Mauji Ram vs Madan Singh etc.

Chet Ram Thakur, J.—This first appeal arises out of an application u/s 276 of the Indian Succession Act for the grant of a probate of a will executed by Smt. Sundru widow of Lachhi Ram of village Ajehr, Pargana Shohawali previously in Tehsil Kasumpti of District Mahasu and now in Tehsil and District Simla.

Smt. Sundru had executed the will (Ex. P.A.) on 29th July, 1968 bequeathing her entire property in favour of Mouji Ram, the son-in-law of her brother Shri Balak Ram. She died on 3rd August, 1968. Thereafter Mouji Ram applied for the grant of probate of the will but the same was opposed by Madan Singh, Respondent No. 1. He is the son of the brother of Sundru''s late husband. He contended that Smt. Sundru was not in a sound disposing mind and she was seriously ill for a long time before her death. That the will was unnatural inasmuch as the natural heirs had been deprived of their right to the property.

The learned District Judge found that, no doubt, the execution of the will stood proved, but Smt. Sundru at the time of the execution of the will was ailing. Further she was admittedly living all alone and was dependent on others for even cultivation of her own land and in the past she had adopted one Jamuna Dass and further that one Shibu had been assisting her in cultivation. Madan Singh was the nearest heir. The Petitioner was neither living with the testator nor did Le at any time assist her. Propounding the will by Smt. Sundru in the face of such circumstances in favour of the Petitioner was a suspicious circumstance. Further that, in case, Smt. Sundru had adopted Jamuaa Dass and had also her husband''s brother''s son alive it was normally required that she should have expressed her mind in the w 11 itself as to why she thought it fit to ignore their normal claim to succeed her after her death and also to express why she preferred to make a will in favour of the Petitioner who till then was of no help to her in any manner whatsoever. Further Mouji Ram Petitioner took a leading part in the collection of the various persons to attest the will, speaks its own tale. Smt. Sundru did not know Hindi or Urdu and she knew only her own dialect and that the will though scribed in Hindi script but it contained Urdu words and, therefore, the same was hardly intelligible to the executant even if it was read out to her and these were, therefore, the suspicious circumstances according to the learned District Judge which the Petitioner failed to dispel and he, therefore, dismissed the petition.

It has been held by the learned Distrct Judge that the will stands duly proved. The only question, therefore, which remains to be determined by this Court in appeal is whether the circumstances, pointed out by the learned District Judge in his judgment, are the suspicious circumstances ? If so, whether they have been dispelled by the Petitioner so as entitle him for the grant of a probate.

The first thing in this case is whether the testator was of a sound disposing mind at the time of the execution of the will. The learned District Judge has pointed out that she was ailing at the time of the execution of the will. There is no doubt that there is evidence to that effect that she remained ill for about two months prior to the execution of the will. But from that it cannot be inferred that her mental capacity had in any way been impaired. Nothing to this effect had been elicited out in cross-examination of P. Ws. 1, 2 and 3 by the Respondents. Therefore, the natural presumption would be that she had the testamentary capacity and she knew what she was about to do. The witnesses for the Respondents are Sarvshri Shiba and Gangia. Shiba is the Mukhtiar Khas of Madan Singh and is also a collateral of Madan Singh and the husband of Smt. Sundru. Admittedly Madan Singh Respondent is the nearest. He has stated that Smt. Sundru a month prior to her death was ill and remained serious for about a week and was unconcious. She could not think of her welfare nor she could properly talk.

Gangia (R.W. 2) is a person who has attested the will. He has stated that before her death she was ill for about a fortnight and she remained seriously ill for about 4 or 5 days. She could not understand about her welfare. She could not properly speak and could not identify a person. The Patwari had been called by the Petitioner Mouji Ram to enter the mutation but when he saw her serious condition he refused to attest the same. He has also stated in cross-examination that she was ill and was suffering from fever. Therefore, what follows from the statements of these two witnesses is that Smt. Sundru was seriously ill when this document was executed. Shiba (R. W. 1) as would be evident was inimical towards Smt. Sundru because he was instrumental in getting the adoption of Jamuna Dass set aside as is evident from his cross-examination and he has stated that he wanted that the land should go to the lawful heir, i.e. Madan Singh. It is also clear from his statement that although she had been ill according to him for a number of days but he did not bother to go and enquire about her health for the reason that she was senseless as such there was no need to enquire from her between 29th July, 1968 to 3rd August, 1968. Therefore, the only statement is that of Gangia which in the presence of the statements of the P. Ws. whose testimony has not been shaken in the cross-examination cannot be given preference and it cannot be held that the evidence produced by the Petitioner about the illness and her being unconscious is proved incorrect. Admittedly she was ill but there is no proof that her mental capacity had in any way been impaired. Therefore, diis circumstance stands fully dispelled.

The second circumstance is that she was living all alone and was dependent upon others for the cultivation of her own land. Shiba and Jamuna Dass had been assisting her and that the Petitioner was not assisting her in any manner. That is true and stands admitted by Mouji Ram also. But the fact remains that he is a son-in-law of her brother Balak Ram. She had adopted Jamuna Dass so that he could render services to her, but at the instance of Shiba the adoption was set aside and the mutation in his name which had earlier been attested had also been cancelled. She, therefore, it appears, did not like to part with the land in favour of Shiba or any other members of her collaterals. Madan Singh admittedly did not render any service, therefore, if she had bequeathed the land in favour of Mouji Ram there does not appear to be anything wrong. What the Court has to see is that the will is not brought about by undue influence or coercion or fraud and that it is a will of a free agent. There is nothing to suggest that there was any undue influence or coercion or fraud brought to bear upon the testatrix in the execution of the will. Merely because she happened to be an aged lady of about 65 years as stated by Shiba (R.W. 1) it cannot be said that it was a suspicious circumstance especially when it has been proved positively by the evidence of the Petitioner that she was in her senses although she was ill. Therefore, if Mouji Ram had not rendered any assistance that will not detract from the fact that the will though unnatural yet the testatrix was free and had a sound disposing mind. The Court, therefore, cannot inject its own ethics of what is or is not a moral or a fair disposition. (See Ajit Chandra v. Akhil Chandra AIR 1960 Cal. 55).

