PETITIONER:
JASWANT KAUR
Vs.
RESPONDENT:
AMRIT KAUR & ORS.
DATE OF JUDGMENT25/10/1976
BENCH:
CHANDRACHUD, Y.V.
GOSWAMI, P.K.
GUPTA, A.C.
CITATION:
1977 AIR 74 1977 SCR (1) 925
1977 SCC (1) 369
ACT
Indian Succession Act, 1925---Sec. 63 legal will--Genu-
ineness of--Suspicious circumstances--Burden of
proof--Degree of proof
HEADNOTE
S. Gobinder Singh Sibia was possessed of a large
estate valued at about Rs.15 lacs at the time of his death
in the year 1954. He had two wives Gulab Kaur and Dalip
Kaur. Dalip Kaur predeceased him leaving a son and a
grandson named Surjit. After the death of S. Gobinder
Singh, Gulab Kaur filed a suit for maintenance, claiming
alternatively a one-half share in the estate left by her
husband. Surjit contested the said suit. After the institu-
tion of the suit, the Hindu Succession Act, 1956, came into
force on June 17, 1956 upon the plaintiff giving up her
claim for maintenance and restricting her suit to a half
share in her husband’s estate, the defendant made an appli-
cation for amending his written statement and pleaded that
S. Gobinder Singh had executed a will in the year 1945
bequeathing practically the entire estate in his favour and
leaving a small life interest in favour of the plaintiff.
The amendment application was flied in March, 1958, after
the plaintiff’s evidence was over. The Trial Court decreed
the plaintiffs suit and .held that the plaintiff was enti-
tled to a half share in the estate left by Gobinder Singh
and that the defendant had failed to prove the will. In an
appeal flied by the defendant the High Court set aside the
Judgment of the Trial Court and dismissed the plaintiff’s
suit. The High Court held that will was duly established.
1. Allowing the appeal,
Held: (a) In cases where the execution.of a
will is shrouded i.n. suspicion its proof
ceases to be a simple lis between the plain-
tiff and the defendant. What generally is an
adversary proceeding becomes in such cases a
matter of the court’s conscience. 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 suspicions before the document can
he accepted as the last will of the testator.
[929 C-F, 930 C-D]
(b) A will has to be proved like any other
document by applying the usual test of the
satisfaction of the prudent mind. [929 F]
(c) Since section 63 of the Succession Act
requires a will to be attested it cannot be
used as an evidence until at least one of the
attesting witnesses is examined, if available.
[929 G]
(d) 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 was executed. That circumstance intro-
duces a certain amount of solemnity in proof
of testamentany instruments. [929 H, 930 A]
R. Venkatachala lyengar v.B.N. Thimrnajamma & Others [1959]
Supp. 1 S.C.R. 426, followed.
2. The testator was a man of property and occupied a high
position in society. A genuine will of such a person is not
likely to suffer from the loop-holes and infirmities which
may beset an humbler testamentany instrument.
[931 D, H,932 A]
3. The following circumstances throw a cloud of suspi-
cion on the making of the will by Gobinder Singh:
926
(i) The will is alleged to have been made
in 1945 but it did not see the light of the
day till 1957. It is unacceptable that a
document by which property worth lacs of
rupees was disposed of could have remained a
closely guarded secret from intimate friends
and relatives and from the sole legatee him-
self for over 21/2- years after the testator’s
death. [932 A-B]
(ii) The testator had left behind him a
large property and along with it large amount
of litigation which makes it impossible to
believe that upon his death no one bothered to
go through his papers.The explanation of the
defendant that he stumbled upon the will by
chance while going through some papers of his
grandfather is patently lame and unacceptable.
[932 B-D]
(iii) The defendant came out with the
theory of will after the Hindu Succession Act
of 1956 came into force as a result of which
the plaintiff would become an absolute owner
of the property that would fall to her share
as the heir of her husband.[932 G-H, 933 A-B]
(iv) The will was typed Out on both sides
of a single foolscap.paper and was obviously
drafted by a lawyer. No evidence was led as
to who drafted the will and who typed it out.
