Suguna Bai vs Muniammal @ Dhanalakshmi and Others

S.S. Subramani, J.—Third defendant in O.S.No. 270 of 1980, on the file of he subordinate Judge''s Court, Vellore, is the appellant before

this Court.

Suit filed by the plaintiff is one for partition. The property belonged to one Chengalvaraya Chetty, who died on 17.5.1979. At the time of his

death, his wife was alive who has been examined in this case as D.W.1. Defendants 3 and 4 are two daughters of the deceased. Plaintiff''s mother,

who predeceased Chengalvaraya Chettiar was also one of the daughters of the deceased. In this suit, plaintiff, being the daughter of the pre-

deceased daughter, claimed that she is entitled to one-fourth share in the plaint items. Before the institution of the suit, a notice was issued to the

defendants, seeking partition. A reply was sent whereby they asserted that the deceased has executed a registered Will by which defendants 3 and

4 are the sole legatees. Ex.B-8 is the Will. In the plaint, it was contended that the deceased has not executed such a Will and that it is a forgery. It

was further contended that assuming for argument''s sake that such a Will was signed by the diseased, it can only be due to coercion and fraud and

undue influence exercised by defendants 3 and 4. It was further averred that the deceased was dominated by defendants 3 and 4 who had no

independent advice, and there is no reason to disinherit his own widow and daughter of the predeceased daughter.

In the written statement filed by the appellants, the only defence that was taken was that the plaintiff is not entitled to one-fourth share in view of

the Will Ex.B-8. It was asserted that the deceased has executed the same voluntarily and that the same is a registered Will. Since the only point to

be considered was, whether the Will has been executed, the trial court took evidence on the same. D.W.5 was the attestor, and D.W.4 is the

person who wrote the Will. D.Ws.1 to 3 are respectively defendants 1 to 3 in the suit. On the side of the plaintiff, P.W.1 was examined, apart

from an independent witness. Documentary evidence was also let in by both sides. The trial court, after appreciating the evidence, came to the

conclusion that the Will was properly executed and the suit was dismissed. It believed the evidence of D.W.5, who is an attestor.

The matter was taken in appeal by the plaintiff as A.S.No. 265 of 1982, on the file of the Additional District Judge, Vellore. The lower appellate

court re-appreciated the evidence and came to the conclusion that the Will was not executed by the deceased or that there was any proof

regarding the proper execution of the Will. The evidence of D.Ws.4 and 5 does not satisfy the requirements of Section 63 of the Indian Succession

Act, nor has evidence been let in as expected u/s 68 of the Evidence Act. Setting aside the judgment of the trial court, a preliminary decree was

passed whereby the plaintiff was declared entitled to one-fourth share in the plaint item. The correctness of the said decision is now challenged in

this second appeal.

At the time of admission of the second appeal, the following substantial question of law was raised for consideration:

Whether the lower appellate court has not properly construed the evidence in holding that the Will Ex.B-8 is not true?

The only question that has to be considered is, whether Ex.B-8 is properly proved.

A Will is executed to change the normal rule of succession. Naturally, therefore, it is for the person who propounds the Will, to prove validity of

the same.

In a very recent decision of the Supreme Court reported in

Baliram Atmaram Kelapure Vs. Smt. Indirabai and others, their Lordships were only reiterating the law already declared by court. How to prove a

Will has come for consideration in various decisions of the Supreme Court.

In one of the earliest decisions reported in H. Venkatachala Iyengar Vs. B.N. Thimmajamma and Others, it was held thus:

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, reference must inevitably be made to the statutory provisions which govern the proof of documents. Sections 67 and 68 of the ''Evidence

Act are relevant for this purpose. u/s 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 providing 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 provided 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 and 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. 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. 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 Will 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

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.

Apart from the suspicious circumstances above referred to in some cases the Wills propounded disclose another infirmity. Propounders themselves

take a prominent part in the execution of the Wills which confer on them substantial benefits. If it is shown that the propounder has taken a

prominent part in the execution of the Will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstances

attending the execution of the Will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. It is in

connection with Wills that present such suspicious circumstances that decision of English courts often mention the test of the satisfaction judicial

conscience. The test merely emphasis that, in determining the question as to whether an instrument produced before the court is the last Will of the

testator, the court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive.

