IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No. 488 of 2000. Judgment reserved on: 15.09.2010. Date of decision: November 10,2010 Biasan Devi and others. ….Appellants. Versus Parkash and others. ….Respondents. Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 Yes. For the appellants : Mr. Bimal Gupta, Advocate. For respondents : Mr. Arvind Sharma, Advocate. Surinder Singh, J : 1. This second appeal is directed by legal representatives of Kanshi Ram defendant against the respondent-plaintiffs, which was admitted for hearing on 27th October, 2000, on the following substantial questions of law: (i) Whether the learned Ist Appellate Court has misconstrued, misinterpreted the pleadings, documentary as well as oral evidence and has come to the wrong conclusion by decreeing the suit of the respondents/plaintiffs? (ii) Whether the learned Ist Appellate Court has erred in decreeing the suit of the plaintiffs by holding the 1 Whether the reporters of Local Papers may be allowed to see the judgment ? - 2 - Will Ex.D1 as not a genuine one in the absence of any challenge of the plaintiffs regarding the genuineness and execution of Will in appeal before the Ist Appellate Court? 2. The estate of Santu son of Gauri Ditta is in dispute in the instant appeal. 3. The brief facts giving rise to the instant appeal can be summarized thus. The predecessor -in-interest of the respondents herein to be referred as ‘the plaintiffs’ had filed a suit for possession against the predecessor-in-interest of the appellants Kanshi Ram (deceased) and the legal representatives of deceased Santu (proforma respondents No.8(a) to 8 (d)), hereinafter referred to be as ‘the defendants’, in respect of 1/3rd share in the estate of Santu aforesaid. 4. The plaintiffs averred in their plaint that late Shri Santu was an old-man and was not capable of knowing his good or bad because of his illness, mental faculty having effected and had lost his senses, three years prior to his death. He was kept by defendant Kanshi Ram (now deceased) under his influence and in absence of the plaintiffs, he manipulated his Will, which was in fact never - 3 - executed by him as he was not capable of its execution. The Will propounded by the defendant is alleged to be a forged document and created by illegal means. Since the parties to the lis are Brahmin by caste, thus governed by customary law in the matter of succession and alienation. Under this custom, ancestral property could not be bequeathed by Will by Santu, as such, sought the relief of possession qua 1/3rd share each. 5. The suit was resisted and contested only by Kanshi Ram defendant-brother. He though admitted that the parties to the lis are the legal heirs of said deceased Santu, but asserted the Will in his favour, which was allegedly executed by Santu in a sound disposing state of mind. According to him, the plaintiffs being his sons, neither cared for Santu nor rendered any service. They always remained outside their village, while in service. Said Will was allegedly got registered by him. Said defendant denied the application of customary law and also the ancestral nature of the property and prayed for the dismissal of the suit. - 4 - 6. On the pleadings of the parties, the following issues were framed: 1. Whether Santu deceased executed a valid Will in favour of defendant No.1? …OPD-1. 2. Whether the parties and Santu deceased are governed by custom, and what that custom is ? …OPD. 3. Whether property in suit is ancestral of the plaintiff qua Santu deceased? …OPP. 4. If issues No.2 and 3 are proved, whether the Will is valid and binding on the plaintiff? …OPD. 5. Relief. 7. Plaintiffs led their evidence, but the defendant did not produce any evidence despite repeated opportunities, as such, his evidence was closed and suit filed by the plaintiffs was decreed for possession of 1/3rd share in the total suit land with costs vide judgment and decree passed on 4th May, 1978. In appeal, learned District Judge confirmed the judgment and decree passed by the learned Sub Judge, thus defendant Kanshi Ram filed RSA No.122 of 1981 before this Court, which was allowed, vide its judgment dated 27.8.1991. The judgments and decree passed by the Courts below were set-aside including the order passed by trial Court closing the evidence of the defendant, consequently, the suit - 5 - was remanded to the trial Court for its disposal in accordance with law after affording an opportunity to the defendant to lead his evidence. 8. Thereafter, the defendant led his evidence. After hearing the parties and complete trial, learned trial Court held that the suit land was ancestral in nature deceased Santu had executed a valid Will in favour of defendant Kanshi Ram. The learned trial Court also observed that though the custom had been prevailing in this part of the State prohibiting the alienation of ancestral property by way of such a Will, but it stood abrogated, as per the provision of Section 30 read with Section 4 of the Hindu Succession Act, 1956. Deciding all the issues in favour of the defendant, dismissed the suit of the plaintiffs. 