^^ CT^" ,,i(i>B19 •igiS^1' [N THE HIGH COURT OF TUDICATURE AT BILASPUR F.A.No. '?lj /2003 APPELLANT / ^Defendant RESPONDENT 'Stnt. Indu Bala Tirki, aged about 47 years/ W/oShriB.N.TirH R/o Batran Bajar, Raipui (C.G.). -Versus- Shri Harold Rirti Kumar Jacob,. Aged about 42 yeais, S/o J.B. Jacob, R/o D.L.-54, Salt Lack City, Calcutta (W.B.). *'AW ^/'/ / ^ ^/ 5?'^rSa/ ^''<3y-e7 f\^fy v FIRST APPEAL UNDER SECTION 96 OF THE CIVIL PROCEDURE CODE. -^_n^^ H I G H C O U R T O F C H H A T T I S G A R H A T B I L A S P U R . F I R S T A P P E A L N o . 1 1 1 O F 2 0 0 3 A P P E L L A N T " I n d u b a l a ' T i r k i V e r s u s R E S P O N D E N T H a r o l d K i r t i K u m a r J a c o b J w D G M h N T P o s t f o r 2 3 — 1 1 - 2 0 0 9N S d l - N . K . A g a w v a l J u d g e 7 ' ‘ \ “ 7 " . HIGH COURT OF CHHATTISGARH AT BILASPUR APPELLANT FIRST APPEAL No. 111 OF 2003 Indubala Tirki Versus RESPONDENT Harold Kirti Kumar Jacob SINGLE BENCH:- Hon. Shri N.K. Agarwal, J PRESENT :- Shri Prashant Jaiswal, Sr. Advocate with Shri Shailendra Sharma, Advocate, for applicant. Shri B.P. Sharma, Advocate, for respondent. JUDGMENT (-Z3 -11-2009) 1. This appeal arises out of the judgment and decree dated 9-4-2003 passed in Civil Suit No. 36-A/2002 by 9th Additional District Judge (FTC), Raipur whereby and whereunder the plaintiff's suit has been decreed. 2. Facts briefly stated are as under:- 3. The suit house situated on plot No. 20/1, Block No. 18, in Chotapara Ward of Bairan Bazar, Raipur, belongs to one Samual Clation Jacob. The said Samuel Clation Jacob was issueless. The plaintiff is his nephew. The defendant was staying with him since her childhood and was treated by said Sarauel Clation Jacob as his adopted daughter. On 5-3-90, he executed a Will deed in favour of the defendant bequeathing the suit house in her favour. He cancelled the Will deed dated 5-3-90 and executed another Will deed on 7-9-95 in favour of the plaintiff. Thereafter alleged Will deed dated 5-10-95 is said to be executed in defendant's favour by him. Meanwhile, he left Raipur and went to Kolkata where he died on 18-12-95. His dead body was brought to Raipur and the same was buried at Raipur. On the application of the plaintiff, the said suit house stands mutated in his name in the Municipal records. In the said proceedings, the defendant did not disclose execution of Will deed dated 5-10-95 in her favour. The defendant applied for renewal of lease before Nazul authorities claiming herself to be legal representative of deceased Samuel Clation Jacob and got lease renewed in her favour. The plaintiff issued an eviction notice to the defendant who according to the plaintiff is in possession ofthe suit house as licensee. The defendant by sending her reply to the notice denied the right as claimed by the plaintiff and stated that the said Will has| been cancelled subsequently by deceased Samuel Glation Jacob and executed the last Will dated 5-10-95 in her favour. 4. The plaintiff filed a suit against the defendant seeking relief of declaration of his title over the suit house, possession and damages claiming title based on Will deed based on 7-9-95. The defendant by filing her written statement, denied the right as claimed Uy fhe plaintiff and pleaded that the alleged Will dated 71-9-95 is vague; the said Will has already been cancelled by the deceased vide Will deed dated 5-10-95; the suit house in fact was purchased by her and her husband Bendmi in the name of deceased and is residing in the property in her own right. 5. The trial Court on appreciation of pleadings of the parties, evidence led oral and documentary, recorded a finding that the plaintiff got ownership of the suit House in pursuance ofWill deed dated 7-9-95; defendant failed to prove her title over the suit property; the WiU dated 5-1-95 is highly suspicious and does not confer any title to defendant; and decreed the suit in favour of fhe plaintiff. Hence this appeal. 