Bharpur Singh & Ors. Vs. Shamsher Singh on 12 December, 2008
Author: S Sinha
Bench: S.B. Sinha, Cyriac Joseph
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7250 OF 2008
[ARISING OUT OF S.L.P. (CIVIL) NO. 1400 OF 2007]
BHARPUR SINGH & ORS. APPELLANTS
Versus
SHAMSHER SINGH RESPONDENT
JUDGMENT
S.B. SINHA, J.
1. Leave granted.
2. Ram Devi, the testatrix, widow of Jiwan Singh resident of Village
Gharuan, Tehsil Kharar, District Ropar, Punjab, whose legal heirs and
representatives are the appellants, executed a will on or about 30.3.1962
when she was aged about 75 years of age. She breathed her last on
19.6.1990.
To show the relationship between the parties, we may at the outset
notice the genealogical table.
2
Rattan Singh
!
————————————————————————– ! ! Roop Singh Jodh Singh ! ! ———————— Diwan Singh ! ! ! Krishan Lal Singh ————————— Singh ! ! ! Ran Singh Harnam Singh
——————————- ! ! ! Jiwan ! ! Singh Nagina Wariam ! Singh ! ! Ram Devi Manna Singh ! ! —————————————————— ! ! ! ! ! Shamsher Pritam Basso Gurdial Kakko Singh Kaur Died Kaur Defendant Died @ Dialo
Defendant
Admittedly, the two surviving daughters of the testatrix, namely, Smt.
Gurdial Kaur alias Dialo and Smt. Kakko were married and had been living
at far away places. Respondent being the beneficiary under the said Will
filed a suit in the year 1993 against the appellants, inter alia, praying for 3
setting aside an order of mutation passed in their favour on the premise that
relying on or on the basis thereof, the appellants had threatened to alienate
the suit land and dispossess him therefrom.
Plaintiff – Respondent in his plaint alleged that during the life time of
the testatrix, he used to look after her and in fact she expired in the house of
his daughter Iqbal Kaur.
3. Admittedly, she had four daughters, out of whom the defendants were
alive but were disinherited by her in the said Will. However, when an order
of mutation was passed in favour of appellants, the said suit was filed.
4. Appellants in their written statement denied and disputed the
contentions raised by the plaintiff that Ram Devi used to be looked after by
the plaintiff. According to them, no will had been executed by Ram Devi in
view of services rendered by him as alleged or at all. According to them, as
Jiwan Singh, the husband of Ram Devi was murdered about 60 years back,
she lost her balance of mind and had not been possessing sound mental
faculties. According to the defendants, she was being looked after by her
daughters.
5. The learned Subordinate Judge, 1st Class, Kharar, in view of the
pleadings of the parties, framed the following issues: 4
"1. Whether the plaintiff is owner in possession of the suit land?
2. Whether Smt. Ram Devi executed a legal and valid will dated 30.3.1962 in favour of the plaintiff, if so, its effect?
3. Whether the plaintiff has been mortgagee in possession of land bearing Kh/Kh. No. 25/59 described in head note of the plaint?
4. If issue No. 3 is proved, whether equity of redemption has been extinguished?
5. Whether plaintiff is entitled to decree of permanent injunction prayed for?
6. Whether the plaintiff is estopped by his act and conduct to file the present suit?
7. Relief"
The learned trial judge held that `the plaintiff had failed to prove that
Ram Devi executed a legal and valid will in his favour out of sound
disposing mind.’
Inter alia, opining that the plaintiff was an outsider, it was
furthermore held:
"Although in the will it finds mention that the legatee Shamsher Singh is nephew of husband of testatrix and that Bijla Singh father of Shamsher Singh helped testatrix at the time of marriage of her daughters, but the plaintiff in his pleadings has nowhere pleaded so, nor did any evidence in that regard. Thus these contentions in the will are 5
obviously contrary to factual position and it comes out that Shamsher Singh is not related to Ram Devi in any way. The plaintiff did not lead even an iota of evidence to establish that he had been looking after and serving the testatrix till her death. Except the solitary statement of plaintiff which is a self-serving, no other person from the village came forward to support the plaintiff on this point. PW4 Pritam Singh the only witness from village Ghruan examined by the plaintiff did not utter even a single word in that regard. The plaintiff did not produce any evidence to prove that he had joint ration card with Smt. Ram Devi and Ram Devi was having a vote at his address. The contention of the plaintiff that Ram Devi expired at Rajpura in the house of his daughter Iqbal Kaur, does not make any sense since he is silent as to what Ram Devi was doing at the house of his daughter at that time. Furthermore, the plaintiff did not examine Iqbal Kaur or anybody else from Rajpura to establish that Ram Devi was putting up with Iqbal Kaur, widowed daughter of the plaintiff. The plaintiff has nowhere pleaded in his pleadings that Smt. Ram Devi had been residing with his daughter Iqbal Kaur at Rajpura and Iqbal Kaur has been looking her. A perusal of the file goes to show that the plaintiff and prior to his father have been in possession of a portion of suit land as tenant and ever the remaining suit land as mortgagee. If relations between the plaintiff, his father on one side and Ram Devi on other side were so cordial and the former had been looking after and serving the latter, there was no need for Ram Devi to mortgage a portion of suit land with them and to give the remaining land on rent to them. That goes to show that relations between them were professional and business type. It cuts at the root of the case of plaintiff that he had been looking after and serving Ram Devi and Ram Devi executed a will in his favour out of love and affection."
