IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA FAO (Ord.) 217 of 1999. Judgment reserved on 1.11.2007. Date of decision: 13.11.2007. Balbir Singh alias Kaloo …Appellant. Versus Mohinder Singh Rathour & others …Respondents. Coram The Hon’ble Mr.Justice Dev Darshan Sud, J. Whether approved for reporting?1 Yes. For the appellant: Mr. Ashwani Pathak, Advocate. For Respondent No. 1 Mr. Ashwani Sharma, Advocate. For respondent No. 4 Mr. Aman Sood vice Mr. N.K.Sood, Advocate. Dev Darshan Sud, J. The defendant has appealed against the judgment and order passed by the learned Additional District Judge, Mandi in a petition for grant of probate under Section 276 of the Indian Succession Act (hereafter referred to as ‘the Act’) filed by the respondents. 1 Whether reports of Local Papers may be allowed to see the judgment? Yes. - 2 - The brief facts necessary for disposal of this appeal may be noticed: The deceased Smt. Leela Devi, wife of Shri Man Bahadur executed a Will on 7.1.1993 in favour of respondent bequeathing her entire estate to the respondent- petitioner. She died on 11.1.1993. At the time of her death, she was working as Ward Servant in the Bhakhra Beas Management Board Hospital (hereafter referred to as “BBMB Hospital”) at Sundernagar. It is alleged that the deceased was married to one Shri Mohinder Singh who had deserted her and later on she married Man Bahadur. The respondent – petitioner filed proceedings under Section 276 of the Act, praying for grant of probate of the last Will and Testament Ex.PW-1/A of the deceased Leela Devi. Petition was resisted by respondents – appellants 2 and 3 on a number of grounds. Respondents 5 and 6 resisted the grant of probate of the Will on a number of grounds submitting that they were the natural heirs of deceased Smt. Leela Devi, being her son and daughter respectively and that the Will set up was shrouded by a number of suspicious circumstances. It was submitted that the Will had never been executed by the deceased and even if it is - 3 - accepted to be as such, it is the outcome of fraud, undue influence and coercion and is surrounded by suspicious circumstances. The crux of the defence of respondents 5 and 6 is contained in para 2 of the written statement filed by them in opposition to the petition instituted by the respondent (petitioner before learned trial Court) which is: “2.That para No. 2 of the petition is wrong, hence denied. The alleged writing is neither the last Will nor the same can be designated as such, which was never executed by the deceased. Even if admitted, though not admitted, the alleged Will is an outcome of fraud, undue influence and coercion and is surrounded by the suspicious circumstances, as such got no value in the eyes of law. The replying respondents are the rightful legal heirs to inherit the property of deceased, therefore, the alleged writing designated as Will is highly unnatural especially in favour of the petitioner, who is a typist in Court Campus.” It was alleged that they were the natural heirs of the deceased being her son and daughter and were entitled to inherit the estate of the deceased. In - 4 - the amended petition which was filed, defence of respondents 5 and 6 namely Balbir Singh and Raj Rani before learned trial Court was no different. It was submitted that the petition was nothing but a tissue of lies. Shri Mohinder Singh, father of the two respondents as aforesaid had not deserted the deceased; no Will had ever been executed in favour of respondent Mohinder Singh Rathour; the Will was not the last Will and Testament of the deceased and was the outcome of fraud, undue influence, coercion and surrounded by suspicious circumstances. It may be noticed that the amendment sought by the respondent herein (petitioner before learned trial Court) was that the first husband of the deceased Mohinder Singh had deserted her and she had thereafter married Man Bahadur. The other respondents also feebly contested the grant of Probate to the respondent-petitioner. Learned trial Court framed four issues; the crucial issues being as to whether the petitioner before the trial Court was entitled for a Probate of the Will Ex.PW-1/A and issue 3-A as to whether the Will was surrounded by suspicious circumstances and is the outcome of undue influence, fraud and - 5 - coercion. These two issues were tried together, and the learned trial Court after considering the evidence in detail decided in favour of the respondent herein and granted Probate Ex.PW-1/A in favour of the respondent petitioner. The Court did not find anything suspicious in the Will, nor was there any evidence of undue influence, fraud etc. as alleged. The contesting respondents are in appeal before this Court. I have heard the learned counsel for the parties and gone through the record. Learned counsel for the appellant submits that learned trial Court has misdirected itself both on the question of law and facts of the case. He submits that the Will has not been proved in accordance with law and, therefore, no Probate could have been granted. He has pointed out that the Will is shrouded by suspicious circumstances. According to learned counsel, the first circumstance is that on 7.1.1993, the deceased was on duty in the BBMB Hospital at Sundernagar and it was not possible for her to have executed the Will at Mandi which is ½ / 1 hour traveling time from her place of work. The second circumstance, according to him, is that out of the - 6 - two attesting witnesses, RW-3 Baldev, who is one of the attesting witnesses, has not supported the case set up by the petitioner before the trial Court. His testimony clearly discloses that the Will was never executed by the deceased and that he was not an attesting witness to the Will Ex.PW-1/A. The third circumstance urged by the learned counsel is that the Will has been executed on stamp paper which has been printed in the year 1991 and it was not possible to have used it in the year 1993. The fourth circumstance is that the scribe as also the attesting witnesses and the beneficiary are all based in the Court at Mandi and have influenced the mind of the deceased or fabricated the Will. He submits that all these circumstances coupled with the exclusion of the natural heirs were sufficient to have the respondent petitioner non suited. He places reliance on the decision of the Hon’ble Supreme Court in H. Venkatachala Iyengar v. B.N.Thimmajamma and others AIR 1959 SC 443 holding: (18) What is the true legal position in the matter of proof of wills? It is well known that the proof of wills presents a recurring topic for decision in Courts and there are a - 7 - large number of judicial pronouncements on the subject. The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68, Evidence Act are relevant for this purpose. Under S. 