Delhi High Court
Kavita Kanwar vs State (N.C.T.Delhi) & Ors on 27 June, 2014
Author: Veena Birbal
Bench: Veena Birbal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO 36/2010
% Date of Decision: June 27th, 2014
KAVITA KANWAR ..... Appellant
Through: Mr.Arun Khosla with Ms.Shreeanka
Kakkar, Advocates
versus
STATE (N.C.T.Delhi) & ORS .... Respondents
Through: Mr.P.Banerjee with Ms.Nidhi
Parashar, Advs for respondent no.2.
Ms.Maninder Acharya, Sr.Adv. with Mr.Anuj
Aggarwal, Mr.Yatish Chandra & Mr.Gaurav
Khanna, Advocates for respondent no.3.
CORAM:
HON'BLE MS. JUSTICE VEENA BIRBAL
VEENA BIRBAL, J
*
1. Present is an appeal under section 299 of the Indian Succession Act,
1925 (hereinafter referred to as „the Act‟) wherein challenge has been made
to the judgment dated 23.11.2009 passed by the ld.Addl. District Judge in
Probate Case no.465/2006 whereby the probate petition filed by the
appellant has been dismissed.
2. Briefly the facts relevant for disposal of the present appeal are as
under:-
Appellant had filed a probate petition for the grant of probate of Will
dated 20.5.2003 alleged to have been executed by her mother, Smt.Amarjeet
Mamik w/o late Shri D.S.Mamik, in respect of property no.D-179, Defence
FAO 36/2010 Page 1 of 26
Colony, New Delhi excluding its ground floor. The mother of parties i.e.
appellant and respondents No.2 and 3 had died on 21.5.2006. The appellant
is the executor named and one of the beneficiaries in the said Will. It was
alleged that the Will dated 20.5.2003 was executed by her mother in the
presence of two witnesses, namely, Major General Manjit Ahluwalia r/o D-
34, Defence Colony, New Delhi and Sh.Urvinder S Kohli r/o 227, Jor Bagh,
New Delhi. It was further alleged that her father was the owner of the
aforesaid property constructed on a plot of land measuring 325 Sq.yards
comprising of a ground floor, first floor, terrace thereon and an annexe
block of garage and servant quarter thereon. It was stated that the ground
floor of the aforesaid property had already been gifted to the appellant by
her father vide registered gift deed dated 25.1.2001. Her father had
bequeathed to the testatrix i.e., Smt.Amarjeet Mamik the first floor, the
terrace thereon and all other portion of the aforesaid property except the
ground floor vide registered Will dated 14.2.2001. Her father predeceased
her mother. The testatrix died on 21.5.2006 leaving behind two daughters,
namely, Smt.Kavita Kanwar, Smt.Pamela Mehta i.e. appellant and
respondent no.2 and one son Col.Prithvijit Mamik, respondent no.3. It was
further alleged that by virtue of aforesaid Will the assets which were likely
to come in the hands of the appellant were the first floor and other portions
of the aforesaid property save and except the ground floor of the building
and to carry out the two options of constructing either on the terrace of the
first floor of the said building or to demolish the said building and to re-
construct and give the highest floor of the said building to respondent no.2
and retaining the terrace rights thereon. It was alleged that as per aforesaid
Will, the balance in the saving bank account maintained with Central Bank
FAO 36/2010 Page 2 of 26
of India, Defence Colony as mentioned in Schedule-B annexed with Probate
Petition would go to her brother Col.(Rtd.) Prithvijit Mamik i.e., respondent
no.3. It was therefore prayed that probate in respect of aforesaid Will be
granted in favour of the appellant.
3. Respondent no.2 initially did not file any objections to the petition or
written statement before the ld.ADJ. Later on when the case was at the
stage of evidence, respondent no.2 sought permission to file written
statement which was dismissed vide order dated 3.7.2008 passed by the
ld.ADJ. However, respondent no.2 continued to contest the matter.
