Tarlok Singh Chauhan, J
1. The defendant is the appellant, who, after having lost before both the learned courts below, has filed the instant appeal.
2 The parties shall be referred to as the “plaintiffsâ€, “defendant†and “proforma defendantsâ€.
3 Brief facts of the case are that the plaintiffs filed a suit for decree of declaration to the effect that they along with proforma defendants are joint
owners in possession of the suit land comprised in Khewat No. 169, Khatauni No. 219, Khasra Nos. 519, 528, 511, 66, 529, 520, 64, 513, 510, 54, 67,
49 measuring 72 kanal 18 marla, as entered in Misal Hakiat Istemal for the year 1983Â84, situated at village Kuthera, Tehsil Amb, Distt. Una, H.P.
being heirs of deceased Chanchala Devi and the will dated 26.6.2008 (Ext. DW2/A) allegedly executed by Chanchala Devi in favour of defendant
No.1 is result of fraud, misrepresentation, undue influence, illegal, null and void. The plaintiffs also sought decree of consequential relief of permanent
injunction restraining the defendant from raising any construction, changing nature, taking forcible exclusive possession, creating charge or alienating
the suit land. It was averred that the plaintiffs along with the defendant are sons of deceased Chanchala Devi. Proforma defendants are successors of
preÂdeceased son (Jagdish Ram) of late Chanchala Devi. Their father namely Sewa Gir was exclusive owner in possession of the suit land. Their
mother Chanchala Devi succeeded the suit land upon death of their father. Mutation No. 3430 regarding inheritance of their father was sanctioned in
name of their mother. They challenged mutation No. 3430 regarding inheritance of their father before Collector, Amb. Deceased Chanchala Devi was
in old age and she was not keeping good health. She was illiterate and unable to read Hindi or English languages. The defendant took benefit of
illiteracy of mother and played fraud with her. He obtained her thumb impressions upon several papers as well as upon register on the pretext of
preparation of her power of attorney and mutation No.3430 was sanctioned. Hence, the suit.
3 The defendant contested the suit by filing written statement inter alia taking preliminary objections regarding maintainability, estoppel, limitation and
nonÂjoinder of necessary parties. On merits, it was claimed that Chanchala Devi had executed the will, dated 26.6.2008, in his favour as well as in
favour of the plaintiffs and proforma defendants No. 5 and 6, in her sound disposing state of mind in presence of witnesses, during her life time. The
will was registered before Sub Registrar, Amb, who had also read over and explained its contents to her in presence of witnesses and scribe. Husband
of Chanchala Devi and his father namely Sewa Gir had executed valid sale deed in favour of sister of Ravinder Kumar; namely Usha Rani. However,
Ravinder Kumar had no concern with the said transaction. Chanchala Devi was not interested to challenge the said sale and it was challenged at the
instance of plaintiffs only. Denying the claim of the plaintiffs, dismissal of the suit was prayed for.
4 The plaintiffs filed replication to the written statement, reasserting and reÂaffirming therein their claim.
5 After framing the issues, the learned Trial Court recorded the evidence and evaluated the same; and vide judgment and decree dated 12.9.2014
decreed the suit of the plaintiffs. The appeal against the said judgment and decree, preferred by the defendant, came to be dismissed by the learned
first appellate court vide judgment and decree, dated 31.5.2017, constraining the defendant to file the instant appeal.
6 On 18.4.2018, the instant appeal was admitted on the following substantial questions of law:
“1. Whether the judgment and decree passed by both the learned Courts below is a result of misconstruction, misinterpretation,
misreading of pleadings oral and documentary on record and contrary to evidence on record and is thus perverse?
