In my opinion the conclusion of the learned trial judge on this point is clearly erroneous and seems to have been the result of putting the onus on the plaintiff contrary to the clear legal position laid down by the authorities already discussed above. The not sufficient 4th issues framed by him was correct as far as the question of onus was concerned. In actually dealing with the same he however appears to have lost sight of the question for onus was concerned. In actually dealing with the same, he however appears to have lost sight of the question of onus of proof of that issue. In my opinion, the question of onus should not enter into the framing of issues at all, but should be dealt with by the court when taking up the issues for consideration. The form in which an issue is framed should not be determinative of the question of onus. For instance, issue No. 4 could well have been framed in the following form:-
" Was the will dated 4th August, 1963, obtained by the plaintiff by the exercise of undue influence on the deceased ?" The question of onus could then have been dealt with by the learned trial Judge at the time of dealing with the issues. That has been the practice consistently followed on the original Side of this court. Had the learned trial Judge done so, he would not have lost Sgt of the question of onus of proof in regard to this issues as he did. The question of onus is sometimes a complicated question which may also have a bearing on the further question of the right to begin under Rules 2 and 3 of Order 18 of the Code for Civil Procedure, and s therefore, best left to be decided after issues are framed and arguments are heard in regard to the same. It cannot be fixed by the mere form in which the issues have been framed by the court.
Bombay High Court
Totaram Maharu vs Ramabai And Ors. on 24 March, 1975
Equivalent citations: AIR 1976 Bom 315, (1977) 79 BOMLR 87
Bench: Vimadalal, Naik
1. This is an appeal filed from the order of Mr. P. T. Patil, Joint Civil Judge, Senior Division, Jalgaon, dated 30th September, 1955, dismissing the plaintiff's suit which was for a declaration of ownership and possession of certain property under the Will of his father Chavdas Dharma olhe (hereinafter referred to as 'the deceased'). The Will in question was executed by the deceased on the 4th of August, 1963, and has been tendered as Ex. No. 45 in these proceedings. The deceased died on the 12th of February, 1964, and was, at the time of his death, of the approximate age of 82 or 83 years. The plaintiff's case is that his deceased father originally bore the name of Maharu Dhondu ohe, that when the plaintiff was still a child, his father was given in adoption to one Dharma Kolhe, and that thereafter the plaintiff's deceased father changed his name to Chavdas Dharma Kolhe, and the plaintiff was also brought up in the adoptive family. According to the plaintiff, after adoption, his deceased father got a son Bhaskar died, in 1948 leaving a widow Tulsabai, that Tulsabai filed a suit, being Special Sut No. 29 of 1951, for partition against the deceased and got a decree and got her shares separated, that the plaintiff's mother also died, and that the present first defendant is the second wife of the deceased. The plaintiff's case further is, that after the partition and separation of the share of Tulsabai, the suit property remained as the exclusive property of the deceased, that the deceased had great love and affection for the plaintiff, and that the deceased, therefore, made a Will on the 4th of August, 1963, in respect of the suit property under which the plaintiff received substantial propriety benefits. The position in regard to the houses belonging to the estate of the deceased at the time of his death was that the plaintiff resided in House No. 32 situate at Aside village, that the first defendant resided in House No. 52 which was also situated in the village of Asode, and that House No. the village of Asode, and that House No. 14 at Asode was in the occupation of Defendants Nos. 2 to 9 as tenants. Under his said Will dated the 4th of August, 1963, the deceased bequeathed the said Houses Nos. 14 and 32 to the plaintiff absolutely, but as far as House No. 52 was concerned, the deceased gave a life interest to his second wife, the first defendant, and directed that after the life interest of the first defendant, the same was also to belong to the plaintiff. As far as the lands belonging to the estate of the deceased were concerned, the deceased bequeathed a life interest n Survey No. 296, situated at Mamurrabad to the first defendant and directed that it was thereafter to belong to the plaintiff. Survey No. 477/2 in the same village was bequeathed by the deceased to his daughters who it may be mentioned, are not parties to the present suit, and the said Survey Number is also not a part of the property which s the subject-matter of this suit. All other lands situated in the village of Asode, as well as Survey No. 332/4B situated in the village of Mamurabad were bequeathed by the deceased by his said Will to the plaintiff absolutely. The plaintiff has filed the suit, out of which this appeal arises, in order to enforce his rights to the properties bequeathed to him by the deceased by the said Will dated 4th August, 1963, claiming relieves by way of declaration, possession and injunction against the defendants.
2. Defendants Nos. 2 to 9 who, as stated above ,are tenants in occupation of various portions of House No. 14 in the village of Asodem have not appeared at any stage of this litigation . The first defendant who as however, contested this litigation has urged three main contents in order to defeat the plaintiff's suit. Her first contention was that there plaintiff who was also the General Mukhtyar of the deceased had got the deceased to execute the said Will dated 4th August, 1963, by the exercise of undue influence her second contention was that the plaintiff used to secure the deceased's signature on blank sheets of paper and had utilised one such paper for main up the will in question; and her third contention was that, in any event the deceased had no authority to dispose of the whole of the properties which he purported to dispose of by his Will dated the 4th of August 1963, in view of the suit filed by Tulsabai in which she had obtained a decree and got the separation of her share.
3. As many as 12 issues were framed by the trial Court but, in my opinion, the only issues which really Aries for the consideration of the Court are issues Nos. 1,2,4 and 5. Issue No. 1 relates to the question of the due execution for the will issue No.2 to the testamentary capacity of the testator; issue No. 4 to the first defendants plea of undue influence and issue No. 5 to the question as to what was the disposable property which the deceased could bequeath by Will. The trial Court answered Issues No. 1 and 4 related to the due execution of the will and to the due execution of the Will and to the due exercise of undue influence against the plaintiff, but answered Issues Nos. 2 and 5 in favour of the plaintiff and against the first defended with the result that it had to dismiss the suit, as it has done, by its order under appeal. Though Issues Nos. 2 and 5 relating to the testamentary capacity of the deceased and relating to the question as to what was the disposable property were answered by the trial Court against the first defendant, the first defendant is, by virtue of the provisions of Order 41, Rule 22 (1) of the Code of Civil Procedure entitled to support the decree on those grounds also, and indeed, the first defendant has chosen to exercise that right before us.
