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CASE NO.: Appeal (civil)  4550 of 2OO6

PETITIONER: B. Venkatamuni

RESPONDENT: C.J. Ayodhya Ram Singh & Ors.

DATE OF JUDGMENT: 19/10/2006

BENCH: S.B. Sinha & D.K. Jain

JUDGMENT: J U D G M E N T (Arising out of SLP (C) No. 2201/2005)

S.B. Sinha, J.

       Leave granted.

       One Smt. B. Akkayamma, although not a highly educated lady, was  carrying on the profession of money lending.  She acquired considerable  property.  The immovable properties held and possessed by her were situate  in the District of Chittoor in the State of Andhra Pradesh and at Arkonam in  the State of Tamil Nadu.  She was unmarried.  She had, however, been  living with one Shri C.D. Jai Singh.  Respondent Nos.1 to 3 are children of  the said Jai Singh through his legally wedded wife Smt. Shyam Bai.  She  was original plaintiff No.4 in the suit.  She, during the pendency of the suit,  however, expired.   

       Jai Singh shifted to Arkonam from Tirupati.  Akkayamma followed  him.  They started living together.  She had, however, been visiting Chittoor  and Tirupati occasionally.  Plaintiffs-Respondents originally developed a  disliking for Akkayamma.  A suit was also filed against her, but it appears  from the records that they had later reconciled and she was accepted as a  member of the family.  A purported Will was executed by Akkayamma on  23rd March, 1968 bequeathing her properties situate in the District of  Chittoor in favour of respondent No.1 herein only.  The said Will was an  unregistered one.  It may be, however, noticed that Jai Singh expired on 17th  July, 1968.  During his illness, although Akkayamma was possessed of  sufficient properties both movable and immovable, but she did not spend  any amount towards his treatment.  Admittedly, she was of miserly nature.   Surprisingly, however, she executed two deeds on 26. 9.1968 transferring  her properties situate at Arkonam in favour of respondents.  She expired on  29th September, 1968.  Although in the Will Respondent No.1 alone was the  beneficiary thereof, not only Respondent Nos. 2 and 3, but, as noticed herein  before, their mother also filed an application for grant of probate in the  Court of District Judge, Chittoor.  Respondent No.4 herein, who is said to be  the tenant in one of the premises in question, was impleaded as a party  therein.  Appellant herein was not initially impleaded as a party, although, he  was the heir and legal representative of Akkayamma.  He was impleaded at a  later stage.  The application for grant of probate was also amended by  making an alternative prayer for grant of Letters of Administration.  A  caveat in the meantime had also been lodged by Appellant.   

       In view of the opposition to the prayer for grant of probate, the  learned District Judge, by an order dated 2.7.1975 directed that O.P.No.102  of 1970 be converted into a regular suit in terms of Section 295 of the Indian  Succession Act, 1925.  In the said suit, Appellant in his written statement,  inter alia, contended that the Will in question was a forged one.  The learned

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trial court, in view of the pleadings of the parties, inter alia, framed the  following issues : "1.     Whether the will dt. 23.3.1968 alleged to have  been executed by late Akkayyamma is true, valid  and binding on the defendant?

2.      Whether the defendant is a reversioner to the estate  of late Akkayyamma?

3.      Whether this court has no jurisdiction to entertain  this suit?

4.      Whether this suit is not maintainable for non  compliance with any of the provisions of Indian  Succession Act?

5.      Whether the court fee paid is incorrect?

6.      Whether the plaintiffs are entitled to a probate or  letters of administration in respect of the suit  property?

7.      Whether the plaintiffs are entitled to declaration  prayed for?

8.      To what relief?"         

       In his judgment dated 28th October, 1981, the learned Judge opined  that in view of presence of nine suspicious circumstances surrounding the  execution of the Will, the same could not be held to have been executed by  Akkayyamma.  An appeal preferred thereagainst by Respondent Nos.1 to 3  was dismissed by a learned Single Judge of the High Court by a judgment  and order dated 19th June, 1995.  The learned Single Judge in his judgment,  apart from nine circumstances enumerated by the learned trial Judge, also  added three circumstances thereto in arriving at a finding that the execution  of the said Will has not been proved.   

