# SETH BENI CHAND (SINCE DEAD) NOW BY L.RS v. SMT. KAMLA KUNWAR AND OTHERS

- **Citation:** [1977] 1 S.C.R. 578
- **Court:** Supreme Court of India
- **Decided:** 1976-09-14
- **Case number:** Civil Appeal No. 2269 of 1972
- **Bench:** Y. V. Chandrachud, V. R. Krishna Iyer, N. L. Untwalia
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/seth-beni-chand-since-dead-now-by-l-rs-v-smt-kamla-kunwar-and-others-6956
- **Pages:** 8

## Headnote

Indian Succession A.ct, 1975, S. 63(c), Attesting witness defined.
Indian Eyidence ff ct, S. 68-Discharg\ '?f onus proba11di
by
propounder
when executum of well surrounded by susprcrous circumstances.
Thr_ee or four days before her death, Jaggo Bai executed a will, bequeathing
her Stndhana property to her son Beni Chand's second wife Kamla Kunwar and
her children, and also to the progeny born of his first wife.
Beni Chand his
third wife and her children were excluded from tho will. Beni Chand op~sed
t~e probate o~ the wil! contending that it was a forgery and challenged the execution of the will. A smgle Judge of the High Court held that the propounder of
the will had failed to explain the suspicious circumstances surrounding its execution, but in appeal, the Division Bench upheld the validity of the will.
Dismissing the appeal, tho Court
HELD : ( 1) The mere description of a signatory to a testamentary
do~u
ment as an attesting witness cannot take the place of evidence showing due
execution of the document. An attesting witness is one who signs the document
in the presence of the executant after seeing the execution of the. document or
after receiving a personal acknowledgment from tho executant as regards the
execution of the document.
f581H, 582A]
(2) The 011us proba11di lies in every case upon the party propounding a: will,
land he must satisfy the conscience of the Court that the instrument so propounded is the last will of a free and capable testator. Where the circumstance&
surrounding the execution of the will are shrouded in suspicion, it is the duty and
function of the propounder to remove that suspicion by leading satisfactory
evidence, and by offering an explanation of auspicious circumstancct which can
satisfy a prudent mind. [582C; E-F]

## Text

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578
SETH BENI CHAND (SINCE DEAD) NOW BY L.RS.
v.
SMT. KAMLA KUNWAR AND OTHERS
September 14, 1976
[Y. V. CHANDRACHUD, V. R. KRISHNA IYER AND N. L. UNTWALIA, JJ.]
Indian Succession A.ct, 1975, S. 63(c), Attesting witness defined.
Indian Eyidence ff ct, S. 68-Discharg\ '?f onus proba11di
by
propounder
when executum of well surrounded by susprcrous circumstances.
Thr_ee or four days before her death, Jaggo Bai executed a will, bequeathing
her Stndhana property to her son Beni Chand's second wife Kamla Kunwar and
her children, and also to the progeny born of his first wife.
Beni Chand his
third wife and her children were excluded from tho will. Beni Chand op~sed
t~e probate o~ the wil! contending that it was a forgery and challenged the execution of the will. A smgle Judge of the High Court held that the propounder of
the will had failed to explain the suspicious circumstances surrounding its execution, but in appeal, the Division Bench upheld the validity of the will.
Dismissing the appeal, tho Court
HELD : ( 1) The mere description of a signatory to a testamentary
do~u
ment as an attesting witness cannot take the place of evidence showing due
execution of the document. An attesting witness is one who signs the document
in the presence of the executant after seeing the execution of the. document or
after receiving a personal acknowledgment from tho executant as regards the
execution of the document.
f581H, 582A]
(2) The 011us proba11di lies in every case upon the party propounding a: will,
land he must satisfy the conscience of the Court that the instrument so propounded is the last will of a free and capable testator. Where the circumstance&
surrounding the execution of the will are shrouded in suspicion, it is the duty and
function of the propounder to remove that suspicion by leading satisfactory
evidence, and by offering an explanation of auspicious circumstancct which can
satisfy a prudent mind. [582C; E-F]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2269 of 1972.
