Gumat Ram vs Smt. Rukmani Devi

Kamlesh Sharma, J.—This appeal u/s 100 CPC is directed against the decree and judgment dated 16.3.1993 passed by the Addl. District Judge, Kullu, District Kullu, whereby the appeal of the respondent-plaintiff Smt. Mukamani Devi was accepted and her suit was decreed declaring her in joint possession of the land in disputed in equal share alongwith the appellant-defendant Gumat Ram. The will dated 5.4.1976 Ex. P-2, (also marked as Ex D-1) has been declared shrouded in suspicious circumstances, hence bad.

The parties are brother and sister. The dispute between them is in respect of land measuring 46-18-0 Bighas comprised in Khasra Nos. 680, 686, 690, 697, 700, 703, 726, 737, 747, 748, 984, Khewat No. 124, Khatauni No. 204, situated in Phati Shillihar, Kothi Khokhan, Tehsil and District Kullu. The claim of the sister is that after the death of her father, she has inherited half of the land in dispute and the mutation of inheritance in favour of her brother for whole of the land in dispute, on the basis of the will dated 5.4.1976 Ex. P-2 is bad. According to her, her father Parsu did not execute the Will dated 5.4.1976 Ex. P-2 is bad. According to her brother and it is a "....forged and faked document created by the defendant after the death of deceased in connivance with the scribe and marginal witnesses, solely with an idea of disinheriting the plaintiff from the estate of deceased...."

The brother resisted the suit and took a number of preliminary objections. On merits, his case was that he was not joint owner in possession of the land in dispute but was exclusive owner in possession by virtue of the Will dated 5.4.1976, Ex. P-2. He has specifically alleged that his sister was married and had been living with her husband in another village. For the reason of her being married and sufficient dowry giving in her marriage, his father bequeathed whole of his property in his favour out of love and affection and also.because he was living with him and looking after him. According to him, the Will dated 5.4.1976 propounded by him was valid and legal document.

The trial Court by its decree and judgment dated 35.3.1989, dismissed the suit holding that the brother was able to prove the execution and attestation of the Will made in accordance with law and there were no reasons to declare it not a genuine and valid document. However, in appeal preferred by the sister, the Addl. District Judge has set aside these findings and has held the will in question as not genuine and a fake document, shrouded in suspicious circumstances. Hence the present Regular Second Appeal.

This Court has heard the learned Counsel for the parties and gone through the record. Sh. Bhupender Gupta appearing for the brother, has argues that the findings of fact arrived at by the first appellate Court that the will is not a genuine document and is shrouded in suspicious circumstances deserved to be interfered with by this Court on the ground that he has adopted a wrong approach to come to these findings and the alleged suspicious circumstances have been duly explained by the propounder. He has tried to urge that in fact there are only minor contradictions in the statements of the scribe and the marginal witnesses, which were bound to occur in the normal course as their statements were being recorded after more than eleven years. According to Sh. Gupta it is not the case of the sister that the thumb impression of the father on the will in question was not genuine or the will was got executed from him by exercising coercion or undue influence or fraud and in view of due discharge of onus by the brother to prove that the execution and attestation of the will in question was done in accordance with Section 63 of the Succession Act, the will could not be held unnatural and shrouded in suspicious circumstances for the reason that the daughter, who is a natural heir, has been disinherited. Mr. Gupta has referred to some judgments of the Supreme Court on the construction of the will and also that how its genuineness is to be tested which this Court will refer to in the latter part of the judgment.

On the other hand Sh. R.L. Sood, learned Counsel for the sister, has taken this Court through the evidence to support the judgment of the first appellate Court to point out that the execution and attestation of the will is not proved and it is shrouded by a number of suspicious circumstances. According to Sh. Sood, the evidence on record in respect of suspicious circumstances deserves to be analysed in the background that the testator, father of the parties, Parsu, was illiterate, more than 80 years of age, a rustic villager and the will in question has come from the custody of the propounder, who had received from the testator on the day it was alleged to have been executed and attested. The first suspicious circumstance pointed out by Sh. sood is that the presence of the scribe Murli Ram (DW-2) as well as marginal witnesses Hari Ram and Chuhru (D.W.-3 and D.W.-4) at the time of alleged execution and attestation of the will at Dohra Nalla is in doubt due to many discrepancies in their statements.