It is obvious that for deciding material questions of fact which arise in applications for probate or in actions on Wills, no hard and fast or inflexible

rules can be laid down for the appreciation of the evidence. It may, however, be stated generally that a propounder of the Will has to prove the

due and valid execution of the Will the propounder must remove the said suspicions from the time of the court by cogent and satisfactory evidence.

It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and

circumstances of each case and on the nature and quality of the evidence adduced by the parties.

The said decision is followed in Rani Purnima Devi and Another Vs. Kumar Khagendra Narayan Dev and Another, wherein it is held thus:

If a Will has been registered, that is a circumstance which may, having regard to the circumstances, prove its genuineness, But the mere fact that a

Will is registered will not by itself be sufficient to dispel all suspicion regarding it where suspicion exists, without submitting the evidence of

registration to a close examination. If the evidence as to registration on a close examination reveals that the registration was made in such a manner

that it was brought was made in such a manner that it was brought home to the testator that the document of which he was admitting execution was

a Will disposing of his property and thereafter he admitted its execution and signed it in taken thereof, the registration will dispel the doubt as to the

genuineness of the Will. But if the evidence as to registration shows that it was done in a perfunctory manner, that the officer registering the Will did

not read it over to testator or did not bring home to him that he was admitting himself in some other way. (as for example, by seeing the testator

reading the Will) that the testator knew that it was a Will the execution of which he was admitting, the fact that the Will was registered would not

be of much value. Registration may take place without the executant really knowing what he was registering.

In Smt. Indu Bala Bose and Others Vs. Manindra Chandra Bose and Another, their Lordships declared as to what is meant by ''suspicious

circumstances''. It was held therein that ''any and every circumstances is not a ""suspicious"" circumstance. A circumstance would be ""suspicious

when it is not normal or is normally expected in a normal situation or is not expected of a normal person.''

In Kalyan Singh Vs. Smt. Chhoti and Others, their Lordships said that the evidence must be trustworthy and unimpeachable. It was further

held that the court is not looking into the veracity of the evidence alone. The circumstances of the case also Will be taken into consideration, the

reason being that the person who executed the Will is not in a position to speak whether it is true or false. It was held in that case as follows:

A Will is one of the most solemn documents known to law. The executant of the Will cannot be called to deny the execution or to explain the

circumstances in which it was executed. It is, therefore, essential that trustworthy and unimpeachable evidence should be produced before the

court to establish genuineness and authenticity of the Will. It must be stated that the factum of execution and validity of the Will cannot be

determined merely by considering the evidence produced by the propounder. In order to judge the credibility of witnesses and disengage the truth

from falsehood the court is not confined only to their testimony and demeanour. It would be open to the court to consider circumstances brought

out in the evidence or which appear from the nature and contents of the documents itself. It would be also open to the court to look into

surrounding circumstances as well as inherent improbabilities of the case to reach a proper conclusion of the nature of the evidence adduced by the

party.

In Bachan Kaur v. Bhagwan Kaur (1995) 3 (Supp.) S.C.C. 401 their Lordships said that regarding the genuineness of the Will, if there are

conflicting decisions, it becomes a mixed question of fact and law and the same has to be decided on merits. Strict adherence to Section 100,

C.P.C may not apply. In paragraph 3 of the judgment, their Lordships have held thus:

Proof of Will is not a pure question of fact but a mixed question of fact and law, which is evident from the facts of this case as well. In the

circumstances this was not a matter which the High Court should have dismissed im limine. The High Court ought to have admitted the second

appeal and decided it one merits. Accordingly, the appeal is allowed and the matter is remitted to the High Court for admitting the appeal and for

dealing with it in accordance with law. No costs.

In Kashibai and Another Vs. Parwatibai and Others, their Lordships reiterated as to how a Will has to be proved, and what is meant by

execution and attestation. Their Lordships said that the two are different. It was further said that if the person who proves a Will does not prove

proper attestation, the Will cannot be said as not proved. The relevant portion of the decision reads thus:

Section 68 of the Evidence Act, shows that ''attestation'' and ""execution'' are two different acts one following the other. There can be no valid

execution of a document which under the law is required to be attested without the proof of its due attestation and if due attestation is also not

proved, the fact of execution is of no avail Section 63 of the Succession Act also lays down certain rules with regard to the execution of

unprivileged Wills. The word ""attested'' has been defined in Section 3 of the Transfer of Property Act.

