SMT. VEENA KHANNA vs STATE & ORS

2024-04-29 Information

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on:12th December, 2023
Pronounced on:29th April, 2024

+ TEST CAS. 72/2017 & I.A. 14898/2017

SMT. VEENA KHANNA
W/o Late R.M. Khanna
D/o Late P.R. Mahant
R/o 7, Roshnara Road,
Opposite Hans Raj College,
Malkaganj,
Delhi-110007. ….. Petitioner
Through: Mr. Percival Billimoria, Sr. Advocate with Mr. Ashwini Kumar, Mr. Sohail Khan, Ms. Arham Tanvir, Mr. UdayArora, Ms. Muskaan Sawhney, Mr. Shadaab Ahmad, Ms. Nishtha Gupta and Ms. Ruksana, Advocates.
Versus
1. STATE

2. RAJEEV SETHI
S/o Late Usha Sethi

3. SANJEEV SETHI
S/o Late Usha Sethi

Both R/o Lohari Naka,
Opp. Gurudwara,
Khandwa, M.P.

4. ASHA MEHRA
S/o Sh. B.M. Mehra
13, the Mall Amritsar, Punjab.

…..Respondents
Through: Mr. Firsat Ali Siddhiqui, Advocate
for Defendant Nos. 2 & 3.
Mr. H. S. Chandhoke and Mr. Anant Garg, Advocates for Respondent No. 4.
CORAM:
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA

