Serial No.01 Regular List HIGH COURT OF MEGHALAYA AT SHILLONG RFA No.2/2014 Date of Order: 20.09.2018 [PRECEDENT]: Hon'ble Mr. Justice [ENTITY], Chief Justice Appearance: For the Petitioner/Appellant(s) : Mr. [ENTITY], Adv For the Respondent(s) : Mr. [ENTITY], Sr.Adv with
Mr. [ENTITY], Adv
i) Whether approved for reporting in Yes Law journals etc.:
ii) Whether approved for publication in press: No
1. Appeal under [SECTION] of the [ACT] is against the order dated 10.11.2014 passed by the learned Judge, District Council Court, Shillong, in [CASE NUMBER], where-under, petition seeking probate of the Will has been dismissed.
2. Appellants are sisters and brother of the deceased (L) [ENTITY]. Deceased was serving as Registrar of MeSEB, Lumjingshai, Mawroh, Shillong. She has left behind the following debts, securities and other properties:-
A. (i) D.C.R.G. - Rs.2,32,000/- (ii) Leave Encashment for 170 Days at Rs.14,925/- plus D.A. of Rs.1,[SECTION]0/- - Rs.95,569/- (iii) Family Pension - Rs.7,463/-
(iv) Pay for the month of Feb, 2003 - Rs.12,999/-
(v) Pay for the Month of March, 2003 - Rs.11,946/-
(vi) Pay for the month of April, 2003 - Rs.15,249/-
Total - Rs.3,75,225/-
(Rupees three lakh seventy five thousand two hundred twenty five) only.
B. House and land at Lumbasuk, Lawjynriew, Nongthymmai, Shillong-14. The land in which this House is standing is bounded as follows:-
NORTH - Approach Road to Plot No.1 64ft. EAST - Land of the Owner [ENTITY] 82ft SOUTH - Land of the Owner [ENTITY] 45ft WEST - Lumpyngngad Road 75ft.
3. The deceased (L) [ENTITY] has executed a Will on 06.04.2003 at Ganesh Das Hospital where she was admitted for treatment.
4. Being ignorant about probating of Will appellant No.2 applied for grant of succession certificate regarding debts and securities. In addition filed a suit for declaration regarding the house and land as referred to above. Finally, appellants filed the petition before the District Council Court for probating the Will.
5. Respondent No.1-[ENTITY], respondent No.2 claiming to be adopted daughter and respondent No.3 another sister of (L) [ENTITY] have filed the reply alleging therein:-
(a) that regarding debts and securities, [CASE NUMBER] (for grant of succession certificate) is pending before the Court of Judge, District Council Court, Shillong whereas, regarding land and house situated at Lumbasuk, Lawjynriew, Nongthymmai, Shillong, [CASE NUMBER] is pending before the P.O., S.D.C.C., Shillong;
(b) that the purported Will is a manufactured document prepared solely to grab the properties of the deceased. The signature appearing on the purported Will is not of the deceased; and
(c) It has also been projected that the petition is not maintainable, the appellants neither have locus standi nor cause of action, the petition is barred by the principles of estoppel, waiver, acquiescence and res judicata. Finally, have prayed for dismissal of the petition.
6. The learned Judge, District Council Court finding the parties at variance has framed initially as many as 10 issues and later on, three additional issues to be referred as Issue Nos.11, 12 and 13. The issues so framed are as under:-
1. Whether the instant case is maintainable?
2. Whether the petitioners have locus standi to file the instant case?
3. Whether the petitioners have any cause of action to file the instant case?
4. Whether the instant case is barred by the principles of estoppel, waiver and acquiescence?
5. Whether the case is barred by the principles of res judicata?
6. When deceased (L) [ENTITY] expired?
7. Whether the properties left behind by the deceased in paragraph 2-A and 2-B of the petition are the subject matter of S/C Misc.
Case No.20 of 2003 and [CASE NUMBER] which are still pending for disposal?
8. Whether (L) [ENTITY], left any Will in favour of the petitioners? If so, whether the same is a manufactured one?
9. Whether the opp. Party No.1 is the [ENTITY] of the deceased? If so, whether any issue was born to them?
10. To what other relief (s) are the parties entitled to?
11.Whether the plaintiff/petitioners are entitled to grant of probate of Will dated 06.04.2003?
