IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 7587-7588 OF 2004
Mahesh Kumar (Dead) By L.Rs. … Appellants
Vinod Kumar and others … Respondents
J U D G M E N T
G. S. Singhvi, J.
1. These appeals are destined opposite visualisation antiquated 22.7.2004 of a schooled Single Judge of a Madhya Pradesh High Court whereby he authorised a appeals filed by respondent No.1 – Vinod Kumar and respondent No.2 – Anand Kumar, set aside visualisation and direct antiquated 21.11.2002 inspected by II Additional District Judge (Fast Track), Harda (hereinafter described as a `trial Court’) and dictated a fit filed by respondent No.1 for declaration, possession, permanent explain and liberation of lease in honour of a share of Shri Harishankar (father of a appellant and respondent Nos.1 and 2) in a corner family property. The schooled Single Judge also announced that respondent No.2 shall be entitled to possession of his share in a fit skill in terms of Will antiquated 9.6.1989 (Ex. P-1) executed by Shri Harishankar.
2. For a consequence of convenience, a parties are being referred to as a appellant and a respondents.
3. Appellant Mahesh Kumar who is now represented by his authorised representatives, respondent Nos. 1 and 2 and their father were members of a corner family. In 1965, respondent No.2 took his share and distant from a corner family. After 20 years, another assign took place among a remaining members of a corner family. In a second partition, respondent No.1 got 9.83 acres land of encampment Nimchakhurd and a residence situated during Timarni Bazar. The appellant got a other residence situated during Timarni and money and Shri Harishankar got land comprised in Khasra No.92/1, 92/2 and 92/9 situated during Timarni along with a bungalow assembled over it.
4. In 1995, respondent No.1 filed Civil Suit No.20A of 1995 and prayed for extend of a stipulation that by trait of purebred Will antiquated 9.6.1989 executed by Shri Harishankar, he had turn solitary owners of a skill shown in red colour in a map annexed with a wail and half apportionment in a emporium situated in a bungalow. He also prayed for extend of a direct of possession by alleging that after a genocide of father Shri Harishankar, he had asked a appellant to give shares to a brothers in terms of Will antiquated 9.6.1989 yet latter declined to do so. The final request finished by respondent No.1 was that a appellant competence be destined to compensate him share in a change of lease of a Bungalow that was leased out to Firm Ramesh Chand Dinesh Kumar Agarwal.
5. In his combined matter a appellant claimed that after a 2nd partition, a relatives started vital with him and he and his family was looking after them. According to a appellant his mom died in January, 1992 and after her death, Shri Harishankar executed Will antiquated 10.2.1992 and bequeathed his share to him given he was looking after a relatives and took caring of a mom compartment her genocide on 23.1.1992 (Ex. D-2). He also pleaded that respondent Nos.1 and 2 were not given anything given they had already got their particular shares in a corner family property.
6. In a detached combined matter filed by him by his son Alok Kumar- cum-special energy of attorney, respondent No.2 denied that he had distant from a corner family in 1965 and taken his share. Respondent No.2 pleaded that he is not firm by a assign that is pronounced to have taken place in 1990 between a appellant, respondent No.1 and Shri Harishankar and that he is entitled to one-third share in a rural land and other properties of a corner family. However, he did not record opposite explain in support of his defence that he was entitled to one-third share in what he described as a corner family property.
7. Respondent No.1 nice a wail some-more than once yet did not find a stipulation of invalidity qua Will antiquated 10.2.1992 on a belligerent that Shri Harishankar had executed a same underneath a change of a appellant.
8. On a pleadings of a parties, a conference Court framed several issues including a following:
“(1) Whether respondent No.2 had distant from a corner family in 1965 by holding his share?
(2) Whether a second assign took place 10 years before to a filing of fit by respondent No.1?
(3) Whether Shri Harishankar executed purebred Will antiquated 9.6.1989 and bequeathed apportionment of his share to respondent No.1?
(4) Whether Shri Harishankar executed Will antiquated 10.2.1992?
(5) Whether Will antiquated 10.2.1992 was current and by trait of that Will Shri Harishankar bequeathed his share to a appellant?
9. After analysing a pleadings of a parties and justification assembled by them, a conference Court liberated a fit vide visualisation antiquated 21.11.2002. The following are distinct facilities of a commentary accessible by a conference Court:
(1) Respondent No.2 had distant from a corner family in 1965 by holding his share.
(2) In a 2nd partition, that took place 10 years before a filing of suit, respondent No.1 got 9.63 acres land in encampment Nimchakhurd detached from a residence situated during Timarni Bazar, a appellant got a residence situated during Timarni (Ward No.7) detached from money and Shri Harishankar got land comprising in Khasra No.92/1, 92/2 and 92/9 situated during Timarni detached from a bungalow assembled on a land.
(3) Shri Harishankar executed purebred Will antiquated 9.6.1989 and bequeathed his share in a corner family skill to his 3 sons.
