VIJENDER SINGH vs STATE & ORS
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 18.01.2024
Judgment pronounced on: 05.02.2024
+ FAO 523/2018, CM APPL. 46951/201826 days in filing appeal
VIJENDER SINGH ….. Appellant
Through: Mr.Sunil Choudhary, Mr.Lalit Kumar and Mr.Praveen Singh, Advs.
versus
STATE & ORS ….. Respondents
Through: Mr. R.S. Mishra, Mr. Anand Mishra, Advs. for R-3.
CORAM:
HON’BLE MS. JUSTICE SHALINDER KAUR
J U D G M E N T
1. The present First Appeal assails the order dated 26.04.2018 passed in the probate case titled Vijender Singh @ Bijender Singh v. State & Ors. bearing No. 5972/2016 passed by learned Additional District Judge, Saket Court, New Delhi (hereinafter referred to as Trial Court) whereby the learned Trial Court dismissed the probate petition of the appellant.
It is pertinent to note relevant facts of the present case which are as follows:-
2. The appellant had filed a petition under Section 276 of the Indian Succession Act, 1925 (hereinafter referred to as the Act) for grant of probate in respect of the Will dated 04.04.2007 executed by the mother of the appellant, Smt. Lado, with respect to two properties bearing House No. 20, Village Khizrabad, New Delhi 110065 measuring 550 sq. yards and House No. 5-B, Village Khizrabad, New Delhi-110 065 measuring 1000 sq. yds., wherein the mother of the petitioner had appointed the appellant as the sole executor of the above mentioned Will.
3. The respondent no. 3 was the only contesting respondent before the learned Trial Court who after service of the notice issued in the probate petition had filed his objections. The respondent no. 3 has challenged the Will claiming himself to be the owner and in possession of the property No. 5-B, Village Khizrabad, New Delhi-110065 having purchased the property some time before 1979 and co-owner of the property bearing No. 20, Village Khizrabad, New Delhi 110065 as the same is an ancestral property and not self-acquired property of Smt. Lado.
4. Respondent no. 3 submitted that the Will is a fake document since the thumb impression of the testatrix on the testament were not genuine and she had no right to execute the Will in respect of the properties in question.
5. Respondent no. 3 has pleaded that the present probate petition was filed by the appellant in connivance with other respondents arrayed as respondent nos. 2, 4 & 5. He emphasized that the probate petition is not maintainable and prayed for dismissal of the petition.
6. On the basis of the pleadings of the parties, the following issues were framed by the learned Trial Court on 15.05.2013.
a. Whether Will dated 04.04.2007 executed by late Smt. Lado is validly and legally executed? OPP
b. Whether petitioner is entitled for grant of probate in respect of Will dated 04.04.2007? OPP
c. Whether the objections filed on behalf of respondent no.3 are valid and maintainable? OPR
d. Relief
7. In support of his claim the appellant examined himself as PW-1, Sh Kamal Kumar Sharma (one of the attesting witnesses to the Will) as PW-2 and Sh. Gyanendra Singh (brother of the appellant) as PW-3. The respondent no. 3 is the sole witness in defence, examined as R-3W-1 however, the other respondents did not lead any evidence in defence.
8. After recording of the evidence of the parties, the learned Trial Court after considering the evidence on record returned the findings on issue nos. 1 & 2 against the appellant and in favour of the respondents but decided the issue no. 3 in favour of the appellant and against the respondents and dismissed the probate petition as well as the objections of respondent no. 3.
Submissions by the petitioner
9. The findings of the learned Trial Court are questioned on the following grounds.
10. The first plea raised by Mr. Sunil Choudhary, learned counsel for the appellant is that the learned Trial Court failed to consider that the Will in question is a legally enforceable document, however, it passed the impugned judgment on frivolous contradiction appearing in the name of the scribe who was not even an attesting witness. The appellant is a senior citizen and the Will was executed 10 years ago, therefore, it is a fallible mistake, as it is tough for any witness to recall the facts correctly such as the name of the lawyer after a long period of time.
11. Learned counsel submitted that the learned Trial Court failed to consider that unless and until the objections are established, the grant of probate to the propounder of the Will on the basis of Will which is duly executed and proved by the attesting witness, cannot be denied. Indeed, in the present case, none of the respondents have raised any objection to the validity and execution of the Will.
