# JASWANT KAUR v. AMRIT KAUR & ORS

- **Citation:** [1977] 1 S.C.R. 925
- **Court:** Supreme Court of India
- **Decided:** 1976-10-25
- **Case number:** Civil Appeal No. 1360 of 1975
- **Bench:** Y. V. Chandrachud, P. K. GosWAMI, A. C. Gupta
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/jaswant-kaur-v-amrit-kaur-ors-7000
- **Pages:** 12

## Headnote

Indian Succession Act, 1925-.S'ec. 63 legal will--Genuineness of-Suspicious
circumsta~es-Burden of proof-Degree uf proof.
S. Gobinder Singb Sibia was possessed of a large estate valued at about
Rs. 15 lacs Ii. the time of his death in the year 1954. He had awo wives Guiab
Kaur and Dalip Kaur. Dalip Kaur pre-deceased him leaving a son and a
grandson named Surjit.
After the death of S. Gobinder Singh, Guiab Kaur
filed a suit for maintenance, claiming alternatively a one-half share in the estate
left by her husband. Surjit contested the said suit. After the institution of the
suit, the Hindu Succession Act, 1956, came into force on June 17, 1956 upon
the plaintiff giving up her claim for maintenance and restricting her suit to a
half share in her husband's estate, the defendant made an application for amending his written statement and pleaded that S. Gobinder Singh had executed a
will in the year 1945 bequeathing practically the entire estate in his favour and
leaving a small life interest in favour of the plaintiff. The amendment application was filed in March, 1958, after the plaintiff's evidence was over.
The
Trial Court decreed the plaintiff's suit and held that the plaintiff was entitled
to a half share in the estate left by Gobinder Singh and that the defendant had
failed to lll'OVe the will. In an appeal filed by the defendant the High Court set
aside the Judgment of the Trial Court and dismissed the plaintiff's suit. The
High Court held that will was duly established .
I. Allowing the appeal,
HELD : (a) In cases where the execution of a will is shrouded in: suspicion,
A
B
c
D
its proof ceases to be a simple /is between the plaintiff and the
defendant.
What generally is an adversary proceeding becomes in
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such cases a matter of the court's conscience. 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 must remove all
legitimate suspicions before the document can be accepted as the
!
last will of the testator. (929 C-F, 930 C-D]
(b) A will has to be proved like any other document by applying the
F
usual test of the satisfaction of the prudent mind. [929 Fl
( c) Since section 63 of the Succession Act requires a will to be attested
it cannot be used as an evidence until at least one of the attesting
witnesses is e1'filnined, if available. [929 GJ
( d) 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 was executed.
That circumstance introduces a certain amount of solemnity in proof
of testamentary instruments. [929 H, 930 Al
R. Venkatacha/a Iyengar v. B. N. Thimmajd,mma & Others [1959] Supp. 1
S.C.R. 426, followed.
2. The testator was a man of property and occupied a· high Position in
society. A genuine will of such a person is not likely to suffer from the loopholes and infirmities which may beset llU' humbler testamentary instrument.
[931 D, H, 932 Al
3. The following circumstances thJ·ow a cloud of suspicion on the making
of the will by Gobinder Singh :
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SUPREME COURT REPORTS
[1977] 1 S.C.R.
(i) The will is alleged to have been made in 1945 but it did not see
the .light of the day till 1957. It is unacceptable that a document by
whic~ property worth lacs of rupees was disposed of could have
remamed a closely guarded secret from intimate friends and relatives
and from the sole legatee himself for over 2! years after the testator's death. (932 A-BJ
(ii) The testator had l.eft b.ehind him a large. p~·opert~ and along with it
large ~ount of httgatJon which makes it 1mposs1ble to believe that
upon h1~ death no one bothered to go through his paper~. ·nic
explanahon. of tpe defendant that he stumbled upon the will
by
chance while gomg through some papers of his grandfather
is
patently lame and unacceptable. [932 B-D]
•
(ii

## Text

•
925
JASWANT KAUR
v.
AMRIT KAUR & ORS.
October 25, 1976
[Y. V. CHANDRACHUD, P. K. GosWAMI AND A. C. GUPTA, JJ.]
