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TMI Blog1963 (9) TMI 51X X X X Extracts X X X X X X X X Extracts X X X X ..... y executed and attested, though it was also contended that it was not genuine, and the testator did not have testamentary capacity at the time of signing the alleged will and that the execution of the will had been obtained by undue influence, fraudulent misrepresentation and coercion. 2. Four main issues arose on these pleadings, namely, - (1) Is the will genuine? (2) Has the will been properly executed and attested? (3) Had the testator testamentary capacity at the time of the signing of the alleged will? (4) Was the execution of the will obtained by undue influence, fraudulent representation and coercion, as alleged? The District Judge held on the evidence that though the testator might have been enfeebled in body, he retained a sound and disposing mind almost upto the last moment of his life, and one of the last documents executed by the testator which was attested by one of the caveators himself, was dated March 3, 1947. The issue as to undue influence, fraudulent misrepresentation and coercion was abandoned and was thus answered in favour of the appellants. The District Judge also held that due execution and attestation of the will had been proved and that the will was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by S. 63 of the Indian Succession Act. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before the Court accepts the will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no. such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court. The suspicious circumstances may be as to genuineness of the signature of the testator, the condition of the testator's mind, the dispositions made in the will being unnatural improbable or unfair in the light of relevant circumstances or there might be other indication in the will to show that the testator's mind was not free. In such a case the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leaving some blanks here and there, particularly in relation to the numbers of immovable properties disposed of and also in some cases the name of the particular legatee to whom the properties were to go. It also appears that the testator suffered from a severe illness in July 1943 and at one time his life was despaired of. It was after recovery from this serious illness that the will in dispute is alleged to have been signed by him on August 29, 1943. It is also not in dispute that the signature at the bottom of the will is the signature of the testator. Further though at one time there was dispute whether the date under the signature was written by the testator, the respondents have failed to prove that the date "29-8-1943" is not in the handwriting of testator. The dispositions in the will are in favour of the various sons and grandsons of the testator and also of his wife, and wherever the testator had deprived any of his descendants of benefit under the will he has given reasons for the same. Further the will recites at the end that the testator had signed it in the presence of the attesting witness and that the attesting witnesses had seen the testator signing it and that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of any share of his remaining property he has given reasons for it. Besides he had already disposed of the large bulk of his property worth about rupees sixty lacs and the will only deals with a small residue worth about rupees three lacs. There is nothing to show that the dispositions were not the result of the free will and mind of testator. Further, the propounders (namely, the appellants) had nothing to do with the execution of the will and thus there are really no. suspicious circumstances at all in this case. All that was required was to formally prove it, though the signature of the testator was admitted and it was also admitted that the whole will was in his handwriting. It is in the background of these circumstances that we have to consider the evidence of the two attesting witnesses and of the handwriting expert on whose opinion alone practically the High Court has held that the will was not duly executed and attested. 6. Before we come to the evidence of these three witness mentioned above we should like to refer to one other circumstance, which appears in this case. The evidence is that some time after the will had been executed it was handed over by the testator to hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed and attested. We have therefore to examine the evidence of the attesting witnesses in this connection and what the learned counsel for the appellants calls intrinsic evidence in the will itself to show that it must have been executed and attested on August 29, 1943 as it purports to be, for the fact that the will is in the handwriting of the testator and bears his signature is not in dispute. The respondents mainly relied on the evidence of the handwriting expert and their case as based on that evidence was that in 1943, 1944 and 1945 there was no. tremor in the handwriting of the testator and that tremor appeared in his handwriting from 1946 and went on increasing till his death in 1947. The expert's evidence further is that the writing the body of the will is without tremor while the signature at the bottom of it and initials in the margin on the corrections showed tremor and therefore the will must have been signed after 1945 and not in August 1943, as it purports to be. We shall deal with the evidence of the expert later; but it is pertinent to point out here that we cannot understand when the testator admittedly signed the will even according to the respondents, though ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ushila, the testator says that she was living with her sons in her house. It is admitted that Sushila came to live with her father in 1945, shortly before the death of her mother and stayed on till the testator died. In such circumstances it is extremely unlikely that the testator who had made corrections in the will before he signed it would not correct this part of it. 10. The third circumstance which is relied on is with respect to Nihar Bala, a daughter of the testator, to whom a bequest was made in the will and who is the wife of Kartick Mukherjee. The testator said in the will that her husband was a Senior Stock Varifier on a monthly pay of Rs. 300/-. Now it is in evidence that Kartick retired early in 1946 and his wife Nihar Bala asked in January 1947 for a monthly allowance which the testator provided for her. It is said that if this will was signed by the testator late in 1946 he would not say therein that his son- in - law was getting Rs. 300/- per mensem when in fact he had retired. 