Delhi District Court
Smt. Maya Devi vs The State on 17 November, 2015
IN THE COURT OF SH. SANJAY KUMAR: ADDL. DISTRICT
JUDGE(WEST)-02, TIS HAZARI COURTS:DELHI.
Probate Case No.- 12/09
Unique ID Case No. -02401C0281502009
Smt. Maya Devi
W/o Shri Santosh Kumar,
D/o late Shri Jagmal Singh,
R/o H.No. A-746, Shastri Nagar,
Delhi- 110052
.......Petitioner
Versus
1. The State
2. Shri Inder Pal
S/o Late Shri Jagmal Singh
R/o H.No. RZ-301-A, RXT Extension Block
Vishwas Park, Uttam Nagar,
New Delhi- 110059
.......Respondents
Date of institution of the case : 04.07.2009
Judgment reserved on : 06.112015
Judgment pronouncement on : 17.11.2015
JUDGMENT:
1 Petition for the probate of Will dated 29.12.2008 executed by late Shri Jagmal Singh filed by the petitioner, Smt. Maya Devi.
2 In brief the facts are that deceased Shri Jagmal Singh was the father of petitioner and purchased a built up property No. PC 1209 Page 1 of 24 RZ-301-A measuring 50 sq yds, part of Khasra No. 347, RXT Extension Block, Vishwas Park, Uttam Nagar, New Delhi and was exclusive and absolute lawful possession thereof. It is stated that deceased Sh. Jagmal Singh during his life time executed a registered Will dated 29.12.2008, registered vide document no. 13578, Additional Book No. 3, Volume No. 7682, on pages 12 and 13 duly registered with Sub-Registrar-II, Janakpuri, New Delhi.
3 It is stated that deceased Sh. Jagmal Singh expired on 27.02.2009. During the life time deceased Sh. Jagmal Singh had executed a registered GPA, registered vide document no. 17142, Addl. Book No. 4, Volume No. 12377 on pages 134 and 136 dated 10.12.2008 whereby respondent no. 2, Sh. Inder Pal, his son was authorised to manage, look after and take care his property. In addition to it deceased, Sh. Jagmal Singh had executed a Will dated 10.12.2008 in favour of respondent no. 2. It is further stated that deceased Sh. Jagmal Singh sensed the malafide intention and ulterior motives of respondent no. 2, therefore cancelled all the registered documents including the Will on 07.01.2009. Therefore, respondent no. 2 has no right, titled or interest or share in the property in question.
4 It is stated that registered notice dated 11.05.2009 was sent to respondent no. 2 by the petitioner but not replied by respondent no. 2. It is stated that on the basis of Will dated 29.12.2008 being the last will petitioner has become the absolute PC 1209 Page 2 of 24 owner of the property in question, therefore, entited for probate. It is prayed that Probate of the registered Will dated 29.12.2008 may be granted in favour of the petitioner or any other order or relief may be granted in favour of the petitioner and against the respondent.
5 Respondent no. 2 filed objection cum written statement taking preliminary objection that the petition has not been drafted by in accordance with rules of Hon'ble High Court and liable to be dismissed. There is no verification clause in the petition, therefore, as per order 6 rule 7 of CPC it is liable to be dismissed. Petition is without any cause of action, therefore, liable to be rejected. The petitioner has concealed the material facts and information from the court and has approached with unclean hands. The petitioner has no locus standi to file the present petition but filed in order to extract money from respondent no. 2. The petition is not properly valued for the purpose of court fees and jurisdiction.
6 It is further stated that petitioner has given a wrong address of respondent no. 2 who is not residing at RZ-301-A, Block T Extension, Vishwas Park, Uttam Nagar, New Delhi and the correct address of respondent is House No. 94-95, Jain Colony, Part II, Solanki Road, Uttam Nagar, New Delhi- 110059, therefore, petition is liable to be dismissed.
