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1995 JLJ 477
R.S. Garg, J.
Jamuna Bai and others v. Surendra Kumar and another
Misc. Appeal No. 142 of 1988; against the order of Shri V.N. Patidar, Addl. District Judge, Mhow, passed in Probate Case No.4 of 1983;
Decided on 22.3.1995.
(2) Succession Act, 1925 -- S. 63 -- will duly signed by two witnesses -- signature of deceased proved -- reading over the same in presence of all and acceptance by testator before signing also proved -- will proved. [Paras 9 & 10
(3) Evidence Act, 1872 -- S. 45 -- handwriting expert -- not having education in the language -- expert opinion being on suggestive piece of evidence rightly not relied upon. [Paras 14 & 15
(4) Succession Act, 1925 -- S. 63 -- Evidence Act, 1872 -- S. 68 -- Transfer of Property Act, 1882 -- S. 3 -- will -- duly attested by two witnesses after the signature of testator -- attestation made as per S. 3 of T.P. Act -- will is property and legally executed.
It would be clear from Ex. P-2 that the document is signed by deceased Dujain, it has been witnessed by two witnesses and thereafter Shri B.N. Tiwari has also put his signature on the document. From the evidence of PW 1 Surendrakumar, PW 2 Gordhan and PW 3 Shri B.N. Tiwari it is clear that after the deceased has put the signatures and executed the will in presence of the witnesses, the other two witnesses had put their signatures as attesting witnesses in presence of the deceased. It is further to be seen thatShri B.N. Tiwari, PW 3 has put his signatures after seeing that the executant and the other two witnesses have put their signatures on the will in presence of each other. Accordingly it is clear that the document was not only properly executed and attested by the excutant and witnesses, but in fact the evidence on record shows that it was really executed and attested. The challenge thrown by the counsel for the appellants has to be accordingly rejected. [Para 17
(5) Will -- execution and attestation validly proved -- burden shifts on the objectors to prove that will is not genuine and valid. [Para 18
(6) Will -- testator dying after 45 days of the execution -- unfit condition of testator not proved -- execution cannot be doubted. 1992 (1) MPWN 161 distinguished. [Para 19
(7) Hindu Succession Act, 1956 -- S. 30 -- interest in the joint Hindu Property -- can be disposed of by will. [Para 20
(8) Will -- can be executed in favour of a person not professing the religion of testator -- there is no such embargo on the power of executant to give the property to a person following his religion only. [Para 21
(9) Succession Act, 1925 -- Ss. 279 and 276 -- petition for letter of administration or succession certificate -- provision under S. 279 is not mandatory but directory only -- failure to mention in petition about previous proceedings in the matter -- does not warrant dismissal of the petition itself.
It is not mandatory but it merely directs for the convenience of the Court that a party should make such statement in the petition that the said document was never the subject matter of some earlier proceedings in relation to the grant of probate nor the property which is sought to be claimed under the said document was subject matter of some other proceedings, in relation to succession. It would be seen further that in the instant case though there were no statements made by the propounder of the will that no application has been made to any other Court for probate of the same will of the same estate, but the evidence on record does show that there was no other application. It is not the case of the appellants that the said will was subject matter of some probate proceedings or were used for obtaining the letters of administration before some competent Court in relation to the same estate. In absence of such allegations or proof on the part of the appellants-objectors it cannot be held that absence of these pleadings would come in the way of the propounder of the will and non-observance of S. 279 would be fatal to the very maintainability of the petition. [Para 23
(10) Succession Act, 1925 -- S. 281 -- provision for verification of pleading under -- is only directory -- propounder of the will has no authority to compel attesting witness to verify pleading.
A pleading must be verified by a party or by some other person acquainted with the facts of the case, a petition for a probate is, however, required to be verified by an attesting witness. A petitioner for probate has no legal authority over an attesting witness and cannot compel him to verify the petition. A petitioner may be bound to get the petition verified, but an attesting witness is not bound to verify it at his instance and such a petitioner would be helpless if the latter for any reason refuses to verify it even though it contains nothing but the facts. 1993 (2) MPJR 264 distinguished. AIR 1923 Nag. 41 and AIR 1955 Nag. 329 relied on. [Para 26
(11) Succession Act, 1925 -- S. 281 -- intention of legislature behind provision -- is to avoid initiation of proceeding on forged will -- attesting witness signing petition for letter of administration -- sufficient -- form in provision is also directory. [Para 27
(12) Succession Act, 1925 -- S. 2 (h) -- will -- its execution, attestation and being genuine clearly proved -- will is admissible.
