Lashmar Singh vs Bakhshish Kaur and Another

R.K. Nehru, J.—Plaintiff-Appellant Lashkar Singh has come up in this Regular Second Appeal against the judgment and decree of the First

Appellate Court, reversing in appeal, those of the trial Court, resulting in the dismissal of the suit.

Atma Singh was the owner of the suit land. Appellant-Lashkar Singh is his son, Bakhshish Kaur Defendant-Respondent is his daughter and

Defendant-Respondent Smt. Bhago is his widow. Atma Singh died on October 1, 1973. Lashmar Singh Appellant filed a suit for declaration to the

effect that he was the owner of the suit land to the extent of 2/3rd share while Defendant-Respondent Smt. Bhago was the owner to the extent of

1/3rd share, in the suit land on the basis of Will dated August 11, 1973 (Copy Ex. P.1) executed by Atma Singh. It is averred by the, Appellant

that Bakhshish Kaur Respondent was excluded from inheritance but mutation of inheritance was wrongly sanctioned in her favour also to the extent

of 1/3rd share in the suit land.

Defendant-Respondent Smt. Bhago filed written statement admitting the claim of the Plaintiff.

Suit was, however, contested by Respondent Smt. Bakhshish Kaur, inter alia, on the ground that her father Atma Singh had (sic) executed any

valid Will and mutation of inheritance was rightly sanctioned in her favour.

The parties were put to trial on the following issues:

(1) Whether Atma Singh deceased executed a valid Will in favour of the Plaintiff on 17th August; 1973? OPP.

(2) Relief.

The learned trial Judge under issue No. 1 held that the Will in dispute was a valid document executed by Atma Singh and answered Issue No. 1

in favour of the Plaintiff, and against the contesting Defendant, and as a result thereof, decreed the suit in favour of the Appellant,--vide judgment

and decree dated 12th December, 1976.

Smt. Bakhshish Kaur Respondent, feeling aggrieved against the judgment and decree of the trial Court, challenged the same in the First Appeal.

The First Appellate Court, on the basis of the evidence on record, came to the conclusion that the Will in dispute was surrounded by suspicious

circumstances, which the Plaintiff had failed to dispel. It reversed the finding of the trial Court on issue No. 1 by holding that the Will in question

was not a validly executed document and by allowing the appeal, dismissed the suit of the Plaintiff,--vide judgment and decree dated 3rd March,

1979.

Dissatisfied with the judgment and decree of the First Appellate Court, the Plaintiff-Appellant has come up in Regular Second Appeal in this

Court.

I have heard the learned Counsel for the parties and with their help scanned the evidence on record.

The only controversy which requires determination is whether the Will in dispute (Copy Ex. P-1) is or is not a validly executed instrument. In

order to appreciate the above controversy, in a better perspective, it would be of advantage to refer to some of the judgments of the Apex Court

laying down guidelines for appreciating the evidence in the matter of Wills.

The principles governing the mode of proving of a Will carne up for consideration before the Apex Court in Rani Purnima Devi and Another

Vs. Kumar Khagendra Narayan Dev and Another, and while dealing with this aspect, it was observed in para 5 of the judgment as under:

Before we consider the facts of this case, it is well to set out the principles which govern the proving of a Will. This Was considered by this Court

in H. Venkatachala Iyengar Vs. B.N. Thimmajamma and Others, It was observed in that case that the mode of proving a Will did not ordinarily

differ from appeal dismissed the suit of the Plaintiff,--vide judgment and decree dated 3rd March, 1979.

Dissatisfied with the judgment and decree of the First Appellate Court, the Plaintiff-Appellant has come up in Regular Second Appeal in this

Court.

I have heard the learned Counsel for the parties and with their help scanned the evidence on record.

The only controversy which requires determination is whether the Will in dispute (Copy Ex. P-1) is or is not a validly executed instrument. In

order to appreciate the above controversy, in a better perspective, it would be of advantage to refer to some of the judgments of the Apex Court

laying down guidelines for appreciating the evidence in the matter of Wills.