PC 1209 Page 3 of 247 On merit it is stated that petitioner is dishonest lady and filed the present petition to extract money from respondent no. 2. it is stated that neither the petition nor deceased Sh. Jagmal Singh was the owner of the property on 29.12.2008 when the alleged Will executed by deceased Sh. Jagmal Singh in favour of the petitioner.
8 It is stated that the alleged Will dated 29.12.2008 is a forged, fabricated and manipulated document because deceased Sh. Jagmal Singh never executed the alleged Will dated 29.12.2008. The petitioner has played a fraud upon deceased late Shri Jagmal Singh by deceiving and cheating him as well as by using force, undue, influence, threat, fraud and coercion etc. 9 It is further stated property in question was sold by deceased Sh. Jagmal Singh to respondent no. 2 on 10.12.2009 for a consideration of Rs. 2,50,000/- so no question arises of executing the alleged Will dated 29.12.2008. The deceased Sh. Jagmal Singh was not the owner of property in question on 29.12.2008, therefore, there is no question arises of executing of alleged Will dated 29.12.2008 as on that day the respondent no. 2 was the absolute, lawful and exclusive owner of the property in question.
10 It is stated that respondent no. 2 sold the property in question to one Sh. Gajraj Singh S/o Shri Bhule Singh, R/o RZ-301- PC 1209 Page 4 of 24 A, Block T Extension, Vishwas Park, Uttam Nagar, New Delhi on 09.07.2009 and later on Sh. Gajraj Singh sold the said property to Smt. Renu Bala and Smt. Renu Kumari on 07.10.2009 vide registered sale deed, therefore now petitioner has no concern with the property in question.
11 It is stated that respondent no. 2 performed the last rites of deceased Sh. Jagmal Singh. It is further stated that deceased Sh. Jagmal Singh never revoke or cancelled the registered GPA and Will dated 10.12.2008. It is further stated that the alleged cancellation is not cancellation in the eyes of law. As per alleged legal notice served by petitioner on 01.01.2009 because it was never served upon respondent no.2. The alleged registered AD & UPC dated 03.01.2009 are false, forged and fabricated documents.
12 It is stated that petitioner may be put to strict proof that the alleged Will dated 29.12.2008 was executed by deceased Sh. Jagmal Singh having a sound and disposing mind in favour of the petitioner as alleged. It is stated that petitioner is not entitled for Probate on the basis of alleged Will dated 29.12.2008. It is stated that petition is liable to be dismissed.
13 Petitioner also filed rejoinder to the written statement of respondent no. 2 and denied all the objections and reiterated the averments mentioned in the petition.
PC 1209 Page 5 of 2414 On the pleadings of the parties following issues were framed on 19.08.2011:
1. Whether the petition is not properly verified as per law? OPR
2. Whether the will in question dated 29.12.2008 is false and fabricated document? OPR
3. Whether the will dated 29.12.2008 is genuine one and the petitioner is entitled for its probate as prayed for ? OPP
4. Relief
15 In order to prove her case petitioner examined herself as PW-1 and PW-2 Sh. R.K. Thakur, Record Keep from the office of Sub-Registrar-II, Basai Darapur, Delhi.
Respondent no. 2 in order to prove his case examined himself as RW-1, Sh. Gajraj Singh as RW-2, Ms Renu Bala as RW-3, Ms Renu Kumari as RW-4, Sh. Satya Prakash as RW-5 and Sh. Desh Bandhu Gosain, UDC from the sub-Registrar II, Basai Darapur, as RW-6.
16 I have heard, ld. counsel for the petitioner Sh. Sanjay Sharma, and Sh. O.P. Bharti counsel for respondent no. 2 and perused the record.
