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1994 Supreme(Ori) 167
High Court Of Orissa
R. K. PATRA
RADHARANI DEVI - Appellant
Versus
KADAMBINI DEVI - Respondent
FIRST APPEAL 42 Of 1988
Decided On : 10/26/1994
B.Routray, K.B.KAR, M.MOHANTY, P.MISHRA, R.C.DAS, R.K.DAS, S.K.SWAIN, U.K.Samal, Y.S.N.MURTY
The onus of proving a will is on the propounder, and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus.
Headnote:
WILL - EXECUTION AND ATTESTATION - PROOF - BURDEN OF PROOF - SUSPICIOUS CIRCUMSTANCES - EXPLANATION - GENUINENESS OF WILL - CONSIDERATION OF EVIDENCE - INDIAN SUCCESSION ACT, 1925, SECTION 63.
Fact of the Case:
The testator, Lala Harekrishna Singh, had two wives, Radharani Devi and Kadambini Devi, who were sisters. Radharani Devi was the elder sister and had sons (appellants 2 to 8) with the testator. Kadambini Devi was the younger sister and had sons and daughters (respondents 2 to 9) with the testator. The testator executed a will on 25-5-1976, giving Schedule 'a' properties to the respondents. The respondents filed an application for grant of letters of administration under Section 276 of the Indian Succession Act, 1925. The appellants contested the application, alleging that the will was not duly executed or attested, was the result of undue influence and coercion, and that the testator did not have the capacity to make a will.
Finding of the Court:
The court held that the will was duly executed and attested, that the testator was in sound disposing state of mind, and that there were no suspicious circumstances surrounding the execution of the will. The court also held that the appellants had not discharged the burden of proving undue influence or coercion.
Issues: 1. Whether the will was duly executed and attested? 2. Whether the testator was in sound disposing state of mind? 3. Whether there were suspicious circumstances surrounding the execution of the will? 4. Whether the appellants had discharged the burden of proving undue influence or coercion?
Ratio Decidendi: 1. The court held that the will was duly executed and attested based on the evidence of the attesting witnesses, who testified that the testator signed the will in their presence after declaring that the contents were correct. 2. The court held that the testator was in sound disposing state of mind based on the evidence of the attesting witnesses and the fact that there was no evidence to suggest otherwise. 3. The court held that there were no suspicious circumstances surrounding the execution of the will, as the circumstances suggested by the appellants were either not suspicious or were adequately explained by the respondents. 4. The court held that the appellants had not discharged the burden of proving undue influence or coercion, as there was no evidence to support their allegations.
Final Decision: The court dismissed the appeal and upheld the grant of letters of administration to the respondents.
R. K. PATRA, J.
( 1 ) THIS appeal is directed against the judgment and order of the learned Subordinate Judge, Khurda allowing the application made under Section 276 of the Indian Succession Act, 1925 (hereinafter referred to as 'the Act' ).
( 2 ) RELEVANT facts may be briefly stated. Late Lala Harekrushna Singh had two wives, namely, Radharani Devi and Kadambini Devi who are admittedly sisters, the former being elder to the latter. Appellants 2 to 8 are his sons through Radharani Devi who is appellant No. 1. Respondents 2 to 9 are also his sons and daughters through his second wife Kadambini who is respondent No. 1. Lala Harekrishna Singh expired on 25-1-1981. The respondents filed an application on 25-8-1986 under Section 276 of the Act for grant of letters of administration which came to be registered as T. M. S. No. 38 of 1987-II on the file of the Subordinate Judge, Khurda. Their case is that Lala Harekrishna Singh (hereinafter referred to as 'the testator') executed a will in their favour on 25-5-1976. It was the last will by which the testator had given Schedule 'a' properties to them subject to enjoying the same after his death. The testator executed the will while he was living with the respondents. He was fit both in mind and body and consciously out of his free will and without any inducement has made disposition of Schedule 'a' properties in their' favour. On the premises stated above, the respondents prayed for grant of letters of administration in respect of 'a' schedule properties left behind by the testator. The appellants contested the matter by filing objection on the grounds, inter alia, that the will was executed by the testator without understanding the contents contained therein. The will was not duly executed nor was it attested according to law. It was pleaded that the will was out-come of undue influence and coercion in as much as the testator was suffering from paralysis and physically disabled and due to old age and ailment, he had lost the power of understanding and the same was executed without his free will. It was also averred by the appellants that the properties given in the will are ancestral and joint family properties in which the appellants are co-parceners and as such, the properties in question were not exclusively owned and possessed by the testator and he had no exclusive right of its disposition.
( 3 ) THE respondents in order to prove their case examined four witnesses and filed certain documents. The appellants in their turn also examined four witnesses and filed number of documents. On the basis of the evidence adduced in the case, the learned Subordinate Judge held that the Will Ext. 1 is a genuine document which was duly executed by the testator at the time when he had sound disposing state of mind and it was not made under any undue influence or coercion. Accordingly, the application made under S. 276 of the Act was allowed.
( 4 ) COUNSEL for the appellants submitted that the decision of the learned Subordinate Judge is vitiated for non-consideration of material evidence. It was also contended that heavy burden lay on the respondents to explain suspicious circumstances surrounding the execution of the Will and in absence of evidence relating to due execution and attestation of the Will, letters of administration should not have been granted.
( 5 ) AS has been held by a five-Judge Constitution Bench of the Supreme Court in Shashi Kumar Banerjee v. Subodh Kumar Banerjee, AIR 1964 SC 529 the mode of proving a Will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a Will by S. 63 of the Act. The onus of proving the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circums