Indian Succession Act, 1925-.S'ec. 63 legal will--Genuineness of-Suspicious
circumsta~es-Burden of proof-Degree uf proof.
S. Gobinder Singb Sibia was possessed of a large estate valued at about
Rs. 15 lacs Ii. the time of his death in the year 1954. He had awo wives Guiab
Kaur and Dalip Kaur. Dalip Kaur pre-deceased him leaving a son and a
grandson named Surjit.
After the death of S. Gobinder Singh, Guiab Kaur
filed a suit for maintenance, claiming alternatively a one-half share in the estate
left by her husband. Surjit contested the said suit. After the institution of the
suit, the Hindu Succession Act, 1956, came into force on June 17, 1956 upon
the plaintiff giving up her claim for maintenance and restricting her suit to a
half share in her husband's estate, the defendant made an application for amending his written statement and pleaded that S. Gobinder Singh had executed a
will in the year 1945 bequeathing practically the entire estate in his favour and
leaving a small life interest in favour of the plaintiff. The amendment application was filed in March, 1958, after the plaintiff's evidence was over.
The
Trial Court decreed the plaintiff's suit and held that the plaintiff was entitled
to a half share in the estate left by Gobinder Singh and that the defendant had
failed to lll'OVe the will. In an appeal filed by the defendant the High Court set
aside the Judgment of the Trial Court and dismissed the plaintiff's suit. The
High Court held that will was duly established .
I. Allowing the appeal,
HELD : (a) In cases where the execution of a will is shrouded in: suspicion,
A
B
c
D
its proof ceases to be a simple /is between the plaintiff and the
defendant.
What generally is an adversary proceeding becomes in
E
such cases a matter of the court's conscience. 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 must remove all
legitimate suspicions before the document can be accepted as the
!
last will of the testator. (929 C-F, 930 C-D]
(b) A will has to be proved like any other document by applying the
F
usual test of the satisfaction of the prudent mind. [929 Fl
( c) Since section 63 of the Succession Act requires a will to be attested
it cannot be used as an evidence until at least one of the attesting
witnesses is e1'filnined, if available. [929 GJ
( d) 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 was executed.
That circumstance introduces a certain amount of solemnity in proof
of testamentary instruments. [929 H, 930 Al
R. Venkatacha/a Iyengar v. B. N. Thimmajd,mma & Others [1959] Supp. 1
S.C.R. 426, followed.
2. The testator was a man of property and occupied a· high Position in
society. A genuine will of such a person is not likely to suffer from the loopholes and infirmities which may beset llU' humbler testamentary instrument.
[931 D, H, 932 Al
3. The following circumstances thJ·ow a cloud of suspicion on the making
of the will by Gobinder Singh :
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SUPREME COURT REPORTS
[1977] 1 S.C.R.
(i) The will is alleged to have been made in 1945 but it did not see
the .light of the day till 1957. It is unacceptable that a document by
whic~ property worth lacs of rupees was disposed of could have
remamed a closely guarded secret from intimate friends and relatives
and from the sole legatee himself for over 2! years after the testator's death. (932 A-BJ
(ii) The testator had l.eft b.ehind him a large. p~·opert~ and along with it
large ~ount of httgatJon which makes it 1mposs1ble to believe that
upon h1~ death no one bothered to go through his paper~. ·nic
explanahon. of tpe defendant that he stumbled upon the will
by
chance while gomg through some papers of his grandfather
is
patently lame and unacceptable. [932 B-D]
•
(iii) The defendant came out with the theory o[ will after the Hindu
Succession Act of 1956 came into force as a result of which the
plaintiff would become an absolute owner of the prope~y that would
fall to her share as the heir of her husband. ,(932 G-H, 933 A-B]
(iv) The will was typed o.ut on both sides of a single foolscap paper
and was obviously dtafted by a lawyer. No evidence was led as to•
who drafted the will and -who typed it out. (933 B-C]
( v) The will was attested by two persons, both of whom were strangers
to the testator's family nnd neither of whom could give a proper
account of the execution of the
will.
In fact they
contradicted
each other. [933 C-H]
(vi)
(vii)
The two persons who are alleged to have been appoimeu executors
were not examined, though available.
