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CASE NO.:

Appeal (civil) 4550 of 2OO6

PETITIONER:

B. Venkatamuni

RESPONDENT:

C.J. Ayodhya Ram Singh & Ors.

DATE OF JUDGMENT: 19/10/2006

BENCH:

S.B. Sinha & D.K. Jain

JUDGMENT:

J U D G M E N T

(Arising out of SLP (C) No. 2201/2005)

S.B. Sinha, J.

Leave granted.

One Smt. B. Akkayamma, although not a highly educated lady, was

carrying on the profession of money lending. She acquired considerable

property. The immovable properties held and possessed by her were situate

in the District of Chittoor in the State of Andhra Pradesh and at Arkonam in

the State of Tamil Nadu. She was unmarried. She had, however, been

living with one Shri C.D. Jai Singh. Respondent Nos.1 to 3 are children of

the said Jai Singh through his legally wedded wife Smt. Shyam Bai. She

was original plaintiff No.4 in the suit. She, during the pendency of the suit,

however, expired.

Jai Singh shifted to Arkonam from Tirupati. Akkayamma followed

him. They started living together. She had, however, been visiting Chittoor

and Tirupati occasionally. Plaintiffs-Respondents originally developed a

disliking for Akkayamma. A suit was also filed against her, but it appears

from the records that they had later reconciled and she was accepted as a

member of the family. A purported Will was executed by Akkayamma on

23rd March, 1968 bequeathing her properties situate in the District of

Chittoor in favour of respondent No.1 herein only. The said Will was an

unregistered one. It may be, however, noticed that Jai Singh expired on 17th

July, 1968. During his illness, although Akkayamma was possessed of

sufficient properties both movable and immovable, but she did not spend

any amount towards his treatment. Admittedly, she was of miserly nature.

Surprisingly, however, she executed two deeds on 26. 9.1968 transferring

her properties situate at Arkonam in favour of respondents. She expired on

29th September, 1968. Although in the Will Respondent No.1 alone was the

beneficiary thereof, not only Respondent Nos. 2 and 3, but, as noticed herein

before, their mother also filed an application for grant of probate in the

Court of District Judge, Chittoor. Respondent No.4 herein, who is said to be

the tenant in one of the premises in question, was impleaded as a party

therein. Appellant herein was not initially impleaded as a party, although, he

was the heir and legal representative of Akkayamma. He was impleaded at a

later stage. The application for grant of probate was also amended by

making an alternative prayer for grant of Letters of Administration. A

caveat in the meantime had also been lodged by Appellant.

In view of the opposition to the prayer for grant of probate, the

learned District Judge, by an order dated 2.7.1975 directed that O.P.No.102

of 1970 be converted into a regular suit in terms of Section 295 of the Indian

Succession Act, 1925. In the said suit, Appellant in his written statement,

inter alia, contended that the Will in question was a forged one. The learned

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trial court, in view of the pleadings of the parties, inter alia, framed the

following issues :

"1. Whether the will dt. 23.3.1968 alleged to have

been executed by late Akkayyamma is true, valid

and binding on the defendant?

2. Whether the defendant is a reversioner to the estate

of late Akkayyamma?

3. Whether this court has no jurisdiction to entertain

this suit?

4. Whether this suit is not maintainable for non

compliance with any of the provisions of Indian

Succession Act?

5. Whether the court fee paid is incorrect?

6. Whether the plaintiffs are entitled to a probate or

letters of administration in respect of the suit

property?

7. Whether the plaintiffs are entitled to declaration

prayed for?

8. To what relief?"

In his judgment dated 28th October, 1981, the learned Judge opined

that in view of presence of nine suspicious circumstances surrounding the

execution of the Will, the same could not be held to have been executed by

Akkayyamma. An appeal preferred thereagainst by Respondent Nos.1 to 3

was dismissed by a learned Single Judge of the High Court by a judgment

and order dated 19th June, 1995. The learned Single Judge in his judgment,

apart from nine circumstances enumerated by the learned trial Judge, also

added three circumstances thereto in arriving at a finding that the execution

of the said Will has not been proved.

A Division Bench of the High Court, however, while exercising its

Letters Patent jurisdiction, by reason of the impugned judgment dated 26th

October, 2004 reversed the said judgments holding that the evidence on

record satisfies the requirements of Section 63 of the Indian Succession Act

and that the trial court as also the learned Single Judge erred in discarding

the Will on circumstances none of which was a suspicious one attending due

execution of the Will. Appellant is, thus, before us.