The second suspicious circumstance pointed out by Sh. sood is that the statement of all these three witnesses in the examination-in-chief are so similar and mechanical that a doubt arises about their veracity. Above all, they have not stated what was in fact the wish of the testator which was put in writing by way of the will in question by the scribe (D.W.2) and attested by the marginal witnessed (D.W.3 and D.W.4) D.W.2 Murli has only stated that Parsu told him what he wished and he put that into writing within 45 minutes. According to him and marginal witness Hari Ram (D.W.3), no rough draft was prepared. Further, the statement of the scribe (D.W.2) and another marginal witness Chuhru (D.W.4) that the contents of the will were not dictated by the Testator to the scribe, has been contradicted by Hari Ram (D.W.3) who has categorically stated that whatever Parsu was saying the scribe was writing. But Hari Ram (D.W.3) has not been able to give the contents of the will which created serious doubt about his presence because had he been present he would have remembered the contents of the will in question as these are very simple, submits Sh. Sood. He also points out that the statement of Hari Ram (D.W.3) is unnatural that the testator did not disclose to him the purpose for which he had asked him to accompany him and disclosed it only at the time he asked the scribe Murli Ram (D.W.2) to write the will in question, though he had accompanied the testator for about a couple of kilometres from his house to Dohra Nalla.

The third suspicious circumstance urged by Sh. sood to assail the execution and attestation of the will is that all the three witnesses have contradicted each other in respect of the sequence in which they signed or thumb marked the will as scribe or marginal witnesses. Sh. Sood has emphasised the statement of D.W@.3 who was categorical that he had signed the will in question but when he was confronted with it he did not find his signatures and was not even able to identify his thumb impression out of two thumb impressions on the will, one being of the testator, similarly, the statement of the other marginal witness Chuhru (D.W.4) seems to be tutored as though he could remember the date and the contents of the will in question but could not give account of important events of his personal life. sh. Sood has also tried to urge that the evidence on record that after the marriage the sister was residing with the father, alongwith her husband, and she had brought up the brother whose mother had died when he was hardly two years of age, belie the reason given in the will in question for her disinheritance that she was residing with her husband in his village and sufficient dowry was given to her at the time of her marriage. According to him, from the preponderance of evidence on record, it cannot be said that the brother is able to prove his defence that the sister was not residing with her father after her marriage and serving him. In these circumstance, had the will been executed by the father, the sister would have come to know about it in the normal course. Sh. sood has also referred to some judgments of the Supreme Court for the construction of the will and also the tests for examining its genuineness.

Now, this Court will refer to the judgments of the Supreme Court cited by the learned Counsel for the parties in respect of construction of a will. In the basic judgment of H. Venkatachala Iyengar Vs. B.N. Thimmajamma and Others, , the learned Judges of the Supreme Court observed:

...It would prima facie be true to say that the will has to be proved like any other document except as to the special requirement of attestation prescribed by S. 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters.

However, there is one important feature which distinguishes will from other documents Unlike other documents, the will speaks from the death of the testator, and so, when it is propounded or produced before a Court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the; question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so in dealing with the proof of wills the Court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator''s mind and his signature as required by law courts would be justified in making a finding in favour of propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.

(Emphasis supplied).

It is further held by the learned Judges of the Supreme Court that it from the evidence produced by the propounder of the will certain suspicious circumstances arise, the initial onus on him becomes very heavy unless it is satisfactorily discharged. 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 are to be proved by the caveator but it would be a part of the initial onus on the propounder to remove any such legitimate doubt in the matter.

The above stated tests have been affirmed by the Constitution Bench of the Supreme Court in Shashi Kumar Banerjee and Others Vs. Subodh Kumar Banerjee since deceased and after him his legal representatives and Others, and it has been held that where there ate suspicious circumstances, it is for the propounder to satisfy the conscience of the Court even if the caveator does not allege undue influence, fraud and coercion. The learned Judges enumerated the suspicious circumstances, as to the genuineness of the signatures of the testator, the condition of the testator''s mind, the dispositions made in the will being unnatural, improbable or unfair in the light of relevant circumstances or there might be other indication in the will to show that the testator''s mind was not free. In such a case, the Court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last will of the testator.