11. The fourth circumstance which is relied on is that the will says that Shivendra, a son of another daughter Rani Devi alias Renuke is preparing for his B. A. examination. Now it is not d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ween January to March 1943 and signed in August 1943. In any case though some of the recitals are of a minor nature, there are two matters which in our opinion could not have appeared in a will signed late in 1946. These two matters are, namely, (1) provision for the wife when she undoubtedly died in 1945, and (2) the disposition of property No. 76 Hazara Road. We cannot accept the argument that these matters might have escaped the attention of the testator when he signed the will late in 1946 for there was nothing wrong with him till late 1946 which would allow such defects to creep into this will. We therefore agree with the contention on behalf of the appellants that these circumstances tend to show that the will must have been signed in August 1943 as it purports to be. 15. This brings us to the oral evidence of two attesting witnesses and the handwriting expert. We must, with respect, say that the High Court was not right in first considering the evidence of the expert and holding on its basis that the will could not have been signed in 1943, in a case of this kind where there were practically no. suspicious circumstances and where all the circumstances point to the due execu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidence of Manmathanath Mookerjee and Sambhunath Munshi. Manmathanath's statement is that he happened to go that day to inspect a house belonging to his father's debutter estate at Rustomjee Street which is near where the testator used to live. Therefore he went to see the testator because his usual practice was that whenever he was in the locality in which the testator lived and he had time at his disposal he always went round to see him. Similarly the evidence of Sambhunath Munshi was that he went to see the testator in order to hand over Glucose and Horlicks which he was asked to procure for the testator as in those days Glucose and Horlicks were difficult to get. Thus it was by chance that the two attesting witnesses happened to be there when the testator asked them to attest the will. The argument on behalf of the respondents is that if the testator wanted to execute the will he would have sent for these witnesses and it is too much to believe that they happened to be there and the testator took advantage of their presence. It may be that it is more usual for witnesses to be called when a person is intending to execute a will; even so there is nothing impossible in adv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the afternoon according to both the witnesses; this is not a case where one witness says that execution took place in the morning while the other ways that it took place in the evening, which of course may introduce some infirmity in the evidence. 18. It was also urged that it was most unlikely that Manmathanath Mookerjee would go to inspect his house in Rustomjee Street on an afternoon in the month of August, as it would be a most inconvenient time for a person of his status. But if the time would be inconvenient to a person of status, we fail to see why we should not believe such a person when he says that he actually did go for a particular purpose to a particular place at a particular time. Some criticism was also made about Manmathanath's statement that he did not know in which room his daughter used to live in the testator's house. We fail to see how this statement affects the credibility of the witness, for it is not disputed that the witness being the father-in-law of the testator's son used to go to the testator's house as and when occasions arose. Some criticism was also made as to whether Manmathanath wrote the word "witness" on the plan attached to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... testator had lost pen control. In his evidence the expert made some changes in his opinion. He said that deterioration in the signature of the testator began from March 1946 and this he said because he had to admit that many signatures of January 1946 did not disclose any tremor. Further though in the report he had said that tremors began suddenly in 1946, in his evidence he admitted that in oldage tremors appeared gradually and increased with passage of time. Further he was cross-examined with respect to certain signatures of the testator of the period before 1946 which showed tremors and also with respect to certain signatures after 1946 which did not show tremors. He had to admit that some of these signatures shown to him did not conform to the pattern, namely, that there was pen control upto March 1946 and thereafter pen control was lost. He however explained these deviations from the pattern by reference to what he called "pen pressure" and "angularities" which according to him were different from loss of pen control. There is however no. doubt that there are some signatures of the period upto March 1946 which show tremors and there are some signatures of the period after Marc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se any tremor. The evidence of the expert therefore in these circumstances is not conclusive and can not prove that the signature at the bottom of the will could not possibly have been made on August 29, 1943 on which date it purports to have been made. Besides it must not be forgotten that the will was executed in August 1943 soon after the testator had recovered from a serious illness and if there is some tremor here and there in his writing on that day, his illness may partly explain it. In this connection however our attention was drawn to some signatures made on September 1, 1943 only three days later which do not show much tremor : (see Ex. C/15). As we see the signature of September 1, 1943, we find that it is not quite so firm as some other signatures made later in the month of September. On the whole therefore we are not prepared to accept that the signature at the bottom of the will could not possibly have been made in August 1943 and must have been made late in 1946. We do not consider in the circumstances of this case that the evidence of the expert is conclusive and can falsify the evidence of the attesting witnesses and also the circumstances which go to show that thi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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