[933 B-C]
(v) The will was attested by two persons,
both of whom were strangers to the testator’s
family and neither of whom could give a proper
account of the execution of the will. In
fact they contradicted each other. [933 C-H]
(vi) The two persons who are alleged to
have been appointed executors were not exam-
ined, though available. Normally, the execu-
tors are not appointed without their consent
or consultation. [934 A-C]
(vii) The will is unnatural and unfair. [934
C]
(viii) The will does not make mention of
many of the near relations and descendants of
the testator. [934 D-F]
(ix) The plaintiff was excluded as an heir
of the testator for the supposed reasons that
she had brought disgrace to the Sibia family
and that her behaviour was such as would not
even bear a mention in the will. No evidence
was led on the misconduct of the plaintiff.
[934 F-G]
(x) The defendant in his evidence did not
offer any explanation any of the suspicious
circumstances. [934 G]
4. The High Court merely recited a few facts mechanical-
ly and without going into the suspicious circumstance
accepted the will as genuine. The High Court did not apply
the rule as to the burden of proof which governs the testa-
mentary proceedings, as set out in the decision of this
Court in lyengar’s case to which reference was made in the
Trial Court’s Judgment. [838 F-H]
JUDGMENT
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1360 of 1975.
(From the Judgment and Order dated 12-3-1975 of the Punjab &
Haryana High Court in Regular First Appeal No. 315/64).
V.M. Tarkunde, E.C. Agrawala and Miss N. Tarkunde for
the, appellant.
Bishan Narain, and Mrs. Urmila Sirur for respondent No. 1.
Hardev Singh and R.S. Sodhi, for Respondent No. 2.
The Judgment of the Court was delivered by
CHANDRACHUD, J.--Sardar Gobinder Singh Sibia who was
possessed of a large estate died on December 15, 1954 at the
age of about 70.
927
He had taken two wives, Gulab Kaur and Dalip Kaur. The story
of his life follows the familiar pattern--the pretext of a
disagreement with the unwanted wife, special favours for the
favourite and jealous rivalries between the children born of
the two.
The following pedigree will facilitate a better under-
standing of the issues involved in me case :--
Tara Singh Sibia
:
Ratan Singh
:
:
Gulab Kaur Gobinder Singh Dalip Kaur
(Plaintiff) (Died--15-12-1954) pre-deceased her husband)
(Died--1959)
: :
:
: :
Jaswant Kaur- ....................
(Appellant) Guraprakash Kaur Gurbachan Sin gh
pre-deceased his fat her)
Joginder Kaur (Died 1971 )
:
:
Arrit Kaur = Surjit Inder Singh Palvinder Kaur
(Respondent1) (Defendant) (Respondent 5)
(Died--1968)
: : :
Gobinder Singh Surinder Singh Gopal Inder Singh
(Respondent 2) (Respondent 3) (Respondent 4)
After the birth of the appellant Jaswant Kaur, Gulab Kaur
started living or as the story goes, was compelled to live
with her parents. Dalip Kaur had given birth to a daughter
Guraprakash Kaur and a son Gurbachana Singh. Gurbachan died
during the life-time of his father Gobinder Singh, leaving
behind his widow Joginder Kaur who died in 1971. Gurbachan
Singh and Joginder Kaur gave birth to two children, a son
Surjit Inder Singh and a daughter Palvinder Kaur. Surjit
Inder Singh died in 1968 leaving behind a widow Amrit Kaur
and three sons.
On May 22, 1956 which was about a year and a half after
the death of Sardar Gobinder Singh, his widow Gulab Kaur
filed a suit in forma pauperis claiming maintenance @ Rs.
1000/- per month or in the alternative a one-half share in
the properties left by her husband. Her co-wife’s grandson
Surjit Inder Singh was the defendant to the suit. He filed
his written statement on January 5, 1957 contending that the
plaintiff had deserted her husband and that she was neither
entitled to maintenance nor to any share in his estate. On
these pleadings the trial court struck issues in the suit on
February 1, 1957. At the end of her evidence on August 17,
1957 the plaintiff gave up her claim for maintenance and
stated that she wanted a one-half share in her husband’s
estate. The hearing of the suit was adjourned by the learned
trial Judge to August 24, for recording defendant’s evi-
dence.
