ivil Appeal No 4499 of 1986
From the Judgment and Order dated 1181986 of the Punjab and Haryana High Court in RSA No 974 of 1985 and Civil Misc
No 1034 C of 1985
Harbans Lal Dr Meera Agarwal NP and RC Mishra for the Appellant
SK Mehta Aman Vachher and Atul Nanda for the Respond ents
The Judgment of the Court was delivered by RM SAHAI J
Disinherited daughter under a Will alleged to have been executed by her father one day before his death bequea 815 thing all his property in favour of sons of her only sister has assailed validity of orders of three courts below for failure to apply the rule that presumption of due execution of a pious and solemn document like Will stood rebutted due to existence of suspicious circumstances which the propound er could not rule out specially when he had taken active part in its execution
Soft cornor for grand children or likeability for a son or daughter or their issues is not uncommon to our society
Rather at times it becomes necessary either to provide for the lesser fortunate or to avoid the property from passing out of the family
But when disputes arise between heirs of same degree and the beneficiary even chooses to deny the blood ties and that too unsuccessfully then court s re sponsibility of performing its duties carefully and pains takingly multiplies
Unfortunately it was not properly comprehended by any of the courts including the High Court which was swayed more by happy marriage of appellant a consideration which may have been relevant for testator but wholly irrelevant for courts as their function is to judge not to speculate
Although freedom to bequeath one s own property amongst Hindus is absolute both in extent and person including rank stranger yet to have testamentary capacity or a disposing state of mind what is required of propounder to establish is that the testator at time of disposition knew and understood the property he was dispos ing and persons who were to be beneficiaries of his disposi tion
Prudence however requires reason for denying benefit to those who too were entitled to bounty of testator as they had similar claims on him
Absence of it may not invalidate a Will but it shrouds the disposition with suspicion as it does not give any inkling to the mind of testator to enable the Court to judge if the disposition was voluntary act
Taking active interest by propounder in execution of Will raises another strong suspicion
In H Venkatachalliah vs
N Themmajamma  it was held to render the Will infirm unless the propounder cleared the suspicion with clear and satisfactory evidence
Mere execution of Will thus by producing scribe or attesting witness or proving genuiness of testator s thumb impressions by themselves was not sufficient to establish validity of Will unless suspi cious circumstances usual or special are ruled out and the courts  conscience is satisfied not only on execution but about its authenticity
See Kalyan Singh vs Smt
Chhoti  Ors 1989 Judgment Today page 439
Coming now to facts it has been found by all the three courts below that testator was a migrant from West Pakistan who after migration resided in village Rupena was ill for sometime and lived with his 816 daughter and her sons who are the beneficiaries six months prior to his death
It was further found that appellant was also one of the daughters
No finding was recorded that she or her sons had any sore or sour relations with testator
But the most important finding was that even though the testator could sign yet he put his thumb mark on it
It was found to be genuine
The execution was thus held beyond doubt
But it was sufficient to put the courts on alert specially when the professional scribe fetched by benefici ary s father admitted that when he reached beneficiary s residence where the Will was executed he found testator covered with a quilt in the afternoon of August with whom he did not talk nor enquire about his health
Unfortunately none of the Courts paid any attention to these probably because they were swayed with due execution even when this Court in Venkatachalliah s case supra had held that proof of signature raises a presumption about knowledge but the existence of suspicious circumstances rebuts it
Importance of these aspects would have become apparent if they had examined the Will which speaks for itself but which was taken for granted
Relevant part of it is extracted below They served me with money and the core of their heart
I am happy with their service
Therefore I make this Will without any pressure or influence that during my life time I shall be owner of all my property both moveable and immovable ie land house etc
After my death my entire property land houses shops factory machinery residential house resi dential goods deposit in Bank or Post office ie whatever is in my name in Punjab or any part of India it will be in the ownership of and in possession of my grand sons daugh terssons Harmesh Singh Mohan Lal Sohan Lal son of Gurdev Singh son of Raunaq Singh in equal shares
No body else who may be my near relations or distantly related will have any right in my property
What strikes immediately is professionalism of the recital
Grave doubt arises if recital of each and every item which could be visualised was as a result of professional exper tise or the old man was so unwell and died on the next day that he could not speak resulting in speculative narration of property depending on imagination what he must have been possessed of
Mention of house factory machinery and bank deposit was meaningful
House had already been sold
No evidence was led that he was possessed of another house or that he had any factory or machinery or bank deposits
Explanation of learned counsel that omission was as the respondent had challenged the very relation 817 ship of appellant could not remove the suspicion created by the recital that bequest was made not by an independent man after understanding or on his dictation but was work of a scribe or beneficiary s father who did not take any chance and attempted to rope in every possible property that could have been conceived of
