Thursday, 15 September 2016

Whether a person becoming sanyasi amounts to his civil death?

Sital Das (supra) is authority for the proposition that the consequence of entry of an individual into a monastic order, is his civil death:
"entrance into a religious order generally operates as a civil death. The man who becomes an ascetic severs his connection with the members of his natural family and being adopted by his preceptor becomes, so to say a spiritual son of the latter. The other disciples of his Guru are regarded as his brothers, while the co-disciples of his Guru are looked upon as uncles and in this way a spiritual family is established on the analogy of a natural family."
FAO (OS) 513/2012 and 26/2013
Decided On: 30.09.2015
Appellants: Swami Gurudev Muni Chela Sant Sewa Dass Ji
Respondent: State and Ors.
Hon'ble Judges/Coram:S. Ravindra Bhat and Deepa Sharma, JJ.

1. These appeals challenge a common judgment and order dated 26.07.2012 of a learned Single Judge in two testamentary proceedings (Test Case No. 9/2000, initiated by the Appellant -hereafter referred to as such, seeking letters of administration, and Test Case No. 15/1994, seeking probate- filed by the named executor). The latter of the two, i.e. the probate case, being Test Case No. 15/1994 was allowed and the petition seeking letters of administration, being Test Case No. 9/2000 was dismissed. The successful party, i.e the respondent, is hereafter referred to as "Swami Kishore Das Ji". The testamentary proceedings concerned the estate and Will dated 8.10.1993 of late Swami Amar Muniji (hereafter "Amar Muniji"). He had two immovable properties:(i) D-120-121 Lajpat Nagar, New Delhi and (ii) a plot of land measuring 1 bigha, 13 biswas and 13 1/2 biswansi at Patta Khasra No. 4/23, Village Phupatwala Kalan, Jwalapur, Haridwar, Uttarakhand. Amar Muniji also had certain movable assets described in schedule A to the petition.
2. The late Amar Muniji was the Parmadhyaksha of Swami Ram Tirath Mission. He died at New Delhi on 28.12.1993. On 26.4.1994, notices were issued and citation was directed to be published in the probate proceedings. Objections were filed by the appellant, who later preferred Test Case No. 9/2000. Another set of objections were filed by one Sh. O.P. Gupta with respect to the Lajpat Nagar property. Sh. O.P. Gupta did not lead any evidence in support of his objections. Counsel for the parties stated in the proceedings before the learned Single Judge that Sh. O.P. Gupta expired during the pendency of this petition and his legal heirs were not brought on record. The objection petition filed by Sh. O.P. Gupta was, therefore, dismissed as abated.
3. Swami Kishore Dasji's plea in the probate petition was that Amar Muniji, before his death executed a Will dated 8.10.1993, which was his last Will and testament. Through the will, Amar Muniji bequeathed his properties in favour of the Swami Kishore Dasji who is a Parmadhyaksha of Swami Ram Tirath Mission. To prove that the will was validly executed, the probate petitioner relied on the testimony of two witnesses, M/s. Lalit K. Malhotra (who deposed as PW-1) and O.P. Wadhwa (who deposed as PW-3). The former was owner of a hotel and a disciple of late Swami Amar Muniji; it was said that Amar Muji ji sometimes stayed in the residence of Mr. Lalit K. Malhotra. The other attesting witness Sh. O.P. Wadhwa was a retired Assistant Director, Union Ministry of Planning, Department of Statistics. Both attesting witnesses deposed that the testator late Amar Muniji signed the Will in their presence and that they both signed the Will in his presence and in the presence of each other. The Will was exhibited as Ex.PW1/1.
Findings of the learned Single Judge
4. The impugned judgment and order dealt with two questions, i.e whether the Will had been validly proved in accordance with law and whether in the circumstances, since late Amar Muniji, an Udasi or a mendicant, had testamentary capacity to bequeath the properties in question to the probate petitioner, an outsider and not part of his sect or order. Noticing that several discrepancies in the testimonies of the two attesting witnesses were pointed out by the appellant in relation to the probate petitioner's claim of due execution of the Will by the testator as well as contradictions with certain previous statements, the learned Single Judge considered and dealt with each of them. He thereafter concluded that the evidence produced by the probate petitioner, i.e Swami Kishore Das Ji was credible and trustworthy; consequently it was held that the Will stood proved.
