Case: Rani Purnima Devi And Another Vs. Kumar Khagendra Narayan Dev And Another

an identifier and did not say that Arabali had put any questions to the testator about the execution of the will, and that the testator admitted the execution. In cross-examination he said that the testator signed in his presence at the bottom of the will. He however never said that the Will was read over to the testator or was read by him and that the testator admitted the execution of the Will to him and thereafter he signed the will at the bottom. Thus all that one finds is that he signed as a person who identified the testator.21. If therefore these two witnesses namely, Arabali and Dehiram Bora are to be treated as attesting witnesses for the purpose of S. 63 of the Indian Succession Act, (No. 39 of 1925), it is clear that they completely fail to prove due execution and attestation of the will as required by that section. So all that we come to is that there is a bald statement of Arabali to the effect that he examined the testator who admitted the execution of the will and there is the statement of Dehiram Bora that at that time he identified the testator before Arabali. It is on this that the Will was later registered by the Sub-Registrar.22. We may refer to one more circumstance that has been urged before us. It is said that the will undoubtedly existed in January, 1944 as evidenced by its registration. Therefore, if this was not a genuine Will of the testator he would have taken steps to revoke it, for he died almost 21 years after the registration of the Will. This, however, assumes that the testator knew of the existence of this Will. If he did not know of the existence of this Will there would be no question of his revoking it, however long afterwards he might have died. Now the evidence that the testator, knew of the existence of this Will consists only of what happened on December 29, 1943, and on the date when Arabali went to Majikuchi on commission in connection with the registration of the will. We have already dealt with the evidence with respect to these two dates and if that evidence is insufficient to prove due execution and attestation of the Will, as we hold it is, it would also be insufficient to show that the testator knew after the end of January, 1944 that such a Will existed. In the absence, therefore, of the knowledge of the testator about the existence of this Will, this circumstance loses all its force.23. There is no doubt that if a will has been registered, that is a circumstance which may, having regard to the circumstances, prove its genuineness. But the mere fact that a will is registered will not by itself be sufficient to dispel all suspicion regarding it where suspicion exists, without submitting the evidence of registration to a close examination. If the evidence as to registration on a close examination reveals that the registration was made in such a manner that it was brought home to the testator that the document of which he was admitting execution was a Will disposing of his property and thereafter he admitted its execution and signed it in token thereof, the registration Will dispel the doubt as to the genuineness of the will. But if the evidence as to registration shows that it was done in a perfunctory manner, that the officer registering the will did not read it over to the testator or did not bring home to him that he was admitting the execution of a will or did not satisfy himself in some other way (as, for example, by seeing the testator reading the Will) that the testator knew that it was a Will the execution of which he was admitting, the fact that the Will was registered would not be of much value. It is not unknown that registration may take place without the executant really knowing what he was registering. Law reports are full of cases in which registered Wills have not been acted upon : (see, for example, Vellaswamy Servai v. Sivaraman Servai, ILR 8 Rang 179 : (AIR 1930 PC 24 ), Surendra Nath v. Jnanendra Nath, AIR 1932 Cal 574 and Girja Datt Singh v. Gangotri Datt Singh, (S) AIR 1955 SC 346 . Therefore, the mere fact of registration may not by itself be enough to dispel all suspicion that may attach to the execution and attestation of a Will; though the fact that there has been registration would be an important circumstance in favour of the will being genuine if the evidence as to registration establishes that the testator admitted the execution of the will after knowing that it was a Will the execution of which he was admitting.24. The question therefore is whether in the circumstances of the present case the evidence as to registration discloses that the testator knew that he was admitting the execution of a Will when be is said to have put down his signature at the bottom of the will in the presence of Arabali. We have scrutinized that evidence carefully and we must say that the evidence falls short of satisfying us in the circumstances of this case that the testator knew that the document the execution of which he was admitting before Arabali and at the bottom of which he signed was his will. Therefore we are left with the bald fact of registration which in our opinion is insufficient in the circumstances of this case to dispel the suspicious circumstances which we have enumerated above. We are therefore not satisfied about the due execution and attestation of this will by the testator and hold that the propounder has been unable to dispel the suspicious circumstances which surround the execution and attestation of this Will. In the circumstances, no letters of administration in favour of the respondent can be granted on the basis of it.

