Tuesday, 16 July 2019

Whether affidavit of examination in chief of witness is admissible U/S 32 of evidence Act if he dies prior to cross examination?

Secondly, even under section 32 of the Evidence Act, the statement of the deceased would become relevant subject to one of the four conditions mentioned in the main section and for purposes of the eight circumstances spelt out in the later part of the section itself. Therefore, unless both these predicates are satisfied, at least ordinarily, the statement of the deceased cannot be treated as "evidence" under the Evidence Act.

23. Section 32 of the Evidence Act comprises two parts. The main section provides that the statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, then such statements may themselves be relevant facts. The second part of section 32, however, states the circumstances, in which, such statements may be regarded as "evidence" of the relevant facts. They are as follows:

"(1) When it relates to the cause of his death.

(2) When it is made in the course of business, such as an entry in books, or acknowledgement or the receipt of any property, or date of a document.

(3) When it is against the pecuniary or proprietary interest of the person making it, or when it would have exposed him to a criminal prosecution or to a suit for damages.

(4) When it gives opinion as to a public right or custom or matters of general interest and it was made before any controversy as to such right or custom had arisen.

(5) When it relates to the existence of any relationship between persons as to whose relationship the maker had special means of knowledge, and it was made before the question in dispute arose.

(6) When it relates to the existence of any relationship between persons deceased and is made in any will or deed or family pedigree, or upon any tombstone or family portrait, and was made before the question in dispute arose.

(7) When it is contained in any deed, will, or other document.

(8) When it is made by a number of persons and expresses feelings relevant to the matter in question."

24. In the present case, the first part of section 32 of the Evidence Act was no doubt attracted because Mr. Desai died after filing his affidavit in lieu of examination-in-chief, but before his cross-examination could even commence. However, section 32 of the Evidence Act does not render the statements made by persons who cannot be called as witness admissible in all cases. The statements themselves may be regarded as "evidence" or relevant facts in the eight circumstances referred to in the second part of section 32 of the Evidence Act. The impugned judgment and order does not advert to the circumstances in second part of section 32 of the Evidence Act.

25. The statements in Mr. Desai's affidavit in lieu of examination-in-chief neither relate to cause of his death nor can they be said to be statements made in the course of his business. The statements can neither be said to be against Mr. Desai's pecuniary or proprietary interest nor can it said that such statements would have exposed to him some criminal prosecution or suit for damages. The statements obviously do not relate to any opinion as to public right or custom or matters of any general interest. The statements also do not relate to existence of any relationship between persons as to whose relationship Mr. Desai had any special means of knowledge. The statement in this case, was not made any will or deed or family pedigree in relation to existence of any relationship between persons deceased before any question or dispute arose. Mr. Desai's statement in the present case, was also not some statement and contained in any deed, will or other document. Finally, this is also not a case of statements made by several persons and expresses feelings relevant to the matter in question. This is the second reason why the statements in Mr. Desai's affidavit in lieu of examination in chief could not have been treated as "evidence" under the Evidence Act.

IN THE HIGH COURT OF BOMBAY

Appeal No. 333 of 2017 in Testamentary Suit No. 28 of 1995

Decided On: 22.10.2018

 Anuradha Anil Bhagwat Vs. Kirit Navnitlal Damania and Ors.

Hon'ble Judges/Coram:
Abhay Shreeniwas Oka and M.S. Sonak, JJ.

Citation: AIR 2019 Bom 41


1. Heard the learned counsel for the parties.

2. This appeal is directed against the judgment and order dated 9th June, 2016 disposing of Testamentary Suit No. 28 of 1995 in Testamentary Petition No. 41 of 1995 in relation to the will dated 4th July 1993 said to have been left by Shashikala Baburao Alandkar ("Shashikala").

3. Since, it was pointed out to us that the first respondent to this appeal is about 90 years of old, we had, by our order dated 28th August, 2018, made it clear that this appeal will be disposed of, finally at the stage of admission itself.

4. Accordingly, the appeal is admitted and with the consent of and at the request of the learned counsel for the parties, the appeal is taken up for final disposal.

