Delhi District Court
Sh. Dewakar vs ) State on 26 March, 2015
IN THE COURT OF AJAY GOEL, ADDITIONAL DISTRICT JUDGE1
NORTH DISTRICT:DELHI
PC33/15
In the Matter of:
Sh. Dewakar,
s/o Sh. Dinesh Kumar,
r/o 1170, Village Alipur,
Delhi36
..................Petitioner
VERSUS
1) State
2) Sh. Jai Kishan,
s/o late Dharam Singh,
r/o H.No. 607,
Village Alipur, Delhi.
3) Sh. Dinesh Kumar,
s/o late Sh. Ram Kishan
r/o H.No. 2035,
near Chandan Market,
Narela Road, Alipur, Delhi.
4) Sh. Devinder Kumar,
s/o Sh. Badle Ram,
r/o H.No. 456,
Village Alipur, Delhi.
5) Smt. Maneet Kaur,
d/o Sh. Kiran,
PC33/15 Page:-1/36
r/o H.No. 456,
Village Alipur, Delhi.
............... Respondents
Date of Institution: 7.3.11
Date of Assignment to this court: 5.3.15
Date of Arguments: 26.3.15
Date of Decision: 26.3.15
JUDGMENT
1. Vide this judgment, I shall conscientiously decide the present petition u/s 276 and 278 of Indian Succession Act for grant of probate/letter of administration in respect of the estate of deceased Hari Kishan s/o late Dharam Singh, brother of grand father of the petitioner who was permanent resident of village Alipur and died at Delhi on 18.12.96. It was stated that deceased was issued less and left behind his wife Smt. Sukhbiri as his sole survivor, heir and legal representative who also died at Delhi on 16.6.09. it was stated that deceased left his last Will and testament duly executed on 30.11.96 leaving behind all his estate in favour of the petitioner. It was further stated that respondent no. 4 and 5 are claiming themselves as adopted son and daughter of deceased late Hari Kishan and late Smt. Sukhbiri and are claiming the estate left behind by late Hari Kishan after his death, however they were never adopted by late Hari Kishan and late Sukhbiri at any point of PC33/15 Page:-2/36 time. As stated respondents no. 4 and 5 in connivance with each other and other family members are negotiating/trying to transfer alienate and hand over the possession of the property left behind by late Hari Kishan as mentioned in the Will for their illegal gain thereby depriving the petitioner who is the rightful owner of the properties left behind by late Sh. Hari Kishan. It was stated that there is no impediment u/s 370 of the Indian Succession Act or any other provisions to grant letter of probate/administration in favour of the petitioner. It was accordingly prayed that probate/letter of administration be granted to the petitioner in respect of last Will of the deceased dated 30.11.96. .
2. After the petition was filed notice of the same was issued to the Collector of State and near relations of the deceased besides citation to the general public was directed to be published in the newspaper "Virat Vaibhav" and also displayed on court notice board.
3. Valuation report dated 29.3.11 was filed and the publication of the citation was effected in the newspaper " Virat Vaibhav" on 15.3.11.
4. Objections to the present petition were filed on behalf of respondent nos. 4 & 5 wherein preliminary objections were raised to the effect that present petition is the act of connivance and conspiracy among petitioner as well as respondents no. 2 and 3. It was stated that the petitioner has not come to the court with clean hands and has suppressed material facts. On merits it PC33/15 Page:-3/36 was stated that respondents no. 2 and 3 are habitual in committing such kind of fraudulent and dishonest acts as earlier respondent no. 2 had filed a probate case in which originally had impleaded respondent no. 3 Smt. Sukhbirii, mother of respondents no. 4 and 5 who has since expired. As stated in the said case respondent no. 2 herein had alleged that Sh. Hari Kishan had executed his last and final Will dated 28.11.96 in favour of his wife Smt. Sukhbiri and respondents no. 2 and 3 herein and respondents no. 4 and 5 had filed their objections. The said case as stated was contested and was finally decided on merits and was dismissed by the Hon'ble Court vide judgment dated 4.2.10. It was stated that now after the dismissal of the said probate case the petitioner being in connivance and conspiracy with his father i.e. respondent no. 3 and uncle i.e. respondent no. 2 instituted this false and bogus petition on the basis of another false, forged and fabricated Will dated 30.11.96. It was stated that Sh. Hari Singh did not execute any alleged Wills or any other Will and rather he died intestate and after his demise his wife Smt. Sukhbiri became the owner of the said estate and Smt. Sikhbiri through her last family Will dated 22.11.04 which was duly registered with the office of Sub Registrar. It was stated that petitioner wrongly and malafidely mentioned the parentage of respondents/objectors as Sh. Badle Ram and Sh. Kiran while the respondents no. 4 and 5 are the adopted son and daughter of late Sh. Hari Kishan. It was stated that if the present Will PC33/15 Page:-4/36 dated 30.11.96 with the petitioner and respondents no. 2 and 3 then why the same was not disclosed in the earlier probate case bearing no. 590/06 filed by respondent no. 2 and why petitioner