1. This appeal is directed against the order dated 25th June, 2015 passed by the District Judge-II, Giridih in Probate Case No.4 of 2003, whereby learned District Judge-II, Giridih has dismissed the application filed by the appellant herein for grant of probate of WILL dated 10.02.2003.
2. The appellant was the applicant before the Court below, who prayed for grant of probate of an unregistered WILL dated 10.02.2003 executed by his grandmother Ramsingari Devi, widow of late Shivaji Singh, resident of Giridih. The said WILL was executed on 10.02.2003 by Ramsingari Devi, by virtue of which she bequeathed the property, which she had purchased vide sale deed bearing No.186 dated 07.01.1955 and 412 dated 20.01.1954, in favour of this appellant. It is the case of the applicant that the deceased had four daughters, who are married and are living with their respective in-laws. This appellant chose to live with her grandmother Ramsingari Devi. Three of the daughters of Ramsingari Devi, namely, Urmila Devi, Uma Devi and Tara Devi prevailed upon Ramsingari Devi and assured her that they will look after Ramsingari Devi, and on such assurance, got a WILL executed on 15.02.2000. The intention of these ladies changed after execution of the WILL and they left Ramsingari Devi in a pitiable condition, thus, Ramsingari Devi revoked the WILL on 15.07.2000 and since this appellant was residing with her and was looking after Ramsingari Devi, she executed a WILL on 10.02.2003 with respect to the property mentioned in the schedule. On 16.02.2003, Ramsingari Devi expired and the appellant being the sole executor of the unregistered WILL prayed for grant of probate.
3. In the probate proceeding, Court issued notice. Opposite Party No.1 Kalawati Devi filed her show cause and supported the case of the applicant-appellant. The other daughters, i.e., opposite parties Nos.2, 3 and 4 filed their written statement and opposed the probate proceeding, contending that the WILL dated 10.02.2003 is a forged and fabricated document, and Ramsingari Devi never executed the same. It is their case that on the date of execution of the unregistered WILL, i.e., 10.02.2003, deceased was seriously ill and in fact she was not in her senses. Ramsingari Devi was hospitalized in Navjeevan Nursing Home, Giridih from 03.02.2003 till 07.02.2003 and, ultimately, expired on 16.02.2003, thus, these circumstances clearly suggest that she was not in a position to execute the WILL. They stated that a partition suit was filed against the mother of the appellant being Partition Suit No.31 of 2003, in which preliminary decree, carving out the share, has already been passed on 03.06.2008 by Sub Judge IV, Giridih.
4. On the basis of the pleadings, six issues were framed by the Trial Court, which are as follows: -
I. Is the present petition for Probate maintainable?
II. Is the Will dt. 10/2/2003 executed by Ramsingari Devi?
III. Was Ramsingari Devi in sound health of body and mind at the time of alleged execution of Will?
IV. Was the Will dt. 10/2/2003 executed by free Will of Ramsingari Devi?
V. Is the petitioner/applicant entitled to Probate of Will dt. 10/2/2003?
VI. To what relief or reliefs if any petitioner/applicant entitled too?
5. Five witnesses were examined on behalf of the applicant, namely, A.W.1 – Dilchand Mahtha, A.W.2 – Umesh Pandey, A.W.3 – Pramod Kumar Singh @ Pintu Singh, A.W.4 – Satyadeo Singh, and A.W.5 – Mahavir Singh.
6. Evidence on affidavit of one witness, Sudhir Kumar Paswan was filed. He was one of the attesting witness and proved the contents of the WILL dated 10.02.2003, but, he was not cross examined by the opposite parties Nos.2 to 4 due to the protest of the lawyers. The unregistered WILL was exhibited as Exhibit 1. Death certificate of Ramsingari Devi is Exhibit 2 and both the sale deed through Ramsingari Devi purchased the property were exhibited as Exhibits 3 and 4.
7. On behalf of the opposite parties, six witnesses were examined and certified copy of the judgment dated 03.06.2008 passed in Partition Suit No.31 of 2003 and registered Power of Attorney bearing No.1052 dated 06.07.2010 were also produced as Exhibits which were marked Exhibit ‘B’ and ‘C’.
8. Learned Trial Court, after evaluating the evidence of the parties, dismissed the probate application doubting the genuineness and execution of the WILL. Aggrieved by the said judgment, the appellant, who was the petitioner before the Court below, has approached this Court.
9. Challenging the aforesaid judgment, counsel for the appellant, submits that though the WILL is unregistered, genuineness of the same cannot be doubted. As per law, the WILL was attested by two attesting witnesses and both of them deposed before the Court. He submits that witness, Sudhir Kumar Paswan, who is an attesting witness to the WILL was not even cross examined, thus, evidence-in-chief remained intact and un-rebutted. He stated that since he was attesting witness to the WILL and he has proved the WILL, learned District Judge should have accepted the statement and passed an order of probate in favour of the appellant. As per him, there are no suspicious circumstances in execution of the WILL, thus, the impugned order needs to be set aside and the WILL dated 10.02.2003 be probated.