(From the Judjp11ent and Order dated 9-5-1972 of the Allahabad
High Court in Special Appeal No. 125170).
J. P. Goyal, G. S. Chatterjee and Shree Pal Singh, for the Appellants (Other than 2nd appellant).
s. M. Jain and s. K. Jain, for the Appellant No. 2.
V. M. Tarkunde, Yatindra Singh, Deepal Gupta, Najahad Hussain,
S. S. Khanduja, Uma Dutta and Miss Manik Tarkunde, for Respondents Nos. 1, -4, 5, 7 and 8.
S. K. Mehta, for Respondents Nos. 11--12.
"
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The Judgment of th~ Court was delivered by
CHANDRACHUD, J.-Thiwill·~ appeal bdy bcertifica~ehraises a q
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udestion as
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regards the validity of a
execute
y an e1g ty year o
woman
SETH BEN! CHAND v. SMT. KAMLA KUNWAR (Chandrachud, J.) 579
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five days before her death. The testatrix Jaggo Bai had
. a muchA
married son called Beni Chand, the last of whose three marnages has
given birth to this long litigation.
Beni Chand's first wife, Chall!-eli
Bai, died leaving behind Respondents 3, 5, 6, 7 and 8 as her ~em.
His second wife Kamla Kunwar is Respondent 1. Respondent 4 is her
daughter and respondents 9 and. 10 are .her grand-daughter~. Beni
Chand had no male issue from his two wives and therefore, m 1928,
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he gambled for a son by marrying V ed Kumari. That marriage created
dissensions in the family, partly because Ved Kumari belonged to a
different caste but more substantially because the entry of yet anGther
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woman in the household was like a last straw. On October 26, 1961
,..,
Jaggo Bai made a will disinheriting her son Beni Chand and the children born of Ved Kumari, and bequeathing her extensive propertiell to
the progeny born of Chameli Bai and to Karola Kunwar and her proc
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geny. Jaggo Bai died on October 31, 1961.
"'!
Kamla Kunwar who was appointed under Jaggo Bai's will as an
executrix filed a petition in the Allahabad High Court for probate of
the will.
Beni Chand filed a caveat contending that the will was a
forgery and was prepared in collusion with one Dwijendra Nigam, an
advocate, while Jaggo Bai was lying in an unconscious state. A learned
I}
single Judge of the High Court dismissed the petition on the ground
that the propounder of the will had failed to explain the suspicious
..
circumstances surrounding the execution of the will.
That judgment
was reversed in appeal by a Division Bench of the High Court, which
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upheld the validity of the will. This appeal by certificato ii directed
against the appellate judgment of the High Court.
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- There is no gainsaying the fact that the execution of the will is
i;hrouded in circumstances which require a cogent explanation, particularly as the testatrix was advanced in age and the provisions of the
..,.,
will are prima facie unnatural. But, we do not see enough reason for
,
rejecting the conclusion of the High Court that the executrix who propounded the will bas offered a satisfactory explanation of those circums-
~--
tances. The relations between Jaggo Bai and her son Beni Chand were
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strained beyond words. A long span of over 30 years following upon
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Beni Chand's marriage with Ved Kumari is littered with~ spate of litigations between the mother and son. Beni Chand gave to his mother a
good look of law and law courts, civil and criminal. Exasperated by his
unfilial contumacy, Jaggo Bai executed a gift deed of her Stridhan
propertie~ excluding him scrupulously from her bounty.
Later, she
executed a document of a testamentary nature disinheriting hini. These
Ginstruments were on persuasion cancelled but Beni Chand did not mend
his ways. On October 26, 1961 when the inipugned will was executed
by Jaggo Bai, a litigation was still pending between the mother and
son, and just 3 or 4 days before t'lle execution of the will, the eightyyear old Jaggo Bai had to appear in the Court. In this background,
the fact that Jaggo Bai did not give any part of her properties to Beni
Chand cannot be described as unnatural. Add to that the stark fact
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that the testatrix while disinheriting Beni Chand, bequeated the entire
~tproperty to his wife, Kamla Kunwar, the children born of her and to
the progeny born of Beni Chand's first wife Chameli Bai. .faggo Bai.