17 My findings on issues are as follows:-
Issue No. 1: Whether the petition is not properly verified as per law OPR PC 1209 Page 6 of 24 The onus to prove this issue is upon the respondent. The issues is framed on the preliminary objection taken by objector/respondent that the petition is not properly verified as per law. I have gone through the petition filed by the petitioner, it consists of total seven pages and supported with an affidavit of petitioner. On page 7 in Para 19 the petitioner valued the petition for the purposes for court fees and jurisdiction and also made prayer. However, there is no verification para to the petition. In addition to it there is no verification as required by Section 281 of Indian Succession Act. The probate petition requires verification by one attesting witness to the Will in the prescribed form. However, the petition is not verified as per Section 280 and 281 of Indian Succession Act.
The law is well settled that the provision for the verification of the petition is recommendatory and not mandatory and omission to verify is not fatal to the Probate proceedings. The provisions of Section 281 are not mandatory but only directory and no petition can be dismissed on the score that it is filed with- out the verification of at least one of the two attesting witnesses to the will. In the case of Nand Kishore Rai and Another vs. Mst. Bhagi Kuer and Others, AIR 1958 All 329,it was ob- served as under:
"Verification of a petition required under S. 281 similar to verification required of pleadings, in- cluding a plaint, under O.6 R.15, Civil Proce- dure Code and has no greater effect or value. Omission to verify, or defective verification of, PC 1209 Page 7 of 24 a pleading is a mere irregularity within S.
99.C.P.C., and is never fatal. The provision of S. 281 of the Succession Act is less drastic than that of O.6 R.I 5 and an omission to verify, or a defective verification of, a petition for probate cannot have a more serious effect than that of a plaint. The provision in S.281 is merely direc- tory and not mandatory, i.e. non-compliance with it is not intended to lead to the rejection of the petition."
Now applying the principle of law in present facts and circumstances it is admitted case of petitioner that there is no verification para and no attesting witness to the Will verify the petition. Petitioner had opportunity to rectify this irregularity by resorting to Section 99 of CPC or to examine one of the attesting witness of the Will during the trial. However, petitioner failed to rectify this ir-regularity. It is fatal for the petitioner in the present facts and circumstances of the case, therefore, on the basis of the above observation and discussion, the issue no. 1 is decided in favour of respondent and against the petitioner.
18 Issue No. 2: Whether the will in questiondated 29.12.2008 is false and fabricated document? OPR The onus to prove this issue is also upon respondent. The respondent no. 2 examined himself as RW-1 and Sh. Gajraj Singh, RW-2, Ms Renu Bala as RW-3, Ms Renu Kumari as RW-4, Sh. Satya Prakash as RW-5 and Sh. Desh Bandhu Gosain, UDC from sub- Registrar II, as RW-6.
PC 1209 Page 8 of 2419 RW-1 Sh. Inderpal is respondent no. 2 who proved his affidavit Ex. RW1/A and documents i.e copy of GPA dated 10.12.2008, Registered Will dated 10.12.2008 as Ex. RW-1/2, copy of Notarized Will dated 10.12.2008 as Ex. RW-1/3, Copy of Receipt dated 10.12.2008 as Ex. RW-1/4, Copy of agreement to sell dated 10.12.2008 as Ex. RW-1/5, Copy of Notarized affidavit dated 10.12.2008 as Ex. RW-1/6, copy of Possession letter dated 10.12.2008 as Ex. RW-1/7, copy of Registered Sale Deed dated 08.07.2009 as Ex. RW-1/8, copy of receipt issued for cremation by Sharma Anthyeshti Bhandar dated 27.02.2009 as Ex. RW-1/10 and copy of receipt dated 27.02.2009 issued by Shamshan Ghat as Ex. RW-1/11 and death certificate of Sh. Jagmal Singh as Ex. RW-1/12.
20 In the cross-examination he deposed that his mother Smt. Prakashi Devi expired on 23.11.2008 and deceased testator father died on 27.02.2009. He admitted that property in question RZ-301/A was in his possession till 09.07.2009. He admitted that petitioner had filed a civil suit against her and other persons for cancellation of documents. He admitted that on 10.12.2008 in his bank account there was no amount of Rs. 2.5 lacs. He denied the suggestion that the documents in regard to the suit property are fake and fabricated.
