Judgment Case ID: 1856

Judgment:
Appeal No. 758 1963. Appeal from the judgment and decree dated February of the former Bombay High Court in Appeal of 1957 from original decree. 815 J. B. Dadachanji	 Ravinder Narain and O. C. Mathur	 for the appellant. Girish Chandra and Sardar Bahadur	 for respondents Nos. 1	 2 (i) to 2 (iv)	 3 and 4. February 17	 1964. The Judgment of the Court was delivered by: MUDHOLKAR	 J. The question which arises for consideration in this appeal by a certificate granted by the High Court of Bombay is whether a will alleged to have been executed by one Ramdhan on May 23	 1947 is genuine or is a fabrication. 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	0001/ 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 were practically excluded by Ramdhan is said to be the strained relations which developed between Ramdhan and his wife during his last days. Ramdhan died on October 31. 1948	 and Sitabai	 who was all along living with him	 came into possession of Ramdhan 's 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 appellant 's interests	 began to give away some portions of the property 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. Upon these allegations	 the plaintiff instituted the suit out of which this appeal arises	 in the District Court at 816 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 Ramdhan 's 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 ha	. set up a false will and laid claim to Ramdhan 's 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. lie 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 Pershad	 one of Sitabai 's 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. 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 Madanlal 's claim of having been adopted by Ramdhan. On these findings	 that Court decreed the appellant 's suit. 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. In support of the will	 the appellant examined himself	 the scribe	 Venkat Rajaram and three of the attesting witnesses	 Raja Kaniahprasad	 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 817 previous day he was at a village nearly 300 miles distant from Hyderabad. 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. Accord ing 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 vs Sakhi Chand(1)	 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. Mr. Dadachanji 's grievance	 however	 is that the entire approach of the High Court to the evidence in this case was wrong	 because it first took into consideration the various circumstances	 and then judged the credibility of the wit nesses in the light of those circumstances. In support of his contention	 he has relied upon the following observation of Biswas	 J. in Kristo Gopal vs Baidya Nath(2): "It is difficult to avoid the conclusion that the learned Judges for some reason or other must have formed the idea that the will was not a genuine document	 and that having formed such	 an idea. he looked at the evidence of each of the witnesses with a suspicious eye. On no other hypothesis is it possible to explain the criticism which he has led himself to make. " The learned Judge has supported his observation by quoting the following observations of Lord Watson in Chotey Narain Singh vs Mt. Ratan Koer(3): (1)(1928) L.R. 56 I.A. 62. (2) A.I.R. 1939 CaL 87. (3) 22 I.A. 12. 23. 134 159 S.C. 52 818 "The theory of improbability remains to be considered; and the first observation which their Lordships	 have to make is that	 in order to prevail against such evidence as has been adduced by the respondent in this case	 an improbability must be clear and cogent. It must approach very nearly to	 if it does not altogether constitute	 an impossibility. " The learned Judge has then observed as follows: "In a case where. attesting witnesses are produced and they give clear and cogent testimony regarding execution	 one should require very strong circumstances to repel the effect of such testimony. It will not do to talk airily about circumstances of suspicion. It is no doubt true that a person who takes it upon himself to dispute the genuineness of a will cannot be expected to prove a negative in many cases. At the same time	 the difficulty in which	 on his own seeking	 he places himself	 will not relieve him of the burden it may be a heavy burden of displacing the positive testimony on the other side. If he rests his case on suspicion	 the suspicion must be a suspicion inherent in the transaction itself which is challenged and cannot be a suspicion arising out of a mere conflict of testimony." Then the learned Judge went on to observe that if there was evidence to show that the will was actually made	 it would not be relevant to enquire whether there was any occasion or motive for the execution of the will	 and that if such a test were to be applied in every case	 no will could probably be proved at all. The questions which we have to consider are whether there was	 in fact	 a will	 that is to say	 whether Ramdban did execute a will during his lifetime	 and if so	 whether the document upon which the appellant relies is a will executed by Ramdhan and duly attested by witnesses. The appellant can prove these facts only by adducing evidence of the due execution of the will by Ramdhan and of its attestation. The challenge before us is as to the credibility of the witnesses 819 who have come forward to say that the document upon which the appellant relies not merely bears the signature of Ramdhan but represents the disposition made by Ramdhan	 that is it was executed by Ramdhan	 and that the attesting witnesses attested the execution of the will by Ramdhan. 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 Waston 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. Dealing with the mode of proof of a will	 this Court has observed in H. Venkatachala lyengar vs B. N. Thimmajamma and Others(1): "As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters. However	 there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator	 and so	 when it is propounded or produced before a court	 the testator	 who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document pro pounded is proved to be the last will and testa (1) 426. 820 ment of the departed testator. Even so	 in dealing with the proof of the wills the court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator	 that the testator at the relevant time was in a sound and disposing state of mind	 that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested	 satisfactory and sufficient to prove the sound and disposing state of the testator 's mind and his signature as required by law	 courts would be justified in making a finding in favour of the propounder. In other words	 the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated. There may	 however	 be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be shaky and doubtful and evidence in support of the propounder 's case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature; . the dispositions made in the will may appear to be unnatural	 improbable or unfair in the light of relevant circumstances; or	 the will may otherwise indicate that the said dispositions 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." 