IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No. 20 of 2001. Judgment reserved on 2.8.2011 Date of decision: 29.8.2011 _________________________________________________ Hari Chand ….Appellant. Versus Babu Ram and others ….Respondents. Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 yes For the appellant : Mr. K.D. Sood, Advocate. For respondents : Mr. Rajnish Maniktala, Advocate. Surinder Singh, Judge. The present Regular Second Appeal under Section 100 of the Code of Civil Procedure was admitted on the following substantial question of law: (i) Whether the Will Ext. DW-2/A was shrouded with any suspicious circumstances and the fact that the Will was not registered, the propounder took active part in the execution of the Will and the witnesses being of the same Panchayat and the Will having 1 Whether the reporters of Local Papers may be allowed to see the judgment ? - 2 - been scribed by educated person could be dubbed as suspicious character? (ii) Whether the findings of the Courts below are vitiated and based on misconstruction and misreading of Will Ext. DW2/A, as also the statements of DW3, Durga Parshad and DW4 Prithi Chand which has vitiated the findings? 2. Briefly stated, the facts giving rise to the present appeal can be stated thus. The respondents were the plaintiffs and the appellant herein was the defendant before the learned trial Court and they shall be referred to as such hereinafter. 3. The suit was filed by the plaintiffs for seeking the relief of declaration with consequential relief of injunction qua the suit land. The plaintiffs and the defendant are the brothers and sisters. Their mother was Smt. Basanti Devi. Plaintiffs contended that Smt. Basanti died intestate and all of them were entitled to succeed her estate by inheritance in equal shares. It is alleged that defendant set-up a false and fabricated Will of Smt. Basanti Devi and got mutation No. 50 attested in his favour in collusion with the Consolidation Staff. They pleaded that in case the Will aforesaid is proved, in that event, it is - 3 - the result of fraud and misrepresentation and not a result of free mind, therefore, liable to be set aside. 4. The defendant offered a strong resistance to the suit and raised preliminary objections in his written statement with respect to its maintainability, took up the objection of estoppel and questioned the locus-standi of the plaintiffs to file the suit. 5. On merits, it is averred that the Will dated 27.8.1985 Ext. DW2/A was executed by Smt. Basanti Devi in free disposing state of mind in his favour and the plaintiffs were not entitled to any share in the suit land. It was also pleaded that the defendant being the eldest son had shouldered all the responsibilities of the family and got his brothers and sisters married except Rattan Chand and Laxmi by spending huge amount. About 25 years back there has been a family partition. Plaintiff Hukam Chand was adopted by step-mother Ranju and he succeeded to her estate. He also got the share in her house whereas Smt. Basanti Devi their mother stayed with the defendant. She remained bed-ridden for about ten years and was nourished/served by the defendant in lieu of the service rendered, she executed the Will - 4 - in his favour in the presence of respectable witnesses. Thus supported the mutation based upon the Will in his favour. 6. In replication, plaintiffs denied the preliminary objections raised by the defendant and re-affirmed the even paras of the plaint on merits. 7. On the basis of the pleadings of the parties, following issues were framed by the learned trial Court. 1. Whether Smt. Basanti Devi had executed a valid Will in respect of her estate in favour of defendant, as alleged? OPD. 2. If Issue No. 1 is proved in the affirmative, whether the impugned Will executed by Smt. Basanti Devi is the result of fraud, misrepresentation and coercion? OPD. 3. Whether the plaintiffs are estopped by their act and conduct from filing the suit? OPD. 4. Whether the suit is not maintainable in the present form? OPD. 5. Relief. 8. Both the parties led their evidence and after hearing the parties, the learned trial Court held that the Will in question was not a valid and legal document and the plaintiffs were not estopped by - 5 - their acts and conduct to file the suit as such their suit was maintainable as a result of these findings, the suit was decreed against which the defendant filed appeal No. 160-G/XIII/1999 before the learned District Judge which was also dismissed on the ground that the Will was not a legal and valid document and was shrouded by suspicious circumstances and also that there was nothing to show that the deceased was made aware of the contents of the Will which was having urdu words and she was quite illiterate lady. Hence the challenge in present appeal. 9. I have heard learned counsel for the parties and examined the record. 10. There is a long line of decisions bearing on the nature and standard of evidence required to prove a Will. Those decisions have been reviewed in an elaborated judgment of the apex Court in R. Venkatachala Iyengar v. B.N. Thimmajamma AIR 1959 SC 443 which was also relied upon by the learned first appellate Court in which the nature and standard of evidence required to be proved in a case of Will lays down the following propositions:- - 6 - (1) Stated generally, a Will has to be proved like any other document, the test to be applied being the usual test to the satisfaction of the prudent mind in such matters. As in the case of proof of other documents. So in the case of proof of Wills one cannot insist on proof with mathematical certainty. (2) Since Section 63 of the Succession Act requires a Will to be attested, it cannot be used as evidence until, as required by Section 68 of the Evidence Act, 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. (3) Unlike other documents, the will speaks from the death of the testator and therefore, the maker of the will is never available for deposing as to the circumstances in which the will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will. - 7 - (4) Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which receives a substantial the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in sound and disposing state of mind and memory at the time when the will was made, or that those like wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the Court. The propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator. - 8 - (5) It is in connection with wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been involved that test 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 called upon to decide a solemn question and the reason of suspicious circumstances the will has been validly executed by the testator. (6) If a caveator alleges fraud undue influence, coercion, etc. in regard to the execution of the will, may raise a doubt as to whether the testator was acting of his own free will. And then it is part of the initial onus of the propounder to remove all reasonable doubts in the matter.” 