Om Parkash, J.C.
1. This appeal has arisen out of an application, filed by the appellants, under Section 276, Indian Succession Act, for the grant of probate of a will, alleged to have been executed by Jhantu. on the 27th October, 1961, bequeathing his landed property, in favour of the appellants.
2. The application was contested by the respondent, the widow of Jhantu. The respondent pleaded that the alleged will was not a will but was a mere declaration of successors, that Jhantu was not of a sound disposing mind at the time of the execution of the will, that the disposition made in the will was unnatural, as she, the only legal heir of Jhantu was entirely excluded from his property and that the bequest, made, which consisted of Jhantu's occupancy-tenancy only was void in view of the provisions of Section 68 of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act. The respondent, further, pleaded that the will was got executed under undue influence, coercion and fraud.
3. The learned District Judge held that the alleged will, Ex. PW-l/A. was not a will but was a mere declaration of descendants, that Jhantu was not of a sound disposing mind at the time of the execution of the will, that the bequest made, contravened the provisions of Section 68 of the Himaehal Pradesh Abolition of Big Landed Estates and Land Reforms Act, arid was void and that, there was no cogent evidence that the will was got executed through undue influence, coercion or fraud. In view of his findings, the learned District Judge refused to grant probate and dismissed the application of the appellants who have come up in appeal.
4. The first point, which requires decision, in the appeal, is whether the document Ex. PW-l/A is a will or is merely a declaration of a successor. 'Will' has been defined, in Section 2 (h) of the Indian Succession Act, to mean the legal declaration of theintention of a testator with respect to his property which he desires to be carried into effect after his death. The document Ex. PW-1/A falls squarely within the four corners of the aforesaid definition of a 'will'. The document opens with the statement that, Jhantu had become old and remained sick and, therefore, desired to make a will of his landed property. The document, further, stated that the appellants were his collaterals and had been serving him in his old age and that they would be his heirs and successors, with respect to his property, after his death. Certain obligations, to be carried out, by the 'appellants, in connection with maintaining, Jhantu and his wife during their life-time and the performance of their obsequies after their death, were, then, set forth. The document, ended, by stating that the appellants would get the mutation of the land effected in their favour after the death of Jhantu. The document was thumbmarked by Jhantu and was attested by witnesses, vide the statements of Nek Ram PW-1, the scribe and Shonkia PW-3, Bhagat Ram PW-4 and Sehaj Ram PW-5, the attesting witnesses. The contents of the document, set forth above, clearly show that the document is a legal declaration of Jhantu's intention with respect to his property which he desired to be carried into effect after his death. The document Ex. PW-l/A is a will and not a mere declaration of a successor.
5. The important point, to be decided, in the appeal is whether the appellants had proved the will Ex. P. W.-1/A, by establishing that Jhantu had testamentary capacity at the time of its execution. The learned counsel for the appellants contended that the direct evidence of Nek Ram PW-2, the scribe, and Shonkia PW-3, Bhagat Ram PW-4 and Sehaj Ram PW-5, the attesting witnesses, established that Jhantu was of a sound disposing mind at the time of the execution of the will and that the will, therefore, stood proved by the evidence of the aforesaid witnesses. Before examining the contention of the learned counsel for the appellants, it will be useful to consider the true legal position in the matter of proof of a will. That legal position was explained by their Lordships of the Supreme Court in H. Venkatachala Iyengar v. B. N. Thimmajamma, AIR 1959 S C 443, as follows :--
'It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of other documents, so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters.
However, there is one important feature which distinguishes wills from other documents. Unlike other documents, the will speaks from the death of the testator, and so, when it is propounded or produced before a Court, the testator who has already departed, the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills, the Court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily, when the evidence adduced in support of the will, is disinterested, satisfactory and sufficient to prove the sound and disposing stateof the testator's mind and his signature as required bylaw, Courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.
There may, however, be cases in which the execution of the will may be surrounded by suspiciouscircumstances. The alleged signature of the testatormay be very shaky and doubtful and evidence in support of the propounder's case that the signature inquestion is the signature of the testator may potremove the doubt created by the appearance of thesignature; the condition of the testator's mind mayappear to be very feeble and debilitated; and evidenceadduced may not succeed in removing the legitimatedoubt as to the mental capacity of the testator; thedispositions made in the will may appear to beunnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwises indicate that the said dispositions may not be the resultof the testator's free will and mind. In such cases,the Court would naturally expect that all legitimatesuspicions should be completely removed before thedocument is accepted as the last will of thetestator.
* * * ** * * * *Apart from the suspicious circumstances to which we have just referred in some cases the wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence.' Pages 451-452.