821 This Court also pointed out that apart from suspicious circumstances of this kind	 where it appears that the propounder has taken a prominent part in the execution of the will which confers substantial benefits on him	 that itself is generally treated as a suspicious circumstance attending the execution of the will	 and the propounder is required to remove the suspicion by clear and satisfactory evidence. In other words	 the propounder must satisfy the conscience of the Court that the document upon which he relies is the last will and testament of the testator. This decision has been recently referred to in a Judgment of this Court in Shashi Kumar Banerjee and others vs Subodh Kumar Banerjee(1) (Civil Appeal No. 295 of 1966 decided on September 13	 1963). There	 Wanchoo J. who spoke for the Court	 has observed as follows : "The mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by section 63 of the Indian Succession Act. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will	 proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances	 the onus is on the propounder to explain them to the satisfaction of the court before the court accepts the will as genuine. Where the caveator alleges undue influence	 fraud and coercion	 the onus is on him to prove the same. Even where there are no such pleas but the circumstances give rise to doubt it is for the propounder to satisfy the conscience of the Court. The suspicious circumstances may be as to the genuineness of the signature of the testator	 the condition of the testator 's mind	 the dispositions made in the will being unnatural	 improbable or unfair in the light of relevant circumstances or there might be other indications in the will to show that the testator 's (1) C.A. No. 295 of 1960	 D. Sept. 13. 1963 (Non reportable). 822 mind was not free. In such a case the court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes part in the execution of the will which confers a substantial benefit on him	 that is also a circumstance to be taken into account	 and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeed in removing the suspicious circumstances the court would grant probate	 even if the will might be unnatural and might cut off wholly or in part near relations. It is in the light of these settled principles that we have to consider whether the appellants have succeeded in establishing that the will was duly executed and attested." In Sarat Kumari Bibi 's case(1) on which the High Court has relied and which is also relied upon in Venkatachala lyengar 's case(2) just cited	 it was found that one Jamaluddin who took benefit under the will	 had taken an active part in the preparation of the will	 and	 therefore	 the rule made by Lindley and Davey L.JJ. in Tyrrell vs Painton(3) that where circumstances exist which would excite the suspicion of the Court	 the burden is upon the propounder of the will to remove such suspicion and prove affirmatively that the testator knew and approved of the contents of the document	 was applied. 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 (1) [1928] L.R. 56 I.A. 62. (2) [1959] Supp. 1	 S.C.R. 426	 443. (3) 	 157	 159. 823 the nearest railway station is 20 miles distant from Peepal gaon. 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 Rajaram	 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. 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 man 's Urdu and not high flown Urdu. which contains an admixture of Persian words. Indeed	 such words have actually been used in this document. The signature of Ramdban is itself in Modi script	 which would not have been the case if 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 signature of Ramdhan to be scribed lower down 824 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 Ramdhan 's signature has been utilised by the scribe for engrossing what purports to be a will. Finally	 there is the circumstance that the will is un natural 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 normally expected to give at least substantial bequests to his daughters. Instead	 the wiil 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 Ramdhan 's relations 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 Ramdhan 's food was cooked by any one other than Sitabai. To prove the appellant 's 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 these circumstances which have to be borne in mind while evaluating the testimony of the witnesses bear 825 ing 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 appellant	 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. 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 Sitabai 's hands after his death one would have expected him 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. Further	 there is no unimpeachable evidence to show that the will was brought to light immediately after Ramdhan 's 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 Ramdhan 's will was not even thought of by the appellant till long after Ramdhan 's death. The circumstance is the continuance of Sitabai in possession of the cash	 gold and silver articles and other movables	 even subsequent to Ramdhan 's 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 Ramdhan 's movables in favour of her daughters and strangers after the death of Ramdhan. At least	 one thing will follow from this that according to him Sitabai was more interested in her daughters than in him. If	 therefore	 he had a genuine claim to Ramdhan 's property	 he would not have 826 allowed Sitabai to remain in possession of Ramdhan 's 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. In the circumstances	 we hold that the High Court was right in rejecting the evidence of the attesting witnesses and the scribe as well as of the appellant with regard to the exe cution of the will by Ramdhan. We accordingly uphold the judgment of the High Court	 and dismiss the appeal with costs. Appeal dismissed.

Summary:
The appellant filed a suit claiming the property of one R which was in possession of R 's widow on the allegation that R had executed a will bequeathing almost his entire property to the appellant and practically excluding his widow and daughters. The ground on which the widow and the daughters were excluded is said to be the strained relations which had developed between R and his wife. The widow denied the execution of the alleged will and challenged the genuineness. The Trial Court holding that the will was genuine decreed the suit. On appeal	 the High Court dismissed the suit holding that the win was not genuine. The finding of the High Court was based on the evidence and the attending circumstances appearing in the case. Or appeal to this Court by a certificate granted: Held: (i)In order to judge the credibility of the witness	 the Court is not confined only to the way in which the witnesses have deposed or to the demeanour of the 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 brought out in the evidence	 or which appear from the nature and the contents of the document itself. (ii) It is necessary for the propounder to satisfy the court about the genuineness of the will by removing all suspicions which naturally from the various circumstances. Surat Kumar Bibi vs Sakti Chand	 	 Krishto opal vs Baidyanath	 A.I.R. 1939 Cal. 87	 Chotey Narain Singh V. Ali. Ratan Koer	 (1894) L.R. 22 I.A. 12	 H. Venkachala Iyengar vs N. Thaimmajamma	 [1959] Supp. 1 S.C.R. 426	 Shashi Kumar Banerjee vs Subodh Kumar Banerjee	 C.A. No. 295 of 1960. Sept. 13	 1963 (Non reportable and Tyrell vs Painton	 	 referred to.