Delhi District Court
Geeta Jaitly vs State on 8 April, 2024
IN THE COURT OF SH. AJAY GARG, ADDITIONAL
DISTRICT JUDGE - 01, EAST DISTRICT,
KARKARDOOMA COURTS, DELHI
PC 18/16
CNR No. DLET01-000376-2014
In the matter of :
Geeta Jaitly
W/o Sh. Bharat Bhushan Jaitly,
R/o 419, South Carriage Way,
London Ontario, Pin N6GO82
Presently at:
253, 1st Floor, Bharat Nagar,
Ashok Vihar, Delhi-110052
.............Petitioner
Vs.
1. The State
2. Raj Rani Bhardwaj
W/o Late Sh. Guru Dutt
R/o 24/40, West Patel Nagar,
New Delhi-110008
3. Vinod Bhardwaj
S/o Late Sh. Guru Dutt,
R/o 24/40, West Patel Nagar,
New Delhi-110008.
4. Shashi Trikha
W/o Raj Kr. Trikha
D/o Late Sh. Guru Dutt
R/o 240/6, Central Town,
Jhalandhar City, Punjab
5. Sunita Jhingan
S/o Sh. Girish Jhingan
D/o Late Sh. Guru Dutt
R/o 36, Todarmal Road,
Bengali Market, New Delhi-110001
6. Anita Sharma
PC 18/16 Geeta Jaitly Vs. The State & Ors Pages 1 of 21
W/o Sh. Rajesh Sharma
D/o Late Sh. Guru Dutt
R/o 1/17, Jangpura Extension,
New Delhi
...........Respondents
Date of Institution : 15.01.2014
Reserved for order : Not reserved
Date of Decision : 08.04.2024
Petition U/s 276 of the Indian Succession Act for grant of
probate of the Will dated 06.11.2001 executed by the deceased
Sh. Guru Dutt, S/o Late Sh. Durga Dass
JUDGMENT
1. Briefly stating, the instant petition is filed for grant of probate/letter of administration of the Will dated 06.11.2001 executed by the deceased Sh. Guru Dutt in favour of the petitioner.
The deceased was a Hindu and was governed by Indian Succession Act, 1956. The deceased was lastly residing at 24/40, West Patel Nagar, New Delhi and died naturally on 17.08.2006 at Jeewan Mala Hospital, Delhi leaving behind petitioner and respondent nos. 2 to 6 herein as his class I legal heirs. The present petition has been filed by the petitioner through her SPA holder vide SPA dated 08.01.2014. By virtue of the instant petition, the petitioner has sought letter of administration/probate in respect of immovable property bearing No.8-T, Plot No.9, Category C, Third Floor, Delhi Police Employees Co-operative Group Housing Society Ltd., Mayur Vihar, Delhi (hereinafter referred to as "said property"). The petitioner and respondent nos.4 to 6 are the daughters of the PC 18/16 Geeta Jaitly Vs. The State & Ors Pages 2 of 21 deceased. The respondent no.2 and 3 are the wife and son of deceased respectively. The deceased executed a Will dated 06.11.2001 in English language prior to his death, whereby nominated the petitioner herein as the sole beneficiary of his estate. The petitioner is the residence of Canada and after the death of deceased, the petitioner came to India during the month of September, 2012 and met the concerned office bearers of Delhi Police Employees Co-operative Group Housing Society Ltd. for transferring the said property in her name on the basis of said Will. Due to marriage of her son in March, 2013, the petitioner was unable to initiate legal proceedings for the probate of the said Will. Thereafter, the petitioner filed the present petition started residing in India since November, 2013 for the purpose of transferring the said property in her name as per wishes of deceased. There is no legal impediment for grant of probate of the present Will.
2. The notice of the petition was issued to the respondents and the respondent no.1/State was duly served by way of publication in the newspaper 'Veer Arjun' dated 05.03.2014. Despite service, none appeared on behalf of respondent no.1 and hence, the respondent no.1 was proceeded exparte vide order dated 01.05.2014.