21 RW-2 Sh. Gajraj Singh is the witness who had purchased the suit property from respondent no. 2, Sh. Inder Pal Singh who proved his affidavit Ex. RW-2/A. In cross-examination he deposed PC 1209 Page 9 of 24 that respondent no. 2 Sh. Inderpal Singh is his brother in law. He admitted that there is no entry regarding withdrawal of Rs. 8,64,360/- on 09.07.2009 or before. He further deposed that he had seen the documents of ownership of suit property in favour of respondent no. 2, Sh. Inderpal. He deposed that his daughter Poonam used to reside at the suit property till he sold out. He denied the suggestion that he never purchased the property and Inder pal was not the owner of the suit property.
22 RW-3 Smt. Renu Bala proved her affidavit Ex. RW-3/A and in her cross-examination she deposed that she is not summoned. She had purchased the suit property from one Sh. Gajraj Singh. She had checked the chain of documents. She admitted that the documents executed by Sh. Gajraj Singh are detained in sub- Registrar office. She denied that neither Sh. Inderpal nor Sh. Gajraj were the owner of the suit property in question.
23 RW-4 Smt. Renu Kumari has proved her affidavit Ex. RW4/A. In her cross-examination she deposed that she is not a summoned witness. RW-3 Ms Renu Bala purchased the property from one Gajraj Singh and checked the chain of documents. She further deposed that she had seen the title documents by which Inderpal became the owner. She further admitted that till today the title documents executed by Sh. Gajraj Singh are detained in office of the Sub-Registrar.
PC 1209 Page 10 of 2424 RW-5 Sh. Satya Prakash proved his affidavit Ex. RW-5/A and in cross-examination deposed that respondent no. 2 , Sh. Inderpal ( wrongly mentioned as respondent no. 1) is his cousin and he know brother-in-law of respondent no. 1 namely Sh. Gajraj Singh who used to live in the suit property prior to 10.12.2008. He denied the suggestion that he had witnessed the sale documents which were executed by Sh. Gajraj Singh in fvour of Renu Bala and Renu Kumari.
25 He further deposed that on 10.12.2008 he went to Sub- Registrar office around 12 Noon there deceased Sh. Jagmal Singh put his thumb impression on all documents and after registration all went to their respective houses. He denied the suggestion that possession of suit property was never handed over to respondent no. 1 on 10.12.2008 as he was already residing there and no amount was paid by respondent no. 1 to deceased Sh. Jagmal Singh.
26 PW-6 Sh. Desh Bandhu Gosain, UDC from Sub- Registrar office proved the Sale Deed Ex. RW-1/8, Will dated 10.12.2008 Ex. RW-1/2 and GPA Ex. RW-1/1. In cross-examination he deposed that he has no personal knowledge and not aware whether the Will Ex. RW-1/2 and GPA Ex. RW-1/2 have been canceled on 29.12.2008.
PC 1209 Page 11 of 2427 Respondent no. 2 Sh. Inderpal in the objection taken a plea that alleged will dated 29.12.2008 is false, forged and fabricated and manipulated document. However, no evidence has been led on this aspect. He further taken a plea that petitioner played a fraud upon deceased Sh. Jagmal Singh by deceiving and cheating him as well as by using force, undue, influence, threat, fraud and coercion etc and manipulated the Will dated 29.12.2008. However, no evidence led to prove the circumstances which suggest that Will Ex. PW-1/2 is false, forged and fabricated document. On the other hand respondent examined RW-2 Sh. Gajraj Singh, RW-3 Ms Renu Bala, RW-4, Ms Renu Kumari who are the witnesses to the alleged transfer of suit property in favour of Sh. Inderpal, Sh. Gajraj Singh, Ms Renu Bala and Ms Renu Kumari. There is no evidence brought on record to establish that the alleged Will dated 29.12.2008 is false and fabricated document.
