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Judgment
284 paragraphs · 6,614 wordsThis second appeal under Section 100 of CPC has been filed against the judgment and decree dated 24.11.2001 passed by First Additional District
Judge, Morena in Civil Appeal No.4-A/2000 thereby affirming the judgment and decree dated 11.2.2000 passed by Civil Judge Class-I, Joura, District
Morena in Civil Suit No.50-A/1996 by which the suit filed by the respondent No.1 for declaration of title and permanent injunction has been decreed.
The necessary facts for the disposal of the present appeal in short are that the respondent No.1 Hargobai had filed a suit for declaration of title and
permanent injunction in respect of agricultural land bearing survey No.72 area 1.19 Bigha, survey No.73 area 3 Bighas, survey No.74 area 5 Biswa,
survey No.417 area 1.17 Bigha total area 7 Bighas and 2 Biswa situated in village Shahadpur, Tahsil Joura, District Morena.
It is the case of the plaintiff/respondent No.1 that Ramcharan was the owner and in possession of the land in dispute who has expired issue-less on
22.2.1996. On 29.1.1996 he had executed a ""will"" in favour of the plaintiff and got it notarized and handed over the possession to the plaintiff and thus
after the death of Ramcharan, the plaintiff alone is the owner and in possession of the land in dispute. It was further pleaded that the defendants No.1
and 2/appellants had no title or possession over the land in dispute. However, in connivance with the revenue authorities they have got their names
mutated in the revenue record. The plaintiff has performed the last rites of late Ramcharan being his legal representative. Thus the suit was filed for
declaration of title and permanent injunction on the basis of ""will"" dated 29.1.1996 purportedly executed by Ramcharan in her favour.
The appellants/defendants No.1 and 2 filed their written statement and admitted that the original owner of the land in dispute was Ramcharan who
has died issue-less but they denied that Ramcharan had ever executed a ""will"" dated 29.1.1996 in favour of the respondent No.1/plaintiff. It was
further pleaded that the defendants No.1 and 2/appellants are the sons of the sister of late Ramcharan and they are Class-2 (iv) heirs of late
Ramcharan, therefore, they have inherited the property belonging to late Ramcharan. The mutation proceedings were also supported by the
defendants No.1 and 2/appellants.
The Trial Court by order dated 13.10.1997 framed the following issues:
(i) Whether the deceased Ramcharan had executed a will in favour of the plaintiff?
(ii) Whether the plaintiff is in possession of the land in dispute being the owner?
(iii) Whether the mutation of the defendants No.1 and 2 is bad in law?
(iv) Relief as prayed for?
The Trial Court after recording the evidence of both the parties came to the conclusion that the respondent No.1 has proved that the deceased
Ramcharan had executed a ""will"" in her favour and accordingly the suit was decreed.
Being aggrieved by the judgment and decree dated 11.2.2000 passed by Civil Judge Class-I, Joura, District Morena in Civil Suit No.50-A/1996, the
appellants filed an appeal which too has suffered dismissal by judgment and decree dated 24.11.2001 passed by First Additional District Judge,
Morena in Civil Appeal No.4-A/2000.
The present appeal was admitted on the following substantial question of law:
(i) Whether the Courts below have erred in holding that the will executed by the deceased (Ex.P/12) is proved when the plaintiff has failed to remove
the suspicious circumstances?
(ii) Whether the attestation of the will is duly proved?
It is contended by the counsel for the appellants that the plaintiff/respondent No.1 did not prove the ""will"" in accordance with the provisions of
Section 63(c) of Indian Succession Act. None of the attesting witness has stated that the ""will"" was executed and signed by the deceased Ramcharan
in their presence and they had put their signatures/thump impressions in the presence of the testator. It is further submitted that Ramcharan had
expired on 22.2.1996 whereas the ""will"" was allegedly executed by him on 29.1.1996 i.e. just less than one month from his death. Thus the suspicious
circumstances which are attached to the ""will"" have not been removed by the respondent No.1. It is further submitted that Ramjilal (PW-3) and Ram
Bharose (PW-4) are the attesting witnesses whereas Rajendra Prasad Shrivastava (PW-5) is the Advocate who had drafted the ""will"" and Suresh
Chandra Agrawal (PW-6) is the Notary who has notarized the ""will"". If the evidence of all the five witnesses are read conjointly then it is clear that
the respondent No.1 has failed to prove the execution of the ""will"" in accordance with the provisions of Section 63(3) of the Indian Succession Act.