Upon notice, objections to the instant petition was filed by respondent nos.2, 3, 5 & 6 on the ground that the petition filed by the petitioner is not maintainable in law and facts; same is barred by law including time since as per the petition, the deceased Sh. Guru Dutt expired on 17.08.2006 whereas the present petition was filed in the month of January, 2014 i.e. PC 18/16 Geeta Jaitly Vs. The State & Ors Pages 3 of 21 almost more than seven years after the death of deceased; this court has no territorial jurisdiction to try and entertain the present petition as the deceased was the permanent and ordinary residence of West Patel Nagar, New Delhi; the petitioner has no cause of action to file the present petition; the petition has not been signed, verified and instituted by a duly authorized person; no reason, cause, jurisdiction or clarification has been given as to why the petitioner has not signed, verified, filed and instituted the present petition; the petition under reply is not maintainable as the same is not in accordance with the provisions and requirement of Indian Succession Act; the purported Will dated 06.11.2001 is forged, fabricated, manipulated and managed document as it neither bears the signature of deceased nor the complete name of the deceased is mentioned on the Will; at the time of execution of alleged Will, the petitioner was not residing at the address mentioned in the Will; the alleged Will and the deposition made thereunder is an unusual, unnatural, improbable, unfair and unreliable document; the purported Will had never been made, signed and executed by the deceased; the deceased never instructed any person including the person allegedly drafted the said Will and therefore, there was no reason or occasion for the alleged witnesses to sign or attest the Will in question; the Will in question is not a real, valid and genuine document as the same is completely silent about all other assets of the deceased; the petitioner has not approached the Hon'ble Court with clean hands and is guilty of suppression and concealment of material facts.
On merits, it is submitted that the deceased was the permanent and ordinary resident at 24/30, West Patel Nagar, New PC 18/16 Geeta Jaitly Vs. The State & Ors Pages 4 of 21 Delhi and the same is his last residence. The deceased died intestate and thus, all his legal heirs inherited the property/estate in equal share. The deceased had not executed any Will or testament. The preparation of the propounded Will is shrouded with suspicious circumstances and it shows the active participation of the petitioner. Neither the family members nor the details of any property has been mentioned in the Will in question. Further, on the date of execution of the said Will, the petitioner was not residing at the address mentioned in the said Will. Besides this, the averments of the petition were denied and prayer to dismiss the petition was made.
3. Notice of the petition was also issued to respondent no.4 but despite service, none appeared on behalf of respondent no.4. Accordingly, respondent no.4 was proceeded ex-parte vide order dated 04.06.2014. Thereafter, respondent no.4 moved an application for setting aside ex-parte order dated 04.06.2014 and the said application was allowed vide order dated 31.01.2018. Despite opportunities, no objection/written statement was filed by the respondent no.4.
4. Reply to the objections of respondent nos. 2, 3, 5 & 6 was also filed by the petitioner in which the averments of the objections were denied and the contents of petition were reiterated and reaffirmed.
ISSUES:
5. From the pleadings of the parties, following issues were framed on 02.09.2015: PC 18/16 Geeta Jaitly Vs. The State & Ors Pages 5 of 21
1. Whether the Will in question is the last Will executed by the Testator in sound disposing mind? OPP.
2. Whether the petition has not been filed by the duly authorized person? OPR2, 4, 5 & 6.
3. Relief.
6. During proceedings, an application under Order XXII Rule 1 & 2 CPC was filed by the petitioner for deleting the name of respondent no.2 from the array of parties since the respondent no.2 had already expired and her legal heirs were already on record. Vide order dated 25.04.2016, the said application was allowed and the name of respondent no.2 was deleted from the array of parties.
EVIDENCE:
7. In order to substantiate the case, the petitioner examined her SPA Holder Sh. Sudhanshu Bhatnagar as PW1 who tendered his evidence by way of affidavit Ex.PW1/1 wherein he reiterated all the averments made in the petition. He has also placed reliance on the following documents:
a) Ex.PW1/A is SPA executed in his favour by the petitioner.
b) Ex.PW1/B is Will dated 06.11.2001 executed by Sh. Guru Dutt in favour of the petitioner.
c) Ex.PW1/C is original death certificate of Late Sh. Guru Dutt.
d) Mark A is copy of passport of the petitioner.
e) Mark B is copy of nomination affidavit of Late Sh. Guru Dutt.
