Smt. Uttami vs Shri Ram Dass etc.

Chet Ram Thakur, J.—This Letters Patent Appeal has been filed against the judgment dated 30-8-1973 passed by a single Judge of this Court whereby he affirmed on appeal the judgment and order, dated 10-4-1970, granting a probate with a copy of the will annexed thereto to Ram Dass Advocate, who was appointed as an executor under the will dated 9-5-1961 executed by late Mr. H. M. Banon.

Mr. II. M. Banon, who had settled down in Manali, first executed a will, Exhibit P. 4, on 9-5-1961, appointing Thakur Ram Dass, Pleader, Kulu, to be the sole executor of the will. Mr. Banon died on 13-11-1963. Thereafter the executor filed an application u/s 2/6 of the Indian Succession Act on 22-8-1964 for the probate of the will. It was alleged that he (Mr. Banan) was a Cristian and was governed by the provisions of the Indian Succession Act, and he made the last will on 9-5-1961 appointing him as the sole executor thereof and the will was executed and signed by Mr. Banon in the presence of Sarvshri Bhagwat Guru and Panchhi Ram, as the attesting witnesses to the will. Thereafter the will was deposited with the Registrar on the same day by Mr. Banon.

Out of the six Respondents arrayed by the Petitioner, only Smt. Uttami contested the petition making the following allegations. Although Mr. Banon was Christian by birth he was a Hindu in status by adopting Hindu religion. On 9-5-1961 and even before that Mr. Banon had no sound disposing mind owing to his long illness and old age. He was not in a fit state of health to execute a valid will. The will was not genuine or the last will of the deceased. The alleged attesting witnesses of the will were the men of the Petitioner, who himself was also connected with Respondents 2 to 5. She was the wife of the deceased and with the intention to deprive her of the property of the deceased the will in question was prepared and set up by the Petitioner and Respondents 2 to 5 collusively with each other. Besides, the other near heirs of Mr. Banon namely, his brothers and nephews were not given any share in the property. It was also contended that Ruldu Ram, his servant, got a major share which was again an unnatural feature of the will.

The learned District Judge found that the will was genuine and valid and that the late Mr. Banon was of a sound disposing mind at the time of the execution of the will and that in view of these findings it was immaterial that was hard on someone. In these circumstances he ordered that probate in the prescribed form with a copy of the will be issued in the name of the Petitioner. Against this Smt. Uttami filed an appeal in the High Court. The appeal was dismissed and it is against that order of dismissal that this Letters Patent Appeal has been preferred by Smt. Uttami.

Mr. Banon had made his first will on 13-6-60 and the executor appointed under that will was Thakur Ram Dass Advocate. Under this will he bequeathed the property to Ruldu Ram, his servant, Dharam Chand son of Ruldu Ram, Lila daughter of Ruldu Ram, Smt. Uttami the present Appellant who lived with him in his house for a number of years, Smt. Besi his wife and his nephews and niece, Shakuntla. After he had executed this will he was taken ill and had also a mental stroke and he was then removed to a hospital at Amritsar. However, he recovered from the illness. He revoked the will dated 13-6-1960 and again executed a second will on 18- 1 -1961. Under that will also he appointed Thakur Ram Dass Advocate as the executor and the beneficiaries under the will were Ruldu Ram, Dharam Chand, Lila, Smt. Uttami, Smt. Besi, his nephews and his niece Shakuntla. However, in this will he made slight changes with regard to the benefits to be conferred upon the legatees. This will was also cancelled by the last will, dated 9-5-1961 (Exhibit P. 4). It appears that after the execution of the second will, dated 18-1-1961, Smt. Uttami filed a suit No. 23 dated 24-2-1961 against Mr. Banon and others for a declaration to the effect that the will dated 18-1-1961 was void and that it was ineffective on her rights. In that suit, she had stated that she was the wife of Mr. Banon since 1935 and that Mr. Banon had also executed a marriage deed on 2-10-1936, and that after the marriage she has been living and performing marital obligations. She had also alleged that Mr. Banon was without issues and she was the legal heir entitled to succeed under the marriage arrangement deed, dated 2-10-1936, and that he had no right to make a will of his property in the presence of the legal heir. It was averred in that that Ruldu Ram Defendant was his driver and also a close relation of Smt. Besi Defendant No. 3. It was also alleged in that plaint, the copy of which is Exhibit P. 9, that he had fallen ill in the month of November 1960 and also suffered a paralytic attack which created lots of complications. Mr. Banon Defendant No. 1 had gone very feeble, both mentally and physically, because of his old age. He was not in possession of a sound disposing mind. He was got treated at Amritsar but he did not recover properly. She had been attending upon him during his illness at Amritsar. Therefore, she challenged the will by this suit, Exhibit P. 9. The copy of the written statement filed by Mr. Banon in that suit is Exhibit P. 14. But it appears that during the pendency of this suit Mr. Banon executed the last will dated 9-5-1961, and, therefore, the suit appears to have been disposed of on 31-5-1961 as having become infructuous. Under the last will the legatees were the same persons, except the nephews and the niece. Mr. Banon died on 13-11-1963 and Thakur Ram Dass, therefore, made the application for grant of a probate of the will.