4. Respondent no.3 had filed objections before the ld.ADJ by contending
that the Will propounded by the petitioner was forged and fabricated one
and the same was not executed by the deceased. It was alleged that no
reason had been given in the Will in question as to why respondent no.3 had
been excluded from the property by his mother i.e., testatrix. It was further
alleged that there was no dispute between respondent no.3 and his mother
and there was no reason why the deceased would exclude respondent No.3
from inheriting the property. Respondent no.3 had also disputed the
signature of the deceased on the Will. It was further alleged that the Will
dated 20.5.2003 on the face of it was a forged one. The respondent No.3
had further alleged that the property alleged to have bequeathed in favour of
the petitioner is worth crores whereas respondent no.3 was the only son of
deceased and he had good relations with his mother and it was not possible
that his mother would bequeath only Rs.5,77,389/- in his favour. It was
alleged that Will propounded was not a genuine Will.
5. On the basis of pleadings of the parties, the following issues were
framed by ld.Addl. District Judge:-
FAO 36/2010 Page 3 of 26
"1. Whether the Will dated 20-5-2003 of
Smt.Amarjeet Mamik is proper and valid? OPP
2. Whether the Will dated 20-5-2003 of
Smt.Amarjeet Mamik is forged and fabricated?
OPR-3
3. Whether the petitioner is entitled to the grant of
Probate/Letter of Administration in respect of
Will dated 20-5-2003 of Smt.Amarjeet Mamik?
OPP
4. Relief."
6. In order to prove her case, appellant had examined herself as PW-1
and also examined both attesting witnesses of the Will, namely, Sh.Urvinder
Singh Kohli, PW-2 and Major General Manjit Ahluwalia, PW-3, Sh.Nikhil
Kanwar, son of the petitioner was also examined as PW-4. Respondent no.2
had examined herself as R2W-1. Respondent no.3 had examined himself as
R3W-5 and also examined Sh.S.P.Khamra from Central Bank of India as
R3W-5 and Sh.Ram Gopal Meena from Post Office Defence Colony as
R3W-2, Shri S.P.Sharma from SBI as R3W-3 and Shri R.S.Negi from
Defence Colony Association Club as R3W-4.
7. After hearing learned counsel for the parties and going through the
material on record, the ld.ADJ held that the Will Ex.PW 1/H was surrounded
by various suspicious circumstances, i.e. appellant was major beneficiary
under the Will and had played active role in execution of Will; exclusion of
respondent No.3 from the benefit of estate, respondent No.2 virtually did not
get any share; manner of execution of Will, i.e. chances of testatrix
executing the Will without understanding the contents are there; monetary
FAO 36/2010 Page 4 of 26
benefit was given to daughter of one of attesting witnesses; non-informing
of execution of Will to legal heirs, etc. It was held that the appellant did not
explain the aforesaid suspicious circumstances surrounding the Will in
question. It was further held that in these circumstances the possibility of
Will Ex.PW1/H being a forged and fabricated document and not duly
executed by the deceased after understanding its contents and consequences
could not be ruled out, as such, no relief had been given to the appellant.
The issues framed were decided in favour of respondents and the petition for
grant of probate was dismissed.
8. Aggrieved with the same, present appeal has been filed.
9. Learned counsel for the appellant has contended that there is no
challenge by the respondents about the signatures and hand writing of the
testatrix on the Will in question, as such there is admission about the validity
of the Will Ex.PW1/H. It is submitted that when handwriting and signatures
of the testatrix on the Will Ex.PW1/H are not forged and the same is attested
in the manner prescribed under the law, in these circumstances, requirement
of settled law to prove due execution of Will stands satisfied. It is further
submitted that Will Ex.PW1/H is partly holographed and partly typed. It is
submitted that holograph portion gives weightage to the Will Ex.PW1/H. It
is submitted that when handwriting and signatures of testatrix are not
questioned in the evidence and the learned ADJ has given a clear finding
that the testatrix was of sound disposing mind and was having good health,
in these circumstances, there was no need for learned ADJ to have gone
deeper by probing further into the matter to satisfy its conscious about due
execution of Will Ex.PW1/4. It is submitted that in any event no suspicious
circumstances as noted by learned ADJ exist in the making of Will
FAO 36/2010 Page 5 of 26
Ex.PW1/H. It is submitted that reading the evidence on record the
suspicious circumstances as noted by the learned ADJ in the impugned
judgment are not made out. It is submitted that under the Will in question
the respondent No.2 receives larger bequest than the appellant inasmuch as
the appellant is required to incur expenditure towards constructing brand
new storey over the terrace in order to provide residential flat of same size
as that of the appellant to her. It is contended that the respondent No.3 was
estranged from his parents and he was not concerned about the ailments of
the testatrix. He neither performed her last rites and evidence led by the
appellant establishes so. Despite that learned ADJ has noted that exclusion
of son i.e. respondent No.3 as one of the suspicious circumstances in the
execution of Will Ex.PW1/H. It is contended that there are contradictions in
the evidence of respondent No.2 and 3 which makes their stand
unbelievable. It is submitted that the respondent No.2 did not file any
objections to the probate petition thereby admitted the validity of the Will.
