JUDGMENT [ENTITY], J.
1. This regular second appeal is directed against the order of the Additional District Judge, Ambala, dated 4.12.1979, whereby the appeal of the appellant-defendants against the judgment and decree of the Sub-Judge, IInd Class, Ambala Cantt. dated 2.2.1979 has been dismissed.
2. Before adverting to the controversy, the relevant facts may first be noticed:-
3. There were three brothers; [ENTITY], [ENTITY] and [ENTITY], all sons of [ENTITY] residents of Village Nabu Majra, Tehsil and District Ambala. [ENTITY], a widower, died in 1972. He had no issues. His brothers had predeceased him. He had executed a registered Will on 3.8.1970 in favour of the appellants; [ENTITY] and [ENTITY], both daughters of his brother [ENTITY] and testate his entire property in their favour. Aggrieved by the said Will, [ENTITY] (respondent-plaintiff) son of his other brother [ENTITY], brought a suit on 15.6.1973 claiming possession of 1/2 share in the property which formed subject matter of the Will, on the grounds; that the Will was never executed and was a fabricated and forged document nor was the testator in a sound and disposing mind when he executed the Will; that the testator was incompetent to make the Will as parties concerned, being primarily agriculturists, were governed by custom; that the Will was the result of collusion of the appellants and others and could not be binding on his rights. It may be mentioned that besides [ENTITY], [ENTITY] also had six daughters. However, the suit was filed by [ENTITY] alone. In the suit, all the five children of [ENTITY]; namely, son [ENTITY] and daughters [ENTITY], [ENTITY] and [ENTITY], were impleaded as defendants. [ENTITY] husband of [ENTITY] was also impleaded as a defendant.
4. The suit was contested only by the appellants [ENTITY] and [ENTITY], the beneficiaries under the Will, and the other defendants were proceeded against exparte. They contended that the Will was the outcome of love and affection that the deceased had for them and was the result of services rendered by them; that the property in question was not ancestral as alleged in the plaint; that the deceased had contracted a [ENTITY] marriage with [ENTITY]; and that the Will was made by the deceased while he was in sound and disposing mind.
5. [ENTITY] filed a replication and re-affirmed the allegations made in the plaint. He specifically controverted the claim of the defendants that [ENTITY] had contracted [ENTITY] marriage with [ENTITY].
6. On the pleadings of the parties, the trial Court framed the following issues:-
1. Whether [ENTITY] deceased was the owner of the property in question? OPP
2. If issue No. 1 is proved to what share, if any, the plaintiff is entitled to claim the property left by said [ENTITY] son of [ENTITY]? OPP
3. Whether the said [ENTITY] left any valid Will in favour of the defendant, if so, its effect? OPD
4. Relief."
After appraising the evidence led by the parties, issue No. 1 was decided in favour of the plaintiff and it was held that [ENTITY] was the owner of the property in question. The trial Court did not record any finding on the question about the property being ancestral or not as no such issue was pressed. Under issue No. 1, it was observed that this issue was material only if under issue No. 3 it were to be held that the Will alleged to have been executed by [ENTITY] in favour of [ENTITY] and [ENTITY] was not proved. It was, therefore, held that if the Will is not proved, then, plaintiff-[ENTITY] would be entitled to 1/6th share against his claim of 1/2 share in the property left behind by deceased-[ENTITY]. This issue was, accordingly decided partly in favour of the plaintiff and partly against him. Under issue No. 3, it was held that although the defendants had succeeded in proving that the Will dated 3.8.1970 was executed by [ENTITY] but they had failed to prove that at the time of execution of the Will, he was of a sound and disposing mind and that the Will had been voluntarily executed by him. Thus, issue No. 3 was decided against the defendants.
7. Aggrieved by the judgment and decree of the trial Court, defendants-[ENTITY] and [ENTITY] filed an appeal before the Additional District Judge, Ambala. In appeal, contentions were raised only with regard to issue No. 3. The lower Appellate Court upheld the findings of the trial Court on issue No. 3 and consequently dismissed the appeal.
