RSA No.2297 of 1982 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No.2297 of 1982 Date of Decision: 27.8.2008 Yash Pal Singh .....Appellant Vs. Raj Pal Singh and others ....Respondents .... CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA **** Present : Mr.Gurpreet Giani, Advocate for the appellant. .... RAJIVE BHALLA, J (Oral) The plaintiff/appellant, lays challenge to the judgement and decree,dated 12.10.1982 passed by the Additional District Judge, Jalandhar, accepting the appeal filed by the respondents, reversing the judgement and decree dated 26.8.1981, passed by the Sub-Judge, Ist Class, Jalandhar and as a consequence dismissing the appellant's suit for possession of H.No.WB-150, Ali Mohalla, Bazar Sheikhan, Jalandhar. Before dealing with the substantial questions of law, it would be appropriate to briefly narrate the facts of the present case. One Sain Dass was owner in possession of H.No.WB-150, Ali Mohalla, Bazar Sheikhan, Jalandhar. He passed away on 26.7.1979 and was survived by his widow Kesra Devi defendant no.4 and three sons, Yash Pal, the appellant, Rajpal Singh and Rajinder Pal Singh, respondents no.1 and 2 and a daughter Shakuntala Devi-respondent no.3. After the demise of Sain Dass, a dispute arose between his sons as to ownership of RSA No.2297 of 1982 2 the aforementioned property. The appellant filed a suit for declaration and for possession of a part of the house in possession of respondents no.1 and 2 by alleging that before his demise Sain Dass, had executed a registered will dated 5.9.1977 bequeathing the suit property, to him alone. Respondents no.1 and 2, denied the due execution of the Will and in turn set up another will dated 11.4.1979 Ex.D-1, bequeathing the suit property to them alone. Their mother, who was arrayed as defendant no.4, filed a written statement, accepting the correctness of the Will dated 5.9.1977, set up by the appellant. Respondent no.3, their sister, filed an affidavit before the trial Court refusing to take sides but stated that in case the property was to devolve upon natural heirs, her share should be granted to her mother. Upon an appraisal of the pleadings, the Sub Judge, Ist Class, Jalandhar, framed the following issues :- “1. Whether the plaintiff is entitled for possession of a portion of house no.150 WB as alleged in the head note of the plaint ? O.P.P 2. Whether the registered will dated 5.9.77 in favour of the plaintiff is valid and binding on the parties ? O.P.P. 3. Whether the will dated 11.4.79 in favour of defendant Rajpal Singh and Rajinder Pal Singh is valid and binding on the parties ? O.P.P. 4. Whether the suit is properly valued for the purposes of Court fee and jurisdiction ? O.P.P. 5. Relief.” The trial Court decreed the suit by recording a finding that the RSA No.2297 of 1982 3 Will dated 5.9.1977 Ex.P-1, was proved by the appellant to be the last valid Will of the deceased. As regards the Will propounded by respondents no.1 and 2 dated 11.4.1979 Ex.D-1, it was discarded as it was held to be shrouded by suspicious circumstances. Aggrieved by the aforementioned judgement and decree, respondent no.1 filed an appeal. Vide judgement and decree dated 12.10.1982, the Additional District Judge,Jalandhar, accepted the appeal, reversed the judgement and decree passed by the trial Court and dismissed the suit. The first appellate Court rejected both Wills and held that the estate of Sain Dass would devolve upon all his natural heirs ,in equal shares. Counsel for the appellant submits that the first appellate Court, ignored relevant pleadings, material evidence and disregarded the principles that govern the proof of a Will. The first appellate Court relied upon inconsequential circumstances, to hold that the Will Ex. P-1 was shrouded by suspicious circumstances. The first appellate Court held that the presence of the appellant, during the execution of the will, though denied, was sufficient to hold that the appellant took a prominent part in bringing the Will, Ex P-1 into existence. It is submitted that no such averment appears in the written statement nor was any material adduced in evidence to suggest that the appellant took an active part in the execution of the Will. The grounds of appeal filed before the first appellate Court, do not raise any such plea. Furthermore, when the appellant stepped into the witness box as PW-3, he was not cross-examined as to his presence during the execution of the Will or that by his presence, he exercised any undue influence. It is further submitted that even if it were to be presumed RSA No.2297 of 1982 4 that the appellant was present during the execution of the Will, his mere presence alone, would not be sufficient to draw an inference of undue influence or coercion. Undue influence assumes the exercise of such influence being brought to bear upon the testator, as has interfered with the testator's voluntary exercise of his discretion. Reliance for the above arguments that mere participation or presence of a beneficiary or the propounder of a Will, at its execution would not necessarily give rise to a necessary inference of undue influence, is placed upon judgements of the Hon’ble Supreme Court reported as Naresh Charan Das Gupta Vs. Paresh Charan Das Gupta, AIR 1955 SC 363 and Pentakota Satyanarayana and others V. Pentakota Seetharatnam and others, AIR 2005 SC 4362. Another argument pressed into service, by counsel for the appellant, is that the first appellate Court's findings that the Will is unnatural, as no