10. Mr. Ajit Kumar, learned counsel appearing on behalf of the respondents submitted that the execution of the entire WILL is doubtful as the deceased was seriously ill when the alleged WILL was said to have been executed. She died soon after execution of the WILL, after returning from the hospital as her condition was serious. As per him, evidence adduced on behalf of the applicant, itself, would suggest that the WILL is forged as attesting witness, himself, has admitted the same. He submits that there are several circumstances, which draws only one conclusion that the WILL is forged and created document, thus, the Court below has correctly dismissed the probate application. He submits that this appeal also needs to be dismissed.
11. I have heard the counsel for the parties and have gone through the Lower Court Records and the impugned judgment. The WILL is unregistered, dated 10.02.2003, which is sought to be probated by the applicant-appellant. The said WILL was, allegedly, executed by Ramsingari Devi, grandmother of this appellant.
12. Section 63 of the Indian Succession Act provides for execution of unprivileged WILL. It is necessary to quote the provision of law. Section 63 of the Indian Succession Act reads as under:-
63. Execution of unprivileged Wills – Every testator, not being a soldier employed in an expedition or engaged in actual warfare or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules:-
(a) The testator shall sign or shall affix his mark to the 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 been some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment 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.
13. As per the aforesaid provision of law, the WILL shall be attested by two or more witnesses. Condition is that each of the witness should see that the testator had signed or affixed his mark on WILL. In this case, it is the contention of the appellant that the testator Ramsingari Devi had put her thumb impression on the Will, which was duly attested by the two witnesses.
14. Section 68 of the Evidence Act lays down the law as to how a WILL (a document required to be attested by law) has to be proved. It is necessary to quote Section 68 of the Evidence Act, which reads as follows: -
68. Proof of execution of document required by law to be attested. – If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence;
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.
15. From the aforesaid provisions of both the laws, it is clear that Section 63 of the Indian Succession Act requires that 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 been some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment 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; and Section 68 of the Indian Evidence Act requires that If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence.
16. The Hon’ble Supreme Court in the judgment in the case of Murthy & Others versus C. Saradambal & Ors., reported in (2022) 3 SCC 209 considering the judgment in the case of H. Venkatachala Iyengar versus B.N. Thimmajamma [AIR 1959 SC 443], has held that the following three aspects must be proved by propounder:-
“(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 the testator’s mind and his signature as required 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 propounded can be taken to be discharged on proof of the essential facts indicated therein.”
17. The Hon’ble Supreme Court in the aforesaid judgment of Murthy & Others (supra) also considered the judgment in the case of Jaswant Kaur versus Amrit Kaur & Others [(1977) 1 SCC 369] and held as under:-
“34. In Jaswant Kaur v. Amrit Kaur and others [(1977) 1 SCC 369], this Court pointed out that when a will is allegedly shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant. What generally is an adversarial proceeding, becomes in such cases, a matter of the Court’s conscience and then, the true question which arises for consideration is, whether, the evidence let in by the propounder of the will is such as would satisfy the conscience of the Court that the will was duly executed by the testator. It is impossible to reach such a satisfaction unless the party which sets up the will offers cogent and convincing explanation with regard to any suspicious circumstance surrounding the making of the will.”
18. The Hon’ble Supreme Court, in the case of H. Venkatachala Iyengar versus B.N. Thimmajamma [AIR 1959 SC 443], has discussed the nature of proof, which is required to prove a WILL. Paragraph 18 of the said judgment reads as follows:-
“18. … … … The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68, Evidence Act are relevant for this purpose. Under Section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Sections 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, Sections 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression “a person of sound mind” in the context. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the will? Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters.”
19. What would be the circumstances suspicious has been dealt with by the Hon’ble Supreme Court in the case of Bharpur Singh and others versus Shamsher Singh [2009 (3) SCC 687] wherein the Hon’ble Supreme Court has narrated a few suspicious circumstance which are illustrative in nature but not exhaustive. Paragraph 23 of the aforesaid judgment in the case of Bharpur Singh (supra) reads as under: -
“23. 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.
(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.”
20. It has also been held that even a registered WILL cannot be beyond suspicion if the circumstances are such. In the case in hand WILL is unregistered.
21. Further, in the case of Naranjan Umeshchandra Joshi versus Mrudula Jyoti Rao [(2006) 13 SCC 433] it was held that the Court must satisfy its conscience with regard to due execution of the WILL by the testator. Even if the signature is proved, then also the Court should probe further as to whether the WILL is beyond suspicion or not. In paragraph 37 of the aforesaid judgment, the Hon’ble Supreme Court has held as under: -
“37. We may, however, hasten to add that there exists a distinction where suspicions are well founded and the cases where there are only suspicions alone. Existence of suspicious circumstances alone may not be sufficient. The court may not start with a suspicion and it should not close its mind to find the truth. A resolute and impenetrable incredulity is not demanded from the Judge even if there exist circumstances of grave suspicion.”