8. It is in the above factual background that the present appeal has to be considered. At the very outset, counsel for the appellants was asked to explain as to how the concurrent findings of fact recorded by the Courts below that [ENTITY] was not in a sound and disposing mind when the alleged Will was executed and that this act was not voluntary can be interfered with.
9. Mr. [ENTITY], learned counsel for the appellants, pointed out that the findings of the Courts below are not only based on misapplication of rules of evidence but are also perverse as material evidence has either been ignored or misread. To elaborate this point, he referred to the finding of the trial Court in para-16 of the judgment wherein it has been held that the appellants (defendants) Have failed to prove that at the time of execution of the Will he was of sound and disposing mind and the all Ex.D-1 was voluntarily executed by him." He contended that there was a presumption of sanity of the executant and the onus of proving that he was not of a sound and disposing mind when the Will was executed was on the person so alleging. He contended that plaintiff-[ENTITY] had placed no material on record whatsoever to prove that [ENTITY] was not of a sound and disposing mind when the Will was executed. He was bound to prove this allegation by leading evidence and could not succeed on the ground that the defendants had failed to prove the reverse. In support of his contention, he placed reliance on the following judgments.:-
1. [PRECEDENT],
2. [PRECEDENT];
3. [PRECEDENT];
4. [PRECEDENT] Supreme Court Cases 85;
5. [PRECEDENT]; and
6. [ENTITY] (Dead) through [PRECEDENT].
He, therefore, contended that in the absence of any evidence led by the plaintiff in support of his allegation that [ENTITY] was not in a sound and disposing mind, the Will could not be rejected on this ground. He further contended that even otherwise, the evidence on record clearly shows that [ENTITY] was hale and hearty when the Will was executed. For this purpose, the scribe of the Will, who had clearly stated that [ENTITY] was in a healthy (tandrust) state when he had scribed the Will for him. He, then referred to the statement of DW-2 [ENTITY], Advocate, an attesting witness, who also testified that on the day of execution of the Will, Badhwa was in a healthy (tandrust) state. This assertion of [ENTITY] and [ENTITY] was not questioned in the cross examination. No suggestion was put to them about [ENTITY] not being of a sound and disposing mind. Learned counsel, then, referred to the statement of DW-3, [ENTITY], who is also an attesting witness. He also testified that [ENTITY] was in a healthy state. However, in the cross-examination, the only suggestion put to him was as to whether [ENTITY] had undergone any medical examination at Ambala when he had come to execute the Will. In reply, [ENTITY] had said that [ENTITY] had not undergone any such medical examination as he was fit and fine ([ENTITY]). No suggestion about [ENTITY] not being of a sound and disposing mind on that day was put even to him. Thus, it was argued that the evidence on record clearly shows that [ENTITY] was hale and hearty on the day the Will was executed by him.
10. Learned counsel, then, contended that the finding that the appellants had failed to prove that the Will had been voluntarily executed by [ENTITY] again suffers from the same defect. He pointed out that firstly this finding is beyond pleadings. He referred to the contents of the plaint and the replication to show that there was not even a whisper of the allegation that the Will had been executed under some influence or coercion. Still further, the learned counsel contended, even if such a plea could be raised by the plaintiff, the onus was on him to prove that the Will was not voluntary. No such evidence had been led by the plaintiff in this behalf. He pointed out, that the authorities below have not mentioned the name of any person who had allegedly exerted any pressure on [ENTITY] to execute the Will. It was further pointed out that the Courts below have placed the onus on the defendants to prove that the Will was voluntary. This, accordingly to the learned counsel, is contrary to the basic rules of evidence. No such negative onus could have been placed on the defendants. He, again, referred to the evidence of DW-1, DW-2 and DW-3 to show that no suggestion was put to them about the Will having been executed under any pressure or coercion. The scribe [ENTITY] has clearly stated that he had scribed the Will at the instance of [ENTITY] and he had read it over to him. This was done in the presence of witnesses [ENTITY], Advocate, [ENTITY] and [ENTITY]. This assertion had remained uncontroverted in the cross-examination. [ENTITY], Advocate, had also stated that [ENTITY] had got the Will executed in his presence and that the Will had been read over and explained to him and it is only thereafter that [ENTITY] had put his thumb impression on the same. This had also remained uncontroverted in the cross-examination. To the same effect is the testimony of DW-3.