PC 18/16 Geeta Jaitly Vs. The State & Ors Pages 6 of 21 This witness was exhaustively crossexamined by Ld. Counsel for respondent nos. 3, 5 & 6. Opportunity to cross examine the said witness was also given to the remaining respondents but the same was not availed.
PW2 Ms. Sarita Gautam, Assistant Section Officer, SubRegistrar Office, INA tendered her evidence by way of affidavit Ex.PW2/1 and relied upon the Will dated 06.11.2001 executed by Late Guru Dutt as Ex.PW2/A. PW3 Sh. Manish Saini is one of the attesting witness of the Will dated 06.11.2001. He tendered his evidence by way of affidavit Ex.PW3/1 and identified his signature at point A on Ex.PW1/B. He also tendered copy of his Aadhar card as Ex.PW3/A. He deposed that the Will in question was prepared by the advocate of deceased and was registered in the office of SubRegistrarVII, INA, Delhi in his presence. He further deposed that at the time of execution of the said Will, the deceased was in healthy state of mind and executed the said Will without any coercion and out of his own free will.
Both the witnesses were exhaustively cross examined by Ld. Counsel for respondent nos. 3 to 6. Despite opportunities, the remaining respondents did not crossexamine the said witnesses.
8. Thereafter, petitioner's evidence was closed on 10.04.2019 vide separate statement of Ld. Counsel for petitioner.
9. No evidence was led by the respondents despite PC 18/16 Geeta Jaitly Vs. The State & Ors Pages 7 of 21 opportunities being given and hence, respondent's evidence was closed vide order dated 15.10.2019.
RIVAL CONTENTIONS:-
10. Ld. Counsel for petitioner submitted that the present petition cannot be barred by limitation in any manner as it has been filed within three years from the date when the right accrued to obtain the probate of Will. The present petition has been filed in January, 2014 whereas, the testator died in August, 2006. He further submitted that the petitioner is residing in Canada and therefore, the present petition has been filed through Special Power of Attorney in the year 2014. In September, 2012 when the petitioner visited India after the death of her father, she met the Employees of Delhi Police Welfare Association, Mayur Vihar for transfer of the said property in her name and hence, the cause for obtaining the probate of the Will accrued in the year 2012. Hence, the present petition filed in the year 2014 is within limitation. In support, he relied upon case titled as "S.S. Lal Vs. Vishnu Mitter Govil, 112(2004) DLT877, wherein it is held that Article 137 of Indian Limitation Act is applicable only in case of revocation of probate. Further, in Shri Gurtej Singh Vs. The State & Ors. FAO 122/2014, Decided by the Hon'ble Delhi High Court on 14.10.2014, wherein it is so held:-
"there is no provision for limitation for filing petition for probate or letter of administration, hence, Article 137 came into operation which provides limitation of 3 years from date of accrual of right. The period of limitation will not commence from the date of death of testator, more so when in National Capital Territory of Delhi, there is no law which compels the applicant to file proceedings of probate or letter of administration. It has been further held that Limitation Act, PC 18/16 Geeta Jaitly Vs. The State & Ors Pages 8 of 21 1963, Section 3 and Article 137, Letter of Administration Commencement of limitation from date of death of testator or date of accrual of right. Hence, limitation for filing the probate or letter of administration of a Will not commence from the date of death of the testator but will commence from the date when right to apply' accrues."
He further submitted that even the judgment titled as Krishna Kumar Sharma Vs. Rajesh Kumar Sharma (2009) CLT 391 relied upon by the counsel for respondent wherein it is held that right to apply would accrue when it becomes necessary to apply which may not necessarily be within 3 years from the date of the deceased's death and further it would arouse suspicion and greater the delay, greater would be the suspicion. It has been further held that such delay must be explained but cannot be equated with the absolute bar of limitation.