(4) The second Will executed by Shri Harishankar on 10.2.1992 was current and in terms of that Will, a appellant acquired a testator’s share in a corner family property.
(5) In a deficiency of any plea to a second Will, respondent Nos.1 and 2 were not entitled to anything from a share of Shri Harishankar.
(6) Respondent No.2 was not entitled to anything from a remaining corner family skill given he had not filed opposite claim.
10. Respondent No.1 challenged a visualisation and direct of a conference Court by filing an seductiveness underneath Section 96 C.P.C., that was purebred as First Appeal No.118 of 2003. Respondent No.2 also filed detached appeal, that was purebred as First Appeal No.133 of 2003. After conference a warn for a parties a schooled Single Judge of a High Court framed a following questions:
(1) Whether in a assign that took place 30 years before a date of a filing of a suit, think Anand Kumar got his share in a corner family property?
(2) Whether a assign took place among Harishanker, Vinod Kumar and Mahesh Kumar 10 years before a filing of a suit?
(3) Whether a defunct Hari Shanker executed a will on 9.6.89 and bequeathed a skill owned by him, to his 3 sons?
(4) Whether on 10.2.92 Hari Shanker executed a Will superseding a progressing Will antiquated 9.6.89 and bequeathed his skill usually to think Mahesh Kumar?
11. The schooled Single Judge afterwards deliberate a opposition contentions, investigate a record of a conference Court and answered doubt nos. 1, 2 and 3 in certain and, thereby, reliable a commentary accessible by a conference Court that respondent No.2 had distant from a family in 1965 and taken his share in a corner family property; that a second assign took place among Shri Harishankar, respondent No.1 and a appellant 10 years before filing of a fit and any one of them got their particular shares and that Will antiquated 9.6.1989 was duly executed by Shri Harishankar. The schooled Single Judge afterwards proceeded to cruise a fourth doubt and reason that even yet respondent No.1 had certified that Will antiquated 10.2.1992 (Exhibit D-2) bears a signatures of Shri Harishankar, a same can't be treated to have been validly executed given a needed sustenance contained in Section 63(c) of a Indian Succession Act, 1925 (for short, `the 1925 Act’) had not been complied with. The schooled Single Judge referred to a statements of a attesting witnesses, viz., Sobhag Chand (DW-3) and Kailash Chand (DW-4) and observed:
“30. However, for certain other reasons, we am of a opinion that a Will antiquated 10-2-92 is not a validly attested document. According to a box of propounder of a Will, a Will was attested by Sobhag Chand (DW-3) and Kailash Chand (DW-4) yet from a justification of Sobhag Chand (DW-3), it is transparent that when he sealed a Will other attesting declare Kailash Chand was not present.
Sobhag Chand in his deposition has staid thus: “Kailash Chand small jaane ke kitne samay baad aaya iski mujhe jaankaari nahi hai.”
The declare also states that:
“Mere hastakshar karne ke eek do minat baad hi Harishankar ji ne hastakshar kiye the.”
31. This clearly determined that Hari Shankar sealed a Will in entrance of a declare and during that time Kailash was not present. Thus, Hari shankar did not put his signature on a Will in entrance of Kailash Chand. Nor declare Kailash Chand states that he perceived from a testator a personal confirmation of his signature. Thus, from a justification of Sobhag Chand it is determined over any shade of doubt that one of a attesting witnesses, Kailash did not see a testator signing a Will nor did he accept from a testator a personal confirmation of signature. Even if both a witnesses sealed a Will in a entrance of a testator a Will can't be pronounced to be scrupulously attested as both a witnesses did not see a testator signing a Will. In a deficiency of explanation that a testator sealed a Will in entrance of both a attesting witnesses or his acknowledgment was received, a Will can't be pronounced to be duly attested as a needed condition underneath Clause (c) of Section 63 of a Act has not been satisfied. In sequence to infer a due profession of a Will, a propounder of a Will had to infer that Sobhag Chand and Kailash a dual witnesses saw a testator signing a Will, yet in a benefaction case, a propounder has unsuccessful to infer profession of a Will, a same can't be pronounced to be validly attested Will.”
(underlining is ours)
12. The schooled Single Judge afterwards also referred to some discrepancies in a statements of a appellant and a attesting witnesses and reason that a appellant unsuccessful to liberate a responsibility of explanation that Will antiquated 10.2.1992 was duly executed by Shri Harishankar and was attested as per a charge of Section 63(c) of a 1925 Act.
13. The schooled Single Judge afterwards enumerated a following reasons for entrance to a end that a execution of Will antiquated 10.2.1992 was questionable and a testator had not acted of his possess giveaway will:
(1) The Will was prepared by Shri S. K. Agrawal, Advocate in his bureau in a entrance of Shri Harishankar and some witnesses including Bal Kishan (father in law of a appellant) and his son (brother in law of a appellant) and there was no reason for Shri Harishankar to have taken a request to a residence of Bal Kishan.
