PETITIONER:
SETH BENI CHAND (SINCE DEAD) NOW BY L.RS.
Vs.
RESPONDENT:
SMT. KAMLA KUNWAR AND OTHERS
DATE OF JUDGMENT14/09/1976
BENCH:
CHANDRACHUD, Y.V.
KRISHNAIYER, V.R.
UNTWALIA, N.L.
CITATION:
1977 AIR 63 1977 SCR (1) 578
1976 SCC (4) 554
ACT
Indian Succession Act, 1975, S. 63(c), Attesting witness
defined.
Indian Evidence Act, S. 68--Discharge of onus probandi by
propounder when execution of will surrounded by suspicious
circumstances.
HEADNOTE
Three or four days before her death, Jaggo Bai executed a
will, bequeathing her Stridhana property to her son Beni
Chand’s second wife Kamla Kunwar and her children, and also
to the progeny horn of his first wife. Bern Chand, his
third wife and her children were excluded from the will.
Beni Chand opposed the probate of the will contending that
it was a forgery and challenged the execution of the will.
A single Judge of the High Court held that the propounder of
the will had failed to explain the suspicious circumstances
surrounding its execution, but in appeal, the Division Bench
upheld the validity of the will.
Dismissing the appeal, the Court
HELD: (1) The mere description of a signatory to a
testamentary document as an attesting witness cannot take
the place of evidence showing due execution of the document.
An attesting witness is one who signs the document in the
presence of the executant after seeing the execution of the
document or after receiving a personal acknowledgment from
the executant as regards the execution of the document.
[581H. 582A]
(2) The onus probandi lies in every case upon the party
propounding a will, and he must satisfy the conscience of
the Court that the instrument so propounded is the last will
of a free and capable testator. Where the circumstances
surrounding the execution of the will are shrouded in suspi-
cion, it is the duty and function of the propounder to
remove that suspicion by leading satisfactory evidence, and
by offering an explanation of auspicious circumstances which
can satisfy a prudent mind. [582C, E-F]
JUDGMENT
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2269 of 1972.
(From the Judgment and Order dated 9-5-1972 of the
Allahabad High Court in Special Appeal No. 125/70).
J.P. Goyal, G.S. Chatterlee and Shree Pal Singh, for the
Appellants (Other than 2nd appellant).
S.M. Jain and S.K. Jain, for the Appellant No. 2.
V.M. Tarkunde, Yatindra Singh, Deepal Gupta, Najahad
Hussain, S.S. Khanduja, Urea Dutta and Miss Manik Tarkunde,
for Respondents Nos. 1, 4, 5, 7 and 8.
S.K. Mehta, for Respondents Nos. 11--12.
The Judgment of the Court was delivered by
CHANDRACHUD, J.--This appeal by certificate raises a
question as regards the validity of a will executed by an
eighty year old woman
579
five days before her death. The testatrix Jaggo Bai had
a muchmarried son called Beni Chand, the last of whose three
marriages has given birth to this long litigation. Beni
Chand’s first wife, Chameli Bai, died leaving behind Re-
spondents 3, 5, 6, 7 and 8 as her heirs. His second wife
Kamla Kunwar is Respondent 1. Respondent 4 is her daughter
and respondents 9 and 10 are her grand-daughters. Beni
Chand had no male issue from his two wives and therefore, in
1928, he gambled for a ion by marrying Ved Kumari. That
marriage created dissensions in the family, partly because
Ved Kumari belonged to a different caste but more substan-
tially because the entry of yet another woman in the house-
hold was like a last straw. On October 26, 1961 Jaggo Bai
made a will disinheriting her son Beni Chand and the chil-
dren born of Ved Kumari, and bequeathing her extensive
properties to the progeny born of Chameli Bai and to Kamla
Kunwar and her progeny. Jaggo Bai died on October 31, 1961.
Kamla Kunwar who was appointed under Jaggo Bai’s will as
an executrix filed a petition in the Allahabad High Court
for probate of the will. Beni Chand filed a caveat contend-
ing that the will was a forgery and was prepared in collu-
sion with one Dwijendra Nigarm, an advocate, while Jaggo Bai
was lying in an unconscious state. A learned single Judge of
the High Court dismissed the petition on the ground that the
propounder of the will had failed to explain the suspicious
circumstances surrounding the execution of the will. That
judgment was reversed in appeal by a Division Bench of the
High Court, which upheld the validity of the will. This
appeal by certificate is directed against the appellate
judgment of the High Court.