12. It was next submitted that in the absence of any suspicious circumstances surrounding the execution of the Will, the proof of testamentary capacity and thumb impression of the testatrix as required by law to discharge the onus of proving the genuineness of the Will, which in the present case is on the appellant has been successfully proved. It is not disputed by the respondents that the testatrix was not in a fit mental and physical state while executing the Will.
13. It was submitted that learned Trial Court has unnecessarily relied upon minor contradictions to hold that the appellant was not entitled to grant of probate in respect of the Will in question. Even though, the genuineness of the thumb impression of the testatrix could not be disputed, therefore, appellant has duly proved the execution of the Will according to the Section 63 of the Act. Reliance was placed on the judgments of Janki Narayan Bhoir v. Narayan Mandeo Kadam; (2003) 2 SCC 91 and Girja Dutt Singh v. Gangotri Datt Singh; AIR 1955 343.
14. Learned counsel further submitted that the testimonies of the witnesses on the record go to prove that the Will in question being the last Will of the testatrix was executed in presence of the appellant and Sh. Kunal Sharma, however, the learned Trial Court failed to consider all the above facts and dismissed the probate petition without application of mind.
15. The petitioner further places reliance on Madhukar D Shende vs Tarabai Shedage (2002) 2 SCC 85, Smt. Indu Bala Bose & Ors vs Mahindra Chandra Bose & Ors (1982) 1 SCC 20, Harmes & Anr vs Hinkson: Privy Council(Appeal No.67 of 1943 (Supreme Court of Canada) AIR 1946 PC 156, Thayammal vs Ponnusamy & Anr (2008) 8 MLJ 647 and Jarat Kumari Dassi vs Bissessur Dutt ILR 39 Cal.245.
Submissions on behalf of the respondent no. 3:
16. On behalf of respondent no. 3, Sh. R.S. Mishra, learned counsel emphasized that the appellant is trying to usurp the entire ancestral property as his own on the basis of the false and fabricated will created by him after the death of his mother. It is stated that the petitioner misrepresented the law as laid down in the judgment titled as Janki Narayan Bhoir vs Narayan Mandeo Kadam; (2003) 2 SCC 91 and has not been able to establish a correct sequence of events. The suspicious circumstances surrounding the execution of the will is evident which cannot be ruled out. According to learned counsel, there is no illegality in the judgment passed by the learned Trial Court which needs to be upheld.
17. The law on Wills has once again been summarised in the matter of Kavita Kanwar vs Mrs. Pamela Mehta reported in AIR 2020 Supreme Court 2614, by the Honble Supreme Court as under:
23. It remains trite that a Will is the testamentary document that comes into operation after the death of the testator. The peculiar nature of such a document has led to solemn provisions in the statutes for making of a Will and for its proof in a Court of law. Section 59 of the Succession Act provides that every person of sound mind, not being a minor, may dispose of his property by Will. A Will or any portion thereof, the making of which has been caused by fraud or coercion or by any such importunity that has taken away the free agency of the testator, is declared to be void under Section 61 of the Succession Act; and further, Section 62 of the Succession Act enables the maker of a Will to make or alter the same at any time when he is competent to dispose of his property by Will. Chapter III of Part IV of the Succession Act makes the provision for execution of unprivileged Wills (as distinguished from privileged Wills provided for in Chapter IV) with which we are not concerned in this case.
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23.3. As noticed, as per Section 63 of the Succession Act, the Will ought to be attested by two or more witnesses. Hence, any document propounded as a Will cannot be used as evidence unless at least one attesting witness has been examined for the purpose of proving its execution, if such witness is available and is capable of giving evidence as per the requirements of Section 68 of the Evidence Act, that reads as under:
68. Proof of execution of document required by law to be attested.-If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.
24. We may now take note of the relevant principles settled by the consistent decisions in regard to the process of examination of a Will when propounded before a Court of law.
