JUDGMENT
S.K. Ray, J.
1. The respondent filed an application under Sections 266 and 276 of the Indian Succession Act, 1925 for grant of probate of the registered will dated 2-8-1968 of one Kinu Bal who died on 17-11-1968. This was registered as O. S. No. 1 of 1971 in the court of the District Judge, Cuttack. By decision dated 11-5-1972 the District Judge directed issuance of letters of administration with a copy of the will annexed in favour of the applicant Niranjan Bal on his furnishing security to the extent of Rs. 15,000/-. The appellants who had appeared in response to citations issued by the District Judge claiming an interest in the estate of the deceased being aggrieved with the aforesaid decision have filed the present appeal.
2. The appellant No. 1 lodged caveat against the grant of probate of the will with the District Judge. In his written statement the appellant No. 1 challenged the genuineness of the will and the testamental capacity of the testator on various grounds set out in paras 3, 4, 5 and 6 thereof. In para 3 the will was alleged to be a forged document and the averments therein were said to be false, fabricated and outcome of fraud on the testator. In paras 4, 5 and 6 the allegations were that the testator due to long illness had become completely imbecile, had lost his power of understanding and never understood the contents of the alleged will, and, therefore, had not the testamental capacity. Further it has been said that the will has not been validly attested according to law.
3. The sole question for determination in this appeal is whether the will is genuine or of and whether the testator had fest mental capacity in executing the same.
4. Appellant No. 1 filed Title Suit No. 4/29 of l966/63 on 18-3-1963 for partition of joint family properties against the testator claiming to be his adopted son. Three days later, on 21-3-1963, the testator also filed Title Suit No. 5/44 of 1966/63 for a declaration that the appellant No. 1 was not his adopted son. These two suits were disposed of by judgment dated 14-3-1967 in which it was found that the appellant had in fact been adopted by the testator, but the adoption was invalid in law being in contravention of the provisions of Section 9(2) of the Hindu Adoptions and Maintenance Act. In those suits two other questions were agitated, viz., whether the testator had made an earlier adoption of one Prahallad and on the latter’s death, adopted the appellant for the second time and whether Buli Bewa was the married wife of the said Prahallad and, as such, the daughter-in-law of the testator. The finding was that Prahallad had not been adopted by the testator but Bull was his wife. Two First appeals were carried to this court from the decision in those two suits which were numbered as 153 of 1967 and 125 of 1970. These two first appeals have been disposed of today in which it has been held that the appellant is the adopted son of the testator, that Prahallad had been earlier adopted, and that Buli Bewa is his widow. It may also be noted here that the propounder of the will has admitted in his application for grant of probate that Buli Bewa is the daughter-in-law of the testator.
5. The propounder’s case, as appears from the evidence led by him, is that the testator was quite hale and hearty when he executed and registered the will on 2-8-1968. In fact, he went from his village to Chandol a distance of two miles on foot and therefrom to Kendrapara by bus and from bus stand he went to the Sub-Registrar’s office, half a mile away, by walking and executed the will. The will was scribed by P. W. 1 on instruction of the testator. The contents of the will were then read over and explained to the testator who thereafter signed the same. The tesator was not suffering from any kind of illness as suggested by the caveators.
6. The relevant recitals in the will are: His adopted son Prahallad having died issueless in 1958 leaving behind his widow Buli Bewa, the testator lived in great sorrow with his widowed daughter-in-law. Considering his desolate condition the legatee who is his nephew voluntarily managed his properties for the last five years and also looked after his personal comfort and did all his work according to his wishes. For all these reasons the testator developed great affection for the legatee, and being assured in his mind that the legatee would manage his properties
and would look after him till his death and would perform his obsequies thereafter executed this will, requesting all his properties to the legatee and providing that his widowed daughter-in-law to be maintained out of the income of the said properties during her lifetime.
