JUDGMENT Prakash Krishan J.
1. This is defendant's appeal. Haying lost from both the Courts below the present appeal has been preferred at the instance defendant of original suit No. 69 of 1972 filed for cancellation of a Will dated 9th June, 1970 executed by Shri Thakur Singh son of Beni Singh. To appreciate the facts of the case it is necessary to give a small pedigree as follows:--
Beni Singh | Thakur Singh _________________________________|__________________________ | | Rajni (wife) Chandrawati (wife) | (Def. 2-Appellant) | | | Jangi Singh | (Def. 1-Apellant) ____|__________________________________ | Lal Singh (deceased) | = Tikam Kaur (P.2) Raghuveer Singh | (P. 1) _____|__________________________________________________ | | Kanchan Singh Ratan Singh (P. 3) (P. 4)
2. From the above pedigree it is clear that Thakur Singh the father of the present appellant No. 1 had two wives one Smt. Rajni and second Smt. Chandrawati. Two sons Lal Singh and Raghubeer Singh were born from the wedlock of Thakur Singh with Rajni. Lal Singh predeceased son of Thakur Singh had left his widow Tikam Kaur and two sons Kanchan Singh and Ratan Singh. The sons and grandsons from the first wife of Thakur Singh are the plaintiffs and they filed suit for cancellation of Will dated 9-6-1917 executed by Thakur Singh. The said suit is against the stepbrother Jangi Singh and stepmother Smt. Chandrawati. The Will in question is a registered document and suit was filed for its cancellation on the grounds mentioned in para 12 of the plaint. Briefly stating the ground for cancellation of the Will are that Shri Thakur Singh was aged about 85 years at the time of the execution of the Will and was residing with the defendants. Thakur Singh was lying ill for the last two years and he was not in a fit mental condition to understand the things properly at the time of the execution of the Will. The plaintiff No. 1 was residing at Etah and the defendant No. 1 was in a position to dominate Shri Thakur Singh. By the said Will certain properties which did not belong to Thakur Singh were also bequeathed this shows that Will was not an intelligent act of Thakur Singh. The suit was filed for its cancellation.
3. The defendants contested the suit on the allegation that Thakur Singh was hale and hearty and was capable to understand things, at the time of execution of the Will he was aged about 80 years and executed it after full understanding the implications of the Will. It was further pleaded that the house in village Abhaypura which was given to the plaintiff Nos. 3 and 4 through the disputed Will was constructed by Thakur Singh and the plaintiff No. 1 had gone in adoption to Gajadhar Singh.
4. The trial Court framed the following five issues:
"1. Whether Will dated 9-6-1970 executed by Thakur Singh in favour of defendants is illegal and void as alleged in para 12 of the plaint?
2. Whether plaintiff No. 1 is son of Thakur Singh and has right to sue?
3. Whether suit is undervalued and Court-fee paid is insufficient?
4. Whether Gajadhar Singh has adopted plaintiff No. 1 alleged?
5. Relief?"
5. It came to the conclusion that the defendants have failed to establish that the plaintiff No. 1 Raghuveer Singh was adopted by Gajadhar Singh. On issue No. 1 the trial Court has held that the Will has been provided by attesting witness Bhikam Singh DW/2. It has further recorded finding that Thakur Singh was in fit mental condition at the time of the execution of the Will and the plaintiff's allegation that he was ailing for the last two years is incorrect. However, the suit was decreed on the ground that the defendants have not been able to explain the suspicious circumstances surrounding the execution of the Will. This judgment of the trial Court has been confirmed in civil appeal No. 212 of 1977. Both these judgments are under challenge in this appeal. At the time of the admission of the appeal the following to substantial questions of law were framed:--
(1) "Whether the suit for cancellation of Will is maintainable? and (2) Whether the findings of the two Courts below are vitiated by error of law?"
6. The learned counsel for the appellant at the hearing of the appeal submitted that the following substantial questions of law are involved in the present appeal:--
(i) "Whether once it is proved that signature of testator on Will is genuine one. Will being registered one and proved by the attesting witness, has been executed by a person of sound, mind and competent understanding then whether the burden of proof that it was executed under undue influence lies on the party who alleges it, by specifically pleading and proving undue influence?