Normally, the •:xecutors are
not appointed without their consent or consultation. [934 A-CJ
The will is unnatural and unfair. [934 CJ
(viii) The will does not make mentkm of many of the near relations and
descendants of the testator. (934 D-F]
(ix) The plaintiff was excluded as an heir of the testator for the supposed
reasons that she had brought disgrace to the Sibia family and that
her behaviour was such as would not even bear a mention in the
will.
No evidence was Jed on the misconduct of the plaintiff.
[934 F-G]
(x) The defendant in his evidence did not offer any explanation for
any of the suspicious circumstances. (934, GJ
4. The High Court merely recited a few facts mechanically and
without
going into the suspicious circumstance accepted the will as genuine. The High
Court did not aP,PlY the rule as to the burden of proof which governs the testamentary proceedmgs, as set out in the decision of this Court in lyenRar's case
to which reference was made in the Trial Court's Judgment. [838 F-H]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1360 of 1975.
(From the Judgment and Order dated 12-3-1915 of the Punjab & Haryana High Court in Regular First Appeal No. 315/64).
V. M. Tt1rkunde, E. C. Agrawalil and Miss N. Tarkw1de for the
appellant.
Bishan Narain, and Mrs. Urmilil Sirur for respondent No. 1.
Hardev Singh and R. S. Sodhi, for Respondent No. 2.
The Judgment of the Court was delivered by
CHANl'>RACHUD, J.-Sardar Gobinder Singh Sibia who was possessed of a large estate died on December 15, 1954 at the age of about 70.
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JASWANT KAUR v. AMRIT KAUR (Chandrachud, J.)
927
He had taken two wives, Guiab Kaur and Dalip Kaur. The story .of his
life follows the familiar pattern-the pretext of a disagreement with the
unwanted wife, special favours for the favourite and jealous rivalries
between the children born of the two.
The following pedigree will facilitate a better understanding of the
issues involved in the case:-
Tara Singh Sibia
Ratan Singh
Guiab Kaur
=
Gobinder Singh
(Plainti~
(Died-15-12-1954)
=
Dalip Kaur
(_pre-deceased her husband)
(Died":'""! ~59)
•
Jaswant Kaur
(Appellant)
Amrit Kaur =
(llespondent 1 )
Gobinder Singh
(Respondent 2)
Guraprakash Kaur
Gurbachan Sin~ll
(pre-deceased his father)
= Jogind~r Kaur (Died I 971)
:----'-------.------:
Surjit lnder Singh
Palvinder Kaur
(Defendant)
(Respondent 5)
(Died-1968).
Surinder Singh
(Respondent 3)
Gopal Indcr Singh
(Respondent 4)
After the birth of the app~llant Jaswant Kaur, Guiab Kaur started living
or as the story goes, was compelled to live with her parents.
Dalip
Kaur had given birth to a daughter Guraprakash Kaur and a soh Gurbachan Singh. Gurbachan died during the life-time of his father Gobinder Singh, leaving behind his widow Joginder Kaur who died in 1971.
Gurbachan Singh and Joginder Kaur gave birth to two chHdren, a son
Surjit Inder Singh and a daughter Palvinder Kaur. Surjit lnder Singh·
died in 1968 leaving behind a widow Amrit Kaur and three sons;.
On May 22, 1956 which, was about a year and a half after the death
of Sardar Gobinder Singh, his. widow Guiab Kaur filed a suit in forma
pauperis cfaiming maintenance @ Rs. 100-0/- per month or in the alternative a one-half ~hare in. the properties left by her husband .. Het
co-wife's grandson Surjit Inder. Singh was the defendant to the suit.
He filed his written statement on January 5, 1957 contending that the
plaintif{ had deserted her husband and that she was neither entitled to
maintenance nor to any share ·in his estate. On, these pleadings the trial
courtstruck issues in the suit on February 1, 1957. At the end of het
evidence on August 17, 1957 the plaintiff gave up her claim for maintenance and stated that she wanted a one-half share in her husband's
estate.. The hearing of the suit was adjourned by the learned uial Judge
to J\.ugust 24, for recording defendant's evidence.
