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CASE NO.:

Appeal (civil) 15697 of 1996

PETITIONER:

RAMABAI PADMAKAR PATIL (D) THROUGH LRS. AND ORS.

RESPONDENT:

RUKMINIBAI VISHNU VEKHANDE AND ORS.

DATE OF JUDGMENT: 14/08/2003

BENCH:

Y.K. SABHARWAL & G.P. MATHUR

JUDGMENT:

JUDGMENT

2003 Supp(2) SCR 583

The Judgment of the Court was delivered by

G.P. MATHUR, J. 1. This appeal by special leave has been preferred by the

plaintiff against the judgment and decree dated 27.4.1995 of High Court of

Bombay by which the second appeal preferred by her was dismissed and the

judgment and decree dated 7.4.1993 passed by the District Judge, Thane was

affirmed.

2. The appellant Smt. Ramabai filed a suit for a declaration that she had

become owner and occupant of the suit property as per the Will dated

5.4.1976 and for injunction for restraining the defendants and their

agents, etc. from interfering with her peaceful possession over the

aforesaid property. The defendant nos. 1 to 5 are the real sisters of the

plaintiff and defendant nos. 6 to 8 are the children of a deceased sister

of the plaintiff, namely, Smt. Gajarubai. The suit was filed on the ground

that the property in dispute, which is a house and agricultural land,

belonged to Madhav who was father of the plaintiff and defendant nos. 1 to

5 and after his death, the same was inherited by their mother Smt.

Yamunabai and she became the owner thereof. Smt. Yamunabai executed a

registered Will by which she bequeathed the entire property to the

plaintiff. Smt. Yamunabai died on 11.1.1980 and thereafter the plaintiff

came in possession over the property in dispute. However, the defendants

got the names of all the heirs of Madhav mutated over the property in

dispute and thereafter started interfering with the plaintiffs possession

thereof. The suit was accordingly filed claiming a decree of declaration

and injunction. The defendant nos. I to 5 contested the suit on :he ground,

inter alia, that the property in dispute was ancestral property in he hands

of Madhav and after his death Smt. Yamunabai did not become the exclusive

owner thererof : that the tenancy rights were inherited by all the heirs of

Madhav by succession : that the house was built by father of Madhav and it

being ancestral in nature, the same was inherited by all the heirs; that

Madhav died in the year 1957 and, thereof, the succession would be governed

by Hindu Succession Act and that Smt. Yamunabai did not execute any Will in

favour of the plaintiff on 5.4.1976 and the same was not binding upon the

defendants. It was specifically pleaded that the share of the plaintiff was

only 1/7 and, thereof, no decree for injunction could be passed against the

defendants.

3. The parties adduced oral and documentary evidence in support of

their case. The learned Civil Judge (Jr. Divn.), Palghar, decreed the suit

on 4.2.1988 declaring that the plaintiff had become exclusive owner of the

property in dispute on the basis of the Will dated 5.4.1976. He further

passed a decree for injunction restraining the defendants from causing any

interference in the possession of the plaintiff over the property in

dispute. Feeling aggrieved by the aforesaid judgment and decree defendant

nos. 1 to 5 preferred an appeal before the District Judge, Thane, who

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allowed the same by the judgment and decree dated 7.4.1993 and dismissed

the suit. The plaintiff preferred a second appeal which was dismissed by

the High Court on 27.4.1995 and the decree passed by the learned District

Judge dismissing the suit was affirmed.

4. Shri V.A. Mohta, learned senior counsel for the appellant has

submitted that after the death of Madhav which took place 6.6.1956, his

widow Smt. Yamunabai had become the exclusive owner of entire property. The

plaintiff- appellant had become a widow in the lifetime of her parents and

was residing with then. It was for this reason that Smt. Yamunabai had

executed a Will in favour of the plaintiff and the same was got registered.

Learned counsel has further submitted that the learned District Judge and

also the High Court have taken a completely perverse view in discarding the

Will solely on the ground that Smt. Yamunabai had excluded her other

daughters and had given the entire property to the plaintiff. It has been

urged that in the facts and circumstances of the case, the conduct of Smt.

Yamunabai was most natural and no doubt could be raised regarding the

authenticity of the Will merely on the ground that no provision was made

for the remaining daughters. It has also been urged that the Will was

executed and was registered on 5.4.1976 whilst Smt. Yamunabai died after

considerable period on 11.1.1980, which itself showed that the same was

executed when she was in proper and fit mental state and it had not been

obtained by putting any undue influence. Shri A.S Bhasme, learned counsel

for the respondents has on the other hand, submitted that the mother had

equal love and affection for all her children and there was no material on

record to show that Smt. Yamunabai was in any manner displeased or unhappy

with her other daughters and as such she would not have completely

disinherited them and this feature rendered the alleged execution of Will

by her as highly suspicious and unnatural. He has further submitted that

the learned District Judge and the High Court had given good reasons for

discarding the Will and the findings recorded by them being based upon

proper appraisal of evidence, should not be interfered with by this Court

Learned counsel has also urged that Smt. Yamunabai had not become exclusive

owner of the property after the death of Madhav as the succession would be

governed by Hindu Succession Act and consequently even if the Will was

accepted, the plaintiff would not become owner of the entire property.