928
In the meanwhile, on. August 20, the defendant filed an
application asking for permission to produce a will stated
to have been made by Sardar Gobinder Singh, on November 26,
1945. The learned District Judge, Sangrur, who was then
seized of the suit rejected that application and refused to
allow the defendant to amend his written statement. That
order was, however, set aside in revision by the Punjab.
High Court which directed the trial court to allow the
defendant to amend Iris written statement and to produce his
father’s alleged will. On March 8, 1958 the defendant
amended his written statement contending that by the will,
his father had left almost the entire property to him and
that the plaintiff Gulab Kaur was not entitled to any share
in the property under the will. In June, 1958 the plaintiff
filed a formal application seeking leave to amend her plaint
giving up her claim for maintenance and asking for a one-
half share in the properties of her deceased husband. Fresh
issues were thereafter framed on the basis of the amended
pleadings. On March 10, 1959 the plaintiff died and her
daughter, Jaswant Kaur, who is the appellant before us, was
brought on the record as her legal representative.
The suit was tried eventually by the learned Senior
Sub-Judge, Sangrur, who by his judgment dated June 29, 1964
decreed it. The learned Judge held that the defendant who
set up the will had failed to prove that it was the last
will and testament of his grand-father Gobinder Singh and
alternatively, that even on the assumption that the will was
proved, it must be deemed to have been revoked on account of
certain dispositions made by the testator after the making
of the will. This alternative conclusion that the will
stood revoked by implication is clearly unsupportable and
the appellant, who disputes the will, did not urge that
consideration before us. The revocation of an unpriviledged
will is an act only a little less solemn than the making of
the will itself and has to comply with statutory require-
ments contained in section 70 of the Succession Act.
Holding that the defendant had failed to discharge his
onus of proving the will, the trial court granted to the
plaintiff a decree for a one-half share in the properties of
her husband. In doing this, the Court relied on "overwhelm-
ing documentary evidence" showing that according to the
custom by .which the parties were governed, a sonless widow
was entitled to a one-half share in the estate of her hus-
band, as an equal sharer with the male progeny born of a
co-wife. That the parties were governed in this matter by
customary law was "openly conceded" in the trial court, the
point of dispute being restricted on this point to ’the
question as to what in fact was the custom. It was common
ground before us that if the will goes, the plaintiff will
be entitled to a half share in the estate of her husband
Gobinder Singh.
Aggrieved by the judgment of the trial court, the de-
fendant Surjit Inder Singh filed First Appeal No. 315 of
1964 in the High Court of Punjab and Haryana. During the
pendency of the appeal, the defendant died on October 22,
1968 and his widow Amrit Kaur, her three sons, and his
sister Palvinder Kaur were brought on the record as his
legal representatives. They are respondents 1 to 5 to this
appeal. By its judgment dated March 12, 1975 the High Court
set aside the judgment
929
the trial court, allowed the appeal and dismissed the
plaintiff’s suit. The High Court has held, or appears to
have held, that the will was duly established. Since the
will excludes the plaintiff as a sharer in the testator’s
estate, the suit had to fail, custom or no custom. This
appeal by special leave is directed against the judgment of
the High Court.
The defendant who is the principal legatee and for all
practical purposes the sole legatee under the will, is also
the propounder of the will. It is he who set up the will in
answer to the plaintiff’s claim in the suit for a one-half
share in her husband’s estate. Leaving aside the rules as
to the burden of proof which are peculiar to the proof of
testamentary instruments, the normal rule which governs any
legal proceeding is that the burden of proving a fact in
issue lies on him who asserts it, not on him who denies it.
In other words, the burden lies on the party which would
fail in the suit if no evidence were led on the fact alleged
by him. Accordingly, the defendant ought to have led satis-
factory evidence to prove the due execution of the will by
his grand-father Sardar Gobinder Singh.