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SUPREME COURT REPORTS
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In the meanwhile, on August 20, the defendant filed an application
ailing for permission to produce a will stated to have been made by
Sardar Gobinder Singh, on November 26, 1945. The learned District
Judge, Sangrur, who was then seized of the suit rejected that application
and refused to allow the defendant to amend his written statement.
That order was, however, set aside in revision by the Punjab High
Court which directed the trial court to allow the defendant to amend
his written statement and to produce his father's alleged will.
On
March 8, 1958 the defendant amended his written statement contending that by the will, his father had left almost the entire property to him
and that the plaintiff Guiab Kaur was not entitled to any share in the
property under the will.
In June, 1958 the plaintiff filed a formal
application seeking leave to amend her plaint giving up her daim for
maintenance and asking for a one-half share in the properties of her
deceased husband. Fresh issues were thereafter framed on the basis of
the amended pleadings. On March 10, 1959 the plaintiff di!d and her
daughter, Jaswant Kaur, who is the api>ellant before us, was brought
on the record as her legal representative.
The suit was tried eventually qy the learned Senior Sub-Judge, Sangrur, who by his judgment dated June 29; 1964 decreed it. The learned
D
Judge held that t,he defendant who set up the will had failed to prove
that it was the last will and testament of his grand-father Gobinder
Singh and alternatively, that even on the assumption that the will was
proved, it must be deemed to have been revoked on account of certain
dispositions made by the testator after the making of the will. This
alternative conclusion that the will stood revoked by implication is clearly unsupportable and the appellant, who disputes the will, did not urge
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that consideration before us. The revocation of an unprivileged will is
an act only a little less so!emn than the making of the will itself and bas
to comply with statutory requirements contained in section 70 of the
Succession Act.
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Holding that the defendant had failed to discharge his onus of proving the will, the trial court granted to the plaintiff a decree for a one-half
share in the properties of her husband. In doing this, the Court relied
on "overwhelming documentary evidence" showing that according fo
the custom by which the parties were governed, a sonless widow wa11
entitled to a one-half share in the estate of her husband, as an equal
sharer with the male progeny born of a·oo-wife. That the parties were
governed in this matter by customary law was "openly conceded" in the
trial court, the point of dispute being restricted on this point to the
question as to what in fac~ was the custom. It wali common ground before us that if the will goes, the plaintiff will be entitled to a half sb11re
in the estate of her husband Gobinder Singh.
Aggrieved by the judgment of the trial court, the defendant Surjit
Inder Singh filed First Appeal No. 315 of 1964 in the High Court of
Punjab and Haryana. During the pendency of the appeal, the defendant
died on October 22, 1968 and his widow Amrit Kaur, her three sons,
and his sister Palvinder Kaur were brought on the record as his legal
~epresentatives. They are respondents 1 to 5 to this appeal. By its
Judgment dated March 12, 1975 the High Court set aside the judgnient
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JASWANT KAUR v. AMRIT KAUR (Chandrachud, J.)
929
of the trial court, allowed the appeal and dismissed the plaintiff's suit.
A
The High Court has held, or appears to have held, that the will was
duly established. Since the will excludes the plaintiff as a sharer in the
testator's estate, the suit had to fail, custom or no custom. This appeal
by special leave is directed against the juggment of the High Court.
1
The defendant who is the principal legatee and for all practical purpOieS tke sole legatee under the will, is also the propounder of the will.
B
It is he who set up the will in answer to the plaintiff's claim in the suit
for a one-half share in her husband's estate. Leaving aside the rules as
to the burden of proof which are peculiar to the proof of testamentary
inatruments, the normal rule which governs any legal proceeding is that
the burden of proving a fact in issue lies on him who asserts it, not on
him who denies it. In other words, the burden lies on the party which
would fail in the suit if no evidence were led on the fact alleged by him. c
Accordinglf, the defendant ought to have led satisfactory evide:ice to
prove the dae execution of the will by his grand-father Sardar Gobindei;
Singh.
In cases where the execution of a will is shouded in suspicion, its
proof ceases to be a simple lis between the plaintiff and the d~fendant.
