Delhi District Court
Late Mr. Shyam Sunder Bajaj (Now ... vs The State on 3 April, 2018
IN THE COURT OF SH. SANJAY KUMAR: ADDL.
DISTRICT JUDGE, (WEST)-02, TIS HAZARI COURTS:DELHI.
Probate Case No.- 36/09
New P.C. No. 16085/16
1. Late Mr. Shyam Sunder Bajaj (now deceased)
Through his Legal Heirs / Representatives:
I. Mrs. Saroj Bajaj,
W/o Late Mr. Shyam Sunder Bajaj
R/o B/A-272, Tagore Garden,
New Delhi-110027
ii. Ms. Chhavi
D/o Late Mr. Shyam Sunder Bajaj
R/o B/A-272, Tagore Garden,
New Delhi-110027
iii. Mr. Gaurav Bajaj
S/o Late Mr. Shyam Sunder Bajaj
R/o B/A-272, Tagore Garden,
New Delhi-110027
2. Mrs. Shashi Bala.
W/o Mr. Anil Kumar
R/o QU-30 B, Vishakha Enclave,
Pitampura, Delhi-110088 ..........Petitioners
Versus
1 The State
2. Mrs Neeru Bajaj
W/o Late Shri Krishan Kumar Bajaj
R/o First floor,
B/A 272, Tagore Garden,
New Delhi- 110027 ......Respondents
Date of institution of the case : 24.09.2009
Date reserved for judgment on : 07.03.2018
Date of pronouncement of judgment: 03.04.2018
PC No. 36/09 Shyam Sunder Bajaj Vs State & Ors Page 1 of 31
JUDGMENT:
1 A petition for grant of Probate/Letter of Administration of the Will dated 11.05.1993 in respect of immovable property of late Smt. Satyawati Bajaj has been filed.
2 In brief the facts are that Smt. Satyawati Bajaj (hereinafter referred to as "deceased") who executed a Valid Will on May 11, 1993 in favour of the petitioners and husband of respondent no. 2, who has since expired on January 17, 2006, bequeathing immovable property, out of her estate. It is stated that the Will dated 11.05.1993 is the last Will and Testament of deceased and deceased had executed the said Will 11.05.1993 in sound disposing mind. It was signed and executed by her and was attested by two witnesses, who signed it in the presence of the Testator and the Testator also signed in the presence of two witnesses. It is stated that Will dated 11.05.1993 was registered with the office of Sub-Registrar, Sub District No. 1, Delhi vide Registered No. 19958 in Additional Book No. 3, Volume No. 1780 on page no. 142 to 143 dated 11.05.1993.
3 It is stated that by virtue of Will dated 11.05.1993 the ground floor of the property alongwith 1/3rd proportionate share in the land, has inter-alia been bequeathed by deceased in favour of petitioner no. 1, the first floor of the property alongwith 1/3rd proportionate share in the land has inter-alia been bequeathed by deceased in faovur of husband of respondent no. 2, and the exclusive roof right to construct on the first floor alongwith 1/3rd proportionate share in the land and should also have right to make further floors thereon, has inter-alia been bequeathed by deceased in favour of petitioner no. 2.
PC No. 36/09 Shyam Sunder Bajaj Vs State & Ors Page 2 of 314 It is stated that petitioners and the husband of respondent no. 2 are the children of the deceased and she had great love and affection for her children and had bequeathed the immovable property viz. Plot No. B/A, 272, Tagore Garden, New Delhi 110027 to the petitioners and husband of respondent no. 2. The petitioner no. 1 was brought up by deceased as her son and she was living with the petitioner no. 1 before her death.
5 It is stated that husband of deceased had predeceased her. Apart from the petitioner no. 1 other legal heirs of the deceased are Mrs Shashi Bala, the daughter of Testator and Mrs Neeru Bajaj, wife of late Mr. Krishan Kumar Bajaj, the younger son of the Testator, who has since expired on 17.01.2006. Petitioners seeks Probate/Letter of Administration of the Will annexed dated 11th May, 1993 executed by late Smt. Satyawati Bajaj in favour of the petitioners in respect of property bearing House Plot No. B/A 272, Tagore Garden, New Delhi- 110027.
6 Upon filing of petition, notices were issued to all the legal heir of the deceased, respondents, state through collector and citation to general public got published in daily newspaper "Dainik Jagran" dated 11.11.2009 ".