None appears for the respondent No.1 though served.
Heard the learned counsel for the appellant.
Section 63(c) of the Indian Succession Act reads as under:-
(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 acknowledgment of his signature
or mark, or 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.
It is well established principle of law that the propounder of the ""will"" has to remove all suspicious circumstances attached to a ""will"" and the said
burden is on him.
The Supreme Court in the case of S.R. Srinivasa v. S. Padmavathamma, reported in (2010) 5 SCC 274 : (2010) 2 SCC (Civ) 36, 5at page 286 has
held as under:-
“38.In H. Venkatachala Iyengar v. B.N. Thimmajamma, Gajendragadkar, J. stated the true legal position in the matter of proof of wills. The
aforesaid statement of law was further clarified by Chandrachud, J. in Jaswant Kaur v. Amrit Kaur as follows: (SCC pp. 373-74, para 10)
“1. Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent
mind in such matters. As in the case of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical
certainty. 2. Since Section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by Section 68 of the
Evidence Act, one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject
to the process of the court and capable of giving evidence.
Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the
circumstances in which the will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the
document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be
discharged on proof of the essential facts which go into the making of the will.
Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind,
an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial
benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the
propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time
when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were
disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus
heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court, the propounder
must remove all legitimate suspicions before the document can be accepted as the last will of the testator.
It is in connection with wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience
has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the court is the last will of the
testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will
has been validly executed by the testator.
If a caveator alleges fraud, undue influence, coercion, etc. in regard to the execution of the will, such pleas have to be proved by him, but even in
the absence of such pleas, the very circumstances surrounding the execution of the will may raise a doubt as to whether the testator was acting of his
own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter.â€
Applying the aforesaid principles to this case, it would become evident that the will has not been duly proved.
As noticed earlier in this case, none of the attesting witnesses have been examined. The scribe, who was examined as DW 2, has not stated that
he had signed the will with the intention to attest. In his evidence, he has merely stated that he was the scribe of the will. He even admitted that he
could not remember the names of the witnesses to the will. In such circumstances, the observations made by this Court in M.L. Abdul Jabbar Sahib v.
M.V. Venkata Sastri & Sons become relevant. Considering the question as to whether a scribe could also be an attesting witness, it is observed as
follows: (SCC p. 577, para 7)
“7. … It is essential that the witness should have put his signature animo attestandi, that is, for the purpose of attesting that he has seen the
executant sign or has received from him a personal acknowledgment of his signature. If a person puts his signature on the document for some other
purpose, e.g., to certify that he is a scribe or an identifier or a registering officer, he is not an attesting witness.â€
The Supreme Court in the case of H. Venkatachala Iyengar v. B.N. Thimmajamma, reported in 1959 Supp (1) SCR 426 has held as under:-
“18. What is the true legal position in the matter of proof of wills? It is well-known that the proof of wills presents a recurring topic for decision in
courts and there are a large number of judicial pronouncements on the subject. The party propounding a will or otherwise making a claim under a will
is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the
proof of documents. Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under Section 67, if a document is alleged to be signed by
any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Sections 45 and 47 of
the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the
proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one
attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof
which must be satisfied by the party who relies on a document in a court of law. Similarly, Sections 59 and 63 of the Indian Succession Act are also
relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this
section indicate what is meant by the expression “a person of sound mind†in the context. Section 63 requires that the testator shall sign or affix
his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that
it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or
more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be
decided in the light of these provisions. Has the testator signed the will? Did he understand the nature and effect of the dispositions in the will? Did he
put his signature to the will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding
on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special
requirements of attestation prescribed by Section 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 wills 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 the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.
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.â€
The Supreme Court in the case of H. Venkatachala Iyengar v. B.N. Thimmajamma, reported in 1959 Supp (1) SCR 426 has held as under:-
“18. What is the true legal position in the matter of proof of wills? It is well-known that the proof of wills presents a recurring topic for decision in
courts and there are a large number of judicial pronouncements on the subject. The party propounding a will or otherwise making a claim under a will
is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the
proof of documents. Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under Section 67, if a document is alleged to be signed by
any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Sections 45 and 47 of
the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the
proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one
attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof
which must be satisfied by the party who relies on a document in a court of law. Similarly, Sections 59 and 63 of the Indian Succession Act are also
relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this
section indicate what is meant by the expression “a person of sound mind†in the context. Section 63 requires that the testator shall sign or affix
his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that
it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or
more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be
decided in the light of these provisions. Has the testator signed the will? Did he understand the nature and effect of the dispositions in the will? Did he
put his signature to the will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding
on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special
requirements of attestation prescribed by Section 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 wills 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 the propounder. In other words, the onus on the propounder can be taken to
be discharged on proof of the essential facts just indicated.