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[1977] 1 S.C.R.
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never reconciled herself to Beni Chand's third marria~e with Vcd
Kumari and she excluded that branch from the bequest. -
It is alleged that Dwijendra Nigam, an advocate, conspired with
Jaggo Bai's pre-deceased daughters's son Ratan Lal to forge the will.
But from the long and varied cross-examination of Nigam it is difficult
to discover any reason why he should do so. He received no benefit
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under the will and had no interest either in seeing that the progeny
born of Beni Chand's first two wives should get the property or in
ensuring that Berri Chand, V cd Kumari and their children should be
left out. It is significant that Beni Chand who alleged by his caveat
that Nigam was the villain of the piece, did not file any affidavit in
support of his caveat and what is more important, he did not enter
the witness-box to substantiate his accusation. The charge that Nigam
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and Ratan Lal forged the will is thus left to chance and guess-work.
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As for Ratan Lal, who is respondent 2 to this appeal, he admitted the
execution of the will though it was against his interest to do so. If the
will is set aside, Beni Chand and Ratan Lal will each be entitled on
intestacy to a moiety in Jaggo Bai's estate, which was her Stridhana
property. Ratan Lal gets nothing under the will of his grn.nd-mother
Jaggo Bai.
These features of the case dispel the suspicion arising out of the
circumstances that the testatrix was at the threshold of death when she
made the will, that she was far too advanced in age to bring to bear an
independent judgment on the disposal of her property and that she disinherited her only son under her will.
It ha's to be mentioned that
though over eighty years of age, Jaggo Bai was noZ an invalid, that just
a few days before her death she had appeared in the court in a case
relating to Zamindari Bonds between her and Beni Chand, that a criminal case launched by Beni Chand against her was defended by her
Zealously leading to an order of composition two or three months
before her death and that in spite of the unkind cuts that Beni Chand
had inflicted on her she wanted to try and help him at one stage. In
an old letter (Ex. 161-Ga) which she wrote to him, she said plaintively:
"Now I have a short span of life. I shall not be coming to see what
happens hereafter. Please do not injure my heart. Come back at
once .... ". These entreaties fell on deaf ears. Beni Chand dragged
his mother from pillar to post over a course of twenty years and he
never came back. He lived separately from her and did not bother
to attend to her even when she was dying. He awoke to his son-ship
only when it came to claiming the mother's estate.
Two circumstances would appear to have influenced the judgment
of the learned Single Judge in \lolding that the will was not proved
to be last will and testament of Jaggo Bai. The first circumstance is
that the thumb-mark which Jaggo Bai is alleged to have made on the
will does not bear the usual endorsement that it is of the left or the
right thumb and secondly that neither of the two attesting witnesses
was examined to prove the formal execution of the will.
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The Division Bench of the High Court, sitting in appeal against ~he
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judgment of the learned Single Judge. has accepted the explanation
SETH BEN! CHAND v. SMT. KAMLA KUNWAR lClumdrachad, J.) 581
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offered by Shri Nigam that the endorsement r.emained. to be made
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through inadvertence.
Nigam had no personal mterest m the matter
and the explanation being unmotivated, could reasonably be accepted.
The learned Judge; also accepted the evide.nce of the Adv_ocate t~at
he himself held the right hand of Jaggo Bai and took the !IDpress~on
of that thumb on the will. That meets the argument that an impress10n
admitted to be of Jaggo Bai's left thumb does not tally with the one
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on the will. The two will not tally since the two thumbs would have
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different characteristics. The will was executed in triplicate, one copy
of which was deposited with the ~istrict Registrar on _Oct.ober 28,
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1961, that is, two days after the will was execute~. It is d1ffi~1;1lt to
..
believe that a practising advocate would run the nsk of depos1t111cg ~
forged will with a public official while the testatrix was still alive.
~em
Chand lived in the same town as his mother, though separately from "~r.
