CASE NO.: Appeal (civil) 15697 of 1996 PETITIONER: RAMABAI PADMAKAR PATIL (D) THROUGH LRS. AND ORS. RESPONDENT: RUKMINIBAI VISHNU VEKHANDE AND ORS. DATE OF JUDGMENT: 14/08/2003 BENCH: Y.K. SABHARWAL & G.P. MATHUR JUDGMENT:
JUDGMENT
2003 Supp(2) SCR 583
The Judgment of the Court was delivered by
G.P. MATHUR, J. 1. This appeal by special leave has been preferred by the
plaintiff against the judgment and decree dated 27.4.1995 of High Court of
Bombay by which the second appeal preferred by her was dismissed and the
judgment and decree dated 7.4.1993 passed by the District Judge, Thane was
affirmed.
2. The appellant Smt. Ramabai filed a suit for a declaration that she had
become owner and occupant of the suit property as per the Will dated
5.4.1976 and for injunction for restraining the defendants and their
agents, etc. from interfering with her peaceful possession over the
aforesaid property. The defendant nos. 1 to 5 are the real sisters of the
plaintiff and defendant nos. 6 to 8 are the children of a deceased sister
of the plaintiff, namely, Smt. Gajarubai. The suit was filed on the ground
that the property in dispute, which is a house and agricultural land,
belonged to Madhav who was father of the plaintiff and defendant nos. 1 to
5 and after his death, the same was inherited by their mother Smt.
Yamunabai and she became the owner thereof. Smt. Yamunabai executed a
registered Will by which she bequeathed the entire property to the
plaintiff. Smt. Yamunabai died on 11.1.1980 and thereafter the plaintiff
came in possession over the property in dispute. However, the defendants
got the names of all the heirs of Madhav mutated over the property in
dispute and thereafter started interfering with the plaintiffs possession
thereof. The suit was accordingly filed claiming a decree of declaration
and injunction. The defendant nos. I to 5 contested the suit on :he ground,
inter alia, that the property in dispute was ancestral property in he hands
of Madhav and after his death Smt. Yamunabai did not become the exclusive
owner thererof : that the tenancy rights were inherited by all the heirs of
Madhav by succession : that the house was built by father of Madhav and it
being ancestral in nature, the same was inherited by all the heirs; that
Madhav died in the year 1957 and, thereof, the succession would be governed
by Hindu Succession Act and that Smt. Yamunabai did not execute any Will in
favour of the plaintiff on 5.4.1976 and the same was not binding upon the
defendants. It was specifically pleaded that the share of the plaintiff was
only 1/7 and, thereof, no decree for injunction could be passed against the
defendants.
3. The parties adduced oral and documentary evidence in support of
their case. The learned Civil Judge (Jr. Divn.), Palghar, decreed the suit
on 4.2.1988 declaring that the plaintiff had become exclusive owner of the
property in dispute on the basis of the Will dated 5.4.1976. He further
passed a decree for injunction restraining the defendants from causing any
interference in the possession of the plaintiff over the property in
dispute. Feeling aggrieved by the aforesaid judgment and decree defendant
nos. 1 to 5 preferred an appeal before the District Judge, Thane, who
allowed the same by the judgment and decree dated 7.4.1993 and dismissed
the suit. The plaintiff preferred a second appeal which was dismissed by
the High Court on 27.4.1995 and the decree passed by the learned District
Judge dismissing the suit was affirmed.
4. Shri V.A. Mohta, learned senior counsel for the appellant has
submitted that after the death of Madhav which took place 6.6.1956, his
widow Smt. Yamunabai had become the exclusive owner of entire property. The
plaintiff- appellant had become a widow in the lifetime of her parents and
was residing with then. It was for this reason that Smt. Yamunabai had
executed a Will in favour of the plaintiff and the same was got registered.
Learned counsel has further submitted that the learned District Judge and
also the High Court have taken a completely perverse view in discarding the
Will solely on the ground that Smt. Yamunabai had excluded her other
daughters and had given the entire property to the plaintiff. It has been
urged that in the facts and circumstances of the case, the conduct of Smt.
Yamunabai was most natural and no doubt could be raised regarding the
authenticity of the Will merely on the ground that no provision was made
for the remaining daughters. It has also been urged that the Will was
executed and was registered on 5.4.1976 whilst Smt. Yamunabai died after
considerable period on 11.1.1980, which itself showed that the same was
executed when she was in proper and fit mental state and it had not been
obtained by putting any undue influence. Shri A.S Bhasme, learned counsel
for the respondents has on the other hand, submitted that the mother had
equal love and affection for all her children and there was no material on
record to show that Smt. Yamunabai was in any manner displeased or unhappy
with her other daughters and as such she would not have completely
disinherited them and this feature rendered the alleged execution of Will
by her as highly suspicious and unnatural. He has further submitted that
the learned District Judge and the High Court had given good reasons for
discarding the Will and the findings recorded by them being based upon
proper appraisal of evidence, should not be interfered with by this Court
Learned counsel has also urged that Smt. Yamunabai had not become exclusive
owner of the property after the death of Madhav as the succession would be
governed by Hindu Succession Act and consequently even if the Will was
accepted, the plaintiff would not become owner of the entire property.