The decisions reported in H. Venkatachala Iyengar Vs. B.N. Thimmajamma and Others, and Rani Purnima Devi and Another Vs. Kumar

Khagendra Narayan Dev and Another, were reiterated by their Lordships of the Supreme Court in P.P.K. Gopalan Nambiar Vs. P.P.K.

Balakrishnan Nambiar and others, . On facts, their Lordships said that the suspicious circumstances have been removed. In para 5 (at page 165),

their Lordships said thus:

...It is trite that it is the duty of the propounder of the Will to prove the Will and to remove all the suspected features. But there must be real,

germane and valid suspicious features and not fantasy of the doubting mind.

[Italics supplied]

In a very recent judgment of the Supreme Court reported in Parsini (dead) through L.R.S. v. Atma Ram (1996)3 Supreme 261 the principle

that the burden is on the propounder to remove all doubts regarding the genuineness of the Will was reiterated. In that decision, it was held thus:

The burden is on the propounder of the Will to remove all the doubts regarding the genuineness of the Will.

Now let us consider how far the appellant is successful in proving the validity of the Will. Ex.B-8 is seen attested by six witnesses. There is no

signature of the testator. There is only a left thumb-impression affixed in the Will. In all pages we find a thumb-impression has been affixed and it is

also seen that before the Sub Registrar, a thumb-impression is seen affixed. Nowhere we find the signature of the alleged testator. Of the six

attestors, only one has been examined. It is said that all the other attestors are close relations of the deceased, either brother, or brother''s son, and

some of them have affixed their signatures in Telugu, and some of them in English. The peculiar feature of the Will, though registered, is that there is

no statement about his widow, even though she was living with him, and there is nothing mentioned about the plaintiff in the Will. The wife and a

daughter of a pre-deceased daughter are natural heirs under the Hindu Succession Act. No reasons are also mentioned why they have been

disinherited and why the deceased has shown a special favour to defendants 3 and 4.

How far the Will has been proved, and how the suspicious circumstances have been removed, is the point to be decided in this appeal.

Even though D.W.5 speaks that he is an attestor, when he was examined, I do not find that the Will is shown to him and the signatures of the

various attestors or the testator are identified by him. It is seen that Ex.B-8 was marked through D.W.3, the third defendant, wherein the court

noted ""subject to proof."" I do not find that any step has been taken by the third defendant (appellant) to have the same proved in accordance with

law, i.e., when attestation to a Will is sought to be proved, naturally, the witness must say that the document contains either the thumb-impression

or signature of the attestator, and that he has also signed in token of the attestation. He must identify the signature as seen in the document. In fact,

the evidence of D.W.5 is completely silent in that regard. So, he cannot say with certainty as to what he attested, and whether Ex.B-8 is the

document which was really executed by the deceased.

Even though there are six attestors, D.W.5 is the only witness who has been examined, and no explanation is offered by the defendants as to

why the other attestors have not been examined. I am not for a moment saying that all the attestors have to be examined for proof of a Will. The

evidence of one witness Will be sufficient to prove the execution, provided that witness is in a position to speak as regards the entire procedure

that was taken at the time of execution. If the witness who deposed before court is not in a position to speak to the entire procedure of execution

and attestation, naturally, some other attestor also should have been examined. In this case, no explanation is offered or no step has been taken to

cure that lacuna.

In A. Rangaswami Pillai Vs. A. Subramania Pillai and Others, in paragraph 6 of the judgment, a Division Bench of this Court has held thus:

...Under Section 63 (c) of the Indian Succession Act, a Will shall be attested by two or more witnesses, each of whom must have 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 of the signature of such other person; and each of the witnesses shall sign

the Will in the presence of the testator. Therefore, proof of due execution requires that either one or more of the attesting witnesses should prove

the execution by the testator and the attestation by each of them. This is also the ratio of the judgment of a Division Bench of the Bombay High