Mr. T.N. Rao, learned counsel appearing on behalf of the appellant

submitted that the Division Bench of the High Court committed a serious

error in ignoring a large number of suspicious circumstances surrounding

purported execution of the Will as opined by the learned District Judge as

also the High Court. It was urged that the Division Bench committed an

error in so far as wrong legal tests were applied in opining that once the Will

stands proved, the suspicious circumstances enumerated by the trial court

and the Single Judge, take a back seat. It was submitted that in view of the

findings of fact arrived at by the learned District Judge and the learned

Single Judge, the Division Bench was obliged to consider each of the

enumerated circumstances and in not doing so, it has committed a manifest

error.

Mr. V. Balachandran, learned counsel appearing on behalf of

respondents, on the other hand, urged that once execution of the Will has

been found to be proved in terms of the provisions of Section 63 of the

Indian Succession Act, even if there existed some discrepancies, the same

should be ignored as the witnesses had deposed after a long time.

Akkayamma was not a highly educated lady. She received only

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primary education. She could only put her signature. She was otherwise

worldly. She was of miserly nature. She was originally a resident of

Arconam. She knew the importance of registration of document as only a

couple of days before her death, i.e., 29th September, 1968 she executed two

deeds of settlement in favour of Respondents. We need not go into the

question as to whether Plaintiffs-Respondents have sufficiently proved love

and affection of Akkayamma for them, but, when a question comes up for

consideration before a court in regard to grant of probate or Letters of

Administration with a copy of the Will annexed thereto, it is trite that all

circumstances should be taken into consideration. It may be true, as has

been opined by the Division Bench of the High Court, that proof of

execution of the Will in terms of Section 63 of the Indian Succession Act

and Sections 67 and 68 of the Indian Evidence Act would be a pre-requisite,

but, to take the same in evidence it is also trite that while arriving at a

finding as to whether the Will has duly been executed or not, the court must

satisfy its conscience having regard to the totality of the circumstances. The

Will in question was executed on 23.3.1968. It was an unregistered one.

She was ordinarily not a resident of District of Chittoor. She used to visit

the said place occasionally. She did not know intimately the scribe of the

Will, namely, P.W.1-Shri V. Thyagarajan. He was a teacher. There was no

reason for Akkayamma to walk to his residence and ask him to scribe the

Will. If P.W.1 was not a professional scribe, there may not be any particular

reason as to why Akkayamma had chosen him for the said job. In the event

of suspicion in regard to the genuineness or otherwise, the Will must be

proved to have been executed in accordance with law establishing that the

same has been done in presence of at least two witnesses. Although, the

court should not approach the question with a suspicion that the Will is not a

genuine one, the general guidelines laid down by this Court and the High

Court in this behalf should be followed. The issue necessarily involves due

appreciation of evidence. We may notice that in the Will Akkayamma

described herself as the father's wife of Shri C.D. Jaya Singh. What is

meant by that is not known. While describing herself as the father's wife of

C.D. Jaya Singh, it was stipulated that she had been having that status for the

last 40 years. Our attention has been drawn to the findings of the learned

District Judge by the learned counsel for Respondents that Akkayamma

developed love and affection not only for Jai Singh, but also for his children

through his first wife and particularly, the 3rd plaintiff who was his daughter.

If that be the position, then why she had not bequeathed any property in her

favour is difficult to understand. The learned District Judge enumerated

nine circumstances which, according to him, were relevant for considering

the proof of due execution and attestation of the Will in question, which are

as under :

1. Akkayamma lived with Jai Singh, the father of the

plaintiffs 1 to 3 and husband of plaintiff No.4 at

Arkonam in Tamilnadu while the plaintiffs lived at

Chittoor in Andhra Pradesh till Jai Singh and she

died.

2. There are indications to show that the plaintiffs

were against Akkayamma to some extent when the

second plaintiff filed a suit for partition on the

ground that Jai Singh squandered the property after

he developed contact with Akkayamma.

3. There was no special reason for love and affection

between them except that Akkayamma had no

children. There was no reason for Akkayamma in

particular to choose first plaintiff to bequeath the

schedule properties ignoring all other similarly

placed persons like plaintiffs 2 and 3.

4. Piecemeal disposal of her properties at different

stages and different types of documents Exs. A.1,

B.24 and B.25, namely, settlement deed looks

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unnatural.

5. Akkayamma leaving registered documents Exs.

B.24 and B.25 just three day prior to her death as

against unregistered will six months prior to her

death looks suspicious.

6. The will and settlement deeds almost read similar

with same intentions consequently leading to a

serious doubt.

7. The signature of Akkayamma on Ex.A.1 as

Akkayamma Chevralu for the first time as against

her usual signature on many documents including

the settlement deeds Ex. B.24 and B.25 coming out

just three days prior to her death with signature as

Akkayamma speaks of something unnatural in the

conduct of her.

