question of existence or absence of suspicious
circumstance is a question of fact and the question of
competency of the testator is also a question of fact. At
the time of appreciation of the evidence of the witnesses
necessary weight needs to be given to the findings given
regarding truthfulness of the witness by the Court which
had opportunity to observe the witnesses. On all these
points, the Courts below have given concurrent finding
and those findings are on question of facts.
33) There cannot be dispute over propositions
made in the cases cited supra. Whether a circumstance is
suspicious or not depends on facts and circumstances of
that case. In one case it can be said that due to old age of
the testator it was necessary to have certificate of fitness
given by Doctor but in other case the Court may come to
the conclusion that there was no such requirement of
certificate. Similarly in one case, on the basis of nature of
evidence, the Court may come to conclusion that due
execution of will is not proved. In one case, registration of
will may not be sufficient to make the will acceptable if
the basic test of due execution of will is not passed. In one
case, the exclusion or deprivation of legal heirs and
participation of propounder of will in the execution of will
can become a suspicious circumstance. In one case the
conduct of the propounder to avoid to step in witness box
may itself becomes sufficient to discard the will. All the
aforesaid circumstances are relevant in the present
matter and it is one such case where due to aforesaid
circumstances the Courts below have held that due
execution of the will is not proved and the suspicious
circumstances are not explained. Findings are given on
the basis of material available on the record. In view of
the facts and circumstances of the present case and the
position of law which is settled, this Court holds that no
substantial question of law as such is involved and on the
grounds which are already quoted no case is made out for
formulation of substantial questions of law.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Second Appeal No. 772 of 2013
With
Civil Application No.13646 of 2013
Suryabhan S/o Namdeo Vakte
Versus
Bhagirathibai @ Vatsalabai
Tulshidas Chavan
CORAM: T.V. NALAWADE, J.
DATE : 14th SEPTEMBER 2015
Citation;AIR 2016(NOC)367 Bom
1) The appeal is filed to challenge the judgment
and decree of Special Civil Suit No.31/1999 which was
pending in the Court of the Civil Judge, Senior Division,
Kopargaon and also to challenge the judgment and order
of Regular Civil Appeal No.50/2003 which was pending in
the District Court Kopargaon. Respondent No.1 had filed
suit for partition and separate possession in respect of
immovable and movable property. Half share is given to
respondent, plaintiff by the Courts below. Original
defendant Nos. 3,7 and 8 have challenged the decision.
Both sides are heard.
2) It is the case of the plaintiff that suit property
was joint Hindu family property of her father Ananda and
her uncle Namdeo. It is the case of the plaintiff that she is
only heir left behind by Ananda. It is the case of the
plaintiff that defendant No.1 Namdeo is uncle of the
plaintiff, defendant No.2 is wife of defendant No.1 and
defendant Nos.3 to 10 are the issues of defendant Nos.1
and 2. It is contended that Ananda and Namdeo each had
one-half share in the suit property and after death of
Ananda, plaintiff became entitled to get share of Ananda.
Ananda died on 6-4-1990 at Jeur Kumbhari when he was
aged about 91 to 92 years. It is contended that partition
had not taken place between Ananda and Namdeo.
3) It is the case of the plaintiff that Ananda used
to discuss the matter of joint Hindu family property with
her and he had promised that he would see that in his life
time he would partition the property and he would give
one-half share to the plaintiff. It is contended that when
after the death of Ananda, the plaintiff asked the
defendants to partition the property, defendants said that
Ananda has left behind a will in their favour and she is not
entitled to get anything from the suit property. It is
contended by the plaintiff that if at all there is such will,
that must have been obtained by fraud by the defendants
as Ananda had never expressed desire to give his share to
the defendants. It is contended that the defendants must
have obtained signatures of Ananda by making false
representation by saying that it was partition document.
It is contended that the said will is void and it is not
binding on her.
4) It is the case of the plaintiff that Ananda used
to live in Kopargaon and she used to send tiffin for
Ananda. It is the case of the plaintiff that the defendants
must have taken Ananda to Jeur Kumbhari in her
temporary absence and by misusing his old age and the
fact that he was not able to understand the things, they
must have obtained signatures on some document and so
the said document was not executed out of free consent.