12. Whether the Will dated 06.04.2003 is the last will of [ENTITY] which was duly made in presence of the witnesses therein?
13. Whether the plaintiff/petitioners are the beneficiaries of the WILL dated 06.04.2003?
7. The appellants (petitioners therein) in support of their case have produced and examined five witnesses which include appellant No.1 (PW1) and appellant No.2 (PW2) and two witnesses to the [ENTITY] namely, Shri [ENTITY] (PW3) and Shri [ENTITY] (PW4).
8. The respondents in support of their case have produced and examined three witnesses which include respondent No.1 (DW1), Shri [ENTITY] (DW2) and Shri [ENTITY] (DW3) both friends of respondent No.1 (DW1).
9. The learned Judge, District Council Court, Shillong after reproducing the depositions of the witnesses of either side has taken up the issues for determination beginning with issue No.7. Issue No.7 reads as under:-
ISSUE No.7 Whether the properties left behind by the deceased in paragraph 2-A and 2-B of the petition are the subject matter of [CASE NUMBER] and [CASE NUMBER] which are still pending disposal.
10. The finding regarding this issue No.7 has been returned to the effect that the properties left behind by the deceased as mentioned in paras 2-A and 2-B of the petition are the subject matter of S/C Misc.
Case No.20 of 2003 and [CASE NUMBER] which are still pending for disposal. The finding returned on this issue is not disputed.
11. Next learned Judge, District Council Court has taken up issue No.6 i.e. when did the deceased (L) [ENTITY] expire? The finding has been returned i.e. she has expired on 26.04.2003 same is not disputed.
12. After deciding the issues No.6 and 7, issue No.8 has been taken up which is vital as being the centre of the case same read as under:-
Issue No.8 Whether (L) [ENTITY] left any Will in favour of the petitioners? If so, whether the same is a manufactured one?
13. On this issue learned Judge, District Council Court after referring to the evidence has returned a self conflicting finding with confusion worst confounded. While referring to the document Ext.4 ([ENTITY]), learned Judge, District Council Court has noticed that in the said document the words handed over is mentioned. In his opinion, if any property has been handed over to somebody, the question of executing a Will no longer arises as that particular property has been transferred. Therefore, on careful perusal of the said document Ext.4, it is found that the said document is not a Will. After referring to the statement of PW1 (appellant No.1) in the opinion of the learned Judge, District Council Court, the deceased has never executed any Will in favour of the petitioners as the said document Ext.4 is a deed of transfer as admitted by PW1.
14. Learned Judge, District Council Court has also noticed that the document Ext.4 as stated by PW1 (petitioner No.1 therein) in original was discovered by her recently while checking the papers and belongings of the deceased in her house. When according to the statement of PW1, she never visited the house of the deceased at Lumbasuk, Lawjynriew, Nongthymmai, shillong. That being so, in the opinion of the Judge, District Council Court, it could not be possible for PW1 to discover the said Ext.4 ([ENTITY]) after more than one year from the date of death of the deceased therefore, has observed that even if Ext.4 is a Will same is a manufactured one.
15. What emerged there-from is that regarding the document, the learned Judge, District Council Court has recorded three findings that:-
(i) the deceased has never executed any Will;
(ii) the document Ext.4 is a deed of transfer not a Will;
(iii) even if Ext.4 is a Will same is manufactured one.
16. The findings recorded clearly suggest that the document Ext.4 exist whether same can be treated as deed of transfer or can be treated as a Will is the moot question for determination. The possession of the document, evidence and findings recorded by the Court below requires elaborate consideration.
(a) The document Ext.4 is a declaration made by the testator (L) [ENTITY] in Khasi language, in the hospital, where she was undergoing treatment, in the presence of two witnesses PW3 and PW4. The said document has been translated into English language by Shri [ENTITY] in tune with [SECTION] of the [ACT] and the translation has been certified to be correct by the said person. For facility of reference, the translated copy of the document is reproduced hereunder:-
"English Translation Copy of Will I have handed over this house to my three (3) elder sisters and brothers, that they will take over all my properties, belongings, that they will look after and take proper care of them all in all respects as all are mine as I am feeling uncertain of my own life as at any moment of time I may depart from this world.