What, generally, is an adversary proceeding becomes in such cases a
D
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
~
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explanation ot the suspicious circumstances surrounding the making
of the will.
E
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. V enkatachala
Iyengar v. B. N. Thimmajamma & Others.(1)
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 docuF
merit, 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 prooi with mathematical certainty.
2. Since secti"n 63 of the Succession Act requires a will to be
G
attested, it cannot be used as evidence until, as required by section
..
63 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 deH
posing as to the circumstances in which the will came to be executed.
(1) [1959] Supp. I S.C.R. 426.
930
SUPREME COURT REPORTS
(1977] 1 S.C.R.
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A
This aspect introduces an element of solemnity in the decision of the
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. question whether the document propounded is proved to be the last
will and testament of the testator.
Normally, the onus which lies on
tile 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 disposition 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 c;annot
...-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 .vill was
made, or that those like the wife and children of the testator wbo
would normally receive their due share in his estate were disinherited
because the testator might have had his own reasons for excluding them.
The presence of suspici~us 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 must remove all legitimate suspicions before tbe 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 circumstance that the test of satisfaction of the
judicial conscience has been evolved. That test emphasies that in dctcrmini ng the question as to whether an instrument produced before
the court is the last wi_!l 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 \ll>sence 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 propounder to remove all reasonable doubts in the
matter.
We will now set out briefly the provisions of the will which is 1.iated
November 26, 1945.
The will consists of 9 para1'"aphs, by the first
of which the testator appointed Sardar Kesho Ram, a Judge of the
High Court of Patiala, and Sardar Bahadur Ranjit Singh a contractor
of Delhi, as executors.
By paragraph 2 the testator bequeathed the
whole of his property; movable and immovable, tQ his grandson Surjit
Inder Singh who is the defendant in the present suit.
By paragraph
3 the testator gave to his wife Dalip Kaur a life-interest in a house at
Simla, called Kenilworth.
The testator provided by paragraph 4 that
if the house was later acquired by the Government or was sold by himself Dalip Kaur would be entitled to receive from his estate a sum
equal to the compensation fixed in the acquisition proceedings or equal
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.JASWANT KAUR v. AMRIT E:AUR (Chandrachud, J.)
931
to the sale price. The amount was to be deposited in approved securities, Dalip Kaur being entitled only to the_ mterest thereon.
On
h~r
demise the house or the amount 111 deposit was to vest absolutely 111
the defendant. Paragraph 5 gave to Dalip Kaur the right of res.idencc
in a part of the house at Sangrur, paragraph 6 gave to her the nght to
use during her life-time the jewellery antl ornaments and paragraph 7
states expressly that she will have no right to alienate any of the J?fOperties in which she was given a life-interest.
Paragraph 8 provides
tliat Dalip Kaur had the right to live jointly with th.e defend_~nt but
in case there were differences between them, she would be entitled to
receive from him an annual sum. ol' Rs. 5,000 for her maintenance.
This ar11ount was to constitute a charge on a land at Karmsar, District
Lyallpur. Paragraph 9 of the will recites that the plaintiff Gulab Kaur
had given birth to a daughter Jaswant Kaur in 18981 that Jaswant I<'.aur
was marrPed happily in 1913 to Sardar Gurbax Singh Mansahia, that
after Jaswant Kaur's marriage Gulab Kaur started misbehaving and
left for her parents' house, taking jewellery worth about Rs. 50,000
with her.
It is further stated Jn paragraph 9 that Guiab Kaur was
"leading her life in a way which would not bear mention here" and
that therefore she did not deserve to get any allowance at all from the
testator's property.
The defendant was however directed to pay to
her ·a monthly sum of Rs. 50 for her maintenance provided that she
lived in a part of tl1e house at Sangrur and her conduct remained worthv
of the Sibia family. Paragraph 9 expressly mentions that Guiab Kaur
would have no right to any share ,ju the testator's property.
The testator, Sardar Gobinder Singh, was a man of property and
occupied a high position in society.
By a modest estimate, the property which he disposed of by his will was of the value of rupees ten
to fifteen lakhs. A registered power of attorney (Ex. D/2) which he
had executed seven months before the will on April 6, 1945 shows that
he owried extensive movable and immovable properties, had a bank
account in several banks and that various legal proceedings to which
he. was a party were pending in "all the States of British India".