5. Before we advert to the submissions made by learned counsel for the

parties, it will be useful to briefly notice the legal position regarding

acceptance and proof of a Will. Section 63 of Indian Succession Act deals

with execution of unprivileged Wills. It lays down that the testator shall

sign or shall affix his mark to the Will or it shall be signed by some

other person in his presence and by his direction. It further lays down

that the Will shall be attested by two or more witnesses, each of whom has

seen the testator signing or affixing his mark to the Will or has seen some

other person sign the Will, in the presence and by the direction of the

testator and each of the witness shall sign the Will in the presence of the

testator. Section 68 of the Evidence Act mandates examination of one

attesting witness in proof of a Will, whether registered or not. The law

relating to the manner and onus of proof and also the duty cast upon the

Court while dealing with a case based upon a Will has been examined in

considerable detail in several decisions of this Court viz. H. Venkatachala

lyengar v. B.N. Thimmajamma and Ors., AIR (1959) SC 443, Rani Purinima Debi

and Anr. v. Kumar Khagendra Narayan Deb and Anr. AIR (1962) SC 567 and

Shashi Kumar Banerjee and Ors. v. Subodh Kumar Banerjee and Ors., AIR

(1964) SC 529. It will be useful to reproduce the relevant part of the

observations made by this Court in the Constitution Bench decision in

Shashi Kumar Benerjee (supra) which are as under :

"The mode of proving a Will does not ordinary differ from that of proving

any other document except as to the special requirement of attestation

prescribed in the case of a will by Section 63, 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

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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. Where the caveator

alleges undue influence, fraud and coercion, the onus is on him to prove

the same. Even where there are no such pleas but the 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

signature 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 suspicion should be

completely removed before the document is accepted as the last will of the

testator. If the propounder himself takes 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 by unnatural and might cut off wholly or in part near relations.

6. The relevant facts may now be examined. It is not in dispute that Smt.

Yamunabai had no son but had 7 daughters. The plaintiff-appellant Smt.

Ramabai become a widow at a very young age during the lifetime of her

father. Since then, she was living with her parents and not at the place of

her husband or in-laws. It has come in evidence that she was looking after

her mother for more than 20 years. The other daughters of Smt. Yamunabai

are living with their husbands at their respective places. Smt. Yamunabai

had gone to the office of Sub-Registrar, Palghar on 5.4.1976 for the

purposes of registration of the will and she died 3 years and 9 months

thereafter on 11.1.1980. The Will was attested by two persons, namely, PW2

Rughunath Govind Sogale and Shaikh, out of whom the former was examined as

a witness in Court. There is no dispute regarding these facts. There is

nothing more shocking for the parents than the death of a grown-up son or a

young daughter becoming widow. It is most natural for the parents to have

the greatest amount of sympathy for their widowed daughter. The defendants

have led no evidence to show that Smt. Ramabai was getting anything for her

sustenance from the family members of her late husband. She was thus

entirely dependent upon her own parents. According to Smt. Ramabai, her

father Madhav died on 6.6.1956 though according to the defendants he died

sometime in year 1957. At any rate at least from 1957 till her death, the

mother Smt. Yamunabai was being looked after by the plaintiff Smt. Ramabai.

The defendants who are the other daughter of Smt. Yamunabai, are residing

at different places with their husband. In such circumstances the execution

of the Will by Smt. Yamunabai in favour of her widowed daughter Smt.

Ramabai, who was living with her for over 20 years and was looking after

her, appears to be most natural and probable.

7. The main reason which weighed with the learned District Judge in

discarding the Will, which has also appealed to the High Court, is that

Smt. Yamunabai completely disinherited her other daughter and gave the

entire property to Smt. Ramabai. In our opinion, the fact that Smt.

Yanumabai excluded all other daughter and gave the entire property to the

plaintiff Smt. Ramabai could not be a ground to cast any doubt regarding

the authenticity of the Will in the facts and circumstances of the case in

hand. It is not a case of exclusion of a son who may have been living with

the parents or looking after them. It is a case of making provision for a

widowed daughter who had been left a destitute on account of death of her

husband at a very early age. If the parental property was to be divided

equally amongst all the seven sisters, the share inherited by Smt. Ramabai

would have been quite small making it difficult for her to survive. The

house is situate in a village and is not in a big town or city where it may

have any substantial value. In fact, if the background in which the Will

was executed is examined carefully, it would be apparent that this was the

most natural conduct of the mother and giving of equal shares to all the

daughters would have entailed a serious hardship to the plaintiff Smt.

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Ramabai.

8. A Will is executed to alter the mode of succession and by the very

nature of things it is bound to result in either reducing or depriving the

share of a natural heir. If a person intends his property to pass to his

natural heirs, there is no necessity at all of executing a Will. It is true

that a propounder if the Will has to remove all suspicious circumstances.