4. It will be convenient for me to deal, at the outset, with the question in regard to the burden of proof in respect of Issues Nos. 1, 2 and 4 relating to due execution, testamentary capacity and undue influence, respectively. Fortunately for us, this question has been dealt with exhaustively by the Supreme Court n its very recent decision in the case of Surrender Pal v. Saraswati, . The
appeal before the Supreme Court arose out of an order granting probate of the Will of one Bhim Sain Arora in favour of his second wife, Saraswati, his first wife having died. The facts of the case were that on the very next day after His marriage with Saraswati, the deceased made preparations to execute the Will and, in fact, executed the same, and the deceased survived for about three years after the execution of the said Will. Saraswati having applied for a grant of probate of the Will testimento-cum-an-nexo, a caveat was filed by Surendra Pal, who was the son of the deceased by his first wife. The grant of probate of the said will to Saraswati was contested, inter alia, on the ground that the Will was not a genuine document, that the signature of the deceased on the Will was not his real signature, that at the time of the execution of the Will the deceased did not know the contents of the document he was signing, and that, in any event, the Will had been procured by fraud, coercion and undue influence. All the issues were answered against the caveat by the trial Court which ordered Probate to issue, and that decision was confirmed by a Division Bench of the High Court. On further appeal to the Supreme Court, the only grounds on which the Will was sought to be attacked were, first, that the Will had not been properly attested in so far as attestation had subsequently been appended to the Will, and secondly, that the Will had been procured by undue influence exercised on the deceased by the first respondent on the deceased by the first respondent, Saraswati "as a condition for their marriage", both those contentions having already been rejected by the trial Court as well as the lower Appellate Court.
5. On those facts, the Supreme Court laid down the law in regard to the onus of proof by stating (paragraph 7) that the profounder has to prove both due execution as well as the testamentary capacity of the testator, and that once those were established, the onus which rests on the profounder stands discharged. The Supreme Court, however, laid down a limitation on that proposition n so far as t stated that if, however, there were suspicious circumstances surrounding the execution of the Will, such as, where the signature was doubtful, or the testator was in a feeble state of mind, or the dispositions in thaw Will appeared to be unnatural or improper, or the profounder had taken a prominent part n the execution of the Will which conferred substantial benefits on him, the onus was on the profounder to explain satisfactorily those suspicious circumstances before probate could be ordered to issue, for after all, ultimately it was the conscience of the Court that had to be satisfied. The Supreme Court also laid down that where, however, the caveat alleged undue influence, fraud or coercion having been practised on the deceased in regard to the execution of the said Will, the onus was on the caveat to prove the same, and f the caveat did not discharge the burden which rested upon him in that regard, probate of the Will must necessarily be granted, if due execution and testamentary capacity have been established by the profounder of the Will. There is one other point arising in this case on which also the judgment of the Supreme Court in Surrender Pal's case has a bearing, and that is, that the Supreme Court has observed (paras. 14-15) that inferences arising from relationships between a testator and a legatee are so dependant on the peculiarities of the society or community to which the testator and the legatee belong, and their habits. customs, and ways of thinking, that it is very difficult to reduce them to a general rule so as to raise a presumption of undue influence from a particular type of relationship, and that the only kinds of relationship giving rise to such presumptions are those contemplated in Section 111 of the Evidence Act. The Supreme Court has further observed that any other presumption from a relationship must, to be acceptable, be capable of being raised only under Section 114 of the Indian Evidence Act, such presumptions of fact being really optional inferences from proof of a frequently recurring set of facts. The Supreme Court laid down that the correct legal position is that a suggested inference of undue influence would therefore be a matter of proof on the particular facts of the case before the Court. It is true that the decision of the Supreme Court in Surendra Pla's case was in regard to a matter relating to the testamentary jurisdiction of the Court before which an application for the grant of probate was made which, if ordered, would be a judgment in rem within the terms of Section 41 of the Indian Evidence Act and may, therefore, beside to possess a greater solemnity and effect than an ordinary judgment interprets. NO such question can arise n the present case because, in view of the provisions of Section 213 read with Section 57 of the Indian Succession Act, probate is not required in respect of the Will in the present case, and the question had arisen n an ordinary suit filed for an appropriate declaration, as well as orders for possession and injunction in order to enforce the provisions of the Will of the Deceased. All the same, in my opinion, the same principles, as have been laid down by the Supreme Court in Surendra Pal's case, must apply to the present case also. The Supreme Court has in Surendra Pla's case lad down the law in regard to the onus of proof of the various issues that arise n a litigation relating to a Will in such exhaustive terms that it s really unnecessary to go to any other decisions of the Privy Council which, apart from the high authority of the Privy Council, are still good law in so far as they deal with a slightly different fact of the problem before us. The first of them is the decision of the Privy Council in the case of Bur Singh v. Uttam Singh, ((1911) ILR 38 Cal 355 at pp. 366-367) (PC} in which, after laying down the fundamental proposition that the onus of proving the testamentary capacity of the deceased lay on those by whom the Will was propounded, the Privy Council dealt with the question of proof of undue influence and stated that, as far as the charge of undue influence was concerned, all that had been shown on the part of those attacking the will before it was, that there was motive and opportunity for the exercise of such influence by the defendants and that some of them had in fact benefited by the will to the exclusion of other relatives of equal or nearer degree. With regard to that, the Privy Council observed that circumstances of that character might sometimes suggest suspicion, and would certainly lead the Court to scrutinise the evidence with special care, but in order to set aside the will, there must be clear evidence that undue influence was in fact exercised, or that the illness of the testator so affected his mental faculties as to make them unequal to the task of disposing of his property. The same proposition was reiterated by the Privy Council in its later decision in the case of Gomtibai v. anchhedlal, AIR 1959 PC 272 para 28. Incidentally, it may be pointed out that one of the contentions urged before the Privy Council in Gomtibai's case was the very contention which was urged in the course of the arguments before us, and that was that it was unnatural that the testator's wife did not know anything about the will. IN regard to that contention, it was observed by the Privy Council in its judgment in Gomtibai's case (para 27) that it was unable to draw any sinister inference from the circumstances that the wife did not know anything about the will. The additional proposition which emerges from these two decisions of the Privy Council, therefore, is that in regard to undue influence, it is not sufficient that the profounder of the Will should have been in a position to exercise much influence or should have the opportunity or chance of practising it, but it is further necessary that there must be evidence to show that such undue influence was, infect, exercised on the deceased by the person who sees to propound the will and who may have benefited substantially from it.
