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CASE NO.: Appeal (civil)  5060 of 2005

PETITIONER: Niranjan Umeshchandra Joshi     ..              Appellant

RESPONDENT: Mrudula Jyoti Rao & Ors.        ..              Respondents

DATE OF JUDGMENT: 15/12/2006

BENCH: S.B. SINHA & MARKANDEY KATJU

JUDGMENT: J U D G M E N T

S.B. Sinha, J.

       Appellant is the son of Late Umeshchandra Madhav Joshi (hereinafter  referred to as "the deceased").  He owned considerable properties.  A  Charitable Trust by the name of "Umesh Yoga Charitable Trust" was created  by the deceased in his native village at Manor.  For the said purpose, he  donated 7 acres of land of his own.  4 acres of land was said to have been  donated by the appellant herein.  Deceased purchased a residential house at  Dadar named "Umesh Dham" in 1949.  The first floor of the said house was  used for residence, which he also used for holding Yoga classes and also for  manufacture of Hair Oil. Deceased started yoga classes.  He also started  manufacture of hair oil, namely, (Ramtirth Brahmi Hair Oil).  Sometime  thereafter, he along with his children shifted his residence to the ground  floor of the said house.  He had 7 sons and 3 daughters.  Appellant herein is  his second son.  Respondent No. 2 allegedly eloped  and married a Muslim  boy.  Respondent No. 1, however, had an arranged marriage.  The  relationship amongst the brothers and sisters, except respondent No. 2 was  said to be cordial.  Sudarshan, Jagdish and Pravin were allegedly helping the  testator in management of the business of manufacture of hair oil.  All his  sons, namely, Sudarshan, Dr. Vishnu, Jagdish, Arvind, Sunil and Tarabai  (respondent No. 2) lived together at the same house known as ’Umesh  Dham’.  Appellant herein and another brother Sunil were not married.   Appellant is a doctor of repute.  He is a Gynaeocologist and Obstreticist and  his qualifications are M.D. (Obst. and Gyt.), FISC, FCPC, D.G.O.D.F.P.  He  started his practice in 1971.  He opened a clinic and hospital at Parel.   

       From the records, it appears that the deceased was suffering from   malignancy Liposercoma (sic).  There are some evidences on record to show  that he was also suffering from left ventricular failure with Ischemia heart  disease.  The deceased is said to have no faith in the allopathy system of  medicine.  He had developed some respiratory problem.  He was  investigated by Dr. Panikar, a student of Appellant.  He was taken to ICU of  Breach Candy Hospital on 13.11.1983 by Appellant and his wife.   

       On 14.11.1983, the deceased expressed his desire to execute a Power  of Attorney as also a Will.  On his purported instructions, Appellant  contacted Mr. M.K. Mahimkar, Advocate, who was working with M/s  Ramesh Shroff & Co.  Mr. Mahimkar and Appellant visited the testator at  Breach Candy Hospital.  Deceased instructed Mr. Mahimkar to draft a  Power of Attorney before drafting the Will as he expressed a desire to speak  to his wife before executing the Will.  He allegedly spoke to his wife.  The  Will was drafted the next day.  While the Will was being drafted he asked  Appellant and Pravin, his another son to wait outside the room.  Appellant  and Mr. Mahimkar visited the hospital during non-visiting hours for  execution of the Will.  It was drawn up in Mr. Mahimkar’s handwriting

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allegedly at the spot.  They and one Mr. Phadke, classmate of Mr. Mahimkar  entered the cubicle of ICU of the Hospital at 3.30 p.m. for execution of the  Will.  The deceased sent for Dr. Bhupender Gandhi, a friend of Appellant  for attesting the Will.  He reached the cubicle at about 4.30 p.m.  The Will  thereafter was executed.           Indisputably, the deceased was under the treatment of one Dr.  Udwadia. of the said Hospital.  Appellant neither treated him nor did he  examine him at any point of time.  He even did not know of the  diseases he  had been suffering from.  On 21.11.1983, the deceased was discharged from  the hospital.  He received visitors on 22.11.1983. In the early morning of  23.11.1983, he allegedly asked his wife Tarabai to count the cash  lying in  the almirah.  He died soon after having asked his wife for coffee.   

