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1999 (2) JLJ 133
A.K. Mathur, C.J. and Dipak Misra, JJ.
Vipin Parera v. David Laghran and another
L. P.A. No. 161 of 1997; against the order passed by Single Bench in M.A. No.
146 of 1994; affirming the order passed by IV Additional District Judge,
Jabalpur in Misc. Judicial Case No. 86 of 1987; Decided on 25.8.1998.
(2) Succession Act, 1925 -- Ss. 276 and 63(c) -- grant of probate -- due and valid execution of will has to be proved -- propounder should remove every suspicious circumstance from the mind of the Court. AIR 1959 SC 443 followed. [Para 8]
(3) Succession Act, 1925 -- S. 63(c) -- registered will -- may be taken to be genuine -- but it is not sufficient to dispel all suspicions if exist -- due execution and understanding of testatar, etc. have to be proved. AIR 1962 SC 567 followed. [Para 8]
(4) Succession Act, 1925 -- S. 63(c) -- will -- propounder has to prove knowledge of the testator and his sound mental state -- testator‘s understanding as to nature and effect of disposition has also to be proved. AIR 1974 SC 1999 followed. [Para 8]
(5) Succession Act, 1925 -- S. 63(c) -- will -- shrouded by suspicious circumstances -- it becomes a matter of Court‘s conscience -- evidence of propounder should be such which satisfies conscience of the Court. AIR 1977 SC 74 followed. [Para 8]
(6) Succession Act, 1925 -- S. 63(c) -- will -- must be proved to have been executed and attested as indicated ill law -- free volition of execution after knowing and understanding contents of by the testator should also be proved to dispel any suspicious circumstance. (1998)4 SCC 384 followed. [Para 8]
(7) Succession Act, 1925 -- S. 63(c) -- will -- testatrix an old lady suffering from fracture of femur -- died within three weeks of execution of will -- it is a suspicious circumstance -- not registered during her life -- no mention of earlier will -- are further suspicious circumstances which should be dispelled by propounder. [Para 9]
(8) Succession Act, 1925 -- S. 63(c) -- will -- scribe an advocate -- contradicting propounder -- evidence not found worth to rely -- will becomes suspicious. [Para 10]
(9) Succession Act, 1925 -- S. 63(c) -- will -- attesting witnesses and scribe of will -- not proving execution of the will according to law -- deposition doubtful -- will not proved. [Para 11]
(10) Succession Act, 1925 -- S. 63(c) -- will -- duly proved by attesting witnesses -- testatrix writing will in her own handwriting -- she also read over the will to attesting witnesses -- will duty proved. [Para 12]
¼1½ mÙkjkf/kdkj vf/kfu;e] 1925 && /kkjk 237 rFkk 276 && foy dh ewy izfr U;k;ky; dh Qkby esa ls [kks xbZ && QksVksizfr miyC/k && /kkjk 237 ds v/khu ,slh izfr ij ls izkscsV iznku fd;k tk ldrk gSA ¿ iSjk 4
¼2½ mÙkjkf/kdkj vf/kfu;e] 1925 && /kkjk 276 rFkk 63 ¼x½ && izkscsV iznku fd;k tkuk && foy dk lE;d~ vkSj fof/kekU; lkfcr fd;k tkuk gksrk gS && izfriknd }kjk U;k;ky; ds ekud ls izR;sd ‘kadkLin ifjfLFkfr dk fujkdj.k fd;k tkuk gksrk gSA , vkb vkj 1959 ,l lh 443 vuqlfjrA ¿ iSjk 8
¼3½ mÙkjkf/kdkj vf/kfu;e] 1925 && /kkjk 63¼x½ && jftLVªhd`r foy && vlyh ekuh tk ldrh gS && fdarq blls leLr ‘kadkvksa dk lek/kku ugha gksrk ;fn fo|eku gksa && lE;d~ fu"iknu rFkk olh;r drkZ dh le>nkjh vkfn lkfcr dh tkuk gksrh gSA , vkb vkj 1962 ,l lh 567 vuqlfjrA ¿ iSjk 8
¼4½ mÙkjkf/kdkj vf/kfu;e] 1925 && /kkjk 63¼x½ && foy && izfriknd }kjk olh;rdrkZ dk Kku vkSj mldh LoLFk ekufld fLFkfr lkfcr dh tkuk gksrh gS && olh;rdrkZ dh] O;oLFkk ds Lo:i rFkk vk‘k; ds ckjs esa tkudkjh Hkh lkfcr dh tkuk gksrh gSA , vkb vkj 1974 ,l lh 1999 vuqlfjrA ¿ iSjk 8
¼5½ mÙkjkf/kdkj vf/kfu;e] 1925 && /kkjk 63¼x½ && foy && ‘kadLin ifjfLFkfr;ksa esa vko`Ùk && U;k;ky; ds foosd dk fo"k; cu tkrk gS && izfriknd dk lk{; ,slk gksuk pkfg, ftlls U;k;ky; ds foosd dk lek/kku gks tk,A , vkb vkj 1977 ,l lh 74 vuqlfjrA ¿ iSjk 8
¼6½ mÙkjkf/kdkj vf/kfu;e] 1925 && /kkjk 63¼x½ && foy && fof/k esa ;Fkk minf‘kZr fu"ikfnr rFkk vuqizekf.kr fd;k x;k gksuk lkfcr fd;k tkuk pkfg, && foy dh varoZLrq tkuus vkSj le>us ds i‘pkr~ olh;rdrkZ }kjk Lora=rkiwoZd LosPNk ls fu"iknu Hkh dksbZ ‘kadkLin ifjfLFkfr nwj djus ds fy, lkfcr fd;k tkuk pkfg,A ¼1998½4 ,l lh lh 384 vuqlfjrA ¿ iSjk 8
¼7½ mÙkjkf/kdkj vf/kfu;e] 1925 && /kkjk 63¼x½ && foy && olh;rd=hZ vfLFkHkax ls ihfM+r o`) efgyk && foy fu"ikfnr fd, tkus ij rhu lIrkg ds Hkhrj e`r && ;g ,d ‘kadkLin ifjfLFkfr gS && mlds thoudky esa jftLVªhd`r ugha && iwfoZd foy dk dksbZ mYys[k ugha] vkfn && vU; ‘kadkLin ifjfLFkfr;k¡ gSa tks izfriknd }kjk nwj dh tkuk pkfg,A ¿ iSjk 9
