REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7250 OF 2008

[ARISING OUT OF S.L.P. (CIVIL) NO. 1400 OF 2007]

BHARPUR SINGH & ORS. … APPELLANTS

Versus

SHAMSHER SINGH … RESPONDENT

J U D G M E N T

S.B. SINHA, J.

1.Leave granted.

2.Ram Devi, the testatrix, widow of Jiwan Singh resident of Village

Gharuan, Tehsil Kharar, District Ropar, Punjab, whose legal heirs and

representatives are the appellants, executed a will on or about 30.3.1962

when she was aged about 75 years of age. She breathed her last on

19.6.1990.

To show the relationship between the parties, we may at the outset

notice the genealogical table.

Rattan Singh

!

--------------------------------------------------------------------------

! !

Roop Singh Jodh Singh

!

------------------------

! !

!

Diwan Singh

!

Krishan

Singh

!

Lal Singh ---------------------------

! !

Ran Singh Harnam

Singh

-------------------------------

! !

! !

!

Jiwan

Singh

Nagina Wariam

Singh

!

!

! Ram Devi

Manna Singh !

!

!

------------------------------------------------------

! ! ! !

Shamsher

Singh

Pritam

Kaur

Died

Basso

Died

Gurdial

Kaur

@ Dialo

Defendant

Kakko

Defendant

Admittedly, the two surviving daughters of the testatrix, namely, Smt.

Gurdial Kaur alias Dialo and Smt. Kakko were married and had been living

at far away places. Respondent being the beneficiary under the said Will

filed a suit in the year 1993 against the appellants, inter alia, praying for

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setting aside an order of mutation passed in their favour on the premise that

relying on or on the basis thereof, the appellants had threatened to alienate

the suit land and dispossess him therefrom.

Plaintiff – Respondent in his plaint alleged that during the life time of

the testatrix, he used to look after her and in fact she expired in the house of

his daughter Iqbal Kaur.

3.Admittedly, she had four daughters, out of whom the defendants were

alive but were disinherited by her in the said Will. However, when an order

of mutation was passed in favour of appellants, the said suit was filed.

4.Appellants in their written statement denied and disputed the

contentions raised by the plaintiff that Ram Devi used to be looked after by

the plaintiff. According to them, no will had been executed by Ram Devi in

view of services rendered by him as alleged or at all. According to them, as

Jiwan Singh, the husband of Ram Devi was murdered about 60 years back,

she lost her balance of mind and had not been possessing sound mental

faculties. According to the defendants, she was being looked after by her

daughters.

5.The learned Subordinate Judge, 1

st

Class, Kharar, in view of the

pleadings of the parties, framed the following issues:

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“1.Whether the plaintiff is owner in possession

of the suit land?

2.Whether Smt. Ram Devi executed a legal

and valid will dated 30.3.1962 in favour of the

plaintiff, if so, its effect?

3.Whether the plaintiff has been mortgagee in

possession of land bearing Kh/Kh. No. 25/59

described in head note of the plaint?

4.If issue No. 3 is proved, whether equity of

redemption has been extinguished?

5.Whether plaintiff is entitled to decree of

permanent injunction prayed for?

6.Whether the plaintiff is estopped by his act

and conduct to file the present suit?

7.Relief”

The learned trial judge held that ‘the plaintiff had failed to prove that

Ram Devi executed a legal and valid will in his favour out of sound

disposing mind.’

Inter alia, opining that the plaintiff was an outsider, it was

furthermore held:

“Although in the will it finds mention that the

legatee Shamsher Singh is nephew of husband of

testatrix and that Bijla Singh father of Shamsher

Singh helped testatrix at the time of marriage of

her daughters, but the plaintiff in his pleadings has

nowhere pleaded so, nor did any evidence in that

regard. Thus these contentions in the will are

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obviously contrary to factual position and it comes

out that Shamsher Singh is not related to Ram

Devi in any way. The plaintiff did not lead even

an iota of evidence to establish that he had been

looking after and serving the testatrix till her

death. Except the solitary statement of plaintiff

which is a self-serving, no other person from the

village came forward to support the plaintiff on

this point. PW4 Pritam Singh the only witness

from village Ghruan examined by the plaintiff did

not utter even a single word in that regard. The

plaintiff did not produce any evidence to prove

that he had joint ration card with Smt. Ram Devi

and Ram Devi was having a vote at his address.