Ld. Counsel further submitted that the present petition has been filed by the SPA Holder of the petitioner who has been duly authorized by the petitioner and the said SPA is a legal document. PW1 has not only proved the genuineness of Will in question beyond reasonable doubt but also has proved that the said Will was signed by the testator in his sound disposing mind. Section 63 of the Indian Succession Act declares the substantive law regarding the execution of an unprivileged Will and it mandates that the testator has to sign or affix his mark in the presence of two or more attesting witnesses, it being not necessary that the two attesting witnesses should simultaneously be present to witness the execution of the Will. The attesting witness PW2 has explained each and every minute details whatever they recollected even after 20 years of execution and registration of Will. He identified the testator and proved that the Will was validly executed. PW3 also proved the genuineness of PC 18/16 Geeta Jaitly Vs. The State & Ors Pages 9 of 21 the Will in question by bringing the photocopy of the record from Sub-Registrar Office VII, INA, New Delhi. In support, he relied upon following judgments:-
i. Chanan Devi Vs. Des Raj Ramchand And Ors. AIR 1965 P & H 138, AIR 1965 Punjab 138.
ii. H. Venkatachala Lyenar Vs. B.N. Thimmajamma & Ors.
1959 AIR 443, 1959 SCR SUPL.(1) 426, AIR 1959 Supreme Court 443.
iii. Janki Narayan Bhoir Vs. Narayan Namdeo Kadam, AIR 2003 SC 761.
iv. Jaswant Kaur Vs. Amrit Kaur & Ors., 1977 AIR 74. v. Girja Datt Singh Vs. Gangotri Datt Singh, AIR 1955 SC346.
vi. Benga Behera & Anr. Vs. Braja Kishore Nanda & Ors.
AIR 2007 Supreme Court 1975.
11. Per contra, Ld. Counsel for respondent nos.3, 5 & 6 submitted that no probate of the alleged Will can be granted to the petitioner since the petitioner is not named as executor in the alleged Will but merely a beneficiary. As per law, probate can only be granted to the named executor, if any and not to the beneficiary, thus, the petition for grant of probate is not maintainable. He further submitted that this court has no jurisdiction as the deceased was an ordinary residence of West Patel Nagar, New Delhi which is outside the jurisdiction of this court. Further, the petitioner herself has not stepped into the witness box to depose and to appear for cross-examination without any reason or cause, thus, adverse inference has to be drawn against the petitioner. The person who has signed and PC 18/16 Geeta Jaitly Vs. The State & Ors Pages 10 of 21 verified the present petition has neither personal knowledge about the facts nor so authorized. He relied upon the cross- examination of PW1 dated 13.10.2016 wherein he deposed that:-
"I know the petitioner for last 10 years. I have never met the deceased Guru Dutt. The petitioner told me about the death of Sh. Guru Dutt and Will in question. The said Will was neither written in my presence nor prepared under my instructions. I have not signed the Will being its attesting witness. The will was not registered in my presence. The contents of the petition were told to me by the petitioner and the advocate of the petitioner. The petitioner herself has engaged the counsel for this case. The petitioner told me that her father made the nomination in her favour in respect of the property..... I do not know what is meant by nomination. Vol. I had seen the Will of the deceased. At the time of filing of the present petition, the petitioner was present in India.
In cross-examination dated 03.05.2018, PW1 deposed that:
" It is correct that the petitioner visited the office of the concerned society with regard to the flat in question, as and when she had visited India from 2007 till filing of the present petition... It is correct that the relation of the deceased with his wife was cordial and she was residing with the deceased.... I do not know any reason as to why the deceased had not bequeathed the flat in question to his wife, his son and other daughters..... I do not remember as to whom the SPA Ex.PW1/A was given as it is an old matter...... I do not have complete knowledge of the facts stated in the petition but I have some knowledge about the same".