Court in Roda Framroze v. Kants Varjivandas AIR 1946 Bom. 72

Recently, in (K.A. Krishnamurthy v. Jagadambal Ammal and Ors. L.P.A.No. 129 of 1992 and Second Appeal No. 796 of 1983 -judgment

dated 24-7-1996) a similar question came for consideration, and in paragraph 18 of the judgment, it was held thus: The fact that the defendants

have chosen to examine only one attestor, when there is another attestor available to give evidence, is also a relevant circumstance to be taken into

consideration while deciding the question of genuineness of the Will. In Sadachi Ammal v. Rajathi Ammal AIR 1940 Mad. 315 the court held that

where a Will was executed under suspicious circumstances, failure to examine five out of six attesting witnesses and the writer of the Will, makes

the suspicion surrounding the Will much stronger than it otherwise would be. The same principle has been upheld in Dinesh Kumar Vs. Khazan

Singh and Others, and in Rathinam v. Gopal (1989) 1 L.W. 486. It is seen from Ex.B-4 that the scribe of the Will is not a resident of

Tiruvannamalai, but has come from Melkachirampattu. There is no explanation whatever as to why the scribe was brought from another place

outside Tiruvannamalai. It is too well-known that there are number of scribes available in Tiruvannamalai itself. According to D.W.1, the scribe

told her that the testator requested him to go to the place of execution. There is no explanation in the evidence of D.W.1 or D.W.2 for this

suspicious circumstances.

The evidence of D.W.5 was disbelieved by the lower appellate court. Even the trial court was not satisfied with the evidence of D.W.5. But it

held that the court should not be too technical in interpreting the evidence of attesting witness merely because there is some defect in what he

deposed. In one place of his deposition, he say that the testator as well as the attestors mutually saw the affixing of their signatures. He did not say

who the attestors are and as I have said already, he has not identified any of the signatures. But in cross-examination, he was asked a specific

question whether the witnesses signed in Tamil or Telugu, his answer was that he did not see them signing the document. That means, the primary

condition for acceptance of execution is completely lacking in this case. That apart, one of the circumstances was also brought to the notice of the

learned Counsel for the respondent. D.W.4 is one Swaminalhan. He says that he prepared the document Ex.B-8. But when D.W.5 was examined,

he never said that D.W.4 prepared the document. He said that it was the Karnam who prepared the document. Who the Karnam is, is not

disclosed either by D.W.4 or D.W.5. Again, D.W.5 says that everything was prepared in the Taluk Office whereas D.W.4 says that it was

prepared in the Sub-Registrar''s Office. Even though learned Counsel for the appellant says that both the offices are situated in the same Office, it

is only a statement by the counsel and it is not in evidence. A reading of the evidence of D.Ws.4 and 5 also will make it clear that the appellant and

her husband were taking earnest steps in having the document executed. They are not silent spectators to the execution. Once D.W.5''s evidence is

discarded, even though there are other attestors to Ex.B-8, none of them has been examined before court. That means, Ex.B-8 is not proved in

accordance with law.

It is the case of D. W.3 that her father being illiterate, will not put any signature and he will affix only his thumb-impression. She also said that it

was always the habit of her father to affix only thumb-impression and not signature. That is belied by their own documents. Ex.B-1 is a registered

documents executed by the deceased. It is a settlement deed. We find that the deceased has affixed his signature in Telugu and it is very legible.

Only a literate person can put a signature as the one seen in Ex.B-1. Why there was difference in Ex.B-1 and B-8 is a big circumstance which goes

against the case of the appellant.

I have already said that in Ex.B-8, no provision is made to the widow who was all along living with him. It is also the admitted case of

defendants 2 and 3 that both of them used to reside with the appellant or the fourth defendant in turns and they were mutually loving each other.

Even her name is not mentioned in Ex.B-8. I am not saying that merely because the wife has not been provided, the Will has to be discarded. But it

is settled law that the execution of the Will itself pre-supposes a change in the normal rule of succession. If it disinherit a natural heir, it is a

suspicious circumstance which has to be explained.

