Case: Ramchandra Rambux Vs. Champabai And Others

By this will, Ramdhan is alleged to have bequeathed almost his entire property consisting of 16 fields assessed to land revenue at Rs. 425/- per annum, five houses, a shop and movables consisting of 800 tolas of gold, 1,000 tolas of silver, Rs. 50,000/- cash and Rs. 15,000/- due from debtors as well as cattle, agricultural implements, utensils, etc., to the appellant, and practically excluded his widow, Sitabai and his three married daughters. The appellant is the grandson of one of the three predeceased uncles of Ramdhan, and the ground on which the widow and the daughters wree practically excluded by Ramdhan is said to be the strained relations which developed between Ramdhan and his wife during his last days.2. Ramdhan died on October 31, 1948, and Sitabai, who was all along living with him, came into possession of Ramdhans property. Admittedly the appellant did not try to disturb her possession. According to him, he allowed Sitabai to remain in possession on his behalf, and that for some time she was managing the estate in a satisfactory way. Later on, however, she, in utter disregard of the appellants interests, began to give away some portions of the properly to her daughters and strangers, even though she knew that the property had been bequeathed to him by Ramdhan, and that she was entitled to receive only a maintenance of Rs. 40/- per month under the will of Ramdhan. It may be mentioned that Ramdhan was a resident of Peepalgaon in the district of Parbhani, and the entire property movable as well as immovable is at Peepalgaon itself.3. Upon these allegations, the plaintiff instituted the suit out of which this appeal arises, in the District Court at Parbhani. Sitabai denied the execution of the alleged will by Ramdhan, and also denied the relationship claimed by the appellant with Ramdhan. According to her, after Ramdhans death she was in exclusive possession of the property, that she is a helpless widow without a male issue, and that the appellant taking advantage of this fact has set up a false will and laid claim to Ramdhans property. While admitting that the immovable property had been correctly set out in the plaint, she challenged the correctness of some of the items of the movable property. During the pendency of the suit, one Madanlal was joined as a party to it on the basis of his claim to be the adopted son of Ramdhan. He also challenged the genuineness of the will. According to him, he was adopted by Ramdhan in the month of Chait, Samvat, 1999 according to the prevailing custom in the State of Udaipur. Sitabai died during the pendency of the suit, and her daughters, Champabai, Rambhabai, and Rajubai as also Ram Parshad, one of Sitabais sons-in-law, who was alleged to have obtained possession of the property after the death of Sitabai, were brought on record as the legal representatives of Sitabai.4. The trial Court held in favour of the appellant that he was related to Ramdhan, as alleged by him and that the will executed by Ramdhan was genuine. It also negatived Madanlals claim of having been adopted by Ramdhan:On these findings, that Court decreed the appellants suit. The legal representatives of Sitabai thereupon preferred an appeal before the High Court, which held that the will set up by the appellant is not genuine, and on that ground, dismissed his suit.5. In support of the will, the appellant examined himself, the scribe, Venkat Rajaram and three of the attesting witnesses, Raja Kaniah Prasad, Rasheeduddin Ahmed and Wamanlal. The appellant also examined some witnesses in support of his contention that the property bequeathed to him under the will was entrusted by him to Sitabai after the death of Ramdhan. On the other hand, the respondents have led evidence to show that Ramdhan could not have been at Hyderabad where the will is alleged to have been executed, on May 23, 1947, because till the afternoon of the previous day he was at a village nearly 300 miles distant from Hyderabad.6. The High Court, on a consideration of the entire evidence adduced by the parties, came to the conclusion that the will was prepared under highly suspicious circumstances, and that the evidence adduced by the appellant was not such as to satisfy it that the alleged will was a genuine one. According to the High Court, the circumstances appearing in the case indicate that the alleged will was "in all probability" a false document brought into existence without the knowledge of Ramdhan. The High Court rightly pointed out that the nature of proof which was required in a case of this kind was that laid down by the Privy Council in Sarat Kumari Bibi v. Sakhi Chand, 56 Ind App 62: (AIR 1929 PC 45  )where it has been stated that in all cases in which a will is prepared under circumstances which arouse the suspicion of the Court that it does not express the mind of the testator, it is for the propounder of the will to remove that suspicion. According to the High Court, the evidence led by the appellant was so unsatisfactory that it was impossible to give any effect to the alleged will.

