1. The question which arises for consideration in this appeal by acertificate granted by the High Court of Bombay is whether a will alleged tohave been executed by one Ramdhan on May 23, 1947 is genuine or is afabrication. By this will, Ramdhan is alleged to have bequeathed almost hisentire property consisting of 16 fields assessed to land revenue at Rs. 425/-per annum, five houses, a shop and movables consisting of 800 tolas of gold,1,000 tolas of silver, Rs. 50,000/- cash and Rs. 15,000/- due from debtors aswell as cattle, agricultural implements, utensils, etc., to the appellant, andpractically excluded his widow, Sitabai and his three married daughters. Theappellant is the grandson of one of the three predeceased uncles of Ramdhan,and the ground on which the widow and the daughters were practically excludedby Ramdhan is said to be the strained relations which developed between Ramdhanand his wife during his last days.
2. Ramdhan died on October 31, 1948, and Sitabai, who was all along livingwith him, came into possession of Ramdhan's property. Admittedly, the appellantdid not try to disturb her possession. According to him, he allowed Sitabai toremain in possession on his behalf, and that for some time she was managing theestate in a satisfactory way. Later on, however, she, in utter disregard of theappellant's interests, began to give away some portions of the property to herdaughters and strangers, even though she knew that the property had beenbequeathed to him by Ramdhan, and that she was entitled to receive only amaintenance of Rs. 40/- per month under the will of Ramdhan. It may bementioned that Ramdhan was a resident of Peepalgaon in the district ofParbhani, and the entire property, movable as well as immovable, is atPeepalgaon itself.
3. Upon these allegations, the plaintiff instituted the suit out of whichthis appeal arises, in the District Court at Parbhani. Sitabai denied theexecution of the alleged will by Ramdhan, and also denied the relationshipclaimed by the appellant with Ramdhan. According to her, after Ramdhan's deathshe was in exclusive possession of the property, that she is a helpless widowwithout a male issue, and that the appellant taking advantage of this fact hasset up a false will and laid claim to Ramdhan's property. While admitting thatthe immovable property had been correctly set out in the plaint, she challengedthe correctness of some of the items of the movable property. During thependency of the suit, one Madanlal was joined as a party to it on the basis ofhis claim to be the adopted son of Ramdhan. He also challenged the genuinenessof the will. According to him, he was adopted by Ramdhan in the month of Chait,Samvat, 1999 according to the prevailing custom in the State of Udaipur.Sitabai died during the pendency of the suit, and her daughters, Champabai,Rambhabai, and Rajubai as also Ram Pershad, one of Sitabai's sons-in-law, whowas alleged to have obtained possession of the property after the death ofSitabai, were brought on record as the legal representatives of Sitabai.
4. The trial Court held in favour of the appellant that he was related toRamdhan, as alleged by him, and that the will executed by Ramdhan was genuine.It also negatived Madanlal's claim of having been adopted by Ramdhan. On thesefindings, that Court decreed the appellant's suit. The legal representatives ofSitabai thereupon preferred an appeal before the High Court, which held thatthe will set up by the appellant is not genuine, and on that ground, dismissedhis suit.
5. In support of the will, the appellant examined himself, the scribe,Venkat Rajaram and three of the attesting witnesses, Raja Kaniahprasad,Rasheeduddin Ahmed and Wamanlal. The appellant also examined some witnesses insupport of his contention that the property bequeathed to him under the willwas entrusted by him to Sitabai after the death of Ramdhan. On the other hand,the respondents have led evidence to show that Ramdhan could not have been atHyderabad where the will is alleged to have been executed, on May 23, 1947,because till the afternoon of the previous day he was at a village nearly 300miles distant from Hyderabad.