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 Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao this Court held: (SCC p. 447, paras 32-33)
“32. Section 63 of the Succession Act lays down the mode and manner of execution of an unprivileged will. Section 68 of the Evidence Act
postulates the mode and manner of which proof of execution of document which is required by law to be attested. It in unequivocal terms states that
execution of will must be proved at least by one attesting witness, if an attesting witness is alive subject to the process of the court and capable of
giving evidence. A will is to prove what is loosely called as primary evidence, except where proof is permitted by leading secondary evidence. Unlike
other documents, proof of execution of any other document under the Act would not be sufficient as in terms of Section 68 of the Evidence Act,
execution must be proved at least by one of the attesting witnesses. While making attestation, there must be an animus attestandi, on the part of the
attesting witness, meaning thereby, he must intend to attest and extrinsic evidence on this point is receivable.
The burden of proof that the will has been validly executed and is a genuine document is on the propounder. The propounder is also required to
prove that the testator has signed the will and that he had put his signature out of his own free will having a sound disposition of mind and understood
the nature and effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been
discharged. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In the case
of proof of will, a signature of a testator alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated.
However, if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator. (See Madhukar D. Shende v. Tarabai
Aba Shedage and Sridevi v. Jayaraja Shetty.) Subject to above, proof of a will does not ordinarily differ from that of proving any other document.â€
Therein, this Court also took into consideration the decision of this Court in H. Venkatachala Iyengar, wherein the following circumstances were
held to be relevant for determination of the existence of the suspicious circumstances: (Mrudula Jyoti Rao case, SCC pp. 447-48, para 34)
“34. … (i) when a doubt is created in regard to the condition of mind of the testator despite his signature on the will;
(ii) when the disposition appears to be unnatural or wholly unfair in the light of the relevant circumstances;
(iii) where propounder himself takes prominent part in the execution of will which confers on him substantial benefit.â€
The Supreme Court in the case of Niranjan Umeshchandra Joshi Vs. Mrudula Jyoti Rao, reported in (2006) 13 SCC 43,3 at page 446 has held as
under:-
“32. Section 63 of the Succession Act lays down the mode and manner of execution of an unprivileged will. Section 68 of the Evidence Act
postulates the mode and manner of proof of execution of document which is required by law to be attested. It in unequivocal terms states that
execution of will must be proved at least by one attesting witness, if an attesting witness is alive subject to the process of the court and capable of
giving evidence. A will is to prove what is loosely called as primary evidence, except where proof is permitted by leading secondary evidence. Unlike
other documents, proof of execution of any other document under the Act would not be sufficient as in terms of Section 68 of the Evidence Act,
execution must be proved at least by one of the attesting witnesses. While making attestation, there must be an animus attestandi, on the part of the
attesting witness, meaning thereby, he must intend to attest and extrinsic evidence on this point is receivable.
The burden of proof that the will has been validly executed and is a genuine document is on the propounder. The propounder is also required to
prove that the testator has signed the will and that he had put his signature out of his own free will having a sound disposition of mind and understood
the nature and effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been
discharged. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In the case
of proof of will, a signature of a testator alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated.
However, if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator. (See Madhukar D. Shende v. Tarabai
Aba Shedage and Sridevi v. Jayaraja Shetty.) Subject to above, proof of a will does not ordinarily differ from that of proving any other document.
There are several circumstances which would have been held to be described by this Court as suspicious circumstances:
(i) when a doubt is created in regard to the condition of mind of the testator despite his signature on the will;
(ii) when the disposition appears to be unnatural or wholly unfair in the light of the relevant circumstances;
(iii) where propounder himself takes prominent part in the execution of will which confers on him substantial benefit.
(See H. Venkatachala Iyengar v. B.N. Thimmajamma and Management Committee, T.K. Ghosh’s Academy v. T.C. Palit.)
We may not delve deep into the decisions cited at the Bar as the question has recently been considered by this Court in B. Venkatamuni v. C.J.
