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CASE NO.: Appeal (civil)  7400-7401 of 2000

PETITIONER: Adivekka & Ors.

RESPONDENT: Hanamavva Kom Venkatesh ’D’ By LRs. & Anr

DATE OF JUDGMENT: 09/05/2007

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T  

S.B. SINHA, J :                  1.      Requirements in regard to the nature of proof of a Will in view  of existing suspicious circumstances is the question involved in this appeal  which arises from the judgment and order dated 27.08.1998 passed by the  High Court of Karnataka at Bangalore in R.F.A. Nos. 308/94 and 331/94.

       2.      Before, however, we embark upon the said question, we may  notice the admitted facts.

       3.      Appellants herein are wife and children of one Hanumanthappa,  the testator.  The suit property measuring 4 acres 32 guntas stood in his  name.  He admittedly was suffering from cancer.  He expired on 11.09.1988.   Just two weeks prior to his death, viz., 25.08.1988, he allegedly executed the  Will in favour of Respondent No. 1 herein bequeathing in her favour the  lands in question.  Appellants were not aware of the execution of the said  Will.  They applied for mutation of their names after the death of  Hanumanthappa.  An objection thereto was raised by Respondent No. 1.   Allegedly, in the meantime, Respondent No. 1 had also sold the suit lands in  favour of Respondent No. 2 by a deed of sale dated 16.03.1989.

       4.      On the aforementioned premise, the appellants filed a suit for  declaration and permanent injunction alleging that the land in question was  purchased by Hanumanthappa by sale of family gold and, thus, was a joint  family property.  It was also alleged that the Will in question was a  fabricated document.   

       5.      Respondents in their written statements, however, averred that  the Will was a genuine document.   

       6.      One of the issues which were framed by the learned Trial Judge  related to the execution of the Will.  It reads as under:

"(4) Whether the defendant No. 1 proves that she  has become full owner of the suit property on the  basis of the Will dated 25.8.88 legally executed by  the deceased Hanumanthappa?"

       7.      Defendant \026 Respondent No. 1 herein did not examine herself.   She examined her husband in whose favour she had allegedly executed a  Power of Attorney.  A purported attesting witness and the Sub-Registrar  who registered the document were also examined.

       8.      In her evidence, PW-1 (wife of Hanumanthappa) stated:

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(i)     The testator was suffering from throat cancer and he was not  having any thinking capacity. (ii)    The testator had not executed any Will in favour of Defendant No.  1. (iii)   Defendant No. 1 had never stayed with her husband in their house. (iv)    Her husband had other properties apart from the suit lands but the  same were not fetching any income.   

       Husband of Respondent No. 1 (DW-1) and the Power of Attorney  holder, however, in his evidence, stated:

(i)     Defendant No. 1 is the daughter of Huchhappa who was brother of  her father in law Hanumanthappa.  When Huchhappa married for  the second time, Defendant No. 1 being a child, was looked after  and brought up by Hanumanthappa. (ii)    Defendant No. 1 lived in the house of Hanumanthappa for about  12-13 years.  After her marriage, she came to his house. (iii)   On 8.04.1982, Hanumanthappa agreed to sell the suit lands to him  for a sum of Rs. 52,000/- and he had paid a sum of Rs. 49,000/- by  way of advance. (iv)    Hanumanthappa was suffering from cancer on the left side of the  neck, but even at that time he had good level of understanding.   (v)     Hanumanthappa took treatments for about 8 months whereafter  only he came to know that he had been suffering from cancer. (vi)    After the death of Hanumanthappa, he learnt of the Will from one  Bhimappa Banglore Nagappa Yallappa Gokabi.  He was told that it  had been registered in the Sub-Registrar’s Office.  He and his wife,  thus, went to Sub-Registrar’s office and collected the Will. (vii)   As per the Will, the name of the Defendant No. 1 was mutated on  the basis of the sale deed.  He cultivated the lands for one year and  thereafter sold the same to Respondent No. 2.