5. The appellants are the original defendants and the respondents are the original plaintiffs in Testamentary Suit No. 28 of 1995. For the sake of convenience, we shall refer to the parties by their respective positions in the suit. Accordingly, the appellants will be referred to as the defendants and the respondents will be referred to as the plaintiffs, even though, one of the plaintiffs, i.e., Mr. Shantram V. Pikale, has already expired during pendency of this appeal.

6. The plaintiffs instituted Testamentary Petition No. 41 of 1995 seeking probate of will dated 4th July, 1993 said to have been left behind by Shashikala, who died on 27th February, 1994. In the will, the two plaintiffs were named as executors. Shashikala was unmarried and had no children. The defendants, who had filed caveat, are the children of Anuradha Bhagwat nee Alandkar, daughter of Shashikala's brother Padmakar Baburao Alandkar.

7. The execution of the will was said to be witnessed by Mr. R.G. Shenai and Mr. G.V.P. Desai. Mr. R.G. Shenai filed an affidavit in support of the Testamentary Petition, but died before the evidence would commence in the suit. The other attesting witness Mr. Desai did file an affidavit in lieu of examination-in-chief in the suit, however, he too died before his cross-examination could be recorded.

8. On behalf of the plaintiffs, the following came to be examined:-

(a) Kirit Navnitlal Damania (PW1) - the plaintiff No. 1 and one of the executors to the will;

(b) Narayan Hari Shibe (PW2) - a watchman in the building where Shashikala lived;

(c) Prema Mazumdar (PW3) - Shashikala's neighbour in the same building and also one time Secretary of the Society which manages the affairs of the building.

9. No evidence was led on behalf of the defendants, even though, they were afforded opportunity to lead the same.

10. By the impugned judgment and order, learned Single Judge has held that the will was validly executed by Shashikala and the case of the defendants that Shashikala was under the control of the plaintiffs was not correct. Accordingly, the learned Single Judge decreed the suit and directed a probate to be issued having effect through out the State of Maharashtra.

11. Mr. Parashurami, the learned counsel for the appellant, submits that there is no legal evidence on record to prove the execution of will dated 4th July 1993. He submits that none of the attesting witnesses were examined and the learned Single Judge erred in treating as evidence and taking into consideration the affidavit/affidavit in lieu of examination-in-chief of the attesting witnesses by relying upon the provision of section 32 of the Indian Evidence Act, 1872 (Evidence Act). Mr. Parashurami submits that such affidavits do not constitute evidence under section 3 of the Evidence Act. Further, since, the contents of such affidavits were never tested by cross-examination, the same could not have been relied upon to hold that the will in question was indeed and validly executed by Shashikala.

12. Mr. Parashurami submits that the learned Single Judge has failed to take note of all the suspicious circumstances attendant to the so called execution of the will. He points out that the evidence on record bears out that Shashikala died of severe burn injuries and last rites were administered by police authorities without any intimation to the relatives or even plaintiffs. He points out that the presence of PW-2 and PW-3 at the time of alleged execution of the will was extremely doubtful. He points out that PW-3 had in fact filed an affidavit dated 15th November 2010 in the suit/petition, in which she had only stated that when she was the Secretary of the Society, Shashikala had filed a nomination form nominating the plaintiffs as her nominees. However, in the said affidavit, there was absolutely no mention about the execution of the will dated 4th July 1973 or any other will for that matter. He points out that only much later, when evidence of both the parties was closed that a notice of motion was taken out seeking permission to examine PW-3 on the alleged ground that she was present at the time of execution of the will. He points out that such motion was disposed of by order dated 24th July 2015, which contains no reasons whatsoever. He submits that PW-2 and PW-3 were got up witnesses and the learned Single Judge has failed to appreciate the omissions and contradictions in their deposition. For all these reasons, Mr. Parashurami submits that the impugned judgment and order deserves to be set aside.