5. Dealing next with the appellant's argument that the late Amar Muniji could not be said to possess testamentary capacity to make a disposition by way of Will of properties, even though held by him, because such properties vested in the order or sect that he belonged to (Udasin) the learned Single Judge, relied on the decision of the Supreme Court in Math Sauna and Ors. v. Kedar Nath @ Uma Shankar & Ors. MANU/SC/0368/1981 : (1982) 1 S.C.R. 659 to the effect that "the mere fact that a Mahant is an ascetic does not result in any presumption that the property in his possession is not his personal property. There is no presumption either way. In each case, the burden is upon the plaintiff to establish that the properties in respect of which he is asking for possession are properties to which he is entitled". [662-F-G]. He found that there was no bar in law of Swami Amar Muniji owning properties and making a will with respect to them, given that nothing to the contrary was proved before him.
Appellants' contentions
6. Ms. Jyoti Mendiratta, counsel for the appellant argued that Swami Amar Nath Ji belonged to the Udasin Sect whose customs dictate that the Bhatija/Chela of guruji, (the Swamiji) i.e the objector would inherit if it is approved by the Bhek (congregation) of the Udasin Sect. It was urged that Swami Amar Nath Ji's joining the Udasin Sect resulted in his civil death. Resultantly, the objector became owner of the properties of Swami Amar Muniji upon his death because his name received the Bhek's approval with due performance of the necessary and attendant ceremonies. It was also argued that the civil death of an individual due to his joining a religious order, results in the Bhatija/Chela becoming the sole inheritor of the properties of such member of the Udasin Sect. Reliance was placed on the judgment of the Lahore High Court reported as Jiwan Das v. Hira Das MANU/LA/0545/1936 : AIR 1937 Lah 311. Counsel also relied on Brahma Nand v. Mathura Puri MANU/SC/0295/1964 : AIR 1965 SC 1506 where the Supreme Court held "that the office of Mahant being usually elective and not hereditary, anyone who lays claims to the office on the basis of a hereditary title resting on Chelaship simplicitor or Gurbhaiship simplicitor must establish it".
7. It is submitted that the properties acquired by Swami Amar Muniji cannot be treated as his personal assets, given that he belonged to the Udasin Sect. Ms. Mendiratta, learned counsel urged that the propounder of the Will, Swami Kishore Das Ji, admitted that Swami Amar Muniji belonged to the Udasin Sect, and that the said deceased was a Chela of Baba Nirvandev Tota Ramji. It is also a matter of record, submitted counsel, that Swami Dr. Kishore Dass Ji is not a part of the Udasin Sect of Dera Baba Charan Shah Ji, Bahadurpur, Hoshiarpur, Punjab. He is also not a Chela, Bhatija/Chela or Guru Bhai of the deceased Swami Amar Muniji. Since he did not belong to the spiritual family of Swami Amar Muniji and was also not a member of the Udasin Sect, the bequest was not proper and had to fail. Elaborating on this, counsel submitted, that Swami Dr. Kishore Dass Ji claims to be Parmadhyaksha or President of the Swami Ram Tirath Mission, which is a registered society. It is not a monastic institution. Concededly Swami Dr. Kishore Dass Ji's testimony is that Swami Ram Tirath Mission has no concern with the akharas of Udasin sect. He conceded during trial that Parmadhyaksha of Swami Ram Tirath Mission is installed on the basis of ability and the appointment/nomination is approved by the registered Committee of the Mission. 18-19 Members of the Committee decide from amongst the Sadhu Samaj and other disciples. Highlighting that this form of appointment is not known to the Udasin Sect, counsel urged that the bequest in favour of Swami Dr. Kishore Dass Ji had to, therefore, fail. It was submitted that the Sale deed noticed that Swami Amar Muniji belonged to the Udasin Sect. In these circumstances, Swami Amar Muniji held the property as a Member of and for, the Udasin Sect and not for himself. Consequently, he lost the testamentary capacity to bequeath the property.