(2) Both a attesting witnesses were probability witnesses. Sobhag Chand (DW-3) was not called by anybody and there was no reason for him to have left to a residence of Bal Kishan. Kailash Chand (DW-4) was called by Vishnu Prasad S/o Bal Kishan yet a appellant gave out that both a witnesses came to accommodate his father.
(3) Kailash Chand (DW-4) lives during a stretch of 4 furlong from a residence of Bal Kishan and there was no reason given other persons of a encampment who were vital in a closeness of Bal Kishan’s residence were not called to demonstrate a Will.
(4) There were component contradictions in a statements of a appellant and a attesting witnesses.
(5) The Advocate, who drafted a Will was asked to pointer a request after a executant (Shri Harishankar) and a dual attesting witnesses had sealed a same.
(6) The probability that a signatures of Shri Harishankar and a attesting witnesses were performed on vacant paper and, thereafter, a breeze was prepared by Shri S. K. Agrawal, Advocate can't be ruled out given his signature seem on a left side during a bottom of a request in a margin.
(7) Will antiquated 10.2.1992 does not make a discuss of a initial Will and ubiquitous matter finished therein that a testator was cancelling a formerly executed Will, if any, did not volume to reversal of Will antiquated 9.6.1989.
(8) While a initial Will was registered, a executant did not worry to get a second Will registered.
(9) There was no reason for Shri Harishankar to have given his whole share to a appellant usually on a belligerent that he had served him and his mom during their aged age.
(10) The appellant had himself taken active partial in a execution of a second Will. The effort of a matter of a appellant is demonstrative of a additional seductiveness taken by him in a execution of a second Will. (11) Shri Harishankar had executed a second Will during a warning of a appellant and so there was any reason to cruise that he had shabby a executant.
14. Shri S. B. Sanyal, schooled comparison warn appearing for a appellant argued that a conference Court had righteously analysed a pleadings and justification of a parties for entrance to a end that a appellant had succeeded in explanation that Will antiquated 10.2.1992 was validly executed by Shri Harishankar and a schooled Single Judge of a High Court committed grave blunder by environment aside a good reasoned commentary accessible by a conference Court on this issue. Shri Sanyal emphasised that a schooled Single Judge misread a matter of Sobhag Chand (DW-3) and erroneously celebrated that he had sealed a Will as a declare even before a executant Shri Harishankar had sealed a same and that a justification of a other witness, namely, Kailash Chand (DW-4) was probable to be rejected given he had not sealed a Will in a entrance of Sobhag Chand (DW-3). Shri Sanyal submitted that in terms of Section 63(c) of a 1925 Act, profession of a Will by one declare is sufficient and Will antiquated 10.2.1992 can't be treated shabby merely given a dual attesting witnesses competence not have concurrently appended their signatures or that Kailash Chand (DW-4) was not benefaction when Sobhag Chand (DW-3) had attested a Will. Learned comparison warn serve argued that a ostracism of some of a heirs can't be a belligerent for supposed that a Will antiquated 10.2.1992 was not genuine. He forked out that in a initial Will also Shri Harishankar had not given any share to his mom and a daughters yet that was not taken as a belligerent for not treating a same to be genuine. Shri Sanyal submitted that non-registration of a second Will was not applicable given a law does not need registration of a Will. In support of his submissions, Shri Sanyal relied on a judgments of this Court in Uma Devi Nambiar v. T. C. Sidhan (2004) 2 SCC 321, Sridevi v. Jayaraja Shetty (2005) 2 SCC 784, Pentakota Satyanarayana v. Pentakota Seetharatnam (2005) 8 SCC 67.
