Orissa High Court
Case Details
ORISSA HIGH COURT : CUTTACK CRP No.32 of 2022 In the matter of an Application under Section 115 of the Code of Civil Procedure, 1908 *** Subhransu Kumar Mohapatra, Aged about 51 years, Son of Late Saroj Kumar Mohapatra, Resident of MIG 321, Kolathia, Satya Sai Enclave, Lane No.8, PO/PS:Khandagiri, Bhubaneswar, District: Khordha … -VERSUS- Rukmuni Mohapatra Aged about 47 years Wife of Soumendra Kumar Mohapatra At: Plot No.1588/1657 and 1615/1658/2935, Lane No.8, PO: Aerodrome Area PS: Air Field, Bhubaneswar District: Khordha … Petitioner (Defendant before the trial Court) Opposite party (Plaintiff before the trial Court) Counsel appeared for the parties: For the Petitioner : M/s. Gopinath Mishra, Pragnya Paramita Mohanty and J.K. Pradhan, Advocates CRP No.32 of 2022 Page 1 of 65 For the Opposite party : M/s. Suvashish Pattnaik, Bishal Baivab, Soumya Priyadarshinee and A. Pattnaik, Advocates P R E S E N T: HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN Date of Hearing : 10.09.2024 :: Date of Judgment : 23.09.2024 J UDGMENT MURAHARI SRI RAMAN, J.— THE CHALLENGE: Questioning the propriety of order dated 14.12.2022 of the Senior Civil Judge, Bhubaneswar in suit, bearing CS No.1601 of 2020, passed in consideration of a petition filed at the behest of the petitioner-defendant under Order XXII, Rule 3, of the Code of Civil Procedure, 1908 (“CPC”, for short), this civil revision petition has been preferred invoking provisions of Section 115 with the following prayer(s): “Therefore, it is prayed that the revision may be admitted, LCR may be called for and after hearing the parties, the same may be allowed by setting aside the impugned order dated 14.12.2022; And for which act of kindness, the petitioner shall as in duty bound, ever pray.” THE FACTS: CRP No.32 of 2022 Page 2 of 65 2. The facts as outlined by the petitioner-defendant in the revision petition reveal that the original plaintiff-Sarojini Mohapatra (be called “deceased plaintiff” for convenience), being dead during the pendency of the suit for declaration of registered gift deed dated 24.11.2017 executed in favour of the petitioner (one of her sons) null and void and for permanent injunction, a petition under Order XXII, Rule 3 of the CPC came to be filed by her daughter-in-law (namely, Rukmani Mohapatra) for substitution in place of the deceased plaintiff-Sarojini Mohapatra (hereinafter called “substituted plaintiff”) claiming her right under a Will to continue with the aforenoted suit to its logical end. 2.1. The petitioner herein, being defendant in the suit, stated to have objected to such substitution and raised question of maintainability of the petition under Order XXII, Rule 3 of the CPC on the plea that deceased plaintiff left legal heirs behind her, who did not choose to participate in the suit and contest. It is the contention of the petitioner that Rukmani Mohapatra (substituted plaintiff) being not a successor of the deceased plaintiff, the petition under Order XXII, Rule 3 of the CPC is not liable to be allowed inasmuch as no legal right by dint of Will flows unless a Court of competent jurisdiction grants probate of such Will under which the right is claimed, or the legatee is granted the letters of CRP No.32 of 2022 Page 3 of 65 administration with the Will or with a copy of an authenticated copy of the Will annexed thereto in terms of Section 213 of the Indian Succession Act, 1925. HEARING OF THE CIVIL REVISION: 3. As no factual dispute arose but for involvement of question of law, whether in absence of probate of Will, taking aid of such Will can any right to sue by Rukmuni Mohapatra survives substituting her mother-in-law
Legal Reasoning
(deceased plaintiff) in the suit, on consent of the counsel for the parties, the matter is taken up for final hearing.
