# \ 3 $.C.R. . SUPREME COURT REPORTS RANI PURNIMA DEVI AND ANOTHER v. KUMAR KHAGENDRA NARAYAN DEV AND ANOTHER

- **Citation:** [1962] 3 S.C.R. 195
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Bench:** K. N. Wanchoo, K. c. DAS GUPTA, J. c. SHAH, Raghubar Dayal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/3-c-r-supreme-court-reports-rani-purnima-devi-and-another-v-kumar-khagendra-2320
- **Pages:** 19

## Headnote

.
Will-Proof-Suspicious circumstances surrounding execu·
tion-Regislration of will, if dispels all suspicions.
One K filed an application for the grant of letters of
administration with the will attached. This will gave the entire
property to K, a distant relation of the testator, subject to K
maintaining the testator's widow and sister; other relation:,
including the testator's daughter were completely left out.
There were other suspicious circumstances surrounding the will
viz., that the testator's signatures were not his usual signatures
and were not in the same ink as the rest of the will and that
the testator used t.o sign blank papers for use in his cases in
court and used to send them to his lawyer throngh his servants.
The will was later registered without the testator appearing
before the sub-registrar and the sub.registrar only sending his
clerk to the residence of the testator for the purpose. Out of
16 persons who signed the will as attesting witnesses only. 4
were produced to prove the will. The trial court held that the
will was duly executed and attested and ordered the issue of
letters of administration with the will annexed to K. On
appeal the High Court affirmed the order of the trial court
holding that the suspicious circumstances were dispelled by the
registration of the will.
Held, that the due execution and attestation of the will
were not proved.
In view of the suspicious circumstances it
was the duty of the propounder of the will to prove due execu·
tion and attestation by satisfactory evidence which would lead
the court to the conclusion that the suspicious circumstance•
had been dispelled. This he had failed to do.
The four attesting witnesses produced were interested and unreliable; none
of the independent witnesses who had signed the will were pro·
duced. The mere fact that the will was registered was not by
itself sufficient to dispel the suspicions without scrutiny of the
evidence of registration.
Registration would dispel the doubt
as to the genuineness of the will only if it was made in such a
manner that it was brought home to the testator that the docu·
ment of which he was admitting execution was a will disposing
of his property and the testator thereafter admitted its execu•
tipn and signed in token thereof. In the present case, the registration was done in a perfunctory manner and the evidence
aid not establish that the testator !mew that the document the
' 1961
Auguai 2S.
196
SUPREME COuRT REPORTS
[1962]
1961
execution of which he admitted ~efore the_ sub-registrar's clerk
Rani-Pu-rn-ima Dei:i
\vaS hii \vilt '.The \vitriesses pioduced to pr0ve registration, even
.· ... : -·-.v.
if they are treated as_ attesting \vifnesses, failed to prove due
Kumar Khag~ndra -
execution and· atte~tation o~ the \Vilt
Na;ayan n,.
H. Vetlatachala Iyengar v. ·,B. N: Thimmaf1mma, ( 1959)
\ • Supp. I S. C.R. 426; applied ..
· ·CrVIL A~PELLATE. JumimICT!()N: Civil Appeal
No. 373/58; ·
.
..
· Appeal by special leave from tpe judgment and
decree dated February 2, 1954, of the Assam High
Court in First Appeal No. 19.of 1950 (Probate) ..
· . s: T. Desai and. Naunit Lal, for the appellants .
. K. R .. Krishnaswami, foi: respondent No. I. .· .
. 196L August 22 .. The judgment of the Court
was delivered by
·
·
IVnnch<>o J.
.
W ANCIIOO, J.-· This ·is an appeal 'by special
leave against the judgment of tlie Assam High
Court in a probate matter. The· main: appellant
is Rani Purnima · Debi widow of Kumi1r Chandra
·· .Narayan Deb (hereinafter called the testator), .who
' 'died in June 1946. The second appe!lant is the
.. testator's married daughter. An application ·was
made by Kumar Khagendra Narayan Deb (hereinafter referred to as the respondent) before the
District Delegate, Gauhati in August 1946 for grant
of letters of administration with the will annexed.
·The case of the· respondent was that thetestator
·had executed a will on December 29, 1943, in favour
.. -·of the respondent by which. the testator gave his
. entire

## Text

_Characters 0–39,928 of 41,053. This is a partial read: ask again with offset=39928 for what follows._

,
,\
..
3 $.C.R.
. SUPREME COURT REPORTS
RANI PURNIMA DEVI AND ANOTHER
v.
KUMAR KHAGENDRA NARAYAN DEV
AND ANOTHER
195
(K. N. WANCHOO, K. c. DAS GUPTA,.J. c. SHAH
and RAGHUBAR DAYAL, JJ.)
.
Will-Proof-Suspicious circumstances surrounding execu·
tion-Regislration of will, if dispels all suspicions.
One K filed an application for the grant of letters of
administration with the will attached. This will gave the entire
property to K, a distant relation of the testator, subject to K
maintaining the testator's widow and sister; other relation:,
including the testator's daughter were completely left out.