Reasoning: .In order to judge the credibility of the witnesses, the Court is not confined only to the way in which the witnesses have deposed or to the demeanour of witnesses but it is open to it to look into the surrounding circumstances as well as the probabilities so that it may be able to form a correct idea of the trustworthiness of the witnesses. This issue cannot be determined by considering the evidence adduced in the Court separately from the surrounding circumstances which have also been brought out in the evidence, or which appear from the nature and contents of the document itself.We do not understand the observations of Lord Watson to mean that the testimony as to the execution of the document has to be considered independently of the attendant circumstances. All that he says is that where there is a large and consistent body of testimony tending to show the execution of a will by the testator, that evidence should not be lightly set aside on the theory of improbability.The High Court has analysed the entire evidence adduced by the propounder of the will to prove its due execution by Ramdhan, and along with that evidence, it has also considered certain attendant circumstances. One is the fact that the will is said to have been executed at Hyderabad, which is a place where the appellant resides and carries on his profession as a medical practitioner and not at Peepalgaon, where Ramdhan resided. The evidence adduced in the case shows that on the day prior to the one on which the will purports to have been executed, Ramdhan was at Ghanegaon till the afternoon. This place is 8 miles distant from Peepalgaon, and the nearest railway station is 20 miles distant from Peepalgaon. The will is said to have been executed at about noon, and though it is not impossible, it is highly improbable that Ramdhan could have been present at the place of execution by that time. The third thing is that the will was executed in the house of the appellant. One of the circumstances is that there was no particular reason why the will should have been executed at that time, because there is no suggestion that Ramdhan was not keeping good health. Then again the property is very considerable, and instead of employing the services of a trained lawyer to draw up the will, a layman like Venkat Bajaram, who has given his profession as "Jagirdari had been enlisted. The scribe as well as the attesting witnesses are not the personal friends of Ramdhan, though they say they knew him, but appear to be either the friends or neighbours of the appellant. Yet, the appellant wants the Court to believe that all these persons were collected by Ramdhan after his arrival at Hyderabad on the morning of May, 23. This, in itself, would be an improbable thing indeed, because Ramdhan would not have had enough time at his disposal for doing it. Again, there is no explanation why he should collect only the friends and acquaintances of the appellant rather than persons, who were his own friends.13. The High Court has further pointed out that the document is inscribed on a flimsy paper. It is in high flown Urdu, and is alleged to have been dictated by him in that language. No doubt, the evidence indicates that Ramdhan could speak in Urdu, but it also indicates that he cannot read or write in Urdu. It would, therefore, be legitimate to infer that the language which he could speak was the unlettered mans Urdu and notUrdu, which contains an admixture of Persian words. Indeed, such words have actually been used in this document. The signature of Ramdhan is itself in Modi script, which would not have been the case if he were well versed in Urdu. When we turn to the reverse of the sheet on which the document is inscribed, we find that as we go lower down, more and more words seem to be crammed in each line and the spacing between two lines tends to decrease, even though there appears to have been plenty of room for the sigature of Ramdhan to be scribed lower down on the paper. It would be legitimate to infer from this that the signature was already there before the will was scribed. This feature of the document as well as the quality of the paper used would suggest that a piece of paper bearing Ramdhans signature has been utilised by the scribe for engrossing what purports to be a will.14. Finally, there is the circumstance that the will is unnatural in the sense that though Ramdhan left property worth several lakhs, he made no provision for a residence for his wife but gave her only Rs. 40/per month as her maintenance, and made only paltry bequests to his daughters. It is true that the daughters are married in affluent families, but in the absence of a male issue, a father is normlly expected to give at least substantial bequests to his daughters. Instead, the will gives almost the entire property to a distant relative, who, it may be noticed, was neither brought up by the testator, nor was a person who looked after the testator during his declining years. All this is said to have been due to the fact that Ramdhans relation with his wife had become strained. Indeed, the relationship between Ramdhan and his wife had become so bad that Ramdhan, according to the appellant, suspected that she was trying to poison him. Curiously enough, in spite of this, Ramdhan continued to live with Sitabai right till his death, and had made no arrangement for a person other than her to take charge of the cash and the gold and silver ornaments of the value of a couple of lakhs of rupees or so, in the event of his dying suddenly. There is nothing to suggest that Ramdhans food was cooked by any one other than Sitabai.15. To prove the appellants allegations that Ramdhan and Sitabai were not getting on well, the main evidence is that of the appellant himself, who is the person who has obviously taken an active part in procuring the execution of the document which he has set up as the will of Ramdhan. He must be held to have taken an active part, even though, according to him, he did not do so, because the will was written not only at Hyderabad where he lives and carries on his profession but also in his own house, and the persons who played one part or the other in this connection are either his friends or his neighbours. It is there circumstances which have to be borne in mind while evaluating the testimony of the witnesses bearing on the execution of the will. Further, it is necessary for the appellant to satisfy the conscience of the Court about the genuineness of this will by removing all suspicions which naturally flow from the various circumstances, which we have set out above. There is not an iota of evidence in this regard and we are not satisfied that the suspicion created by the circumstances referred to by us has been removed. Learned counsel has taken us through the evidence of the allpellant, the scribe and three attesting witnesses examined by him. All this evidence has been critically examined by the High Court but for reasons given by it in its judgment, not accepted by it. We find no reasons for viewing the evidence differently.16. We have already adverted to the fact that no particular reason has been even indicated by the appellant as to why Ramdhan thought of executing a will long before his death. If his idea in doing so was to make certain that his property does not fall in Sitabais hands after his death one would have expected to make some arrangement for keeping the movables out of her reach. He, however, made no such arrangement. Further, he would have also taken the precaution of registering the will, so that any challenge to its genuineness could not have been successfully made.17. Further, there is no unimpeachable evidence to show that the will was brought to light immediately after Ramdhans death, which would have been the case if it were a genuine will. On the other hand, there is one circumstance which suggests that the claim on the basis of Ramdhans will was not even thought of by the Appellant till long after Ramdhans death. The circumstance is the continuance of Sitabai in possession of the cash, gold and silver articles and other movables even subsequent to Ramdhans death. Of course, the appellant has given the explanation that he allowed her to remain in possession on his behalf, but his evidence is wholly incredible. Indeed, the appellant has said that he instituted the suit because he found Sitabai parting with portions of Ramdhans movables in favour of her daughters and strangers after the death of Ramdhan. At least, one thing will follow item this that according to him Sitabai was more interested in her daughters than in him. If, therefore, he had a genuine claim to Remdhans property, he would not have allowed Sitabai to remain in possession of Ramdhans movables. At least, he would have obtained from her a document containing the list and description of the movables and also an admission to the effect that she was entrusted with them by the appellant and that she had no right in them. Had she refused to execute such a document, one would have naturally expected the appellant to institute a suit for their possession immediately. There is no explanation for the absence of such a document, and thus this is also a circumstance which militates against the genuineness of the will.