SUPREME COURT OF INDIA

Before:- B.N. Kirpal and V.N. Khare, JJ.

Civil Appeal No. 4387 of 1988. D/d. 27.1.2000.

Brij Nath Chaudhary - Appellant

Versus

Dilip Kumar and others - Respondents

Succession Act, 1925, Section 61 - Registered will - Validity - Suspicious circumstances as the execution by mentally incapable testator - No evidence on record that testator was lunatic - Held, validity of will could not be challenged.

[Paras 6, 10 and 12]

ORDER

B.N. Kirpal, J. - The point in issue which arises for consideration in this case relates to the validity of the will of one Shri Sita Ram Chaudhary stated to have been executed on 6-11-1956 in favour of the appellant.

2. The appellant, who is stated to be the sister's son of Sita Ram Chaudhary had filed an application before the District Judge, Muzaffarpur for letters of administration in respect of the will dated 6-11-1956 stated to have been executed by the said Sita Ram Chaudhary. Sita Ram Chaudhary had died on 26-3-1958 and he was survived by his wife Laxmi Chaudharain and a sister Jago Chaudharain. The appellant herein, who was a propounder of the will, was the son of Jago Chaudharain.

3. Evidence was led to the effect that the said will had been executed in the presence of attesting witnesses. The will bears the thumb impression of Sita Ram Chaudhary on each page and thereafter when the witnesses had signed in token of the execution of the will the said will was registered with the Sub-Registrar, who had written the said document also testified to the aforesaid facts.

4. Respondents 1 to 3 were the tenants of the premises which by a sale deed dated 13-2-1959 was sold by Laxmi Chaudharain, the propounder's wife, to Smt Rukmani. The respondents herein had filed their objections to the grant of letters of administration and this is what led to the necessity of leading evidence and proving the execution of the will. The case which had been set up by the respondents was that Laxmi Chaudharain had in fact sold the property in question in their favour by a deed dated 5-12-1960.

5. The trial court considered the evidence before it and came to the conclusion that the testator did not suffer from any mental derangement, a plea which had been taken by the respondents herein in their objection to the grant of letters of administration, and gave a categorical finding that the execution of the will had been duly proved. The application for the grant of letters of administration was allowed in the manner prayed for.

6. The respondents then filed an appeal before the High Court. A Single Judge of the High Court accepted that the will had in fact been executed in the manner in which it had been stated and was registered. It, however, reversed the decision of the trial court by observing that the evidence which had been led showed that there were suspicious circumstances and therefore, the order of the trial court was set aside. What exactly were the suspicious circumstances were not clearly spelt out but the judgment does indicate that the suspicious circumstances were in respect of the mental capability of the testator. The learned Judge referred to an Exhibit O-1 which was an indenture bond in favour of the creation of a tenancy. This document was signed by one Ramgovind Chaudhary on behalf of Laxmi Chaudharain. But there is nothing to indicate that this document stated that either the said Sita Ram Chaudhary was a lunatic or that the said document was signed by Laxmi Chaudharain herself. No reliance, therefore, could have been placed on this document.

7. The Single Judge then again referred to a certified copy of a petition in which Sita Ram Chaudhary is stated to have been described as a lunatic but that petition does not bear the signature of Laxmi Chaudharain but is merely signed by a pleader. The learned Judge also refers to a compromise which had been entered into in an appeal filed by the tenant where Laxmi Chaudharain was the respondent. This compromise again does not indicate that Sita Ram Chaudhary was of unsound mind.

8. The letters patent appeal filed by the appellant against the aforesaid decision was dismissed in limine and without any reason. Hence this appeal by special leave.

9. Shri H.L. Agarwal, learned Senior Counsel appearing for the respondents has not been able to draw our attention to any document bearing the signatures or a thumb impression of Laxmi Chaudharain which could have possibly led us to the conclusion that Laxmi Chaudharain had described her husband to be of unsound mind. The judgment of the learned Single Judge in this behalf is full of surmises and conjectures and based on no legal evidence.

10. We are accordingly of the opinion that the Division Bench of the High Court erred in dismissing the appeal and upholding the decision of the learned Single Judge. We are satisfied that a will had been executed by Sita Ram Chaudhary on 26-11-1956 and was registered and there is nothing on record to show that Sita Ram Chaudhary was not a man of sound mind.

11. Before concluding we would like to set at rest another aspect. As has already been noticed the respondents contended that they had become owners of the property in question by virtue of the document dated 5-12-1960 which was executed in their favour. In our opinion, on the facts which exist, such a sale in their favour could not be a valid one. This is for two reasons: the first reason is that the will of Sita Ram Chaudhary was in respect of the property in question and according to the said will this property was to devolve on the appellant. Once the will is proved and it is held that this was validly executed then Laxmi Chaudharain had no authority or title on 5-12-1960 to execute the sale deed in respect of the property in question. Secondly, assuming, though this is not correct, that there was no valid will, then on the death of Sita Ram Chaudhary on 26-3-1958 Laxmi Chaudharain would become the absolute owner of the said property.

12. It is not in dispute that on 13-2-1959 this property was sold by a registered document by Laxmi Chaudharain in favour of Rukmani, the wife of the appellant. This being so, on 5-12-1960 there could not be the sale of the same property by Laxmi Chaudharain in favour of the respondent once that very property had been sold on 13-2-1959 by Laxmi Chaudharain in favour of Rukmani. So whichever way we look at it, whether there was a valid will or there was no valid will the fact remains that under no circumstances can the respondents become the owners of the property in question. The ownership would be either of the appellant or his wife.

13. The appeal is accordingly allowed with costs and the decision of the High Court is set aside.