Legal Reasoning
3.1. Heard Sri Gopinath Mishra, learned Advocate along with Ms. Pragnya Paramita Mohanty, learned Advocate appearing for the petitioner-defendant and Ms. Soumya Priyadarshinee, learned Advocate on behalf of Sri Suvashish Pattanaik, learned Advocate along with Sri Bishal Baivab, learned Advocate appearing for the opposite party. 3.2. Hearing being concluded on 10.09.2024, the matter is kept reserved for preparation of Judgment and delivery thereof. ARGUMENTS OF COUNSEL FOR THE RESPECTIVE PARTIES: 4. Sri Gopinath Mishra, learned Advocate along with Ms. Pragnya Paramita Mohanty, learned Advocate appearing for the petitioner-defendant submitted that the Will CRP No.32 of 2022 Page 4 of 65 alleged to have been executed in favour of the opposite party-substituted plaintiff having not been probated nor do the letters of administration being allowed, no legal right flows automatically stemming on the Will to pursue the suit by stepping into the shoes of the deceased plaintiff. Placing reliance on Ground-B of the civil revision petition with support of provisions of Section 213 of the Indian Succession Act, 1925, the learned Advocate urged that on erroneous appreciation of law the learned Senior Civil Judge, Bhubaneswar allowed the petition for substitution filed by Rukmuni Mohapatra (daughter-in-law of the deceased plaintiff) inasmuch as neither there is devolution nor is the interest created in the suit schedule property, which had already got transferred with the execution of gift deed in favour of the petitioner, for no right accrues to the executor to step into the shoes of the testator unless and until the unregistered Will is probated. 4.1. It is also further urged by the learned counsel for the petitioner that though other legal heirs and successors of the deceased plaintiff are available, they have not come forward to substitute the deceased, Sarojini Mohapatra which presupposes the factum of transfer of title in the property in question in favour of the petitioner by virtue of gift deed executed by his mother Sarojini Mohapatra. Hence, the petition for substitution CRP No.32 of 2022 Page 5 of 65 at the behest of daughter-in-law (Rukmuni Mohapatra, opposite party) should not have been allowed by the learned trial Court. It is alleged that she by pursuing the suit seeks to grab the property in question which stands devolved in favour of the petitioner. 4.2. Sri Gopinath Mishra along with Ms. Pragnya Paramita Mohanty, learned counsel sought to impress upon this Court that Rukmuni Mohapatra, substituted plaintiff, is a stranger. Pressing Ground-D of the revision petition learned counsel submitted that the opposite party is an “interloper” inasmuch as the existing “legal heirs” did not take any interest to get themselves substituted to continue with the civil proceeding. 5. Ms. Soumya Priyadarshinee, learned Advocate appearing for the opposite party with her not only well-structured but also compellingly articulated argument opposed the contentions of Sri Gopinath Mishra, learned Advocate urged that the grounds and the contentions of the petitioner run contrary to settled legal position. Using persuasive language and citing relevant precedents she has effectively reinforced their position and demonstrated that being the executor under the Will, the testator’s title vests on the death of Sarojini Mohapatra- deceased plaintiff. Therefore, stemming on the statutory provision contained in Section 211 of the Indian Succession Act, 1925, she fortified her stance that the CRP No.32 of 2022 Page 6 of 65 substituted plaintiff, namely Rukmuni Mohapatra, has every right to carry the civil proceeding in CS No.1601 of 2020 pending in the files of Senior Civil Judge, Bhubaneswar forward by way of recourse to Order XXII, Rule 3 of the CPC. 5.1. Ms. Soumya Priyadarshinee, learned Advocate with well- researched precedents to counter viewpoint of Sri Gopinath Mishra, learned counsel for the petitioner, reinforced her stance that it is not the “legal heir” who can get substituted in place of deceased plaintiff, but it is also the “legal representative”, defined under Section 2(11) of the CPC, who can get substituted for the deceased plaintiff. The suit schedule property being bequeathed in her favour during the life time of Sarojini Mohhapatra by a duly executed Will— in contrast to the gift deed in favour of the petitioner, which the deceased plaintiff asserted in the suit to have been obtained by practising fraud— the executor of the property, viz., the opposite party falls within the connotation of the term “legal representative”. 