Shantamma vs Yellamma and Another

The plaintiff instituted the suit at O.S. No. 78 of 1972 on the file of the Munsiff, Chitradurga for declaration of title and for possession of the suit schedule properties along with mesne profits from the defendants. The plaintiff and defendant 1 are sisters. The plaintiff claims title to the suit properties on the basis of a will executed by her father on 4-4-1939. The suit was resisted by the defendants. According to them, the will was not genuine, the testator was not in a sound and disposing state of mind, he was suffering from illness for three months before his death, he had no intention of executing a will and so they denied the execution of the will. The learned Munsiff framed an issue as under:

"Do defendants prove that Neelappa was not in a sound and disposing state of mind at the time of the will and that the will is invalid and illegal?"

The defendants gave an application at I.A.No. IX submitting to the Court that the issue as framed was not correct and the burden of proving the will should be cast on the propounded and the learned Munsiff, by his order dated 23-11-1977, allowed the said application holding that the burden of proving the will was on the propounded i.e., the plaintiff in the case. Aggrieved by the said order, the plaintiff has come up in revision before this Court.

The learned Counsel appearing for the revision petitioner invited my attention to the fact that the will was more than thirty years old at the time when the suit was instituted in the year 1972 and that it was produced from proper custody i.e., from the plaintiff, and, hence, the court should have raised a presumption as contained in S. 90 of the Indian Evidence Act and, as such, the issue as already framed was legal and proper.

The will is executed no doubt on 4-4-1939 and on the date when the suit was instituted in the year 1972, more than thirty years were completed. It is also true that it has come from proper custody.

It is no doubt true that there is a controversy as in America that the period of thirty years should be calculated from the date of death of the testator and not from the date of execution of the will. That is obvious, because the testator could revoke the will at any time during his life time. It becomes a real and operative document only after the death of the testator; (Vide Jackson v. Blanshan, 3 Johns, N.Y. 292 at 295).

That apart, the learned Counsel appearing for the revision-petitioner invited my attention to the observations made by the Privy Council in the case of Munnalal v. Kashibai, AIR 1947 PC 15.

In para 4 of the judgment, this is what their Lordships have laid down:

"The will of Bahadur was more than 30 years old and was produced from proper custody and both the lower Courts rightly held the actual execution and attestation of the will could be presumed under s. 90; they differed on the question whether the presumption extended to the testamentary capacity of the testator. A party setting up a will is required to prove that the testator was of sound disposing mind when he made his will but, in the absence of any evidence as to the state of the testator''s mind, proof that he had executed a will rational in character and in the presence of witnesses must lead to a presumption that he was of sound mind, understood what he was about. This presumption can be justified under the express provisions of S. 90, since a will cannot be said to be ''duly'' executed by a person who was not competent to execute it and the presumption can be fortified under the more general provisions of S. 114, since it is likely that a man who performs a solemn and rational act in the presence of witnesses is sane and understands what he is about. There was no evidence whatever that Bahadur was not in a perfectly normal state. Their Lordships feel no doubt that on this point the decision of the High Court was right and that the will must be presumed to have been duly executed."

Thus, it is clear that on the facts of that case, their Lordships were pleased to draw the presumption under S. 90 of the Evidence Act having been convinced that the will was made on 30-3-1890 under which the testator bequeathed his properties to his daughter Janakibai and her minor son Narain. It is significant to note their Lordships have made it clear that the will was rational in character before drawing that presumption under S. 90 of the Evidence Act.

I state so because S. 90 of the Evidence Act is not a mandatory provision. All that it states is:

"Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person''s handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested."

Thus, it is clear that the Court is not bound to draw the presumption. It may draw the presumption considering the facts of each case, if it thinks that it is proper to draw such a presumption, in the circumstances.

In the case of Munnalal v. Kashibai, AIR 1947 PC 15, referred to supra, I have pointed out that their Lordships found the rational character of the will and, in that view, they found it proper to draw the presumption in the absence of any evidence per contra. That does not mean that the Court in every case shall draw the presumption under S. 90 of the Evidence Act to shift the burden.

It is important to remember that a will is not like any other document executed by parties. There is a ring of sanctity and solemnity around it. It is a solemn act because by the time it comes into force the person who executed it is no more. It is for that reason that his Lordship Justice Chandrachud, as he then was, observed in the case of Jaswant Kaur v. Amrit Kaur, AIR 1977 SC 74, in para-9 of the judgment thus:

"In cases where the execution of a will is shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant. What, generally, is an adversary proceeding becomes in such cases a matter of the Court''s conscience and then the true question which arises for consideration is whether the evidence led by the propounded of the will is such as to satisfy the conscience of the court that the will was duly executed by the testator. It is impossible to reach such satisfaction unless the party which sets up the will offers a cogent and convincing explanation of the suspicious circumstances surrounding the making of the will."

Thereafter, in para-10 of the judgment his Lordship has quoted with approval the observations made with regard to the proof of will in the case of R. Venkatachala Iyengar v. B.N. Thimmajamma, AIR 1959 SC 443. Among the propositions laid down there, it is clearly stated that the burden of proving prima facie that the testator understood what he did and that he was in a sound disposing state of mind, is on the propounded of the will even where the other side alleges fraud, undue influence etc.

In the instant case, when we read the defence taken in the written statement it becomes clear that the will is challenged even as not being genuine. Besides, it is not in dispute that both the plaintiff and defendant-1 are the two daughters of the alleged testator. The properties are bequeathed only to the plaintiff, the elder sister, who was married by the testator during his life time. They have only one residential house and even that is given to the plaintiff under the will. No property is allotted to defendant-1 who is the younger daughter, who should deserve greater love in the normal course by her father. This document cannot be described as rational in character and it has to be stated prima facie that it is surrounded with suspicious circumstances. In such a case, I am of the considered view that it would be hazardous to draw a presumption under S. 90 of the Evidence Act, especially so in the case of a will. Hence, I am of the considered view that the learned Munsiff was perfectly justified in casting the burden on the propounded to prove the execution of the will after clarifying all suspicious circumstances surrounding the execution of the will.

It may not however be taken that this Court has come to any definite conclusion about the suspicious nature and character of the will. It is for the learned Munsiff to appreciate the evidence that may be produced before him without being influenced either way by whatever is observed in the course of this order. All that is tried to be emphasised is that a will is a solemn document and that the proof of the will cannot be equated to the proof of any other document.

In the result, therefore, the revision petition fails and is dismissed.

No costs.