24.1. In the case of H. Venkatachala Iyengar (supra), a 3-Judge Bench of this Court traversed through the vistas of the issues related with execution and proof of Will and enunciated a few fundamental guiding principles that have consistently been followed and applied in almost all the cases involving such issues. The synthesis and exposition by this Court in paragraphs 18 to 22 of the said decision could be usefully reproduced as under:-
18. What is the true legal position in the matter of proof of wills? It is well known that the proof of wills presents a recurring topic for decision in courts and there are a large number of judicial pronouncements on the subject. The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. S. 67 and 68, Evidence Act are relevant for this purpose. Under S. 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Ss. 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a Court of law. Similarly, Ss. 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression “a person of sound mind” in the context. Section 63 requires that 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 direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the will? Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained?
Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by S. 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters.
19. However, there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a Court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator.
Even so, in dealing with the proof of wills the Court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator’s mind and his signature as required by law, Courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.
20. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder’s case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator’s mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator’s free will and mind. In such cases the Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, Courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter.
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24.2. In Rani Purnima Debi (supra), this Court referred to the aforementioned decision in H. Venkatachala Iyengar and further explained the principles which govern the proving of a Will as follows:-
5. Before we consider the facts of this case it is well to set out the principles which govern the proving of a will. This was considered by this Court in H. Venkatachala Iyengar v. B. N. Thimmajamma, (1959) Supp (1) SCR 426: AIR 1959 SC 443. It was observed in that case that the mode of proving a will did not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by S. 63 of the Indian Succession Act. The onus of proving the will was on the propounder and in the absence of suspicious circumstances surrounding the execution of the will proof of testamentary capacity and signature of the testator as required by law was sufficient to discharge the onus. Where, however, there were suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the Court before the will could be accepted as genuine. If the caveator alleged undue influence, fraud or coercion, the onus would be on him to prove the same. Even where there were no such pleas but the circumstances gave rise to doubts, it was for the propounder to satisfy the conscience of the Court. Further, what are suspicious circumstances was also considered in this case. The alleged signature of the testator might be very shaky and doubtful and evidence in support of the propounder’s case that the signature in question was the signature of the testator might not remove the doubt created by the appearance of the signature. The condition of the testator’s mind might appear to be very feeble and debilitated and evidence adduced might not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will might appear to be unnatural, improbable or unfair in the light of relevant circumstances; or the will might otherwise indicate that the said dispositions might not be the result of the testator’s free will and mind. In such cases, the Court would naturally expect that all legitimate suspicions should be completely removed before the document was accepted as the last will of the testator. Further, a propounder himself might take a prominent part in the execution of the will which conferred on him substantial benefits. If this was so it was generally treated as a suspicious circumstance attending the execution of the will and the propounder was required to remove the doubts by clear and satisfactory evidence. But even when where there suspicious circumstances and the propounder succeeded in removing them, the Court would grant probate, though the will might be unnatural and might cut off wholly or in part near relations. (emphasis supplied)
24.3. In the case of Indu Bala Bose (supra), this Court again said:
7. This Court has held that the mode of proving a Will does not ordinarily differ from that of proving any other document except to the special requirement of attestation prescribed in the case of a Will by Section 63 of the Succession Act. The onus of proving the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court before the court accepts the Will as genuine. Even where circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the court. The suspicious circumstances may be as to the genuineness of the signatures of the testator, the condition of the testator’s mind, the dispositions made in the Will being unnatural, improbable or unfair in the light of relevant circumstances, or there might be other indications in the Will to show that the testator’s mind was not free. In such a case the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last Will of the testator. If the propounder himself takes a prominent part in the execution of the Will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the court would grant probate, even if the Will might be unnatural and might cut off wholly or in part near relations.
