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PETITIONER: SMT.GURO

       Vs.

RESPONDENT: ATMA SINGH AND ORS.

DATE OF JUDGMENT05/03/1992

BENCH: AGRAWAL, S.C. (J) BENCH: AGRAWAL, S.C. (J) FATHIMA BEEVI, M. (J)

CITATION:  1992 SCR  (2)  30        1992 SCC  (2) 507  JT 1992 (2)   125        1992 SCALE  (1)552

ACT:                  Indian Succession Act,      1924-Section   63-Will-Mode   of   proving-Requirements prescribed   to   be   fulfilled-Suspicious   circumstances- Genuineness of will questioned-Onus on propounder to explain to court’s satisfaction-Onus-Nature of.      Constitution  of India,  1950-Article  136-Appeal-Will- Mode of proving-Requirements-Genuineness of will questioned- Duty of propounder to explain the suspicious circumstances.      Constitution  of India,  1950-Article  136-Appeal-Will- Made   of  proving-Suspicious   circumstances-High   Court’s failure to appreciate-Will not proved to be genuine.

HEADNOTE:      Respondent No. 1’s grand father’s brother had two sons, Ganga  and Ranga and daughter, Banti. Ranga and  Banti  died during  the  life time of Ganga. The appellant  was  Banti’s daughter.      On  2.10.1968  Ganga  executed  the  will  in  question bequeathing   his  one-third  share  in  the   property   to respondent No. 1.      On  10.10.1968  Ganga died.  On his  death  proceedings regarding  mutation of the lands were initiated.  Respondent No  1.  sought mutation in his favour on the  basis  of  the will,  whereas  the appellant as the  nearest  heir  claimed mutation in her favour.      The mutation was sanctioned in favour of the  appellant on the ground that the will was not genuine.      A suit for declaration was filed by the respondent No.1 claiming  the one-third share of demised Ganga on the  basis of the will.      The  defendant-appellant questioned the genuineness  of the  will  and the plaintiff-respondent  disputed  that  the appellant  was  not  the  daughter  of  the  sister  of  the testator.                                                        31      The  suit  was  decreed in  favour  of  the  plaintiff- respondent  No. 1 holding that the will was genuine and  the appellant  was the daughter of the sister of  the  testator. Ganga.      The  appeal filed against the decree was  allowed.  The appellate  court  held  that  the will  was  not  a  genuine

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document executed by Ganga in as much as there were  certain features  which  threw suspicion with regard  to  its  valid execution.      The second appeal filed by the plaintiff-respondent No. 1 was allowed by the High Court, which restored the judgment of  the trial court on the view that the will  was  executed validly.      This appeal by special leave was filed by the aggrieved defendant against the judgment of the High Court.      Allowing the appeal filed by the defendant, this Court,      HELD  :  1.01.  The mode of proving  a  will  does  not ordinarily differ from that of proving any other document as to the special requirement prescribed in the case of a  will by Section 63 of the Indian Succession Act. [34F]      1.02.   The  onus  of  proving  the  will  is  on   the 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. [34G]      1.03.  Where, 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 circumstances may be  a  shaky signature,  a feeble mind and unfair and unjust disposal  of property or the propounder himself taking a leading 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 legitimates suspicion before the document can be accepted as the last will of the testator. [34H,35A]      H.  Venkatachala Iyengar v. B.N. Thimmajamma and  Ors., [1959] Supp.1 SCR 426; Rani Purnima Devi v. Kumar  Khagendra Narayan  Dev.,  [1962] 3 SCR 195 and Jaswant Kaur  v.  Amrit Kaur & Ors., [1977] 1 SCR 925 followed.                                                        32      2.01  The  HIgh Court has failed to  attach  sufficient importance  to the various suspicious features  relating  to execution of the will that were pointed out by the appellate court.   The High Court has not even noticed the  fact  that the testator had died within eight days of the execution  of the  will  and  there  is a recital in  the  will  that  the testator had been ill for a long time and was seriously  ill at  the time of execution of the will.  In view of the  said recital, it was necessary for the plaintiff-respondent no. 1 to adduce satisfactory evidence with regard to the nature of the illness of the testator and about his mental capacity to execute the will [37A-C]      2.02  The incorrect statements in the will with  regard to  testator having no sister and respondent no.1 being  his real brother have to be considered. [37C]      2.03.  The circumstances that the testator had not  put his  signature and had put only his thumb impression on  the will,  has been brushed aside by the High Court on the  view that  there  is  no evidence on record with  regard  to  the literacy of the testator.  The Scribe PW.1, has stated  that Ganga  Singh  was  literate  person  and  had  been  writing receipts  etc. even earlier.  In the circumstances,  it  was necessary    for   the   plaintiff-respondent   to    adduce satisfactory  evidence to show why, instead  of  signatures, the  thumb  impression of the testator was obtained  on  the will. [37D-E]      2.04.  Another  significant  feature  which  has   been brushed  aside  by  the  High Court is  about  the  role  of respondent No. 1 in the execution of the will under which he is  the  sole legatee.  The will was  executed  outside  the residence of respondent No.1 on a bahi brought by Tara Singh