A propounder is required to clear the suspicion with clear and satisfactory evidence. In the instant case the propounder of the will has not only proved merely the execution of the will or its attestation but has proved that the will was genuine, it was executed by the deceased and there was no circumstance creating a cloud on the genuineness of the will. (1990) 3 SCC 364 discussed. [Paras 28 & 29
¼1½ mÙkjkf/kdkj vf/kfu;e] 1925 && /kkjk 2 ¼t½ && ;Fkk ifjHkkf"kr foy && vFkZ gS olh;rdrkZ dk mldh e`R;q ds i‘pkr~ mldh laifÙk ds laca/k esa mlds vk‘k; dh fof/kd ?kks"k.kk && la;qDr laifÙk esa va‘k fn;k tk ldrk gS && nLrkost dks laiw.kZrk esa i<+k tkuk pkfg, && olh;rdrkZ dh ekrk ds funs‘kkuqlkj fu"ikfnr foy && vfof/kekU; ugha gSA ¿ iSjk 8 ¼2½ mÙkjkf/kdkj vf/kfu;e] 1925 && /kkjk 63 && foy nks lkf{k;ksa }kjk lE;d~ :i ls gLrk{kfjr && e`rd ds gLrk{kj lkfcr && lc dh mifLFkfr esa mldk i<+k tkuk rFkk gLrk{kj djus ds iwoZ olh;rdrkZ }kjk Lohdkj dh tkuk Hkh lkfcr && foy lkfcr gqbZA ¿ iSjk 9 ,oa 10 ¼3½ lk{; vf/kfu;e] 1872 && /kkjk 45 && gLrys[k fo‘ks"kK && ml Hkk"kk esa f‘kf{kr ugha && fo‘ks"kK jk; lalwpd lk{; ij vk/kkfjr gksus ds dkj.k Bhd gh voyafcr ughaA ¿ iSjk 14 ,oa 15 ¼4½ mÙkjkf/kdkj vf/kfu;e] 1925 && /kkjk 63 && lk{; vf/kfu;e] 1872 && /kkjk 68 && laifÙk varj.k vf/kfu;e] 1882 && /kkjk 3 && foy && olh;rdrkZ ds gLrk{kj ds i‘pkr~ nks lkf{k;ksa }kjk lE;d~ :i ls vuqizekf.kr vuqizek.ku laifÙk varj.k vf/kfu;e dh /kkjk 3 ds vuqlkj fd;k x;k && foy leqfpr rFkk fof/kd :i ls fu"ikfnrA izn‘kZ ih&2 ls ;g Li"V gS fd nLrkost e`rd nqtbZa }kjk gLrk{kfjr gS] nks lkf{k;ksa }kjk lkf{kr gS rFkk rRi‘pkr~ Jh ch-,u- frokjh us Hkh nLrkost ij vius gLrk{kj fd, gSaA v lk 1 lqjsUnzdqekj] v lk 2 xks/kZu rFkk v lk 3 Jh ch-,u- frokjh ds lk{; ls ;g Li"V gS fd e`rd }kjk lkf{k;ksa dh mifLFkfr esa gLrk{kj rFkk foy fu"ikfnr djus ds i‘pkr~] vU; nks lkf{k;ksa uq vuqizek.ku lkf{k;ksa ds rkSj ij e`rd dh mifLFkfr esa vius gLrk{kj fd, FksA blds vfrfjDr izdV gS fd Jh ch-,u- frokjh] v lk 3 }kjk] ;g ns[kus ds i‘pkr~ fd fu"iknd rFkk vU; nks lkf{k;ksa us ,d&nwljs dh mifLFkfr esa foy ij gLrk{kj fd, gSa] gLrk{kj fd, x,A rnuqlkj ;g Li"V gS fd fu"iknd rFkk lkf{k;ksa }kjk nLrkost u dsoy leqfpr rkSj ij fu"ikfnr vkSj vuqizekf.kr fd;k x;k] vfirq oLrqr% vfHkys[k ds lk{; ls nf‘kZr gS fd og okLro esa fu"ikfnr rFkk vuqizekf.kr fd;k x;kA vihykFkhZx.k ds dkmUlsy }kjk fd;k x;k vk{ksi rnuqlkj ukeatwj djuk iM+sxkA ¿ iSjk 17 ¼5½ foy && fu"inu rFkk vuqizekku fof/kekU;r% lkfcr && foy vlyh rFkk fof/kekU; ugha gS ;g lkfcr djus dk Hkkj vk{ksidrkZvksa ij vk tkrk gSA ¿ iSjk 18 ¼6½ foy && fu"iknu ds 45 fnu i‘pkr~ olh;rdrkZ dh e`R;q && olh;rdrkZ dh vLoLFk v‘kk lkfcr ugha && fu"iknu ij lansg ugha fd;k tk ldrkA 1992 ¼1½ e-iz- ohDyh uksV~l 161 izHksfnrA ¿ iSjk 19 ¼7½ fganw mÙkjkf/kdkj vf/kfu;e] 1925 && /kkjk 30 && vfoHkkftr fganw laifÙk esa