8. The omission to mention the execution of Ex.A.1

will or the execution of such property in Exs. B.24

and B.25 is a strong circumstance leaving a serious

suspicion on the conduct of Akkayamma.

9. The contents of Ex.A.1, which are conditional and

contingent, appear to be unnatural."

The learned Single Judge in his judgment agreed therewith. Both the

learned District Judge as also the High Court pointed out a number of

infirmities in the testimonies of the 1st plaintiff as also P.Ws. 1- the scribe

and P.Ws. 2 and 3 - the attesting witnesses. To disbelieve their evidences in

regard to the execution of the Will (Exhibit A.1), the learned courts pointed

out that if Akkayamma wanted to execute a Will, she would have done so in

her own house or in the house of plaintiffs. P.Ws. 1 to 3, on their own

showing, were strangers to her. They had not even seen Jai Singh. They

had no occasion to meet Akkayamma at any point of time and they had

expressed their ignorance about her. They even did not know whether Jai

Singh was alive at the time of their deposition. According to them, on the

date of execution of the Will Jai Singh had not expired, which was not a fact.

All this, and rightly so, could not be ignored by the trial judge as also by the

High Court. The scribe, P.W.1, even did not explain as to how he was

prevailed upon to draft an important document like Will and what was his

experience therefor. It had further been noticed that P.W.2 worked in the

same Bank wherein the 1st plaintiff was employed. Plaintiff No.2 was the

son of P.W.1 and P.W.3 was also a relative of the plaintiffs. They were,

thus, termed as interested witnesses by the learned District Judge. The

learned Singe Judge on further re-appreciation of evidence added three more

circumstances stating as the suspicious ones, which are as under :

1. Akkayamma came all the way from Arkonam to

Chittoor and went to the house of a stranger P.W.2

while thinking of leaving a will only in favour of

first plaintiff without any background or reason

and the said conduct lends no explanation on the

part of the plaintiffs.

2. It appears that Akkayamma who is said to be a

miserly lady \026 when she did not spare any property

while her paramour \026 husband like Jai singh was

on death-bed, thought of leaving a will in favour of

plaintiff No.1 for no reason.

3. Akkayamma appears to have included some of the

properties found in Ex.A 1 in Exs. B.24 and B.25

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also as detailed by the learned District Judge."

In an intra-court appeal, the Division Bench undoubtedly may be

entitled to re-apprise both questions of fact and law, but the following dicta

of this Court in Umabai & Anr. vs. Nilkanth Dhondiba Chavan (Dead)

By Lrs. & Anr. [(2005) 6 SCC 243], could not have been ignored by it,

whereupon the learned counsel for Respondents relied:

"It may be, as has been held in Asha Devi v. Dukhi

Sao (1974) 2 SCC 492 that the power of the appellate

court in intra-court appeal is not exactly the same as

contained in Section 100 of the Code of Civil Procedure

but it is also well known that entertainment of a letters

patent appeal is discretionary and normally the Division

Bench would not, unless there exist cogent reasons, differ

from a finding of fact arrived at by the learned Single

Judge. Even as noticed hereinbefore, a court of first

appeal which is the final court of appeal on fact may have

to exercise some amount of restraint."

In the said decision, it was further noticed:

"Yet in Manjunath Anandappa vs. Tammanasa

(2003) 10 SCC 390 it was held : (SCC p. 403, para 36)

"36. It is now also well settled that a court of

appeal should not ordinarily interfere with the

discretion exercised by the courts below."

The Division Bench of the High Court did not address itself to the

circumstances noticed by the learned Single Judge, but proceeded on the

premise that once execution is duly proved, the court may not probe deeper

into the matter stating :

"If the various requirements of a valid will are

established, then as observed by the Privy Council in

Motibai Hormusjee's case, "A man may act foolishly and

ever heartlessly; if he acts with full comprehension of

what he is doing the Court will not interfere with the

exercise of his volition."

Section 63 of the Indian Succession Act provides :

"63. Execution of unprivileged wills.\026

* * *

a) the testator shall sign or shall affix his mark

to 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

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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."

Proof of a Will shall strictly be in terms of the abovementioned

provisions.

It is, however, well settled that compliance of statutory requirements

itself is not sufficient as would appear from the discussions hereinafter

made.

The approach of the Division Bench of the High Court did not address

itself the right question. It took an erroneous approach to the issue as would

appear from the decision of this Court in Surendra Pal & Ors. vs. Dr.

(Mrs.) Saraswati Arora & Anr. [(1974) 2 SCC 600], whereupon again Mr.