J U D G M E N T

NEENA BANSAL KRISHNA, J

1. The petitioner, Smt. Veena Khanna, has filed the present petition under Section 276 of the Indian Succession Act, 1923 for grant of Probate in respect of Will dated 05.06.1979 executed by her father late Shri P.R. Mahant.
2. Briefly stated, the Petitioner and the respondents are the doughters/ legal heirs of late Shri P.R. Mahant who was the owner and in possession of an immovable property No. 7, Roshanara Road, Opposite Hans Raj College, Malka Ganj, Delhi -07 (hereinafter referred to as suit property) by way of a Perpetual lease deed executed in his favour. Late Shri P.R. Mahant expired on 05.05.1981 and was survived by his wife Smt. Raj Kumari Mahant and three daughters, namely Usha Sethi (expired on 13.06.2009 who is now represented by her legal heirs, Respondent Nos. 2 & 3), Asha Mehra (respondent No. 4) and Veena Khanna (petitioner).
3. The deceased during his lifetime, executed a Will dated 05.06.1979 which is his last and final testament registered at Registration No. 3022, in Addl. Book No.III, Vol. No. 158 on pages 10 to 12 on 05.06.1979 in the office of Sub-Registrar, Sub Distt-1, Delhi. It is submitted that the said Will was neither cancelled or revoked, nor was any Codicil executed.
4. It is further submitted that through his Will dated 05.06.1979, the testator bequeathed the suit property in favour of his two daughters Smt. Veena Khanna (Petitioner herein) and Smt. Usha Sethi (died after the execution of Will in question), in the proportion as mentioned in the Will.
5. A similar petition P.C. No. 42395/ 2016 had been filed earlier for grant of Probate of the said Will before the District and Sessions Judge, Tis Hazari Courts, by the petitioner which was withdrawn with liberty to file afresh. Thereafter, the present petition seeking for grant of probate, has been filed.
6. It is further stated that the attesting witnesses to the Will have expired in view of which the verification required under Section 281 of the India Succession Act, 1925 could not be procured.
7. The petitioner, being a beneficiary to the Will dated 05.06.1979, has therefore, sought for a Letter of Probate to be issued in her favour.
8. Citations were published in daily newspaper The Statesman English Edition on 17.02.2018 and Veer Arjun Hindi Edition on 16.02.2018.
9. Respondent Nos. 2 & 3, legal heirs of late Smt. Usha Sethi, in their reply to the petition, have admitted the facts as narrated in the petition. However, it is claimed that the answering respondents are also entitled for grant of Probate under Section 276 of the Indian Succession Act, 1923 as the same cannot be granted solely in favour of the petitioner. Furthermore, the second daughter of late Shri P.R. Mahant, Asha Mehra, respondent no.4 has no right, title in the suit property as per registered Will dated 05.06.1979 and hence, she has been unnecessarily impleaded as she is neither necessary nor a proper party in the petition.
10. Respondent No. 4 Smt Asha Mehra, the only contesting respondent, in her Objections Ex RW4/1 has submitted that the Will dated 05.06.1979 is non est and a nullity in the eyes of the law as it has been created in exercise of undue influence, force, coercion over late Shri P.R. Mahant or by resorting to forgery and fabrication.
11. It is asserted that the deceased loved all three daughters dearly and raised them without any difference. Since there had never been any fight or differences between the members of the family, late Shri P.R. Mahant could not have bequeathed the suit property to his two daughters to the exclusion of the answering respondent. Moreover, ever since the demise of their father on 05.05.1981, the alleged Will has been brought to the notice of respondent No. 4 by way of the present petition after the delay of almost 39 years which shows the malafide in her conduct and creates doubt in regard to the genuineness of her claim.
12. It is further submitted that the children of the answering respondent used to live in the suit property even after the demise of late Shri P.R. Mahant for several years which shows that the clear understanding between the sisters was that the property belonged equally to all of them i.e. 1/3rd share belonged to respondent No. 4. No mention of the execution of a Will was made even during the time when her children stayed in the suit property. In fact, the petitioner has always assured respondent No. 4 regarding her share in the suit property.
13. It is further asserted that since the petitioner resided at the suit property even after her marriage as she was deserted by her husband in 1991, there is a possibility that she may have coerced the deceased father to execute the alleged Will for the suit property by excluding the answering respondent for no cause or reason.
14. It is submitted that the petitioner has failed to file the original Will along with the present petition for which no explanation has been given. This creates a suspicion over the authenticity and genuineness of the alleged Will.
15. Moreover, mere registration of a Will would not prove its validity and is required to be proved mandatorily by the attesting witnesses. It is claimed that the petitioner has tactfully filed the present petition after a delay of 39 years when the witnesses to the Will are not alive to confirm its execution, to deprive the respondent of the opportunity to cross examine the witnesses.
16. It is further submitted that since the Will has been propounded by a beneficiary and not a Public Authority, it casts greater suspicion on the veracity of its contents.
17. Without admitting to the contents of the Will, it is submitted that only some portion of the suit property has been bequeathed to the petitioner and Smt. Usha Sethi and not the entire property. Evidently, the alleged Will only gives them the benefit of the construction on the first floor and the ground floor of the suit property. Therefore, the residual right in the land and property such as the main passage in the front of the garage/driveway, the lawn, the servant quarter and the construction right over the first floor (remaining portion) has not been bequeathed to anyone.
18. Moreover, as per Clause 6 of the Will, anything that has not been bequeathed to the petitioner or Smt. Usha Sethi, was bequeathed to late Smt. Rajkumari Mahant, wife of late Shri P.R. Mahant. Smt. Rajkumari Mahant died intestate on 12.08.1991 and therefore, all three daughters would become the equal owner of the remaining portion of the suit property.
19. It is submitted that the petitioner has also failed to specify the details required under Sections 276(d) and 276(e) of the Indian Succession Act, 1925.
20. It is further submitted that the petitioner has deliberately failed to disclose the market value of the suit property in order to avoid paying the appropriate court fee. Furthermore, the petitioner has failed to explain why the petition for grant of Probate filed before the Tis Hazari Courts, had to be withdrawn. The petitioner has no locus standi to file the present petition which deserves to be dismissed in limine.
21. Issues were framed vide Order dated 12.11.2018 as under:
1.Whether late Shri P.R. Mahant duly executed a valid Will dated 5.6.1979? OPP
2. Whether the petitioner is entitled to grant of probate of the said Will dated 5.6.1979? OPP
3. Whether the Will dated 5.6.1979 allegedly executed by late Shri P.R.Mahant is forged and/or fabricated? OPR
4. If answer to issue No.3 is in negative, whether the alleged Will has been procured by the petitioner by use of force, coercion and/or undue influence? OPR
5.Relief.
22. PW1 Veena Khanna, the petitioner tendered her Evidence by way of Affidavit Ex PW1/X.
23. PW2 Mr. Sunil Dutt, the son of the attestin witness Shri M.R. Dutt proved the signatures and handwriting of his father.
24. PW3 Mr. Naveen, Record Keeper at the Department of Delhi Archives, has produced the original Will dated 05.06.1979.
25. Respondent No. 4, Asha Mehra has appeared as RW4 and tendered her Evidence by way of Affidavit Ex RW4/A.
26. The petitioner in her Written Submission has submitted that the objection taken by respondent No. 4 regarding the forged signatures of the testator, is not tenable as the Sub-Registrar would do the registration of a Will only if he is satisfied about the identity of the person. Since the Will was executed in 1979, there is no other document bearing the signature of late Shri P.R. Mahant that could be produced by the petitioner or the respondents. Moreover, respondent No. 4 has not made any clear averment with respect to the signature of the testator as she also states that late Shri P.R. Mahant may have been forced and/or coerced to execute the Will.
27. Further, there are sufficient reasons for the testator to have excluded Smt. Asha Mehra from the Will. The first reason being that the petitioner continued to regularly reside with her parents even after her marriage unlike respondent No. 4 who visited her parents occasionally. Furthermore, late Shri P.R. Mahant had advanced significant sums to Respondent No. 4s husband who entered into a partnership with a cousin and lost substantial money in a Chit Fund business. The testator detested gambling of any form and in view of respondent No. 4s husband being granted financial help from all the liquid assets of the deceased, he was prompted to leave the suit property only to his other two daughters.
28. Respondent No. 4/ Asha Mehra, in her Written Submissions has submitted that there are suspicious circumstances around the execution of the Will. There is no cogent reason for the exclusion of the answering respondent. The petitioner has failed to examine an attesting witness to the Will and there has been an unexplained delay of 39 years in disclosing the Will and seeking the Probate.
29. Reliance has been placed on the judgements of Kavita Kanwar vs. Pamela Mehta and Ors., AIR 2020 SC 2614; Ram Piari vs. Bhagwant &Ors, AIR 1990 SC 1742; Malkani vs. Jamadar, MANU/SC/0422/1987; Lalitkumar D.Chapsey and Ors. vs. Nickie Kiran Nanavati, 2018 SCC OnLine Bom 698; Shashi Kumar Banerjee & Ors. vs. Sumodh Kumar Banerjee, AIR 1964 SC 529; Smt. Jaswant Kaur vs. Smt. Amrit Kumar, (1977) 1 SCC 369; Bharpur Singh and Others vs. Shamsher Singh, (2009) 3 SCC 687; Kalyan Singh vs. Choti and Ors., AIR 1990 SC 396; Susama Bala Devi & Ors. vs. Anath Nath Tarafdar & Ors., AIR 1976 Cal 377.

30. Submissions heard.
31. Admittedly, Late Sh. P.R. Mahant, who was married to Smt. Raj Kumari Mahant, had three daughters, namely, Smt. Usha Sethi (since deceased and now represented by her legal heirs respondent Nos. 2 and 3), Smt. Asha Mehra (respondent No. 4) and Smt. Veena Khanna (the petitioner herein). Shri P.R. Mahant expired on 05.05.1981, leaving behind his wife, Smt. Raj Kumari Mahant and the three daughters, who are the parties to the present Petition. Smt. Raj Kumari Mahant, the mother of the parties, who was impleaded as defendant No.2 has also expired on 12.08.1991.
32. The burden of proving the Will is on the propounder of the Will to establish absence of suspicious circumstances surrounding the execution of Will, proof of testamentary capacity and signatures of the testator, as well as, the witnesses as required by law to discharge the onus to prove to the satisfaction of the Court that the Will is genuine. Even if there is no such plea on any of these aforementioned circumstances to give rise to doubts, the onus is still on the propounder to satisfy the conscience of the court. It was reiterated in the case of Shashi Kumar Banerjee & Ors. vs. Sumodh Kumar Banerjee (supra), that if the propounder is successful in explaining the suspicious circumstances, the Court would grant probate, even if the Will may be unnatural and may cut off wholly or in part, any of the near relatives.
33. These principles have been reiterated in the case of Smt. Jaswant Kaur vs. Smt. Amrit Kumar (supra), wherein also it was observed that Will being an ambulatory document, it may be possible that there may be no occasion for anyone to know about its existence until the death of the testator but it has to be explained as to why a document disposing of a property worth lakhs of rupees, should remain a closely guarded secret from the whole world of intimate friends and relatives by the sole legatee for a period of time after the testators death.
34. In the light of aforesaid principles, the facts of the present case may be considered to determine if the petitioner has successfully discharged the burden of proving the Will as genuine expression of the intension of the Testator.