In cases where the execution of a will is shouded in
suspicion, its proof ceases to be a simple lis between the
plaintiff and the defendant. What, generally, is an adver-
sary proceeding becomes in such cases a matter of the
court’s conscience and then the true question which arises
for consideration is whether the evidence led by the pro-
pounder of the will is such as to satisfy the conscience of
the court that the will was duly executed by the testator.
It is impossible to reach such satisfication unless the
party which sets up the will .offers a ’cogent and convinc-
ing explanation of the suspicious circumstances surrounding
the making of the will.
There is a long line of decisions bearing on the nature
and standard of evidence required to prove a will. Those
decisions have been reviewed in an elaborate judgment of
this Court in R. Venkatachala Iyengar v.B.N. Thirnmajamma &
Others. (1) The Court, speaking through Gajendragadkar J.,
laid down in that case the following positions :--
1. Stated generally, 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. As
in the ease of proof of other documents, so in the case of
proof of wills, one cannot insist on proof with mathematical
certainty.
2. Since section 63 of the Succession Act requires a
will to be attested, it cannot be used as evidence until, as
required by section 63 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.
3. Unlike other documents, the will speaks from the
death o[ 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.
(1) [1959] Supp. I S.C.R. 426.
930
This aspect introduces an element of solemnity in the deci-
sion 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.
4. Cases in which the execution of the will is surround-
ed 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 re-
ceives a substantial benefit and such other circumstances
raise suspicion 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 would
normally receive their due share in his estate were disin-
herited 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 suspicions before the document can be
accepted as the last will of the testator.
5. It is in connection with wills, the execution of
which is surrounded by suspicious circumstance 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.
6. If a caveator alleges fraud, undue influence, coer-
cion etc. in regard to the execution of the will, such
pleas have to be proved by him, but even in the absence of
such pleas, the very circumstances surrounding the execu-
tion’ of the will may raise a doubt as to whether the testa-
tor was acting of his own free will. And then it is a part
of the initial onus of the propounder to remove all reasona-
ble doubts in the matter.
We will now set out briefly the provisions of the will
which is dated November 26,1945. The will consists of 9
paragraphs, by the first of which the testator appointed
Sardar Kesho Ram, a Judge of the High Court of Patiala, and
Sardar Bahadur Ranjit Singh a contractor of Delhi, as execu-
tors. By paragraph 2 the testator bequeathed the whole of
his property, movable and immovable, to his grandson Surjit
Inder Singh who is the defendant in the present suit. By
paragraph 3 the testator gave to his wife Dalip Kaur a
life-interest in a house at Simla, called Kenilworth. The
testator provided by paragraph 4 that if the house was later
acquired by the Government or was sold by himself Dalip Kaur
would be entitled to receive from his estate a sum equal to
the compensation fixed in the acquisition proceedings or
equal
931
to the sale price. The amount was to be deposited in ap-
proved securities, Dalip Kaur being entitled only to the
interest thereon. On her demise, the house or the amount
in deposit was to vest absolutely in the defendant. Para-
graph 5gave to Dalip Kaur the right of residence in a
part of the house. at Sangrur, paragraph 6 gave to her the
right to use during her life-time the jewellery and orna-
ments and paragraph 7 states expressly that she will have no
right to alienate any of the properties in which she was
given a life-interest. Paragraph 8 provides that Dalip Kaur
had the right to live jointly with the defendant but in case
there were differences between them, she would be entitled
to receive from him an annual sum. of Rs. 5,000 for her
maintenance. This amount was to constitute a charge on a
land at Karmsar, District Lyallpur. Paragraph 9 of the will
recites that the plaintiff Gulab Kaur had given birth to a
daughter Jaswant Kaur in 1898, that Jaswant Kaur was married
happily in 1913 to Sardar Gurbax Singh Mansahia, that after
Jaswant Kaur’s marriage Gulab Kaur started misbehaving and
left for her parents’ house, taking jewellery worth about
Rs. 50,000 with her. It is further stated .in paragraph 9
that Gulab Kaur was "leading her life in a way which would
not bear mention here" and that therefore she did not de-
serve to get any allowance at all from the testator’s
property. The defendant was however directed to pay to her
a monthly sum of Rs. 50 for her maintenance provided that
she lived in a part of the house at Sangrur and her conduct
remained worthy of the Sibia family. Paragraph 9 expressly
mentions that Gulab Kaur would have no right to any share in
the testator’s property.
