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CASE NO.:

Appeal (civil) 5060 of 2005

PETITIONER:

Niranjan Umeshchandra Joshi .. Appellant

RESPONDENT:

Mrudula Jyoti Rao & Ors. .. Respondents

DATE OF JUDGMENT: 15/12/2006

BENCH:

S.B. SINHA & MARKANDEY KATJU

JUDGMENT:

J U D G M E N T

S.B. Sinha, J.

Appellant is the son of Late Umeshchandra Madhav Joshi (hereinafter

referred to as "the deceased"). He owned considerable properties. A

Charitable Trust by the name of "Umesh Yoga Charitable Trust" was created

by the deceased in his native village at Manor. For the said purpose, he

donated 7 acres of land of his own. 4 acres of land was said to have been

donated by the appellant herein. Deceased purchased a residential house at

Dadar named "Umesh Dham" in 1949. The first floor of the said house was

used for residence, which he also used for holding Yoga classes and also for

manufacture of Hair Oil. Deceased started yoga classes. He also started

manufacture of hair oil, namely, (Ramtirth Brahmi Hair Oil). Sometime

thereafter, he along with his children shifted his residence to the ground

floor of the said house. He had 7 sons and 3 daughters. Appellant herein is

his second son. Respondent No. 2 allegedly eloped and married a Muslim

boy. Respondent No. 1, however, had an arranged marriage. The

relationship amongst the brothers and sisters, except respondent No. 2 was

said to be cordial. Sudarshan, Jagdish and Pravin were allegedly helping the

testator in management of the business of manufacture of hair oil. All his

sons, namely, Sudarshan, Dr. Vishnu, Jagdish, Arvind, Sunil and Tarabai

(respondent No. 2) lived together at the same house known as 'Umesh

Dham'. Appellant herein and another brother Sunil were not married.

Appellant is a doctor of repute. He is a Gynaeocologist and Obstreticist and

his qualifications are M.D. (Obst. and Gyt.), FISC, FCPC, D.G.O.D.F.P. He

started his practice in 1971. He opened a clinic and hospital at Parel.

From the records, it appears that the deceased was suffering from

malignancy Liposercoma (sic). There are some evidences on record to show

that he was also suffering from left ventricular failure with Ischemia heart

disease. The deceased is said to have no faith in the allopathy system of

medicine. He had developed some respiratory problem. He was

investigated by Dr. Panikar, a student of Appellant. He was taken to ICU of

Breach Candy Hospital on 13.11.1983 by Appellant and his wife.

On 14.11.1983, the deceased expressed his desire to execute a Power

of Attorney as also a Will. On his purported instructions, Appellant

contacted Mr. M.K. Mahimkar, Advocate, who was working with M/s

Ramesh Shroff & Co. Mr. Mahimkar and Appellant visited the testator at

Breach Candy Hospital. Deceased instructed Mr. Mahimkar to draft a

Power of Attorney before drafting the Will as he expressed a desire to speak

to his wife before executing the Will. He allegedly spoke to his wife. The

Will was drafted the next day. While the Will was being drafted he asked

Appellant and Pravin, his another son to wait outside the room. Appellant

and Mr. Mahimkar visited the hospital during non-visiting hours for

execution of the Will. It was drawn up in Mr. Mahimkar's handwriting

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allegedly at the spot. They and one Mr. Phadke, classmate of Mr. Mahimkar

entered the cubicle of ICU of the Hospital at 3.30 p.m. for execution of the

Will. The deceased sent for Dr. Bhupender Gandhi, a friend of Appellant

for attesting the Will. He reached the cubicle at about 4.30 p.m. The Will

thereafter was executed.

Indisputably, the deceased was under the treatment of one Dr.

Udwadia. of the said Hospital. Appellant neither treated him nor did he

examine him at any point of time. He even did not know of the diseases he

had been suffering from. On 21.11.1983, the deceased was discharged from

the hospital. He received visitors on 22.11.1983. In the early morning of

23.11.1983, he allegedly asked his wife Tarabai to count the cash lying in

the almirah. He died soon after having asked his wife for coffee.

