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PETITIONER: RAM PIARI

       Vs.

RESPONDENT: BHAGWANT & ORS.

DATE OF JUDGMENT06/03/1990

BENCH: SAHAI, R.M. (J) BENCH: SAHAI, R.M. (J) SHETTY, K.J. (J)

CITATION:  1990 AIR 1742            1990 SCR  (1) 813  1990 SCC  (3) 364        JT 1990 (1)   420  1990 SCALE  (1)427

ACT:     Indian      Succession-Act,      1925:      Testamentary succession--Will-Execution of--Genuineness--Mere  production of  scribe and attesting  witnesses--Not  sufficient--Suspi- cious  circumstances  to be ruled out-Conscience  of  Courts satisfaction of--Not only on execution--Also on  authentici- ty.     Constitution  of India, 1950: Article  136--Findings  of fact-Erroneous application of principle of  law--Miscarriage of justiceInterference justified.

HEADNOTE:     The  appellant’s  father executed a Will, just  one  day prior  to his death, bequeathing all his property in  favour of the sons of appellant’s only sister. The testator was ill and  lived  with the beneficiaries six months prior  to  his death.  Though  the testator could sign, he  put  his  thumb impression on the Will.     The disinherited daughter challenged the genuineness  of the  Will on the ground that there were  suspicious  circum- stances and the propounder took active part in the execution of  the Will. The Courts below right up to High  Court  held that the execution of the Will was beyond doubt. Aggrieved, she has preferred this appeal, by special leave. Allowing the appeal, this Court,     HELD: 1.1 Although freedom to bequeath one’s own proper- ty  amongst  Hindus is absolute both in extent  and  person, including  rank stranger, yet to have testamentary  capacity or  a  disposable  mind what is required  of  propounder  to establish  is that the testator at the time  of  disposition knew  and understood the property he was disposing and  per- sons  who were to be beneficiaries of his disposition.  Pru- dence, however, requires reason for denying benefit to those who  too  were entitled to bounty of testator  as  they  had similar  claims on him. Absence of it may not  invalidate  a Will but it shrouds the disposition with suspicion as 814 it  does  not give any inkling to the mind  of  testator  to enable  the Court to judge if the disposition was  voluntary act.  Taking active interest by propounder in  execution  of Will raises another strong suspicion. Mere execution of Will

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by producing scribe or attesting witnesses or proving  genu- ineness  of testator’s thumb impressions by  themselves  was not  sufficient to establish validity of Will unless  suspi- cious circumstances, usual or special, are ruled out and the Court’s  conscience is satisfied not only on execution,  but its authenticity. [815D-G]     H. Venkatachalliah v.N. Themmajamma, AIR 1959 SC 443 and Kalyan  Singh v. Smt. Chhoti & Ors., [1989] JT  439,  relied on.     1.2  Happy  marriage or financially  well-settlement  of appellant  could  not add to genuineness of Will.  The  High Court  in  recording this  finding,  completely  misdirected itself.  More so, when no finding of dire  circumstances  of respondent  to help out of which testator dis-inherited  the other daughter, was recorded by any courts. [817A-B]     2. Although this Court does not normally interfere  with findings of fact recorded by courts below, but if the  find- ing  is  recorded by erroneous application of  principle  of law,  and  is apt to result in miscarriage of  justice  then this  Court will be justified in interfering  under  Article 136. [817E-F] Malkani v. Jamadar, AIR 1987 SC 767, distinguished.

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 4499  of 1986.     From  the  Judgment  and Order dated  11.8.1986  of  the Punjab and Haryana High Court in R.S.A. No. 974 of 1985  and Civil Misc. No. 1034-C of 1985.     Harbans  Lal, Dr. Meera Agarwal, (N.P.) and R.C.  Mishra for the Appellant.     S.K. Mehta, Aman Vachher and Atul Nanda for the Respond- ents. The Judgment of the Court was delivered by     R.M.  SAHAI,  J.  Disinherited daughter,  under  a  Will alleged  to have been executed by her father one day  before his death bequea- 815 thing all his property in favour of sons of her only sister, has  assailed validity of orders of three courts  below  for failure to apply the rule that presumption of due  execution of a pious and solemn document like Will stood rebutted  due to existence of suspicious circumstances which the propound- er  could  not rule out specially when he had  taken  active part in its execution.     Soft cornor for grand-children or likeability for a  son or daughter or their issues is not uncommon to our  society. Rather  at times it becomes necessary either to provide  for the  lesser fortunate or to avoid the property from  passing out of the family. But when disputes arise between heirs  of same  degree, and the beneficiary even chooses to  deny  the blood  ties, and that too unsuccessfully, then  court’s  re- sponsibility  of performing its duties carefully and  pains- takingly  multiplies.  Unfortunately  it  was  not  properly comprehended by any of the courts, including the High  Court which  was  swayed more by happy marriage  of  appellant,  a consideration which may have been relevant for testator  but wholly  irrelevant for courts as their function is to  judge not  to  speculate. Although freedom to bequeath  one’s  own property  amongst  Hindus  is absolute both  in  extent  and person,  including rank stranger, yet to  have  testamentary capacity  or a disposing state of mind what is  required  of propounder  to  establish is that the testator  at  time  of