Ld. Counsel for respondent nos. 3, 5 & 6 further submitted that the affidavit in evidence filed by PW2 is not properly verified and hence, the same is no affidavit in the eyes of law. In cross-examination, PW2 deposed that the Will in question was neither drafted by her nor in her presence. She further deposed that Patel Nagar and Mayur Vihar areas are not within the jurisdiction of Sub-Registrar-VII, INA, New Delhi. She has not produced any authority letter from the concerned Sub-Registrar to appear before the court with the record. Ld. PC 18/16 Geeta Jaitly Vs. The State & Ors Pages 11 of 21 Counsel further submitted that the affidavit of evidence filed by PW3 is also not proper, legal and valid as PW3 has not deposed that the testator/executant signed the Will in his presence. He also did not depose about the second attesting witness. Further, in cross-examination, PW3 stated that he does not know as to who was the second witness and from where he came. He admitted that the second attesting witness was not present in his office when the said Will was drafted. Ld. Counsel further submitted that the petitioner has failed to prove due execution and attestation of the alleged purported Will. None of the witnesses produced by the petitioner have been able to depose and meet the requirement of proving the Will as required under Section 63 of Indian Succession Act and Section 68 of Indian Evidence Act. The witnesses produced by the petitioner have failed to identify the signatures of the deceased/executor. Even none of the witnesses have deposed that the deceased allegedly executed the Will after reading and understanding the same and the same was signed in the presence of each other. He further submitted that mere registration of a Will itself does not prove the execution of Will and its genuineness.
12. He further submitted that there are suspicious circumstances which the petitioner has failed to explain since the Will is silent about the family members and any other property owned by the deceased. It is also not stated as to why the bequeath in the alleged Will was not made in favour of his wife, who was alive at that point of time and with whom the deceased had good relations and they were living together. Thus, the alleged Will is unnatural and unfair. Further, why the deceased PC 18/16 Geeta Jaitly Vs. The State & Ors Pages 12 of 21 will get such personal documents, like Will and GPA, attested/witnessed from unknown persons whom he had never met earlier. The inclusion of strangers as attesting witnesses is intriguing. The utter improbability of the testator accosting two strangers for getting his alleged Will attested and fundamental contradictions in the statement of PW3 render it impossible to hold the alleged two witnesses attested the alleged Will at the instance of the testator. In support, he relied upon case titled as "Janki Vashdeo Bhojwani & Anr. Vs. Indusind Bank Ltd. & Ors. AIR 2005 SC 439 wherein it is so held:-
"Power of attorney holder cannot depose in place and instead of principal. Order III rule 1 CPC empowers the holder of power of attorney to 'act' on behalf of the principal. The word 'act' employed in Order III Rule 1 and 2 CPC confines only in respect of 'acts' done by the power of attorney holder in exercise of power granted by the instrument. The term 'acts' would not include deposing in place and instead of the principal".
In Dr. Manmohan Singh Dhaliwal Vs. Gurbax Singh Arora, 94 (2001) DLT 820, wherein it is so held:
"Unless and until specific power has been conferred upon the attorney, the attorney is not free to arrogate powers of dominus. The attorney has only those powers which are specified in the power of attorney. A power of attorney is always to be interpreted strictly in its terms. There is no scope for searching meaning or intentions. Nor it is permissible to stretch or provide elasticity to he meaning of the words. Mere execution of power of attorney does not mean that the attorney has been conferred with powers to do all such acts which the executor/principal of the attorney possess."
He further relied upon the following judgments:
i. Yumnam Ongbi Tampha Ibema Devi Vs. Yumnam Joykumar Singh (2009) 4 SCC 780.
ii. Tikkan Lal Batta Vs. Ashok Kumar, AIR 2005 P & H
145.
iii. Bharpur Singh & Ors. Vs. Shamsher Singh, AIR 2009 PC 18/16 Geeta Jaitly Vs. The State & Ors Pages 13 of 21 Supreme Court 1766.
iv. Janki Narayan Bhoir Vs. Narayan Namdeo Kadam, VII (2002) SLT 361=AIR 2003 Supreme Court 761. v. Bhagat Ram & Anr. Vs. Suresh & Ors. AIR 2004 SC
436. vi. Krishna Murari Mangal Vs. Prakash Narain, AIR 2003 NOC 37 (MP).
vii. Sujata Kohli Vs. The State, FAO No. 520/16 decided on 16.04.2019.
