JUDGMENT
M.M. Kumar, J.
1. This is plaintiffs second appeal against
the judgment and decree passed by the learned Additional District Judge, Amritsar, dated 12.3.1981. The learned Additional District Judge vide his judgment and decree had reversed the findings recorded by the learned Sub Judge 1st Class, Amritsar, in her judgment and decree dated 29.5.1980.
2. The only question which requires determination in this appeal is as to whether the unregistered Will dated 16.5.1974 executed by one Nand Lal son of Ganda Mal in favour of the plaintiff-appellant Hira Devi is free from suspicious circumstances or in law it is shrouded by such suspicious circumstances that it is unsafe to permit reliance on it.
3. On 6.1.1974, the deceased Nand Lal son of Ganda Mal purchased one and a half storeyed house bearing No. 8410/XVI-28, situated in Gali No. 1, Guru Ram Dass Nagar, Amritsar. He died on 30.6.1974. The alleged Will dated 16.5.1974 is said to have been executed by him in favour of the plaintiff-appellant Hira Devi (hereinafter referred to as the plaintiff).
4. On the basis of this Will, the plaintiff filed a suit bearing Civil Suit No. 347 of 25/7/78/21-12-1977 for declaration to the effect that she was the owner of the house in question. The trial Court recorded the statements of six witnesses of the plaintiff including the plaintiff herself and four witnesses of the defendants. A few documents like the Will Ex.P1 and agreement to sell Ex.P2 were also produced. On the basis of the statements of Chuni Lal PW1, who was one of the attesting witnesses of the Will, PW2 Shri Om Parkash Bhatia, Advocate, who was the scribe of the Will, PW.3 Sham Lal and PW.4 Nand Lal and also on the basis of the Will Ex.P1, the learned trial Court came to the conclusion that Nand Lal bequeathed his property in favour of Hira Devi. The learned trial Court also concluded that divesting the relations like the defendants-respondents (hereinafter referred to as the defendants’) was no ground to discard the Will. The learned trial court also expressed the opinion that a person who is the absolute owner of his property has got absolute right to dispose of the property by way of Will even in favour of strangers. Therefore, the trial court decreed the suit in terms of the prayer made.
5. Against the judgment and decree of the trial court the defendants preferred an appeal before the learned Additional District Judge, Amritsar. The learned Additional District Judge referred the findings of the trial court on the vital issue as to whether Nand Lal deceased executed any valid Will of the house in dispute or whether the plaintiffs have become owner in possession of the property. The learned additional District Judge has taken note of various surrounding circumstances and has also scrutinized the statements of various witnesses with regard to their trustworthiness and credibility. After close examination, the learned additional District Judge found a number of suspicious circumstances which constituted the basis for discarding the Will. The suspicious circumstances and the reason for disbelieving the witnesses are discussed in detail in paras 9 and 10 by the learned Additional District Judge and the same read as under:-
“9. PW5 Karam Chand while stated about the services rendered stated that the plaintiff used to serve meals as well as do other service of Nand Lal who had executed the will. In cross-examination he admitted that he was neither related to Nand Lal nor to Hira Devi and was not visiting terms to the house of the plaintiff. Hira Devi PW6 also stated that she did not know Karam Chand PW5. In short the evidence produced by the plaintiff does not establish that Nand Lal was being served/looked after and feeded by the plaintiff the acquaintance with the plaintiff of Nand Lal is stated to have grown through her husband Lekh Raj. That important link evidence is missing as Lekh Raj has not been examined at the trial. Hira Devi plaintiff in her statement at the trial admitted that they shifted to the house in dispute on the Baisakhi Day i.e. 13th of April. The will is alleged to have been executed on 16.5.1974. It is beyond my comprehension that within one month of the living in the same house the plaintiff could render such services to Nand Lal and that he having purchased the property only a few months earlier with his hard earned money would think of depriving himself of the same, so quickly.
10. According to the story of the plaintiff Nand Lal came to Chuni Lal for the purpose of executing the will and the said Chuni Lal not only attested the will but also got the same drafted from Shri Om Parkash Bhatia, Advocate. Chuni Lal, it may be pointed out is a clerk of Shri S.N. Kpahi Advocate, Amritsar and is working in the District Courts. The evidence on the record reveals that before the purchase of the house in suit by sale deed dated 6.1.74 he had entered into agreement ExP1 with the previous owner Tarlok Singh. It is therefore evident that Nand Lal knew the scribe who had only recently executed an agreement of sale and the sale deed, it was thus natural for him to have gone to the scribe known to him or to any other scribe in the courts compound for getting the will scribed. It is also pertinent to point that Chuni Lal PW1 in stead of getting his own Advocate Shri SN Kapahi got engaged Shri O.P. Bhatia Advocate for drafting the will. The endorsement on the will Ex P1 by Sh. Om Parkash Bhatia advocate to the effect that he scribed the will on 16.5.74 meaningful in as much as Shri Bhatia did not scribe the will and further there was no idea of putting date when the same was signed on that day its execution. The person who typed the will drafted by Shri O.P. Bhatia Advocate has not been examined. The original draft prepared by Shri O.P. Bhatia Advocate has also not seen the light of the day. It appears that Sh. Chuni Lal PW1 managed the whole show and finding no other heir person at the scene helped the plaintiff to fabricate the will. The presence of PW5 Karam Chand has been secured for the ulterior purpose of getting the will attested. He does not appear to be a natural witness. However, Nand Lal had come to the courts for the purpose of executing the will and had engaged an Advocate and clerk of another advocate to assist him in the said job. It was natural for him to receive the advice of getting the will registered. Sh. Nand Lal had earlier got his sale deed registered at the time of purchasing the house and as such it was reasonable for him to get the Will ExPl registered in case he had made the will. The facts and circumstances surrounding the execution and attestation of the will create suspicion which lurk in the mind of this court and point to the nature of the will. I am, therefore, of the opinion that the will Ex.P1 is surrounded by suspicious circumstances and it is not safe to accept the same. I therefore, reverse the findings of the learned trial court on issues No. 1 and 3.”
