IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 215 of 2005. Reserved on: 09.08.2010. Decided on 24.08.2010. Mohan Lal. …Appellant. -Versus- Bhagi Rathi. …Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. __________________________________________________________ For the appellant. : Mr. Anup Rattan, Advocate. For the respondent. : Mr. R.K. Sharma, Advocate. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge (Oral): This Regular Second Appeal is directed against the judgment and decree dated 15.01.2005, passed by the learned Additional District Judge, Mandi in Civil Appeal No. 151 of 2003. 2. Material facts necessary for adjudication of the Regular Second Appeal are that the appellant-plaintiff (hereinafter referred to as ‘the plaintiff’ for convenience sake) had instituted a suit for the decree of declaration and for permanent prohibitory injunction restraining the respondent- defendant (hereinafter referred to as “the defendant” for convenience sake) from interfering in the suit land, as detailed in the plaint and from getting the mutation attested in her name. Plaintiff has further averred that father of defendant (Him Chand) used to reside with him and 3rd brother Hari Chand used to live separately. Shri Him Chand (deceased) had only one daughter, who was married about 30 years back and wife of Him 1 Whether the reporters of the local papers may be allowed to see the judgment? Yes. Chand had also died about more than 30 years back. Late Him Chand fell ill and plaintiff took him alongwith his sons to I.G.M.C., Shimla on 20th February, 2001. He spent more than rupees one lac for his treatment. The deceased Him Chand had executed a will in favour of the plaintiff on 25.03.2001 in I.G.M.C., Shimla out of love and affection in presence of witnesses of his entire movable and immovable property, i.e., suit land. The will is Ex. PW1/A. It was presented before the Sub Registrar, Karsog for registration on 18.09.2001. The Sub Registrar vide order dated 28.09.2002 directed the plaintiff that since the question of law and facts were involved, he should get the matter adjudicated from the Civil Court. It is in these circumstances, that the present suit was filed. 3. The defendant filed the written statement. It is averred on merits in the written statement that the suit land was joint with other co-sharers, in which each co-sharer has different share of land. The defendant had denied categorically that plaintiff has looked after her father. To the contrary, it is stated that the plaintiff took away the movable property of defendant worth rupees one lac on the promise that he will get father of the defendant treated by taking him to I.G.M.C., Shimla. The defendant further averred that false and frivolous will was submitted to the Sub Registrar, Karsog for registration, which was rightly rejected by the Sub Registrar, Karsog. The trial Court framed the issues on 20.03.2003. The suit of the plaintiff was dismissed by the trial Court on 21.10.2003. The plaintiff preferred an appeal before the learned Additional District Judge, Mandi on 08.12.2003. The learned Additional District Judge, Mandi dismissed the appeal on 15.01.2005. Hence, this Regular Second Appeal. This Regular Second Appeal was admitted on the following substantial question of law on 05.05.2005: “Whether the findings of the learned trial court as well as first Appellate Court are result of misreading, misinterpretation of the evidence on record and against settled position of law? 4. Mr. Anup Rattan, learned counsel for the appellant has strenuously argued that the judgments and decrees passed by both the Courts below are not sustainable in the eyes of law. He then contended that both the Courts below have misread the ocular as well as documentary evidence. 5. Mr. R.K. Sharma, learned counsel for the respondent has supported the judgments and decrees passed by both the Courts below. 6. I have heard the learned counsel for the parties and gone through the records carefully. 7. The will is Ex. PW2/A. Plaintiff has appeared as PW- 1. He has deposed that they are three brothers and the name of the elder brother was Him Chand. Him Chand used to live with him and his daughter Bhaghi Rathi was married about 30-35 years back. Him Chand’s wife died when Bhagi Rathi was about two years old. His brother was suffering from stomachache. He took him to a place at Pargana and spent a sum of Rs.1 lac for his treatment. He used to lookafter his land. The land was in his possession. His brother had executed a will at I.G.M.C., Shimla. He was in perfect health when he had executed the will. The will was scribed by Girja Nand (PW-2). Girja Nand is his son. PW-3 Jai Kumar and PW-4 Lal Singh have signed as witnesses on the will. He has placed on record the copies of Jamabandis Ex-P-3 to P-8 and a copy of the order passed by the Tehsildar Ex.P-9. He has also produced on record the copy of death certificate of his brother Ex. P-10 and copies of receipts Ex.P-11 to Ex. P-101. In cross-examination, he has admitted that Lal Singh (PW-4) is closely related to PW-2. He has also admitted that PW-3 was closely related to his wife. He did not know on which floor of I.G.M.C., the will was scribed. He has also admitted that the witnesses were summoned by his son. He has denied the suggestion that Him Chand used to put his thumb impression. 