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PETITIONER:

SMT.GURO

Vs.

RESPONDENT:

ATMA SINGH AND ORS.

DATE OF JUDGMENT05/03/1992

BENCH:

AGRAWAL, S.C. (J)

BENCH:

AGRAWAL, S.C. (J)

FATHIMA BEEVI, M. (J)

CITATION:

1992 SCR (2) 30 1992 SCC (2) 507

JT 1992 (2) 125 1992 SCALE (1)552

ACT:

Indian Succession Act,

1924-Section 63-Will-Mode of proving-Requirements

prescribed to be fulfilled-Suspicious circumstances-

Genuineness of will questioned-Onus on propounder to explain

to court's satisfaction-Onus-Nature of.

Constitution of India, 1950-Article 136-Appeal-Will-

Mode of proving-Requirements-Genuineness of will questioned-

Duty of propounder to explain the suspicious circumstances.

Constitution of India, 1950-Article 136-Appeal-Will-

Made of proving-Suspicious circumstances-High Court's

failure to appreciate-Will not proved to be genuine.

HEADNOTE:

Respondent No. 1's grand father's brother had two sons,

Ganga and Ranga and daughter, Banti. Ranga and Banti died

during the life time of Ganga. The appellant was Banti's

daughter.

On 2.10.1968 Ganga executed the will in question

bequeathing his one-third share in the property to

respondent No. 1.

On 10.10.1968 Ganga died. On his death proceedings

regarding mutation of the lands were initiated. Respondent

No 1. sought mutation in his favour on the basis of the

will, whereas the appellant as the nearest heir claimed

mutation in her favour.

The mutation was sanctioned in favour of the appellant

on the ground that the will was not genuine.

A suit for declaration was filed by the respondent No.1

claiming the one-third share of demised Ganga on the basis

of the will.

The defendant-appellant questioned the genuineness of

the will and the plaintiff-respondent disputed that the

appellant was not the daughter of the sister of the

testator.

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The suit was decreed in favour of the plaintiff-

respondent No. 1 holding that the will was genuine and the

appellant was the daughter of the sister of the testator.

Ganga.

The appeal filed against the decree was allowed. The

appellate court held that the will was not a genuine

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document executed by Ganga in as much as there were certain

features which threw suspicion with regard to its valid

execution.

The second appeal filed by the plaintiff-respondent No.

1 was allowed by the High Court, which restored the judgment

of the trial court on the view that the will was executed

validly.

This appeal by special leave was filed by the aggrieved

defendant against the judgment of the High Court.

Allowing the appeal filed by the defendant, this Court,

HELD : 1.01. The mode of proving a will does not

ordinarily differ from that of proving any other document as

to the special requirement prescribed in the case of a will

by Section 63 of the Indian Succession Act. [34F]

1.02. The onus of proving the will is on the

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. [34G]

1.03. Where, 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 circumstances may be a shaky

signature, a feeble mind and unfair and unjust disposal of

property or the propounder himself taking a leading 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

legitimates suspicion before the document can be accepted as

the last will of the testator. [34H,35A]

H. Venkatachala Iyengar v. B.N. Thimmajamma and Ors.,

[1959] Supp.1 SCR 426; Rani Purnima Devi v. Kumar Khagendra

Narayan Dev., [1962] 3 SCR 195 and Jaswant Kaur v. Amrit

Kaur & Ors., [1977] 1 SCR 925 followed.

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2.01 The HIgh Court has failed to attach sufficient

importance to the various suspicious features relating to

execution of the will that were pointed out by the appellate

court. The High Court has not even noticed the fact that

the testator had died within eight days of the execution of

the will and there is a recital in the will that the

testator had been ill for a long time and was seriously ill

at the time of execution of the will. In view of the said

recital, it was necessary for the plaintiff-respondent no. 1

to adduce satisfactory evidence with regard to the nature of

the illness of the testator and about his mental capacity to

execute the will [37A-C]

2.02 The incorrect statements in the will with regard

to testator having no sister and respondent no.1 being his

real brother have to be considered. [37C]