¼8½ mÙkjkf/kdkj vf/kfu;e] 1925 && /kkjk 63¼x½ && foy && fyfid ,d vf/koDrk && izfriknd ls folaxfr && lk{; voyacu ;ksX; ugha && foy ‘kadkLin gks tkrh gSA ¿ iSjk 10
¼9½ mÙkjkf/kdkj vf/kfu;e] 1925 && /kkjk 63¼x½ && foy && foy ds vuqizek.kd lk{khx.k rFkk fyfid }kjk && foy dk fu"iknu fof/k ds vuqlkj lkfcr ugha && vfHklk{; lansgkLin && foy lkfcr ughaA ¿ iSjk 11
¼10½ mÙkjkf/kdkj vf/kfu;e] 1925 && /kkjk 63¼x½ && foy && vuqizek.kd lk{khx.k }kjk lE;d~ :i ls lkfcr && foy olh;rd=hZ LogLrys[k }kjk fyf[kr && mlus vuqizek.kd lk{khx.k dks foy i<+ dj Hkh lqukbZ && foy lE;d~ :i ls lkfcrA ¿ iSjk 12
Misra, J. – 1. Correctness of the judgment rendered in the Misc. Appeal No. 146/94, preferred under Section 299 of the Indian Succession Act. 1925 (hereinafter referred to as 'the Act'), whereby the learned single Judge of this Court has affirmed the orders passed by the IVth Additional District Judge Jabalpur in Misc. Judicial Case No. 70/87 and Misc. Judicial Case No. 86/87, is called in question in this Letters Patent Appeal.
2. The respondents No. 1 and 2 filed an application under Section 276 of the Act for grant of probate in respect of the properties of one Mrs. Mavis Ada Lynch, on the ground that she had executed a Will on 18.6.83 in their favour bequeathing of her movable and' immovable properties. It was averred in the said application that the will was written in her own hand and she had executed it. The present appellant, the caveator, did not file any formal objection to resist the application but filed an application forming the subject-matter of Misc. Judicial Case No. 86/86 for grant of probate on the basis of subsequent will executed by Mrs. Lynch. In the said application the present appellant claimed that Mrs. Lynch had executed a will dated 15.8.87 in his favour and she did so on account of the fact that he was living in the same Bunglow and was known to her for the last two decades. It was also pleaded that she was managing her affairs and performed the last rites. The respondents herein vehemently opposed the application under Section 276 of the Act at the instance of the appellant herein. They denied the execution of the will dated 15.8.87. They also disputed the fact that the appellant lived with Mrs. Lynch. They also pleaded that Mrs. Lynch was not in fit condition to execute the will. 'They also took the stand that the will was got executed through Shri Jagdish Tiwari, Advocate who was on friendly terms with the appellant and the attesting witnesses.
3. The Court of first instance accepted the will dated 18.6.83 as validly executed and attested, and accordingly granted probate to the respondents. He did not accept the will dated 15.8.87 and held it to be a suspicious document. It is to be noticed here that the appellant preferred Misc. Appeal No. 146/94 challenging the order passed in Misc. Judicial Case No. 70/87 and later on paid the Court Fee and challenged both the orders passed by the learned Additional District Judge.
4. It is relevant to state at this juncture that the original will dated 18.6.83 was not found during the pendency of the Misc. Appeal and by order dated 9.11.96 a learned Judge of this Court ordered an enquiry in the matter. On the enquiry it was found that the original will was kept in the record of the case and entire record was sent to this Court. The learned Judge has dealt with this aspect and has observed that on account of negligence of the officers of the Court the will was lost. The learned Judge has also opined that the probate can be granted on the basis of the photocopy of the will and has referred to Section 237 of the Act. He has also observed that the original will was produced before the trial Court in Misc. Judicial Case No. 70/87 and was marked as Annexure A-1'. Eventually, the learned Judge has held that the will was in existence on record till the date of passing of I1nal order on 15.2.94.
5. The learned Judge after scrutiny of the evidence in detail has come to hold that the will dated 18-6-83 was executed by the testatrix in favour of the respondents was proved to have been written in her own hand-writing, and was signed in presence of Mr. and Mrs. Laughran, Mr. Jones and Mr. Cardis and, therefore, the will had been duly attested. The learned Judge has placed reliance on the evidence of AW-6, David Laughran and Chandramaya Laughran, PW 7 and had concluded that there held been complete corroboration by the witnesses who have standing in the society. The learned Judge has also observed that the appellant did not seriously dispute the execution and attestatio
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