After cremation of the dead body, the factum of execution of the Will  by the deceased was disclosed.  A meeting of the family members was  arranged in the office of Mr. Mahimkar for inspection of the Will; consent  letters were also prepared; Pravin signed the same at the spot as he was to  leave for Manore.  Xerox copies of the consent letters were prepared.  First  Respondent herein also signed the consent letter.  On 7.12.1983, a joint  consent letter was given by sons of the deceased.  Sunil also gave his  consent letter on the said day separately.   

However, no step was taken for obtaining a probate soon thereafter.   On 1.4.1985, a deed of assignment in regard to the manufacturing unit of  Hair Oil was executed in favour of Sudarshan for a consideration of Rs. 4  lakhs.  As per the deed of assignment, a sum of Rs. one  lakh (hereinafter as  Will) was to be paid on or before 31.12.1986 and the rest of the amount was  to be paid on or before 31.3.1988.  

A Testamentary Application was filed by Appellant on 21.12.1985.   On 8.1.1987, a joint consent letter was filed by Tarabai, Dr. Vishnu, Arvind  and Sunil in the said Testamentary Application.   

       On 14.1.1987, a Promissory Note for Rs.3 lacs was executed by  Sudarshan in favour of Appellant in furtherance of the said deed of  assignment.  On 10.3.1987, a Caveat was filed by Mridula, first Respondent  without affidavit and on 28.4.1987 an Affidavit was filed by her  withdrawing the "no objection" earlier given for grant of probate.  She was  allowed to do so after she affirmed on an affidavit in support thereof.   

The second respondent also filed a caveat.  Thereafter a Testamentary  Suit was filed by Appellant before the Bombay High Court wherein  respondents herein were parties.  The hearing was taken up in 1994.   Recording of evidence in the matter commenced on 7.11.1984.  It continued  upto 8.11.1994.  Arguments were heard and concluded in December 1994.   Appellant examined himself in the said proceeding.  He had examined his  mother Tarabai and also the attesting witnesses viz., Mr. Mahimkar and Dr.  Bhupender Gandhi.  He also examined Dr. Vijay Kumar Panikar.   A learned Single Judge of the High Court by a judgment and order  dated 28.11.1995 dismissed Appellant’s application for grant of probate,  inter alia, opining that ’although respondents herein could not prove that the  signatures of the testator appearing in the Will as also those of the attesting  witnesses, were not theirs; the circumstances surrounding the execution of  the Will were so suspicious that it was impossible to believe that the Will  had been executed at the place, time and in the manner suggested by  Appellant’.  In arriving at the said conclusion, the learned Single Judge took  into consideration the purpose for which the Will was proposed to be  executed, the manner in which the same was drafted and executed, the effect  thereof and various other circumstances and in particular the one that  Appellant was totally ignorant of the ailment(s), the deceased was suffering  from.  The learned Single Judge concluded that no case for grant of probate  had been made out.   

An Intra-court Appeal was filed by Appellant thereagainst.  During  the pendency of the Appeal, Purnima, another sister of Appellant took out

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Chamber Summons, revoking her consent to the Probate Petition on  16.6.2003, inter alia, on the allegations that she had doubts about the  genuineness of the alleged Will and wished to support the respondents  herein.  Chamber Summons had also been taken out by Jagdish, Pravin and  Dr. Vishnu in the pending appeal.  They also revoked their consent to the  probate petition and prayed to be joined with Respondents herein.  In  support thereof, an affidavit was affirmed by Jagdish in July 2003 not only  questioning the genuineness of the Will but also expressing his shock and  surprise at the fraud played on all the family members by Appellant.  By   reason of the impugned judgment dated 4.2.2004, a Division Bench of the  High Court affirmed the judgment and order of the learned Single Judge.   