2. Whether the finding of both the learned Courts below on issue No.1, 2 and 3 is contrary to the evidence on record?
3. Whether the Will i.e. Exhibit DWÂ2/A has been proved on record as per law?
4. Whether the respondents failed in rebutting the presumption in favour of registered document i.e. Exhibit DWÂ2/A?â€
7 I have heard the learned counsel for the parties and have also gone through the records of the case carefully.
8 The parties are at ad idem that answer to substantial question of law No.1 would determine the fate of the remaining questions of law No. 2 to 4.
Substantial question of law No. 1
9 It is well settled that it is for the propounder of the will to repel all the suspicious circumstances surrounding the will and to prove the genuineness of
the will. Besides this, the propounder would also be required to satisfy the following points qua due execution of the Will:Â
(i) the Will was signed by the testator;
(ii) at the relevant time, the testator was in sound disposing state of mind; and
(iii) testator had understood the nature and effect of depositions and had put his signatures on the document of his own free volition and will.
10 How the will is required to be proved and what would constitute suspicious circumstance has been elaborately considered by the Hon’ble
Supreme Court in Bharpur Singh and others vs. Shamsher Singh (2009) 3 SCC 687, wherein it was observed as under:
 “14. The legal principles in regard to proof of a will are no longer res integra. A will must be proved having regard to the provisions
contained in clause (c) of Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872, in terms whereof
the propounder of a will must prove its execution by examining one or more attesting witnesses. Where, however, the validity of the Will is
challenged on the ground of fraud, coercion or undue influence, the burden of proof would be on the caveator. In a case where the Will is
surrounded by suspicious circumstances, it would not be treated as the last testamentary disposition of the testator.
15. This Court in H. Venkatachala Iyengar vs. B.N. Thimmajamma [AIR 1959 SC 443] opined that the fact that the propounder took interest
in execution of the Will is one of the factors which should be taken into consideration for determination of due execution of the Will. It was
also held that: (AIR p. 451, para 19)
one of the important features which distinguishes Will from other documents is that the Will speaks from the date of death of the testator,
and so, when it is propounded or produced before a court, the testator who has already departed the world cannot 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.
16. In H. Venkatachala case1, It was also held that the propounder of will must prove:
(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
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 propounder can be taken to be discharged on proof of the
essential facts indicated therein.
It was moreover held:(H. Venkatachala case1, AIR p. 452, para 20
20. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature
of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature in question is the
signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may
appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity
of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or,
the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases 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. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily
discharged, courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the
exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the
caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in
executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter.
17. This Court in Niranjan Umeshchandra Joshi vs. Mrudula Jyoti Rao & ors. (2006) 13 SCC 433 :(2006) 14 SCALE 186, held: ( SCC pp. 447Â48,
paras 33Â34)
33. The burden of proof that the Will has been validly executed and is a genuine document is on the propounder. The propounder is also
required to prove that the testator has signed the Will and that he had put his signature out of his own free will having a sound disposition
of mind and understood the nature and effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder
may be held to have been discharged. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent
evidence if there exists any. In the case of proof of Will, a signature of a testator alone would not prove the execution thereof, if his mind
may appear to be very feeble and debilitated. However, if a defence of fraud, coercion or undue influence is raised, the burden would be
on the caveator. [See Madhukar D. Shende v. Tarabai Shedage (2002) 2 SCC 85 and Sridevi and Ors. v. Jayaraja Shetty and Ors. (2005)
8 SCC 784]. Subject to above, proof of a Will does not ordinarily differ from that of proving any other document.
34. There are several circumstances which would have been held to be described (sic) by this Court as suspicious circumstances:
(i) When a doubt is created in regard to the condition of mind of the testator despite his signature on the Will;
 (ii) When the disposition appears to be unnatural or wholly unfair in the light of the relevant circumstances;
(iii) Where propounder himself takes prominent part in the execution of Will which confers on him substantial benefit.
[See H. Venkatachala Iyengar v. B.N. Thimmajamma and Ors. AIR 1959 SC 443 and Management Committee T.K. Ghosh's Academy v. T.C.