7 The valuation report in respect of immovable property was called from the concerned SDM/Collectors, accordingly Tehsildar Sub-Division, Rajouri Garden, New Delhi filed valuation report in respect of property bearing no. BA-272, Tagore Garden, New Delhi and assessed the value of the same as Rs. 19,56,691/-.
PC No. 36/09 Shyam Sunder Bajaj Vs State & Ors Page 3 of 318 Respondent no. 2 filed written statement/objection and taken preliminary objections that present petition is legally not maintainable and same is only abuse and misuse of process of law, hence the petition as filed is legally not maintainable and petitioners have not come to this court with clean hands and have suppressed the material facts and have filed a forged, fabricated manipulated documents to get the probate.
9 It is stated that deceased was not in a position to execute the alleged Will as she was bed ridden and was not capable of understanding what is right or wrong for her and the alleged will was not signed by the deceased or might be got illegal means by the petitioners and the alleged Will was not legally and validly executed.
10 It is stated that deceased was not capable to understand the English language of the alleged Will as she was only able to sign in Hindi and the petitioner no. 1 used to obtain the signatures of the deceased time to time on one or other pretext as the petitioner no. 1 used to make correspondence with the DDA and other departments on behalf of the deceased and it seems that under the said garb the alleged will was maneuvered by the petitioners by their connivance in order to deprive the respondent no. 2 and her husband who are in fact the actual owners of the entire first floor with roof rights upto sky as the entire first floor was constructed by the respondent no. 2 and her husband with their own funds and resources.
11 It is stated that respondent no. 2 and her husband Shri Krishan Kumar Bajaj had sold out their property bearing plot PC No. 36/09 Shyam Sunder Bajaj Vs State & Ors Page 4 of 31 No. 61, Pocket D-1, Sector-16, measuring 48 sq mtrs. Rohini, Delhi to Shri Chander Parkash S/o Shri Sunder Dass on dated 20.08.1992 and from the sale proceed they constructed the entire first floor of the said property as previously there was only one room and kitchen on the first floor with an understanding with the deceased as well as the petitioners herein that the respondent no. 2 and her husband will be the exclusive and absolute owners of the entire first floor with roof/terrace rights up to the sky. It is further stated that it was agreed upon in the oral family arrangement and settlement that the petitioner no. 1 shall become the owner of ground floor of the property, while the entire first floor with terrace/roof rights upto sky shall be owned by the respondent no. 2 and her husband. So far as the petitioner no. 2 she had given up her rights and claim in the said property as she was already married and in her marriage her share was spent in the form of gifts etc in the marriage by the petitioner 1 and husband of respondent no. 2.
12 It is stated petitioner no. 2 was married in the years 1985. Further the respondent no. 2's husband and petitioner no. 1 jointly paid the remaining costs/installments of the plot underneath the property in question. The house tax of the property was also jointly paid by the respondent no. 2's husband and petitioner no. 1 as the deceased was a house wife and having no source of income. Moreover, after the demise of husband of respondent no. 2, the respondent no. 2 also sharing with the house tax being paid to the MCD alongwith the petitioner no. 1 while the petitioner no. 2 has never contributed or given any amount of house tax or any other amenities in the property.
PC No. 36/09 Shyam Sunder Bajaj Vs State & Ors Page 5 of 3113 It is stated that in contrary to the said oral settlement and arrangement the petitioners hatched a conspiracy and fraudulently and dishonestly got manufactured the alleged Will in order to grab and usurp the terrace/roof rights of the property in question. It is stated that there exists no construction on the terrace/roof rights of the property but it has been fraudulently mentioned that the roof/terrace of the property shall go and devolve upon petitioner no. 2.
14 It is stated that it also established and proved that neither the deceased herself nor the petitioners had ever disclosed of any alleged Will to the respondent no. 2 and her husband and even during the life time of respondent no. 2's husband with malafide designs and intentions that the said alleged Will is forged and fabricated document. The deceased did not visit and appear before the office of Sub Registrar, Delhi. The petitioner as filed by the petitioner is also bad for non-joinder of necessary party.
15 It is stated that alleged will does not show any reason that why the deceased wanted to bequeath the property in favour of the beneficiaries, which creates a complete shadow of doubts about the genuineness of the said Will. It is stated that at the alleged registration of the alleged will deceased was totally confined to bed and was not in a position to move or to appear before the Sub-Registrar which clearly shows the illegal and unlawful acts committed by the petitioner no. 1 and 2 in connivance with the alleged attesting witnesses and staff of Sub- Registrar's office.