       A Division Bench of the High Court, however, while exercising its  Letters Patent jurisdiction, by reason of the impugned judgment dated 26th  October, 2004 reversed the said judgments holding that the evidence on  record satisfies the requirements of Section 63 of the Indian Succession Act  and that the trial court as also the learned Single Judge erred in discarding  the Will on circumstances none of which was a suspicious one attending due  execution of the Will.  Appellant is, thus, before us.

       Mr. T.N. Rao, learned counsel appearing on behalf of the appellant  submitted that the Division Bench of the High Court committed a serious  error in ignoring a large number of suspicious circumstances surrounding  purported execution of the Will as opined by the learned District Judge as  also the High Court.  It was urged that the Division Bench committed an  error in so far as wrong legal tests were applied in opining that once the Will  stands proved, the suspicious circumstances enumerated by the trial court  and the Single Judge, take a back seat.  It was submitted that in view of the  findings of fact arrived at by the learned District Judge and the learned  Single Judge, the Division Bench was obliged to consider each of the  enumerated circumstances and in not doing so, it has committed a manifest  error.

       Mr. V. Balachandran, learned counsel appearing on behalf of  respondents, on the other hand, urged that once execution of the Will has  been found to be proved in terms of the provisions of Section 63 of the  Indian Succession Act, even if there existed some discrepancies, the same  should be ignored as the witnesses had deposed after a long time.          Akkayamma was not a highly educated lady.  She received only

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primary education.  She could only put her signature.  She was otherwise  worldly.  She was of miserly nature.  She was originally a resident of  Arconam.  She knew the importance of registration of document as only a  couple of days before her death, i.e., 29th September, 1968 she executed two  deeds of settlement in favour of Respondents.  We need not go into the  question as to whether Plaintiffs-Respondents have sufficiently proved love  and affection of Akkayamma for them, but, when a question comes up for  consideration before a court in regard to grant of probate or Letters of  Administration with a copy of the Will annexed thereto, it is trite that all  circumstances should be taken into consideration.  It may be true, as has  been opined by the Division Bench of the High Court, that proof of  execution of the Will in terms of Section 63 of the Indian Succession Act  and Sections 67 and 68 of the Indian Evidence Act would be a pre-requisite,  but, to take the same in evidence it is also trite that while arriving at a  finding as to whether the Will has duly been executed or not, the court must  satisfy its conscience having regard to the totality of the circumstances.  The  Will in question was executed on 23.3.1968.  It was an unregistered one.   She was ordinarily not a resident of District of Chittoor.  She used to visit  the said place occasionally.  She did not know intimately the scribe of the  Will, namely, P.W.1-Shri V. Thyagarajan.  He was a teacher.  There was no  reason for Akkayamma to walk to his residence and ask him to scribe the  Will.  If P.W.1 was not a professional scribe, there may not be any particular  reason as to why Akkayamma had chosen him for the said job.  In the event  of suspicion in regard to the genuineness or otherwise, the Will must be  proved to have been executed in accordance with law establishing that the  same has been done in presence of at least two witnesses.  Although, the  court should not approach the question with a suspicion that the Will is not a  genuine one, the general guidelines laid down by this Court and the High  Court in this behalf should be followed.  The issue necessarily involves due  appreciation of evidence.  We may notice that in the Will Akkayamma  described herself as the father’s wife of Shri C.D. Jaya Singh.  What is  meant by that is not known.  While describing herself as the father’s wife of  C.D. Jaya Singh, it was stipulated that she had been having that status for the  last 40 years.  Our attention has been drawn to the findings of the learned  District Judge by the learned counsel for Respondents that Akkayamma  developed love and affection not only for Jai Singh, but also for his children  through his first wife and particularly, the 3rd plaintiff who was his daughter.   If that be the position, then why she had not bequeathed any property in her  favour is difficult to understand.  The learned District Judge enumerated  nine circumstances which, according to him, were relevant for considering  the proof of due execution and attestation of the Will in question, which are  as under :

1.      Akkayamma lived with Jai Singh, the father of the  plaintiffs 1 to 3 and husband of plaintiff No.4 at  Arkonam in Tamilnadu while the plaintiffs lived at  Chittoor in Andhra Pradesh till Jai Singh and she  died.