In the instant case it stands fully proved from the testimony of the P. Ws. that she had put down her thumb impression on the will and there is also preponderance of evidence about the disposing state of her mind. Therefore the burden of proof cast upon the testatrix is discharged and it was then for the Respondents to have rebutted the evidence and which they have failed to do. Therefore, merely because the will has been made in favour of a person who had not rendered any assistance it will not make the will invalid in favour of Mouji Ram. According to Naresh Charan Das Gupta Vs. Paresh Charan Das Gupta, once it had been proved that the will had been executed with due solemn ties by a person of competent understanding and apparently a free agent, the burden of proving that it was executed under undue influence is on the party who alleges it. It may be stated that the Respondents have not pleaded undue influence or coercion being exercised by the propounder of the will. On the contrary the only objection taken was that it was an unnatural will inasmuch as Madan Singh, who was the nearest heir entitled to succeed has been deprived of his right.

It had also been pointed out that Mouji Ram took a leading part in the collection of the various persons to attest the will and that by itself was a suspicious circumstance and that the propounder must remove doubts introduced by proved facts surrounding the execution of the will and reliance for this is placed on Smt. Kamla Kunwar Vs. Ratan Lal and Others, There can be no dispute with the principle enunciated in this authority. But the facts of this are different and if the Petitioner had gone to call for the witnesses that will not mean that the will is not genuine or any undue influence or coercion was exercised. The will was executed in a village where there was no other house except the house of Smt. Sundru. Therefore, naturally the propounder had to bring the witnesses who could testify to the execution of the will.

The further circumstance pointed out is that she did not know Hindi or Urdu and was only conversant with her Pahari dialect. The words used in the will are Urdu words, such as "Rubru Gawahan" and this, according to the learned Counsel for the Petitioner, would go to show that the will was not executed in the words spoken by Smt. Sundru and this was a suspicious circumstance. Reliance is placed by the learned Counsel on R.S.A. No. 36 of 1972 Kedar Math v. Smt. Jaithu Devi, decided on December 17, 1974 by Hon''ble the Chief Justice to show that if there are Persian expressions used in a document and the person who is alleged to have executed the same, is illiterate and an old lady, it cannot be said that the doucment was dictated by the lady. But in this regard it may suffice to say that a perusal of the contents of the will would reveal that it does not contain any Persian, Urdu or any other difficult word which may not be understandable. The expression "Rubra Gawahan" appears to have been used by the scribe himself and this word does not convey anything except that it was written in the presence of the witnesses. Therefore, this authority is not applicable to the facts of the present case because the will is written in quite simple Hindi, or in spoken Urdu which is understandable even to an illiterate person in the hills as my experience goes. In fact a will or a document is not necessarily to be written exactly in the words or in a language or dialect spoken by the executant but it is for the scribe first to know from the executant as to what he or she intends to be done and it is only thereafter that the scribe will write to give an expression to the intention of the testator and here he has actually done the same.

Again reliance is placed by the learned Counsel on Jagat Ram and Others Vs. Mst. Mathi, to show that a propounder of a will, besides adducing disinterested, satisfactory and sufficient evidence about the execution of a will, must remove all legitimate suspicions existing on account of surrounding suspicious circumstances about the execution of the will and the testator''s mental capacity. I have already stated that the propounder has adduced evidence which is quite overwhelming and cogent and disinterested and sufficient to prove the execution of the will. The evidence in rebuttal is not at all convincing and is of an interested person in so far as Shiba is concerned. The other witness Gangia admits having put his thumb impression on the will but he only says that the will was not read out to him, and that when the same was written he was not there and he had left to ease himself and returned after about one and a half hours which is at all sufficient to rebut the evidence of the Petitioner. He has not proved any fraud or undue influence nor is established any on the record.

One of the circumstances mentioned was that Mouji Ram did not render any assistance. That is true. The Respondents also did not render assistance. However Shibia R. W. 1 assisted her for a shortwhile, a few years before her death. But then he also left. Shiba did not care even to go to her house to enquire after her health because according to him she was not in her senses and there was no useful purpose in going to her house. Therefore, in these circumstances, if Smt. Sundru had made a will of her property in favour of her brother''s son-in-law, there does not appear to be anything wrong especially when it stands fully proved that she put down her thumb impression on the will in the presence of the witnesses and she was in a sound disposing mind although she was ill. But these factors by themselves were not such which may have impaired her power of understanding as to what she was doing. Therefore, in these circumstances even if the will is unnatural and has cut off wholly or in part near relations, the Court must grant the probate as is held in Shashi Kumar Banerjee and Others Vs. Subodh Kumar Banerjee since deceased and after him his legal representatives and Others, The propounder, in my opinion, has succeeded in removing all the suspicious circumstances.

In these circumstances, I am of the view, that the learned District Judge was wrong in holding that the propounder had failed to dispel the suspicious circumstances surrounding the execution of the will.

I, therefore, accept this appeal, set aside the order of the District Judge dismissing the application and allow the same and order that a probate, as prayed for, of the will with a copy of the will be granted to the Petitioner.