(ii) Whether the fact that testator was living with one of the sons, in whose favour Will has been executed is sufficient to hold that testator was under undue influence?
(iii) Whether the entire Will can be rejected only on the ground that the testator executed the Will in respect of some of the land of which he was not owner?"
7. Heard the counsel for the parties at great length and perused the record. It was submitted by the learned counsel for the appellant that it having been found by both the Courts below that the execution of Will in question is duly proved the burden lay upon the plaintiffs to establish the suspicious circumstances. The other findings of both the Courts below are based on guess, conjectures and surmises. There is no evidence of undue influence and the finding to the contrary is perverse. In contra the learned counsel for the respondents submitted that the findings recorded by both the Courts below are findings of fact and no substantial question of law is involved in the appeal.
8. In the case of Will, the law is that propounder would be called upon to show by satisfactory evidence that the Will was signed by the testator, that testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions, and put his signature to the document of his own free Will (See Venkatachala Iyengar v. B.N. Thimmajamma, AIR 1959 SC 443). The trial Court has held that the execution of the Will is proved by the defendants, by calling the attesting witness and by proving that Thakur Singh was in sound and disposing state of mind at the time of the execution of the Will.
9. The first appellate Court has confirmed the finding of the trial Court that Thakur Singh was aged about 80 years at the time of execution of the Will. It is mentioned in the judgment of the Court below that as regards the mental capacity of the testator of the Will, we have "oath v. oath". Thereafter the appellate Court after making a general remark that it is true that there may be persons who are hail and hearty even at the age of 100 years, "all the same, the statements of the plaintiffs' witnesses on this point appear more probable, the reason being that he was an aged man". The appellate Court has not referred to any evidence in not accepting the finding of the trial Court about the mental capacity of the testator of the Will. The Court below has concluded that Thakur Singh was not engaged at that advance stage and as the defendants have come with the case that Thakur Singh was residing with Smt. Tikam Kaur, widow of his son from his first wife which was ultimately not proved shows that there was something fishy. This approach of the appellate Court is not correct. Old aged cannot be equated with incapacity to make a Will. Krishna Kumar v. Kayastha Pathshala, AIR 1966 All 570 (DB). Testamentary capacity has to be judged by not an absolute standard but as relative to a particular testamentary act. The testator of the Will Thakur Singh admittedly after the death of his first wife Smt. Rajni remarried with Chandrawati who along with her son are the defendants. It was stated by the plaintiff No. 1 in the plaint vide para 4 who is son from first wife that he was residing separately at Etah in connection with his service being a teacher for the last more than 20 years. The plaintiff No. 2 is widowed daughter in law and plaintiffs Nos. 3 and 4 are her minor sons. Therefore the residence of Thakur Singh with his second wife and son born from the second wife is but natural and prudent act and from this fact that he has been residing with the defendants it cannot be said that the testator was not in a sound and disposing state of mind or that his signature on the Will is not on account of his free Will.
10. The Courts below have held that the execution of Will is surrounded by suspicious circumstances. The signature of the testator is not disputed. The suspicious circumstance is that the dispositions made in the Will of Thakur Singh is unnatural, improbable or unfair. Let us test it. The fight in the present case is between stepbrothers on one side and stepbrother and stepmother on the other side. The plaintiffs are son and family of predeceased son from the first wife of the testator. The testator remarried after death of first wife and lived up to the last with his second wife and one son, born out of this wedlock who is defendants. Plaintiff No. 1 had already got one house and landed property from one Gajadhar Singh who brought up plaintiff No. 1 as his child, by a gift deed dated 4-3-1936. He has already constructed another house and was living separate in connection of his service.