6
The learned Subordinate Judge, 1st Class, Kharar, Punjab, by his
judgment and decree dated 24.8.1995 decided issue nos. 1 and 2 in favour
of the appellants. The learned Judge granted a decree for declaration to the
effect that the plaintiff-respondent was owner-in-possession of the land
bearing Kh/Kh. No. 25/59 Kh. No. 1644(5-0), 1645 (3-0), 1646 (6-5), 1647
(6-5), 1648 (5-10) situated at village Gharuan as per Jamabandi of the year
1988-89 with the consequent relief of permanent injunction restraining the
defendants – appellants from alienating that part of the land in suit.
However, other reliefs prayed for in the suit were not granted.
6. Being aggrieved by and dissatisfied therewith, both the parties
preferred appeals thereagainst.
7. By reason of a judgment and order dated 1.10.1999, Appellate Court
held that the execution of the will must be held to have been proved and all
suspicious circumstances have been dispelled, stating:
" the only conclusion that can be drawn is that will is a genuine document and was executed more than 28 years back by the deceased out of her own free will and she never tried to cancel the same. The fact that some land of the deceased was lying mortgaged with the father of the plaintiff in the revenue record does not mean that there was only commercial relations between the parties. First of all, the original mortgage deed has not come on 7
the file to indicate whether plaintiff or his father got the land in mortgage or whether they purchased the mortgagee rights from somebody else. The fact that Shamsher Singh participated in the execution of the will itself does not indicate that he exercis
ed any influence over deceased Ram Devi. If it was so there was no reason as to why Ram Devi did not get it cancelled within more than 28 years of her life after the execution. The defendants on the other hand have not proved any ration card or voter list as claimed by Dialo in her statement on oath, to indicate that the deceased was permanently living with them. In the will, complete details have been given. It is mentioned that deceased has four daughters and two of them have already died. If the plaintiff is a stranger, he will not know this fact. The will is always executed to deviate from the natural succession. If the deceased wanted that her daughter would succeed her then there was no need to execute the will "
The appellate court allowed both the appeals, stating:
"As a result of fore-going discussion, the appeal titled as Dialo etc. Vs. Shamsher Singh No. 241 of 27.9.1995, RT No. 148/27.9.1995/27.2.1999 is accepted as issues No. 3 and 4 are decided in favour of the defendants and against the plaintiff. The appeal titled as Shamsher Singh Vs. Dialo etc. No. 236/7.9.1995, RT No. 439/7.9.1995, 2.6.1999 is also accepted on account of my findings on issues No. 1 and 2 and 5. As a result thereof, the suit of plaintiff is partly decreed and declaration is granted to the effect that he has become owner in possession of the suit land fully detailed in the head note of the plaint on the basis of registered will Ex. P2 dated 30.3.1962 executed by Ram 8
Devi widow of Jiwan Singh. Permanent injunction is also granted restraining the defendants from alienating the suit property in any manner or interfering in the peaceful possession of the plaintiff in any manner. Further, the suit qua relief on the basis of non-redumption of mortgagee rights is dismissed."
8. The Second Appeal preferred by appellants herein was dismissed by
the High Court by reason of the impugned judgment, holding:
"The Will in question was executed on 30.3.1962 and the testator is said to have died on 19.6.1990. The fact that during this entire period, the testator did not have any second thoughts goes to show about the clarity of the intention of the testator. The fact that it was registered only lends more credence to the validity of the Will. It is also in evidence that Gurdial Kaur and Kako were not staying with their mother and had not supported her during her life time. In their testimony, they have stated that they came to know about the death of Ram Devi about 5 to 6 days after she had expired. In fact, all the defence witnesses have admitted this fact. This is a reflection and a measure of the relationship of Gurdial Kaur and Kako were having with their mother at the time of her death. On the other hand, Ram Devi is said to have died in the house of Iqbal Kaur, daughter of the plaintiff-respondent. This was sufficient reason for the testator to have deprived the natural heirs of the right to succession."
