Manorma Devi vs Narvada Devi

Tarlok Singh Chauhan, J.

The defendants are the appellants, who are aggrieved by the judgment and decree dated 27.5.2003 passed by the learned Additional District Judge, Mandi, H.P. in Civil Appeal No. 17 of 2001 whereby he affirmed the judgment and decree dated 12.1.2001 passed by learned Sub Judge 1st Class, Karsog, District Mandi, H.P. in Civil Suit No. 25 of 2000.

The brief facts of the case may be noticed. The plaintiff alongwith her mother late Smt. Bati Devi filed the suit seeking declaration and joint possession of the land as described in the plaint on the ground that the land was recorded in the ownership and possession of late Sh. Mast Ram, who was the husband of late Smt. Bati Devi and father of the plaintiff. It was averred in the plaint that late Smt. Bati Devi, is the widow of deceased Mast Ram and the plaintiff/respondent is the daughter of deceased Mast Ram, who is stated to have died on 21.12.1999 and was living with defendant No. 1 without solemnization of any marriage with her and the defendants No. 2 to 4 are stated to be born out of the wedlock of deceased Mast Ram and defendant No. 1 and in consequence to the death of Mast Ram, the plaintiffs and defendants were entitled to inherit the suit land in equal share. It was contended that the deceased Mast was under the influence of liquor and defendant No. 1 in absence of the plaintiffs got a Will executed in favour of her minor sons of the entire immoveable property and the entire moveable property of Mast Ram in her favour which Will is stated to be a result of fraud and undue influence and it be declared null and void, having no binding effect upon the rights of the plaintiffs in the suit property. It was on 14.1.2000 that it had come to the knowledge of the plaintiffs that the defendants had procured Will dated 15.6.1992 from deceased Mast Ram in their favour and on the strength thereof, they are likely to get the mutation of the suit property attested in their favour and the plaintiffs though asked the defendants to admit their claim, but the defendants finally refused to admit the claim of the plaintiffs.

The defendants/appellants contested the suit of the plaintiffs by filing written statement raising preliminary objections and on merits, it is averred that the plaintiffs have got no right, title or interest qua the suit land on the basis of registered Will executed by Mast Ram in favour of defendants No. 2 and 3. It was averred by the defendants that the plaintiff No. 1 left the house of Mast Ram about 15 years back and started living either with her daughter or at her parents house. It was averred that Mast Ram remained ill for about 5 years and during this period the plaintiffs never visited the house of Mast Ram and never looked after him. The deceased Mast Ram out of love and affection had executed Will in favour of defendants as they looked after him during his illness. It was also stated that the plaintiff No. 1 never performed the last rites of Mast Ram which a Hindu widow after the death of her husband was required to perform and the plaintiff No. 2 visited the house of her father only after his death, hence the Will is quite genuine one. It was averred that the plaintiffs were very much in the know about the execution of Will as the same has been executed with the consent and permission of the plaintiffs.

On the pleadings of the parties, learned trial Court framed the issues on 28.7.2000:

"1. Whether the plaintiffs are entitled to inherit the suit land to the extent of 1/2 share being widow and daughter of deceased Mast Ram? OPP

Whether the plaintiffs are entitled to the joint possession of their 1/2 share alongwith defendants as prayed? OPP

Whether the suit is not maintainable? OPD

Whether the plaintiffs have got no locus-standi to file the present suit? OPD

Whether the deceased Mast Ram has executed a valid Will in favour of defendants No. 2 and 3 dated 15.6.1992? OPD

Relief."

The learned trial Court vide judgment dated 12.1.2001 decreed the suit of the plaintiffs, which was challenged in appeal before the learned Additional District Judge, Mandi, who vide judgment and decree dated 27.5.2003 dismissed the appeal.

Aggrieved by the judgments and decrees passed by the learned Courts below, the defendants/appellants have come up before this Court by way of second appeal.

On 9.7.2004 this Court admitted the appeal on following substantial question of law:

"Whether if the execution and registration of the Will is satisfactorily proved in accordance with Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act, the minor contradictions (if any) in the statements of the witnesses which may occur with the lapse of time can raise any suspicious circumstance so as to doubt the genuineness of the Will?"

I have heard learned counsel for the parties and have also gone through the records carefully.

Section 68 of the Evidence Act reads as under:

"68. Proof of execution of document required by law to be attested. - If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence:

Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied."

It is evident that in cases where the document sought to be proved is required by law to be attested, the same cannot be let in evidence unless at least one of the attesting witnesses has been called for the purpose of proving the attestation, if any such attesting witness is alive and capable of giving evidence and is subject to the process of the Court.

Section 63 of the Succession Act deals with execution of unprivileged wills and, inter alia, provides that every testator except those mentioned in the said provision shall execute his will according to the rules stipulated therein. It reads:

"63. Execution of unprivileged wills.- Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the following rules-

(a) The testator shall sign or shall affix his marks to the will, or it shall be signed by some other person in his presence and by his direction.

(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.

(c) The will shall be attested by two or more witnesses, each of whom has 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 acknowledgement 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, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."

From a conjoint reading of the two provisions extracted above it is evident that a will is required to be attested by two or more witnesses each of whom has seen the testator signing or affixing his mark on the will or has seen some other person signing the will in the presence and by the direction of the testator or has received from the testator a personal acknowledgement of the signature or mark or his signature or the signature of such other person and that each of the witnesses has signed the will in the presence of the testator. Section 68 of the Evidence Act is against the use of a will in evidence unless one attesting witness has been examined to prove the execution.