There were other suspicious circumstances surrounding the will
viz., that the testator's signatures were not his usual signatures
and were not in the same ink as the rest of the will and that
the testator used t.o sign blank papers for use in his cases in
court and used to send them to his lawyer throngh his servants.
The will was later registered without the testator appearing
before the sub-registrar and the sub.registrar only sending his
clerk to the residence of the testator for the purpose. Out of
16 persons who signed the will as attesting witnesses only. 4
were produced to prove the will. The trial court held that the
will was duly executed and attested and ordered the issue of
letters of administration with the will annexed to K. On
appeal the High Court affirmed the order of the trial court
holding that the suspicious circumstances were dispelled by the
registration of the will.
Held, that the due execution and attestation of the will
were not proved.
In view of the suspicious circumstances it
was the duty of the propounder of the will to prove due execu·
tion and attestation by satisfactory evidence which would lead
the court to the conclusion that the suspicious circumstance•
had been dispelled. This he had failed to do.
The four attesting witnesses produced were interested and unreliable; none
of the independent witnesses who had signed the will were pro·
duced. The mere fact that the will was registered was not by
itself sufficient to dispel the suspicions without scrutiny of the
evidence of registration.
Registration would dispel the doubt
as to the genuineness of the will only if it was made in such a
manner that it was brought home to the testator that the docu·
ment of which he was admitting execution was a will disposing
of his property and the testator thereafter admitted its execu•
tipn and signed in token thereof. In the present case, the registration was done in a perfunctory manner and the evidence
aid not establish that the testator !mew that the document the
' 1961
Auguai 2S.
196
SUPREME COuRT REPORTS
[1962]
1961
execution of which he admitted ~efore the_ sub-registrar's clerk
Rani-Pu-rn-ima Dei:i
\vaS hii \vilt '.The \vitriesses pioduced to pr0ve registration, even
.· ... : -·-.v.
if they are treated as_ attesting \vifnesses, failed to prove due
Kumar Khag~ndra -
execution and· atte~tation o~ the \Vilt
Na;ayan n,.
H. Vetlatachala Iyengar v. ·,B. N: Thimmaf1mma, ( 1959)
\ • Supp. I S. C.R. 426; applied ..
· ·CrVIL A~PELLATE. JumimICT!()N: Civil Appeal
No. 373/58; ·
.
..
· Appeal by special leave from tpe judgment and
decree dated February 2, 1954, of the Assam High
Court in First Appeal No. 19.of 1950 (Probate) ..
· . s: T. Desai and. Naunit Lal, for the appellants .
. K. R .. Krishnaswami, foi: respondent No. I. .· .
. 196L August 22 .. The judgment of the Court
was delivered by
·
·
IVnnch<>o J.
.
W ANCIIOO, J.-· This ·is an appeal 'by special
leave against the judgment of tlie Assam High
Court in a probate matter. The· main: appellant
is Rani Purnima · Debi widow of Kumi1r Chandra
·· .Narayan Deb (hereinafter called the testator), .who
' 'died in June 1946. The second appe!lant is the
.. testator's married daughter. An application ·was
made by Kumar Khagendra Narayan Deb (hereinafter referred to as the respondent) before the
District Delegate, Gauhati in August 1946 for grant
of letters of administration with the will annexed.
·The case of the· respondent was that thetestator
·had executed a will on December 29, 1943, in favour
.. -·of the respondent by which. the testator gave his
. entire property. to tlie . respondent subject to the.
·respondent's maintaining the testator's widow
and 'sister. Objections were filed on behalf of the
.· .. appellants to the grant o.f letters of administration
. on the basis of the . will propounded l;y tlie respondei;it and three main grounds were urged in
. that connection, namely-(ij'that the wiJI was not
duly nucl legally executed nnd attested; (ii) that the
testator had no sound disposing mind at tho time
he executed the will, and (iii) that the will was the
· . outcome of undue influence. and · coercion exercised
·by the respondent. While the application· of the
---------'
3 S.C.R. · · SUPRE.11E COURT REPORTS
i97
respondent. was pending, another application for
· · 1961
probat.0 of another will said to" ha,·e been executed· R.,;iPurnima'Dw
hv th"· testator a few months before his ·death was..
, . v .. '·
..
•. d ·1
K; .
D ·'. I
.N·
'D b
Th
Kumttr Khag<ndra
ma e. iy-_. •irnar · · w1ien~ ra
arayan:
e . .
e · NaravanD.-.
· appellants ·objected to.that 'will· also' on the same
· ··
grounds · ahd . further added ·that that Will was a
: Wanchco J.
t'org<ery.
Dwijel).dra,'Nar!1.Yari ;Deb did not dispute
the exee1ition of the will in· favour of the respondent-but contended that that will had been.revoked
by• the. later -.'will. in: his favour. The respondent,
however, contended' t)J.aLthe will in favow of
Kumar Dwijendra Naray~n;Deb was_ a 'forgery.