Issue No. 1: Whether late Shri P.R.Mahant duly executed a valid Will dated 5.6.1979? OPP

35. At the outset, it is concomitant to examine the scope of determination in a Probate case. In the case of Mt. Laso Devi Vs. Mt. Jagtambha Devi, AIR 1936 Lah 378, the Lahore High Court that a Probate Court is only concerned with the proof of valid execution of a Will. The Apex Court in the case of Chiranjilal Shrilal Goanka v. Jasjit Singh (1993) 2 SCC 507 held that the question of right, title, share and ownership is not to be decided in the probate proceedings.
36. In Sameer Kapoor vs State, (2020) 12 SCC 480, it was observed that a Probate Court can only determine the legal character of a Will. Further, the Apex Court in Shamita Singh vs Rashmi Alhuwalia, (2020) 7 SCC 152, found that the outcome of a Probate Petition has an impact on the judgement of a partition suit and thus, when the two proceedings are filed parallelly, they are consolidated in order to have a harmonious finding.
37. Therefore, the scope of determination in the present case shall be limited to the valid execution of the Will dated 05.06.1979 Ex PW1/2, the relevant paragraphs of which read as under:
1. Daughter Veena Khanna w/o Sh. R.M. Khanna.
I hereby give and devise the exclusive and absolute ownership of the entire construction on the ground floor along with garages on the ground floor with the entire land, courtyard and the side passages attached thereto. The main passage in front of the garages annexe will remain a common passage for the use of both my daughter Usha Sethi and Veena Khanna. My wife Raj Kumari Mahant will continue to stay and reside for life, of her right with Veena Khanna on the ground floor and my daughter Veena Khanna shall make suitable accommodation /apartment according to the comfort and convenience of my wife. But my wife shall have no testamentary power for disposal in any manner of that accommodation/apartment during her life or after death, as entire ground floor is devised to Veena Khanna.

2. Daughter eldest Usha Sethi w/o Sh. B.B. Sethi
I hereby devise and give the exclusive and absolute ownership of the entire construction on the first floor along with the construction on the garages-annexe. The main passage in front of the garage-annexe will remain common passage for use of both my daughters, Usha Sethi and Veena Khanna

3. My wife Raj Kumari Mahant shall be maintained for life by both these daughters namely Usha Sethi and Veena Khanna and they shall each pay Rs 350/- per month to her for life, total Rs 700/-. I am confident that my both daughters Usha sethi and Veena Khanna will perform their obligation in paying Rs. 350/- each to their mother regularly every month, but if for any reason which I feel extremely far fetched, my wife is not paid the above maintenance, in that event it will be the first charge on respective property and my wife will be entitled to recover and realize by any method, manner and means, she may deem fit and proper.

4. Wife Smt. Rajkumari Mahant and daughter Middle Asha mehra wife of Sh. B.M. Mehra, have been excluded from any share in the aforesaid property and they will have no claim whatsoever on the same.

5. I further direct that in the event of either of my daughter Usha Sethi and/or Veena Khanna predeceasing me, then in that event my that daughter share in the estate shall devolve on her children in equal proportion.

6. I further hereby give, devise and bequeath all my movable and immovable not otherwise disposed of by this will, consisting of bank deposits, securities, shares etc. whatsoever absolutely to my wife Rajkumari Mahant.

Mode of Execution of the Will dates 05.06.1979:
38. The first aspect in a Probate petition is to establish due execution of the Will. Smt. Veena Khanna, the petitioner in her testimony as PW1 has deposed that her father Late Sh. P.R. Mahant, became the owner of the suit property in 1951 vide Lease Deed Ex.PW-1/1. He was in possession of the entire property during his lifetime and executed a Registered Will dated 05.06.1979 Ex.PW-1/2.
39. Section 63 (a) & (b) of the Indian Succession Act, 1925 provides the requisites for the execution of a valid Will. It states that the testator must affix his signature on the Will and it shall appear that it was intended thereby to give effect to the writing as a Will.
40. The execution of the Will has been proved by by Smt. Veena Khanna who has deposed that this Will dated 05.06.1979 Ex-PW-1/2, was duly signed by the testator and was the last Will of Late Sh. P.R. Mahant. It was neither cancelled or revoked, nor any codicil executed in respect thereof.
41. According to this Will, the subject Suit property was bequeathed to the petitioner and Smt. Usha Sethi (represented through her legal heirs, who are the respondent Nos. 2 and 3) in the proportion as mentioned in the Will. The other movable assets had been bequeathed to Smt. Raj Kumari Mahant, the mother.
42. She had further deposed that the Will dated 05.06.1979 had been executed by the deceased out of his own free will, without any pressure and in sound state of mind. She thus, sought Probate in respect of this Will dated 05.06.1979 Ex.PW-1/2.
43. Section 63(c) of the Indian Succession Act, 1925 further provides that a Will must be attested by two or more witnesses, each of whom should have seen the testator sign or put his mark on the Will. The Will must be signed by the witnesses in the presence of the testator, but it is not necessary that more than one witness should be present at the same time.
44. Smt. Veena Khanna has deposed that Will dated 05.06.1979 Ex.PW-1/2 has been signed by the testator and witnessed by the two attesting witnesses, namely, Shri M.R.Dutt and Shri Ved Prakash.
45. PW-3, Mr. Naveen from the Department of Delhi Archives, Govt. of NCT of Delhi produced the original Will which was compared with the Will produced by the petitioner and was stated to be identical.
46. The petitioner, Smt. Veena Khanna, in terms of Section 63 of the Indian Succession Act, which provides for the manner of execution of the Will, has proved that the Will Ex. PW1/2 which is the last expression of the intent of the testator and that it had been executed by him in sound mind and was his last and final Will.