remained silent for about 15 years to file the present petition. It was also stated that respondents no. 2 and 3 had instituted a civil suit no. 583/97 against Smt. Sukhbiri in respect of properties bearing no. 454, Village Alipur, Delhi and also share at Farm Road, Village, Alipur, Delhi in khasra no. 91/34(12), 35(13), 36(12), 37(17), 593(27) and agriculture land in khasra no. 12/21 of 4 bigha 9 biswas and khasra no. 22 of 4 bighas 16 biswas at village Alipur, Delhi and 2 bigha 4 biswas of land at village Holambi, Delhi and movable properties left behind by Sh. Hari Kishan on the basis of alleged Will dated 28.11.96. As stated said civil suit filed by respondents no. 2 and 3 was dismissed by the Ld. Court vide judgment dated 12.4.06 against judgment which appeal was also preferred but the same was also dismissed vide order dated 28.10.06. It was stated that alleged Will is not genuine as the same was shown to have been executed just about 18 days prior to the death of the deceased and the same has been drafted in a mechanical manner and also does not disclose the whereabouts of other legal heirs except the name of the beneficiary. It was stated that alleged Will also does not show any reason as to why the deceased wanted to bequeath the property in favour of the beneficiaries and to debar his own wife and children which creates a complete shadow of doubts about the PC33/15 Page:-5/36 genuineness of the said Will. It was stated that alleged Will does not contain anything regarding the understanding of the contents of the same by the deceased and the same does not bear the signatures of late Sh. Hari Kishan. Rest of the contents of the petition were denied and it was prayed that the present petition be dismissed.
5. Though respondents no. 2 and 3 initially did not appear and were proceeded exparte vide order dated 9.5.11 but later on respondent no. 2 started appearing in the matter and also filed objections. Objections were filed on behalf of respondent no. 2 wherein it was denied that late Sh. Hari Kishan left th behind his Will dated 30 November,96 leaving all his estate in favour of petitioner. It was stated that late Sh. Hari Kishan also executed a earlier Will in favour of respondent no. 2 giving life interest to his wife Smt. Sukhbiri and respondent no. 2 filed a probate petition for the said Will which probate petition was dismissed. It was further submitted that Sh. Hari Kishan and Smt. Sukhbiri never adopted Devender and Maneet Kaur as their son and daughter at any point of time and Smt. Sukhbiri during her life time was interested that all estate of late Sh. Hari Kishan must go the children of her brother and sister but Sh. Hari Kishan always intended that all his estate should devolve upon the children of his brothers after his death as he was issueless. It was stated that Devender and Maneet Kaur are the sons and daughter of brother and sister of Sukhbir who used to reside with Hari Kishan PC33/15 Page:-6/36 and his wife Sukhbiri as they were issueless and used to feel lonely, however no adoption ceremony of any nature whatsoever was held for adopting Devender and Maneet Kaur. It was stated that Devender taking advantage of his closeness with Hari Kishan and Sukhbiri is claiming himself to be their adopted son and misappropriating the estae of Hari Kishan and Sukhbiri. It was stated that that presently Devender is residing in the house of Hari Kishan and Sukhbiri and the share in the agriculture land left behind Sh. Hari Kishan is under the control of respondent no. 2 and Naresh son of brother of deceased Hari Kishan who are cultivating the land but the said Devender is threatening and/or negotiating to sell, transfer and alienate the share of late Sh. Hari Kishan for illegal gains. It was also stated that respondent no. 2 came to know that said Devender sold and transferred the possession of a piece of land measuring 1000 sq. yards to third person and collected more than Rs.60,00,000/ as consideration representing himself the legal heir of late Sh. Hari Kishan. It was stated that respondent no. 2 is entitled to the estate of late Sh. Hari Kishan being his real brother and surviving heir. Rest of the contents of the petition were denied and it was prayed that present petition be dismissed.
6. Separate reply to objections of objector was filed on behalf of the petitioner in which contents of the petition were reiterated and those of the objections were denied.
PC33/15 Page:-7/36
7. Vide order dated 9.5.11 from the pleadings of parties, the following issues were framed:
1) Whether the Will dated 30.11.96, executed by legator late Sh. Hari Kishan is his last Will and had been executed and attested as per law ?OPP
2) Whether deceased legator was mentally and physically in a sound state of mind at the time of executed of the abovesaid Will ?OPP
3) Relief.
Though in issue no. 1 date of Will was mentioned as 30.11.94 but the date of the Will is 30.11.96 and it seems typographical error is there in issue no. 1 to the said effect which is hereby corrected and date of Will is mentioned as 30.11.96.
