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TMI Blog1975 (8) TMI 151X X X X Extracts X X X X X X X X Extracts X X X X ..... i Subhash Marg, Darya Ganj, Delhi-6, in a portion of which he resided and carried on in the ground floor dry cleaning business. A part of the building was in the occupation of tenants. It is also a common case of the parties that the business, which was originally started by the testator and was carried on by him in the name and style of (D.G.) Kay, Dry cleaners and in which the two sons were working as employees, was eventually converted into a partnership by a deed of partnership of August 1, 1960 (Ex. R.I) entered into between the testator and the two sons. According to Ex. R I, the two sons had been working in the said business as employees but the testator was not finding it possible to look after the business as sole proprietor on account of his advanced age and constant heart trouble . The deed makes provision with regard to various matters, such as. shares of the parties and their entitlement to draw a monthly allowance. It further provides that in the event of the death of party of the first part his wife shall succeed to his interest and rights in this partnership as a full-fledged partner. It is also a common case of the parties that at the time of his death and for m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er no circumstances during the tenure of the supervision of the affairs and property will be (the son) misappropriate the property or money. In the case of withdrawal of money for any special reason, this can be done only after obtaining counter signature of Mrs. Victoria Trinidad , the wife of the younger son. The maintenance of the building is made the responsibility of the D.G. Kay Dry cleaners and Dyers . The will purports to have been executed by the testator in the presence of Shri Chet Ram Mittal, Advocate and Mr. J.D. Cruz of the Municipal Corporation of Delhi who according to the recital in the document signed the document in the presence of the testator and at the same time and in presence of each other . The will contains an endorsement that its copies had been made out for the widow, the grandson and his parents. The copy of the will is not marked either to the elder son, who had been disinherited, or to his wife. 3. By a petition under Section 276 of the Indian Succession Act, the younger son, respondent No. 1, sought from the District Judge Letters of Administration, with the will annexed, to the estate of the deceased. Annexure 'B' to the petition men ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the wife of the younger son, the respondent herein, but the witness, however, admitted that E the other attesting witness J.D. Cruz, Public Witness 2, was not present at that time nor were the signature of Public Witness 2 appended in his presence Public Witness 2, J.D. Cruz, identified his signature on the will as an attesting witness and stated that the testator had asked the witness to attest the will at the residence of the witness and when he appended his signature, the signature of the other attesting witness was already there. The witness said that the testator acknowledged that Ex. Pi was a will made by him and added that the testator was in good health and in full senses and possessed of a sound disposing mind. In cross examination the only suggestion made was that when the testator came to the residence of the witness, he was accompanied by his daughter-in law, the wife of the younger son, which was denied by the witness. The younger son stated as Public Witness 3 that the will Ex. Pi was handed over to him by his father about two months prior to his death; that he was not present at the come of execution of the will or attestation thereof; and that at the time of giv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as further claimed that during the said period the testator was unable to identify any one. He further deposed that the testator never mentioned to him that he had made a Will. In cross- examination he admitted that the propounder had protested that the witness had removed some debit vouchers but claimed that the file of the said vouchers had been given by the witness to the other brother, respondent herein. RW3, Amar Nath, who was a neighbour of the testator for 14 years, deposed that the testator had heart-trouble in 1957, had an accident in 1964, during 15-16 months preceding his death, had been suffering from severe heart-trouble, in May 1966, when the testator was in the hospital, he was conscious at times, was bedridden and could not move about and was never seen moving out of the house after March, 1966. In cross-examination he admitted that a times in spite of the illness the testator used to talk to the witness sensibly while at times he was not in his senses and added that his senselessness was due to weakness and ill-health RW4, V. K. Sakhuja, who claimed to have compared the disputed signature on Ex. Pi with the admitted signatures of the testator, deposed that as a res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s made to the mother after the death of the testator which, according to the witness, bore the signatures of the younger son. In further cross-examination, he admitted that similar payments were made to the widow after June and July, 1967 also. He, however, denied the suggestion that payments mentioned in Ex. RW6/1 and Ex. Public Witness 6/2 were made pursuant to the provisions made in the will for the maintenance of the widow. In cross- examination, he stated that the papers used to be taken to the testator for his signatures on the first floor where he was residing. 