After cremation of the dead body, the factum of execution of the Will

by the deceased was disclosed. A meeting of the family members was

arranged in the office of Mr. Mahimkar for inspection of the Will; consent

letters were also prepared; Pravin signed the same at the spot as he was to

leave for Manore. Xerox copies of the consent letters were prepared. First

Respondent herein also signed the consent letter. On 7.12.1983, a joint

consent letter was given by sons of the deceased. Sunil also gave his

consent letter on the said day separately.

However, no step was taken for obtaining a probate soon thereafter.

On 1.4.1985, a deed of assignment in regard to the manufacturing unit of

Hair Oil was executed in favour of Sudarshan for a consideration of Rs. 4

lakhs. As per the deed of assignment, a sum of Rs. one lakh (hereinafter as

Will) was to be paid on or before 31.12.1986 and the rest of the amount was

to be paid on or before 31.3.1988.

A Testamentary Application was filed by Appellant on 21.12.1985.

On 8.1.1987, a joint consent letter was filed by Tarabai, Dr. Vishnu, Arvind

and Sunil in the said Testamentary Application.

On 14.1.1987, a Promissory Note for Rs.3 lacs was executed by

Sudarshan in favour of Appellant in furtherance of the said deed of

assignment. On 10.3.1987, a Caveat was filed by Mridula, first Respondent

without affidavit and on 28.4.1987 an Affidavit was filed by her

withdrawing the "no objection" earlier given for grant of probate. She was

allowed to do so after she affirmed on an affidavit in support thereof.

The second respondent also filed a caveat. Thereafter a Testamentary

Suit was filed by Appellant before the Bombay High Court wherein

respondents herein were parties. The hearing was taken up in 1994.

Recording of evidence in the matter commenced on 7.11.1984. It continued

upto 8.11.1994. Arguments were heard and concluded in December 1994.

Appellant examined himself in the said proceeding. He had examined his

mother Tarabai and also the attesting witnesses viz., Mr. Mahimkar and Dr.

Bhupender Gandhi. He also examined Dr. Vijay Kumar Panikar.

A learned Single Judge of the High Court by a judgment and order

dated 28.11.1995 dismissed Appellant's application for grant of probate,

inter alia, opining that 'although respondents herein could not prove that the

signatures of the testator appearing in the Will as also those of the attesting

witnesses, were not theirs; the circumstances surrounding the execution of

the Will were so suspicious that it was impossible to believe that the Will

had been executed at the place, time and in the manner suggested by

Appellant'. In arriving at the said conclusion, the learned Single Judge took

into consideration the purpose for which the Will was proposed to be

executed, the manner in which the same was drafted and executed, the effect

thereof and various other circumstances and in particular the one that

Appellant was totally ignorant of the ailment(s), the deceased was suffering

from. The learned Single Judge concluded that no case for grant of probate

had been made out.

An Intra-court Appeal was filed by Appellant thereagainst. During

the pendency of the Appeal, Purnima, another sister of Appellant took out

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Chamber Summons, revoking her consent to the Probate Petition on

16.6.2003, inter alia, on the allegations that she had doubts about the

genuineness of the alleged Will and wished to support the respondents

herein. Chamber Summons had also been taken out by Jagdish, Pravin and

Dr. Vishnu in the pending appeal. They also revoked their consent to the

probate petition and prayed to be joined with Respondents herein. In

support thereof, an affidavit was affirmed by Jagdish in July 2003 not only

questioning the genuineness of the Will but also expressing his shock and

surprise at the fraud played on all the family members by Appellant. By

reason of the impugned judgment dated 4.2.2004, a Division Bench of the

High Court affirmed the judgment and order of the learned Single Judge.