8. Again reiterating that entry of an individual to an ascetic order of Sadhu Samaj defines it as a civil death, counsel stated that consequent donation and gifts to the Udasin or ascetic belonged to the Math. Learned counsel relied upon Parma Nand v. Nihal Chand & Anr. MANU/PR/0035/1938 : AIR 1938 PC 195 and Sital Dass v. Sant Ram & Ors. MANU/SC/0156/1954 : AIR 1954 SC 606 as well as Mahant Satnam Singh v. Bawan Bhagwan Singh MANU/PR/0039/1938 : AIR 1938 PC 216 to say that succession to the possession of Mahant in the Udasin Sect and ownership of Math property is regulated by custom. Ms. Mendiratta urged that the private property acquired by a monk or ascetic belonging to the Udasin Sect by his own exertions cannot be inherited by his natural relatives, but passes on his death to his spiritual heir, including his chela who is seen as a spiritual son. Counsel submitted that in the Udasin Sect, a Will is valid if it firstly serves the purpose of nomination or appointment of successor to administer all the properties of the Sect. Secondly, if it is executed in favour of the successors in the Math or Sect, i.e., in the present case it was Sect of the same Dera and thirdly if such Will had been approved by the Bhek of the deceased. Since none of these ingredients were proved, the Will had to fail. Learned counsel also highlighted that by virtue of Section 59 of the Indian Succession Act, only such property which a Hindu can validly deal with and dispose of, can be the subject matter of a bequest. Counsel also distinguished the judgment relied upon by the learned Single Judge, i.e., Math Sauna (supra). It was stated that the dispute there was between the Member of the deceased Sect and Chela of the deceased whereas such is not the present case. It was further highlighted what was given effect to in the said Sect was the custom. More importantly, counsel highlighted that the Sect involved in that case, i.e. Dasmani Sanyasi Sect, was governed by a custom under which a Sanyasi could acquire a personal property.
9. It is next submitted that due execution of the Will in the present case was not proved as there were certain suspicious circumstances. The findings of the learned Single Judge in this regard were impugned. Learned counsel highlighted the testimony of the attesting witness, O.P. Wadhwa, who testified that he was not in a position to read and write for 4 1/2 years before his cross-examination. Consequently, his signatures could not be proved as there was nothing in the affidavit to say that it was read over and explained to him. Learned counsel relied upon contradictions brought out in the cross- examination of the other cross witness, L.K. Malhotra. It was stated that in the cross-examination before the Tehsildar in Haridwar, he had elaborated how the Will was prepared in his presence and that the Will was typed. In the cross-examination before the Court, however the witness denied knowledge as to who had prepared the Will and, on the other hand, stated that the deceased Swami Amar Muniji called him to his Jhandewalan Extension Dera Ashram on the date of execution of the Will. According to him, the Will was ready when he reached the Ashram. Counsel submitted that the contradiction was, in fact, highlighted and an explanation elicited. In the present case, it was stated that since the previous cross-examination was a matter of record, it was brought to the notice of the witness, despite which he had no explanation. Consequently, the requirement of Section 145 was fulfilled. The learned counsel relied upon Bhaghwan Singh v. State of Punjab MANU/SC/0035/1952 : AIR 1952 SC 214 to say that witness's attention must be directed to the contrary parts only when he denies his statement and not when he admits it.
10. Learned counsel for the respondent/propounder, Mr. R.K. Chadha submitted that in the present case, the succession to the gaddi of a Dera or religious sect is not involved. Counsel points out that the late Swami Amar Muniji belonged to Swami Ram Tirath Math for a considerable period of time and became its Parmadhyaksha in 1977 and remained so till his death. The institution is about 40-50 years old. Reliance was placed in this regard upon the testimony of Swami Dr. Kishore Dass Ji, the first respondent. It is urged that this evidence and the documents on the record taken in totality disclose that the late Swami Amar Muniji was associated with the Swami Ram Tirath Mission as Parmadhyaksha and has been preaching for that institution. This testimony was unrebutted. In other words, whether the late Swami Amar Muniji belonged to the Udasin Sect originally or not was an issue of fact. His association subsequently with Swami Ram Tirath Mission stood proved on the record. Consequently, the appellants as objectors were under a duty to prove that, in fact, the late Swami Amar Muniji despite his continuous association with the Swami Ram Tirath Mission was nevertheless a part of the Udasin Sect and bound by its customs. Highlighting that this onus of proving the continued association with the Udasin Sect was never discharged, learned senior counsel submitted that the appeal is unmerited. In support of this contention, learned counsel also relied upon the Will and as well as the death certificate, Ex. PW3/2 which has clearly stated that Swami Amar Muniji was residing permanently as Parmadhyaksha at Swami Ram Tirath Mission, Rajpura, Dehradun. The evidence of PW-2 also showed that Swami Ram Tirath Mission which propagates Sanathan Dharam has various branches throughout India. Its properties vest in it exclusively. Furthermore, submitted counsel-the Lajpat Nagar property was bequeathed to Late Swami Amar Muniji by his disciple through a Will that was proved as Ex. PW- 2/4D. Even this document -submitted counsel- clearly stated that Swami Amar Muniji was a Adhyaksha of Swami Ram Tirath Mission, Jhandewalan. The testator expected Swami Amar Muniji to use the entire bequeathed property for the purpose of religious discourse and Sanathan Dharam and also envisaged the teachings of Swami Param Hans, Swami Ram Tirath and his Mission. This Will was probated in favour of Late Swami Amar Muniji; it was exhibited as PW-2/4B. The previous petition itself was exhibited as Ex. PW-2/4C which clearly showed that Swami Amar Muniji had described himself as a Adhyaksha of Swami Ram Tirath Mission and so stated in the affidavit in supporting the probate petition. Furthermore, reliance was placed upon the sale deed dated 22.06.1982 in respect of the Haridwar property produced as Ex. PW-2/5 which states that it was purchased by Swami Amar Muniji as Parmadhyaksha of Swami Ram Tirath Mission.
