Case: Sushila Devi Vs. Pandit Krishna Kumar Missir &amp; Others

chance witness and lastly that he was somewhat pompous at the time of giving evidence. The High Court, in our opinion, rightly declined to attach any importance to any of those circumstances. 7. Next we shall consider the evidence of Harihar Prased Upadhaya (A. W. 2), who was previously a Prof.of Engish in the Patna Science College. At the material time he was a Prof. of English in the Rajendra College, Chapra. His evidence was rejected by the trial court. His evidence is that he happened to go to the hospital at about the time when the will was being executed. He saw the will being read out to the testator and further he was present when the testator signed the will. He did not attest the will. He left the place when the will was being attested by others. He was not asked to attest the will. The only ground on which the testimony of this witness was rejected by the trial court was that if he was present at the time of the execution of the will, he would have been asked to attest it. The trial court overlooked the fact that as many as six persons had attested the will and therefore possibly the testator did not think it necessary to ask this witness also to attest the will. There are no good reasons to reject the testimony of this witness. We now come to the evidence of (A. W. 4) Shiva Shankar Roy. He has attested the will. At the material time he was the auditor of a Cooperative Society at Chapra. He had happened to go to the hospital on the day in question. There he was asked to attest the will. The ground on which the trial court rejected the testimony of this witness is that the father-in-law of Govindamani Tripathi was also an officer working in Cooperative department and hence the witness should be considered as being interested. The High Court rightly thought that merely because the father-in-law of Govindmani Tripathi and the attestor belonged to the same department the trial court should not have come to the conclusion that the witness had attested a forged will. 8. Next we may refer to the evidence of Kamla Prasad a clerk in the Local Board Office. He was a friend of the testator from a long time. According to him he used to call on the testator now and then when he was in the hospital. Two days prior to the execution of the will the testator asked him to come over to the hospital on the following Saturday as he had some private work with him. That is how he happened to go to the hospital on the day in question. He also appears to be a completely disinterested witness. No good reasons have been given by the trial court for rejecting his testimony. Then there is the evidence of Sachida Nand Prasad (A. W. 6), Head Master, Rajendra Collegiate School. He is also an attestor to the will. There is no reason to reject his testimony. 9. The scribe of the will who is also examined in this case is not a professional writer but he is a Tehsildar of a Zamindar. He was well known to the testator. The deceased had called him to write the will. The witnesses referred to above are independent and respectable witnesses. There are no good reasons to reject their testimony. 10. In addition to the evidence referred to earlier, we must refer to the evidence of two other persons viz. Srikrishnadev Prasad (A. W. 7), a leading advocate of Patna and Rai Brij Raj Krishna (A. W. 8), to whom we have already made reference. According to Srikrishnadeva Prasad, the testator consulted him about making a will in about the year 1935 and under his instructions he prepared a draft of a will for him. According to him the will propounded is more or less in line with the draft prepared by him. He spoke to the fact that even under the draft prepared by him, no bequest was made in favour of the appellant. It is not known whether the testator had made any will in pursuance of the draft given by Krishnadeva Prasad but from his evidence it is clear that even as far back as 1935, the testator was not intending to bequeath any property to his second daughter. His evidence further discloses that the testator was thinking that because he had performed the Upanayan of Govindmani Tripathi, got him married and is looking after him, Govindmani Tripathi in law had become his Putrika Putra and thus entitled to his properties. But the witness advised him that that is not the position in law; if he wanted that Govindmani Tripathi should succeed to his properties, he must execute a will and it is on the basis of that advice the testator asked the witness to prepare the draft of a will. This witness is a highly respectable person. There is no reason to disbelieve him. 11. The evidence of Rai Brij Raj Krishna has also considerable significance. Undoubtedly he is a very respectable person. By profession he is an advocate. As mentioned earlier, his family was the patron of the testator. The witness appears to have been a personal friend of the testator. According to the witness sometime prior to his death the testator discussed with him about making a will. He told him that he is desirous of bequeathing all his properties to Govindmani Tripathi as he, considered him as his adopted son. The witness advised him that he should bequeath some property to his second daughter also. But then the testator told him that he had given her some money and he proposed to give her some more money. But he would not be giving her any immovable property. This evidence, which is clearly acceptable goes to prove that the bequest made by the testator cannot be considered as unnatural.