5) It is the case of the plaintiff that after death of
Ananda, the defendants said that the property is
partitioned amongst themselves. It is her case that they
have done it to create complications and to defeat the
claim of the plaintiff.
6) Defendant No.3 and 8 have filed joint written
statement. They admitted relationship of the plaintiff with
them. Except one property like one plot and one motor
cycle they have admitted that Ananda had one half share
in remaining suit property. They have contended that
when Ananda was living in Jeur Kumbhari, on 21-3-1990,
he made a will voluntarily to give his property to
defendant No.3. It is contended that the will was
registered on 22-3-1990. It is contended that due to
relationship of defendant No.3 with other defendants he
allowed to partition the entire property amongst all the
defendants. It is their case that the will was not got
executed fraudulently. They specifically contended that
plot No.6 from the suit property was acquired by
defendant No.8 from his own income, from his salary
income and it was not joint Hindu family property.
Defendant No.7 adopted this written statement. Written
Statement of defendant Nos.1,2,4 to 6, 9 and 10 is similar
to the written statement of defendant Nos.3 and 8.
Defendant No.11 has also adopted written statement of
these defendants.
7) Issues were framed by the trial Court. Both
sides gave evidence. The trial Court and the first appellate
Court have held that due execution of will is not proved by
the defendants. It is held that there are suspicious
circumstances surrounding the will due to which the will
cannot be held as a valid will. The Courts below have held
that the plaintiff is entitled to get one half share in the suit
property except aforesaid plot and one motor cycle (plaint
property No.1-E and one motor cycle).
8) Learned counsel for the appellants submitted
that on the following points mentioned as the grounds
(Grounds V to IX) in appeal memo, substantial questions
of law need to be formulated.
"V. Whether both the learned lower Courts have
committed error by ignoring the admission given by
the plaintiff herself that her mother has expired
while she was four years old and her father deceased
Ananda was residing jointly with defendants till his
death and thus, it is sufficient to hold that the
defendants were taking care of deceased Ananda
and, therefore, it is but natural that out of affection
and considering the fact that Suryabhan being elder
brother amongst nephews has rightly executed the
will in favour of Suryabhan ?
VI. Whether both the learned lower Courts have
committed error by not considering the fact that,
once it has been proved by evidence of scribe and
the attesting witness that the deceased Ananda was
in good mental and physical condition and he signed
the will in their presence and so also attesting
witness have signed before the deceased Ananda, it
is sufficient to hold that will has been proved?
VII. Whether both the learned lower Courts have
failed to appreciate that in the first place, the
plaintiff had no right to claim any partition as she
has got married, as per her evidence prior to the
Hindu Succession Act came into force?
VIII. Whether both the learned lower Courts have
committed error in shifting the burden on the
defendants as regards not giving any share to the
plaintiff, when it is not the test for holding the will as
illegal. On that count and, therefore, whether both
the lower Courts have committed an error of law by
wrongly shifting a burden on wrong party ?
IX. It ought to be held that it is settled principle of
law that when a will is executed by a testator, the
real intention behind the execution of said will has to
be gathered and the circumstances of deprivation of
natural heir should not raise any suspicion, because
the whole idea behind execution of the will is to
interfere with the normal law of succession and so,
natural heirs would be debarred in every case of will
either fully or partly and thus even if will might be
unnatural that it has cut off whole or in part real
relation, does not render the will either illegal or
void and does not amount to suspicious
circumstance."
9) The defendants have not disputed relationship.
They have not disputed that till death Ananda and
defendant No.1, two real brothers, were living in joint
Hindu family and the properties, except aforesaid two
properties, were the joint Hindu family properties. Thus,
the defendants are admitting that Ananda had one-half
share in these properties. In ordinary course, plaintiff
being the sole heir of Ananda would be entitled to get onehalf
share in these properties and so there is no dispute
over the extent of share to which the plaintiff was entitled.