8. In evidence in support of her case, petitioner examined himself as PW1, Vineeta as PW2, Sh. Shiv Kumar as PW3, Sh. Yash Pal Singh as PW4, PW1 reiterated the contents of the petition and relied upon death certificate of Hari Kishan Ex. PW1/1, death certificate of Sukhbiri as Ex. PW1/2 and secondary school certificate of petitioner Ex. PW1/3. PW2 Vineeta stated that Sh. Hari Kishan, brother of her fatherinlaw came to their house and handed over to her a sealed envelope and directed her to hand over the same when her son Diwakar attain age of 18 years. She stated that she handed over the said envelope to her son Diwakar when he attained the age of 18 years in the middle of February,2011. She supported the case of PC33/15 Page:-8/36 petitioner. PW3 Shiv Kumar stated himself to be witness of the the Will in question. PW4 Yash Pal also stated himself to be the witness of the Will in question Ex. PW3/2 and stated that the said Will was executed by testator in his presence as well as in presence of another witness namely Sh. Shiv Kumar.
9. In defence, respondent no. 4 examined himself as R4W1 and reiterated the contents of his case as set out in the objections filed by him. He relied upon judgment dated 15.12.10 Ex. R4W1/1, family Will dated 22.11.04 Ex. R4W1/2, death certificate of Sukhbiri Ex. R4W1/3, CBSE certificate Ex. R4W1/4, driving licence of Har Kishan Ex. R4W1/5, ration card showing parentage of respondent no. 4 Ex. R4W1/6, election identity Ex. R4W1/7 and certified copy of written statement E. R4W1/8, certified copy of the judgment dated 12.4.06 Ex. R4W1/9 and certified copy of order dated 28.10.06 Ex. R4W1/10. Respondent no. 2 did not wish to lead any evidence and same was closed vide order dated 5.3.15. Respondent no. 3 did not appear in the matter and was accordingly proceeded exparte vide order dated 5.3.15.
10. It is argued on behalf of the petitioner that the Will in question is valid and last testamentary document of the testator made in sound disposing mind which has been duly proved by the attesting witnesses PW3 Shiv Kumar and PW4 Yash Pal who have categorically stated that Will in question Ex. PW 3/2 was executed by late Hari Kishan in their presence. On the other hand PC33/15 Page:-9/36 Cl. for objectors no. 4 & 5 argued that petitioner, respondents no. 2 and 3 are habitual in committing fraudulent and dishonest acts and the present Will is forged and fabricated one. It was argued that earlier respondent no. 2 filed a probate petition on the basis of Will dated 28.11.96 alleged to be executed by late Sh. Hari Kishan which was dismissed by the court. It was argued that if the Will in question was in existence then why the probate petition of the said Will was filed after lapse of 15 years from the death of testator and why the factum of the Will in question was not disclosed in the earlier probate petition. It was stated even the Will in question does not discuss about the earlier Will dated 28.11.96. it was stated that it is also not explained as to why Smt. Vineeta did not disclose about the Will in question to anyone. It was further argued that the attesting witnesses also belong to different village and why the testator would choose persons of different village for executing the Will in question remained unexplained and creates doubt. It was also argued that petitioner had no good relations with the testator and his wife and why testator would choose to make a Will in favour of petitioner when he had his wife living and respondents no. 4 and 5 who were his adopted son and daughter. Cl. for respondent no. 2 has argued that deceased never adopteed Devender and Maneet Kaur as his son and daughter and rather he always intended that all his estate should devolve upon the children of his brothers since he was issueless, however deceased PC33/15 Page:-10/36 did not execute the Will in question dated 30.11.1996. Ld. Cl. for the respondent/objectors has virtually taken a tour of all statutory provisions of the Indian Succession Act, including section 2(h), section 63, section 276, 280 and 281. In addition to the aforesaid, reliance has been placed on various judgments of the Hon'ble Apex Court which shall also be discussed in the forthcoming paragraphs while discussing the aforesaid aspects.
11.I have heard Ld. Counsels for the parties who have vehemently argued the matter for quite sometime and perused the entire record including the pleadings and documents as also oral testimony of the witnesses adduced during trial. I have given a thoughtful consideration to the same. My issuewise determination is as under:
12. Issue no. 1&2 : Whether the Will dated 30.11.96, executed by legator late Sh. Hari Kishan is his last Will and had been executed and attested as per law ?OPP & Whether deceased legator was mentally and physically in a sound state of mind at the time of executed of the abovesaid Will ?OPP Before proceeding to decide these issue, I would like to discuss the relevant law and judgments on this point. Issue no. 1&2 being pertinent to all the probate cases in which a Will is set up either for grant of probate or for grant of letters of administration with Will annexed, is pivotal to the entire controversy. It may be seen that, first and foremost a Will is a legal PC33/15 Page:-11/36 declaration of the intention of the testator whereby which the testator desires to bequest his property after his death and as such the same carry the last intentions of the testator to be carried out after his death. Further more, it is pertinent to mention that Will is the only document in law which is required to be proved after the death of its author and the law provides a specific procedure for the same.