There is no gainsaying the fact that the execution of
the will is shrouded in circumstances which require a
cogent explanation, particularly as the testatrix was ad-
vanced in age and the provisions of the will are prima facie
unnatural. But, we do not see enough reason for rejecting
the conclusion of the High Court that the executrix who
propounded the will has offered a satisfactory explanation
of those circumstances. The relations between Jaggo Bai and
her son Beni Chand were strained beyond words. A long span
of over 30 years following upon Beni Chand’s marriage with
Ved Kumari is littered with ,a spate of litigations between
the mother and son. Beni Chand gave to his mother a good
look of law and law courts, civil and criminal. Exasperated
by his unfilial contumacy, Jaggo Bai executed a gifit deed
of her Stridhan properties excluding him scrupulously from
her bounty. Later, she executed a document of a testamen-
tary nature disinheriting him. These instruments were on
persuasion cancelled but Beni Chand did not mend his ways.
On October 26, 1961 when the impugned will was executed by
Jaggo Bai, a litigation was still pending between the mother
and son, and just 3 or 4 days before the execution of the
will, the eighty year old Jaggo Bai had to appear in the
Court. In this background, the fact that Jaggo Bai did not
give any part of her properties to Beni Chand cannot be
described as unnatural. Add to that the stark fact that the
testatrix while disinheriting Beni Chand, bequeated the
entire property to his wife, Kamla Kunwar, the children born
of her and to the progeny born of Beni Chand’s first wife
Chameli Bai. Jaggo Bai.
580
never reconciled herself to Beni Chand’s third marriage
with Ved Kumari and she excluded that branch from the be-
quest.
It is alleged that Dwijendra Nigam, an advocate, con-
spired with Jaggo Bai’s pro-deceased daughters’s son Ratan
Lal to forge the will. But from the long and varied
cross--examination of Nigam it is difficult to discover any
reason why he should do so. He received no benefit under
the will and had no interest either in seeing that the
progeny born of Beni Chand’s first two wives should get the
property or in ensuring that Beni Chand, Ved Kumari and
their children should be left out. It is significant that
Beni Chand who alleged by his caveat that Nigam was the
villain of the piece, did not file any affidavit in support
of his caveat and what is more important, he did not enter
the witness-box to substantiate his accusation. The charge
that Nigam and Ratan Lal forged the will is thus left to
chance and guess-work. As for Ratan Lal, who is respondent 2
to this appeal, he admitted the execution of the will though
it was against his interest to do so. If the will is set
aside, Beni Chand and Ratan Lal will each be entitled on
intestacy to a moiety in Jaggo Bai’s estate, which was her
Stridhana property. Ratan Lal gets nothing under the will
of his grand-mother Jaggo Bai.
These features of the case dispel the suspicion arising out
of the circumstances that the testatrix was at the threshold
of death when she made the will, that she was far too
advanced in age to bring to bear an independent judgment on
the disposal of her property and that she disinherited her
only son under her will. It has to be mentioned that
though over eighty years of age, Jaggo Bai was not an in-
valid, that just a few days before her death she had ap-
peared in the court in a case relating to Zamindari Bonds
between her and Beni Chand, that a criminal case launched by
Beni Chand against her was defended by her Zealously leading
to an order of composition two or three months before her
death and that in spite of the unkind cuts that Beni Chand
had inflicted on her she wanted to try and help him at one
stage. In an old letter (Ex. 161-Ga) which she wrote to
him, she said plaintively: "Now have a short span of life.
I shall not be coming to see what happens hereafter. Please
do not injure my heart. Come back at once .... ". These
entreaties fell on deaf ears. Beni Chand dragged his mother
from pillar to post over a course of twenty years and he
never came back. He lived separately from her and did not
bother to attend to her even when she was dying. He awoke
to his son-ship only when it came to claiming the mother’s
estate.
Two circumstances would appear to have influenced the judge-
ment of the learned Single Judge in ho1ding that the will
was not proved to be Last will and testament of Jaggo Bai.