Proof of Execution of the Will:
47. Section 68 of the Indian Evidence Act, 1872 provides for the of proof of execution of document required by law to be attested, which provides that where a document is required by the law to be attested, it shall not be used as evidence until at least one attesting witness has been called for proving its execution (if the attesting witness is available).
48. The two attesting witnesses namely, Mr. M.R. Dutt Chaudhry and Mr. Ved Prakash have died. The question thus arises about how the Will should now be proved.

Proof of execution of a Will after the demise of the attesting witnesses:
49. The answer to this question is provided by Section 69 of the Indian Evidence Act, 1872 which states that If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the hand writing of that person.
50. In the case of K. Laxmanan v. Thekkayil Padmini and others, (2009) 1 SCC 354, it was observed that the petitioner has to prove the attestation of at least one attesting witness is in his handwriting and that the signature of the person executing the document is in the handwriting of that person under Section 69 of the Indian Evidence Act.
51. Similarly, in Babu Singh vs Ram Sahai, (2008) 14 SCC 754, K. Laxamanan vs Thekkayil Padmini, (2009) 1 SCC 354, Kalyanswami. vs L. Bakthavatsalam, 2020 SCC OnLine SC 584 it was observed that Section 69 of the Indian Evidence Act, 1872 provides that if execution of Will could not be proved by examining the attesting witness or in absence/ non-availability of the attesting witness, secondary evidence could be adduced to prove the Will. This can be achieved by proving the handwriting of one of the attesting witnesses and signature of the executant of the document to be in the handwriting of that person.
52. The expression if no such attesting witness can be found was interpreted in the case of Kalyanaswamy vs Bakthavatsalam, (2021) 16 SCC 543 and it was observed that the word such before attesting witness is intended to refer to the attesting witness mentioned in Section 68 of the Evidence Act. As far as the expression found is concerned, it would cover a wide variety of circumstances. It would cover a case of an incapacity to tender evidence on account of any physical illness. It would certainly embrace a situation where the attesting witnesses are dead.
53. The question of whether the actual proof of signature of the Witness and the executor of the Will is required to be produced under Section 69 of the Indian Evidence Act, 1872 was answered in Bhagavathiammal vs Marimuthu Ammal, 2010 SCC OnLine Mad 2928. It was held that the difference between Section 68 and Section 69 of the Act is, in the former, one attesting witness at least has to be called for the purpose of proving its execution and in the later, it must be proved that the attestation of one attesting witness at least is in his handwriting and the signature of the person executing the document is in the handwriting of that person. Section 69 of the Act does not specify the mode of such proof. In other words, the handwriting can be proved by a person who has acquaintance of the handwriting or the signature can be proved by comparison with the admitted hand-writing or the signature of the person executing the document.
54. The interpretation of Section 69 Indian Evidence Act taken in Bhagavathiammal (supra) was affirmed in Moturu Nalini Kanth vs Gainedi Kaliprasad (Dead Through Lrs.), 2023 SCC OnLine SC 1488.
55. Therefore, when the attesting witnesses to a Will are not available to be examined, then the witnesses being examined in lieu of the attesting witness must satisfy two conditions, viz; (i) such person is acquainted with the signature of an attesting witness and should identify the same; and (ii) a person acquainted with the signature the executor of the document should identify his signatures too. Since the testimony of an attesting witness is replaced by the testimony of a person who is acquainted with the handwriting/ signature of the attesting witness, Section 69 imposes an additional requirement of proving the signatures of the testator as well. Further, the person proving the signatures/ handwriting need not produce a specimen or actual proof of the same.
56. Since both the attesting witnesses had died, the petitioner examined PW-2 Sh. Sunil Dutt s/o Late Sh. M.R. Dutt Chaudhry, Advocate who had drafted the Will and was also one of the attesting witness. PW-2 Sh. Sunil Dutt in his testimony identified the hand-writing of his father at point Y wherein it is written drafted by Sh. M.R. Dutt, Advocate, 13, Malka Ganj, Delhi-07and also identified his signatures at point X on the Will Ex.PW1/2. There is no material cross-examination of this witness except a suggestion by respondent No. 4/ Smt. Asha Mehra that the signatures at point Y are not of his father.
57. PW1/ Veena Khanna, petitioner deposed in her evidence Affidavit Ex PW1/X that the Will dated 05.06.1979 Ex PW1/2 was duly signed by her father and denied the suggestion in her cross examination that the Will Ex PW1/2 was forged or that the Will was not signed by her father.
58. Respondent No. 4 had placed reliance in the case of Choudhari and Ors. vs. Ram Karan through Lrs, 2020 SCC OnLine CHH 1015, wherein it was held that merely proving the signature of the attesting witness would not amount to the due compliance of Section 69 of the Evidence Act. As enunciated by the Supreme Court in Babu Singh v. Ram Sahai @ Ram Singh, (2008) 14 SCC 754, petitioner was required to file an admissible document containing the signature of one of the attesting witnesses and after making comparison between the said document and the Will.
59. The Apex Court in Babu Singh (supra) dealt with the inapplicability of Section 69 when one of the attesting witnesses to the Will is alive and no effort is made to procure the testimony of the surviving witness. It was also held that a Will cannot be proved in accordance with Section 69 of the Indian Evidence Act, when only one attesting witness who is alive, denies his signature in the Will. This judgement is distinguishable and not applicable to the facts under consideration.
60. Therefore, the petitioner has proved the execution of Will Ex.PW1/2 in accordance with Section 63 of the Indian Succession Act 1925 and has also satisfied the two conditions under Section 68 & 69 of the Indian Evidence Act, 1872 to prove the execution of Will dated 05.06.1979 Ex PW1/2.

