Prakash Soni vs Deepak Kumar .

2. Brief facts leading to this appeal are, that the appellant herein is the husband of Srimati Mooli Swarnkar, who was working as an Assistant Teacher in Government Girls Higher Secondary School Narsinghgarh, District Rajgarh, Madhya Pradesh; Srimati Mooli Swarnkar died on 18.11.2001, on account of liver cancer and disease of Hepatitis ‘B’. The married couple, i.e, the appellant and his wife – Srimati Mooli Swarnkar did not have any issue, and hence the appellant being her husband and as her only successor claimed to be entitled to receive the retiral benefits, such as, Pension, G.P.F., Death-cum-Retirement Gratuity, Family Welfare Fund, Group Insurance Scheme account etc. Hence, the appellant filed an application on 7.5.2002 before the Civil Judge, Class-I, Narsinghgarh, District Rajgarh, Madhya Pradesh, under Section 372 of the Indian Succession Act (hereinafter referred to as ‘the Act’), for grant of a succession certificate of his wife late Srimati Mooli Swarnkar, so as to entitle him to receive the afore-mentioned retiral benefits. The respondents herein, who were the sons of the brother of late Srimati Mooli Swarnkar also laid their claim in respect of the afore-mentioned retiral benefits of late Srimati Mooli Swarnkar, 3 on the basis of the will, said to have been executed by her on 18.11.2001, i.e., on the day of her death. In other words, the respondents filed counter claim in the application filed by the appellant under Section 372 of the Act. The respondents further claimed, that the deceased had submitted nomination forms dated 16.11.2001 (Ex. D/1 to D/5) to her employer in which the names of the respondents were mentioned as her nominees.

5. The entire case centers around the proof of due execution of the alleged will. Ex. D/6 is said to have been executed by the deceased Srimati Mooli Swarnkar on 18.11.2001. Indisputably, the deceased Srimati Mooli Swarnkar died on 18.11.2001. The nomination forms in favour of the husband – appellant herein were executed by the deceased on 3.3.1992. Similarly, nomination with regard to Provident Fund and Death-cum-Retirement Gratuity were also executed by the deceased in favour of the appellant. However, just two days prior to her death, i.e., on 16.11.2001 at about 7 p.m., the deceased allegedly executed a nomination form as per Ex.D/1 in favour of the respondents, and that too in Care Well Hospital at Bhopal. Similarly, other documents produced by the respondents (Ex. D/2, D/3, D/4 and D/5) were also executed by the deceased in favour of the respondents at the very point of time. The deceased allegedly executed the will in question before the Oath Commissioner on 18.11.2001 as per Ex.D/6 in the early hours of 18.11.2001. The letter allegedly written by the deceased Srimati 6 Mooli Swarnkar as per Ex. D/7 discloses that she has informed the authorities that the appellant has been asking money from her and he had beaten her quite often, and hence she is cancelling the nomination executed in favour of the appellant, and then she has cancelled the nomination made in favour of the appellant.

9. We find from the records that the condition of the testator’s mind and body was very feeble and debilitated. The signature of the testator was allegedly taken on the death bed while she was administered drip. The dispositions made in the will may not be the result of the testator’s free will and mind. In such cases, the Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy and unless it is satisfactorily discharged, Courts would be reluctant to treat the document as the last will of the testator. 9 Since there are many suspicious circumstances narrated above, and as we are satisfied that the dispositions made in the alleged will may not be as a result of testator’s free will and mind, the Civil Court as well as the High Court are not justified in coming to the conclusion that the will Ex.D/6 is duly executed by the deceased. The respondents being the propounders of the will have failed to satisfy the judicial conscience of this Court regarding due execution of the will. Since the suspicious circumstances relate to the genuineness of the signatures of the testator, as well as the condition of the testator’s mind and the dispositions made in the will being unfair, the judgment of the High Court restoring the judgment of the Civil Court is liable to be set aside.

10. Accordingly, the instant appeal is allowed, the judgment of the High Court dated 20.04.2006 passed in Civil Revision No. 63/2005, restoring the judgment of the Civil Court dated 9.10.2004 passed in Succession Case No. 03/2002 is set aside, and the judgment of the first appellate Court dated 8.1.2005 passed in Civil Appeal No. 80-A/2004 is restored. It is held that the appellant, being successor of the deceased Srimati Mooli Swarnkar, is entitled to receive all retiral benefits of his wife, such as, Pension, Gratuity, G.P.F., Family Welfare Fund, 10 Insurance etc. No order as to costs.

SEPTEMBER 15, 2017.

Date : 15-09-2017 This appeal was called on for hearing today.

Hon'ble Mr. Justice Mohan M. Shantanagoudar pronounced the judgment of the Bench comprising Hon'ble Mr. Justice Arun Mishra and His Lordship.

Appeal is allowed in terms of the Signed Non Reportable Judgment.

(Signed Non Reportable Judgment is placed on the file)