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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6388 OF 2009

Dr. Prakash Soni      ..Appellant

Versus

Deepak Kumar and another ..Respondents

J U D G M E N T

MOHAN M. SHANTANAGOUDAR

1. This  appeal  arises  out  of  the order  dated 20.04.2006

passed by the High Court of Madhya Pradesh,  Indore Bench in

Civil Revision No. 63/2005, reversing the order dated 8.1.2005

passed by the Additional  District  Judge,  Narsinghgarh,  District

Rajgarh,  Madhya  Pradesh  in  Civil  Appeal  No.  80-A/2004,

consequently restoring the order dated 11.07.2002 passed by the

Court of the Civil Judge, Class-I, Narsinghgarh, District Rajgarh,

Madhya Pradesh in Succession Case No. 3/2002.

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2. Brief facts leading to this appeal are, that the appellant

herein  is  the  husband  of  Srimati  Mooli  Swarnkar,  who  was

working  as  an  Assistant  Teacher  in  Government  Girls  Higher

Secondary  School  Narsinghgarh,  District  Rajgarh,  Madhya

Pradesh; Srimati Mooli Swarnkar died on 18.11.2001, on account

of liver cancer and disease of Hepatitis ‘B’.  The married couple,

i.e, the appellant and his wife – Srimati Mooli Swarnkar did not

have any issue, and hence the appellant being her husband and

as her only successor claimed to be entitled to receive the retiral

benefits,  such  as,  Pension,  G.P.F.,  Death-cum-Retirement

Gratuity, Family Welfare Fund, Group Insurance Scheme account

etc.

Hence,  the appellant filed an application on 7.5.2002

before  the  Civil  Judge,  Class-I,  Narsinghgarh,  District  Rajgarh,

Madhya Pradesh, under Section 372 of the Indian Succession Act

(hereinafter  referred to  as  ‘the Act’),  for  grant  of  a  succession

certificate of his wife late Srimati Mooli Swarnkar, so as to entitle

him  to  receive  the  afore-mentioned  retiral  benefits.   The

respondents  herein,  who  were  the  sons  of  the  brother  of  late

Srimati  Mooli  Swarnkar  also  laid  their  claim in  respect  of  the

afore-mentioned retiral benefits of late Srimati Mooli Swarnkar,

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on the basis of the will,  said to have been executed by her on

18.11.2001, i.e., on the day of her death.  In other words, the

respondents filed counter claim in the application filed by the

appellant under Section 372 of the Act.   The respondents further

claimed,  that  the  deceased  had  submitted  nomination  forms

dated 16.11.2001 (Ex. D/1 to D/5) to her employer in which the

names of the respondents were mentioned as her nominees.

3. Learned Civil Judge, Narsinghgarh vide his order dated

9.10.2004 passed in  Succession Case No.3/2002 dismissed the

application  filed  by  the  appellant  for  grant  of  a  succession

certificate,  and  allowed  the  counter  claim  put  forth  by  the

respondents.  Against the said order passed by the Civil Court,

the  appellant  preferred  Civil  Appeal  No.  80-A/2004  before  the

Additional District Court, Narsinghgarh, which came to be allowed

on  8.1.2005  and  consequently  the  order  of  the  Civil  Court,

dismissing the claim of the appellant and allowing the counter

claim of the respondents was set aside.  In effect, the Additional

District  Judge,  Narsinghgarh ordered  for  grant  of  a  succession

certificate  to  the  appellant.   However,  the  judgment  of  the

Additional  District  Court  was  set  aside  by  the  High  Court  of

Madhya  Pradesh,  as  mentioned  supra,  in  Civil  Revision  No.

63/2005 on 20.04.2006, and the order of the Civil Court rejecting

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the application for grant of a succession certificate filed by the

appellant was upheld.  Hence, this appeal.

4. Learned advocates on both sides have taken us to the

material  available  on  the  record.  Learned  counsel  for  the

appellant submitted that the signature of Srimati Mooli Swarnkar

affixed on Ex. D/6 (will in question), does not correspond to the

signatures affixed on certain other documents.  Learned counsel

for the appellant contended, that the signatures of Srimati Mooli

Swarnkar found on Ex. P/4, D/7 and D/8  do not tally with the

signature  found  on  Ex.  D/6  (disputed  signature).   He  further

submitted that it was not at all possible for the deceased Srimati

Mooli  Swarnkar  to  execute  the  will  on  the  date  of  its  alleged

execution, inasmuch as she was suffering from liver cancer and

Hepatitis  ‘B’  disease  and  was  not  in  a  position  to  take  any

decision on her own free will and immediately after the execution

of  the  will,  she  expired.   The  execution  of  the  alleged  will  is

surrounded  by  suspicious  circumstances,  and  such  suspicious

circumstances are not explained by the respondents.