Registration of the Will:
61. The Will dated 05.06.1979 Ex PW1/2 was duly registered by the Office of the Sub-Registrar Sub- District I -Delhi on 05.06.1979. The factum of registration of the Will in the present case creates a presumption that a registered document is validly executed as held in the case of Prem Singh & Ors. vs. Birbal & Ors., 2006 (5) SCC 353. However, in the case of Rani Purnima Debi and Anr. vs. Kumar Khagendra Narayan Deb and Anr., AIR 1962 SC 567, the Apex Court observed that mere registration in itself is not sufficient to dispel all suspicion which exist without submitting the evidence to a close examination, though the factum of registration is an important circumstance in favour of the Will being genuine if cogent evidence is led in regard to its registration.
62. The Respondent No. 4 has alleged various suspicious circumstances around the execution of the Will, which would be analysed hereunder.

Mental and Physical health of the testator affecting his mental capacity to execute the Will:
63. Respondent No.4/ Asha Mehra has asserted that their father was not in sound disposing mind as he was suffering from heart disease and diabetes during the last years of his life. He also suffered hip fracture and was bed-ridden for almost a year before his death on 05.05.1981.
64. The petitioner in her testimony has not denied that their father was suffering from diabetes or heart disease, but claimed that he was bed-ridden only for about a month, prior to his death due to the hip fracture. Be that as it may, it is an admitted fact that late Shri P.R Mahant died of heart disease and had suffered from a hip fracture prior to his death. The only difference in stance is with respect to the period when he suffered from fracture.
65. Further, both the petitioner as well as the respondent No. 4 have not placed on record any medical record about the physical health of the father, at the time of his death. Heart disease and diabetes are chronic ailments from which many suffer, but in its ordinary manifestation they do not impact the mental capacity of an individual.
66. Similarly, the father may have suffered a hip fracture, which may have induced a physical disability of confinement to bed, but, neither of the parties have asserted that because of these ailments, his mental capacity got impacted. Pertinently, the Will was executed on 05.06.1979 that is about two years prior to his death. Even if it is presumed that late Shri P.R. Mahant was bed-ridden for a year until his death on 05.05.1981, the Will dated 05.06.1979 was executed two years prior to his demise. Thus, the testator was clearly not bedridden at the time he executed the Will.
67. There is no circumstance established about the mental capacity of the father being not sound at the time of execution of the Will.

Unjust exclusion/ disinheritance of a natural heir in the Will:
68. The RW4/ respondent No. 4, Smt. Asha Mehra, the contesting daughter, has been completely excluded from the Will Ex. PW-1/2. The unfair exclusion of a natural heir may be a strong indicator of a suspicious circumstance. When such exclusion is found to be blatant giving rise to serious doubt about the execution of the Will itself, the Court may decline the grant of Probate as has been held in catena of judgements.
69. In the case of Lalitkumar D.Chapsey and Ors. vs. Nickie Kiran Nanavati (supra), it was observed that the testamentary disposition disrupts the natural line of succession. Wills, by their very nature, usually result in the reduction or deprivation of the share of a natural heir; were it otherwise, no Will would be necessary. The exclusion, therefore, of a particular heir is not ipso facto a suspicious circumstance sufficient to dislodge an otherwise valid Will, or to make it unnatural. Yet, when in the absence of any evidence of discord amongst the legal heirs then perhaps additional evidence is required to be led of other witnesses to satisfy the conscience of the Court about the genuineness of the Will. Balancing these factors viz, on the one hand substantial bequests to outsiders, and, on the other, nothing at all to the surviving relative, an estrangement from whom is sot demonstrated, it is impossible to resist the conclusion that the Will and the Codicil were unnatural.
70. In the same tenor, the Apex Court in the case of Malkani vs. Jamadar (supra) observed that genuineness of the Will was a finding of fact and omission to mention reason for disinheriting the daughter or taking prominent part by the beneficiary by itself may not be sufficient to create any doubt about the testamentary capacity. It was held that even though it cannot be said to be a hard and fast rule, yet, when disinheritance is amongst heirs of equal degree and no reason for exclusion is disclosed, then the standard of scrutiny is not the same.
71. In Kavita Kanwar vs. Pamela Mehta and Ors (supra), in a similar situation, the Apex Court observed that the basic question which immediately crops up is what could have the reason for the testatrix of being desirous of providing unequal distribution of the assets by giving major share to one child in preference to other two children. Even if it is presumed that the testatrix had special affection towards one child, it is difficult to assume that the alleged special affection towards one child should necessarily correspond to repugnance towards the other children by the same parents. In the ordinary and natural course, a person could be expected to be more inclined towards the child taking his/her care; however, it would be too unrealistic to assume that special love and affection towards one, may be blue-eyed, child would also result in a person leaving the serving and needy child in lurch. Such unfair disposition of property or an unjust exclusion of the legal heirs, would be regarded as a suspicious circumstance. The unexplained, unequal distribution of the property was confounded by two other major factors: one being the active role played by the appellant in the making of the Will and its execution, and second, the virtual exclusion of the other children of the testatrix in the process.
72. Similarly, in Ram Piari vs. Bhagwant &Ors, (supra), the Apex Court observed that although freedom to bequeath ones own property amongst Hindus is absolute which includes even a Will in favour of a stranger; yet, the propounder is required to establish the testamentary capacity or a disposing state of mind of the testator and that he knew and understood the contents of the Will. Prudence, however, requires reason for denying benefit to those who too are entitled to bounty by the testator as they have similar claims on him. Absence of it may not invalidate a Will but it shrouds the disposition with suspicion as it does not give any inkling to the mind of the testator to enable the Court to judge if the disposition was a voluntary act.
73. Taking active interest by propounder in execution of Will which was executed one day before the death of the testator, there being no sour relationship inter se the testatrix and the beneficiaries and there being a thumb impression instead of signatures, were some of the confounding factors some of the factors which were considered to invalidate the Will that excluded natural beneficiaries in Ram Piari vs. Bhagwant &Ors, (supra).
74. In Ramabai Padamkar Patil vs Rukminibai Vishnu Vekhande, (2003) 8 SCC 537 it was clarified that the propounder is not required to prove the details pertaining to the preparation of the Will, once he successfully proves its execution.
75. In the case of Iswardeo Narain Singh vs Jasjit Singh, AIR 1954 SC 280 it was held that the court of probate is only concerned with the question as to whether the document put forward as the last will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution the testator had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the Probate Court. Therefore, the only issue in a probate proceeding relates to the genuineness and due execution of the will and the court itself is under duty to determine it and preserve the original will in its custody. The Succession Act is a self-contained code insofar as the question of making an application for probate, grant or refusal of probate or an appeal carried against the decision of the Probate Court.
76. This position was reiterated in Kanwarjit Singh Dhillon vs Hardyal Singh Dhillon, (2007) 11 SCC 357.
77. In Uma Devi Nambiar vs T.C. Sidhan, (2004) 2 SCC 321, Hon?ble Supreme Court has held that:
16. A Will is executed to alter the ordinary mode of succession and by the very nature of things, it is bound to result in either reducing or depriving the share of natural heirs. If a person intends his property to pass to his natural heirs, there is no necessity at all of executing a Will. It is true that a propounder of the Will has to remove all suspicious circumstances. Suspicion means doubt, conjecture or mistrust. But the fact that natural heirs have either been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be a suspicious circumstance especially in a case where the bequest has been made in favour of an offspring. As held in P.P.K. Gopalan Nambiar v. P.P.K. Balakrishnan Nambiar, 1995 Supp (2) SCC 664 : AIR 1972 SC 2492, it is the duty of the propounder of the Will to remove all the suspected features, but there must be real, germane and valid suspicious features and not fantasy of the doubting mind. It has been held that if the propounder succeeds in removing the suspicious circumstance, the court has to give effect to the Will, even if the Will might be unnatural in the sense that it has cut off wholly or in part near relations. (See Pushpavathi v. Chandraraja Kadamba, (1973) 3 SCC 291.) In Rabindra Nath Mukherjee v. Panchanan Banerjee; (1995) 4 SCC 459, it was observed that the circumstance of deprivation of natural heirs should not raise any suspicion because the whole idea behind execution of the Will is to interfere with the normal line of succession and so, natural heirs would be debarred in every case of Will. Of course, it may be that in some cases they are fully debarred and in some cases partly.