11. The aforesaid test laid down by the apex Court was followed in series of the subsequent decisions of the Supreme Court. In all cases in which the will is alleged to have been prepared under circumstances raising suspicion, it is for the propounder of the Will to remove that suspicion. Precisely, the mode of proving the Will does not ordinarily differ from that proving any other - 9 - document except as to the special requirement of attestation prescribed in the case of will by Section 63 of the Indian Succession Act. Where there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before the court accepts the will as genuine. Where the caveator, alleges undue influence, fraud and coercion the onus is on him to prove the same. Even where there are no such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court. 12. It is in the light of the above general considerations, I must decide whether the defendant is justified in contending that the findings arrived at by the Courts below against him on the question of valid execution of the will is justified or not, viz-a-viz, the above substantial questions of law. 13. Admittedly, the maker of the alleged Will Smt. Basanti was an illiterate, rustic villager. She was paralytic and bed-ridden for the last about 5/6 years of making the said Will, living with the defendant. 14. DW2 Sat Paul is the scribe of the Will Ext. DW2/A. Though he stated that it was written by him - 10 - at the behest of Smt. Basanti in the presence of the marginal witnesses Prithi Chand, Durga Prasad and Hari Chand, the propounder of the Will, it was read over and explained to her after admitting its correctness. She appended her thumb impression on the will. Thereafter Durga Prasad and defendant Prithi Chand appended their signatures thereon. His cross-examination needs attention. In cross examination, he stated that he did not know Urdu at all. He also could not explain what was the meaning of “mankula” or “gair mankula” words mentioned in the Will. He admitted that some of the contents of the Will were dictated by DW3 Durga Prasad Pradhan at the instance of Basanti Devi but denied having prepared a false Will in collusion with the marginal witnesses. 15. DW3 Durga Parshad is resident of another village named Bagli, 5 kms. away from the house of the defendant. With respect to the Will he stated that he inquired from Basanti Devi about the Will and she conveyed the same to him in local language but it was he who dictated it to the scribe and few things were also dictated by him of his own. He also - 11 - stated that the paper on which the will was written and the pen were supplied by him. 16. Another attesting witness of the will Ext. DW2/A dated 27.8.1985 is DW4 Prithi Chand who remained Up-pradhan in the year 1985-86. He was associated as a witness at the behest of the defendant. He stated that till Ratna was alive Smt. Basanti Devi stayed with him and thereafter with the defendant who served her till her death. At the time when the Will was executed, she was suffering from paralysis and was not in a position to walk. 17. On the scrutiny of the aforesaid evidence and going through the Will, the learned trial Court came to the conclusion that the Will was written in a professional style and the scribe of the Will did not know about urdu words mentioned in the Will. Qualification of the scribe was also not known and he had no prior experience or knowledge of drafting the Will. DW3 Durga Parshad stated that the matter of the Will was narrated to him by the testator in local language but he added certain additional things in the Will to the scribe. There has been no reference in the statement of the attesting witnesses - 12 - that the will was explained to Smt. Basanti Devi in local language to which she understood and it was only thereafter, knowing fully the contents of the Will, she appended her thumb impression in token of its execution in the presence of the witnesses. 18. The findings arrived at are correct. It is not understood as to why the witnesses of the same village were not included as the marginal witnesses. It is also not the case of the defendant that the aforesaid witnesses were known to the executant or it was she who had called them to associate as the marginal witnesses. All these circumstances remained unexplained. 19. The learned counsel for the defendant vehemently argued that the execution of the will stands proved in accordance with law and to support his arguments, he cited Gopal Swaroop vs. Krishna Murari Mangal & Ors 2011(1) Civil Court Cases 467, (SC) and argued that the thumb impression of the testator stands proved on the will having appended in the presence of the attesting witnesses and each of the witnesses signed the will in the presence of the testator. - 13 - 20. As a matter of fact, proof of the Will is one thing but if it is surrounded by suspicious circumstances and fails to satisfy the conscience of the Court, it cannot be said to have been proved in accordance with law. 21. In the instant case, although the propounder of the Will, i.e., the defendant has played an active part in getting the Will executed, may not be a sole ground fatal to the Will, but there are very glaring circumstances which stare at the face and make the Will a suspect. The intelligent execution of the document stands not proved. Smt. Basanti being illiterate and rustic lady can be equated with a pardanashin lady. There is nothing confidence inspiring on record to know whether Smt. Basanti Devi, in fact, intended to make the Will in the manner she wanted. If DW3 has made his own additions in the Will, it ceases to represent to the wish of the testator. Further, she was totally dependent on the defendant. Therefore, in these circumstances, the undue influence by the defendant and even the marginal witnesses on her also cannot be ruled out. - 14 - 22. For the foregoing reasons, in my opinion, the courts below have not misconstrued or mis- interpreted the evidence and the Will in question. Moreover, it is a concurrent finding of facts and cannot be interfered with in appeal. The above substantial questions of law are accordingly answered, in view of Nalinakshi N. Rai and others versus Indira Shetty (1999) 9 SCC 248 by the apex Court that such a question is not a question of law much less a substantial question of law. Accordingly, the appeal is dismissed with costs. August 29 , 2011 (Surinder Singh), (cm) Judge.