Ayodhya Ram Singh, wherein this Court has held that the court must satisfy its conscience as regards due execution of the will by the testator and the
court would not refuse to probe deeper into the matter only because the signature of the propounder on the will is otherwise proved.â€
In the present case one important aspect of the matter is that the so called ""will"" was executed on 29.1.1996 and Ramcharan died on 22.2.1996 i.e.
just less than one month from the date of execution of the will.
Vijayrajan (PW-1) has stated that he is working as Manager of Agriculture Branch of State Bank of India, Branch Joura, District Morena and one
FDR was in joint name of the deceased Ramcharan and the respondent No.1 Smt. Hargo/plaintiff which was paid to the respondent No.1. Merely
because one fixed deposit was in the joint name of the deceased as well as the plaintiff would not be sufficient to hold that Ramcharan had executed a
will"" voluntarily and was in fit State of mind at the time of the execution of the same because undisputedly the respondent No.1 is the wife of the
brother of Ramcharan, therefore, she is not a completely stranger to Ramcharan.
Hargobai (PW-2) has stated that about two and half years back Ramcharan had executed a ""will"" and Ram Bharose and Ramjilal have signed as
the attested witnesses. The last rites of Ramcharan were performed by her son and the expenses were borne by this witness. Ramcharan was sick
and Vijay Singh had got him treated. From the date of death of Ramcharan, Vijay Singh is cultivating the land on her behalf. In cross-examination, she
has stated that Ramcharan was residing with her for the last 30 to 35 years and the defendants No.1 and 2 are the sons of his sister.
She has stated that the will Ex.P/1 was drafted under the tree in the premises of Tahsil Joura, District Morena but she could not disclose the name
of the scribe. Although she has stated that the contents of the ""will"" were dictated by Ramcharan in presence of Bharosi and Ramjilal as attested
witnesses and the person who had written the ""will"" had obtained the signatures of the witnesses. However, she has specifically admitted that the
signatures of Ramcharan were not obtained by the person who had written the ""will"". In cross-examination, she has stated that the last rites of
Ramcharan were performed by Bare Lal who is the son of brother of Ramcharan whereas in examination-in-chief she has stated that Bare Lal is her
son. In paragraph 12 of her cross-examination, she has further admitted that she is issue-less. She has further stated that she has executed a ""will"" in
favour of Vijay Singh. She has further stated that as Bare Lal was not present, therefore, the ""will"" was executed by her in favour of Vijay Singh. She
further admitted that Vijay Singh always accompany her on each and every date of the suit. From the evidence of Hargo (PW-2) it is clear that the
signatures of the attesting witnesses were obtained by the person who had written the ""will"" but the signatures of Ramcharan were not obtain by him,
therefore, it is clear that the attesting witnesses had not signed the ""will"" after the same was signed by the testator.
Rajendra Prasad Shrivastava (PW-5) is the person who had written the ""will"". He has stated that on 29.1.1996 Vijay Singh, Rambharosi and
Ramjilal and a lady whose name was Hargo came to him along with Ramcharan and informed that Ramcharan of Village Mungawali wants to
execute a ""will"" in favour of her sister-in-law (Bhabhi) Hargo. On the instructions of Ramcharan, the ""will"" was drafted and the names of Rambharosi
and Ramjilal were typed as the witnesses. When he demanded the Court fee and his fee for getting the ""will"" registered, then Ramcharan said that he
would get it registered on his own and after signing the draft he handed over the document to Ramcharan. He further stated that he is not aware of
the fact that when the ""will"" was got registered. In cross-examination, this witness has admitted that he cannot say that the photographs affixed on
Ex.P/12 is of Ramcharan. He has further stated that the word thumb impression on the ""will"" Ex.P/2 was not written by him and he has further stated
that the thumb impression was not affixed in his presence. He has further stated that the photographs was not affixed by him on the ""will"" Ex.P/12.
He has further stated that neither he had obtained the signatures of the attesting witnesses Ram Bharose nor he had obtained the thumb impression of
Ramjilal and he has specifically stated that he had merely prepared the draft. He has further stated that Ramcharan was not personally known to him
and the name of the said person was disclosed by the witnesses and that is why he is saying that the ""will"" was drafted on the instructions of
Ramcharan. Thus from the evidence of this witness it is clear that the statement of Hargo (PW-2) that the attesting witnesses had signed on the
instructions of the person who had drafted the ""will"" is not supported by the evidence of Rajendra Prasad Shrivastava (PW-5) who has specifically
stated that he had merely prepared the draft and had not obtained the signatures of attesting witnesses Ram Bharose nor the thumb impression of
Ramjilal. Rajendra Prasad Shrivastava (PW-5) has also specifically stated that Ramcharan was not known to him and as the witnesses had disclosed
the name of the testator as Ramcharan, therefore, he has stated that the ""will"" was drafted on the instructions of Ramcharan.