6. I will now proceed to discuss the evidence in regard to issues Nos. 1, 2 and 4, which relate to due execution, testamentary capacity and the plea of undue influence, in the light of the legal position laid down by the highest Courts which has been set out in the preceding paragraphs. Before I do so, I may at once state that, in my opinion, the provisions of the Will dated 4th August, 1963, are perfectly natural in so far as the first defendant who was the second wife of the deceased had born no children by herself, and it appears from the record in the present case that she had already been gifted certain land at the time of her marriage with the deceased. IN view of those two facts, the provision of a house for her residence during her lifetime, and the bequest of Survey No. 296 at Mamurabad ad measuring 5 acres and 20 gunthas to her for life were perfectly natural provisions, and I would not expect the testator to provide anything more for her in those circumstances. The principles which require the Court to exercise a close scrutiny on the evidence in the case of wills and dispositions in wills which are unnatural and improbable can, therefore I have no application to the present case. Dealing first with the evidence with regard to due execution, the plaintiff, Totaram, had deposed to the same briefly in his examination-in-chief in which he has said that the Will was written on the verandah of the store room of the District Court at Jalgaon to which place the deceased had gone for the express purpose. IN his cross-examination the plaintiff, Totaram, has, in my opinion told certain unnecessary lies, but I do not think that the same can detract wholly from the probative value of his evidence, as far as the question of due execution or testamentary capacity is concerned, in regard to which his evidence stands corroborated by other evidence to which I will presently refer. For instance, Totaram was certainly deposing falsely when he said that he stood 10 or 12 feet away from the deceased when instructions were being given by the deceased to the scribe, that he did not read the rough draft of the Will which was prepared there, and that he did not read the Will after it was handed over to him, or think it necessary to question the deceased in regard to the provisions made by him by that Will. His evidence in the course of cross-examination that he opened the envelope containing the Will after the Kriyakarma of his father is also somewhat improbable. His evidence in cross-examination that the deceased told him of his intention to execute the Will only when they were in the Court premises on the 4th of August, 1963, is also one which is hard to believe. These statements made by Totaram in cross-examination appear to me to have sprung from an over anxiety to sustain the validity of the Will, but the same do not relate to the question as to whether the deceased put his signature to the Will, or to the question as to whether the attesting witnesses put their signatures thereon at that time, on both of which not only is there no material infirmity in his evidence, but his evidence stands corroborated by the evidence of the scribe as well as of the two attesting witness. The scribe, Narhar Narayan, has stated that he had nown the decades for about 7 or 8 years before his death, as the deceased used to visit a neighbour of his, and that the deceased had seen him two days prior to the 4th of August 1963 at Jalgaon Kacheri and had requested him to meet him at the bus stand at Jalgaon as he wanted to get some documents written by him on Sunday the 4th of August 1963. Narrhar Narayan is a professional Petition Writer of long standing, and there is, therefore, nothing unnatural in the deceased having approached him for writing of his Will. He has deposed that he accordingly met the deceased at the bus stand at Jalgaon and both of them proceeded to the Court premises where three other persons, whom he did not know, arrived 15 or 20 minutes later. His evidence that he did not ask the deceased as to why he was taking him to the Court premises on a Sunday when the Court was closed appears to be somewhat improbable, but he has not been shaken at all in regard to his evidence about the instructions given to him by the deceased, to his having written out a rough draft of the Will, and to the reading out of that draft by him to the deceased. He has also stated that the plaintiff was present when the Will was signed by the deceased, and that the deceased thereafter put the Will in an envelope and handed it over "to one of the three persons". Narhar has stated in his cross-examination that the deceased had brought the 7-12 extracts and extracts of the assessment list of the Gram Panchayat with him there, though he had not brought the copy of the "decrees". He has denied the suggestions which were put to him to the effect that he wrote out the Will on a paper which already bore the signature of the deceased, or that he did so without the knowledge of the deceased. There is nothing in the cross-examination of the scribe, Narhar, to discredit his testimony, though I may state that there are certain discrepancies as between his evidence as compared with the evidence of the other witnesses with which I will deal later.
7. That brings me to the evidence of the two attesting witnesses. The first of them, Shankar Chavdas, was the son of the deceased's wife's sister and therefore a first cousin of the plaintiff. He has deposed very briefly to the execution and attestation of the Will in his examination-in-Chief. He was cross-examined as to how he happened to come there and he stated that the deceased had told him on the previous day to accompany him to Jalgaon on the next day, and that he started from Asode at about 10 a.m. in the company of the deceased, the second attesting witness Sampat, and the plaintiff. He has then stated that the deceased and the scribe came to the Court premises 15 or 20 minutes after he, Sampat and the plaintiff had reached the same, and that the deceased then announced that he intended to execute a will, and all of the Will was thereafter written out. He has deposed that they were in the Court premises unto 2 or 3 p.m. There is nothing in the cross-examination of witness Shankar to show that he is not a witness of truth, though the fact that he is a first cousin of the plaintiff must make the Court circumspect in assessing the value of his testimony. The second attesting witness Sampat has also deposed in brief terms to the execution and attestation of the Will. It may be mentioned at once that he is an independent witness, not related to the plaintiff or the deceased. He has denied the suggestion that the deceased had been sic for about 3 or 4 years before his death and was not in good health, asserting that the deceased was in good health at the time of the execution of the Will. In the course of his cross-examination, he has said that the deceased had told him only when they were in the bus that he desired to execute a will, though he had been told a day earlier that he should accompany the deceased to Jalgaon. He has also stated that he accompanied the other attesting witness Shankar and the plaintiff from the bus stand at Jalgaon to the Court premises, and that it was 10 or 15 minutes after that that the deceased came to the Court premises in the company of the scribe. In cross-examination he has further deposed that instructions for the preparation of the Will were given by the deceased in a tone which was audible to all of them who were sitting very near to the deceased, and that the rough draft was read over and there-after the fair Will was written out. He has further stated that the fair Will was read over by the writer, that all of them heard the contents of it, and that after its execution and attestation, the Will was handed over to the plaintiff, the whole transaction having ended at about 2 or 3 p.m. I am quite impressed by the evidence of witness Sampat, and I have no hesitation in accepting his testimony, except, perhaps, his statement that he did not question the deceased as to why he was being taken to Jalgaon, till they were in the motion bus, which appears to be somewhat improbable.