The principles governing the mode of proving of a Will came up for consideration before the Apex Court in Rani Purnima Devi and Another

Vs. Kumar Khagendra Narayan Dev and Another, , and while dealing with this aspect, it was observed in para 5 of the judgment as under:

Before we consider the facts of this case, it is well to set out the principles which govern the proving of a Will. This was considered by this Court in

H. Venkatachala Iyengar Vs. B.N. Thimmajamma and Others, It was observed in that case that the mode of proving a Will did not ordinarily differ

from...might not succeed in removing the legitimate doubt as to the mental capacity of the testator, the dispositions made in the Will might appear to

be unnatural, improbable or unfair in the light of relevant circumstances: or, the Will might otherwise indicate that the said dispositions might 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 was accepted as the last Will of the testator. Further, a propounder, himself might take a prominent part in the

execution of the Will which conferred on him substantial benefits. If this was so it was generally treated as a suspicious, circumstance attending the

execution of the Will and the propounder was required to remove the doubts by clear and satisfactory evidence. But even where there were

suspicious circumstances and the propounder succeeded id removing them, the Court would grant probate, though the Will might be unnatural and

might cut off wholly or in wart near relations.

In Shashi Kumar Banerjee and Others Vs. Subodh Kumar Banerjee since deceased and after him his legal representatives and Others, ,

deceased and after him, his legal representatives and others, it has been observed as under:

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 the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious

circumstances, the onus is on the propounder to explain them to the satisfaction of the court before the court accepts the Will as genuine. Where

the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no such pleas but the

circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court. The suspicious circumstances may be as to the

genuineness of the signature of the testator, the condition of ''he 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 indications in ''he 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

he testator. If the propounder himself takes 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 doubts by clear and satisfactory evidence. If the propounder succeeds in

removing the suspicious circumstances the court would grant probate, even if the Will might be unnatural and might cut off wholly or in part near

relations. It is in the light of these settled principles that we have to consider whether the Appellants have succeeded in establishing that the Will

was duly executed and attested.

The Apex Court again, while dealing with the matter relating to suspicious circumstances, surrounding a Will in case reported as Gorantla Thataiah

Vs. Thotakura Venkata Subbaiah and Others, , observed in para 6 of the judgment as under:

It is well established that in a case in which a Will is prepared under circumstances which raise the suspicion of the court that it does not express

the mind of the testator it is for those who propound the Will to remove that suspicion. What are suspicious circumstances must be judged in the

facts and circumstances of each particular case. If, however, the propounder takes a prominent part in the execution of the Will which confers

substantial, benefits on him that itself is a suspicious circumstance attending the execution of the Will and in appreciating the evidence in such a

case, the court should proceed in a vigilant and cautious manner. It is observed in Williams on ""Executors and Administrators"" Vol. I, 13th, Ed. P.

92:

Although the rule of Roman Law that ''Qui se scripsit haeredem'' could take no benefit under a Will does not prevail in the law of England, yet,

where the person who prepares the instrument, or conducts its execution, is himself benefited by its dispositions, that is a circumstance which ought

generally to excite the suspicion of the court, and calls on it to be vigilant and zealous in examining the evidence in support of the instrument in

favour of which it ought not to pronounce, unless the suspicion is removed, and it is judicially satisfied that the paper does not express the true Will

of the deceased.

According to the decision in Fulton v. Andrew, (1875) 7 HL 448, ""those who take a benefit under a Will, and have been instrumental in preparing

or obtaining it, have thrown upon them the onus of showing the righteousness of the transaction"". ""There is however no unyielding rule of law

(especially where the ingredient of fraud enters into the case) that, when it has been proved that a testator, competent in mind, has had a Will read

over to him, and has thereupon executed it, all further enquiry is shut out."" In this case, the Lord Chancellor, Lord Cairns, has cited with approval

the well known observations, of Baron Parke in the case of Barry v. Butlin (1838) 2 Moo PC 480 at p. 482. The two rules of law set out by

Baron Parke are:

first, that the onus probandi lies in every case upon the party propounding a Will, and he must satisfy the conscience of the Court that the

instrument so propounded is the last Will of a free and capable testator; the second is, that, if a party writes or prepares a Will under which he

takes a benefit; that is a circumstance that ought generally to excite the suspicion of the Court and calls upon it to be vigilant and zealous in

examining the evidence in support of the instrument in favour of which it ought, not to pronounce unless the suspicion is removed, and it is judicially

satisfied that the paper propounded does express the true Will of the deceased. In Sarat Kumari Bibi v. Sakhi Chand 56, bid. App 62 AIR 1929

PC 45, the Judicial Committee made it clear that the principle which requires the propounder to remove suspicion from the mind of the Court is not

confined only to cases where the propounder takes part in the execution of the Will and receives benefit under it. There may be other suspicious

circumstances attending on the execution of the Will and even in such cases it is the duty of the propounder to remove all clouds and satisfy the

conscience of the court that the instrument propounded is the last Will of the testator.