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disposition knew and understood the property he was  dispos- ing and persons who were to be beneficiaries of his disposi- tion. Prudence, however, requires reason for denying benefit to those who too were entitled to bounty of testator as they had similar claims on him. Absence of it may not  invalidate a  Will but it shrouds the disposition with suspicion as  it does not give any inkling to the mind of testator to  enable the  Court  to judge if the disposition was  voluntary  act. Taking  active interest by propounder in execution  of  Will raises another strong suspicion. In H. Venkatachalliah  v.N. Themmajamma, AIR 1959 SC 443 it was held to render the  Will infirm  unless  the propounder cleared  the  suspicion  with clear  and  satisfactory evidence. Mere execution  of  Will, thus,  by producing scribe or attesting witness  or  proving genuiness of testator’s thumb impressions by themselves  was not  sufficient to establish validity of Will unless  suspi- cious circumstances, usual or special, are ruled out and the courts’  conscience is satisfied not only on  execution  but about  its authenticity. See Kalyan Singh v. Smt.  Chhoti  & Ors., [1989] Judgment Today page 439.     Coming  now to facts it has been found by all the  three courts below that testator was a migrant from West  Pakistan who  after migration resided in village Rupena, was ill  for sometime and lived with his 816 daughter  and her sons who are the beneficiaries six  months prior to his death. It was further found that appellant  was also one of the daughters. No finding was recorded that  she or  her sons had any sore or sour relations  with  testator. But  the  most important finding was that  even  though  the testator could sign yet he put his thumb mark on it. It  was found  to  be genuine. The execution was  thus  held  beyond doubt.  But  it was sufficient to put the  courts  on  alert specially when the professional scribe fetched by  benefici- ary’s  father  admitted that when he  reached  beneficiary’s residence  where  the Will was executed, he  found  testator covered with a quilt in the afternoon of August with whom he did  not  talk nor enquire about his  health.  Unfortunately none  of  the Courts paid any attention  to  these  probably because  they were swayed with due execution even when  this Court in Venkatachalliah’s case (supra) had held that, proof of  signature raises a presumption about knowledge  but  the existence of suspicious circumstances rebuts it.  Importance of  these  aspects would have become apparent  if  they  had examined  the  Will which speaks for itself  but  which  was taken for granted. Relevant part of it is extracted below: "They served me with money and the core of their heart. I am happy with their service. Therefore I make this Will without any  pressure or influence that during my life time I  shall be owner of all my property both moveable and immovable i.e. land,  house etc. After my death my entire  property,  land, houses, shops, factory, machinery, residential house,  resi- dential goods, deposit in Bank or Post office (i.e. whatever is in my name in Punjab or any part of India, it will be  in the ownership of and in possession of my grand sons  (daugh- ters/sons) Harmesh Singh, Mohan Lal, Sohan Lal son of Gurdev Singh son of Raunaq Singh in equal shares. No body else  who may be my near relations or distantly related will have  any right in my property". What strikes immediately is professionalism of the  recital. Grave  doubt arises if recital of each and every item  which could be visualised, was as a result of professional  exper- tise  or the old man was so unwell and died on the next  day that  he could not speak resulting in speculative  narration of property depending on imagination what he must have  been

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possessed of. Mention of house, factory, machinery and  bank deposit  was  meaningful. House had already  been  sold.  No evidence  was led that he was possessed of another house  or that  he  had  any factory or machinery  or  bank  deposits. Explanation  of  learned counsel that omission  was  as  the respondent had challenged the very relation- 817 ship of appellant could not remove the suspicion created  by the recital that bequest was made not by an independent  man after  understanding or on his dictation, but was work of  a scribe  or beneficiary’s father who did not take any  chance and attempted to rope in every possible property that  could have been conceived of. Happy marriage or financially  well- settlement  of  appellant could not add  to  genuineness  of Will.  The High Court in recording this finding,  completely misdirected itself. More so, when no finding of dire circum- stances  of  respondent to help out of which  testator  dis- inherited the other daughter was recorded by any courts.     Ratio in Malkani v. Jamadar, AIR 1987 SC 767 was  relied on  to dissuade this Court from interfering,  both,  because the finding that Will was genuine, was a finding of fact and omission  to mention reason for dis-inheriting the  daughter or  taking prominent part by beneficiary by itself  was  not sufficient to create any doubt about the testamentary capac- ity was because of misunderstanding of the correct import of the decision and the circumstances in which it was rendered. Property in Malkani’s case (supra) was land. Beneficiary was nephew  as  against marned daughter. Anxiety in  village  to protect landed property or agricultural holdings from  going out  of family is well-known. Even though it cannot be  said to be hard and fast rule yet when dis-inheritance is amongst heirs  of equal degree and no reason for exclusion  is  dis- closed, then the standard of scrutiny is not the same and if the  courts below failed to be alive to it as is clear  from their  orders then their orders cannot be said to be  beyond review. Although this Court does not normally interfere with findings of fact recorded by courts below, but if the  find- ing  is  recorded by erroneous application of  principle  of law,  and  is apt to result in miscarriage of  justice  then this  Court will be justified in interfering  under  Article 136.     For the reasons stated above, the appeal succeeds and is allowed.  The  order and judgment of all  the  three  courts below, are set aside and the suit filed by the appellant for declaration  that  the Will executed by her father  was  in- valid, shall stand decreed. The appellant shall be  entitled to its costs. G.N.                                            Appeal   al- lowed. 818