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the  son of respondent No. 1. The respondent No.1  has  made contradictory  statements about his presence at the time  of execution  of  the  will.  The High Court  has  ignored  the contradictions  in  the statement of  respondent  No.1,by  a simple observation that this lapse on the part of respondent No.1 may be due to faulty memory or may be he was trying  to avoid  the  criticism  that he has tried  to  exercise  some influence to get the will executed in his favour.  Only  two of the five attesting witnesses have been examined.  Both of them, viz.,P.W.2 and P.W. 3 have made an effort to deny  the illness of the testator at the time of the execution of  the will  and have also departed from their  earlier  statements recorded   during  the  mutation  proceedings.    In   these circumstances,  it  was necessary that the  other  attesting witness  should  also  have  been  examined  by   plaintiff- respondent No.1. [37E-38A]                                                        33      2.05. The High Court was not justified in reversing the findings  of fact recorded by the Appellate Court that  will is  not  proved to be genuine document  executed  by  Ganga. [38B]

JUDGMENT:      CIVIL APPELLATE JURISDICTION ; Civil Appeal No. 3163 of 1983.      From  the  judgment and Order dated 28.10.1982  of  the Punjab  and Haryana High Court in Regular Second Appeal  No. 1504 of 1973.      R. Satish for the Appellant.      The Judgment of the Court was delivered by      S.C. AGRAWAL, J. The question for consideration in this appeal  relates  to  the genuineness of a will  said  to  be executed  by one Ganga Singh whereby he bequeathed  all  his property  to his distant cousin, Atma Singh, respondent  no. 1,  the grandson of the brother of the grandfather of  Ganga Singh.   Ganga Singh had a brother Ranga Singh and a  sister Banti.  Both, RAnga Singh and Banti had died during the life time  of Ganga Singh.  Smt. Guro, the appellant  herein,  is the daughter of Banti.  At the time of his death, on October 10,  1968,  Ganga Singh was having one-third share  in  land measuring  148  kls. 11mls. in Village Dall,  Tehsil  Patti, District Amritsar.  On October 2, 1968, Ganga Singh is  said to have executed the will in question whereby he  bequeathed his entire property to respondent No. 1. After the death  of Ganga Singh, proceedings regarding mutation of the lands  in his share were initiated and in those proceedings Respondent No.1 sought mutation in his favour on the basis of the will. The  appellant  sought mutation as the nearest  heir,  being daughter of Ganga Singh’s sister.  The Assistant  Collector, I  Grade,  Patti sanctioned the mutation in  favour  of  the appellant and did not accept the will on the ground that  it was not beyond suspicion.  Thereafter respondent no. 1 filed a suit for declaration wherein he claimed one-third share of Ganga Singh on the basis of the will dated October 2,  1968. The  said suit was contested by the appellant  who  disputed the  genuinesness  of  the will.  Respondent no  1  did  not accept  the claim of the appellant and disputed that she  is the  daughter  of the sister of the testator,  Ganga  Singh. The Sub-Judge, I Class, Patti by his judgment dated July 25, 1972  decreed the said suit of respondent no. 1 on the  view that  the  execution  of the will by Ganga  Singh  was  duly proved  and at the time of the said execution, the  testator was in a sound state of mind.  The