11. The learned counsel, then, contended that the Courts below have wrongly drawn an adverse inference against the defendants on the ground that [ENTITY], who was, admittedly, present at the time of execution of the Will and had been impleaded as defendant No. 6, had neither filed any written statement nor entered the witness box. Such an inference was totally unwarranted as neither in the plaint nor in the replication had any allegation been made against [ENTITY] about his having brought any pressure on [ENTITY] to execute the Will. The only role assigned to [ENTITY] was that he had accompanied [ENTITY] when the Will was executed. It was, therefore, contended that this fact alone could not be treated as a suspicious circumstance leading to an inference that he had coerced or pressurised [ENTITY] to make the Will. Reliance was placed on the judgment of Supreme Court in [PRECEDENT]. Under these circumstances, there was no occasion for [ENTITY] to deny exerting any pressure on [ENTITY] either by filing a written statement or by appearing in person.
12. Learned Counsel also pointed out that the objections of the trial Court about [ENTITY], an attesting witness, not being examined or there being no witness from the village of [ENTITY], are of academic interest only because the trial Court had accepted the execution of Will by [ENTITY]. At any rate, he referred to the provisions of [SECTION] of the [ACT], to show that for proving a document, production of only one witness is sufficient. He pointed out that two out of three witnesses had been produced and, therefore, no adverse inference could be drawn from the non-production of the third witness [ENTITY]. For this purpose, he placed reliance on the judgment of the Supreme Court in [PRECEDENT]. He also contended that there was no requirement in law that the witnesses should be from the same village or from the same locality. For this purpose, he relied on [PRECEDENT] and [PRECEDENT].
13. It was next argued that the Courts below had wrongly observed that [ENTITY] had given no reasons as to why he was making the Will only in favour of two daughters of his brother [ENTITY] by excluding the other legal heirs. The learned counsel pointed out that this observation is factually incorrect. He referred to the Will in which [ENTITY] has clearly stated that his nieces [ENTITY] and [ENTITY] look after him and he has special love and affection for them. Accordingly, it was contended that the findings of the trial court in para-14 are factually incorrect.
14. Mr. [ENTITY], appearing on behalf of the respondent, supported the orders of the Court below.
15. I have heard the counsel for the parties and perused the relevant record.
16. For appreciating the contentions raised on behalf of the appellant, it is necessary to refer to the findings recorded by the trial Court which have been upheld by the lower Appellate Court. The findings recorded in para-16 are as under:-
"16. For the reasons given above I am of the view that the defendants have succeeded in proving that the Will Ex.D-1 was executed by [ENTITY] but they have failed to prove that at the time of execution of the Will he was of sound and disposing mind and the Will Ex. D-1 was voluntarily executed by him. The Will Ex.D-1 has not been proved to be voluntary and valid and as such issue number 3 is decided against the defendants and in favour of the plaintiff."
From the above, it is clear that the execution of the Will by [ENTITY] stands proved and this fact has been accepted by the Courts below. Even before me, the learned counsel for the respondent did not dispute this fact, the substantial question of law for consideration, therefore, is as to whether the Courts below were justified in placing the onus on the defendants to prove that [ENTITY] was in a sound and disposing mind at the time of execution of Will and that the Will had been made voluntarily by him.
17. In [PRECEDENT]'s case (supra), this Court (at page 122) has observed as under:-
"As a general rule, until the contrary is established, a testator is presumed to be sane and to have mental capacity to make a valid Will. Accordingly, where a testamentary writing is rational on its face, legal in form, and it is shown to have been duly executed, the presumption of testamentary capacity arises. The said presumption obtains over the entire process of the execution of the Will in the absence of credible evidence to the contrary. A testamentary deposition of property is usually not consistent with the ordinary course of succession. Therefore, any departure from the usual course of succession in which a person prompted by ordinary instincts and natural impulsions, would have his property go, is presumed to have been made by the testator because of reasons rationally conceived, which are satisfactory to him. No presumption of testatmentary incapacity is permissible by the mere fact that the testator was advanced in years."