28 Respondent has not examined any witness to prove the averment regarding forged and fabrication of will Ex. PW-1/2 of petitioner. There is no material on record to prove use of undue, influence, threat, fraud and coercion etc. by petitioner on deceased Jagmal Singh for execution of Will Ex. PW-1/2.
29 Hence on the basis of above observation and discussion issue no.2 is decided against the respondents and in favour of the petitioner.
PC 1209 Page 12 of 2430 Issue No. 3: Whether the will dated 29.12.2008 is genuine one and the petitioner is entitled for its probate as prayed for?
OPP The onus to prove this issue is open the petitioner. In order to prove this petition, petitioner examined herself as PW-1 and proved her affidavit as Ex. PW-1/A and Will Ex. PW-1/2. In addition to it she proved the Site Plan Ex. PW-1/1 of the suit property, Death certificate of the deceased Sh. Jagmal Singh as Ex. PW-1/3. She further proved the documents regarding cancellation of Will & GPA as Ex. PW-1/4 & 5, legal notice Ex. PW-1/6, Receipt Ex. PW-1/7 and A.D Ex. PW-1/8 and another Will Ex. PW-1/9, another legal notice dated 11.05.2009 as Ex. PW-1/10.
31 In the cross-examination she denied that at the time of filing of the petition her address was house No. H.No. 94-95, Jain Colony, Part-II, Solanki Road, Uttam Nagar, New Delhi. She denied that Smt. Renu Bala and Renu Kumari were the owner of the property in dispute and purchased from one Sh. Gajraj Singh and Sh. Gajraj Singh purchased from respondent no. 2, Sh. Inderpal. She denied that deceased testator Sh. Jagmal Singh sold the property to respondent no. 2 on 10.12.2008 by executing registered GPA, registered Will, receipt of Rs. 2.50 lacs. She denied that has filed a suit for possession against respondent no.
2. She denied that deceased testator did not cancel the registered documents in favour of respondent no. 2. She PC 1209 Page 13 of 24 admitted that on 29.12.2008, the respondent no. 2 was the owner of the suit property. She denied that she has filed the forged document Ex. PW-1/2. Registered Will of deceased testator and other documents regarding the cancellation of Will and GPA in favour of respondent no. 2. She further deposed that is late father Sh. Jagmal Singh served a legal notice upon respondent no.
2. She deposed that she is not aware of legal notice dated 11.05.2009 Ex. PW-1/10 served on respondent no. 2 or not.
32 She further deposed that one Yogesh Kumar Aggarwal was a friend of her husband and used to visit the house since 2009. She admitted that on 23.12.2008 her father was seriously ill and remained till death. Deceased got treatment from Hindu Rao Hospital and the Bhikshu hospital situated at Moti Nagar. She denied that deceased was not physical and mentally well from 23.12.2008 till death. She deposed that Ex. PW-1/2, Ex. PW-1/4, Ex. PW-1/5 handed over to her. She denied that these documents bears the thumb impression of her father which are forged and fabricated.
33 She admitted that on 29.12.2008 her father remained at her house. She further deposed that Sh. S.K Saini ever accompanied her to visiting to suit property. She denied that deceased Jagmal Singh sold the suit property to respondent no. 2 on 10.12.2008. She admitted that last rites of cremation of late Sh. Jagmal was performed by respondent no. 2. She denied that deceased PC 1209 Page 14 of 24 testator Sh. Jagmal Singh executed a Will dated 10.12.2008. She denied that Will Ex. PW-1/2 dated 29.12.2008 is forged and fabricated document. She denied that testator did not die at his residence at A-746, Shastri Nagar, Delhi. She denied that documents dated 29.12.2008 Ex. PW-1/4 & Ex. PW-1/5 are false. She further denied that deceased testator Jagmal Singh has no right to execute Ex. PW-1/4 & 5. She further denied that deceased testator Jagmal Singh did not cancel the GPA and Will executed in favour of respondent no. 2.
