A chance attesting witness does not, by itself, render a Will suspicious.

The plaintiff, Gopi Chand, challenged Will No. 186 dated 28 November 2000 allegedly executed by his issueless brother, Parshotam, in favour of defendants Nos. 1 to 3. He claimed that Parshotam was mentally unsound, that the defendants had obtained the Will through fraud, undue influence and misrepresentation, and that he and the proforma defendant were entitled to inherit Parshotam’s estate. He also alleged that the defendants had begun interfering with the property in September 2014.

The defendants denied Parshotam’s mental incapacity and asserted that he had executed the Will voluntarily, out of love and affection, after having been looked after by them for several years. They further pleaded that the plaintiff had strained relations with Parshotam and had been involved in a criminal case arising from an assault upon him.

The Civil Judge dismissed the suit on 30 August 2016. The First Appellate Court dismissed the plaintiff’s appeal on 29 November 2016. The plaintiff thereafter filed the present second appeal under Section 100 CPC. During its pendency, the plaintiff died and his legal representatives were substituted.

1. Whether the presence of a chance witness to Will No. 186 dated 28 November 2000 constituted a suspicious circumstance surrounding the Will?

2. Whether the Courts below had misread, misinterpreted or misconstrued the evidence of PW-1, DW-2 and the Will, thereby materially prejudicing the plaintiff’s case?

3. Whether the defendants had failed to remove or dispel the suspicious circumstances surrounding the Will by leading cogent and reliable evidence?

The Court applied Section 63 of the Indian Succession Act, 1925, requiring an unprivileged Will to be signed or marked by the testator and attested by at least two witnesses, each of whom must have seen the testator execute or acknowledge the Will and must sign it in the testator’s presence.

Section 68 of the Evidence Act requires proof of an attested document through at least one attesting witness.

Under H. Venkatachala Iyengar v. B.N. Thimmajamma, the propounder must prove the testator’s signature, testamentary capacity, understanding of the disposition and free volition; where suspicious circumstances exist, the propounder must remove them by cogent and satisfactory evidence.

The Court also relied on Pentakota Satyanarayana v. Pentakota Seetharatnam, Girja Datt Singh v. Gangotri Datt Singh, N. Kamalam v. Ayyaswamy and M.L. Abdul Jabbar Sahib v. H. Venkata Sastri, holding that attestation requires witnessing or acknowledgment of execution and signing animo attestandi; an identifier, scribe or registering officer does not become an attesting witness merely by signing in that capacity.

The principles concerning suspicious circumstances were reiterated from Indu Bala Bose v. Manindra Chandra Bose.

In a second appeal under Section 100 CPC, concurrent findings of fact cannot ordinarily be disturbed unless they are based on no evidence, inadmissible or ignored evidence, misreading of material evidence, or are perverse.

The Court held that the evidence of Devi Singh, examined as an attesting witness, substantially established the execution of the Will: he deposed that Parshotam expressed his intention to execute the Will, that it was prepared and read over to those present, and that Parshotam and the witness signed it. The fact that Devi Singh did not previously know Parshotam did not disqualify him as an attesting witness, particularly since Parshotam had been identified by Prithvi Singh.

His presence at the Tehsil office for his own work, and his consequent description as a “chance witness,” was not by itself a suspicious circumstance.

Applying the “armchair” principle, the Court considered the surrounding circumstances from Parshotam’s perspective. The evidence showed strained relations between Parshotam and the plaintiff, including the registration of a criminal case arising from an alleged assault by the plaintiff and his son. Although they were acquitted, the acquittal did not eliminate the existence of strained relations for purposes of assessing testamentary probability.

The Court therefore found a plausible reason for Parshotam to exclude the plaintiff and bequeath the property to the defendants, who claimed to have cared for him for several years.

Registration of the Will was not treated as conclusive proof of validity, but the evidence as a whole was held sufficient to establish due execution and to dispel the alleged suspicious circumstances.

No perversity or legally impermissible misappreciation of evidence was demonstrated warranting interference under Section 100 CPC.

It held that the chance presence of Devi Singh did not constitute a suspicious circumstance, that the Will was duly executed and attested, and that the defendants had sufficiently established Parshotam’s sound disposing state of mind and voluntary testamentary intention.

The Regular Second Appeal was dismissed, and the judgments and decrees of the Trial Court and First Appellate Court dismissing the plaintiff’s suit were upheld. The decree-sheet was directed to be prepared and any pending applications were disposed of.