HIGH COURT OF HIMACHAL PRADESH AT SHIMLA OSA No. : 32 of 2000 Reserved on: 24.11.2008. Decided on: 29.12.2008. Madan Lal Butail and others ………Appellants/defendants. Versus Anil Butail and others. ………Respondents/plaintiffs. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? Yes. For the appellants: Mr. Bhupender Gupta, Senior Advocate with Ms.Charu Gupta, Advocate. For the respondents: Mr.Ajay Kumar, Advocate. Per V.K. Ahuja, J.: This is an appeal filed by the appellants/defendants against the judgment and decree passed by the learned Single Judge, dated 8.9.2000, vide which the suit filed by the respondents/plaintiffs was decreed and a preliminary decree for partition of the properties detailed in plaint by metes and bounds was passed in favour of the plaintiffs and against the defendants and the Will set up by the defendants was held to be suspicious. Initially the suit was filed by plaintiff No.1 Smt.Kaushalya Devi against defendants No.1 and 3 in which she had impleaded her son and daughter as defendants No.4 and 5. Lateron, the defendants No.4 and 5 were transposed as defendants No.2 and 3. Various amendments were made to the pleadings ___________ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. and it is the final amended pleadings which are being referred to. The parties are being referred to in the manner they are arrayed in the amended pleadings. The plaintiffs alleged that the suit property belonged to Roshan Lal Butail, who died on December 4, 1984 leaving behind the plaintiffs and defendant No.1 as his legal representatives. According to the plaintiffs, Shri Roshan Lal died intestate though some Wills allegedly executed by him were stated to have been set up by the defendants. The plaintiffs alleged that the deceased suffered a severe attack of paralysis much prior to his death as a result of which the mental capabilities of the deceased were adversely affected rendering him incapable of executing any Will with a sound disposing and proper application of mind. It was also alleged that the deceased could not even speak. The immoveable properties have been detailed in the plaint which are mainly ancestral plots at Village Pragpur, Tehsil Dehra, District Kangra, ancestral property known as Block No.99/3, New Butail Building, Shimla, a three storeyed multi suite building and 2-1/2 storeyed building at Greater Kailash, Delhi, which was alleged to be self acquired property of the deceased. It was further alleged that the deceased also possessed moveable property assets comprising cash, money lying in the banks, furniture etc. It was alleged that after the death of Roshan Lal Butail, the property devolved upon the plaintiffs and defendant No.1. Plaintiff No.1 was having 5/16th share in the joint family coparcenary property at Shimla and Pragpur and 1/4th share in the property at Delhi. It was further alleged that plaintiff No.2 was having 1/4th share in the suit properties and plaintiff No.3 was having 1/16th share in the ancestral joint family properties and 1/4th share in the immoveable property at Delhi. The plaintiffs further claimed to be in joint possession of the properties left by the deceased at the time of his death and they are in exclusive physical possession of the top floor of the house in Delhi and a flat in the middle floor of Butail Building at Shimla. It was further alleged that since plaintiffs No.2 and 3 are permanently settled in United States of America and plaintiff No.1 had been in service as a teacher in a school at Halwara, defendant No.1 by taking undue advantage of the situation procured a power of attorney from the deceased Roshan Lal for realizing the rents of suit properties in 1984 and since then he had been realizing the rents of the suit properties, but he failed to render accounts to the plaintiffs. The plaintiffs alleged that since defendant No.1 had collected the substantial amounts and had failed to remit the same to the plaintiffs, the plaintiffs are entitled to rendition of accounts and plaintiff No.1 is further entitled to the Istridhan i.e. the gold ornaments lying in the lockers which are the exclusive property of plaintiff No.1. Defendants contested the suit filed by the plaintiffs and on merits they denied that the plaintiffs are the legal heirs of the deceased. They also set up a Will said to have been duly executed by the deceased on 18.10.1984 in favour of defendant No.1 and his sons. The defendants also denied the allegation that the deceased was incapable of executing the Will due to his alleged illness or that he was not of sound disposing mind. It was pleaded that the deceased was married to Sheela Devi, mother of the defendant, in the year 1934. Smt.Sheela Devi died in 1942. Thereafter, Shri Roshan Lal Butail married plaintiff No.1 in the year 1945. Plaintiffs No.2 and 3 were admitted to be son and daughter of the deceased out of the wedlock with plaintiff No.1. It was further alleged that plaintiff No.1 deserted the deceased in the year 1965, but defendant No.1 continued serving the deceased in the absence of plaintiffs No.2 and 3, who were living abroad. It was further pleaded that plaintiff No.1 did not join the company of the deceased for the rest of his life and did not even visit him at the time of his death. It was pleaded that a Will was also executed by the deceased