8. Needless to say that any and every circumstance is not a suspicious circumstance. A circumstance would be suspicious when it is not normal or is not normally expected in a normal situation or is not expected of a normal person. (emphasis supplied)
24.4. We may also usefully refer to the principles enunciated in the case of Jaswant Kaur (supra) for dealing with a Will shrouded in suspicion, as follows: 9. In cases where the execution of a will is shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant. What, generally, is an adversary proceeding becomes in such cases a matter of the court’s conscience and then the true question which arises for consideration is whether the evidence led by the propounder of the will is such as to satisfy the conscience of the court that the will was duly executed by the testator. It is impossible to reach such satisfaction unless the party which sets up the will offers a cogent and convincing explanation of the suspicious circumstances surrounding the making of the will. (emphasis supplied)
24.5. In the case of Uma Devi Nambiar (supra), this Court extensively reviewed the case law dealing with a Will, including the Constitution Bench decision of this Court in the case of Shashi Kumar Banerjee and Ors. v. Subodh Kumar Banerjee and Ors.: AIR 1964 SC 529, and observed that mere exclusion of the natural heirs or giving of lesser share to them, by itself, will not be considered to be a suspicious circumstance. This Court observed, inter alia, as under:-
15. Section 63 of the Act deals with execution of unprivileged Wills. It lays down that the testator shall sign or shall affix his mark to the Will or it shall be signed by some other person in his presence and by his direction. It further lays down that the Will shall be attested by two or more witnesses, each of whom has seen the testator signing or affixing his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator and each of the witnesses shall sign the Will in the presence of the testator. Section 68 of the Indian Evidence Act, 1872 (in short the Evidence Act) mandates examination of one attesting witness in proof of a Will, whether registered or not. The law relating to the manner and onus of proof and also the duty cast upon the court while dealing with a case based upon a Will has been examined in considerable detail in several decisions of this Court
. A Constitution Bench of this Court in Shashi Kumar Banerjee’s case succinctly indicated the focal position in law as follows: (AIR p. 531, para 4) “The mode of proving a Will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a Will by Section 63 of the Indian Succession Act. The onus of proving the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court before the court accepts the Will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the court. The suspicious circumstances may be as to the genuineness of the signature of the testator, the condition of the testator’s mind, the dispositions made in the Will being unnatural, improbable or unfair in the light of relevant circumstances or there might be other indications in the Will to show that the testator’s mind was not free. In such a case the court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last Will of the testator. If the propounder himself takes part in the execution of the Will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the court would grant probate, even if the Will might be unnatural and might cut off wholly or in part near relations.”
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 earlier 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 specially 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 and Ors.: [1995] 2 SCR 585, it is the duty of the propunder 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 circumstances, 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. .. In Rabindra Nath Mukherjee and Anr. v . Panchanan Banerjee (dead) by LRs. and Ors.: AIR 1995 SC 1684, 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.
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24.8. We need not multiply the references to all and other decisions cited at the Bar, which essentially proceed on the aforesaid principles while applying the same in the given set of facts and circumstances. Suffice would be to point out that in a recent decision in Civil Appeal No. 6076 of 2009: Shivakumar & Ors. v. Sharanabasppa & Ors., decided on 24.04.2020, this Court, after traversing through the relevant decisions, has summarised the principles governing the adjudicatory process concerning proof of a Will as follows:
1. Ordinarily, a Will has to be proved like any other document; the test to be applied being the usual test of the satisfaction of the prudent mind. Alike the principles governing the proof of other documents, in the case of Will too, the proof with mathematical accuracy is not to be insisted upon.
2. Since as per Section 63 of the Succession Act, a Will is required to be attested, it cannot be used as evidence until at least one attesting witness has been called for the purpose of proving its execution, if there be an attesting witness alive and capable of giving evidence.
3. The unique feature of a Will is that it speaks from the death of the testator and, therefore, the maker thereof is not available for deposing about the circumstances in which the same was executed. This introduces an element of solemnity in the decision of the question as to whether the document propounded is the last Will of the testator. The initial onus, naturally, lies on the propounder but the same can be taken to have been primarily discharged on proof of the essential facts which go into the making of a Will.
4. The case in which the execution of the Will is surrounded by suspicious circumstances stands on a different footing. The presence of suspicious circumstances makes the onus heavier on the propounder and, therefore, in cases where the circumstances attendant upon the execution of the document give rise to suspicion, the propounder must remove all legitimate suspicions before the document can be accepted as the last Will of the testator.
5. If a person challenging the Will alleges fabrication or alleges fraud, undue influence, coercion et cetera in regard to the execution of the Will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the Will may give rise to the doubt or as to whether the Will had indeed been executed by the testator and/or as to whether the testator was acting of his own free will. In such eventuality, it is again a part of the initial onus of the propounder to remove all reasonable doubts in the matter.
6. A circumstance is suspicious when it is not normal or is not normally expected in a normal situation or is not expected of a normal person. As put by this Court, the suspicious features must be real, germane and valid and not merely the fantasy of the doubting mind.