13. Mr. Parashurami relied upon the decisions in Kalyan Singh Vs. Chhoti and others - MANU/SC/0258/1989 : (1990) 1 SCC 266, Babu Singh Vs. Ram Sahai, and Ramchandra Rambux Vs. Champabai and others - MANU/SC/0304/1964 : AIR 1965 Supreme Court 354 in support of his aforesaid contentions.

14. Mr. Thakkar, learned senior advocate for the plaintiffs-respondents, countered each of the aforesaid contentions. He points out that the affidavit in support of the caveats filed by the defendants had never seriously disputed the execution of the will. The only ground raised and that too on the basis of vague pleadings was that the plaintiffs were controlling Shashikala and exerted some undue influence on her in order to secure the execution of will, which excludes her legal representatives but benefits the plaintiffs-executors. He therefore, points out that there is and there can be no serious dispute as regards the valid execution of the will by Shashikala. He points out that the onus of establishing undue influence was clearly upon the defendants. Since the defendants chose not to lead any evidence in the matter, such onus obviously remained undischarged. Mr. Thakkar defended the impugned judgment and order for the reasoning spelt out in it and submitted that this appeal be dismissed.

15. Mr. Thakkar also made a statement that the surviving plaintiff, i.e., Kirit Navnitlal Damania had instructed him to state that he had no intention whatsoever of recovering any professional fees from the estate left behind by Shashikala, even though, the will very clearly authorised such a recovery/appropriation.

16. Taking into consideration the rival contentions, the following points arise for determination in this appeal:-

(a) Whether the affidavit/affidavit in lieu of examination-in-chief of the attesting witnesses could have been read as "evidence" in support of the finding that the will was legally and validly executed by Shashikala ?

(b) Whether the evidence on record and the surrounding circumstances attendant to the execution of the will, create suspicion regards the very execution or in any case valid execution of the will ?

(c) Whether the execution of the will is vitiated on account of any undue influence exerted by the plaintiffs over Shashikala ?

17. Insofar as the first point for determination is concerned, there is no dispute that one of the attesting witness Mr. Shenai had filed an affidavit in support of Testamentary Petition No. 41 of 1995. However, even before the trial in the suit could commence, Mr. Shenai expired and therefore, it was neither possible to examine Mr. Shenai nor to file his affidavit in lieu of examination-in-chief. The second attesting witness Mr. Desai did file affidavit in lieu of examination-in-chief at the trial. However, Mr. Desai expired before his cross-examination could commence.

18. From the perusal of the impugned judgment and order, it cannot be said that the learned Single Judge has treated the affidavit of Mr. Shenai which accompanied the testamentary petition as "evidence" or relied upon the same in returning the finding that the will in-question was validly executed. However, insofar as the affidavit in lieu of examination-in-chief tendered by Mr. Desai is concerned, the learned Single Judge at paragraphs 8 and 36 has observed as follows:

"8. On this last aspect of the matter, and so as to get it out of the way at the beginning, I believe it is reasonably well-settled in law that in a situation like this, where a witness is unavailable for cross-examination because he has passed away in the meantime, his evidence is not to be entirely disregarded for that reason. However, it is for the Court to decide having regard to all surrounding circumstances and the other evidence as well what weightage, if any, should be given to that evidence and what should be taken as its probative value. This is, in substance, the purport of Section 32 of the Evidence Act. [(Krishan Dayal vs. Chandu Ram, MANU/DE/0078/1969 : ILR (196) Del 1090, 1096; per H.R. Khanna J (then sitting singly as a Judge of the Delhi High Court)].

36. In any event, I do not think that this is so material as to warrant a refusal of the probate. After all, it is not as if we have before us only the evidence of Mrs. Mazumdar. There is also, as Mr. Thakkar correctly points out, the evidence of Mr. Desai who filed an Affidavit in lie of examination-in-chief and although it is true that this could not be tested in cross-examination because he had by then passed away, this does not completely efface its probative value. In his Affidavit (Vo. C, pp. 116-120), Mr. Desai in terms says in paragraph 12 (p. 119) that Narayan was present at that time. The preponderance of probabilities is that from the two educated and literate people, Mr. Desai and Mrs. Mazumdar, we have evidence unshaken of Narayan's presence. But it is Narayan who, perhaps in a state of confusion or mistake, gave an answer that is inconsistent with these versions and his own examination-in-chief. This is altogether too slender a thread for Mr. Damle to hang his entire defence on."