6. The High Court, on a consideration of the entire evidence adduced by theparties, came to the conclusion that the will was prepared under highlysuspicious circumstances, and that the evidence adduced by the appellant wasnot such as to satisfy it that the alleged will was a genuine one. According tothe High Court, the circumstances appearing in the case indicate that thealleged will was 'in all probability' a false document brought intoexistence without the knowledge of Ramdhan. The High Court rightly pointed outthat the nature of proof which was required in a case of this kind was thatlaid down by the Privy Council in Sarat Kumari Bibi v. Sakhi Chand , where it has been stated that in all cases in which a will isprepared under circumstances which arouse the suspicion of the Court that itdoes not express the mind of the testator, it is for the propounder of the willto remove that suspicion. According to the High Court, the evidence led by theappellant was so unsatisfactory that it was impossible to give any effect tothe alleged will.
7. Mr. Dadachanji's grievance, however, is that the entire approach of theHigh Court to the evidence in this case was wrong, because it first took intoconsideration the various circumstances, and then judged the credibility of thewitnesses in the light of those circumstances. In support of his contention, hehas relied upon the following observation of Biswas, J. in Kristo Gopal v.Baidya Nath : AIR1939Cal87 :
'It is difficult to avoid the conclusion that thelearned Judges for some reason or other must have formed the idea that the willwas not a genuine document, and that having formed such an idea, he looked atthe evidence of each of the witnesses with a suspicious eye. On no otherhypothesis is it possible to explain the criticism which he has led himself tomake.'
8. The learned Judge has supported his observation by quoting the followingobservations of Lord Watson in Chotey Narain Singh v. Mt. Ratan Koer 22 I.A12 :
'The theory of improbability remains to beconsidered; and the first observation which their Lordships have to make isthat, in order to prevail against such evidence as has been adduced by therespondent in this case, an improbability must be clear and cogent. It mustapproach very nearly to, if it does not altogether constitute, animpossibility.'
9. The learned Judge has then observed as follows :
'In a case where......attesting witnesses areproduced and they give clear and cogent testimony regarding execution, oneshould require very strong circumstances to repel the effect of such testimony.It will not do to talk airily about circumstances of suspicion. It is no doubttrue that a person who takes it upon himself to dispute the genuineness of awill cannot be expected to prove a negative in many cases. At the same time,the difficulty in which, on his own seeking, he places himself, will notrelieve him of the burden - it may be a heavy burden - of displacing thepositive testimony on the other side. If he rests his case on suspicion, thesuspicion must be a suspicion inherent in the transaction itself which ischallenged and cannot be a suspicion arising out of a mere conflict oftestimony.'
10. Then the learned Judge went on to observe that if there was evidence toshow that the will was actually made, it would not be relevant to enquirewhether there was any occasion or motive for the execution of the will, andthat if such a test were to be applied in every case, no will could probably beproved at all.
11. The questions which we have to consider are whether there was, in fact,a will, that is to say, whether Ramdhan did execute a will during his lifetime,and if so, whether the document upon which the appellant relies is a willexecuted by Ramdhan and duly attested by witnesses. The appellant can provethese facts only by adducing evidence of the due execution of the will byRamdhan and of its attestation. The challenge before us is as to the credibilityof the witnesses who have come forward to say that the document upon which theappellant relies not merely bears the signature of Ramdhan but represents thedisposition made by Ramdhan, that is it was executed by Ramdhan, and that theattesting witnesses attested the execution of the will by Ramdhan. In order tojudge the credibility of the witnesses, the Court is not confined only to theway in which the witnesses have deposed or to the demeanour of witnesses, butit is open to it to look into the surrounding circumstances as well as theprobabilities, so that it may be able to form a correct idea of thetrustworthiness of the witnesses. This issue cannot be determined byconsidering the evidence adduced in the Court separately from the surrounding circumstanceswhich have also been brought out in the evidence, or which appear from thenature and contents of the document itself. We do not understand theobservations of Lord Watson to mean that the testimony as to the execution ofthe document has to be considered independently of the attendant circumstances.All that he says is that where there is a large and consistent body oftestimony tending to show the execution of a will by the testator, thatevidence should not be lightly set aside on the theory of improbability.