The two suits arising out of the two 'appliCa-
. tions for probate were eventually _tried together by
· the Subordinate Judge at Gauhati. He held that.the .
will propounded by Kumar . Dwijendra . Narayan
Deb \Vas not genuine and therefore dismissed his
application. As to the · \vill propounded .. by the
respondent it was held· that it was duly executed
and attested and was made by . the testator at a
time when he. had. sound disposing state of niind
· and that it was not made under any undue influence and coercion. Consequently· the application·
of the. respondent was· allowed and letters' ·of
administration wit_h the copy~ of the will annexed
'were ordered to be issued to him;
· ·
··
· This was follo·wed· by three appeals to 'the
· .. -.High Court. One of the appeals was by the present
· .appellants and they·' contested the· issue of letters
of administration in favour of the respondent ;
the other two appeals were by Kumar Dwijendra
Narayan. Deb. By one .appeal he contested the
.issue of letters of administration to the respondent
and by the other he. contested 'the .finding of the
Subordinate Judge that the will propounded by him
· was not genuine. The three appeals were heard by
.the High Court together and it upheld the finding
of the trial court that the will ·in favour
of
Dwijendra Narayan was not genuine ; in conse-
>
quence, the two appeals filed by him were dismissed.
This order of the High Court has become final and
1961 --
Rtmi Ptlrnima Dt'fJ1
•· . 0 .V •. ·
, Kumar. /(hlJgmdra
N aratJin Dt?J
. . . ; . --=---- ·,
H~anchao·J.
.
•
198
l'UPRE~IE C01JRT REPORTS
[1962]
we are not · concerned in ·the present appeal with
the will· propounded by Dwijeudra Narayan. In
·the appeal by the appellants, the High Court upheld
the findinl!S of . the trial court . and dismissed the
. appeal. ·The. High . Court was. conscious of the
fact that-there were certain suspicious circumstances
attending-the execution of .the .will in favour of
the respondent ; but. it held. that as the will propounded by the respondent was later.registered in
. January 1944, the suspicion attending the execution
of the will was dispelled by the fact of registration.
· Tlie High Court therefore held that due execution
and attestation of the will had been proved and
it was also proved that the testator was of sound
disposing state of mind at the time of the execution
and that there was no undue influence or coercion
exercised on the testator by the respondent in
connection with the execution of the will.
• The appeal before the High Court was heard
by a Division· Bench and separate but concurring
·judgments were. delivered by the learned Judges
composing the Bench. Ram Labhaya J. who delivered the main · judgment was not we much
impressed by the alleged suspicious circumstances
.·and held that whatever suspicion there might he
was dispelled by the fact of the registration of the
. will later. The learned Chief Justice, who was
the other Judge, and who substantially agreed with
Ram Labhaya J. was more impressed by the
existence of suspicious circumstances relating to
· · the execution and attestation of the will; even so
he . held that the registration of the will was a
complete answer to the suspicious circumstances
.which undoubtedly existed in this case. In the
event both the learned, Judges agi-~ed in dismissing the appeal. Eventually the appellants came
to this Court by way of special leave which ,·was
. · . granted ; and that is how the matter has come up
· ' before us.
· .
·
·
_ ·
.
·
r
Before we consider the facts of this case it is
<
_)vell to set out.)hc priuci11lcs which govern•- .the
3 S.C.R.
SUPREME COURT REPORTS
199
proving of a will. This was considered by this Court
. ._1_1161_. :::- ·•.
,:._
in H. Venkataohala Iyengar v. B. N. Thimmajamma(• ).
Rani P,u_•ni1JJa.!!.~~·,
It was observed in that case that the. mode ·of· K;,.,.,.:}fuii;;;d;~·
proving a will did not ordinarily differ from that·
NM.afT.aif.U...,
of proving any other document except as to the
Wanchoo J.
special requirement of attestation prescribed in
the case of a will by s.63 of the Indian Succession
Act.
The onus of proving the will was on the
propounder and in the absence of suspicious circum·
stances surrounding the execution of the will proof
of testamentary capacity and signature of the
testator as required by law was sufficient to discharge the onus. Where, however, there were
suspicious circumstances, the onus would be on
the propounder to explain them to the satisfaction
of the Court before the will could be accepted as
genuine. If the caveator alleged undue influence,
fraud or
coercion,
the
onus would be on .
him to prove the same. Even where there were no
such pleas but the circumstances gave rise to doubts,
it was for the propounder to satisfy the conscience
of the Court. Further, what are suspicious circumstances was also considered in this case. The
alleged signature of the testator might be very
sha.ky and doubtful and evidence in support of the
propounder's case that the signature in question was
the signature of the testator might J!Ot remove the
doubt created by the appearance of the signature.
The condition of the testator's mind might appear_
to be very feeble and debilitated and evidence adduced might not succeed in removing the legitimate
doubt as to the mental capacity of the testator ; the
dispositions made in the will might appear to be
unnatural, improbable or unfair in the light of relevant . circumstances ; or the will might otherwise
indicate that the said dispositions might not be the
result of the testator's free will and mind.
In such
cases, the Court would naturally expect . that all
legitimate suspicions should be completely removed
before the document was aooopted ail . .the la1t will of•
(l f(I~S9j SUpp. I S.C.R. •26.
.
1981
__ ._ ...... _
Rani' P'Uf'n.fma Devi
. ·v.-·
-
~-
Kumar Khayendra
N Ortiyan Dtt1 --
~--
Wanc1"'1o J.