2.03. The circumstances that the testator had not put

his signature and had put only his thumb impression on the

will, has been brushed aside by the High Court on the view

that there is no evidence on record with regard to the

literacy of the testator. The Scribe PW.1, has stated that

Ganga Singh was literate person and had been writing

receipts etc. even earlier. In the circumstances, it was

necessary for the plaintiff-respondent to adduce

satisfactory evidence to show why, instead of signatures,

the thumb impression of the testator was obtained on the

will. [37D-E]

2.04. Another significant feature which has been

brushed aside by the High Court is about the role of

respondent No. 1 in the execution of the will under which he

is the sole legatee. The will was executed outside the

residence of respondent No.1 on a bahi brought by Tara Singh

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the son of respondent No. 1. The respondent No.1 has made

contradictory statements about his presence at the time of

execution of the will. The High Court has ignored the

contradictions in the statement of respondent No.1,by a

simple observation that this lapse on the part of respondent

No.1 may be due to faulty memory or may be he was trying to

avoid the criticism that he has tried to exercise some

influence to get the will executed in his favour. Only two

of the five attesting witnesses have been examined. Both of

them, viz.,P.W.2 and P.W. 3 have made an effort to deny the

illness of the testator at the time of the execution of the

will and have also departed from their earlier statements

recorded during the mutation proceedings. In these

circumstances, it was necessary that the other attesting

witness should also have been examined by plaintiff-

respondent No.1. [37E-38A]

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2.05. The High Court was not justified in reversing the

findings of fact recorded by the Appellate Court that will

is not proved to be genuine document executed by Ganga.

[38B]

JUDGMENT:

CIVIL APPELLATE JURISDICTION ; Civil Appeal No. 3163 of

1983.

From the judgment and Order dated 28.10.1982 of the

Punjab and Haryana High Court in Regular Second Appeal No.

1504 of 1973.

R. Satish for the Appellant.

The Judgment of the Court was delivered by

S.C. AGRAWAL, J. The question for consideration in this

appeal relates to the genuineness of a will said to be

executed by one Ganga Singh whereby he bequeathed all his

property to his distant cousin, Atma Singh, respondent no.

1, the grandson of the brother of the grandfather of Ganga

Singh. Ganga Singh had a brother Ranga Singh and a sister

Banti. Both, RAnga Singh and Banti had died during the life

time of Ganga Singh. Smt. Guro, the appellant herein, is

the daughter of Banti. At the time of his death, on October

10, 1968, Ganga Singh was having one-third share in land

measuring 148 kls. 11mls. in Village Dall, Tehsil Patti,

District Amritsar. On October 2, 1968, Ganga Singh is said

to have executed the will in question whereby he bequeathed

his entire property to respondent No. 1. After the death of

Ganga Singh, proceedings regarding mutation of the lands in

his share were initiated and in those proceedings Respondent

No.1 sought mutation in his favour on the basis of the will.

The appellant sought mutation as the nearest heir, being

daughter of Ganga Singh's sister. The Assistant Collector,

I Grade, Patti sanctioned the mutation in favour of the

appellant and did not accept the will on the ground that it

was not beyond suspicion. Thereafter respondent no. 1 filed

a suit for declaration wherein he claimed one-third share of

Ganga Singh on the basis of the will dated October 2, 1968.

The said suit was contested by the appellant who disputed

the genuinesness of the will. Respondent no 1 did not

accept the claim of the appellant and disputed that she is

the daughter of the sister of the testator, Ganga Singh.

The Sub-Judge, I Class, Patti by his judgment dated July 25,

1972 decreed the said suit of respondent no. 1 on the view

that the execution of the will by Ganga Singh was duly

proved and at the time of the said execution, the testator

was in a sound state of mind. The

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Sub-Judge, however, found that the appellant is the daughter

of Ganga Singh's sister Banti. On appeal, the Additional

District Judge, Amritsar, by his judgment dated September

22, 1973, reversed the decree of the Sub-Judge and dismissed

the suit of respondent no.1, and found that the will was not

proved to be a genuine document executed by Ganga Singh

inasmuch as there were certain features which threw

suspicion with regard to its valid execution. The High

Court of Punjab and Haryana, by judgment dated October 28,

1982, allowed the second appeal filed by respondent No.1 and

while setting aside the judgment and decree of the appellate

court, restored the judgment of the trial court on the view

that the will had been validly executed. Feeling aggrieved

by the said decision of the High Court, the appellant has

filed this appeal.