11. All these facts, argued counsel, clearly show that Swami Amar Muniji never attained civil death, nor had he renounced the material world or was a Member of the Dera or occupier of the Math, to which the objector was seeking succession. The evidence and the material on record unerringly pointed to the circumstance that the Late Swami Amar Muniji was very closely associated with Swami Ram Tirath Mission and the properties acquired by him through bequest and purchased were his personal assets used for the benefit of Swami Ram Tirath Mission. All these also showed that he was capable of bequeathing the properties. It was lastly contended that the cross-examination of Gurudev Muniji (OW-3), who deposed in support of the objections to the probate proceedings and claimed his letters of administration, is untrustworthy. Here it was highlighted that OW-3 himself admitted that Late Swami Amar Muniji used to live in Swami Ram Tirath Mission at Dehradun. He also admitted that the said deceased testator was President of Swami Ram Tirath Mission, and that he had been visiting him at Dehradun. To a pointed query whether Mr. Surjeet Singh was the brother of Late Swami Amar Muniji, the objector avoided giving any direct answer. It was stated on the other hand that according to the witness, Swami Ram Tirath Mission used to be an organization of Sanyasis, but now is an association of householders (grahasthis). Counsel also submitted that the testimonies of OW-2, Mahanat Om Prakash and OW-4, Narender Das clearly showed awareness that Late Swami Amar Muniji was associated with Swami Ram Tirath Mission.
12. Learned counsel urged that this Court should not interfere with the findings of the learned Single Judge. Mr. Chadha, besides placing the reliance upon the decision in Math Sauna (supra) also relied upon Gurcharan Prasad v. P. Krishnanand Giri MANU/SC/0271/1967 : (1968) 2 SCR 600. Learned counsel particularly highlighted that on the precise question whether in the sect, an ascetic could acquire and retain personal property, the Supreme Court construed the previous decision in Parma Nand (supra) and held that the mere descent from Guru to Chela would not lead to a presumption that property acquired by Mahant or guru loses its secular character and partakes a spiritual character. Reliance was also placed upon the decision in Mahant Shyam Das Guru v. Lala Ram Kori MANU/MP/0512/2007 : AIR 2008 MP 47. It was submitted that every Guru Bhai cannot become a spiritual brother unless he satisfies fundamental requirements such as becoming an ascetic and severing his connection with his natural family. Again the decision in Brahma Nand v. Neki Puri MANU/SC/0295/1964 : AIR 1965 SC 1506 was relied upon to say that in such matters there must be evidence to establish that a Chela of an order is entitled to the office of Mahantship or based upon usage or any properties of an ascetic or Sanyasi.
13. Learned counsel lastly submitted that the so-called contradictions pointed out and highlighted by the appellants have been duly considered by the learned Single Judge who was of the opinion that too much could not be read into them, and that they did not constitute suspicious circumstances to invalidate the bequest.
Analysis & Conclusions
14. This court had the benefit of scrutinizing the records of trial before the learned Single Judge, including the pleadings, documents and depositions of witnesses. Before proceeding with the analysis of evidence, a recapitulation of the legal principles applicable, is necessary, because the appellant asserts that the late Amar Muniji was an ascetic, a Udasin, who had severed his ties with the world and the assets that accrued to him flowed to the Dera or the sect of the Udasins.
15. A math is typically a Hindu religious institution. It was described in Krishna Singh v. Mathura Ahir MANU/SC/0657/1981 : AIR 1980 SC 707 by the Supreme Court, in the following manner:
"'Math' means a place for the residence of ascetics and their pupils, and the like. Since the time of Sankaracharya, who established Hindu maths, these maths developed into institutions devoted to the teaching of different systems of Hindu religious philosophy, presided over by ascetics, who were held in great reverence as religious preceptors, and princes and noblemen endowed these institutions with large grants of property. Dr. Bijan Kumar Mukherjea in his Tagore Law Lectures on the Hindu Law of Religious and Charitable Trusts, 4th ed. p. 321 succinctly states:
'Math' in ordinary language signifies an abode or residence of ascetics. In legal parlance it connotes a monastic institution presided over by a particular order who generally are disciples or co-disciples of the superior."