5.2. Ms. Soumya Priyadarshinee, learned Advocate objecting to the arguments advanced by Sri Gopinath Mishra, learned Advocate, asserted that it would not be appropriate to have reference to Section 213 alone, rather the provisions of Section 211 of the Indian Succession Act, 1925 have to be taken into CRP No.32 of 2022 Page 7 of 65 consideration while deciding whether the opposite party can be treated to be “legal representative”. It is, therefore, contended by learned Advocate for the opposite party that the learned Senior Civil Judge, Bhubaneswar is legally justified in allowing the petition under Order XXII, Rule 3 read with Section 2(11) of the CPC and directed substitution of the opposite party for deceased plaintiff in order to protect her interest created by virtue of the Will executed by Sarojini Mohapatra. 5.3. The counsel has submitted a suave presentation that effectively articulates the arguments in favor of the opposite party’s position that in view of Section 211 read with Section 213 of the Indian Succession Act, there is no prohibition for legatee to continue with the suit in terms of Section 2(11) of the CPC as the original plaintiff- Sarojini Mohapatra has sought to declare the “registered gift deed dated 24.11.2017 executed by her in favour of this defendant-petitioner as null and void”, which has unequivocally been admitted by the petitioner herein at paragraph 2 of the civil revision petition. Thus, she has laid emphasis on the concluding part of the impugned order dated 14.12.2022 passed by the learned Senior Civil Judge, Bhubaneswar, which reads as under: “*** Apart from that it is clear from the plaint itself that there are sons and daughters of the deceased plaintiff other CRP No.32 of 2022 Page 8 of 65 in respect of than the defendant. However, one of such natural heirs of the deceased plaintiff, ordinarily who are expected to substitute the deceased plaintiff have not come before the court to protect the interest of the plaintiff. In case of non- taking of any steps by the natural heirs of the deceased plaintiff usually the suit is to be abated after expiry of statutory period. However, in the present case, the petitioner namely Rukmuni Mohapatra has come before the Court to protect her interest created by virtue of the deed of Will executed by the deceased plaintiff in her the same schedule property. favour Accordingly, in view of the decisions as relied by the learned counsel for the petitioner so also the provisions under Section 2(11) of C.P.C. so also under Section 211 of Indian Succession Act, the legatee cannot be denied to protect the interest of executor and when none of the natural heirs of the deceased have not come before the Court then such legatee is bound to protect her interest may it be by way of substitution of impleadment as a party to the suit. It is also pertinent to mention here that the fate of the Will executed by the deceased plaintiff in favour of the petitioner Rukmuni Mohapatra squarely depends on the findings of present suit and accordingly, the petitioner daughter-in-law of the deceased plaintiff having a valid interest in the Will is the person interested in the case. Accordingly, the right to sue survives and the petitioner is liable to be substituted in place of the deceased plaintiff hence, the petition is allowed. Put up on 23.12.2022 for filing of consolidated plaint.” 5.4. Ms. Soumya Priyadarshinee, learned Advocate has effectively referred to judicial decisions to support her arguments which serve to illustrate the established legal CRP No.32 of 2022 Page 9 of 65 principles and provide a framework for understanding the current case in the light of precedents. She has placed the decisions rendered in Andhra Bank Ltd. Vrs. R. Srinivasan, AIR 1962 SC 232; Suresh Kumar Bansal Vrs. Krishna Bansal, (2010) 2 SCC 162; Chiranjilal Shrilal Goenka (Deceased) through Lrs. Vrs. Jasjit Singh, (1993) 2 SCC 507; and Surendra Chandra Jena Vrs. Laxmi Narayan Jena and others, 65 (1998) CLT 212 to buttress her arguments that the substituted plaintiff having the interest in the bequeathed suit schedule property under the Will, being legal representative, could not have been objected to by the petitioner-defendant from being substituted for the deceased plaintiff to pursue the civil suit in terms of provisions contained in Section 211 read with Section 213 of the Indian Succession Act. 5.5. Ms. Soumya Priyadarshinee, learned Advocate citing the authoritative pronouncements as referred to above, went on to argue that the probate proceeding under the Indian Succession Act, 1925 may be an independent proceeding, wherein only genuineness of the Will is required to be considered by the competent Court of law; nevertheless, she asserted that the right to sue would flow from executed Will, even if it is not probated. 5.6. She has, hence, fervently insisted to dismiss the petition. RELEVANT PROVISIONS: CRP No.32 of 2022 Page 10 of 65 6. The Indian Succession Act, 1925: PART I PRELIMINARY “2. Definitions.