Mr. Shanti Bhushan, learned Senior Counsel appearing on behalf of

Appellant raised the following contentions in support of the appeal :

(1) Execution of the Will having duly been proved, the High Court

committed an error in passing the impugned judgment. The fact that

all the brothers and sisters of Appellant had given their consent,

except Respondent No. 2 herein, who was under the influence of her

husband, who was a Muslim boy clearly established that the Will was

genuine.

(2) Subsequent withdrawal of the consent by Mrudula would also show

that she had changed her mind only on the ground of not having been

paid an amount of Rs.50,000/- as was allegedly promised to her which

cannot be relied upon.

(3) The evidence brought on records clearly show:

(i) The deceased was of sound mind and, thus, had the capacity of

making his Will on 15.11.1983.

(ii) Indisputably, the deceased having executed the Will and the

same having been attested by Shri Mahimkar and Dr. Gandhi,

the genuineness thereof could not have been questioned.

(iii) The background of hospitalization of the deceased had not been

appreciated by the High Court in its proper perspective, as it

failed to consider that he had always been reluctant to take

allopathic drugs and was, thus, expected to be in the hospital for

a short period.

(iv) The deceased was kept in the ICU, not because his condition

was serious but because no bed was available. elsewhere.

(v) Although she was suffering from cancer, the same being within

tolerable limits, it was not necessary to put him under any

sedative.

(vi) Deceased left hospital in good health. He was brought home by

Niranjan. He went to his office on the first floor and met all his

family members. On 22.11.1983, he signed a letter of authority

addressed to the Punjab National Bank. He had also expressed

his desire to go to the village after his discharge from the

hospital.

(vii) On 22.11.1983, he met many of his friends and enquired about

their various activities. On 23.11.1983 at 3.00 a.m. he asked

Tarabai, his wife to prepare coffee for him.

(viii) Mrudula has been visiting her father during his illness and at

least she should have testified in the witness box to depose that

in regard to the deceased's mental condition and having not

done so, she now should not be permitted to take a different

stand.

(4) Despite overwhelming evidence of his being in a proper state of

mind, no evidence was adduced on behalf of Appellant.

(5) The High Court committed a serious error insofar as it failed to take

into consideration that Appellant did not play an unprominent role in

the preparation of the Will and was not even present at the time when

instructions were being given for its preparation on 15.11.1983 as also

at the time of execution thereof.

(6) He never visited his father and did not know anything about the

ailments his father was suffering from, which cannot be said to be

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unnatural, particularly when he was only a gynecologist and not an

oncologist.

Mr. Rajiv Dutta and Mr. Sunil Kumar Gupta, learned Senior counsel

appearing on behalf the first and second Respondents respectively, on the

other hand, submitted :

(1) Both the learned Single Judge and Division Bench of the High Court

having arrived at a concurrent finding of fact, this Court should not

interfere therewith.

(2) The circumstances in which the Will was prepared, attested and

executed, namely, in a cubicle of ICCU raise serious doubts about the

genuineness thereof.

(3) No independent witness having been examined, for reasons being

known to the appellant, the impugned judgment cannot be faulted as

particularly non-examination of the doctor who had been attending the

deceased at Breach Candy Hospital having not been explained, the

case must be held to be shrouded in mystery.

(4) Both the attesting witnesses Dr. Gandhi and Mr. Panikar being known

to the Appellant for a long time, no reliance has rightly been placed on

their evidence by the High Court.

(5) There was no reason as to why the deceased would not leave anything

for his other children, particularly when he was running a business

and the residential house was not being used for any charitable

purpose.

(6) Like Appellant, Sunil, who was the youngest of all, was also

unmarried and having been residing with his father and unemployed,

it was unnatural that no arrangement was made for him.

(7) Deceased having been suffering from a serious ailment, it was

unlikely that he expressed his desire to execute a Power of Attorney

and Will at the same time.

(8) No reason has been assigned and no explanation has been offered as

to why no step was taken immediately for grant of probate despite the

fact no objection was raised by any of the legal heirs, except the

second respondent.