78. In Hari Singh and Anr vs State and Anr, 2010 SCC Online Del 4269 it was held that the mere disinheritance of natural heirs cannot be a suspicious circumstance in itself. Moreover, Courts are not expected to be satisfied that a bequest is rational or not; what has to be considered is whether the bequest was so unnatural that the Testator could not have made it. They have to be mindful of the fact that the Courts have to uphold the wishes expressed and not the wisdom behind the same.
79. Similar to the present case, in Neelam Singh and ors vs Dr. Sudha Sinha and ors, 2022 SCC OnLine Jhar 1231, the father had executed a Will in favour of one daughter by excluding the other. It is but natural that those who may stand to lose on account of it will object and contest the probate application. An onerous responsibility on the probate court lies to be on guard against any manufactured will and at the same time to remain the conscience keeper of the testator who does not remain in his mortal form before the court. However, the degree of proof and appreciation of evidence is based on preponderance of probability depending on the evidence on record taken as a whole. When there is overwhelming evidence and circumstances which are in proof of the due execution of the will, there mere suspicion on the exclusion of a natural heir cannot invalidate its execution.
80. Therefore, the principle which emerges is that, though unnatural exclusion of a child from the property in a Will is one of the suspicious circumstance, only if compounded by other factors like active participation of the beneficiary in the Will, the Court may to come to the conclusion of the Will not being genuine.
81. To prove that there is no explicable reason for her exclusion, RW-4 Smt Asha Mehra has deposed that her parents had loved all the three daughters dearly and equally and raised them without any difference. Growing up, there was never any quarrel or disagreement between the father and the three daughters. All the three daughters were married of by the by the parents during their lifetime and equal amount of money was spent in their marriage. Even after marriage, they all maintained cordial relationship not only inter se but also with the parents. The father loved all his grandchildren equally and showered equal affection. There was no reason for the father to have excluded her from the alleged Will.
82. These facts have also been admitted by PW-1, Smt. Veena Khanna in her cross-examination. Thus, admittedly, the parents had equal affection for three daughters and treated them and their children in a similar manner. The question which immediately arises is what could have been the reason for the father to have excluded one daughter from his Will. It thus, becomes pertinent to examine the circumstances of the exclusion of Respondent No.4 on the touchstone of preponderance of probabilities.
83. In the present case, though the respondent, No. 4, Smt. Asha Mehra has been excluded but pertinently the Will, Ex.PW-1/2, describes the bequeathal in detail. The ground floor along with specified areas appurtenant thereto have been bequeathed to Smt. Veena Khanna, the petitioner. The first floor along with certain commons areas have been bequeathed to Smt. Usha Sethi. The remaining areas have been specified as common to the two floors of the property in question.
84. In addition to this, it has also been provided that the mother of the parties, Smt. Rajkumari Mahant shall continue to reside on the ground floor along with the petitioner Smt. Veena Khanna, who shall make arrangement for suitable accommodation/ apartment, according to the comfort and convenience of his Smt. Rajkumari. However, Smt. Rajkumari shall have no testamentary power for disposal, in any manner of that accommodation during her life or thereafter and the entire ground floor is devised and bequeathed to Smt. Veena Khanna.
85. The mother i.e. Smt Rajkumari, therefore, was provided with a right of accommodation in the ground floor, which was otherwise bequeathed to Smt. Veena Khanna. In addition, it specifically provided that the mother shall be maintained by both these daughters i.e. Smt. Veena Khanna and Smt. Usha Sethi, who shall pay Rs.350/- each per mensem, that is total of Rs.700/- per mensem, to her for her entire life. The Will also recorded that I am confident that my daughters Smt. Usha Sethi and Smt. Veena Khanna will perform their obligations in paying Rs.350/- each to their mother regularly every month.
86. Further Clause 4 of the Will, reads as under:-
Wife, Smt. Raj Kumari Mahant and daughter middle Smt. Asha Mehra w/o Sh. B. N. Mehra, have been excluded from any share in the aforesaid property and they will have no claim whatsoever on the same

87. The detailed recitals of the Will reflects that the father had consciously and specifically ousted Smt. Asha Mehra from the benefit under his Will. Though no reason has been specified but it is quite evident from the contents of the Will Ex. PW1/2 that this exclusion of Mrs. Asha Mehra was a conscious expression of his intention. Human mind in its complexities, may have prompted the testator to exclude one daughter, but it is not for the Court to search for justifications on the face of express and conscious exclusion of one beneficiary by the Testator. In the present case, exclusion of Respondent No.4 cannot be held suspicious as the details given in the recital in the Will bely any manipulation.