15. Shri Sudhir Chandra, schooled comparison warn appearing for respondent No.1 inspected a impugned visualisation and argued that schooled Single Judge righteously dictated a fit given a anticipating accessible by a conference Court on a emanate of outcome of Will antiquated 10.2.1992 was ex-facie erroneous. Learned comparison warn submitted that depositions of Sobhag Chand (DW-3) and Kailash Chand (DW-4) were full of contradictions and a schooled Single Judge righteously took knowledge of a same for entrance to a end that a Will was not attested as per a requirement of Section 63(c) of a 1925 Act. Shri Sudhir Chandra forked out that while a initial Will executed by Shri Harishankar on 9.6.1989 was sealed him on any page and was duly purebred during Harda, a second Will was sealed usually on a final page and was not registered. He afterwards argued that even yet respondent No. 1 certified that signatures on Will antiquated 10.2.1992 were that of his father Shri Harishankar, this can't by itself lead to an deduction that a Will was duly executed and was genuine. Learned comparison warn emphasised that responsibility of explanation due execution of a Will is always on a propounder and when there are questionable circumstances, he is avocation firm to mislay a same. Shri Sudhir Chandra also forked out that a attesting witnesses were not eccentric persons and this by itself was sufficient to give arise to a critical guess about a genuineness of a Will and a schooled Single Judge righteously rejected their testimony given a same was discordant to a matter finished by a appellant. He submitted that active entrance of a appellant, who was a solitary customer of a Will, was righteously relied on a schooled Single Judge for holding that a execution of Will antiquated 10.2.1992 was rarely suspect. In support of his arguments, Shri Sudhir Chandra relied on a judgments in H. Venkatachala Iyengar v. B. N. Thimmajamma (1959) Supp. 1 SCR 426, Rani Purnima Devi v. Kumar Khagendra Narayan Dev (1962) 3 SCR 195, Ramchandra Rambux v. Champabai (1964) 6 SCR 814, Moonga Devi v. Radha Ballabh (1973) 2 SCC 112, Surendra Pal v. Dr. (Mrs.) Saraswati Arora (1974) 2 SCC 600, Seth Beni Chand (since dead) now by Lrs. v. Kamla Kunwar (1976) 4 SCC 554, Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao (2006) 13 SCC 433, Lalitaben Jayantilal Popat v. Pragnaben Jamnadas Kataria (2008) 15 SCC 365, S. R. Srinivasa v. S. Padmavathamma(2010) 5 SCC 274 and Balathandayutham v. Ezhilarasan (2010) 5 SCC 770.
16. Before traffic with a particular arguments, we cruise it compulsory to discuss that after a genocide of Shri Harishankar, a appellant and respondent No. 1 had filed detached applications for turn of their name in honour of land temperament Khasra No.92/1 Raqba 1-63 acres and converted land temperament Khasra Nos. 92/2 and 92/9 Raqba 0-35 acres. In support of his explain respondent No. 1 assembled Will antiquated 9.6.1989 and a appellant assembled Will antiquated 10.2.1992. By an sequence antiquated 31.12.1996, a Tehsildar authorised turn in foster of respondent No. 1. That sequence was set aside by Sub-Divisional Officer, Harda, who remanded a box to a Tehsildar for reinvestigation. The appellate sequence was set aside by Additional Commissioner, Hoshangabad Division by watching that a Will assembled by a appellant was suspicious. The revisional sequence was challenged by a appellant by filing a petition underneath Section 50 of a Madhya Pradesh Land Revenue Code, 1959. After examining a record and deliberation a arguments finished before him, a Administrative Member of a Revenue Board, Madhya Pradesh vide his sequence antiquated 21.7.2000 authorised a petition and destined that a turn be finished in suitability with Will antiquated 10.2.1992. This is evinced from divide 5 of sequence antiquated 21.7.2000, a applicable apportionment of that is extracted below:
“The Will antiquated 9.6.1989 is a purebred Will and a witnesses have also been examined. Therefore, there is no doubt in a validity. The statements were also taken of a dual witnesses of a Will antiquated 10.2.1992. That nonetheless a same is not purebred yet there is no doubt in a existence. The signature finished by Hari Shankar in a Will antiquated 10.2.1992 has been current by a declare Salig Ram. That it has come in a justification that Hari Shankar were 5 brothers and that he perceived 50 acres of and residence in partition. That in between a 3 sons of Hari Shankar a assign had already taken place. It has been a prolonged time given Anand Kumar had distant himself and Vinod Kumar distant himself in a year 1984-85. The pronounced fact has also come in a evidence. That on a pronounced fact no brawl has arisen by any party. The pronounced fact has also been supposed by Vinod Kumar. The benefaction brawl is usually in honour of a 1-98 acres of land in encampment Timarni and on that a residence has also been built. That any chairman can govern a Will series of times during his life camber and underneath these resources a Will that has been executed final would be taken into account. The guess or doubt can be lifted if a Will is executed in foster of a third celebration from outward and not in foster of a healthy authorised heirs of a deceased. But in box a priority is given usually to some of a healthy authorised heirs in comparison to a other healthy authorised heirs afterwards usually on this really reason a Will can't be reason as been invalid. That when for once a Will date 10.2.1992 has been current and there is no doubt on a partial of a testator Hari Shankar in executing a same afterwards underneath those resources there left no significance in a aged Will and a move would be instituted in suitability with a new Will. That a fact of a new Will been executed on comment of bad poise on a partial of Vinod Kumar and Anand Kumar or it has been executed on comment of a genocide of a mom of Hari Shankar would not impact a existence of a Will. Accordingly, a sequence antiquated 31.12.1996 of a Trial Court and a sequence antiquated 30.5.1998 of a Additional Commissioner are set aside. The turn record would be finished in suitability with a final Will antiquated 10.2.1992 of a deceased.”
(underlining is ours) The aforesaid sequence acquired finality given a same was not challenged by respondent No.1 by filing a petition underneath Article 226 or Article 227 of a Constitution.