200
SUPRE:\IE COURT REPORTS
[l9G:!]
the testator .. Fur_!:her, a pro.pounder himself might
_take a "prominent ·part in -the execution of the will
·-which conferred on him substantial bem'fits. If this
was so it was generally treated as a suspicioue circumstance attending the execution of the will .'1ml the
propounder was required to remove the doubts by
- clear and satisfactory- evidence.
But even where·
there were ~uspicious circumstances ancl the propou- ·
- nder succeeded in removing them, the Court would
grant probate, though the will might be unnatural
and might cut off wholly or in part near relations.
It was urged before us that in ·view of concurrent findings of the· courts· below we should be · ·
slow to disturb them. · Jn _view, however, of the
suspicious circumstances ·noted by th" liigh Court.
and some differences· in the approach of the two
learned Judges composing the Bcnch,we· permitted·.
learned counsel for parties to go into the entire ..
evidence so that we may be able to judge whether·
the High Cuurt was right in its . conclusion that the
fact of registration. had dispelled all suspicions ..
' Let as · u'ow turn to. the f~ct~ relati~g· to the
execution of this will.
We have already ·pointed
out that the High. Court was of the view that . there.·
were SUSpiciOUS circumstances attendii;ig the !JX_eCU· ..
tion of the will ar.rl that it \Yas an unnatura.l .will.· ·
The testator left hehind him his. widow. and his
married daqghter (who are appellants before·l}s) an~· ·
an unmarried.sistPI' \\-ho was .dependent u·pon .him.
Besides _these, the. te_stator h~q,a:!mmber of other .
relll;tions who · w.ere ·rrn~ch. I)~arer t() P.im th:intl:1-e:.
respondent. . Eve.n jLwe leave.out',of aceount the·· ..
married d'!ughter 'aucl' ihe oth~r nearer -relations,.
the" wido_w' aI)d. the sister were certa,inly .• expected ,.
to .he properly.'pro,~ided fOr.b}· tlwtcstatqr. It ·is :
not in dispute that the relations. between the t.estator·-.md his \\·ife ·and 'sister' wers gooc];
In these ,
circumstances :we shoulcl ]iav~ expe~tedsnmething '
better ,than· Yfhat 'is proYi<lecj in.the .will fo_r these
· two, · All that the will says is that.the .w.i_fe a_nd the
.
. .
.
.
.
-
'
-
•
'
3 s.c.R.
SUPREME COURT REPORTS
201
sis~er would be suitably maintained by the respondent during their life.time. No amount is specified
which should be given to these two ladies as maintenance and no charge is created on the properties left bv the testator which were considerable.
In effect, • the two
ladies were left to the
timder mercies of
the
respondent
in
the
matter of their maintenance. Further the result of
this will is that the daughter would be completely
disinherited. The testator had a number of children
but all have died many years before and only one
daughter was alive at the time of his death. She
was married and on behalf of the propounder it is
~aid that the relations between the testator and her
husband were not very happy. The evidence, however, does not show that the relations between the
testator and his son-in-law were partieularly strained
at the time of the execution of the will. In any
case there is no satisfactory evidence to show that
relations between the testator and his daup:hter were
bad even if the relations between him and his son.in·
law were not of the best. In the circumstances we
should have expected the testator to make some
provision for the daughter, particularly when it is said
that she was not well-off. There is no doubt therefore
that the will is most unnatural and that is a suspicious circumstance which must be satisfactorily
explained before the respondent can get letters of
administration.
Another suspicious circumstance is that the
respondent gets the sole benefit under the will subject to the maintenance of the wife and the sister
and he was certainly taking part in the execution of
the will on the date it was executed. In such
circumstances the respondent was required to remove the said suspicion by clear and satisfactory
evidence.
Whether he has done so or not will be
considered by us later.
Another suspicious circumstance is that the
signature of the te8t<itor does not appear to be his
usual signature. That is why a lot of questions
1961
Rani Purnima Devi
v.
Kumar Khagendra
Narayan.Dev
Wanek.. J.
1961
Rani Pumima Devi
v.
!lumar Kltatrndra
Narayan /)et:
Wanchoo J.
202
SUPREME COURT REPORTS
(1962]
were put to the witnesses whether the testator
.,.
signed the will with his left hand or right hand '
and e'\"idonce was also given that the right hand
of the testator had been injured sometime before.
·~
Another suspicious circumstance is that it
has been proved in this case that the testator used
to sign blank papers for use in his cases in c,1urt
snd used to send them to his lawyer through }1is
servants and those papers could be in the possession of Rameswar Sarma, the lawyer of the
testator, who has appeared as a witness to prove
the will and who was, according to his evidence,
consulted by the testator in this matter. Such
papers could also be found in the possession of
tho testator's mukhtars. Therefore it was possiblo
to manufoioture a will on papers already signed by
tho testator ; and that is certainly a suspicious
circumstance which had to be o\·ercomo in this
....
•
case.
Lastly, the.High Court has noticed that the
signature of the testator is not in the same ink and
may not be with the samo pen with which tho body
of the >l'ill is
wri~ten. The difference in ink may
1'
not ordinarily bo a matter for various suspicion;
cl'fm so it has to bo oxplainocl in the peculiar
circumstances of this ca.so whon blank papers containing the testator's signaturo wcro a'\"ailable.