This has been written in our presence in Hospital.
Sd/- Illegible Sd/- 6/4/03 [ENTITY] CERTIFICATE
I, Shri [ENTITY] Son of (L) Shri [ENTITY] aged about is 39 years, Nongthymmai, Pohktih, East Khasi Hills District, Shillong do here by declare that I read and perfectly understand the language and character of the original, and that the above is true and accurate translation thereof.
Signature of [ENTITY]"
(b) The two witnesses to the said document PW3 (Shri [ENTITY]) and PW4 (Shri [ENTITY]) in their deposition before the Court below have stated that (L) [ENTITY] was admitted in Ganesh Das hospital and expired on 25.04.2003. During her treatment at the hospital, the appellants were taking care of her and they performed her last rites at their own expenses.
They have further stated that the deceased was admitted in the hospital when she executed the Will dated 06.04.2003 bequeathing all her properties in favour of her sisters and brother, as she felt that she will not live long, her [ENTITY] might grab the property which was acquired and purchased by her. They have also qualified to be the witnesses to the [ENTITY] as executed by the deceased. They have also qualified that Will (document) was written by the deceased in her own handwriting in their presence and signed the same. Thereafter, they being the two witnesses also signed. They have further qualified that the deceased was in the sound state of mind fully aware as to what she was doing and what will be the effect of executing the Will. They have further stated that the deceased since 1987 had cohabited with the defendant No.1 (respondent No.1 herein) but they had no issue born. The defendant No.1 left the deceased in the year 2000 and never came back to live with the deceased nor came to see her when she was ailing in the hospital.
(c) The credibility of these two witnesses was not shaken by the respondents during their cross examination. Therefore, the execution of the document Ext.4 has been fully proved by PW3 and PW4.
(d) PW1 sister of the deceased (appellant No.1) in her deposition before the Court has made it clear that the deceased died on 26.04.2003 in Ganesh Das hospital. She along with her sister and brother performed her last rites. When the deceased was in the hospital, she had made up her mind to bequeath her movable and immovable properties in favour of her sisters and brother and also informed her (PW1) that she will make a Will very soon. Accordingly, executed a Will on 06.04.2003 in her own handwriting in presence of the son of the petitioner and also in presence of the uncle of the petitioner i.e. Shri [ENTITY] and Shri [ENTITY]. Further, she has stated that the deceased in the hospital was in a sound state of mind and she had expressed her wish to execute the Will. In the cross examination of the defendants (respondents herein), she has qualified that the document is not manufactured, document was written and signed by the deceased.
(e) Likewise, PW2 Shri [ENTITY] (petitioner No.3) has also made it clear in his deposition that the deceased was admitted in Ganesh Das hospital on 01.04.2003 where she died on 26.04.2003. Smti. [ENTITY], Shri [ENTITY] and Smti. [ENTITY] told him that the deceased while admitted in the hospital had executed a Will dated 06.04.2003 in favour of her sister and brother. The deceased had cohabited with the defendant No.1 since 1987 but the defendant No.1 left the deceased in the year 2000, never came back to live with her and even did not come to see her in the hospital. The deceased was the absolute owner of the properties which she had purchased out of her income as such, was a self acquired property. In the cross examination of the respondent, his credibility was not impeached instead she supported what she stated in the examination-in-chief.
(f) PW5 Smti. [ENTITY] stated that the deceased was admitted at Ganesh Das hospital on 01.04.2003 and died on 26.04.2003. During her treatment in the hospital, she was taken care of by her sister and brother, last rites were also performed by them. The deceased while admitted in the hospital executed a Will bequeathing all her properties as she felt that she will not live long and that the defendant No.1 might grab the property which was purchased by her. The said witness also made it clear that the deceased was living with the defendant No.1 since 1987 they had no issue of their own. The defendant No.1 left the deceased in the year 2000 and never came back nor visited her in the hospital where she was admitted.