11. The main ground which has been taken by both the Courts below as suspicious circumstance is that the testator of the Will, Thakur Singh, has included certain properties in the disputed Will which did not belong to him and as such the Will is void in its entirety. A house situate in village Abhaypura which was gifted by the Gajadhar Singh to the plaintiff No. 1 by gift deed dated 4-3-1936 has been included. By Will this house along with certain plots has been given to the plaintiff No. 1 Raghubeer Singh. The case of the plaintiff No. 1 is that he was already the owner and in possession of the said house along with the plots by virtue of gift deed dated 4-3-36 and he got nothing though son of, from Thakur Singh. Taking into consideration the facts in its entirety it cannot be said that it is a suspicious circumstance. The gift deed dated 4-3-1936 Ex. 18 is on the record of the case. In this the gift deed dated 4-3-1936 it has been mentioned that Gajadhar Singh brought up Raghu Singh, the plaintiff No. 1 as his son. Though a plea of adoption was sought to be raised by the defendants before the trial Court on the basis of the averments but has rightly been rejected in the absence of proof of adoption ceremonies yet the gift dated 4-3-1936 throws a light as to why the house was gifted to the plaintiff No. 1.
12. It has come on record that under the disputed Will the testator has given one Baithak, Chaupal and the platform of the ancestral house to the plaintiff Nos. 3 and 4 (the grandsons of the testator). Certain agricultural land in which the testator had one sixth share was also given to the plaintiff Nos. 3 and 4. Only one newly built house remained with the testator, which was given to the defendants. The testator has made provision for providing residential accommodation to the defendants as well as to the plaintiffs Nos. 3 and 4 and the plaintiff No. 1 has already got a residential house by means the gift deed dated 4-3-1936. Apart from it has also come on record that Raghuveer Singh, the plaintiff No. 1 has purchased certain lands by means of sale deed dated 7-1-1958 and constructed a house at Etah in the year 1959-60. The testator was conscious of this fact and therefore did not allot any other property to the plaintiff No. 1. It appears that the plaintiff No. 1 has been residing at Etah in connection with his service in a different village for the last 20 years and it is defendants who were looking after the testator. The execution of the Will in such circumstance cannot be said that it is surrounded by suspicious circumstance. The plaintiff No. 1 had no accommodation problem and for the other plaintiffs care was taken of in the Will in question.
13. The Court below has further taken into consideration the contents of an application dated 22nd May, 1970 (Ex. 14) filed by Smt. Tikam Kaur before the District Magistrate. I have perused the said application. The said application was not given in any proceeding or case. It is addressed to the District Magistrate Etah, as Misc. Application May 1970 decided on 23-5-1970. This application is an inadmissible document in evidence and no reliance can be placed upon it as it is in the nature of self-serving statement made by the plaintiff No. 2. The said application was not given in any proceeding either judicial or administrative. The prayer in the said application is that the application may be kept in safe custody in the office for future purposes so that it can be used subsequently. It contains 8 paragraphs. There is nothing on the record to show as to for what purpose the said application was filed. The said document being in the nature of self-serving statement has got no relevancy and is not admissible in evidence. This document even cannot be called an application, as it contained no relief. The Court below has erred in law in placing reliance upon the said document. Thus the finding of the Court below that there are suspicious circumstances surrounding the execution of the Will is vitiated by error of law.
14. Observation of the Court below that Thakur Singh had not given any property to Smt. Tikam Kaur who was his widowed daughter in law through the disputed Will is not correct. Part of ancestral house which consists of Baithak, Chaupal and platform has been given to the minor sons of Smt. Tikam Kaur. It has come on record that Smt. Tikam Kaur was residing separately. It has come in evidence that she has been living separately from the testator. Even then part of residential house and landed property was given to her minor children. She did not receive a help from the testator during his lifetime, which shows that Thakur Singh was not affectionate to her. Thus, lesser portion has been given to the plaintiffs Nos. 2, 3 and 4 it cannot be said that the Will was not consciounable document. Now the question arises that whether uneven distribution of assets amongst children, shows the suspicious circumstance in respect of the execution of Will. The Apex Court in case of S. Sundesa Pai v. Mrs. Sumangla T. Pai, (2001) 10 JT (SC) 92 : (AIR 2002 SC 317) has held that uneven distribution of assets amongst children, by itself cannot be taken as circumstances causing suspicion surrounding the execution of the Will.