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                                                      34 Sub-Judge, however, found that the appellant is the daughter of  Ganga Singh’s sister Banti.  On appeal,  the  Additional District  Judge, Amritsar, by his judgment  dated  September 22, 1973, reversed the decree of the Sub-Judge and dismissed the suit of respondent no.1, and found that the will was not proved  to  be a genuine document executed  by  Ganga  Singh inasmuch   as  there  were  certain  features  which   threw suspicion  with  regard to its valid  execution.   The  High Court  of Punjab and Haryana, by judgment dated October  28, 1982, allowed the second appeal filed by respondent No.1 and while setting aside the judgment and decree of the appellate court, restored the judgment of the trial court on the  view that the will had been validly executed.  Feeling  aggrieved by  the said decision of the High Court, the  appellant  has filed this appeal.      In the will, the testator, Ganga Singh has stated  that he  had no issue nor he had any sister and that he  had  one brother  who also died and he is the owner of  the  property and  the  land situated in village Dall.  The  testator  has further stated that he has been ill for a long time and  has become blind and was now seriously ill and there is no  hope for  his  survival.  He has further stated  that  after  his death, Atma Singh, son of Mangal Singh, son of Bahadur Singh would  be the owner o his property because he was  his  real brother and he would be really entitled.  The scribe of  the will  was  Manohar Lal, a shopkeeper in Dall, and  there  is thumb  impression of the testator.  It has been arrested  by five persons, namely, Kehar Singh, Sarpanch Lambardar, Dall, Surjan Singh, Chanan Singh, Sardara Singh and Hazara Singh. In  order  to  prove the will respondent no.1  examined  the scribe Manohar Lal (PW.1) and two attesting witnesses  Kehar Singh (PW.2) and Surjan Singh (PW.3).      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 circumstances may be  a  shaky signature, a feeble mind and unfair and unjust disposal of                                                        35 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. H. Venkatachala  Iyengar  v. B.N.  Thimmajamma  and Ors., [1959] Supp. 1  SCR  426;  Rani Purnima  Devi v. Kumar Khagendra Narayan Dev., [1962] 3  SCR 195; Jaswant Kaur v. Amrit Kaur & Ors., [1977] 1 SCR 925.      In  the instant case, the appellate court  noticed  the following suspicious circumstances:      (1)  The will mentions that the testator had  been  ill for  a  long  time  and was seriously ill  at  the  time  of execution of the will.      (2)  While mentioning that he had one brother  who  had died  the  testator  has stated that he  did  not  have  any sister, which was not correct.

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    (3) Respondent no. 1, Atma Singh the sole legatee,  has been wrongly described as the real brother of the testator.      (4)  No  reasons  are mentioned in  the  will  why  the appellant,  who  was the natural heir of  the  testator  was being ignored.      (5)  Although the testator was literate, the will  does not bear his signature and bears him thumb impression.      (6) The will is an unregistered document not scribed by a  regular deed writer and as such could be prepared at  any time.      (7) The will was executed on October 2, 1968 and within eight days of the execution of the will the testator died on October 10, 1968.      The appellate court has found that respondent no. 1 had made contradictory statement with respect to his presence at the  time  of  the execution of the will  and  that  in  his testimony he claimed that he was not present at the time  of the  execution of the will but in his statement  before  the revenue authorities in the mutation proceedings,  respondent no.1  had stated that the will was executed in his  presence and was thumb marked by Ganga Singh and when confronted with the  said  statement,  respondent no. 1  did  not  deny  the correctness of the record prepared but tried to                                                        36 explain his earlier statement by stating that what he  meant was  that  he  had been informed by Ganga  Singh  about  the execution of the will.  The appellate court also found  that the  Scribe,  Manoharlal had made  contradictory  statements about  the illness of Ganga Singh and that he  first  stated that Ganga Singh was not ill at the time of the Execution of the  will and had subsequently fallen ill and died  of  that illness  but  on further cross-examination, he  stated  that Ganga Singh had been lying ill since two years prior to  the execution of the will.  The appellate court has pointed  out that  Kehar  Singh  and  respondent  no.1,  Atma  Singh  had contradicted  the  recital in the will with respect  to  the illness of Ganga Singh and have stated that he fell ill 7 or 8/10  days prior to his death.  The appellate court  was  of the  view  that the recital in the will to the  effect  that Ganga Singh had been ill since long leads to the  conclusion that due to that illness Ganga Singh was of feeble mind  and it was, therefore, necessary for the plaintiff-respondent to prove  that  advice  for  ignoring  the  natural  heir   was available to Ganga Singh and the will was not the outcome of any undue influence on the part of the plaintiff who was the sole legatee.  Keeping in view the aforesaid  circumstances, the appellate court held that the will was not proved to  be genuine document executed by Ganga Singh.      The High Court, in second appeal, reversed the findings recorded by the Appellate Court and held that the  incorrect statement  in  the will with regard to  testator  having  no sisters  and respondent no. 1 being his real  brother  could not cast any doubt on the contents of those part of the will by  which specified property was bequeathed to  the  legatee and  the  legatee  could  not be  made  to  suffer  by  some untruthfulness on the part of the testator.  As regards, the thumb  impression instead of signatures of the testators  on the will, High Court observed that the extent of literacy of the testator is not apparent from the record and that it was not  the case of the appellant that the thumb impression  on the  will had been obtained after the testator had  actually died and there is no evidence to show that he was not in his senses when the scribe asked him to put his thumb impression on  the will.  As regards the contradictory statements  made