(9) No explanation has been offered as to why the business of

manufacture of hair oil would be transferred to Sudarshan for

valuable consideration.

(10) The fact that another sister and three brothers of Appellant revoked

their consents and expressed doubts as regards the genuineness of the

Will also establishes that the execution of the Will was surrounded by

suspicious circumstances.

(11) Theory set up by the propounder that the Will was executed in

furtherance of the Charitable Trust activities having been found to be

not correct and the property of the deceased comprised not only of a

business but also a residential house clearly goes to show that the

High Court was correct in opining that the execution of the Will has

not been proved by Appellant.

Before adverting to the rival contentions of the parties, as noticed

herein before, we would place on record that three brothers of appellant,

namely, Arvind, Vishnu and Sunil had filed interlocutory applications before

this Court for their impleadment in this Appeal. Mr. Jaideep Gupta,

appearing in support of the said application submitted that they are

supporting the appellants.

The learned Single Judge as also the Division Bench of the High

Court had taken great pains in analyzing the evidence, both oral and

documentary, brought on records.

The learned Judges proceeded on the basis that the Will in question

bear the signatures of the deceased and might have been attested by Mr.

Mahimkar, Advocate and Dr. Bhupender Gandhi, but circumstances

surrounding the execution of the Will being suspicious and the appellant

having not been able to remove the same, the prayer for grant of probate

should not be granted.

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The circumstances enumerated by the learned Division Bench in

affirming the judgment and order passed by the learned Single Judge are as

under :

(i) The Propounder took part in execution of the Will, being sole

recipient of the legacy.

(ii) The dispositions made in the Will by the testator are unnatural, unfair

and improbable as wife and grand children were excluded from the

benefit thereof despite the fact that he had love and likings for all.

(iii) There is no recital in the Will that Respondent No. 2 was to be

specifically excluded.

(iv) Why the Will had been executed by the testator within 24 hours of his

hospitalization has not been explained.

(v) Witnesses to the Will were interested persons, and evidence adduced

in support of execution of the Will was unsatisfactory, particularly

when the doctor treating him had not been examined.

(vi) The ailment from which the testator had been suffering was not being

disclosed which shows that he might have been terminally ill as

within eight days from execution of the Will, he died.

(vii) There was no satisfactory evidence to show as to why the testator sent

for Dr. Gandhi for attestation of the Will although he did not have

much acquaintance with him.

(viii) No satisfactory evidence was brought on record as regards the cause

of death of the deceased.

(ix) There is no explanation as to why the appellant and others visited the

hospital during non-visiting hours in the ICU cubicle for execution of

the Will.

From the evidence brought on record, it appears that the deceased

knew that he had been suffering from cancer for 10-15 years prior to his

death as he claimed that he was cured of his disease because of his practices

in yoga. Admittedly, he was suffering from Liposarcoma which is a

malignancy of fat cells. He was also suffering from left ventricular failure.

The ailments were serious ones as was expressed by Dr. Bhupender Gandhi

in his deposition. Dr. Gandhi happened to be a long standing friend of the

appellant. He admitted to have met the deceased only once or twice but

never treated him; even never examined him. Dr. Panikar was a student of

the appellant. He was a young doctor. He had regularly been checking up

the deceased medically. From the evidence of Panikar, it appears that the

deceased knew that he had been suffering from cancer but according to him

as he used to do yogas, he was cured of the said disease. He was suffering

from respiratory trouble also. Deceased although was not taking any

allopathic medicine, he could be persuaded to be hospitalised. Panikar

assured him that he would be hospitalized only for one night. Whether

necessary or not, he was admitted in ICU. The treatment started

immediately. Presumably because he would not take any oral allopathic

drugs, he was put on intravenous fluid. If he was aware of the fact that he

would remain in the hospital for one day only, it does not appeal to any

reason as to why he would think of execution of a Power of Attorney as also

of execution of a Will in favour of Appellant at the same time. If he was

under the impression that he was no longer suffering from cancer, it was

expected that he would think of execution of any document only after he

came back home. He asked the appellant only to contact M/s. Shroff & Co.

