1987 Supreme(MP) 607

IN THE HIGH COURT OF MADHYA PRADESH
T.N. Singh, J.
Ramkishan - Appellant
Vs.
Jankidevi - Respondent
M.A. No. 148 of 1978 (G)
Decided On : 03-09-1987

Headnote:(1) Registration Act, 1908 – S.38(1) – testator of will suffering bodily injury – will may be registered at hospital – certificate of fitness by doctor – not necessary.

       (2) Registration Act, 1908 – S.41(1) – will may be registered like any other document – can also be registered on commission.

       (3) Evidence Act, 1872 – S.114(e) – official acts – may be presumed to be done in good faith and in accordance with law.

       (4) Will – duly registered and proved by attesting witnesses – statement of testator to be regarded as sacro sanct – heavy burden of proof lies to challenge genuineneS.

        Short Note

       The objection of Shri Sharma to the acceptance of the evidence of (P.W.2) is that although the will, Ex.P – 2, was registered at the hospital, the Sub – Registrar did so without obtaining certificate from the doctor about the mental fitness of the testator. It is also his submission that the document having been registered on commission, there must be valid reason for the Sub – Registrar to do so. The Sub – Registrar (P.W.5) in his evidence deposed that on an application being filed for registration on commission the document (Ex.P – 2) was registered and he further stated that there was entry to that effect in the registration – register of receipt of the commission – fee. True, it is that no application was produced by him but that would not discredit the evidence of the official witness who was deposing from reliable official records like Register of Registration which he had brought with him. He also categorically stated in his evidence is that on being satisfied about the mental fitness of the testator he accepted the document from her for registration and effected registration in accordance with law.

       2. Held: Reference in this connection may be made to relevant provisions on the specific subject of presenting wills for registration. According to Section 41(1) of the said Act the only legal requirement to be satisfied is Registering officer's personal satisfaction that the will was executed by the testator as it could be "registered in the same manner as any other document". There is no requirement that a will cannot be registered on commission or that a doctor must certify to the mental fitness of the testator presenting the will for registration. According to Section 38(1) a person suffering from "bodily infirmity." need not appear before the Registering Officer and the Registering Officer goes to his house to effect registration of any document Indeed, official acts must be presumed to be done in good faith and in accordance with law unless the contrary is proved as per Section 114(e) of the Evidence Act. No circumstances are proved in this case to take the view that the Sub – Registrar entered into collusion with any of the parties and that the will was registered on presentation at the Hospital without completion of the formality of taking doctor's permission therefor, despite the fact that the categorical suggestion to that effect was denied. Indeed, there is nothing to suggest that the testator lacked mental capacity in any manner to understand the content of the document executed and registered or the effect of execution or registration of the will. Though the testator was an indoor patient in the hospital there is nothing to show that she was seriously ill or that she was counting her last hours and was on the verge of death.

       3. What is on recorded rather is that she lived long enough to execute another document, Ex.P – 1, which was also duly registered. While Ex.P – 2 was registered on 1 – 9 – 1971, Ex.P – 1 was registered on 3 – 1 – 1974. True, it is that Ex.P – 2 cannot be considered also as a will for the purpose of grant of probate thereof but the fact is that in Ex.P – 1 also the testator repeated essentially the same intention which actuated her in executing the will, Ex.P – 2. Though by this document she purported to adopt the appellant, Ramkishan, as her son she declared in clear and categorical terms that after her death the appellant would be entitled to claim her moveable and immoveable properties, including her dues from her employers. There are described in Ex.P – 1 important surrounding circumstances which also impel me to take the view that the will propounded (Ex.P – 2) by appellant – Ramkishan, was not forged but it was a genuine document. There is statement in the document to the effect that after three months of her marriage she was deserted by her husband who had taken a second wife and that she lived separately and took up service in the hospital to maintain herself. Respondent Banmali in his evidence admitted the fact that he had taken a second wife and he had children through her though he denied at the same time in his evidence that Jugrani was not living with him or that he had divorced her. True, he also deposed that he had performed the last rites of Jugrani on her death and of both facts (D.W.2), Dhaniram, also deposed to support him. What is, however, to be read in Ex.P – 2, also which I have accepted as a true and genuine document, totally belies the important statement of these two witnesses. Indeed, he stated in Ex.P – 2 the facts and circumstances leading to the execution thereof in the same manner as in Ex.P – 1. She stated that though she had been married to Banmali, latter had thrown her out from the matrimonial home and had taken a second wife, through whom he had children. That she was compelled to take up employment and had started working in the Hospital to maintain herself is the fact which she stated in both Exs.P – 1 and P – 2. The evidence of other witnesses who deposed for the appellant and supported his case is not necessary to be read after Ex.P – 2 is accepted as a true and genuine document. I would attach more importance to the statement of the testator herself, which has to be regarded sacro sanct.

       4. What I would like to emphasize in this case is that when a registered will is propounded, burden rests on one who challenge genuineness of the will on the footing that registration was procured collusively, because of the statutory presumption attached to official acts being done in accordance with the law. Indeed, when such a special plea is set up, the caveater must prove facts necessary to sustain the plea. (See Surendra Pal v. Saraswati, AIR 1974 SC 1999). Shri Ramji Sharma has cited decisions of the Apex Court which I have noted but I am not convinced at all that the view taken by their Lordships militates against the view I have taken in this matter. In Ramchandra, AIR 1965 SC 354 their Lordships said that when suspicious circumstances are brought to the notice of the Court it becomes the duty of the propounder to satisfy the Court to remove the suspicion. In Surendra Pal, AIR 1974 SC 1999 it was held that the burden which rests on the propounder is discharged when he has proved that the will was signed by the testatory and he was, at the relevant time, in a sound disposing state of mind and that he understood the nature and effect of the disposition before he had put signature to the testament of his own free will in the presence of the two witnesses who attested it in his presence and in the presence of each other. Mooga Devi (AIR 1972 SC 1471) is another case on which Shri Sharma has relied on but nothing has to be read therein to take any other view in the matter. It was held that there was valuable right in the caveater to cross – examine attesting witnesses and when that right was denied it resulted in miscarries of justice. Nothing beyond that has to be read in this decision. AIR 1974 SC 1999 followed. AIR 1965 SC 354 and AIR 1972 SC 1471 distinguished. Appeal allowed.