Holding

Probate cannot be granted as the Will was executed under suspicious circumstances and the appellant failed to remove the suspicion, so the appeal is dismissed.

Summary

The deceased Umeshchandra Madhav Joshi executed a Will in a hospital ICU bequeathing his entire residuary estate to his son Dr. Niranjan Umeshchandra Joshi, who also acted as executor. The Will was attested by an advocate and a doctor, both known to the appellant, and was drafted under circumstances that raised doubts about the testator's mental capacity and the propriety of the execution. The appellant sought probate, but the Bombay High Court (single judge and division bench) rejected the application, finding the circumstances suspicious, the disposition unnatural, and the appellant’s participation indicative of undue influence. On appeal, the Supreme Court examined the burden of proof under Sections 63 and 68 of the Indian Evidence Act and held that the appellant failed to dispel the suspicion, and therefore the probate could not be granted. The Court affirmed the High Court’s findings and dismissed the appeal with costs.

Issues considered

The validity of the Will when its execution is surrounded by suspicious circumstances.
Whether the propounder (appellant) satisfied the burden of proof under Sections 63 and 68 of the Indian Evidence Act to establish a valid execution.
Whether the appellant’s participation and sole benefit constitute undue influence or fraud rendering the Will invalid.
Whether the attesting witnesses being interested persons affect the genuineness of the Will.
Whether the appellate court may interfere with the factual findings of the High Court.

Legislation cited

Indian Evidence Act, 1872s. 63, s. 68
Indian Succession Act, 1925

Subjects

probatewill executionsuspicious circumstancesundue influenceburden of proofIndian Evidence Actsuccession lawtestamentary disposition

Judgment

A NIRANJAN UMESHCHANDRA JOSHI
v.
MRIDULA JYOTI RAO AND ORS.

DECEMBER 15, 2006

B [S.B. SINHA AND MARKANDEY KA TJU, JJ.]

Succession Act, 1925-Will-Execution of-Allegations of suspicious
circumstances-Sustainability of-Held: Probate cannot be granted since
execution of Will was surrounded by suspicious circumstances-Circumstances
C in which Will was prepared, attested and executed raised doubt about its
genuineness, though Will bears the signatures of the testator-Disposition
made in Will by testator unnatural and unfair-Propounder took part in
execution of Will being sole recipient of legacy-Also non-examination of
independent witnesses-Thus, order of courts below calls for no interference.
D Deceased was survived by his wife, seven sons and three daughters. He
appointed appellant-one of his sons as the executor and trustee of his Will
and bequeathed his residuary estate absolutely to him. Appellant filed
application for probate. Both the Single Judge and the Division Bench of High
Court held that though the Will bear the signatures of the deceased and might
E have been attested by the advocate and the doctor, but circumstances
surrounding the execution of the Will were suspicious and the appellant could
not remove the same, thus rejected the prayer for grant of probate. Hence the
present appeals.

Dismissing the appeal, the Court
F
HELD: I No case has been made out to interfere with the findings of
both the Single Judge as also the Division Bench of the High Court.
11233-A-BJ

2.1. Section 63 of Evidence Act lays down the mode and manner in which
G the execution of an unprivileged Will is to be proved. Section 68 postulates
the mode and manner in which proof of execution of document is required by
law to be attested. It in unequivocal terms states that execution of Will must
be proved at least by one attesting witness, if an attesting witness is alive
subject to the process of the court and capable of giving evidence. While
making attestation, there must be an animus attestandi, on the part of the
H 1214
NIRANJAN UMESHCHANDRAJOSHI v. MRIDULAJYOTJ RAO 1215
attesting witness, meaning thereby, he must intend to attest, and extrinsic A
evidence on this point is receivable. A Will is to prove what is loosely called
as primary evidence, except where proof is permitted by leading secondary
evidence. Unlike other documents, proof of execution of any other document
under the Act would not be sufficient. (1231-C-Fl

2.2. The burden of proof that the Will has been validly executed and is B
a genuine document is on the propounder. The propounder is also required to
prove that the testator has signed the Will and that he had put his signature
out of his own free will having a sound disposition of mind and understood the
nature and effect thereof. If sufficient evidence in this behalf is brought on
record, the onus of the propounder may be held to have been discharged. But,
the onus would be on the applicant to remove the suspicion by leading sufficient C
and cogent evidence if there exists any. In the case of proof of Will, a signature
of a testator alone would not prove the execution thereof, if his mind may appear
to be very feeble and debilitated. However, if a defence of fraud, coercion or
undue influence is raised, the burden would be on the caveator.
11231-F-H; 1232-A) D
Madhukar D. Shende v. Tarabai Shedage, [2002) 2 SCC 85 and Sridevi
and Ors. v. Jayaraja Shetty and Ors., [2005) 8 SCC 784, relied on.

2.3. Several circumstances described as suspicious circumstances are
when a doubt is created in regard to the condition of mind of the testator despite
his signature on the Will; when the disposition appears to be unnatural or E
wholly unfair in the light of the relevant circumstances; and where propounder
himself takes prominent part in the execution of Will which confers on him
substantial benefit. (1232-B-D)

H Venkatachala Iyengar v. B.N. Thimmajamma and Ors., AIR (1959)
SC 443 and Management Committee T.K. Ghosh's Academy v. T.C. Polit and F
Ors., AIR (1974) SC 1495, relied on.