6. Shri Prashant Jaiswal, leamed Sr. Counsel appearing for the appellant would submit fhat the Will deed dated 7-9-95 is vague; the same was cancelled by Will deed dated 5-10-95 by the deceased, which is the lasf- Will conferring title ofthe suit property upon the appellant/ defendant. Learned trial Court erred in holding thp last Will dated 5-10-95 as suspicious. He would further submit that 8 suspicious circumstances as indicated by the Court below in itsjudgment cannot be saidlto be suspicious circumstances so as to disbelieve th^ Will. He would further submit that learned trial Courtlwent wrong in disbelieving the last Will dated 5-10-95 and in 1 believing the WiU dated 7-9-95. For this, he placdd his reliance upon the judgment of Supreme Court in the matters of H. VENKATACHALA IYENGAR Versi^s .N. THIMMAJAMMA AND OTHERS reported in AIR 1959 SC 443, Surendra Fal and others v. Dr. fMrs.) Sarciswati Arora and another, reported in 197,4 SC 1999, Indu Bala Bose and others v. Manindra Chandra Bose and another, reported in AIR 1982 SC 133, Madhukar D. Shende v. Tarccbai Aba Sheclaae, reported in (2002) 2 SCC 85. He would further sijibmit that indisputably the defendant was the adopted daughter of Samuel Clation Jacob who also execut^d in the year 1990 a Will in her favour which was in suspicious circumstances cancelled and anotheri Will was executed on 7-9-95 and finding fault in it, he again immediately executed the Will in defendant's favour. In this facts situation of the case, learned trial Court has grossly erred in disbelieving the last Will i.e. dated 5-10- 95 which has been executed in appellant's favour. | 7. Per contra, Shri B.P. Sharma, learned counsel for the respondent would submit that the only issue involved in the present case is regarding genuineness of WiU dated 5-10-95 (Ex. D-i) andsubmitted that the same| has rightly been disbelieved by the trial Court basing its finding upon 8 suspicious circumstances as referr^d in 4 ^ para 9 of its judgment. He would furfher submit that the said Will is bad and ineffective also for the following reasons:- i. The fprmat of the Will where the spaeing in between lines has been adjusted so as to include and place signature of the testator, such kind of formatting suggests that signatures were taken on a blank paper fraudulently and the contents were typed later on. ii. It is most improbable that although the name of the witnesses are typed however, the testator's name is hand-written and also under the words Vasiyat- Karta, whereas it had to be signed above the said word. iii. It also appears that all the effort has been made so that the contents should fit in a single page on which signature of testator was obtained by fraudulent means. iv. The contents of the Will is also full of embellishments which signifies not only the intentions of the testator but more the anxiety of the defendant wherein they have given the details of the previous registered Will without explaining as to how the Praroop-karta (person who drafted the Will) has got the details when she admits that she was not given any document other tha+ithe details of the property and the bank account. v. The statement has also been made in the Will that the beneficiary shall have right to obtain patta on the strength of the Will which further signifies more fhe concern and purpose of the 5 d e f e n d a n t t h a n t h e t e s t a t o r s i n c e a d m i t t e d l y a f t e r t h e d e a t h o f t e s t a t o r s h e h a s o b t a i n e d p a t t a o n 2 7 — 1 0 — 2 0 0 1 . v i . T h e W i l l a l s o s a y s t h a t t h e p r o p e r t y i s i n f a c t b o u g h t o u t o f t h e f u n d s o f t h e d e f e n d a n t a n d h i s h u s b a n d h o w e v e r i n t h e s a m e b r e a t h s h e c l a i m s t h a t s h e h a s i n h e r i t e d t h e p r o p e r t y o n ' t h e s t r e n g t h o f t h e W i l l i t s e l f . T h i s a l s o d e m o n s t r a t e s t h e h a s t e a n d a n x i e t y o f t h e d e f e n d a n t . V i i . T h e W i l l a l s o s t a t e s t h a t e a r l i e r W i l l i n f a v o u r o f t h e p l a i n t i f f d a t e d . 