fgr && foy }kjk O;uu fd;k tk ldrk gSA ¿ iSjk 20 ¼8½ foy && olh;rdrkZ ds /keZ dks ugha ekuus okys O;fDr ds i{k esa fu"ikfnr dh tk ldrh gS && olh;rdrkZ dh ‘kfDr ij ,slk dksbZ vf/kjks/k ugha gS fd og mlds /keZ dks ekuus okys O;fDr dks gh laifÙk nsA ¿ iSjk 21 ¼9½ mÙkjkf/kdkj vf/kfu;e] 1925 && /kkjk 279 rFkk 276 && iz‘kklu i= vFkok mÙkjkf/kdkj izek.ki= ds fy, vthZ && /kkjk 279 ds v/khu mica/k vkKkid ugha vfirq ek= funs‘kkRed gS && ekeys esa iwfoZd dk;Zokgh ds laca/k esa vthZ esa mYys[k u fd;k tkuk && Lo;a vthZ dh [kkfjth dk leqfpr vk/kkj ugha gSA og vkKkid ugha gS vfirq og U;k;ky; dh lqfo/kk ek= ds fy, funs‘k djrk gS fd fdlh i{kdkj }kjk vthZ esa ,slk dFku fd;k tkuk pkfg, fd dfFkr nLrkost izkscsV dh eatwjh ds laca/k esa fdlh iwfoZd dk;Zokgh dh fo"k;oLrq dHkh ugha Fkk u gh dfFkr nLrkost ds v/khu nkok ds fy, bZfIlr laifÙk] mÙkjkf/kdkj ds laca/k esa] fdlh vU; dk;Zokgh dh fo"k;oLrq FkhA blds vfrfjDr ;g nf‘kZr gS fd bl ekeys esa ;|fi izfriknd }kjk dksbZ dFku ugha fd, x, Fks fd mlh laink dh foy ds izkscsV ds fy, fdlh vU; U;k;ky; esa dksbZ vkosnu ugha fd;k x;k gS] fdarq vfHkys[k ds lk{; nf‘kZr gS fd dksbZ vU; vkosnu Hkh ugha FkkA vihykfFkZ;ksa dk ;g i{kdFku ugha gS fd dfFkr foy fdlh izkscsV dk;Zokgh dh fo"k;oLrq Fkh vFkok mlh laink ds laca/k esa iz‘kklu i= izkIr djus ds fy, fdlh U;k;ky; ds le{k ykbZ xbZ FkhA vihykFkhZ&vk{ksidrkZ dh vksj ls ,sls vfHkdFkuksa vFkok lcwr ds vHkko esa ;g vfHkfu/kkZfjr ugha fd;k tk ldrk fd bu vfHkopuksa dk vHkko foy ds izfriknd dh jkg esa ck/kk Mkysxk rFkk /kkjk 279 dk vuuqikyu vthZds pyk, tkus esa ?kkrd gksxkA ¿ iSjk 23 ¼10½ mÙkjkf/kdkj vf/kfu;e] 1925 && /kkjk 281 && vfHkopu ds lR;kiu dk mica/k && ek= funs‘kkRed gS && foy ds izfriknd dks vuqizek.ku lk{kh dks vfHkopu lR;kfir djus ds fy, ck/; djus dk dksbZ izkf/kdkj ugha gSA dksbZ vfHkopu fdlh i{kdkj vFkok ekeys ds rF;ksa ls voxr fdlh vU; O;fDr }kjk lR;kfir gksuk pkfg,] izkscsV dh vthZ] rFkkfi] vuqizek.ku lk{kh }kjk lR;kfir dh tkuk visf{kr gSA izkscsV ds vthZnkj dk vuqizek.ku lk{kh ij dksbZ fof/kd izkf/kdkj ugha gS rFkk og mls vthZ ds lR;kiu ds fy, ck/; ugha dj ldrkA vthZnkj vthZ lR;kfir djkus ds fy, vkc) gS] fdarq vuqizek.ku lk{kh mlds dgus ls lR;kfir djus dks vkc) ugha gS rFkk ,slk vthZnkj vlgk; gks tk,xk ;fn i‘pkr~dfFkr O;fDr fdlh dkj.k ls mls lR;kfir djus ls bUdkj dj nsrk gS tcfd mlesa rF; ls vU;Fkk dqN ugha gksA 1993 ¼2½ ,e ih ts vkj 264 izHksfnrA , vkb vkj 1923 ukxiqj 41 rFkk , vkb vkj 1955 ukxiqj 329 voyafcrA ¿ iSjk 26 ¼11½ mÙkjkf/kdkj vf/kdkj vf/kfu;e] 1925 && /kkjk 281 && mica/k ds ihNs fo/kku&eaMy dk vk‘k; && dqVjfpr foy ij dk;Zokgh pyk, tkus ls cpko dk gS && iz‘kklu i= dh vthZ ij vuqizek.ku lk{kh ds gLrk{kj && i;kZIr gSa && mica/k esa iz:i Hkh funs‘kkRed gSA ¿ iSjk 27 ¼12½ mÙkjkf/kdkj vf/kfu;e] 1925 && /kkjk 2 ¼t½ && foy && mldk fu"iknu] vuqizek.ku rFkk vlyh gksuk Li"Vr% lkfcr && foy xzkâ gSA iziknd }kjk Li"V rFkk lek/kkuizn lk{; }kjk lansg nwj fd;k tkuk visf{kr gSA bl ekeys esa foy ds izfriknd us u dsoy foy dk fu"iknu vFkok vuqizek.ku lkfcr fd;k gS vfirq lkfcr fd;k gS fd foy vlyh Fkh] og e`rd }kjk fu"ikfnr dh xbZ Fkh rFkk foy dh vlfy;r dks nwf"kr djus okyh dksbZ ifjfLFkfr ugha FkhA ¼1990½ 3 ,l lh lh 364 foosfprA ¿ iSjk 28 ,oa 29
