KOCHUKUNJI ALIAS LAZAR Vs. VARGHESE

JUDGEMENT

(1.) In the light of the two recent decisions of the Supreme Court in H. Venkatachala Iyengar v. B. N. Thimmajamma (AIR 1959 Supreme Court 443) and Rani Purnima Debi v. Kumar Khagendra Narayan Deb (AIR 1962 Supreme Court 567) the question for decision in this case boils down to quite narrow confines. Those two decisions lay down that the propounder of a will would be called upon to show by satisfactory evidence that the will was signed by the testator; that the testator at the relevant time was in a sound disposing state of mind; and that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. They also lay down that there may be cases in which the execution of the will is surrounded by suspicious circumstances; that the presence of such suspicious circumstances will tend to make the initial onus of the propounder very heavy; and that unless it is satisfactorily discharged, courts should be reluctant to treat the document as the last will of the testator. It is further laid down that if a caveat is filed alleging the exercise of undue influence, fraud or coercion in the execution of the will, such pleas may have to be proved by the caveator; but even without such pleas, circumstances may raise a doubt as to whether the testator was acting of his own free will; and in such circumstances, it would be part of the initial onus to remove any such legitimate doubt. What further has been laid down in these cases is that the mere fact that a will is registered will not by itself be sufficient to dispel all suspicion where suspicion exists; and in such cases if the evidence as to registration reveals that the registration was made in such a manner that it was brought home to the testator that the document of which he was admitting execution was a will and thereafter he admitted execution, the registration will dispel the doubt as to the genuineness of the will; but if the evidence as to registration shows that the officer registering the will did not read it over to the testator or did not bring home to him that he was admitting the execution of a will or did not satisfy himself in some other way that the testator knew that it was a will, the fact that the will was registered would not be of much value. .

(2.) In this case there are suspicious circumstances, as pointed out by the learned Subordinate Judge, surrounding the execution of the will. The 1st defendant appellant to whom the entire property is bequeathed is a brother's son of the testatrix ; and the testatrix had several other relations equally related or nearer in relation. The 5th defendant is the elder brother of the testatrix and the testatrix purchased the suit property from him. Even after the purchase the 5th defendant continued to live in the house thereon; and the testatrix also lived there with him for some time. She then built another house nearby and moved into that house. Subsequently, when she wanted to sell away that house, she built yet another house and moved into it selling away the house built earlier. Even then the 5th defendant was not disturbed and he was allowed to continue in the house. It also appears from the evidence that the 5th defendant was very old and was in very poor circumstances. He used to come to the house of the testatrix, have his coffee there twice every day and also used to take food there occasionally. For such a person as this no provision is made in the will and the recital regarding the house is that the 5th defendant should be evicted therefrom on the death of; the testatrix.

(3.) It has again come out in evidence that the testatrix was ailing at least from January 1951, the will having been executed on 20th April 1951 and registered on the next day. What appears further is that even after that date the testatrix had been ailing and ultimately she died on 18th June 1951. She was aged 72 at the time of her death. From these circumstances what appears is that she was old and was debilitated by fairly long ailment.