8. By his judgment under appeal the learned District Judge held. accepting the evidence of Public Witness 1. Shri Chet Ram Mittal, Advocate, J. D. Cruz Public Witness 2, that Ex. P 1 had been duly proved. The learned District Judge explained the discrepancy between the evidence of Public Witness 1 and Public Witness 2 on the one hand and the recital in the Will, Ex. P 1 on the other to the effect that the attesting witness had signed in the presence of the testator and of each other by an observation that possibly when the draft will was typed out the legator hoped that both the witnesses would be present and that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son on his executing a bond in the sum of Rs. 50,000.00 with one surety in the like amount undertaking to discharge his obligations as a guardian in a proper manner. Certain other directions were also made. 10. Aggrieved by the aforesaid judgments, the appellants have filed two separate appeals, F.A.O. 58/69 challenges the judgment of the District Judge in so far as the District Judge has appointed guardian of the property of the minor. F.A.O. 59/69 challenges the judgment of the District Judge granting letters of administration. 11. It appears that while the trial of the petition for the grant was more or less a tame affair, in the appeal before this Court, a successful attempt was made on behalf of the appellants to widen the scope of the controversy between the parties by four miscellaneous applications. By C.M.626 of 1971, the appellants sought permission to raise two additional grounds of appeal incorporating a challenge to the jurisdiction of the District Judge to entertain the petition and a plea that the petition was not maintainable by virtue of the allegation that the testator owned an immovable property in Goa of the value of more than Rs. 10,000.00 , which had not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion these properties in their application under section 276 of the Indian Succession Act? (O.P.As.) 13. On remand the learned District Judge recorded the evidence of the parties on the aforesaid two additional issues and submitted his report of March 1, 1973 recording his conclusions on the two additional issues. On the first question the learned District Judge returned a finding that, on the material placed on the record, it was proved that the testator owned immovable property in Goa of the value of more than Rs. 10,000.00 at the time of his death. On the second question, as to the legal effect of the aforesaid conclusion, it was held, negativing the contention of the respondents herein that the Indian Succession Act, 1925 did not then extend to Goa that on the annexation of Goa, the Succession Act was automatically extended to that territory and that no further extension was necessary, and that in the absence of any mention of the sad properly in the list annexed to the petition for the grant, the petition was defective and, Therefore, not maintainable. It was further held that the value of the proper in Goa being more than R.s. 10.000.00 , the District Judge had no jurisdic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court of Delhi shall have, in respect of the territories for the time being included in the Union Territory of Delhi, all such original appellate and other jurisdiction, as under the law in force immediately before the appointed day, is exercisable in respect of the said territories by the High Court of Punjab. (2) Notwithstanding anything contained in any law for the time being in force, the High Court of Delhi shall also have in respect of the said territories ordinary original civil jurisdiction in every suit the value of which exceeds (fifty thousand rupees) . 18. Shri S. C. Malik, learned counsel for the appellants, contends that under Section 264 of the Indian Succession Act, District Judge has jurisdiction to grant Letters of Administration within his district; that in terms of Section 2(bb) of the said Act, District Judge means ; the Judge of a principal Civil Court of original jurisdiction ; that under Section 266 of the said Act the District Judge has the like powers and authority in relation to the grant of probate and letters of administration and all matters connected therewith as are by law vested in him in relation to any suit or proceedings pending in this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the testamentary and intestate jurisdiction is invoked, so as to divest the District Judge of jurisdiction to deal with such matters, ignores the limited purpose for which sub-section (2) confers the ordinary original civil jurisdiction and impliedly ousts the corresponding jurisdiction of the District Judge. A bare reading of sub-section (2) of Section 5 leaves no manner of doubt that the ordinary original civil jurisdiction has relation to every suit . This obviously leaves jurisdiction other than that exercisable in a suit was such as testamentary and intestate jurisdiction, as indeed other jurisdiction, unaffected. The mere fact that Section 266 of the Indian Succession Act equates the power of the District Judge in relation to proceedings for the grant of probate and Letters of Administration and all matters connected therewith with the powers that the District Judge would have in relation to any suit or proceedings pending in his Court does not obliterate the distinction between the ordinary civil jurisdiction of the District Judge and the testamentary and intestate jurisdiction of that Court under the Indian Succession Act. Section 266 merely indicates the ambit of the po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdinary original civil jurisdiction. Section 5, however, left unaffected the testamentary and intestate jurisdiction which by virtue of Section 5(1) of the Delhi High Court Act, 1966 was conferred on the Delhi High Court. Clause 24 of the said Letters Patent while conferring on the Lahore High Court the testamentary and intestate jurisdiction, clearly saves the provision of any law which has been made by the competent legislative authority for India by which power is given to any other Court to grant such probates and letters of administration . This clearly saves the concurrent powers of the District Judge in relation to the testamentary and intestate jurisdiction. The argument, Therefore, that Section 5(2) ousts the testamentary and intestate jurisdiction of the District Judge ignores the distinction between the original civil jurisdiction of a Court and the ordinary original civil jurisdiction as also between the ordinary civil jurisdiction and the testamentary and intestate jurisdiction. 