19. From the aforesaid, it does appear that the learned Single Judge had placed some limited reliance upon Mr. Desai's affidavit in lieu of cross-examination by reference to the provisions of section 32 of the Evidence Act and the ruling of the leaned Single Judge of the Delhi High Court in Krishna Dayal vs. Chandu Ram - MANU/DE/0078/1969 : ILR (1969) Del 1090.

20. According to us, Mr. Desai's affidavit in lieu of examination-in-chief could not have been read as "evidence" in the present case for at least two reasons.

21. Firstly, an affidavit is not "evidence" within the meaning of section 3 of the Evidence Act and the same can be used as "evidence" only if, for sufficient reasons, the Court passes an order under Order 18 of the Code of Civil Procedure, 1908 (CPC). Thus, the filing of an affidavit of one's own statement, in one's own favour, cannot be regarded as sufficient evidence for any Court or Tribunal, on the basis of which it can come to a conclusion as regards a particular fact situation. (See: Ayaaubkhan N. Pathan vs. State of Maharashtra - MANU/SC/0939/2012 : (2013)4 SCC 465, Sudha Devi vs. M.P. Narayanan - MANU/SC/0459/1988 : (1988) 3 SCC 366 and Range Forest Officer vs. S.T. Hadimani - MANU/SC/0115/2002 : (2002) 3 SCC 25).

22. Secondly, even under section 32 of the Evidence Act, the statement of the deceased would become relevant subject to one of the four conditions mentioned in the main section and for purposes of the eight circumstances spelt out in the later part of the section itself. Therefore, unless both these predicates are satisfied, at least ordinarily, the statement of the deceased cannot be treated as "evidence" under the Evidence Act.

23. Section 32 of the Evidence Act comprises two parts. The main section provides that the statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, then such statements may themselves be relevant facts. The second part of section 32, however, states the circumstances, in which, such statements may be regarded as "evidence" of the relevant facts. They are as follows:

"(1) When it relates to the cause of his death.

(2) When it is made in the course of business, such as an entry in books, or acknowledgement or the receipt of any property, or date of a document.

(3) When it is against the pecuniary or proprietary interest of the person making it, or when it would have exposed him to a criminal prosecution or to a suit for damages.

(4) When it gives opinion as to a public right or custom or matters of general interest and it was made before any controversy as to such right or custom had arisen.

(5) When it relates to the existence of any relationship between persons as to whose relationship the maker had special means of knowledge, and it was made before the question in dispute arose.

(6) When it relates to the existence of any relationship between persons deceased and is made in any will or deed or family pedigree, or upon any tombstone or family portrait, and was made before the question in dispute arose.

(7) When it is contained in any deed, will, or other document.

(8) When it is made by a number of persons and expresses feelings relevant to the matter in question."

24. In the present case, the first part of section 32 of the Evidence Act was no doubt attracted because Mr. Desai died after filing his affidavit in lieu of examination-in-chief, but before his cross-examination could even commence. However, section 32 of the Evidence Act does not render the statements made by persons who cannot be called as witness admissible in all cases. The statements themselves may be regarded as "evidence" or relevant facts in the eight circumstances referred to in the second part of section 32 of the Evidence Act. The impugned judgment and order does not advert to the circumstances in second part of section 32 of the Evidence Act.

25. The statements in Mr. Desai's affidavit in lieu of examination-in-chief neither relate to cause of his death nor can they be said to be statements made in the course of his business. The statements can neither be said to be against Mr. Desai's pecuniary or proprietary interest nor can it said that such statements would have exposed to him some criminal prosecution or suit for damages. The statements obviously do not relate to any opinion as to public right or custom or matters of any general interest. The statements also do not relate to existence of any relationship between persons as to whose relationship Mr. Desai had any special means of knowledge. The statement in this case, was not made any will or deed or family pedigree in relation to existence of any relationship between persons deceased before any question or dispute arose. Mr. Desai's statement in the present case, was also not some statement and contained in any deed, will or other document. Finally, this is also not a case of statements made by several persons and expresses feelings relevant to the matter in question. This is the second reason why the statements in Mr. Desai's affidavit in lieu of examination in chief could not have been treated as "evidence" under the Evidence Act.