8. As against all this positive evidence in regard to the due execution of the Will, we have the evidence of the first defendant who, admittedly, was not told anything about the intention of the deceased to execute the Will, conduct which appears to me to be perfectly natural on the part of the testator who must have known that his testamentary disposition would not please his wife. The evidence of the first defendant herself, which is the only evidence on her side, appears to me to be nothing more than, what I would call, "a shot in the dark". She has stated in her evidence, "the plaintiff must have taken the signature of my husband on the paper under influence". This is nothing more than a surmise. The very next sentence in her evidence shows that the basis of that surmise is also very slender, viz., that it is because she came to known of the Will only 2 1/2 months after the death of the deceased that she concludes that the Will must have been improperly procured by the plaintiff. She has also stated that the plaintiff used to take "our signatures " on lank paper for the suit which Tulasabai had filed against the deceased and her self , but I don's believe that evidence of the first defendant for the simple reason that if the plaintiff was the general powers of attorney holder of the deceased as she herself has stated in her evidence there would be no reason for the plaintiff to take the signature of the decreased on blank papers of paper. In face if he were to ask the deceased for such signature,, he would be promptly met with the question as to why it was necessary to obtain those signatures, when the plaintiff himself could sign on behalf of the deceased as his General Mukhtyar. Moreover, we have seen the original of the Will (Ex. No.) very carefully and it is impossible to say that the signature of the deceased could have been obtained first, and the will written above it afterwards particularly in so far as the signature of the deceased does not appear to have been taken either at the end of a sheet or a half sheet, but occurs at the place in between just where the body of the Will terminates. In fact the first defendant has had to admit in her cross-ambition that she does not know where the Will was executed and, under those circumstances, her evidence cannot possibly discredit the scribe, made the two attesting witness who have deposed to its due execution and attestation.
9. I must however, deal with what listed before us as discrepancies between the evidence of the different witnesses for the plaintiff inter se. The first discrepancy pointed out to us was that whereas according to the scribe Narhar, he and the testator went to the Court premises first and the plaintiff and the two attesting witnesses followed after 15 of 20 minutes both the attention witnesses have deposed that they had in the company of the plaintiff reached the Court premises first add the deceased and the scribe Narhar had come there 10 to 20 minutes later. In my opinion this discrepancy is not difficult to explain in view of the fact that the witnesses were deposing in September 1965, in regard to what transpired in August 1963, and they may therefore be forgiven if there is a slight lapse of memory on their part in regard to the order in which they reached the court premises on the day in question. The next discrepancy which was relied upon was on the question as to whether the Will was handed over to the plaintiff there and then. The plaintiff has stated that the deceased gave him the closed envelope containing the Will at about 4 p.m. which would mean that it was handed over to him shortly after its execution and attestation. The scribe Narhar, has stated that the Will was handed over "to one of the three persons", which would mean either the plaintiff or one of the two attention witnesses who, according to him, were the three persons who arrived together at the court premises and have been referred to by him as such. I see no discrepancy at all as between that evidence and the evidence of the plaintiff. The second attention witness Sampat has also deposed that after the execution and attestation of the Will if was given by the deceased to the plaintiff. As against that the first attesting witness Shankar has stated in his evidence that the written will and the draft were with the deceased, and the has not stated that the same wear handed over by the deceased to the plaintiff. That again is in my opinion not a discrepancy at all for all that it comes to is that the attention witness Shankar had not noticed the subsequent handing over for the envelope containing the Will by the deceased to the plaintiff.. I, there fore do not attach any importance to this alleged discrepancy either . The third discrepancy which was pointed out to us was on the question as to whether ace of the plaintiff witnesses knew why they were precedent to the District Court on the day o which the Will was executed there. It was pertinent to note that all of them profess to deny knowledge of that fact. Attention witness Sampan deposes that he was told about the purposed of their visit whilst they were in the bus but attesation witness Shankar has stated that all that he told them when they got out from the bus was that he was "to keep some writing", and scribe Narhar has also stated that all that the deceased had told him when he had met with deceased a couple of day earlier was that the deceased emanated some documents written by him, and even on the day in question itself, all that the deceased had told him was that the writing which was to be written our was not one which was required to be registered. the plaintiff himself has in his evidence stated that it was only in the court premises that the deceased had told him that his intention was to execute a will. It is hard to believe the evidence of any of these witnesses on this point and I cannot help feeling that each of teem has been at past to make out that he did no now the purpose of the visit to the Court premises. Even so, I am not prepared to regard the evidence of any of these witnesses on this point as suffering from such an infirmity as would require the Court to discard their testimony altogether. The next discrepancy which was pointed out to us was on the question whether the draft will or final will was read over there and then. The plaintiff has stated in his evidence that he did not read the rough draft that was prepared there, and that none of those persons present suggested any correction in that draft. He has further deposed that even after the fair will was execution and was handed over to him he did not read the same. The scribe, Narhar, has stated that he had read out the rough draft to the deceased and attesting witness Shankar as well as attesting witness Sampat have also stated that the draft was read over, Shankar station that the radian over of the rough draft was herald by all persons including the plaintiff and Sampat station that the reading over of the fair will by the scribe was heard by all those present there. I am afraid I do not find anything in the evidence of these witness inter which could be said to be in the nature of discrepancy, except, perhaps, this that the plaintiff has unfortunately feigned ignorance of the knowledge of the contents for the rough draft as well as the fair will which he need not have done. The last point on which a discrepancy was sought to be pointed out was as to who put the fair will in the envelope. The plaintiff has stated in his evidence that the will was kept in an envelope which was closed by the deceased and that envelope was given to him by the deceased at about 4 p.m. that day. The scribe Narhar has stated in clear terms that it was the deceased himself who had put the will in an envelope and had handed over to one of the three other persons present there. As against that neither of the two attesting witness referred at all to the will having been put in an envelope. In my opinion, their evidence does not disclose any discrepancy on this point and in any event the same relates to some thing which in so trivial and inconsequential, that I would not attach any importance to it either. The result of this discussion of the alleged discrepancies it that for the reasons stated by me above there is nothing at all brought out in the evidence of the plaintiffs witnesses which could possibly be said to detract from the probative value of their testimony.