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by  respondent  no.  I about his presence  at  the  time  of execution  of  the will the High Court  observed  that  this lapse  on the part of respondent no. I may be due to  faulty memory or may be he was trying to avoid a criticism that  he had   tried to exercise some influence in getting  the  will executed in his favour.                                                        37      The  High Court, in our opinion, was not  justified  in reversing  the  findings of fact recorded by  the  Appellate Court  which  were  based on a proper  appreciation  of  the evidence on record.  In doing so, the High Court has  failed to  attach sufficient importance to the  various  suspicious features relating to execution of the will that were pointed out  by  the appellate court.  The High Court has  not  even noticed  the  fact that the testator had died  within  eight days of the execution of the will and there is a recital  in this will that the testator had been ill for a long time and was seriously ill at the time of execution of the will.   In view  of  the  said  recital,  it  was  necessary  for   the plaintiff-respondent  no.1 to adduce  satisfactory  evidence with regard to the nature of the illness of the testator and about  his  mental  capacity  to  execute  the  will.    The incorrect  statements  in the will with regard  to  testator having no sister and respondent no. 1 being his real brother have to be considered in this background.  The  circumstance that the testator had not put his signature and had put only his thumb impression on the will, has been brushed aside  by the  High  Court on the view that there is  no  evidence  on record with regard to the literacy of the testator.  We find that  the Scribe, Manohar Lal, PW.1, has stated  that  Ganga Singh was literate person and had been writing receipts etc. even  earlier.  In the circumstances, it was  necessary  for the plaintiff-respondent to adduce satisfactory evidence  to show why, instead of signatures, the thumb impression of the testator  was  obtained  on the  will.  Another  significant feature  which has been brushed aside by the High  Court  is about  the role of respondent no. 1 in the execution of  the will under which he is the sole legatee.  It has been stated by  Manohar  Lal,  PW.1, that Tara Singh,  the  son  of  the respondent  no. 1 had come to call him.  To the same  effect is the testimony of Kehar Singh, PW.2 and Surjan Singh, PW.3 the attesting witnesses.  The will was executed outside  the residence  of  respondent no. 1 on a bahi  brought  by  Tara Singh  the son of respondent no.1. The respondent no. 1  has made contradictory statements about his presence at the time of execution of the will.  The High Court has ignored  these contradictions  in  the statement of respondent no.1,  by  a simple observation that this lapse on the part of respondent no. 1 may be due to faulty memory or may be he was trying to avoid  the  criticism  that he has tried  to  exercise  some influence to get the will executed in his favour.  Only  two of the five attesting witnesses have been examined.  Both of them, viz., Kehar Singh (PW 2) and Surjan Singh (PW 3)  have made an effort to deny the illness of the testator                                                        38 at  the  time  of the execution of the will  and  have  also departed  from their earlier statements recorded during  the mutation  proceedings.   In  these  circumstances,  it   was necessary  that  the other attesting witnesses  should  also have  been  examined by plaintiff-respondent  no.1.   Taking into  consideration  the aforesaid features, we are  of  the view that the High Court was not justified in reversing  the findings  of fact recorded by the Appellate Court that  will is  not  proved to be a genuine document executed  by  Ganga Singh and in holding that the execution of the will had been

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satisfactorily proved by respondent no.1.      The  appeal is, therefore, allowed.  The judgement  and decree   of  the  High Court of  Punjab  and  Haryana  dated October  28, 1982 in Regular Second Appeal No. 1504 of  1973 is  set  aside  and judgment and decree  of  the  Additional District Judge, Amritsar dated September 22, 1973 dismissing the  suit  respondent no.1 are restored.  There will  be  no orders as to costs. V.P.R.                                        Appeal allowed                                                     39                                39