He did not say about Mr. Mahimkar. Mr. Mahimkar was said to have been

deputed by the firm. No evidence to that effect was led. Admittedly, he was

known to the appellant since 1976. He had handled the Habeas Corpus

petition before the Bombay High Court filed by the husband of Respondent

No. 2. Mahimkar came with Appellant. He was accompanied by a Clerk.

They were allowed to enter ICU without any prior appointment. There is

nothing to show that permission of the hospital authorities had been taken in

regard to the visit of persons who were not his relatives. In the small cubicle

of ICU which was separated by curtains only and there were other serious

patients, Power of Attorney and the Will were said to have been drafted.

The execution of the Will was allegedly deferred by a day as deceased

wanted to consult his wife. According to her, she raised no objection to the

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execution of the Will in favour of Appellant. Whether the youngest son and

other children were taken into confidence or not, is not known. Power of

Attorney would have served the necessity of representing the deceased

before various authorities and banks. The very fact that he wanted to

execute a Power of Attorney clearly shows that he did not believe that he

would meet his end soon. Ordinarily, a person would not think of execution

of a Power of Attorney and a Will simultaneously. Although, he chose to

execute the Will, he evidently did not have any document with him for the

purpose of instructing the Advocate effectively and in details. No document

had been handed over to Mr. Mahimkar by the appellant and the deceased.

He came to the hospital with a Clerk, dictated the Will then and there and

the same was executed by the deceased. Dr. Gandhi although a friend of the

appellant deposed in his evidence that the deceased had not known him very

intimately. Why, thus, he had been called as an attesting witness is a

mystery. A nurse had allegedly tried to contact him. Whether he could be

contacted or not is not known. He, however, walked almost immediately

after the Will was drafted. He attested the signatures of testator.

In his Will, the deceased had, inter alia, declared:-

"I, Umeshchandra Madhav Joshi of Bombay, Indian

Inhabitant, aged 76 years, residing at Umeshdham, 27,

2nd Vincent Square Street, Dadar, Bombay 400 014, do

hereby revoke all my former Wills and testamentary

dispositions and declare this to be my last Will and

Testament.

1. I appoint my son Dr. Niranjan Umeshchandra

Joshi to be the Executor and Trustee of this my last Will.

1. Whatever movable and immovable estate I am seized

and possessed of or otherwise well and sufficiently

entitled, the same belong to me absolutely and no one

has any claim or interest whatsoever to or in the same

or any part thereof and I am entitled to make such

dispositions thereof as are hereinafter contained."

xx xx xx

"7. I declare that all the rest and residue of my estate

wheresoever situate, after payment of funeral expenses,

debts, liabilities, probate duty, costs, charges and

expenses of management and administration is

hereinafter referred to as my "Residuary Estates".

8. I devise and bequeath my residuary estate to my

son Dr. Niranjan Umeshchandra Joshi absolutely.

9. I authorize and empower my executor and Trustee

to postpone the realization, sale and/or conversion of my

estate or any part thereof for so long as he shall think fit."

Why other terms of the Will had to be inserted is not known. There

were two schedules in the Will. The first schedule thereof reads as under:-

Valuation of the movable and immovable property of the deceased in

the State of Maharashtra

1. Cash in the house Rs. 2,434.00

2. Household goods, furniture Rs. 1,000.00

3. Cash in Bank:

i) Punjab National Bank,

Khodadad Circle, Dadar,

Bombay 400 014

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Current A/c No. 1835 Rs.3,56,465.85