2.      There are indications to show that the plaintiffs  were against Akkayamma to some extent when the  second plaintiff filed a suit for partition on the  ground that Jai Singh squandered the property after  he developed contact with Akkayamma.

3.      There was no special reason for love and affection  between them except that Akkayamma had no  children.  There was no reason for Akkayamma in  particular to choose first plaintiff to bequeath the  schedule properties ignoring all other similarly  placed persons like plaintiffs 2 and 3.

4.      Piecemeal disposal of her properties at different  stages and different types of documents Exs. A.1,  B.24 and B.25, namely, settlement deed looks

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unnatural.  

5.      Akkayamma leaving registered documents Exs.  B.24 and B.25 just three day prior to her death as  against unregistered will six months prior to her  death looks suspicious.

6.      The will and settlement deeds almost read similar  with same intentions consequently leading to a  serious doubt.

7.      The signature of Akkayamma on Ex.A.1 as  Akkayamma Chevralu for the first time as against  her usual signature on many documents including  the settlement deeds Ex. B.24 and B.25 coming out  just three days prior to her death with signature as  Akkayamma speaks of something unnatural in the  conduct of her.

8.      The omission to mention the execution of Ex.A.1  will or the execution of such property in Exs. B.24  and B.25 is a strong circumstance leaving a serious  suspicion on the conduct of Akkayamma.

9.      The contents of Ex.A.1, which are conditional and  contingent, appear to be unnatural."

                The learned Single Judge in his judgment agreed therewith.  Both the  learned District Judge as also the High Court pointed out a number of  infirmities in the testimonies of the 1st plaintiff as also P.Ws. 1- the scribe  and P.Ws. 2 and 3 - the attesting witnesses.  To disbelieve their evidences in  regard to the execution of the Will (Exhibit A.1), the learned courts pointed  out that if Akkayamma wanted to execute a Will, she would have done so in  her own house or in the house of plaintiffs.  P.Ws. 1 to 3, on their own  showing, were strangers to her.  They had not even seen Jai Singh.  They  had no occasion to meet Akkayamma at any point of time and they had  expressed their ignorance about her.  They even did not know whether Jai  Singh was alive at the time of their deposition.  According to them, on the  date of execution of the Will Jai Singh had not expired, which was not a fact.   All this, and rightly so, could not be ignored by the trial judge as also by the  High Court.  The scribe, P.W.1, even did not explain as to how he was  prevailed upon to draft an important document like Will and what was his  experience therefor.  It had further been noticed that P.W.2 worked in the  same Bank wherein the 1st plaintiff was employed.  Plaintiff No.2 was the  son of P.W.1 and P.W.3 was also a relative of the plaintiffs.  They were,  thus, termed as interested witnesses by the learned District Judge.  The  learned Singe Judge on further re-appreciation of evidence added three more  circumstances stating as the suspicious ones, which are as under :

1.      Akkayamma came all the way from Arkonam to  Chittoor and went to the house of a stranger P.W.2  while thinking of leaving a will only in favour of  first plaintiff without any background or reason  and the said conduct lends no explanation on the  part of the plaintiffs.

2.      It appears that Akkayamma who is said to be a  miserly lady \026 when she did not spare any property  while her paramour \026 husband like Jai singh was  on death-bed, thought of leaving a will in favour of  plaintiff No.1 for no reason.

3.      Akkayamma appears to have included some of the  properties found in Ex.A 1 in Exs. B.24 and B.25

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also as detailed by the learned District Judge."         

                     In an intra-court appeal, the Division Bench undoubtedly may be  entitled to re-apprise both questions of fact and law, but the following dicta  of this Court in Umabai & Anr. vs. Nilkanth Dhondiba Chavan (Dead)  By Lrs. & Anr. [(2005) 6 SCC 243], could not have been ignored by it,  whereupon the learned counsel for Respondents relied:    

"It may be, as has been held in Asha Devi v. Dukhi  Sao (1974) 2 SCC 492 that the power of the appellate  court in intra-court appeal is not exactly the same as  contained in Section 100 of the Code of Civil Procedure  but it is also well known that entertainment of a letters  patent appeal is discretionary and normally the Division  Bench would not, unless there exist cogent reasons, differ  from a finding of fact arrived at by the learned Single  Judge.  Even as noticed hereinbefore, a court of first  appeal which is the final court of appeal on fact may have  to exercise some amount of restraint."                    In the said decision, it was further noticed:                  "Yet in Manjunath Anandappa vs. Tammanasa  (2003) 10 SCC 390 it was held : (SCC p. 403, para 36)         "36. It is now also well settled that a court of  appeal should not ordinarily interfere with the  discretion exercised by the courts below."