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]The High Court did attach significance to the circumstance that no bequest under the will had been made to the appellant though the testator loved her as much as his elder daughter Monorama. But on the basis of the evidence on record, it opined that the testator was treating Govindmani Tripathi as his Putrika Putra and in fact he was thinking of bequeathing all his properties to him. The High Court also relied on the evidence adduced in the case that the testator must have paid some cash to the appellant before the execution of the will and further he must have thought that there was no need to make any bequest in her favour as her husband, a Muktyar was reasonably well placed in life whereas his firstw Kamla Prasadmani Tripathi and his son Govindmani Tripathi were dependent on him for their livelihood5. Prima facie, the circumstance that no bequest was made to the appellant by the testator would make the will appear unnatural but if the execution of the will is satisfactorily proved, the fact that the testator had not bequeathed any property to one of his children cannot make the will invalid. If the bequest made in a will appears to be unnatural then the court has to scrutinise the evidence in support of the execution of the will with a greater degree of care than usual, because every person must be presumed to act in accordance with the normal human behaviour but them is no gainsaying the fact that some individuals do behave in an abnormal manner. Judges cannot impose their own standard of behaviour on those who execute wills. As observed by this Court in H. Venkatachala Iyengar v. B. N. Thimmajamma, (1959) Supp (1) SCR 426=(AIR 1959 SC 443  ) that the made of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed by S. 63 of the Indian Succession Act. Proof in either case cannot be mathematically precise and certain and so the test should be one of satisfaction of a prudent mind in such matters. The onus must be on the profounder and in absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and signature of the testator as required by law may be sufficient to discharge the onus. Where, however, there are suspicious circumstances the onus would be on the profounder to explain them to the satisfaction of the court before the will can be accepted as genuineThe evidence on record discloses that a day or two earlier to the execution of the will the testator who was in the Government hospital at Chapra requested his friend, Kamla Prasad (A. W. 5), a clerk in the Local Board Office who had called on him in the hospital to come to the hospital on Saturday following, telling him that he had some private work with him. Similarly he had asked the scribe of the will, a Tehsildar of a Zamindar to come there on that day. The evidence further discloses that some of the persons who had attested the will had come to the hospital to call on the testator and that they were asked to attest the will. The question for decision is whether the evidence of the scribe and the attestors can be relied on. One of the attestors of the will is Prof. H. K. Narain. At the relevant time he was the professor and Head of Department of Commerce in Rajendra College. He was also a Fellow of the Patna University. He is not shown to be interested in any of the beneficiaries under the will. Undoubtedly he was a friend of the testator. He used to visit the testator when he was in the hospital. It appears that several important persons were visiting the testator when he was in the hospital. The trial court refused to place faith on his testimony firstly on the ground that he had not been invited to attest the will, secondly that he was a chance witness and lastly that he was somewhat pompous at the time of giving evidence. The High Court, in our opinion, rightly declined to attach any importance to any of those circumstancesThere are no good reasons to reject the testimony of this witness. We now come to the evidence of (A. W. 4) Shiva Shankar Roy. He has attested the will. At the material time he was the auditor of a Cooperative Society at Chapra. He had happened to go to the hospital on the day in question. There he was asked to attest the will. The ground on which the trial court rejected the testimony of this witness is that thew of Govindamani Tripathi was also an officer working in Cooperative department and hence the witness should be considered as being interested. The High Court rightly thought that merely because thew of Govindmani Tripathi and the attestor belonged to the same department the trial court should not have come to the conclusion that the witness had attested a forged will9. The scribe of the will who is also examined in this case is not a professional writer but he is a Tehsildar of a Zamindar. He was well known to the testator. The deceased had called him to write the will. The witnesses referred to above are independent and respectable witnesses. There are no good reasons to reject their testimony10. In addition to the evidence referred to earlier, we must refer to the evidence of two other persons viz. Srikrishnadev Prasad (A. W. 7), a leading advocate of Patna and Rai Brij Raj Krishna (A. W. 8), to whom we have already made reference. According to Srikrishnadeva Prasad, the testator consulted him about making a will in about the year 1935 and under his instructions he prepared a draft of a will for him. According to him the will propounded is more or less in line with the draft prepared by him. He spoke to the fact that even under the draft prepared by him, no bequest was made in favour of the appellant. It is not known whether the testator had made any will in pursuance of the draft given by Krishnadeva Prasad but from his evidence it is clear that even as far back as 1935, the testator was not intending to bequeath any property to his second daughter. His evidence further discloses that the testator was thinking that because he had performed the Upanayan of Govindmani Tripathi, got him married and is looking after him, Govindmani Tripathi in law had become his Putrika Putra and thus entitled to his properties. But the witness advised him that that is not the position in law; if he wanted that Govindmani Tripathi should succeed to his properties, he must execute a will and it is on the basis of that advice the testator asked the witness to prepare the draft of a will. This witness is a highly respectable person. There is no reason to disbelieve him11. The evidence of Rai Brij Raj Krishna has also considerable significance. Undoubtedly he is a very respectable person. By profession he is an advocate. As mentioned earlier, his family was the patron of the testator. The witness appears to have been a personal friend of the testator. According to the witness sometime prior to his death the testator discussed with him about making a will. He told him that he is desirous of bequeathing all his properties to Govindmani Tripathi as he, considered him as his adopted son. The witness advised him that he should bequeath some property to his second daughter also. But then the testator told him that he had given her some money and he proposed to give her some more money. But he would not be giving her any immovable property. This evidence, which is clearly acceptable goes to prove that the bequest made by the testator cannot be considered as unnatural.