2.4. The Court must satisfy its conscience as regards due execution of
the Will by the testator and the court would not refuse to probe deeper into
the matter only because the signature of the propounder on the Will is
otherwise proved. The proof a Will is required not as a ground of reading the G
document but to afford the judge reasonable assurance of it as being what it
purports to be. There exists a distinction where suspicions are well founded
and the cases where there are only suspicions. Existence of suspicious
circumstances alone may not be sufficient. The court may not start with a
suspicion and it should not close its mind to find the truth. A resolute and H,
......
1216 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

A impenetrable incredulity is demanded from the judge even there exist
circumstances of grave suspicion. [1232-E-H I

B. Venkatamuni v. C.J. Ayodhya Ram Singh and Ors., (2006) 11 SCALE
148, relied on.

B 3.1. From the evidence, it appears that the deceased knew that he had
been suffering from cancer for 10-15 years prior to his death as he claimed
that he was cured of his disease because of his practices in yoga. He was
suffering from other ailments which were serious ones as was expressed by
Dr Gin his deposition. Dr G happened to be a long standing friend of the
appellant who himself was a gynecologist doctor. He admitted to have met the
C deceased only once or twice but never treated him; even never examined him.
Dr P student of the appellant, a young doctor had been regularly checking up
the deceased medically. Deceased although was not taking any allopathic
medicine, he could be persuaded to be hospitalised. Dr. P assured him that he
would be hospitaliw:l only for one night He was admitted in ICU. The treatment
D started immediately. (1226-A-DI

3.2. If the deceased was aware of the fact that he would remain in the
hospital for one day only, it does not appeal to any reason as to why he would
think of execution of a Power of Attorney as also of execution of a Will in
favour of appellant at the same time. The very fact that he wanted to execute
E a Power of Attorney clearly shows that he did not believe that he would meet
his end soon. It was expected that he would think of execution of any document
only after he came back home. He asked the appellant only to contact a lawyers
firm. He did not say about a particular advocate was said to have been deputed
by the firm. No evidence to that effect was led. Admittedly, advocate was known (~
to the appellant Advocate came with appellant He was accompanied by a Clerk.
F They were allowed to enter ICU without any prior appointment There is nothing
to show that permission of the hospital authorities had been taken in regard
to th~ visit of persons who were not his relatives. In the small cubicle of ICU
which was separated by curtains only and there were other serious patients,
Power of Attorney and the Will were said to have been drafted and the same
G was executed by the deceased. The execution of the Will was allegedly deferred
by a day as deceased wanted to consult his wife. According to her, she raised
no objection to the execution of the Will in fayoµr of appellant It is not known
whether the youngest son and other children were taken into confidence or
not. Thus, the story of the Will being drafted in the cubicle of ICU of the
Hospital cannot be believed. In all probabilities, Will was drafted by Advocate
H
NIRANJAN UMESHCHANDRAJOSHI v. MRlDULAJYOTI RAO 1217

in his Chamber. The deceased could only sign in English, question of his A
dictating the Will and at least the term thereof was wholly unlikely. Will has
been drafted by a professional. [1226-D-H; 1227-A-C; 1229-C-DJ

3.3. Deceased was admitted in the hospital on an emergency basis. He
chose to execute the Will, though he did not have any document with him for
the purpose of instructing the Advocate effectively and in details. No document B
had been handed over to the advocate by the appellant and the deceased. It is
unnatural that he would remember all the details of his assets including the
amount of cash and the amount lying in bank as also the details of his
liabilities etc. (1229-A-B)

3.4. Dr P deposed that the deceased had not known him very intimately.
c
Thus, why he had been called as an attesting witness is a mystery. He, however,
walked almost immediately after the Will was drafted. He attested the
signatures of testator. (1227-B-C)

3.5. Why other terms of the Will had to be inserted is not known. There D
were two schedules in the Will. Schedule II details his liabilities to each of
such persons named therein, Both the schedules of the Will were
meticulously drafted. Therefore, an inference can be safely drawn that
appellant had a role to play in execution of the Will. (1228-A; 1229-A-C)

3.6. Although the amount of cash in hand had already been disclosed in E
the first schedule of the Will but when he came back, he asked his wife to
count the cash once over again. What was the amount, if any, found in the
cash-box is not known. The contesting respondents did not examine themselves,
but apart from his mother and friends, nobody was examined on behalf of
Appellant also. If the other sons had implicit faith in their father and accepted
that the Will was genuine, they could also have been examined. They F
indisputably signed consent letters. It is not known under what circumstances,
consent letters were obtained. Only son P had given consent in the Solicitor's
office; others gave their consent at a later stage. (1229-E-G]

3. 7. What was the frame of mind of the deceased could have been best G
stated by the Doctor who was attending on him. Appellant curiously even was
not aware of the ailments, the deceased was suffering from. It is expected that
he would have known at least the ailments of his father. His other three sons,
particularly S had been helping the deceased in carrying on the buBinegg,
There is no averment in the Will how the business and the Trust would be
run. Some directions in regard to running of the Trust were also expected to H
r
1218 SUPREME COURT REPORTS [2006] SUPP .. 10 S.C.R.