— In this Act, unless there is anything repugnant in the subject or context,— (a) (c) (f) “administrator” means a person appointed by competent authority to administer the estate of a deceased person when there is no executor; “executor” means a person to whom the execution of the last Will of a deceased person is, by the testator’s appointment, confided; “probate” means the copy of a Will certified under the seal of a court of competent jurisdiction with a grant of administration to the estate of the testator; (h) “Will” means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death. PART VIII REPRESENTATIVE TITLE TO PROPERTY OF DECEASED ON SUCCESSION “211. Character and property of executor or administrator as such.— (1) The executor or administrator, as the case may be, of a deceased person is his legal representative for CRP No.32 of 2022 Page 11 of 65 all purposes, and all the property of the deceased person vests in him as such. (2) When the deceased was a Hindu, Muhammadan, Budhist, Sikh, Jaina or Parsi or an exempted person, nothing herein contained shall vest in an executor or administrator any property of the deceased person which would otherwise have passed by survivorship to some other person. 213. Right as executor or legatee when established.— (1) No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted probate of the Will under which the right is claimed, or has granted letters of administration with the Will or with a copy of an authenticated copy of the Will annexed. (2) This section shall not apply in the case of Wills made by Muhammadans or Indian Christians, and shall only apply— (i) in the case of Wills made by any Hindu, Buddhist, Sikh or Jaina where such Wills are of the classes specified in clauses (a) and (b) of 1[Section 57]; and 1 Section 57 of the Indian Succession Act, 1925 stands thus: PART VI TESTAMENTARY SUCCESSION CHAPTER-I.— Introductory [57. Application of certain provisions of Part to a class of Wills made by Hindus, etc.— The provisions of this Part which are set out in Schedule III shall, subject to the restrictions and modifications specified therein, apply— (a) to all Wills and codicils made by any Hindu, Buddhist, Sikh or Jaina, on or after the first day of September, 1870, within the territories which at the said date were subject to the Lieutenant Governor of Bengal or within the local limits of the ordinary Page 12 of 65 CRP No.32 of 2022 (ii) the limits of the commencement of in the case of Wills made by any Parsi dying, after Indian (Amendment) Act, 1962 (16 of Succession 1962), where such Wills are made within the local the ordinary-original civil jurisdiction of the High Courts at Calcutta, Madras and Bombay, and where such wills are made outside those limits, in so far as they relate to immovable property situate within those limits. 7. Definition of the term “legal representatives” as per clause (11) of Section 2 of the Code of Civil Procedure, 1908: “2. Definitions.— In this Act, unless there is anything repugnant in the subject or context,— (11) “legal representative” means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued; (b) original civil jurisdiction of the High Courts of Judicature at Madras and Bombay; and to all such Wills and codicils made outside those territories and limits so far as relates to immoveable property situate within those territories or limits, and to all Wills and codicils made by any Hindu, Buddhist, Sikh or Jaina on or after the first day of January, 1927, to which those provisions are not applied by clauses (a) and (b): Provided that marriage shall not revoke any such Will or codicil.] (c) CRP No.32 of 2022 Page 13 of 65 8. Order XXII of the Code of Civil Procedure, 1908 reads thus: “ORDER XXII DEATH, MARRIAGE AND INSOLVENCY OR PARTIES 1. No abatement by party‟s death if right to sue survives.— The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives. 2. Procedure where one of several plaintiffs or defendants dies and right to sue survives.— Where there are more plaintiffs or defendants than one, and any of them dies, and where the right to sue survives to the surviving plaintiff or plaintiffs alone, or against the surviving defendant or defendants alone, the Court shall cause an entry to the effect to be made on the record, and the suit shall proceed at the instance of the surviving the surviving plaintiff or plaintiffs, or against defendant or defendants. 3. Procedure in case of death of one of several plaintiffs or of sole plaintiff.