PC No. 36/09 Shyam Sunder Bajaj Vs State & Ors Page 6 of 3116 It is stated that deceased always desired and willed to give the entire first floor roof/terrace rights in favour of the respondent no. 2 and her husband and she disclosed the same to the respondent no. 2 and her husband as well as petitioners and other relations, neighbours and other respectable persons that after her death the entire first floor with roof/terrace rights shall go to the respondent no. 2 and her husband as they have spent huge amount on the constructions of the first floor property. Thus there was no question of executing the alleged Will by the deceased in favour of the petitioners. On merit all the averments mentioned in the petition are denied and respondent no. 2 seeks dismissal of the petition with costs.
17 Petitioners filed amended replication to the written statement/objections of respondent no. 2 and denied all the objections taken by respondent no. 2 and reiterated the contents of the petition. During the proceedings petitioner No.1 Sh. Shyam Sunder Bajaj expired and on 02.05.2017 an application under Order XXII Rule 3 CPC was moved stating that petitioner No.1 has died on 04.03.2017. The said application was allowed and the LRs of petitioner No.1 namely Mrs. Saroj Bala, Ms. Chhavi and Mr. Gaurav Bajaj were impleaded and amended memo of parties filed.
18 On the pleadings of the parties following issues were framed by my ld. Predecessor vide order dated 21.01.2010:-
1. Whether both the petitioners are entitled for probate in their favour on the basis of will dated 11.5.1993 executed by deceased Smt. Satyawati Bajaj?
2. Relief PC No. 36/09 Shyam Sunder Bajaj Vs State & Ors Page 7 of 31
19 It is pertinent to mention here that vide order dated 28.09.2011 an additional issue was framed as follows: -
Additional Issue "Whether the petition is barred by period of Limitation? OPR-2"
20 Petitioners in order to prove their case examined petitioner No. 1 Shri Shyam Sunder Bajaj as PW-1 who tendered his evidence by way of affidavit Ex. PW-1/A. He relied upon death certificate of deceased Smt. Satyawati Bajaj as Ex. PW-1/1, Will dated 11.05.1993 of deceased as Ex. PW-1/2, Copy of attested specimen signatures of deceased as Ex. PW-1/3, Certified copy of MCD proceedings dated 02.08.1996 as Ex. PW-1/4, Photographs taken at the marriage ceremony of petitioner no. 2 are Ex. PW- 1/5 to Ex. PW-1/11 photographs taken on the Chole ceremony of son of respondent no. 2 are Ex. PW-1/12 to Ex. PW-1/16. The copies of the Bank Statements of State Bank of Hyderabad, Pragati Vihar, New Delhi-110003 in proof of encashment of the cheques of Rs. 36,000/- by respondent no. 2 and her husband are Ex. PW-1/17 to Ex. PW-1/27. Certified copy of Conveyance Deed dated 08.04.1994 executed by DDA dated 08.04.1994 in favour of deceased as Ex. PW-1/28. Copies of receipts of MCD in proof of payment of House Tax by both the petitioners are Ex. PW-1/29 to Ex. PW-1/31. Petitioner no. 1 also rely upon the documents Mark A to Q. 21 Petitioner no. 2 Ms Shashi Bala Behal appeared as PW-2 and tendered her evidence by way of affidavit Ex. PW-2/A. 22 Petitioners further examined Sh. Surya Prakash LDC, office of Sub-Registrar I, Kashmere Gate as PW-3 who brought the certified true copy of Will dated 11.5.1993 executed by Smt. PC No. 36/09 Shyam Sunder Bajaj Vs State & Ors Page 8 of 31 Satyawati Bajaj already Ex. PW-1/2 which is registered with the office of the Sub-Registrar I, Kashmere Gate, Delhi-06 vide registration no. 119958 in Addl. Book No. 3, Vol. No. 1780 on pages 142 to 143. The same is Ex. PW-3/1.
23 Petitioner further examined Shri Surinder Sehgal, son of late Shri Ram Lal Sehgal, attesting witness to the Will dated 11.05.1993. He tendered his evidence by way of affidavit Ex. PW- 4/A and rely upon the original death certificate of his father late Shri Ram Lal Sehgal as Ex. PW-4/1.
24 In the cross-examination he deposed that he is aware the facts of the present case. As per his knowledge the parties are contesting the property situated at Tagore Garden but number of which he does not know. He has not seen the original copy of Will prior to prepare his present affidavit Ex. PW-4/A. The petitioner no. 1 is his cousin i.e. Mausi's son and petitioner no. 2 is his cousin, Mausin's daughter. He has come to depose his evidence at the instance of petitioner no. 2. He is not a summoned witness. He admitted that he has come only at the instance of petitioners and is not aware the facts and knowledge of the alleged Will.
