SETH BENI CHAND (SINCE DEAD) NOW BY L.RS. versus SMT. KAMLA KUNWAR AND OTHERS

Citation: [1977] 1 S.C.R. 578 · Decided: 14-09-1976 · Supreme Court of India · Bench: Y.V. CHANDRACHUD · Disposal: Dismissed

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Judgment (excerpt)

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578 
SETH BENI CHAND (SINCE DEAD) NOW BY L.RS. 
v. 
SMT. KAMLA KUNWAR AND OTHERS 
September 14, 1976 
[Y. V. CHANDRACHUD, V. R. KRISHNA IYER AND N. L. UNTWALIA, JJ.] 
Indian Succession A.ct, 1975, S. 63(c), Attesting witness defined. 
Indian Eyidence ff ct, S. 68-Discharg\ '?f onus proba11di 
by 
propounder 
when executum of well surrounded by susprcrous circumstances. 
Thr_ee or four days before her death, Jaggo Bai executed a will, bequeathing 
her Stndhana property to her son Beni Chand's second wife Kamla Kunwar and 
her children, and also to the progeny born of his first wife. 
Beni Chand his 
third wife and her children were excluded from tho will. Beni Chand op~sed 
t~e probate o~ the wil! contending that it was a forgery and challenged the execu-
tion of the will. A smgle Judge of the High Court held that the propounder of 
the will had failed to explain the suspicious circumstances surrounding its execu-
tion, but in appeal, the Division Bench upheld the validity of the will. 
Dismissing the appeal, tho Court 
HELD : ( 1) The mere description of a signatory to a testamentary 
do~u­
ment as an attesting witness cannot take the place of evidence showing due 
execution of the document. An attesting witness is one who signs the document 
in the presence of the executant after seeing the execution of the. document or 
after receiving a personal acknowledgment from tho executant as regards the 
execution of the document. 
f581H, 582A] 
(2) The 011us proba11di lies in every case upon the party propounding a: will, 
land he must satisfy the conscience of the Court that the instrument so pro-
pounded is the last will of a free and capable testator. Where the circumstance& 
surrounding the execution of the will are shrouded in suspicion, it is the duty and 
function of the propounder to remove that suspicion by leading satisfactory 
evidence, and by offering an explanation of auspicious circumstancct which can 
satisfy a prudent mind. [582C; E-F] 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2269 of 1972. 
(From the Judjp11ent and Order dated 9-5-1972 of the Allahabad 
High Court in Special Appeal No. 125170). 
J. P. Goyal, G. S. Chatterjee and Shree Pal Singh, for the Appel-
lants (Other than 2nd appellant). 
s. M. Jain and s. K. Jain, for the Appellant No. 2. 
V. M. Tarkunde, Yatindra Singh, Deepal Gupta, Najahad Hussain, 
S. S. Khanduja, Uma Dutta and Miss Manik Tarkunde, for Respon-
dents Nos. 1, -4, 5, 7 and 8. 
S. K. Mehta, for Respondents Nos. 11--12. 
" 
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The Judgment of th~ Court was delivered by 
CHANDRACHUD, J.-Thiwill·~ appeal bdy bcertifica~ehraises a q
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udestion as 
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regards the validity of a 
execute 
y an e1g ty year o 
woman 
SETH BEN! CHAND v. SMT. KAMLA KUNWAR (Chandrachud, J.) 579 
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five days before her death. The testatrix Jaggo Bai had 
. a much-
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married son called Beni Chand, the last of whose three marnages has 
given birth to this long litigation. 
Beni Chand's first wife, Chall!-eli 
Bai, died leaving behind Respondents 3, 5, 6, 7 and 8 as her ~em. 
His second wife Kamla Kunwar is Respondent 1. Respondent 4 is her 
daughter and respondents 9 and. 10 are .her grand-daughter~. Beni 
Chand had no male issue from his two wives and therefore, m 1928, 
B 
he gambled for a son by marrying V ed Kumari. That marriage created 
dissensions in the family, partly because Ved Kumari belonged to a 
different caste but more substantially because the entry of yet anGther 
~ 
woman in the household was like a last straw. On October 26, 1961 
,.., 
Jaggo Bai made a will disinheriting her son Beni Chand and the child-
ren born of Ved Kumari, and bequeathing her extensive propertiell to 
the progeny born of Chameli Bai and to Karola Kunwar and her pro-
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geny. Jaggo Bai died on October 31, 1961. 
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Kamla Kunwar who was appointed under Jaggo Bai's will as an 
executrix filed a petition in the Allahabad High Court for probate of 
the will. 
Beni Chand filed a caveat contending that the will was a 
forgery and was prepared in collusion with one Dwijendra Nigam, an 
advocate, while Jaggo Bai was lying in an unconscious state. A learned 
I} 
single Judge of the High Court dismissed the petition on the ground 
that the propounder of the will had failed to explain the suspicious 
.. 
circumstances surrounding the execution of the will. 
That judgment 
was reversed in appeal by a Division Bench of the High Court, which 
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upheld the validity of the will. This appeal by cert

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