       The said witness, however, also made out an alternative case.   According to him, on or about 24.08.1971, an agreement to purchase the suit  land was executed in the name of Hanumanthappa for a consideration of Rs.  11,000/- and a sum of Rs. 5000/- was paid by him by way of advance.

       In his cross-examination, however, he stated that Hanumanthappa  demanded a sum of Rs. 58,000/- and he was ready to pay Rs. 50,000/-.

       No document, however, to show that a sum of Rs. 49,000/- was paid  to Hanumanthappa, was brought on record.

       9.      The attesting witness Sunkappa (DW-4) sought to prove the  execution of the Will.  He had allegedly come to see Hanumanthappa two  weeks prior thereto.  Even at that point of time, although the appellants were  present, no discussions on the subject of execution of Will took place.  Who  had asked him to go to the registration office for attestation of the Will is not  known.   

       The Sub-Registrar who examined himself as DW-5, in his evidence,  did not state that the contents of the Will were read over and explained to  Hanumanthappa.

       10.     The learned Trial Judge decreed the suit.  The High Court,  however, by reason of the impugned judgment reversed the said judgment  and decree opining that the execution of the Will has been proved by DWs 4  and 5.

       11.     Mr. Shankar Divate, learned counsel appearing on behalf of the  appellants, in support of this appeal, would submit that the High Court did  not address itself on the question in regard to a large number of suspicious  circumstances which would clearly go to show that the Will is not a genuine  one.

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       12.     Mr. Rajesh Mahale, learned counsel appearing on behalf of the  respondents, on the other hand, would submit that the very purpose for  which the Will was executed as also the proof of execution thereof by  Hanumanthappa categorically dispels the alleged suspicious circumstances.   

       13.     Recitals made in the Will are as under:

"You are my elder brother’s daughter since your  childhood I have looked after you till your  majority.  After your majority you have looked  after me and my children and living with me.  I  trust you that you will look after me even after my  demise.  I have a special love for you.

My son Bhimappa is living separately and is not  helping me in any way.  I have married a girl.  I  have left other properties for my minor children  and they will look after it.

For the above stated lands my children do not have  any right and I wish that after me the aforesaid  land should go to you hence this Will.  I declare  you the complete owner of the aforesaid land after  my death.  During my life time I will use the land  as per my wish and enjoy the same.  After my  death as a owner you can have the possession of  the aforesaid land and enjoy the same for  generation to generation.

After my death except you none have any right or  ownership right in the aforesaid land.  After my  death you are the complete owner and right holder  of the aforesaid land. (In the fourth line I have been scored of)

I have not mortgaged or executed any agreement  or I have not given possession of the suit lands to  anybody.  It has not been attached by any court  order or tendered as security.  Hence this will be  executed with own will and wish."

       14.     The subject matter of the Will was a piece of agricultural land  measuring 4 acres 32 guntas.  That was the only agricultural land in  possession of the testator.  He was although owner of four houses, according  to the appellants, the same had not been generating any income.  Admittedly,  the appellants, other than son of Hanumanthappa, were residing with him.  It  is, therefore, difficult to believe that the defendant \026 respondent No. 1 had  been looking after him or despite her marriage with DW-1, she had been  residing in his house.   

       It may or may not be true that his son Bhimappa had been residing  separately, but evidently he had been able to perform the marriage of only  one of his daughters and, thus, six other daughters were yet to be married.   Assuming that Respondent No. 1 was brought up by him, she was married.   Her husband was affluent.  He could afford to purchase the property in  question.  There was, thus, no apparent reason to execute a Will in her  favour depriving his wife and children.