— (1) Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to the sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit. CRP No.32 of 2022 Page 14 of 65 (2) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate so far as the deceased plaintiff is concerned, and, on the application of the defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff. 4. Procedure in case of death of one of several defendants or of sole defendant.— (1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal deceased defendants to be made a party and shall proceed with the suit. representative the of (2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant. (3) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the deceased defendant. (4) The Court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting representatives of any such the defendant who has failed to file a written statement or who, having filed it, has failed to legal CRP No.32 of 2022 Page 15 of 65 appear and contest the suit at the hearing; and judgment may, in such case, be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place. (5) Where— (a) (b) the plaintiff was ignorant of the death of a defendant, and could not, for that reason, make an application for the substitution of the legal representative of the defendant under this rule within the period specified in the Limitation Act, 1963 (36 of 1963), and the suit has, in consequence, abated, and the plaintiff applies after the expiry of the period specified therefore in the Limitation Act, 1963 (36 of 1963), for setting aside the abatement and also for the admission of that application under Section 5 of that Act on the ground that he had, by reason of such ignorance, sufficient cause for not making the application with the period specified in the said Act, the Court shall, in considering the application under the said section 5, have due regard to the fact of such ignorance, if proved. 4A. Procedure where there is no legal representative.— (1) If, in any suit, it shall appear to the Court that any party who has died during the pendency of the suit has no legal representative, the CRP No.32 of 2022 Page 16 of 65 Court may, on the application of any party to the suit, proceed in the absence of a person representing the estate of the deceased person, or may be order appoint the Administrator- General, or an officer of the Court or such other person as it thinks fit to represent the estate of the deceased person for the purpose of the suit; and any judgment or order subsequently given or made in the suit shall bind the estate of the deceased person to the same extent as he if a personal would have been bound representative of the deceased person had been a party to the suit. (2) Before making an order under this rule, the Court— (a) may require notice of the application for the order to be given to such (if any) of the persons having an interest in the estate of the deceased person as it thinks fit; and (b) shall as certain that the person proposed to be appointed to represent the estate of the deceased person is willing to be so appointed and has no interest adverse to that of the deceased person. 5. Determination of question as to legal representative.— Where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or a deceased defendant, such question shall be determined by the Court: 1 [Provided that where such question arises before an Appellate CRP No.32 of 2022 Page 17 of 65 Court, that Court may, before determining the question, direct any subordinate Court to try the question and to return the records together with evidence, if any, recorded at such trial, its findings and reasons therefor, and the Appellate Court may take the same into consideration in determining the question. 6. No abatement by reason of death after hearing.— Notwithstanding anything contained in the foregoing rules, whether the cause of action survives or not, there shall be no abatement by reason of the death of either party between the conclusion of the hearing and the pronouncing of the judgment, but judgment may in such case be pronounced notwithstanding the death and shall have the same force and effect as if it had been pronounced before the death took place. 7. Suit not abated by marriage of female party.— (1) The marriage of a female plaintiff or defendant shall not cause the suit to abate, but the suit may notwithstanding be proceeded with the judgment, and, where the decree is against a female defendant, it may be executed against her alone. (2) Where the husband is by law liable for the debts of his wife, the decree may, with the permission of the Court, be executed against the husband also; and, in case of judgment for the wife, execution of the decree may, with such permission, be the application of the husband, where the husband issued upon CRP No.32 of 2022 Page 18 of 65 is by law entitled to the subject-matter of the decree. 8. When plaintiff’s insolvency bars suit.