In Smt. [PRECEDENT]'s case (supra), this Court held that "the testator is presumed to be sane having a mental capacity to make a valid Will until contrary is proved."
In [PRECEDENT]'s case (supra), the Apex Court held that there has to be evidence on record to show that the testator was physically or mentally incapacitated from executing the Will. The mental and physical capacity could not be doubted on the ground of absence of any medical evidence of a doctor which would show that the testator was in a sound and disposing state of mind. The Apex Court held that there is no rule of law or of evidence which requires a doctor to be kept present when a Will is executed.
Similarly, in [PRECEDENT]'s case (supra), a Will sought to be challenged on the ground that the testator was a lunatic. This contention was rejected on the ground that there was nothing on record to show that he was not a man of sound mind.
In [ENTITY]'s case (supra), it was held that in the absence of any evidence to show that the testator's faculties were empowered at the time of execution of Will, it could not be said that she was not in a sound disposing mind at the time of execution of the Will.
From the above authorities, it is clear that there is a presumption of sanity of the testator. Once a Will is proved, there is no further onus on the propounders to prove that the testator was in a sound disposing mind at the time of execution of the Will. However, when a Will is challenged on the ground of the testator's mental incapacity, the onus lies on the person so alleging. He is required to prove the same by leading evidence to that effect. Thus, when a Will has to be rejected on the ground that the testator was not in a sound and disposing mind, a definite finding is required to be recorded to that effect. However, in the present case, the finding recorded is that the defendants (appellants herein) "have failed to prove that at the time of execution of the Will, he was of sound and disposing mind". This finding is clearly not based upon a correct application of the legal principles governing the proof and acceptance of Will and is completely perverse.
18. On a specific query from the Bench. Mr. [ENTITY], learned counsel for the respondent, fairly conceded that no evidence had been led by the plaintiff to prove the mental incapacity of [ENTITY]. On the other hand, it has been correctly pointed out by the learned counsel for the appellants that the evidence of DW-1, DW-2 and DW-3 clearly shows that [ENTITY] was hale and hearty at the time of execution of Will. Their statements to this effect had remained uncontroverted as no suggestion was put to them about any mental incapacity of [ENTITY]. Thus, in the absence of any evidence led by the plaintiff to this effect, it cannot be held that [ENTITY] was not in a sound and disposing mind at the time of execution of the Will.
19. Similarly, the finding of the Courts below that the Will has not been proved to be voluntary is, again, perverse, not based on correct application of principles governing the proof and acceptance of Will. It has been correctly pointed out that it was nowhere pleaded by the plaintiff that any person had exerted influence on [ENTITY] or had coerced him into making the Will. In the absence of any such pleadings, no such finding could have been recorded by the Courts below.
20. Still further, there would be a presumption of a registered Will being voluntary unless contrary is proved. The onus clearly would be on the person who alleges the Will to be not voluntary. For this purpose, reference may be made to the judgment of the Supreme Court in [ENTITY] (deceased by [PRECEDENT] wherein in para-20, it has been held as under:-
"When the Will is alleged to have been executed under undue influence, the onus of proving undue influence is upon the person making such allegation and mere presence of motive and opportunity are not enough."
21. In the present case, the trial Court, has, again, wrongly placed onus of proving the Will to be Voluntary on the appellants. The onus clearly rested on the plaintiff-respondent to prove the same by leading evidence. In the present case, neither any undue influence or coercion by any one was pleaded in the pleadings nor any evidence led to that effect. However, on the basis of arguments raised before the trial Court, pressure or coercion is sought to be attributed to [ENTITY] husband of [ENTITY] by drawing an adverse inference from the fact that he had not filed any written statement nor had he appeared in the witness box. Such an inference is totally unwarranted. It has been correctly pointed out that in the absence of any allegation of coercion on the part of [ENTITY] in the pleadings, non-filing of a written statement by him could not give rise to such an inference at all.
22. Still further, the only role ascribed to [ENTITY] is that he had accompanied [ENTITY] at the time of execution of the Will. This had not been denied by either the defendants or by [ENTITY]. However, this fact by itself, in the absence of any allegation or evidence, cannot lead to the inference that he had exerted any pressure on [ENTITY] to make the Will.