22. The contention, in so far as it seeks reinforcement from the definition of the expression 'District Judge' by Section 2(bb) of the Indian Succession Act, is based on a misconstr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry original civil jurisdiction in Section 3 clause (17) of the General Clauses Act, all that is excluded is the High Court acting under cls. 11 to 18, Letters Patent, and that the High Court exercising any other original jurisdiction would fall within the definition of District Judge . In the meanwhile, however, the Indian Succession Act had been amended by Act 18 of 1929 by the addition of clause (bb) of Section 2. and that is why the Bench to which the case was referred felt relieved of the duty to consider the matter and held that in view of the amendment, the petition for grant was maintainable in the High Court. As would be seen from the new definition that, for the avoidance of doubt, the exclusory part of the definition in the General Clauses Act was dropped so as to widen the scope of the expression 'District Judge' to include the High Court in relation to its testamentary and intestate jurisdiction. It is, however, not possible to read in the wider definition any exclusion of the 'District Judge' as such from the ambit of the said definition or to hold that merely because ordinary original civil jurisdiction has been conferred on this Court in relation to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mentary and intestate jurisdiction. The case of Bakshi Lochan Singh (supra) was confined to suits and left the other jurisdiction untouched. The case of Manik Lal Shah v. Hira Lal Shaw, AIR 1950 Cal 377 , on the contrary, .supports the contention of the respondents. It was held in that case that the High Court on its original side, had concurrent jurisdiction with the District Judge in all testamentary matters, even though the Calcutta High Court also had ordinary original civil jurisdiction . This contention of the appellants must, Therefore, be rejected. 24. The next preliminary objection relates to the jurisdiction of the District Judge and the maintainability of the petition on the ground that a part of the property belonging to the testator, of the value of more than Rs. 10,000.00 was situated within the territory of Goa. 25. On this aspect of the matter, the contention of the learned counsel for the appellants is that having regard to the scheme of the Indian Succession Act, notably the provisions of Sections 211, 232 and 273 on the grant the administration of the entire property vests in the executor and that the grant must Therefore, relate to the entire property. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of the appeal, as a result of which two additional issues were framed and were remitted to the District Judge for trial and report. On the basis of the evidence produced before it, the Court has returned the finding that the testator owned immovable property situated within the territory of Goa of the value of more than Rs. 10,000.00 at the time of his death. Learned District Judge has further held that on the annexation of the territory of Goa, the Indian succession Act automatically stood extended to that territory; that the local law with regard to inventario proceedings under the Goa Code was not analogous to the Indian Succession Act and did not, Therefore, exclude the operation of the Indian Succession Act: that by virtue of the situs of the said property outside his jurisdiction the District Judge had no jurisdiction to make the grant: and that on account of the omission to mention the aforesaid property in the schedule to the petition, the petition was defective and, Therefore, not maintainable. 28. In the proceedings before the District Judge for the trial of the two additional issues, considerable oral and documentary evidence was produced on behalf of the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the (State) does not exceed ten thousand rupees, shall, unless otherwise directed by the grant, have like effect throughout the other (States). According to the marginal note to the Section and even otherwise on a reference to its provision it is clear that it was intended to deal with the conclusiveness of probate or letters of administration and the extent to which they would have effect. It clearly provides that the probate or letters of administration would have effect over all the property and estate moveable or Immovable of the deceased, throughout the (State) in which the same is or are granted . The proviso to the Section, however, extends the effect of the grant over property and estate situated beyond the limits of the State if (a) the grant is made by a High Court, or (b) where the grant is made by a District Judge the District Judge certifies that the value of the property and .estate affected beyond the limits of the State did not exceed Rs. 10,000/-. In the first instance, this section does not deal with jurisdiction at all. The only effect of the Section is that where the grant is made in accordance with the main Section, its effect is confined to the .estat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if he was appointed, he was legally incapable of acting or is otherwise not available, an universal or a residuary legatee may be admitted to prove the will, and letters of administration with the will annexed may be granted to him of the whole estate, or of so much thereof as may be unadministered . Section 273 has already been noticed above. Section 276 provides or a petition for probate and deals with the form in which the petition should be made. Clause (d) of sub-section (1) of this Section provided that the petition should, inter alia, mention the amount of assets which are likely to come to the petitioner's hand . Sub-section (3) of this Section is in the following terms: 276.