9. Feeling aggrieved and dissatisfied by the impugned judgment and decree, Civil Appeal No.90 of 1992, was filed by the plaintiffs before the learned District Judge. It was allowed and the learned first appellate Court rejected the Will in question as having been surrounded by suspicious circumstances and decreed the suit holding that the property left by Santu would be inherited by his legal heirs. - 6 - 10. During the pendency of the main suit before the learned trial Court, defendant No.1 Kanshi Ram had died and the appellants aforesaid were brought on record as his legal representatives. Plaintiff No.2 Hari Chand also died during the pendency of the appeal before the first Appellate Court and his legal representatives were also brought on record. 11. Defendant-appellants felt aggrieved by the judgment and decree dated 1.7.2000, passed by the first Appellate Court in Civil Appeal No.90 of 1992, hence the present appeal. 12. In the instant case, the entire controversy boils around the validity of Will Ex.D1, which has been disbelieved thus rejected by the first appellate Court. 13. Shri Bimal Gupta, learned counsel for the appellant forcefully argued that the Will Ex.D1 stands duly proved to be a valid and genuine document having been executed by Santu deceased in full possession of his power and senses. It was a registered document. Learned first appellate Court without any reasonable and cogent ground wrongly came to the conclusion that it was surrounded by suspicious circumstances. Though the deceased was - 7 - suffering from minor illness, a catheter was fixed for his urination, but his mental faculty was alright and not affected in any way, but while appreciating the evidence, the first appellate Court completely ignored the evidence of Sub-Registrar DW7 Shri O.P. Soni to the effect that the deceased at the time of execution of Will was in a fit state of mind. The learned counsel put his reliance on AIR 1964 SC 529, AIR 1977 SC 74, AIR 1995 SC 1684, AIR 1995 P&H 201 (2005) 1 SCC 280, (2005) 8 SCC 67 and (2007) 11 SCC 621 and submitted that the first Appellate Court misinterpreted and misconstrued the evidence on record and came to a wrong conclusion. 14. Contra, Shri Arvind Sharma, learned counsel for the respondents supported the impugned judgment and decree passed by the learned first appellate Court and ventilated that whether the Will is registered or unregistered, it would carry the same value but it is for the propounder to prove its due execution and dispel all the suspicious circumstances before its acceptance as a genuine document. He further submitted that the registration note of the alleged Will shows that it was done in a - 8 - perfunctory manner. Thus, its registration would not make it a valid document. He also argued that said Santu was ill, the plaintiffs were in service and Santu remained in village and remained under undue influence of his son Kanshi Ram. He also pointed out that the averments made in the Will are contrary to the facts stated by the propounder when examined in the Court. He further argued that there was no cogent ground to disinherit the other sons and daughters by the testator. Hence, the judgment and decree passed by the learned first appellate Court is based upon law and facts, hence requires no interference. 15. I have given my thoughtful consideration to the rival contentions of the parties and have carefully surveyed the above case law cited by the learned counsel for the appellants and gone through the record. 16. In order to hold a document to be Will, it has to be proved that the same is in conformity with the provisions as regards the execution and attestation as provided under the law. - 9 - 17. Section 63 of the Succession Act lays down following formalities to be observed in execution and attestation of a Will:- (a) A 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 other person signing the will for the testator. 18. Section 68 of the Indian Evidence Act, 1872 forbids the using of a document which is required by law to be attested as evidence until at least one attesting witness has been called for the purpose of proving its execution if there be an attesting witness alive. See (Smt.) Jaswant Kaur v. (Smt.) Amrit Kaur [AIR 1977 SC 74] whereby the law laid down in H. Venkatachal Iyengar v. B.N.Thimmajamma [AIR 1959 SC 443] inter alia was approved by the apex Court and it was further held that unlike other documents, the Will speaks from the death of the testator and therefore the maker of the Will is never - 10 - available for deposing as to the circumstances in which the Will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last Will and testament of the testator. Normally the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the