The first circumstance is that the thumb-mark which Jaggo
Bai is alleged to have made on the will does not bear the
usual endorsement that it is of the left or the right thumb
and secondly that neither of the two attesting witnesses was
examined to prove the formal execution of the will.
The Division Bench of the High Court, sitting in appeal
against the judgment of the learned Single Judge, has ac-
cepted the explanation
581
offered by Shri Nigam that the endorsement remained to be
made through inadvertence. Nigam had no personal interest
in the matter and the explanation, being unmotivated, could
reasonably be accepted. The learned judges also accepted the
evidence of the Advocate that he himself held the right hand
of Jaggo Bai and took the impression of that thumb on the
will. That meets the argument that an impression admitted
to be of Jaggo Bai’s left thumb does not tally with the one
on the will. The two will not tally since the two thumbs
would have different characteristics. The will was executed
in triplicate, one copy of which was deposited with the
District Registrar on October 28, 1961, that is, two days
after the will was executed. It is difficult to believe
that a practising advocate would run the risk of depositing
a forged will with a public official while the testatrix was
still alive. Beni Chand lived in the same town as his
mother, though separately from her and it is impossible in
the very nature of things that as alleged by him, Nigam and
Ratan Lal took the thumb impression of Jaggo Bai while she
was lying unconscious. Jaggo Bai might lose her conscious-
ness but she was possessed of a large estate and in the
normal course of human affairs, she would,. while uncon-
scious, be surrounded by a large number of close relatives
of which there were many in the town of Banda in which she
lived. To think that Nigam could steal a thumbimpression of
the dying woman puts a strain on one’s credulity, particu-
larly when he stood to gain nothing and Ratan Lal, the
alleged coconspirator, would be better off without the will.
It is a strange plea that Ratan Lal who, on intestacy, stood
to gain a one-half share in his grand-mother’s estate chose
to exclude himself by fabricating the will. There is some
evidence that a portion of Jaggo Bai’s right thumb was
mutilated but on examination of the relevant circumstances
in that behalf, the Division Bench of the High Court has
rejected the suggestion that the right thumb of the testa-
trix was so badly damaged as to be incapable of producing an
impression. With these plain findings of fact, we see no
reason for interfering by going into minute details of the
evidence.
There is no substance in the grievance that the proof of
the will in this case is incomplete for want of an attesting
witness’s evidence. Section 68 of the Evidence Act deals
with proof of the execution of documents required by law to
be attested. It provides that such documents shall not be
used as evidence until at least one attesting witness has
been called to prove the execution, if there be an attesting
witness alive and subject to the process of the Court and
capable of giving evidence. Since by section 63 of the
Succession Act, 1975 a will has to be attested by two or
more witnesses, section 68 of the Evidence Act would come
into play and therefore it was incumbent on the propounder
of the will to examine an attesting witness to prove due
execution of the will. But this argument overlooks that
Dwijendra Nigam is himself one of the three persons who made
their signatures below the thumb impression of Jaggo Bai.
None of the three is described in the will as an attesting
witness but such labelling is by no statute necessary and
the mere description of a signatory to a testamentary docu-
ment as an attesting witness cannot take the place of evi-
dence showing due execution of the document. By attestation
is
582
meant the signing of a document to signify that the attestor
is a witness to the execution of the document; and by sec-
tion 63(c) of the Succession Act, an attesting witness is
one who signs the document in the presence of the executant
after seeing the execution of the document or after receiv-
ing a personal acknowledgment from the executant regards
the execution of the document. Nigam’s evidence shows that
he and the other two witnesses saw the testatrix putting
her thumb-mark on the will by way of execution and that they
all signed the will in token of attestation in the presence
of the testatrix, after she had affixed her thumb-mark on
the will.
The question which now arises for consideration, on
which the Letters Patent Court differed from the learned
Single Judge of the High Court, is whether the execution
of the will by Jaggo Bai is proved satisfactorily. It is
well-settled that the onus probandi Iies in every case upon
the party propounding a will, and he must satisfy the con-
science of the Court that the instrument so propounded is
the last will of a free and capable testator.(1) By "free
and capable testator" is generally meant. that the testator
at the time when he made the will had a sound and disposing
state of mind and memory. Ordinarily, the burden of proving
the due execution of the will is discharged if the propound-
er leads evidence to show that the will bears the signature
or mark of the testator and that the will is duly attested.
