JUDGMENT
M.M. Kumar, J.
1. This is defendant’s appeal filed under Section 100 of the Code of Civil Procedure, 1908 challenging concurrent findings of facts recorded by both the Courts below holding that the Will dated 8.12.1993 was not executed by the testator on his own free will. Overwhelming evidence which has come on record shows that Lehmber Singh, the testator was lying on a cot wrapped in a quilt and on the dictation of Balbir Singh, defendant-appellant and/or Sucha Singh, defendant-respondent No. 3(now represented by his LRs) the Will was scribed. It is proved that the beneficiary of the Will had taken active part in the execution of the Will. It has also come in evidence that the testator had died a day after the execution of the Will. All these findings of facts create a serious doubt about the genuineness and correctness of the Will.
2. Facts in brief are that the plaintiff-respondent No. 1 filed a suit seeking a declaration to the effect that he is owner of l/5th share of the suit land owned by his father Lehmber Singh, who died on 9.2.1993. He was survived by four sons and his widow Joginder Kaur. The following pedigree table would present a bird eye view of the facts:-
Desaundi
|
Thandu
|
Lehmber (Testator)
| expired on 9.12.2003
________________|__________________
| |
| Joginder Kaur (widow,
| Defendant-Respondent No.2
_______________|___________________________________________________
| | | |
Kashmir Balbir Singh Sucha Singh Sis Singh
Singh (son) (son) (son) (son)
Plaintiff- (Defendant- (Defendant- (Defendant-
Respondent appellant Respondent Respondent No. 1) No. 3)
3. The plaintiff-respondent claimed that his wife Parkash Kaur was recorded as owner of 3K-01 Marlas out of 26K-11 Marlas. After the death of Lehmber Singh his four sons and widow succeeded his estate. However, defendant-appellant and defendant-respondent No. 3 (now represented by his LRs) took forcible possession of the suit land on the basis of a will, it is further claimed that the will was a forged and fictitious document because Lehmber Singh had lost his senses two months prior to his death and the will did not even bear his signature.
4. The defendant-appellant a long with defendant-respondent filed their written statement and took the stand that Parkash Kaur was not the owner of 3 Kanal 10 Marlas of land. They also claimed that a separate suit on the afore-mentioned dispute was pending titled as Bhagta v. Kashmir Singh and Parkash Kaur, The will was claimed to be validly executed by Lehmber Singh on 8.12.1993 in favour of his three sons except Kashmir Singh, plaintiff-respondent No. 1. It was averred that the testator was in sound disposing mind.
5. The crucial question was with regard to execution of the will. The trial court on the basis of overwhelming evidence discarded the will holding that testator was not in sound and disposing mind at the time of execution of will on 8.12.1993 and he died on 9.12.1993. The propounder of will have taken active part in scribing and executing of the will. Even dictation of will was given by defendant-appellant Balbir Singh and defendant-respondent No. 3 Sucha Singh (now represented by his LRs). The Will was an unregistered document and not scribed by a licensed deed-writer. On the basis of these findings, the suit of the plaintiff-respondent No. 1 was decreed for 1/5th share in the suit land.
6. Feeling aggrieved, the defendant-appellant and defendant-respondent filed appeal before Additional District Judge, who has affirmed the findings by observing as under:-
“…. In the present case, the will in question is not a registered document. Although registration of the will is not compulsory, but it goes a long way in proving the genuineness of its execution. The will, Ex.DW4/A, was allegedly executed on 8.12.1993, DW9, Sucha Singh, in his cross examination, deposed that Lehmber Singh had died on the next day of the execution of the will. The said witness also deposed that Lehmber Singh remained ill for 4-5 days prior to his death. He had died of heart attack and was an esthetic patient. Bakshish Singh, one of the alleged attesting witness of the will deposed that the will had already been scribed when he reached there. In his cross examination, he deposed that Sucha Singh had asked the testator to sribe the will in favour of his two brothers and also in his (Sucha Singh’s) favour. The scribe had scribed the will as per dictation given by Sucha Singh. Lehmber Singh was ailing for 5-6 months prior to the execution of the will and was not in sound disposing mind. The other attesting witness of the Will, DW5, Sarwan Singh deposed in his cross-examination that the testator was ill at the time of execution of the will. He was lying on a cot wrapped in a quilt. The will had been scribed as perdictation of Balbir Singh, Lehmber Singh a had good relations with Kashmir Singh. Thus, from the cross-examination of both the attesting witnesses, it transpires that the will had not been executed by the executant of his own free will. Both the attesting witnesses had given different names of the scribe. DW5 deposed that the will was scribed by Parduman Singh, whereas, DW6 deposed that the will was scribed by Tarsem Singh. DW3 Tarsem Singh deposed that he had scribed the will. The mere fact that the attesting witnesses had supported the case of the defendants with regard to the execution of the will in the mutation proceedings, is no ground to hold that he will had been genuinely executed by the executant, statements of the witnesses made before the Civil Court on oath, are liable to be relied/believed. A perusal of the will (its translated version), reveals that no reason was given for disinheriting the plaintiff by the executant. The fact that the testator had died a day after the execution of the will and the fact that he was ill before the execution of the wilt, makes the will a suspicious document. More so, from the cross examination of the attesting witnesses, it is evident that the will was not executed by the executant of his own free will. From the cross examination of the attesting witnesses, it is evident that the beneficiaries had taken active part in the execution of the will. The propounders of the will, have, thus, failed to dispel the suspicious circumstances, surrounding the will.”