Let us now turn to the proof of execution
that has beon given in this caso to sec if the SlB·
piciona raised above h~vc been dispelled.
The will
-
was alleged to be oxecuted at Na-hawli.
It bears
the signatures of as many as sixteen persons as
attestin~ witnesses ; but of these only throe wore
examined on behalf of the respondent. Tho respondent also appeared in tho witness box.
These
three att(lsting witnesses a.re Biswanath Bhattacharya, H,ameswar Sarma, and Kulcndra Narayan
Deb.
Nono of these witnesses is independent ~-"' ,
and it was certainly possible for tho respondent
to prod11ce other witnesses out of the sixteen who
3S.C.R.
SUPREME COURT REPORTS
203
would not be so interested in him. Bhattacharya
is the Purohit of the respondent and that obviously
makes him a person interested in the respondent.
Kulendra Narayan Deb is the first cousin of the
respondent and therefore a near relation who
would be interested in him. Rameswar Sarma is a
,
7
lawyer. He was admittedly working for the testator as such during his life-time. He was questioned
whether after the death of the testator he had
become the lawyer of the respondent. He denied
that. Obviously this must h'1ve been done by him
with tbe idea of posing that he was an independent
witness ; but
his
son-in-law
Dayanand
Goswami, who had already appeared for the
,
respondent, admitted that Sarma was the present
pleader of the respondent. It is obvious therefore
that Sarma tried to pose as an independent witness
by denying what his son-in-law had already stated
about his connection with the respondent. In the
circumstances he cannot also be held to be a disinterested witness, which he tried to be. Besides,
,. none of these three witnesses belong to Na-hawli,
where the execution of the will took place. The
evidence also shows that among the sixteen persons
who attested the will there were persons who were
both independent and respectable like Banshidhar
Goswami, a
doctor, Jammi-ud-din, an elder of
the village and Baneswar Deka, a retired Sarishte1
dar ; but no attempt was made to produce these
'
witnesses to dispel the suspicion arising from the
circumstances which we have already mentioned.
~
Apart from the witnesses being interested, the
actual evidence given by them also does not in our
opinion dispel the suspicion aroused in this case.
Bhattacharya, for example, said that he had been
invited by the testator to attend the adoption of
,.... ,. _ resondent as his son and he went on that date to
Na-hawli for that purpose. He further said that
he had gone on a cycle straight to Na-hawali and
di_d not meet anyone on the way. It seems strange
1961
Rani Purnimo Ddvi
v.
Kumar Khagendra
Narayan Dev
!Vamhoo J.
1961
~ani Pl4rni11w f)tt:i
v.
~-umar J.."lv1yt11dr'1
/'o' arayan Dtt'
Jruncho1> J.
204
SUPRE:IIE COU!tT REPORT;:;
[IU62]
that this witness shouhl have been in,·ited to be
present at an adoption when what tlw tcHtator
was i11w11ding to do was to oxucute a will. Probably
it was felt that a Purohit would Ul' more likelv 1.0
be im·itcc! to an adoption 11.nd therefore this story
was put in his mouth.
Further Bhattachary11 is
c:ontmdictcd uy the resvundcnt and Kulendr'.I
Xarayan who say that Bhattacharya had
been
staying at Kulendra :N"araya11's place for two days
before awl h'ld gone from there to Xa.Jurn·li wit.h
the respondC'nt and his
father and Kulcnclra
Xarayan. The story therefore that l3hattachary11
was invikcl uy the testator is ob\•iously fobe and
if he did go to Na-hawli it must ha\·~ !Jcen in the
company of the respondent and his father whose
Purohit he was.
As to tlw execution itself the witnesso;s
difft•r on one vory important matter. Bhatt.'lcharya
said that the wife of the testator w:is also preEcnt
at the execution of the will and raised no objection.
He was asked if any one thero suggcst-0d that she
should also sign and he said t.hat he did not
remember.
Kulendra Narayan also said that the
wife of the testator was prosent when the will was
executed and did not object. Ho even went to tho
length of saying that she said that what hor husband
wanted to do had been done and tho reepondcnt
was her son also. The respondent on the other
hand says that the wife of the testator along with
the other women was sitting in the doorway of a
room adjoining tho portico. He does not suggest
that the wife of the testator was present while the
will was executed. Similarly, Rameswara Sarma
stated that tho appellant Rani was in the adjoining
house about :!O yarcls away and did not come near
her husband when the will was executed. Now the
fact whother the appellant Rani was present or not
when tho will was oxecuted was of great importance
and of tho four witnesses who have deposed about
the execution of the will including the respondent,
two say onething and the other two say something
••
' .
•
. ~ .
'
y
1
3S.C.R.
SUPREME COURT REPORTS
205
quite contradictory. In these circumstances the
inference would be that the story about the execution has been made up and that is why there are
contradictions on such an important matrer. In
any case these contradictions hardly help to dispel
the suspicion aroused by the circumstances already
mentioned above.