7. As to whether any particular feature or a set of features qualify as suspicious would depend on the facts and circumstances of each case. A shaky or doubtful signature; a feeble or uncertain mind of the testator; an unfair disposition of property; an unjust exclusion of the legal heirs and particularly the dependants; an active or leading part in making of the Will by the beneficiary thereunder et cetera are some of the circumstances which may give rise to suspicion. The circumstances above-noted are only illustrative and by no means exhaustive because there could be any circumstance or set of circumstances which may give rise to legitimate suspicion about the execution of the Will. On the other hand, any of the circumstance qualifying as being suspicious could be legitimately explained by the propounder. However, such suspicion or suspicions cannot be removed by mere proof of sound and disposing state of mind of the testator and his signature coupled with the proof of attestation.
8. The test of satisfaction of the judicial conscience comes into operation when a document propounded as the Will of the testator is surrounded by suspicious circumstance/s. While applying such test, the Court would address itself to the solemn questions as to whether the testator had signed the Will while being aware of its contents and after understanding the nature and effect of the dispositions in the Will?
9. In the ultimate analysis, where the execution of a Will is shrouded in suspicion, it is a matter essentially of the judicial conscience of the Court and the party which sets up the Will has to offer cogent and convincing explanation of the suspicious circumstances surrounding the Will.
18. Having taken note of the above principles, this Court has gone through the pleadings and the evidence of the parties, the contents of the Will (Ex.PW2/A) and the findings of the learned Trial Court as expressed in judgment dated 26.04.2018, particularly, the three reasons that weighed with the learned Trial Court while declining the prayer for probate of the Will in question.
19. It was submitted that the three factors which according to the learned Trial Court created a strong doubt regarding the execution of Will by the testatrix, are said to have not been highlighted during the course of final submissions by any of the parties but have been introduced by the learned Trial Court. The first is that the PW1 submitted that the Will in question was prepared by an Advocate in his chamber in Tis Hazari Court Complex and the name of the Advocate is Sh. Roopchand, whereas the Will reveals that the same was drafted and signed by Sh. Dev Kumar, Advocate and not by Sh. Roopchand. The second is that on the day of the execution of the Will, while the petitioner, examined as PW1 stated that he along with the testatrix and both the attesting witnesses, Sh. Kamal Kumar Sharma and Sh. Gyanendra Singh went in a TSR to Tis Hazari Courts i.e., 4 persons went in a TSR on 04.04.2007 to Tis Hazari Courts for execution of the Will, whereas PW2 stated that he along with the petitioner and testatrix went in a TSR on 04.04.2007 to Tis Hazari Courts for execution of the Will meaning thereby three persons went in a TSR to Tis Hazari. The third factor which weighed heavily with the learned Trial Court is that PW2 in his cross examination affirmed/deposed that since he was illiterate, he was read over the contents of the Will by the Advocate. However, there is no assertion by the witness in his affidavit or by way of volunteering in the cross examination that the testatrix was also read over the contents of the Will by an Advocate. This according to the learned Trial Court was an importation assertion to have been incorporated in affirmative evidence of the petitioner since the testatrix was illiterate. While dealing with the above suspicious circumstances concerning the Will, the learned Trial Court dismissed the petition.
20. The basic ingredients for due execution of a Will as per Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872 are reproduced hereinbelow:-
(i) The testator shall sign and affix his mark to the will.
(ii) The signature or mark of the testator shall be so placed that it was intended thereby to give effect to the writing as a will.
(iii) The will shall be attested by two or more witnesses.
(iv) Each of said witness must have seen the testator sign or affix his mark to the will and each of the witnesses should have signed the will in the presence of the testator.
21. The initial onus to prove the Will is always on the propounder but that once that burden is discharged, any suspicion alone cannot form foundation of the judicial verdict; and any suggestion about suspicion ought to be examined by the Court while guarding against conjectures and mere speculation of a doubting mind. There ought to be real, germane and valid suspicious features for which the propounded Will may be called in question.
