Tara Singh vs Smt. Shanti and Others

M.S. Liberhan, J.—The Appellant has challenged the judgment and decree of the lower appellate Court dated May 2, 1978, dismissing the suit of the Plaintiff Tara Singh, in this appeal.

Briefly, the disputes revolves around the suspicious circumstances surrounding the Will of deceased Shrimati Lachhmi, who had bequeathed her property in favour of Tara Singh, Plaintiff, and ignored her three daughters. The beneficiary is none else then the grand-son of the husband''s elder brother of the deceased. The Will was executed on June 4, 1967. Sadhu Singh P. W. 2 and Dhoor Singh P. W. 3 have attested the said Will. The Plaintiff sought a declaration with respect to the ownership of the land in dispute on account of the Will having been executed by Shrimati Lachhmi in his favour.

The Defendants denied the execution of the Will and further averred that the same is the result of fraudulent act of the Plaintiff, the deceased was not possession of sound disposing mind and the Will is unnatural and improper. The possession of the Plaintiff was admitted. The following issues were framed:

Whether Shrimati Lachhmi executed valid Will dated June 4, 1967 in respect of her share in 67 Kanals 7 Marias of land in dispute in favour of the Plaintiff ?

Relief.

The trial Court, after appreciation of the evidence, came to the conclusion that the Will had been duly executed in accordance with law and there were no suspicious circumstances Consequently, the suit was decreed.

The lower appellate Court, on appeal by the contesting Defendants, reversed the findings of the trial Court, and held the Will to be surrounded by supicious circumstances. It was to be an unnatural disposition of the property depriving the real daughters, bequeathing the property to a stranger, and attested by witnesses who did not belong to the village of the deceased. The supicions had not been removed by any cogent evidence. The appellate Court declined to uphold the Will.

The learned Counsel for the Appellants contends that solely witnesses being from a different village and the daughters having been deprived of the inheritance are in itself not sufficient reasons, not to, uphold the will. Both the Courts below concurrently came to the conclusion that the Will had been duly executed. There is no dispute with respect to thumb impression of the deceased on the Will. Only reason attributed for creating suspicion was that the witnesses were not from the village of the deceased. In my opinion, that by itself was not sufficient to disbelieve the witnesses or create any suspicion. It was never, the suggestion or even the case of the Defendants that they were not present at the time of the execution of the Will. Rather, suggestions were put to the Plaintiff''s witnesses that the Will was forged and imposter was made to thumb mark the Will after the death of Shrimati Lachhmi. The fact that Shrimati Lachhmi. was living with Tara Singh and the girls were married happily and living in their own families was not controverted. There is not even an iota of evidence on the record rebutting the above facts. Not even suggestions had been put, that the deceased was not living with the Plaintiff and not looked after by him rather, it was stated by the Defendants that they used to visit her off and on only.

The, Will has to be proved like any other document. Test of prudent mind''s satisfaction and not of mathematical certainty is only required. It has to be shown that the deceased was of sound disposing mind ait the time of executing the Will and the provisions of Section 63 of the Indian Succession Act have been complied with. For proving execution of the Will it is to be shown to have been executed in the presence of two witnesses, who, in turn attested the same. In case, there are any suspicious circumstances, it is for the propounder of the Will to dispel them by leading cogent evidence to the satisfaction of the Court.

In ray view, merely the witnesses being of a different village does not itself constitute a suspicious circumstance, in particular when they were not shown to be interested in the Plaintiff, or biased against the Defendants. The witnesses were respectable independent persons of the village, though of the adjoining village. The reason for disbelieving Sadhu Singh P. W. 2, is that he had deposed with respect to the relationship of the Plaintiff with the deceased while he was neither a relation, nor had any special means of knowledge; this he could not depose with respect to the relationship. The reason is obviously fallacious. Neither the witness had been cross-examined nor any question put to him with respect to his special-means of knowledge Undisputedly the witness was from- a nearby village at a distance of 2/3 miles. It is a matter of common knowledge that in small villages the villagers know their co-villagers & villagers of nearby village and their relations.

The suspicion on account of the deprivation of the daughters of their natural succession, does not hold good in view of the decision of the Supreme Court in Smt. Sushila Devi Vs. Pandit Krishna Kumar Missir and Others, wherein it was observed as under:

Prima facie, the circumstance that no bequest was made to the Appellant by the testator would make the Will appear unnatural but if the execution of the will is satisfactorily proved, the fact that- the testator had not bequeathed any property to one of his children cannot make the will invalid. If the bequest made in a will appears to be unnatural then the Court has to scrutinise the evidence in support of the execution of the will with a greater degree of care than usual, because every person must be presumed to act in accordance with the normal human behaviour but there is no gainsaying the fact that some individuals do behave in an abnormal manner. Judges cannot impose their own standard of beeaviour on those who execute wills''. As observed by this Court in H. Venkatachala Iyengar Vs. B.N. Thimmajamma and Others, that the mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed by S. 63 of the Indian Succession Act. Proof in either case cannot be mathematically precise and certain and so the test should be one of satisfaction of a prudent mind in such matters. The onus must be on the propounder and in absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and signature of the testator as required by law may be sufficient to discharge the onus. Where, however, there are suspicious circumstances the onus would be on the propounder to explain them to the satisfaction of the Court before the will can be accepted as genuine.

In view of the observation of the Supreme Court and the proved facts on the record to (he effect that the deceased was living with the Plaintiff, who was looking after her and the genuineness of the thumb impression was not being disputed and further the concurrent findings given by the Courts below that the will had been duly executed and it bore the thumb impression of the deceased, the lower appellate Court could not decline to act on the said Will merely on the ground that the daughters had been deprived of the natural succession. Even otherwise one of the daughters has accepted the Will to be a genuine document. There was nothing against the witnesses, not even a suggestion. The witnesses being independent persons though from a nearby village and the will having been duly executed, in view of above facts, the Will stands proved to be genuine and last will of the deceased

In view of my observations, the finding of the lower appellate Court that the will is surrounded by suspicious circumstances and the same have not been explained is set aside and the appeal is accepted. Since the appeal has not been opposed by the Respondents, there is no order as to costs.