provision was made, by the testator for his widow, is perverse, incorrect and is recorded by ignoring and disregarding the written statement filed by Smt.Kesra Devi widow of the deceased and mother of the parties. Smt.Kesra Devi defendant no.4 filed a written statement, admitting the correctness of the Will Ex.P-1 and specifically averred that the Will was executed by her late husband in favour of the appellant, as respondents no.1 and 2 did not look after or respect him and, therefore, she had no objection to the Will. It is submitted that these significant admissions in the written statement filed by by Smt. Kesra Devi were ignored. It is further argued that the appellate Court, failed to satisfactorily deal with the fact that on 15.12.1965, the testator brought out an advertisement, in a daily newspaper, disinheriting respondent no.1 RSA No.2297 of 1982 5 Raj Pal Singh. This fact, though, not denied by the respondents, whether in their written statement or in their deposition before the trial Court has not been assigned its due significance. It is further argued that disposition of property by way a Will more often than not reflects a testator's desire to disrupt the natural course of succession. The mere fact that other natural heirs have been disinherited or ignored, cannot by itself, be a circumstance, to discard a Will. A testator, is free to direct the devolution of his self acquired property, after his demise, to any person, whether a relative or a stranger. In case the propounder of the Will satisfies the Court about its due execution and dispels any suspicious circumstances that may surround its execution, such a testamentary disposition cannot be set aside on the ground that natural heirs have been disinherited or ignored. It is next submitted that as the appellant has established the due execution of the Will by producing the attesting witnesses PW 1 Gurbachan Lal, by identifying the handwriting of the scribe by the deposition of DW-2. nothing more was required of the appellant. The so called suspicious circumstances, namely; the exclusion of all other legal heirs and the alleged presence of the appellant, at the time of execution of the Will, having been satisfactorily explained, the onus, thereafter, to establish the assertions putforth in the written statement, namely; that the Will had been obtained by undue influence and coercion, shifted to respondents no.1 and 2. To discharge this onus, the respondents have not lead any evidence, much less cogent evidence. The first appellate Court, disregarded the established principles of law, regarding appreciation of evidence, mode of proof of Will, the onus to discharge suspicious RSA No.2297 of 1982 6 circumstances and if so discharged, the onus to establish fraud, coercion or undue influence by the party alleging them. It is, therefore, prayed that as the impugned judgement discloses serious infractions of law, giving rise to substantial questions of law, the appeal be accepted, the judgement and decree passed by the first appellate Court be set aside and that of the trial Court be restored. I have heard learned counsel for the appellant and perused the judgement of the trial Court, as also the judgement passed by the appellate Court. Counsel for the appellant has framed the following questions of law : (i) Whether the judgement and decree passed by the first appellate Court, is perverse and illegal as the first appellate Court failed to consider material pleadings, ignored material evidence and recorded findings that have no basis whether in the pleadings or in the evidence . (ii) Whether in view of the written statement filed by defendant no.4, the first appellate Court could have held that the failure of the testator to provide any property to or maintenance for his widow, defendant no.4 was a suspicious circumstance that would cast a shadow on the due execution of the Will Ex.P-1. (iii) Whether the mere presence of a beneficiary at the place of execution of the Will is sufficient, to draw an inference of undue influence, being brought to bear RSA No.2297 of 1982 7 over the free will of the testator. A judicial opinion recorded without referring to or considering all relevant pleadings and evidence would necessarily be susceptible to the charge of perversity and illegality. The proof of the execution of a Will, is primarily a question of fact, where however, a Court while considering the execution and proof of a Will, discards the Will on irrelevant and illegal considerations, ignores relevant pleadings and evidence, such an opinion would necessarily be erroneous in law and, therefore, would give rise to a substantial question of law, requiring interference in second appeal. Before proceeding to answer the questions of law as framed by counsel for the appellant, it would be necessary to briefly refer to the nature of a Will, statutory provisions and relevant precedents, that govern the execution and the proof of Wills. A Will, is defined under Section 2(h) of the Indian Succession Act to mean the legal declaration of the intention of a testator with respect to his property, which he desires to be carried into effect after his death and is, therefore, an expression of the testator’s desire to chart out the future course of his estate. Section 59 of the Indian Succession Act, prescribes that every person of sound mind not being a minor, may dispose of his property by a Will. Section 63 of Indian Succession Act provides that every testator, not being a soldier employed in an