34 PW-2 Sh. R.K. Thakur, record keeper from Sub-Registrar proved the Will dated 29.12.2008 Ex. PW-1/2 and cancellation of Will dated 10.12.2008 i.e GPA Ex. RW-1/1.
35 In cross-examination he deposed that he cannot tell whether deceased Sh. Jagmal Singh ever visited in the Sub- registrar. He denied the suggestion that summoned record is forged and fabricated.
36 Ld. Counsel for the petitioner submitted that the Will of deceased Jagmal Singh dated 29.12.2008 is genuine and legal. The petitioner has examined herself as PW-1 and proved the registered Will Ex. PW-1/2. Further her testimony is corroborated by PW-2 Sh. R.K. Thakur, Record keeper from Sub-Registrar office. He further submitted that PW-2 also proved the cancellation of earlier GPA and Will dated 10.12.2008 Ex. RW-1/1 & Ex. RW-1/2, PC 1209 Page 15 of 24 therefore, petitioner has discharged the onus of this issue which may be decided in favour of the petitioner.
37 On the other hand ld. Counsel for the respondent No. 2 submits that the law is well settled in respect of proving the Will. He submitted that as per Section 63 of Indian Succession Act it is mandatory to prove the alleged will as genuine on the basis of examination of attesting witness to the will. However, petitioner failed to examine any of the witness as alleged in the Will Ex. PW-1/2. He further submit that the Apex court and Delhi High Court dismissed such petitions which inherently lack the compliance of Section 63 of Indian Succession Act. He relied upon the judgments of Hon'ble High Court, titled as Kavita Nanwar Vs State ( N.C.T Delhi) reported as 2015(1) CLJ 21 Del., the judgment of Hon'ble Supreme Court titled as Yumnam ONGBI Tampha Ibema Devi Vs Yamnam Joykumar Singh and Others reported as (2009) 4 Supreme Court Cases 780, AIR 1998 SC 2861 titled as Gurdial Kaur and others Vs Kartar Kaur and others, J.T 1995 ( 7) S.C. 48 titled as Kashlbal W/o Lachiram & Anr Vs Parwatibal W/o Lachiram & Ors. He submitted that issue may be decided in favour of respondent no. 2 and against the petitioner.
38 In order to appreciate the contentions of ld. Counsels for the parties, let us peruse the principle of Law laid down in several judgments in respect of proving Will. Apex court in H. PC 1209 Page 16 of 24 Venkatachala Iyengar Vs B.N. Thimmajamma & Ors {(1959)} Supp.1 SCR 426, it held that " However, there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, courts, would be justified in making a finding in favour of the propunder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.
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 PC 1209 Page 17 of 24 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 of coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter."
Further the following prepositions have been laid down:-
(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 PC 1209 Page 18 of 24 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.
(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.
(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 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."PC 1209 Page 19 of 24
39 Further the Apex court held in Smt. Guro Vs Atma Singh & Ors {(1992)2 SCR 30}, that " With regard to proof of a will, the law is well- settled that the mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement prescribed in the case of a will by section 63 of the Indian Succession Act. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and signature of the testator as required by law is sufficient to discharge the onus. Where, however, there were suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the court before the will could be accepted as genuine. Such suspicious circumstances may be a shaky signatures, a feeble mind and unfair and unjust disposal of property or the propounder himself taking a leader part in the making of the will under which he receives a substantial benefit. The presence of suspicious circumstances makes the initial onus heavier and the propunder must remove all legitimate suspicion before the document can be accepted as the last will of the testator."
Yet again Section 68 of the Indian Evidence Act postulates the mode and manner in which proof of execution of document required by law to be attested stating that the execution must be proved by at least one attesting, if an attesting witness is alive and subject to the process of the court and capable of giving evidence.
