Dattatreay Kapdeo vs Dileep Ganpat Rao Kapdeo

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taking into consideration the additional evidence sought to be adduced. Such occasion would arise only if on examining the evidence as it stands the,

court comes to the conclusion that some inherent lacuna or defect becomes apparent to the Court. (Vide: Arjan Singh v. Kartar Singh & Ors., AIR",

1951 SC 193; and Natha Singh & Ors. v. The Financial Commissioner, Taxation, Punjab & Ors., AIR 1976 SC 1053).",

In this application, there is no explanation as to why those documents could not be produced earlier, despite the fact they were found from the",

house of plaintiff himself as stated in the application. Moreover, those documents produced by plaintiff pertains to year 1962-63 and not relevant for",

the purpose of establishing the mental and physical condition of the testator at the time of execution of the Will i.e., in the year 2003.",

The only question to be considered in the appeal is whether the Will could be said to be executed as per Section 63 (c) of the Succession Act.,

In Guro (Smt) vs. Atma Singh and others [(1992) 2 SCC 507], the Apex Court has held thus:",

“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 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 legitimate suspicion before the document can be accepted as the last will of the testator. S. Venkatachala Iyengar v. B.N. Thimmajamma,

[AIR 1959 SC 443], Rani Purnima Devi v. Kumar Khagendra Narayan Dev [AIR 1962 SC 567], Jaswa nKtaur v. Amrit Kaur [(1977) 1 SCR",

925]""Â Â",

In Shantidevi Vs. Dropati Devi (2006) 13 SCC 775, the Apex Court has held as under :-",

“A bare perusal of the plaint filed by respondent No.1 that the validity and/or legality of the will has been challenged on a number of grounds;,

one of them being suspicious circumstances surrounding the execution of will purported to have been executed by Smt. Budho Bai. There cannot be,

any dispute with regard to the proposition of law that the onus of proof to establish that the will was validly executed by the testator was on the person,

who was a beneficiary thereunder.,

In the case of Sridevi and others Vs. Jayaraja Shetty and others (2005) 2 SCC 784 the Apex Court has held as under :-,

“The propounder of the will has to show that the will was signed by the testator; that he was at the relevant time in sound disposing state of mind;,

that he understood the nature and effect of dispositions and had put his signatures to the testament of his own free will and that he had signed it in the,

presence of the two witnesses who attested in his presence and in the presence of each other. Once these elements are established, the onus which",

rests on the propounder is discharged.â€​,

In the present case, the defendant had disputed about the physical and mental condition of the testator. Hence, it was necessary for the plaintiff to",

adduce satisfactory evidence with regard to the nature of illness of the testator and about his mental capacity to execute the Will. However, his own",

witness PW-2 Rohini and PW3 Jagannath, who admittedly take land for cultivation as ‘Sikmi’ from the plaintiff, had admitted that the testator",

was weak and mentally incapacitated and dependent upon the plaintiff for looking after his property. PW-4 Sukhdev village Kotwar and (PW-5),

Leela, who is the sister of the plaintiff and lived with him had also admitted that Purshottam was physically very weak and of feeble mind and due to",

his mental condition could not read or write and for this reason he was never married.,

The plaintiff himself has admitted that since 1996-97, he was looking after Purshottam and his property as he was weak and unable to look after",

himself.,

PW/2 Rohini and PW/3 Jagannath were called as attesting witnesses for the purpose of proving the execution of the Will. PW/2 Rohini apart from,

stating that Purshottam before dying has made a Will in favour of his younger brother, had remained silent about the Will or its execution. He had also",

not said anything about his signing the Will as witness or seeing the testator signed on it nor had he identified any of the signature.,

PW/3 Jagannath had deposed that Puroshattam was not well in the month of June-July, 2003 and died in July, 2003. Though he admitted his",

signature on the Will (Ex.P/3) but clearly stated that he signed the document after Purshattam had left. He did not say that Purshottam has signed in,

his presence nor has he identified the signature of Purshattam and admitted that he had not signed on any other document. It is an admitted fact that,

these witnesses take land for cultivation as ‘Sikmi’ from the plaintiff. Hence, considering the overall circumstances and the facts the testimony",

of these witnesses are not found to be trustworthy.,

Section 63 (c) of the Succession Act lays down the requirement of a valid and enforceable Will that itshall be attested by two or more witnesses,",

each of whom has seen the testator sign or affix his mark to the Will, and each of the witnesses has signed the Will in the presence of the testator.",

From the deposition of PW/2 and PW/3 the signingof Will by Purshattam in presence of PW/2 and PW3 and their signing in presence of,

Purshottam is not proved. Apart from this, the evidence of other plaintiff’s witnessess and his own statement that the testator was weak and",

much dependent on the plaintiff cannot be ignored while examining the validity of the Will.  There were suspicious circumstances surrounding the,

Will which the plaintiff/appellant has failed to remove.,

In view of the aforesaid, the concurrent finding of facts recorded by the Courts below do not suffer from any infirmity or illegality warranting",

interference by this Court.,

SECOND APPEAL No. 1077/2017,

(Dattatreay Kapdeo Vs. Dileep Ganpat Rao Kapdeo),

No substantial question of law arises for consideration in the present appeal. The appeal being devoid of merit, is accordingly dismissed.",