10. It was next sought to be contended that there are certain suspicious circumstances in the case which it is the duty of the plaintiff has failed to explain. The first of those circumstances relied upon was that the will was executed at Jalgaon and not in the house of the deceased as Sod but in my opinion there was an obvious reason for the deceased not to execute the will in his house at Asode where he admittedly lived with the first defend. The provisions of the will could not possible have been to the linking of the first defendant and the deceased was therefore in my opinion perfectly justified in keeping the contents as well as the execution of the will a secret from the first defendant. Having regard to that position it is in my opinion, not conceivable that the deceased should have executed the will in his house at Asode which would lead to unpleasant consequences as between himself and the first defendant who was his second wife and with whom he was living in that house. The second suspicious circumstance relied upon was that the will was executed in secrecy without the knowledge of the first defendant in which compound of the District Court on a Sunday. The observations which I have made in regard to the first circumstance relied upon apply to this also, and I have made in regard to the first circumstance relied upon apply to this also, and I have nothing more to say about it except that an exactly similarly contention was held by the Privy Council in Gomtibai's case (AIR 1949 PC 272) Para 27 which has already been cited by me above, to be not a circumstance from which any sinister inference can be drawn against the profounder for the Will. The third circumstance which was characterised as suspicious was that the will was not disclosed by the plaintiff till April 1964, which would be just about two months after the death f the deceased which accrued on the 12th of February, 1964. As far as that is concerned it is pertinent to note that the plaintiff was already in possession and management of the very properties which were bequeathed to him by the deceased by his will, and he was therefore in no hurry to disclose of to rely upon the will till the question of mutation o centres in the revenue records arose a couple of months after the death of the deceased. This circumstances cannot therefore be said to be one which can arouse any suspicion in the mind of the Court at all. The next circumstance which was relied upon was that the plaintiff was admittedly the general Mukhtyar of the deceased As pointed out by the Privy Council both in Bur Singh's case (1911) ILR 38 Cal 355 (at p. 367) (PC) as well as in Gomitibai's case (Para. 28) both of which have already been cited by me above it is not sufficient for a cavetor to show that the profounder of the will had the motive of the opportunity of exercising undue influence, but there must further be clear evidence to show that undue influence was in fact exercised by the profounder over the deceased. There is no such evidence in the present case. and this circumstance itself cannot therefore be said to be in the nature of the suspicious circumstance at all. Lastly, it was sought to be pointed out that it is somewhat curious that the numbers of the houses and the number of Tulsabai's suit should have been stated in the will if it was really executed in the circumstances alleged by the plaintiff and his witnesses. As far as that is concerned, the evidence of the scribe Narhar, shows that the deceased had brought the 7 -12 extracts and the extracts of the assessment list from the Gram Panchyat with himself at the time of execution of the will, and it would therefore be not surprising if the house numbers and the land numbers were stated in the will as they have been. As far as the suit number is concerned it would not be a very difficult problem for the deceased to remember one single number, Vez., that of the suit which Tulsabai had filed against him, which might very well have imprinted on his memory since it must have caused him considerable trouble and worry. For the reasons stated above, in my opinion there is no circumstance relation to the execution and attestation of this will which could be said arouse any suspicion in the mind of the Court. The result of the discussion of this evidence is that I have no hesitation in coming to the conclusion that due execution for he will has been proved by the evidence led by the plaintiff.
11. As far as testamentary capacity is concerned all that the first defendant herself has said in her evidence is that the deceased was sick for one year before his death, and what she meant by that sickness is clarified in the very next sentence in somewhat amusing terms in so far as she has said that the deceased had "Pimples" on his foot, by which I presume corns or boils and he could not go out of the house she has denied the suggestion put to her in cross examination that the deceased had been ill only for about 15 days or a month prior to his death. She has also deposed that her husband had lost his sight about six months before his death and he was not in a position to sign during that period. That evidence of hers cannot be accepted in view of the categorical evidence of the plaintiff and his witnesses which, for the reasons stated above, I have had no hesitation in accepting. One the question of testamentary capacity itself, we have the specific evidence of the scribe, Narhar, who has stated that the deceased was in goo health at the item of execution of the will, and the plaintiff who has also deposed that the deceased was in good health at the time of execution of the will and was able to walk. The plaintiff has denied the suggestion put to him in the course of cross examination to the contrary. We have also the unchallenged evidence of attention witness Sampan who has said that the deceased was in good health at the time when he executed the Will. I have therefore, no hesitation in holding that the deceased was of sound and disposing state of mind at the time he executed the will dated 4th August, 1963.
