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SUPREME COURE OF INDIA
S.B. Sinha & Markandey Katju
Benga Behera & AnrPETITIONER
Braja Kishore Nanda & OrsRESPONDENT
Writ Petition (civil) 3467 of 2003
Decided on 15/05/2007
Section 63 of the Indian Succession Act, 1925 - Indian Evidence Act, 1872 - Interpretation and application of Section 63 of the Indian Succession Act, 1925 as well as Section 68 of the Indian Evidence Act, 1872 vis-`-vis the requirements of proof of execution of a document - [WILL EXECUTION] - [Indian Succession Act, 1925, Section 63; Indian Evidence Act, 1872, Section 68]
Fact of the Case:
One Sarajumani Dasi executed a Will in favor of the first respondent, a complete stranger to the family, and also executed a deed of sale in favor of an advocate. The appellants, heirs and legal representatives of the testatrix, contested the application for grant of Letters of Administration, alleging the Will to be forged and a sham document. The original Will was never produced by the appellants, and the execution of the Will was sought to be proved by producing a certified copy thereof and a purported xeroxed copy. The attesting witnesses provided contradictory statements regarding the execution of the Will.
Finding of the Court:
The court found that the attesting witnesses failed to prove the due execution of the Will. The first respondent failed to discharge the burden of proving the due execution of the Will, and the existence of suspicious circumstances was held to be sufficient to conclude that the execution of the Will had not been duly proved. The court also noted that the loss of the original Will was not satisfactorily proved, and the secondary evidence provided did not inspire confidence. The court concluded that the first respondent did not establish the loss of the original Will beyond all reasonable doubt.
Issues: The issues revolved around the proof of execution of the Will, the loss of the original Will, and the existence of suspicious circumstances.
Ratio Decidendi: The burden of proof of the due execution of a Will lies on the propounder, and the propounder must remove any suspicion by leading appropriate evidence. Compliance with legal formalities is not sufficient when there are suspicious circumstances, and the onus is on the propounder to satisfy the court affirmatively that the testator executed the Will with a sound disposing capacity. The court must not ignore suspicious circumstances and should not close its mind to finding the truth.
Final Decision: The court set aside the impugned judgment and allowed the appeal with costs.
The will was not conclusively proved by the attesting witnesses. The primary attesting witness, who scribed the Will and claimed to be an attesting witness, failed to establish that he knew the testatrix personally or that she understood the contents and significance of the Will at the time of execution. Additionally, there were contradictions and inconsistencies in the witnesses' statements regarding the execution and attestation process, including whether the testatrix put her thumb impression in their presence and whether the Will was read over to her.
Furthermore, the evidence suggested that the attestation did not meet the legal requirements, as at least one attesting witness did not affirmatively prove the due execution of the Will. The court also considered other parameters such as the loss of the original Will, the suspicious circumstances surrounding its execution, and the credibility of secondary evidence like Xerox copies and certified copies, which were found to be unreliable.
Overall, the verification of the Will relied on multiple parameters, including the credibility and consistency of witnesses' testimonies, the circumstances of execution, and the evidence of registration and possession of the Will, rather than solely on the attesting witnesses' testimony. The court ultimately concluded that the burden of proof had not been satisfactorily discharged by the propounder, and the Will was not duly proved.
JUDGMENT
S.B. SINHA, J.:
1.Interpretation and application of Section 63 of the Indian Succession Act, 1925 as well as Section 68 of the Indian Evidence Act, 1872 vis-`-vis the requirements of proof of execution of a document falls for consideration in this appeal which arises out of the judgment dated 21.11.2002 in First Appeal.No.397/1990 of the High Court of Orissa at Cuttack. However, before we embark upon the said question, we may notice the facts of the matter in brief.
2.Admittedly, one Sarajumani Dasi was the owner of the property in question. She was aged about 70 years when a Will was allegedly executed by her on or about 15.1.1982. She expired on 5.6.1983. The beneficiary of the Will was the first respondent herein. The testatrix was living in a math known as Bharati Math at Puri. In the Will, she disclosed her profession to be "Singer of Bhajans and Kirtans". It is not in dispute that the first respondent was a complete stranger to the family. He is a businessman. His father was one of the disciples of late Taponidhi Ramakrushna Bharati Goswamy, who had founded the Math wherein the testatrix was living.
3.A deed of sale was also executed by the said Sarajumani Dasi in favour of advocate Surendra Panda of Puri on the same day. The Will is said to have been scribed by one Banabehari Upadhyaya (PW-9), an advocates clerk. He as well as one Chandramani Das Mohapatra who are said to be the attesting witnesses thereto also identified the testatrix before the Registering Officer. Respondent No.1 obtained the original Will from the Office of the Registering Authority on 30.1.1982.
4.As noticed hereinbefore, Sarajumani Dasi expired on 5.6.1983. In 1986, an application was filed by the first respondent in the court of the learned District Judge, Puri for grant of Letters of Administration in respect of the alleged Will with a copy of the Will annexed, in terms of Section 278 of the Indian Succession Act. Respondent No.1 claimed that he had also been residing in the said Math. She was assured of proper care by him and in consideration of the help and assistance rendered to her by respondent No.1, the said Will was executed in his favour.
5.Appellants herein are the heirs and legal representatives of the testatrix. They contested the said application, inter alia, questioning execution of the Will alleging the same to be a forged and a sham document.
6. We may notice that the original Will was never produced by the appellant.
7. Execution of the Will was sought to be proved by producing a certified copy thereof. A purported xeroxed copy of the said will was also filed. The registration of the said Will was sought to be proved by calling the document in question wherein the contents of the document registered were noted.
8.To prove execution and attestation of the Will, the respondent No.1, inter alia, examined Banabehari Upadhyaya (P.W.9), Purnchandra Rath (P.W.4) and Surendra Panda (P.W.7).
9.We will notice their statements before the learned District Judge for determining the question as to whether requirements of law had been complied with.
10.P.W.9- Banabehari Upadhyaya who, as noticed hereinbefore, not only scribed the Will but also stated himself to be an attesting witness and identifier of the testatrix, in his deposition stated as under:
. On 15.1.82, Sarajumani Dasi executed a Will in favour of one Brajakishore Nanda and the same was scribed by me..
I do not remember anything that happened on 15.1.82 except what I have deposed with reference to the document.
I first saw Sarajumani Dasi when she executed the sale deed. I did not know her before that. Surendranath Panda brought Sarajumani Dasi to me with him. Sarajumani Dasi was with Surendranath Panda and I was called to scribe the Will to become an identifying witness and also an attesting witness. Surendra Panda identified Sarajumani Dasi to me and that is how I know her. I did not make a draft of the Will but scribed it as per dictation of Surendranath Pand
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