Dillon Singh vs Amruta Bai

Sanjay Yadav, J.—Heard on admission.

This second appeal at the instance of defendants is directed against the judgment and decree dated 7.9.2007 by District Judge, Balaghat in Civil Appeal No.3-A/2006 affirming the judgment and decree dated 24.12.2005 by Third Civil Judge, Class-II Balaghat in Civil Suit No.86-A/2004.

Disbelieving genuineness of Will dated 15.3.1999 said to be executed by Devkibai in favour of Shobhalal bequeathing land bearing Kh.No.41/4 and 43 admeasuring 4.67 acres situated at village Ratnara Halka No.22, Revenue Circle Hatta District Balaghat, trial Court decreed the suit filed by the plaintiff/respondents No.1 for partition holding plaintiff entitled for half of the share i.e. 2.31 acre in the suit property.

Detailed analysis of the manner in which the stamp paper were obtained and thumb impression were obtained three-four days prior to death of Devkibai overwriting in the testament and the evidence by the attesting witnesses led the trial Court conclude in paragraphs 13, 14, 15 and 16 of the judgment that the Will Ex.D/1 was not free from doubt that the same was executed out of free Will and without duress and coercion.

In H. Venkatachala Iyengar Vs. B.N. Thimmajamma and Others, it has been held :

"20.There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder''s case that the signature, in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator''s mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator''s free will and mind. In such cases the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter."

In Guro (Smt.) Vs. Atma Singh and Others, ,their lordships were please to observe:

"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 S. 63 of the Indian Succession Act, 1925. 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."

In B. Venkatamuni Vs. C.J. Ayodhya Ram Singh and Others, , their Lordships were pleased to hold:

Section 63 of the Indian Succession Act provides :

"63. Execution of unprivileged wills. * * *

a) the testator shall sign or shall affix his mark to will, or it shall be signed by some other person in his presence and by his direction.

b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.

(c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."

Proof of a Will shall strictly be in terms of the above mentioned provisions.

It is, however, well settled that compliance of statutory requirements itself is not sufficient as would appear from the discussions hereinafter made.

Each case, however, must be determined in the fact situation obtaining therein.

Recently, in Yumnam Ongbi Tampha and Ibemma Devi Vs. Yumnam Joykumar Singh and Others, , it was observed by their Lordships:

"12. The attestation of the will in the manner stated above is not an empty formality. It means signing a document for the purpose of testifying of the signatures of the executant. The attested (sic attesting) witness should put his signature on the will animo attestandi. It is not necessary that more than one witness be present at the same time and no particular form of attestation is necessary. Since a will is required by law to be attested , its execution has to be proved in the manner laid down in the section and the Evidence Act which requires that at least one attesting witness has to be examined for the purpose of proving the execution of such a document.

Therefore, having regard to the provisions of Section 68 of the Evidence Act, and Section 63 of the Succession Act, a will to be valid should be attested by two or more witnesses in the manner provided therein and the propounder thereof should examine one attesting witness to prove the will. The attesting witness should speak not only about the testator''s signature or affixing his mark to the will but also each of the witnesses had signed the will in the presence or the testator."

In the case at hand as found by the trial Court that the execution of Will dated 15.3.1999 being not free from doubt and that the defendants failed to discharge the onus of establishing its genuineness. Even the Appellate Court affirmed the findings as regard to the Will.

These findings by both the Courts being not perverse, no substantial question of law arises for consideration.

Consequently, Appeal fails and is dismissed. No costs.