Per  contra,  learned  counsel  for  the  respondents

contended,  that  the Civil  Court  as  well  as  the High Court  are

justified in concluding that the will is duly proved, inasmuch as

one of the attesting witnesses who was alive during the relevant

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point of time had supported the execution of the document in

question.   Since,  there  is  no  suspicious  circumstance,  learned

counsel for the respondents prays for upholding the order of the

High Court.

5. The  entire  case  centers  around  the  proof  of  due

execution  of  the  alleged  will.   Ex.  D/6  is  said  to  have  been

executed by the deceased Srimati Mooli Swarnkar on 18.11.2001.

Indisputably,  the  deceased  Srimati  Mooli  Swarnkar  died  on

18.11.2001.  The nomination forms in favour of the husband –

appellant  herein  were  executed  by  the  deceased  on  3.3.1992.

Similarly,  nomination  with  regard  to  Provident  Fund  and

Death-cum-Retirement  Gratuity  were  also  executed  by  the

deceased in favour of the appellant.  However, just two days prior

to her death, i.e., on 16.11.2001 at about 7 p.m., the deceased

allegedly executed  a nomination form as per Ex.D/1 in favour of

the respondents, and that too in Care Well Hospital at Bhopal.

Similarly,  other  documents  produced  by  the  respondents  (Ex.

D/2, D/3, D/4 and D/5) were also executed by the deceased in

favour of the respondents at the very point of time.  The deceased

allegedly  executed  the  will  in  question  before  the  Oath

Commissioner on 18.11.2001 as per Ex.D/6 in the early hours of

18.11.2001.  The letter allegedly written by the deceased Srimati

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Mooli Swarnkar as per Ex. D/7 discloses that she has informed

the authorities that the appellant has been asking money from

her  and  he  had  beaten  her  quite  often,  and  hence  she  is

cancelling the nomination executed in favour of  the appellant,

and then she has cancelled the nomination made in favour of the

appellant.

6. Shri  Dhannalal  Mahavar  –  respondents’  witness  has

deposed  that  on  18.11.2001  at  about  7  to  8  a.m.,  deceased

Srimati Mooli Swarnkar executed the will and that he signed the

will  as  an  attesting  witness.   The  witnesses  on  behalf  of  the

respondents  have  also  deposed,  that  there  was  no  cordial

relationship between the appellant and the deceased for ten years

prior to her death.  They have also deposed about the cancellation

of the nomination made earlier in favour of the appellant.   

7. Curiously, the High Court has not at all discussed the

case as put forth by the appellant.  We find that the approach of

the  High  Court  is  one  sided.  The  non-consideration  of  the

material placed by the appellant herein before the High Court has

constrained us to verify the entire evidence to satisfy our judicial

conscience.  On consideration of the entire material on record, we

find that the will is surrounded by suspicious circumstances.

8. Ex. P/4 discloses that Srimati Mooli Swarnkar attended

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the  school  as  a  teacher  up  to  1.10.2001,  and  thereafter  she

remained on medical  leave.  It  is  also  not  in  dispute,  that  the

deceased was suffering from liver cancer and Hepatitis ‘B’ disease.

Admittedly,  the  will  was  executed  between  7  to  8  a.m.  on

18.11.2001, and after few hours she expired on the very same

date.  The attesting witness of Ex. D/6, namely, Shri Dhannalal

Mahavar (NAW/02) has admitted in the cross-examination that he

is a government hospital compounder.  The deceased was being

treated  in  a  hospital  at  Bhopal.   At  about  5.30  a.m.  on

18.11.2001,  a  telephone  call  was  received  by  Shri  Brijmohan

Soniji,  who is  the  father  of  respondent  no.1,  and immediately

thereafter he arrived at the site, i.e. in the hospital at Bhopal.  It

is  admitted  by  the  attesting  witness  and  other  witnesses  who

were allegedly present at the time of the execution of the will

that the hands of Srimati Mooli Swarnkar were shivering while

signing Ex. D/6.  At that point of time, Srimati Mooli Swarnkar

was  very  weak  and  she  was  administered  drip.   The  health

condition of Srimati Mooli Swarnkar had deteriorated when the

drip  was  being  administered.   Therefore,  in  our  considered

opinion, the first appellate Court was justified in concluding that

the propounder of the will was not successful in proving that the

will was executed in a healthy state of mind as well as body of the

deceased and without any pressure.  The will  is surrounded by

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suspicious circumstances mentioned supra.  Similar observation