Before appreciating the material and considering the
challenges raised by the defendants, it needs to be kept in
mind that only three heirs of defendant No.1 Namdeo
(now deceased) have challenged the decision when all the
defendants wanted to show that Ananda had given his
property to defendant No.3 but this property is partitioned
amongst all the heirs of Namdeo.
10) From the pleadings, it can be said that plaintiff
has not seriously disputed that the disputed document
bears signature of deceased Ananda. Document at Exhibit
111 shows that on the last page of this document, will,
signature of testator is appearing. Date of execution is
shown as 21-3-1990 and the date of registration is shown
as 22-3-1990.
11) Provision of section 63 of the Indian Succession
Act (hereinafter referred to as "the Succession Act")
relates to "due execution" of will. It runs as under :-
“63. Execution of unprivileged Wills.-- Every
testator, not being a soldier employed in an expedition
or engaged in actual warfare or an airman so employed
or engaged, or a mariner at sea, shall execute his Will
according to the following rules :--
(a) The testator shall sign or shall affix his
mark to the Will, or it shall be signed by some other
person in his presence and by his direction.
(b) The signature or mark of the testator, or
the signature of the person signing for him, shall be
so placed that it shall appear that it was intended
thereby to give effect to the writing as a Will.
(c) The Will shall be attested by two or more
witnesses, each of whom has seen the testator sign
or affix his mark to the Will or has been some other
person sign the will, in the presence and by the
direction of the testator, or has received from the
testator a personal acknowledgment of his signature
or mark, or of the signature of such other person;
and each of the witnesses shall sign the will in the
presence of the testator, but it shall not be necessary
that more than one witness be present at the same
time, and no particular form of attestation shall be
necessary.”
12) In view of the wording of this provision, even if
signature of testator is admitted, that itself will not be
sufficient to dispense with the burden of proof of will as
provided under section 63 of the Act. This section shows
that in addition to proof of execution of will, signature,
propounder of will is required to prove following things in
a case like present one :
(i) that at least two attesting witness signed the will and
the signatures were made by them after seeing that the
testator had singed in their presence, both of them were
present when the testator had signed on the will;
(ii) that both attesting witnesses had signed on the will
as the witnesses in the presence of the testator. However,
it is not necessary when one attesting witness signs in
presence of testator the other was also present there.
(iii) that signature of testator was so placed that it shall
appear that it was intended thereby to give effect to
writing as a will.
13) Provision of section 68 of the Evidence Act
reads as under :-
“68. Proof of execution of document required by
law to be attested.-- If a document is required by law
to be attested, it shall not be used as evidence until
one attesting witness at least has been called for the
purpose of proving its execution, if there be an
attesting witness alive, and subject to the process of
the Court and capable of giving evidence.
Provided that it shall not be necessary to call an
attesting witness in proof of the execution of any
document, not being a Will, which has been registered
in accordance with the provisions of the Indian
Registration Act, 1908 (16 of 1908), unless its execution
by the person by whom it purports to have been
executed is specifically denied.”
14) This provision shows that for proof of the
execution and also for due execution of a will even if it is
registered, one attesting witness needs to be examined.
Though it is not necessary that both the attesting
witnesses need to be examined but one attesting witness
who gives evidence in the Court must satisfy the
conditions laid down in section 68 which are mentioned
above. The evidence of the attesting witness must
establish that aforesaid procedure was followed in respect
of the points.
15) Provision of section 59 of the Succession Act
runs as under :-
“59. Person capable of making Wills.-- Every person
of sound mind not being a minor may dispose of his
property by Will.
Explanation 1.-- A married woman may dispose by Will
of any property which she could alienate by her own
act during her life.
Explanation 2.-- Persons who are deaf or dumb or
blind are not thereby incapacitated for making a Will
if they are able to know what they do by it.
Explanation 3.-- A person who is ordinarily insane may
make a Will during interval in which he is of sound
mind.
Explanation 4.-- No person can make a Will while he
is in such a state of mind, whether arising from
intoxication or from illness or from any other cause,
that he does not know what he is doing.