Delay in disclosing the Will:
88. Respondent has submitted that the petitioner never disclosed the Will for several years after its execution and has filed for Probate 39 years after the demise of the testator.
89. In the case of Kalyan Singh vs. Choti and Ors. (supra), the Will was produced after 22 years of its execution. It was observed that non-production of the Will for such a long period even though there were occasions to produce it, casts a serious doubt on the genuineness of the Will especially when the sole legatee is left with no right under the Will, which seems to be unnatural. It was observed that the onus was on the plaintiff to remove this suspicious circumstance and explain the reason for non-production of Will over a long period of time.
90. In the case of Susama Bala Devi & Ors. vs. Anath Nath Tarafdar & Ors. (supra), the Calcutta High Court in the similar situation of an inexplicable delay of 15 years in bringing the Will to light following the death of the testator, it was held as a suspicion circumstance which was required to be explained by cogent reasons.
91. There is no denying that the petitioner has filed this Probate Petition several years after of demise of the father and before the filing of Probate Petition in 2016, it had never seen the light of the day. This may be an element of suspicion but in the light of above discussion, when the genuineness of the Will and it being a manifestation of the intention of the testator has been fully established, this suspicion is nothing but a conjecture and this in itself cannot be a ground to overlook the overwhelming evidence establishing the genuineness of the Will.
92. Further, the reason why Probate was sought by the Petitioner after so many years can be discerned from the testimony of PW-1, Smt. Veena Khanna, who deposed that she was getting old and wanted to settle the issue. She further stated in her cross-examination that in the year 2016, when Smt. Veena Khanna and respondent Nos. 2 and 3 (the legal heirs of Smt. Usha Sethi) wanted to convert the property to free hold and had asked for a No Objection Certificate from Smt. Asha Mehra, she had refused, though Smt. Asha Mehra denied that she was ever asked for a No Objection Certificate.
93. This testimony of Smt. Veena Khanna cannot be discarded in the light of admissions and undisputed circumstance that all the grandchildren of the testator i.e. the children of the three daughters had resided in the suit property for specific periods and no objection had been taken by the petitioner ever. The parties and their children, have always been having cordial relationship and there have been no inter se disputes between them.
94. The reason why this Probate came to be filed after 39 years, can therefore be gathered from the testimony of the Petitioner. Because of the cordial relations amongst the sisters and their children, no apparent need arose for the petitioner to seek Probate. However, as deposed by the Petitioner, her progressing age prompted her to settle all issues; one being the conversion of the suit property into freehold which required a No Objection Certificate from the respondent, and thus, the disputes arose necessitating the initiation of the present Probate proceedings in 2016 when she filed PC No. 42395/16 (PC No. 29 of 16) for grant of Probate of the Will of her father before the District and Sessions Judge. This petition was withdrawn because of the technical grounds with liberty to file afresh vide Order dated 04.08.2016, Ex.PW-1/5.
95. It can, therefore, be gathered that in light of the cordial relationship, the petitioner did not feel the need to seek the Probate and the situation arose only when she and legal heirs of Smt. Usha Sethi, the two beneficiaries under the Will, elected to get the property made freehold in their name and the same was resisted by Smt. Asha Mehra.
96. The alleged delay in seeking the Probate has been explained and cannot be considered as a suspicious circumstance to the genuineness of the Will.
97. It is therefore, concluded that the petitioner has been able to prove that the Will dated 05.06.1979 Ex PW1/2 has been validly executed and attested.
98. Issue No. 1 is decided in favour of the Petitioner.

Issue No. 3: Whether the Will dated 5.6.1979 allegedly executed by late Shri P.R.Mahant is forged and/or fabricated? OPR
99. Respondent No. 4 has taken inconsistent and contradictory pleas in regard to the signatures of her father in the Will dated 05.06.1979 Ex PW1/2. In her Objections Ex RW4/1 as well as her Affidavit of Evidence Ex. RW4/A, she has denied the Signature of her father on the Will stating it to be a forged and fabricated document.
100. However, on the contrary, in the cross examination of the petitioner, the counsel for respondent No. 4 had made a suggestion to the petitioner that the signatures of the father had been taken on blank paper, which the petitioner had denied. Thus, while on one hand, respondent No. 4 has asserted that the signatures to be forged, but she herself has suggested to the petitioner that the signatures of the father had been obtained on blank paper thereby admitting the signatures on the Will, to be those of her father.
101. Further, RW4/ Asha Mehra stated in her cross examination that it is a possibility that during such time that the petitioner may have coerced the deceased father to draw and execute the alleged Will. When she was again confronted about the genuineness of the Will again, , she answered thus in her cross examination -I am sure that it is a false Will. Her contention of Will being forged is in the realm of conjecture arising from her incomprehensibility of her exclusion from the benefit under the Will, rather than on any legal premise.
102. The best evidence to corroborate her assertion of the signatures of father on the Will being forged for the respondent No. 4 was to produce a document which had admitted signatures of the father. She had relied on the documents filed by the petitioner for the admitted signatures of the father. However, the only document produced by the petitioner which could have had the original signatures of deceased father, was the Lease Deed dated 1951, Ex-PW-1/1. This perpetual Lease Deed dated 1951 is an incomplete document and there are apparently no signatures of late Shri P.R. Mahant on the two pages of the Lease Deed which has been placed on record. No other document has been produced having the admitted signatures of the father. The respondent no.4 has thus, failed to lead any cogent evidence to disprove the signatures of her father on the Will Ex.PW1/2.The respondent has not been able to establish that the Will is a forged and fabricated document.
103. This issue is decided in favour of the petitioner.

