Case: ANIL KAK Vs. KUMARI SHARADA RAJE AND OTHERS

attest and extrinsic evidence on this point is receivable. 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 Vs. Tarabai Aba Shedage, 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. [See also Adivekka and Others Vs. Hanamavva Kom Venkatesh D by LRs. and Another, ] 40. Whereas execution of any other document can be proved by proving the writings of the document or the contents of it as also the execution thereof, in the event there exists suspicious circumstances the party seeking to obtain probate and/ or letters of administration with a copy of the Will annexed must also adduce evidence to the satisfaction of the court before it can be accepted as genuine. 41. As an order granting probate is a judgment in rem, the court must also satisfy its conscience before it passes an order. It may be true that deprivation of a due share by the natural heir by itself may not be held to be a suspicious circumstance but it is one of the factors which is taken into consideration by the courts before granting probate of a Will. Unlike other documents, even animus attestandi is a necessary ingredient for proving the attestation. In Benga Behera and Another Vs. Braja Kishore Nanda and Others, , this Court held: 46. Existence of suspicious circumstances itself may be held to be sufficient to arrive at a conclusion that execution of the Will has not duly been proved. In B. Venkatamuni Vs. C.J. Ayodhya Ram Singh and Others, , it was stated: However, having regard to the fact that the Will was registered one and the propounder had discharged the onus, it was held that in such circumstances, the onus shifts to the contestant opposing the Will to bring material on record meeting such prima facie case in which event the onus shifts back on the propounder to satisfy the court affirmatively that the testator did not know well the contents of the Will and in sound disposing capacity executed the same. Each case, however, must be determined in the fact situation obtaining therein. The Division Bench of the High Court was, with respect, thus, entirely wrong in proceeding on the premise that compliance of legal formalities as regards proof of the Will would sub-serve the purpose and the suspicious circumstances surrounding the execution thereof is not of much significance. The suspicious circumstances pointed out by the learned District Judge and the learned Single Judge of the High Court, were glaring on the face of the records. They could not have been ignored by the Division Bench and in any event, the Division Bench should have been slow in interfering with the findings of fact arrived at by the said court. It applied a wrong legal test and thus, came to an erroneous decision. Yet again in Savithri and Others Vs. Karthyayani Amma and Others, , this Court held: 18. We do not find in the fact situation obtaining herein that any such suspicious circumstance was existing. We are not unmindful of the fact that the court must satisfy its conscience before its genuineness is accepted. But what is necessary therefor, is a rational approach. 19. Deprivation of a due share by the natural heirs itself is not a factor which would lead to the conclusion that there exist suspicious circumstances. For the said purpose, as noticed hereinbefore, the background facts should also be taken into consideration. The son was not meeting his father. He had not been attending to him. He was not even meeting the expenses for his treatment from 1959, when he lost his job till his death in 1978. The testator was living with his sister and her children. If in that situation, if he executed a Will in their favour, no exception thereto can be taken. Even then, something was left for the Appellant. 42. The court is, thus, required to adopt a rational approach in a situation of this nature. Once the court is required to satisfy its conscience, existence of suspicious circumstances play a prominent role. The Will, as noticed hereinbefore, is in two parts. Whereas the first part deals with the property belonging to the husband of the testatrix, the second part deals with the properties which purportedly belongs to her. Distribution of assets, however, was not specifically stated in the Will. They were to be made as per the appendices annexed thereto. The appendices which were required to be read as a part of the main Will so as to effectuate the intention of the testatrix have not been proved. The Will by its own cannot be given effect to. The Will must be read along with the appendices. No doubt in construing a Will arm chair rule is to be adopted. The Will was, therefore, not complete. It is not correct to contend that the appendices were very much in existence at the time when the Will was executed. Existence of a document must mean the actual existence.

