M.V. Tamaskar, J.
1. This Misc. Appeal under Section 299 of the Indian Succession Act, 1925, has been filed against the order dated 21.3.1990 passed by the 1st Additional Judge to the Court of the District Judge, Sagar, in Misc. Case No. 1 of 1986.
2. One Heeralal had three sons. During his life time he had partitioned his property between three sons and himself. These three sons are Kanhaiyalal, Ratan Chand and Babulal. Kamal Rani is the widow of Late Babulal and daughter-in-law of Heeralal. Vide Ex. P/l dated 13.7.1971 Heeralal executed a Will in favour of Smt. Kamal Rani of the property shown in Schedule 'A'.
3. The Will was scribed by Tulsiram Vyas, who is dead and attested by Mahesh. No attempt was made to obtain, a probate in respect of the properties until the year 1986. Certain proceedings for mutation in the Revenue Court and for partition in the Civil Court were filed after the death of Heeralal in the year 1973. Heralal died on 15.9.1973.
4. An application for grant of probate under Section 286 of the Indian Succession Act, 1925 was filed by Smt. Kamalrani claiming the estate of Heeralal on the basis of the Will joining the other legal representatives of Heeralal. The non-applicants filed an objection that the Will is forged and cannot be acted upon as there were number of suspicious circumstances, as the same was not disclosed to anyone by Smt. Kamalrani during the life time of Heeralal or thereafter till the year 1986 despite the fact that number of proceedings were pending in various Courts between the parties i.e. Babulal on one side and the other brothers on the other side i.e. sons of Heeralal.
5. The learned First Additional Judge to the Court of District Judge, Sagar, held the Will to be suspicious on the ground that the Will was not made the basis for claims in the Revenue Court and Civil proceedings and saw the light of the day only after a period of sixteen years as such it cannot be accepted as a genuine, Will, executed by Heeralal. It was also held that it was not proved as required under Section 63 of the Indian Succession Act and some other contradictions here and there were also highlighted regarding the place where it was written, the manner in which it was written as also the health of the Executor i.e. Heeralal. There was also an objection regarding the payment of Court fees.
6. The Trial Court returned a finding that the Will was suspicious and cannot be acted upon and was not proved according to law. Against the said order this present appeal has been preferred by the appellant Smt. Kamalrani. The submissions on the part of the learned Counsel for the appellant are that there may be some natural circumstances intervening or appearing in the case but the Will was properly executed and cannot be rejected as suspicious or having not been proved according to law. Sh. A.S. Usmani, learned Counsel for the appellant submitted that the mere fact that the execution of the Will was not disclosed by Smt. Kamalrani to any of the three brothers cannot be a circumstance so as to reject the Will as suspicious or forged. It was also submitted that the statement made in the Will discloses the reason for bestowing the property on one person only and not on others sons is to say that he was being looked after by the beneficiary Smt. Kamalrani and he had more love and affection towards her than the other persons. Shri A.S. Usmani relied on AIR 1981 Punjab and Haryana 83 (Sita Ram v. R.D. Gupta) and AIR 1982 Supreme Court 133 (Indu Bala v. Manindra Chandra) and submitted that if the circumstances dispel the suspicion and the execution and attestation of the Will have been duly proved, the Court shall grant probate. What has been stated is that every circumstance is not a suspicious circumstance. A circumstance could be suspicious when it is not normal or not normally expected in a normal situation or is not expected of a normal person. The first circumstance is that despite the execution of the Will in the year 1971 Smt. Kamalrani did not disclose it either to any of the sons of Heeralal or even to her husband Babulal. The second circumstances appearing on record is that despite various revenue and civil proceedings pending in the Courts, the existence of the Will was not disclosed and thirdly there is no special reason as to why Heeralal should have executed a Will in favour of Smt. Kamalrani.
7. Smt. Kamalrani has entered the witness box and stated that she did not realise the importance of the document and as such did not disclose it to her husband or initiated any proceedings on the basis of the same to obtain probate. This of course appears to be an unnatural circumstance but as stated by the Supreme Court any and every circumstance is not a suspicious circumstance. The circumstance may be unnatural but giving allowance for the ignorance of illiterate lady, the circumstance cannot be a suspicious circumstance in order to reject the Will. Secondly, the Will was in favour of Smt. Kamalrani and not in favour of Babulal or any of the sons. The property in dispute was not yet partitioned and proceedings were initiated for the same. The action on the part of Smt. Kamalrani to obtain a probate even though late cannot be said to be unnatural, thereby making the Will suspicious.
8. Shri A.K. Jain, Counsel for the respondents strongly relied on the judgment of the Supreme Court in Jaswant Kaur v. Amrit Kaur (AIR 1977 SC 74). In paras 9 and 10 the Court observed as under :
'9. In cases where the execution of a Will is shrouded in suspicion, its proof ceases to be a simple its between the plaintiff and the defendant. What, generally, is an adversary proceeding becomes in such cases a matter of the Court's conscience and then the true question which arises for consideration is whether the evidence led by the propounder of the Will is such as to satisfy the conscience of the Court that the Will was duly executed by the testator. It is impossible to reach such satisfaction unless the party which sets up the Will offers a cogent and convincing explanation of the suspicious circumstances surrounding the making of the Will.