       Mr. Shanti Bhushan, learned Senior Counsel appearing on behalf of  Appellant raised the following contentions in support of the appeal :  (1)     Execution of the Will having duly been proved, the High Court          committed an error in passing the impugned judgment.  The fact that          all the brothers and sisters of Appellant had given their consent,          except Respondent No. 2 herein, who was under the influence of her          husband, who was a Muslim boy clearly  established that the Will was          genuine.   (2)     Subsequent withdrawal of the consent by Mrudula would also show          that she had changed her mind only on the ground of not having been          paid an amount of Rs.50,000/- as was allegedly promised to her which          cannot  be  relied upon.

(3)     The evidence brought on records clearly show:

(i)     The deceased was of sound mind and, thus, had the capacity of          making his Will on 15.11.1983. (ii)    Indisputably, the deceased having executed the Will and the          same having been attested by Shri Mahimkar and Dr. Gandhi,          the genuineness thereof could not have been questioned. (iii)   The background of hospitalization of the deceased had not been          appreciated by the High Court in its proper perspective, as it          failed to consider that he had always been reluctant to take          allopathic drugs and was, thus, expected to be in the hospital for          a short period. (iv)    The deceased was kept in the ICU, not because his condition          was serious but because no bed was available. elsewhere.  (v)     Although she was suffering from cancer, the same being within          tolerable limits, it was not necessary to put him under any          sedative.   (vi)    Deceased left hospital in good health.  He was brought home by          Niranjan.  He went to his office on the first floor and met all his          family members.  On 22.11.1983, he signed a letter of authority          addressed to the Punjab National Bank.  He had also expressed          his desire to go to the village after his discharge from the          hospital.   (vii)   On 22.11.1983, he met many of his friends and enquired about          their various activities.  On 23.11.1983 at 3.00 a.m. he asked          Tarabai, his wife to prepare coffee for him. (viii)  Mrudula has been visiting her father during his illness and at          least she should have testified in the witness box to depose that          in regard to    the deceased’s mental condition and having not          done so, she now should not be permitted to take a different          stand. (4)     Despite overwhelming evidence of his being in a proper state of          mind, no evidence was adduced on behalf of Appellant. (5)     The High Court committed a serious error insofar as it failed to take          into consideration that Appellant did not play an unprominent role in          the preparation of the Will and was not even present at the time when          instructions were being given for its preparation on 15.11.1983 as also          at the time of execution thereof.  (6)     He never visited his father and did not know anything about the          ailments his father was suffering from, which cannot be said to be

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       unnatural, particularly when he was only a gynecologist and not an          oncologist.         Mr. Rajiv Dutta and Mr. Sunil Kumar Gupta, learned Senior counsel   appearing on behalf the first and second Respondents respectively, on the  other hand, submitted : (1)     Both the learned Single Judge and Division Bench of the High Court          having arrived at a concurrent finding of fact, this Court should not          interfere therewith.   (2)     The circumstances in which the Will was prepared, attested and          executed, namely, in a cubicle of ICCU  raise serious doubts about the          genuineness thereof.   (3)     No independent witness having been examined, for reasons being          known to the appellant, the impugned judgment cannot be faulted as          particularly non-examination of the doctor who had been attending the          deceased at Breach Candy Hospital having not been explained, the          case must be held to be shrouded in mystery.   (4)     Both the attesting witnesses Dr. Gandhi and Mr. Panikar being known          to the Appellant for a long time, no reliance has rightly been placed on          their evidence by the High Court.   (5)     There was no reason as to why the deceased would not leave anything          for his other children, particularly when he was running a business          and the residential house was not being used for any charitable          purpose.  (6)     Like Appellant, Sunil, who was the youngest of all, was also          unmarried and having been residing with his father and unemployed,          it was unnatural that no arrangement was made for him.   (7)     Deceased having been suffering from a serious ailment, it was          unlikely that he expressed his desire to execute a Power of Attorney          and Will at the same time. (8)     No reason has been assigned and no explanation has been offered as          to why no step was taken immediately for grant of probate despite the          fact no objection was raised by any of the legal heirs, except the          second respondent. (9)     No explanation has been offered as to why the business of          manufacture of hair oil would be transferred to Sudarshan for           valuable consideration. (10)    The fact that another sister and three brothers of Appellant revoked          their consents and expressed doubts as regards the genuineness of the          Will also establishes that the execution of the Will was surrounded by          suspicious circumstances. (11)    Theory set up by the propounder that the Will was executed in          furtherance of the Charitable Trust activities having been found to be          not correct and the property of the deceased comprised not only of a          business but also a residential house clearly goes to show that the          High Court was correct in opining that the execution of the Will has          not been proved by Appellant.