17. The witnesses No.1 to 5 have amply proved that the properties as referred to above in the petition belonged to the deceased. When she fell ill was admitted in Ganesh Das hospital on 01.04.2003 where she died on 26.04.2003. While admitted in the hospital she had shown willingness to bequeath all her properties in favour of her sisters and brother. Thereafter, has executed a [ENTITY] in presence of PW3 and PW4 who have clearly stated about the genuineness of the said document ([ENTITY]).
18. Learned Judge, District Council Court in the process of appreciating the import of the document and applicable law has hoodwinked the issue by blowing hot and cold i.e. opining (i) that deceased never executed the Will; (ii) that the document Ext.4 is a transfer deed and (iii) if it is to be taken as a Will same is manufactured. From such findings it is quite evident that existence of the document Ext.4 ([ENTITY]) is not denied.
19. Execution of the document by the deceased in her own handwriting and bearing her signature is proved. The three witnesses of the respondents have no where stated that the document was not in the handwriting of the deceased or that the document did not bear the signature of the deceased. When it is so, existence of the document cannot be denied that is why the learned Trial Court has opined that the document is a transfer deed.
20. It shall also be necessary to refer to the relevant depositions of the witnesses produced by the defendants (respondents herein).
DW1 Shri [ENTITY] [ENTITY] of the deceased has stated that the deceased breathed her last on 26.04.2003 in Ganesh Das hospital. The deceased lived and cohabited with him. The land and house was jointly purchased and constructed by him and deceased. He used to look after and take care of the deceased and incurred all the expenses for her treatment. Regarding the Will, he has stated that the alleged Will dated 06.04.2003 is a manufactured document because the document in true sense is not a Will. The deceased was not in a position to write or execute any document. But in the cross examination when he was specifically asked about the document regarding the property, he clearly stated that he had not produced any document nor statement of the bank so as to show that he had contributed regarding purchase and construction of the property. Repeatedly has been asked to show any document or receipt so as to show that he had contributed for purchase of the land which he could, not nor he could produce any receipts or medical bills so as to show that any expenses was incurred by him on the treatment of his deceased wife. However, he has stated that his wife never told him about the Will. Regarding manufacture of Will he has stated that the word manufactured used by him in examination-in- chief is his opinion.
From his statement, it is clear that he has not been able to prove that he visited the hospital, or incurred the expenses or he had contributed for purchase of the property in question or for construction of the house. He failed to refute the handwriting and signature of the deceased on document Ext.4 (Will).
21. Whereas on the other hand, the witnesses produced by the petitioners (appellants herein) have amply proved that DW1 [ENTITY] of the deceased right from the year 2000 had left her and never visited her nor visited her in the hospital when she was ailing.
22. DW2 and DW3 who are the friends of DW1 (respondent No.1) too have not supported the stand of the respondents regarding visit of respondent No.1 to the hospital or incurring expenditure or regarding contribution vis vis purchase of the property.
23. From careful scrutiny and proper appreciation of the statements of the witnesses produced by both sides, it is amply proved that the document Ext.4 was executed by the deceased declaring that the entire property should go to the appellants. There is no question of manufacturing of the document, the document is as it is. The opinion of the learned Judge, District Council Court that the document is a transfer deed is totally illogical and without any legal backing. It has to be made clear that the transfer of property other than by way of Will is governed by the provisions of the [ACT] i.e. [SECTION] pertains to sale and [SECTION] to gift. The document neither falls within the ambit of [SECTION] of the [ACT]. Even otherwise, if it would have been, so then it required compulsory registration in terms of [SECTION] of the Registration Act, 1[SECTION]8. Admittedly, the document is not registered. Therefore, cannot be termed as a deed of transfer as wrongly opined by the Judge, District Council Court?
24. In any case, now the question is whether document Ext.4 constitutes a Will. In this behalf, [SECTION], [SECTION] and [SECTION] of the [ACT] are relevant to be quoted:-
63. Execution of unprivileged Wills. - Every testator, not being a soldier employed in an expedition or engaged in actual warfare, 1[or an airman so employed or engaged,] or a mariner at sea, shall execute his Will according to the following rules:
(a) 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.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.
(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person;
and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.
[SECTION]. Wording of Will. - It is not necessary that any technical words or terms of art be used in a Will, but only that the wording be such that the intentions of the testator can be known therefrom.