It is submitted that respondent no.2 had come up in the probate court
seeking permission to further cross-examine the appellant with regard to
holograph portion of the Will only when the appellant had filed a suit for
injunction restraining the respondent No.2 from alienating the property in
any manner in respect of which Will Ex.PW1/H has been executed. It is
stated that aforesaid application for cross-examining the appellant was
dismissed vide order dated 25.3.2008 by the learned trial court. It is
submitted that subsequent challenge is afterthought and mala fide. It is
further submitted that respondents No.2 and 3 have contended about the
existence of third page to the Will in question. Rather, the respondent No.3
had moved an application before the ld.ADJ for bringing on record the third
FAO 36/2010 Page 6 of 26
page to the Will and the said application was dismissed on 23.8.2008. It is
contended that the submission of respondents No.2 and 3 about the existence
of third page to the Will Ex.PW1/H amounts to admission of the validity of
Will in question. It is submitted that the parents of the appellant had special
love and affection for her and due to that reason her father had gifted the
ground floor of the building to her and mother had bequeathed the first floor
and other portions as per Will Ex.PW1/H in her favour. It is submitted that
gift deed of the father was never challenged by the respondents. It is
submitted that Will dated 20.5.2003 is validly executed in accordance with
law and is not stigmatised by any suspicious circumstances as has been held
by ld.ADJ. It is submitted that none of the suspicious circumstances as
observed by learned ADJ exist and the finding given is wrong.
10. On the other hand, learned counsel for the respondent No.2 has
submitted that the finding of the learned trial court that the Will in question
is surrounded by various suspicious circumstances which has not been
removed by appellant by leading cogent evidence and that the possibility of
Will being forged and fabricated document require no interferences. It is
submitted that there is no evidence that the testatrix understood the contents
of the Will in question. It is submitted that Will contains legal jargon. No
evidence has been led to show who had drafted the Will Ex.PW1/H. There
is no evidence as to who had typed the typed portion of the Will in question.
It is submitted that this itself is the suspicious circumstance and has been
rightly held by the learned ADJ. Learned counsel for respondent No.2 has
placed reliance on Jaswant Kaur v. Amrit Kaur & Ors.:1977 (1) SCC 369 in
support of aforesaid contention.
FAO 36/2010 Page 7 of 26
11. It is submitted that testatrix was not even matriculate pass and she
could not have used the legal language of her own as has been used in the
Will Ex.PW1/H. It is submitted that the testimony of the attesting witnesses
as well as the testimony of appellant is contradictory in material aspects as
regards the handwritten portion on the Will Ex.PW1/H, discussion about the
contents of Will at the time of its execution. It is submitted that the same
creates doubt about the valid execution of Will Ex.PW1/H. It is further
submitted that the Will Ex.PW1/H has been executed in secrecy which itself
is a suspicious circumstance. During the life time of testatrix, respondent
No.2 i.e., widow daughter of deceased was living on the first floor whereas
the testatrix was residing on the ground floor of D-179, Defence Colony,
New Delhi. The appellant was residing at Panchsheel Park. It has also
come in the evidence that testatrix was having good terms with respondent
No.2. There was no reason not to call respondent No.2 when the Will was
being allegedly executed and only appellant was called. It is contended that
the same shows that execution of the Will Ex.PW1/H was in suspicious
circumstances. Learned counsel has placed reliance upon Rajesh Chand etc.
v. Dayawati & Ors.: MANU/DE/0359/1980.