A be given in the Will. The theory set up by the propounder that he believed
that the appellant would carry out his charitable activities is not reflected r-
from the Will. No reason has been assigned as to why he had chosen appell~nt
alone for taking the entire benefit of the legacy. (1229-G-H; D-E; 1230-A-B]

3.8. The manner in which the death certificate of the deceased had been
B issued also raises some suspicions. (1230-B-C] \

3.9. The Single Judge of High Court noticed that there are documents
to show that the deceased was being treated by several other doctors. All the ,,_
persnns including his wife curiously did not know the nature of ailments the
deceased was suffering from and the period of his illness. In her deposition,
c she was confronted with her affidavit in earlier litigations but she profusely
denied the averments and contents thereof. She had also denied the signatures
of persons on the documents pertaining to earlier litigation other than herself ~

and her husband on Yarious documents with which she was confronted with.
[1230-H; 1231-A-B]
r,.
D ~
3.10. The conduct of Appellant in executing the deed of assignment in
favour of brother S even before filing the application for grant of probate cannot
also be appreciated. Before the grant of probate, he had no legal authority in
that behalf. f1231-B-C]

E CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5060 of2005.

From the final Judgment and Order dated 4.2.2004 of the High Court of
Judicature at Bombay in Appeal No. 606 of 1996 in Testamentary Suit No. 31/
1987 in T.l.J.P. No. 176/1986. "-..
F Shanti Bhushan, Chirag Balsara, S. Sukumaran, Dev Kumar and K. ,-
Rajeev for the Appellant.
l
,-

Anil Srivastav for the Respondent No. I. t:
Sunil Kumar Gupta, Malika Chaudhuri, Kuna! Tandon and Vikas Mehta
for the Respondent No. 2.
G
C.N. Sree Kumar for the Respondent No. 3 and impleading parties.

The Judgment of the Court was delivered by

S.B. SINHA, J. Appellant is the son of Late Umeshchandra Madhav
H Joshi (hereinafter referred to as "the deceased"). He owned considerable
~
NIRANJAN UMESHCHANDRAJOSHI v. MRI DULA JYOTI RAO [S.B. SINHA,J.] 1219
properties. A Charitable Trust by the name of"Umesh Yoga Charitable Trust" A
was created by the deceased in his native village at Manor. For the said
purpose, he donated 7 acres of land of his own. 4 acres of land was said
to have been donated by the appellant herein. Deceased purchased a
residential house at Dadar named "Umesh Dham" in 1949. The first floor of
the said house was used for residence, which he also used for holding Yoga
classes and also for manufacture of Hair Oil. Deceased started yoga classes. B
He also started manufacture of hair oil, namely, (Ramtirth Brahmi Hair Oil).
Sometime thereafter, he along with his children shifted his residence to the
ground floor of the said house. He had 7 sons and 3 daughters. Appellant
herein is his second son. Respondent No. 2 allegedly eloped and married
a Muslim boy. Respondent No. I, however, had an arranged marriage. The C
relationship amongst the brothers and sisters, except respondent No. 2 was
said to be cordial. Sudarshan, Jagdish and Pravin were allegedly helping the
testator in management of the business of manufacture of hair oil. All his
sons, namely, Sudarshan, Dr. Vishnu, Jagdish, Arvind, Sunil and Tarabai
(respondent No. 2) lived together at the same house known as 'Umesh Dham'.
Appellant herein and another brother Sunil were not married. Appellant is a D
·tt doctor of repute. He is a Gynaeocologist and Obstreticist and his qualifications
are M.D. (Obst. and Gyt.), FISC, FCPC, D.G.0.D.F.P. He started his practice
in 197 l. He opened a clinic and hospital at Parel.

From the records, it appears that the deceased was suffering from
malignancy Liposercoma (sic). There are some evidences on record to show _,E
that he was also suffering from left ventricular failure with lschemia heart
disease. The deceased is said to have ilo faith in the allopathy system of
medicine. He had developed some respiratory problem. He was investigated
I by Dr. Panikar, a student of Appellant. He was taken-to ICU of Breach Candy
Hospital on 13.11.1983 by Appellant and his wife. F
On 14.11.1983, the deceased expressed his desire to execute a Power of
Attorney as also a Will. On his purported instructions, Appellant contacted
Mr. M.K. Mahimkar, Advocate, who was working with M/s Ramesh Shroff &
Co. Mr. Mahimkar and Appellant visited the testator at Breach Candy Hospital.
Deceased instructed Mr. Mahimkar to draft a Power of Attorney before drafting G
the Will as he expressed a desire to speak to his wife before executing the
Will. He allegedly spoke to his wife. The Will was drafted the next day.
While the Will was being drafted he asked Appellant and Pravin, his another
1
son to wait outside the room. Appellant and Mr. Mahimkar visited the

H
1220 SUPREME COURT REPORTS [2006] SUPP. IO S.C.R.

A hospital during non-visiting hours for execution of the Will. It was drawn up
in Mr. Mahimkar' s handwriting allegedly at the spot. They and one Mr.
Phadke, classmate of Mr. Mahimkar entered the cubicle of ICU of the Hospital
at 3.30 p.m. for execution of the Will. The deceased sent for Dr. Bhupender
Gandhi, a friend of Appellant for attesting the Will. He reached the cubicle
at about 4.30 p.m. The Will thereafter was executed.
B
Indisputably, the deceased was under the treatment of one Dr. Udwadia.
of the said Hospital. Appellant neither treated him nor did he examine him
at any point of time. He even did not know of the diseases he had been
suffering from. On 21.11.1983, the deceased was discharged from the hospital.
C He received visitors on 22.11.1983. In the early momingof23.ll.1983, he
allegedly asked his wife Tarabai to count the cash lying in the almirah. He
died soon after having asked his wife for coffee.