13.Section 278 of Succession Act 1925 deals with petition for grant of letter of administration while the effect of letter of administration has been given in Section 220 of the Act which lays down that the grant of letter of administration entitles the administrator to all the rights belonging to intestate as effectual if the administrator had been granted at the moment after death. It is further settled preposition of law that grant of letter of administration does not create any title but is only declaratory existing in the LRs of the deceased.
14.Section 2(h) of the Indian Succession Act 1925 describes the Will to be a legal declaration of the intention of the testator with respect to his property, which he desires to be carried into effect after his death and as such Will is the only document, which becomes executable after the death of its executor. The person, who produces the Will before the Court or propounds the same and wants the court to rely thereupon, has to prove that:
1) Will in question is a legal declaration of the intention of the deceased.
PC33/15 Page:-12/36
2) The testator, while executing the will, was in a sound and disposing state of mind.
3) The testator has executed the Will of his own free; meaning thereby that he was free from all sorts of influence coercion, fear or force when it was executed.
Reliance placed on AIR 1989 Gujarat 75(DB) titled as Vijaya Ben Vashram Vs. State of Gujrat. It is further a settled proposition of the law that no specific format of the Will or specific form of attestation is required. Reliance placed on AIR 1998 Madhya Pradesh 1 titled as Ku. Chandan & Anr. Vs. Longa Bai& Anr."
15.Section 63 of the Act of 1925 has three several requirements as regards the execution of Will viz.
"(a) the testator shall sign 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 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 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 PC33/15 Page:-13/36 signatures 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."
16.Section 68 of Indian Evidence Act, 1872 lays down that if a document is required by law to be attested and the attesting witness is alive and subject to the process of the court capable of giving evidence, must be called to prove its execution. Execution consists of signing a document read out, read over and understood and to go through the formalities necessary for validity for a legal act.
17. So, a document has to be proved as per the Evidence Act, particularly in terms of ChapterV starting with Section 61 and Section 68 of Indian Evidence Act being relevant. However, in this context Section 63 of Indian Succession Act gives an exception which requires as to how a Will is to be executed and proved. Section 63 (c) of the Indian Succession Act requires atleast two attesting witnesses as a mandatory condition, the witness may be more than two but not less than two. The noncompliance with the requirement of the attestation in respect of the Will, which is otherwise valid and is perfectly enforceable document, under the provision of Section 63 SubSection (c) of the Indian Succession Act, 1925, renders the testamentary document, of no effect. Will is a document required by law to be attested, and PC33/15 Page:-14/36 if the standard of proof as envisaged by Section 68 of the Evidence Act, 1872 and Section 63(3) of the Act falls short of legal requirement, a will which is neither registered, nor proved to be attested and executed in accordance with law, cannot be taken into consideration for purpose of establishing claim of the legatee, reference can be made to Mst. Gullan Devi Vs. Mst. Punu @ Puran Devi & Ors. AIR 1989 J&K 51.
18. In nutshell, the propounder of the Will is required to prove not only the ingredients discussed about but also to take away suspicious circumstances if any, surrounding the Will, to the satisfaction of the conscience of the Court. Further it is pertinent to mention that probate of a Will can be granted only where the testator appoints an executor of the Will and in terms of the Section 222, 234 & 276(e) in other cases only letters of administration with Will annexed can be given.
19. The decisive aspect is to ascertain as to whether the Will is genuine and duly executed Will of testator so as to say that it was executed by him in disposing mind out of his own free will and without any force, coercion or fraud and the petitioner was required to dispel all circumstances which are casting doubt on the execution of Will without any force, coercion or fraud.
20. It is further a settled provision of law that a court acting under the Indian Succession Act for grant of probate, acts as a court of conscience and the jurisdiction of such court is limited only to consider the genuineness of the PC33/15 Page:-15/36 Will and the question of title or share in the property cannot be gone into by the probate court. The probate court does not decide the question of title or of existence of property itself and any construction relating to right, title and interest to any other person is beyond the domain of the probate court. Reliance is placed on 2008(4)SCC 300 Kirshan Kumar Vs. Rajinder Singh Lohra & Ors..
21. It is further pertinent to point out that for obtaining the probate the petitioner is not only required to prove the execution of the subject Will but is also required to weed out any circumstances surrounding the subject Will which may be lead to a possible suspicion challenging the valid execution of the Will. Reliance placed on AIR 1930 PC 24 title Vella Swamy Servai Vs L. Shivaraman Servai.