23. In Smt. [PRECEDENT]'s case (supra), it was held that mere active participation in the execution of the Will by the beneficiary by itself does not create doubt regarding testamentary capacity of the executor or the genuineness of the Will. If any coercion is alleged, the same has to be proved. In the present case, [ENTITY] is not even the beneficiary of the Will although his wife is. However, there is no allegation that he has actively participated in the execution of the Will much less an allegation of coercion. Even the courts below have not recorded any positive finding of any coercion on his part. The effective finding is that the appellants have failed to prove the Will to be voluntary which, as already observed, is a finding based on misapplication of rules of evidence by wrongly placing onus on the propounders of the Will. If the plaintiff were to make such an allegation, he ought to have pleaded the same in the pleadings and proved it by leading evidence. This had clearly not been done. Thus, the second finding of the Courts below that the Will has not been proved to be voluntary, is also not sustainable.
24. From the above discussion, it is crystal clear that the execution of the Will is not in question. It stands duly proved. In the absence of any evidence to show that [ENTITY], the testator, was not of a sound and disposing mind at the time of execution of the Will or that he had made the Will under some pressure or coercion from anyone, the Courts below were not justified in holding that the Will was not valid and deciding issue No. 3 against the appellant-defendants. Accordingly, the findings of the trial Court on issue No. 3 are set aside and the issued is decided in favour of the defendants.
25. Before parting, I may also refer to the other circumstances on the basis of which the Will has been doubted.
26. The objections about non-production of [ENTITY], one of the attesting witnesses or there being no witness from the same village or area do not survive in view of the fact that the execution of the Will stands duly proved and even accepted by the Courts below. It has not even been challenged before me. Even otherwise, as per [SECTION] of the [ACT], production of only one witness in support of the execution is sufficient whereas in the present case two of the three attesting witnesses have been produced. In [PRECEDENT]'s case (supra), only one of the three attesting witnesses of the Will was examined. The trial Court as well as the High Court took the view that the Will had duly been executed. This view was affirmed by the Apex Court.
27. Similarly, there is no requirement in law that the witnesses should be from the same locality or the same village. In [PRECEDENT]'s case (supra), this Court has held that merely because the witnesses of a Will are from a different village does not itself constitute a suspicious circumstances particularly when they were not shown to be interested in the plaintiff or biased against the defendant. In the present case also, there is no finding that the witness were biased against the respondent-plaintiff or were interested in the appellant-defendant.
28. Similarly, in [PRECEDENT]'s case (supra), it has been held by the Apex Court that the fact that a Will has not been witnessed by a person of the same locality, does not normally constitute a suspicious circumstances.
29. The finding of the Courts below that failure of the testator to give any reason for making the Will only in favour of two daughters of his brother [ENTITY] by excluding other heirs was also a suspicious circumstances, is clearly based on a wrong factual premise. A perusal of the Will shows that [ENTITY] had clearly stated that since his said two nieces looked after him, he had a special affection for them. It is also relevant to note that [ENTITY] had no Class-I heirs. He was only survived by 12 children of his brothers; [ENTITY] and [ENTITY]. [ENTITY] had [ENTITY] had 5 children including [ENTITY] and [ENTITY], the beneficiaries of the Will. No other legal heir except [ENTITY], plaintiff, had challenged the Will.
30. It may also be mentioned that the defendants in the written statement had claimed t hat [ENTITY] had contracted a [ENTITY] marriage with [ENTITY]. This fact was, however, denied by the plaintiff in the replication and was not further pressed and no issue in this behalf had been framed. Thus, exclusion of [ENTITY] from the Will could not be treated as a suspicious circumstances as the marriage itself was not proved. At any rate, if [ENTITY] were to be treated as wife of [ENTITY], which fact has been vehemently denied even by the respondent-plaintiff, she, being Class-I heir, would be entitled to succeed to the entire estate of [ENTITY] in exclusion of plaintiff, who was merely a Class-II heir. It is for this reason, counsel for the respondent had conceded before me that exclusion of [ENTITY] could not be a ground for doubting the Will.
Consequently, the suit of the plaintiff is dismissed and the appeal is allowed. No costs.