For proving attestation, the best evidence would naturally
be of an attesting witness and indeed the will cannot be
used as evidence unless at least one attesting witness,
depending on availability, has been called for proving its
execution as required by section 68 of the Evidence Act.
But where, as in the instant case, the circumstances sur-
rounding the execution of the will are shrouded in suspi-
cion, it is the duty and the function of the propounder to
remove that suspicion by leading satisfactory evidence. The
testatrix was advanced in age being past eighty years of
age, the will contains provisions which are prima facie
unnatural since the only son is disinherited under it and
the testatrix died five days after making the will. There
can be no dispute that these are gravely suspicious circum-
stances. But the propounder has, in our opinion, offered an
explanation of these circumstances which ought to satisfy a
prudent mind. Ultimately, that is the test to adopt for one
cannot insist on mathematical proof even where the circum-
stances attendant on the execution of the will raise a
suspicion as regards its due execution. The burden in
testamentary cases is of a different order than in other
cases in the sense that an attesting witness must be called,
wherever possible, to prove execution, the propounder must
remove the suspicion, if any, attaching to the execution of
the will and if there be any doubt regarding the due execu-
tion, he must satisfy the conscience of the court that the
testator had a sound and disposing state of mind and memory
when he made the will. "Reasonable scepticism, not an obdu-
rate persistence in disbelief nor a resolute and impenetra-
ble incredulity" is demanded of the testamentary judge: "He
is never required to close his mind to the truth". (2)
Gajendragadkar J. who spoke for the Court in Iyengar’s
case(3) noticed these
(1) See Jarrman on Wills (6th Ed., D- 50) and H. Venka-
tachala lyengar v.B.N. Thijmajamma & Ors. [1959] Suppo. 1
S.CR. 426.
(2) See Harmes v. Hinksen (1946) 50 O.W.N. 895 per Lord Du
Parcq. (3) [1959] Supp. 2 S.CR. 426. 446.
583
observations of Lord Du Parcq with approval and said: It
would sound platitudinous to say so, but it is nevertheless
true that in discovering truth even in such cases the judi-
cial mind must always be open though vigilant, cautious and
circumspect."
Bearing these principles in mind and giving equal
weightage to openness and vigilance, the position emerging
from the evidence may be briefly summed up thus: Beni
Chand’s behaviour was far too unfilial and remorseless for
him to find a place in the affections of his mother Jaggo
Bai. He had bruised her so badly that she could not possi-
bly reward him with a precious inheritance. But she gave
her estate not to strangers but to his children born of the
first two wives and to the second wife Kamla Kunwar. She
also gave him a personal right of residence in one of the
houses. Shri Nigam, the advocate, had no personal motive or
bias to hatch a conspiracy to forge the will. He received no
benefit under the will, directly or indirectly. And Ratan
Lal was the least suitable co-conspirator because, he stood
to lose under the will what he would have got without it.
He would have been an equal sharer with Beni Chand in Jaggo
Bai’s estate under section 15(1)(a)) of the Hindu Succession
Act, 1956. The entire property comprised in the will was
Jaggo Bai’s Stridhana. The will was read out to Jaggo Bai
and in spite of her advanced years she was in a sound state
of mind and body. The chosen few do possess that privilege.
Thus the executrix has successfully discharged what, in the
circumstances, was a heavy onus of proving the due execution
of the will and of offering a satisfactory explanation of
the suspicious circumstances surrounding the will. We are
in agreement with the Division Bench of the High Court,
which was conscious of the special rules governing proof of
testamentary instruments, that the will propounded by the
executrix is the last will and testament of Jaggo Bai, made
while she was in a sound and disposing state of mind and
memory.
Beni Chand who opposed the grant of probate to his wife
Kamla Kunwar died during the pendency of the appeal in this
Court. He is now represented by his legal representatives
almost all of whom supported the grant of probate. The one
person from amongst the heirs of Beni Chand who stoutly
pressed this appeal is Vikram Chander, one of the sons of
Beni Chand, born of his third wife Ved Kumari.