The testator, Sardar Gobinder Singh, was a man of
property and occupied a high position in society. By a
modest estimate, the property which he disposed of by his
will was of the value of rupees ten to fifteen lakhs. A
registered power of attorney (EX. D/2) which he had executed
seven months before the will on April 6. 1945 shows that he
owned extensive movable and immovable properties, had a
bank account in several banks and that various legal pro-
ceedings to which he was a party were pending in "all the
States of British India". Gobinder Singh describes himself
in the power of attorney as a "big biswedar" and
says that he had "a large business to attend to". The evi-
dence of Kartar Singh, Gurcharan Singh and Teja Singh (P.Ws.
4, 5 and 6) shows that Sardar Gobinder Singh owned over
15000 bighas of land, several houses and several cars in-
cluding a Rolls Royce. sardar Ratan Singh, the father of
Gobinder Singh, was the President of the Council of
Regency .in the erstwhile State of Jind, while Gobinder
Singh himself held "distinguished and responsible posts" in
Jind such as the Nazim, the Private Secretary to the Mahara-
ja and a Minister in his government.
It is the will of a man of such affluence and social
status which has to be judged in this case. It is not as if
the burden of proof varies with the riches and social pres-
tige of the testator but habits of life arc prone to vary
with the means of the man and the privileged few who happen
to occupy a high place in the social hierarchy have easy
access to competent legal advice. Normally therefore, a
genuine will of a propertied man. well-positioned in society
too. does not suffer from
932
the loopholes and infirmities which may understandably
beset an humbler testamentary instrument.
Circumstances are too numerous to mention which throw a
cloud of suspicion on the making of the will by Gobinder
Singh. The will is alleged to have been made on November 26,
1945 but it did not see the light of day till August 20,
1957. Being an ambulatory document, it may be granted that
there may be no occasion for anyone to know of its existence
until the death of the testator on December 15, 1954. But
it is ununderstandable that a document by which property
worth lakhs of rupees was disposed of should have remained a
closely guarded secret from the whole world of intimate
friends and relatives, nay, from the sole legatee himself,
for over 21/2 years after the testator’s death. The testa-
tor had left behind him a large property and along with it a
large amount of litigation which makes it impossible to
believe that upon his death in December 1954, no one both-
ered to go through his papers which would reflect the state
and extent of his property. The explanation of the defend-
ant that he hit upon the will by chance while going through
some papers of his grand-father is therefore patently lame
and unacceptable.
There is an ominous significance in the date on which
the defendant applied for production of the will in the
present suit. By her suit which was filed on May 22, 1956
the plaintiff Gulab Kaur had originally asked for mainte-
nance’ and in the alternative for a one-half share in the
estate of her husband. Under the Punjab customary law by
which the parties were governed, the plaintiff, being a
sonless widow. was entitled to an equal share in the proper-
ty of her husband. along with the male progeny born from a
co-wife. But the customary .law gave to the sonless widow
only a limited and not an absolute interest in the estate of
her husband. The Hindu Succession Act, 30 of 1956.came into
force on June 17, 1956 which explains why the plaintiff at
the end of her evidence on August 17, 1957 expressly gave up
her claim for maintenance and restricted her demand in the
suit to a one-half share in her husband’s estate. So
long as the plaintiff was entitled only to maintenance or
to a limited interest in her husband’s property, the defend-
ant was content to meet that claim by raising pleas like
desertion and misconduct The passing of the Hindu Succes-
sion Act changed the entire complexion of the suit, raising
at least a reasonable apprehension’ that on account of the
provisions of that Act the plaintiff would become an abso-
lute owner of a part of her husband’s estate. By section 8
of the Act, the widow becomes an heir to the husband’s
estate on intestate succession, along with other heirs
mentioned in Class I of the Schedule. And by section
14(1), any property possessed by a female Hindu whether
acquired before or after the Act becomes her absolute
property subject to the provisions of sub-section (2) which
would have no application in the instant case. By reason
of section 14, the provisions of the Act have generally an
overriding effect on custom and usage. On August 17, 1957
the plaintiff’s evidence was over and the suit was ad-
journed to August 24 for defendant’s evidence. In the
meanwhile, on August 20, the defendant filed an application
stating
933
that he had accidentally discovered a will made by the
plaintiffs husband Gobinder Singh and asking for permission
to produce that will. The defendant has not stated why he
suddenly thought of examining his grand-father’s papers in
between the conclusion of the plaintiff’s evidence on the
17th and the 20th of August.His case is one of a purely
providential discovery and neither in the application for
production of the will nor in his evidence did he give the
haziest details of the discovery. We are surprised that
the High Court should have so readily accepted the story
that the defendant stumbled across the will.