12. It is submitted that respondent No.2 was in fact taking care of the
testatrix who was suffering from cancer. The husband of respondent No.2
had died in 1992 and it was respondent No.2 who was taking care of her
mother i.e., testatrix. It is submitted that there is no time limit in the Will in
question as to when the appellant would construct the floors. It is submitted
that the respondent No.2 has been left at the mercy of the appellant about the
nature and quality of construction. It is contended that the same could not
have been the intention of the testatrix to leave her widow daughter at the
FAO 36/2010 Page 8 of 26
mercy of her younger sister i.e., appellant. There is no reason as to why the
testatrix would exclude her son i.e., respondent no.3. It is submitted that
unnatural nature of bequeath is also a suspicious circumstance and has been
rightly observed by the learned trial court. It is contended that no evidence
is led by appellant to dispel the suspicious circumstances to the satisfaction
of the court.
13. Learned counsel for respondent no.3 has argued on the same lines as
has been argued by learned counsel for respondent No.2. It is also submitted
that no reason has been stated as to why respondent no.3 was excluded in the
Will and as to why respondent no.2 was kept at the mercy of appellant. It is
submitted that this itself is a suspicious circumstance. It is contended that
disposition in the Will in question is unfair. It is contended that evidence on
record shows that appellant has taken active part in execution of the Will
Ex.PW1/H. It is further submitted that the suspicious circumstances, as
noted by the ld.ADJ, have not been explained even before this court. It is
contended that respondent No.3 was having cordial relations with his mother
i.e. testatrix. It is submitted that respondent No.3 was living at Shimla due
to which there was less interaction with the testatrix. It is submitted that
evidence led by respondent No.3 shows that he was having cordial relations
with the testatrix. It is contended that reading the entire evidence on record
it cannot be said that testatrix was aware about the contents of the Will
Ex.PW1/H.
14. I have heard learned counsel for parties and perused the material on
record.
15. Section 63 of the Indian Succession Act lays down the mode and
manner of execution of an unprivileged Will. Section 68 of the Indian
FAO 36/2010 Page 9 of 26
Evidence Act postulates the mode and manner of proof of execution of
document which is required by law to be attested. It in unequivocal terms
states that execution of Will must be proved at least by one attesting witness,
if an attesting witness is alive subject to the process of the court and capable
of giving evidence. A Will is to prove what is loosely called as primary
evidence, except where proof is permitted by leading secondary evidence.
Unlike other documents, proof of execution of any other document under the
Act would not be sufficient as in terms of Section 68 of the Indian Evidence
Act, execution must be proved at least by one of the attesting witnesses.
While making attestation, there must be an animus attestandi, on the part of
the attesting witness, meaning thereby, he must intend to attest and extrinsic
evidence on this point is receivable.
16. For proving the Will, the propounder has to show 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 dispositions,
that he put his signature to the testament of his own free will and that he has
signed it in the presence of the 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 there may be cases in
which the execution of the will itself is surrounded by suspicious
circumstances, such as, where the signature is doubtful, the testator is of
feeble mind or is overawed by powerful minds interested in getting his
property, or where in the light of the relevant circumstances the dispositions
appear to be unnatural, improbable and unfair, or where there are other
reasons for doubting that the dispositions of the Will are not the result of the
testator's free will and mind. In all such cases where there may be legitimate
FAO 36/2010 Page 10 of 26
suspicious circumstances those must be reviewed and satisfactorily
explained before the Will is accepted. Again in cases where the propounder
has himself taken a prominent part in the execution of the Will which
confers on him substantial benefit that is itself one of the suspicious
circumstances which he must remove by clear and satisfactory evidence.
After all, ultimately it is the conscience of the Court that has to be satisfied,
as such the nature and quality of proof must be commensurate with the need
to satisfy that conscience and remove any suspicion which a reasonable man
may, in the relevant circumstances of the case, entertain. Reliance is placed
on H. Venkatachala Iyengar v. B. N. Thimmajamma:(1959) Supp.1 SCR 426
and Rani Purnima Devi v. Kumar Khagendra Narayan Dev: (1962) 3 SCR
195.
17. The law is well settled that the conscience of the court must be
satisfied that the Will in question was not only executed and attested in the
manner required under the Indian Succession Act, 1925 but it should also be
found that the said Will was the product of free volition of the executants
who had voluntarily executed the same after noting and accepting the
contents of the Will. Execution of Will is a solemn act of the executants
who must own up the recitals in the instrument and there must be clear
evidence that he puts his signature in a document after knowing fully its
contents. The executant of a document must, after fully understanding the
contents and tenor of the document put his signature or affix his thumb
impression. In other words, the execution of the document does not mean
merely signing but signing by way of assent to the terms of contract of
alienation embodied in the document.
