Judgment:
R.K. Patra, J.
1. This appeal is directed against thejudgment and order of the learned Subordinate Judge, Khurda allowing the application made under Section 276 of the Indian Succession Act, 1925 (hereinafter referred to as 'the Act').
2. Relevant facts may be briefly stated. Late Lala Harekmshna Singh had two wives, namely, Radharani Devi and Kadambini Devi who are admittedly sisters the former being elder to the latter. Appellants 2 to 8 are his sons through Radharani Devi who is appellant No. 1. Respondents 2 to 9 are also his sons and daughters through his second wife Kadambini who is respondent No. 1. Lala Harekrishna Singh expired on 25-1-1981. The respondents filed an application on 25-8-1986 under Section 276 of the Act for grant of letters of administration which came to be registered as T.M.S. No. 38 of 1987-II on the file of the Subordinate Judge, Khurda. Their case is that Lal Harekrishna Singh (hereinafter referred to as 'the testator') executed a will in their favour on 25-5-1976. It was the last will by which the testator had given Schedule 'A' properties to them subject to enjoy the same after his death. The testator executed the will while he was living with the respondents. He was fit both in mind and body and consciously out of his free will and without any inducement has made disposition of Schedule 'A' properties in their favour. On the premises stated above, the respondents prayed for grant of letters of administration in respect of 'A' schedule properties left behind by the testator.
The appellants contested the matter by filing objection on the grounds, inter alia, that the will was executed by the testator without understanding the contents contained therein. The will was not duly executed nor was it attested according to law. It was pleaded that the will was out-come of undue, influence and coercion in as much as the testator was suffering from paralysis and physically disabled and due to old age and ailment, he had lost the power of understanding and the same was executed without his free will. It was also averred by the appellants that the properties given in the will arc ancestral and joint family properties in which the appellants are coparceners and as such, the properties in question were not exclusively owned and possessed by the testator and he had no exclusive right of its disposition.
3. The respondents in order to prove their case examined four witnesses and filed certain documents. The appellants in their turn also examined four witnesses and filed number of documents. On the basis of the evidence adduced in the case, the learned Subordinate Judge held that the Will Ext. 1 is a genuine document which was duly executed by the testator at the time when he had sound disposing state of mind and it was not made under any undue influence or coercion. Accordingly, the application made under Section 276 of the Act was allowed.
4. Counsel for the appellants submitted that the decision of the learned Subordinate Judge is vitiated for non-consideration of material evidence. It was also contended that heavy burden lay on the respondents to explain suspicious circumstances surrounding the execution of the Will and in absence of evidence relating to due execution and attestation of the Will, letters of administration should not have been granted.
5. As has been held by a five-Judge Constitution Bench of the Supreme Court in Shashi Kumar Banerjee v. Subodh Kumar Banerjee, AIR 1964 SC 529 the mode of proving a Will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a Will by Section 63 of the Act. The onus of proving the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before the Court accepts the Will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court, The suspicious circumstances may be as to the genuineness of the signature of the testator, the condition of the testator's mind, the dispositions made in the Will being unnatural, improbable or unfair in the light of relevant circumstances or there might be other indications in the Will to show that the testator's mind was not free. In such acase the Court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last Will of the testator. If the propounder himself takes part in the execution of the Will which confers a substantial benefit on him, that is also a circumstance to be taken into account and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the Court would grant probate, even if the Will might be unnatural and might cut off wholly or in part near relations.
6. As already noted, appellant No. 1 and respondent No. 1 are two sisters. The former was the first wife and the latter was the second wife of the testator. Respondent No. 2 Lala Bikram Kishore Ray who was one of the co-appelicants was examined as P.W. 4. He has testified that his father had executed the Will Ext. 1 in their favour with respect to the properties contained therein. He has clarified in his evidence that some other properties had earlier been given by the testator to his first wife and her children (present appellants) and he had educated them and because no property was given to them (respondents) who were not educated, the testator executed the Will in their favour with respect to the properties mentioned in the Will. He has clearly stated in his evidence that the testator was quite alright physically and mentally at the time of execution of the Will (vide the last but one sentence of paragraph 3 of his deposition). He has denied the suggestion by stating that it is not a fact that his father was physically and mentally disabled to execute the Will. The witnesses examined on behalf of the appellants stated that the testator was suffering from paralysis whereas the witnesses examined on behalf of the respondents have emphatically stated that the testator was not at all suffering from paralysis. There is clear assertion by the appellants that the testator was suffering from paralysis whereas there is emphatic denial to this by the respondents. In view of the clear assertion and stout denial with regard to the ailment of the testator, it cannot be held that the testator was suffering from paralysis at the relevant time. In any case, there is no positive evidence that on account of paralysis he was not in sound disposing state of mind. P.W. 2 and P.W. 3 are two attesting witnesses besides P.W. 1 who is none other than the brother of both the widows of the testator. P.W. 2 has stated that he was residing in the same street where the testator was staying at the material time. He desposed that on the direction of the testator, the Will was scribed by Giridhari Babu and by the said document some landed properties were given to the respondents. He clearly stated that the scribe read over the contents of the deed to the testator who admitted to have been correctly written as per his intention.