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

Explanation:
1[ds]The evidence, however, does not show that the relations between the testator and his son-in-law were particularly strained at the time of the execution of the will. In any case there is no satisfactory evidence to show that relations between the testator and his daughter were bad, even if the relations between him and his son-in-law were not of the best, In the circumstances we should have expected the testator to make some provision for the daughter, particularly when it is said that she was not well-off. There is no doubt therefore that the will is most unnatural and that is a suspicious circumstance which must be satisfactorily explained before the respondent can get letters of administration.8. Another suspicious circumstance is that the respondent gets the sole benefit under the will subject to the maintenance of the wife and the sister and he was certainly taking part in the execution of the will on the date it was executed. In such circumstances the respondent was required to remove the said suspicion by clear and satisfactory evidence.Another suspicious circumstance is that the signature of the testator does not appear to be his usual signature. That is why a lot of questions were put to the witnesses whether the testator signed the will with his left hand or right hand and evidence was also given that the right hand of the testator had been injured sometime before.10. Another suspicious circumstance is that it has been proved in this case that the testator used to sign blank papers for use in his cases in court and used to send them to his lawyer through his servants and these papers could be in the possession of Rameswar Sarma the lawyer of the testator, who has appeared as a witness to prove the will and who was, according to his evidence, consulted by the testator in this matter. Such papers could also be found in the possession of the testators mukhtars. Therefore it was possible to manufacture a will on papers already signed by the testator; and that is certainly a suspicious circumstance which had to be overcome in thisis obvious therefore that Sarma tried to pose as an independent witness by denying what his son-in-law had already stated about his connection with the respondent. In the circumstances he cannot also be held to be a disinterested witness, which he tried to be. Besides, none of these three witnesses belong to Na-hawli, where the execution of the will took place. The evidence also shows that among the sixteen persons who attested the will there were persons who were both independent and respectable like Banshidhar Goswami, a doctor, Jammi-ud-din, an elder of the village and Baneswar Deka, a retired Sarishtedar; but no attempt was made to produce these witnesses to dispel the suspicion arising from the circumstances which we have already mentioned.13. Apart from the witnesses being interested, the actual evidence given by them also does not in our opinion dispel the suspicion aroused in thisBhattacharya is contradicted by the respondent and Kulendra Narayan who says that Bhattacharya had been staying at Kulendra Narayans place for two days before and had gone from there to Na-hawli with the respondent and his father and Kulendra Narayan. The story therefore that Bhattacharya was invited by the testator is obviously false and if he did go to Na-hawli it must have been in the company of the respondent and his father whose Purohit hethese circumstances the inference would be that the story about the execution has been made up and that is why there are contradictions on such an important matter. In any case these contradictions hardly help to dispel the suspicion aroused by the circumstances already mentioned above.But we should have expected from a witness of this kind strict regard for truth and if, we were sure that the witness had strict regard for truth we might have believed his statement. As we have already pointed out, however this witness does not appear to have much regard for truth and tried to pose as an independent witness by denying that he was working as a lawyer for the respondent, when his son-in-law had already admitted that he was the present pleader of the respondent. In these circumstances we can place no reliance on his evidence, for if he was capable of denying his connection with the respondent he can be capable of colluding with the respondent in manufacturing the Will on signed blank papers which were admittedly available to him and others. Looking at the evidence of the three attesting witnesses and the respondent broadly, we must say that that evidence does not dispel the suspicion as to the due execution and attestation of this Will.16. The High Court was also conscious of the fact that the evidence as to the execution and attestation of the will was not very adequate, for the learned Chief Justice observed that the evidence on the point of actual execution might not be very adequate; but the view taken by the High Court was that more evidence was not necessary in view of the pleadings of the parties. In this connection the High Court relied on Dwijendra Narayan Debs acceptance of the Will in favour of the respondent. This in our opinion was not justified so far as the appellants were concerned, for an admission of Dwijendra Narayan Deb who must now be held to have put forward a forged Will could not be an added circumstance to support the inadequate evidence led by the respondent. We are further of the opinion that the High Court was not justified in excusing the inadequacy of the evidence to prove the due execution and attestation of the Will on the basis of the pleadings of the parties. It is true that the appellants did not say in so many words that the Will propounded by the respondent was a forgery as they did about the Will propounded by Dwijendra Narayan Deb; even so the appellants had put the respondent to strict proof of due and legal execution and attestation of the Will and there was an issue to that effect. This was not a case where the due and legal execution and attestation of the Will was admitted and the only disputes were that the testator had not a sound disposing state of mind or had acted under undue influence or coercion. Though the appellants did not go to the length of characterising the Will as a forgery as they did in the case of the Will propounded by Dwijendra Narayan, they certainly put the respondent to strict proof of legal and due execution and attestation of the will. In such circumstances it was the duty of the respondent, particularly in the presence of suspicious circumstances which have been noted by the High Court, to prove the due execution and attestation of the Will by satisfactory evidence which would lead the Court to the conclusion that the suspicious circumstances had been dispelled. We do not see how the evidence which has been characterised by the High Court as inadequate would suffice to dispel the suspicious circumstances which undoubtedly are present in this case. We have no hesitation in coming to the conclusion, apart from the question of registration with which we shall deal presently, that if the evidence which has been produced in this case were all the evidence available to prove the due execution and attestation of the will, there could be no doubt that the respondent had