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Judgment
Heard Mr. D. Mazumdar, the learned Senior counsel appearing for the appellant as well as Mr. S. Chauhan,the learned counsel representing the
respondent.
This is an appeal under Section 299 of the Indian Succession Act, 1925, against the judgment dated 15.12.2009 passed by the Additional District
Judge, FTC No. 2, Kamrup (M) at Guwahati in Probate Title Suit No. 3/2005 rejecting the prayer of the appellant for grant of probate in respect of a
Will .
Smti. Jagadish Kumari Duggal (now deceased) was a State Government employee and in the year 1992, she retired from service. Late Jagadish
Kumari Duggal was unmarried. She had one sister named Prakash Duggaland one brother Late Manohar Duggal pre-deceased her. He died
unmarried during the lifetime ofLate Jagadish Kumari Duggal.
The sister Smti. Prakash Duggal has two daughters namely Saroj Bala and Kanchan Mala. All of them lived together. Saroj Bala has four children
and Kanchan Mala has three children.
In the month of July, 2004, when Jagadish Kumari Duggal was aged about 70 years, she went to Punjab for pilgrimage. Before leaving for Punjab,
Jagadish Kumari Duggal had given one closed envelope to Kanchan Mala.
On 29.12.2004, Saroj Bala got a telephonic information from an undisclosed source that Jagadish Kumari Duggal had expired on 09.09.2004. She
was also informed that her last rites were also performed at Punjab.
After getting the aforesaid news, on 03.01.2005, Kanchan Mala had opened the envelope which was given to her by Jagadish Kumari Duggal. She
found that the envelope contained a Will. By that Will, Jagadish Kumari Duggal had bequeathed her property consisting of a plot of land measuring 2
kathas within Guwahati city and an RCC building standing thereon and another property at Shillong, Meghalaya in favour of Saroj Bala.
Saroj Bala, accordingly, filed a petition for granting probate.
When Notices were issued, the present appellant appeared and contested the claim petition of Saroj Bala. The appellant filed a written statement
and also filed a counter claim stating that on 17.09.2004, just 21 days before her death, Jagadish Kumari Duggal had executed a Will in his favour
bequeathing the aforementioned properties to him.
The appellant denied that late Manohar Duggal, the brother of late Jagadish Kumari Duggal had died unmarried. The appellant claimed that
Manohar Duggal was married and had a son and the said son died at the age of 14 years and, thereafter, ManoharDugal and his wife died.
The appellant further denied that in the month of July, 2004 late Jagadish Duggal had gone to Punjab for pilgrimage. The appellant has claimed that
in the month of July, 2004, late Jagadish Duggal was seriously ill and therefore she called himto look after her. The appellant has stated that
heimmediatelycame down to Guwahati and had taken late Jagadish Kumari Duggal to Delhi and Amritsar for better medical treatment.
According to the appellant, late Jagadish Kumari Duggal actually expired on 09.10.2004 at Amritsar, Punjab, not on 09.09.2004,as claimed by Saroj
Bala. He further claimed that he had performed the last rites of late Jagadish Kumari Duggalat Punjab..
On the basis of the pleadings of both sides, the learned trial court had framed the following issues:
Whether Will dated 28.05.2004 alleged to have been executed by the deceased in favour of plaintiff is a genuine document on which the probate
can be granted to the plaintiff?
Whether the deceased handed over the possession of her house or scheduled property to the plaintiff prior to her disposition from Guwahati to
Amritsar in July 20th ?
Whether the plaintiff had entered into the house of deceased in January, 2005 illegally?
Whether the defendant is entitled to probate of the Will dated 17.09.2004 executed by the deceased in favour of the defendant at Amritsar?
Whether the defendant is entitled to recovering of possession of deceased’s property from the plaintiff?
To what relief/reliefs the parties are entitled to?
During the trial of the case, the appellant had examined witnesses whereas Saroj Bala did not adduce any evidence in support of her prayer for
probate. Since Saroj Bala did not adduce any evidence in support of her prayer for probate, her prayer was dismissed by the Court below. On the
other hand, on consideration of the evidence adduced by the appellant, the trial court dismissed the counter claim.
I have carefully gone through the evidence on record. The only point for determination in this appeal is as to whether the execution of the Will
dated 17.09.2004 was proved by the appellant.