Illustrations
(i) A can perceive what is going on in his immediate
neighbourhood, and can answer familiar questions, but
has not a competent understanding as to the nature of his
property, or the persons who are of kindred to him, or in
whose favour it would be proper that he should make his
Will. A cannot make a valid Will.
(ii) A executes an instrument purporting to be his Will,
but he does not understand the nature of the instrument,
nor the effect of its provisions. This instrument is not a
valid Will.
(iii) A, being very feeble and debilitated, but capable of
exercising a judgment as to the proper mode of
disposing of his property, makes a Will. This is a valid
Will.”
16) Explanation 4 of this section shows that when
there were circumstances like illness or other cause
(underlined) like old age (in the present case age of the
testator was 91 years), it becomes necessary to ascertain
whether the testator knew what he was disposing i.e. the
contents of the will and that he was in a position to
understand the consequences of such disposition.
Competent understanding is relevant and not condition of
body but when there are other circumstances like such old
age, it becomes necessary to show that the deceased was
active in life and he was in a position to understand the
effect of what he was doing. Thus in a case like present
one, old age itself can be treated as "other cause"
mentioned in explanation 4 to section 59 of the Succession
Act.
17) The pleadings in the plaint show that there is
allegation of fraud, existence of circumstances similar to
fraud. In view of this contention, the provision of section
61 of the Succession Act needs to be seen. Section 61 runs
as under :-
“61. Will obtained by fraud, coercion or
importunity.-- A Will or any part of a Will, the making
of which has been caused by fraud or coercion, or by
such importunity as takes away the free agency of the
testator, is void.
Illustrations
(i) A, falsely and knowingly represents to the
testator, that the testator's only child is dead or that he
has done some undutiful act and thereby induces the
testator to make a will in his, A's favour; such Will has
been obtained by fraud, and is invalid.
(ii) A, by fraud and deception, prevails upon the
testator to bequest a legacy to him. The bequest is
void.
(iii) A, being a prisoner by lawful authority, make his
Will. The will is not invalid by reason of the
imprisonment.
(iv) A, threatens to shoot B, or to burn his house or
to cause him to be arrested on a criminal charge,
unless he makes a bequest in favour of C. B, in
consequence, makes a bequest in favour of C. The
bequest is void, the making of it having been caused
by coercion.
(v) A, being of sufficient intellect, if undisturbed by
the influence or others, to make a Will yet being so
much under the control of B that he is not a free
agent, makes a Will dictated by B. It appears that he
would not have executed the Will but for fear of B.
The Will is invalid.
(vi) A, being in, so feeble a state of health as to be
unable to resist importunity, is pressed by B to make
a Will of a certain purport and does so merely to
purchase peace and in submission to B. The Will is
invalid.
(vii) A, being in such a state of health as to be
capable of exercising his own judgment and volition,
B uses urgent intercession and persuasion with him
to induce him to make a Will of a certain purport. A,
in consequence of the intercession and persuasion,
but in the free exercise of his judgment and volition
makes his Will in the manner recommended by B.
The Will is not rendered invalid by the intercession
and persuasion of B.
(viii) A, with a view to obtaining a legacy from B,
pays him attention and flatters him and thereby
produces in him a capricious partiality to A. B, in
consequence of such attention and flattery, makes
his Will, by which he leaves a legacy to A. The
bequest is not rendered invalid by the attention and
flattery of A.”
18) Illustrations (i), (ii) and (vi) are relevant for the
present matter.
19) In view of provision of section 102 (illustration
b) of the Evidence Act, the burden to prove the fraud is
ordinarily on the party who alleges fraud. In a case where
the due execution of will is required to be proved, the
party against whom there is possibility of existence of
aforesaid circumstances is dead and so the suspicious
circumstances in that regard need to be explained by the
propounder of the will. Illustration (vi) to section 61 also
shows that it is sufficient to a party like plaintiff who has
no personal knowledge, to show on the basis of some
circumstances that a probability as mentioned in
illustrations (i), (ii) and (vi) is there. Thus when the point
of due execution of will is involved in the matter, the
burden which is ordinarily on the plaintiff, as mentioned
in section 102 of the Evidence Act is not there and the
plaintiff can rely on the circumstances which are
appearing on the record and those may be there even
without the efforts of the plaintiff.
