Shrimathi Uttami vs Shri Ram Dass and Others

D.B. Lal, J.—This first appeal arises out of an order of the learned District Judge, Mandi, whereby he has granted probate of a will dated 9-5-1961 executed by the late Shri H.M. Banon. The executor specified in the will was Shri Ram Dass, Advocate, and he filed his application before the learned District Judge and prayed for the probate with the obvious intention of distributing the assets of the deceased in accordance with the terms and conditions laid down in the will. Accordingly, notices were issued to the members of the public, and also to the beneficiaries including Smt. Uttami, stated to be a mistress of late Banon. The objections were filed by Smt. Uttami and she stated that the deceased Shri Banon was more than 80 years old when he executed the will. He did not possess sound disposing mind owing to his longstanding illness and as such he was not in a fit state of health to execute the will. Uttami herself claimed to be a wife of the deceased who, according to her, was a Hindu although bom as Christian. The first wife was Smt. Bassi who too is a beneficiary under the will. According to Uttami the will is unnatural because under the marriage contract entered into by Banon with her, she was to receive one half of the properties. Instead, she was granted only a house to live and some annuity for maintenance. Besides that, the other nearest heirs of Banon, namely, his brothers and nephews were not given any share in the properties. It was also contended that Ruldu Ram, his servant, got the major share which was again an unnatural feature of the will.

Upon the pleadings of the parties the learned Additional District Judge framed several issues containing the pleas as to the proper execution and attestation of the will, the total value of the assets left by the deceased, the question regarding payment of court fee and the fair disposing mind which the deceased possessed at the time he executed the will. His findings on all these issues have been in favour of the Petitioner Shri Ram Dass, executor of the will. Smt. Uttami has felt aggrieved of the decision and has preferred this first appeal in this Court.

Formerly, this first appeal came for consideration before a learned single Judge of Delhi High Court, Tatachari, J. but he remanded the case because according to his decision Uttami was not permitted to set up her marriage contract under which Banon had promised to give her one half of the properties. In the opinion of the learned Judge that marriage contract was required to be considered in order to assess the merit of the will and for this reason the order of the learned District Judge was set aside and the case was remanded for re-consideration and fresh decision. Accordingly, opportunity was given to Uttami to prove the marriage deed, Ex. R.R.W.-2-A. The learned Additional District Judge, Mandi, after considering the marriage deed has again granted the petition for probate and Uttami has accordingly filed this first appeal.

The learned Counsel for the Appellant has reiterated in this Court the pleas regarding proper execution and attestation of the will and the plea as to whether Shri Banon was in a fit state of health and possessed a fair disposing mind so that the will could be considered to be genuinely executed. He has further pleaded, what he considered, circumstances which lead to an inference that the will was unnatural and should not be acted upon.

The law regarding will and its consideration as genuine document and as such binding on parties, is very well settled. The latest observation of their Lordships of the Supreme Court in Pushpavathi and Others Vs. Chandraraja Kadamba and Others, may be referred to as below:

It is for the propounder of the Will to prove it, 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 which is placed upon the propounder of the Will. Where there are suspicious circumstances, the propounder of the Will has to explain them away to the satisfaction of the Court. The suspicious circumstances may be as to the genuineness of the signature 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 indications in the Will to show that the testator''s mind was not free. If the propounder succeeds in removing the suspicious circumstances the Court would have to give effect to the Will even if the Will might be unnatural in the sense it has cut off wholly or in parts near relations.