       The Division Bench of the High Court did not address itself to the  circumstances noticed by the learned Single Judge, but proceeded on the  premise that once execution is duly proved, the court may not probe deeper  into the matter stating :

       "If the various requirements of a valid will are  established, then as observed by the Privy Council in  Motibai Hormusjee’s case, "A man may act foolishly and  ever heartlessly; if he acts with full comprehension of  what he is doing the Court will not interfere with the  exercise of his volition."  

       Section 63 of the Indian Succession Act provides :

"63.    Execution of unprivileged wills.\026  

               *               *               * a)      the testator shall sign or shall affix his mark  to will, or it shall be signed by some other  person in his presence and by his direction.

b)      The signature or mark of the testator, or the  signature of the person signing for him, shall  be so placed that it shall appear that it was  intended thereby to give effect to the writing  as a will.

(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

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person; and each of the witnesses shall sign  the will in the presence of the testator, but it  shall not be necessary that more than one  witness be present at the same time, and no  particular form of attestation shall be  necessary."

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

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

       The approach of the Division Bench of the High Court did not address  itself the right question.  It took an erroneous approach to the issue as would  appear from the decision of this Court in Surendra Pal & Ors. vs. Dr.  (Mrs.) Saraswati Arora & Anr. [(1974) 2 SCC 600], whereupon again Mr.  V. Balachandran himself placed reliance, wherein the law was stated in the  following terms :

"The propounder has to show that the Will was  signed by the testator; that he was at the relevant time in  a sound disposing state of mind, that he understood the  nature and effect of the dispositions, that he put his  signature to the testament of his own free will and that he  has signed it in the presence of the two witnesses who  attested it in his presence and in the presence of each  other. Once these elements are established, the onus  which rests on the propounder is discharged. But there  may be cases in which the execution of the Will itself is  surrounded by suspicious circumstances, such as, where  the signature is doubtful, the testator is of feeble mind or  is overawed by powerful minds interested in getting his  property, or where in the light of the relevant  circumstances the dispositions appear to be unnatural,  improbable and unfair, or where there are other reasons  for doubting that the dispositions of the Will are not the  result of the testator’s free will and mind. In all such  cases where there may be legitimate suspicious  circumstances those must be reviewed and satisfactorily  explained before the Will is accepted. Again in cases  where the propounder has himself taken a prominent part  in the execution of the Will which confers on him  substantial benefit that is itself one of the suspicious  circumstances which he must remove by clear and  satisfactory evidence. After all, ultimately it is the  conscience of the court that has to be satisfied, as such  the nature and qualify of proof must be commensurate  with the need to satisfy that conscience and remove any  suspicion which a reasonable man may, in relevant  circumstances of the case, entertain."  

        In H. Venkatachala Iyengar vs. B.N. Thimmajamma & Ors.  [(1959) Supp.1 SCR 426, it was opined :    "However, there is one important feature which  distinguishes wills from other documents. Unlike other  documents the will speaks from the death of the testator,  and so, when it is propounded or produced before a court,  the testator who has already departed the world cannot  say whether it is his will or not; and this aspect naturally  introduces an element of solemnity in the decision of the

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question as to whether the document propounded is  proved to be the last will and testament of the departed  testator. Even so, in dealing with the proof of wills the  court will start on the same enquiry as in the case of the  proof of documents. The propounder would be called  upon to show by satisfactory evidence that the will was  signed by the testator, that the testator at the relevant time  was in a sound and disposing state of mind, that he  understood the nature and effect of the dispositions and  put his signature to the document of his own free will.  Ordinarily when the evidence adduced in support of the  will is disinterested, satisfactory and sufficient to prove  the sound and disposing state of the testator’s mind and  his signature as required by law, courts would be justified  in making a finding in favour of the propounder. In other  words, the onus on the propounder can be taken to be  discharged on proof of the essential facts just indicated.