(3) Where the application is to the District Judge and any portion of the assets likely to come to the petitioner's hand is situate in another (State), the petitioner shall further state the amount of such assets in each (State) and the District Judges within whose jurisdiction such assets are situate. It is not disputed that the petitioner in the present case made no mention whatever of the Goa property in the annexure to the petition. In fact the respondents throughout disputed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reasonable interpretation to mean as the territory at the time when the statute uses the expression 'India' and not as including a territory that may be added to the Union by annexation or otherwise from time to time. Such a flexible concept could have been possible in the days of the Empires when there was no rigidity about the frontiers of the various sovereign States because- of frequent annexation. In the present day world, however, annexation of territories belong to another sovereign country is a rare phenomenon and the annexations that we hear of are only those that are the result of an adjustment of boundaries for historical reasons as in the case of Goa where a territory, which was once part of India, was merely restored to it. Such a restoration may be done by an unilateral act of a sovereign government or by bilateral act of the concerned States. That statutes do not get automatically extended to new territories that may be added to India is also legislatively recognised in the provisions of sections 5 and 6 of the Goa, Daman and Diu (Administration )Act, 1962 and similar provisions in quite a few other statutes which deal with the extension of laws to the terri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t from Section 211, as indeed, to some extent, from Section 232 of the Indian Succession Act that is why the executor or the administrator becomes the repository of all power in relation to entire estate of a deceased person and the learned counsel for the appellant is right, Therefore, when he contends that ordinarily a petition for a grant must be made in respect of the entire estate. There are, however, well recognised exceptions to the rule . One such exception is set out in Section 232 itself that is where part of the property has already been administered. Some of the exceptions are set out in Sections 237 onwards which deal with limited grants. Where, however, part of the estate is situated outside the jurisdiction of the Court, which is asked to make the grant in relation to the estate within jurisdiction, it would also constitute an exception because unless the conditions of Section 273 are satisfied such a Court would not be able to make an effective grant in so far as property beyond jurisdiction, which is in excess of Rs. 10,000/-, is concerned unless such Court is' a High Court. It does not, however, follow that merely because the grant sought or made is confined ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of letters of administration, with the will annexed, relating to one item need not contain an inventory of the entire property even if the entire property was situated within jurisdiction. This proposition was no doubt rather widely worded and so, Therefore, rightly, with respect, dissented in the case of Sardar Singh and another v. Teja Singh and others, Air 1946 Lahore 277(8) where it was held that except in case covered by Section 232(c), an application must cover the entire estate of the deceased. In this case, however, the entire estate was situated within the jurisdiction of the District Judge and the observation must, Therefore, be seen in that context. No party of the property was situated outside the jurisdiction. In the case of Lal Singh v. Mt. Kishen Devi and others, Air 1929 Lahore 72(7), it was, however, held that it was not open to the court to refuse to grant probate merely on the ground that a part of the estate of the deceased is situated outside its jurisdiction or outside the province if some part of the estate is situated or the deceased resided at the time of his death within its jurisdiction. It was further held that Section 273 applied only to property sit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to the merits of the grant. 39. The due execution, attestation and the genuineness of the Will, Ex. P 1 was sought to be proved on behalf of the respondents at the trial by the evidence of Public Witness 1, Shri Chet Ram Mittal, Advocate, Pw 2, J. D. Cruz; Public Witness 3, the propounder and Public Witness 4, the handwriting expert. Public Witness 1 and Public Witness 2 the attesting witnesses to the document categorically stated that they had known the testator for many years, Public Witness 1 being a prominent advocate of the locality and a near neighbour of the testator for many years and Public Witness 2 being a life long friend of the testator. Public Witness 1 further stated that the testator came with the Will to his office and signed the document in his presence which the witness attested in the presence of his testator. Public Witness 1 was also categorical in his statement that the testator had read the document. admitted it to be his Will and to have understood it and appeared to the witness to be in a sound disposing mind