had put her signature on a handwritten will, whereas the  will had in fact been typed in Kannada language.  Hence  the due  execution of the will was not proved.

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ii)     The will contained various overwritings and cuttings, which  establish existence of suspicious circumstances. iii)    Evidence of PW-2 does not prove either execution or attestation of  the will as per Ex. P-2, as the thumb mark affixed by Florine D’  Souza on it  was not got marked in the evidence of PW-2 and she  had not identified the thumb mark on Ex. P-2 as the thumb mark  which was affixed by Florine D’ Souza in her presence.   iv)     Mere fact that the will was a registered one would not dispense  with the requirements of proof of due execution and attestation of  the  will for grant of  Letters of Administration.

7.      Dr. M.P. Raju, learned counsel appearing on behalf of the appellant,  however,  submitted :  

i)      The proof of execution of the will cannot be discarded only  because all the precedent requirements of law had not been  fulfilled.   ii)     As it was proved that the plaintiff-appellant was serving the  testatrix since 1986, there was no reason to disbelieve the bequest  made in her favour by way of a will.

8.      The testatrix was a 96 years old lady.  She had been suffering for a  long time.  She was bed-ridden.  No  evidence has been brought on record to  show as to who had drafted the will.   9.      Even if it be assumed that the appellant had nothing to do in regard to  preparation of the draft or registration thereof, nothing has  been brought on  record to show as to who had drafted the will, or at whose instance it came  to be registered.        

10.     PW-2 is the attesting witness.  She was called to be a witness to the  execution of the will.  On or about 06.05.1992, when she had come to the  house of the testatrix, the will had already been written.  According to her,  only after she had come, the testatrix put her L.T.I..  Two days thereafter, the  will was registered,  on which date also she was asked to be present.

11.     The High Court has arrived at a conclusion that the execution of the  will has not been proved in accordance with law.   

12.     What should be the mode of proof of execution of a will has been laid  down in Section 63 of the Act in the following terms :

"63. Execution of unprivileged wills.-Every  testator, not being a solider 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)     The testator shall sign or shall affix his mark to the  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.

(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

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be necessary that more than one witness be present  at the same time, and no particular form of  attestation shall be necessary."         

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.  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.

14.       What would be the requirement for proof of a will has recently been  considered by this Court in B. Venkatamuni v. C.J. Ayodhya Ram Singh &  Ors. [2006 (11) SCALE 149], stating :

"15. Proof of a Will shall strictly be in terms of the  abovementioned provisions.

16.  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 :

       "20. Yet again Section 68 of the Indian Evidence  Act postulates the mode and manner in which proof of  execution of document 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."

       It was further observed :  

       "24. 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.

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

       26. 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

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proof of the Will would sub-serve the purpose and the  suspicious circumstances surrounding the execution  thereof is not of much significance.

       27.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."

15.     Yet again in Niranjan Umeshchanda Joshi v. Mrudula Jyoti Rao &  Ors. [2006 (14) SCALE 186], this court observed : "32. Section 63 of the Indian Evidence Act lays  down the mode and manner in which the execution of an  unprivileged Will is to be proved.  Section 68 postulates  the mode and manner in which proof of execution of  document is required by law to be attested.  It in  unequivocal terms states that execution of Will must be  proved at least by one attesting witness, if an attesting  witness is alive subject to the process of the court and  capable of giving evidence.  A Will is to prove what is  loosely called as primary evidence, except where proof is  permitted by leading secondary evidence.  Unlike other  documents, proof of execution of any other document   under the Act would not be sufficient as in terms of  Section 68 of the Indian Evidence Act, execution must be  proved at least by one of the attesting witnesses.  While  making attestation, there must be an animus attestandi,  on the part of the attesting witness, meaning thereby, he  must intend to attest and extrinsic evidence on this point  is receivable.   

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

       "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.  

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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.  [See  Venkatachala Iyengar (supra)]"

[See also Joseph Antony Lazarus (Dead) By LRs. v. A.J. Francis, (2006) 9  SCC 515].

16.     In S. Sankaran v. D. Kausalya [2007 (3) SCALE 186], it was stated :                 "6. A learned Single Judge of the High Court by  his judgment dated 25.5.1996 held that the will dated  24.9.1986 was genuine and was not a forged one. The  learned Single Judge took into consideration various  factors e.g. that the testator himself presented the will for  execution, and there was a dispute between the testator and  his elder daughter and hence he wanted to bequeath his  properties to his second daughter and the sons born to her,  etc.                  7. In appeal the Division Bench of the Madras  High Court set aside the judgment of the learned Single  Judge but without a proper consideration of the various  facts and circumstances of the case mentioned by the  learned Single Judge in his very elaborate judgment.                  8. The Division Bench was evidently influenced by  the fact that the elder daughter was deprived of her share in  her father’s property. However, the Division Bench has not  taken into consideration the various considerations which  according to learned Single Judge motivated the testator to  deprive his elder daughter, the respondent herein."  [See also Benga Behera & Anr. v. Braja Kishore Nanda & Ors. \026 C.A.  No.3467 of 2003 - disposed of on 15.05.2007]             

17.     Reliance placed by Dr. Raju on Brahmadat Tewari v. Chaudan Bibi  [AIR 1916 Calcutta 374] and Riazulnisa Begam, Mst v. Lala Puran Chand  [ILR XIX Lucknow 445] are misplaced.   

18.     The requirements to prove execution of the will are laid down under   Section 63 of the Act only in the year 1925.  The law has since undergone a  change.  In any event, this Court is bound by the decisions of this Court.              19.     In Naresh Charan Das Gupta v. Paresh Charan Das Gupta [1954 SCR  1035] whereupon again reliance has been placed, this Court has  categorically held :

"\005It cannot be laid down as a matter of law that because  the witnesses did not state in examination-in-chief that  they signed the will in the presence of the testator, there  was no due attestation.  It will depend on the  circumstances elicited in evidence whether the attesting  witnesses signed in the presence of the testator.  This is a  pure question of fact depending on appreciation of  evidence.  The finding of the Court below that the will  was duly attested is based on a consideration of all the  materials, and must be accepted\005"  

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.

21.     For the reasons aforementioned, there is no merit in this appeal, which

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is accordingly dismissed.  In the facts and circumstances of the case, there  shall, however, be no order as to costs.