The learned Counsel for the Appellant gave the background as to why these two wills were cancelled and why there was a change made in the will depriving the nephews and the niece and also reducing the share of Smt. Uttami in the later will. According to the learned Counsel, the deceased was under the impression that the nephews and niece had instigated Smt. Uttami to file the suit No. 23 of 1961, and, therefore, Mr. Banon deprived the nephews and niece and also gave a very small share under the will to Smt. Uttami, who was his natural heir, as his wife. According to him Mr. Banon ever since he had taken ill after the execution of the first will he had not recovered from his ailment and his mental faculties had been impaired. The will was quite unnatural, the testator was not a free agent nor had he a sound disposing mind. He has also taken us through the evidence to establish the fact about his mental incapacity and his physical debility because of his long ailment and old age. He has also cited case law to show that the will was tainted and was liable to be cancelled. He has also cited case law to show that it is for the pro-pounder to dispel the suspicious circumstances attending the execution of the will.

It is well settled, as would be apparent from Shashi Kumar Banerjee and Others Vs. Subodh Kumar Banerjee since deceased and after him his legal representatives and Others, also that 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. The propounder of a will has to prove the due [and valid execution of it, and that if there arc any suspicious circumstances surrounding the execution of the will, the propounder must remove the said suspicion from the mind of the Court by cogent and satisfactory evidence. The application of these two general and broad principles, however, depends upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties (See also Rani Purnima Debi v. Khagendra AIR 1959 S.C. 567).

Once it is established in the case of an unnatural and officious will that the testator was free and had a sound disposing mind, the court cannot inject its own ethics of what is or is not a moral or a fair disposition, as is held in Ajit Chandra Majumdar Vs. Akhil Chandra Majumdar, , relying on C. Harwood v. M. Baker (1840) 3 Moo. P.C. 282 .

The suspicious circumstances pointed out by the learned Counsel for the Appellant are that the person immensely benefited by the will has taken a great part in the execution and the deposit of the alleged will. The beneficiary was surrounding and exercising absolute influence over the deceased testator in his condition of helplessness, severe ailment and physical incapacity. The documents remained a close secret, the contents whereof were not known to the persons entitled to normal inheritance. The testator variously described about 80 to 87 years had very feeble mind, debilitated, had a heart attack accompanied by a severe stroke rendering him incapable of movement and any exertion and, therefore, he did not have the testamentary capacity. In this behalf he has taken us through the evidence.