Key Points: - A will is defined as a legal declaration of the intention of a testator with respect to his property after his death (!) . - A will executed as per the directions of the testator's mother is not invalid (!) . - A will duly signed by two witnesses, with the signature of the deceased proved, and read over in the presence of all and accepted by the testator before signing, is considered proved (!) . - The opinion of a handwriting expert who lacks education in the language and whose opinion is based on suggestive evidence is rightly not relied upon (!) . - A will duly attested by two witnesses after the signature of the testator, with attestation made as per Section 3 of the Transfer of Property Act, is considered properly and legally executed (!) . - The burden shifts to the objectors to prove that a will is not genuine and valid once its execution and attestation are validly proved (!) . - The testator dying after 45 days of execution does not automatically render the execution doubtful if the unfit condition of the testator is not proven (!) . - An interest in joint Hindu property can be disposed of by a will under Section 30 of the Hindu Succession Act, 1956 (!) . - A will can be executed in favor of a person not professing the religion of the testator; there is no embargo on this power (!) . - Provisions under Section 279 of the Succession Act regarding prior proceedings are directory, not mandatory, and failure to mention them does not warrant dismissal of the petition (!) . - The provision for verification of pleadings under Section 281 of the Succession Act is directory, and the propounder of the will has no authority to compel an attesting witness to verify the pleading (!) . - The intention of the legislature behind Section 281 is to avoid initiation of proceedings on forged wills, and the attesting witness signing the petition for letter of administration is sufficient; the form is also directory (!) . - A propounder is required to clear suspicion with clear and satisfactory evidence, proving the will is genuine and executed by the deceased without circumstances creating a cloud on its genuineness (!) . - The freedom to bequeath property amongst Hindus is absolute, including to a stranger (!) . - The interest of a male Hindu in Mitakshara co-parcenary property is deemed capable of being disposed of by will (!) . - The appeal was dismissed, but there was no order as to costs (!) .