After cremation of the dead body, the factum of execution of the Will
by the deceased was disclosed. A meeting of the family members was
D arranged in the office of Mr. Mahimkar for inspection of the Will; consent
letters were also prepared; Pravin signed the same at the spot as he was to "'
leave for Manore. Xerox copies of the consent letters were prepared. First
Respondent herein also signed the consent letter. On 7.12.1983, a joint
consent letter was given by sons of the deceased. Sunil also gave his
consent letter on the said day separately.
E
However, no step was taken for obtaining a probate soon thereafter. On
1.4.1985, a deed of assignment in regard to the manufacturing unit of Hair Oil
was executed in favour of Sudarshan for a consideration of Rs. 4 lakhs. As
per the deed of assignment, a sum of Rs. one lakh (hereinafter as Will). was
F to be paid on or before 31.12.1986 and the rest of the amount was to be paid
on or before 31.3 .1988.

A Testamentary Application was filed by Appellant on 21.12.1985. On
8. 1.1987, a joint consent letter was filed by Tarabai, Dr. Vishnu, Arvind and
Sunil in the said Testamentary Application.
G On 14.1.1987, a Promissory Note for Rs.3 lacs was executed by Sudarshan
in favour of Appellant in furtherance of the said deed of assignment. On
10.3.1987, a Cavec;tt was filed by Mridula, first Respondent without affidavit
I
and on 28.4.1987 an Affidavit was filed by her withdrawing the "no objection"
earlier given for grant of probate. She was allowed to do so after she affirmed
H
NIRANJAN UMESHCHANDRA JOSHI v. MRIDULA JYOTI RAO [S.B. SINHA, J] 1221

on an affidavit in support thereof. A
The second respondent also filed a caveat. Thereafter a Testamentary
Suit was filed by Appellant before the Bombay High Court wherein respondents
herein were parties. The hearing was taken up in I994. Recording of evidence
in the matter commenced on 7.11.1984. It continued upto 8.11.1994. Arguments B
were heard and concluded in December 1994. Appellant examined himself in
the said proceeding. He had examined his mother Tarabai and also the
attesting witnesses viz., Mr. Mahimkar and Dr. Bhupender Gandhi. He also
examined Dr. Vijay Kumar Panikar.

A learned Single Judge of the High Court by a judgment and order C
dated 28.11. I995 dismissed Appellant's application for grant of probate, inter
a/ia, opining that 'although respondents herein could not prove that the
signatures of the·testator appearing in the Will as also those of the attesting
witnesses, were not theirs; the circumstances surrounding the execution of
the Will were sJ suspicious that it was impossible to believe that the Will had
... been executed at the place, time and in the manner suggested by Appellant'. D
In arriving at the said conclusion, the learned Single Judge took into
consideration the purpose for which the Will was proposed to be executed,
the manner in which the same was drafted and executed, the effect thereof
and various other circumstances and in particular the one that Appellant was
totally ignorant of the ailment(s), the deceased was suffering from. The E
learned Single Judge concluded that no case for grant of probate had been
made out.

An Intra-court Appeal was filed by Appellant thereagainst. During the
pendency of the Appeal, Pumima, another sister of Appellant took out Chamber
Summons, revoking her consent to the Probate Petition on 16.6.2003, inter F
alia, on the allegations that she had doubts about the genuineness of the
alleged Will and wished to support the respondents herein. Chamber Summon!'-
had also been taken out by Jagdish, Pravin and Dr. Vishnu in the pending
appeal. They also revoked their consent to the probate petition and prayed
to· be joined with Respondents herein. In support thereof, an affidavit was
affirmed by Jagdish in July 2003 not only questioning the genuineness of the G
Will but also expressing his shock and surprise at the fraud played on all the
family members by Appellant. By reason of the impugned judgment dated
4.2.2004, a Division Bench of the High Court affirmed the judgment and order
of the learned Single Judge.
H
......
~-
1222 SUPREME COURT REPORTS (2006] SUPP. 10 S.C.R.

A Mr. Shanti Bhushan, learned Senior Counsel appearing on behalf of
Appellant raised the following contentions in support of the appeal :

(1) Execution of the Will having duly been proved, the High Court
committed an error in passmg the impugned judgment. The fact
that all the brothers and sisters of Appellant had given their
B consent, except Respondent No. 2 herein, who was under the
influence of her husband, who was a Muslim boy clearly \ .
established that the Will was genuine.
(2) Subsequent withdrawal of the consent by Mrudula would also
show that she had changed her mind only on the ground of not
c having been paid an amount of Rs.50,000/- as was allegedly
promised to her which cannot be relied upon.
(3) The evidence brought on records clearly show:
(i) The deceased was of sound mind and, thus, had the capacity of
making his Will on 15.11.1983.
D
(ii) Indisputably, the deceased having executed the Will and the ••
same having been attested by Shri Mahimkar and Dr. Gandhi, the
genuineness thereof could not have been questioned.
(iii) The background of hospitalization of the deceased had not been ,.
appreciated by the High Court in its proper perspective, as it
E
failed to consider that he had always been reluctant to take
a!lopathic drugs and was, thus, expected to be in the hospital for
a short period.
(iv) The deceased was kept in the ICU, not because his.condition
F was serious but because no bed was available. elsewhere. '
(v) Although she was suffering from cancer, the same being within
tolerable limits, it was not necessary to put him under any sedative.
(vi) Deceased left hospital in good health. He was brought home by
Niranjan. He went to his office on the first floor and met all his
G family members. On 22.11.1983, he signed a letter of authority
addressed to the Punjab National Bank. He had also expressed
his desire to go to the village after his discharge from the hospital.
(vii) On. 22.11.1983, he met many of his friends and enquired about
their various activities. On 23.11.1983 at 3.00 a.m. he asked
H
l 41
... -~