FAO 36/2010 Page 11 of 26
18. It has been observed in Jaswant Kaur v. Amrit Kaur and Others:
(1977) 1 SCC 369 that:-
"9. In cases where the execution of a will is shrouded in
suspicion, its proof ceases to be a simple lis between the
plaintiff and the defendant. What, generally, is an adver-
sary proceeding becomes in such cases a matter of the
court's conscience and then the true question which arises
for consideration is whether the evidence led by the pro-
pounder of the will is such as to satisfy the conscience of
the court that the will was duly executed by the testator.
It is impossible to reach such satisfaction unless the party
which sets up the will offers a cogent and convincing
explanation of the suspicious circumstances surrounding
the making of the will." (Emphasis supplied)
19. It is well settled that when genuineness of the Will is in question,
apart from execution and attestation, it is also the duty of the person seeking
declaration about the validity of the Will to dispel suspicious circumstances
existing, if any. Reference is made to the judgment of Supreme Court in
Babu Singh and others V. Ram Sahai @ Ram Singh: AIR 2008 SC 2485.
20. It has been held by the Supreme Court in Gurdial Kaur & Ors. vs.
Kartar Kaur & Ors.: 1998 SCR (2) 486 and number of other judgments that
the propounder of the Will has to show that the Will was the product of free
volition of executant who had voluntarily executed the same after knowing
and understanding the contents of the Will.
21. In P.P.K. Gopalan Nambiar v. P.P.K. Balakrishnan Nambiar and
Ors.: AIR 1995 SC 1852, the Supreme Court has held as under:-
"It is trite that it is the duty of the propounder of
the Will to prove the Will and to remove all
suspected features. But there must be real,
FAO 36/2010 Page 12 of 26
germane and valid suspicious features and not
fantasy of the doubting mind".
22. In Benga Behera and Anr. v. Braja Kisore Nanda and Ors.:
MANU/SC/7673/2007, the Supreme Court has held that "existence of
suspicious circumstances itself may be held to be sufficient to arrive at a
conclusion that execution of the Will has not duly been proved."
23. In B. Venkatamuni v. C.J. Ayodhya Ram Singh and Ors.: AIR 2007 SC
311 the Supreme Court has held that the Court must satisfy its conscience as
regards due execution of the Will by the testator and the court would not
refuse to probe deeper into the matter only because the signature of
propounder on the Will is otherwise proved. The proof of Will is required
not as a ground of reading the document but to afford the judge reasonable
assurance of it as being what it purports to be.
24. The mere fact that signature of a person is proved on a document does
not necessarily mean that the person who has signed the document has done
so after understanding the contents of the document. The expression
"execution" does not merely means the signature, but means that the
executant or the person who puts the signature has done so after
understanding the contents of the document. In other words, it has to be
proved that the hand which had signed the document was with the mind.
Reference is made to the Division Bench judgment of Madras High Court
titled J. Mathew (died) and Others v. Leela Joseph: MANU/TN/1475/2007.
25. The burden of proof that the Will has been validly executed and is a
genuine document is on the propounder. The propounder is also required to
prove that the testator has signed the Will and that he had put his signature
FAO 36/2010 Page 13 of 26
out of his own free will having a sound disposition of mind and understood
the nature and effect thereof. If sufficient evidence in this behalf is brought
on record, the onus of the propounder may be held to have been discharged.
But, the onus would be on the applicant to remove the suspicion by leading
sufficient and cogent evidence if there exists any. In the case of proof of
Will, a signature of a testator alone would not prove the execution thereof, if
his mind may appear to be very feeble and debilitated. However, if a
defence of fraud, coercion or undue influence is raised, the burden would be
on the caveator. Reference is made to Benga Behera and Anr. v. Braja
Kisore Nanda and Ors.: MANU/SC/7673/2007, Madhukar D. Shende v.
Tarabai Shedage: MANU/SC/0016/2002: and Sridevi and Ors. v. Jayaraja
Shetty and Ors. (2005) 8 SCC 784.