25 It is pertinent to mention here that affidavit of Sh. Raman Sharma, Advocate also filed on behalf of petitioners, but he has not examined in the court. Vide order dated 01.02.2016 evidence on behalf of the petitioners' was closed.
26 Respondent no. 2 Smt. Neeru Bajaj appeared in witness box as RW-1 and tender her evidence by way of affidavit Ex. RW-2/A. She rely upon the photocopies of GPA Mark A, PC No. 36/09 Shyam Sunder Bajaj Vs State & Ors Page 9 of 31 Agreement to Sell Mark B and Will Mark C & D and affidavit Mark E, Consideration receipt Mark F and photocopy of Pay order Mark G. 27 I have heard Shri Ajay K Dutta, ld. Counsel for the petitioners and Sh. A.K. Dhuper, ld. Counsel for respondent no. 2. I have also gone through the written arguments on behalf of respondent no. 2.
28 Finding on issues.
First of all I will take the Additional issue. Before giving my findings on the above said issue, Let us peruse the law laid down by Appex Court. The question for consideration, is whether the petition for grant of Probate/ Letter of Administration is governed by the provision of Article 137 of the Limitation Act, Came up in the case of "KUNVARJEET SINGH KHANDPUR VS. KIRANDEEP KUAR", (2008) 8 SCC, 463 Supreme Court of India, while answering whether Article of Limitation Act applies to the application for probate held as under "The genesis of Article 137 of the Limitation Act can be traced from Article 181 of the Limitation Act, 1959. The Limitation Act contains different periods for a specified application. Even in the Limitation Act of 1908 where there is no period provided for a specific application, a residuary clause is included providing limitation for other applications. Article 181 of the Limitation Act, 1908 being the residuary clause contemplates the application for which no period of limitation is provided elsewhere in the schedule or by Section 48 of the Code of Civil Procedure, 1908 which was retained in the Limitation Act of 1963 with certain modification, which can be reasonably ascertained PC No. 36/09 Shyam Sunder Bajaj Vs State & Ors Page 10 of 31 from the comparison of two provisions, which are depicted below:
"181. Application for which Three years when the right to period of limitation is pro-apply accrues.
Vided elsewhere in this schedule or by Section 48 of the Code of Civil Procedure,1908.
137. Any other application for Three years when the which no period of right to apply accrues limitation is provided elsewhere in this Division."
Such distinction is well explained by the Hon'ble Supreme Court in case of Kerala SEB Vs.T.P. Kunhaliumma, reported in (1976)4 Supreme Court Cases 634 in these words:-
"18. The alteration of the division as well as the change in the collocation of words in Article 137 of the Limitation Act 1963 compared with Article 181 of the 1908 Limitation Act shown that applications contemplated under Article 137 are not applications confined to the Code of Civil Procedure. In the 1908 Limitation Act there was no division between applications in specified cases and other applications as in the 1963 Limitation Act. The word 'any other application' under Article 137 cannot be said on the principle of ejusdem generis to be applications under the Civil Procedure Code other than those mentioned in Part I of the third division. Any other application under Article 137 would be petition or any application under any Act. But it has to be an application to a Court for the reason that Sections 4 and 5 of the 1963 Limitation Act speak of expiry of prescribed period when court is closed and extension of prescribed period if the applicant or the appellant satisfies the court that he had sufficient cause for not preferring the appeal or making the application during such period.
22. The conclusion we reach is that Article 137 of the 1963 Limitation Act will apply to any petition or application filed under any Act to a Civil Court. With respect we differ from the view taken by the two-judge bench of this Court in Athani Municipal Council case2 and hold that Article 137 of the 1963 Limitation Act is not confined to applications contemplated by or under the Code of Civil Procedure. The petition in the present case was to the District Judge as a court. The petition was one contemplated by the Telegraph Act for judicial decision. The petition is an application falling within the scope of Article 137 of the 1963 of the 1963 Limitation Act."PC No. 36/09 Shyam Sunder Bajaj Vs State & Ors Page 11 of 31
Thus, an application under any specified Act before the Civil Court is application conceived under Article 137 of the Limitation Act, 19963 as the distinction, which was sought to be made under Artilce 181 of the Limitation Act, 1908 have been obliterated by deletion and amendment of article 137 of the Limitation Act, 1963. it is no longer res integra that any other applications is not restricted to an application under the Code of Civil Procedure, but an application under special statue being filed before the Civil Court.