viii. Bhagwan Kaur Vs. Kartar Kaur (1994) 5 SCC 135. ix. Smt. Jaswant Kaur Vs. Smt. Amrit Kaur (1977) 1 SCC
369. x. Bharpur Singh & Ors. Vs. Shamsher Singh, AIR 2009, Supreme Court 1766.
xi. Mohan Singh Vs. Ishar Singh, AIR 2005 Punjab & Haryana 79.
xii. Tikkan Lal Batta Vs. Ashok Kumar, AIR 2005 P & H
145. xiii. Bhagwan Kaur Vs. Kartar Kaur (1994) 5 SCC 135. xiv. Vidhyadhar Vs. Mankikro & Anr. AIR 1999 SCC 1441.
xv. Paritosh Patra Vs. Angur Bala Rana (2014) III CLT 654 (DB).
xvi. Kunwarjeet Singh Khandar Vs. Kirandeep Kaur, AIR 2008 SC 2058.
xvii. Bisakha Rani Ghose Vs. Satish Chandra Ray Singha, AIR 1956 Cal. 496.
xviii. A.K.K. Nambiar Vs. Union of India, AIR 1970 SC
652. PC 18/16 Geeta Jaitly Vs. The State & Ors Pages 14 of 21 He further submitted that in view of the above facts and circumstances, the present petition is not maintainable and the petitioner has failed to prove due execution of the purported Will.
13. Heard. Record perused. Considered. On the basis of submissions advanced at bar, pleadings and evidence, my issue- wise findings are as under:-
FINDINGS:
ISSUE NO.1:
"Whether the Will in question is the last Will executed by the Testator in sound disposing mind? OPP"
14. Onus to prove this issue is upon the petitioner. The deceased testator had executed the Will dated 06.11.2001 in favour of only one of his daughter namely Smt. Geeta Jaitly i.e. the petitioner herein. In order to prove this issue, the petitioner examined her SPA Holder PW1, Assistant Section Officer, Sub- Registrar Office as PW2 and one of the attesting witness of the Will as PW3. The testimony of PW1 is of no use since neither he ever met deceased testator nor deposed about his sound and disposing state of mind. Further, neither Will was drafted nor executed in his presence. Further, he categorically admitted that the contents of petition were told to him by petitioner and the advocate. Meaning thereby, he has no personal knowledge of the case and deposed on the basis of hearsay. Thus, his testimony does not lend credence to the case of petitioner. PW2 is a formal witness who produced the record and proved registration of Will. Further, even the star witness of the petitioner namely PW3 Sh. PC 18/16 Geeta Jaitly Vs. The State & Ors Pages 15 of 21 Manish Saini failed to prove the execution of Will as required under Section 63 & 68 of Indian Evidence Act. Neither he identified the signatures of the testator nor the other attesting witness on the Will. Further, he admitted to be a stranger to the testator and met him only when he visited him for drafting of documents and Will and pleaded ignorance about his health. Since the only attesting witness PW3 has neither identified the signatures of testator on the Will Ex.PW1/B nor the attestation of the Will by other witness, the Will cannot be held to be proved as per Section 63 and 68 of Indian Evidence Act.
15. As per Section 63 of Succession Act and Section 68 & 71 of Indian Evidence Act, a Will can be proved only by examining its attesting witness who shall depose regarding the time of the execution and the factum of execution of the Will by putting signatures by testator in his presence. The Hon'ble Delhi High Court in case titled as "CS Aggarwal Vs. State, TEST. CAS. 8/1995, while discussing the principles relating to mode of proving a Will held so:-
"25. Section 63 of the Succession Act, 1925 provides that a will has to be attested by two or more witnesses, each of whom has seen the testator sign or affiX his mark to the will or has seen some other person sign the will, in the presence, and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator. If the eXecution of a will is surrounded by the suspicious circumstances, such as doubt on the mental capacity of the testator; the propounder taking prominent part in the eXecution of the will which confers substantial benefit on the propounder; or unnatural, improbable or unfair dispossessions, the onus is on the propounder of the will to remove the suspicions. The probate can be granted only after the judicial conscience of the Court is satisfied that the will was e Xecuted by the PC 18/16 Geeta Jaitly Vs. The State & Ors Pages 16 of 21 testator and the propounder has removed all legitimate suspicions.