In another judgment of the Supreme Court in Smt. Sushila Devi Vs. Pandit Krishna Kumar Missir and Others, it is further explained that the first thing which is required to be seen is whether the evidence relating to the execution of the will is satisfactorily proved, if yes, it is immaterial that the testator had not bequeathed any property to one of his children which may sound unnatural. The only thin is that in such a case, the Court has to scrutinise the evidence in support of the execution t\\of the will with a greater degree of care than usual because every person must be presumed to act in accordance with the normal human behaviour but there is not gainsaying the fact that some individuals do behave in an abnormal manner.

In another case Smt. Indu Bala Bose and Others Vs. Manindra Chandra Bose and Another, , the learned Judges of the Supreme Court have reiterated the suspicious circumstances which may be as to the genuineness of the signatures of the testator, the condition of the testator''s mind, the disposition made in the will being unnatural improbable or unfair in the light of relevant circumstances or there might be other indication in the will to show that the testator''s mind was not free. If the propounder him self takes a prominent part in the execution of the will which confers a substantial benefit on him, that is also a circumstance to be taken into account and the propounder is required to remove the doubt by clear and satisfactory evidence. It is also laid down that "Any and every circumstance is not a suspicious circumstance. A circumstance would be suspicious when it is not normal or is not normally expected in the normal situation or is not expected of a normal person."

(Emphasis supplied)

In a recent judgment of the Supreme Court in Ram Piari Vs. Bhagwant and others, it is laid down by the learned Judges of the Supreme Court that in the facts and circumstances of that case, disinheritance of a natural heir, who is a close relation, becomes a suspicious circumstances:

Where the testator, a father executed a will bequeathing all his property in favour of sons of one daughter and disinherited the other daughter who had no sore or sour relations with testator and it was found that even though the testator could sign yet he put his thumb mark on the Will and the professional scribe fetched by beneficiary''s father admitted that when he reached beneficiary''s residence where the will was executed he found testator covered with guilt with whom he did not talk nor enquire about his health, the finding as to genuineness of will recorded by the Court by erroneous application of principle of law could be interfered with under Article 136. 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 disinheritance is amongst heirs of equal degree and no reason for exclusion is disclosed, then the standard of scrutiny is not the same and if the Court failed to be alive to it then their orders cannot be said to be beyond review.

A Division Bench judgment of this Court in Smt. Uttami v. Shri Ram Dass etc. ILR 1975 (HP Series) 441, cited by Sh. Bhupender Gupta, is on the facts of that case where it was found that though the will was unnatural as the near relation was disinherited, yet, it was held genuine in view of the proof of its due execution and attestation on record and the propounder of the will succeeding in dispelling the suspicious circumstances.

So far the present case is concerned, the findings of the first appellate Court that the will was shrouded in suspicious circumstances are findings of fact which he has arrived at on the preponderance of evidence adduced by the parties. This Court is not supposed to interfere with these findings of fact by re-appreciating the evidence. However, the submission of Sh. Gupta is correct that disinheritance of daughter and bequest of whole of the property in favour of the only son itself is not a suspicious circumstances if the execution and attestation of the will is proved in accordance with law. But in the present case, though the execution and attestation has been proved by producing the scribe and the marginal witnesses, yet the close scrutiny of their evidence does not inspire confidence to come to definite findings that the will in question was executed by Parsu, the father of the parties, in the presence of two marginal witnesses Hari Ram (D.W.3) and Chuhru (D.W.4). The contradictions pointed out by Sh. R.L. Sood in their statements may not be material if seen separately but their cumulative effect definitely created doubt in the mind of a prudent person that the will in question may not be a genuine document. Above all, from the preponderance of evidence on record, it is proved that after her marriage, the sister had been living with the father alongwith her husband and serving the father, therefore, it is not believable that she did not come to know that her father had executed a will in favour of her brother and disinherited her. In view of this conclusion, the reason given in the will for the disinheritance of the sister is also incorrect which makes the will doubtful. Moreover, there is nothing on the record that the relations between the father and the daughter were strained which made the father to disinherit her. The sister appears to be a reasonable person as she did not object when the father had already bequeathed a part of his property in favour of the brother by way of a gift during his life time. Therefore, this Court does not find any reason to interfere with the decree and judgment of the Addl. District Judge.

17.The result of the above discussion is that there is no comment in this appeal and it is dismissed in limine. Costs easy.