9
9. Mr. Neeraj Kumar Jain, learned counsel appearing on behalf of
appellants would submit:-
i. The first appellate court as also the High Court must be
held to have committed a serious error in arriving at the
aforementioned findings insofar as they failed to take
into consideration that the respondent/plaintiff did not
produce the Will before the Revenue authorities and
furthermore did not make any attempt to file a suit on the
basis thereof for a period of three years from the date of
death of the testatrix.
ii. The plaintiff had not been able to prove that the
relationship between Ram Devi and her daughters was
strained.
iii. An agnate separated by five degrees cannot be said to be
a relation, which would be a sufficient ground for an old
lady to execute a will in his favour.
iv. No reason has been assigned as to why the daughters
have been disinherited by the testratix. 10
v. The left thumb impression of the testatrix was not
compared with her left thumb impression appearing in
the deed of mortgage which was said to have been
executed in favour of the plaintiff and, thus, no reliance
could have been placed thereupon.
vi. The beneficiary of the will being mortgagees and tenants
coupled with other factors, it should have been held by
the courts below that the Will was surrounded by
suspicious circumstances.
10. Mr. S.D. Sharma, learned Senior Counsel appearing on behalf of the
respondent, on the other hand, would contend:-
i. Shamsher Singh being one of the collaterals and he having
been looking after Ram Devi, the testatrix, the execution of the
Will must be said to have been proved.
ii. The Will being a registered one, its genuineness should be
presumed. The same in any event having been executed on
30.3.1962, its execution must be held to have been proved
being a document more than 30 years old. 11
iii. The fact that the appellants, although daughters, came to know
about their mother’s death six days after the same had taken
place, evidently shows that they had not been looking after
their mother during her old days.
iv. Appellants have failed to prove that they had been maintaining
any relationship with their mother and at her old age she was
being looked after by them.
11. The legal principles in regard to proof of a will are no longer res
integra. A will must be proved having regard to the provisions contained in
clause (c) of Section 63 of the Indian Succession Act, 1925 and Section 68
of the Indian Evidence Act, 1872, in terms whereof the propounder of a will
must prove its execution by examining one or more attesting witnesses.
Where, however, the validity of the Will is challenged on the ground of
fraud, coercion or undue influence, the burden of proof would be on the
caveator. In a case where the Will is surrounded by suspicious
circumstances, it would not be treated as the last testamentary disposition of
the testator.
12
12. This Court in H. Venkatachala Iyengar vs. B.N. Thimmajamma [AIR
1959 SC 443] opined that the fact that the propounder took interest in
execution of the Will is one of the factors which should be taken into
consideration for determination of due execution of the Will. It was also
held that one of the important features which distinguishes Will from other
documents is that the Will speaks from the date of death of the testator, and
so, when it is propounded or produced before a court, the testator who has
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.
It was also held that the propounder of will must prove:
(i) that the Will was signed by the testator in a sound and
disposing state of mind duly understanding the nature and
effect of disposition and he put his signature on the document
of his own free will, and
(ii) when the evidence adduced in support of the Will is
disinterested, satisfactory and sufficient to prove the sound and
disposing state of testator’s mind and his signature as required 13
by law, Courts would be justified in making a finding in favour
of propounder, and
(iii) If a Will is challenged as surrounded by suspicious
circumstances, all such legitimate doubts have to be removed
by cogent, satisfactory and sufficient evidence to dispel
suspicion.
In other words, the onus on the propounder can be taken to be
discharged on proof of the essential facts indicated therein.
It was moreover held:-
"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 propounder’s 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 all legitimate suspicions should be completely removed before the document is accepted as the last will of the 14
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 treat 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 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."
13. This Court in Niranjan Umeshchandra Joshi vs. Mrudula Jyoti Rao &
ors. [2006 (14) SCALE 186], held:
"33. The burden of proof that the Will has been validly executed and is a genuine document is on the propounder. The propounder is also required to prove that the testator has signed the Will and that he had put his signature out of his own free will having a sound disposition of mind and
understood the nature and effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharged. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In the case of proof of Will, a signature of a testator alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated. However, if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator. [See Madhukar D. 15
Shende v. Tarabai Shedage (2002) 2 SCC 85 and Sridevi and Ors. v. Jayaraja Shetty and Ors. (2005) 8 SCC 784]. Subject to above, proof of a Will does not ordinarily differ from that of proving any other document.
34. There are several circumstances which would have been held to be described (sic) by this Court as suspicious circumstances:
(i) When a doubt is created in regard to the condition of mind of the testator despite his signature on the Will;
(ii) When the disposition appears to be unnatural or wholly unfair in the light of the relevant circumstances;
(iii) Where propounder himself takes prominent part in the execution of Will which confers on him substantial benefit.