In the will, the testator, Ganga Singh has stated that

he had no issue nor he had any sister and that he had one

brother who also died and he is the owner of the property

and the land situated in village Dall. The testator has

further stated that he has been ill for a long time and has

become blind and was now seriously ill and there is no hope

for his survival. He has further stated that after his

death, Atma Singh, son of Mangal Singh, son of Bahadur Singh

would be the owner o his property because he was his real

brother and he would be really entitled. The scribe of the

will was Manohar Lal, a shopkeeper in Dall, and there is

thumb impression of the testator. It has been arrested by

five persons, namely, Kehar Singh, Sarpanch Lambardar, Dall,

Surjan Singh, Chanan Singh, Sardara Singh and Hazara Singh.

In order to prove the will respondent no.1 examined the

scribe Manohar Lal (PW.1) and two attesting witnesses Kehar

Singh (PW.2) and Surjan Singh (PW.3).

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 circumstances may be a shaky

signature, a feeble mind and unfair and unjust disposal of

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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. H. Venkatachala Iyengar v.

B.N. Thimmajamma and Ors., [1959] Supp. 1 SCR 426; Rani

Purnima Devi v. Kumar Khagendra Narayan Dev., [1962] 3 SCR

195; Jaswant Kaur v. Amrit Kaur & Ors., [1977] 1 SCR 925.

In the instant case, the appellate court noticed the

following suspicious circumstances:

(1) The will mentions that the testator had been ill

for a long time and was seriously ill at the time of

execution of the will.

(2) While mentioning that he had one brother who had

died the testator has stated that he did not have any

sister, which was not correct.

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(3) Respondent no. 1, Atma Singh the sole legatee, has

been wrongly described as the real brother of the testator.

(4) No reasons are mentioned in the will why the

appellant, who was the natural heir of the testator was

being ignored.

(5) Although the testator was literate, the will does

not bear his signature and bears him thumb impression.

(6) The will is an unregistered document not scribed by

a regular deed writer and as such could be prepared at any

time.

(7) The will was executed on October 2, 1968 and within

eight days of the execution of the will the testator died on

October 10, 1968.

The appellate court has found that respondent no. 1 had

made contradictory statement with respect to his presence at

the time of the execution of the will and that in his

testimony he claimed that he was not present at the time of

the execution of the will but in his statement before the

revenue authorities in the mutation proceedings, respondent

no.1 had stated that the will was executed in his presence

and was thumb marked by Ganga Singh and when confronted with

the said statement, respondent no. 1 did not deny the

correctness of the record prepared but tried to

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explain his earlier statement by stating that what he meant

was that he had been informed by Ganga Singh about the

execution of the will. The appellate court also found that

the Scribe, Manoharlal had made contradictory statements

about the illness of Ganga Singh and that he first stated

that Ganga Singh was not ill at the time of the Execution of

the will and had subsequently fallen ill and died of that

illness but on further cross-examination, he stated that

Ganga Singh had been lying ill since two years prior to the

execution of the will. The appellate court has pointed out

that Kehar Singh and respondent no.1, Atma Singh had

contradicted the recital in the will with respect to the

illness of Ganga Singh and have stated that he fell ill 7 or

8/10 days prior to his death. The appellate court was of

the view that the recital in the will to the effect that

Ganga Singh had been ill since long leads to the conclusion

that due to that illness Ganga Singh was of feeble mind and

it was, therefore, necessary for the plaintiff-respondent to

prove that advice for ignoring the natural heir was

available to Ganga Singh and the will was not the outcome of

any undue influence on the part of the plaintiff who was the

sole legatee. Keeping in view the aforesaid circumstances,

the appellate court held that the will was not proved to be

genuine document executed by Ganga

Singh.