20) Whether will is surrounded by suspicious
circumstances or not is essentially a question of fact.
Similarly, testamentary capacity of the testator is also a
question of fact. Suspicious circumstances may be with
regard to the due execution of will as mentioned in section
63 of the Succession Act or they may be with regard to the
testamentary capacity of the testator as mentioned in
section 59 of the Succession Act. The suspicious
circumstances may be about probability of fraud or
absence of voluntariness as mentioned in section 61 of the
Succession Act. However, it needs to be kept in mind that
when the case fails on the ground of absence of proof of
"due execution" as mentioned in section 63 of the
Succession Act, the other exercise with regard to the
provisions of sections 59 and 61 of the Succession Act
becomes unwarranted. So in that sequence the evidence
needs to be marshelled and appreciated.
21) One defendant Baban Vakte has given evidence
for all the defendants. He was not present at the time of
execution or registration of the will as per the evidence
given by the so called attesting witness and the so called
scribe. He has given evidence that his uncle Ananda was
intelligent and he was in social life and as Ananda had no
son, he was treating the sons of defendant No.1 as his
own sons. He has deposed that as Ananda had no son,
Ananda bequeathed his property to defendant No.3. As
the witness was not present at the time of execution of
will or registration of will, only aforesaid part of the
evidence of the defendant is there for propounder of the
will about testamentary capacity. There is evidence of one
more defendant like Pandhari, defendant No.8. His
evidence on the point involved is similar in nature.
22) The only attesting witness Namdev Runjaji
Avhad examined by the defendants has given evidence
that Ananda had taken him to the office of the Sub
Registrar for making the will. He has given evidence that
when the will was made, he, defendant No.3 (propounder)
and other attesting witness like Ananda Wable were
present. According to him, the scribe Rahene wrote the
contents of the will and the contents were read over to
Ananda. He has deposed that as the testator made
signature on the will in his presence, he put his signature
as attesting witness on the will. There is no evidence with
regard to requirement that his signature was made in the
presence of the testator. He has given evidence that
Ananda gave his property under the will to defendant
No.3. This evidence as it is does not satisfy one condition
laid down in Section 63 of the Succession Act.
23) In the cross examination, the attesting witness
has deposed that defendant No.3, propounder of the will,
had taken them to the office of Sub Registrar in a jeep.
Again he has stated in the evidence that he was not taken
before the Sub Registrar on that date. His evidence shows
that deceased Ananda had love and affection for his
daughter, plaintiff. He does not know as to whether
anything was given to the plaintiff by Ananda. He has
deposed that he does not know anything about the
contents of the will. Though he is only the attesting
witness, he was supposed to know as to what was the
intention of Ananda. Thus, the evidence does not satisfy
one more condition laid down in Section 63 of the
Succession Act.
24) The scribe Rahene has given evidence that the
contents of the will, Exhibit 111, were written by him as
per the instructions given by Ananda. He has deposed that
he had read over the contents to Ananda and then Ananda
had signed on it. He has deposed that the attesting
witnesses had signed it. In the cross examination, he has
stated that he does not know as to why on 21-3-1990, the
date of execution, the document was not registered. He
admits that he does not know as to who signed in the
presence of whom. In the cross examination he admits
that all the persons who had come to him on 21-3-1990
had come on 22-3-1990 also and they were in all four
persons. In the cross examination, he could not say as to
whether the testator Ananda had become infirm due to his
old age.