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and it is impossible in the very nature. of thin~s that as alleg~ b:y him,
Nigam and Ratan Lal took the thumb 1mpress1on of Jaggo Bai while she
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was lying unconscious. Jaggo Bai might lose her consciousness but she
was possessed of a large estate and in the normal course of human
affairs, she would, while unconscious, be
surrounded by a
large
number of close relatives of which there were many in the town of
Banda in which she lived.
To think that Nigam could steal a thumbD
impression of the dying woman puts a strain on one's credulity, parti-
.
cularly when he stood to gain nothing and Ratan Lal, the alleged co-
•
conspirator, would be better off without the will. It is a strange plea
that Ratan Lal who, on intestacy, stood to gain a one-half share in hi1
1grand-mother's estate chose to exclude himself by fabricating the will.
There is some evidence that a portion of Jaggo Bai's right thumb was
mutilated but on examination of the relevant circumstances in that
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behalf, the Division Bench of the High Court has rejected the suggestion that the right thumb of the testatrix was so badly damaged as
to be incapable of producing an impression. With these plain findings
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of fact, we see no reason for interfering by going into minute details
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of the evidence.
_..
There is no substance i_n the grievance that the proof of the will
in this case is incomplete for want of an attesting witness's evidence.
F
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Section 68 of the Evidence Act deals with proof of the execution of
documents required by law to be attested. It provides that such documents shall not be used as evidence until at least one attesting witness
h~s been calle~ to prove the execution, if there be an attesting witness
alive and subject to the process of the Court and capable of giving
evidence. Since by section 63 of the Succession Act, 1975 a will has
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to be attested by two or more witnesses, section 68 of the Evidence
Act would come into play and therefore it was incumbent on the propol!nder of the ~ill to examine an attesting witness to prove due exec~tJon ?f t~e will.
But this argument
overlooks that Dwijendra
Nigam 1s himself one of the three persons who made their signatures
below the thumb impression of Jaggo Bai. None of the three is described in the will as an attesting witness but such labelling is by no
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statute necessary and the mere description of a signatory to a testa-
).__
m~ntary doclli!'ent as an attesting witness cannot take the place of
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evidence showmg due execution of the document.
By aitestation i~
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meant the signing of a document to signify that the attestor is a witness
to the execu~on of the document; and by section 63 ( c) of the SucCCiSion Act, an atteiting witness is one who signs the document in
the preience of the cxecutant after seeing the execution of the document or after receiving a personal acknowledgment from the cxecutant
ail regards the execution of the document.
Nigam's evidence shows
that he and the other two witnesses saw the
testatrix
putting her
thumb-mark on the will by way of execution and that they all signed
the will in token of attestation in the presence of the testatrix, after
~he had affixed her thumb-mark on the will.
The question which now arises for consideration, on which the
Letters Patent Court differed from the learned Sin_gle
Judge of the
High Court, is whether the execution of the will by Jaggo Bai is proved
iiatiiifactorily. It is well-settled that the onus probandi lies in every
case upon the party propounding a will, and he must satisfy the coniicience of the Court that the instrument so propounded is the last will
ot 11 free and capable testator.(')
By "free and capable testator'! is
generally meant that the testator at the time when he made the will
had 11 sound and disposing state of mind and memory.
Ordinarily,
the burden of proving the due execution of the will is discharged if
the propounder leads evidence to show that the will bears the signature or mark of the testator and that the will is duly attested. For
proving 11ttestation, the best evidence would naturally be of an attesting witness and indeed the will cannot be used as evidence unless at
lCllSt one attesting witness, depending on availability, has been called
for proving its execution as required by section 68 of the Evidence
Act. But where, as in the instant case, the circumstances surrounding
the execution of the will are shrouded in suspicion, it is the duty and
the function of the propounder to remove that suspicion by leading
~atisfactory evidence.
The testatrix was advanced in age being past
eighty year~ of ago, tho will contains provisions which are prima f acie
unnatural since the only son is disinherited under it and the testatrix
d.ied five days after making the will.