While Kamla Kunwar’s appeal was pending before the
Division Bench of the High Court, Beni Chand alienated some
of the properties included in the will to a person called
Sadhu Prasad. The alienation was purportedly made on the
basis that the learned Single Judge of the High Court had
set aside the will and had refused to grant the probate to
the executrix. The alienee Sadhu Prasad is also an appel-
lant before us, having joined Beni Chand in filing the
appeal. We have had the benefit of the arguments advanced by
Mr. Jain on behalf of the alienee but nothing that he has
urged is enough to upset the view taken by the Division
Bench of the High Court.
The only argument advanced by Mr. Jain to which refer-
ence need be made is that even alienees are entitled to
citations in probate proceedings and in the absence of such
citations the grant of probate is
584
vitiated. In support of this submission reliance is placed
on a judgement of the Madhya Pradesh High Court in Banwari-
lal Shriniwas v. Kumari Kusum Bai and Ors. C) It was held
in that case that any interest, however slight, and even
the bare possibility of an interest is sufficient to entitle
a party to oppose the grant of probate. A purchaser, there-
fore, who acquires an interest in the estate of the testator
by reason of a transfer by his heirs must be cited in testa-
mentary proceedings. We will assume without affirming that
this is the true position in law but the important distinc-
tion is that the alienee in the instant case is a trans-
feree pendeme lite who purchased some of the properties
included in Jaggo Bai’s will while the Letters Patent Appeal
was pending in the Allahabad High Court. In the very nature
of things no citation could be issued to him prior to the
commencement of the probate proceedings. In fact, we felt
that the alienee had no right to be heard in this appeal.
Nevertheless, we heard his counsel on the point whether the
executrix has established the will. One reason why we
heard the alienee is that he should not be able to raise any
objection later that the decision in these proceedings is
for some reason or the other not binding upon him.
The property included in the will is for the time being
in the possession of a Receiver appointed by the Court.
Since we have upheld the will, the Receiver shall have to
hand over the property to the executrix, Kamla Kunwar, who
is respondent 1 to this appeal. We however direct that the
Receiver shall continue in possession Of the property for a
period of 4 months from today and hand it over to respondent
1 on the expiry of that period. The alienee Sadhu Prasad
may, if so advised, file a suit within that period for such
relief as he is advised to seek and obtain interim orders,
if he may, within that period as regards the possession of
the property alienated to him. Subject to such orders, if
any, the Receiver shall hand over the property to respond-
ent 1, Kamla Kunwar.
Mr. Tarkunde who appears on behalf of respondents 1, 4,
5, 7 and 8 made a statement before us on the conclusion of
the arguments in the appeal that even if we uphold the
validity of the will, his clients would be willing to make
an ex-gratia payment to 4 out of the 5 children born to Beni
Chand from Ved Kumari. Two daughters Subhashni Seth and
Chander Rekha and three sons, Pratap Chander, Vikram Chander
and Khem Chander were born to Beni Chand from Ved Kumari.
Mr. Tarkunde has given an undertaking to this Court on
behalf of his clients that they shall pay a sum of Rs.
20,000/- to each of the two daughters, Subhashni Seth and
Chander Rekha and a similar amount to each of the two sons,
Pratap Chander and Khem Chander. Under this arrangement, no
amount whatsoever shall be payable to Vikram Chander and not
certainly to the alienee Sadhu Prasad. According to the
undertaking, the aforesaid amount totalling Rs. 80,000/-
shall be paid to the four persons mentioned above within one
year of the date on which respondent 1 obtains actual pos-
session of the properties included in the will, which were
alienated ,by Beni Chand. Mr. Tarkunde also agrees and
undertakes on behalf of
1) A.I.R. 1973 M.P. 69.
585
clients that in the event that the aforesaid amount or any
part of it is not paid as stipulated, the persons to whom
the amount is payable, or any one or more of them, shall be
entitled to recover it in execution of this judgment as if
there were a decree in favour of each of them in the sum of
Rs. 20,000/-.
In the result, we dismiss the appeal and direct that the
costs of the appeal shall be paid equally by Vikram Chand-
er, the son of Beni Chand and by the alienee Sadhu Prasad.
M.R. Appeal dismissed.
586