expedition or engaged in actual warfare etc. shall execute his Will by affixing his signatures or a mark in the Will or the Will shall be signed by some other person in his presence and by his direction. The Will shall thereafter be attested by two and more witnesses, each of whom has seen the testator RSA No.2297 of 1982 8 signing or affixing his mark to the Will or as has seen some other person signing the Will, in the presence and by the direction of the testator. Each of these witnesses is required to sign the Will in the presence of a testator. Section 63(c) however, prescribes that it shall not be necessary that more than one witness be present at the same time and it does not prescribe any particular form of attestation. A Will so executed, may if the testator so desires be registered under the Indian Registration Act with the Registrar/Sub-Registrar concerned. The execution of a Will shall be proved in accordance with the provisions of Section.68 of the Indian Evidence Act. A basic and fundamental principle of evidence postulates that the onus to establish the execution of a document lies upon the person, who propounds it. Section 67 provides that if a document is signed by a particular individual, the signature must be proved to be in his handwriting. As referred to herein above, Section 63 of the Indian Succession Act, requires a Will to be attested by at least two witnesses. Section 68 of the Evidence Act enacts a mandate that a document required by law to be attested, shall not be used as evidence until one attesting witness, at least, has been called to prove its execution. A Will, therefore, must be proved by producing at least one attesting witness. The onus, therefore, to prove the due execution of a Will, lies upon its propounder as does the onus to dispel any suspicious circumstances that may surround the execution of a Will. In order to fortify the above conclusion, it would be appropriate to reproduce paras 18, 19, 20 and 22 of the judgement of the Hon'ble Supreme Court reported as H. Venkatachala Iyengar, v. B.N. Thimmajamma and others, AIR 1959 SUPREME COURT 443, that place in perspective the law with RSA No.2297 of 1982 9 respect to execution and proof of Wills : “(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 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. Section 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 RSA No.2297 of 1982 10 relevant. Section 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. Section 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 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 RSA No.2297 of 1982 11 mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters. (19). However, there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a Court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the Court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, Courts would be justified in making a finding in favour of the RSA No.2297 of 1982 12 propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated. (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 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 RSA No.2297 of 1982 13 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. (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 RSA No.2297 of 1982 14 an obdurate persistence in disbelief. They do not demand from the Judge, even in circumstances of grave 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 vigilent, cautious and circumspect.” A relevant extract from Pentakota Satyanarayana and others V. Pentakota Seetharatnam and others, AIR 2005 SC 4362 would also be appropriate :- (25) In the instant case, the propounders were called upon to show by satisfactory evidence that the Will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document on his own freewill. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts indicated above ....XXXXX.....XXXXXX.........XXXXXXX In our opinion, the burden of proof to prove the Will has been duly and satisfactorily discharged by the appellants. The onus is discharged by the propounder adducing prima facie evidence proving the competence of the testator and execution of the Will RSA No.2297 of 1982 15 in the manner contemplated by law. In such circumstances, the onus shifts to the contestant opposing the Will to bring material on record meeting such prima facie case in which event the onus shifts back on the propounder to satisfy the Court affirmatively that the testator did know well the contents of the Will and in sound disposing capacity executed the same. XXXXXXX..........XXXXX..........XXXXXXX...... It is, therefore, apparent that once the Will is proved, to have been executed by the testator in accordance with the rules of evidence set out in Sections 67 and 68 of the Indian Evidence Act and all suspicious circumstances have been dispelled the propounder thereof would be entitled to a declaration that the Will is the validly executed Will of the deceased testator. The onus, thereafter, to establish otherwise or to establish that the Will was obtained by coercion, undue influence or fraud or by any other circumstance, shifts to the party alleging such undue influence, coercion or fraud. For the latter conclusion, reference may be made to Niranjan Umeshchandra Joshi V. Mrudula Jyoti Rao and others, (2006) 13, SCC 433 a relevant extract whereof reads as follows :- “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 RSA No.2297 of 1982 16 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