Sital Das (supra) is authority for the proposition that the consequence of entry of an individual into a monastic order, is his civil death:
"entrance into a religious order generally operates as a civil death. The man who becomes an ascetic severs his connection with the members of his natural family and being adopted by his preceptor becomes, so to say a spiritual son of the latter. The other disciples of his Guru are regarded as his brothers, while the co-disciples of his Guru are looked upon as uncles and in this way a spiritual family is established on the analogy of a natural family."
Krishna Singh (supra) states that property belonging to a 'math' is attached to the office of the mahant, and passed by inheritance only who fill the office. This creates an obligation to maintain the trust: "The head of a math, as such, is not a trustee in the sense in which that term is generally understood, but in legal contemplation he has an estate for life in its permanent endowment and an absolute in the income derived from the offerings of his followers, subject only to the burden of maintaining the institution." In Parma Nand v. Nihal Chand MANU/PR/0035/1938 : 65 IA 252 (Privy Council) it was held that:
"this circumstance (the descent from Guru to Chela) does not necessarily lead to the conclusion that a property, when acquired by a Mahant, loses its secular character and partakes of a religious character."
This formulation of law was approved by a larger Bench (of five judges) of the Supreme Court in Gurcharan Prasad (supra). The Supreme Court also took note of and approved Raghbir Lala v. Mohammad Said MANU/PR/0002/1942 : AIR 1943 PC 7, where it was held that:
"No doubt if a question arises whether particular property acquired by a given individual was acquired on his own behalf or on behalf of some other person or institution with whom or with which he was connected the circumstance that the individual so acquiring property was a professed ascetic may have some importance. But it is out of question to suppose that a man's religious opinions or professions can make him incapable in law of holding property."
The Court concluded that "we cannot but hold that the properties in their charge were their personal properties unless it be established that any particular item of property was the subject matter of an endowment or a gift for a particular charitable purpose."
16. Math Sauna (supra) was relied upon by the learned Single Judge to find that even an ascetic or sanyasi can hold personal property and that there is no automatic consequence that upon the ascetic's death, the Guru Bhai becomes heir to the estate of the deceased guru:
"All the facts and circumstances must be taken into consideration and on a balancing of the entire evidence it has to be determined whether the property can be said to belong to the Math or deity or is the personal property of the Mahant, the burden of proof resting on the party who makes the claim."
17. Certain legal principles, therefore, emerge, which have to be applied upon the death of a sanyasi or ascetic. Firstly, his entry into the monastic order has the consequence of a civil death. The "normal" line of succession then gets broken; all properties vest in the Math. Secondly, upon his death, the properties held by him are to be treated as the monastic order's property. Thirdly, there is no presumption regarding lack of the sanyasi's capacity to hold property for himself.
18. In the present case, Swami Dr. Kishore Dasji, the probate applicant, deposed during the proceedings. Earlier, in the proceedings before the Tehsildar, Haridwar too, he had deposed. Nothing was elicited from him in the previous deposition to suggest that the late Swami Amar Muniji continued as an Udasin after he associated with the Shree Ram Tirath Mission. In the course of cross-examination on behalf of one of the objectors, he deposed as follows:
"Swami Ram Tirath Mission is registered at the Office of Registrar at Dehradun. This mission is also having 12-14 branches in all over India. We belong to Udasi Sect. Swami Ram Tirath Mission has no concern with the Akharas of Udasi Sect and the property in dispute is exclusive owned by Swami Ram Tirath Mission.
Ques: I put it to you that how many branches of Udasi Sect in the shape of Akhara, Pangat Dhuna and Bakshi in all over India?
Ans: Akhara is having aforesaid branches but rules of Akahra is not applicable to the Mission.
Ques: Is there any guidelines in writing in support of aforesaid statement.
Ans: This question can be replied by the Akhara only.
Ques: What are the procedure to install the Param Adhyaksh of the Mission?
Ans: Paramadhyaksh of the mission is installed on the basis of ability. Registered committee of the mission takes the decision in appointing the Paramadhyaksh of the mission.
Ques: How many members constitute the committee?
Ans: There are 18-19 members of the committee. Some of the members of the committee are from the Sadhu Samaj and others are from disciples."