17. The other critical fact that needs to be beheld is that a fit fild by a appellant for eviction of a tenant, i.e., Firm Ramesh Chandra Dinesh Kumar Agrawal was dictated by a conference Court and possession of a fit premises was handed over to a appellant. In that suit, respondent No. 1 had sought his impleadment as celebration yet his request was declined by a conference Court and a rider filed opposite a conference Court’s sequence was liberated by a High Court.
18. We shall now cruise possibly a appellant had succeeded in discharging a responsibility of explanation that Will antiquated 10.2.1992 was validly executed. For final this doubt it will be useful to notice some of a precedents in that this Court had deliberate a mode and demeanour of explanation a Will. In one of a beginning judgments in H. Venkatachala Iyengar v. B. N. Thimmajamma (supra), a 3 Judge Bench beheld a supplies of Sections 45, 47, 67 and 68 of a Indian Evidence Act, 1872 and Sections 59 and 63 of a 1925 Act and observed:
“Section 63 requires that a testator shall pointer or hitch his symbol to a will or it shall be sealed by some other chairman in his entrance and by his instruction and that a signature or symbol shall be so finished that it shall seem that it was dictated thereby to give outcome to a essay as a will. This territory also requires that a will shall be attested by dual or some-more witnesses as prescribed. Thus a doubt as to possibly a will set adult by a propounder is current to be a final will of a testator has to be motionless in a light of these provisions. Has a testator sealed a will? Did he know a inlet and outcome of a dispositions in a will? Did he put his signature to a will meaningful what it contained? Stated broadly it is a preference of these questions that determines a inlet of a anticipating on a doubt of a explanation of wills. It would prima facie be loyal to contend that a will has to be current like any other request solely as to a special charge of profession prescribed by Section 63 of a Indian Succession Act. As in a box of proof of other papers so in a box of explanation of wills it would be idle to design explanation with mathematical certainty. The exam to be practical would be a common exam of a compensation of a advantageous mind in such matters.
However, there is one critical underline that distinguishes wills from other documents. Unlike other papers a will speaks from a genocide of a testator, and so, when it is propounded or assembled before a court, a testator who has already over a universe can't contend possibly it is his will or not; and this aspect naturally introduces an component of gravity in a preference of a doubt as to possibly a request propounded is current to be a final will and covenant of a over testator. Even so, in traffic with a explanation of wills a justice will start on a same enquiry as in a box of a explanation of documents. The propounder would be called on to uncover by acceptable justification that a will was sealed by a testator, that a testator during a applicable time was in a sound and disposing state of mind, that he supposed a inlet and outcome of a dispositions and put his signature to a request of his possess giveaway will. Ordinarily when a justification adduced in support of a will is disinterested, acceptable and sufficient to infer a sound and disposing state of a testator’s mind and his signature as compulsory by law, courts would be fit in creation a anticipating in foster of a propounder. In other words, a responsibility on a propounder can be taken to be liberated on explanation of a essential contribution usually indicated. There may, however, be cases in that a execution of a will competence be surrounded by questionable circumstances. The purported signature of a testator competence be really unsure and puzzled and justification in support of a propounder’s box that a signature, in doubt is a signature of a testator competence not mislay a doubt combined by a entrance of a signature; a condition of a testator’s mind competence seem to be really handicapped and debilitated; and justification adduced competence not attain in stealing a legitimate doubt as to a mental ability of a testator; a dispositions finished in a will competence seem to be unnatural, extraordinary or astray in a light of applicable circumstances; or, a will competence differently infer that a pronounced dispositions competence not be a outcome of a testator’s giveaway will and mind. In such cases a justice would naturally design that all legitimate suspicions should be totally private before a request is supposed as a final will of a testator. The entrance of such questionable resources naturally tends to make a initial responsibility really heavy; and, unless it is satisfactorily discharged, courts would be demure to provide a request as a final will of a testator. It is loyal that, if a premonition is filed alleging a practice of undue influence, rascal or duress in honour of a execution of a will propounded, such pleas competence have to be current by a caveators; but, even though such pleas resources competence lift a doubt as to possibly a testator was behaving of his possess giveaway will in executing a will, and in such circumstances, it would be a partial of a initial responsibility to mislay any such legitimate doubts in a matter.
Apart from a questionable resources to that we have usually referred, in some cases a wills propounded divulge another infirmity. Propounders themselves take a distinguished partial in a execution of a wills that consult on them estimable benefits. If it is shown that a propounder has taken a distinguished partial in a execution of a will and has perceived estimable advantage underneath it, that itself is generally treated as a questionable business attending a execution of a will and a propounder is compulsory to mislay a pronounced guess by transparent and acceptable evidence. It is in tie with wills that benefaction such questionable resources that decisions of English courts mostly discuss a exam of a compensation of legal conscience. It competence be that a anxiety to legal demur in this tie is a birthright from identical observations finished by ecclesiastical courts in England when they exercised office with anxiety to wills; yet any conflict to a use of a word “conscience” in this context would, in a opinion, be quite technical and academic, if not pedantic. The exam merely emphasizes that, in final a doubt as to possibly an instrument assembled before a justice is a final will of a testator, a justice is final a honest doubt and it contingency be entirely confident that it had been validly executed by a testator who is no longer alive.”