6. I have heard Shri Hemant Sarin, learned counsel for the plaintiff and Shri B.R. Mahajan, learned counsel for the defendants.
7. Assailing the approach adopted by the learned Additional District Judge in his judgment and decree, Shri Hemant Sarin vehemently argued that Nand Lal bequeathed his property in favour of Hira Devi as she and her husband have rendered him personal services. He submitted that divesting of the close relations is not a suspicious circumstance and in any case on the facts of this case, it cannot be regarded as a suspicious circumstance. He also criticised the approach of the learned Additional District Judge where the learned Additional District Judge has recorded the non-production of Shri Lekh Raj, husband of Smt. Hira Devi as suspicious circumstance or a missing-link. His further submission is that the statement of Shri Chuni Lal cannot be doubted merely on the ground that for the purposes of execution of Will he did not take Shri Nand Lal deceased to Shri S.N. Kapahi, Advocate with whom Chuni Lal was working as a Clerk and he took him to Shri Om Parkash Bhatia, Advocate. He also assailed the approach of the learned Additional District Judge in disbelieving the endorsement of Shri Om Parkash Bhatia, Advocate on the Will to state that it was scribed by Shri Bhatia himself on 16.5.1974. Shri Sarin also pointed out that the non-production of the typist who typed the Will cannot be a ground for discarding the Will. In support of his submission, the learned) counsel has relied on the decision of the Supreme Court in the case of Smt. Sushila Devi v. Pandit Krishna Kumar Missir and Ors., A.I.R. 1971 S.C. 2236 for the proposition that divesting of the natural heir in preference to others does not make the Will invalid as long as the execution of the Will is satisfactorily proved.
8. On the other hand, Shri B.R. Mahajan, learned counsel for the defendants has submitted that the approach adopted by the learned Additional District Judge does not suffer from any infirmity and it is a pure finding of fact which cannot be disturbed by the High Court in a second appeal. He pointed out that Hira Devi and her husband had become tenant of Nand Lal only on the Baisakhi day i.e. on 13.4.1974, The illness of Nand Lal was proved. There is no pleading in the plaint that Nand Lal executed the Will in consideration of the services rendered by her. The learned counsel further pointed out that PW4 Nand Lal another witness (not Nand Lal deceased) has stated that the witness had not even entered the house of Hira Devi or Lekh Raj and how he could testify about the services rendered by Smt. Hira Devi. The further assertion of Sh. Mahajan is that the suit was simply a counter blast to another suit filed by the defendants seeking ejectment of the plaintiff from the house in dispute. Another submission of Sh. Mahajan is that the making of a Will in favour of a complete stranger is itself a suspicious circumstance. In support of his submission the learned counsel has relied on the decision of the Supreme Court in the case of Kulwant Kaur and Ors. v. Gurdial Singh Mann and Ors., (2001-2) 128 P.L.R. 492 (S.C.).
9. I have thoughtfully considered the respective submissions of the learned counsel for the parties and have not felt persuaded to accept that the view taken by the learned additional District Judge suffers from such an illegality or infirmity which would warrant interference by this court at the stage of second appeal. The principles of law governing the proof of Will are quite well-settled. While taking up the scrutiny, the court has to commence an enquiry as in the case of proof of documents with an added difficulty because the help of the testator would obviously be missing. Therefore, the requirements of Sections 67 and 68 of the Evidence Act in respect of execution and attestation of documents have to be satisfied in additional to a special requirement of attestation prescribed by Section 63 of the Indian Succession Act, 1955. Dealing with the various aspects of law concerning the Wills and the effect of suspicious circumstances, their Lordships of the Supreme Court in the case of H. Venkatachala Iyengar v. Thimmajamma and Ors., A.I.R. 1959 S.C. 443, laid down as under:-
“18. What is the true legal position in the matter of proof of wills? It is well known that the proof of wills presents a recurring topic for decision in Courts and there are a large number of judicial pronouncements on the subject. The party ‘ propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68, Evidence act are relevant for this purpose. Under Section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Sections 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a Court of law. Similarly, Sub-sections 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by wilt and the three illustrations to this section indicate what is meant by the expression “a person of sound mind” in the context. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the
propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the will? Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of the wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession act. As in the case of proof of other documents in the case of proof of wills it would be ideal 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.