needs to be made in respect of nomination forms also, which were

allegedly  executed  by the  deceased  just  prior  to  her  death on

18.11.2001, i.e., on 16.11.2001.  Admittedly, the deceased was on

medical  leave.   The  nomination  forms  allegedly  signed  by  the

deceased were placed before  the concerned department by the

relatives  and  other  family  members  of  the  respondents.  Upon

comparison of the disputed and other signatures of the deceased

Srimati Mooli Swarnkar on Ex. P/4, D/7, D/8 and the alleged will

Ex. D/6, the first appellate Court on facts has concluded that the

signatures found on Ex. D/6 were totally different.

9. We  find  from  the  records  that  the  condition  of  the

testator’s mind and body was very feeble and debilitated.  The

signature of the testator was allegedly taken on the death bed

while she was administered drip.  The dispositions made in the

will may not be the result of the testator’s free will and mind.  In

such cases, the Court would naturally expect that all legitimate

suspicions should be completely removed before the document is

accepted as the last will of the testator.  The presence of such

suspicious circumstances naturally tends to make the initial onus

very heavy and unless it is satisfactorily discharged, Courts would

be reluctant to treat the document as the last will of the testator.

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Since there are many suspicious circumstances narrated above,

and as we are satisfied that the dispositions made in the alleged

will may not be as a result of testator’s free will and mind, the

Civil Court as well as the High Court are not justified in coming

to the conclusion that the will Ex.D/6 is duly executed by the

deceased.   The  respondents  being  the  propounders  of  the  will

have  failed  to  satisfy  the  judicial  conscience  of  this  Court

regarding  due  execution  of  the  will.   Since  the  suspicious

circumstances relate to the genuineness of the signatures of the

testator, as well as the condition of the testator’s mind and the

dispositions made in the will being unfair, the judgment of the

High Court restoring the judgment of the Civil Court  is liable to

be set aside.

10. Accordingly, the instant appeal is allowed, the judgment

of the High Court dated 20.04.2006 passed in Civil Revision No.

63/2005,  restoring  the  judgment  of  the  Civil  Court   dated

9.10.2004 passed in Succession Case No. 03/2002 is set aside,

and  the  judgment  of  the  first  appellate  Court  dated  8.1.2005

passed in Civil Appeal No. 80-A/2004 is restored.  It is held that

the  appellant,  being  successor  of  the  deceased  Srimati  Mooli

Swarnkar,  is  entitled to receive all  retiral  benefits  of  his  wife,

such  as,  Pension,  Gratuity,  G.P.F.,  Family  Welfare  Fund,

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Insurance etc. No order as to costs.

…………………………………….J. [ARUN MISHRA]

…………………………………....J. [MOHAN M. SHANTANAGOUDAR]

NEW DELHI; SEPTEMBER 15, 2017.

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ITEM NO.1502               COURT NO.10               SECTION IV-A

              S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS Civil Appeal  No(s).  6388/2009 PRAKASH SONI                                       Appellant(s)                                 VERSUS DEEPAK KUMAR  & ANR.                              Respondent(s)

Date : 15-09-2017 This appeal was called on for hearing today. For Appellant(s) Ms. Pratibha Jain, AOR                     For Respondent(s) Mr. Mohd. Parvez Dabas, Adv.

Mr. Uzmi Jameel Husain, Adv.                     Mr.  Shakil Ahmed Syed, AOR                               

   Hon'ble  Mr.  Justice  Mohan  M.  Shantanagoudar  pronounced the judgment of the Bench comprising Hon'ble Mr. Justice  Arun Mishra and His Lordship.

Appeal is  allowed in terms of the Signed Non Reportable Judgment.  

(NEELAM GULATI)                     (TAPAN KUMAR CHAKRABORTY)    COURT MASTER (SH)                           BRANCH OFFICER

(Signed Non Reportable Judgment is placed on the file)