Will. Cases in which the execution of the Will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the Will under which receives a substantial benefit and such other circumstances raise suspicion about the execution of the Will. That suspicion cannot be removed by the mere assertion of the propounder that the Will bears the signature of the testator or that the testator was in sound and disposing state of mind and memory at the time when the Will was made, or that those like wife and children of the testator who would normally receive their due share in his estate were disinherited - 11 - because the testator might have had his own reason for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the Will excite the suspicion of the Court. The propounder must remove all legitimate suspicions before the document can be accepted as the last Will of the testator. It is in connection with Wills the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. Test emphasizes that in determining the question as to whether an instrument produced before the Court is the last Will of the testator, the Court is called upon to decide a solemn question, and by reason of suspicious circumstances, the Will has been validly executed by the testator. Further, if a caveator alleges fraud, undue influence, coercion etc. in regard to the execution of the Will, may raise a doubt as to whether the testator was acting of his own free will, then it is part of the initial onus of the propounder to remove all reasonable doubts in the matter. - 12 - 19. However, the test laid down by the Court in H.Venkatachala’s case supra was approved by the Supreme Court in Rani Purnima Devi v. Kumar Khagendra Narayan Deb [ AIR 1962 SC 567] and Shashi Kumar Banerjee v. Subodh Kumar Banerjee [AIR 1964 SC 529] wherein the Supreme Court also dealt with the mode and onus of proof. 20. The Supreme Court again in Chandra Rambux v. Champabai [AIR 1965 SC 354] held that in all cases in which the Will is alleged to have been prepared under circumstances raising suspicion, it is for the propounder of the Will to remove that suspicion, the mode of proving of the will does not ordinary differ from that proving any other document except as to the special requirement of attestation prescribed in the case of Will by Section 63 of the Act. Reference can also be made to In Surendra Pal v. (Dr.) (Mrs.) Saraswati Arora [AIR 1974 SC 1999]. In Rabindera Nath Mukherjee and another vs. Panchanan Banerjee (dead) through his LRs [AIR 1995 SC 1684] The apex Court though held that deprivation of the natural heirs by the testator should not raise any suspicion, but active part played by a close relation may raise suspicion in - 13 - absence of the circumstances on record to show voluntary character of document. 21. Thus, undue influence is another factor which raises a suspicion on the execution of a Will. The law with respect to this is also very settled. A reference can be made to a decision of the Constitution Bench of the apex Court in Ladli Prashad Jaiswal v. The Karnal Distillery Co. Ltd. Karnal [AIR 1963 SC 1279]. It is also well settled that the Court must come to the conclusion that the relations between the donor and the donee are such that donee is in a position to dominate the Will of the donor. In other words, whether the will could be said to have been obtained by undue influence or not. 22. As already stated above, in the case in hand DW-1 Kanshi Ram propounder of the alleged Will is one of the sons of deceased Santu and the real brother of the plaintiffs. Santu was ill and living with him as others were in service outside. He was ill and quite dependent upon the defendant, thus, he was in a position to dominate his Will. Further the Will is Ex.D1 dated 29.3.1971. He died on 13.7.1971 i.e. after about less than 4 months. He was 70 years of age as - 14 - shown in the Will. He acknowledged that he has three sons and three daughters. Further averments made in the said documents are that he had already married his daughters and whatever he wanted to give them, had already given and they are well settled in their matrimonial homes. It was also averred that the plaintiffs were neither caring for him nor providing any maintenance; therefore, it was his wish to bequeath his moveable and immoveable property in favour of his son, defendant Kanshi Ram. 23. Basso Ram Numberdar and DW-2 Gian Chand are the attesting witnesses and said Will, scribed by the deed writer Sagar Chand (deceased). It was presented on the same day for its registration before DW7 Shri O.P. Soni, the then Sub-Registrar. 