26. Krishan Dayal (supra) makes no direct reference to the provisions of section 32 of the Evidence Act. In any case, in the said matter, the Court was concerned with the statement of one Baj Ram (DW-2), who was examined in chief before the Court Commissioner but died before he could be subjected to any cross-examination. It was admitted case of the parties that Baj Ram used to maintain the accounts of the partnership business. Baj Ram, in his examination-in-chief before the Commissioner recorded on 15th September 1957 stated that the books for the first three years of the partnership business were in the possession of the plaintiff whilst the books for Sambats 2003 and 2004 were in possession of defendant No. 1. Although, the learned Single Judge of the Delhi High Court had made no reference to the provisions of section 32 of the Evidence Act, it is possible that Baj Ram's statement could be held as admissible under section 32 of the Evidence Act because such statement fulfilled the predicates of clause (2) in that they related to his ordinary course of business and in particular they concerned entries made by him in books kept in ordinary course of business, or in the discharge of professional duty. This decision, therefore, mainly turns on the distinguishing feature that a witness Baj Ram used to admittedly maintain the accounts of the partnership business and the statement made by him was in relation to such ordinary course of business and in particular, in relation to books kept by him in such ordinary course of business. Such is admittedly not the position in the present case. Hence, question (a) is answered in negative. As can be seen from the findings recorded by us in the subsequent part, the decision of the learned Single Judge is not based only on the affidavit of the deceased witness. Therefore, this finding will have no bearing on the outcome of this appeal.

27. Insofar as the second point which arises for determination is concerned, it is necessary to note that the affidavit in support of the caveats lodged by the defendants does not allege that the will was not at all executed by Shashikala. The allegation is that Shashikala was under control of the plaintiffs and the plaintiffs taking full advantage of her sickness and old age, used their position as legal advisors of Shashikala for their own benefit. It is alleged that the plaintiffs in breach of the trust reposed in them by Shashikala got themselves appointed as the guardians of her interests.

28. The will no doubt appoints the two plaintiffs as executors and directs the executors to take possession of all Shashikala's estates, to provide for payments of all debts and professional and legal expenses of the plaintiffs for all the legal work that she said they had done for her for many years. The will authorises the executors, in their discretion to sell or dispose of the flat, car and garage and thereafter to set aside a small amount for the purposes of management of a temple. The will bequeaths Shashikala's estate to one or more institutions looking after welfare and interests of old and aged persons. The executors have been given the authority to select such institutions and decide on the amounts that could be paid to them. A bequest of Rs. 1 lakh was made to Mr. Devrukhkar (Care Giver) and the Ambassador car is left to one Mr. Krishna Dhanawade (chauffeur).

29. From the aforesaid bequest, we agree with the learned Single Judge that this is not a case where the plaintiffs can be said to have been benefited from the estate left behind by Shashikala. As already noted, Mr. Damania has already declared that he has no intention whatsoever of recovering any professional fees from the estate left behind back by Shashikala.

30. Mr. Parashurami was not quite clear as to whether the so called suspicious circumstances referred to by him create some suspicion as regards the very factum of the execution of the will by Shashikala or whether his case was that such circumstances are indicative of exercise of undue influence by the plaintiffs. Just as variance between pleadings and proof is unacceptable, so also, there can be no variance between the contentions raised and the pleadings on record. Since, there are no clear pleadings to the effect that the will in question was not even executed by Shashikala, there is no question of entertaining any contentions to this effect.

31. In any case, the circumstance that Shashikala died of burn injuries or that a post-mortem was necessitated or that it was the police authorities who cremated her after about 30 days from her unfortunate demise on 27th February 1994 are not circumstances which raise suspicion about the very execution of the will by Shashikala on 4th July 1993.