12. I will now turn to the evidence on the question of undue influence in regard to which, as already stated above the onus in on the first defendant. I may state that this question has been dealt with very scrappily and unsatisfactorily in Para. 13 of the judgment of the learned trial Judge where he discloses and incorrect approach to the same. Since the onus on this issue is on the first defendant, it would be appropriate to refer first to her evidence. As already pointed out undue n flunk is merely in the nature of a surmise when she states, " the plaintiff must have taken the signature of my husband on the paper under influence ". That surmise is apparently based on the immediately preceding sentence n her evidence that according to her, the plaintiff had influence on her husband, as well as the succeeding sentence in which she has stated that the she came to know of the Will 2 1/2 months after her husband's death. Not only is that evidence wholly insufficient to discharge the onus which rests upon her of proving that the will was procured by undue influence but, as laid down the Privy Council in Bur Singh's case as well as n Gomtibai's case cited above (AIR 1949 PC 272), the mere fact that the profounder of a will was in a position to influence the deceased is not sufficient but the caveat must lead evidence that such influence was in fact exercised by the deceased. There is no evidence worth the name led by the first defendant as far as the actual exercise of undue influence by the plaintiff on the deceased is concerned. In that view of the matter, it would be unnecessary for me to discuss the evidence led on behalf of the plaintiff which clear speaks to the contrary. Suffice it to say, that the evidence in regard to the circumstances leading to the execution and attestation of the will clearly shows that the deceased had undoubtedly prepared for the execution of the will and had actually arranged for its execution and attestation as a matter of his own free will and there is therefore no question of any undue influence having been exercised on him by the plaintiff or any other person in that behalf. I have therefore, no hesitation in coming to the conclusion that the first defendant has hopelessly failed to discharge the onus which rests upon her of proving that the will was procured by the plaintiff by undue influence and in holding that the evidence led by the plaintiff actually negatives the plea of undue influence set up by the first defendant. In my opinion the conclusion of the learned trial judge on this point is clearly erroneous and seems to have been the result of putting the onus on the plaintiff contrary to the clear legal position laid down by the authorities already discussed above. The not sufficient 4th issues framed by him was correct as far as the question of onus was concerned. In actually dealing with the same he however appears to have lost sight of the question for onus was concerned. In actually dealing with the same, he however appears to have lost sight of the question of onus of proof of that issue. In my opinion, the question of onus should not enter into the framing of issues at all, but should be dealt with by the court when taking up the issues for consideration. The form in which an issue is framed should not be determinative of the question of onus. For instance, issue No. 4 could well have been framed in the following form:-
" Was the will dated 4th August, 1963, obtained by the plaintiff by the exercise of undue influence on the deceased ?" The question of onus could then have been dealt with by the learned trial Judge at the time of dealing with the issues. That has been the practice consistently followed on the original Side of this court. Had the learned trial Judge done so, he would not have lost Sgt of the question of onus of proof in regard to this issues as he did. The question of onus is sometimes a complicated question which may also have a bearing on the further question of the right to begin under Rules 2 and 3 of Order 18 of the Code for Civil Procedure, and s therefore, best left to be decided after issues are framed and arguments are heard in regard to the same. It cannot be fixed by the mere form in which the issues have been framed by the court.
13. That brings me to a consideration of issue No. 5 which relates to the question as to what was the property which was the deceased had the authority to dispose of by wall. A consideration of Hs issue has led us to a consideration of an important and interest on point of Hindu Law which must necessarily be decided by us for the purposes of arriving at our conclusion on that issue. t was sought to be contented on behalf of the first defendant that in vies of the decree passed in the partition suit fled by Tulsabai (Special Suit No. 29 of 1951) under which Tulsabai was given a 1/3rd share in the joint family property and in view of the fact that Tulsabai had actually got her share separated n consequence of that decree, that first defendant had become entitled to a one-half share in the remaining property the other one - half share being the property of the deceased. It was therefore submitted that the deceased had a disposable interest only n one-half of the suit property and that the will which he purported make could not operate on the first defendant's moiety of the property by reason of the facts stated above. The intersection question of Hindu Law that arises therefore is whether separation by metes and bounds of the share of a son or His widow has the effect of separation the share of the mother also, so as to deprive the father of His right as the sole surveying coparcener to dispose of the entire coparcenary property, inter viva or by will. For the decision of this question it is necessary for me to refer to four decision the first and perhaps the most important of them n chronological order s the decision of the Division Bench of this Court in the case of Raoji Bhikaji v. Anant Laxman. The facts of that case were that one Bhkaji died leaving a widow, Yeshodabai, and two son, Anat, who brought a suit for partition and possession of one-half share in the estate of Bhikaji, to which Raoji was joined as the first defendant and Yeshodabai as the second defendant. Raoji contended that the plaintiff was not entitled to one-half share as his mother was also entitled to her share at the time of partition. That plea was upheld by the Court which passed a preliminary decree assigning a one-third share in the properties to the plaintiff, Anant. Before the final decree could be passed, Yeshodabai died and the plaintiff thereafter made an application to the Court praying that His share should, by reason of the death of Veshodabai, be held to have increased to one moeity, and the preliminary decree should be amended accordingly. The trail Court granted that application, but from that order Rag preferred an appeal to the High Court, and in his judgment Bachelor, Acting C. J., stated (at p. 545) (of ILR Bom) = ( at p. 177 of AIR) that the share which Yeshodabai would have taken, if an actual partition had been effected, "was never severed from the estate of Bhaj, and, consequently, remains now an integral part of that estate available for division". In a concurring judgment, Shah, J., pointed out (at p. 178 of AIR) that Yeshodaba had taken no steps after the preliminary decree to obtain her share, and the estate of Bhkaji was, therefore, divisible between the plaintiff and the first defendant on her death without any reference to her share and the share which Yeshodabai would have taken after an actual partition had been effected "was never served from the estate of Bhikaji', and, consequently, remained an integral part of that estate available for division. It was further observed n the judgment of Shah, J., that in order that Yeshodabai's share "may become part of her property as distinguished from the estate of her husband, she must tae her share". It was held in the said case that Yeshodabai had not taken any effective steps to secure her share, that she had done nothing subsequently during her lifetime to obtain her share and that, therefore, "it was not severed from Bhikaji's estate". It was further stated by Shah, J., in the said case that it was not necessary to define precisely as to when the mother could be said to take her share, as the question must be decided with reference to the facts of each case, but on the facts of the case before him, it was clear that Yeshodabai had not taken her share as contemplated by the text, and that therefore the property of Bhikaj become liable to division on her death in equal shares between the plaintiff and the first defendant. The appeal filed by Raoji was, therefore, dismissed From the words quoted from the judgment in the said case, it is, in my opinion, quite clear that the severance of the mother's share which was contemplated both by the Acting Chief Justice as well as Shah, J., in their separate, but concurring judgments, was not merely a severance effected by the copartner who sought the partition in respect of the property coming to his share, but was the severance of the share allotted to the mother on that partition from the property coming to the share of the father, who, in this was Bhiaji.
