D.M. Patnaik, J.
1. The appeal is against the confirming Judgment of the lower appellate Court dismissing the plaintiff’s suit for declaration of right, title and interest in the suit property.
2. Plaintiffs case is that she being the sole heir of her father, Udayanath Gaya (since dead) succeeded to the entire interest of the property of Pandari Bewa, her paternal grand-mother, who was admittedly the recorded holder in respect of the disputed land measuring Ac. 0.73 decimals under plot Nos. 691 694, 1080 and 1251 of village Itamati in the district of Puri (presently Khurda). She fired the suit claiming that the defendant having no manner of right title and interest in the property in question created trouble by forcibly entering into the land on 15-1-1975 on the basis of a Will executed by Pardari sometime in the year 1959. The plaintiff claimed that the said Will was the result of undue influence and/or fraud practised on Pandari who was an old, illiterate and Purdanashin lady.
The defendant, on the other hand, pleaded that the Will was validly executed Pandari was not a Purdanashin lady and the was in a good state of health and mind at the time of execution of the Will and the said Will was the last testament of Pandari.
3. Both the Courts below held that the Will was validly executed. It was further held that the plaintiff failed to prove any undue influence or fraud so alleged by her in the plaint.
4. The substantial point of law for decision of this Court as advanced by Mr. A. K. Mishra learned counsel for the appellant, is whether the Will in question was executed after due compliance with the statutory provisions prescribed under Section 63 of the Indian Succession Act read with Section 68 of the Indian Evidence Act. To substantiate his argument, Mr. Misra though referred to several decisions, but the three decisions reported in 1986 (II) OLR 286, Srimati Bewa and Anr. v. Kasinath Chandra Behera and Anr. 1988 (I)OLR 352, Gopal Chandra Mohanty and Anr. v. Srimati Adarmani Mohanty and Ors. and AIR 1955 SC 346 GirtjaDutta Singh v. Gangotri Dutt Singh, are relevant for appreciation of the point so raised by him.
5. Before discussing the point of law in question, the bare facts of the case at hand be noticed.
The Will (Ext. 4) is a registered one and is dated 3-3-1959. Banambar Jena and Bimbadhar Parida were the two attesting witnesses of whom Bimbadhar Jena of village Itamati has been examined as a witness and of course, the scribe as DW 1. The Courts below have not found any suspicious circumstances in the matter of the execution of the said document. The plaintiff pleadad that the Will (Ext A) was the result of undue influence and/or fraud since, according to her Pandari was an old and Purdanashin lady and was fully under the control of the defendant But she did not plead that at the lima of execution of the Will Pandari Bewa was afflicted with any physical or mental disability. It is also not the case of the plaintiff th3t by the said Will Pandari Bewa bequeathed her entire property. Rather the plaintiff in para 4 of the plaint admitted that Pandari sold 2½ acree of land about three years prior to her death which admittedly took place on 29-12-1974 as averred in the plaint. She further admitted that the defendant though was admittedly the husband of Pandari’s niece (daughter of the younger brother of Rahas, the husband of Pandari) he was tending her cattle. She further admitted that Pandari looked after her marriage function and also spent money.
All these facts go to show that the defendant is an agnatic relation and not a stranger. He was tending cattle of Pandari and this would show that he could not have any influence over Pandari’s mental faculty. The very admission of the plaintiff that Pandari spent money and also looked after the marriage of the plaintiff would indicate that she could not have been idiotic in her behaviour and manner. This is further found to by correct from the evidence of the scribe (DW 1) who, in the cross-examination, stated her to be intelligent’.
DW 1 the scribe stated in the cross-examination that Pandari and Balabhadra came first to him. He further admitted in para 4 of the cross-examination that it was Pandari who brought the witnesses to him. Therefore, question of defendant alone taking active part at the time of execution of the Will did not arise.
6. Mr. Mishra strenuously urged relying on the decision in the case of Gopal Chandra Mohanty (supra) that it was onerous on the part of the plaintiff to discharge the initial burden of proving the case that the Will executed was the last document by Pandari and secondly Pandari was in a fit state of health and mind while executing the Will and, according to Mr. Mishra that the onus would shift to the other side to prove if the document was the result of any fraud ar undue influence.
To this, I may point out that, this Court in the said decision followed the decision of the Supreme Court reported in the case of Smt. Indu Bala Bose and Ors v. Mahendra Chandra Bose and Anr. AIR 1982 SC 133. The apex Court laid down the proposition that the onus of proving the Will like any other document is on the propounder. In the absence of suspicious circumstances surrounding the execution of the Will, proof of testamantary 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. Such suspicious circumstances, according to the apex Court, may be as to the genuineness, the condition of the testator’s mind, the disposition under the Will being unnatural or unfair and the propounder himself taking a prominent part and such other circumstances of like nature.
In the case of Gopal Chandra Mohanty (supra) the Will did not see the light of the day even long years after its execution so much so nothing was also indicated as to the date of execution of the Will in the written statement. But the same is not the case here since the plaintiff’s admitted case is, the defendant in the year 1974 created trouble with regard to her possession over the disputed land. She filed the suit in 1975 and in the written statement the defendant gave the date of the execution of the Will. The other suspicious circumstances in the case referred to by Mr. Mishra was illness of the testator for a long time, the testator being under the complete control of the propounder, the death of the testator only five days after execution of the Will and such death further being not on account of any sudden illness and lastly the very appearances of the Will being suspicious. The circumstances in the present case are entirely different as indicated above Therefore, the decision is not applicable to the facts and circumstances of this case.
7. Relying on the decision reported in the case of Srimati Bewa and another (supra) the learned counsel submitted that the Will was not attested as. per the provisions contained in Section 63(c) of the Indian Succession Act inasmuch as there is no evidence of the attesting witness(es) that both or any of them saw the testator putting her signature either or his presence.
The same is his contention with reference to the case of Girija Datta Singh v. Gangotri Datt Singh (supra). It would be appropriate in the facts and circumstances of the present case to refer to a decision reported in AIR 1955 SC 363, Nareah Charart Das Gupta v. Paresh Charan Das Gupta and Anr., also referred to by the lower appellate Court in para 9 of its judgment, where the Court quoted para 12 of the judgment of the apex Court which is to the effect that the mere fact that the attesting witness did not state in the evidence that they signed the Will in presence of the testator, there would be no due attestation. It would depend on the circumstances elucidated in the evidence where attesting witnesses signed in the presence of the testator and this will be a pure question of fact depending on the appreciation of evidence. In the cases referred to, it was found by the learned Judges of the High Court that the execution and attestation took place at one sitting at the residence of PW 1 where the testator and the witnesses had assembled by appointment and, therefore, the High Court was of the view that all of them must have been present until the matter was finished. This was accepted by the apex Court as a finding of the fact.
Having gone through the evidence of the scribe and the attesting witnesses in the case at hand and their tenor of stating the tact of execution, it is amply proved that the testator, the scribe and the attesting witnesses were all present at the time of execution of the Will (Ext. A). So it goes without saying that the witness did see the testator putting her thumb mark before the witnesses. Therefore , the finding of the lower appellate Court about the due execution and attestation of the document in question cannot be interfered with.
8. In the result, the second appeal is dismissed but there shall be no order as to costs.Appeal dismissed.