7. Shri C.L. Verma, learned counsel for the defendant appellant has argued that merely because Kashmir Singh has been excluded from the will would not constitute suspicious circumstances as has been opined by the Courts below. In support of his submission, the learned counsel has placed reliance on a Division Bench judgment of this Court in the case of Bhagya Wati v. General Public, (1994-2)107 P.L.R. 649. Learned counsel has also pointed out that illness of the testator would not prima facie prove that the testator was not in a sound disposing mind and has not executed the document out of his free will. Learned counsel in support of his submission has relied upon a judgment of the Delhi High Court in the case of Amarjit Singh v. State, 1998(3) C.C.C. 669 (Delhi).
8. After hearing the learned counsel at a considerable length, I am of the considered view that the cumulative effect of the findings recorded by both the courts below has been rightly considered by concluding that the Lehmber Singh did not execute the will dated 8.12.1993. It is well settled that the onus to prove the will is on the propounder and he is to dispel all the suspicious circumstances surrounding the execution of the will. He is also to prove testamentary capacity and signature of the testator on the will. In the case of Shashi Kumar Banerjee v. Subodh Kumar Banerjee, A.I.R. 1964 S.C. 529, a Constitution Bench of the Supreme Court has taken the view that if the propounder himself participate in the execution of the will, which confers a substantial benefit on him that would constitute a suspicious circumstance which has to be removed, by the propounder of the will by adducing clear and satisfactory evidence. The views of their Lordships in this regard as under:-
“….. 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 indication in the will to show that the testator’s 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 succeeds 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.”
If the fore-mentioned principle is applied to the facts of the present case, it becomes evident that Balbir Singh, the defendant-appellant alongwith Sucha Singh, who are the beneficiaries under the will have dictated the will to the scribe, which itself is a suspicious circumstance. The participation of the beneficiaries under the will in the execution, has always been recognised by the courts as a suspicious circumstance. In this regard, reference may also be made to the English cases, namely; Felton v. Andrew, (1975)7 H.L. 448, Barry v. Butting (1838)3 Moo P.C. 480, Tyrrell v. Painton, 1894 P. 151 and the judgment of the Privy Council in Sara Kumari Bibi v. Sakhi Chand, 56 1A 62. All the aforementioned judgments have been referred to and followed by the Supreme Court in the case of Garantla Thataiah v. Thotakura Venkata Subbaiah, A.I.R. 1968 S.C. 1332.
9. I am further of the view that the testator Lehmber Singh was not in sound disposing mind as has been held by both the courts below. Lehmber Singh died a day, after the execution of the will. The will is alleged to be executed on 8.12.1993 while Lehmber Singh died on 9.12.1993. It has been concluded by the courts below that the will had not been executed by the executant of his own free will and the testator was not in sound disposing mind. Prior to his death, he was continuously ill for about 2/3 months. The defendant-appellant as well as defendant-respondent have remained unable to dispel the afore-mentioned suspicious circumstance which they were under obligation in order to succeed in establishing the valid execution of the will. It has been repeatedly held by the Supreme Court that it is the duty of the propounder to show that the will was signed by the testator and at relevant time he was having a sound disposing mind. These observations have been made by the Supreme Court in the case of Surendra Pal v. Saraswati Arora (Dr.), (1974)2 S.C.C. 600. It would be pertinent to make a reference of those observations which read as under:-
“The propounder has to show that the will was signed by the testator that he was at the relevant time in a sound disposing state of mind, that he under stood the nature and effect of the dispositions, that he put his signature to the testament of his own free will and that he has signed it in the presence of the two witnesses who attested it in his presence and in the presence of each other. Once these elements are established the onus which rests on the propounder is discharged.