14. The law, as laid down by the Division Bench in Raoji Bhikaji's case (AIR 1981 Bom 125) has been approved as representing the correct Mitaskshara Law on the point by the Privy Councl in the case of Pratapmull Agarwalla v. Dhanabati Bibi, 63 Ind App 33 at p. 45 = (AIR 1936 PC 20 at p. 24) and I must now proceed to deal with that decision. I may state at once that Pratapmull's case is considered as the leading authority on the subject now under consideration. In Pratapmull's case, the appellants were money lenders who had lent money to a joint Hindu family on mortgage of joint Hindu family on mortgage of joint family property. In a partition suit which had been filed by the son against his father and mother, a preliminary decree for partition was passed in which a one-third share of the joint family property was allotted to the mother, Dhanabati, but it was common ground that no actual division of the property ever too place. About a year later, a suit was brought by the appellants to enforce their mortgages and in that suit a consent decree was passed. The appellants there after filed another suit for a declaration that their mortgages were binding upon the defendants, and in particular, upon the defendant Dhanabati, and that it should be declared that the decree in the mortgage suit filed by them was also binding upon her, the appellants' contention being that the partition had been made with the object of saving the share of the mother, Dhanabati, from the mortgages. The trial Court held that when the mortgage suit was instituted, Dhanabati had no rights, except a right of maintenance, and that being so, the question whether the institution of the partition suit amounted to a severance affecting the status of the joint family did not arise, and that all the persons who had any actual interest at the time in the mortgaged property were in fact parties to the mortgage suit. It was, therefore held by the trial Court that the plaintiffs were entitled to succeed, and the declarations sought by them were granted. On appeal to the High Court, that appeal was allowed by a Division Bench, but on further appeal to the Privy Council, the judgment of the Division Bench of the High Court was set aside and that of the trial Judge restored, with a slight variation in the form of declaration granted by him. Approving the view taken by Mitre, J., in the case of Sheo Deyal Tewaree v. Judoonath Tewaree, (1868) 9 Suth WR 61, the Privy Council held (at pp. 44-45) that inasmuch as the preliminary decree in the partition suit was not carried out and no actual division of the joint family property was made. Dhanabati had not become the owner of the share mentioned in the preliminary decree. The Privy Council in it judgment of Mitter, J., in the said case in which Mitter, J., observed that if the mother had brought an action for arrears of maintenance, it would have been no answer to the same to plead that she was not entitled to be maintained out of the estate "because they were going to make over to her a share of it", as such a plea would be absurd and would mean that she would have to starve until the assignment was actually made. Reference was also made by the Privy Council to the observation of Mitter, J., in Sheo Dayal's case that the mother or the grand-mother was entitled to a share when sons or grandsons divide the family estate between themselves, but that she could not be recognised as the owner of such share until the division is actually made, as she had no pre-existing right in the estate, except a right of maintenance. In that view of the matter, the Privy Council confirmed the view taken by the trial JUdge and, setting aside the decree passed by the Division Bench, allowed the appeal before it.
15. A third judgment which was cited before us on the point which I am now considering was the recent judgment of the Supreme Court in the case of Satrughan v. Sabujpari, . That was a case in
which the widow of one Babuji had instituted a suit for partition and separate possession of a half share in the joint family properties against the collaterals of her husband. The trial Court dismissed that suit, but on appeal to the High Court, the suit was decreed on the ground that on the death of Babuji, his widow, by virtue of the Hindu Women's Rights to Property Act, 18 of 1937, acquired in the property of the coparcenary the same interest which Babuj had, and by the institution of the suit for partition, that interest became defined, and on her death, it devolved upon the appellants as heirs to the estate of Babuji. On appeal to the Supreme Court, that decision was confirmed. In so far as the said case dealt with the right of a widow under the Hindu Women's Rights to Property Act, 1937, it is not of any assistance to us for the purpose of the present case, for as the Supreme Court itself has pointed out (para 9), the interest which a widow acquires under Section 3(2) of the said Act has no analogy with the interest which a female member of a Hindu Joint Family acquires in the property of the joint family allotted to her on a partition between her sons or grandsons. It was laid down in the judgment in the said case that a Hindu window acquired under Section 3 (2) of the said Act, "even before division of the property", an interest in property, and that interest can be defined as soon as an unequivocal demand for partition was made by her. I am afraid, the decision of the Supreme Court in Satrughan's case is of no assistance to me for the purpose of the present judgment.