7. The appellants, as already stated, have impugned this will on the ground of want of testamental capacity of testator. The propounder has examined three witnesses and has proved the will Ext. 1. The caveators, on the other hand, have examined eight witnesses and exhibited a number of documents. On a consideration of the evidence, the District Judge has held :–
“………I have no hesitation to hold that
the will was duly executed and attested and that the testator was in a sound disposing state of mind at the time of its execution
8. The Supreme Court in a number of cases has laid down guidelines for dealing with cases of this nature where the issue is regarding the genuineness or otherwise of the will and sound disposing state of mind of the testator. It is appropriate to briefly indicate these principles in the background of which the evidence has to be scanned.
In the case of H. Venkatachala Iyengar v. B. M. Thimmajamma, AIR 1959 SC 443 their Lordships said that 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 Sections 67 and 68 of the Evidence Act and Sections 59 and 63 of the Indian Succession Act. Under Section 67 of the Evidence Act the signature of the testator must be proved to be in his handwriting which can be done by proof of opinion of Experts or by evidence of persons acquainted with the handwriting of the testator and the will has to be proved like any other document except as to the special requirements of attestation prescribed by S. 63 of the Indian Succession Act. It is certainly idle to expect proof with mathematical certainty, but the test to be applied would be the usual test of the satisfaction of a prudent mind in such matters. Since in the case of proof of wills the testator having died cannot say whether it is his will or not, an element of solemnity in the decision of the question as to the genuineness of the will is introduced. The burden is on the propounder to establish 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 signature to the document of his own free will.” This onus can be taken to be discharged only on proof of essential facts just indicated. Where there are suspicious circumstances surrounding the execution of a will, like the signature of the testator being shaky and doubtful which is not removed by evidence of the signature
being that of the testator, the mind of the testator appearing to be feeble and debilitated which creates a doubt as to the mental capacity of the testator, disposition made in the will appearing to be unnatural, improbable or unfair in the light of relevant circumstances indicating thereby that the said disposition may not be the result of the testator’s free will and mind, the initial onus of the pro-pounder becomes very heavy. Unless these suspcious circumstances are satisfactorily explained the court will be reluctant to treat the document as the last will of the testator and a product of his free will and mind. Their Lordships further go to say :
“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 pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter.”
Where propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. In deciding the question whether the will is the last will of the testator borne out of a free will and mind the judicial conscience of the court must be fully satisfied. Their Lordships further said :–
“It may, however, be stated generally that a propounder of the will has to prove the due and valid execution of the will and that if there are any suspicious circumstances surrounding the execution of the will the propounder must remove the said suspicions from the mind of the court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties.
X X X X
It is no doubt true that on the proof of the signature of the deceased or his acknowledgement that he has signed the will he will be presumed to have known the provisions of the instrument he has signed; but the said presumption is liable to be rebutted by proof of suspicious circumstances. What circumstances would be regarded as suspicious cannot be precisely defined or exhaustively enumerated. That inevitably would be a question of fact in each case.”
In the case of Rani Purnima Debi v. Kumar Khagendra Narayan Deb, AIR 1962 SC 567 their Lordships said that the fact of registration of a will is a circumstance prov-
ing its genuineness. But that by itself will not be sufficient to dispel all suspicions 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 the 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 the registration shows that it was done in 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 seeing the testator reading the will) that the testator 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.” In this case the earlier case of ATR 1959 SC 443 was referred to and relied upon.
In the case of Ramchandra Rambux v. Champabai, AIR 1965 SC 354 the same principle was reiterated in the following words :–
“Where 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. In such a case the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator.”
Their Lordships further said :–
“In order to judge the credibility of the witnesses, the court is not confined only to the way in which the witnesses have deposed or to the demeanour of witnesses, but it is open to it to look into the surrounding circumstances as well as the probabilities, so that it may be able to form a correct idea of the trustworthiness of the witnesses.”
In judging the genuineness or otherwise of the will the oral evidence must be appreciated in conjunction with surrounding circumstances which have been brought out in the evidence or which appear from the nature and contents of the documents adduced.