Upon further cross-examination, on 29-09-2005, the said deponent stated:
"It is incorrect that Swami Ram Tirath Mission belongs to Udasin Sampradaya. I belong to Udasin Sampradaya. Even late Shri Amar Muniji belongs to Udasin Sampradaya. It is incorrect to suggest that the disciples of Udasin Sampradaya do not have right to have personal property."
Quite evidently, the propounder/petitioner denied that he or for that matter late Swami Amar Muniji had continued their association with the Udasin sect; he was equally categorical that the Shri Ram Tirath Mission was not part of the Udasin sect or owned by it. By all accounts, it had an independent existence and was established about 40-50 years before the date the deposition was recorded. The method of choosing the Parmadhyaksha was different from the method of choosing the Mahant to head the gaddi of the Udasin sect, i.e acceptance by the Bhek. It is a matter of evidence that the late Swami Amar Muniji headed the Shri Ram Tirath Mission - after being chosen, on the basis of his ability- in 1977. He also expressly denied the suggestion that Swami Amar Muniji could not personally hold the property because he belonged to the Udasin sect. In the face of such evidence, the onus of proving that the late Swami Amar Muniji continued as an Udasin despite the evidence of his discontinuance from that institution (or sect) was upon the objector/Appellant. No objective material was placed on the record to indicate that Swami Amar Muniji continued as Udasin and that anyone from that sect had any association with him, after he joined the Shri Ram Tirath Mission. Given this state of evidence, the appellant's assertion that Swami Amar Muniji lacked testamentary dispositive capacity to bequeath the suit properties in favour of the Probate petitioner- who was to use it for the Shri Ram Tirath Mission, as its head in express terms of the bequest- is unmerited. This Court, therefore, concurs with the findings of the learned Single Judge on this score.
19. The next point for consideration is whether the evidence on record showed that the making and execution of the will was shrouded in suspicious circumstances for the court to decline the grant of probate to the respondent, for the Shri Ram Tirath Mission. In one of its earlier judgments, the Supreme Court had indicated the standards of evidence necessary to prove a will. In Jaswant Kaur v. Amrit Kaur MANU/SC/0530/1976 : 1977 SCR (1) 925, the Supreme Court summarises its judgment in H. Venkatachala Iyengar v. B.N. Thimmajamma and Ors. MANU/SC/0115/1958 : [1959] Supp. 1 S.C.R. 426. The Court, laid down the following guiding principles, which are valid even now, after almost half a century:-
"1. Stated generally, a will has to be proved like any other document, 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 proof with mathematical certainty.
2. Since Section 63 of the Succession Act requires a will to be 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 deposing as to the circumstances in which the will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the 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 wil. That suspicion cannot 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 will was made, or that those like the wife and children of the testator who 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 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.
5. It is in connection with wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. That test emphasis that in determining the question as to whether an instrument produced before the court is the last will 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 absence 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"
20. The above principles were reiterated and followed by a five judge Bench decision in Shashi Kumar Banerjee v. Subodh Kumar Banerjee, [MANU/SC/0278/1963 : AIR 1964 SC 529]. The Supreme Court held that:
"The principles which govern the proving of a Will are well settled; (see H. Venkatachala Iyengar v.B.N. Thimmajamma [MANU/SC/0115/1958 : AIR 1959 SC 443 : 1959 Supp (1) SCR 426] and Rani Pumima Debi v. Khagendra Narayan Debi. [MANU/SC/0020/1961 : AIR 1962 SC 567 : (1962) 3 SCR 195 : (1962) 2 MLJ (SC) 27] The mode of proving a Will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a Will by Section 63 of the Indian Succession Act. The onus of proving the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court before the court accepts the Will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the court. The suspicious circumstances may be as to the genuineness of the signature of the testator, the condition of the testator's mind, the dispositions made in the Will being unnatural, improbable or unfair in the light of relevant circumstances or there might be Other indications in the Will to show that the testator's mind was not free. In such a case the court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last Will of the testator. If the propounder himself takes part in the execution of the Will which confers a substantial benefit on him, that is also circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the court would grant a probate, even if the will might be unnatural and might cut off wholly or in part near relations..."
These principles were affirmed in numerous subsequent decisions, viz Smt. Jaswant Kaur v. Smt. Amrit Kaur MANU/SC/0530/1976 : AIR 1977 SC 74; Daulat Ram & Ors. v. Sodha & Ors. MANU/SC/0969/2004 : 2005 (1) SCC 40; Meenakshiammal (Dead) Through & Ors. v. Chandrasekaran & Anr MANU/SC/0953/2004 : 2005 (1) SCC 280; Sridevi & Ors. v. Jayaraja Shetty & Ors. MANU/SC/0065/2005 : (2005) 8 SCC 784; and Pentakota Satyanarayana & Ors. v. Pentakota Seetharatnam & Ors. MANU/SC/0819/2005 : (2005) 8 SCC 67, etc.