The contention of the plaintiff that Ram Devi

expired at Rajpura in the house of his daughter

Iqbal Kaur, does not make any sense since he is

silent as to what Ram Devi was doing at the house

of his daughter at that time. Furthermore, the

plaintiff did not examine Iqbal Kaur or anybody

else from Rajpura to establish that Ram Devi was

putting up with Iqbal Kaur, widowed daughter of

the plaintiff. The plaintiff has nowhere pleaded in

his pleadings that Smt. Ram Devi had been

residing with his daughter Iqbal Kaur at Rajpura

and Iqbal Kaur has been looking her. A perusal of

the file goes to show that the plaintiff and prior to

his father have been in possession of a portion of

suit land as tenant and ever the remaining suit land

as mortgagee. If relations between the plaintiff,

his father on one side and Ram Devi on other side

were so cordial and the former had been looking

after and serving the latter, there was no need for

Ram Devi to mortgage a portion of suit land with

them and to give the remaining land on rent to

them. That goes to show that relations between

them were professional and business type. It cuts

at the root of the case of plaintiff that he had been

looking after and serving Ram Devi and Ram Devi

executed a will in his favour out of love and

affection.”

5

The learned Subordinate Judge, 1

st

Class, Kharar, Punjab, by his

judgment and decree dated 24.8.1995 decided issue nos. 1 and 2 in favour

of the appellants. The learned Judge granted a decree for declaration to the

effect that the plaintiff-respondent was owner-in-possession of the land

bearing Kh/Kh. No. 25/59 Kh. No. 1644(5-0), 1645 (3-0), 1646 (6-5), 1647

(6-5), 1648 (5-10) situated at village Gharuan as per Jamabandi of the year

1988-89 with the consequent relief of permanent injunction restraining the

defendants - appellants from alienating that part of the land in suit.

However, other reliefs prayed for in the suit were not granted.

6.Being aggrieved by and dissatisfied therewith, both the parties

preferred appeals thereagainst.

7.By reason of a judgment and order dated 1.10.1999, Appellate Court

held that the execution of the will must be held to have been proved and all

suspicious circumstances have been dispelled, stating:

“...the only conclusion that can be drawn is that

will is a genuine document and was executed more

than 28 years back by the deceased out of her own

free will and she never tried to cancel the same.

The fact that some land of the deceased was lying

mortgaged with the father of the plaintiff in the

revenue record does not mean that there was only

commercial relations between the parties. First of

all, the original mortgage deed has not come on

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the file to indicate whether plaintiff or his father

got the land in mortgage or whether they

purchased the mortgagee rights from somebody

else. The fact that Shamsher Singh participated in

the execution of the will itself does not indicate

that he exercised any influence over deceased Ram

Devi. If it was so there was no reason as to why

Ram Devi did not get it cancelled within more

than 28 years of her life after the execution. The

defendants on the other hand have not proved any

ration card or voter list as claimed by Dialo in her

statement on oath, to indicate that the deceased

was permanently living with them. In the will,

complete details have been given. It is mentioned

that deceased has four daughters and two of them

have already died. If the plaintiff is a stranger, he

will not know this fact. The will is always

executed to deviate from the natural succession. If

the deceased wanted that her daughter would

succeed her then there was no need to execute the

will…”

The appellate court allowed both the appeals, stating:

“As a result of fore-going discussion, the appeal

titled as Dialo etc. Vs. Shamsher Singh No. 241 of

27.9.1995, RT No. 148/27.9.1995/27.2.1999 is

accepted as issues No. 3 and 4 are decided in

favour of the defendants and against the plaintiff.

The appeal titled as Shamsher Singh Vs. Dialo etc.

No. 236/7.9.1995, RT No. 439/7.9.1995, 2.6.1999

is also accepted on account of my findings on

issues No. 1 and 2 and 5. As a result thereof, the

suit of plaintiff is partly decreed and declaration is

granted to the effect that he has become owner in

possession of the suit land fully detailed in the

head note of the plaint on the basis of registered

will Ex. P2 dated 30.3.1962 executed by Ram

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Devi widow of Jiwan Singh. Permanent

injunction is also granted restraining the

defendants from alienating the suit property in any

manner or interfering in the peaceful possession of

the plaintiff in any manner. Further, the suit qua

relief on the basis of non-redumption of mortgagee

rights is dismissed.”

8.The Second Appeal preferred by appellants herein was dismissed by

the High Court by reason of the impugned judgment, holding:

“The Will in question was executed on 30.3.1962

and the testator is said to have died on 19.6.1990.

The fact that during this entire period, the testator

did not have any second thoughts goes to show

about the clarity of the intention of the testator.

