1996 Supreme(SC) 769

1996(4) Supreme 179
SUPREME COURT OF INDIA
M.M. Punchhi and K.S. Paripoornan, JJ.
Mrs. Joyce Primrose Prestor (Nee Vas) -Appellant
versus
Miss Vera Marie Vas & Ors. -Respondents
Civil Appeal No. 3481 of 1979
Decided on 12-4-1996

IMPORTANT POINT
There is a strong presumption of regularity and due execution and attestation of the holograph Will when the writing of the Will and signature of the testator are admitted.

Headnote:Indian Succession Act-Section 276-Application for grant of letters of Administration of estate of deceased-Will-Legality and validity of-Allegation of undue influence-Holograph Will-Writing of Will and signature of testator admitted-There is also due and proper attestation in accordance with relevant statutory provisions-No suspicious circumstance on face of document-Presumption of due execution and attestation of Will-Trial Court held that there are no suspicious circumstances surrounding the Will-High Court was not justified in reversing such finding based on proper application of law.

       Held : That the High Court failed to give effect to the strong presumption of regularity and due execution and attestation of the holograph Will, in the instant case. Admittedly, the Will, Ex.P-1, is in the handwriting of the testator, as spoken to by the 3rd defendant herself. The facts in this case in a great measure conform to the broad facts and circumstances detailed in the case of "holograph will" in Shashikumar Banerjee s case (supra). In this case the 3rd defendant admitted in cross-examination that her mother, Mrs. Vas "was active till the last" and that "she used to go to Mass every morning." She further stated that the Will `is in the handwriting of the testator . She stated, "I see Ext. P-1. This is the Will. It is entirely in my mother s handwriting. I am fully acquainted with her handwriting. Ext. P1(a) is the signature of my mother." The evidence of PW-1, one of the attesters, is categoric that the Will was attested by her and a co-attester in the presence of the testatrix and that the testatrix was in a sound state of mind at the time of execution of the Will. DW-3, Advocate by profession, stated-"I am acquainted with the signature and writing of Mrs. Vas (Testator). I see the Will Ext. P-1. The writing in Ext.P1 as well as the signature are of Mrs. Vas." PW-1 stated that the propounder (the plaintiff) was not present when Ex.P-1, the Will, was signed and executed. By Ex. P-1, all daughters have been given equal shares and the document cannot be said to be unnatural. In these circumstances, a strong or high degree of presumption of the regularity and of due execution and attestation of the Will, arose. As stated by this Court in Shashi Kumar Banerjee s case (supra), it is in this background, the evidence in the case including that of the attesting witnesses should have been examined and what was required was only to formally prove the Will, and very little evidence to prove due execution and attestation of the Will, was alone called for. The High Court totally ignored the above vital aspects. On the other hand, the High Court opined that the facts of this case are entirely different from those of Shashikumar Banerjee s case (supra), and the unique features should be scanned, in great detail. In the process, the High Court reappreciated the entire evidence, through a microscope, as it were, and indulged in surmises and conjectures. (Para 17)

       The question that arose for consideration in this case, is largely one of fact, the decision of which depended upon the appreciation of the oral evidence adduced in the case. The weight or importance that should be given to the finding of the trial Judge who had occasion to watch the demeanour of the witnesses and assess their credibility and the restraints that should be observed by the Appellate Court in such cases, the onus is on the appellant, to show that the judgment appealed against is wrong. It is for the appellant to show where the assessment of the court below has gone wrong and not merely seek a reassessment of the evidence. We regret to note that the High Court in the instant case, has not at all borne in mind the above salient principles of law in reappreciating the entire evidence in this case through a microscope, as it were, and drawing its own "inferences" and "impressions". (Para 17)

       Further held : Finding based on proper application of the law and the evidence available in the case, was reversed by the High Court by a totally wrong approach to the question and without giving effect to the "strong presumption" available in the case regarding the presumption of regularity and due execution and attestation of the Will. (Para 19)