on 4.10.1984 at the instance of plaintiff No.2, but the same was revoked by the present Will, dated 18.10.1984, vide which the deceased bequeathed his properties in favour of the defendants. It was further pleaded that as per the last Will so executed, the residential houses in Greater Kailash, Delhi devolved upon defendants No.2 and 3 and the New Butail Building at Lower Bazar, Shimla devolved upon defendant No.1. It was pleaded that since plaintiffs No.2 and 3 were permanently settled in United States of America, they were given six vacant residential plots at Pragpur. All moneys lying in the various banks have been given equally to the defendants after meeting the expenses of medical bills etc. Defendant No.1 also pleaded that he is the executor of the Will, who has been empowered to distribute the alleged share amongst the beneficiaries under the Will. It was also pleaded that a notice was sent by Dr. Kailash Nath Sood through counsel to plaintiff No.1 and defendant No.1 informing that he had in his possession a sealed envelope containing the Will of the deceased. The said envelope was handed over to plaintiff No.1 and plaintiff No.1 took a false stand that it was empty though it contained the Will, dated 18.10.1984, which is the last Will of the deceased. It was denied that the plaintiffs are in joint possession of the properties left by the deceased and it was also pleaded that the plaintiffs are not entitled to rendition of accounts. It was also pleaded that the ornaments, as claimed, were not stated to be in the lockers and, therefore, the plaintiffs are not entitled to any relief. On the pleadings of the parties, the following issues were settled by the learned Single Judge: 1. Whether the properties in the suit are joint and ancestral properties qua the parties, as alleged in the plaint? OPP 2. Whether the plaintiffs and defendants are in joint possession of the suit properties, as alleged and if so in what capacity? OPP 3. Whether the plaintiff is entitled to a decree of partition and rendition of accounts, as prayed for, and if so, what are the shares of the parties in the suit property? OPP 4. Whether the defendant No.1 has collected the rents/profits of the suit property as alleged in the plaint and is liable to account for the same? OPP 5. Whether the ‘Istridhan’ of the plaintiff is in the locker of the deceased late Sh.Roshan Lal Butail or with the defendant No.1 as alleged? OPP 6. In case issue No.5 is proved in the affirmative, whether the plaintiff is entitled to a decree for mandatory injunction as prayed for by her? OPP 7. Whether late Sh.Roshan Lal executed a legal and valid Will on 18.10.1984 in favour of the defendant No.1 and his sons as alleged in the written statement ? OPD 1,4 & 5 8. Whether the suit in the present form is neither competent nor maintainable as alleged? OPD-1. 9. Whether the suit has not been properly valued for the purposes of court fees and jurisdiction and if so, what is the correct valuation thereof? OPD-1 10. Whether the plaint has not been verified in accordance with law as alleged? OPD-1 11. Whether the plaintiff is estopped from filing the present suit on account of her own acts, deeds, conduct and acquiescence etc. as alleged? OPD-1. 12. Relief. The following two additional issues were also settled by the learned Single Judge: 11-A Whether the plaint lacks material particulars and the averments in the plaint are mutually contradictory and destructive, as alleged. If so, its effect? OPD 11-B Whether the suit is barred by the principles of resjudicata, as alleged? OPD. On conclusion of the trial, the learned Single Judge decided Issues No.1, 2, 3, 4, 7, 8, 9, 10, 11, 11-A and 11-B in favour of the plaintiffs and against the defendants. Issues No.5 and 6 were decided in favour of the defendants and against the plaintiffs. We have heard the learned counsel for the parties and have gone through the record of the case. The submissions made by the learned counsel for the appellants were that the Will in question was not surrounded by any suspicious circumstances and it was executed by the deceased in his sound disposing mind in favour of the defendants. It was also submitted that the learned Single Judge had considered every circumstance brought on record as suspicious which circumstances cannot be termed as suspicious circumstances and, therefore, the final findings recorded by the learned Single Judge holding that the Will in question was suspicious cannot be termed as correct. It was submitted that according to law, the Will was required to be attested by two attesting witnesses, who had attested the same and their identity was also proved on record. It was also submitted that according to law, only one attesting witness was required to be examined to prove the Will, who has been examined to prove the validity of the Will and as such, the Will stood legally proved. It was further submitted that the mere fact that the deceased had thumb marked the Will due to the paralytic attack suffered by him some time ago was not sufficient to prove that he was not in sound disposing mind and, therefore, the learned Single Judge had wrongly held that the Will was not proved to have been validly executed. The other points raised to support these submissions, during the course of arguments, shall