8. PW-2 is Girja Nand. He is son of PW-1. He has proved the will Ex.DW2/A. He has admitted that he was sent to bring the witnesses. He has admitted categorically in his cross- examination that Lal Chand is closely related to him. He has also admitted that Jai Kumar is his mother’s nephew. PW-3 Jai Kumar has signed the will as witness. He has admitted that Him Chand has told him that he was not well and his chances of survival were bleak and in these circumstances he wanted to execute a will in favour of Mohan Lal. He has admitted in his cross-examination that PW-1 was in his close relation. Similarly, PW-4 Lal Chand has also admitted that he was closely related to PW-2. He has signed the will as witness. PW-5 has deposed that Him Chand used to sign. 9. Defendant has appeared as DW-1. DW-2 to DW-5, namely, Hari Chand, Narsing Dass, Daulat Ram and Rameshwar have deposed specifically that Him Chand was illiterate and he used to put his thumb impression. This is the evidence led by both the parties. 10. It is settled law by now that onus to prove the will lies on the propounder. He is required to prove the legality of execution and genuineness of the will by explaining the suspicious circumstances, if any, surrounding the will and also by proving the testamentary capacity and the signature of testator. The propounder has to satisfy the conscience of the court by removing all the doubts. Now, in these circumstances, the Court will advert to scan the evidence whether the plaintiff has proved the execution or attestation of the will in accordance with law or not. 11. PW-1 has deposed that his brother used to sign. He has admitted that the will was scribed by his son PW-2. He has admitted that PW-4 was closely related to PW-2. He has also admitted that PW-3 was closely related to his wife. PW-2 has scribed the will. He has deposed that he was sent to summon the witnesses. He has admitted his relationship with PW-4 Lal Chand. He has also admitted that PW-3 was his mother’s nephew. PW-3 Shri Jai Kumar has admitted his close relationship with plaintiff’s mother. Similarly, PW-4 has also admitted his close relationship with PW-2. The will has been scribed in the hospital on 25.03.2001. Him Chand has died on 31.03.2001. PW-3 Jai Kumar has categorically admitted that Him Chand was critical and has told him that his chances of survival were very bleak and in these circumstances, he wanted to execute a will in favour of plaintiff. Plaintiff did not remember the date of the will and he could also not give the storey of I.G.M.C. where the will was scribed. PW-1 and PW-2 have taken keen interest in execution of the will. PW-1 to PW-4 are closely related. The manner in which the will has been scribed in the hospital by the plaintiff’s son and attested by two close relatives, casts doubt on the same. The plaintiff has failed to remove the suspicious circumstances surrounding the will. A bare perusal of Ex.PW2/A reveals that the same have not been signed by Him Chand. It has come categorically in the statements of DW-2 to DW-5 that Him Chand was illiterate and he used to put his thumb impression. The other circumstance which goes against the plaintiff, is that why the father will dis-inherit his real daughter. It may be true that defendant was married 30-35 years back, but that itself cannot be a circumstance for the father to dis-inherit his real daughter. 12. The Apex Court in K. Laxmanan Versus Thekkayil Padmini and others (2009) 1 Supreme Court Cases 354 has held that the onus to prove the will lies on the propounder and he has to prove the legality of execution and genuineness of the will. Their lordships have held as under: “18. It is only as against the judgment and findings that the items of vered by Ext. B2 and B3 are available for division that the second appeal was preferred by the fifth defendant in the High Court of Kerala. Therefore, the properties covered by Ext. B1 and B4 namely items 1 to 3, 13 and 14 are no longer in dispute and the conclusions arrived at by the first appellate court that the said items are not available for division are final and binding on the parties. What is in dispute and is open to further litigation are only the properties covered by Ext. B2 and B3 which were held by both the appellate courts to be available for division. Since we are concerned with the legality of execution of Deed of Will and Deed of Gift, Section 68 of the Act would have some relevance, which reads as follows:- "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, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied." Strong reliance was placed on this provision also by the learned counsel appearing for the parties. A bare reading of the aforesaid provision will make it crystal clear that so far as a Deed of Will is concerned, the position in law is no longer in doubt for the onus of proving the Will is on the propounder. The propounder has to prove the legality of the execution and genuineness of the said Will by proving absence of suspicious circumstances surrounding the said Will and also by proving the testamentary capacity and the signature of the testator. Once the same is proved, it could be said that the propounder has discharged the onus. 19. When there are suspicious circumstances regarding the execution of the Will, the onus is also on the propounder to explain them to the satisfaction of the Court and only when such responsibility is discharged, the Court would accept the Will as genuine. Even where there are no such pleas, but circumstances give rise to doubt, it is on the propounder to satisfy the conscience of the Court. Suspicious circumstances arise due to several reasons such as with regard to genuineness of the signature of the testator, the conditions of the testator's mind, the dispositions made in the Will being unnatural, improbable or unfair in the light of relevant circumstances or there might be other indications in the Will to show that the testator's mind was not free. In such a case, the Court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last Will of the testator. The aforesaid view is taken by us in consonance with the decision of this Court in Shashi Kumar Banerjee v. Subodh Kumar Banerjee (AIR 1964 SC 529) and Pushpavathi v. Chandraraja Kadamba ((1973) 3 SCC 291).” 