5. Before we advert to the submissions made by learned counsel for the
parties, it will be useful to briefly notice the legal position regarding
acceptance and proof of a Will. Section 63 of Indian Succession Act deals
with execution of unprivileged Wills. It lays down that 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. It further lays down
that the Will shall be attested by two or more witnesses, each of whom has
seen the testator signing or affixing his mark to the Will or has seen some
other person sign the Will, in the presence and by the direction of the
testator and each of the witness shall sign the Will in the presence of the
testator. Section 68 of the Evidence Act mandates examination of one
attesting witness in proof of a Will, whether registered or not. The law
relating to the manner and onus of proof and also the duty cast upon the
Court while dealing with a case based upon a Will has been examined in
considerable detail in several decisions of this Court viz. H. Venkatachala
lyengar v. B.N. Thimmajamma and Ors., AIR (1959) SC 443, Rani Purinima Debi
and Anr. v. Kumar Khagendra Narayan Deb and Anr. AIR (1962) SC 567 and
Shashi Kumar Banerjee and Ors. v. Subodh Kumar Banerjee and Ors., AIR
(1964) SC 529. It will be useful to reproduce the relevant part of the
observations made by this Court in the Constitution Bench decision in
Shashi Kumar Benerjee (supra) which are as under :
“The mode of proving a Will does not ordinary 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, 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 doubts, 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 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 by unnatural and might cut off wholly or in part near relations.
6. The relevant facts may now be examined. It is not in dispute that Smt.
Yamunabai had no son but had 7 daughters. The plaintiff-appellant Smt.
Ramabai become a widow at a very young age during the lifetime of her
father. Since then, she was living with her parents and not at the place of
her husband or in-laws. It has come in evidence that she was looking after
her mother for more than 20 years. The other daughters of Smt. Yamunabai
are living with their husbands at their respective places. Smt. Yamunabai
had gone to the office of Sub-Registrar, Palghar on 5.4.1976 for the
purposes of registration of the will and she died 3 years and 9 months
thereafter on 11.1.1980. The Will was attested by two persons, namely, PW2
Rughunath Govind Sogale and Shaikh, out of whom the former was examined as
a witness in Court. There is no dispute regarding these facts. There is
nothing more shocking for the parents than the death of a grown-up son or a
young daughter becoming widow. It is most natural for the parents to have
the greatest amount of sympathy for their widowed daughter. The defendants
have led no evidence to show that Smt. Ramabai was getting anything for her
sustenance from the family members of her late husband. She was thus
entirely dependent upon her own parents. According to Smt. Ramabai, her
father Madhav died on 6.6.1956 though according to the defendants he died
sometime in year 1957. At any rate at least from 1957 till her death, the
mother Smt. Yamunabai was being looked after by the plaintiff Smt. Ramabai.
The defendants who are the other daughter of Smt. Yamunabai, are residing
at different places with their husband. In such circumstances the execution
of the Will by Smt. Yamunabai in favour of her widowed daughter Smt.
Ramabai, who was living with her for over 20 years and was looking after
her, appears to be most natural and probable.
7. The main reason which weighed with the learned District Judge in
discarding the Will, which has also appealed to the High Court, is that
Smt. Yamunabai completely disinherited her other daughter and gave the
entire property to Smt. Ramabai. In our opinion, the fact that Smt.
Yanumabai excluded all other daughter and gave the entire property to the
plaintiff Smt. Ramabai could not be a ground to cast any doubt regarding
the authenticity of the Will in the facts and circumstances of the case in
hand. It is not a case of exclusion of a son who may have been living with
the parents or looking after them. It is a case of making provision for a
widowed daughter who had been left a destitute on account of death of her
husband at a very early age. If the parental property was to be divided
equally amongst all the seven sisters, the share inherited by Smt. Ramabai
would have been quite small making it difficult for her to survive. The
house is situate in a village and is not in a big town or city where it may
have any substantial value. In fact, if the background in which the Will
was executed is examined carefully, it would be apparent that this was the
most natural conduct of the mother and giving of equal shares to all the
daughters would have entailed a serious hardship to the plaintiff Smt.
Ramabai.
8. A Will is executed to alter the mode of succession and by the very
nature of things it is bound to result in either reducing or depriving the
share of a natural heir. If a person intends his property to pass to his
natural heirs, there is no necessity at all of executing a Will. It is true
that a propounder if the Will has to remove all suspicious circumstances.
