1999 Supreme(HP) 212

High Court Of Himachal Pradesh
M.R.VERMA
DEEP RAM - Appellant
Versus
LAXMI NAND - Respondent
RSA No. 25 of 1993
Decided On : 10/13/1999

A Will is valid and enforceable if it is duly executed and attested, the testator is of sound mind and disposing memory at the time of execution, and there is no evidence of undue influence or coercion.

Headnote:

WILL - EXECUTION AND ATTESTATION - VALIDITY - SUSPICIOUS CIRCUMSTANCES - UNDUE INFLUENCE - MENTAL CAPACITY - BURDEN OF PROOF - INTERPRETATION OF SECTION 63 OF THE INDIAN SUCCESSION ACT, 1925.

Fact of the Case:

Plaintiff filed a suit for declaration that he is the owner in possession of land comprising Khasra No. 704/663/4 measuring 19 bighas 18 biswas to the extent of l/6th share with consequential relief of permanent injunction restraining the defendants from creating charge on or transferring/ alienating the l/6th share of the plaintiff in the suit land and for joint possession to the extent of the claimed share. The defendants contested the suit and raised preliminary objections that the suit is bad for non-joinder of necessary parties; that it is not properly valued for the purposes of Court fee and jurisdiction and the plaintiff is estopped from filing the suit due to his acts, conduct and acquiescence. On merits, while admitting the plaintiff to be the son of Budhi Ram from his first wife, the defendants denied the existence of the alleged HUF and that the plaintiff resided with Budhi Ram till 1965-66. It has also been denied that the earnings of the plaintiff were joint with Budhi Ram or that he used to give his earnings to said Budhi Ram or was helping him in any manner. It has also been denied that the suit property was purchased out of the alleged earnings/income of the alleged HUF or that the plaintiff was in any manner instrumental in purchasing it or that he had any share therein. The claim in the plaint that the property is coparcenary has also been denied as baseless and false. It has been claimed that Budhi Ram was in the employment of agriculturists near Kasumpti and out of his personal savings he purchased mules and after selling them, buffaloes were purchased by him and he used to sell the milk and the suit property was purchased by him out of his personal income. The plaintiff joined service in or about 1958 and was married in the year 1961 and left the house in the year 1961 whereafter he never resided with Budhi Ram and did not make any contribution. Rather he had refused to make any contribution. Out of his own savings, he acquired separate property in village Godhan, Teh. Arki and had been residing separately, keeping no concern with Budhi Ram. It has further been claimed that said Budhi Ram, during his life time, on 18.12.1980 bequeathed his self acquired property situate in Chak Chamiana in favour of the defendants and the Will was duly executed and registered. He died on 15.9.1985 and on the basis of the Will, the mutation was entered in the name of the defendants who are the absolute and exclusive owners of the estate of said Budhi Ram situate in village Chamiana to the exclusion of the plaintiff. The allegations of the Will having been procured under the influence or pressure have been denied and it has been asserted that the plaintiff has no right, title or interest in any part of the suit property and Budhi Ram was within his rights to make the Will. Hence the claim of the plaintiff has been denied as a whole.

Finding of the Court:

The Court found that the Will was duly executed and attested and that there were no suspicious circumstances surrounding its execution. The Court also found that the testator was of sound mind and disposing memory at the time of the execution of the Will and that there was no evidence of undue influence or coercion. The Court further found that the plaintiff had failed to discharge the initial onus of proving that the Will was invalid.

Issues: 1. Whether Exhibit PW-2/A is not a legal and valid document the same being surrounded by suspicious circumstances? 2. Whether document Exhibit DW/2/A alleged Will has not been executed in accordance with law and the same deserves to be ignored for want of proper proof of its execution? 3. Whether Exhibit DW/2/A is illegal and void document and the same has been produced by mis-representation of facts and by exercising undue influence?

Ratio Decidendi: The Court held that the Will was valid and enforceable. The Court relied on the following principles of law: * A Will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. * Since Section 63 of the Succession Act requires a Will to be attested, it cannot be used as evidence until, as required by Section 68 of the Evidence Act, 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. * Unlike other documents, the Will speaks from the death of the testator and therefore the maker of the Will is never available for deposing as to the circumstances in which the Will came to be executed. The aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. * Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the Will. * Cases in which the execution of the Will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the Will under which he receives a substantial benefit and such other circumstances raise suspicious about the execution of the Will. That suspicion cannot be removed by the mere assertion of the propounder that the Will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the Will was made, or that those like the wife and children of the testator who could normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the Will excite the suspicion of the Court, the propounder must remove all legitimate suspicious circumstances before the document can be accepted as the last will of the testator. * It is in connection with Wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the Court is the last Will of the testator, the Court is called upon to decide a solemn question and by reason of suspicious circumstances the Court has to be satisfied fully that the Will has been validly executed by the testator.

Final Decision: The Court dismissed the appeal and upheld the judgment of the lower court.