[SECTION]. Words describing subject refer to property answering description at testator's death. - The description contained in a Will of property, the subject of gift, shall, unless a contrary intention appears by the Will, be deemed to refer to and comprise the property answering that description at the death of the testator.
25. [SECTION] of the [ACT] provides as to how execution of document (Will) is to be proved, same is quoted hereunder:-
68. Proof of execution of document required by law to be attested. If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
[Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1[SECTION]8 (16 of 1[SECTION]8), unless its execution by the person by whom it purports to have been executed is specifically denied.]
26. In terms of [SECTION] of the Registration Act, 1[SECTION]8, registration of the document (Will) is optional.
27. While going through the recitals of the document Ext.4, it is clear that the testator has made her intention clear about bequeathing her entire property in favour of the appellants. The contents of the document being in the handwriting of the deceased and bearing her signature has been fully proved. The respondent in their evidence have not been able as referred to above to refute the same. The respondents have failed to adduce any evidence, oral or documentary to dispute the existence of the document and its nature of being a Will. However, the learned Judge, District Council Court has opined that if the document is taken as a Will, same is manufactured how so is not forthcoming from the evidence, such a finding is perverse. Learned Judge, District Council Court while referring to the statement of DW1 has mentioned that DW1 in his cross examination further reaffirmed as under:-
It is a fact that my wife never told me that she made a Will of her properties in favour of her sister and brother that she hever made it. It has not been correctly quoted, because in his statement what he has exactly stated is as under:-
It is a fact that my wife never told me that she never made a Will of her properties in favour of her sister and brother that she never made it. Learned Judge, District Council Court while quoting what DW1 reaffirmed in his cross examination has omitted the word never appearing therein as highlighted hereinabove.
The word never' used in first line and second line give rise to a positive, meaning thereby that she made a Will.
28. It is a settled law that it is the propounder who has to discharge onus by proving the document (Will) to have been validly executed. It is also to be proved by the propounder that the testator had signed the Will and put her signature out of her own free will. In case there is any suspicion that has to be removed. The propounders (appellants) have fully proved by leading their evidence before the Court below that the deceased was in a sound state of mind, was able to execute the document and have also fully proved that the document (Will) is in the handwriting of the deceased and bears her signature, same by no means has been impeached by the respondents before the Court below.
29. Proving or disproving of the document depends upon the facts and evidence of each case. In the case in hand, the appellants have discharged onus. They have also categorically proved that the respondent No.1 was not living with the deceased, they had no issue. From the year 2000, the respondent No.1 had left the deceased and even did not attend her when she was admitted in Ganesh Das hospital. In this behalf, it shall be quite advantageous to quote paras 33 and 34 of the judgment rendered by the Hon'ble Apex Court in the case of [PRECEDENT]
33. 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 [PRECEDENT]). Subject to above, proof of a Will does not ordinarily differ from that of proving any other document.
34. 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 [PRECEDENT])
30. The appellants, as stated in para 28, have proved in tune with the mandate of paras 33 and 34 of the judgment as quoted.
31. A Will means a legal declaration of the intention of the testator with regard to his property which he/she had meant to bequeath after her/his death. Going by the recitals of the Will executed by the deceased, the intention of the testator is clear regarding bequeathing her properties in favour of the appellants. In this behalf, it shall be quite relevant to quote paras 26 and 27 of the judgment rendered by the Hon'ble Supreme Court in the case of [PRECEDENT]
26. The learned counsel also relied on the decision of the Bombay High Court in [PRECEDENT]. At AIR p.196 of the Report, the Bombay High Court decided:
In this connection it is necessary to remember certain general principles that attach to wills. A will speaks from the date of death of the deceased. There might be accretions to or diminutions from the property of the testator as they existed at the date of the will. Another principle to remember in this connection is that a testator is presumed to dispose of all the property that he may die possessed of and not only what he possessed at the date of the will.
27. Reliance was last placed on the decision of the Nagpur High Court in [PRECEDENT].
Explaining the purport of [SECTION], the High Court observed that [SECTION] is in accordance with [SECTION] of the [ACT]. According to such principle the will has to be construed with reference to the real estate and personal estate comprised in it to speak and to take effect, as if it had been executed immediately before the death of the testator, and as if the condition of things to which it refers in this respect before the death of the testator unless contrary intention appears by the Will (AIR p.165 of the report).