32. Similarly, the circumstance that Prema Mazumdar (PW-3) had earlier filed an affidavit and in such affidavit, there was no reference to the execution of the will, by itself or even otherwise does not render the circumstances surrounding the execution of the will, suspicious.

33. Prema Mazumdar (PW-3) did admit filing the affidavit earlier in the proceedings. Though, this affidavit, by itself was not 'evidence', the statements therein could have been regarded as previous statements of PW-3 once she stepped into witness box to depose to her statements in her affidavit in lieu of examination-in-chief filed later. Therefore, if the defendants wished to draw some mileage from the so called omission in the previous statement, then it was necessary that they not only confront PW-3 with such previous statement, but further, offer her opportunity to explain the so called omission. Admittedly, this was never done. Therefore, at this stage, there is no question of either treating the previous affidavit as some substantive evidence or inferring any suspicious circumstances based upon any alleged omission therein.

34. Section 145 of the Evidence Act, in terms provides that a witness may be cross-examined as to previous statements made by him in writing or reduced into writing and relevant to the matter in question, without such writing being shown to him, or being proved; but if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. In the present case, as noted earlier, the salutary procedure prescribed in section 145 of the Evidence Act, was admittedly not followed. Neither was the attention of PW-3 drawn to the previous affidavit nor was PW-3 offered opportunity to explain the so called omission.

35. In response to Mr. Parashurami's contention based upon so called omission in PW-3's previous affidavit, Mr. Thakkar explained the purpose of the previous affidavit was only to prove that Shashikala, even previous to the execution of the will, had already appointed the two plaintiffs as nominees, in respect of her apartment. At that stage, since the attesting witnesses were alive, there was no reason to examine PW-3 on the factum of execution of the will, even though she was very much present at the time of execution. At the appellate stage, there is no question of accepting or rejecting such explanation. Suffice to note that it is precisely in order to avoid such a situation that the law specifically requires that if the previous statement of a witness is intended to be used to contradict such witness, then his attention must be drawn to such statement so that such witness is in a position to explain the contradiction or omission as the case may be. In the absence of such procedure being followed, Mr. Parashurami's contention based on some alleged omission in the previous statement, cannot prevail.

36. In the present case, even after total exclusion of Mr. Desai's affidavit in lieu of examination-in-chief, the evidence of PW-1, PW-2 and PW-3 is more than sufficient to prove the valid execution of the will in question. Section 68 of the Evidence Act, no doubt requires examination of at least one of the attesting witnesses in order to prove a will of the present nature, provided of course such witness be alive, subject to the process of the Court and capable of giving evidence. Since both the attesting witnesses in the present case died before the they could be examined or effectively examined, the execution of the will was required to be and has been proved in terms of section 69 of the Evidence Act.

37. Section 69 of the Evidence Act provides that if no attesting witnesses can be found, the execution of the document required by law to be attested, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person.

38. On the aspect of the signature of the person executing the document being in the handwriting of that person, i.e., Shashikala, there was neither any serious challenge nor can it be disputed that there is ample evidence in support. PW-1, Legal Advisor and Solicitor of Shashikala, has not only identified the signature and handwriting of Shashikala on the will in question, but in para 7 of his affidavit in lie of examination-in-chief has relied upon two documents, which also bear Shashikala's signature. In response to the examination in chief in paragraph 7 of the affidavit, the cross-examination proceeded thus:

"13. Q. (Shown paragraph 7 of the evidence affidavit.) Can you please specify which of the two documents of the Plaintiff's compilation you have referred to in this paragraph ?

Ans. I was referring to the letters at Sr. Nos. 1, 2 and 3 and the nomination at Sr. No. 5 of the compilation as also the Will itself.

No further cross-examination. No re-examination.

Witness is discharged."

39. From the aforesaid it is quite clear that the evidence of PW-1 on the question of signature of Shashikala on the will in question has virtually gone unchallenged.

40. PW-3 has also deposed that she was familiar to Shashikala's signature and on 4th July 1993 she actually witnessed Shashikala signed/execute the will in question. Again, this position was not seriously challenged in the course of cross-examination.