25) Exhibit 111, will, shows that it is shown to be
executed on 21-3-1990. It was Wednesday. The signature
of the testator appears only on one page i.e. page 5, the
last page of the document. Even when it is shown to be
registered on 22-3-1990 the signatures of the testator are
not appearing on the remaining pages of the will. Many
probabilities are created due to the place where the
signatures were put by the testator and the witnesses and
the place shows that the document was first written and
places were left for different persons like testator and
witnesses by the scribe himself. The signature appearing
on the endorsement of registration dated 22-3-1990 shows
that different witnesses were taken to the office of Sub
Registrar at the time of registration of the will. No
explanation is given as to why different witnesses were
taken before the Sub Registrar when the attesting
witnesses were available on 21-3-1990 and there is no
explanation as to why the will was not registered on 21-3-
1990. In view of these circumstances, it was necessary for
defendant No.3, propounder of the will, to examine
himself and explain these circumstances. The aforesaid
evidence shows that propounder had taken the deceased
and the witnesses with him to Kopargaon. These are the
suspicious circumstances and so it was necessary for the
propounder to step into the witness box. As he has not
stepped in the witness box the circumstances remained
unexplained and further adverse inference can be drawn
against him.
26) Evidence is given by the defendants that
except aforesaid two properties, other properties were
joint Hindu family properties and both the testator and
defendant No.1 had one-half share each in these
properties. In the will, Exhibit 111, it is mentioned that
all these properties were owned by deceased Ananda only
(there is mention as "Maze Swattahache Malkiche"). When
defendant No.1, real brother of the testator, was there and
when defendant No.1 had many male issues, there is
mention in the will that only Suryabhan (defendant No.3)
was the heir of the testator. There is mention of the
plaintiff as daughter and it is mentioned that there was no
intention of the testator to give anything to the plaintiff.
Evidence is given by two defendants that the deceased
was living with them and all of them were taking care of
him. No reason is given as to why nothing was given to
the real brother and to other sons of real brother by the
testator.
27) It is true that appending medical certificate to
the will regarding fitness of the testator is not the
requirement of law but when age of testator was 91 years
and he died within 15 days of the date of execution of the
will and when there are aforesaid circumstances, the
absence of fitness certificate itself has become a
suspicious circumstance in the present matter. It creates
doubt about due execution, competency of the testator
and voluntariness of the testator.
28) Copy of mutation is produced to show that on
26-5-1990 (Mutation No.2900) name of defendant No.3
was entered in revenue record of the suit lands on the
basis of the will. However, there is one more mutation
shown to be sanctioned on 30-12-1998 (Mutation
No.3389) and it shows that all these properties were
equally divided amongst all sons of defendant No.1. These
circumstances are also suspicious circumstances. If
defendant No.3 had become absolute owner under the will
as per intention of testator, such transfer of his property
to others by mutation was not possible in law and this
circumstance creates probability that all the defendants
had joined hands to see that some how the plaintiff is
deprived of the suit property.
29) The burden to explain all the aforesaid
suspicious circumstances was on the propounder of the
will but he avoided to step into witness box. On the other
hand, plaintiff examined herself and gave evidence which
is consistent with her pleadings. Evidence on the record
and the submissions show that the deceased was in social
life when he was active. As per the revenue record, he was
also acting as karta of the aforesaid joint family. From the
record, no reason can be gathered for depriving the
plaintiff, own daughter, by the testator of her entitlement
to succeed to his property. If testator really wanted to see
that property remains in the family of Vakte, he would
have taken different and concrete steps and he would not
have created the record of will having aforesaid
surrounding circumstances. It is already observed that
contents of the will are not as per real state of affairs. All
these circumstances have created probabilities that due to
old age of the deceased and his health condition, in hurry
the record of will was created. Due to these
circumstances, this Court holds that the defendants have
failed to prove due execution of will. Further, in view of
the aforesaid suspicious circumstances surrounding the
will, it is not possible to accept the will as valid will. It is
difficult to hold that it is a will made by a person having
understanding as required by section 59 of the Succession
Act and it was made voluntarily as required in section 61
of the Succession Act.
30) Learned Senior Counsel appearing for the
appellants placed reliance on some reported cases which
are as under :
(1) 2003 AIR SCW 4018 (Ramabai Patil v.
Rukminibai Vekhane)
(2) 2012 (4) Mh.L.J. 482 (Mahesh Kumar v. Vinod
Kumar)
(3) 2010 (7) Mh.L.J. 657 (Purushottam v. Ambadas)
(4) 2009 (4) Mh.L.J. 266 (Subhash v. Padmakar).