10. There is a long line of decisions bearing on the nature and standard of evidence required to prove a Will. Those decisions have been reviewed in an elaborate judgment of this Court in R. Venkatachala Iyengar v. B.N. Thimmajamma, (1959) Supp. (I) SCR 426=(AIR 1959 SC 443). The Court, speaking through Gajendragadkar, J. laid down in that case the following propositions :
1. Stated generally, a Will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of Wills, one cannot insist on proof with mathematical certainty.
2. Since Section 63 of the Succession Act requires a Will to be attested, it cannot be used as evidence until, as required by Section 68 of the Evidence Act, 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.
3. Unlike other documents, the Will speaks from the death of the testator and therefore the maker of the Will is never available for deposing as to the circumstances in which the Will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last Will and testament of the testator. Normally, the onus which lies on propounder can be taken to be discharged on proof of the essential facts which go into the making of the Will.
4. Cases in which the execution of the Will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust deposition of property, the propounder himself taking a leading part in the making of the Will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the Will. That suspicion cannot be removed] by the mere assertion of the propounder that the Will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the Will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the Will excite the suspicion of the Court, the propounder remove all legitimate suspicions before the document can-be accepted as the last Will of the testator
5. It is in connection with Wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the Court is the last Will of the testator, the Court is called upon to decide a solemn question and by reason of suspicious circumstances the Court has to be satisfied fully that the Will has been validly executed by the testator.
6. If a caveator alleges fraud, undue influence, coercion etc, in regard to the execution of the Will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the Will may raise a doubt as to whether the testator was acting of his own free Will. And then it is a part of the initial onus of the pro-pounder to remove all reasonable doubts in the matter.
9. It is no doubt that the Will has to be proved like any other document and that it cannot be used as evidence until, as required by Section 68 of the Evidence Act, attesting witness has been called for the purpose and all other circumstances have to be proved.
10. Another circumstance which the learned Counsel for the respondents highlighted was delay in making the application for grant of probate. He relied on para 14 of the judgment in Jaswant Kaur v. Amrit Kaur (Supra). There the delay was 2 1/2 years after the death of the propounder. Of course, in the present case the delay is much more but the facts of the case do not justify any inference of the Will having been forged for the following reasons :
11. A perusal of the Ex-P/1 (Will) discloses the natural writing. There are no interpolations in the Will. It is coming from the proper source. The signature of the propounder Heeralal and that of Tulsiram and Mahesh, attesting witnesses, appear to be quite natural and does not appear that the same has been prepared subsequently. One important fact to be considered is that Tulsiram, scribe has been long back as also Heeralal died in the year 1973, and it could not have been possible to prepare the Will after 1973 with the signatures of Heralal, the original propounder. The statement of Suit Kamalrani discloses that the whole Will was prepared and read over to Heeralal and then it was signed by Heeralal and attested by Mahesh. Merely because Heeralal made Will in respect of 11 acres of agriculture land does not mean that the Will was obtained and not made voluntarily.
12. It is stated that proof of attestation by one witness makes the Will inadmissible under Section 63 of the Succession Act. If the Will is neither unnatural nor conferring any undue benefits on beneficiary, it cannot be rejected. Heeralal had already partitioned his property between his sons. He was being maintained and looked after by Babulal's wife Smt. Kamalrani, the appellant. In this circumstance making a Will in her favour cannot be said to be unnatural. It has been held in Sitaram v. R.D. Gupta (AIR 1981 Punjab and Haryana 83) as under :
'Before taking the delayed production of the Will as a suspicious circumstance against its genuineness, the party alleging against genuineness has to point out any occasion which had arisen on which the Will was required to be produced and was not so produced. It is not that merely because a Will has been executed in favour of a party he should keep on proclaiming and telling everybody that he is in possession of such a Will.
I find considerable force in this submission of the learned Counsel. An attesting witness as such is neither denned nor carries any particular significance except the one that in cases of Wills, his evidence has to meet the requirement of Section 63(c) of the Indian Succession Act. I find that the evidence of this witness fully meets those requirements. It is not disputed before me that in a number of cases decided by this Court as well as by other High Courts in somewhat similar circumstances a Sub-Registrar in the case of the Wills which were got registered, was treated to be an attesting witness.'
The fact that only one witness has been examined, does not by itself, be said, that the Will was not executed as required under Section 63 of the Act. The person who scribed the Will can be taken as attesting witness making two witnesses to the Will. In the instant case, Tulsiram and Mahesh can be said to have attested the Will of Heeralal who has signed the Will.
13. For the reasons stated above the appeal is allowed. The order passed by the Court below is set-aside but without any order as to costs.