(A) Limitation Act, 1963 – Article 65 – Limitation – Assailing of Will – Plea of bar of limitation – Held: In the present case, the Mutation was attested on 25.03.1981, whereas the present suit was filed on 25.02.1993, i.e. within 12 years, therefore, the Suit is within limitation. (Para 17, 22)
(B) Indian Succession Act, 1925 – Section 63 – Indian Evidence Act, 1872 – Section 68 – Will – Proof of – The propounder of the will must examine one or more attesting witnesses and the onus is placed on the propounder to remove all suspicious circumstances with regard to the execution of the will. In the abovenoted case, this Court has stated that the following three aspects must be proved by a propounder:-
“(i) that the will was signed by the testator in a sound and disposing state of mind duly understanding the nature and effect of disposition and he put his signature on the document of his own free will, and
(ii) when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator’s mind and his signature as required by law, courts would be justified in making a finding in favour of propounder, and
iii) if a will is challenged as surrounded by suspicious circumstances, all such legitimate doubts have to be removed by cogent, satisfactory and sufficient evidence to dispel suspicion. In other words, the onus on the propounded can be taken to bed is charged on proof of the essential facts indicated therein.” (Para 29)
(C) Indian Succession Act, 1925 – Section 63 – Indian Evidence Act, 1872 – Section 68 – Will – Suspicious Circumstance – Plaintiffs did not plead any suspicious circumstance. The case of the plaintiffs was the denial of the execution of the Will. They never claimed that the Will was shrouded in suspicious circumstances and should be discarded due to suspicious circumstances. Held: There is no requirement of law that the Will is to be written by a professional document writer. Further held that Will is not suspicious because the scribe and witnesses were known to the beneficiaries. (Para 26, 32, 42)
There is a small difference in the spacing, which is normal and it cannot be held that the Will was written unnaturally and the submission that Will has to be ignored due to unequal spacing, is not acceptable. (Para 55)
(D) Will – Exclusion of Natural Heirs – If a suspicious circumstance – Held: The whole idea of executing the will is to interfere with the natural line of succession. As in the present case, the two executors are sons of a half- blood brother of Saroj Bala, whereas the objector’s descendants of a full-blood sister, the disinheritance of the latter could not have been taken as a suspicious circumstance when some of her descendants are even beneficiaries under the will. The Will cannot be held to be bad because of the exclusion of the natural heirs. (Para 49, 50, 51)
(E) Will – Mental Condition – No evidence of the insanity of testator produced – No presumption can be drawn from the old age of testator that he could not understand the nature of the Will. (Para 63, 63)
HIGH COURT OF HIMACHAL PRADESH
2023 STPL(Web) 97 HP
[2023: HHC: 9322]
Sh. Pratap Singh & Ors. Vs. Gurdev Singh & Ors.
RSA No.521 of 2007-Decided on 18-8-2023
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