be referred below while referring to the evidence led by the parties. To substantiate his pleadings, the learned counsel for the appellants had placed relied upon the decision of the Apex Court in H.Venkatachala Iyengar v. B.N. Thimmajamma and others, AIR 1959 Supreme Court 443. This is a detailed decision of the Apex Court in which their Lordships had considered the question as to how the Will is required to be proved, how the evidence is to be appreciated by the Court and what is the duty of the court in appreciating such evidence. It also lays down the law as to how the propounder of the Will is required to remove the suspicious circumstances surrounding the Will, if any. The observations made in paras 18, 19 and 22 of the said judgment are relevant which are reproduced as under: “………………………………….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 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.” (Para 18) “…………………………………..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 propounder. In other words the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.” (Para 19) ……………………………………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.” (Para 22). Reliance was also placed upon the decision in Savithri and others vs. Karthyayani Amma and others, (2007) 11 Supreme Court Cases 621. In that case, the question was of mental capacity of the testator, who was unwell at the time of execution and there was exclusion of natural heirs. The testator, a cancer patient, having no independent source of income, was totally dependent on respondents (i.e. his sister and her children). The role of sister’s family was emphasized as the parties were governed by Marumakkattayam School of Hindu Law. The testator disinherited his legal heirs and executed will in favour of the respondents. It was held that the testator was bound to place implicit faith and confidence only upon those who had been looking after him. The Apex Court held that the mere fact that the natural heirs were excluded or a lesser share was given to them, by itself without anything more, could not be held to be a suspicious circumstance. In that case, the testator lived seven years after the execution of the will and did not cancel it. This supported the validity of the will. Further, reliance was also placed upon the decision in Rabindranath Mukherjee and another vs. Panchanan Banerjee (dead) by LRs. and others, (1995) 4 Supreme Court Cases 459, wherein the question was mainly pertaining to identification of testatrix before the Sub Registrar by an Advocate, which is not the case here. The other decision cited by the learned counsel for the appellants was in Gurdev Kaur and others vs. Kaki and others, 2006 (4) Civil Court Cases 625 (S.C.). It was observed that if a Will appears on the face of it to have been duly executed and attested in accordance with the requirements of the Statute, a presumption of due execution and attestation applies. It was further observed that the court cannot decide the correctness of the testator’s decision. The role of the court is limited to examining whether the instrument propounded as the last Will of the deceased is or is not executed by the testator and whether it is the product of the free and sound disposing mind. It is only for the purpose of examining the authenticity or otherwise of the instrument propounded as the last Will, that the Court looks into the nature of the bequest. On the other hand, the learned counsel for the respondents had submitted that the statement made by one of the attesting witnesses examined is not reliable since DW-5 Ramakant Sachdeva was closely related to defendant No.1 and, therefore, his statement cannot be relied upon. The learned counsel for the respondents had referred to some infirmities in the deposition of this witness and other witnesses, which shall be referred here-in-after while referring to the evidence. It was submitted that the evidence of the defendants was not such which could prove the valid execution of the Will or the fact that the deceased was in sound disposing mind. It was submitted that there is nothing on record to show that who was the author of the Will, when the contents of the Will were disclosed to the person who typed the Will or that these were read over to the witnesses or the deceased by whom and whether the deceased admitted the contents as correct in presence of the attesting witnesses at any time. To substantiate his submissions, the learned counsel for the respondents had placed reliance on the decision in Kalyan Singh vs. Chhoti and others, AIR 1990 Supreme Court 396. The observations made in para 20 of the said decision are relevant and are being reproduced below: “A Will is one of the most solemn documents known to law. The executant of the Will cannot be called to deny the execution or to explain the circumstances in which it was executed. It is, therefore, essential that trustworthy and unimpeachable evidence should be produced before the court to establish genuineness and authenticity of the Will. It must be stated that the factum of execution and validity of the Will cannot be determined merely by considering the evidence produced by the propounder. In order to judge the credibility of witnesses and disengage the truth from falsehood the court is not confined only to their