9911796707
TMI Blog2006 (10) TMI 495X X X X Extracts X X X X X X X X Extracts X X X X ..... i. Akkayamma followed him. They started living together. She had, however, been visiting Chittoor and Tirupati occasionally. Plaintiffs-Respondents originally developed a disliking for Akkayamma. A suit was also filed against her, but it appears from the records that they had later reconciled and she was accepted as a member of the family. A purported Will was executed by Akkayamma on 23rd March, 1968 bequeathing her properties situate in the District of Chittoor in favour of respondent No. 1 herein only. The said Will was an unregistered one. It may be, however, noticed that Jai Singh expired on 17th July, 1968. During his illness, although Akkayamma was possessed of sufficient properties both movable and immovable, but she did not spend any amount towards his treatment. Admittedly, she was of miserly nature. Surprisingly, however, she executed two deeds on 26. 9.1968 transferring her properties situate at Arkonam in favour of respondents. She expired on 29th September, 1968. Although in the Will Respondent No. 1 alone was the beneficiary thereof, not only Respondent Nos. 2 and 3, but, as noticed herein before, their mother also filed an application for grant of probate in the Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Patent jurisdiction, by reason of the impugned judgment dated 26th October, 2004 reversed the said judgments holding that the evidence on record satisfies the requirements of Section 63 of the Indian Succession Act and that the trial court as also the learned Single Judge erred in discarding the Will on circumstances none of which was a suspicious one attending due execution of the Will. Appellant is, thus, before us. 6. Mr. T.N. Rao, learned Counsel appearing on behalf of the appellant submitted that the Division Bench of the High Court committed a serious error in ignoring a large number of suspicious circumstances surrounding purported execution of the Will as opined by the learned District Judge as also the High Court. It was urged that the Division Bench committed an error in so far as wrong legal tests were applied in opining that once the Will stands proved, the suspicious circumstances enumerated by the trial court and the Single Judge, take a back seat. It was submitted that in view of the findings of fact arrived at by the learned District Judge and the learned Single Judge, the Division Bench was obliged to consider each of the enumerated circumstances and in no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not approach the question with a suspicion that the Will is not a genuine one, the general guidelines laid down by this Court and the High Court in this behalf should be followed. The issue necessarily involves due appreciation of evidence. We may notice that in the Will Akkayamma described herself as the father's wife of Shri C.D. Jaya Singh. What is meant by that is not known. While describing herself as the father's wife of C.D. Jaya Singh, it was stipulated that she had been having that status for the last 40 years. Our attention has been drawn to the findings of the learned District Judge by the learned Counsel for Respondents that Akkayamma developed love and affection not only for Jai Singh, but also for his children through his first wife and particularly, the 3rd plaintiff who was his daughter. If that be the position, then why she had not bequeathed any property in her favour is difficult to understand. The learned District Judge enumerated nine circumstances which, according to him, were relevant for considering the proof of due execution and attestation of the Will in question, which are as under: 1. Akkayamma lived with Jai Singh, the father of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... occasion to meet Akkayamma at any point of time and they had expressed their ignorance about her. They even did not know whether Jai Singh was alive at the time of their deposition. According to them, on the date of execution of the Will Jai Singh had not expired, which was not a fact. All this, and rightly so, could not be ignored by the trial judge as also by the High Court. The scribe, P.W.1, even did not explain as to how he was prevailed upon to draft an important document like Will and what was his experience therefore. It had further been noticed that P.W.2 worked in the same Bank wherein the 1st plaintiff was employed. Plaintiff No. 2 was the son of P.W.1 and P.W.3 was also a relative of the plaintiffs. They were, thus, termed as interested witnesses by the learned District Judge. The learned Singe Judge on further re-appreciation of evidence added three more circumstances stating as the suspicious ones, which are as under: 1. Akkayamma came all the way from Arkonam to Chittoor and went to the house of a stranger P.W.2 while thinking of leaving a will only in favour of first plaintiff without any background or reason and the said conduct lends no explanation on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hall affix his mark to will, or it shall be signed by some other person in his presence and by his direction. b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will. (c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary. Proof of a Will shall strictly be in terms of the abovementioned provisions. It is, however, well settled that compliance of statutory requirements itself is not sufficient as would appear from the discussions hereinafter made. 12. The approach of the Division Benc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ances may be a shaky signature, a feeble mind and unfair and unjust disposal of property or the propounder himself taking a leader part in the making of the will under which he receives a substantial benefit. The presence of suspicious circumstances makes the initial onus heavier and the propounder must remove all legitimate suspicion before the document can be accepted as the last will of the testator. Yet again Section 68 of the Indian Evidence Act postulates the mode and manner of proof of execution of document which is required by law to be attested stating that the execution must be proved by at least one attesting witness, if an attesting witness is alive and subject to the process of the Court and capable of giving evidence. 15. This Court in Daulat Ram and Ors. v. Sodha and Ors. (2005)1SCC40 , stated the law thus: Will being a document has to be proved by primary evidence except where the court permits a document to be proved by leading secondary evidence. Since it is required to be attested, as provided in Section 68 of the Indian Evidence Act, 1872, it cannot be used as evidence until one of the attesting witnesses at least has been called for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts indicated above. However, having regard to the fact that the Will was registered one and the propounder had discharged the onus, it was held that in such circumstances, the onus shifts to the contestant opposing the Will to bring material on record meeting such prima facie case in which event the onus shifts back on the propounder to satisfy the court affirmatively that the testator did not know well the contents of the Will and in sound disposing capacity executed the same. Each case, however, must be determined in the fact situation obtaining therein. 18. The Division Bench of the High Court was, with respect, thus, entirely wrong in proceeding on the premise that compliance of legal formalities as regards proof of the Will would sub-serve the purpose and the suspicious circumstances surrounding the execution thereof is not of much si ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