A good deal of reliance has been placed on
the statement of Rameswar Sarma who has been
practising as a pleader since 1929 and became an
advocate sometimes in 1948/1949. He was counsel
for the testator for the last few years before his
death. Ordinarily, therefore, his evidence would be
entitled to great weight because of his connection
with the testator and his standing :1s a lawyer, and
if it is accepted much of the suspicion might be
dispelled, for he has given ·explanations as to why
the testator made such aw 11 and has also referred
to the advice tendered by him to the testator in
this connection to provide something more beneficial for the daughter, the wife and the sister and
the testator's refusal to do so.
But we should have
expected from a witness of this kind strict regard
for truth and if we were sure that the witness had
strict regard for truth we might have believed his
statement. As we have already pointed out, however this witness does not appear to have much
regard for truth and tried to pose as an independent
witness by denying that he was working as a lawyer
for the respondent, when his son-in-law had already
admitted that he was the present pleader of the respondent. In these circumstances we can place no
reliance on his evidence, for if he was capable of
denying his connection with the respondent he can
be capable of colluding with the respondent in
manufacturing the will on signed blank papers
which were admittedly available to him and others.
Looking at the evidence of the three attesting witnesses and the respondent broadly, we must say
that that evidenca does not dispel the suspicion as
to the due execution and attestation of this will.
1961
Rani Purninia. Devi
v.
J(utnar Khagendra
Narayan Dev
1Vanchoo J,
1961
Rani Put'nimo De"i
v.
Kwnar KIUJgtndrn
Narayan Dtv
ll'anchoc J.
206
SUPRE~IE COURT REPORTS
(1962]
The High Comt was also conscious of the fact
that the evidence as to the execution and attestation
of the will was not \'cry adequate, for the learned
Chief Justice obscn·cd that the evidence on the
point of actual execution might not be very adequat-0; but the view taken by the High Court was that
more c\·iclcnce was not nceessarv in 'l'iPw of the
pleadings of tho parties. In this connection tho
High Court relied 011 Dwijendra Karayan Deb's
acceptance of the will in fa\·our of tho respondent.
This in our opinion wn.s not justified so far as the
appellants
were concerned, for an admission of
Diwijendrn Narayan Deb who mu8t now be held to
to have put forward a forgod will could not be an
added circumstance to support the inadequate
evidence led by tho respondent.
We are further of
the opinion that, the High Court was not ju8tified
in executing tho inadequacy of the evidence to prove
the due execution and attestation of tho will on the
basis of the pleadings of the parties. It is true that
the appellants did not say in so many words that
the will
propounded by the respondent was a
forgery as they did about the will propounded by
Dwijcndra Narayan Deb; even so the appellants
had put the respondent to strict proof of due and
legal execution and attestation of the will and there
was an issue to that effect. This· was not a case
whero the due and legal execution and attestation
of the will was admittt'd and the only disputes were
thi<t tho testator had not a souud disposing state of
mind or had act{)d under undue influence or coercion. Though the appellants did not go t-0 the
length of characterising the will as a forgery aR they
did in tho case of the will propounded by Dwijendra
Narayan, they certainly put tho respondent to
strict proof of legal and due execution and attes·
tatiou of the will. In such circumstances it was the
duty of the rcepondent, particularly in the presence
of suspicious
circumstances which have been
noted
by the High Court,
to prove tho due
execution and
attestation of
the will
by
•
•
1
. )'
-
3 SC.R.
SUPREME COURT REPORTS
207
satisfactory evidence which would lead Court to the
conclusion that the suspicious circumstances had
been dispelled. We do not see how the evidence which
has been characterised by the High Court as inadequate would suffice to dispel the suspicious circum- ·
stances which undoubtedly are present in this case.
We have no hesitation in coming to the conclusion,
apart from the question of registration with which
we shall deal presently, that ii the evidence which
has been produced in this case were all the evidence
nvailable to prove the due execution and attestation
of the will, there could be no doubt that the respondent had failed to satisfy the Court and dispel the
suspicious circumstances which were undoubtedly
present in this case.
Let us now turn to the registration of the
will, for it is on the registration that the High Court
haa relied strongly to dispel whatever it also considered suspicious in this case. The contention of
Mr. Desai on behalf of the appellants in this connection is that registration may be an added circumstance in favour of the genuineness of the will and
may be taken into account in considering whether
suspicious circumstances had been dispelled, but the
High Court was not right on the facts of this case
in relying mainly on the registration to hold that
all suspicions relating to this unnatural will had been
dispelled. There is no doubt that this will was
registered on January ?.7, 1944, and there is an
endorsement on the will to the effect that the tes.
tator had admitted the execution of ii;, It will
therefore be necessary to examine the circumstances more closely than the High Court seems
to have done in this case. It appears that an
application was made by the mukhtar.i.am of the
testator (and not by the testator himstilf) on
January 16, 1944, before the Sub-Registrar for
registration of the will on commission. The SubRegistrar himself did not go to execute the commission but sent a clerk of his named Arabali, though
the reason given in the application for the issue of
1961
Rani Purnima Devi
v.
Kumar Khagendra
Narayan Dev
Wanehoo J.
208
SUPREME C0'\7RT REPORTS
(1962]
/9CJ
commission viz., respectability was not justified in law c
R,,,, /'urn.ma 1i,,; and no commission should have been issued at all.