There is no denying the fact that the executor is a lawyer and he was a standing counsel for the testator since 1937-38 and was also his fast friend. According to Shri Ram Dass in the month of April, 1960, the testator asked him to draft his will in consultation with Mr. T. Tyson and he had given them instructions about the manner he wanted to dispose of his property. Anyway we are not concerned with this will. It was after the execution of this will that Mr. Banon got an attack of blood pressure and paralysis and he went to Amritsar for his treatment. Thereafter on his return from Amritsar he again called for the executor and at his instance executed another will, revoking the previous will. But this will was again superseded by the last will, which is in question before us. It was on 21-4-1961 that the testator requested the executor to see him at Manali for drafting a will. He went there after 6 or 7 days and Mr. Banon told him how he wanted to dispose of his property. He took the notes from him and returned to Kulu, where he drafted the will. Then he took the draft to Mr. Banon at Manali and after the same had been approved by him, he got it typed at Kulu on judicial paper as before. Mr. Banon went to Kulu on 9-5-1961. Mr. Banon had asked Panchhi Ram and Bhagwat Guru to meet him at the Dak Bungalow, where they accordingly met him. Shri Ram Dass gave two typed papers of will to Mr. Banon and asked him to read himself and correct the same and to initial the corrections. The will, Exhibit P. 8, shows the corrections carried out by Mr. Banon as also his initials on each page and the will stands attested by Bhagwat Guru and Panchhi Ram, P. Ws., as deposed to by Shri Ram Dass also. The testator also wrote the words "read and approved" in his own handwriting. From the evidence it is clear that Shri Ram Dass as a standing counsel and a friend of Mr. Banon had drafted the will as desired by Mr. Banon. As a lawyer it was his duty whenever consulted or requested by any litigant or any client to tender him advice and to work for him in the performance of his professional duties. From the statement of the witness it is further evident that after the return of Mr. Banon from Amritsar he had substantially recovered from his ailment. Mr. Banon met him and he was called to draft another will for the disposal of his property and which he did. But as is evident from the statement of the witness and the own admission of the Appellant that she had filed a suit against Mr. Banon for a declaration that the will was void and had also prayed for setting aside the same as she was the legal heir of Mr. Banon. In that suit, copy of which is Exhibit P. 9, she had first made an application for appointment as a guardian atlitem for Mr. Banon on the ground that he was not capable of defending himself due to unsoundness of mind, old age and weakness. At a later stage she made an application, copy of which is Exhibit P. 12, for amendment stating that he had recovered from illness. Although he was an aged person he had not that much weakness and he was in a position to defend the case personally. Therefore, she prayed for cancellation of guardianship of Smt. Ruldi, who had been appointed earlier as a guardian. This has not been denied by the Appellant. Thereafter the Defendant Mr. Banon, filed his written statement, copy of which is Ex. P. 13. Therefore, from this it would appear that the testator was admittedly not of an unsound mind on 11-4-1961. This last will was made only on 9-5-1961, i.e. after about a month. In so far as the part of Shri Ram Dass is concerned he had been the standing counsel, as already stated, and there is nothing in his evidence whereby it may be said that he had manipulated the will and had advised the testator to deprive the Appellant of her right to a share in the property by treating or declaring her as a "keep". Therefore, it is wrong to contend that the executor took a major part in the execution of the will. Whatever Shri Ram Dass has clone was done at the instance of Mr. Banon and he had signed the will in question after he had gone through the contents of the same and had also initialed the corrections that were made. Shri Ram Dass has, therefore, merely acted in his professional capacity as a lawyer.

Ruldu Ram, admittedly, was a servant of Mr. Banon. He was sister''s son of Smt. Besi, the wife of the testator. It may be stated that Smt. Uttami is also a relation of Smt. Besi and Ruldu Ram. She had admitted in her statement that Smt. Besi is her father''s sister. Ruldu Ram had also been working as a driver of Mr. Banon and, therefore, in that capacity he was duty bound to go with Mr. Banon. It has not been shown from the evidence on the record as to how Ruldu Ram played a major part in getting the will executed in his favour and thus depriving the other heirs. Ruldu Ram is also admittedly from the brother-hood of Shri Ram Dass, but that fact by itself will not detract from the truth that he had been going to Ram Dass at the behests of Mr. Banon, with whom he had been working as a servant. So, there is nothing unusual if he had been going to Ram Dass with a message from Mr. Banon. Ruldu Ram had died, therefore, he could not be examined in the court. But merely because of his relationship with Smt. Besi, it cannot be said that he was so influential as to dominate the will of the testator. He had been going with Mr. Banon because he was a driver as also his servant and if the testator had given a share of his property to the son and daughter of Ruldu Ram that also does not mean that he had been influenced by Ruldu Ram or by Shri Ram Dass, especially when it is admitted by the Appellant herself as far back as 11-4-1961, i.e. a month before the will exhibit P. 4 was executed, that he had recovered from his illness, and although he was somewhat weak owing to his old age, he was capable enough of conducting his own defence in the case filed by her. If he was fully competent to defend his case filed by Smt. Uttami then it cannot be said that he was a man of unsound mind and not able to understand what he was doing.