       Before adverting to the rival contentions of the parties, as noticed  herein before, we would place on record that three brothers of appellant,  namely, Arvind, Vishnu and Sunil had filed interlocutory applications before  this Court for their impleadment in this Appeal.  Mr. Jaideep Gupta,  appearing in support of the said application submitted that they are  supporting the appellants.   

       The learned Single Judge as also the Division Bench of the High  Court had taken great pains in analyzing the evidence, both oral and  documentary, brought on records.   

       The learned Judges proceeded on the basis that the Will in question  bear the signatures of the deceased and might have been attested by Mr.  Mahimkar, Advocate and Dr. Bhupender Gandhi, but circumstances  surrounding the execution of the Will being suspicious and the appellant  having not been able to remove the same, the prayer for grant of probate  should not be granted.  

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       The circumstances enumerated by the learned Division Bench in  affirming the judgment and order passed by the learned Single Judge are as  under :

(i)     The Propounder took  part in execution of the Will, being sole  recipient of the legacy. (ii)    The dispositions made in the Will by the testator are unnatural, unfair  and improbable as wife and grand children were excluded from the  benefit thereof despite the fact that he had love and likings for all. (iii)   There is no recital in the Will that Respondent No. 2 was to be  specifically excluded. (iv)    Why the Will had been executed by the testator within 24 hours of his  hospitalization has not been explained.  (v)     Witnesses to the Will were interested persons,  and evidence adduced  in support of execution of the Will was unsatisfactory, particularly  when the doctor treating him had not been examined. (vi)    The ailment from which the testator had been suffering was not being  disclosed which shows that he might have been terminally ill as  within eight days from execution of the Will, he died. (vii)   There was no satisfactory evidence to show as to why the testator sent  for Dr. Gandhi for attestation of the Will although he did not have  much acquaintance with him. (viii)  No satisfactory evidence was brought on record as regards the cause  of death of  the deceased. (ix)    There is no explanation as to why the appellant and others visited the  hospital during non-visiting hours in the ICU cubicle for execution of  the Will.   