29. Hon'ble Supreme Court of India, further in the case of KRISHAN KUMAR SHARMA VS. RAJESH KUMAR SHARMA (2009) 11 SCC 537, held that Article 137 of Limitation Act is applicable in case of Probate/ Letter of Administration but applicable as per judgment of in case "KUNVARJEET SINGH KHANDPUR VS. KIRANDEEP KUAR", 2008 SCC, (Supra) "16. Rejecting Mr. Dalpatrai's contention. I summarise my conclusion thus-
(a)under the Limitation Act no period is advisedly prescribed within which an application for probate, letters of administration or succession certificate must be made;
(b)the assumption that under Article 137 the right to apply necessarily accrues on the date of the death of the deceased, is unwarranted;
(c)Such an application is for the court's permission to perform a legal duty created by a will or for recognition as a testamentary trustee and is a continuous right which can be exercised any time after the death of the deceased, as along as as the right to do so survive and the object of the trust exists or any part of the trust, if created remains to be executed;
(d)the 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.;
PC No. 36/09 Shyam Sunder Bajaj Vs State & Ors Page 12 of 31(e)delay beyond 3 years after the deceased's death would arouse suspicion and greater the delay, greater would be the suspicion;
(f)such delay must be explained, but cannot be equated with the absolute bar of limitation; and
(g) once execution and attestation are proved, suspicion of delay no longer operates."
Conclusion (b) is not correct while Conclusion (c) is the correct position of law.
30 I have gone through the record. The deceased testatrix late Smt. Satyawati Bajaj during her life time had executed a registered Will dated 11.05.1993 and she had died on 19.11.2005. As per averments in the petition the will was discovered on 07.10.2006 and present petition filed on 23.09.2009. In this backdrop, ld. Counsel for respondent n. 2 vehemently argued that as per Article 137 of Limitation Act the present petition is filed beyond three years of limitation, therefore, barred by limitation.
31 On the other hand ld. Counsel for the petitioner contended that the petitioner had filed the petition within limitation because the Will was discovered after about 10 months of the death of the deceased/testatrix. In my considered opinion the interpretation of Article 137 of Limitation Act as pleaded by ld. Counsel for respondent no. 2 is not the correct prepostion of law. The above judgments KRISHAN KUMAR SHARMA VS. RAJESH KUMAR SHARMA (2009) 11 SCC 537, and "KUNVARJEET SINGH KHANDPUR VS. KIRANDEEP KUAR", 2008 SCC, the limitation in Probate petition starts when actually the right disputed to the beneficiary challenged by L.Rs or any PC No. 36/09 Shyam Sunder Bajaj Vs State & Ors Page 13 of 31 other person. In this case nothing brought on record that the rights of the beneficiaries at any point of time, prior to filing of the present petition challenged or any dispute arises between the L.Rs of deceased late Smt. Satyawati Bajaj and there was occasion for establishing the right under the Will in question by the beneficiary before the court of law. Therefore, applying the well settled law as discussed in above, in my considered opinion, the present petition is well within limitation. Hence the additional issue is decided against the respondent no. 2 and in favour of petitioner.
Issue No. 132 In order to decide the above issue, let us peruse the provisions and principles of law laid down by the Apex Court.
The expression "Will" is defined by Section 2(h) of Indian Succession Act, 1925 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". Section 59 of Indian Succession Act, 1925 governs the capability of a person to make a Will. It reads thus:-
"59. Person capable of making Wills --- Every person of sound mind not being a minor may dispose of his property by Will.
Explanation1.----A married woman may dispose by Will of any property which she could alienate by her own act during her life.
Explanation 2.--- Persons who are deaf or dumb or blind are not thereby incapacitated for making a Will if they are able to know what they do by it.
Explanation 3.--- A person who is ordinarily insane may make a Will during interval in which he is of sound mind.PC No. 36/09 Shyam Sunder Bajaj Vs State & Ors Page 14 of 31
Explanation 4.--- No person can make a Will while he, is in such a state of mind, whether arising from intoxication or from illness or from any other cause, that he does not know what he is doing.
19. Section 59 thus declares that every person (not being a minor) "of sound mind" may dispose of his property by Will. The second explanation appended to the said provision clarifies that persons who are "deaf or dumb or blind" are not incapacitated by such condition for making a Will "if they are able to know what they do by it". The third explanation makes the basic principle pellucid by adding that even a person who is "ordinarily insane" may make a Will during the interval in which "he is of sound mind". The fourth explanation renders it even more lucent by putting it negatively in words to the effect that it the person "does not know what he is doing" for any reason ( such an intoxiation, illness or any other such cause) he is incompetent to make a Will. The focal pre-requisite, thus, is that at the time of expressing his desire vis-a-vis the disposition of the estate after his demise he must know and understand its purport or import.