The High Court, in second appeal, reversed the findings

recorded by the Appellate Court and held that the incorrect

statement in the will with regard to testator having no

sisters and respondent no. 1 being his real brother could

not cast any doubt on the contents of those part of the will

by which specified property was bequeathed to the legatee

and the legatee could not be made to suffer by some

untruthfulness on the part of the testator. As regards, the

thumb impression instead of signatures of the testators on

the will, High Court observed that the extent of literacy of

the testator is not apparent from the record and that it was

not the case of the appellant that the thumb impression on

the will had been obtained after the testator had actually

died and there is no evidence to show that he was not in his

senses when the scribe asked him to put his thumb impression

on the will. As regards the contradictory statements made

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by respondent no. I about his presence at the time of

execution of the will the High Court observed that this

lapse on the part of respondent no. I may be due to faulty

memory or may be he was trying to avoid a criticism that he

had tried to exercise some influence in getting the will

executed in his favour.

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The High Court, in our opinion, was not justified in

reversing the findings of fact recorded by the Appellate

Court which were based on a proper appreciation of the

evidence on record. In doing so, the High Court has failed

to attach sufficient importance to the various suspicious

features relating to execution of the will that were pointed

out by the appellate court. The High Court has not even

noticed the fact that the testator had died within eight

days of the execution of the will and there is a recital in

this will that the testator had been ill for a long time and

was seriously ill at the time of execution of the will. In

view of the said recital, it was necessary for the

plaintiff-respondent no.1 to adduce satisfactory evidence

with regard to the nature of the illness of the testator and

about his mental capacity to execute the will. The

incorrect statements in the will with regard to testator

having no sister and respondent no. 1 being his real brother

have to be considered in this background. The circumstance

that the testator had not put his signature and had put only

his thumb impression on the will, has been brushed aside by

the High Court on the view that there is no evidence on

record with regard to the literacy of the testator. We find

that the Scribe, Manohar Lal, PW.1, has stated that Ganga

Singh was literate person and had been writing receipts etc.

even earlier. In the circumstances, it was necessary for

the plaintiff-respondent to adduce satisfactory evidence to

show why, instead of signatures, the thumb impression of the

testator was obtained on the will. Another significant

feature which has been brushed aside by the High Court is

about the role of respondent no. 1 in the execution of the

will under which he is the sole legatee. It has been stated

by Manohar Lal, PW.1, that Tara Singh, the son of the

respondent no. 1 had come to call him. To the same effect

is the testimony of Kehar Singh, PW.2 and Surjan Singh, PW.3

the attesting witnesses. The will was executed outside the

residence of respondent no. 1 on a bahi brought by Tara

Singh the son of respondent no.1. The respondent no. 1 has

made contradictory statements about his presence at the time

of execution of the will. The High Court has ignored these

contradictions in the statement of respondent no.1, by a

simple observation that this lapse on the part of respondent

no. 1 may be due to faulty memory or may be he was trying to

avoid the criticism that he has tried to exercise some

influence to get the will executed in his favour. Only two

of the five attesting witnesses have been examined. Both of

them, viz., Kehar Singh (PW 2) and Surjan Singh (PW 3) have

made an effort to deny the illness of the testator

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at the time of the execution of the will and have also

departed from their earlier statements recorded during the

mutation proceedings. In these circumstances, it was

necessary that the other attesting witnesses should also

have been examined by plaintiff-respondent no.1. Taking

into consideration the aforesaid features, we are of the

view that the High Court was not justified in reversing the

findings of fact recorded by the Appellate Court that will

is not proved to be a genuine document executed by Ganga

Singh and in holding that the execution of the will had been

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satisfactorily proved by respondent no.1.

The appeal is, therefore, allowed. The judgement and

decree of the High Court of Punjab and Haryana dated

October 28, 1982 in Regular Second Appeal No. 1504 of 1973

is set aside and judgment and decree of the Additional

District Judge, Amritsar dated September 22, 1973 dismissing

the suit respondent no.1 are restored. There will be no

orders as to costs.

V.P.R. Appeal allowed

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