Issue No. 4: If answer to issue No.3 is in negative, whether the alleged Will has been procured by the petitioner by use of force, coercion and/or undue influence? OPR
104. Respondent No. 4 had also stated in her Objections filed to the petition Ex RW4/1 that the alleged Will has been procured and or created by the petitioner either by exercise of force, coercion and/or undue influence over the deceased and/or by resorting to forgery and fabrication.
105. The doctrine of undue influence under the common law was evolved by the Courts in England for granting protection against transactions procured by the exercise of insidious forms of influence spiritual and temporal. The doctrine applies to acts of bounty as well as to other transactions in which one party by exercising his position of dominance obtains an unfair advantage over another.
106. Section 16 of the Indian Contract Act, 1872 echoed the doctrine of undue influence as under:
Section 16:
Undue influence-
(1) A contract is said to be induced by undue influence where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other.
(2) In particular and without prejudice to the generality of the foregoing principle, a person is deemed to be in a position to dominate the will of another
(a) where he holds a real or apparent authority over the other, or where he stands in a fiduciary relation to the other; or
(b) where he makes a contract with a person whose mental capacity is temporarily or permanently affected by reason of age, illness, or mental or bodily distress.
(3) Where a person who is in a position to dominate the will of another, enters into a contract with him, and the transaction appears, on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall lie upon the person in a position to dominate the will of the other.
Nothing in this sub-section shall affect the provisions of section 111 of the Indian Evidence Act, 1872 (1 of 1872).

107. The term undue influence and its applicability was succinctly explained by the Privy Council in Raghunath Prasad vs Sarju Prasad, AIR 1924 PC 60. It expounded three stages for consideration of a case of undue influence which reads as under:
(i) The first thing to be considered is whether the plaintiff or the party seeking relief on the ground of undue influence has proved that the relations between the parties to each other are such that the one naturally relied upon the other for advice dominate the will of the other. Upto this point, influence alone has been made out.
(ii) Once that position is substantiated, the second stage is reached to ascertain whether the transaction has been induced by undue influence. That is to say whether the other person was in a position to dominate the will of the first in giving it.
(iii) third stage is of the onus probandi. If the transaction appears to be unconscionable, then the burden of proving that it was not induced by undue influence is to lie upon the person who was in a position to dominate the will of the other.

108. Admittedly, the petitioner was residing with their father and Satyan Mehra and. Anu Saggi, the children of respondents No.4 Smt. Asha Mehra, were also residing in the Suit property at different periods, including after the demise of the testator. It is also admitted that at the time of demise of the father, the petitioner and her children were living in the suit property. Though, the respondent No. 4, Asha Mehra had deposed and had also suggested to PW1/ Smt.Veena Khanna in her cross-examination that latter had exercised undue influence upon their father, aside from this bald assertion, there is no circumstance to show that any undue influence was exercised by the petitioner on their father.
109. There are categorical admissions both by the petitioner in the examination as well as by the respondent No. 4, in her testimony that all the three sisters had been treated equally and even the own children of respondent No. 4, were residing with the grandparents.
110. RW4 Asha Mehra in her affidavit of evidence has stated that I say that during the period when the petitioner was residing with her parents she may have forced and/or coerced of a deceased father in drafting and executing the alleged Will thereby excluding me for no cause or reason and for the reason best known only to the petitioner. Albeit, aside from this conjecture, no further evidence of her holding a dominant position or of taking undue advantage of the dominant position can be made out. Pertinently, the petitioner/ Veena Khanna is not the only beneficiary under the Will dated 05.06.1979 Ex PW1/2/ as even Usha Sethi (the other daughter of late Shri P.R Mahant) is an equal beneficiary. Moreover, the language used by the respondent No. 4, in her objections/reply, as well as, in her cross-examination, is in the realm of conjectures and surmises as she has taken conflicting pleas of forgery, fabrication and undue influence. No cogent or acceptable evidence has been led to establish that there was any coercion/force / undue influence was exercised by Smt. Veena Khanna, in the execution of the Will. Thus, Respondent No. 4 has been unable to prove exercise of no undue influence by the petitioner as alleged by her.
111. In the end, it is also pertinent to observe that this is a Will which got drafted by Mr. M.R. Dutt, an Advocate who was also an attesting witness and there is nothing to show that the petitioner had any role to play in the preparing of the Will. Though there is exclusion of Smt. Asha Mehra but from the recitals of the Will as mentioned above, it cannot be said that there was any coercion or that Smt. Asha Mehra had not been consciously excluded from the benefit under the Will by the testator.
112. This issue is decided against respondent No. 4.

Issue No. 2: Whether the petitioner is entitled to grant of probate of the said Will dated 5.6.1979? OPP
113. Pertinently, the petitioner is only a legatee and not the executor of the Will dated 05.06.1979 Ex PW1/2. Yet, a prayer has been made for the grant of a Probate instead of a Letter of Administration.
114. According to Section 222(1) of the Indian Succession Act, 1925 a probate shall be granted only to an executor appointed by the will.
115. The Madras High Court relying on Vatsala Srinivasan (supra), in Madhy vs Vairamanai, CRP No 3381/2021 decided on 27.10.2022 observed that even though the legatee had prayed for Probate, considering that the proceedings for Probate and a Letter of Administration serve the same purpose of benefiting the legatee, the court can very well grant a Letter of Administration to the sole legatee instead of a Probate, if he succeeds in proving the validity and the genuineness of the Will.
116. It is therefore, held that the present petition seeking for a Probate is hereby treated as a petition for Letter of Administration, for grant of which the petitioner is entitled.

Relief:
117. A Letter of Administration in respect of the Will dated 05.06.1979 Ex PW1/2 is hereby granted in favour of the petitioner and respondent Nos. 2 & 3, subject to payment of requisite court fees.
118. Petitioner shall furnish Administrative Bond with one Surety to the satisfaction of the learned Joint Registrar General of this court.
119. On payment of the requisite court fee and other formalities noted above, the Letter of Administration in respect of the Will dated 05.06.1979 shall be issued by the Registry.
120. The petition stands allowed and accordingly disposed of in the above terms.
121. List before the Joint Registrar on 10.05.2024 for depositing of the bond.

(NEENA BANSAL KRISHNA)
JUDGE

APRIL 29, 2024/RS

TEST CAS. 72/2017 Page 36 of 36