There may, however, be cases in which the  execution of the will may be surrounded by suspicious  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."

       In Smt. Guro vs. Atma Singh & Ors. [(1992) 2 SCR 30], this Court  has opined :                  "With regard to proof of a will, the law is well- settled that the mode of proving a will does not ordinarily  differ from that of proving any other document except as  to the special requirement prescribed in the case of a will  by section 63 of the Indian Succession Act.  The onus of  proving the will is on the propounder and in the absence  of suspicious circumstances surrounding the execution of  the will, proof of testamentary capacity and signature of  the testator as required by law is sufficient to discharge  the onus.  Where, however there were suspicious  circumstances, the onus would be on the propounder to  explain them to the satisfaction of the court before the  will could be accepted as genuine.  Such suspicious

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circumstances may be a shaky signature, a feeble mind  and unfair and unjust disposal of property or the  propounder himself taking a leader part in the making of  the will under which he receives a substantial benefit.   The presence of suspicious circumstances makes the  initial onus heavier and the propounder must remove all  legitimate suspicion before the document can be accepted  as the last will of the testator."  

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.

       This Court in Daulat Ram & Ors. vs. Sodha & Ors. [(2005) 1 SCC  40], stated the law thus :

"Will being a document has to be proved by  primary evidence except where the court permits a  document to be proved by leading secondary evidence.  Since it is required to be attested, as provided in Section  68 of the Indian Evidence Act, 1872, it cannot be used as  evidence until one of the attesting witnesses at least has  been called for the purpose of proving its execution, if  there be an attesting witness alive, and subject to the  process of the court and capable of giving evidence. In  addition, it has to satisfy the requirements of Section 63  of the Indian Succession Act, 1925. In order to assess as  to whether the Will has been validly executed and is a  genuine document, the propounder has to show that the  Will was signed by the testator and that he had put his  signatures to the testament of his own free will; that he  was at the relevant time in a sound disposing state of  mind and understood the nature and effect of the  dispositions and that the testator had signed it in the  presence of two witnesses who attested it in his presence  and in the presence of each other. Once these elements  are established, the onus which rests on the propounder is  discharged. But where there are suspicious  circumstances, the onus is on the propounder to remove  the suspicion by leading appropriate evidence. The  burden to prove that the Will was forged or that it was  obtained under undue influence or coercion or by playing  a fraud is on the person who alleges it to be so." [Emphasis supplied]

       Yet again in    Meenakshiammal (Dead) Through & Ors. vs.  Chandrasekaran & Anr. [(2005) 1 SCC 280], it was stated :

"In the case of Chinmoyee Saha v. Debendra Lal  Saha it has been held that if the propounder takes a  prominent part in the execution of the will, which confers  a substantial benefit on him, the propounder is required  to remove the doubts by clear and satisfactory evidence.  Once the propounder proves that the will was signed by  the testator, that he was at the relevant time in a sound  disposing state of mind, that he understood the nature and  effect of the disposition and put his signature out of his  own free will, and that he signed it in presence of the  witnesses who attested it in his presence, the onus, which  rests on the propounder, is discharged and when  allegation of undue influence, fraud or coercion is made  by the caveator, the onus is on the caveator to prove the

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same."  

       {See also Sridevi & Ors. vs. Jayaraja Shetty & Ors. [(2005) 8 SCC  784].}  

       The principle was reiterated in Pentakota Satyanarayana & Ors. vs.  Pentakota Seetharatnam & Ors.   [(2005) 8 SCC 67], wherein it was  stated :            "In the instant case, the propounders were called  upon to show by satisfactory evidence that the Will was  signed by the testator, that the testator at the relevant time  was in a sound and disposing state of mind, that he  understood the nature and effect of the dispositions and  put his signature to the document of his own free will. In  other words, the onus on the propounder can be taken to  be discharged on proof of the essential facts indicated  above."   

       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.    

       For  the  reasons  aforementioned, the  impugned  judgment  cannot be  

sustained.  It is set aside accordingly.  The appeal is allowed with costs.   Counsel fee assessed at Rs.10,000/-.