41. PW-3 has also deposed that she witnessed Mr. Desai, one of the attesting witnesses actually sign/attest the will in question. The learned Single Judge has quite rightly noted that the Society Nomination Form by which the two plaintiffs were appointed as nominees in respect of Shashikala's apartment also bears the signature of Mr. Desai as one of the witnesses and it is this Form with which PW-3 was quite familiar with. PW-3, as noted by the learned Single Judge had remembered with great clarity that one of the two Mr. Shenai or Mr. Desai was common to both writings, i.e., Exhibit-A (the Will) and Exhibit-B (Nomination Form). We agree that this evidence was sufficient to prove that the attestation of Mr. Desai to the will in question, was in his handwriting.

42. Based upon the aforesaid evidence and even without the necessity to advert to the evidence of PW-2, the execution of the will in question stands validly proved. The aforesaid evidence is sufficient to discharge the requirements of section 69 of the Evidence Act in a matter of this nature.

43. Moreover, as noted earlier, even in the affidavit in support of the caveat filed by the defendants, there is no serious challenge to the very execution of the will by Shashikala. In paragraphs 5(b) and 5(c) of the affidavit, all that was stated was as follows:

"(b) Both the Petitioners mis-used their authority and in breach of the trust vested in them by the deceased, they the Petitioners utilised their, power and authority to take the benefit from the suit property by nominating builders and developers and getting the property developed by jeopardizing the rights of the Caveators herein. The Caveators state that the said deceased was intelligent and qualified woman, and the Caveators are of the certain opinion that the will would not have been executed in the manner it has been done by the Petitioners. .... .... .... .... .... .... .... .... .... .... .... ....

(c) It is submitted that the Will has been attested by complete strangers and not by family members who are large in numbers, as the deceased died in very strange circumstances."

44. In this state of pleadings, nothing much turns upon the slight discrepancy in the deposition of PW-2 where he says that he did not return to Shashikala's apartment after informing Mr. Desai, one of the attesting witnesses and Shashikala's next door neighbour that he was wanted at Shashikala's apartment to witness the execution of the will in question. We also agree with the learned Singe Judge that it is impermissible to attempt to contradict the statement of one witness (PW-3 in the present case) with the statement of another witness (PW-2) without even inviting the attention of PW-3 to PW-2's deposition and offering her an opportunity to deny or explain the same. In any case, variance between pleadings and proof is impermissible. So also, and even more, there can be no variance between pleadings and oral contentions made across the bar. In the present case, it is significant to note that the defendants did not even step in the witness box or lead any evidence in support of their vague pleadings in the affidavit in support of their caveat.

45. The rulings relied upon by Mr. Parashurami state that the burden of proving that a will is genuine lies on the person claiming rights on the basis of such a will. Further, the Courts are bound to take note of suspicious circumstances. In all cases in which a will is prepared under circumstances which arouse the suspicion of the Court that it does not express the mind of the testator, or that it was prepared under highly suspicious circumstances, it is for the propounder of the will to remove that suspicion. In the present case, the plaintiffs have discharged he burden which the law imposed upon them. This is also not a case where the will can be said to have been prepared under suspicious circumstances. The surrounding circumstances are also not such as to arouse any suspicion. Accordingly, the second point for determination will have to be answered against the defendants.

46. Insofar as the third point for determination is concerned, the onus was clearly upon the defendants to establish that the plaintiffs had exerted any undue influence proof over Shashikala. The defendants have not led any evidence to discharge this onus. The requirement in law is that the parties who allege exertion of undue influence must prove by cogent evidence that the testator desired something different from what is reflected in the will. In the present case, there is no evidence that the plaintiffs exerted any control as such upon Shashikala. In any case, even the exercise of some influence is not sufficient to make out a case of 'undue influence'. Accordingly, the third point will have to be determined against the defendants.

47. For all the aforesaid reasons, we dismiss this appeal. There shall however, be no order as to costs.

48. Pending notices of motion do not survive and the same are disposed of accordingly.


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