13. Similarly, their lordships of the Hon’ble Supreme Court in Bharpur Singh and others Versus Shamsher Singh (2009) 3 Supreme Court Cases 687 have again reiterated that the propounder has to remove all suspicious circumstances surrounding the making of the will by cogent and convincing explanation, moreover, when the natural heirs are dis-inherited and the propounder takes interest in the will. Their lordships have spelt out the suspicious circumstance which may be found in the execution of a will. Their lordships have held as under: 14. The legal principles in regard to proof of a will are no longer res integra. A will must be proved having regard to the provisions contained in clause (c) of Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872, in terms whereof the propounder of a will must prove its execution by examining one or more attesting witnesses. Where, however, the validity of the Will is challenged on the ground of fraud, coercion or undue influence, the burden of proof would be on the caveator. In a case where the Will is surrounded by suspicious circumstances, it would not be treated as the last testamentary disposition of the testator. 16. In H. Venkatachala case, it was also held that the propounder of a will must prove: (i) that the Will was signed by the testator in a sound and disposing state of mind duly understanding the nature and effect of disposition and he put his signature on the document of his own free will, and (ii) when the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of testator's mind and his signature as required by law, Courts would be justified in making a finding in favour of propounder, and (iii) If a Will is challenged as surrounded by suspicious circumstances, all such legitimate doubts have to be removed by cogent, satisfactory and sufficient evidence to dispel suspicion. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts indicated therein. It was moreover held:- "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 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 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." 17. This Court in Niranjan Umeshchandra Joshi vs. Mrudula Jyoti Rao & ors. [2006 (14) SCALE 186], held: "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 Madhukar D. Shende v. Tarabai Shedage (2002) 2 SCC 85 and Sridevi and Ors. v. Jayaraja Shetty and Ors. (2005) 8 SCC 784]. 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 (sic) 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 H. Venkatachala Iyengar v. B.N. Thimmajamma and Ors. AIR 1959 SC 443 and Management Committee T.K. Ghosh's Academy v. T.C. Palit and Ors. AIR 1974 SC 1495]" 22. We may notice that in Jaswant Kaur vs. Amrit Kaur & ors. [(1977) 1 SCC 369] this Court pointed out that when the Will is allegedly shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and defendant. An adversarial proceeding in such cases becomes a matter of Court's conscience and propounder of the Will has to remove all suspicious circumstances to satisfy that Will was duly executed by testator wherefor cogent and convincing explanation of suspicious circumstances shrouding the making of Will must be offered. 23. Suspicious circumstances like the following may be found to be surrounded in the execution of the Will: i. The signature of the testator may be very shaky and doubtful or not appear to be his usual signature. ii. The condition of the testator's mind may be very feeble and debilitated at the relevant time. iii. The disposition may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provisions for the natural heirs without any reason. iv. The dispositions may not appear to be the result of the testator's free will and mind. v. The propounder takes a prominent part in the execution of the Will. vi. The testator used to sign blank papers. vii. The Will did not see the light of the day for long. viii. Incorrect recitals of essential facts. 24. The circumstances narrated hereinbefore are not exhaustive. Subject to offer of reasonable explanation, existence thereof must be taken into consideration for the purpose of arriving at a finding as to whether the execution of the Will had duly been proved or not. It may be true that the Will was a registered one, but the same by itself would not mean that the statutory requirements of proving the Will need not be complied with. 14. Accordingly, in view of the observations made hereinabove, there is no illegality in the judgments passed by both the Courts below and the plaintiff has failed to prove the execution or attestation of the will Ext. PW2/A. Consequently, there is no merit in this Regular Second Appeal and the same is dismissed. No costs. (Rajiv Sharma) Judge August 24, 2010. (bhupender)