16. It was, however, strongly confounded by Mr. Gole on behalf of the first defendant that the separation to which the Privy Council refers in Pratapmull's case discussed above (AIR 1936 PC 20) is not a separation of the mother's share from the property of the father, but is a separation of the share of the coparceners who had sought the partition in the course of which the mother had been allotted a share. In support of that proposition, Mr. Gole relied on the decision of a Single Judge of the Nagpur High Court in the case of Nanuram v. Radhabai (AIR 1940 Nag. 241). The facts of that case were that one is an filed the two suits out of which the said appeal arose, contending that there had been a partition in the family at the instance of the sons whereby the property had been divided into five shares, and the sons each too a one-fifth share and enjoyed it separately, whilst the plaintiffs who were allotted 1/5th share in lieu of maintenance continued to live with their husband Kisan. It was an admitted position that the shares of the plaintiffs had not been separated by metes and bounds from the share of their husband Kisan. It appears that Kisan disposed of some of the properties to the defendants in those two suits. Kisan thereafter died sometime in the year 1963, and the contention of the plaintiffs was that Kisan had no authority to dispose of their shares in the said property since all the three of them were in possession as tenants-in-common, and they, therefore, claimed joint possession of the property thus alienated, with the aliens. The plaintiffs succeeded in both the courts below, but one of the defendants preferred an appeal to the High Court. Though the partition was, at one stage of the proceedings, sought to be disputed, it is stated in the judgment of the High Court that it had not been denied before it that there was a partition in the year 1944 in regard to which there was a finding of fact in the Courts below that the intention was that the wives should have a share each. There were as far as the legal position of the plaintiffs was concerned however, two alternative contentions advanced before the High Court. The first was that, as a result of the partition, the father had become the exclusive owner of a three-fifth share, and that the wives obtained no share at all in the partition. alternatively, it was contended that if the wives did obtain a share each, then as a consequence of their husband as manager of their property with the consequent powers of alienation which a manager has. In regard to the first of those contentions, the learned Judge of the Nagger High Court referred to the decision of the Privy Council in Pratapmull's case which has already been discussed by me above and distinguished the said case on the ground that in that case there had been no final division of the coparcenary property to be enjoyed in severalty by the various coparceners. The learned Judge took the view (at page 243, Col. 2) that if the partition proceedings stopped short at a severance of the joint status, the copartners still remained tenants-in common, and a wife or a widowed mother had no further claim than that of maintenance out of the family property, and that her title to a share only crystallised when there had been a division among the coparceners by metes and bounds and there was no more joint family or coparcenary property left to which she could loo for her maintenance. It was, therefore, held (at p. 244, Col. 1) by the learned Judge that as soon as the division by metes and bounds had taken place, the plaintiffs became entitled to their share, and the fact that the coparceners had not divided their shares by metes and bounds inter se or from the share of the father was immaterial. In regard to the alternative contention advanced before him, the learned Judge too the view that after the partition, there was no longer any coparcenary property and that all the property had become separate property in the hands of the coparceners and their wives, and there was, therefore, no coparcenary property for the father to manage. The view taken by the learned Judge of the Nagpur High Court was that it was only a joint family consisting of coparceners in an undivided state who could separate; that there could be no separation between a husband and his wives, and that there was in the case before him no coparcenary in existence. It was further held that a manager had only the power of disposition over coparcenary property, and nothing that Kisan did was done by him in his capacity as a manager of joint family property. Since the father and his wives, the two plaintiffs, were holding the property as tenants-in-common in the said case, there was no question of the father having authority as the manager to dispose of the same without the express consent of the plaintiffs, in regard to which there was no evidence before the Court. A their contention in regard to ostensible ownership was also raised, but the same is not relevant for the purpose of the present case. The appeal was, therefore, dismissed and the decree for joint possession in favour of the plaintiffs by both the lower Courts confirmed.
17. The construction which the learned Judge of the Nagpur High Court has placed on the decision of the Privy Council in Pratapmull's case (AIR 1963 PC 20) was strongly relied upon by Mr. Gole before us. However, whatever plausibility that argument of Mr. Gole might appear to have is destroyed by the fact that the Privy Council has, in Pratapmull's case, stated, in the clearest possible terms, that the law as laid down by the Division Bench of this Court in Raoji Bhikaji's case represents the correct Mitashara law on the point which I am now considering. As already pointed out by me above, the words which I have actually quoted from unmistakably that the separation of the share of the mother which was contemplated in that case was not merely a separation qua the coparceners who sought the partition in the course of which the mother was assigned her share, but was a separation as between the property of the mother and the property of the father. It is further stated in the judgment in Raoji BhiKaji's case that untie that separation was effected, the mother could not be said to be the owner of the share which had been assigned to her on partition but merely continued to have a right of maintenance, as she had before the partition. It is only after a partition is effected by her sons or their widows in the course of which the mother is assigned a share, and after a separation of that share is effected by metes and bounds from the property of the father, that the right which the father has as the sole surviving coparcener to dispose of the whole of the remaining property, including the share of the mother inter vivos or by will, ceases.
18. Turning to the facts of the present case, in the light of the above legal position, though there is a plea to be found in paragraphs 5 and 6 of the Written Statement of the first defendant that she had enjoyed separate possession and management of the share which had been assigned to her, there is no evidence whatsoever on record to substantiate the same. Even in her own evidence the first defendant has not made any such statement, and under the circumstances, it must be held that the share of the first defendant in the present case was not separated by metes and bounds from the share of the deceased at any time prior to his death. IN the case of a partition effected by a decree, the question as to whether the separation was only a separation of the plaintiffs from the coparceners, or was the separation of all the members of the joint family from each other, must be determined on a construction of the partition decree itself which must be regarded as the sole evidence for that purpose. In a case of partition effected otherwise, the facts and surrounding circumstances may, of course, be lode at, but I am concerned in the present case with a partition which was sought to be effected by the decree passed in Tulsabai's suit, being Special Suit No. 29 of 1951 and, under the circumstances, it is that decree alone which must be looked at for the purpose of finding out whether there was a separation only between Tulsabai and the rest of the family, or whether there was a separation between all the members of the joint family from each other. We have seen the said decree (Ex. 46), which is the preliminary decree as well as the decree (Ex. 47) which is the final decree. What the former decree pronounces is that there is a partition of Tulsabai's 1/3rd share in the joint family property. Under those circumstances, it is quite clear that there was at no time any separation of property by metes and bounds between the first defendant and the deceased.
19. Having regard to the legal position discussed above, it must follow that the first defendant was, therefore, not the owner of the share which had been assigned to her under the preliminary decree in Special Suit filed by Tulsabai, and the deceased, as the sole surviving coparcener, was therefore entitled to dispose of the hole of the remaining property, which is the suit property, by his Will dated 4th August 1963, as he has done. The 5th issue was therefore correctly answered by the learned trial Judge in favour of the plaintiff. In the result, I would allow the appeal, set aside the order of the learned trial Judge dismissing the plaintiff's suit and pass a decree in favour of the plaintiff.
Naik, J.
20. I agree and have nothing to add.
BY THE COURT
21. The appeal is allowed. The order of dismissal of the suit passed by the trial Court is set aside, and we pass a decree in favour of the plaintiff in terms of prayers (a) , (b) and (c) of the plaint. We also make an order for the determination of future mesne profits under the provisions of Order 20, Rule 12 (1) (c) of the Code of Civil Procedure, 1908, as applicable in this State. We also set aside the order for costs passed by the lower Court, and in the circumstances of this case, order that each party should bear its own costs throughout.
22. Appeal allowed.
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