The fact that it was registered only lends more

credence to the validity of the Will. It is also in

evidence that Gurdial Kaur and Kako were not

staying with their mother and had not supported

her during her life time. In their testimony, they

have stated that they came to know about the death

of Ram Devi about 5 to 6 days after she had

expired. In fact, all the defence witnesses have

admitted this fact. This is a reflection and a

measure of the relationship of Gurdial Kaur and

Kako were having with their mother at the time of

her death. On the other hand, Ram Devi is said to

have died in the house of Iqbal Kaur, daughter of

the plaintiff-respondent. This was sufficient

reason for the testator to have deprived the natural

heirs of the right to succession.”

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9.Mr. Neeraj Kumar Jain, learned counsel appearing on behalf of

appellants would submit:-

i. The first appellate court as also the High Court must be

held to have committed a serious error in arriving at the

aforementioned findings insofar as they failed to take

into consideration that the respondent/plaintiff did not

produce the Will before the Revenue authorities and

furthermore did not make any attempt to file a suit on the

basis thereof for a period of three years from the date of

death of the testatrix.

ii. The plaintiff had not been able to prove that the

relationship between Ram Devi and her daughters was

strained.

iii. An agnate separated by five degrees cannot be said to be

a relation, which would be a sufficient ground for an old

lady to execute a will in his favour.

iv. No reason has been assigned as to why the daughters

have been disinherited by the testratix.

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v. The left thumb impression of the testatrix was not

compared with her left thumb impression appearing in

the deed of mortgage which was said to have been

executed in favour of the plaintiff and, thus, no reliance

could have been placed thereupon.

vi. The beneficiary of the will being mortgagees and tenants

coupled with other factors, it should have been held by

the courts below that the Will was surrounded by

suspicious circumstances.

10.Mr. S.D. Sharma, learned Senior Counsel appearing on behalf of the

respondent, on the other hand, would contend:-

i.Shamsher Singh being one of the collaterals and he having

been looking after Ram Devi, the testatrix, the execution of the

Will must be said to have been proved.

ii.The Will being a registered one, its genuineness should be

presumed. The same in any event having been executed on

30.3.1962, its execution must be held to have been proved

being a document more than 30 years old.

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iii.The fact that the appellants, although daughters, came to know

about their mother’s death six days after the same had taken

place, evidently shows that they had not been looking after

their mother during her old days.

iv.Appellants have failed to prove that they had been maintaining

any relationship with their mother and at her old age she was

being looked after by them.

11.The legal principles in regard to proof of a will are no longer res

integra. A will must be proved having regard to the provisions contained in

clause (c) of Section 63 of the Indian Succession Act, 1925 and Section 68

of the Indian Evidence Act, 1872, in terms whereof the propounder of a will

must prove its execution by examining one or more attesting witnesses.

Where, however, the validity of the Will is challenged on the ground of

fraud, coercion or undue influence, the burden of proof would be on the

caveator. In a case where the Will is surrounded by suspicious

circumstances, it would not be treated as the last testamentary disposition of

the testator.

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12.This Court in H. Venkatachala Iyengar vs. B.N. Thimmajamma [AIR

1959 SC 443] opined that the fact that the propounder took interest in

execution of the Will is one of the factors which should be taken into

consideration for determination of due execution of the Will. It was also

held that one of the important features which distinguishes Will from other

documents is that the Will speaks from the date of 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.

It was also held that the propounder of will must prove:

(i) that the Will was signed by the testator in a sound and

disposing state of mind duly understanding the nature and

effect of disposition and he put his signature on the document

of his own free will, and

(ii) when the evidence adduced in support of the Will is

disinterested, satisfactory and sufficient to prove the sound and

disposing state of testator’s mind and his signature as required

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by law, Courts would be justified in making a finding in favour

of propounder, and

(iii)If a Will is challenged as surrounded by suspicious

circumstances, all such legitimate doubts have to be removed

by cogent, satisfactory and sufficient evidence to dispel

suspicion.

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

discharged on proof of the essential facts indicated therein.

It was moreover held:-

“20.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

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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.”

13.This Court in Niranjan Umeshchandra Joshi vs. Mrudula Jyoti Rao &

ors. [2006 (14) SCALE 186], held:

“33.The burden of proof that the Will has been

validly executed and is a genuine document is on

the propounder. The propounder is also required to

prove that the testator has signed the Will and that

he had put his signature out of his own free will

having a sound disposition of mind and

understood the nature and effect thereof. If

sufficient evidence in this behalf is brought on

record, the onus of the propounder may be held to

have been discharged. But, the onus would be on

the applicant to remove the suspicion by leading

sufficient and cogent evidence if there exists any.