1. This miscellaneous appeal under S. 299 of the Indian Succession Act has been filed by some objectors against the order dated 4.7.1988 passed in Probate Case No.4 of 1983 by the learned Additional Judge, Mhow to the Court of District Judge, Indore, rejecting the objectings filed by the objectors and granting the probate certificate on the application of respondent No.1 filed under S. 276 of the Indian Succession Act.
2. The respondent No.1 filed an application under S. 276 of the Act alleging therein that deceased Dujain, who was the real elder brother of respondent No. 1, executed a will on 20th April, 1976 in favour of the respondent No. 1 whereunder the properties were bequesthed in favour of the respondent No. 1. It was further averred that Dujai having expired on 5.6.76, the respondent No.1 has succeeded to the property. According to the respondent No.1 the properties described in the will would be succeeded by him which include moveables and immoveables. The application was filed in the year 1977 and a public notice was issued in daily newspaper 'Swadesh'. As no objections were received, by order dated 12.8.77 granting the application of respondent No.1 a probate certificate was issued in his favour. But later on certain objections were filed on which M.J.C. No. 94 of 77 was registered and in view of the final order passed in M.J.C. No. 94 of 77 the probate proceedings were reopened. The objectors filed their objections against the grant of the Certificate alleging therein that the alleged will is sham, bogus and is a result of forgery; it has not been signed or executed by deceased Dujain, but in fact the respondent No.1, to grab the property of deceased Dujain and mar upon the rights of the other successors has, concocted the said will. They also submitted that the alleged will in fact does not fall within the definition of the last testamentary disposition of the deceased but in fact is declaration of the rights as also is a partition deed. As the same is not on proper stamps it is inadmissible in evidence.
3. Contending further it was submitted that the deceased was residing with objector Chhotelal who not only maintained him, got his eyes operated and spent a sum of Rs. 2,000/- on the last rituals of deceased Dujain. It was also submitted that after marrying a Christian girl the respondent No.1 has ceased to be a Hindu and is professing Christianity. According to the objectors the deceased in his last days became a drunkard, suffered with bad vision and his mental condition also deteriorated. Various other legal objections were raised and it was submitted that the will was not properly attested and the application under S. 276 was not in accordance with S. 279 and 281 of the Act.
4. The trial Court recorded the statements of the witnesses, received the documents in evidence, and after hearing the parties by its impugned judgment dated 4.7.88, rejecting the objections held that the document in fact is a will and is not a document under which rights were declared. It also found that the execution and attestation of the will was properly and legally proved, the will is not invalid though it relates to the Joint family property and the deceased was not in a good condition of disposition when he executed the will. Accordingly rejecting the objections it ordered grant of probate certificate with costs.
5. Shri B.K. Joshi appearing for the appellants contended that the order passed by the trial Court is patently illegal and deserves to be set aside. He submitted that (a) the document is not a will, (b) the execution and attestation of the will is not legally proved, (c) the will is shrouded with clouds of doubtful circumstances, (d) a will in relation to the joint family property could not be executed, (a) there was a very short time gap between the execution of the alleged will and the death which shows that the deceased was not in a fit mental condition, (f) the respondent No.1 after marrying a Christian girl has
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