NIRANJAN UMESHCHANDRAJOSHI v. MRJDULAJYOTI RAO[S.B. SINHA, J.] 1223
Tarabai, his wife to prepare coffee for him. A
(viii) Mrudula has been visiting her father during his illness and at
least she should have testified in the witness box to depose that
in regard to the deceased's mental condition and having not
done so, she now should not be permitted to take a different
stand. B
(4) Despite overwhelming evidence of his being in a proper state of
mind, no evidence was adduced on behalf of Appellant.
(5) The High Court committed a serious error insofar as it failed to
take into consideration that Appellant did not play an unprominent
role in the preparation of the Will and was not even present at c
the time when instructions were being given for its preparation
on 15.11.1983 as also at the time of execution thereof.
(6) He never visited his father and did not know anything about the
ailments his father was suffering from, which cannot be said to
. .._..
be unnatural, particularly when he was only a gynecologist and D
not an oncologist.

Mr. Rajiv Dutta and Mr. Sunil Kumar Gupta, learned Senior counsel
appearing on behalf the first and second Respondents respectively, on the
other hand, submitted :
E
(I) Both the learned Single Judge and Division Bench of the High
Court having arrived at a concurrent finding of fact, this Court
should not interfere therewith.

(2) The circumstances ·in which the Will was prepared, attested and
executed, namely, in a cubicle of ICCU raise serious doubts F
about the genuineness thereof.

(3) No independent witness having been examined, for reasons being
known to the appellant, the impugned judgment cannot be faulted
as particularly non-examination of the doctor who had been
attending the deceased at Breach Candy Hospital having not G
been explained, the case must be held to be shrouded in mystery.

(4) Both the attesting witnesses Dr. Gandhi and Mr. Panikar being
known to the Appellant for a long time, no reliance has rightly
been placed on their evidence by the High Court.

H
1224 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.
;r ...
A (5) There was no reason as to why the deceased would not leave
anything for his other children, particularly when he was running
a business and the residential house was not being used for any
charitable purpose.

(6) Like Appellant, Sunil, who was the youngest of.all, was also
B unmarried and having been residing with his father and
unemployed, it was unnatural that no arrangement was made for
him.

(7) Deceased having been suffering from a serious ailment, it was
unlikely that he expressed his desire to execute a Power of
Attorney and Will at the same time.
c
(8) No reason has been assigned and no explanation has been offered
as to why no step was taken immediately for grant of probate
despite the fact no objection was raised by any of the legal heirs,
except the second respondent.

D (9) No explanation has been offered as to why the. business of
manufacture of hair oil would be transferred to Sudarshan for ~-

valuable consideration.
(IO) The. fact that .another sister and three brothers of Appellant
revoked their consents and expressed doubts as regards the
E genuineness of the Will also establishes that the execution of the
Will was surrounded by -suspicious circumstances.

(II) Theory set up by the propounder that the Will was executed in
furtherance of the Charitable Trust activities having been found
to be not correct and the property of the deceased comprised not
F only .of a business but also a residential house clearly goes to
show that the High Court was correct in opining that the execution
of the Will has not been proved by Appellant.

Before adverting to the rival contentions of the parties, as noticed
herein before, we would place on record that ·three brothers of appellant,
G namely, Arvind, Vishnu and Sunil had filed interlocutory applications before
this Court for their impleadment in this Appeal. Mr. Jaideep Gupta, appearing
l>
in support of the said application submitted that they are supporting the
appellants.

The learned Single Judge as also the Division Bench·ofthe High Court
H
1
NI RAN.I AN UMESHCHANDRAJOSHI v. MRI DULA JYOTI RAO [S.B. SINHA, J.) J225

had taken great pains in analyzing the evidence, both oral and documentary, A
brought on records.

The learned Judges proceeded on the basis that the Will in question
bear the signatures of the deceased and might have been attested by Mr.
Mahimkar, Advocate and Dr. Bhupender Gandhi, but circumstances
surrounding the execution of the Will being suspicious and the appellant B
having not been able to remove the same, the prayer for grant of probate
should not be granted.

The circumstances enumerated by the learned Division Bench in affirming
the judgment and order passed by the learned Single Judge are as under :
c
(i) The Propounder took part in execution of the Will, being sole
recipient of the legacy.
(ii) The dispositions made in the Will by the testator are unnatural,
unfair and improbable as wife and grand children were excluded
from the benefit thereof despite the fact that he had love and D
likings for all.

(iii) There is no recital in the Will that Respondent No. 2 was to be
specifically excluded.