The will has been typed out on both sides of a single
foolscap paper and is obviously drafted by a lawyer. No
evidence at all has been led as to who drafted the will and
who typed it out. The will uses some trite legal jargon
but it does not show where it was executed and contains no
description whatsoever of any of the extensive properties
bequeathed to the defendant.
The will has been attested by two persons called Dinshaw
H.M. Framjee and Pali Ram. It is intriguing that a person
in the position of Sardar Gobinder Singh should choose these
two strangers as attesting witnesses to a very solemn and
important document. Dinshaw Framjee was a trader in Simla
and Pali Ram was his servant. Framjee has stated in his
evidence that he did not remember where Gobinder Singh used
to stay in Simla, that he did not know for how long he was
staying in Simla before the attestation of the will, that
he was unable to state whether he had met Gobinder Singh
after the attestation of the will and that he was unable to
give the approximate time of the day when the will was
attested--forenoon, afternoon or evening. Framjee was sure
about one thing only, that he had not attested the will at
night. He attempted to say that he was on friendly terms
with the testator’s family but he was unable to give even
the approximate ages of the testator’s son and daughter.
Under the stress of cross-examination, he had to admit
eventually that he knew nothing about the testator,s family
or family affairs.
Pali Ram, the other attesting witness, did’ not remember
the date or the year of the execution of the will but said
that it was probably executed in 1945. He did not know the
testator and was a total stranger to him. Whereas Framjee
stated that the will was attested in ’his business premises
which were on the ground floor, Pali Ram says that Framjee
sent for him from the business premises to his residence,
which was on the upper floor.
The utter improbability of the testator accosting these
two strangers for getting his will attested and the funda-
mental contradictions in their evidence render it impossible
to hold that they attested the will at the instance of the
testator as alleged. A man of importance that the testator
was, he could not ever have left the validity of his will to
depend on the unpredictable attitude of unknown elements
like Framjee and Pali Ram. Pali Ram claims to have read
the will before attesting it. It iS not known why. if he
knew that the property
934
was bequeathed to the defendent, he did not, at least after
the testator’s death, inform the defendant of the existence
of the will.
By the will the testator appointed Sardar Kesho Ram, a
Judge of the High Court of Patiala and one Sardar Bahadur
Ranjit Singh as executors. Both of these persons were
fortunately available for giving evidence but neither of
them was examined in the case. Normally, executors are not
appointed without their consent or at least without a prior
consultation with them. Respondent 1, the defendant’s
widow, is the daughter of the executor Ranjit Singh. The
marriage was performed during the testator’s life-time and
we find it hard to believe that he would not disclose even
to Ranjit Singh that he had made a will appointing him as
one of the executors and that Ranjit Singh’s son-in-law,
that is to say the testator’s grandson, was the sole legatee
under that will.
The will is unnatural and unfair in more than one re-
spect. At the time that the will is alleged to have been
made, the testator had a daughter Guraprakash Kaur who was
born of Dalip Kaur and a daughter-in-law Joginder Kaur,
being the widow of the testator’s predeceased son Gurbachan
Singh who was also born of Dalip Kaur. Gurbachan Singh and
Joginder Kaur gave birth to the defendant Surjit Inder
Singh and to a daughter Palvinder Kaur. The will contains
not even a fleeting reference either to the testator’s
daughter or the widowed daughter-in-law or to the grand-
daughter Palvinder Kaur. It is urged that all of these
persons were happily placed in life and it was therefore
needless for the testator to provide for them. If that be
so, it was usually unnecessary to refer to the appellant
Jaswant Kaur who also, it is common ground, has been married
happily.