PC 1209 Page 20 of 2440 The Apex court in Daulat Ram & Ors. Vs Sodha & Ors. [(2005)1 SCC 40], stated the law thus:
"Will being a document has to be proved by primary evidence except where the court permits a document to be proved by leading secondary evidence. Since it is required to be attested, as provided in Section 68 of the Indian Evidence Act, 1872, it cannot be used as evidence until one of the attesting witnesses 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. In addition, it has to satisfy the requirements of Section 63 of the Indian Succession Act, 1925. In order to assess as to whether the Will has been validly executed and is a genuine document, the propounder has to show that the Will was signed by the testator and that he had put his signatures to the testament of his own free will; that he was at the relevant time in a sound disposing state of mind and understood the nature and effect of the dispositions and that the testator had signed it in the presence of two witnesses who attested it in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged. But where there are suspicious circumstances, the onus is on the propounder to remove the suspicion by leading appropriate evidence. The burden to prove that the Will was forged or that it was obtained under undue influence or coercion or by playing a fraud is on the person who alleges it to be so." [Emphasis supplied] Yet again in Meenakshiammal ( Dead) Through & Ors. Vs Chandrasekaran & Anr. [(2005) 1 SCC 280], it was stated that :PC 1209 Page 21 of 24
"In the case of Chinmoyee Saha Vs Debendra Lal Saha it has been held that "if the propounder takes a prominent part in the execution of the will, which confers a substantial benefit on him, the propounder is required to remove the doubts by clear and satisfactory evidence. Once the propounder proves that the will was signed by the testator, that he was at the relevant time in a sound disposing state of mind, that he understood the nature and effect of the disposition and put his signature out of his own free will, and that he signed it in presence of the witnesses who attested it in his presence, the onus, which rests on the propounder, is discharged and when allegation of undue influence, fraud or coercion is made by the caveator, the onus is on the caveator to prove the same."
41 It is admitted by petitioner that no attesting witness to the Will Ex. PW-1/2 examined. There are two witnesses mentioned in Will Ex. PW-1/2, namely, Shri Santosh Kumar S/o Shri Ramchandar, R/o A-746, Shastri Nagar, Delhi and Shri Yogesh Kumar Aggarwa S/o Sh. O.P. Aggarwal, R/o B-1689, Shastri Nagar, Delhi-52.
42 As per provision of Section 63 of the Succession Act, for the due execution of a will.
(1) the testator should sign or affix his mark to his will;
(2) the signature or the mark of the testator should be so placed that it should appear that it was PC 1209 Page 22 of 24 intended thereby to give effect to the writing as a will;
(3) the will should be attested by two or more witnesses, and (4) each of the said witnesses must have seen the testator signing or affixing his mark to the will and each of them should sign the will in the presence of the testator.
43 The attestation of the will in the manner stated above is not an empty formality. It means signing a document for the purpose of testifying of the signatures of the executant. The attested ( sic attesting) witness should put his signature on the will animo attestandi. It is not necessary that more than one witness be present at the same time and no particular form of attestation is necessary. Since a will is required by law to be attested, its execution has to be proved in the manner laid down in the section and the Evidence Act which requires that at least one attesting witness has to be examined for the purpose of proving the execution of such a document. Therefore, petitioner failed to prove the will as per Section 63 of Indian Evidence Act read with Section 68 of Indian Evidence Act.
44 On the basis of above observation and discussion the issue no. 3 is decided against the petitioner and in favour of respondent no. 2.
PC 1209 Page 23 of 2445 Relief On the basis of finding on issues no. 1 & 3 petition is dismissed. No order as to cost. File be consigned to record room.
Announced in the open (Sanjay Kumar)
court on 17.11.2015 ADJ-02 (West)
Tis Hazari Courts
Delhi.
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