Further, reliance in this regard can be placed on case titled as "Yumnam Ongbi Tampha Ibema Devi Vs. Yumnam Joykumar Singh (2009) 4 SCC 780, wherein it is so held:-
"12. The attestation of the Will in the manner stated above is not an empty formality. It means signing a document for the purpose of testifying of the signatures of he executant. The attested (sic attesting) witness should put his signature on the Will animo attestandi. It is not necessary that more than one witness be present at the same time and no particular form of attestation is necessary. Since a will is required by law to be attested, its execution has to be proved in the manner laid down in the section and the Evidence Act which requires that at least one attesting witness has to be examined for the purpose of proving the execution of such a document.
13. Therefore, having regard to the provisions of Section 68 of the Evidence Act and Section 63 of the Succession Act, a will to be valid should be attested by two or more witnesses in the manner provided therein and the propounder thereof should examine one attesting witness to prove the Will. The attesting witness should speak not only about the testator's signature or affixing his mark to the Will but also that each of the witnesses had signed the Will in the presence of the testator."
Further in "Vidya Sagar Soni v. State, 2006 SCC OnLine Del 965", the Hon'ble Delhi High Court further elucidated the principles relating to the mode of proving the will. Relevant portion of the judgment are reproduced hereunder:-
"5. Section 2(h) of the Indian Succession Act, 1925 defines a Will to mean the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death.
6. The legal burden to prove due execution always lies upon the person propounding a Will. The propounder must satisfy the judicial conscience of the Court that the instrument so propounded is the last will of a free and capable testator.
7. A Will is a solemn document, being written by a person who is dead and who cannot be called in evidence to testify about the due execution of the Will. It is the living who have to establish the Will. It naturally throws a heavy burden on PC 18/16 Geeta Jaitly Vs. The State & Ors Pages 17 of 21 the Court to satisfy its judicial conscience that the burden of proof of due execution is fully discharged and every suspicious circumstance explained.
8. No specific standard of proof can be enunciated which must be applicable to all the cases. Every case depends upon its own circumstances. Apart from other proof, conduct of parties is very material and has considerable bearing on evidence as to the genuineness of the Will which is propounded. Courts have to be vigilant and zealous in examining evidence. Rules relating to proof of wills are not rules of laws but are rules of prudence. Normally, a Will is executed by a person where he desirous, to either alter the normal rule of succession, or where he desirous to settle his estate in a particular manner amongst the legal heirs. Therefore, though to be kept in mind, as to what is the nature of bequest too much importance cannot be attached to the disproportionate nature of a bequest. However, as observed in (1995) 4 SCC 459 : AIR 1995 SC 1684, Rabindra Nath Mukherjee v. Panchanan Banerjee (dead) by LRs, disproportionate nature of a bequest is no doubt a suspicious circumstance to be kept in mind, but, being a mere suspicion, it is capable of being dispelled by other evidence to show voluntary character of the document.
9. Therefore, the first rule to appreciate evidence is to peruse the Will. Normally, if there is rationality in a Will, a presumption arises about due execution. Of course, being a presumption, it is rebuttable.
10. As observed in AIR 1962 Punjab 196, Smt. Kamla Devi v. Kishori Lal Labhu Rant, the omission of a close relation from the bounty of a testator raises a presumption in favour of some undue influence. The probative force of such a testament rises and falls in inverse ratio to its unreasonableness.
11. The more unreasonable an instrument is, the less probative value it carries. Where the terms of a Will are unusual and the evidence of testamentary capacity doubtful, or due execution doubtful, the vigilance of the Court will be roused and before pronouncing in favour of the Will, the Court would microscopically examine the evidence to be satisfied beyond all reasonable doubt that the testator was fully conversant of the contents and executed the Will fully aware of what he was doing.