The requirement of proof of a Will is the same as any other document,except that the evidence tendered for proving a will should additionally
satisfy the requirement of Section 63 of the Succession Act, 1925 and Section 68 of the Evidence Act, 1872.
The appellant has stated in his evidence that on 27.03.2004, he was telephonically informed that Jagadish Kumari Duggal was suffering from
serious ailments and was admitted at Nemcare Hospital, Guwahati. After getting the news, he immediately came down to Guwahati and met Jagadish
Kumari Duggal in the hospital. The appellant has stated that after arriving at the hospital, he came to know from the doctors that Jagadish Kumari
Duggal was suffering from cancer. On 30.07.2004 Jagadish Kumari Duggal was discharged from the hospital and on 08.08.2004 the appellant took
her to Delhi and, thereafter, to Amritsar. On 17.09.2004 Jagadish Kumari Duggal had executed the Will in his favour,bequeathing her properties at
Guwahati and Shillong and after 21 days she expired.
The second witness is Tapan Kumar Gupta, a resident of Shillong. He holds the power of attorney of Rabindra Duggal. On the basis of the said
Power of Attorney he filed a suit.
The third witnesses Kulbhushan Duggal. He is the brother of Rabindra Duggal. He claimed to be a close relative of Jagadish Kumari Duggal.
It is an admitted fact that on 17.09,2004, when Jagadish Kumari Duggal had executed the Will, she was seriously suffering from cancerand only
after 21 days she expired.
Now, at this stage Section 59 of the Indian Succession Act, 1925is relevant. Section59 states that every person of “sound mind†not being a
minor may dispose of his property by Will. Was late Jagadish Kumari Duggal in a “sound state of mind†on 17.09.2004?
In order to buttress his argument, Mr. Mazumdar has relied upon the following judgments:-
(i) H. VenkatachalaIyengar v. B.N. Thimmajamma,: AIR 1959 SC 443
(ii) Daulat Ram v. Sodha, (2005) 1 SCC 40
(iii) Meenakshiammal v. Chandrasekaran, (2005) 1 SCC 280
(iv) Bharpur Singh v. Shamsher Singh, (2009) 3 SCC 687
In H. VenkatachalaIyengar v. B.N. Thimmajamma (supra), the Supreme Court has held as under:
“18. What is the true legal position in the matter of proof of wills? It is well-known that the proof of wills presents a recurring topic for decision in
courts and there are a large number of judicial pronouncements on the subject. 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, we must inevitably refer to the statutory provisions which govern the
proof of documents. Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under Section 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 proving 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 provides 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 of 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. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this
section indicate what is meant by the expression “a person of sound mind†in the context. Section 63 requires that the testator shall sign or affix
his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that
it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or
more witnesses as prescribed. 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. Has the testator signed the will? Did he understand the nature and effect of the dispositions in the will? Did he
put his signature to the will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding
on the question of the proof of wills. 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 wills 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 a 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.â€
In the case of Daulat Ram v. Sodha (supra) it has been held as under:
“10. Will being a document has to be proved by primary evidence except where the court permits a document to be proved by leading secondary
evidence. Since it is required to be attested, as provided in Section 68 of the Indian Evidence Act, 1872, it cannot be used as evidence until one of the
attesting witnesses 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. In addition, it has to satisfy the requirements of Section 63 of the Indian Succession Act, 1925. In order to
assess as to whether the Will has been validly executed and is a genuine document, the propounder has to show that the Will was signed by the
testator and that he had put his signatures to the testament of his own free will; that he was at the relevant time in a sound disposing state of mind and
understood the nature and effect of the dispositions and that the testator had signed it in the presence of two witnesses who attested it in his presence
and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged. But where there are
suspicious circumstances, the onus is on the propounder to remove the suspicion by leading appropriate evidence. The burden to prove that the Will
was forged or that it was obtained under undue influence or coercion or by playing a fraud is on the person who alleges it to be soâ€.
In Meenakshiammal v. Chandrasekaran (supra), it is held as under:
“21. In the case of Madhukar D. Shende v. Tarabai Aba Shedage [(2002) 2 SCC 85 : AIR 2002 SC 637] it has been held as follows: (SCC pp. 91-
92, paras 8-9)
“8. The requirement of proof of a will is the same as any other document excepting that the evidence tendered in proof of a will should additionally
satisfy the requirement of Section 63 of the Succession Act, 1925 and Section 68 of the Evidence Act, 1872. If after considering the matters before it,
that is, the facts and circumstances as emanating from the material available on record of a given case, the court either believes that the will was duly
executed by the testator or considers the existence of such fact so probable that any prudent person ought, under the circumstances of that particular
case, to act upon the supposition that the will was duly executed by the testator, then the factum of execution of will shall be said to have been proved.