22.The intention in the Will are to be ascertained by all possible and available circumstances. In this context reference can be made to the judgment in Anil Kak Vs. Kumari Sharada Raje and others (2008) 7 Supreme Court Cases 695, wherein it has been observed as under:
"37.The testator's intention is collected from a consideration of the whole will and not from a part of it. If two parts of the same will are wholly irreconcilable, the court of law would not be in a position to come to a finding that the Will dated 4.11.1992 could be given effect to irrespective of the appendices. In construing a Will, no doubt all possible contingencies are PC33/15 Page:-16/36 required to be taken into consideration. Even if a part is invalid, the entire document need not be invalidated, only if it forms a severable part.
In Halsbury's Laws of England, 4 Edn. Vol. 50p. 239, it has been th observed as under:
"Leading principle of construction The only principle of construction which is applicable without qualification to all wills and overrides every other rule of construction, is that the Testator's intention is collected from a consideration of the whole will taken in connection with any evidence properly admissible, and the meaning of the will and of every part of it is determined according to that intention."
Similarly, in (1971) 1 MLJ 127 P. Manavala Chetty V. P. Ramanujan Chetty, it has been further held as under:
"9..... It is the obvious duty of the Court to ascertain and given effect to the true intention of the Testator and also avoid any construction of the Will which will defeat or frustrate or bring about a situation which is directly contrary to the intentions of the Testator. At the same time, it must be borne in mind that there are obvious limits to this doctrine that the court should try to ascertain and give effect to the intentions of the testator. The law requires a will to be in writing and it cannot, consistently with this doctrine, permit parol evidence or evidence of collateral circumstances to be adduced to contradict or add to or vary the contents of such a will. No evidence, however, PC33/15 Page:-17/36 powerful it may be, can be given in a court of construction in order to complete an incomplete Will, or project back a valid will, if the terms and conditions of the written will are useless and ineffective to amount to a valid bequest, or to prove any intention or wish of the testator not found in the Will. The testator's declaration or evidence of collateral circumstances cannot control the operation of the clear provisions of the Will. The provisions of the Succession Act referred to earlier indicate the limits of the court's power to take note of the testator's declaration and the surroundings circumstances i.e. evidence of collateral circumstances."
23.In a full bench judgment of the Hon'ble Apex Court reported in (1959)Supp. 1 SCR 426 titled as H. Venkatachala Iyengar Vs. B.N. Thimmajamma & others AIR 1959 SC 443, the Hon'ble Apex Court has discussed the entire gamut of law relating to the discharge of the onus of proving the Will while dwelling into Sections 45,47,67 & 68 of Indian Evidence Act,1872 and sections 59 & 63 of the 1925 Act and observed as follows:
"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 of documents. Section 67 and 68 of the Evidence Act are relevant for PC33/15 Page:-18/36 the purpose. Under S. 67, if a document is alleged to be signed by any person, the signatures 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 ill or it shall be signed by some other person in his presence and by his direction and that the signatures 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 PC33/15 Page:-19/36 the light of these provisions. Has the testator signed the Will? Did he understand the nature and effect of the deposition in the Will? Did he put his signatures to the Will knowing what is contained? State 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 India Succession Act. As in the case of proof of other document so in the case of proof of Wills it would be idle to except proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind of such matters." In this context, reference may also be made to a decision in Seth Beni Chand Vs. Smt. Kamla Kunwar and others, (1977)1 SCR 578.
24. The Hon'ble Court has thus held that propounder of the Will is required to be called upon by the court to show satisfactory evidence that the propounded Will was signed by the testator and that the testator at the relevant time was in a sound and disposing state of mind and that he has understood the nature and effect of the dispositions and has then put his signatures to the document of his own freewill. It has been further held that:
"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 PC33/15 Page:-20/36 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."
25. The Hon'ble Apex Court has further discussed the circumstances, which may be termed as suspicious circumstances surrounding the Will and held that there may be circumstances where the signatures of the testator may be shaky, doubtful or the condition of testator's mind may appear to be feeble and debilitated so as to raise a legitimate doubt as to mental capacity of the testator to the extent that the dispositions made in the Will may appear to be unnatural, improbable or unfair or the Will may indicate that the same may not be result of testator's free mind or will and in as such circumstances, the onus upon the propounder is held to be comparatively heavy. The Hon'ble Court has succinctly held that:
" 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 PC33/15 Page:-21/36 remove any such legitimate doubts in the matter."
26. It has been further held that an active participation of the propounder or the fact that the propounder has taken a prominent part in the execution of the Will and that he has also received substantial benefit under it, itself is generally treated as a suspicious circumstance which is required to be eliminated by the propounder by way of a clear and satisfactory evidence.