21. In Gurdial Kaur And Others v. Kartar Kaur MANU/SC/0271/1998 : 1998(4) SCC 384 the Supreme Court had defined the role of the court determining the validity of the will, in the following words:
"The law is well settled that the conscience of the court must be satisfied that the Will in question was not only executed and attested in the manner required under the Indian Succession Act, 1925 but it should also be found that the said Will was the product of the free volition of the executant who had voluntarily executed the same after knowing and understanding the contents of the Will. Therefore, whenever there is any suspicious circumstance, the obligation is cast on the propounder of the Will to dispel the suspicious circumstance.
22. On behalf of the second Objector Swami Gurdev Muniji it was urged that several suspicious circumstances emerged during the evidence which rendered the grant of probate improper and ought to have impelled the learned Single Judge to dismiss the probate petition on the one hand, and grant letters of administration, on the other. Firstly, contradictions in the depositions of the attesting witness Sh. Lalit K. Malhotra given before this Court and the statement given by him in proceedings before the Tehsildar at Haridwar (before whom mutation proceedings were initiated with respect to the land owned by Swami Amar Muniji owned at Haridwar) were highlighted. These were that on the one hand, in the depositions before the Tehsildar Sh. Malhotra had stated that the Will was executed at his Vasant Vihar residence whereas in the deposition before Court he stated that the Will was executed at the office of Swami Ram Tirath Mission at Jhandewalan, New Delhi. Likewise, in the cross-examination before the Court on 19.8.2004 the said witness, Sh. Malhotra deposed that the Will was already prepared when he reached the Ashram/Jhandewalan Office, whereas in the deposition before the Tehsildar, he deposed that the Will was prepared after he reached at the request of Swami Amar Muniji. The other contradiction was that in Court, the witness denied that Swami Amar Muniji had consulted him before the Will was executed. However, in the proceedings before the Tehsildar, there is reference of discussion before making of the Will. Another discrepancy with regard to calling a typist was pointed out: in court, Shri Malhotra was silent on this aspect, whereas details of requisitioning services of the typist were been deposed to in before the Tehsildar at Haridwar. The Single Judge brushed aside these arguments, stating that such contradictions had to be put to the witness, for him to afford a chance to explain himself, as required by Section 145 of the Evidence Act. He noticed the provision, and then held:
"9. Admittedly, during the cross-examination of Sh. Lalit K. Malhotra, only the complete typed statements made by Sh. Lalit K. Malhotra before the Tehsildar at Haridwar were got confronted and exhibited in evidence as Ex.PW1/D2-A and Ex.PW1/D2-B. There is no specific cross-examination of any alleged contradictions brought to the notice of the witness Sh. Lalit.K.Malhotra, and therefore, none of the alleged contradictions which are relied upon on behalf of the objector, can be taken note of by this Court in view of the specific bar contained in Section 145 of the Evidence Act. Section 145 of the Evidence Act serves the salutary purpose that without giving opportunity to a person to explain his statement, no statement of such person can be used against him.
10. I may however state that for various reasons even on merits none of the alleged contradictions would make any difference to the present judgment allowing the testamentary petition. Firstly, except one, really there are no contradictions, and, which I will deal with hereinafter. Secondly, and at best, there can be said to be one contradiction, however, surely it cannot be and it is not the law that one contradiction has the effect of setting aside the entire testimony of the witness, which has to be read as a whole for its overall effect. One contradiction cannot destroy the complete credibility of a witness as is being sought to be argued.