and signed knowing fully well what he was doing. Public Witness 2 similarly stated that the testator admitted Ex. Pi to be his Will, had underst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en the common case of the parties, both at the trial and in this Court, that the testator died at the ripe age of 83 of an heart attack, had been afflicted for quite sometime before that by a heart ailment and also had an accident which considerably affected his mobility although he continued to take some interest in the conduct of his affairs. It was, however, not seriously disputed and can even otherwise be imagined, that a person in that situation would not be absolutely active, mentally or physically, and completely alert. At the trial the main thrust of the evidence produced on behalf of the appellants was to this aspect of the mental and physical condition of the testator and it is on that basis apart from certain circumstances to which I will presently refer, that a finding was sought that the testator could not have a sound disposing mind or to have been physically capable of executing a document much less understanding the implication of the bequests that he purported to make. The learned District Judge, however, came to the conclusion, and rightly in my view, that even though in a very advanced age and suffering as above, the testator retained a sound disposing mind and w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the will which may cast suspicion on its genuineness placing a heavy burden on the propounder, particularly if he had taken a leading part in the execution of it and was in some way the main beneficiary under it. It was, Therefore, urged that the learned District Judge had failed to consider these circumstances and that if the oral evidence with regard to the execution of the will' was to be considered in the context of those circumstances, an obvious inference would be that such a will was not and could not have been executed by the testator and, if in fact executed, could not have been the result of an application of a sound disposing mind by him to its provisions or an understanding of their implications. 42. Before I deal with the various circumstances which were alleged to have cast suspicion on the execution of the document and which may militate against its genuineness, it may be useful to examine the legal principles to be applied in determining the genuineness of a will and its due execution and attestation. 43. In the case of (Srimati) Sarat Kumari Bibi v. Rai Sakhi Chand Bahadur and other, Air 1929 Privy Council 45, (15), it was pointed out by U.c Judicial Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocument, was in a sound disposing mind at that time and understood the nature and effect of the disposition and it was attested as required by law yet there was an important feature which distinguishes a will from other documents in that unlike other documents, the will spoke from the death of the testator which introduces an element of solemnity in the decision of the question if the document was the testament of the testator who was no more. Nevertheless in dealing with the proof of a Will the Court will start on the same enquiry as in the case of proof of other documents and the propounder will be called upon to show by satisfactory evidence that the Will was Signed by the testator, that the testator at he relevant time was in a sound disposing state of mind, that he understood the nature and implication of the dispositions and put his signatures of his own free will. It was further pointed out that ordinarily when the evidence adduced in support of the will is dis- interested, satisfactory and sufficient to prove the sound and disposing state of testator's mind and his signature as required by law, Courts would be justified in making a finding in favor of the propounder. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Lord Du Parcq in Harmes v. Hinkson, Air 1946 Privy Council 156(17) : Where a will is charged with suspicion, the rules enjoin a reasonable skepticism , not an obdurate persistence in disbelief. They do not demand from the Judge, even in circumstances of grave suspicion a resolute and impenetrable incredulity. He is never required to close his mind to the truth. The learned Judge suffixed these observations with an equally appropriate observation that: It would sound platitudinous to say so, but it is nevertheless true that in discovering truth even in such cases the Judicial mind must always be open though vigilant , cautious and circumspect. 45. In Rani Purnima Debi and another v. Kumar Khagendra Narayan Deb and another, [1962] 3 SCR 195. (18) Wanchoo J. who spoke for the Court, reiterated the principles laid down by that Court earlier in H. Venkatachala lyengar v. B. N. Thimmajamma, AIR 1959 SC 443 , and added a note of caution thus : But even where there were suspicious circumstances and the propounder succeeded In removing them, the Court would grant probate, though the Will might be unnatural and might cut off wholly or in part near relations, 46. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... every case, no will could probably be proved at all. The learned Judge interpreted the aforesaid observations thus : This issue cannot be determined by considering the evidence adduced in the Court separately from the surrounding 128 circumstance which have also been brought out in the evidence or which appear from the nature and contents of the document itself. We do not understand the observations of Lord Watson to mean that the testimony as to the execution of the document has to be considered independently of the attendant circumstances. All that he says is that where there is a large and consistent body of testimony tending to show the execution of a will by the testator, that evidence should not be lightly set aside on the theory of improbability. 