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CASE NO.: Appeal (civil)  5032 of 2002

PETITIONER: Daulat Ram & Ors.

RESPONDENT: Sodha & Ors.  

DATE OF JUDGMENT: 16/11/2004

BENCH: ASHOK BHAN & S.H. KAPADIA

JUDGMENT: J U D G M E N T

BHAN, J.

       This appeal, by grant of special leave, is directed against the  judgment and order dated 26.9.2001 of a Single Judge of the High  Court of Himachal Pradesh in Second Appeal No. 212 of 1995.  The  High Court by the impugned judgment has confirmed the judgment  and decree passed by the first Appellate Court and decreed the suit  filed by the Respondent No. 1.

       Facts giving rise to this appeal, in short, are:  

       One Prati, son of Kamna, executed a Will on 11.01.1977 in favour  of his nephews, appellants herein, bequeathing his entire property in  their favour.  In the Will no provision was made by Prati either for his  wife Gulabo or for his daughter Sodha \026 Respondent No. 1 herein  from his another wife Radhi. This Will was duly executed, attested  and registered. Thereafter, on 08.05.1983 Prati executed another Will  wherein he revoked/cancelled his earlier Will dated 11.01.1977 and  bequeathed his property to his daughter, Respondent No. 1. This Will  was duly executed and attested but was not registered.  

       Prati died on 10.05.1983. After his death Respondent No. 1  filed  Suit No. 102 of 1983 on 14.07.1983 for injunction restraining the  appellants from interfering with her possession over the property of  her deceased father claiming herself to be the owner in possession of  the said property or in the alternative for possession thereof by virtue  of Will executed in her favour dated 08.05.1983.  

       Appellants contested the suit denying that the Respondent No. 1  was the daughter of Prati.  That the alleged Will propounded by the  Respondent No. 1 was prepared in collusion with the scribe and the  attesting witnesses. According to them Prati had died issueless. They  propounded the Will dated 11.1.1977 executed by Prati wherein the  entire property was bequeathed by him in their favour and claimed  themselves to be the legal heirs and only successors to the estate of  deceased Prati.  

       Trial Court dismissed the suit filed by the Respondent No. 1.  It  was held that she was not the daughter of Prati.  That Prati did not  execute any Will in favour of Respondent No. 1. It was further  observed that the Will dated 11.01.1977 in favour of appellants was  valid and by virtue of the same appellants were entitled to the estate  left by Prati.   Being aggrieved, Respondent No. 1 preferred civil  appeal.  First Appellate Court after reappraising the entire evidence set

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aside the judgment and decree passed by the Trial Court. The suit filed  by the Respondent No. 1 was decreed by observing that Respondent  No. 1 was the daughter of deceased Prati and a valid Will had been  executed in her favour by Prati.   It was held that she had become the  owner and therefore entitled to the possession of the same.  It was  observed after close scrutiny of both the Wills that the Will dated  11.01.1977 was procured by the appellants under pressure from Prati  which was subsequently revoked by him by executing the second Will  dated 08.05.1983.  

       Appellants preferred a regular second appeal against the  judgment and decree passed by the first appellate Court which was  dismissed being without any merits.  The judgment and decree passed  by the first Appellate Court was confirmed.  It was observed that the  first appellate Court had rightly concluded that Respondent No. 1 was  the daughter of deceased Prati from his wife Radhi and the Will dated  08.05.1983 was validly executed by him while in sound disposing  mind in the presence of the attesting witnesses and the scribe.  

       Being aggrieved the appellants have preferred this appeal.  

       The only point raised before us is that the second Will dated  08.05.1983 executed by Prati was surrounded by suspicious  circumstances and the same was forged.  

       Though appellants in their written statement had averred that  the Will dated 08.05.1983 was forged but no issue was framed on this  point.  No evidence was led by the appellants to prove the forgery.   

       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.

       Respondent No. 1 has successfully discharged the onus of  proving the due execution of the Will.  The two attesting witnesses,  PW-3 and PW-5, have clearly stated in their depositions that Prati was  in sound disposing mind at the time of the execution of the Will and  had put his thumb mark on the said Will after the same was read over  to him in their presence and that they had signed the Will in the  presence of the testator and in the presence of each other.  They have  deposed that Respondent No. 1 was the daughter of Prati and Prati of  his own volition had executed the Will in favour of Respondent No. 1.   PW-5 is a former Member of Legislative Assembly.  PW-3 is a close  relation of deceased Prati.  There is nothing on record to indicate that  they have deposed falsely.  Rather their testimonies inspire confidence.  

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PW-2 is the scriber of the Will and neighbour of deceased Prati.  He  has also deposed that Respondent No. 1 is the daughter of Prati and  that he had scribed the Will at the instance of Prati.  He has also  deposed that Prati had executed the will of his own while in sound  disposing state of mind.  The Will propounded by the appellants has  been specifically revoked/cancelled by the Prati in his later Will  stating therein that the earlier Will was got written from him forcibly  by the appellants.  Assertion in the second Will by the testator about  the earlier Will having been forcibly got executed from him by the  appellants is corroborated by the fact that in the earlier Will it was  shown that the testator had no child or heir except the appellants and  the fact of presence of Respondent No. 1, daughter of testator, was  suppressed.  From the reading of the first Will it is clear that  appellants were aware that Prati had a daughter who could at any  time lay her claim to the property of her father.

       The only suspicious circumstance surrounding the Will pointed  out is that Prati had thumb-marked the second Will, whereas the  earlier Will had been signed by him.  According to the appellants this  shows that Prati was physically incapable of executing the Will.   According to them, Prati was unconscious for 2 \026 3 days prior to his  death which took place a day next to the execution of the Will.   Counsel for the appellants referred to the statement of DW-6,           Devi Ram \026 a purohit, who has stated that he had gone to the house of  Prati a day or two earlier for pundhan which was done by one of the  appellants as Prati was not in a position to do so being unconscious.   We do not find much substance in this submission as it has come on  record that though Prati was illiterate he had learnt to put his  signatures, but most of the time he used to put his thumb impression.   He was 84-85 years of age.  In the face of unequivocal and trustworthy  statements of scribe PW-2 and the attesting witnesses PW-3 and PW-5,  much reliance cannot be placed on the testimony of DW-6.  No other  witness has been examined to show that Prati was unconscious at the  time of the execution of the Will.

       The burden to prove that the Will dated 8.5.1993 executed by  Prati in favour of his daughter was forged or was obtained by undue  influence or by playing a fraud was on the appellants which they have  failed to discharge.  No evidence was led by them on either of these  points.

       Be that as it may, the second Will executed by Prati has been  proved to be genuine and validly executed by him wherein he has  bequeathed his entire property to his daughter, Respondent No. 1.   The earlier Will executed in favour of the appellants has been  specifically revoked.  Since the earlier Will stands revoked it cannot be  given effect to.  

       We agree with the findings recorded by the High Court that  Respondent No. 1 is the daughter of Prati and Prati had executed a  valid will in her favour.  

       There is no merit in this appeal and the same is dismissed with  no order as to costs.