After declaring so, he signed the deed as per signatures Ext. 1/b and 1/c. P.W. 2 then signed the document. His own signature is Ext. 1/d. P.W. 3 is another attesting witness to the execution of the Will. He stated that he was present when the deed was executed. The testator first gave a note mentioning the land etc. and asked Giridhari Babu to make a copy. The scribe after writing out the document read over the same. The testator admitted the contents to be correct and thereafter he signed on the document. The witness (P.W. 3) also attested the said document as per Ext. 1/e. P.W. 1 has also stated that Giridhari, the moharir scribed the Will as per the instruction and information furnished by the testator. His clear evidence is that the scribe read over the contents of the Will to the testator who admitted the contents to be correct. The scribe signed on it and handed over the document to the testator. The testator thereafter signed the document. P.W. 1 further stated that after the document was signed by the testator, the attestors, namely, P.Ws. 2, 3 and he himself (P.W. 1) signed the document. Respondent No. 2 who was examined as P.W.4 stated that he was present when his father executed the Will which was scribed by Giridhari as per the instruction and information furnished by his father. His evidence is that his father had prepared a list of properties and on the basis of it, Giridhari scribed the Will and after the Will was written, it was read over and his father found the contents to be correct and thereafter he signed it. He has clearly testified that his father after being satisfied that the contents were correctly written according to his desire, he signed the document. He also stated that his maternal uncle P.W. 1 and other two attestors, i.e. P.Ws. 2 and 3 were present there as witnesses to the execution of the Will and have attested the document. Nothing has been brought out in their evidence in discredit their sworn testimony. Their evidence being cogent, unimpeachable, 1 have no hesitation to hold that the Will Ext. I was duly executed and the testator was in sound disposing state of mind. 1 also hold that the Will was duly attested by P.Ws. 1, 2 and 3 and there is nothing on record to suggest that the Will is not a genuine document.
7. Certain circumstances were suggested to show that the Will was not duly executed. It was first suggested on behalf of the appellants that the testator had signed his name in Oriya but the testator used to sign in English as evidenced from some documents. P.W. 4 in his evidence has clarified that his father used to sign his name in English as well as in Oriya. There is nothing unusual in signing documents by a person in two different languages. P.Ws. 2 and 3 have clearly stated that the testator put his signature after declaring that the document was written correctly. Both of them are independent witnesses and there is nothing on record to discard their testimony merely because the testator signed the document in Oriya instead of in English. P.W. 1 has also stated that the testator signed the document. P.W. 1 is the brother of both the widows of the testator. There is nothing on record to disbelieve his evidence in this regard. Another circumstance indicated by the appellants was that different inks were used by the scribe, the testator and the attestors. Bare perusal of Ext. 1 would show that the same ink was used by the scribe in writing the contents as well as in putting his own signature. The testator seems to have used a different pen with a different ink. P.W. 2 seems to have put his signature with the same pen and ink employed by the scribe. P.Ws. 2 and 3 appear to have used a different pen. There Is nothing abnormal in the use of different pens with different ink in a document where number of persons were involved in scribing and signing the same. Absence of allotment of property to the first wife and her children in Ext. 1 is another circumstance pressed on behalf of the appellants to cast doubt on the execution of Ext. 1. P.W.4 in his evidence has stated that his father had given properties to the appellants earlier and since no property was given to the respondents, his father executed the Will in their favour in respect of some properties. D.W. 3 has admitted in his cross-examination that his father (testator) had altogether got 20 acres of land in the 'Bantan Patra' Ext. E out of which only six acres were included in the Will. There is no dispute that appellants 2, 3 and 4 had been given about 19 acres of land in Ext. 'E'. The testator through his second wife (respondent No. 1) has three daughters and five sons and the children being minors, he executed the Will in their favour obviously by taking into account their helplessness. Therefore, no fault can be found in the conduct of the testator in not making any provision for the appellants in Ext. 1. Similarly, no serious exception can be taken to the presence of respondent No. 2, one of the propounders, at the time of execution of the Will. It is in the evidence that at the relevant time, the testator was living in a thatched house with the respondents whereas the testator's first wife and her children were staying in the original house. The Will was executed in the bed-room of the house in which the propounders were living. In the circumstances, presence of the respondent No. 2 at the time of execution of the Will is but natural. As has been held by the Supreme Court in Smt. Indu Bala Bose v. Manindra Chandra Bose, AIR 1982 SC 133 'any and every circumstance is not a suspicious circumstance. A circumstance would be suspicious when it is not normal or is not normally expected in a normal situation or is not expected of a normal person.' For the aforesaid reasons, I do not find any merit in the submission that the circumstances enumerated above are suspicious enough to throw doubt on the genuineness or on due execution of the Will.
8. On perusal of the evidence on record and the impugned judgment and after giving my anxious and serious consideration to the submission made by the counsel for the parties, I am of the opinion that Ext. 1 does not suffer from any infirmity so as to invalidate the same.
9. In the result, I do not find any merit in this appeal. I accordingly dismiss the same. There shall be no order as to costs.