Therefore initially the testamentary capacity of Banon, his signature and attestation by witnesses would be sufficient to discharge the onus which is placed upon the propounder, namely, the executor Shri Ram Dass. After this is done, the suspicious circumstances, stated by the Respondent Uttami would have to be gone into and ascertained as to how far these circumstances are established. The suspicious circumstances do not relate to the genuineness of the signature of the testator but relate to the condition of his mind and the alleged unnatural nature of dispositions made by him coupled with the circumstance of the propounder himself taking primary part in the execution of the Will. Beyond this the objector Smt. Uttami docs not go any further. As to the execution and attestation of the Will there can be no doubt. Panchhi Ram (P.W. 4) and Bhagwat Guru, Advocate, (P.W. 5) are the two attesting witnesses. Besides proving the execution by Banon, they have proved their attestation in the manner required by law. Moti Ram (P.W. 2) is the registration Clerk. He stated that Banon himself presented the Will on 9-5-1961 before the Sub-Registrar, Shri D.N. Dhir, for being kept under safe custody. Ram Dass Advocate (P.W. 9) of course stated that the draft of the Will was approved by the testator. He had made corrections with his own hand which is clear from the document itself. Besides that the testator also wrote down that he had read and approved the Will. Both the attesting witnesses also stated that Banon read through the Will, made corrections and thereafter signed it. Ram Dass (P.W. 9) further stated that Banon had signed every page of the Will and wrote down "read and approved" by his own hand. It was contended that the extra precaution taken by Banon by writing the words "read and approved", is by itself a suspicious circumstance. I do not consider it to be so, especially when Banon had written two previous Wills on 13-6-1960 and 18-1-1961 and he cancelled these Wills one after the other, the disputed Will being the last testamentary disposition. There was already some talk about the soundness of his mind for which Ram Dass, Advocate (P.W. 9) stated. Uttami had filed a suit in 1961 challenging the second Will of 18-1-1961 (Ex. P-7) and the chief allegation was that Banon was not of a sound mind. Accordingly, Ram Dass being an Advocate, took every precaution and made Banon not only to understand the Will to the fullest extent so that he could make up his mind for disposition of property, but he also signed each page of the Will along with the corrections with the additional words "read and approved". As the circumstances existed, there was nothing unnatural in his conduct. Thus the evidence prima facie established proper execution and attestation of the Will and further that the testator possessed a fair disposing mind. He understood the contents of the Will and whatever disposition of property was made by the Will the same was done with a free consent.

The foremost suspicious circumstance pointed out by Uttami pertained to the age of the testator and his illness so that according to her he possessed a feeble mind. In this connection it was submitted on her behalf, that Banon was of a flickering mind having already executed two Wills previously and, therefore, a suspicion should be attached to the third Will which is the subject matter of present dispute. The recitals made in these Wills, themselves speak of circumstances why the first will was cancelled and what prompted the testator to cancel the second will. Ram Dass, Advocate (P.W. 9) has also thrown a light on these circumstances. In November, 1960, the testator suffered from blood pressure and stroke of paralysis. He was taken to Amritsar for treatment where he stayed for 15 or 20 days according to the statement of Uttami (R.W. 4). When he returned from Amritsar, he started having second thoughts on the first bequest and made slight changes by executing the second will of 18-1-1961 (Ex. P. 7). If we compare the two documents, we do not find much change having been made except in favour of Uttami herself. She was given only one room to reside in the bequest of 13-6-1960 (Ex. P-2) while she was given one complete house with three rooms for residence by the second bequest of 18-1-1961 (Ex. P-7). No other substantial change was made and the bequest was retained as such. Therefore, the second bequest was more or less in favour of Uttami and she should not have objected to it. Developments thereafter seem to have been made of far reaching effects. Uttami seems to have been persuaded to file a civil suit as she expected one half of the total properties. She challenged the mental capacity of the testator. Formerly she made Banon as party through a guardian ad litem. This was done to indicate that he was not in proper state of mind and was incapable of defending himself. Later on she herself moved an application on 11-4-1961 (Ex. P-12) for amendment of the plaint because according to her Banon was in a sound state of health and could defend himself. Banon himself gave his statement on 21-4-1961 (Ex. R-l) and it is not difficult to ascertain from this statement that he was in a fit state of health and could defend himself. Accordingly on 24-4-1961 (Ex. P-25) the court removed the proposed guardian ad litem of Banon and gave permission to amend the plaint. On 26-4-1961 the amended plaint (Ex. P-13) was filed. Banon submitted his written statement on 25-5-1961 (Ex. P. 14). He had executed the disputed Will on 9-5-1961 and he mentioned about this Will in his written statement. He pleaded specifically that he had executed the third Will after proper consideration and had distributed his properties according to his independent judgment. There is every indication to hold that he was in a fit state of health and possessed a fair disposing mind so that he could validly execute the third Will. On 7-8-1961 when a criminal case started u/s 107 Code of Criminal Procedure between Bessi and Uttami, a statement of Banon was recorded (Ex. P-15). A reading of that statement also makes it clear that the mental capacity of Banon was sound. He was in a position to state correct facts. He had understood the situation in which he was placed. He could comment upon the relationship of Uttami with Bessi and the behaviour of the former vis-a-vis the family. All this could only be done by a person possessing a sound mind. This documentary evidence, therefore, proves that Banon was in a fit state of mind on 9-5-1961 and merely because he was more than 80 years old, or suffered a mild stroke for which he was treated for 15 or 20 days in November, 1960, that is to say long before the execution of the disputed will, it could not be inferred that he was mentally incapacitated or was incapable of understanding the rights and claims of others and the manner in which he should distribute his properties. There is no evidence that the stroke had in any manner affected his mind although he had some difficulty in walking. Therefore, whatever disposition of property he made, he did with his free consent and with a fair disposing mind.