19. The ratio of H. Venkatachala Iyengar’s box was relied on or referred to in Rani Purnima Devi v. Kumar Khagendra Narayan Dev (supra), Shashi Kumar Banerjee v. Subodh Kumar Banerjee AIR 1964 SC 529, Surendra Pal v. Dr. (Mrs.) Saraswati Arora (supra), Seth Beni Chand (since dead) now by Lrs. v. Kamla Kunwar (supra), Uma Devi Nambiar v. T.C. Sidhan (supra), Sridevi v. Jayaraja Shetty (supra), Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao (supra) and S. R. Srinivasa v. S. Padmavathamma (supra). In Jaswant Kaur v. Amrit Kaur, (1977) 1 SCC 369 a Court analysed a ratio in H. Venkatachala Iyengar’s box and culled out a following propositions: –
“1. Stated generally, a will has to be current like any other document, a exam to be practical being a common exam of a compensation of a advantageous mind in such matters. As in a box of explanation of other documents, so in a box of explanation of wills, one can't insist on explanation with mathematical certainty.
2. Since Section 63 of a Succession Act requires a will to be attested, it can't be used as justification until, as compulsory by Section 68 of a Evidence Act, one attesting declare during slightest has been called for a purpose of explanation a execution, if there be an attesting declare alive, and theme to a routine of a justice and able of giving evidence.
3. Unlike other documents, a will speaks from a genocide of a testator and therefore a builder of a will is never accessible for deposing as to a resources in that a will came to be executed. This aspect introduces an component of gravity in a preference of a doubt possibly a request propounded is current to be a final will and covenant of a testator. Normally, a responsibility that lies on a propounder can be taken to be liberated on explanation of a essential contribution that go into a creation of a will.
4. Cases in that a execution of a will is surrounded by questionable resources mount on a opposite footing. A unsure signature, a handicapped mind, an astray and unfair display of property, a propounder himself holding a heading partial in a creation of a will underneath that he receives a estimable advantage and such other resources lift guess about a execution of a will. That guess can't be private by a small avowal of a propounder that a will bears a signature of a testator or that a testator was in a sound and disposing state of mind and memory during a time when a will was made, or that those like a mom and children of a testator who would routinely accept their due share in his estate were disinherited given a testator competence have had his possess reasons for incompatible them. The entrance of questionable resources creates a initial responsibility heavier and therefore, in cases where a resources attendant on a execution of a will excite a guess of a court, a propounder contingency mislay all legitimate suspicions before a request can be supposed as a final will of a testator.
5. It is in tie with wills, a execution of that is surrounded by questionable resources that a exam of compensation of a legal demur has been evolved. That exam emphasises that in final a doubt as to possibly an instrument assembled before a justice is a final will of a testator, a justice is called on to confirm a honest doubt and by reason of questionable resources a justice has to be confident entirely that a will has been validly executed by a testator.
6. If a caveator alleges fraud, undue influence, duress etc. in courtesy to a execution of a will, such pleas have to be current by him, yet even in a deficiency of such pleas, a really resources surrounding a execution of a will competence lift a doubt as to possibly a testator was behaving of his possess giveaway will.
And afterwards it is a partial of a initial responsibility of a propounder to mislay all reasonable doubts in a matter.”
20. In Uma Devi Nambiar v. T.C. Sidhan (supra), a Court reason that active entrance of a propounder / customer in a execution of a Will or ostracism of a healthy heirs can't lead to an deduction that a Will was not genuine. Some of a observations finished in that box are extracted below:
“A Will is executed to change a typical mode of period and by a really inlet of things, it is firm to outcome in possibly shortening or depriving a share of healthy heirs. If a chairman intends his skill to pass to his healthy heirs, there is no prerequisite during all of executing a Will. It is loyal that a propounder of a Will has to mislay all questionable circumstances. Suspicion means doubt, surmise or mistrust. But a fact that healthy heirs have possibly been released or a obtuse share has been given to them, by itself though anything more, can't be reason to be a questionable business generally in a box where a leave has been finished in foster of an offspring. As reason in P.P.K. Gopalan Nambiar v. P.P.K. Balakrishnan Nambiar it is a avocation of a propounder of a Will to mislay all a suspected features, yet there contingency be real, convenient and current questionable facilities and not anticipation of a jealous mind. It has been reason that if a propounder succeeds in stealing a questionable circumstance, a justice has to give outcome to a Will, even if a Will competence be assumed in a clarity that it has cut off unconditionally or in partial nearby relations. (See Pushpavathi v. Chandraraja Kadamba.) In Rabindra Nath Mukherjee v. Panchanan Banerjee it was celebrated that a business of damage of healthy heirs should not lift any guess given a whole thought behind execution of a Will is to meddle with a normal line of period and so, healthy heirs would be debarred in any box of Will. Of course, it competence be that in some cases they are entirely debarred and in some cases partly.”