48. In the case of Pushpavati and others v. Chandraja Kadamba and others, AIR 1972 SC 2492 , Palekar J., who spoke for the Court, while reiterating the principles laid down by that Court in AIR 1964 SC 529 observed that where the signature of the testator was challenged as a forged signature and the Will did not come from the custody of a public authority or a family solicitor the fact that the disposition made in the Will w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... widow of inheritance, except maintenance, without any Explanation to justify the former; (D) inconsistency between the recital in the will regarding partnership on the one hand and the provisions of the partnership deed on the other; (E) absence of any reference to the Goa property in the will even though it was found by the District Judge to exist and be of considerable value; (F) the unusual nature of the provision in the will giving a virtual power of veto to the wife of the younger son whose son was a principal beneficiary indicating the hidden hand of the lady behind the document; (G) absence of any mention in the will of the heart ailment of the testator: (H) the signature of the testator at the ripe age of 82/83 could not be as firm as would ex-facie appear on the will, and (I) total absence of any mention by the testator, during his life time, either of his intention to make the will or of the factum that he had made one. 52. Before considering the rival contentions with regard to the aforesaid facts and circumstances, it may be appropriate to mention a rather unusual feature of this case. As has been pointed out above, the trial of the petition was mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons urged at the hearing of the appeal and took notice of the Explanations offered on behalf of the respondents to what were considered by the appellants to be the suspicious circumstances. 53. The first circumstance said to cast a doubt on the genuineness of the will is the admitted inconsistency between the recital in the will on the one hand and the evidence of the attesting witnesses regarding the manner and timing of attestation of it, on the other. The will purports to have been executed by the testator in the presence of Shri Chet Ram Mittal, advocate, Public Witness 1 and Mr. J. D. Cruz, of the Municipal Corporation of Delhi, Public Witness 2, and according to the recital in the document, both the aforesaid attesting witnesses signed it at the same time and in presence of each other . According to Public Witness I, the testator executed the will in his presence and the witness attested it in the presence of the testator. Mr. J. D. Cruz, Public Witness 2 supports this when he states that the testator brought the will to him duly executed by him and bearing the attestation of Public Witness I and that Public Witness 2 attested it on the testator admitting his signature ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... since before the death of the testator have been partners with the testator in the dry cleaning business and had been working in the said business and were, Therefore, able to look after themselves. It is also a common case of the parties that the younger son, the propounder and the father of the principal beneficiary under the Will has been living for a long time before the death of the testator with the testator while the elder son had for many years been living separately. This would obviously indicate that to an extent the testator was comparatively more inclined towards his younger son. It is significant that nevertheless no additional benefit has been given to the younger son as such because the principal beneficiary is the grandson, though the son of the younger son. It is not difficult to explain this circumstance because it was not disputed that the elder son has no issue and there is no scope for any. It is this grandson alone who would, Therefore, be capable of continuing the family life after the two brothers. If a part of the property were bequeathed to either of the two sons or to the widow of the testator, it may perhaps have eventually gone to the grandson but would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts. This circumstance would, Therefore, appear to me to be consistent with the circumstances of the family and could not be said to be either unnatural or incapable of a rational Explanation so as to cast any doubt on the genuineness of the Will. This circumstance must, Therefore, be ignored. 56. The next circumstance is composed of the inconsistency between the recital in the Will with regard to the partnership business on the one hand and the provisions of the partnership deed on the other. As has been pointed out above. Ex. R 1, the deed of partnership entered into between the testator and his two sons on August I, 1960, admits the two sons to the benefit of partnership to the extent of a share equivalent to 5 annas in the rupee each. The testator retained 6 annas in the rupee for himself. The deed further provides that the two sons would be entitled to draw up to Rs. 300 p.m. each which would be debited to their personal accounts and adjusted against their share of profit. It recites that the sons had been working with the father in the business as employees but 'on account of advanced age and constant heart trouble, the testator had been finding it difficult to look aft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e business may create unnecessary difficulties. This inconsistency is, Therefore, understandable and would not, in my view, in any manner affect the validity of the Will. 58. The inconsistency with regard to the rights of the sons in the partnership business, however, appears to be more serious. The learned District Judge; however, pointed out in his judgment that the interest of the sons in the