(5) 2009 (6) Mh.L.J.431 (Savita v. Nishikant)
(6) 2008 (6) Mh.L.J. 386 (Janardan v. Mortibai)
(7) 2014 AIR SCW 155 (Sebastiao Fernandes v. K.V.P.
Shastri)
(8) AIR 2007 SC 1808 (Makhan Singh v. Kulwant
Singh)
(9) 2014 AIR SCW 5233 (Leela Rajgopal v Kamala
Menon Cocharan)
(10) 2008 (6) Mh.L.J. 1 (SC) (Vidya Wanti v. Durga
Dass)
(11) 2006 AIR SCW 2404 (Gurudev Kaur v. Kaki)
(12) 2007 AIR SCW 6787 (Savithri v. Karthyayani)
(13) AIR 2004 SC 1772 (Uma Devi v. T.C. Sidhan).
(15) 2012 (6) Mh.L.J. 1 (Vishwanath v. Sarla).
(16) 2014 (3) Mh.L.J. 760 (Chandabai v. Mehmood Khan).
31) In the first three cases (cited supra)
observations are made regarding the manner in which the
execution and attestation of the will can be proved. In
fourth and fifth cases (cited supra) it is observed that it
is not necessity of law that certificate regarding fitness
issued by the Doctor needs to be appended to the will. In
sixth case it is observed that the burden is on the
plaintiff, the party challenging the will, to show that
testator was not in fit state of mind. In seventh case there
is again observations regarding the burden of proof. In
the eighth case there is observation that mere
participation of propounder at the time of execution of will
is itself not a suspicious circumstance. In the ninth case
observations are made that circumstance that the
attesting witness was interested witness, relative or
belonging to the same village cannot be itself a suspicious
circumstance. In tenth to fourteenth cases observations
are made that exclusion or deprivation of legal heirs of
the property cannot be itself a suspicious circumstance. In
the fifteenth case it is observed that when due execution
of the will is proved, non examination of propounder is not
fatal to his case. In the remaining cases it is observed that
when relevant material is not considered or the finding
themselves are erroneous or perverse, substantial
questions of law can be formulated on said points.
32) This Court has already observed that the
question of existence or absence of suspicious
circumstance is a question of fact and the question of
competency of the testator is also a question of fact. At
the time of appreciation of the evidence of the witnesses
necessary weight needs to be given to the findings given
regarding truthfulness of the witness by the Court which
had opportunity to observe the witnesses. On all these
points, the Courts below have given concurrent finding
and those findings are on question of facts.
33) There cannot be dispute over propositions
made in the cases cited supra. Whether a circumstance is
suspicious or not depends on facts and circumstances of
that case. In one case it can be said that due to old age of
the testator it was necessary to have certificate of fitness
given by Doctor but in other case the Court may come to
the conclusion that there was no such requirement of
certificate. Similarly in one case, on the basis of nature of
evidence, the Court may come to conclusion that due
execution of will is not proved. In one case, registration of
will may not be sufficient to make the will acceptable if
the basic test of due execution of will is not passed. In one
case, the exclusion or deprivation of legal heirs and
participation of propounder of will in the execution of will
can become a suspicious circumstance. In one case the
conduct of the propounder to avoid to step in witness box
may itself becomes sufficient to discard the will. All the
aforesaid circumstances are relevant in the present
matter and it is one such case where due to aforesaid
circumstances the Courts below have held that due
execution of the will is not proved and the suspicious
circumstances are not explained. Findings are given on
the basis of material available on the record. In view of
the facts and circumstances of the present case and the
position of law which is settled, this Court holds that no
substantial question of law as such is involved and on the
grounds which are already quoted no case is made out for
formulation of substantial questions of law.
34) In the result, the appeal stands dismissed. Civil
application is disposed of.
35) The learned counsel for the appellants
requested for continuation of the interim relief for a
period of four weeks as the interim relief was there.
Learned counsel for the respondents has strong objection.
The interim relief to continue for a period of four weeks.
Sd/-
(T.V. NALAWADE, J. )
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