20. The execution of an unprivileged Will, as the case at hand relates to, is governed by Section 63 of the Indian Succession Act, 1925, which reads thus:-
"63 Execution of unprivileged Wills --- Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules:-
(a) 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 directions.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.
(c) The Will shall be attested by two or more PC No. 36/09 Shyam Sunder Bajaj Vs State & Ors Page 15 of 31 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 the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary".
21. The plain words used in above quoted clause make it abundantly clear that the executant of a Will need not put his signatures and that affixing his mark is sufficient mode of authentication. As shall also be noted with reference to rule of evidence that while the law requires attestation by minimum two witnesses, it is not mandatory that both must have been present at the time when the testator executed the document, the presence of the testator being more important when the witnesses attest and further that, for proof of such execution and attestation, the testimony of only one of such witnesses is enough, that also only if such witness is alive and available.
22. The provisions contained in Section 67 and 68 of the Indian Evidence Act, 1872, also being germane to the discussion here, may be quoted:-
"67. Proof of signature and handwriting of person alleged to have signed or written document produced.---If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his PC No. 36/09 Shyam Sunder Bajaj Vs State & Ors Page 16 of 31 handwriting.
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 provision 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."
33 The judgment of the Supreme Court in the case reported as H. Venkatachala Iyangar Vs. B.N. Thimmajamma, AIR 1959 SC 443, is one of the early and celebrated judgments on the subject. After construing, amongst others, the above statutory clauses, the court ruled thus:-
"18... 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 PC No. 36/09 Shyam Sunder Bajaj Vs State & Ors Page 17 of 31 nature of the finding on the question of the proof of wills. It would prima facie be true 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 Section 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.... 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 PC No. 36/09 Shyam Sunder Bajaj Vs State & Ors Page 18 of 31 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 PC No. 36/09 Shyam Sunder Bajaj Vs State & Ors Page 19 of 31 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."
( emphasis supplied) 34 In Shashi Kumar Banerjee vs. Subodh Kumar Banerjee, AIR 1964, SC 529, a Constitution Bench of the Supreme Court had the occasion to rule on the principles governing mode of proof of a Will before a probate court. Referring, inter alia, to the earlier decision of H. Venkatachala Iyengar ( supra), the court held:-
"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 S.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 signatures 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 genuineness of the signature of the testator, the condition of the testator's mind, the dispositions PC No. 36/09 Shyam Sunder Bajaj Vs State & Ors Page 20 of 31 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 suspicious 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 susbtantial 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..."
( emphasis supplied) 35 In Jaswant Kaur Vs Amrit Kaur, ( 1977) 1 SCC 369, after analyzing the ratio in H. Venkatachala Iyangar (supra), the Supreme Court culled out the following propositions:-
"(1) Stated generally, 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 in such matters. As in the case of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty. (2) Since Section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by Section 68 of the Evidence Act, one attesting witness at least has been called for the purpose of proving its execution, if there be an PC No. 36/09 Shyam Sunder Bajaj Vs State & Ors Page 21 of 31 attesting witness alive. And subject to the process of the court and capable of giving evidence. (3) Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed.
This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will.
(4) Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the PC No. 36/09 Shyam Sunder Bajaj Vs State & Ors Page 22 of 31 suspicion of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator.
(5) It is connection with wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator. (6) If a caveator alleges fraud, undue influence, coercion, etc. 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 raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter."
( emphasis supplied) 36 The decisions of the Supreme Court in Uma Devi Nambiar Vs. T.C. Sidhan, (2004) 2 SCC 321, and Pentakota Satyanarayana Vs. Pentakota Seetharatnam, (2005) 8 SCC 67 are authorities on the principle that active participation of the propounder or beneficiary in the execution of the Will or exclusion of the natural heirs need not or necessarily lead to an inference that the Will was not genuine. One may quote, with advantage, the following observations in Uma Devi Nambiar PC No. 36/09 Shyam Sunder Bajaj Vs State & Ors Page 23 of 31 (supra):-
"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 circumstances 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] 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 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. ( See Pushpavathi v. Chandraraja Kadamba [(1993) 3 SCC 291]. In Rabindra Nath Mukerjee 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 PC No. 36/09 Shyam Sunder Bajaj Vs State & Ors Page 24 of 31 may be that in some cases they are fully debarred and in some cases partly."