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Ss. 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. S. 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a Court of law. Similarly, Ss. 59 and 63 of the Indian Succession Act are also - 8 - relevant. S. 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression "a person of sound mind" in the context. S. 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the will? Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved - 9 - like any other document except as to the special requirements of attestation prescribe by S. 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters. (20) There may, however, be cases in which the execution of the will may be surrounded by suspicions circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said - 10 - dispositions may not be the result of the testator's free will and mind. In such cases the Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, Courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter. (21) Apart from the suspicious circumstances to which we have just referred in some cases the wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the - 11 - wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. It is in connection with wills that present such suspicious circumstances that decisions of English Courts often mention the test of the satisfaction of judicial conscience. It may be that the reference to judicial conscience in this connection is a heritage from similar observations made by ecclesiastical Courts in England when they exercised jurisdiction with reference to wills; but any objection to the use of the word 'conscience' in this context would, in our opinion, be purely technical and academic, if not pedantic. The test merely 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 deciding a solemn question and it must be fully satisfied that it had been validly - 12 - executed by the testator who is no longer alive. (22) It is obvious that for deciding material questions of fact which arise in applications for probate or in actions on wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. It may, however, be stated generally that a propounder of the will has to prove the due and valid execution of the will and that if there are any suspicious circumstances surrounding the execution of the will the propounder must remove the said suspicions from the mind of the Court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties. It is quite true that, as observed by Lord Du Parcq in Harmes v. Hinkson, 50 Cal W N 895 : (A I R 1946 P C 156) "where a will is charged with suspicion, the rules enjoin a reasonable scepticism, not an obdurate persistence in disbelief. They do not demand from the Judge, even in circumstances of grave - 13 - suspicion, a resolute and impenetrable incredulity. He is never required to close his mind to the truth," It would sound platitudinous to say so, but it is nevertheless true that in discovering truth even in such cases the judicial mind must always be open though vigilant, cautious and circumspect.” and Girja Datt Singh v. Gangotri Datt Singh AIR 1955 SC 346 holding that: (14) It still remains to consider whether the attestation of the signature of the deceased on the will, Ex. A-36 was in accordance with the requirements of S. 63, Indian Succession Act. S. 63 prescribes that:" (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 acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator. . . . . . . . S. 68, Indian Evidence - 14 - Act requires an attesting witness to be called as a witness to prove the due execution and attestation of the will. This provision should have been complied with.” to submit that the suspicious circumstances surrounding the execution of the Will have not been proved. He also places reliance on the decision of High Court of Orissa in Nilambar Bewa v. Fagu Prusty Pitj AIR (38) 1951 Orissa 236 to support his contention that the propounder is in law duty bound to remove all suspicious circumstances. There is no dispute to the proposition of law that it is for the propounder of the Will to prove its execution and to remove all doubts regarding the due execution of the Will and of its being genuine, not fabricated or being the outcome of fraud, undue influence etc. Before these principles are applied, the facts of the case may be noticed. The pleading of the appellant is that the Will Ex. PW-1/A is the outcome of fraud, undue influence, coercion etc. The relevant portion of the pleading has been reproduced above and this has remained the same even in the - 15 - amended written statement which was filed. No material facts constituting undue influence or coercion have been pleaded. Nonetheless, each of the facts which has been urged by the appellant in this appeal may be considered. On the question of undue influence, fraud, coercion etc., one fact needs to be noticed. Every influence cannot be classed as undue influence. In Naresh Charan Das Gupta v. Paresh Charan Das Gupta and another AIR 1955 SC 363, the Hon’ble Supreme Court held: “(10) It is elementary law that it is not every influence which is brought to bear on a testator that can be characterized as "undue". It is open to a person to plead his case before the testator and to persuade him to make a disposition in his favour. And if the testator retains his mental capacity, and there