Gobinder Singh describes himself
in the power of attorney as
a "big biswedar" and says that he had "a large business to attend to".
The evidence of Kartar Singh, Gurcharan Singh and Teja Singh (P.Ws.
4, 5 and 6) shows that Sardar Gobinder Singh owned over 15000
b1ghas of land, several houses and several cars including a Rolls Royce.
Sardar Ratan Singh, the father of Gobinder Singh, was the President
of the Council of Regency .in the erstwhile State of Jind, while Gobinder Singh himself l!eld "distinguished and responsible posts" in Jind
such as the Nazim, the Private Secretary to the Maharaja and a Minister in his government.
It is the will of a man of such affiuence and social status which
has to be judged in this case. It is not as if the burden of proof varies
with the riches and social prestige of the testator but habits of life arc
prone to vary with the means of the man and the privileged few who
happen to occupy a high place in the social hierarchy have easy access
to competent legal advice.
Normally therefore, a genuine will of a
propertied man. weH-oositionen in society too. does not suffer from
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932
SUPREME COURT REPORTS
[1977] 1 s.c.R.
the loopholes and infirmities which may understandably bl!set an
humbler testamentary insrument.
Circumstances are too numerous to mention which throw a cloud
of suspicion on the making of the will by Gobinder Singh. · The will
is alleged to have been made on November 26, 1945 but it did not
see the light of day till August 20, 1957. Being an ambulatory document, it may be granted that there may be no occasion for anyone to
know of its existence until the death of the testator on ~mber 15,
1954. But it is ununderstandable that a document by whieh property
worth lakhs of rupees was disposed of should have remained a closely
guarded secret from the whole world of intimate friends and relatives,
nay, from the sole legatee himself, for over 2t years after the testator's death.
The testator had left behind him a large pn~perty ·and
along with it a large amount of litigation w)lich makes it impossible to
believe that upon his death in December 1954, no one bothered to go
through his papers which would reflect the state and extent of his .. property. The explanation of the defendant that he hit upon the will by
chance while going through some papers of his grand-father is therefore patently tame and unacceptable.
There is an ominous significance in the date on which the defendant applied for production of the will in the present suit. By her suit
which was filed on May 22, 1956 th(! plaintiff Gulab Kaur had otiginally asked for maintenance and in the alternative for a one-half
share in the estate of her husband. Under the Punjab customary law
by which the partit<S were governed, the plaintiff, being a sonless widow,
was entitled to an equal share in the property of her husband along
with the male progeny born from a co-wife. But the customary law
gave to the sonless widow only a limited and not an absolute interest
in the estate of her husband.· The Hindu Succession Act, 30 of 1956,
came into force on June 17, 1956 which explains why the plaintiff at
the end of her evidence on August 17, 1957 expressly gave up her
claim for maintenance and restricted her demand in the suit to a
one-half share in her husband's
estate.
So long as the plaintiff
was entitled only to maintenance or to a limited interest in her hWI-'
band's property, the defendant was conten~ to meet that claim by
raising pleas like desertion and misconduct.
The passing of the
Hindu Succession Act changed the entire complexion of the suit,
raising at least a: reasonable apprehension that on account of ,the
provisions of that Act the plaintiff would become an absolute owner
of a part of her husband's estate.
By section•B oli the Act, the
widow becomes an heir to the husband's estate on intestate succession,
along with other heirs mentioned in Class I of the Schedule,
And
by section 14 (1) , any property possessed by a female Hindu whether
acquired before or after the Act becomes her absolute property subject to the provisions of sub-section (2) which would have no application in the instant case.
By reason of section 4, the provisions
of the Act have genera:lly an overriding effect on custom and usage.
On August 17, 1957 the plaintiff's evidence was over and the suit
was
adjourned to August 24 for
defendant's
evidence.
In the
meanwhile, on August 20, the defendant filed an application stating
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JASWANT KAUR v. AMRIT KAUR (Chandrachud, J.)