       15.     Why a Will had to be executed and registered without the  knowledge of his wife by Hanumanthappa has not been explained.  There is  nothing on record to show that the testator had any special love or affection  for Respondent No. 1.  Respondent No. 1 did not examine herself.   According to her, she was not even aware of the execution of the Will.  She  came to know the same at a much later stage, i.e., after lapse of 10-12  months.  How and on what basis she obtained the possession of the original

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Will is not known.  On what basis the Sub-Registrar handed over possession  of the Will to DW-1 has not been disclosed.  Had she examined herself, she  could have been accosted with the said question.  It could have been shown  that Hanumanthappa did not have any love and affection for her.  Non- examination of the party to the lis would lead to drawal of an adverse  inference against her.  [See Sardar Gurbakhsh Singh v. Gurdial Singh and  Another, AIR 1927 PC 230, Martand Pandharinath v. Radhabai, AIR 1931  Bom 97, Sri Sudhir Ranjan Paul v. Sri Chhatter Singh Baid & Anr., Tulsi  and Others v. Chandrika Prasad and Others, (2006) 8 SCC 322 and Binapani  Paul v. Pratima Ghosh & Ors, [2007 (6) SCALE 398]  

       16.     Grave suspicion in regard to the execution of the Will arises as  husband of Respondent No. 1 being her power of attorney holder spoke of  an agreement for sale.  According to him, out of a total consideration of Rs.  58,000/- or Rs. 50,000/-, as the case may be, a sum of Rs. 49,000/- had  already been paid.  If that be so, in ordinary course, he would have tendered  the balance amount.  He could have filed a suit for specific performance.  At  least a notice in that behalf could have been served.  Husband of Respondent  No. 1, therefore, admittedly had an eye over the property.  Why only the  agricultural land possessed by Hanumanthappa would be the subject matter  of the Will, thus, in our opinion, has not been proved.  Admittedly he had  been suffering from cancer.  He died only two weeks after the execution of  the Will.

       Contention of DW-1 that they were in possession of the land in  question, cultivated the same for one year and thereafter sold the same, ex  facie does not appear to be correct as the lands had been sold by her on  16.03.1989 whereas the testator died on 11.09.1988, i.e., within a period of  six months from the date of execution of the Will.

       17.     The disposition made in the Will is unfair, unnatural and  improbable as no sane person, save and except for very cogent reasons,  would disinherit his minor children.  DW-1 does not state as to from where  and how he obtained possession of the original Will.

       According to DW-4, he went with the testator at about 4.30 p.m. on  25.08.1998 to Taluk Office.  The Will is said to have been first scribed by  one bond writer.  The same thereafter was typed out by another typist.  It  was brought back to the same bond writer.  He had allegedly read over the  contents of the Will whereafter only Hanumanthappa signed and thereafter  the witnesses put their signatures.  The entire process must have taken about  two hours.  How the Will could be registered on the same day, i.e., beyond  the office hours is again a matter which is beyond anybody’s  comprehension.  DW-5 did not say that the Will was executed and registered  before him.

       In Rabindra Nath Mukherjee and Another v. Panchanan Banerjee  (Dead) By LRs. And Others [(1995) 4 SCC 459], wherein reliance has been  placed by Mr. Mahale, the circumstances preceding the execution of the Will  were taken into consideration.  This Court in the factual matrix obtaining  therein opined:

"8. If a total view is taken of the aforesaid  circumstances, which has to be the approach, we  are of the opinion that the courts below overplayed  some circumstances which they regarded as  suspicious and somehow missed some  circumstances which bolstered the case of the  propounders."           18.     We may, however, notice that in B. Venkatamuni v. C.J.  Ayodhya Ram Singh & Ors. [2006 (11) SCALE 148], this Court upon  considering a large number of decisions opined that proof of execution of  Will shall strictly be in terms of Section 63 of the Indian Succession Act.  It  was furthermore held:

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       "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 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 emphasised that where there are suspicious circumstances, the  onus would be on the propounder to remove suspicion by leading  appropriate evidence stating:

"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."

       19.     Yet again in Niranjan Umeshchandra Joshi v. Mrudula Jyoti  Rao & Ors. [2006 (14) SCALE 186], this Court held:

"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

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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."

       Noticing B. Venkatamuni (supra), it was observed:

       "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.

       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.  [See Venkatachala Iyengar (supra)]"

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

       20.     We are, therefore, of the considered view that the High Court  was not correct in reversing the judgment of the learned Trial Judge.

       21.     For the reasons aforementioned, the judgment of the High  Court is set aside and that of the Trial Court is restored.  The appeals are  allowed.  No costs.