Palit and Ors. AIR 1974 SC 1495]
18. Respondent was a mortgagee of the lands belonging to the testatrix. He is also said to be the tenant in respect of some of the properties
of the testatrix. It has not been shown that she was an educated lady. She had put her left thumb impression. In the aforementioned
situation, the question, which should have been posed, was as to whether she could have an independent advice in the matter. For the
purpose of proof of will, it would be necessary to consider what was the fact situation prevailing in the year 1962. Even assuming the
subsequent event, viz., the appellants had not been looking after their mother as has been inferred from the fact that they received the news
of her death only six days after her death took place, is true, the same, in our opinion, would be of not much significance.
19.The provisions of Section 90 of the Indian Evidence Act keeping in view the nature of proof required for proving a Will have no
application. A Will must be proved in terms of the provisions of Section 63(c) of the Indian Succession Act, 1925 and Section 68 of the
Indian Evidence Act, 1872. In the event the provisions thereof cannot be complied with, the other provisions contained therein, namely,
Sections 69 and 70 of the Indian Evidence Act providing for exceptions in relation thereto would be attracted. Compliance with statutory
requirements for proving an ordinary document is not sufficient, as Section 68 of the Indian Evidence Act postulates that execution must be
proved by at least one of the attesting witness, if an attesting witness is alive and subject to the process of the Court and capable of giving
evidence. {See B. Venkatamuni vs. C.J. Ayodhya Ram Singh & ors. [(2006) 13 SCC 449, SCC p. 458, para 19]}
20. This Court in Anil Kak vs. Kumari Sharada Raje & ors. [(2008) 7 SCC 695] opined that court is required to adopt a rational approach
and is furthermore required to satisfy its conscience as existence of suspicious circumstances play an important role, holding: (SCC p. 714,
paras 52Â55)
52. Whereas execution of any other document can be proved by proving the writings of the document or the contents of it as also the
execution thereof, in the event there exists suspicious circumstances the party seeking to obtain probate and/ or letters of administration
with a copy of the Will annexed must also adduce evidence to the satisfaction of the court before it can be accepted as genuine.
53. As an order granting probate is a judgment in rem, the court must also satisfy its conscience before it passes an order.
54. It may be true that deprivation of a due share by (sic to) the natural heir by itself may not be held to be a suspicious circumstance but it
is one of the factors which is taken into consideration by the courts before granting probate of a Will.
55. Unlike other documents, even animus attestandi is a necessary ingredient for proving the attestation.
21. Unfortunately, the first appellate court as also the High court did not advert to these aspects of the matter.
22. We may notice that in Jaswant Kaur vs. Amrit Kaur & ors. [(1977) 1 SCC 369] this Court pointed out that when the Will is allegedly
shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and defendant. An adversarial proceeding in such cases
becomes a matter of Court's conscience and propounder of the Will has to remove all suspicious circumstances to satisfy that Will was duly
executed by testator wherefor cogent and convincing explanation of suspicious circumstances shrouding the making of Will must be
offered.â€
11 What would be suspicious circumstances was thereafter set out in paraÂ23 of the judgment, which reads as follows:
“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.â€
12 The learned trial court came to the categoric conclusion that the propounder of the will i.e. defendant No.1 had not been able to dispel suspicious
circumstances, which were surrounding the execution of the Will. Said findings were affirmed even by the learned first appellate court. However, Mr.
Ashok K. Tyagi, learned counsel for the defendant (appellant herein) would vehemently argue that the findings rendered by both the learned courts
below are perverse.
13 In order to test the arguments of the defendant, in case the records are perused, they reveal that the defendant had examined Ajay Singh (DWÂ1),
Registration Clerk, who proved the will (Ext. DW2/A), that was registered at Sr. No. 228. In cross examination, he admitted that no endorsement
was made by him on the will as he was not Registration Clerk at that time.