(emphasis supplied) The same perspective was reiterated in Pentakota Satyanarayana v. Pentakota Seetharatnam (supra).
21. In a light of a above, it is to be seen possibly a appellant succeeded in explanation that Shri Harishankar had executed Will antiquated 10.2.1992 and a same was duly attested as per a charge of Section 63(c) of a 1925 Act.
22. In his matter filed in a form of confirmation underneath Order XVIII Rule 4 Code of Civil Procedure a appellant definitely staid that respondent No. 1 distant from a corner family in 1985 and got a residence during Timarni detached from 10 acres land situated during Village Nimacha. The appellant serve staid that his father and respondent No. 1 were using Anand Medical stores as a partnership that was dissolved and a medical store was handed over to respondent No. 1; that after retraction of a partnership, he started a emporium of seeds, manure and pesticides and he and his mom and daughter served a relatives compartment their death. According to a appellant, after a genocide of a mother, his father-in-law had invited his family members including a father for “dehli chudane” rite and during that time his father got prepared Will and sealed a same in a entrance of witnesses, who also appended their signatures. The appellant also staid that he was profitable nazul tax, residence tax, rent, etc., in respect of 2 acres land and a bungalow. He also staid that a Revenue Board had inspected sequence for turn of his name and that in avail of a direct inspected in a eviction suit, he performed possession of a bungalow from a tenant. Along with a affidavit, a appellant assembled several papers including a profits display remuneration of a lease and several taxes and acclimatisation of a apportionment of a rural land. He also assembled copies of a visualisation and sequence inspected by a Civil Court and a Revenue Board.
23. The appellant was subjected to extensive interrogate by a warn for respondent Nos. 1 and 2. In respond to one of a questions put by a warn for respondent No. 1, a appellant staid that there was a assign in 1985 in that respondent No. 1 was given 10 acres land during Nimacha and residence situated during Gandhi Chowk, Timarni. In response to another question, a appellant staid that his father had put signatures on Exhibit D-2 in his entrance and that his father and others did not pointer on a initial page given a essay was not complete. The appellant also staid that Kailash Chand (DW-4) had sealed before Sobhag Chand and Sh. S.K. Agarwal had sealed after his father and dual witnesses had sealed a Will. In respond to a doubt put by a warn for respondent No. 2, a appellant staid that compartment 1965 all a brothers and relatives lived together and, thereafter, respondent No. 2 distant from a corner family. In respond to another question, a appellant gave out that Sobhag Chand and Kailash Chand are conjunction associated to his father nor are they his friends yet knew him and they used to revisit his in-laws. The appellant also staid that his father had told a witnesses that he had executed Will given he was happy with a services rendered by a appellant and his wife. The appellant gave out that a dual attesting witnesses do not go to his standing and a houses of a persons belonging to his standing are during a stretch from his in-laws house.
24. The justification of Sobhag Chand (DW-3) and Kailash Chand (DW-4) was also filed in a form of affidavits. They definitely staid that Shri Harishankar had review out a Will in their entrance and they appended signatures after Shri Harishankar had sealed a same. The attesting witnesses were cross-examined during length about a time of their attesting a Will. Sobhag Chand denied a idea that he had sealed a Will before Shri Harishankar had sealed a same. He expresses his stupidity about a time when Kailash Chand had come. He also voiced his stupidity as to after how most time Kailash Chand came to a residence of Bal Kishan. Although, there is some disproportion about a indicate of time when a dual attesting witnesses appended their signatures on a Will yet both have stood tiresome cross- hearing on a factum of their carrying sealed as witnesses after a executant, viz., Shri Harishankar had sealed a Will in their entrance and that too after reading out a same.
25. From what we have remarkable above, it is transparent that a appellant succeeded in discharging a responsibility of explanation that a Will antiquated 10.2.1992 had in fact been executed by Shri Harishankar and he had sealed a same in a entrance of a attesting witnesses who also appended their signatures in his presence. The fact that Shri Harishankar was in a sound state of health (physically and mentally) is determined from a matter of respondent No.2 who definitely denied a idea that a mental and earthy condition of his father run-down 5-6 months before to his genocide or that he had mislaid his mental balance. In his statement, respondent No.1 did not advise that a earthy and mental health of his father was not good during a time of execution of Will antiquated 10.2.1992. Not usually this, he finished a following critical admissions:
i) The relatives were vital with a appellant and during a illness of mom a appellant’s mom used to demeanour after her.
ii) The losses incurred in a wake of a mom were paid by a appellant.
iii) The Board of Revenue motionless a box of turn in foster of a appellant and he did not plea a sequence of a Board of Revenue.
iv) Shri S.K. Agarwal is associated to him and he was his warn before a Board of Revenue.
v) The focus for impleadment filed by him in a fit instituted by a appellant opposite a reside was liberated by a conference Court and a sequence of a conference Court was inspected by a High Court.
vi) That a appellant was profitable metropolitan taxation / nazul taxation and lease in honour of a skill that fell to a share of Shri Harishankar.