failed to satisfy the Court and dispel the suspicious circumstances which were undoubtedly present in thisis no doubt that this Will was registered on January 27, 1944 and there is an endorsement on the Will to the effect that the testator had admitted the execution of it.It is not quite clear what the High Court meant by this, namely, whether the High Court thought that these four witnesses also attested the will; but a perusal of the will transcribed in the record (Ex. 3) shows that this is not correct, for the only person who signed at the bottom of the will at the time of the visit of Arabali besides Arabali himself and the testator, was Dehiram Bora. Learned counsel for the respondent was unable to satisfy us how the High Court got the impression that four witnesses had signed at the bottom of the will presumably as a matter of attestation when the registration clerk came on commission. We must therefore proceed on the footing that the High Court was not right in the view that four persons had signed the will, whatever that may mean, when Arabali came for registration; and in so far as the High Court judgment was influenced by this circumstance, it suffers from an infirmity.19. However, let us look at what actually happened when Arabali came for the registration of the will. Arabalis own statement on this point is that he examined Chandra Narayan Deb (i.e. the testator) at Majikuchi who admitted the execution of the will. This is all that Arabali has said in this connection. There is nothing in the evidence to show that the Will was read over to the testator or was read by him before he admitted execution of it. What exactly passed between Arabali and the testator at this time has also not been given by Arabali and the exact words used by him in this connection and the exact reply of the testator are also absent from the evidence. It is true that it is broadly stated by Arabali that he examined the testator who admitted the execution of the will. That in our opinion is hardly sufficient in a case of this kind to dispel the serious suspicion which attaches to the due execution and attestation of this will. Further the evidence of Arabali is that Dehiram Bora identified the testator. That is all the part assigned by Arabali, to Dehiram Bora, besides the fact that Dehiram Bora signed at the bottom of the will thereafter. Arabali does not say that Dehiram Bora was present when the testator had admitted the execution of the Will or that the testator signed at the bottom of the will in the presence of Dehiram Bora and Dehiram Bora signed it in the presence of the testator. Of course, Arabali does say that the testator signed at the bottom of the Will in his presence, though he does not say that he signed it in the presence of the testator. We are referring to this aspect of the matter, for it has been urged that even if the execution and attestation of December 29, 1943, is open to doubt the Will must be held to be duly executed and attested before Arabali and Dehiram Bora.If therefore these two witnesses namely, Arabali and Dehiram Bora are to be treated as attesting witnesses for the purpose of S. 63 of the Indian Succession Act, (No. 39 of 1925), it is clear that they completely fail to prove due execution and attestation of the will as required by that section. So all that we come to is that there is a bald statement of Arabali to the effect that he examined the testator who admitted the execution of the will and there is the statement of Dehiram Bora that at that time he identified the testator before Arabali. It is on this that the Will was later registered by the Sub-Registrar.Therefore, if this was not a genuine Will of the testator he would have taken steps to revoke it, for he died almost 21 years after the registration of the Will. This, however, assumes that the testator knew of the existence of this Will. If he did not know of the existence of this Will there would be no question of his revoking it, however long afterwards he might have died. Now the evidence that the testator, knew of the existence of this Will consists only of what happened on December 29, 1943, and on the date when Arabali went to Majikuchi on commission in connection with the registration of the will. We have already dealt with the evidence with respect to these two dates and if that evidence is insufficient to prove due execution and attestation of the Will, as we hold it is, it would also be insufficient to show that the testator knew after the end of January, 1944 that such a Will existed. In the absence, therefore, of the knowledge of the testator about the existence of this Will, this circumstance loses all its force.23. There is no doubt that if a will has been registered, that is a circumstance which may, having regard to the circumstances, prove its genuineness. But the mere fact that a will is registered will not by itself be sufficient to dispel all suspicion regarding it where suspicion exists, without submitting the evidence of registration to a close examination. If the evidence as to registration on a close examination reveals that the registration was made in such a manner that it was brought home to the testator that the document of which he was admitting execution was a Will disposing of his property and thereafter he admitted its execution and signed it in token thereof, the registration Will dispel the doubt as to the genuineness of the will. But if the evidence as to registration shows that it was done in a perfunctory manner, that the officer registering the will did not read it over to the testator or did not bring home to him that he was admitting the execution of a will or did not satisfy himself in some other way (as, for example, by seeing the testator reading the Will) that the testator knew that it was a Will the execution of which he was admitting, the fact that the Will was registered would not be of much value. It is not unknown that registration may take place without the executant really knowing what he was registering. Law reports are full of cases in which registered Wills have not been actedTherefore, the mere fact of registration may not by itself be enough to dispel all suspicion that may attach to the execution and attestation of a Will; though the fact that there has been registration would be an important circumstance in favour of the will being genuine if the evidence as to registration establishes that the testator admitted the execution of the will after knowing that it was a Will the execution of which he washave scrutinized that evidence carefully and we must say that the evidence falls short of satisfying us in the circumstances of this case that the testator knew that the document the execution of which he was admitting before Arabali and at the bottom of which he signed was his will. Therefore we are left with the bald fact of registration which in our opinion is insufficient in the circumstances of this case to dispel the suspicious circumstances which we have enumerated above. We are therefore not satisfied about the due execution and attestation of this will by the testator and hold that the propounder has been unable to dispel the suspicious circumstances which surround the execution and attestation of this Will. In the circumstances, no letters of administration in favour of the respondent can be granted on the basis of it.