The decision in [ENTITY] was based on the Madras High Court decision in [PRECEDENT].
32. Keeping in view of the document (Will) and the evidence as adduced by either side, applying the principles enunciated by the Apex Court as referred to above in para 29 and what has been held in the case of [PRECEDENT], character and nature of the document being [ENTITY] is fully proved. It shall be advantageous to quote [SECTION] of the said judgment:-
(5) It is one of the cardinal principles of construction of Wills that to the extent that it is legally possible effect should be given to every disposition contained in the Will unless the law prevents effect being given to it. Of course, if there are two repugnant provisions conferring successive interests, if the first interest created is valid the subsequent interest cannot take effect but a court of construction will proceed to the farthest extent to avoid repugnancy, so that effect could be given as far as possible to every testamentary intention contained in the Will.
33. The judgments as relied upon in support of contentions of the respondents in view of the peculiar facts and circumstances are of no help to them. The contention of learned counsel for the respondents is that the application for grant of succession certificate and title suit regarding the property are still pending, therefore, the Will cannot be probated. In this context, following portion from para 2 of the judgment rendered in the case of [PRECEDENT] is relevant to be quoted:-
2. The Court of Probate is only concerned with the question as to whether the document put forward as the last will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution the testator had sound disposing mind.
34. Next it was contended by the learned counsel for the respondents that onus of proof of the Will is on the propounder. Same is true, appellants have discharged the onus, because they proved the Will to have been written by the testator in her own hand and bears her signature, which position has not been refuted, as in detail discussed hereinabove.
35. Learned counsel next contended that the Will is not genuine as it has come into existence under suspicious circumstances. He would submit that initially the appellant filed an application for grant of succession certificate regarding the debts and securities, then, also filed a suit for declaration regarding land and house would mean that initially Will/document was not in existence. After a period of one year, it has been projected that on checking the belongings of the deceased, the document was found, as such, petition was filed for probating the Will means the document is not free from suspicion. In this connection placed reliance on the judgment rendered by the Hon'ble Apex Court in the case of [PRECEDENT]. Para 3 of the said judgment is relevant to be quoted:-
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] of the [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 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 legitimate suspicion before the document can be accepted as the last will of the testator. ([PRECEDENT]; [PRECEDENT]; [PRECEDENT])
36. In the judgment rendered by the Apex Court in the case of [PRECEDENT], it has been held that suspicion has to be removed. Para 14 of the judgment is relevant to be quoted:-
14. In terms of [SECTION] of the Act, although it is not necessary to call more than one attesting witness to prove due execution of a Will but that would not mean that an attested document shall be proved by the evidence of one attesting witness only and two or more attesting witnesses need not be examined at all. [SECTION] of the Act lays down the mode of proof. It envisages the necessity of more evidence than mere attestation, as the words at least have been used therein. When genuineness of a Will is in question, apart from execution and attestation of Will, it is also the duty of a person seeking declaration about the validity of the Will to dispel the surrounding suspicious circumstances existing if any. Thus, in addition to proving the execution of the Will by examining the attesting witnesses, the propounder is also required to lead evidence to explain the surrounding suspicious circumstances, if any. Proof of execution of the Will would, inter alia, depend thereupon.
37. Applying the principles as have been evolved the position of the document Ext.4, its existence and nature is supported i.e. it is proved beyond doubt that it was executed by the testator written in her own handwriting and bears her signature, there is no suspicion regarding genuineness of the document. The document was not only signed by the deceased but was also written by her. Her handwriting has not been denied instead same has been proved by the appellants nothing contrary to the same has brought on record by the respondents except that after one year from the death of the deceased, it was sought to be probated, hence is suspicious. Suspicion pales into insignificance, because the existence of the document Ext.4 is not denied. Its execution by the deceased, more so proved to have been in the handwriting of the deceased and bearing her signature dispel any suspicion. Suspicion about the Will in given facts and circumstances is imaginary. Therefore, there is no question of suspicion or manufacturing.
38. As discussed hereinabove in para 37 that there is no suspicion about the existence of the document. Its execution by the testator has been proved by the appellants, the evidence produced in support whereof has not been rebutted, the judgment as relied upon by the learned counsel for the respondents is of no help to him.
