CASE NO.: Appeal (civil) 4608 of 2003 PETITIONER: Apoline D' Souza RESPONDENT: John D' Souza DATE OF JUDGMENT: 16/05/2007 BENCH: S.B. Sinha & Markandey Katju JUDGMENT:
J U D G M E N T
S.B. SINHA, J :
1. Florine D’ Souza executed a will on or about 06.05.1992. She had
two daughters Olivia and Olympia. Both of them had become nuns. The
1st daughter Olivia died in 1975. The 2nd daughter Olympia died on
27.09.1993.
2. Appellant herein was one of the beneficiaries of the will. He was,
however, not in any way related to the testatrix. The testatrix was owner of
the following properties which were subject-matter of the said will :
“‘A’ SCHEDULE
Property situated in Talipady Village, Mangalore Taluk, Mulki
Sub-Division D.K. bearing following particulars :
S.
No.
S.D. No.
Kissam
Extent
A.C.
Assessment
Rs. Ps.
123
- 1A1B (P)
Garden
0 - 16
BOUNDARIES :
East : Property allotted to ‘B’ Schedule belongs to the
Same sub-Division.
South : Portion of Sy. No. 123/1A1A
West : Portion of Sy. No. 123/1A1A
North : Sy Line
With tiled house bearing No. 8 87, with all mamool and
easementary rights with all appurtenants and also all the
movables belonging to me.”
“‘B’ SCHEDULE’
Property situation in Thalipady Village, Mulki S.D. Mangalore
Taluk, D.K. Bearing following particulars :
S.
No.
S.D. No.
Kissam
Extent
A.C.
Assessment
Rs. Ps.
123
1A1B (P)
Garden
0 23
BOUNDARIES :
East : Portion of the Sy. No. 123/5, 123/3, 123/1A1B
South : Portion of Sy. No. 123/1A1A
West : Property allotted to ‘A’ Schedule of same Sub-
Division
North : Sy. Line
123 5 Garden 0 09
With a tiled house, timbers all mamool and easementary rights”
3. Whereas the property described in Schedule ‘A’ appended to the said
will was bequeathed in favour of the appellant, the property described in
Schedule ‘B’ thereto was bequeathed in favour of the respondent. Florine
died on 13.03.1994. An application for grant of Letters of Administration
with a copy of the will annexed, in terms of Section 276 of the Indian
Succession Act, 1925 (for short ‘the Act’) was filed by the appellant.
Respondent entered a caveat.
4. The plea raised by the respondent in the suit was that the testatrix was
an aged woman and did not have a proper frame of mind at the time of
purported execution of the will to understand the contents thereof.
5. The learned Trial Judge held that the execution of the will had been
proved, stating :
“Circumstances go to show that the defendant had
constructed his own house in one portion of the land that
belonged to the old lady. 23 cents of land was given to
the defendant under the will and 16 cents of land
including the old house was given to the plaintiff who
attended the old lady during her old age. I do not find
anything unnatural in the bequest made by the old lady.
She has given larger extent of land to the defendant who
is the son of the sister of the Testatrix. That shows that
the disposition made by her was consistent with the
natural course of human conduct.”
It was held that as the propounder did not take any interest in the
matter of execution of the will, no suspicious circumstances existed.
6. The High Court, however, reversed the said finding of the learned
Trial Judge by reason of the impugned judgment, opining :
i) PW-2, the only attesting witness, examined in the matter, admitted
that she had put her signature on a handwritten will, whereas the
will had in fact been typed in Kannada language. Hence the due
execution of the will was not proved.
ii) The will contained various overwritings and cuttings, which
establish existence of suspicious circumstances.
iii) Evidence of PW-2 does not prove either execution or attestation of
the will as per Ex. P-2, as the thumb mark affixed by Florine D’
Souza on it was not got marked in the evidence of PW-2 and she
had not identified the thumb mark on Ex. P-2 as the thumb mark
which was affixed by Florine D’ Souza in her presence.
iv) Mere fact that the will was a registered one would not dispense
with the requirements of proof of due execution and attestation of
the will for grant of Letters of Administration.