The delicate structure of proof framed by a judicially trained mind cannot stand on weak foundation nor survive any inherent defects therein but at the
same time ought not to be permitted to be demolished by wayward pelting of stones of suspicion and supposition by wayfarers and waylayers. What
was told by Baron Alderson to the jury in R. v. Hodge [(1838) 2 Lewis CC 227] may be apposite to some extent:
‘The mind is apt to take a pleasure in adapting circumstances to one another and even in straining them a little, if need be, to force them to form
parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and
mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them
complete.’
The conscience of the court has to be satisfied by the propounder of will adducing evidence so as to dispel any suspicions or unnatural circumstances
attaching to a will provided that there is something unnatural or suspicious about the will. The law of evidence does not permit conjecture or suspicion
having the place of legal proof nor permit them to demolish a fact otherwise proved by legal and convincing evidence. Well-founded suspicion may be
a ground for closer scrutiny of evidence but suspicion alone cannot form the foundation of a judicial verdict â€" positive or negative.
It is well settled that one who propounds a will must establish the competence of the testator to make the will at the time when it was executed.
The onus is discharged by the propounder adducing prima facie evidence proving the competence of the testator and execution of the will in the
manner contemplated by law. The contestant opposing the will may bring material on record meeting such prima facie case in which event the onus
would shift back on the propounder to satisfy the court affirmatively that the testator did know well the contents of the will and in sound disposing
capacity executed the same. The factors, such as the will being a natural one or being registered or executed in such circumstances and ambience, as
would leave no room for suspicion, assume significance. If there is nothing unnatural about the transaction and the evidence adduced satisfies the
requirement of proving a will, the court would not return a finding of ‘not proved’ merely on account of certain assumed suspicion or
supposition. Who are the persons propounding and supporting a will as against the person disputing the will and the pleadings of the parties would be
relevant and of significance.â€
In the case of Bharpur Singh v. Shamsher Singh (supra), the Apex Court has held as under:
“23. Suspicious circumstances like the following may be found to be surrounded in the execution of the will:
(i) The signature of the testator may be very shaky and doubtful or not appear to be his usual signature.
(ii) The condition of the testator's mind may be very feeble and debilitated at the relevant time.
(iii) The disposition may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provisions
for the natural heirs without any reason.
(iv) The dispositions may not appear to be the result of the testator's free will and mind.
(v) The propounder takes a prominent part in the execution of the will.
(vi) The testator used to sign blank papers.
(vii) The will did not see the light of the day for long.
(viii) Incorrect recitals of essential facts.
The circumstances narrated hereinbefore are not exhaustive. Subject to offer of reasonable explanation, existence thereof must be taken into
consideration for the purpose of arriving at a finding as to whether the execution of the will had been duly proved or not. It may be true that the will
was a registered one, but the same by itself would not mean that the statutory requirements of proving the will need not be complied with.â€
The trial Court held that the Will executed in favour of the present appellant is a suspicious one.
From the materials available in the record, the suspicious circumstancesin respect of the Will dated 17.09,2004 can be categorized as under:
(i) the natural legal heirs were deprived,
(ii) therelationship between the appellant and Jagadish Kumari Duggal has not been disclosed.
(iii) Jagadish Kumari Duggal was admittedly suffering from terminal cancer at the time of execution of the Will in favour of the appellant.
(iv) the appellant does not properly know the antecedents of the sisters and the other close relatives of Jagadish Kumari Duggal .
(v) the appellant took a prominent role in execution of the Will date 17,09,2004.
The learned trial courthas held that the Will dated 17.09.2004 was executed in a suspicious circumstance. On this point, I have decided to agree
with the decision of the trial Court. In this case, the most important question that arises is as to what is the relationship of the appellant with late
Jagadish Kumari Duggal. The appellant never disclosed his relationship with her. So, this court has sufficient reasons to hold that the appellant
Ravinder Duggal is a stranger.