Suspicion means doubt, conjecture or mistrust. But the fact that natural

heirs have either been excluded or a lesser share has been given to them,

by itself without anything more, cannot be held to be suspicious

circumstance especially in a case where the request has been made in favour

of an offspring. In PPK Gopalan Nambiar v. PPK Balakrishan Manbiar and

Ors., AIR (1995) SC 1852 it has been held that it is the duty of the

propounder of the Will to remove all the suspected features, but there must

be real, germane and valid suspicious features and not fantasy of the

doubting mind. In this case, the fact that the whole estate was given to

the son under the Will depriving two daughters was held to be not a

suspicious circumstance and the finding to the contrary recorded by the

District Court and the High Court was reversed. In Pushpavati and Ors. v.

Chandraja Kadanba and Ors., AIR (1972) SC 2492, it has been held that if

the propounder succeeds in removing the suspicious circumstance, the Court

would have to give effect to the Will, even if the Will might be unnatural

in the sense that it has cut off wholly or in part near relations. In

Rabindra Nath Mukherjee and Anr. v. Panchanan Banerjee (dead) by Lbs. and

Ors., [1950] 4 SCC 459, it was observed that the circumstance of

deprivation of natural heirs should not raise any suspicion because the

whole idea behind execution of the Will is to interfere with the normal

line of succession in and so, natural heirs would be debarred in every case

of Will. Of course, it may be that in some cases they are fully debarred

and in some cases partly. The concurrent finding recorded by the District

Court and the High Court for doubting the genuineness of the Will on the

aforesaid ground was reversed.

9. The learned District Judge has observed that Smt. Yamunabai was very old

when she executed the Will and she was hard of hearing and was unable to

walk. He further observed that Chhaya Dighe who typed the Will and one Shri

Tiwari, Advocate, who was present at the time of preparation and execution

of the Will, were not examined and these facts together created a doubt

regarding the authenticity of the Will. As discussed earlier, in view of

Section 63 of Indian Succession Act the proviso to Section 68 of the

Evidence Act, the requirement of law would be fully satisfied if only one

of the attesting witness is examined to prove the Will. That this had been

done in the present case by examining PW2 Raghunath Govind Sogale cannot be

disputed. No infirmity of any kind had been found in the testimony of this

witness. Chhaya Dighe merely typed the Will and she is not an attesting

witness nor it is anybody's case that Smt. Yamunabai had put her thumb

impression on the Will in her presence, therefore, her examination as a

witness was wholly redundant. The mere non examination of the Advocate who

was present at the time of preparation or registration of the Will cannot,

by itself, be a ground to discard the same. The fact that Smt. Yamunabai

was hard of hearing or that she was unable to walk does not lead to an

inference that her mental faculties had been impaired or that she did not

understand the contents of the document which she was executing. It is

important to note that Smt. Yamunabai personally came to the office of the

Sub-Registrar and her death took place after a considerable period i.e. 3

years and 9 months after the execution of the Will. No evidence has been

adduced by the defendants to show that at the time of the execution of the

Will she had been suffering from any such ailment which had impaired her

mental faculties to such an extent that she was unable to understand the

real nature of the document which she was executing. We are, therefore,

clearly of the opinion that the finding recorded by the learned District

Judge, which has been affirmed by the High Court in second appeal, is not

based upon a correct application of legal principles governing the proof

and acceptance of Will and the same is completely perverse. The aforesaid

finding is accordingly set aside. The finding recorded by the trial Court

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that Will is genuine is hereby restored.

10. The next question which requires consideration is whether the

plaintiff-appellant would become the owner of the entire property which

belonged to Madhav. The learned Civil Judge (Jr. Divn.) has held that as

Madhav died on 6.6.1956, Smt. Yamunabai after coming into force of Hindu

Succession Act became owner of entire property. The learned District Judge

has reversed this finding and has held that Madhav died sometime in the

year 1957 i.e. after 17.6.1956 when Hindu Succession Act had come into

force and consequently Smt. Yamunabai and all her daughters would get equal

share in the property. The High Court did not go into this question at all

and dismissed the second appeal after expressing agreement with the finding

of the learned District Judge regarding the character of the Will. We have

carefully perused the judgment of the trial Court and also of the first

appellate Court on this point and we are of the opinion that the finding

recorded by the learned District Judge to the effect that Madhav died

sometime after enforcement of Hindu Succession Act is based upon a correct

and proper appraisal of evidence and no exception can be taken to the same.

In this view of the matter, Smt. Yamunabai will have only l/8th share in

the estate left by Madhav which alone would go to the plaintiff on the

basis of the Will executed in her favour.

11. In the result, the appeal is allowed and the judgment and decree

passed by the District Judge and also by the High Court are set aside. The

decree passed by the learned Civil Judge (Jr. Divn.) is modified and it is

declared to the plaintiff-appellant, in addition to her own share, will

also be entitled to the l/8th share of her mother Smt. Yamunabai on the

basis of the Will executed in her favour. No costs.