This view is supported by the following observations made by Lindley and Davey, L.JJ; in Tyrrell v. Painton 1894 P 151 at pp 157, 159.

The rule in (1838) 2 Moo PC 480; (1875) 7 HL 448 and Brown v. Fisher (1890) 63 LT 465, is not in my opinion, confined to the single case in

which a Will is prepared by or on the instructions of the person taking large benefits under it, but extends to all cases in which circumstances exist

which excite the suspicion of the Court; and wherever such circumstances exist, and whatever their nature may be it is for those who propound the

will to remove such suspicion and to prove affirmatively that the testator knew and approved of the contents of the document, and it is only where

this is done that the onus is thrown on those who oppose the Will to prove fraud or undue influence, or whatever else they rely on to displace the

case made for proving the Will. (Lindley L.J.)

It must not be supposed the principle in (1838) 2 Moo PC 480 is confined to cases where the person who prepares the Will is the person who

takes the benefit under it that is one state of things which raises a suspicion; but the principle is that wherever a Will is prepared under

circumstances which raise a well-grounded suspicion that it does not express, the mind of the testator the Court ought not to pronounce in favour

of it unless that suspicion is removed. (Davey L.J.)

Again, dealing with the question of onus of presumption, regarding the due execution of Will in Surendra Pal and Others Vs. Dr. (Mrs.)

Saraswati Arora and Another, . Their Lordships observed in para 7 of the judgment thus:

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

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

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

which rests on the propounder is discharged. But there may be cases in which the execution of the Will itself is surrounded by suspicious

circumstances, such as, where the signature is doubtful, the testator is of feeble mind or is overawed by powerful minds interested in getting his

property, or where in the light of the relevant circumstances the dispositions appear to be unnatural, improbable and unfair, or where there are

other reasons for doubting that the dispositions of the Will are not the result of the testator''s free will and mind. In all such cases where there may

be legitimate suspicious circumstances those must 1 e reviewed and satisfactorily explained before the Will is accepted. Again in cases where the

propounder has himself taken a prominent part in the execution of the will which confers on him substantial benefit that is itself one of the suspicious

circumstances which he must remove by clear and satisfactory evidence. After all, ultimately it is the conscience of the Court that has to be

satisfied, as such the nature and quality of proof must be commensurate with the need to satisfy that conscience and remove any suspicion which a

reasonable man may, in the relevant circumstances of the case, entertain. See H. Venkatachala Iyengar Vs. B.N. Thimmajamma and Others, and

Rani Purnima Devi and Another Vs. Kumar Khagendra Narayan Dev and Another, In the latter case this Court after referring to the principles

stated in the former case emphasised that where there are suspicious circumstances the onus will be on the propounder to explain them to the

satisfaction of the Court before the will could be accepted as genuine; and where the caveator alleges undue influence, fraud and coercion the onus

is on him to prove the same. It has been further pointed out that the suspicious circumstances may be as to the genuineness of the signature of the

testator, the condition of the testator''s mind, the depositions made in the will which may be unnatural or Unfair or improbable when considered in

the light of the relevant circumstances.

It is in the light of the principles laid down in the above judgments that the evidence in this case is to be appreciated to find out whether the Will

in dispute (copy Ex. P1) can be said to he a valid instrument executed by Atma Singh testator with his free, sound and disposing mind. In case the

execution of the will appears to be surrounded by suspicious circumstances, in that case, it is incumbent upon the propounder to dispel all those

circumstance attending the will by leading satisfactory evidence.