Smt. Uttami, who was examined on 19-3-1966, had stated that Mr. Banon was suffering from paralysis, he could not understand anything and could not speak coherently. She admitted that Mr. Banon had made a statement in her presence on 21-4-1961 in the suit filed by her and the copy of the same is Exhibit R. 1. In this statement he had described the Plaintiff as his second "keep" and had also stated that he had executed a will. In her cross-examination she admitted that her husband Mr. Banon was in perfect senses and could speak coherently when he made the statement on 21-4-1961 in the Court of the Sub-Judge, Kulu. Further on she deposed that the condition of Mr. Banon sometimes used to be good and sometimes bad and he remained seriously ill for about a fortnight before his death. From this alone it cannot be inferred that Mr. Banon was mentally unsound and could not make a will on 9-5-1961. This statement refers to a few months before his death in the year 1963. Further on she deposed that before he became seriously ill he used to speak sometimes coherently and sometimes not. Consequently from her statement it is not established that Mr. Banon was not of a sound disposing mind at the time of making the will. Further, at the end of the statement she denied the suggestion that Ruldu Ram Respondent used to look after and manage the property of Mr. Banon ; further, she has stated that even during his illness Mr. Banon used to look after his property. If that is the state of affairs it is beyond comprehension as to how she has taken the plea that the testator was not mentally keeping fit. A person, who has got the capacity to manage his own property, cannot be said to be a man of unsound mind unable to understand what is best in his interest and how the property should be managed.

A copy of the will, dated 9-5-1961, was produced by Shri Moti Ram, Registration Clerk, of the office of the Sub-Registrar, Kulu, in the court. According to him, on the date when Mr. Banon presented a sealed cover to Shri D. N. Dhir, the then Registrar of Kulu, he was there. The sealed cover contained a will and Exhibit P. 6 is a copy of that envelope produced in the court. The endorsement made on this cover, Exhibit P. 6, contains the following endorsement:

Received the sealed envelope from H. M. Banon on 9-5-61 at 2.30 P.M. at Kulu in office for safe custody in confidential papers. He is personally known to me.

Sd/- D.N. Dhir. S. D. O. (C) Registrar 9-5-61.