But there may be cases in which the execution of the will itself is surrounded by suspicious circumstances such as, where the signature is doubtful, the testator is of feeble mind or is overawed by powerful minds interested in getting his property, or where in the light of the relevant circumstances the dispositions appear to be unnatural, improbable and unfair, or where there are other reasons for doubting that the dispositions of the will are not the result of the testator’s free will and mind.
In all such cases where there may be legitimate suspicious circumstances those must be reviewed and satisfactorily explained before the will is accepted.
In cases where the propounder has himself taken a prominent part in the execution of the will which confers on him substantial benefit that it itself one of the suspicious circumstances which he must remove by clear and satisfactory evidence.
Ultimately it is conscience of the Court that has to be satisfied, as such the nature and quality of proof must be commensurate with the need to satisfy that conscience and remove any suspicious which a reasonable man may, in the relevant circumstances of the case, entertain.
Where there are suspicious circumstances the onus will be on the propounder to explain them to the satisfaction of the court before the will could be accepted as genuine; and where the caveator alleged undue influence, fraud and coercion the onus is on him to prove the same. If the caveator does not discharge the burden which rests upon him in establishing the circumstances which show that the will had been obtained by fraud or undue influence, a probate of the will must unnecessarily be granted if it is established that testator had full testamentary capacity and had in fact executed it validly with a free will and mind.”
10. It is true the disinheritance of the plaintiff-respondent by the testator itself may not constitute a suspicious circumstances, but coupled with other facts it may lead to strengthen the belief regarding suspicious circumstances. The cumulative effect is that the will dated 8.3.1993 was not executed by Lehmber Singh, testator which has already been scribed and he was not in sound disposing mind.
11. The argument of the learned counsel based on a Division Bench judgment of this Court in Bhagya Wati’s case (supra) that the illness of the testator would not by itself by sufficient to show that he was not of sound disposing mind, does not require to be considered in any details, because the defendant-appellant as well as defendant-respondent, who are the propounders of the will have failed to discharge the, initial burden showing due execution of the will and that the same is in accordance with the considering various judgments of the Supreme Court has extracted the following principles:-
“19. From the judicial verdicts noted in this judgment and various other pronouncements relied upon by the counsel for the parties, the position which emerges for holding proper execution of the Will is that:-
(a) the testator must have disposing mind free from all extraneous influences with sound mental mind;
(b) the testator is presumed to be sane having a mental capacity to make a valid Will until contrary is proved;
(c) the Will should be executed in accordance with the provisions of the Act as incorporated in Section 63 of the Act read with Section 67 and 68 of the Evidence Act. In other words, the testator should have signed or affixed his mark to the Will in the presence of the two witnesses who are required to see the testator signing or affixing his mark on the will and each of the witnesses should sign the Will in the presence of the testator;
(d) the onus of proof of the Will is on the propounder or beneficiary of the Will;
(e) the existence of suspicious circumstances make the onus of proof very heavy and such circumstances are required to be removed by the propounder before the document is accepted as a last Will of the testator.
(f) the mode of proving the Will does not ordinarily differ from that of proving any other documents except the special circumstances as incorporated in Section 63 of the Act; and
(g) in order to ascertain the free disposing mind free from extraneous considerations, the whole of the attending circumstances in a particular case are required to be taken note of.”
When the principle(a) stated above is applied to the facts of the present case, the argument raised by the learned counsel falls to the ground. It has been laid down by the Division Bench that the testator must have a disposing mind free from all extraneous influences with sound mental discretion. Apparently, in the present case, it has been established that the beneficiary of the will namely defendant-appellant Balbir Singh and defendant-respondent Such Singh have dictated the will to the scribe. Therefore, the presence of extraneous influence by virtue of participation by the beneficiaries is writ large in the instant case. No benefit of the judgment of the Division Bench could be given to the defendant-appellant because it is not understandable as to how his case is advanced by the Division Bench judgment.
12. The other judgment of Delhi High in the case of Amarjit Singh’s (supra) on which reliance has been placed by the learned counsel would also have no application to the instance case, because in that case certain circumstances which were considered by the trial court as suspicious circumstances were not accepted as such by Delhi High Court. There the execution of the will has been duly proved. However, non-functioning of the name of the other legal heirs in the will was not considered as a suspicious circumstance. In the present case also, this fact alone could not have constituted the basis for discarding the will, but coupled with other facts, the live participation of the beneficiaries and the absence of sound disposing mind of the testator were considered sufficient to discard the will. Therefore, the judgment in Amarjit Singh’s (supra) would not apply to the facts of the present case. The appeal, therefore, is devoid of merit and the same is thus, liable to be dismissed.
For the reasons recorded above, this appeal fails and the same is dismissed.