Will cannot be disbelieved only because the testator had used a different pen than the pen used by the attesting witnesses

Citation

CDJ 2006 SC 004

Hazara Biradri and others vs Lokesh Dutta multani

Head note

Law of Will - Suspicious Circumstances - Execution of Will in favour of Respondent Admitted by Wife in earlier Suit - Will cannot be Disbelieved because Testator used a Pen different from one used by Attesting Witnesses or had Signed on some Papers Twice - The Division Bench in appeal reversed the findings of the learned Single Judge and held that no fault could be found with the testimony of the two attesting witnesses who were trustworthy. That their testimony had been discarded by the learned Single Judge without recording any reasons whatsoever - The Division Bench has rightly set aside the judgment of the learned Single Judge and in decreeing the suit filed by the plaintiff / respondent - The testimony of A-PW3, and S-PW7, the two attesting witnesses is consistent, natural and truthful. Intensive cross-examination has failed to bring out any material contradiction in their testimony The testimony of these two witnesses cannot be disbelieved only on the ground that it was doubtful that S because of the fracture in his leg could have gone to their houses to call them. The aforesaid finding, is unsustainable particularly when it has not been established as to during what period of the year 1960 S had suffered the fracture in his leg. Learned Single Judge merely estimated the fracture to be in the year 1960. The will was executed in December 1960. In the absence of any evidence that in which month did S had suffered the fracture it is not possible for us to conclude that S was not in a position to go to the houses of these two witnesses to call them - Learned Single Judge took the view that signatures of Smt. R and those of S are in the same ink whereas the signatures of the other two attesting witnesses are in different ink. Will cannot be disbelieved only because the testator had used a different pen than the pen used by the attesting witnesses - It was found that Pt. T father of the respondent was a very close friend of S which was evident from the fact that he had appointed him as the executant of his will. That S had executed the will out of his own volition in a healthy state of mind and had appended his signature on each page of the will. Simply because he had signed some of the pages twice was not a good ground to hold that the will was suspicious - The finding recorded by the Division Bench that the will was not surrounded by suspicious circumstances is sustainable - She had also entered into a compromise with the respondent in the earlier suit and admitted the due execution of the will in favour of the respondent. It seems that because of the change of heart she denied the execution of the will and the compromise arrived at by her in the earlier suit and took the stand that her signature/thumb impression on the will may have taken by fraudulent means. For the same reason she denied her entering into a compromise in the earlier suit.

Para 10 to 15

Comparative Citations:
2006 AIR(SC) 370 : 2005 (8) Supreme 102 : 2005 (9) Scale 407 : 2005 (10) JT 147 : 2005 (8) SCJ 574, 2006 (2) MLJ 409, 2005 (4) CLT 293, 2005 (8) SLT 690