       From the evidence brought on record, it appears that the deceased  knew that he had been suffering from cancer for 10-15 years prior to his  death as he claimed that he was cured of his disease because of his practices  in yoga.  Admittedly, he was suffering from Liposarcoma which is a  malignancy of fat cells.  He was also suffering from left ventricular failure.   The ailments were serious ones as was expressed by Dr. Bhupender Gandhi  in his deposition.  Dr. Gandhi happened to be a long standing friend of the  appellant.  He admitted to have met the deceased only once or twice but  never treated him; even never examined him.  Dr. Panikar was a student of  the appellant.  He was a young doctor.  He had regularly been checking up  the deceased medically.  From the evidence of Panikar, it appears that the  deceased knew that he had been suffering from cancer but according to him  as he used to do yogas, he was cured of the said disease.  He was suffering  from respiratory trouble also.  Deceased although was not taking any  allopathic medicine, he could be persuaded to be hospitalised.  Panikar  assured him that he would be hospitalized only for one night.  Whether  necessary or not, he was admitted in ICU.  The treatment started  immediately.  Presumably because he would not take any oral allopathic  drugs, he was put on intravenous fluid.  If he was aware of the fact that he  would remain in the hospital for one day only, it does not appeal to any  reason as to why he would think of execution of a Power of Attorney as also  of execution of a Will in favour of Appellant at the same time.  If he was  under the impression that he was no longer suffering from cancer, it was  expected that he would think of execution of any document only after he  came back home.  He asked  the appellant only to contact M/s. Shroff & Co.   He did not say about Mr. Mahimkar.  Mr. Mahimkar was said to have been  deputed by the firm.  No evidence to that effect was led.  Admittedly, he was  known to the appellant since 1976.  He had handled the Habeas Corpus  petition before the Bombay High Court filed by the husband of Respondent  No. 2.  Mahimkar came with Appellant.  He was accompanied by a Clerk.   They were allowed to enter ICU without any prior appointment.  There is  nothing to show that permission of the hospital authorities had been taken in  regard to the visit of persons who were not his relatives.  In the small cubicle  of ICU which was separated by curtains only and there were other serious  patients, Power of Attorney and the Will were said to have been drafted.   The execution of the Will was allegedly deferred by a day as deceased  wanted to consult his wife.  According to her, she raised no objection to the

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execution of the Will in favour of Appellant.  Whether the youngest son and  other children were taken into confidence or not, is not known.  Power of  Attorney would have served the necessity of representing the deceased  before various authorities and banks.  The very fact that he wanted to  execute a Power of Attorney clearly shows that he did not believe that he  would meet his end soon.  Ordinarily, a person would not think of execution  of a Power of Attorney and a Will simultaneously.  Although, he chose to  execute the Will, he evidently did not have any document with him for the  purpose of instructing the Advocate effectively and in details.  No document  had been handed over to Mr. Mahimkar by the appellant and the deceased.   He came to the hospital with a Clerk, dictated the Will then and there and  the same was executed by the deceased.  Dr. Gandhi although a friend of the  appellant deposed in his evidence that the deceased had not known him very  intimately.  Why, thus,  he had been called as an attesting witness is a  mystery.  A nurse had allegedly tried to contact him.  Whether he could be  contacted or not is not known.  He, however, walked almost immediately  after the Will was drafted.  He attested the signatures of testator.   

       In his Will, the deceased had, inter alia, declared:-

"I, Umeshchandra Madhav Joshi of Bombay, Indian  Inhabitant, aged 76 years, residing at Umeshdham, 27,  2nd Vincent Square Street, Dadar, Bombay 400 014, do  hereby revoke all my former Wills and testamentary  dispositions and declare this to be my last Will and  Testament.

1.      I appoint my son Dr. Niranjan Umeshchandra  Joshi to be the Executor and Trustee of this my last Will.

1.      Whatever movable and immovable estate I am seized  and possessed of or otherwise well and sufficiently  entitled, the same belong to me absolutely and no one  has any claim or interest whatsoever to or in the same  or any part thereof and I am entitled to make such  dispositions thereof as are hereinafter contained."

       xx                      xx                      xx

"7.     I declare that all the rest and residue of my estate  wheresoever situate, after payment of funeral expenses,  debts, liabilities, probate duty, costs, charges and  expenses of management and administration is  hereinafter referred to as my "Residuary Estates".

8.      I devise and bequeath my residuary estate to my  son Dr. Niranjan Umeshchandra Joshi absolutely.

9.      I authorize and empower my executor and Trustee  to postpone the realization, sale and/or conversion of my  estate or any part thereof for so long as he shall think fit."           