Happy marriage or financially well settlement of appellant could not add to genuineness of Will
The High Court in recording this finding completely misdirected itself
More so when no finding of dire circum stances of respondent to help out of which testator dis inherited the other daughter was recorded by any courts
Ratio in Malkani vs Jamadar AIR 1987 SC 767 was relied on to dissuade this Court from interfering both because the finding that Will was genuine was a finding of fact and omission to mention reason for dis inheriting the daughter or taking prominent part by beneficiary by itself was not sufficient to create any doubt about the testamentary capac ity was because of misunderstanding of the correct import of the decision and the circumstances in which it was rendered
Property in Malkani s case supra was land
Beneficiary was nephew as against marned daughter
Anxiety in village to protect landed property or agricultural holdings from going out of family is well known
Even though it cannot be said to be hard and fast rule yet when dis inheritance is amongst heirs of equal degree and no reason for exclusion is dis closed then the standard of scrutiny is not the same and if the courts below failed to be alive to it as is clear from their orders then their orders cannot be said to be beyond review
Although this Court does not normally interfere with findings of fact recorded by courts below but if the find ing is recorded by erroneous application of principle of law and is apt to result in miscarriage of justice then this Court will be justified in interfering under Article 136
For the reasons stated above the appeal succeeds and is allowed
The order and judgment of all the three courts below are set aside and the suit filed by the appellant for declaration that the Will executed by her father was in valid shall stand decreed
The appellant shall be entitled to its costs
GN Appeal al lowed


Summary:
A commercial vessel which arrived at Paradip Port was rummaged by the Customs Officers and contraband goods worth more than Rs140000 were recovered
The officers also detained the vessel by issue of a notice to the Master of the vessel with a copy to the second respondent the Deputy Conservator of Paradip Port Trust
At the instant of the second respondent and another the vessel was shifted to the reads far away from the port in the high sea
This resulted in the interruption of the rummaging operation and the vessel being left unguarded for about 38 hours during which period it was alleged that the contraband goods disappeared from the vessel
The second respondent was asked to show cause as to why he should not be proceeded against and why penalty should not he imposed on him under Sections 117 and 151 of the 
In his reply the second respondent took the plea that the Customs and Central Excise Authorities had no jurisdiction to initiate proceedings against him and that section 151 of the Act was not attracted
Rejecting his plea the Collector imposed a penalty of Rs1000 under section 117 of the Act
The said order of the Collector was challenged in the High Court by way of writ petitions
The High Court allowed the writ petitions and quashed the penalty
This appeal by special leave is against the orders of the High Court quashing the penalty On behalf of the appellant it was contended that Section 133 706 creates an offence and also prescribes a penalty and though the section s referable to Court in so far as prosecution and punishment is concerned for the offence there would be no bar to deal with that offence under section 117 of the Act
It was also contended that there would be no double jeopardy if in an appropriate case one has been prosecuted and punished under the sections in Chapter XVI of the Act and also sub jected to penalty under the provisions other than those in Chapter XVI if the Act for offences including those in Chapter XVI of the Act
Allowing the appeal HELD 1
Where the same Act or event constitutes an offence ruder Chapter XVI and at the same time constitutes a contravention or abetment of contravention of any of the provisions of the Act or failure 0 perform any duty pre scribed under the Act or amounts to noncompliance with any of the provisions of the Act there will be possibility of prosecution and punishment under Chapter XVI of the Act and any other provision of law and the same time confiscation and penalty under Chapter XIV of the Act
710G H 2
In the instant case the vessel could therefore lawfully be detained rummaged and the goods suspected seized
There may be cope for holding that there was inten tional obstruction on the part of he second respondent if the allegations are proved
Where there was an order for seizure it would amount to obstruction under section 186 IPC if the goods were not allowed to be removed
Obstruction is not confined to physical obstruction and it includes anything which makes it more difficult for the police or public servant to carry out their duties
711B F Santosh Kumar vs State  and Hinchliffe vs sheldon 1955 1 WLR 1207 referred to
In the Collector s order though there was discussion of offence under section 133 and failure to perform duty under section 151 the order itself was passed ex facie under the provi sions of section 117 of the Act
There is no discussion in the High Court s order on this aspect of the matter and here is no indication as to whether this was urged or not before the High Court
Further since the second respondent is not represented before his Court the said order is set aside and the cases remanded to the High Court for fresh disposal in accordance with law in the light of the observations made hereinabove after giving opportunities to the parties or making their submissions on the basis of the evidence al ready on record
711H 712A B