24. Kanshi Ram when examined in the Court as DW1 stated that he had met the expenses for the marriages of his sisters, which is contrary to the averments made in the documents aforesaid. Further he also admitted the fact that on the day of execution of alleged Will, his father was suffering from urination problem and catheter was also - 15 - affixed. It is also evident from the record that the plaintiffs were in service and residing outside from their village and Santu was residing with defendant Kanshi Ram. Admittedly, on the day of the execution of the alleged Will, deceased Santu was weak and fragile due to old age and illness as stated by DW-1 aforesaid. He was taken in a palanquin carried by four persons, namely, Gian Chand, Hari Ram, Shambhu and Anant Ram. Even before that he also remained admitted in a hospital at Barsar for one and half month. 25. DW-2 Gian Chand though an attesting witness stated that the Tehsildar had asked six times about the said documents. It is not understood and explained what was the occasion and reason to ask six times about the Will, from him. It means that he, at the relevant time was not in a fit state of mind to understand and explain about the nature of the document. DW-7 O.P. Soni Sub-Registrar, although he stated that the averments of the said document were read-over and explained to Santu aforesaid and after admitting it to be correct, he appended his thumb impression on the endorsement Ex.DW1/A, - 16 - but the certificate appended by him to this document does not reveal that it was a Will, but it makes the reference that it was “bai-nama” ( sale deed). In these circumstances, the mere registration of the Will would not by itself be sufficient to dispel all the above suspicious circumstances. 26. Further, the evidence as to the registration of the Will shows that it was done in a perfunctory manner and it is absolutely not clear from the endorsement of the Registrar that the testator had admitted the execution of the Will or that of ‘bai- nama’, if seen in the background that testator was asked six times by him about its contents as stated by DW2 aforesaid. 27. Santu aforesaid was an illiterate rustic villager, totally dependent upon the defendant Kanshi Ram with whom he was living in his old age when he was ill. The evidence on record shows that the intelligent execution of the Will by him has not been proved. Even the registration of the Will does not show that the testator knew that it was a Will the execution whereof has been admitted by DW-7 O.P. Soni, which is contrary to his endorsement. Thus, the fact - 17 - that the Will is a registered document is not of much value to the defendant. Therefore, mere fact of registration of the document would not by itself be enough to dispel all the suspicion that may attached to the execution and attestation of the Will. See Babu Ram and others vs. Smt. Kishani Devi [1992(1) Sim.L.C.115]. 28. Further as already stated above, the deceased Santu was brought in a palanquin by four persons named above, but none of them were attesting witnesses. Kanshi Ram himself was accompanying his father and was present at the time of execution of the said document. Thus, his tacit consent to bring him to the office of Sub-Registrar is writ large. Santu was totally dependent upon Kanshi Ram with the fear of abandoning him, thus he could have been said to append his thumb impression on the document of his own knowing fully the contents of the document. In these circumstances, it is doubtful that said Santu was acting of his own free will and an inference is that the propounder of the said Will Kanshi Ram had exercised the undue influence upon - 18 - him, to which he failed to remove all the reasonable doubts in the matter. 29. Further, there is no cogent reason for exclusion to disinherit amongst legal heirs of equal degree who were none else other than the brothers of defendant Kanshi Ram, {See Ram Piari vs. Bhagwant and others [AIR 1990 SC 1742] } and for that matter, the married sisters to whom the defendant Kanshi Ram himself stated that he spent the expenses on their marriages and not by his father, as stated in Ex.D1. Therefore, the cumulative effect of the above suspicious circumstances as noted by the first appellate Court are well founded, when examined against the above law laid down by the apex Court, which is consistently followed till date. Thus, the case law cited by the learned counsel for the appellants in the facts above, is of no avail to him. 30. Therefore, for the reasons aforesaid, I do not find that the first appellate Court has misconstrued, misinterpreted the pleadings, documentary as well as oral evidence and had come to a wrong conclusion by setting aside the judgment and decree passed by the learned trial Court and - 19 - decreeing the suit of the plaintiffs-respondents, as the Will Ex.D1 was not found to be a genuine document. The pleadings with respect to that were already precisely made in the plaint and the issue to this effect was properly framed by the learned trial Court. The substantial questions of law are accordingly answered. Thus, the appeal has no merit, hence dismissed. Parties are left to bear their own costs. November 10,2010. (Surinder Singh), (Pds) Judge.