There can be no dispute that
these are gravely suspicious circumstances. But the propounder has,
in our opinion, offered an explanation of these circumstances which
ought to satisfy a prudent mind. Ultimately, that is the test to adopt
for one cannot insist on mathematical proof even where the circumstances attendant on the execution of the will raise a
suspicion as
regards its due execution.
The burden in testamentary cases is of a
different order than in other cases in the sense that an attesting witness
must be called, wherever possible, to prove execution, the propounder
must remove the suspicion, if any, attaching to the execution of the
will and if there be any doubt regarding the due execution, he must
~atisfy the conscience of the court that the testator had a sound and
disposing state of mind and memory when he made the will. "Reasonable scepticism, not an obdurate persistence in disbelief nor a resolute
and impenetrable incredulity" is demanded of the testamentary judge :
"He is never required to close his mind to the truth". (2)
Gajendragadkar J. who spoke for the Court in lyengar's case( 8 ) noticed these
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(1) See Jarman on Wills (6th Ed., p. 50) and H. Ve.nkatacfwla Iyengar v. B. N.
1hljmajamma & Ors. [1959] Suon. I S.C.R. 426.
(2) See Barmes v. Hlnkscn (1946) 50 O.W.N. 895 per Lord Du Parcq.
-<(
(3) [ l959] Supp. 2 S.C.R. 426, 446.
; .
SJ:TH BEN! CHA.ND v. SMT. KAMLA KUNWAR (Chandrachud, !.) 583
.,,.
observations of Lord Du Parcq with approval and said : It . wm~ld
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sound platitudinous to say so, but i~ is. ~ever~eless true that m dt~
covering truth even in such cases the 1ud1c1al mmd must always be open
though vigilant, cautious and circumspect."
Bearing· these principles in mind and .giving equal w.eightage to
openness and vigilance, the posi~on eme~gmg fr~m the evidence may
be briefly summed up thus : Bern Chand s b~hav1our was .far too u~-
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filial and remorseless for him to find a place m tho affccuons of his
mother Juggo Bai. He had bruised her so badly that she could not
possibly reward him with a precious inheritance. But she gave her
estate not to strangers but to his children born of the first two wives·
and to the second wife Kainla Kunwar. She also gave him a personal
right of residence in one of the houses. Shri Nigarn, the advocate, had
no personal motive or bias to hatch a conspiracy to forge the will. He
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received no benefit under the will, directly or indirectly. And Rat.an
Lal was the least suitable co-conspirator because, he
stood to lose
under the will what he would have got without it.
He would have
been an equal sharer with Beni Chand in Jaggo Bai's estate under
section 15( 1) (a)) of the Hindu Succession Act, 1956. The entire
property comprised in the will was Jaggo Bai's Stridhana. The will
was read out to Jaggo Bai and in spite of her advanced years she was
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in a sound state of mind and body. The chosen few do possess that
privilege. Thus the executrix has successfully discharged what, in the
circumstances, was a heavy onus of proving the due execution of the
will and of offering a satisfactory explanation of the suspicious circumstances surrounding the will. We are in agreement with the Division
Bench of the High Court, which was conscious of tlte special rules
governing proof of testamentary instruments, that tlte will propounc1ed
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by the executrix is the last will and testament of Jaggo Bai, made whil•
she was in a sound and disposing state of mind and memory.
Beni Chand who opposed the grant of probate to his wife Karola
Kunwar died during the pendency of the appeal in this Ccurt. He is
now represented by his legal representatives almost all of whom supported ~he grant of probate. The one person from amongst the heir8
of Bem Chand who stoutly pressed this appeal is Vikram Chander,
one of the sons of Beni Chand, born of his third wife Ved Kumari.
While Karola Kunwar's appeal was pending before the Division
~ench of .the Hig~ Court, Beni Chand alienated some of the propertie~
mcluded In tlte Wiil to a person called Sadhu Prasad. The alienation
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was purportedly made on the basis that the learned Single Judge ot
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the High Court had set aside the will and had refused to grant th•
probate to the executrix. The alienee Sadhu Prasad is also an appellant before us, having joined Beni Chand in filing the appeal. We have
had the benefit of the arguments advanced by Mr. Jain on behalf of
the a!ienee but nothing that he has urged is enough to upset the view
taken by the Djvision Bench of the High Court.