— (1) The insolvency of a plaintiff in any suit which the assignee or receiver might maintain for the benefit of his creditors, shall not cause the suit to abate, unless such assignee or receiver declines to continue the suit or (unless for any special reason the Court otherwise directs) to give security for the costs thereof within such time as the Court may direct. (2) Procedure where assignee fails to continue suit, or give security.— the time so ordered, Where the assignee or receiver neglects or refuses to continue the suit and to give such the security within defendant may apply for the dismissal of the suit on the ground of the plaintiff’s insolvency, and the Court may make an order dismissing the suit an awarding to the defendant the costs which he has incurred in defending the same to be proved as a debt against the plaintiff‟s estate. 9. Effect of abatement or dismissal.— (1) Where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action. (2) The plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the assignee or the receiver in the case of an CRP No.32 of 2022 Page 19 of 65 insolvent plaintiff may apply for an order to set aside the abatement or dismissal; and if it is proved that he was prevented by any sufficient cause from continuing the suit, the Court shall set aside the abatement or dismissal upon such terms as to costs or otherwise as it thinks fit. (3) The provisions of Section 5 of the Indian Limitation Act, 1877 (15 of 1877) shall apply to applications under sub-rule (2). Explanation.— Nothing in this Rule shall be construed as barring, in any later suit, a defence based on the facts which constituted the cause of action in the suit which had abated or had been dismissed under this Order. 10. Procedure in case of assignment before final order in suit.— (1) In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved. (2) The attachment of a decree pending an appeal therefrom shall be deemed to be an interest entitling the person who procured such attachment to the benefit of sub-rule (1). 10A. Duty of pleader to communicate to Court death of a party.— CRP No.32 of 2022 Page 20 of 65 Wherever a pleader appearing for a party to the suit comes to know of the death of that party, he shall inform the Court about it, and the Court shall thereupon give notice of such death to the other party, and, for this purpose, the contract between the pleader and the deceased party shall be deemed to subsist. 11. Application of Order to appeals.— In the application of this Order to appeals, so far as may be, the word “Plaintiff” shall be held to include an appellant, the word “defendant” a respondent, and the word “suit” an appeal. 12. Application of Order to proceedings.— Nothing proceedings in execution of a decree or order.” in Rules 3, 4 and 8 shall apply to LEGAL POSITION SET FORTH THROUGH PRECEDENTS: 9. It may be beneficial to quote from Meena Pradhan Vrs. Kamla Pradhan, 2023 INSC 847 (non-reportable) [reported at (2023) 9 SCC 734], wherein the Hon’ble Supreme Court of India has been pleased to lay down the principles regarding validity and execution of Will: “9. A Will is an instrument of testamentary disposition of property. It is a legally acknowledged mode of bequeathing a testator‟s property during his lifetime to be acted upon on his/her death and carries with it an element of sanctity. It speaks from the death of the testator. Since the testator/testatrix, at the time of testing the document for its validity, would not be CRP No.32 of 2022 Page 21 of 65 available for deposing as to the circumstances in which the Will came to be executed, stringent requisites for the proof thereof have been statutorily enjoined the possibility of any manipulation. rule out to 10. Relying on H. Venkatachala Iyengar Vrs. B.N. Thimmajamma, 1959 Supp (1) SCR 426 (3-Judge Bench), Bhagwan Kaur Vrs. Kartar Kaur, (1994) 5 SCC 135 (3-Judge Bench), Janki Narayan Bhoir Vrs. Narayan Namdeo Kadam, (2003) 2 SCC 91(2-Judge Bench) Yumnam Ongbi Tampha Ibema Devi Vrs. Yumnam Joykumar Singh, (2009) 4 SCC 780 (3- Vrs. Judge Sharanabasappa, (2021) 11 SCC 277 (3-Judge Bench), we can deduce/infer the following principles required for proving the validity and execution of the Will: Shivakumar Bench) and i. ii. The Court has to consider two aspects: firstly, that the Will is executed by the testator, and secondly, that it was the last Will executed by him; is not required to be proved with It mathematical accuracy, but test of the satisfaction of the prudent mind has to be applied. iii. A Will is required to fulfil all the formalities required under Section 63 of the Succession Act, that is to say: (a) The testator shall sign or affix his mark to the Will or it shall be signed by some other person in his presence and by his CRP No.32 