39. Another contention of the learned counsel for the respondents is that the suit instituted by the appellants regarding title of the property is pending therefore, there is no requirement of probating the Will. Supporting this submission placed reliance on the judgment titled [PRECEDENT]. Para 8 and portion of para 11 of the judgment are apposite to be quoted:-
8. In our view, the High Court as well as the Civil Court have acted illegally and with material irregularity in the exercise of their jurisdiction in dismissing the suit on the aforesaid preliminary issue by holding that after the probate having been granted by the competent probate court and affirmed by this Court, the Civil Court had no jurisdiction to proceed with the suit.
11. It is well settled law that the functions of a probate court are to see that the Will executed by the testator was actually executed by him in a sound disposing state of mind without coercion or undue influence and the same was duly attested. It was, therefore, not competent for the probate court to determine whether late [ENTITY] had or had not the authority to dispose of the suit properties which he purported to have bequeathed by his Will. The probate court is also not competent to determine the question of title to the suit properties nor will it go into the question whether the suit properties bequeathed by the Will were joint ancestral properties or acquired properties of the testator.
(emphasis added)
40. The law as laid down clearly cover the case of the appellants, probating the Will is not to affect the determination of civil suit regarding title, when it is so, conversely, petition seeking probate, even when suit for title is pending, is not barred.
41. The finding on issue No.8 by the learned Judge, District Council Court is not found in consonance with law and evidence led by both parties, as such being unsustainable is upset.
42. The findings on other issues i.e. issues No.1, 2, 3, 4 and 5 have been returned in favour of the respondents (defendants) mainly on the basis of the finding returned on issues No.8 which finding stand reversed and decided against the respondents. Issue No.1 pertains to maintainability of the petition, Issue No.2 pertains to locus standi of the appellants and Issue No.3 pertains to the cause of action. The finding returned on issue No.8 takes care of these three issues because once it is held that document Ext.4 is a Will in favour of the appellant, locus to file petition for probate and its maintainability and cause cannot be denied. Issue No.4 pertains to estoppel, waiver and acquiescence, whereas, Issue No.5 pertains to the applicability of res judicata. In the stated facts and circumstances, there is no question of estoppel learned Trial Court has simply observed that the document is not a Will therefore, issue is decided against the appellants. Furthermore, there is no question of res judicata as between the parties, no case having similar issues for determination has been decided finally. Issues No.1 to 5 being linked with the finding vis vis issue No.8 therefore, are also decided in favour of the petitioners (appellants). Whereas, on proper appreciation of evidence as referred to above, finding on issue No.8 stand returned in favour of the appellants (petitioners) by holding that the document Ext.4 is a Will validly executed by the (deceased) testator in favour of the testatee (appellants).
43. Learned Judge, District Council Court has not returned any finding on the additional issues i.e. Issues No.11, 12 and 13 which are as under:-
11.Whether the plaintiff/petitioners are entitled to grant of probate of Will dated 06.04.2003?
12. Whether the Will dated 06.04.2003 is the last will of [ENTITY] which was duly made in presence of the witnesses therein?
13. Whether the plaintiff/petitioners are the beneficiaries of the WILL dated 06.04.2003?
44. The findings as recorded on proper appreciation and law vis vis issue No.8 has clear bearing on these three issues. The document Ext.4 is held to be a Will validly executed and being the last Will of (L) [ENTITY] which she has made in presence of two witnesses therein. The beneficiaries of the Will being the appellants as quoted in the finding recorded vis vis issue No.8 therefore, has to be probated, that being so issues No.11 to 13 are also decided in favour of the appellants (petitioners before the Court below) against the respondents (defendants).
45. In view of the above conclusions and findings, the order impugned dated 10.11.2014 dismissing the application, seeking grant of probate of the Will under the [ACT], is set aside. The application seeks grant of probate is allowed, the Will having been validly executed and being genuine, has to be probated as such probated.
46. The appeal succeeds and is disposed of as above. Copy of the judgment be sent to the District Council Court, Shillong for information.
([ENTITY]) Chief Justice [ENTITY] 20.09.2018 "Lam AR-PS"