26. Thus, even from a matter of respondent No.1 it is determined that a Will (Exhibit D-2) was sealed by his father Shri Harishankar and on a strength of Exhibit D-2 a appellant had succeeded before a Board of Revenue and a Civil Court.
27. The emanate that stays to be examined is possibly a High Court was fit in entrance to a end that a execution of Will antiquated 10.2.1992 was hidden with guess and a appellant unsuccessful to diffuse a suspicion. At a outset, we reason it compulsory to observe that a schooled Single Judge misread a matter of Sobhag Chand (DW-3) and accessible something that does not seem in his statement. While Sobhag Chand definitely staid that he had sealed as a declare after Shri Harishankar had sealed a Will, a apportionment of his matter extracted in a impugned visualisation gives an sense that a witnesses had sealed even before a executant had sealed a Will. Another obvious blunder committed by a schooled Single Judge is that he motionless a emanate relating to outcome of a Will by presumption that both a attesting witnesses were compulsory to attach their signatures simultaneously. Section 63(c) of a 1925 Act does not enclose any such requirement and it is staid law that hearing of one of a attesting witnesses is sufficient. Not usually this, while recording an inauspicious anticipating on this issue, a schooled Single Judge wanting to cruise a sure statements finished by DW-3 and DW-4 that a testator had review out and sealed a Will in their entrance and afterward they had appended their signatures.
28. The other reasons enumerated by a schooled Single Judge for holding that a execution of Will was rarely questionable are formed on small surmises/conjectures. The regard of a schooled Single Judge that a probability of receiving signatures of Shri Harishankar and attesting witnesses on vacant paper and credentials of a breeze by Shri S. K. Agarwal, Advocate on pre-signed papers does not find even a emergence of support from a pleadings and justification of a parties. If respondent No.1 wanted to uncover that a Will was drafted by a disciple after Shri Harishankar and attesting witnesses had sealed vacant papers, he could have examined or during slightest summoned Shri S. K. Agarwal, Advocate, who had represented him before a Board of Revenue. On being examined before or by a Court, Shri S. K. Agarwal could have testified possibly he had prepared a Will on pre-signed papers. However, a fact of a matter is that it was conjunction a pleaded box of respondent No. 1 nor any justification was assembled by him to infer that Shri Harishankar and a attesting witnesses had sealed a vacant papers and, thereafter, Shri S.K. Agarwal prepared a Will.
29. The small fact that Kailash Chand lives during a stretch of about 4 furlong from a residence of Bal Kishan (father in law of a appellant) has no temperament on a emanate relating to outcome of a Will nor a non-examination of a persons belonging to a same encampment has got any relevance. The deficiency of a sure uncover in Will antiquated 10.2.1992 that a progressing Will was cancelled is also not applicable given once a execution of a second Will is reason as duly proved, a progressing Will automatically becomes surplus given a second Will represents a final wish of a testator.
30. The fact that a appellant was benefaction during a time of execution of Will antiquated 10.2.1992 and that a testator did not give anything to respondent Nos. 1 and 2 from his share in a corner family skill are not wilful of a emanate relating to genuineness or outcome of a Will. The justification assembled by a parties certainly uncover that respondent No. 2 had distant from a family in 1965 after holding his share and respondent No. 1 also got his share in a 2nd assign that took place in 1985. Neither of them worried to demeanour after a relatives in their aged age. The opinion of respondent Nos. 1 and 2 left Shri Harishankar and his mom with no choice yet to live with a appellant, who along with his mom and children took caring of a aged relatives and looked after them during their illness. Therefore, there was zero assumed or surprising in a preference of Shri Harishankar to give his share in a corner family skill to a appellant. Any chairman of typical anticipation would have adopted a same march and would not have given anything to a ungrateful children from his / her share in a property.
31. In perspective of a above discussion, we reason that a schooled Single Judge was clearly in blunder in reversing a well-reasoned anticipating accessible by a conference Court on a issues of execution of Will antiquated 10.2.1992 by Shri Harishankar and a genuineness and validity. Consequently, a appeals are allowed, a impugned settlement is set aside and a one inspected by a conference Court is restored. The parties are left to bear their possess costs.
[SUDHANSU JYOTI MUKHOPADHAYA]
New Delhi, Mar 13, 2012.