27.The ratio of H. Venkatachala Iyengar's case(supra) was later relied upon by the Hon'ble Apex Court in Shashi Kumar Banerjee Vs Subodh Kumar Banerjee, AIR 1964 SC 529 and other similar cases and was finally analysed by the Hon'ble Apex Court in Jaswant Kaur Vs. Amrit Kaur (1977) 1 SCC 369 wherein, the Hon'ble Court has called out various prepositions as: ".....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, it cannot be used as evidence until, as required by section 68 of the Evidence Act, one attesting PC33/15 Page:-22/36 witness at least has been called for the purpose of proving its execution, if there by an 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, and unfair and unjust disposition of property, the propounder himself PC33/15 Page:-23/36 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 testaor might have had his own reason, 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 suspicion of the Court, the propounder must remove all legitimate suspicions before the document can be accepted as the last Will of the testator.
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5) It is in 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 circumstance 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 PC33/15 Page:-25/36 the matter.........."
28. In Uma Devi Nambiar Vs. T.C. Sidhan, III(2004) SLT 754, the division bench of the Hon'ble Supreme Court has further held that a Will is generally 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 isno necessity at all of executing a Will. It is true that a propounder of the Will has to remove all suspicious circumstances. Suspicion means doubt, conjecture or mistrust. But the fact that natural heirs have either been excluded or a lesser share has been given to them,(by itself without anything more), cannot be held to be a suspicious circumstance especially in a case where the bequest has been made in favour of an offspring only and the suspicious circumstance must not be illusory or mere fantasy of the doubting mind but has to be real, germane and valid.
29. It has been further a settled preposition of law that mere circumstances of the deprivation of natural heirs should not raise any suspicion because the whole idea behind execution of Will is to interfere with the normal line of succession and so, natural heirs would be debarred in every case of the Will. Reliance placed on Pentakota Satyanarayana Vs. Pentakota Seetharatnam VII (2005) SLT 423.
30.The independence and exercise of the free Will is one of the attributes of the PC33/15 Page:-26/36 human being and existence, subject to ofcourse the reasonable restrictions imposed by the civilized society in various form i.e. statutory, customary, moral, social etc. The exercise of right by an individual in the property owned by him or her is one such characteristic of the property given to its owner having considerable freedom to the extent of absolute to do whatever one wants to do with the property in question. This freedom is one of the very vital attributes of ownership of the property rather the sole most important one. In this context, the property, being subject matter of one's discretion to use, subject to the reasonable restriction has been brought into the domain of testamentary document. Thus, the Will is nothing but manifestation of the concept of ownership of property and its attributes wherein the owner of the property expresses his/ her wish to dispose off or transfer the property in favour of the entity chosen by him and that seems to be reason why no specific proforma or format of the Will is prescribed anywhere. The requirement of valid Will is that it should be the last testamentary document of the testator, made in sound disposing mind in presence of two attesting witnesses and free from any kind of force, theft or coercion etc.
31. In case of any confusion or mix up and even otherwise, at times, the documents have to be read thread bare in between the lines so as to ascertain as to what exactly is being conveyed based upon the intentions of the writer of the document subject to the condition that sufficient indications PC33/15 Page:-27/36 are there in the document itself and the attending circumstances also contribute and indicates towards the particular inference cumulatively and collectively.
32. Having discussed above, now I have to see whether in the present case the above principles have been duly made out or not. As far as the ingredient whether the testator was in sound disposing mind at the relevant time of execution of the Will is concerned, objectors have not taken the objection that the deceased testator was not in sound state of mind at the time of execution of the Will in question but only stated that Will in question was executed only 18 days prior to the death of testator. No documentary evidence is produced on record by the objector to show the medical condition of the deceased whereas both the attesting witnesses have deposed that the deceased Hari Kishan was in sound disposable mind and was having good health. Though PW3 Shiv Kumar deposed that deceased met with natural death having some fever before death but there is nothing on record to show that late Sh. Hari Kishan was suffering from said fever on the date of execution of Will in question or that the said fever was of such intensity which effected mental cognitive faculties of late Sh. Hari Kishan. Mere death after 18 days itself is not such a factor which can bowl out the Will. Reliance is placed upon 149(2008) DLT 783 titled K.L. Malhotra Vs. Sudarshan Kumari & Anr wherein it was held : PC33/15 Page:-28/36 "As the Wills are too frequently made by the sick and dying, the degree of understanding and memory which the law requires is such as may be reasonably expected from persons in that condition. Therefore, it is wrong to suppose that those qualities of mind should be possessed by the testator in highest degree, position or to the same extent as before the illness in order to enable him to validly make his Will. Section 59 of the Indian Succession Act requires that the testator should have a sound mind. The sound mind referred to does not mean that the testator should have his mental faculty in their fullest vigour, but means that he should have the capacity to understand the nature of his property, memory to remember the relations and persons normally having claims on his bounty and has also a judgment" .