is no element of fraud or coercion - it has often been observed that undue influence may in the last analysis be brought under one or the other of these two categories - the will cannot be attacked on the ground of undue influence. The law was thus stated by Lord Penzance in - - 16 - 'Hall v. Hall', (1868) 1 P and D 481 at page 482(C ): "but all influences are not unlawful. Persuasion, appeals to the affections or ties of kindred, to a sentiment of gratitude for past services, or pity for future destitution, or the like,- these are all legitimate and may be fairly pressed on a testator. On the other hand, pressure of whatever character, whether acting on the fears or the hopes, if so exerted as to overpower the volition without convincing the judgment, is a species of restraint under which no valid will can be made. Importunity or threats, such as the testator has the courage to resist, moral command asserted and yielded to for the sake of peace and quiet, or of escaping from distress of mind or social discomfort, these, if carried to a degree in which the free play of the testator's judgment, discretion, or wishes is overborne, will constitute undue influence, though no force is either used or threatened. In a word, a testator may be led, but not driven; and his will must be the offspring of his own volition, and not the record of some one else's". - 17 - Section 61 of the Indian Succession Act (39 of 1925) enacts that, ”a will or any part of a will, the making of which has been caused by fraud or coercion, or by such importunity as takes away the free agency of the testator, is void." Illustration (vii) to the section is very instructive, and is as follows: "a, being in such a state of health as to be capable of exercising his own judgment and volition, B uses urgent intercession and persuasion with him to induce him to make a will of a certain purport. A, in consequence of the intercession and persuasion, but in the free exercise of his judgment and volition, makes his will in the manner recommended by B. The will is not rendered invalid by the intercession and persuasion of B." The decision of the Privy Council in Motibai Harmusjee Kanga v. Jamsetjee Hormusjee Kanga AIR 1924 PC 28 may be noticed. It was held: “A man may act foolishly and even heartlessly; if he acts with full comprehension of what he is doing the Court will not interfere with the exercise of his volition.” - 18 - The pleadings of the appellant opposing the grant of probate are, to say the least, terse and devoid of any material facts. There is no evidence to suggest that any influence, much-less undue influence, has been exercised. On the first aspect whether the testator did or did not execute the Will at Mandi as she was present on duty in the hospital at Sundernagar, the evidence of RW-7 Dr. Arun Kumar, who was working as the Chief Medical Officer in the hospital may be considered. He has produced in evidence Ex.RW-7/A which is the Attendance Register of the employees of the hospital. He states that the presence of the testator has been marked in the Attendance Register. He says that the employees are present in the hospital in two shifts between 8 A.M. to 4 P.M. Although he testifies that the testator was present in hospital from 8 A.M. to 4 P.M. on 7.1.1993, yet he admits in cross examination that even when an employee has been marked present on record, there are chances that the employee may leave duty without seeking permission. More importantly, he admits Ex. RW-7/A does not show the presence of the testator during any particular hours. The exact part of his - 19 - testimony reads “from attendance registered produced which is Ex.RW-7/A, it cannot be said if Smt. Leela was on duty from 12 noon to 4 P.M., from 4 P.M. to 8 P.M. on 7.1.1993.” He then states “however, second register brought by me shows Leela was not present on duty from 4 P.M. to 8 P.M. on that day”. In these circumstances, it cannot be said that the testator was not or could not be present in Mandi (which is at a very short distance from Sundernagar) on the day when the Will was executed. PW-3 Mahesh Chand Sharma, Advocate was the scribe of the Will. He testifies that he has been practicing in the Courts at Mandi and that he knew the testator. He then states that on 7.1.1993, the deceased testator had met him at Mandi and directed him to prepare the Will Ex.PW-1/A. He had questioned her as to whether she wanted the Will in its present form, she was firm that the disposition of the property should be in accordance with Ex.PW-1/A. He then says that he had read over and explained the Will Ex.PW- 1/A to the testator in the presence of PW-2 Dyal Ram and RW-3 Baldev. The testator had admitted the correctness of the disposition and signed it in the presence of the two attesting witnesses and they had - 20 - signed in the presence of the testator. He has been corroborated in all material particulars by PW-2 Dyal Ram. He identified his signatures, the signatures of the testator and the attesting witnesses. He states that after the death of the testator, her body remained in the mortuary for 2/3 days where-after the respondent herein had performed last rights. There is nothing in his cross examination to suggest that he had either connived with the respondent herein or was in any manner instrumental in influencing or coercing the testator in executing Ex.PW-1/A. To similar effect is the testimony of PW-2 Dyal Ram who testifies that the respondent herein was looking after the testator for the last about three years. He corroborates PW-3 on all material points. Although, RW-3 Baldev does not support the case of the respondent herein, but this point will be dealt with at a later stage. These facts clearly establish that the testator was present in Mandi on the day when the Will was executed. On the second circumstance urged by learned counsel for the appellant that one out of the two attesting witnesses has refused to support the case - 21 - of the propounder, the evidence of RW-3 Baldev may be considered. He states that in 1993 one Will had been brought to him by the propounder