       Why other terms of the Will had to be inserted is not known.  There  were two schedules in the Will.  The first schedule thereof reads as under:-

Valuation of the movable and immovable property of the deceased in  the State of Maharashtra         

1.      Cash in the house                               Rs.     2,434.00 2.      Household goods, furniture              Rs.     1,000.00 3.      Cash in Bank:         i) Punjab National Bank,               Khodadad Circle, Dadar,             Bombay 400 014

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           Current A/c No. 1835                        Rs.3,56,465.85

       ii) Punjab National Bank,              Khodadad Circle, Dadar,              Bombay 400 014                 A/c No. 8794                    Rs.   32,316.47

4.      Leasehold property consisting of         Leasehold land with building standing         thereon known as Umeshdham,  Vincent Square, Street No.2, Dadar,  Matunga Estate, Dadar,  Bombay 400 014, as per the  Valuation report of M/s. Design Collaboration, Architects, Bombay       Rs.4,00,000.00

5.      Securities:         Deposits with Bombay Electric Supply         And Transport Undertaking as security         For payment of energy bill etc. paid         Under Receipt No.61253 dated          27.5.80                                 Rs.     4,850.00                                                         ------------------                                                         Rs.8,12,066.32

       Deduct amount shown in          Schedule No.II                          Rs.4,77,605.30                                                         ------------------                         Net Total                       Rs.3,34,461.02                                                         ===========

       Schedule II details his liabilities to each of such persons named  therein, amounting to Rs.4,77,605.30.  Mr. Mahimkar or Dr. Gandhi do not  say that documents required to prepare the Will were with the deceased.   Deceased was admitted in the hospital on an emergency basis.  Evidently  when he was admitted in ICU, he would not be permitted to carry documents  with him.  It is unnatural that he would remember all the details of his assets  including the amount of cash and the amount lying in bank as also the details  of his liabilities etc.   

       Both the schedules of the Will were meticulously drafted.  Tarabai in  her deposition did not say that she or Appellant had furnished all those  details to Mahimkar in advance.  Except they, in the given situation, no other  could do so.  An inference can, therefore, be safely drawn that Appellant had  a role to play in execution of the Will.  Story of the Will being drafted in the  cubicle of ICU of the Hospital, thus, cannot be believed.  In all probabilities,  Will was drafted by Mahimkar in his Chamber.  It may also be borne in  mind that as the deceased could only sign in English, question of his  dictating the Will and at least the term thereof was wholly unlikely. Will has  been drafted by a professional. The theory set up by the propounder that he  believed that the appellant would carry out his charitable activities is not  reflected from the Will. No reason has been assigned as to why he had  chosen Appellant alone for taking the entire benefit of the legacy.

       It is of some interest to notice that although the amount of cash in  hand had already been disclosed in the first schedule of the Will but when he  came back, he asked Tarabai to count the cash once over again.  What was  the amount, if any, found in the cash-box is not known.   

       It is true that the contesting respondents did not examine themselves,  but it is equally true that apart from his mother and friends, nobody was  examined on behalf of Appellant also.  If the other sons had implicit faith in  their father and accepted that the Will was genuine, they could also have  been examined.  They indisputably signed consent letters.  We do not know

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under what circumstances, consent letters were obtained.  Only Pravin had  given consent in the Solicitor’s office; others gave their consent at a later  stage.  

       What was the frame of mind of the deceased could have been best  stated by the Doctor who was attending on him.  Appellant curiously even  was not aware of the ailments, the deceased was suffering from.  It is  expected that he would have known at least the ailments of his father,  particularly when he was diagnosed to be suffering for ventricular failure.   His other three sons, particularly Sunil had been helping the deceased in  carrying on the business.  There is no averment in the Will how the business  and the Trust would be run.   

Some directions in regard to running of the Trust were also expected  to be given in the Will.