(iv) Why the Will had been executed by the testator within 24 hours
of his hospitalization has not been explained. E
(v) Witnesses to the Will were interested persons, and evidence
adduced in support of execution of the Will was unsatisfactory,
particularly when the doctor treating him had not been examined.

(vi) The ailment from which the testator had been suffering was not F
being disclosed which shows that he might have been terminally
ill as within eight days from execution of the Will, he died.
(vii) There was no satisfactory evidence to show as to why the
testator sent for Dr. Gandhi for attestation of the Will although
he did not have much acquaintance with him.
G
(viii) No satisfactory evidence was brought on record as regards the
cause of death of the deceased.

(ix) There is no explanation as to why the appellant and others
visited the hospital during non-visiting hours in the ICU cubicle
H
1226 SUPREME COURT REPORTS (2006] SUPP. 10 S.C.R.

A for execution of the Will.

From the evidence brought on record, it appears that the deceased knew
that he had been suffering from cancer for 10-15 years prior to his death as
he claimed that he was cured~of his disease because of his practi<;es in yoga.
Admittedly, he was suffering from Liposarcoma which is a malignancy of fat
B cells. He was also suffering from left ventricular failure. The ailments were
serious ones as was expressed by Dr. Bhupender Gandhi in his deposition.
Dr. Gandhi happened to be a long standing friend of the appellant. He
admitted to have met the deceased only once or twice but never treated him;
even never examined him. Dr. Panikar was a student of the appellant. He was
a young doctor. He had regularly been checking up the deceased medically.
C From the evidence of Panikar, it appears that the deceased knew that he had
been suffering from cancer but according to him as he used to do yogas, he
was cured of the said disease. He was suffering from respiratory trouble also.
Deceased although was not taking any allopathic medicine, he could be
persuaded to be hospitalised. Panikar assured him that he would be hospitalized
D only for one night. Whether necessary or not, he was admitted in ICU. The
treatment started immediately. Presumably because he would not take any
oral allopathic drugs, he was put on intravenous fluid. If he was aware of
the fact that he would remain in the hospital for one day only, it does not
appeal to any reason as to why he would think of execution of a Power of
Attorney as also of execution of a Will in favour of Appellant at the same
E time. If he was under the impression that he was no longer suffering from
cancer, it was expected that he would think of execution of any document only
after he came back home. He asked the appellant only to contact Mis. Shroff
& Co. He did not say about Mr. Mahimkar. Mr. Mahimkar was said to have
been deputed by the firm. No evidence to that effect was led. Admittedly,
F he was known to the appellant since 1976. He had handled the Habeas
Corpus petition before the Bombay High Court filed by the husband of
Respondent No. 2. Mahimkar came with Appellant. He was accompanied by
a Clerk. They were allowed to enter ICU without any prior appointment.
There is nothing to show that permission of the hospital authorities had been
taken in regard to the visit of persons who were not his relatives. In the small
G cubicle of ICU which was separated by curtains only and there were other
serious patients, Power of Attorney and the Will were said to have been
drafted. The execution of the Will was allegedly deferred by a day as
deceased wanted to consult his wife. According to her, she raised no
objection to the execution of the Will in favour of Appellant. Whether the
H youngest son and other children were taken into confidence or not, is not
NIRANJAN UMESHCHANDRA JOSHI v. MRIDULA JYOTI RAO [S. B. SINHA, J.) 1227
known. Power of Attorney would have served the necessity of representing A
the deceased before various authorities and banks. The very fact that he
wanted to execute a Power of Attorney clearly shows that he did not believe
that he would meet his end soon. Ordinarily, a person would not think of
execution of a Power of Attorney and a Will simultaneously. Although, he
chose to execute the Will, he evidently did ~ot have any document with him
for the purpose of instructing the Advocate effectively and in details. No B
document had been handed over to Mr~ Mahimkar by the appellant and the
deceased. He came to the hospital with a Clerk, dictated the Will then and
there and the same was executed by the deceased. Dr. Gandhi although a
friend of the appellant deposed in his evidence that the deceased had not
known him very intimately. Why, thus, he had been called as an attesting C
witness is a mystery. A nurse had allegedly tried to contact him. Whether
he could be contacted or not is not known. He, however, walked almost
immediately after the Will was drafted. He attested the signatures of testator.

In his Will, the deceased had, inter alia, declared:-
D
"I, Umeshchandra Madhav Joshi of Bombay, Indian Inhabitant, aged
76 years, residing at Umeshdham, 27, 2nd Vincent Square Street,
Dadar, Bombay 400 014, do hereby revoke all my fonner Wills and
testamentary dispositions and declare this to be my last Will and
Testament.
E
I. I appoint my son Dr. Niranjan Umeshchandra Joshi to be the
Executor and Trustee of this my last Will.

') I. Whatever movable and immovable estate I am seized and
possessed of or otherwise well and sufficiently entitled, the same
belong to me absolutely and no one has any claim or interest F
whatsoever to or in the same or any part thereof and I am entitled
to make such dispositions thereof as are hereinafter contained."
xx xx xx

"7. I declare that all the rest and residue of my estate wheresoever
situate, after payment of funeral expenses, debts, liabilities, probate G
duty, costs, charges and expenses of management and administration
is hereinafter referred to as my "Residuary Estates".