ii) Punjab National Bank,

Khodadad Circle, Dadar,

Bombay 400 014

A/c No. 8794 Rs. 32,316.47

4. Leasehold property consisting of

Leasehold land with building standing

thereon known as Umeshdham,

Vincent Square, Street No.2, Dadar,

Matunga Estate, Dadar,

Bombay 400 014, as per the

Valuation report of M/s. Design

Collaboration, Architects, Bombay Rs.4,00,000.00

5. Securities:

Deposits with Bombay Electric Supply

And Transport Undertaking as security

For payment of energy bill etc. paid

Under Receipt No.61253 dated

27.5.80 Rs. 4,850.00

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

Rs.8,12,066.32

Deduct amount shown in

Schedule No.II Rs.4,77,605.30

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

Net Total Rs.3,34,461.02

===========

Schedule II details his liabilities to each of such persons named

therein, amounting to Rs.4,77,605.30. Mr. Mahimkar or Dr. Gandhi do not

say that documents required to prepare the Will were with the deceased.

Deceased was admitted in the hospital on an emergency basis. Evidently

when he was admitted in ICU, he would not be permitted to carry documents

with him. It is unnatural that he would remember all the details of his assets

including the amount of cash and the amount lying in bank as also the details

of his liabilities etc.

Both the schedules of the Will were meticulously drafted. Tarabai in

her deposition did not say that she or Appellant had furnished all those

details to Mahimkar in advance. Except they, in the given situation, no other

could do so. An inference can, therefore, be safely drawn that Appellant had

a role to play in execution of the Will. Story of the Will being drafted in the

cubicle of ICU of the Hospital, thus, cannot be believed. In all probabilities,

Will was drafted by Mahimkar in his Chamber. It may also be borne in

mind that as the deceased could only sign in English, question of his

dictating the Will and at least the term thereof was wholly unlikely. Will has

been drafted by a professional. The theory set up by the propounder that he

believed that the appellant would carry out his charitable activities is not

reflected from the Will. No reason has been assigned as to why he had

chosen Appellant alone for taking the entire benefit of the legacy.

It is of some interest to notice that although the amount of cash in

hand had already been disclosed in the first schedule of the Will but when he

came back, he asked Tarabai to count the cash once over again. What was

the amount, if any, found in the cash-box is not known.

It is true that the contesting respondents did not examine themselves,

but it is equally true that apart from his mother and friends, nobody was

examined on behalf of Appellant also. If the other sons had implicit faith in

their father and accepted that the Will was genuine, they could also have

been examined. They indisputably signed consent letters. We do not know

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under what circumstances, consent letters were obtained. Only Pravin had

given consent in the Solicitor's office; others gave their consent at a later

stage.

What was the frame of mind of the deceased could have been best

stated by the Doctor who was attending on him. Appellant curiously even

was not aware of the ailments, the deceased was suffering from. It is

expected that he would have known at least the ailments of his father,

particularly when he was diagnosed to be suffering for ventricular failure.

His other three sons, particularly Sunil had been helping the deceased in

carrying on the business. There is no averment in the Will how the business

and the Trust would be run.

Some directions in regard to running of the Trust were also expected

to be given in the Will.

The manner in which the death certificate of the deceased had been

issued also raises some suspicions. Although, he expired at his own house,

and he was declared dead by Dr. Panikar; the death certificate was prepared

in a printed form. It was filled up in hand but the time of death was shown

as 7.00 a.m. The cause of death is said to be respiratory failure. How the

printed form was filled in, may better be stated in the words of the learned

Single Judge:

"\005The next important document is the Medical

Certificate showing the cause of death given by Dr.

Panikar. It is a printed form which is filled in hand

wherein the time of death is shown as 7 a.m. and against

"Disease of condition directly leading to death" the

following is written in hand: "Respiratory failure"and as

against "approximate interval between onset and death" 8

days are mentioned. Under "Antecedent Cause" and

"Morbid conditions, if any, giving rise to the above

cause, stating the underlying condition least"

"Bronchopneumonia & Liposarcoma" in hand are

entered into and as against "Approximate interval

between onset and death" `20 days' are mentioned. It is

signed by Dr. Panikar with his full name written under

the signature and as against "Address or rubber stamp of

the institution". Rubber stamp showing "Parel Hospital,

94, Shri Parmar Guruji Marg, Parel, Bombay-400 012" is

affixed."