22. The First Fundamental aspect is whether the testatrix understood the contents of the Will. This Court has meticulously examined the material on record. It is necessary to enlist para 25 of the impugned judgment wherein the learned Trial Court has come to the conclusion that objections filed by respondent no. 3 cannot be sustained and decided the issue in favour of the appellant. The finding is reproduced as under:-
A perusal of the recitals of the Will reveals that testatrix did not claim herself to be the absolute owner of the properties. She only claimed to be owner to the extent of 1/5th share in both the properties. Respondent no. 3 has only stated that property was ancestral but has not come forward with any further averment as to what is the share that he is claiming therein. His plea is that all the heirs of late Sumarta (father) and testatrix (mother) have an equal share in property no. 20. However, it was imperative for Respondent no. 3 to have pleaded regarding the specific share which he was claiming in this property. Since the father (Sumarta) had expired before the Testatrix (wife of Sumarta), it is natural that share of Sumarta devolved upon his wife and children since he is supposed to have died intestate. Keeping this fact, respondent no. 3 should have asserted that testatrix was not having 1/5th share in the properties. Instead of challenging the share claimed by testatrix in the properties, he only alleged that Testatrix could not have bequeathed the entire property to the petitioner. The fact, however, is that Testatrix has only bequeathed her share in both the properties which she asserted to be to the extent of 1/5th in both the properties.
23. Thus, after having thoroughly examined the testimony of the appellant, his cross examination and cross examination of one of the attesting witnesses PW2, nothing is brought on record to show that the testatrix was not aware about the contents of the Will (Ex.PW2/A). Moreso, undisputedly, respondent no. 3 has not preferred any cross appeal to challenge the finding of the learned Trial Court regarding dismissal of his objections.
24. In the present case, it is not in dispute that the testatrix was mentally sound at the time of the execution of the Will. Further the thumb impression of the testatrix also could not be disputed by respondent no. 3 which stands proved through the deposition of PW1 and PW2. The respondent no. 3 could not produce any cogent evidence to establish that the Will (Ex.PW2/A) was prepared after the death of the testatrix or the thumb impression of the testatrix was not appended on the Will. The learned Trial Court was swayed by the discrepancy in the number of persons accompanying the petitioner and testatrix to the Tis Hazari Courts for execution of the Will. However, it is established on record from the testimony of the petitioner, PW1 and the attesting witness, PW2 that the PW2 accompanied the petitioner and testatrix on 04.04.2007, and they went to Tis Hazari Courts for execution of the Will.
25. The petitioner has contended that he is a senior citizen who is about 60 years old and he had come to depose about the execution of the Will after almost 10 years and it might have been difficult for him to recall the name of the Advocate after a long period of time. Admittedly, the said scribe was not a attesting witness to the Will. However, both PW1 and PW2 stated that the Will was prepared by an Advocate at Tis Hazari Court. Moreso, PW1 also stated that he has not met Sh. Roopchand, Advocate for long time and to his knowledge, he was still alive but he was an old aged person. Merely, because the petitioner; the propounder of the Will gave the wrong name of the scribe to the Will does not disprove the execution of the Will.
26. The learned Trial Court also noted that the sole objector, respondent no. 3 to the Will had not even objected to the grant of probate on these grounds as noticed suo motu by learned Trial Court. In view of the foregoing discussion, it cannot be said that the three circumstances noticed by learned Trial Court are suspicious when the execution of the Will is otherwise proved in accordance with Section 63 of the Indian Succession Act in consonance with Section 68 of the Indian Evidence Act.
27. In my considered view, the testimony of PW2, the attesting witness cannot be ignored. Respondent no. 3 has not been able to point out any suspicious circumstance other than making a general allegation which would disentitle the grant of the probate of the Will dated 04.04.2007.
28. In view of the matter, the appeal is accepted. The impugned order dated 26.04.2018 is set aside and the probate with respect to the Will (Ex.PW2/A) is subject to payment of the requisite stamp duty and fee to be paid by the appellant/petitioner. The appellant/petitioner is the sole beneficiary under the Will, he is exempted from furnishing any security bond. He will, however, file the Administration Bond to the satisfaction of the learned Trial Court, for which purpose, the matter be listed before the learned Trial Court on 11.03.2024.
SHALINDER KAUR, J.
FEBRUARY 05, 2024
SU
FAO 523/2018 Page 1 of 18