933
that he had accidentally discovered a will made by the plaintift's husband Gobinder Singh and asking for permission
to produce that
will. The defendant has not stated why he suddenly thought of
examining his grand-father's papers ~ between the conclusion
of
the plaintiff'll evidence on the 17th and the 20th of August.
His
case is one of a purely providential discovery and neither in th~ application for production of the will nor in his evidence did ho give tha
haziest details o~ the discovery.
We are surprised that the High
· Court should have · so readily accepted the story that the defendant
stumbled across the will.
fie will has been typed out on both sides of a single foolscap
paper and is obviously drafted by a. Jawyer.
No evidence at all has
boon led as to who drafted the will and who typed it out.
The will
uses sol!le trite legal jarnon but it does not show where it was executed and contains no description whatsoever of any of the extensive
properties bequeathed tO' the defendant. ,
The will has been attested by t;.Y'o persons called Dinshaw H.
M. Framjee and Pali Ram. It is intriguing that a person in the
position of. Sardar Gobinder Singh should choose these two strangers
as attesting witnesses to a very solemn and important document.
Dinshaw Framjee was a trader in Simla and Pali Ram was his servant.
Framjee has stated in his evidence that he did; not remember
where Gobinder Singh used to stay in Simla, that he did not know
for how long he was staying in Simla before the attestation of the
will, that he was unable . to state whether he had met Gobinder Singh
after the attestation of the will ~d tha~ he was unable to give the
approximate time of the day when the will was attested-forenoon,
afternoon or evening.
Fmmjee was sure about one thing only,
that he had not attested !:be will at night.
He attempted to say that
he was on friendly terms with the testator's family but he was unable
to give evcm the approxiniate ages of the testator's son and daughter.
Under the stress cf cross-examination, he had to admit eventuallv
" that he knew nothing about the testator's family or family affairs.
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Pali Ram, the other attesting witness, did: not remember the date
or the year of the execution of the will but said that it was probably
executed in 1945.
He didl nolj know the testator and was a total
stranger to him.
· Whereas Framjee stated that the will was attested
i11 bis business premises which were on· the ground floor, Pali Ram
says that Framjee. sent for him from the business premises to his
residence, which was on th~ upper floor.
The utter improbability of the testator accosting these two strangers for getting his will attested and the fundamental contradictions in
their evidence render it impossible to hold that they attested the will
at the instance of the testator as alleged.
A man of impartance
t~at the testator was, he could not ever have left the validity of his
will to depend on the unpredictable attitude of unknown elements like
Framjee and Pali Ram.
Pali Ram claims to have read the will
before attesting it. It is not known why, if he knew that the property
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934
SUPREME COURT REPORTS
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was bequeathed to the defendent, he did not, at least after the testator's death, inform the defendant of the existence of the will.
By the will the testator appointed Sardar Kesho Ram, a Juduc
of the High Court oti Patiala and one Sardar Bahadur Ranjit Sin~h
as executor:;.
Both of these persons were fortunately avaiiable t:Or
g1vmg evidence but neither of them was examined in the case. Normally, executors ard not appomted without their consent or at least
witllout a prior consultation with them.
Respondent I, the defendant's widow, is the daughter of the executor Ranjit Singh.
The
marriage was performed during the testator's life-time and we vnd ii
hard to believe that he would not disclose even to Ranjit Singh that
he 'had made a will appointing him as on<'i of the executors and that
Ranjit Singh's son-in-law, that is to say the testator's grandSlln, was
the sole legatee under that will.
The will is unnatural and unfair in more than one respect.
At
the time that the will is alleged to have been made, the testator had
a daughter Guraprakash Kaur who was born of Dalip Kaur and a
daughter-in-law Joginder Kaur, being the widow of the testator's predeceased son Gurbachan Singh whq was alstj born of Dalip Kaur.
Gurhachan Singh and Jogin<fer Kaur gave
birth to the defendant
Surjit Inder Singh and to a daughter Palvinder Kaur.
The
will
contains not even a fleeting reference either to the testator's daughter
or the widowed daughter-in-law or to the grand-daughter Palvinder
Kaur. It is urged that all of these persons were happily placed in life
and it was therefore needles·s for the testator to provide for them. If tllat
be so, it was usuaHy unnecessary to refer to the appellant Jaswant Kaur
who also, it is common ground, has been married happily.