22. In Leela Rajagopal and others versus Kamala Menon Cocharan and others [(2014) 15 SCC 570], the Hon’ble Supreme Court has held as under:-
“13. A will may have certain features and may have been executed in certain circumstances which may appear to be somewhat unnatural. Such unusual features appearing in a will or the unnatural circumstances surrounding its execution will definitely justify a close scrutiny before the same can be accepted. It is the overall assessment of the court on the basis of such scrutiny; the cumulative effect of the unusual features and circumstances which would weigh with the court in the determination required to be made by it. The judicial verdict, in the last resort, will be on the basis of a consideration of all the unusual features and suspicious circumstances put together and not on the impact of any single feature that may be found in a will or a singular circumstance that may appear from the process leading to its execution or registration. This, is the essence of the repeated pronouncements made by this Court on the subject including the decisions referred to and relied upon before us.”
23. Considering the aforesaid legal position, now it has to be seen whether there exists any suspicious circumstances and whether the WILL is genuine or manufactured document.
24. The applicant-appellant has examined five witnesses and the WILL was also exhibited. The WILL was executed on 10.02.2003 and the testator died on 16.02.2003.
25. P.W.1 is Dilchand Mahtha, who stated that he knew Ramsingari Devi as he was her tenant from 1997 to 2005. This appellant was looking after her as such the testator, pleased with the behaviour of this appellant, bequeathed her property in favour of the appellant. He also stated that this appellant used to look after her. In cross-examination, he admitted that he does not know how many heirs the testator Ramsingari Devi has left behind. He also admits that he does not know as to when she died, but, admits that she was very ill.
A very important witness in this case is P.W.2 Umesh Pandey. He says that he was a tenant in the house of the testator from 1996 to 2008. In paragraph 4 he stated that the WILL was executed on 20.02.2003 (This statement is not correct as in fact, the WILL was executed on 10.02.2003). He stated that he is attesting witness to the WILL and he and other attesting witness, under instructions of Ramsingari Devi, had signed on each and every page of the WILL. This witness was cross-examined and his crossexamination, in fact, has demolished the entire case of the appellant. In crossexamination, in paragraph 1, he admitted that he has not put his signature in the WILL executed by Ramsingari Devi. In paragraph 2 of cross examination, he states that the appellant brought three blank papers, which contained some thumb impressions and on his instructions he has written on the said blank paper that Ramsingari Devi on her own will and volition, after going through the document, has put her thumb impression. He admits that Ramsingari Devi has not put her LTI on the said WILL in his presence nor she had put her LTI in presence of other attesting witness. In paragraph 6, he admits that the deceased was not in good health and was suffering since more than a month and before her death, she was admitted in Navjeevan Nursing Home and, thereafter, she was released after three days. This evidence is, thus, very crucial for a proper decision of this case.
Sudhir Kumar Paswan is another witness. He stated that the WILL was executed in his presence and in pre
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sence of P.W.2, who had put their signature in presence of Ramsingari Devi. Ramsingari Devi had bequeathed 10 her property in favour of this appellant and the WILL was prepared as per her wish. Applicant, A.W.3 stated that Ramsingari Devi had executed the WILL in her favour and Ramsingari had died on 16.02.2003 and had executed the WILL on 10.02.2003. In cross examination, he admits at paragraph 24 that the testator was admitted in Navjeevan Nursing Home, as she was ill. In paragraph 26 he denied that the testator was unconscious. 26. It is not necessary to discuss the other witnesses nor even the witnesses of the opposite parties as being the applicant, he had to overcome all the suspicious circumstances and clear all the doubts, which crops up in the mind of the Court in respect of execution and genuineness of the WILL. 27. From the evidence, which has been discussed, the fact, which is admitted in that the WILL is unregistered document, which was executed on 10.02.2003 and the testator had died on 16.02.2003. The condition of health of the testator was bad. Witnesses also admits the same. The fact that the testator died within seven days from execution of the WILL strengthens the aforesaid fact. Further, one of the attesting witnesses have categorically stated that he has put his signature and made the endorsement on a blank paper, which contained some thumb impression. He admitted that he did not sign any WILL executed by Ramsingari Devi nor signed any document in her presence. It has also come in evidence of the witnesses that the testator, due to her very old age and because of very ill health was admitted in Navjeevan Nursing Home and died soon after she was released. This is rather a very suspicious circumstance, which creates doubt over the unregistered WILL. It was the duty of the applicant to clear the smog which has shrouded the execution of the WILL, but, the appellant has himself failed to do so. In fact, applicant’s witnesses have demolished the case of the applicant-appellant and have, in fact, proved the allegations of the opposite parties that the WILL is not genuine, but, doubtful and is a created document. On this basis, the Court correctly dismissed the application for grant of probate. 28. I find no merit in this appeal. This appeal is, accordingly, dismissed.