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

Explanation:
0[ds]11. The learned Counsel appearing for both the parties, have addressed us on the merit of the matter. We are not considering the correctness or otherwise of the judgment of the Division Bench of the High Court holding the Letters Patent Appeals to be not maintainable, nor it is necessary for us so to do.12. We may also at the outset place on record that no argument has been advanced in regard to the findings of the learned Single Judge of the High Court refusing to grant letters of administration in respect of the Will dated 23.08.1978 of the testatrix.18. Although all the four daughters of the testatrix were the beneficiaries of the properties described in Part A of the Will, detailed directions as to how the said estate is to be administered had been made therein. Even in relation to the criteria as regards distribution of assets including the manner in which the tax and other liabilities are to be made and how the investments with banks and others are to be encashed, if necessary to be encashed have been stated. More importantly, however, the shares in the companies were to be held in the joint names of the testatrix as also the joint executors. The executors were to hold the same in trust. Whether the said direction had been carried out and, if so, how and in what manner is not known. Executors had also been granted express power to recall and repossess the jewellery, money or moneys wroth possessed by any beneficiary of the Will or legatee but ownership of which was not conferred on them for the purpose of meeting government dues, liabilities or expenses20. The Will was purported to have been executed in presence of one Shanta Kumari Jain, a notary. Two medical certificates; one issued by Dr. S.K. Mukherjee and the other by Dr. Normal Sharma, were also annexed thereto.21. It is not denied or disputed that the Appellant Anil Kak took an active part in the matter of preparation and execution of the Will.For proving the said Will, the Appellants examined one of the executors, viz., Kumar Rampratap Singh as PW-1. He was not aware of the contents of the Will. It was handed over to him on 10.09.1993 by Shri T.N. Unni (PW-6), Chartered Accountant. It was in turn handed over to Anil Kak. The said Will was not executed in his presence. He was not even aware of the execution thereof.22. Shanta Kumari Jain, Notary, Geeta Sanghi, one of the attesting witnesses and T.N. Unni examined themselves in support of the case of the Appellants.According to T.N. Unni, he had drafted only pages one to six of the Will. The said Will was purported to have been executed at his residence at Indore. Geeta Sanghi and Baljeet Bawa were the attesting witnesses. Baljit Bawa, as noticed hereinbefore, was not examined. Geeta Sanghi sought to prove the testatrixs signature as also her own signatures on the Will.23. It is beyond any doubt or dispute that none of the attesting witnesses had put their signatures on appendices A to C. Appendices A to C contain the list of jewelleries in great details and which jewellery should be given to which grand daughter. The Wealth Tax assessment for the year 1992-93 was also annexed by way of a statement showing the market value of the shares of the companies registered in India. Another appendix specified that ACC and TISCO shares were to be equally divided amongst four daughters, viz., as per their average market value on the date of latest Wealth Tax assessment.A statement showing the market value of the shares of the companies registered in U.K. as per the wealth tax assessment for the year 1992-93 was also annexed. In regard to the division thereof, it is stated that each companys share is divided equally amongst my four daughters. Names of the daughters had again been mentioned therein. Statement showing the value of quoted shares as per wealth tax assessment for the year 1992-93 had also been appended, the division whereof were to be done in the following manner:The shares in each company will be divided into six equal divisions. My grand children Gangesh Kumari, Jagat Bingley and Ashish Dalvi will get one Division each and my great grand children are bequeathed three remaining shares as follows Children of Gangesh Kumari get one division, Children of Jagat Bingley get one division, children of Vijayendra Ghatge get one division. In case Ashish Dalvi is married and has children before my demise, the shares in each company will be divided into seven equal divisions and distribution remains the same with the additional division going to the children of Ashish Dalvi.24. It also contained bequeaths of jewellery from the personal list of the testatrix as valued on 31st March, 1992 done by M/s. J.R.M. Bhandari. It again contained the statement showing the value of quoted shares in respect of certain companies and the mode and manner in which division thereof should be carried out.25. It has furthermore been admitted that those appendices did not see the light of the day when the Will was executed by the testatrix and attested and notarised.26. It has furthermore not been disputed that whereas Gangesh Kumari Jagat Bingley and Ashish Dalvi are children of Sumitra Raje Dalvi, the only other grand child of testatrix Vijayendra Ghatge is son of Sita Raje Ghatge From the list containing the details of the jewellery, it appears that Vijayendra Ghatge and family had been given one semi rectangle clip set with diamond and ruby cabochon and two buttons studded with diamonds and pearls set in gold. Umika Ghatge had also been given one square diamond ring and one bracelet watch set with diamonds ruby and emerald.It furthermore appears that Arjun Kak is also a beneficiary under the Will.27. The High Court made a distinction between the documents which are mere appendices to an otherwise complete Will and those which are par and parcel of the Will forming its integral part.28. From what has been noticed hereinbefore it is clearly evident the division has not been made per stripe or per capita but by species. Each on of the jewelleries which was to be bequeathed to each of the beneficiar thereunder had specifically been specified. Moreover, from the valuation report, it would appear that the respective distribution purported to have been made in terms of the appendices would not make them of equal value or nearabout which was the desire of the testatrix.32. Section 87 of the Act provides that testators intention to be effectuated as far as possible, stating:87. Testators intention to be effectuated as far as possible - The intention of the testator shall not be set aside because it cannot take effect to the full (sic) but effect is to be given to it as far as possible.33. In a case of this nature, however, in our opinion, Section 87 of the Act will have no application.34. If the appendices formed an integral part of the Will and in their absence the Will was not complete, then the intention of the testator cannot be effectuated. A distinction must be made between an incomplete Will and a complete Will although intention of the testator cannot be effectuated.The testators intention is collected from a consideration of