(emphasis supplied) 37 Following the above rulings, the Supreme Court in Mahesh Kumar (dead) by LRs Vs. Vinod Kumar & Ors., (2012) 4 SCC 387, held, in the facts and circumstances of the said case that the evidence unmistakably showing that the objectors had separated from the family, taking their respective shares, not bothering to look after the parents in their old age, there was "nothing unnatural or unusual" in the decision of the testator ( the father) to give his share in the joint family property to the son who, along with his wife and children, had taken care of the parents, adding that "any person of ordinary prudence would have adopted the same course and would not have given anything to the ungrateful children from his/her share in the property."
38 In Hari Singh & Anr Vs. The State & Anr. 2010 ( 120) DRJ 716, a division bench of this Court, after noting the law declared, inter alia, in Uma Devi Nambiar (supra), observed thus:-
"31 Courts are not expected to be satisfied that a bequenathal is rational or not; what has to be considered is whether the bequest was so unnatural that the testator could not have made it. ... There is nothing in law that prescribes that the testamentary document has to be made and executed on the same day. Law does not mandate that each of the witnesses must be aware of the contents of the Will and the nature of the bequests. The rigours of PC No. 36/09 Shyam Sunder Bajaj Vs State & Ors Page 25 of 31 attestation endeavour to eradicate manipulation and fabrication of such a testament by mandating that the testator as well as the witnesses should be simultaneously present at the time of its execution; nothing more and nothing less. Though there is no categorical evidence coming forth on the record, we do not find this fact to be legally anomalous or suspicious as to impeach the entire case of the appellant/petitioner."
(emphasis supplied) 39 In the recent judgment of Apex court in Jagdish Chand Sharma vs. Narain Singh Saini, (2015) 8 SCC 615 the principle of law laid down are reiterated as under.
"19. The contentious pleadings and the assertions thereupon in the backdrop of the evidence as a whole have been analyzed. The pleading perspective notwithstanding, the purport and play of Section 63 of Indian Succession Act (hereinafter referred to as 'the Act') read with Section 68 and 71 of Indian Evidence Act, 1872 (hereinafter referred to as '1872 Act'), it would thus be apt, nay, imperative to refer to these legal provisions before embarking on the appreciation of evidence to the extent indispensable.
20. Section 63 of the Act and Sections 68 and 71 of the 1872 Act are thus extracted hereunder for ready reference:
20.1 Section 63 of the Act:
63. Execution of unprivileged wills - Every testatrix, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the PC No. 36/09 Shyam Sunder Bajaj Vs State & Ors Page 26 of 31 following rules-
(a) The testatrix 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.
(b) The signature or mark of the testatrix, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.
(c) The will shall be attested by two or more witnesses, each of whom has seen the testatrix sign or affix his mark to the will or has seen some other person sign or will, in the presence and by the direction of the testatrix, or has received from the testatrix a personal acknowledgment of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the will in the presence of the testatrix, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.
20.2 Section 68 & 71 of the 1872 Act:
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:
71. Proof when attesting witness denies the execution - If the attesting witness denies or does not recollect the execution of the document, its PC No. 36/09 Shyam Sunder Bajaj Vs State & Ors Page 27 of 31 execution may be proved by other evidence.
21. As would be evident from the contents of Section 63 of the Act that to execute the will as contemplated therein, the testatrix would have to sign or affix his mark to it or the same has to be signed by some other person in his presence and on his direction. Further, the signature or mark of the testatrix or the signature of the person signing for him has to be so placed that it would appear that it was intended thereby to give effect to the writing as will. The section further mandates that the will shall have to be attested by two or more witnesses each of whom has seen the testatrix sign or affix his mark to it or has seen some other persons sign it, in the presence and on the direction of the testatrix, or has received from the testatrix, personal acknowledgment of a signature or mark, or the signature of such other persons and that each of the witnesses has signed the will in the presence of the testatrix. It is, however, clarified that it would not be necessary that more than one witness be present at the same time and that no particular form of attestation would be necessary.
22. It cannot be gainsaid that the above legislatively prescribed essentials of a valid execution and attestation of a will under the Act are mandatory in nature, so much so that any failure or deficiency in adherence thereto would be at the pain of invalidation of such document/instrument of disposition of property.