7 - 9 — 1 9 9 5 w a s o b t a i n e d b y c o e r c i o n , h o w e v e r i t i s m o s t a b s u r d t o b e l i e v e t h a t a p e r s o n a d m i t t e d l y r e s i d i n g a l l t h e t i m e ‘ i n C a l c u t t a a n d a l s o w h e n t h e W i l l d a t e d 7 - 9 - 9 5 w a s e x e c u t e d c o n c e r n e d t h e t e s t a t o r . P o s s i b i l i t y o f c o e r c i n g a p e r s o n f r o m s u c h a d i s t a n t p l a c e i s u n p a l a t a b l e e v e n w i t h a p i n c h o f s a l t . . S h r i S h a r m a w o u l d f u r t h e r c o n t e n d t h a t “ W i l l ” o n a l l o c c a s i o n h e l d t o b e a s o l e m n d o c u m e n t a n d t h e i n t e r p r e t a t i o n a n d e x e c u t i o n o f t h e W i l l i s t o b e d e c i d e d t a k i n g i n t o c o n s i d e r a t i o n a l l t h e c i r c u m s t a n c e s p r e v a i l i n g a t t h e t i m e o f e x e c u t i o n a n d a l s o e v e r y e n d e a v o r b e m a d e t o a p p r e c i a t e t h e i n t e n t i o n a n d m e n t a l s t a t e o f t h e t e s t a t o r s o a s t o a s c e r t a i n p r e c i s e l y t h e i n t e n t i o n o f t h e t e s t a t o r . F o r t h e a b o v e p r e p o s i t i o n , S h r i S h a r m a p l a c e s r e l i a n c e u p o n t h e j u d g m e n t o f S u p r e m e C o u r t i n c a s e o f G n a m b a l A m m a l — v - R a j u A y y a r r e p o r t e d i n A I R 1 9 5 1 S C 1 0 3 , K a l y a n S i n g h v . S m t . C h h o t i a n d o t h e r s , r e p o r t e d i n A I R 1 9 9 0 S C 3 9 6 , J a s w a n t K a u r v . A m r i t K a u r , r e p o r t e d i n A I R 1 9 7 7 S C 7 4 a n d Y u m n a m O n g b i T a m p h a I b e m a D e v i v . Y u m n a m J o y k u m a r S i n g r e p o r t e d i n ( 2 0 0 9 ) \ ‘ 4 S C C 7 8 0 . ''~'-^-:.. ys^. -: s ••~"-y 3 "~^ ^ ,/7 "'•'s^y /)' ^ 9. I have heard learned counsel for the parties and perused the record. 10. Before adverting to the facts of the case, it would be appropriate to deal with legal position regarding due execution, attestation and proof of Will. 11. Section 59 of the Indian Succession Act, provides that eveiy person of sound mind not being a minor may dispose of his property by will. As per section 61 of the Indian Succession Act, will or any part of a wiU, 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. Section 63 ofthe India Succession Act provides procedure for a due execution of will. 12. Section 67 of the Evidence Act speaks for proof of signature and hand-writing of person alleged to have signed or written document produced. As per Section 68 of Evidence Act, document like a will 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 process of the Court and capable of giving evidence. 13. Supreme Court in case of H. Venkatachala lyangar (supra) after considering Section 67, 68, 45 and 47 of fhe Evidence Act, in case of proof of a will, observed in para 18 to 22 and 39 as under:- "18. What is the true legal position in the raatter of proof of wills? It is well-known that the proof of wiUs presents a recurring topic for decision in courts and there are a large niunber 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, '1~\ we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under Section 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 Sections 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 docuinent 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, Sections 59 and 63 of the Indian Succession Act are also 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 flnding 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 prescribed by Section 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 satiyfaction 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 maldng a finding in favour of the 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 suspicious 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 ofherwise 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 doci.unent 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 A ' '^ sff' °••%; "'^ 10 •saai». /'! undue iijifluence, 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 wiU in executing the will, and in such circiirastances, 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 wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the