the whole Will and not from a part of it. If two parts of the same Will are wholly irreconcilable, the court of law would not be in a position to come to a finding that the Will dated 4.11.1992 could be given effect to irrespective of the appendices. In construing a Will, no doubt all possible contingencies are required to be taken into consideration. Even if a part is invalid, the entire document need not be invalidated, only if it forms a severable part. [See Bajrang Factory Ltd. and Another Vs. University of Calcutta and Others, ]35. But, the aforementioned principle cannot be applied in the instant case inasmuch as appendices appended to the Will clearly specify as to how and in what manner the intention of the testatrix to divide her properties equally amongst her daughters and/ or her grand children was to be implemented.It is not a case where a general division was to be made leaving the manner of application to the executors. The Will refers to appendices. Once it refers to the appendices indicating that the distribution shall be in terms thereof, it is difficult to comprehend as to how without the same, the Will can be said to be a complete one so as to effectuate the intention of the testator. The intention of the testator in other words must be found out from the entire Will. It has to be read as a whole. An endeavour should be made to give effect to each part of it. Only when one part cannot be given effect to, having regard to another part, the doctrine of purposive construction as also the general principles of construction of deed may be given effect to. In the instant case, the document is one. It is inseparable. Whereas the principal document provides for the broad division, the principles of division laid down therein would be followed if the appendices are to be taken recourse to. If the principles of equality as has been suggested by the learned Counsel is to be given effect to, it was expected that the testatrix intended to confer the same benefit or the benefit having same value or nearabout to be conferred on each of the legatees.In effect and substance, the purported directions contained in the appendices which did not see the light of the day on the date of execution of the Will, make the application of the directions of the testatrix wholly impossible to be carried out. It is in that sense the provisions of Section 87 of the Act are applicable.36. The High Court has assigned vood and cogent reasons in support of its judgment for not accepting the evidence of Mr. Unni. Mr. Unni admitted that the appendices were to be brought by Anil Kak. If the same had not been brought to her on the day the Will was executed, we wonder how the testatrix had knowledge thereabout. It now almost stands admitted that the appendices did not form part of the Will at the time of its purported execution. If the Will was incomplete the question of its proving the execution does not arise. An integral part of the document for the purpose of satisfying the tests laid down u/s 63(1)(c) of the Act and Section 68 of the Evidence Act must mean a complete document.41. As an order granting probate is a judgment in rem, the court must also satisfy its conscience before it passes an order.It may be true that deprivation of a due share by the natural heir by itself may not be held to be a suspicious circumstance but it is one of the factors which is taken into consideration by the courts before granting probate of a Will.Unlike other documents, even animus attestandi is a necessary ingredient for proving the attestation.In Benga Behera and Another Vs. Braja Kishore Nanda and Others, , this Court held:46. Existence of suspicious circumstances itself may be held to be sufficient to arrive at a conclusion that execution of the Will has not duly been proved.In B. Venkatamuni Vs. C.J. Ayodhya Ram Singh and Others, , it was stated:However, having regard to the fact that the Will was registered one and the propounder had discharged the onus, it was held that in such circumstances, the onus shifts to the contestant opposing the Will to bring material on record meeting such prima facie case in which event the onus shifts back on the propounder to satisfy the court affirmatively that the testator did not know well the contents of the Will and in sound disposing capacity executed the same.Each case, however, must be determined in the fact situation obtaining therein.The Division Bench of the High Court was, with respect, thus, entirely wrong in proceeding on the premise that compliance of legal formalities as regards proof of the Will would sub-serve the purpose and the suspicious circumstances surrounding the execution thereof is not of much significance.The suspicious circumstances pointed out by the learned District Judge and the learned Single Judge of the High Court, were glaring on the face of the records. They could not have been ignored by the Division Bench and in any event, the Division Bench should have been slow in interfering with the findings of fact arrived at by the said court. It applied a wrong legal test and thus, came to an erroneous decision.Yet again in Savithri and Others Vs. Karthyayani Amma and Others, , this Court held:18. We do not find in the fact situation obtaining herein that any such suspicious circumstance was existing. We are not unmindful of the fact that the court must satisfy its conscience before its genuineness is accepted. But what is necessary therefor, is a rational approach.19. Deprivation of a due share by the natural heirs itself is not a factor which would lead to the conclusion that there exist suspicious circumstances. For the said purpose, as noticed hereinbefore, the background facts should also be taken into consideration. The son was not meeting his father. He had not been attending to him. He was not even meeting the expenses for his treatment from 1959, when he lost his job till his death in 1978. The testator was living with his sister and her children. If in that situation, if he executed a Will in their favour, no exception thereto can be taken. Even then, something was left for the Appellant.42. The court is, thus, required to adopt a rational approach in a situation of this nature. Once the court is required to satisfy its conscience, existence of suspicious circumstances play a prominent role. The Will, as noticed hereinbefore, is in two parts. Whereas the first part deals with the property belonging to the husband of the testatrix, the second part deals with the properties which purportedly belongs to her. Distribution of assets, however, was not specifically stated in the Will. They were to be made as per the appendices annexed thereto. The appendices which were required to be read as a part of the main Will so as to effectuate the intention of the testatrix have not been proved. The Will by its own cannot be given effect to. The Will must be read along with the appendices. No doubt in construing a Will arm chair rule is to be adopted. The Will was, therefore, not complete. It is not correct to contend that the appendices were very much in existence at the time when the Will was executed. Existence of a document must mean the actual existence.