A careful analysis of the provisions of Section 63 would show that the proof of execution of a will would require the following aspects to be proved:

"(1) That the testator has signed or affixed his mark to the will or the will has been signed by some other person in the presence and under the direction of the testator.

(2) The signature or mark of the testator or the signature of the persons signing for him is so placed has to appear that the same was intended thereby to give effect to the writing as a will.

(3) That the will has been attested by two or more witnesses each one of whom has signed or affixed his mark to the will or has been seen by some other person signing the will in the presence and by the direction of the testator or has received from the testator a personal acknowledgement of the signature or mark or the signature of each other person.

(4) That each of the witnesses has signed the will in the presence of the testator."

The legal requirements in terms of the said provisions are now well settled. A will like any other document is to be proved in terms of the provisions of the Succession Act and the Evidence Act. The onus of proving the will is on the propounder. The testamentary capacity of the testator must also be established. Execution of the will by the testator has to be proved. At least one attesting witness is required to be examined for the purpose of proving the execution of the will. It is required to be shown that the will has been signed by the testator with his free will and that at the relevant time he was in sound disposing state of mind and understood the nature and effect of the disposition. It is also required to be established that he has signed the will in the presence of two witnesses who attested his signature in his presence or in the presence of each other. Only when there exist suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the court before it can be accepted as genuine.

The appellants in order to prove the Will have claimed that the same is free from any suspicious circumstances since the respondent No. 1 was living separately from deceased Mast Ram, whereas the respondent No. 2 had already been got her share at the time of marriage performed by deceased Mast Ram during his life time. It is further argued that only because there were minor contradictions in the statement of witnesses, the same could not be a ground to discard the Will, more particularly when the witnesses were deposing after about 8 years of the execution of the Will.

No doubt, the appellant No. 1 also claims herself to be the widow of deceased Mast Ram, but then as per own showing, she has not performed a legal and valid marriage with deceased Mast Ram, rather, she has admitted in her cross-examination that her previous husband namely Neelkunth is still alive and she started living with deceased Mast Ram without getting divorce from Neelkunth. This means that appellant No. 1 was enjoying a "live in relationship" with the deceased Mast Ram and therefore, she cannot be considered to be his legally wedded wife. No doubt, on account of co-habitation and union of the appellant No. 1 with the deceased, the appellants No. 2 to 3 were born and would be construed as legitimate but that would not give legitimacy to the status of appellant No. 1 to be the legally wedded wife of deceased Mast Ram.

The appellants have not denied that the respondents are the legal heirs of deceased Mast Ram. This being the position, then the onus will shift upon the appellants to prove the Will particularly when the respondents have been deprived of the property which they otherwise would have normally inherited but for the Will. It is the specific case of the respondents that the appellants took active part in making the Will and exercised her influence over deceased Mast Ram as he most of the time used to be under the influence of liquor. The evidence available on record does establish the presence of appellant No. 1 at the time of execution of the Will Ex.DW-1/A (also Ex.PW-1/B).

DW-4, who is the scribe of the Will has categorically stated in the cross-examination that on the day of execution of Will, deceased Mast Ram was accompanied by one lady and after seeing the appellant in the Court on the day of examination, he stated that the face of that lady resembled the appellant No. 1. No doubt, the counsel for the appellants would contend that this witness was won over by the respondents, but this objection is unsustainable as the appellants had ample opportunity to re-examine this witness, but no such prayer was made. This witness has further stated that at the time of writing of the Will by this witness, the deceased Mast Ram wanted to make a Will in favour of all the legal heirs but the lady repeated interrupted this witness from writing the Will and claimed that she insisted that the property be given to her sons. Because of this, the witness had asked Mast Ram and lady to first decide between themselves and then have the Will written. After some time the lady and Mast Ram came and Mast Ram stated dictating the Will. But then again this lady also during the intervals began dictating the Will.

Based upon the testimony of DW-4, learned Courts below have recorded the following suspicious circumstances:

"(i) That the beneficiary i.e. appellant No. 1 played an active part in making of the Will :

(ii) Mast Ram wanted to give his property to all of the heirs and this fact is admitted by DW-7, who is the real brother of deceased Mast Ram;

(iii) The relationship between Mast Ram and respondents remained cordial throughout and therefore, there is no reason for excluding them in the Will, which fact has been proved on record not only by PW-7 but even by DW-3 and DW-6, who admitted that the relationship of the deceased Mast Ram with the respondents remained cordial till the death of Mast Ram."

Learned Senior Counsel for the appellants after taking this Court through the oral evidence, has not been able to convince me as to how the view taken by the learned Court below is in any manner incorrect and would contend that once it is the admitted fact that respondent No. 1 had been residing separately from deceased Mast Ram for the last 15 years, the same would itself prove that the relation inter se them were far from cordial. I am afraid this plea of the appellants cannot be accepted in the teeth of the statements of the witnesses of the defendants themselves, more particularly, statements of DW-3, DW-6 and DW-7, who have categorically stated that the relation of deceased Mast Ram with the respondents remained cordial till his death.

On the basis of the aforesaid discussion, it can safely be concluded that the appellants have miserably failed to establish the due execution of Will Ex.DW-1/A in accordance with Section 63 of the Indian Succession Act read with Section 68 of the Indian Evidence Act. The substantial question of law is accordingly answered.

There is no illegality or perversity in the judgment passed by the learned Courts below. Consequently, there is no merit in the appeal and the same is dismissed, leaving the parties to bear their own costs.