"·
This clerk wn,s apparentl.v. a resident of the same area
f, ru11tir A"haqM1,frt1
s,,,.,,,,n·JJ,,.
in whirh the testator was 1.iving and know him from
u·an,hoo J.
before. It is a matter worthv of note in the
circumstances of this case tho person who went to
inquire from the testator whether he had executed
the will was not the Sub-RC'gistrnr himself who would
be a more responsible officer than his clerk. Anyhow, the evidence of the clerk is that he found the
testator quite hale and hearty. The testator came
out from the inner apartment to the verandah of
the house and admitted tho execution of the will.
Thereafter the testator signed at the bottom of the
will in token of his ha,·ing admitted the genuineness
of the will and Dehiram Bora identified the testator.
Thcn•aftf'r Aralmli took the document to the office
of the Snb-R<'gistrar and it was registered. It is on
this registration th~t tlw High Court has rdicd very
strongly for dis1wlling thl) suspicion arising in this
case.
Before we consider tho evidence on this asprct
(
•
of the matter further, we should like to refer to a
point which serms t.o have weighed with the High <
Court in judging the value of registration. The
High Court thought that four witnesses siimed the
will at the time of itK registration. It is not quite
ckar what the High Court meant by this, namely,
whNher the High Court thou1<ht that these fou;
witnl'S8cs alRo atteRtcd the will : hut a perusal of
the will transeribr,<J in the record (Ex. 3) shows that
this is not correct, for the only person who siizned
at the bottom of tho will at. the time of the visit of
~
Ara.hali besidns Arabali himself a.nd the testator,
was Dehiram Bora. Learned coun~d for the rospomlcnl wa" unable to satisfy us how tho High
Court got tho imprcqsion that four witnesses h11.d
signed at thn bottom of the will presumably as a
.
matter of attestation when the registration clerk -"· --
came on commission. \Ve must therefore proceed
on the footing that the High Court was not
'
r
•
,..,_
l
3 S.C.R.
SUPREME COURT REPORTS
209
right in the view that four persons had signed the
will, whatever that may mean, when Arabali came
for registration ; and insofar as the High Court
jud~ment was influenced by this circumstance, it
suffers from an infirmity.
However, let us
look at what
actually
ha"'.)pened when Arabali came for the registration
of the will. Arabali's own statement on this point
is that he examined Chandra Narayan Deb (i.e. the
testator) at Majikuchi who admitted the execution
of the will.
This is all that Arabali bas said in
this connection.
There is nothing in the evidence
to show that the will was read over to the testator
or was read by him before he admitted execution
of it. What exactly passed between Arabali and
the testator at this time has also not been given by
Arabali and the exact words used liy him in this
connection and the exact reply of the testator are
also absent from the evidence. It is true tha.t it is
broadly stated by Arabali that he examined the
testator who admitted the execution of the will.
That in our opinion is hardly sufficient in a case of
this kind to dispel the serious suspicion which
attaches to the due execution and attestation of
this will.
Further the evidence of Arabali is that
Dehiram Bora identified the testator. That is all
the part assigned by Arabali to Dehiram Bora,
besides the fact that Debiram Bora signed at the
bottom of the will thereafter. Arabali does not say
that Dehiram Bora was present when the testator
had admitted the execution of the will or that
the testator signed at the bottom of the will in the
presence of Dehiram Bora and Dehiram Bora
signed it in the presence of the testator. Of course,
Arabali does say that the testator signed at the
bottom of the will in his presence, though he does
Rani Purnima Detrt.
v.
Kumar Khagendra
Narayan Dev
Wanchoo J,
not say that he signed it in the presence of the
testator. We ar\) referring to this aspect of the
...
matter, for it has been urged that even if t~ecution and ·"1ttestation of December 29, 1943; is 1>pen ..
:
\
~:J
. ,
·~··
_t· -.J
-,
-
t·~.
;·f,,.J
t
1c·l
.
.,..· .
.. ·'
i.
1961
Rani Purnima D;vi
v.
Kumaf' Khagendra
Narayan De'V
Wanchoo J.'
i
/
210
SUPREl\IE COURT REPORTS
(1962]
to doubt the will must be held to be duly executed
and attested before .Arabali and Dehiram Bora.
· Coming now to the evidence of Dehiram Bora,
he began by saying that he was present when the
will ·in favour of the respondent was executed by
the testator. Exactly what he meant by this is ·not
-,_clear because he.was undoubtedly not pmsent when
' the will was executed on December 29, 1943.
However, he went on to say tbat it was registered
in l\Iajikuchi. He identified the testator before the
registration clerk, Arabli, there. After identification he signed at the bottom of the document as
identifier. Thus in his examination-in-chief Dehiram
Bora merely stated that he signed at the bottom of
· · the will as an identifier and did not say that
Arabali had put any questions to the testator about
the execution·. of the will, and that the testator
admitted the execution. In cross-examination he
said that the testator signed in his presence at the
bottom -of the will. - He, however, never said that
the will was read over to the testator or was read
by him and that the testator admitted tl>e execution
of the \till to him and thereafter he signed the will
at the bottom. Thus all that one finds is that he
signed as a person who identified the testater.