V. Balachandran himself placed reliance, wherein the law was stated in the

following terms :

"The propounder has to show that the Will was

signed by the testator; that he was at the relevant time in

a sound disposing state of mind, that he understood the

nature and effect of the dispositions, that he put his

signature to the testament of his own free will and that he

has signed it in the presence of the 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 there

may be cases in which the execution of the Will itself is

surrounded by suspicious circumstances, such as, where

the signature is doubtful, the testator is of feeble mind or

is overawed by powerful minds interested in getting his

property, or where in the light of the relevant

circumstances the dispositions appear to be unnatural,

improbable and unfair, or where there are other reasons

for doubting that the dispositions of the Will are not the

result of the testator's free will and mind. In all such

cases where there may be legitimate suspicious

circumstances those must be reviewed and satisfactorily

explained before the Will is accepted. Again in cases

where the propounder has himself taken a prominent part

in the execution of the Will which confers on him

substantial benefit that is itself one of the suspicious

circumstances which he must remove by clear and

satisfactory evidence. After all, ultimately it is the

conscience of the court that has to be satisfied, as such

the nature and qualify of proof must be commensurate

with the need to satisfy that conscience and remove any

suspicion which a reasonable man may, in relevant

circumstances of the case, entertain."

In H. Venkatachala Iyengar vs. B.N. Thimmajamma & Ors.

[(1959) Supp.1 SCR 426, it was opined :

"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

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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."

In Smt. Guro vs. Atma Singh & Ors. [(1992) 2 SCR 30], this Court

has opined :

"With regard to proof of a will, the law is well-

settled that the mode of proving a will does not ordinarily

differ from that of proving any other document except as

to the special requirement prescribed in the case of a will

by section 63 of the Indian 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 signature of

the testator as required by law is sufficient to discharge

the onus. Where, however there were 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. Such suspicious

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circumstances may be a shaky signature, a feeble mind

and unfair and unjust disposal of property or the

propounder himself taking a leader part in the making of

the will under which he receives a substantial benefit.

The presence of suspicious circumstances makes the

initial onus heavier and the propounder must remove all

legitimate suspicion before the document can be accepted

as the last will of the testator."

Yet again Section 68 of the Indian Evidence Act postulates the mode

and manner in which proof of execution of document required by law to be

attested stating that the execution must be proved by at least one attesting

witness, if an attesting witness is alive and subject to the process of the

Court and capable of giving evidence.

This Court in Daulat Ram & Ors. vs. Sodha & Ors. [(2005) 1 SCC

40], stated the law thus :

"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 so."

[Emphasis supplied]

Yet again in Meenakshiammal (Dead) Through & Ors. vs.

Chandrasekaran & Anr. [(2005) 1 SCC 280], it was stated :

"In the case of Chinmoyee Saha v. Debendra Lal

Saha it has been held that if the propounder takes a

prominent part in the execution of the will, which confers

a substantial benefit on him, the propounder is required

to remove the doubts by clear and satisfactory evidence.

Once the propounder proves that the will was signed by

the testator, that he was at the relevant time in a sound

disposing state of mind, that he understood the nature and

effect of the disposition and put his signature out of his

own free will, and that he signed it in presence of the

witnesses who attested it in his presence, the onus, which

rests on the propounder, is discharged and when

allegation of undue influence, fraud or coercion is made

by the caveator, the onus is on the caveator to prove the

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same."

{See also Sridevi & Ors. vs. Jayaraja Shetty & Ors. [(2005) 8 SCC

784].}

The principle was reiterated in Pentakota Satyanarayana & Ors. vs.

Pentakota Seetharatnam & Ors. [(2005) 8 SCC 67], wherein it was

stated :

"In the instant case, the propounders were 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. In

other words, the onus on the propounder can be taken to

be discharged on proof of the essential facts indicated

above."

However, having regard to the fact that the Will was registered one

and the propounder had discharged the onus, it was held that in such

circumstances, the onus shifts to the contestant opposing the Will to bring

material on record meeting such prima facie case in which event the onus

shifts back on the propounder to satisfy the court affirmatively that the

testator did not know well the contents of the Will and in sound disposing

capacity executed the same.

Each case, however, must be determined in the fact situation obtaining

therein.

The Division Bench of the High Court was, with respect, thus, entirely

wrong in proceeding on the premise that compliance of legal formalities as

regards proof of the Will would sub-serve the purpose and the suspicious

circumstances surrounding the execution thereof is not of much significance.

The suspicious circumstances pointed out by the learned District

Judge and the learned Single Judge of the High Court, were glaring on the

face of the records. They could not have been ignored by the Division

Bench and in any event, the Division Bench should have been slow in

interfering with the findings of fact arrived at by the said court. It applied a

wrong legal test and thus, came to an erroneous decision.

For the reasons aforementioned, the impugned judgment cannot be

sustained. It is set aside accordingly. The appeal is allowed with costs.

Counsel fee assessed at Rs.10,000/-.