The aforesaid principles regarding the onus of proof of the will and the nature of proof have been reiterated in the case of Ryali Kameswara Rao v. Bendapudi Suryaprakasarao, AIR 1962 Andh Pra 178.
9. The suspicious circumstances which appear from the evidence on record are as follows:–
(a) The testator had about 4 acres of land, valued by the propounder at Rs. 4,000/-and yet the testator has provided nothing more than mere maintenance for his widowed daughter-in-law during her lifetime which again has neither been specified nor charged on the properties bequeathed to the legatee.
(b) It appears from Exts. B and C that the testator had adopted the appellant No. 1. But subsequently for some reason litigation had commenced between him and appellant No. 1 regarding the factum of adoption. It is after the disposal of the adoption suit on 14-3-1967 in his favour that the testator proceeded to execute the will. It had been found in the adoption suit that the testator had, in fact, adopted the appellant No. 1, but it was found invalid on some legal ground which could not be in the mind of the testator at the time of adoption. In the analogous First Appeals No. 153 of 1967 and No. 126 of 1970, the adoption has been found to be valid and, accordingly, appellant No. 1 is a coparcener with the testator in respect of the properties which being joint family properties could not be bequeathed entirely by will. Similarly, in view of the admitted position that he had adopted Prahallad who, as will appear from Exts. B and C died sometime in 1958, after coming into force of the Hindu Succession Act, 1956, the said widowed daughter-in-law had admittedly a share in the properties and yet under this will she has been deprived of her interest in the property and has been given a mere maintenance in lieu thereof.
(c) The propounder has taken active part in execution and registration of the will under which he has got substantial benefit. The respondent has been described as the universal legatee and the entire property movable and immoveable has been given to him. According to P. W. 1 the scribe, Niranjan Bal, the legatee, accompanied the testator and told him that the will was to be executed in his favour and approved the draft. It is the legatee again who saw the draft and approved it before it was finally scribed. It is the legatee again who went to P. W. 1 to take return of the will after registration. He was also present at the time of execution of the will.
(d) The testator was so ill that he had to be admitted into Kendrapara Hospital on 2-8-1968, in an unconscious state. It appears from the evidence of D. W. 6 Dr. Lokanath Das that he was treating the testator at the village, but as the illness did not respond to his treatment, he advised his removal to the Kendrapara Hospital and made arrangements for it on 1-8-1968.
10. The onus, therefore, is heavy on the propounder to prove that the will was executed by the testator voluntarily with his free will and mind. The presumption of genuineness of the will arising out of the fact of its registration cannot be of any avail to the propounder in this case, because the evidence shows that the registration was done in a perfunctory manner and the officer registering the will did not read it over to the testator nor did he bring home to him that he was admitting the execution of a will, nor did he satisfy himself in some other way that it was a will the execution of which he was admitting. Thus registration of the will by itself cannot
dispel all the suspicious circumstances surrounding the execution of the will. It is significant to note that the propounder has not summoned the Sub-Registrar to prove that the registration was properly done, despite allegation of fraud and want of testimonial capacity made by the appellant. That the testator was ill on the date if execution and registration of the will is clear from the evidence of D. W. 6, the village doctor, and D. W. 8, doctor of Kendrapara hospital. According to D. W. 6 the testator was suffering from diarrhoea, anemia and asthma and his face and legs were swollen on 1-8-1968. He was suffering from all these ailments since about 15 days prior thereto. He was unable to respond to the repeated calls except by uttering “Hum” and was not in a position to understand things. It appears from the testimony of the hospital doctor (D. W. 8) and Ex. A, the bed head ticket, that the testator was admitted into hospital on 2-8-1968 suffering from diarrhoea and extreme dehydration. His temperature was 97.6 and pulse rate was 80 per minute and feeble. He was unconscious at the time of admission. D. W. 8 says that he considered the condition of the testator to be serious, though he attained slight consciousness after medicine and glucose injection were administered, D. W. 8 and Ex. A both corroborate D. W. 6, the village doctor. Till 5-8-1968 the condition of the patient continued to be critical and D. W. 8 was not willing to discharge him even on 8-8-1968. He, however, discharged him against is better medical opinion when Kusha Pradtan, a relation of the testator