14 The defendant then examined scribe of the Will, Bachitter Singh (DW2), who deposed that he had written the will, Ext. DW2/A on 26.6.2008 and
the same bears his signature. He further deposed that he read over the will to Chanchala Devi, who after understanding the same put her thumb
impressions on pages No. 1 and 2 of the will. Likewise, testator also put her thumb impressions and witnesses also signed in his register. At the
relevant time, Chanchala Devi was in sound disposing state of mind and on her dictation, he had written the will. Thereafter, he sent it for registration
to the Sub Registrar, Amb.
15 In crossÂexamination, this witness stated that Chanchala Devi had four sons, out of whom, one had died. He admitted that Chanchala Devi was 80
years old and claimed that she came to him alone. She had jamabandi with her, from which she dictated Khasra numbers to him. Chanchala Devi had
told him that he should write the will and the witnesses were coming. The witness Ravinder Singh came after one hour of writing the will. He further
stated that Lambardar Bal Krishan was called by Chanchala Devi to identify the testator.
16 It is not in dispute that the testator was totally illiterate. Then how come she dictated Khasra numbers, more particularly, the ones, that had been
bequeathed in favour of the defendant i.e. Khasra Nos. 519, 511, 520, 513, 510 and 49.
17 One of the attesting witnesses examined by the defendant is Ravinder Singh (DW3), who had filed his affidavit (Ext. DW3/A) in his examinationÂ‐
inÂchief. He deposed that he had come to Tehsil on the asking of Chanchala Devi. He remained as Up Pradhan of Village Kuthera Khairla.
According to him, Chanchala Devi herself had got the will written in presence of Bachitter Singh. He further went on to depose that after writing the
will, scribe had read over the same and it is only after admitting the correctness of the will, testator put her thumb impressions on the will. As rightly
held by the learned trial court, the presence of this witness is highly doubtful at the time of dictation of the will because scribe of the will has
categorically admitted that he had come to the Tehsil office after one hour of writing the will.
18 Moreover, Ravinder Singh (DW3) is an interested witness as his crossÂexamination reveals that husband of the testator had filed a case qua
property against sister of Ravinder Singh. It is admitted by this witness that said suit was for declaration to the effect that the sale deed, claimed to be
executed by Sewa Gir in favour of his sister, was wrong etc. He further admitted that the said case was pending since year 2008 and the successors
of Sewa Gir were contesting that case. He also admitted that Chanchala Devi was illiterate. He categorically admitted that neither Chanchala Devi
went to the Patwari in his presence nor she got the land ploughed either through tractor or contractor. Though he stated that khasra numbers were got
written by Chanchala Devi, but feigned ignorance regarding Chanchala Devi having a copy of jamabandi at the relevant time.
19 In addition to above, both the learned courts below have clearly come to the conclusion that timing of death of testator, who died after one month of
so called execution of the will, was itself suspicious. The learned Courts below categorically held that there was no evidence that testator knew
Bachitter Singh, scribe of the will, before the disputed document. There is no evidence whatsoever that she visited Patwari to bring jamabandi. There
is no evidence that the testator, who at the relevant time was 80 years old, was capable of undertaking journey and reached Amb, that too, all alone
from her house.
20 If this was not enough, the defendant in the instant case has not even cared to step into the witness box, hence adverse inference is required to be
drawn against him under Section 114(g) of the Indian Evidence Act as per dictum of the Hon'ble Supreme Court in Vidhyadhar Vs Mankikrao and
another AIR 1999 SC 1441 and Ishwar Bhai C. Patel v. Harihar Behara , AIR 1999 SC 1341. The mere fact that the will is registered, in the peculiar
facts and circumstances of the instant case would lend no credence to the will, more particularly, when it is shrouded by suspicious circumstances.
The substantial question of law is answered accordingly.
21 In view of aforesaid discussion, I find no merit in the instant appeal and the same is accordingly dismissed, so also the pending application(s), if any.
The parties are left to bear their own costs.