Suspicion means doubt, conjecture or mistrust. But the fact that natural
heirs have either been excluded or a lesser share has been given to them,
by itself without anything more, cannot be held to be suspicious
circumstance especially in a case where the request has been made in favour
of an offspring. In PPK Gopalan Nambiar v. PPK Balakrishan Manbiar and
Ors., AIR (1995) SC 1852 it has been held that it is the duty of the
propounder of the Will to remove all the suspected features, but there must
be real, germane and valid suspicious features and not fantasy of the
doubting mind. In this case, the fact that the whole estate was given to
the son under the Will depriving two daughters was held to be not a
suspicious circumstance and the finding to the contrary recorded by the
District Court and the High Court was reversed. In Pushpavati and Ors. v.
Chandraja Kadanba and Ors., AIR (1972) SC 2492, it has been held that if
the propounder succeeds in removing the suspicious circumstance, the Court
would have to give effect to the Will, even if the Will might be unnatural
in the sense that it has cut off wholly or in part near relations. In
Rabindra Nath Mukherjee and Anr. v. Panchanan Banerjee (dead) by Lbs. and
Ors., [1950] 4 SCC 459, it was observed that the circumstance of
deprivation of natural heirs should not raise any suspicion because the
whole idea behind execution of the Will is to interfere with the normal
line of succession in and so, natural heirs would be debarred in every case
of Will. Of course, it may be that in some cases they are fully debarred
and in some cases partly. The concurrent finding recorded by the District
Court and the High Court for doubting the genuineness of the Will on the
aforesaid ground was reversed.
9. The learned District Judge has observed that Smt. Yamunabai was very old
when she executed the Will and she was hard of hearing and was unable to
walk. He further observed that Chhaya Dighe who typed the Will and one Shri
Tiwari, Advocate, who was present at the time of preparation and execution
of the Will, were not examined and these facts together created a doubt
regarding the authenticity of the Will. As discussed earlier, in view of
Section 63 of Indian Succession Act the proviso to Section 68 of the
Evidence Act, the requirement of law would be fully satisfied if only one
of the attesting witness is examined to prove the Will. That this had been
done in the present case by examining PW2 Raghunath Govind Sogale cannot be
disputed. No infirmity of any kind had been found in the testimony of this
witness. Chhaya Dighe merely typed the Will and she is not an attesting
witness nor it is anybody’s case that Smt. Yamunabai had put her thumb
impression on the Will in her presence, therefore, her examination as a
witness was wholly redundant. The mere non examination of the Advocate who
was present at the time of preparation or registration of the Will cannot,
by itself, be a ground to discard the same. The fact that Smt. Yamunabai
was hard of hearing or that she was unable to walk does not lead to an
inference that her mental faculties had been impaired or that she did not
understand the contents of the document which she was executing. It is
important to note that Smt. Yamunabai personally came to the office of the
Sub-Registrar and her death took place after a considerable period i.e. 3
years and 9 months after the execution of the Will. No evidence has been
adduced by the defendants to show that at the time of the execution of the
Will she had been suffering from any such ailment which had impaired her
mental faculties to such an extent that she was unable to understand the
real nature of the document which she was executing. We are, therefore,
clearly of the opinion that the finding recorded by the learned District
Judge, which has been affirmed by the High Court in second appeal, is not
based upon a correct application of legal principles governing the proof
and acceptance of Will and the same is completely perverse. The aforesaid
finding is accordingly set aside. The finding recorded by the trial Court
that Will is genuine is hereby restored.
10. The next question which requires consideration is whether the
plaintiff-appellant would become the owner of the entire property which
belonged to Madhav. The learned Civil Judge (Jr. Divn.) has held that as
Madhav died on 6.6.1956, Smt. Yamunabai after coming into force of Hindu
Succession Act became owner of entire property. The learned District Judge
has reversed this finding and has held that Madhav died sometime in the
year 1957 i.e. after 17.6.1956 when Hindu Succession Act had come into
force and consequently Smt. Yamunabai and all her daughters would get equal
share in the property. The High Court did not go into this question at all
and dismissed the second appeal after expressing agreement with the finding
of the learned District Judge regarding the character of the Will. We have
carefully perused the judgment of the trial Court and also of the first
appellate Court on this point and we are of the opinion that the finding
recorded by the learned District Judge to the effect that Madhav died
sometime after enforcement of Hindu Succession Act is based upon a correct
and proper appraisal of evidence and no exception can be taken to the same.
In this view of the matter, Smt. Yamunabai will have only l/8th share in
the estate left by Madhav which alone would go to the plaintiff on the
basis of the Will executed in her favour.
11. In the result, the appeal is allowed and the judgment and decree
passed by the District Judge and also by the High Court are set aside. The
decree passed by the learned Civil Judge (Jr. Divn.) is modified and it is
declared to the plaintiff-appellant, in addition to her own share, will
also be entitled to the l/8th share of her mother Smt. Yamunabai on the
basis of the Will executed in her favour. No costs.