· 8. l devise and bequeath my residuary estate to my son Dr. Niranjart
Umeshchandra Joshi absolutely.
H
y

1228 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

A 9. I authorize and empower my executor and Trustee to postpone the
realization, sale and/or conversion of my estate or any part thereof for
so long as he shall think fit."
Why other terms of the Will had to be inserted is not known. There were
two schedules in the Will. The first schedule thereof reads as under:-

B Valuation of the movable and immovable property of the deceased in
the State of Maharashtra 1_

I. Cash in the house Rs. 2,434.00

2 Household goods, furniture Rs. l,000.00

c 3. Cash in Bank:
i) Punjab National Bank,
Khodadad Circle, Dadar, "'\
Bombay 400 014 Current Ale No. 1835 Rs. 3,56,465.85
ii) Punjab National Bank, Khodadad
D Circle, Dadar, Bombay 400 014 Ale
No. 8794 Rs. 32,316.47

4. Leasehold property consisting of
Leasehold land with building ..
standing thereon known as Umeshdham,
E Vincent Square, Street No.2, Dadar, Matunga
Estate, Dadar, Bombay 400 014, as per the
Valuation report of Mis. Design Collaboration,
Architects, Bombay Rs. 4,00,000.00 (

F 5. Securities:
Deposits with Bombay Electric
Supply And Transport Undertaking as
security For payment of energy bill etc.
paid Under Receipt No.61253 dated 27.5.80 Rs. 4,850.00
Rs. 8,12,066.32
G
Deduct amount shown in
Schedule No.II Rs 4,77,605.30

Net Total Rs.3,34,461.02
H
~

}-
NIRANJAN UMESHCHANDRA JOSHI v. MRIDULAJYOTI RAO [S.B. SINHA, J.] 1229
Schedule II details his liabilities to each of such persons named therein, A
amounting to Rs.4,77,605.30. Mr. Mahimkar or Dr. Gandhi do not say that
documents required to prepare the Will were with the deceased. Deceased
..
was admitted in the hospital on an emergency basis. Evidently when he was
admitted in ICU, he would not be permitted to carry documents with him. It
is unnatural that he would remember all the details of his assets including the
amount of cash and the amount lying in bank as also the details of his B
liabilities etc.

Both the schedules of the Will were meticulously drafted. Tarabai in her
deposition did not say that she or Appellant had furnished all those details
to Mahimkar in advance. Except they, in the given situation, no other could C
do so. An inference can, therefore, be safely drawn that Appellant had a role
to play in execution of the Will. Story of the Will being drafted in the cubicle
of ICU of the Hospital, thus, cannot be believed. In all probabilities, Will was
drafted by Mahimkar in his Chamber. It may also be borne in mind that as
the deceased could only sign in English, question of his dictating the Will
and at least the term thereof was wholly unlikely. Will has been drafted by D
a professional. The theory set up by the rropounder that he believed that the
appellant would carry out his charitable activities is not reflected from the
Will. No reason has been assigned as to why he had chosen Appellant alone
for taking the entire benefit of the legacy.

It is of some interest to notice that although the amount of cash in hand E
had already been disclosed in the first schedule of the Will but when he came
back, he asked Tarabai to count the cash once over again. What was the
amount, if any, found in the cash-box is not known.

It is true that the contesting respondents did not examine themselves,
but it is equally true that apart from his mother and friends, nobody was F
examined on behalf of Appellant also. If the other sons had implicit faith in
their father and accepted that the Will was genuine, they could also have
been examined. They indisputably signed consent letters. We do not know
under what circumstances, consent letters were obtained. Only Pravin had
given consent in the Solicitor's office; others gave their consent at a later G
stage.

What was the frame of mind of the deceased could have been best
stated by the Doctor who was attending on him. Appellant curiously even
was not aware of the ailments, the deceased was suffering from. It is expected
H
1230 SUPREME COURT REPORTS [2006) SUPP. 10 S.C.R.

·A that he would have known at least the ailments of his father, particularly when
he was diagnosed to be suffering for ventricular failure. His other three sons,
•
particularly Sunil had been helping the deceased in carrying on the business.
There is no averment in the Will how the business and the Trust would be
run.

B Some directions in regard to running of the Trust were also expected
to be given in the Will. (,_

The manner in which the death certificate of the deceased had been
issued also raises some suspicions. Although, he expired at his own house,
and he was declared dead by Dr. Panikar; the death certificate was prepared
C in a printed form. It was filled up in hand but the time of death was shown
as 7.00 a.m. The cause of death is said to be respiratory failure. How the
printed form was filled in, may better be stated in the words of the learned
Single Judge:

"The next important document is the Medical Certificate showing the
D cause of death given by Dr. Panikar. It is a printed form which is filled
in hand wherein the time of death is shown as 7 a.m. and against
"Disease of condition directly leading to death" the following is
written in hand: "Respiratory failure"and as against "approximate
interval between onset and death" 8 days are mentioned. Under
E "Antecedent Cause" and "Morbid conditions, if any, giving rise to the
above cause, stating the underlying condition least"
"Bronchopneumonia & Liposarcoma" in hand are entered into and as
against "Approximate interval between onset and death" '20 days' are
mentioned. It is signed by Dr. Panikar with his full name written under (
the signature and as against "Address or rubber stamp of the
F institution". Rubber stamp showing "Pare! Hospital, 94, Shri Parmar
Guruji Marg, Pare!, Bombay-400 012" is affixed."