12. Dealing with the mode of proof of a will, this Court has observed in H. Venkatachala Iyengar v. B. N. Thimmajamma and Others (1959) S.C.R. Supp. 1 :
'As in the case of proof ofother documents so in the case of proof of wills it would be idle to expectproof with mathematical certainty. The test to be applied would be the usualtest of the satisfaction of the prudent mind in such matters.
However, there is one importantfeature which distinguishes wills from other documents. Unlike other documentsthe will speaks from the death of the testator, and so, when it is propoundedor produced before a court, the testator, who has already departed the world cannotsay whether it is his will or not; and this aspect naturally introduces anelement of solemnity in the decision of the question as to whether the documentpropounded is proved to be the last will and testament of the departedtestator. Even so, in dealing with the proof of the wills the court will starton the same enquiry as in the case of the proof of documents. The propounderwould be called upon to show by satisfactory evidence that the will was signedby the testator, that the testator at the relevant time was in a sound anddisposing state of mind, that he understood the nature and effect of thedispositions and put his signature to the document of his own free will.Ordinarily when the evidence adduced in support of the will is disinterested, satisfactoryand sufficient to prove the sound and disposing state of the testator's mindand his signature as required by law, courts would be justified in making afinding in favour of the propounder. In other words, the onus on the propoundercan be taken to be discharged on proof of the essential facts just indicated.
There may, however, be cases inwhich the execution of the will may be surrounded by suspicious circumstances.The alleged signature of the testator may be shaky and doubtful and evidence insupport of the propounder's case that the signature in question is thesignature of the testator may not remove the doubt created by the appearance ofthe signature; . . . . the dispositions made in the will may appear to beunnatural, improbable or unfair in the light of relevant circumstances; or, thewill may otherwise indicate that the said dispositions may not be the result ofthe testator's free will and mind. In such cases the court would naturallyexpect that all legitimate suspicions should be completely removed before thedocument is accepted as the last will of the testator. The presence of suchsuspicious circumstances naturally tend to make the initial onus very heavy;and unless it is satisfactorily discharged, courts would be reluctant to treatthe document as the last will of the testator.'
13. This Court also pointed out that apart from suspicious circumstances ofthis kind, where it appears that the propounder has taken a prominent part inthe execution of the will which confers substantial benefits on him, thatitself is generally treated as a suspicious circumstance attending theexecution of the will, and the propounder is required to remove the suspicionby clear and satisfactory evidence. In other words, the propounder must satisfythe conscience of the Court that the document upon which he relies is the lastwill and testament of the testator.
14. This decision has been recently referred to in a judgment of this Courtin Shashi Kumar Banerjee and others v. Subodh Kumar Banerjee (C.A. No. 295 of1960, D. Sept. 13, 1963 (Non-reportable)). (Civil Appeal No. 295 of 1960decided on September 13, 1963). There, Wanchoo J. who spoke for the Court, hasobserved as follows :
'The mode of proving a will does not ordinarilydiffer from that of proving any other document except as to the specialrequirement of attestation prescribed in the case of a will by s. 63 of theIndian Succession Act. The onus of proving the will is on the propounder and inthe absence of suspicious circumstances surrounding the execution of the will,proof of testamentary capacity and the signature of the testator as required bylaw is sufficient to discharge the onus. Where however there are suspiciouscircumstances, the onus is on the propounder to explain them to the satisfactionof the court before the court accepts the will as genuine. Where the caveatoralleges undue influence, fraud and coercion, the onus is on him to prove thesame. Even where there are no such pleas but the circumstances give rise todoubt it is for the propounder to satisfy the conscience of the Court. Thesuspicious circumstances may be as to the genuineness of the signature of thetestator, the condition of the testator's mind, the dispositions made in thewill being unnatural, improbable or unfair in the light of relevantcircumstances or there might be other indications in the will to show that thetestator's mind was not free. In such a case the court would naturally expectthat all legitimate suspicion should be completely removed before the documentis accepted as the last will of the testator. If the propounder himself takespart in the execution of the will which confers a substantial benefit on him,that is also a circumstance to be taken into account, and the propounder isrequired to remove the doubts by clear and satisfactory evidence. If thepropounder succeeds in removing the suspicious circumstances the court wouldgrant probate, even if the will might be unnatural and might cut off wholly orin part near relations. It is in the light of these settled principles that wehave to consider whether the appellants have succeeded in establishing that thewill was duly executed and attested.'