As regards the oral evidence the statements of Panchhi (P.W. 4), Bhagwat Guru (P.W. 5), Moti Ram (P.W. 2), Malhu Ram (P.W. 7), Ram Rakha (P.W. 8) and Ram Dass, Advocate (P.W. 9) may be referred. All of them stated without hesitation, that at all the relevant period of time Banon was in a fit state of health and he could understand the demise that he had made under the will. He used to move about, and attend to his duties. He used to attend the meetings of the Municipal Committee, Manali, of which he was a member. Moti Ram (P.W. 2), the registration Clerk stated that Banon presented the Will before the Sub-Registrar. He appeared to be in a sound state of mind and was speaking like a normal human being. There was no defect in his speech. Malhu Ram (P.W. 7) is an old servant of Banon. He also stated that Banon could speak alright and understood the claims which others could lay upon his properties. Ram Rakha (P.W. 8) is an old friend of Banon; he used to stay with him whenever he used to visit Manali. He found him in perfect senses at the relevant period of time. Ram Dass, Advocate (P.W. 9), of course, played a prominent part in the execution of the Will. He had taken a certificate from the doctor for the second Will because of the suit for which Uttami had threatened Banon. In that suit she had in fact challenged the mental capacity of Banon. That suit was decided against Uttami. Obviously, there was no need to obtain a medical certificate for the third bequest and so it was not taken. Even the Respondent''s evidence indicates that Banon was in a very fit state of health when he executed the disputed Will. Jindu Ram (R.W. 1) used to visit Banon once or twice a year in connection with the land revenue which he used to collect as Lambardar of the village. Whenever he visited Banon he found him in a fit state of health. He could speak very well and also understood everything which he talked with him. The witness, however, stated that his speech was sometime incoherent. He also stated that he was not in perfect senses from a year before his death. This statement was stated just by hit rather than by wit. It is evident that he was not a constant visitor in the family. He does not even know if Banon had gone to Amritsar for treatment nor could he tell about the date or the month of his death. GangaRam (R.W. 2) was the old servant of Banon. Subsequently he fell out and joined first in service and then in partnership, with the nephews of Banon who turned his enemies. In the first two wills, Ganga Ram was also a beneficiary but because he had left service of Banon at the instigation of the nephews, he was deprived of the bequest. That is how he became inimical to Banon and came to depose against the will. He did not visit Banon at all after he had left the service. As such he could not know about his mental condition. At the same time he said that from two years sometimes Banon used to give correct replies and sometimes he used to give incorrect replies. That statement is insufficient and would not prove that on the relevant date Banon was not possessing a sound mind. Devki (R.W. 3) is again interested party. She is widow of a brother of Banon. She did not get anything in the bequest and so she is inimical to Banon. She stated in a casual manner that Banon was not capable of understanding his interests from two to three years before his death. Sheela is her daughter. She was formerly a beneficiary under the bequest but in the disputed bequest Banon did not give her any amount. That is the reason why Devki has become inimical. Uttami (R.W. 4) is, of course, interested to depose against the Will. However, she stated that sometimes the condition of Banon used to remain good and sometimes it used to turn bad. But he was serious only for about 15 days before his death. She also stated significantly that even during his illness he used to look after his properties. If that was so how could he be stated to be unfit to deal with his properties. His state of mind must have been good and he must be understanding his interest. Otherwise he could not have looked after his properties.

