9911796707
TMI Blog1981 (11) TMI 198X X X X Extracts X X X X X X X X Extracts X X X X ..... 1) executed on November 8, 1952. Ranendra left behind him three brothers-Jitendra, aforesaid, Gopendra and plaintiff No. 1. Manindra. Manindra and Jogendra (plaintiff No. 2) had been appointed executors of the will. By the will Ranendra bequeathed one-half of his properties to his nephew, Bhabesh, who was the son of his younger brother, Phanindra, who had pre-deceased him, and the remaining half to his younger brother Manindra for life, and after his (Manindra's) death to Bhabesh absolutely. During the pendency of the suit, Jitendra died and his heirs who were substituted, contested the suit. 3. The contentions of the defendants were that Ranendra on November 8, 1952, was not in a physical or mental condition to execute a will; he was in a semiconscious state of mind and had not the testamentary capacity to execute the alleged will. They alleged that the will was brought into existence at the instance, and under the influence of, the propounder Manindra; that the signatures of Ranendra on the will were not genuine and that must have been obtained on blank papers by Manindra who was looking after the properties of Ranendra as well as all litigations in which Ranendra was inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to show that the testator's mind was not free. In such a case the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes a prominent part in the execution of the will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the court would grant probate, even if the will might be unnatural and might cut off wholly or in part near relations. AIR1964SC529 8. Needless to say that any and every circumstance is not a `suspicious' circumstance. A circumstance would be `suspicious' when it is not normal or is not normally expected in a normal situation or is not expected of a normal person. Learned Counsel relied on the decision of this Court in the case of Rani Purnima Devi and Anr. v. Kumar Khagendra Narayan Dev and Anr. [1962]3SCR195 . In this case the will in question gave the entire property by the testator to a distant relation of his to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erential process cannot be denied. The other case cited is Madholal Sindhu of Bombay v. Official Assignee of Bombay and Ors. [1950] F.C. 21 in which the Federal Court held: It is true that a Judge of first instance can never be treated as infallible in determining on which side the truth lies and like other tribunals he may go wrong on question of fact, but on such matters if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at, the appeal Court should not lightly interfere with the judgment. 10. Keeping the above principles of law in view let us now turn to the facts of the present case. Learned Counsel for the appellant has enumerated the following 11 `suspicious' circumstances (i) Attempt on the part of the propounder to conceal the real nature of testator's illness. (ii) The propounder failed to tell the date when the testator went to his lawyer (P.W. 3s') house or when the draft was given by the lawyer to the testator. (iii) The draft has not been produced and no explanation has come forth as to what happened to the draft. (iv) No date has been mentioned when the testator sent for his lawyer trough Banqs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that there was no necessity of knowing what alterations had been made in the draft. With regard to the circumstance that the scribe and the attesting witnesses were either employees, or friend or relation of the propounders' group, the answer is simple. No body would normally invite a stranger or a foe to be a scribe or a witness of a document executed by or in his favour; normally a known and reliable person, a friend or a relation is called for the purpose. The same argument applies to P.W.3 who is said to be a partisan witness for the reason that he was the testator's advocate. But there is nothing to show that he was not telling the truth in his deposition. With regard to the circumstances Nos. (viii) and (x) that Narendra was not telling the whole truth, when he said that he had come to know of the will three or four days after its execution the complaint may be correct, although it was not impossible that he had not been taken into confidence in the matter of the will in his favour, although P.W. 5 had been. Another possibility is that Manindra deposed so in order to avoid cross-examination. In any case this does not appear to be a suspicious circumstance surrounding ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