Who had filled up the form in not known. It is nobody's case that Dr.
Panikar was attached to Pare! Hospital.

G Even in the death report entered into the Municipal record of the
Bombay hospital the cause of death was shown to be Bronchopneumonia and
-·
\
Liposarcoma.

The learned Single Judge has also noticed that there are documents to
H show that the deceased was being treated by several other doctors including
• '-'I

NI RANJAN UMESHCHANDRA JOSHI v. MRI DULA JYOTI RAO [S.B. SINHA,J .] 1231
Dr. Anibhut P. Vohra. All the persons including 'Tarabai' curiously did not A
know the nature of ailments the deceased was suffering from and the period
of his illness. In her deposition, she was confronted with her affidavit in
earlier litigations but she profusely denied the averments and contents thereof;
She had also denied the signatu!"es of persons on the documents pertaining
to earlier litigation other than herself and her husband on various documents
w~th which she was confronted with. There is no reason as to why she B
should do so particularly when her categorical stand in the earlier litigations
was that deceased had been suffering from various ailments since a long time.

The conduct of Appellant in executing the deed of assignment in favour
of Sudarshan even before filing the application for grant of probate cannot C
also be appreciated. Before the grant of probate, he had no legal authority
in that behalf.

Section 63 of the Indian Evidence Act Jays down the mode and manner
in which the execution of an unprivileged Will is to be proved. Section 68
postulates the mode and manner in which proof of execution of document is D
.,. required by Jaw to be attested. It in unequivocal terms states that execution
of Will must be proved at least by one attesting witness, if an attesting
witness is alive subject to the process of the court and capable of giving
evidence. A Will is to prove what is loosely called as primary evidence,
except where proof is permitted by leading secondary evidence. Unlike other
documents, proof of execution of any other document under the Act would E
not be sufficient as in terms of Section 68 of the Indian Evidence Act,
execution must be proved at least by one of the attesting witnesses. While
making attestation, there must be an animus attestandi, on the part of the
attesting witness, meaning thereby, he must intend to attest and extrinsic
evidence on this point is receivable. F
The burden of proof that the Will has been validly executed and is a
genuine document is on the propounder. The propounder is also required to
prove that the testator has signed the Will and that he had put his signature
out of his own free will having a sound disposition of mind and understood
the nature and effect thereof. If sufficient evidence in this behalf is brought G
on record, the onus of the propounder may be held to have been discharged.
But, the onus would be on the applicant to remove the suspicion by leading
sufficient and cogent evidence if there exists any. In the case of proof of Will,
a signature of a testator alone would not prove the execution thereof, if his
mind may appear to be very feeble and debilitated. However, if a defence of
H
1232 SUPREME COURT REPORTS (2006) SUPP. 10 S.C.R.

A fraud, coercion or undue influence is raised, the burden would be on the
caveator. See Madhukar D. Shende v. Tarabai Shedage, [2002] 2 SCC 85, and
Sridevi & Ors. v. Jayaraja Shetty & Ors., [2005] 8 SCC 784, Subject to above,
proof of a Will does not ordinarily differ from that of proving any other
document.

B There are several circumstances which would have been held to be
described by this Court as suspicious circumstances :-

(i) When a doubt is creakd in regard to the conditi?n of mind of
the testator despite his signature on the Will;

(ii) When the disposition appears to be unnatural or wholly unfair
c in the light of the relevant circumstances;
(ill) Where propounder himself takes prominent part in the execution
of Will which confers on him substantial benefit.

[See H. Venkatacha/a Iyengar v. B.N. Thimmajamma & Ors., AIR (l 959)
D SC 443 and Management Committee T.K. Ghosh's Academy v. TC. Pa/it & "(.
Ors., AIR (1974) SC 1495.]

We may not delve deep into the decisions cited at the Bar as the
question has recently been considered by this Court in B. Venkatamuni v.
CJ. Ayodhya Ram Singh & Ors., (2006) 11 SCALE 148, wherein this Court
E has held that the court must satisfy its conscience as regards due execution
of the Will by the testator and the court would not refuse to probe deeper
into the matter only because the signature of the propounder on the Will is
otherwise proved.

F The proof a Wille is required not as a ground of reading the document
but to afford the judge reasonable assurance of it as being what it purports
to be.

We may, however, hasten to add that there exists a distinction where
suspicions are well founded and the cases where there are only suspicions
G alone. Existence of suspicious circumstances alone may not be sufficient.
The court may not start with a suspicion and it should not close its mind to
find the truth. A resolute and impenetrable incredulity is demanded from the
judge even there exist circumstances of grave suspicion. [See Venkatacha/a
Iyengar (supra)].

H
NI RA NJ AN UMESHCHANDRAJOSHI v. MRIDULA JYOTI RAO [S.B. SINHA, J.] J233

Even if we apply the tests laid down by this Court in large number of A
decisions, including the ones referred to hereinbefore, we are of the opinion
that no case has been made out to interfere with the findings of both the
learned Single Judge as also the Division Bench of the High Court.

In Venkatamuni (supra), this Court has also opined that the appellate
court while exercising its jurisdiction would ordinarily not interfere with the B
finding of fact arrived at by the learned Trial Judge if the view taken by it
is reasonable. We, therefore, agree with the conclusions arrived at by the
High Court.

The appeal is dismissed with costs. Counsel's fee assessed at Rs.
~~ c
N.J. Appeal dismissed.