In the case of proof of Will, a signature of a

testator alone would not prove the execution

thereof, if his mind may appear to be very feeble

and debilitated. However, if a defence of fraud,

coercion or undue influence is raised, the burden

would be on the caveator. [See Madhukar D.

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Shende v. Tarabai Shedage (2002) 2 SCC 85 and

Sridevi and Ors. v. Jayaraja Shetty and Ors. (2005)

8 SCC 784]. Subject to above, proof of a Will does

not ordinarily differ from that of proving any other

document.

34.There are several circumstances which

would have been held to be described (sic) by this

Court as suspicious circumstances:

(i) When a doubt is created in regard to the

condition of mind of the testator despite his

signature on the Will;

(ii) When the disposition appears to be

unnatural or wholly unfair in the light of the

relevant circumstances;

(iii) Where propounder himself takes prominent

part in the execution of Will which confers

on him substantial benefit.

[See H. Venkatachala Iyengar v. B.N.

Thimmajamma and Ors. AIR 1959 SC 443 and

Management Committee T.K. Ghosh's Academy v.

T.C. Palit and Ors. AIR 1974 SC 1495]”

14.Respondent was a mortgagee of the lands belonging to the testatrix.

He is also said to be the tenant in respect of some of the properties of the

testatrix. It has not been shown that she was an educated lady. She had put

her left thumb impression. In the aforementioned situation, the question,

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which should have been posed, was as to whether she could have an

independent advice in the matter. For the purpose of proof of will, it would

be necessary to consider what was the fact situation prevailing in the year

1962. Even assuming the subsequent event, viz., the appellants had not

been looking after their mother as has been inferred from the fact that they

received the news of her death only six days after her death took place, is

true, the same, in our opinion, would be of not much significance.

The provisions of Section 90 of the Indian Evidence Act keeping in

view the nature of proof required for proving a Will have no application. A

Will must be proved in terms of the provisions of Section 63(c) of the

Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act,

1872. In the event the provisions thereof cannot be complied with, the other

provisions contained therein, namely, Sections 69 and 70 of the Indian

Evidence Act providing for exceptions in relation thereto would be

attracted. Compliance with statutory requirements for proving an ordinary

document is not sufficient, as Section 68 of the Indian Evidence Act

postulates that execution must be proved by at least one of the attesting

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

Court and capable of giving evidence. {See B. Venkatamuni vs. C.J.

Ayodhya Ram Singh & ors. [(2006) 13 SCC 449]}

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15.This Court in Anil Kak vs. Kumari Sharada Raje & ors. [(2008) 7

SCC 695] opined that court is required to adopt a rational approach and is

furthermore required to satisfy its conscience as existence of suspicious

circumstances play an important role, holding:

“52. Whereas execution of any other document

can be proved by proving the writings of the

document or the contents of it as also the

execution thereof, in the event there exists

suspicious circumstances the party seeking to

obtain probate and/ or letters of administration

with a copy of the Will annexed must also adduce

evidence to the satisfaction of the court before it

can be accepted as genuine.

53.As an order granting probate is a judgment

in rem, the court must also satisfy its conscience

before it passes an order.

54.It may be true that deprivation of a due

share by (sic to) the natural heir by itself may not

be held to be a suspicious circumstance but it is

one of the factors which is taken into

consideration by the courts before granting

probate of a Will.

55.Unlike other documents, even animus

attestandi is a necessary ingredient for proving the

attestation.”

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Unfortunately, the first appellate court as also the High court did not

advert to these aspects of the matter.

16.We may notice that in Jaswant Kaur vs. Amrit Kaur & ors. [(1977) 1

SCC 369] this Court pointed out that when the Will is allegedly shrouded in

suspicion, its proof ceases to be a simple lis between the plaintiff and

defendant. An adversarial proceeding in such cases becomes a matter of

Court’s conscience and propounder of the Will has to remove all suspicious

circumstances to satisfy that Will was duly executed by testator wherefor

cogent and convincing explanation of suspicious circumstances shrouding

the making of Will must be offered.

17.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.

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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.

18.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 duly been 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.

19.We, therefore, keeping in view the peculiar facts and circumstances

of this case, are of the opinion that the impugned judgment of the High

Court as also the first appellate court should be set aside and the matter be

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directed to be considered afresh in the light of the observations made

hereinbefore by the first appellate court. It is ordered accordingly.

The appeal is allowed with the aforementioned observations and

directions. However, in the facts and circumstances of the case, there shall

be no order as to costs.

……………….…..………….J.

[S.B. Sinha]

..………………..……………J.

[Cyriac Joseph]

New Delhi;

December 12, 2008

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