testimony and demeanour. It would be open to the court to consider circumstances brought out in the evidence or which appear from the nature and contents of the documents itself. It would be also open to the court to look into surrounding circumstances as well as inherent improbabilities of the case to reach a proper conclusion on the nature of the evidence adduced by the party.” The learned counsel for the respondents also placed reliance on the decision in Smt.Indu Bala Bose and others vs. Manindra Chandra Bose and another, AIR 1982 Supreme Court 133, in which it was held as under: “The suspicious circumstances may be as to the genuineness of the signatures of the testator, the condition 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 suspicions should be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes a prominent part in the execution of the will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances, the court would grant probate, even if the will might be unnatural and might cut off wholly or in part near relations. Any and every circumstance is not a ‘suspicious’ circumstance. A circumstance would be ‘suspicious’ when it is not normal or is not normally expected in a normal situation or is not expected of a normal person.” In the light of the above case law and the submissions made by the learned counsel for the parties, it has to be considered as to whether the Will in question can be said to be legally proved or not, or as to whether the suspicious circumstances had been removed by the propounder of the Will or not. The question arises as to whether every circumstance can be considered a suspicious circumstance and, therefore, every circumstance has to be explained by the propounder of the Will. Before we refer to the suspicious circumstances surrounding the Will, which have been referred to by the learned Single Judge in detail, we deem it necessary to refer to some of the facts of the case including the pleadings of the parties and the evidence led in this regard. The plaintiffs alleged that Shri Roshan Lal Butial died intestate, though some Wills are alleged to have been executed by him which are being set up by defendants since Roshan Lal was afflicted with a severe attack of paralysis much before of his death as a result of which his mental capabilities were adversely affected and he was incapable of making any Will with a sound and proper application of his mind. It was also alleged that he had even lost faculty of speech and could not and did not execute any alleged Will. The plaintiffs also alleged that the intentions of defendant No.1 have been to grab the entire property left by the deceased Roshan Lal and to oust the plaintiffs and her children (plaintiffs No.2 and 3) from the aforesaid joint properties. It was also alleged that defendant No.1 managed to procure in his favour general power of attorney from plaintiffs No.2 and 3 and by grossly abusing the said power of attorney collected substantial amounts and when plaintiff No.1 came to know of the real dishonest intentions of defendant No.1, plaintiffs No.2 and 3 cancelled the power of attorney executed in his favour by serving a notice on defendant No.1. The defendants had pleaded that the deceased had executed a valid Will on 18.10.1984 and the property has devolved upon the defendants in accordance with the Will duly executed by the deceased on 18.10.1984. However, it was admitted by the defendant that the deceased had suffered an attack of paralysis much before his death but it was denied that his mental capacities were adversely affected or he was handicapped in making any Will with a sound and proper application of mind. It was also denied that the defeased had lost the faculty of speech and was pleaded that he was in sound disposing state of mind till the date of his death i.e. 4.12.1984. In written statement, a fact was also alleged by the defendants that on 8th July, 1985, a notice was got sent by one Dr.Kailash Nath Sood through Shri Ajay Kumar Sood, Advocate, to plaintiff No.1 and defendant No.1 informing that he had in his possession a sealed envelope containing Will of late Shri Roshan Lal. The said Dr.Kailash Nath Sood handed over the said envelope to plaintiff No.1. An application was moved by defendant No.1 and plaintiff No.1 took up a false stand in reply to the said application that when she got the envelope, she found it to be empty, which is false to her knowledge. It was pleaded that the plaintiff fully knew that a valid Will was executed on 18.10.1984, which was set up by the defendants. She had avoided deliberately to produce the Will of the deceased. Some evidence was led by the parties in this regard when Dr. Kailash Nath Sood appeared as DW-1, who stated about the envelope and the notice. Defendant No.1 had replied that he was nowhere interested with the Will and after referring to the evidence in this regard, the learned Single Judge had concluded that this matter is required to be kept in view while appreciating the evidence. In our view, no benefit can be taken by either of the parties in regard to these pleadings since in fact no Will was ever produced on record allegedly executed by the deceased and once no such Will saw the light of the day, it does not further substantiate the case of the plaintiff or demolish the