The plaintiff Gulab Kaur has been wholly excluded as an
heir of the testator for the supposed reason; that She had
brought disgrace to the Sibia family and that her behaviour
was such as would not even ’bear mention in the will. Not
only that no evidence was led to show any misconduct on the
part of Gulab Kaur but the evidence of Jaswant Kaur (P.W.2)
shows that for about 7 or 8 years prior to 1956 Gulab Kaur
had lost her eyesight. One of the issues in the suit
namely, issue No. 2, arising from the original pleadings
was whether the plaintiff was disentitled to maintenance for
the reason that she had deserted her husband. The judgment
of the trial court shows that the defendant led no evidence
in support of that issue and that during the course of
arguments, the defendant’s counsel did not press the partic-
ular issue. The plaintiff on the other hand led evidence
in rebuttal and accepting that evidence the trial court
rejected the contention that she had deserted her husband.
it seems to us difficult to believe that a person in
the position of S. Gobinder Singh who was possessed of a
large estate, would disinherit so many of his near rela-
tives including his wife Gulab Kaur and shower his bounty on
the grandson, to the exclusion of everyone else.
935
Quite a few other circumstances can be mentioned which
raise a grave suspicion as regards the making of the will
but the circumstances enumerated above are, tin our opinion,
sufficient to discard the will. The defendant in his
evidence has offered no explanation of any of these. cir-
cumstances. He has totally failed to discharge the heavy
onus which lay on him of explaining the suspicious circum-
stance surrounding the execution of the will and of estab-
lishing that the document which he propounded was the last
will and testament of his grand-father Gobiner Singh.
Learned counsel for’ the respondents contends that
the defendant did not offer any explanation of these suspi-
cious circumstances because the will was not challenged in
the trial court on the ground that its execution was shroud-
ed in suspicion. It is impossible to accept this conten-
tion because even the learned District Judge who had reject-
ed the defendant’s application for production of the will
and the consequent amendment of the written statement had
observed in his order dated September 13, 1957 that it
was inconceivable that the defendant did not know about the
will and that the possibility of :its being forged cannot be
excluded. This itself was sufficient notice to the
defendant as to the nature of the burden which he had to
discharge. Counsel for the defendant also contended that
the testator must have kept the will a closely guarded
secret because if the will was published, Gulab Kaur and her
daughter would have created some trouble. This argument,
in the context of the various facts adverted to above, has
to be rejected. The testator might have wished to keep
the will a secret from Gulab Kaur and her daughter but it is
impossible to appreciate that he would frustrate the very
object of making the will by suppressing it from the defend-
ant and from the executors, one of whom was highly placed
and the other of whom is the defendant’s father-in-law.
Frankly, though with respect, it surprises us that the
High Court should have accepted the will as genuine. It
observes: "It is evident from the above evidence that there
are no suspicious circumstances about the execution or the
contents of the will." We could have understood if the High
Court were to say that the defendant had given a valid
explanation of the suspicious circumstances surrounding the
execution of the will. But to say that there is nothing in
the case to excite the court’s suspicion and to accept the
will as genuine on that premise is wholly ununderstandable.
The High Court does not refer to a single circumstance out
of the many that we have discussed and the operative part of
the judgment just recites a few facts mechanically as if
there could possibly be no answer to the validity of the
will. The High Court has not referred in its judgment even
in passing to the rule as to the burden of proof which
applies to testamentary proceedings. If only it had taken
the trouble of looking at the decision of this Court in
Iyengar’s case, which is copiously extracted in the judg-
ment of the Trial Court, it would have realized what its
true duty was in the case.
936
For these reasons we allow the appeal, set aside the
judgment of the High Court and restore that of the trial
court. The appellant will be entitled to recover from the
respondents the costs of this Court and of the High Court.
P.H.P.
Appeal allowed.
937