11. So far as the contradiction in the statements before the Tehsildar at Haridwar and before this Court of Sh. Lalit K.Malhotra with respect to the Will being executed at the Vasant Vihar residence as before the Tehsildar at Haridwar, and at Jhandewalan in the deposition in this court, I have read both the statements. The statement of Sh. Lalit K.Malhotra at Haridwar when read as a whole shows that residence of Sh. Lalit K. Malhotra was at Vasant Vihar, but, there is no categorical statement before the Tehsildar Haridwar that Will was executed at his residence. May be reading of the few lines may seem to suggest however, there is no clear cut averment in the statement made before the Tehsildar, Haridwar that the Will was executed not at the office/Ashram at Jhandewalan but at the residence of Sh. Lalit K. Malhotra at Vasant Vihar. Also, there is no contradiction with respect to any alleged consultation for making of the Will as stated before the Tehsildar and that in the statement made in this Court that there was no consultation before making of the Will. A reading of the statement made before the Tehsildar, Haridwar by Lalit K. Malhotra only shows that what is stated by Sh. Lalit K. Malhotra before the Tehsildar is that Swami Amar Muniji expressed a desire to make a Will. Expression of "a desire to make a Will" is different from consultation with respect to the Will. Thus there is no contradiction as is sought to be urged on behalf of the objector no. 2. Even with respect to the calling of a typist at best, the deposition in this case is silent in this regard and silence cannot mean contradiction simply because the statement made before the Tehsildar mentions of a typist having been called for typing the Will. There is a contradiction with respect to the Will already having been prepared as stated by Lalit K. Malhotra in this Court and in the Haridwar statement that he was called by late Swami Amar Muni Ji and the Will was subsequently prepared but, as already been stated above, there are always certain statements made during evidence which may not be the "truth' however, the testimony of a witness has to be seen as a whole inasmuch as the doctrine of falsus in uno falsus in omnibus has no application in India as has repeatedly been held by the Supreme Court in many cases."
This court had the benefit of considering the record, which included the depositions of witnesses in court as well as the statements made before the Tehsildar, Haridwar after the death of late Swami Amar Muniji. The observations of the learned Single Judge, are borne out by the record. As to the place where the Will was executed, Shri Malhotra, one of the attesting witnesses, was silent in the statement recorded by the Tehsildar. He was more express as to the venue of execution of the Will in his deposition before the Court. As far as the other contradictions stressed before the Court are concerned, whether the Will was prepared in the presence of the witness, and whether the typist was called and he typed it out either before hand, or in the presence of the witnesses, do not assume much significance, considering the lapse of time. The Will was prepared on 08.10.1993; the witnesses' statement was recorded by the Tehsildar four years later, i.e. 12.12.1997. The cross-examination of this witness- indeed his deposition in court, in the testamentary proceedings, took place in August, 2004. There was, consequently a time lag of about a decade between the event and the statement before the court. In these circumstances it would but be natural for the witness not to be accurate about all the details. Indeed, too exact a reproduction of the previous statement can be viewed as suspicious. This court is consequently of the opinion that the appreciation of testimony of this witness by the learned Single Judge cannot be faulted. As regards the argument that contradictions between the deposition before the Tehsildar and the statement in court, being put to the witness, this court is in agreement with the findings of the learned Single Judge. Mere ritualized homage to the law is not expected by Section 145; it enjoins that a witness whose court deposition is at variance with a previous statement should be confronted with such previous statement. The reliance by the appellants on the decision in Bhagwan Singh (supra) in our opinion is not apt. The court no doubt ruled that where the previous statement is admitted by the witness, he need not be confronted in the manner indicated in Section 145. However, the court was dealing with a criminal case, and cautioned that the previous statement would be inadmissible if it is hit by Section 288 of the old Criminal Procedure Code (the present equivalent of Sections 161/162 of the Criminal Procedure Code, 1973). The court also observed that: "..It is true the earlier statement could also have been used for contradicting the version given in cross-examination and in- that event, if it is in writing, the limitations imposed by section 145 of the Evidence Act would have to be observed..."
23. As regards the deposition of the second attesting witness, i.e Shri O.P. Wadhwa, it was urged on behalf of the Appellant/objector that this witness had admitted his inability to read or write four and a half years prior to his deposition ie 22.10.2005. The submission was that his affidavit in evidence, affirmed on 10.11.2003 was suspect because it was silent that its contents were read over to him. This variance was held to be inconsequential by the learned Single Judge. This court too, is of the opinion that such circumstance could not have effaced the evidentiary value of the affidavit: particularly because this witness's version agreed with the deposition of the other attesting witness, Mr. Malhotra.
24. The deposition of the attesting witnesses, in this court's opinion clearly establishes that the testator, late Swami Amar Muniji consciously bequeathed the properties for the benefit and use of the Ram Tirath Mission, of which the probate petitioner is the Parmadhyaksha. No suspicious circumstances to excite the suspicion of the court with regard to the execution of the will or any mental incapacity of the testator were brought on the record; the will was executed by exercise of choice, of his own volition free from coercion or any influence. The testator also had the testamentary capacity to bequeath the properties.
25. For the foregoing reasons, there is no infirmity with the findings recorded and the judgment of the learned Single Judge dated 26.07.2012. The Appeals, FAO(OS) 513/2012 and FAO(OS) 26/2013 are, therefore, dismissed, with no order on costs.
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