The original is also placed on the record and it is marked Exhibit P. 8. Moti Ram, a witness in this case, and Ruldu Ram are also shown as present. The cover also shows that the same had been signed by H. M. Banon on 9-5-61. Therefore, from this also it is clear that Mr. Banon personally presented this will before the Registrar for safe custody. A person who is of a feeble and unsound mind cannot be '' expected to act in that manner. This witness says that Mr. Banon was known to him personally and he was in sound mind, and could speak like a normal man at that time. He did not notice any defect in his power of speech. Sarvshri Bhagwat Guru and Panchhi Ram are the attesting witnesses, who have appended their signatures on the will, Exhibit P. 4. Panchhi Ram has testified to the fact of his having attested the will in his as also in the presence of Bhagwat Guru. According to him, Mr. Banon had told him that he had signed all the pages of the will and that it was his testament. According to him, Mr. Banon was in sound mind at that time and Shri Ram Dass Advocate was also there. He has further stated that after the execution of this will Mr. Banon had attended at least two or three meetings of the Notified Area Committee at Manali and that he was in perfect mental condition. Against him the attack levelled by the learned Counsel for the Appellant is that he was a chance witness, inasmuch as he had, according to his statement, gone to Kulu on his own business and seeing him there Mr. Banon sent for him. Merely because he is a chance witness, his statement cannot be discarded on that ground when on other particulars he appears to be quite a truthful witness nor has he in any way benefited by the will. He was known to Mr. Banon. Therefore, there is nothing uncommon or strange if he met Mr. Banon at that time and he was asked by him to be an attesting witness to the will. According to Shashi''s case (supra) the mere fact that the attesting witnesses to a will happen to be chance witnesses is no ground for disbelieving their evidence. It may be that it is more usual for witnesses to be called when a person is intending to execute a will, even so there is nothing impossible in advantage being taken of the accidental presence of the witnesses in this connection. He had also denied the suggestion that Mr. Banon was brought to the meeting of the Notified Area Committee in a chair. As for Shri Bhagwat Guru, the other attesting witness, he also deposed to the sound mental condition of the testator. The testator signed the will in his presence. The typed will had been delivered to Mr. Banon by Shri Ram Dass and then the former went through the will silently and made initials over the corrections and he had also signed each page of the document below the words, ''read and approved''. The witness also signed the will in the presence of the testator. Mallu (P. W. 7) says that although after Mr. Banon got the attack of paralysis he could not walk he could speak very well and he managed his property personally. Ram Rakha also says that he had a truck and he used to manage it himself. Jindu Ram (R. W. 1) has stated that the deceased suffered from paralysis for 3/4 years before his death he could speak well and understand very well. Sometimes he used to be incoherent in speech. But a little further on he says that a year before his death he was not in his perfect senses and could not distinguish between good and bad. He says that he used to see Mr. Banon once or twice a year when he used to collect land revenue because he is a Lambardar of the area. He also had gone to enquire about his health when he was ill. But from this cross-examination it would be clear that when he had gone to see Mr. Banon one and a half months before his death Mr. Banon had answered his questions regarding his illness correctly. Therefore, this falsifies his statement with regard to incoherence in speech. He had executed the will in May 1961, whereas he died in 1963. Therefore, even if it may be admitted that his mental faculties had in any way been impaired it was only just a year before his death, which means that at the time of the execution of the will he was in perfect mental condition. Ganga Ram (R. W.2) has stated that he suffered from paralysis at the time of death, but that is not very material. Further on he says that for two years before his death Mr. Banon sometimes used to give correct replies, sometimes incorrect and he could not understand what was in his interest during that period. This also does not lead to an inference that he was continuously mentally unsound. It was an intermittent unsoundness of mind. Further, more he is also one of the persons who was in the service of Mr. Banon. He was one of the beneficiaries under the first will, but later on by the last will he was not given any share and that is why he also felt aggrieved. His statement is biased. Then there is the statement of Devki, who is the widow of Major H. L. Banon, another brother of the testator. She also makes a statement similar to Ganga Ram (R. W. 2) in examination-in-chief. Shiela alias Shakuntla Banon and Lt. Col. R. M. Banon are her children and they were also the legatees under the first will but they had been deprived under the later will as also by the last will and, therefore, she also could not be said to be an independent and a disinterested witnesses.

This is the entire evidence. From this evidence no other conclusion is possible except that the testator was mentally sound and had testamentary capacity.

The contention of the Appellant''s learned Counsel that the will was kept secret and this was one of the factors to indicate that it was not a genuine will, is not correct. The object and effect of Sections 42 - 46 of the Registration Act are that the contents of the sealed cover deposited by the testator shall remain secret during his life-time, but on his death the terms of the will shall be made public and copies of the will shall be available to the public (See C.W. Mariano v. The Rt. Rev. F. Provost AIR 1941 Ran 305).

The propounder of the will has, therefore, succeeded in dispelling any suspicious circumstances surrounding the execution of the will. That being so the Court is not concerned with whether the will is unnatural and causes hardship and cuts off wholly or in part the near relations of the testator. The Court has to give effect to the will, as laid down in Pushpavathi and Others Vs. Chandraraja Kadamba and Others, .

There are concurrent findings of the two courts on the point of due execution and attestation of the will by the testator and the attesting witnesses. The Appellant has not been able to rebut that the findings of the two courts are in any way wrong and not supported by the evidence on the record. Consequently, I would hold that the learned single Judge was perfectly justified in affirming the judgment of the learned District Judge and dismissing the appeal.

The result, therefore, is that the appeal fails and is hereby dismissed. However, the parties are left to bear their own costs.

R.S. Pathak, C.J.:

I agree.