Who had filled up the form in not known. It is nobody's case that Dr.

Panikar was attached to Parel Hospital.

Even in the death report entered into the Municipal record of the

Bombay hospital the cause of death was shown to be Bronchopneumonia

and Liposarcoma.

The learned Single Judge has also noticed that there are documents to

show that the deceased was being treated by several other doctors including

Dr. Anibhut P. Vohra. All the persons including 'Tarabai' curiously did not

know the nature of ailments the deceased was suffering from and the period

of his illness. In her deposition, she was confronted with her affidavit in

earlier litigations but she profusely denied the averments and contents

thereof. She had also denied the signatures of persons on the documents

pertaining to earlier litigation other than herself and her husband on various

documents with which she was confronted with. There is no reason as to

why she should do so particularly when her categorical stand in the earlier

litigations was that deceased had been suffering from various ailments since

a long time.

The conduct of Appellant in executing the deed of assignment in

favour of Sudarshan even before filing the application for grant of probate

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cannot also be appreciated. Before the grant of probate, he had no legal

authority in that behalf.

Section 63 of the Indian Evidence Act lays down the mode and

manner in which the execution of an unprivileged Will is to be proved.

Section 68 postulates the mode and manner in which proof of execution of

document is required by law to be attested. It in unequivocal terms states

that execution of Will must be proved at least by one attesting witness, if an

attesting witness is alive subject to the process of the court and capable of

giving evidence. A Will is to prove what is loosely called as primary

evidence, except where proof is permitted by leading secondary evidence.

Unlike other documents, proof of execution of any other document under

the Act would not be sufficient as in terms of Section 68 of the Indian

Evidence Act, execution must be proved at least by one of the attesting

witnesses. While making attestation, there must be an animus attestandi, on

the part of the attesting witness, meaning thereby, he must intend to attest

and extrinsic evidence on this point is receivable.

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. Shende v. Tarabai Shedage (2002) 2

SCC 85 and Sridevi & Ors. v. Jayaraja Shetty & Ors. (2005) 8 SCC 784].

Subject to above, proof of a Will does not ordinarily differ from that of

proving any other document.

There are several circumstances which would have been held to be

described 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 & Ors., AIR 1959 SC

443 and Management Committee T.K. Ghosh's Academy v. T.C. Palit &

Ors. AIR 1974 SC 1495]

We may not delve deep into the decisions cited at the Bar as the

question has recently been considered by this Court in B. Venkatamuni v.

C.J. Ayodhya Ram Singh & Ors. [2006 (11) SCALE 148], wherein this

Court has held that the court must satisfy its conscience as regards due

execution of the Will by the testator and the court would not refuse to probe

deeper into the matter only because the signature of the propounder on the

Will is otherwise proved.

The proof a Wille is required not as a ground of reading the document

but to afford the judge reasonable assurance of it as being what it purports to

be.

We may, however, hasten to add that there exists a distinction where

suspicions are well founded and the cases where there are only suspicions

alone. Existence of suspicious circumstances alone may not be sufficient.

The court may not start with a suspicion and it should not close its mind to

find the truth. A resolute and impenetrable incredulity is demanded from the

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judge even there exist circumstances of grave suspicion. [See Venkatachala

Iyengar (supra)]

Even if we apply the tests laid down by this Court in large number of

decisions, including the ones referred to hereinbefore, we are of the opinion

that no case has been made out to interfere with the findings of both the

learned Single Judge as also the Division Bench of the High Court.

In Venkatamuni (supra), this Court has also opined that the appellate

court while exercising its jurisdiction would ordinarily not interfere with the

finding of fact arrived at by the learned Trial Judge if the view taken by it is

reasonable. We, therefore, agree with the conclusions arrived at by the High

Court.

The appeal is dismissed with costs. Counsel's fee assessed at Rs.

25,000/-.