12. Expanding on the care and caution to be adopted by Courts, and presumptions to be raised, in the decision (1864) 3 Sw and Tr. 431 in The Goods of Geale, it was opined that where a person is illiterate or semi-literate or the Will is in a PC 18/16 Geeta Jaitly Vs. The State & Ors Pages 18 of 21 language not spoken or understood by the executor, the Court would require evidence to affirmatively establish that the testator understood and approved all the contents of the Will.
13. This affirmative proof of the testator's knowledge and approval must be strong enough to satisfy the Court, in the particular circumstances, that the Will was duly executed.
14. One form of affirmative proof is to establish that the Will was read over by, or to, the testator when he executed it. If a testator merely cats his eye over the Will, this may not be sufficient [see 1971 P.62 Re Moris). In the report published as (1867) 1 P.D. 359, Goodacr v. Smith, it was held that another form of affirmative proof is to establish that the testator gave instructions for his Will and that the Will was drafted in accordance with those instructions.
15. Courts have to evaluate evidence pertaining to the circumstances under which the Will was prepared. If a Will is prepared and executed under circumstances which raise a well grounded suspicion that the executor did not express his mind under the Will, probate would not be granted unless that suspicion is removed.
16. As held in the report published as (1838) 2 Moo P.C. 480, Barry v. Butlin, a classic instance of suspicious circumstances is where the Will was prepared by a person who took a substantial benefit under it. Another instance is as opined in the report published as (1890) 63 LT 465, Brown v. Fisher where a person taking benefit under the Will has an active role to play in the execution of the Will.
17. A word of caution. Circumstances can only raise a suspicion if they are circumstances attending, or at least relevant to the preparation and execution of the Will itself.
18. How the legal heirs acted and how and when a Will was propounded after the death of the executor are also relevant to decide upon, where the Will is genuine or a created or a procured document.
19. Another point that has to be considered is about the improbability in the manner in which the instrument is scripted. As observed in the report published as AIR 1959 SC 443, H. Venkatachala Iyengar v. B.N. Thimmajamma, instance of suspicious circumstances would be alleged signatures of the testator being shaky and doubtful, condition of the testator's mind being feeble and debilitated, bequest being unnatural, improbable or unfair. Apart from these infirmities, propounder taking a prominent part in the PC 18/16 Geeta Jaitly Vs. The State & Ors Pages 19 of 21 execution of the Will, more so when substantial benefits flow to them are all presumptive of the Will not being duly executed and or of suspicious circumstances.
20. Suspicious circumstances are a presumption to hold against the Will. Greater is the suspicion more heavy would be the onus to be discharged by he who propounds the Will.
21. Reference to satisfaction of judicial conscience is a heritage inherited by Court's since time immemorial for the reason, as noted above, a Will is a solemn declaration as per which the living have to carry out the wishes of a dead person."
In view of the above discussion, it is held that petitioner has failed to prove that the Will Ex.PW1/B is the last Will executed by the testator in sound disposing mind. Hence, this issue is decided against the petitioner.
ISSUE No.2:
"Whether the petition has not been filed by the duly authorized person? OPR2, 4, 5 & 6"
17. Onus to prove this issue is upon the respondent nos.2, 4, 5 & 6. However, respondents have not led any evidence in affirmative in support of this issue. On perusal of the testimony of PW1, it can be safely presumed that he deposed only on the basis of information received from the petitioner and have no personal knowledge about the present case. However, authorization to file the present petition has been duly proved on record vide SPA Ex.PW1/A. Accordingly, this issue is decided in favour of the petitioner.
ISSUE NO.3(Relief):
PC 18/16 Geeta Jaitly Vs. The State & Ors Pages 20 of 21
18. In view of the findings recorded in issue No.1, it is held that petitioner has failed to prove the Will Ex.PW1/B in accordance with law. Hence, the present petition for grant of probate/letters of administration is dismissed being not maintainable.
Accordingly, the petition stands disposed off. File be consigned to the record room after due compliance.
Announced in the open court (Ajay Garg)
On 08.04.2024 Additional District Judge-01
(East) Karkardooma Courts, Delhi
PC 18/16 Geeta Jaitly Vs. The State & Ors Pages 21 of 21