15. In Sarat Kumari Bibi's case on which the HighCourt has relied and which is also relied upon in Venkatachala Iyengar's case(1959) Supp. 1, S.C.R. 426 just cited, it was found that one Jamaluddinwho took benefit under the will, had taken an active part in the preparation ofthe will, and, therefore, the rule made by Lindley and Davey L. JJ. in Tyrrellv. Painton (1894) P. 151 that where circumstances exist which wouldexcite the suspicion of the Court, the burden is upon the propounder of thewill to remove such suspicion and prove affirmatively that the testator knewand approved of the contents of the document, was applied.
16. The High Court has analysed the entire evidence adduced by thepropounder of the will to prove its due execution by Ramdhan, and along withthat evidence, it has also considered certain attendant circumstances. One isthe fact that the will is said to have been executed at Hyderabad, which is aplace where the appellant resides and carries on his profession as a medicalpractitioner and not at Peepalgaon, where Ramdhan resided. The evidence adducedin the case shows that on the day prior to the one on which the will purportsto have been executed, Ramdhan was at Ghanegaon till the afternoon. This placeis 8 miles distant from Peepalgaon, and the nearest railway station is 20 milesdistant from Peepalgaon. The will is said to have been executed at about noon,and though it is not impossible, it is highly improbable that Ramdhan couldhave been present at the place of execution by that time. The third thing isthat the will was executed in the house of the appellant. One of thecircumstances is that there was no particular reason why the will should havebeen executed at that time, because there is no suggestion that Ramdhan was notkeeping good health. Then again, the property is very considerable, and insteadof employing the services of a trained lawyer to draw up the will, a laymanlike Venkat Rajaram, who has given his profession as 'Jagirdari' hadbeen enlisted. The scribe as well as the attesting witnesses are not the personalfriends of Ramdhan, though they say they knew him, but appear to be either thefriends or neighbours of the appellant. Yet, the appellant wants the Court tobelieve that all these persons were collected by Ramdhan after his arrival atHyderabad on the morning of May 23. This, in itself, would be an improbablething indeed, because Ramdhan would not have had enough time at his disposalfor doing it. Again, there is no explanation why he should collect only thefriends and acquaintances of the appellant rather than persons, who were hisown friends.
17. The High Court has further pointed out that the document is inscribed ona flimsy paper. It is in high-flown Urdu, and is alleged to have been dictatedby him in that language. No doubt, the evidence indicates that Ramdhan couldspeak in Urdu, but it also indicates that he cannot read or write in Urdu. Itwould, therefore, be legitimate to infer that the language which he could speakwas the unlettered man's Urdu and not high-flown Urdu, which contains anadmixture of Persian words. Indeed, such words have actually been used in thisdocument. The signature of Ramdhan is itself in Modi script, which would nothave been the case if he were well-versed in Urdu. When we turn to the reverseof the sheet on which the document is inscribed, we find that as we go lowerdown, more and more words seem to be crammed in each line and the spacingbetween two lines tends to decrease, even though there appears to have beenplenty of room for the signature of Ramdhan to be scribed lower down on thepaper. It would be legitimate to infer from this that the signature was alreadythere before the will was scribed. This feature of the document as well as thequality of the paper used would suggest that a piece of paper bearing Ramdhan'ssignature has been utilised by the scribe for engrossing what purports to be awill.