19. 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 had 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 propounded is proved to be the last will and testament 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 signatures 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.
20. 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 very shaky and doubtful and evidence in support of the propounded 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 condition of the testator’s mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; 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 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 teat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded such please may have to be proved by the deviator, but even without such pleas circumstances may raise a doubt as to whether the testator was working of his own free will in executing the will in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter.”
10. The aforementioned observation of the Supreme Court in H. Venkatachala Iyengar’s case and the position in law has been repeatedly followed and approved in various later judgments. Some of those judgments are: Rani Purnima Devi and Anr. v. Kumar Khangendra Narayan Deb and Anr., A.I.R. 1961 Supreme Court 567, Joyce Primerose Prestor v. Veera Marts Vas (Ms) and Ors., (1996) 9 Supreme Court Cases 324, Vrindavanibhai Sambhaji Mane v. Ramchandra Vithal Ganeshkar and Ors.,
(1995) 5 Supreme Court Cases 215 and the case of Gurdial Kaur and Ors. v. Kartar Kaur and Ors. (1998-2) 119 P.L.R. 524 (S.C.). It is pertinent to mention that in the case of Rani Purnima Debi, some significance has been attached to the registration and the Will is considered more authentic in cases where the Will is registered. Considering this aspect, their Lordships of the Supreme Court in Rani Purnama Debi is case observed as under:-
“There is no doubt then if a will has been registered, then it is a circumstance which may, having regarded to the circumstances, prove its genuineness. But the mere fact that a will is registered will not by itself be sufficient to dispel all suspicion regarding it where suspicion exists, without submitting the evidence of registration to a close examination. If the evidence as to registration on a close examination reveals that the registration was made in such a manner that it was brought home to the testator that the document of which he was admitting execution was a will disposing of his property and thereafter he admitted its execution and signed it in token thereof, the registration will dispel the doubt as to the genuineness of the will. But if the evidence as to registration shows that it was done in a perfunctory manner, that the officer registering the will did not read it over to the testator or did not bring home to him that he was admitting the execution of a will or did not satisfy himself in some other way (as, for example, by selling the testator reading the wilt) that the testatory knew that it was a will the execution of which he was admitting, the fact that the will was registered would not be of much value. It is not unknown that registration may take place without the executant really knowing what he was registering.”
11. The principles deducible from the various judgments of the Supreme Court are absolutely clear that the burden of proof to prove the Will in accordance with the provisions of Sections 67 and 68 of the Evidence Act read with the special requirement of attestation prescribed by Section 63 of the Indian Succession Act, 1955 lies on the pro-pounder of the Will. It is a heavy burden and the propounder is under a duty to explain all the suspicious circumstances. In the present case, the property was purchased on 6.1.1974, by the testator by a registered sale deed and he was 62 years old. In about six months period, he had died. The Will is executed on 16.5.1974 in favour of the propounder of the Will Smt. Hira Devi who came to reside in that house alongwith the testator on 13.4.1974. The plea that in consideration of the services rendered by her, the testator bequeathed his house to the propounder of the Will, cannot be accepted because in the plaint no averment has been made to this effect. It is well settled that in the absence of pleadings, no amount of evidence can furnish the proof. There are further gaps with regard to the claim of the plaintiff concerning rendering of service to the testator. They had shifted in their capacity as tenant in the house of the testator on 13.4.1974 and there is no pleading as to when their relationship started. The will is executed, on 16.5.1974 a period too short to lead to an inference that the testator had been so pleased or felt so obliged for the services rendered by the propounder of the Will. It is also clear that the Will has been made in favour of a complete stranger and it has not been proved that in such a short time the testator would acquire such infinite relationship as to bequeath his newly purchased house to the propounder. It is further clear that the husband of the propounder of the Will Lekh Raj and the typist who typed the Will are missing and have not been called to the witness stand. In the totality of circumstances, it cannot be concluded that Chuni Lal, the attesting witness would take the testator for the execution of the Will, to a counsel other than the one with whom he was working as a Clerk. It is true that divesting of relations is not a suspicious circumstance as contended by Shri Sarin, yet the propounder of the Will has to satisfy due execution of the Will and dispel all the surrounding suspicious circumstances.
12. Another reason for dismissal of the appeal is that most of the arguments advanced by Shri Sarin seek reversal of the findings of fact. The findings of fact can be interfered by the High Court in the second appeal only if there is perversity of such a
nature that no reasonable man would reach the conclusion which is arrived at by the courts below. The findings of facts can also be set-aside if they are reached by ignoring admissible evidence or by taking into account the inadmissible evidence of such a nature that had the same been considered or excluded from consideration respectively it would have altered the findings of fact. This test is laid down by the Supreme Court in the case of Kulwant Kaur (Supra).
13. For the reasons aforementioned, this appeal fails and is hereby dismissed. How
ever, considering the nature of the litigation, I leave the parties to bar their own costs.