6. The above principles, with respect to the proof of a will, were reiterated, by their Lordships, in Rani Purnima Debi v. Khagendra Narayan Deb, AIR 1962 S C 567 and in Ramchandra Rambux v. Champabai, Civil Appeal No. 758 of 1963, D/- 17-2-1964 (reported in AIR 1964 S C 354). In the last-mentioned case, it was also observed by their Lordships that : --
'In order to judge the credibility of the witnesses, the Court is not confined only to the way in which the witnesses have deposed or to the demeanour of witnesses, but it is open to it to look into the surrounding circumstances as well as the probabilities, so that it may be able to form a correct idea of the trustworthiness of the witnesses. This issue cannot be determined by considering the evidence adduced in the Court separately from the surrounding circumstances which have also been brought out in the evidence, or which appear from the nature and contents of the document itself.'
7. It is clear, from the observations of their Lordships, quoted above, that besides, adducing dis-interested, satisfactory, and sufficient evidence about) the execution of a will, a propounder must remove all legitimate suspicion which may exist on account of surrounding suspicious circumstances, about the execution of the will and the mental capacity of the testator and that the trustworthiness of the evidence, adduced, is to be judged, in the light of the surroundirg circumstances, and not separately from them.
8. Applying the above principles, to the present case, we find that there were suspicious circumstances, attending the execution of the will, and that they cast a doubt on the evidence of the scribe and the attesting witnesses that Jhantu was of sound,disposing mind at the time of the execution of the will.
9. The first suspicious circumstance was that, at the time of the execution of the will, Jhantu's mind was feeble and debilitated on account of old age and illness. The will was executed on the 27th October, 1961. Jhantu died on the 16th January, 1962. Respondent's witnesses Balak Ram RW-2, Jhanu RW-3 and Ram Dutt RW-4 stated that Jhantu remained ill for some years before his death and that he was so seriously ill, six months, before his death, that he could not recognize even his own people. Apart from this, there is the evidence of Doctor H. P. Attrey PW-7, Medical Officer, Incharge, T. B. Clinic Simla. This witness stated that Jhantu was brought to the Clinic on the 23rd April, 1954 and was examined by him. The witness, further, stated that Jhantu was suffering from extensive T. B. of both the lungs and that the disease was in an advance stage. This fell disease must have impaired Jhantu's mental faculties. Jhantu was about seventy years old at the time of the execution of the will. In view of his old age and ailment, it is extremely doubtful that Jhantu was capable of judging the effect of the disposition made in the will, and of giving his approval. In this connection, it may be pointed out that neither the scribe, nor any of the attesting witnesses stated that the will was even read over, not to speak of, that it was explained, to Jhantu.
10. The second suspicious circumstance was that, taking into consideration the facts of the case, the disposition, made in the will, was unfair and unnatural. The respondent, being the widow of Jhantu, was his only heir. The appellants were remote collaterals. The respondent was entitled to succeed to the estate of Jhantu to the complete exclusion of the appellants. But, under the will, the estate was bequeathed to the appellants and the respondent was excluded. It is not suggested that the relations, between Jhantu and the respondent, were strained. On the other hand, Nek Ram P W-2 admitted that the relations between them were cordial. It is true that the will imposed an obligation on the appellants to maintain the respondent. But no amount of maintenance was specified and no charge was created on the property of Jhantu. The respondent was left, to use the words of their Lordships in AIR 1962 S C 567 (supra), to the tender mercies of the appellants in the matter of maintenance.
11. The third suspicious circumstance was that the appellants, who were the only beneficiaries under the will, and had received substantial benefit, had taken prominent part in the execution of the will. They had called the scribe and the witnesses.
12. The fourth suspicious circumstance was that Shonkia PW-3 and Bhagat Ram PW-4, the attesting witnesses, were related to the appellants and were not disinterested witnesses.
13. The suspicion, created by the above circumstances, was not removed by the appellants. In face of the aforesaid suspicious circumstances, the evidence of Nek Ram PW-2, the scribe, and Shonkia PW-3, Bhagat Ram PW-4 and Sehaj Ram PW-5, the attesting witnesses, about the mental capacity of Jhantu and about the proof of the will, cannot be believed. It will be relevant to point out that in AIR 1959 S C 443 and Civil Appeal No. 758 of 1963 (reported in AIR 1964 S C 354), supra, the evidence of the scribe and the attesting witnesses, about the proof of the wills, was rejected on the ground that there were suspicious surrounding circumstances, in those cases. In view of the above discussion, the contention of the learned counsel for the appellants that the will Ex. PW-1/A stood proved by the evi-dence of the scribe and the attesting witnesses must be rejected.
14. The learned District Judge was right in holding that the appellants had failed to prove that the will Ex. PW-l/A was executed by Jhantu when he was of a sound disposing mind and in rejecting their application. This finding is sufficient to dispose of the appeal and it is not necessary to go into the other points, raised.
15. The appeal fails and is dismissed with costs.