[See H. Venkatachala Iyengar v. B.N.
Thimmajamma and Ors. AIR 1959 SC 443 and Management Committee T.K. Ghosh’s Academy v. T.C. Palit and Ors. AIR 1974 SC 1495]"
14. Respondent was a mortgagee of the lands belonging to the testatrix.
He is also said to be the tenant in respect of some of the properties of the
testatrix. It has not been shown that she was an educated lady. She had put
her left thumb impression. In the aforementioned situation, the question, 16
which should have been posed, was as to whether she could have an
independent advice in the matter. For the purpose of proof of will, it would
be necessary to consider what was the fact situation prevailing in the year
1962. Even assuming the subsequent event, viz., the appellants had not
been looking after their mother as has been inferred from the fact that they
received the news of her death only six days after her death took place, is
true, the same, in our opinion, would be of not much significance.
The provisions of Section 90 of the Indian Evidence Act keeping in
view the nature of proof required for proving a Will have no application. A
Will must be proved in terms of the provisions of Section 63(c) of the
Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act,
1872. In the event the provisions thereof cannot be complied with, the other
provisions contained therein, namely, Sections 69 and 70 of the Indian
Evidence Act providing for exceptions in relation thereto would be
attracted. Compliance with statutory requirements for proving an ordinary
document is not sufficient, as Section 68 of the Indian Evidence Act
postulates that execution must be proved by at least one of the attesting
witness, if an attesting witness is alive and subject to the process of the
Court and capable of giving evidence. {See B. Venkatamuni vs. C.J.
Ayodhya Ram Singh & ors. [(2006) 13 SCC 449]} 17
15. This Court in Anil Kak vs. Kumari Sharada Raje & ors. [(2008) 7
SCC 695] opined that court is required to adopt a rational approach and is
furthermore required to satisfy its conscience as existence of suspicious
circumstances play an important role, holding:
"52. Whereas execution of any other document can be proved by proving the writings of the document or the contents of it as also the execution thereof, in the event there exists suspicious circumstances the party seeking to obtain probate and/ or letters of administration with a copy of the Will annexed must also adduce evidence to the satisfaction of the court before it can be accepted as genuine.
53. As an order granting probate is a judgment in rem, the court must also satisfy its conscience before it passes an order.
54. It may be true that deprivation of a due share by (sic to) the natural heir by itself may not be held to be a suspicious circumstance but it is one of the factors which is taken into
consideration by the courts before granting probate of a Will.
55. Unlike other documents, even animus
attestandi is a necessary ingredient for proving the attestation."
18
Unfortunately, the first appellate court as also the High court did not
advert to these aspects of the matter.
16. We may notice that in Jaswant Kaur vs. Amrit Kaur & ors. [(1977) 1
SCC 369] this Court pointed out that when the Will is allegedly shrouded in
suspicion, its proof ceases to be a simple lis between the plaintiff and
defendant. An adversarial proceeding in such cases becomes a matter of
Court’s conscience and propounder of the Will has to remove all suspicious
circumstances to satisfy that Will was duly executed by testator wherefor
cogent and convincing explanation of suspicious circumstances shrouding
the making of Will must be offered.
17. Suspicious circumstances like the following may be found to be
surrounded in the execution of the Will:
i. The signature of the testator may be very shaky and doubtful or
not appear to be his usual signature.
ii. The condition of the testator’s mind may be very feeble and
debilitated at the relevant time.
iii. The disposition may be
unnatural, improbable or unfair in the
light of relevant circumstances like exclusion of or absence of
adequate provisions for the natural heirs without any reason. 19
iv. The dispositions may not appear to be the result of the
testator’s free will and mind.
v. The propounder takes a prominent part in the execution of the
Will.
vi. The testator used to sign blank papers.
vii. The Will did not see the light of the day for long.
viii. Incorrect recitals of essential facts.
18. The circumstances narrated hereinbefore are not exhaustive. Subject
to offer of reasonable explanation, existence thereof must be taken into
consideration for the purpose of arriving at a finding as to whether the
execution of the Will had duly been proved or not.
It may be true that the Will was a registered one, but the same by
itself would not mean that the statutory requirements of proving the Will
need not be complied with.
19. We, therefore, keeping in view the peculiar facts and circumstances
of this case, are of the opinion that the impugned judgment of the High
Court as also the first appellate court should be set aside and the matter be 20
directed to be considered afresh in the light of the observations made
hereinbefore by the first appellate court. It is ordered accordingly.
The appeal is allowed with the aforementioned observations and
directions. However, in the facts and circumstances of the case, there shall
be no order as to costs.
.
[S.B. Sinha]
.
[Cyriac Joseph]
New Delhi;
December 12, 2008