of 2022 Page 22 of 65 direction and the said signature or affixation shall show that it was intended to give effect to the writing as a Will; (b) It is mandatory to get it attested by two or more witnesses, though no particular form of attestation is necessary; (c) Each of the attesting witnesses must have seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of such signatures; (d) Each of the attesting witnesses shall sign the Will in the presence of the testator, however, the presence of all witnesses at the same time is not required; iv. For the purpose of proving the execution of the Will, at least one of the attesting witnesses, who is alive, subject to the process of court, and capable of giving evidence, shall be examined; v. The attesting witness should speak not only about the testator‟s signatures but also that each of the witnesses had signed the will in the presence of the testator; vi. If one attesting witness can prove the execution of the Will, the examination of other attesting witnesses can be dispensed with; CRP No.32 of 2022 Page 23 of 65 vii. Where one attesting witness examined to prove the Will fails to prove its due execution, then the other available attesting witness has to be called to supplement his evidence; viii. Whenever there exists any suspicion as to the execution of the Will, it is the responsibility of the propounder legitimate suspicions before it can be accepted as the testator‟s last Will. In such cases, the initial onus on the propounder becomes heavier. remove all to It requires those cases where the Will circumstances. ix. The test of judicial conscience has been evolved the for dealing with is surrounded by execution of suspicious to consider factors such as awareness of the testator as to the content as well as the consequences, nature and effect of the dispositions in the Will; sound, certain and disposing state of mind and memory of the testator at the time of execution; testator executed the Will while acting on his own free Will; in x. One who alleges fraud, fabrication, undue influence et cetera has to prove the same. the absence of such However, even allegations, if there are circumstances giving rise to doubt, then it becomes the duty of the suspicious propounder circumstances by giving a cogent and convincing explanation. to dispel such xi. Suspicious circumstances must be germane and valid‟ and not merely „real, „the CRP No.32 of 2022 Page 24 of 65 fantasy of the doubting mind‟. Whether a particular feature would qualify as „suspicious‟ would depend on the facts and circumstances of each case. Any circumstance raising suspicion legitimate in nature would qualify as a suspicious circumstance for example, a shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the Will under which he receives a substantial benefit, etc. 11. In short, apart from statutory compliance, broadly it has to be proved that: (a) the testator signed the Will out of his own free Will, (b) at the time of execution he had a sound state of mind, (c) he was aware of the nature and effect thereof and (d) the Will was not executed under any suspicious circumstances.” 10. This Court notices the following decisions on the issue involved in the present matter, relevant portions of which are quoted hereunder: i. Chiranjilal Shrilal Goenka Vrs. Jasjit Singh, (1993) 2 SCC 507 = (1993) 2 SCR 454: (extracted from SCC) “8. In Black‟s Law Dictionary the meaning of the word „legal representative‟ is: The term in its broadest CRP No.32 of 2022 Page 25 of 65 9. sense means one who stands in place of, and represents the interests of another. A person who oversees the legal affairs of another. Examples include the executors or administrator of an estate and a Court appointed guardian of a minor or incompetent person. term to be synonymous with Term „legal representative‟ which is almost always „personal held representative‟, means in accident cases, member of family entitled to benefits under wrongful death statute, unsatisfied claim and judgment fund. In Andhra Bank Ltd. Vrs. R. Srinivasan, (1963) 1 An WR (SC) 14 = AIR 1962 SC 232 = (1962) 3 SCR 391 this Court considered the question whether the legatee under legal the Will representative within the meaning of Section 2(11) of the Code. It was held that it is well known that the expression “legal representative” had not been defined in the Code of 1882 and that led to a difference of judicial opinion as to its denotation. Considering the case-law developed in that behalf it was held that respondents 2 to 12, the legatees under the Will of the estate are legal representatives of the deceased Raja Bahadur and so it follows that the estate of the deceased was sufficiently represented by them when the judgments were pronounced. the is 10.