7. Dr. M.P. Raju, learned counsel appearing on behalf of the appellant,
however, submitted :
i) The proof of execution of the will cannot be discarded only
because all the precedent requirements of law had not been
fulfilled.
ii) As it was proved that the plaintiff-appellant was serving the
testatrix since 1986, there was no reason to disbelieve the bequest
made in her favour by way of a will.
8. The testatrix was a 96 years old lady. She had been suffering for a
long time. She was bed-ridden. No evidence has been brought on record to
show as to who had drafted the will.
9. Even if it be assumed that the appellant had nothing to do in regard to
preparation of the draft or registration thereof, nothing has been brought on
record to show as to who had drafted the will, or at whose instance it came
to be registered.
10. PW-2 is the attesting witness. She was called to be a witness to the
execution of the will. On or about 06.05.1992, when she had come to the
house of the testatrix, the will had already been written. According to her,
only after she had come, the testatrix put her L.T.I.. Two days thereafter, the
will was registered, on which date also she was asked to be present.
11. The High Court has arrived at a conclusion that the execution of the
will has not been proved in accordance with law.
12. What should be the mode of proof of execution of a will has been laid
down in Section 63 of the Act in the following terms :
“63. Execution of unprivileged wills.-Every
testator, not being a solider employed in an expedition or
engaged in actual warfare, or an airman so employed or
engaged, or a mariner at sea, shall execute his will
according to the following rules :
(a) The testator shall sign or shall affix his mark to the
will, or it shall be signed by some other person in
his presence and by his direction.
(b) The signature or mark of the testator, or the
signature of the person signing for him, shall be so
placed that it shall appear that it was intended
thereby to give effect to the writing as a will.
(c) The will shall be attested by two or more
witnesses, each of whom has seen the testator sign
or affix his mark to the will or has seen some other
person sign the will, in the presence and by the
direction of the testator, or has received from the
testator a personal acknowledgement of his
signature or mark, or of the signature of such other
person; and each of the witnesses shall sign the
will in the presence of the testator, but it shall not
be necessary that more than one witness be present
at the same time, and no particular form of
attestation shall be necessary.”
13. Section 68 of the Indian Evidence Act, 1872 provides for the mode
and manner in which execution of the will is to be proved. Proof of
attestation of the will is a mandatory requirement. Attestation is sought to
be proved by PW-2 only. Both the daughters of the testatrix were nuns. No
property, therefore, could be bequeathed in their favour. In fact one of them
had expired long back. Relation of the testatrix with the respondent
admittedly was very cordial. Appellant before us has not been able to prove
that she had been staying with the testatrix since 1986 and only on that count
she was made a beneficiary thereof. The will was full of suspicious
circumstances. PW-2 categorically stated that the will was drafted before
her coming to the residence of the testatrix and she had only proved her
signature as a witness to the execution of the will but the document was a
handwritten one. The original will is typed in Kannada, although the blanks
were filled up with English letters. There is no evidence to show that the
contents of the will were read over and explained to the testatrix. PW-2 was
not known to her. Why was she called and who called her to attest the will is
shrouded in mystery. Her evidence is not at all satisfactory in regard to the
proper frame of mind of the testatrix. There were several cuttings and
overwritings also in the will.
14. What would be the requirement for proof of a will has recently been
considered by this Court in B. Venkatamuni v. C.J. Ayodhya Ram Singh &
Ors. [2006 (11) SCALE 149], stating :
“15. Proof of a Will shall strictly be in terms of the
abovementioned provisions.
16. It is, however, well settled that compliance of
statutory requirements itself is not sufficient as would
appear from the discussions hereinafter made.”
It was observed :
“20. Yet again Section 68 of the Indian Evidence
Act postulates the mode and manner in which proof of
execution of document required by law to be attested
stating that the execution must be proved by at least one
attesting witness, if an attesting witness is alive and
subject to the process of the Court and capable of giving
evidence.”
It was further observed :
“24. 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.
25. Each case, however, must be determined in the
fact situation obtaining therein.
26. 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.
27.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.”