partnership business in terms of deed of partnership would naturally remain unaffected by any disposition made by the deceased apparently implying that even if the Will purported to bequeath the entire business to the grandson, so far as the business is concerned, it would naturally be valid only to the extent of the testator's interest in it and that could not be extended to the entire business. The contention that is, however, urged on behalf of the appellants is not as to the legal effect of the disposition on the interest of the sons in the partnership but as to the inconsistency between the two documents and its effect on the genuineness of the Will, According to Ex. R 1, the two sons of the testator had been working with him in his business as employees and since effect admit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i fully aware of the implications of what he was doing ? This question must, however, be answered in the context of the ripe age at which the testator is said to have executed the Will and the state of his mental and physical health at that time. He had admittedly suffered an heart attack and had been involved in a serious accident which obviously must have affected his mental faculties to a very large extent. It may be, Therefore, that even while broadly understanding the implications of what he was doing and possessed of sound disposing mind, it escaped his notice that the Will as drawn may imply as if he was bequeathing the entire dry cleaning business to the grandson to the exclusion of the two sons. If either his mental faculties had been affected to such an extent or his free agency was impaired because of some events so that he could not co-relate the Will to Ex. R 1, could it be said that the testator was possessed of a sound disposing mind when he executed the Will or was in possession of all his faculties and was not under anybody's undue influence. 59. Having regard to all the circumstances, it appears to me that this inconsistency, though quite serious, could not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rring to the dry cleaning business, the testator was all the time thinking of disposing of all his own interest in the business. I am, Therefore, of the view that this circumstance, though material, would not be sufficient to cast any suspicion on the genuineness of the document or on the mental capacity of the testator which could not be reasonably explained by the surrounding circumstances. 60. The next circumstance turns on the absence of any specific reference to the Goa property in the Will even though on remand, the District Judge has found that the testator owned Immovable property of the value of more than Rs. 10,000 at the time of his death. This circumstance is quite innocuous because although there is no specific reference to the property, the other Immovable properties are generally referred to in the will when the will recounts that the testator has bank accounts and other moveable and Immovable property . Such a reference immediately after mentioning the Darya Ganj property would appear to indicate that some other Immovable property was in the contemplation of the testator. In any event, the Goa property was admittedly a minor property as compared to the value of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is lady which made it possible turn her to exercise considerable influence on the testator, and it was contended that the aforesaid provisions in the will was a clear indication that the lady was not satisfied with a mere bequest in favor of her son but also wanted an upper hand over her husband in the management of the business and the other estate forming subject matter of the bequest. On behalf of the respondents, the allegation of any unusual relationship was denied and it was pointed out that the testator, by and large, was more attached to his younger son and the grandson, who were also living with him and Therefore, to some extent naturally exercised influence over the way he conducted his affairs. It was further pointed out that apparently the testator did not have much faith in the younger son and had, Therefore, given a virtual power of veto to his wife who was considered a clever and prudent woman to exercise the necessary restraint on him so as to prevent an avoidable diversion of the funds. While the aforesaid provision does indicate that the wife of the younger son exercised considerable influence on the testator and had won over, for reasons which are not necessary t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the testator to mention anything about his heart ailment in the will. It was not the will of a young man who had a long life before him so that one may think why such a man should make a will in an early age. The testator admittedly was over 82 years of age when he executed the will. A reference in the will to the ailment was hardly necessary to give reinforcement to its naturalness or to justify its genuineness and the absence of any such reference in the will, to my mind, has no impact either on its genuineness or on the mental capacity of the testator at the relevant time. This circumstance must, likewise be ignored. 63. It is then contended that the signature of the testator at the ripe age of 82 or 83 when he made the will would not be as firm as would ex facie appear on the face of the will and this contention must be rejected on the short ground that the comparison of the signature on the will and the contemporaneous documents admittedly signed by the testator which have been placed on the record and were marked as Ex. P4 to Ex. P6, Ex. P8, Ex. P9, Ex. P10, Ex. Pi I, Ex. P13 to Ex. P19, Ex. P20 and Ex., P26 clearly shows that even though in the last few years of his lif ..... X X X X Extracts X X X X X X X X Extracts X X X X
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