The third bequest was executed by Banon because Uttami and his nephews had turned hostile. They persuaded Ganga Ram and Udey Ram, his old servants, to leave the family. The contents of the second Will were also divulged by some people to these persons and they started agitation against him because they were not satisfied with the bequest. That is why Banon thought it fit to change his second Will and executed the disputed one. If we look up the third and the disputed Will and compare it with the second one, the only change we find is that the nephews, the nieces and the servants, Ganga Ram and Udey Ram were disinherited. Banon had his own reasons for doing so. The disposition made in favour of Uttami, however, was not altered, for the obvious reason that she was either wife or mistress of Banon for appreciable period of time. Nothing unnatural could, therefore, be considered to be attached to the dispositions made under the Will. It could not, therefore, be stated that Banon was of feeble mind due io old age or illness. His mental capacity was alert and he was of a fair disposing mind when he executed the Will.

I have indicated above that the disposition of properties made was neither unnatural nor unofficious for any reason. So long it is held that proper execution and attestation were made and the testator was in a fit state of health and possessed a sound mind when he executed the Will, merely because according to the objector Uttami she was not given one-half share of the properties or near relations were eliminated from inheritance, the bequest will not be set aside. The Court has to interpret the Will as it was executed. It is a solemn document and contains the pious wish of the testator. It would be beyond the judicial discretion of the Court to reject the Will because according to the objections set out there is a feeling that the testator would have better given some properties to his near relations which he has not done. While considering a bequest of like nature the Courts have propounded, what they call "arm-chair thinking" of the testator. One has to place himself in the arm-chair of the testator and then interpret the Will which contains the wish of the testator and such a wish has to be fulfilled. In this connection a few authorities need be notified.

There are two earlier decisions of the Privy Council; Moiibhai Hormusjee Kanga v. Jamsetjee Hormusjee Kanga 1924 PC 28 and Bai Monghibai and Ors. v. Pragji Dayal Haiani 1925 PC 198 . Where the real complaint, as observed by their Lordships, against a Will is not that its execution was in any way extraordinary, but that the character of the will is such as seems to the Courts to be somewhat of an injustice on the part of the testator towards his wife and children, the Will will be upheld if on evidence it is found that it was properly executed. Their Lordships have even gone to say that a man may act foolishly and even heartlessly, so long as he acts with full apprehension of what he is doing, the court will not interfere with the exercise of his volition. The arm-chair test has been referred to by the Supreme Court in Gnanambal Ammal Vs. T. Raju Ayyar and Others, . The cardinal maxim to be observed by Courts in construing a Will is to endeavour to ascertain the intentions of the testator. The intention can at best be ascertained by putting oneself into testator''s arm-chair and then to know as to what he had really meant and in what manner his properties are to be distributed. A groundless prejudice of a testator against a relative will not be a good reason for setting aside his Will unless it can be shown that the prejudice rests on some mental aberration (See: Kamla Devi and Others Vs. Kishori Lal Labhu Ram and Others, Similarly, in Ishwardeo Narain Singh Vs. Sm. Kamta Devi and Others, , it was observed that the question whether a particular bequest is good or bad is not within the purview of the Probate Court. The Court has to interpret the Will from the testator''s point of view and not to make a new one in conformity with its own notions of how the testator''s property ought to be equally distributed. This is exactly what Uttami has sought for in this case.