22.1 In the evidentiary context Section 68 of the 1872 Act enjoins that if a document is required by law to be attested, it would not be used as PC No. 36/09 Shyam Sunder Bajaj Vs State & Ors Page 28 of 31 evidence unless one attesting witness, at least, if alive, and is subject to the process of the court and capable of giving evidence proves its execution. The proviso attached to this section relaxes this requirement in case of a document, not being a will, but has been registered in accordance with the provisions of the Registration Act, 1908 unless its execution by the person by whom it purports to have been executed, is specifically denied.
22.2 These statutory provisions, thus, make it incumbent for a document required by law to be attested to have its execution proved by at least one of the attesting witnesses, if alive, and is subject to the process of the court conducting the proceedings involved and is capable of giving evidence. This rigour is, however, eased in case of a document also required to be attested but not a will, if the same has been registered in accordance with the provisions of the Registration Act, 1908 unless the execution of this document by the person said to have executed it denies the same. In any view of the matter, however, the relaxation extended by the proviso is of no avail qua a will. The proof of a will to be admissible in evidence with probative potential, being a document required by law to be attested by two witnesses, would necessarily need proof of its execution through at least one of the attesting witnesses, if alive, and subject to the process of the court concerned and is capable of giving evidence. 22.3 Section 71 provides, however, that if the attesting witness denies or does not recollect the execution of the document, its execution may be proved by the other evidence. The interplay of the PC No. 36/09 Shyam Sunder Bajaj Vs State & Ors Page 29 of 31 above statutory provisions and the underlying legislative objective would be of formidable relevance in evaluating the materials on record and recording the penultimate conclusions. With this backdrop, expedient would be, to scrutinize the evidence adduced by the parties."
40 It is pertinent to mention here that the burden of proof is on the petitioners who examined as stated hereinabove PW-1 Sh. Shayam Sunder Bajaj, petitioner no. 1 and Smt. Shashi Bala, petitioners no. 2, PW-3 Sh. Suraj Prakash, LDC, from Sub- Registrar office who had proved the factum of registration of the Will Ex. PW-1/2 with the Sub-Registrar, Kashmere Gate and the particulars of the registration found to be correct.
41 The petitioners are under legal obligation to examine attesting witnesses to prove the ingredients as envisaged under Section 63 of Indian Succession Act. The petitioners examined PW-4 one Shri Surinder Sehgal who is son of late Shri Ram Lal Seghal, one of the attesting witness to the Will in question. In this examination in chief, vide affidavit Ex. PW-4/A he confirmed the signatures appended on the Will Ex. PW-1/2 of late Shri Ram Lal Seghal. He further deposed that his father died on 5 th May, 2014 and he had proved his death certificate Ex. PW-4/1. In the cross-examination he admitted that he had not seen the original copy of Will prior to prepare his affidavit Ex. PW-4/A. However, in the affidavit in chief he stated that he had seen the copy of the aforesaid Will. Both the statements are contradictory, it creates doubt about the veracity of deposition of PW-4 Sh. Surinder Sehgal.
PC No. 36/09 Shyam Sunder Bajaj Vs State & Ors Page 30 of 3142 It is pertinent to mention there that affidavit of other attesting witness Shri Raman Sharma filed on 15.12.2015, however, despite given more than sufficient opportunities Shri Raman Sharma failed to appear in witness box. It is brought on record that one attesting witness was alive but petitioners failed to produce him in witness box. As per Section 68 of Indian Evidence Act, it is mandatory that out of two attesting witnesses, one attesting witness has to prove the Will in question to satisfy the legal requirements. However, petitioners miserably failed to examine the alive attesting witness Sh. Raman Sharma, therefore, the Will Ex. PW-1/2 remained mere an exhibition of the document by the propounder of the Will but not proved in accordance with the law as per Section 63 (c) of Indian Succession Act read with Section 68 of Indian Evidence Act. My view is supported by the judgment of Janki Narayan Bhoir Vs Narayan Namdeo Kadam, AIR 2003, SC 761.
43 On the basis of above observation and discussion, the petitioners failed to prove that Will dated 11.05.1993 of late Smt. Satyawati Bajaj is the last, legal and valid Will, therefore, issue no. 1 is decided against the petitioners and in favour of respondent no. 2 44 Relief In view of finding on issue no. 1, the present petition filed by the petitioners is dismissed. No order as to cost. File be consigned to record room. Digitally signed SANJAY by SANJAY KUMAR KUMAR Date: 2018.04.03 22:28:26 +0530 (Announced in the open (SANJAY KUMAR) court on 3rd April, 2018 ADJ-02 (West) Tis Hazari Courts Delhi PC No. 36/09 Shyam Sunder Bajaj Vs State & Ors Page 31 of 31