15. Yet again in Niranjan Umeshchanda Joshi v. Mrudula Jyoti Rao &
Ors. [2006 (14) SCALE 186], this court observed :
“32. Section 63 of the Indian Evidence Act lays
down the mode and manner in which the execution of an
unprivileged Will is to be proved. Section 68 postulates
the mode and manner in which proof of execution of
document is required by law to be attested. It in
unequivocal terms states that execution of Will must be
proved at least by one attesting witness, if an attesting
witness is alive subject to the process of the court and
capable of giving evidence. A Will is to prove what is
loosely called as primary evidence, except where proof is
permitted by leading secondary evidence. Unlike other
documents, proof of execution of any other document
under the Act would not be sufficient as in terms of
Section 68 of the Indian Evidence Act, execution must be
proved at least by one of the attesting witnesses. While
making attestation, there must be an animus attestandi,
on the part of the attesting witness, meaning thereby, he
must intend to attest and extrinsic evidence on this point
is receivable.
33. 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 v. Tarabai
Shedage (2002) 2 SCC 85 and Sridevi & Ors. v. Jayaraja
Shetty & Ors. (2005) 8 SCC 784]. Subject to above,
proof of a Will does not ordinarily differ from that of
proving any other document.”
Noticing B. Venkatamuni (supra), it was observed:
“36. The proof a Will is required not as a ground
of reading the document but to afford the judge
reasonable assurance of it as being what it purports to be.
37. We may, however, hasten to add that there
exists a distinction where suspicions are well founded
and the cases where there are only suspicions alone.
Existence of suspicious circumstances alone may not be
sufficient. The court may not start with a suspicion and it
should not close its mind to find the truth. A resolute and
impenetrable incredulity is demanded from the judge
even there exist circumstances of grave suspicion. [See
Venkatachala Iyengar (supra)]”
[See also Joseph Antony Lazarus (Dead) By LRs. v. A.J. Francis, (2006) 9
SCC 515].
16. In S. Sankaran v. D. Kausalya [2007 (3) SCALE 186], it was stated :
“6. A learned Single Judge of the High Court by
his judgment dated 25.5.1996 held that the will dated
24.9.1986 was genuine and was not a forged one. The
learned Single Judge took into consideration various
factors e.g. that the testator himself presented the will for
execution, and there was a dispute between the testator and
his elder daughter and hence he wanted to bequeath his
properties to his second daughter and the sons born to her,
etc.
7. In appeal the Division Bench of the Madras
High Court set aside the judgment of the learned Single
Judge but without a proper consideration of the various
facts and circumstances of the case mentioned by the
learned Single Judge in his very elaborate judgment.
8. The Division Bench was evidently influenced by
the fact that the elder daughter was deprived of her share in
her father’s property. However, the Division Bench has not
taken into consideration the various considerations which
according to learned Single Judge motivated the testator to
deprive his elder daughter, the respondent herein.”
[See also Benga Behera & Anr. v. Braja Kishore Nanda & Ors. C.A.
No.3467 of 2003 – disposed of on 15.05.2007]
17. Reliance placed by Dr. Raju on Brahmadat Tewari v. Chaudan Bibi
[AIR 1916 Calcutta 374] and Riazulnisa Begam, Mst v. Lala Puran Chand
[ILR XIX Lucknow 445] are misplaced.
18. The requirements to prove execution of the will are laid down under
Section 63 of the Act only in the year 1925. The law has since undergone a
change. In any event, this Court is bound by the decisions of this Court.
19. In Naresh Charan Das Gupta v. Paresh Charan Das Gupta [1954 SCR
1035] whereupon again reliance has been placed, this Court has
categorically held :
“It cannot be laid down as a matter of law that because
the witnesses did not state in examination-in-chief that
they signed the will in the presence of the testator, there
was no due attestation. It will depend on the
circumstances elicited in evidence whether the attesting
witnesses signed in the presence of the testator. This is a
pure question of fact depending on appreciation of
evidence. The finding of the Court below that the will
was duly attested is based on a consideration of all the
materials, and must be accepted”
20. The ratio of the said decision does not assist the appellant, as the
mode and manner of proof of due execution of a will indisputably will
depend upon the facts and circumstances of each case. It is for the
propounder of the will to remove the suspicious circumstances, which has
not been done in this case.
21. For the reasons aforementioned, there is no merit in this appeal, which
is accordingly dismissed. In the facts and circumstances of the case, there
shall, however, be no order as to costs.