J.R. MUDHOLKAR - (1.) THE question which arises for consideration in this appeal by a certificate granted by the High Court of Bombay is whether a will alleged to have been executed by one Ramdhan on 23/05/1947 is genuine or is a fabrication. By this will, Ramdhan is alleged to have bequeathed almost his entire property consisting of 16 fields assessed to land revenue at Rs. 425.00 per annum, five houses, a shop and movables consisting of 800 tolas of gold, 1,000 tolas of silver, Rs. 50,000.00 cash and Rs. 15,000.00 due from debtors as well as cattle, agricultural implements, utensils, etc., to the appellant, and practically excluded his widow, Sitabai and his three married daughters. THE appellant is the grandson of one of the three predeceased uncles of Ramdhan, and the ground on which the widow and the daughters wree practically excluded by Ramdhan is said to be the strained relations which developed between Ramdhan and his wife during his last days.
(2.) RAMDHAN died on 31/10/1948, and Sitabai, who was all along living with him, came into possession of RAMDHAN's property. Admittedly the appellant did not try to disturb her possession. According to him, he allowed Sitabai to remain in possession on his behalf, and that for some time she was managing the estate in a satisfactory way. Later on, however, she, in utter disregard of the appellant's interests, began to give away some portions of the properly to her daughters and strangers, even though she knew that the property had been bequeathed to him by RAMDHAN, and that she was entitled to receive only a maintenance of Rs. 40.00 per month under the will of RAMDHAN. It may be mentioned that RAMDHAN was a resident of Peepalgaon in the district of Parbhani, and the entire property movable as well as immovable is at Peepalgaon itself. Upon these allegations, the plaintiff instituted the suit out of which this appeal arises, in the District Court at Parbhani. Sitabai denied the execution of the alleged will by Ramdhan, and also denied the relationship claimed by the appellant with Ramdhan. According to her, after Ramdhan's death she was in exclusive possession of the property, that she is a helpless widow without a male issue, and that the appellant taking advantage of this fact has set up a false will and laid claim to Ramdhan's property. While admitting that the immovable property had been correctly set out in the plaint, she challenged the correctness of some of the items of the movable property. During the pendency of the suit, one Madanlal was joined as a party to it on the basis of his claim to be the adopted son of Ramdhan. He also challenged the genuineness of 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 Parshad, one of Sitabai's sons-in-law, who was alleged to have obtained possession of the property after the death of Sitabai, were brought on record as the legal representatives of Sitabai. The trial Court held in favour of the appellant that he was related to Ramdhan, 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 these findings, that Court decreed the appellant's suit. The legal representatives of Sitabai thereupon preferred an appeal before the High Court, which held that the will set up by the appellant is not genuine, and on that ground, dismissed his suit. In support of the will, the appellant examined himself, the scribe, Venkat Rajaram and three of the attesting witnesses, Raja Kaniah Prasad, Rasheeduddin Ahmed and Wamanlal. The appellant also examined some witnesses in support of his contention that the property bequeathed to him under the will was 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 at Hyderabad where the will is alleged to have been executed, on 23/05/1947, because till the afternoon of the previous day he was at a village nearly 300 miles distant from Hyderabad. The High Court, on a consideration of the entire evidence adduced by the parties, came to the conclusion that the will was prepared under highly suspicious circumstances, and that the evidence adduced by the appellant was not such as to satisfy it that the alleged will was a genuine one. According to the High Court, the circumstances appearing in the case indicate that the alleged will was "in all probability" a false document brought into existence without the knowledge of Ramdhan. The High Court rightly pointed out that the nature of proof which was required in a case of this kind was that laid down by the Privy Council in Sarat Kumari Bibi v. Sakhi Chand, 56 Ind App 62: (AIR 1929 PC 45) where it has been stated that in all cases in which a will is prepared under circumstances which arouse the suspicion of the Court that it does not express the mind of the testator, it is for the propounder of the will to remove that suspicion. According to the High Court, the evidence led by the appellant was so unsatisfactory that it was impossible to give any effect to the alleged will.
(3.) MR. Dadachanji's grievance, however, is that the entire approach of the High Court to the evidence in this case was wrong, because it first took into consideration the various circumstances, and then judged the credibility of the witnesses in the light of those circumstances. In support of his contention, he has relied upon the following observation of Biswas J., in Kristo Gopal v. Baidya Nath, AIR 1939 Cal 87: "It is difficult to avoid the conclusion that the learned Judge for some reason or other must have formed the idea that the will was not a genuine document, and that having formed such an idea, he looked at the evidence of each of the witnesses with a suspicious eye. On no other hypothesis is it possible to explain the criticism which he has led himself to make." The learned Judge has supported his observation by quoting the following observations of Lord Watson in Chotey Narain Singh v. Mst. Rattan Koer, 22 Ind App 12 at p. 23 (PC): ". . ... .The theory of improbability remains to be considered: and the first observation which their Lordships have to make is that, in order to prevail against such evidence as has been adduced by the respondent in this case, an improbability must be clear and cogent. It must approach very nearly to, if it does not altogether constitute, an impossibility." The learned Judge has then observed as follows: ''In a case where . . . .attesting witnesses are produced and they give clear and cogent testimony regarding execution, one should 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 doubt true that a persons who takes it upon himself to dispute the genuineness of a will 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 not relieve him of the burden - it may be a heavy burden - of displacing the positive testimony on the other side. If he rests his case on suspicion, the suspicion must be a suspicion inherent in the transaction itelf which, is challenged and cannot be a suspicion arising out of a mere conflict of testimony." Then the learned Judge went on to observe that if there was evidence to show that the will was actually made, it would not be relevant to enquire whether there was any occassion or motive for the execution of the will, and that if such a test were to be applied in every case, no will cold probably be proved at all. 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 will executed by Ramdhan and duly attested by witnesses. The appellant can prove these facts only by adducing evidence of the due execution of the will by Ramdhan and of its attestation. The challenge before us is as to the credibility of the witnesses who have come forward to say that the document upon which the appellant relies not merely bears the signature of Ramdhan but represents the disposition made by Ramdhan, that is it was executed by Ramdhan, and that the attesting witnesses attested the execution of the will by Ramdhan. 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. We do not understand the observations of Lord Watson to mean that the testimony as to the execution of the document has to be considered independently of the attendant circumstances. All that he says is that where there is a large and consistent body of testimony tending to show the execution of a will by the testator, that evidence should not be lightly set aside on the theory of improbability. Dealing with the made of proof of a will, this Court has observed in H. Venkatachala Iyengar v. B. N. Thimmajamma, 1959 Supp (1) SCR 426 at p. 443: ( AIR 1959 SC 443 at p. 451-452): "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 the 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 state of the testator's mind and his signature as required by law, 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 suspicious circumstances. The alleged signature of the testator may be shaky and doubtful and evidence in support of the propounder's case that the signature in question is the signature of testator may not remove the doubt created by the appearance of the signature; . . . . . . the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such "suspicious circumstances naturally tends to make the initial onus very heavy; and unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator." This Court also pointed out that apart from suspicious circumstances of this kind where it appears that the propounder has taken a prominent part in the execution of the will which confers substantial benefits on him that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the suspicion by clear and satisfactory evidence. In other words, the propounder must satisfy the conscience of the Court that the document upon which he relies is the last will and testament of the testator. ;