18. Finally, there is the circumstance that the will is unnatural in thesense that though Ramdhan left property worth several lakhs, he made noprovision for a residence for his wife but gave her only Rs. 40/- per month asher maintenance, and made only paltry bequests to his daughters. It is truethat the daughters are married in affluent families, but in the absence of amale issue, a father is normally expected to give at least substantial bequeststo his daughters. Instead, the will gives almost the entire property to adistant relative, who, it may be noticed, was neither brought up by thetestator, nor was a person who looked after the testator during his declining years.All this is said to have been due to the fact that Ramdhan's relations with hiswife had become strained. Indeed, the relationship between Ramdhan and his wifehad become so bad that Ramdhan, according to the appellant, suspected that shewas trying to poison him. Curiously enough, in spite of this, Ramdhan continuedto live with Sitabai right till his death, and had made no arrangement for aperson other than her to take charge of the cash and the gold and silverornaments of the value of a couple of lakhs of rupees or so, in the event ofhis dying suddenly. There is nothing to suggest that Ramdhan's food was cookedby any one other than Sitabai.
19. To prove the appellant's allegations that Ramdhan and Sitabai were notgetting on well, the main evidence is that of the appellant himself, who is theperson who has obviously taken an active part in procuring the execution of thedocument which he has set up as the will of Ramdhan. He must be held to havetaken an active part, even though, according to him, he did not do so, becausethe will was written not only at Hyderabad where he lives and carries on hisprofession but also in his own house, and the persons who played one part orthe other in this connection are either his friends or his neighbours. It isthese circumstances which have to be borne in mind while evaluating thetestimony of the witnesses bearing on the execution of the will. Further, it isnecessary for the appellant to satisfy the conscience of the Court about thegenuineness of this will by removing all suspicions which naturally flow fromthe various circumstances, which we have set out above. There is not an iota ofevidence in this regard, and we are not satisfied that the suspicion created bythe circumstances referred to by us has been removed. Learned counsel has takenus through the evidence of the appellant, the scribe and three attestingwitnesses examined by him. All this evidence has been critically examined bythe High Court but for reasons given by it in its judgment, not accepted by it.We find no reasons for viewing the evidence differently.
20. We have already adverted to the fact that no particular reason has beeneven indicated by the appellant as to why Ramdhan thought of executing a willlong before his death. If his idea in doing so was to make certain that hisproperty does not fall in Sitabai's hands after his death one would haveexpected him to make some arrangement for keeping the movables out of herreach. He, however, made no such arrangement. Further, he would have also takenthe precaution of registering the will, so that any challenge to itsgenuineness could not have been successfully made.
21. Further, there is no unimpeachable evidence to show that the will wasbrought to light immediately after Ramdhan's death, which would have been thecase if it were a genuine will. On the other hand, there is one circumstancewhich suggests that the claim on the basis of Ramdhan's will was not eventhought of by the appellant till long after Ramdhan's death. The circumstanceis the continuance of Sitabai in possession of the cash, gold and silverarticles and other movables, even subsequent to Ramdhan's death. Of course, theappellant has given the explanation that he allowed her to remain in possessionon his behalf, but his evidence is wholly incredible. Indeed, the appellant hassaid that he instituted the suit because he found Sitabai parting with portionsof Ramdhan's movables in favour of her daughters and strangers after the deathof Ramdhan. At least, one thing will allow from this that according to himSitabai was more interested in her daughters than in him. If, therefore, he hada genuine claim to Ramdhan's property, he would not have allowed Sitabai toremain in possession of Ramdhan's movables. At least, he would have obtainedfrom her a document containing the list and description of the movables andalso an admission to the effect that she was entrusted with them by theappellant and that she had no right in them. Had she refused to execute such adocument, one would have naturally expected the appellant to institute a suitfor their possession immediately. There is no explanation for the absence ofsuch a document, and thus this is also a circumstance which militates againstthe genuineness of the will.
22. In the circumstances, we hold that the High Court was right in rejectingthe evidence of the attesting witnesses and the scribe as well as of theappellant with regard to the execution of the will by Ramdhan.
23. We accordingly uphold the judgment of the High Court, and dismiss theappeal with costs.
24. Appeal dismissed.