The only argument advanced by Mr. Jain to which reference need
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be made is that even alienees are entitled to citations in probate proceedings and in tlte absence of such citations the grant of probate is
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vitiated. In supJJOrt of this submission reliance is placed on a judgment
of the Madhya Pradesh High Court in Banwarilal Shriniwas v. Kumari
Kusum Bai and Ors.(') It was held in that case that any interest,
however slight, and even the bare possibility of an interest is sufficient
to entitle a party to oppose the grant of probate. A purchaser, therefore, who .acquires an interest in the estate of the testator by reason of
a transfer by his heirs must be cited in testamentary proceedings. We
will assume without affirming that this is the true position in law but
the important distinction is that the alienee in the instant case is a
transferee pendeme lite who purchased some of the properties included
in Jaggo Bai's will while the Letters Patent Appeal was pending in the
Allahabad High Court. In the very nature of things no citation could
be issued to him prior to the commencement of the probate proceedings. In fact, we felt that the alienee had no right to be heard in this
appeal. Nevertheless, we heard his cminsel on the point whether the
executrix has established the will.
One reason why we . heard the
alienee is that he should not be able to rai~e any qbjection later that
the decision in _these proceedings is for some reason or the other not
binding upon him ..
The property included in the will is for the time being in the possession of a Receiver appointed by the Court. Since we have upheld the
will, the Receiver shall have to hand over the property to the executrix, Kamla Kunwar, who is respondent 1 to this appeal. We however
direct that the Receiver shall continue in possession ()f the property for
a period of 4 months from today and hand it over to respondent 1 on
the expiry of that period. The alienee Sadhu Prasad may, if so advised,
file a suit within that period for such relief as he is advised to seek and
obtain interim orders, if he may, within that period as regards the
possession of the property alienated to him.
Subject to such orders,
if any, the Receiver shall hand over the property to respondent 1,
Kamla Kunwar.
Mr. Tarkunde who appears on behalf of respondents 1, 4, 5, 7 and
8 made a statement before us on the conclusion of the arguments in
the appeal that even if we uphold the validity of the will, his clients
would be willing to make an ex-gratia payment to 4 out of the 5
chilrlren born to Beni Chand from
Ved Kumari.
Two daughters,
Subhashni Seth and Chander Rekha and three sons, Pratap Chander,
Vikram Chander and Khem Chander were born to Beni Chand from
Ved Kumari.
Mr. Tarkunde has given an undertaking to thiq Court
on behalf of his clients that they shall pay a sum of Rs. 20,000/- to
each of the two daughters, Subhashni Seth and Chander Rekha and
a similar amount to each of the two sons, Pratap Chander and Khem
Chander. Under this arrangement, no amount whatsoever shall be payable to Vikram Chander and not certainly to the alienee Sadhu Prasad.
According to the undertaking, the
aforesaid amount totalling
Rs.
80,000/- shall be paid to the four persons mentioned above within one
year of the date on which respondent 1 obtains actual possession of
the properties included in the will, which were alienated ,by Beni
Chand.
Mr. Tarkunde also agrees and undertakes on behalf of his
l) A.LR. l973 M.P. 69.
>
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SETH BENI :::HAND v. SMT. KAMLA KUNWAR (Chandrachud, J.) 585
clients that in the event that the aforesaid amount or any part of it is
A
not paid as stipulated, the persons to whom the amount is payable, or
any one or more of them, shall be entitled to recover it in execution
of this judgment as if there were a decree in favour of each of them
in the sum of Rs. 20,000/-.
In the result, we dismiss the appeal and direct that the costs of the
appeal shall be paid equally by Vikram Chander, the son of Beni
Chand and by the alienee Sadhu Prasad.
M.R.
Appeal dismissed .
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