15. In Benichand v. Smt. Kamla Kunwar, AIR 1977 SC 63, the Supreme Court has upheld the validity of a Will executed by an old woman aged about 80 years, executed five days before her death bequeathing her extensive properties in favour of her son's wife and children to the exclusion of her son and another wife and their progeny.
16. From the judgment of the trial Court it is clear that 4.8 decimals of land spread over in ten plots in village Abhaypura was given to the defendant No. 1 under the Will. Whereas Kanchan Singh and Rattan Singh (the plaintiffs Nos. 3 and 4) have been given 2.8 decimals at village Abhaypura spread out as two plots. Some other land has also been given to these persons in which litigation is pending and Thakur Singh had 1/6th share in those plots. Thus the Court has come to the conclusion that a major share has been given to the defendant No. 1 which was free from litigation and lesser land has been given to the plaintiffs Nos. 3 and 4. Thus it is established that the testator has given the properties to the defendants as well as to the plaintiff Nos. 3 and 4 though in not equal shares. Similar is the position with regard to the residential accommodation. Looking to the fact that the defendants are wife and son and the plaintiff No. 1, another son has got substantial property by gift and also earned by him and the plaintiff Nos. 3 and 4 have been given residential accommodation as well as agricultural lands it cannot be said that the Will is not an act of free mind by the testator merely because testator has not distributed the properties equally amongst the heirs. The most important factor is that the testator was remarried and residing with his second wife and son born out of this wedlock, and the plaintiff No. 1 was residing separately and the plaintiff Nos. 2, 3 and 4 were also residing separately. These are very important features of the case, which were totally ignored by the Courts below. It is not the case of the plaintiff-respondents that the disputed Will does not contain the signatures of the testator. The sum and substance of plaintiffs' allegations is that division of the property being unequal by the Will it is not an intelligent act of the testator, has no substance. There is nothing on record to show that the defendants have taken prominent part in the execution of the Will in question merely because they have received more properties than the plaintiffs is not sufficient to doubt the genuineness of the Will. In my view there was no suspicious circumstance surrounding the Will and the findings of the Court below are based upon no evidence and are thus vitiated in law. The Courts below have committed substantial error of law in decreeing the suit and present appeal involves substantial questions of law as the findings of the Courts below with regard to the validity of the execution of the Will are vitiated by law.
17. The law is well stated that conscience of the Court must be satisfied that the Will in question was not duly executed and attested in the manner required under the Indian Succession Act, 1925, but it also should be found that the said Will was the product of the free violation of the executant who had voluntarily executed the same after proving and understanding the contents of the Will.
18. The next ground taken by the Court below is that Sirdari property of Nagla Jagroop was also subject-matter of the Will. Sirdari property cannot be bequeathed. The Court has concluded that it also indicates that there was something fishy about the Will. In my view inclusion of Sirdari plots in Will does not indicate that there was something fishy about the Will.
19. Lastly the question arises as to whether the appeal involves substantial question of law. The Supreme Court in Major Singh v. Rattan Singh, AIR 1997 SC 1906 has found that when the Court below has rejected and disbelieved evidence on the ground that the propounder had not properly discharged his duty, it is the duty of the High Court to consider whether the reasons given by the Courts below were sustainable in law. The Supreme Court held that interference by the High Court was right when it was found that the reasons given by the Courts below are flimsy. This case is fully applicable to the facts of the case. The trial Court has recorded a specific finding that execution of the Will which is a registered document has been proved by calling up attesting witnesses and the testator of the Will was in sound mental condition to execute the Will. The Will was cancelled simply on the ground that there was unequal disposition by the testator of the Will.
20. No argument was placed by the learned counsel for the appellant as to how the suit for cancellation of Will is not maintainable.
21. In the result the appeal is allowed and the judgments and decrees of the Courts below are set aside. The suit stands dismissed. No order as to costs.