In Ram Piari v. Bhagwant and Ors. 1990 S.C.J. 588 in paragraph 2 of the judgment, their Lordships said that prudence requires reason for

denying benefit to whose who were entitled to the same, and the same must be explained by the testator and not by the propounder. In that case,

their Lordships held thus:

Soft corner for grand-children or likeability for a son or daughter or their issues is not uncommon to our society. Rather at times it becomes

necessary either to provide for the lesser fortunate or to avoid the property from passing out of the family. But when disputes arise between heirs

of same degree, and the beneficiary even chooses to deny the blood ties, and that too unsuccessfully, then court''s responsibility of performing its

duties carefully and painstakingly multiples Unfortunately it was not properly comprehended by any of the courts, including the High Court which

was swayed more by happy marriage of appellant, a consideration which may have been relevant for testator but wholly irrelevant for courts as

their function is to judge not to speculate. Although freedom to bequeath one''s own property amongst Hindu is absolute both in extent and person,

including rank stranger, yet to have testamentary capacity or a disposable mind what is required of propounder to establish is that the testator at

the time of disposition knew and understood the property he was disposing and persons who were to be beneficiaries of his disposition. Prudence,

however, requires reason for denying benefit to those who to were entitled to bounty of testator as they had similar claims on him. Absence of it

may not invalidate a Will but it shrouds the disposition with suspicion as it does not give any inkling to the mind of testator to enable the court to

judge if the disposition was voluntary act. Taking active interest by propounder in execution of Will raises another strong suspicion. In H.

Venkatachala Iyengar Vs. B.N. Thimmajamma and Others, it was held to render the Will unless the propounder cleared the suspicion with clear

and satisfactory evidence. Mere execution of Will, thus, by producing scribe or attesting witness or proving genuineness of testator''s thumb

impressions by themselves was not sufficient to establish validity of Will unless suspicious circumstances, usual or special, are ruled out and the

courts'' conscience is satisfied not only on execution but about its authenticity.

No attempt is made even in the deposition of the third defendant why his (testator''s) wife has been disinherited. Plaintiff is also a natural heir.

Her name is not made mention of in Ex.B-8. The plaintiff can also expect as a natural heir that her grandfather will provide her. In the written

statement, we do not find any explanation in that regard.

Learned Counsel for the appellant submitted that the disinheritance of the wife is a matter for the wife to impeach, and when she herself has

agreed to the provision in the Will, this could not be taken as a suspicious circumstance.

I cannot agree with the said submission, especially when we read the evidence of D.W.1, the widow. If the matter could not be complained by

the widow, then, that itself could be an explanation given by the testator in the Will. After his death, when D.W.1 is a complete dependent on her

daughters, naturally, for her existence, she has to support their case. In her evidence, she has said that even for one time food, she has to depend

on her daughters, and if they do not give food, she must only starve. If that kind of evidence is before Court, the non-complaining of D.W.1 cannot

be accepted as a good explanation. D.W.1 is not complaining only because of compulsion, and not out of free mind.

Learned Counsel also submitted that the Will is a registered one and before the Registrar, the attestor has admitted the execution of the Will. I

agree with the argument that the registration of a Will is a piece of evidence, which could be taken into consideration when the genuineness of the

same is in question. But, there must be evidence that the registration formalities were taken in accordance with law. Nobody speaks about the

procedure before the Sub Registrar. Whether the very same testator presented himself before the Sub Registrar is also not in evidence. Whether

the Sub Registrar read over the document to the testator is not spoken to by any one. When there is no signature of the testator, and we have only

the thumb-impression, whether the thumb-impression was affixed before the Sub-Registrar by the testator himself is also not spoken to by any one.

If there is some evidence regarding the registration formalities, that can be taken as a piece of evidence. But, in this case, the same is also lacking.

I have said that Section 100, C.P.C. may not strictly apply, when there is a conflicting decision, when we consider the genuineness of the Will,

and that is why I permitted the parties to read before me the entire evidence. Even though I have thoroughly gone through the entire evidence, I do

not think the lower appellate court has gone wrong in holding that it was not proved that the Will was executed by the deceased. The suspicious

circumstances are also not explained. There is no explanation of the various attestors when the evidence of D.W.5 is of no use. The evidence of

D.W.5 cannot be treated as trustworthy. In all the decisions of the Supreme Court, it is held that when we consider the validity of the Will, it is the

conscience of the court that has to be taken into consideration. On the available evidence, I cannot say that the Will Ex.B-8 is proved in

accordance with law.

In the result, the substantial question of law is found against the appellant. The second appeal will stand dismissed with costs.