insisted on his removal on his own responsibility and made an endorsement to that effect on the reverse of the bed head ticket (Ex. A). This endorsement shows that the patient was not in a fit state of mind to decide for himself whether to remain in the hospital or to be taken to his village where there was no facility for adequate treatment of his illness. There is no reason to discard the evidence of these two medical witnesses and in view of their testimony it is impossible to give credence to the evidence of P. Ws. 1, 2 and 3 who say that the testator was in a sound state of body and mind at the time of execution of the will. D. W. 1, an attesting witnesses to the will substantially supports the caveator’s case, namely that the testator was suffering from serious type of dysentery and asthma and occasionally from diarrhoea for about one year prior to the date of execution and registration of the will, and he was not in a position to understand the questions put by the Sub-Registrar to him and to give intelligible coherent answers. When the Sub-Registrar asked the testator whether he had executed the will, the latter did not give any answer and remained silent. The legatee at that juncture pacified all the possible suspicions by telling the Sub-Registrar that the testator due to dysentery and weakness was unable to speak and replied for the testator that the will had been properly
executed. According to him nobody read over the contents of the will and explained the same to the testator in presence of the Sub-Registrar. Having regard to this sort of evidence, it is extremely doubtful that the testator was in sound disposing state of mind and executed the will with his free will and mind. Another suspicious circumstance in this connection is that the testator did not sign with the pen with which the will was scribed and the signature of the testator is so placed in the third page of the will that it indicates as if the writing of the will was done on paper subsequent to the testator putting his signature thereon. On the reverse of the first page of the will originally the signature of the testator was dated 2/3 and the figure ‘3’ appears to have been subsequently converted to ‘8’.
11. Though the caveator did not expressly plead in his written statement that the will was executed under undue influence or coercion, but he has with sufficient clarity indicated that the will was an act of forgery and was executed by the testator when he was not in a sound disposing state of mind, in other words, he has specifically raised the point of absence of testamental capacity of the testator. In the peculiar circumstances of the case, even though the initial onus of proof of fraud, undue influence is on the caveator, nevertheless, it is for the legatee to satisfy the conscience at the court that the act of jexecution of the will was not affected by any of these infirmities as a part of his initial onus which he has failed to discharge.
12. The testator who examined himself in his adoption suit (First Appeal No. 153 of 1967), judgment of which has been exhibited in this case, had stated that he was illiterate and could sign with difficulty. His signatures on the will itself indicate that he had not a steady and mature hand. In the circumstances, the special cloak of protection that is thrown on Pardanashin women in respect of transactions entered into by them should also be extended to the testator who is an illiterate person, in respect of the execution of the will, and the same principle which is involved in determining whether documents taken from Pardanashin women have been executed bv the (woman) voluntarily and freely should apply to the present case. The principle is that the burden of proof is always on the person who seeks to sustain a transaction entered into with a Pardanashin lady or an illiterate person to establish that the said document was executed by them after clearly understanding the nature of the transaction, and unless that burden is discharged the physical act of signing the document cannot be treated as the mental act of its author. The legatee has failed to discharge this burden, in respect of the will Ex. 1.
13. Considering all the suspicious circumstances enumerated above and the medical evidence and scrutinising the entire evidence carefully, I must say that the evidence led by the legatee falls short of satisfying me, in the circumstances of this case, that the testator knew that the will which he executed was an act of his free will and mind, or that he had testamental capacity or was in a sound disposing state of mind when he executed the same. I must say that the learned District Judge did not analyse and appreciate the evidence in the context of the legal principles enunciated by the Supreme Court as enumerated above and that led to an error in his ultimate conclusion.
14. In the result, the appeal must succeed and accordingly, it is allowed and the respondent’s petition for grant of probate of the will annexed to the petition is dismissed. The appellants are entitled to costs throughout.
Appeal allowed with costs.