It has also been urged by the learned Counsel for the Appellant that the propounder of the Will has taken keen interest in its execution. In fact Ram Dass, Advocate (P.W. 9) has not taken keen interest in the sense that he ever asked his testator to execute the Will. Rather he was acting upon the advice of the testator. He was his standing counsel and there was nothing wrong if he was summoned by the testator to prepare, the draft of the Will. He did that and ascertained the wish of the testator. The draft was approved and thereafter the testator executed the Will. It is also evident that the propounder, namely, the executor Ram Dass, did not derive any interest from the Will itself. As he was a disinterested person, no exception could be taken to his conduct and that was not a suspicious circumstance. It is only when the propounder is a beneficiary that a question arises as to whether he was interested in getting the Will executed. (That would be a suspicious circumstance. The situation in the instant case is entirely different. In L. Chamanlal (Dead) through Lrs. Vs. Smt. Ram Katori and Another, their Lordships were considering a case of execution of a Will where the son-in-law of a testator who acquired no beneficial interest in property was charged with the management of the property under the Will and that was not considered a suspicious circumstance. Similarly, Ram Dass had not acquired any beneficial interest in the property, although he was instrumental in preparing the draft and getting it executed, and that would not be a suspicious circumstance. The learned Counsel relied on Gorantla Thataiah Vs. Thotakura Venkata Subbaiah and Others, , Ramchandra Rambux Vs. Champabai and Others, and H. Venkalachala Iyengar v. B.N. Thimmajamma and Ors. In all these cases the propounder of the Will had derived substantial benefits and in those circumstances it was held that a suspicious circumstance was brought in to existence which required to be cleared before the Court. As I have already stated, the propounder of the Will in the instant case has not derived any benefit under the Will and so no suspicion could at all be attributed to the Will.

As stated before, the case was remanded to the learned District Judge for reconsideration in the light of the marriage deed proved by Uttami. Some additional evidence was also recorded consisting of the statements of Shri J.N. Dhar, Advocate, Ganga Ram, J.W. Banon and Uttami herself. These witnesses proved the marriage deed, Ex. R.W.W.-2-A, in which it may be stated that a convenient assurance was given by Banon that Uttami would be getting one-half of the properties, and if any issue was born of their wedlock it would be entitled to all the properties as natural heir of the deceased. It is admitted that no issue was born of their wedlock. The argument was that by executing the Will, Banon did not fulfil his promise made in the marriage deed. As I have already stated there were sufficient reasons for Banon not to do so having become angry with Uttami because of the civil suit as well as of the criminal proceeding which had started. She had even questioned the mental capacity of Banon. Therefore, he had his own reasons for not giving complete half of the properties to Uttami. Nonetheless, he properly looked after her interests. She was given proper residence, and adequate arrangement for her food was also made. She was also given a maintenance allowance. It is not for us to lay down our own notions as to the manner in which Banon should have made arrangements for the maintenance and residence of Uttami. So long the satisfaction of the Court is there that Banon understood as to what properties he possessed and who were the relatives whom he had to provide and who were the relatives whom he had to exclude, and he executed the Will with free consent, the court will have no alternative but to execute the Will as such. In fact the marriage deed, in my opinion in the circumstances made: out, has no bearing to the merits of the case. The controversy, as to whether Banon was a Christian or a Hindu so that Uttami could be considered a legally wedded wife or a mistress of Banon, would also not be material to decide the petition.

It would, therefore, be noted that the test laid down by the various authorities of the Supreme Court has been fulfilled in the present case. The propounder or the executor of the Will has shown 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 signatures to the document of his own free Will. The evidence adduced was disinterested, satisfactory and sufficient to prove the sound and disposing state of mind of the testator. He had executed the Will and also got it attested by witnesses as required by law. As such it was not difficult for the learned trial Judge to have given a finding in favour of the executor and he rightly granted the probate.

The appeal is, therefore, without any force and is dismissed with costs.