From the evidence on record, the Court is required to find out whether at the relevant time of the execution of the Will (Ex. P1), the testator

was in his sound disposing state of mind and he had put his signatures or thumb impression thereon, of his own free Will. In case the aggrieved

person challenges the very validity of the Will, it becomes incumbent upon the propounder to establish by leading satisfactory evidence that this

instrument of will in fact was signed of thumb marked by its testator.

If we test the evidence on record on the touch-stone of cross-examination with the aid of the aforesaid well settled principles relating to the due

execution of the Will, then in my view, the Will (Ex. P1) does not appear to be a genuine document and there are a large number of suspicious

circumstances from which it can be inferred that the Will in dispute is a fabricated instrument.

The following facts stand establisted on record:

(i) The earlier Will dated April 18, 1973 was got scribed by a regular deed writer at Hoshiarpur and was got cancelled by a registered document

on June 16, 1973. Under this Will, the Plaintiff was the sole beneficiary. The Will in dispute dated August 17, 1973 was executed within two

months of the cancellation of the first Will. The testator who knew the significance of getting the document registered did not think it proper to get

Will (Ex. P1) scribed by a regular deed writer or to get it registered. The explanation given by the Plaintiff as to why the testator cancelled the

registered Will is that his wife used to quarrel with his mother Smt. Bhago. This explanation runs counter to the reasons given in the Will. In the

Will, it is stated that in the earlier Will, he has not given any share to his wife i.e. Smt. Bhago.

(ii) The recitation in the Will that in the earlier Will, the testator has not given any share to his wife is factually; incorrect because in the earlier

registered Will, the testator has provided for maintenance for his wife.

(iii) The Plaintiff being a beneficiary under the Will took active part in its execution.

(iv) The scribe Sansar Singh PW2 and attesting witnesses Gurbax Singh PW3 and Joginder Singh PW4 of Will (Ex. P1) had gone to the house of

the testator of their own accord without being summoned by him.

(v) The un-natural conduct of the scribe and the attesting witnesses leads to strong inference that they joined hands with the Plaintiff in

manufacturing the Will.

(vi) On the death of the testator, mutation of inheritance was entered on the basis of natural succession. No attempt was made by the Plaintiff to

get the mutation of inheritance entered on the basis of the Will. He did not produce the Will when the Assistant Collector End Grade visited the

village for sanctioning the mutation.

Apart from this, the first Appellate Court, which is a final court of fact, took the following facts into consideration while negativing the Will:

(i) In the Will (Ex. P1), it is stated that the testator was suffering from chronic dysentry and palpitation of heart at the time of the alleged execution

of the Will whereas the Plaintiff has stated that the testator was hale and hearty;

(ii) In the Will, it is recited that if the testator is cured of the disease, he will himself get the Will registered otherwise his son and wife would get it

registered by incurring expenses.

These recitals reflect the guilty conscience of the persons who have got the Will prepared.

(iii) The Will was not registered during the life time of the testator who lived for (sic) months after the execution of the Will. No explanation is

forthcoming for not getting the Will registered during the life time of the testator. The Plaintiff did not get the thumb-impression of the testator on the

Will Ex. P1 compared with his admitted thumb-impression which existed on the Will dated April 18, 1973, which was scribed by a regular petition

writer and was duly registered and the subsequent deed of cancellation duly registered cancelling the Will dated April 18, 1973.

(iv) The ocular evidence concerning the execution of the Will is highly doubtful and unbelievable.

(v) The other natural heir, namely Smt. Bakhshish Kaur was admittedly rendering service to the testator and she had very good relations with him

and she has been deprived of without good reasons.

The first Appellate Court after so observing held that the suspicious circumstances pointed out by it remained unexplained and it concluded that

the Will in question is shrouded by highly suspicious circumstances and is not a genuine document. The Will was not produced before the revenue

officer when he dealt with the mutation proceedings in the village. The conclusions arrived at by the first Appellate Court on the basis of evidence

are essentially a finding of fact. Apart from this, I have gone through the evidence and have pointed out the suspicious circumstances other than

those which are pointed out by the first Appellate Court and these suspicious circumstances, leave no manner of doubt that the Will is a highly

suspicious document and hence to be rejected.

For the reasons stated above, the appeal fails and the same is dismissed. No order as to costs.