The manner in which the death certificate of the deceased had been  issued also raises some suspicions.  Although, he expired at his own house,  and he was declared dead by Dr. Panikar; the death certificate was prepared  in a printed form.  It was filled up in hand but the time of death was shown  as 7.00 a.m.  The cause of death is said to be respiratory failure.  How the  printed form was filled in, may better be stated in the words of the learned  Single Judge:    "\005The next important document is the Medical  Certificate showing the cause of death given by Dr.  Panikar.  It is a printed form which is filled in hand  wherein the time of death is shown as 7 a.m. and against  "Disease of condition directly leading to death" the  following is written in hand: "Respiratory failure"and as  against "approximate interval between onset and death" 8  days are mentioned.  Under "Antecedent Cause" and  "Morbid conditions, if any, giving rise to the above  cause, stating the underlying condition least"  "Bronchopneumonia & Liposarcoma" in hand are  entered into and as against "Approximate interval  between onset and death" ‘20 days’ are mentioned.  It is  signed by Dr. Panikar with his full name written under  the signature and as against "Address or rubber stamp of  the institution".  Rubber stamp showing "Parel Hospital,  94, Shri Parmar Guruji Marg, Parel, Bombay-400 012" is  affixed."  

Who had filled up the form in not known.  It is nobody’s case that Dr.  Panikar was attached to  Parel Hospital.

Even in the death report entered into the Municipal record of the  Bombay hospital the cause of death was shown to be Bronchopneumonia  and Liposarcoma.   

The learned Single Judge has also noticed that there are documents to  show that the deceased was being treated by several other doctors including  Dr. Anibhut P. Vohra.  All the persons including ’Tarabai’ curiously did not  know the nature of ailments the deceased was suffering from and the period  of his illness.  In her deposition, she was confronted with her affidavit in  earlier litigations but she profusely denied the averments and contents  thereof.  She had also denied the signatures of persons on the documents  pertaining to earlier litigation other than herself and her husband on various  documents with which she was confronted with.  There is no reason as to  why she should do so particularly when her categorical stand in the earlier  litigations was that deceased had been suffering from various ailments since  a long time.   

The conduct of Appellant in executing the deed of assignment in  favour of Sudarshan even before filing the application for grant of probate

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cannot also be appreciated.  Before the grant of probate, he had no legal  authority in that behalf.

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.   

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.   

       There are several circumstances which would have been held to be  described by this Court as suspicious circumstances :-

(i)     When a doubt is created in regard to the condition of mind of the  testator despite his signature on the Will; (ii)    When the disposition appears to be unnatural or wholly unfair in the  light of the relevant circumstances; (iii)   Where propounder himself takes prominent part in the execution of  Will which confers on him substantial benefit.

[See H. Venkatachala Iyengar v. B.N. Thimmajamma & Ors., AIR 1959 SC  443 and Management Committee T.K. Ghosh’s Academy v. T.C. Palit &  Ors. AIR 1974 SC 1495]

       We may not delve deep into the decisions cited at the Bar as the  question has recently been considered by this Court in B. Venkatamuni v.  C.J. Ayodhya Ram Singh & Ors. [2006 (11) SCALE 148], wherein this  Court has held that the court must satisfy its conscience as regards due  execution of the Will by the testator and the court would not refuse to probe  deeper into the matter only because the signature of the propounder on the  Will is otherwise proved.

       The proof a Wille 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

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judge even there exist circumstances of grave suspicion.  [See Venkatachala  Iyengar (supra)]

Even if we apply the tests laid down by this Court in large number of  decisions, including the ones referred to hereinbefore, we are of the opinion  that no case has been made out to interfere with the findings of both the  learned Single Judge as also the Division Bench of the High Court.

       In Venkatamuni (supra), this Court has also opined that the appellate  court while exercising its jurisdiction would ordinarily not interfere with the  finding of fact arrived at by the learned Trial Judge if the view taken by it is  reasonable.  We, therefore, agree with the conclusions arrived at by the High  Court.

       The appeal is dismissed with costs.  Counsel’s fee assessed at Rs.  25,000/-.