It was the duty of the appellant, being the propounder of the Will, to prove that the Will was not executed in a suspicious circumstance. There is no
dispute that the 70 year old testator late Jagadish Kumari Duggal was terminally ill on 17.09,2004 and she died only 21 days after execution of the said
Will.
Another aspect of the matter that requires to be mentioned herein is that the attesting witnesses are the appellant and his brother but they never
disclosed that they are brothers. Rather they concealed that fact.
It appears from the evidence on record that the appellant does not know the details about the family of late Jagadish Kumari Duggal.
A Will is an instrument by which a person makes a disposition of his/her property to take effect after his/her death and this act itself by its own
measure ambulatory and revocable during his/her lifetime. A Will is an obstruction in the line of succession. When a petition for probate is under
consideration in a court of law, the conscience of the court must be cleared by the propounder by adducing cogent and reliable evidence. In the case
in hand, it is clearly visible that the propounder himself had taken a prominent part in the execution of the Will, which confers a substantial benefit to
him. If the propounder has taken a prominent part in the execution of the Will and is to receive substantial benefit under it, that itself must be treated
as a suspicious circumstance attending the execution of the Will and the propounder is required to remove the said suspicion by clear and satisfactory
evidence. The mere fact that a Will is registered will not by itself be sufficient to dispel all suspicion regarding it.
In Kalyan Singh v. Chhoti, (1990) 1 SCC 266, the Supreme Court has held ---
“20. It has been said almost too frequently to require repetition that 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 demeanor. 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 on the nature of
the evidence adduced by the party.
In H. VenkatachalaIyengar v. S.N. Thimmajamma [1959 Supp1 SCR 426 : AIR 1959 SC 443] Gajendragadkar, J., as he then was, has observed
that although the mode of proving a will did not ordinarily differ from that of proving any other document, nonetheless it requires an element of
solemnity in the decision on the question as to whether the document propounded is proved as the last will and testament of departed testator. Where
there are suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the court before the will could be
accepted as genuine. Where there are suspicious circumstances, 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. These principles have been reiterated in the subsequent decision of this Court
in Rani Purnima Devi v. Kumar Khagendra Narayan Dev [(1962) 3 SCR 195 : AIR 1962 SC 567] and Indu Bala Bose v. Manindra Chandra Bose
[(1982) 1 SCC 20]â€.
In Indu Bala Bose v. Manindra Chandra Bose, (1982) 1 SCC 20, the Supreme Court has held as under:
“7. This Court has held that the mode of proving a Will does not ordinarily differ from that of proving any other document except to the special
requirement of attestation prescribed in the case of a Will by Section 63 of the Succession Act. 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. Where however there are suspicious circumstances, the onus is on the propounder to explain them
to the satisfaction of the court before the court accepts the Will as genuine. Even where circumstances give rise to doubts, it is for the propounder to
satisfy the conscience of the court. The suspicious circumstances may be as to the genuineness of the signatures 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. In such a case 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. If the propounder himself takes a prominent part in the
execution of the Will which confers a substantial benefit on him that is also a circumstance to be taken into account, and the propounder is required to
remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the court would grant
probate, even if the Will might be unnatural and might cut off wholly or in part near relations. [See Shashi Kumar Banerjee v. Subodh Kumar
Banerjee, AIR 1964 SC 529; H. VenkatachalaIyengar v. B.N. Thimmajamma, AIR 1959 SC 443 : 1959 Supp 1 SCR 426 : 1959 SCJ 507 : Rani
Purnima Devi v. Kumar Khagendra Narayan Dev, AIR 1962 SC 567 : (1962) 3 SCR 195 : (1962) 1 SCJ 725]
Needless to say that any and every circumstance is not a “suspicious†circumstance. A circumstance would be “suspicious†when it is not
normal or is not normally expected in a normal situation or is not expected of a normal person.
Reverting to the case in hand, the circumstances categorized hereinbefore clearly show that the Will dated 17.09.2004 executed by late Jagadish
Kumari Duggal was executed in a suspicious circumstances. Theappellant being the propounder of the Will failed to remove the doubts by clear and
satisfactory evidence
This Court is of the opinion that the learned trial court correctly appreciate the evidence on record and arrived at a correct finding.
Under the said premised reasons, the present appeal is devoid of merit. Hence, the appeal is dismissed and disposed of.
Send back the LCR.