If therefore these two witnesses, namely,
Arabali and Dehiram Bora are to be ·treated as
attesting witnesses for the purpose of s.63 of the
Indian Succession Act, 1925 (39 of 1925), it is
clear that they completely fail to prove due
_execution and attestation of the will as required by
that section. · So all that we come to is that there
is a bald statement of Arabali to the effrct that he
examined the testator who admitted the execution
of the will and there is the statement of Dehiram
Bora that at that time he identified the testator
before Arabali. It is on this that the will was later
registered by the Sub-Registrar.-·
·
We may refer to one more circumstance that
has been urged before us. It is said that the will
~:
I
!
• \
3 S.C.R.
SUPREME COURT REPORTS
211
undoubtedly existed in January 1944 as evidenced
by its registration. Therefore, if this was not a
genuine will of the testator he would have taken
steps to revoke it, for he died almost 2! years after
the registration of the will. This, however, assumes
that the testator knew of the existence of this will.
If he did not know of the existence of this will
there would be no question of his revoking it,
however long afterwards he might have died.
Now
the evidence that the testator knew of the existence
of this will consists only of what happened on
December 29, 1943 and on the date when Arabali
went to Majikuehi on commission in connection with
the registration of the will. We have already dealt
with the evidence -With respect to these two dates
and if that evidence is insufficient to prove due
execution and attestation of the will, as we hold
it is, it would also be insufficient to show that the
testator knew after the end of January 1944,
that such a will existed. In the absence, therefore,
of the knowledge of the testator about the existence
of this will, this circumstance loses all its force.
There is no doubt that if a will h'1s been
rogistered, that is a
circumstance which may,
having regard to the circumstances, prove its
genuineness. But the mere fact that a will is
registered will not by itself be sufficient to dispel
all suspicion regarding it where suspicion exists,
without submitting the evidence of registration to
a close examination.
If the evidence as to
registration on a close examination reveals that
the registration was made in such a manner th'1t it
was brought home to the testator that the document
of which he was admitting execution was a will
disposing of his property and thereafter
he
admitted its execution and signed it in token thereof,
the registration will dispel the doubt as to the
genuineness of the. will.
But if the evidence as to
registration
shows
that it was done in a
perfunctory manner, that the officer registering the
will did not read it over to the testator or did not
1961
Rani Purnima Devi
v.
Kumar Khagendra
Narayan Dev
TVanchoo J.
1'Jl1
Rani Purnima D1vi
v.
Ku- Khaflndra
1-.'arayan Dt'{)
Wandk>o J.
212
SUPREME COURT REPORTS
[1962)
bring home to him that he waR admitting tho
execution of a will or did not satisfy himself in
some other way (as, for example, by seeing the
testator reading the will) that the testator knew
that it was a will the execution of which he was
admitting, the fact that the will was registered
would not be of much value. It is not unknown
that registration may take placo without tho
cxecutant really knowing what he was registering.
Law reports are full of cases in which registered
wills have not been acted upon (seo, for example,
Vellasaw11y
Sarmi v. L
Sii:11raman Sermi, (')
Surwdra NC1th Lahiri v. Jnanendm Nath f,ahiri(')ancl
Girji Datt Singh v. Gangotri Dlltt Singh)('). Therefore, tht> mero fact of registration may not by itself
be enough to di.spol :i.11 suspicion thnt m'1y attach to
the execution and nttestation of a will; though the
fact that there hns been registration would be an
important circumstance in favour of tho will bein!J
genuine if the evidence a.s to registration estab·
lishes that tho testator admitted the execution of t-hc
will after knowing that it was a will the execution
of which he was admitting.
The question therefore is whether in tho
circumstances of the present case the evidence as
to registration discloses that the testator knew that
ho was admitting the execution of a will when ho is
said to have put down his signnture at the bottom
of the will in the presence of Arabali. 'Ve have
scrutinized that evidence c'Lrefully and we must say
that the evidence falls short of satisfying us in the
circumstances of this case that the testator knew
that tho document tho execution of which he was
admitting before Arabali and at the bottom of
which he signed was his will.
Therefore we are left
with the bnkl fact of registration which in onr
opinion is insufficient in the circumst,'1.nces of this
ease to dispel the suspicious circumstances which
(I) (1930) 1.L.R. 8 Ran. 179.
(3) A.J.R. 1955 S.C. 346.
(2) A.l.R. 1932 Cal. 574.
... .
' .
-
J,
-~
' r
..
3 S.C.R.
SUPREME COURT REPORTS
213
we have enumerated above. We are therefore not
satisfied about the due execution and attestation of
this will by the testator and hold that the propoun·
der has been unable to dispel the suspicious circumstances which surround the execution and attestation
of this will.
In the circumstances, no letters of
administration in favour of the respondent can be
granted on the basis of it.
We therefore allow the appeal, set aside the
judgments of the High Court and the trial court and
dismiss the suit arising out of the application for
probate made by the respondent. The appellants
will
get
their costs
throughout
from the
respondent, Kumar Khagendra Narayan Deb.
Appeal allowed.
STATE OF UTTAR PRADESH
v.
KUNW AR SRI TRIVITIBAM NARAIN SINGH
(P. B. GAJENDRAGADKAR, K. SuBBA RAO,
M. HIDAYATULLAH, J. C.