Hence in view of the above it is held that testator was not suffering from any disease at the relevant time of execution of the Will which would have effected his cognitive faculties.
33. Now I will deal with the question of valid execution of the Will. Objection is raised by the objectors no. 4 and 5 that in the Will in questions is forged PC33/15 Page:-29/36 since a person who had his wife Smt. Sukhbiri and adopted children i.e. respondents no. 4 and 5, would never bequeath his properties in favour of petitioner who is nephew of deceased. Perusal of Will in question Ex. PW3/2 shows that the deceased had not debarred his wife in the said Will rather he had given her rights in respect of properties in question after his death and only after her death petitioner was given right over the properties in question that to after he attains age of majority. Hence, it cannot be said that deceased debarred his wife while making the Will in question and said objection of the objectors is hereby rejected. Further, it is also the case of objectors no. 4 and 5 that they were adopted children of deceased Hari Kishan and his wife Smt. Sukhbiri and no reason is mentioned in the Will in question for their debarment. Petitioner as well as respondent no. 2 have denied that respondent no. 4 and 5 were adopted children of deceased Hari Kishan and his wife Sukhibiri. There is no adoption deed. Details of any adoption ceremony etc. is also not on record to show that respondent no. 4 and 5 were adopted by the deceased. Even RW1 Devender, respondent no. 4 himself during cross examination stated that he did not how and when he and Maneet was adopted by Sh. Hari Kishan and in what manner and by which type of ceremony as he was an infant. No witness has been examined by the respondents no. 4 and 5 who could have witnessed any such ceremony or in whose presence real parents of PC33/15 Page:-30/36 respondents no. 4 and 5 had given them in adoption to the deceased Hari Kishan. Though respondents no. 4and 5have produced their election identity card, driving licence and CBSE certificate to show that name of Hari Kishan as mentioned as his parents but that is not sufficient to hold that respondent no. 4 and 5 were adopted by Hari Kishan and merely on the basis of the said documents the Will in question cannot be discarded. Accordingly when the factum of adoption of respondents no. 4 and 5 are not duly proved hence non mention or debarment of respondents no. 4 and 5 in the Will in question does not raise any suspicion. Accordingly said contention of the respondents no. 4 and 5 is hereby rejected.
34. Further, objectors have argued that both the attesting witnesses belong to different village and why testator would choose persons from different village to execute the Will in question remained unexplained and creates doubt. Both attesting witnesses i.e. PW3 Shiv Kumar and PW4 Yashpal have stated themselves to be resident of village Sawada whereas deceased lived at Alipur. However it has come in the testimony of PW3 Shiv Kumar that he knew Hari Kishan who was his uncle in relation nand PW4 stated himself to be friend of PW3 and also stated that he also knew Hari Kishan through PW
3. It is not the case here that attesting witnesses were not known to deceased Hari Kishan or that attesting witnesses were known only to beneficiary and not to the deceased. When both the attesting witnesses PC33/15 Page:-31/36 were known to the deceased and even PW2 Shiv Kumar was in relation of the deceased then it was personal wish of the deceased as to who he wished to be a witness to his Will and factum of attesting witnesses living in different village is not sufficient to throw away the Will in question. Rather both the attesting witnesses have corroborated each other's statement and nothing could be brought out in their cross examination to discard their testimony. They have categorically stated that the Will in question was executed by the deceased Hari Kishan in sound disposing mind in their presence as well as identified signatures of testator and their own signatures on the Will in question . Hence, the above said objection of the objectors is also rejected.