Suresh Chandra Agrawal (PW-6) is the Notary who has stated that on 29.1.1996 he had notarized the ""will"". However, in the cross-examination
he has specifically stated that when the draft of the ""will"" was brought to him, it was already containing the thumb impression of the testator as well as
the signature/thumb impression of attesting witness No.1 and 2. He has also failed to say that at the time of the notarization of the document, the
person whose photograph was affixed on the ""will"" was present or not. He has also stated that Ramcharan is also not personally known to him. Thus it
is clear that the ""will"" which was notarized by Suresh Chandra Agrawal (PW-6) was already containing the thumb impression of the testator as well
as the signature/thumb impression of the attesting witnesses. Thus it is clear that the ""will"" Ex.P/12 was not executed in front of Suresh Chandra
Agrawal (PW-6).
Under these circumstances, the evidence of the attesting witnesses Ramjilal (PW-3) and Ram Bharose (PW-4) assumes importance. Ram
Bharose (PW-4) has stated that the ""will"" was drafted by Advocate Rajendra under the tree in the premises of Joura Tahsil and thereafter the
photograph of Ramcharan was affixed and Ramcharan put his thumb impressions. The attesting witness Ramjilal has also put his thumb impression
and this witness had also signed the ""will"". Thereafter the ""will"" was taken to Notary Suresh Chandra Agrawal where it was got notarized. As already
pointed out that Rajendra Prasad Shrivastava (PW-5) has specifically stated that the ""will"" was neither signed by Ram Bharose (PW-4) nor any thumb
impression was affixed by the testator Ramcharan or the attesting witness Ramjilal in his presence. Thus the evidence of Ram Bharose (PW-4) that
the testator Ramcharan had affixed his thumb impression on the ""will"" and thereafter Ramjilal (PW-3) had put his thumb impression and Ram Bharose
(PW-4) had signed the ""will"" as attesting witness in front of scribe cannot be accepted. Ramjilal (PW-3) has merely stated that about two and half
years back a ""will"" was executed by Ramcharan in favour of Hargobai and the ""will"" was drafted under a tree whereas it was got notarized in Pator.
This witness had put his thumb impression and the testator Ramcharan had also put his thumb impression. This witness has not stated that where the
thumb impressions were put by this witness as well as the testator. He has also not stated that where the another attesting witness Ram Bharose had
put his signatures. Thus the evidence of attesting witnesses Ramjilal (PW-3) and Ram Bharose (PW-4) does not find corroboration from the evidence
of Hargobai (PW-2), Rajendra Prasad Shrivastava (PW-5) and Suresh Chandra Agrawal (PW-6). Further it is not out of place to mention here that
the deceased Ramcharan had expired on 22.2.1996 whereas the so called ""will"" Ex.P/12 was executed on 29.1.1996. Under these circumstances, this
Court is of the considered opinion that the respondent No.1 has failed to remove all the suspicious circumstances attached to the ""will"" in question as
well as also failed to prove the execution of the ""will"" in accordance with the provisions of Section 63(c) of the Indian Succession Act.
Accordingly, both the substantial questions of law framed by this Court by order dated 31.3.2012 are answered against the respondent No.1. It is
undisputed that the appellants are the sons of the sister of late Ramcharan. As per Scheduled 2 of the Hindu Succession Act, the appellants are Class-
2(iv) heir of Ramcharan and the respondent No.1 is Class-2 (vi) heir of Ramcharan. It is nobody's case that Ramcharan was survived by any Class-I
heir. Under these circumstances, this Court is of the considered opinion that during the life time of Class-2(iv) heir, the respondent No.1 would not get
any share in the property belonging to Ramcharan as she is Class-2(vi) heir.
Accordingly, the judgment and decree dated 24.11.2001 passed by First Additional District Judge, Morena in Civil Appeal No.4-A/2000 and the
judgment and decree dated 11.2.2000 passed by Civil Judge Class-I, Joura, District Morena in Civil Suit No.50-A/1996 are hereby set aside. The suit
filed by the respondent No.1 is hereby dismissed.
The appeal succeeds and is hereby allowed.