The plaintiff Guiab Kaur has been wholly excluded as an heir or
the testator for the supposed reasoq that she had brought disgrace
to the Sibia family and that hen behaviour was such as wonld not even
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·bear mention in !lie will.
Not onl)I that no evidence was led to
show any misconduct on the part of Guiab Kaur but the evidence
of Jaswant Kaur (P.W.2) shows that fol! about 7 or 8 years prior
to 1956 Guiab Kaur had lost her eyesight.
One of the issues in the
suit namely, issue No. 2, arising from the original pleadings was
whether the plaintiff was di.5entitled to maintenance for the reason
that she had deserted her husband.
The judgmenJ; of the tria! court
shows that the defendant led no evidence fin support of · that issue
and that during the course of arguments, the defendant's counsel
did not press the particular issue.
The plaintiff on the other hand
1 ed evidence in rebuttal and accepting that evidence the trial court
rejected the contention that she had deserted her husband.
It seems
to us difficult to believe that a person in the position of S.
Gobinder Singh who was possessed of a large estate, would disinherit
so many of his near relatives including his wife ~ulab Kaur and
shower his bounty on the grandson, to
the excluston of everyone
else.
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JASWANT KAUR v. AMRIT KAUR (Chandrachud, J.)
935
Quite a few other circumstances can be mentioned which raise
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a grave suspicion. as regards ~e makin~ ?f the wi~ but th~ circumstances enumerated above are, Im our opm1on, sufficient to discard the
will.
The defendant in his evidence has offered no explanation of
any of these circumstances.
He has totally failed to discharge the
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heavy onus which lay on him of explaining the suspicious circumstance surrounding the execution of the will and of establishing that
the document which he propounded was the last will and testament · · B
of his grand-father Gobiner Singh .
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Learned counsel for
the respondents
contends that the defendant did not offer any explanation of these suspicious circumstances
becau~ the will was not challenged in the trial court on the ground
that its execution was shrouded in suspicion.
It is impossible to
accept this contention because even the learned District Judge who
had rejected the defendant's application for production of the will
and the consequent amendment of the written statement had observed
in hi~ order dated September 13, 1957 that' it was inconceivable
that the defendant did not know about the will and that the possibility
of its being forged cannot be excluded.
This itself was
sufficient
notice to the defendai1t as to the nature of the burden which he had
to discharge.
Counsel for the defendant also contended that the
testator must have kept the will a closely guarded secret because if
the will was published, Guiab Kaur and her daughter would ha''
created some. trouble.
This argument, in the context of the' various
facts adverted to above, has to be rejected.
The'. testator might
have wished to keep the will a secret from Guiab Kaur and her
daughter! but it is, impossible to appreciate that he would frustrate
the very object of making the will by suppressing it from the defendant and from the executors,
one of whom was highly placed and
the other of whom is the defendant's father-in-law.
Frankly, though with respect, it surprises us that the High Court
should have accepted the will as genuine.
It obs,erves: "It is evident from the above evidence that there are no suspicious circumstances about the execution or the contents of the will."
We could
have understood if the High Court were to say that the defendant had
given a valid explanation of the suspicious circumstances surrounding
the execution of the will. But to say that there is nothing in the case
to excite the cotirt's suspicion and to accept the will as genuine on
that premise is wholly ununderstandable.
The High Court
does
not refer to a singl6 circumstance out of the many that we hav1t discussed and the operative par~ of th_e judgment just recites a few facts
mechanically as if there could possibly be no answer to the validity
of the will.
The High Court has not referred in' its judgment even
in passing to the rule as to the burden of proof which applies to testamentary proceedings.
· If only it had taken the trouble of looking
at the decision of this Court in lyengar's case, which is
copiously
extracted in the judgment of the Trial Court, it would have realized
what its true duty was in the case.
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For these reasons we allow the appeal, set aside the judgment of
the High Court and restore that of the trial court.
The appellant
will .be entitled to recover from the respondents
th~ costs of this
Court and of the High Court.
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P.H.P.
Appeal allowed .
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