35. Averting to another objection taken by the objector to create suspicious circumstances surrounding the Will that if the Will in question was in existence then why the present probate petition was filed after lapse of 15 years from the death of the testator and why the factum of the Will in question was not disclosed in the earlier probate petition filed by Jai Kishan, respondent no. 2 whereas father of petitioner was respondent in the said case. It is the case of the petitioner that factum of Will in question was disclosed to the petitioner by his mother Vineeta after he attained the age of majority. There is categorical deposition of PW2 Vineeta, mother of petitioner that 15 years ago the envelope containing the Will as given to him by Sh. Hari Kishan, brotherinlaw and he had instructed her that when PC33/15 Page:-32/36 Diwakar would attain the age of 18 years she should hand over the said envelope to Diwakar and accordingly on the day of basant pachmi in 2011 when Diwakar became 18 years, she handed over the envelope to him who opened the same in her presence and told her that there is a Will containing two pages in the said envelope. The said fact find also finds corroboration in the Will in question since in the same it is found mention that after the death of Sukhbiri, wife of deceased Hari Kishan, Diwakar grand son of Ram Kishan and son of Dinesh would get entire estate of deceased after he attains the age of 18 years. Intention of the testator clearly was that his estate should devolve upon the petitioner only after his attaining majority and therefore deposition of Vineeta that she was instructed by deceased to give the envelope to petitioner on his attaining majority seems believe worthy. It is also pertinent to mention here that in the Will in question firstly right to entire estate of deceased was given to his wife by the deceased and only after her death estate was to devolve upon petitioner that too after his attaining age of majority. Smt. Sukhbiri admittedly died on 16.6.09 meaning thereby till the time Smt. Sukhbiri was alive the petitioner even otherwise could not have asserted his right derived from Will in question prior to 16.6.09 when Sukhibiri died. Date of birth of petitioner as per his Secondary School Examination certificate Ex. PW1/3 is 24.2.1993 meaning thereby that petitioner attained the age of majority on 24.2.2011 and present petition was filed on 7.3.11, PC33/15 Page:-33/36 hence instant petition was filed after attainment of the knowledge of the Will in question and there is no delay in filing the same. As far as contention of the objectors that why the factum of Will in question was not disclosed in the earlier probate petition filed in respect of Will dated 28.12.96 is concerned firstly the said case was not filed by the petitioner and only his father Dinesh Kumar was respondent in the said case and secondly when it is proved on record that the factum of Will in question became known to petitioner only in the year 2011 then no question arise for its disclosure in the previous petition. Rather had the Will in question been in knowledge of the petitioner and his family then disclosure of the same would have benefited them more than its concealment since the same could have served as a tool against the claim of Jai Kishan who was petitioner in the said probate. Accordingly, in view of the above the objections raised as above by the objectors is hereby rejected. Petitioner has been able to duly explain and prove that there is no delay in filing the present petition and no suspicions circumstance can be attached to it.
36. It was also stated on behalf of the objectors even the Will in question does not discuss about the earlier Will dated 28.11.96. It is admitted fact on record that the probate petition filed by Sh. Jai Kishan in respect of the Will dated 28.11.96 was dismissed on merits vide judgment dated 15.12.10 meaning thereby that said Will was not declared as the last Will executed by PC33/15 Page:-34/36 deceased Hari Kishan. When the Will dated 28.11.96 was held to be not executed by the deceased Hari Kishan then where does the question lies about mentioning regarding the said Will in the Will in question. The said objection of objectors accordingly does not hold any water and is accordingly rejected.
37. In view of the aforesaid discussion, the court is of the considered opinion that while the petitioner has been able to show on record that the Will dated 30.11.96 was duly executed by the testator Hari Kishan in a sound disposing mind as his last Will and testament. The objector has failed to prove suspicious circumstances surrounding the Will and and on the other hand, the petitioner has been able to weed out the same.
38.Further the execution of the subject Will has been duly proved in terms of the provisions of Section 63(C ) of Indian Succession Act and Section 68 of Indian Evidence Act and it is settled preposition of law that once these formalities are completed, a probate court is required to accept the will. Reliance is placed on 2009(11) SCC 1 titled Rup Singh Vs Bachan Kaur. Accordingly, the Will dated 30.11.96 Ex. PW-3/2 has been proved to be executed by deceased in sound disposing mind of his own free will and in view of testimony of PWs the same is held to be the last testamentary disposition of deceased Hari Kishan. In view of the aforesaid discussion and findings as also determination of the court as issue no. 1 and 2, the court holds that the subject Will has been proved in accordance with law. There is no legal impediment for allowing the petition of the petitioner.
PC33/15 Page:-35/36 However, in view of Section 222 of the Indian Succession Act, a probate of Will can only be granted to an executor appointed under the Will. However, in terms of Section 232 and 276 of the Act, a letter of administration with Will annexed may be granted to be beneficiary under the Will. Perusal of Will in question shows that no executor had been appointed in the Will in question, hence probate in these circumstances, cannot be granted and as per section 276 of the Indian Succession Act, letter of administration can be granted to petitioner. Reliance is placed upon 2012Vol. III, AD(Delhi) 433 titled Rahul Sharma Vs State & Ors.. Hence, case in favour of petitioner is made out for grant of letter of administration. Accordingly these issues are decided in favour of the petitioner and against the respondents/objectors.
39. Relief: In view of the above finding, the petition is allowed. Letter of administration be issued in favour of petitioner in respect of movable and immovable properties of deceased Hari Kisahn as detailed in Will dated 30.11.96 Ex. PW-3/2 to enable the petitioner to administer the aforesaid property of deceased. It be accordingly granted after completion of required formalities in this context i.e. filing of requisite court fee, administration bond alongwith one surety bond of the amount of valuation in accordance with law. This file be consigned to record room.
Announced in open court (Ajay Goel) on 26.3.15 ADJ1(North)/Delhi PC33/15 Page:-36/36