26. In view of above legal position, the contention of learned counsel for
appellant that if handwriting and signatures of testatrix are not challenged in
cross-examination and it has come in the evidence that the testatrix was of
sound disposing mind, the validity of Will stands proved, has no force. As
per settled law discussed above the propounder has to satisfy the conscience
of the court as regards due execution of the Will by the testator and for that
the court can probe deeper into the matter to satisfy its conscience that the
testator/testatrix had duly executed the will after understanding its contents.
27. The suspicious circumstances surrounding the Will Ex.PW1/H as
noted by learned ADJ has already been noted above.
28. The question for consideration is whether the evidence led by the
appellant i.e., propounder satisfies the conscience of the court that the Will
in question was duly executed.
FAO 36/2010 Page 14 of 26
29. The Will Ex.PW1/H is alleged to have been executed on 20.5.2003 at
the residence of testatrix i.e. D-179, Defence Colony, New Delhi. It is
alleged to have been attested by two witnesses i.e., Sh.Urvinder S Kohli,
PW-2 and Major General Manjit Ahluwalia, PW-3. The ld.trial court has
observed that though the signatures on the Will Ex.PW1/H are that of the
testatrix and the attesting witnesses have also signed on it but the evidence
on record does not establish that the testatrix at the time of signing of the
Will Ex.PW1/H understood the contents of the same.
30. The evidence on record in this regard is examined. The appellant has
nowhere stated in her evidence by way of affidavit Ex.P1 that testatrix was
aware of the contents of the Will Ex.PW1/H. In her cross-examination, she
has stated that her mother i.e. testatrix did not discuss the contents of the
Will Ex.PW1/H with her before drawing it nor her mother told her as to
who had drawn and typed the said Will. The appellant has further stated in
cross-examination that she does not know when Will Ex.PW1/H was got
typed. She has further stated that she had come to know about the said Will
Ex.PW1/H only on 20-21 May, 2003. The appellant has also deposed that
she does not know whether her mother i.e., testatrix had discussed the Will
Ex.PW 1/H with respondent no.2 or respondent no.3. Her mother did not
ask her to call respondent nos.2 and 3 on that day. In cross-examination, she
has further stated that her mother had discussed the contents of the Will with
the witnesses i.e. PW2 and PW3 whereas PW2 and PW3 in their evidence
have denied the same. The appellant has further deposed that she does not
know if any professional or any deed writer was engaged for drafting/typing
of the Will Ex.PW 1/H. The appellant has also deposed that on that day her
mother had written something but she does not know whether it was on the
FAO 36/2010 Page 15 of 26
Will or something else. From her evidence, it cannot be said that testatrix
was aware about the contents of the Will Ex.PW1/H.
31. The witness Sh.Urvinder S Kohli, PW-2 in cross-examination has
deposed that the testatrix did not discuss the contents of the Will Ex.PW1/4
with him nor he had questioned about the same. He has further deposed that
when he reached at the house of testatrix, appellant was already present
there. The Will Ex.PW1/4 was not produced before him when they three
were present in the house. He has further deposed that Major General
Manjit Ahluwalia, PW-3 came to the house of testatrix after about 10-15
minutes of his reaching there. The Will Ex.PW1/H was already ready with
the testatrix, however, she wrote something more on it. The said witness has
further deposed that the testatrix did not tell as to who had typed the typed
portion of the Will Ex.PW1/H. He did not read the Will Ex.PW1/H but had
a glance of it. He has denied that handwritten portion was inserted after
signing of the same by all. On reading his evidence also, it cannot be said
that testatrix was aware or had understood the contents of the Will
Ex.PW1/H before putting her signatures on it.
32. Major General Manjit Ahluwalia, PW-3, the other attesting witness to
the Will Ex.PW1/H has stated in his evidence by way of affidavit Ex.P3 that
on 20.5.2003 he was called by testatrix at her house to attest Will Ex.PW1/H
and accordingly he had gone there. When he reached there, the testatrix
took out a partly typed Will and thereafter wrote something on the Will in
her own handwriting in opening and closing paras of the Will and signed it.
Thereafter, in the presence of testatrix, he and Sh.Urvinder S Kohli, PW-2
attested the said Will. In his cross-examination, he has stated that he is
having good relations with the appellant and respondent nos. 2 and 3. He
FAO 36/2010 Page 16 of 26
has further deposed that the testatrix did not explain the contents of the Will
Ex.PW1/H to them when they were signing it. He has further deposed that
no discussion took place at the time of execution of the Will Ex.PW1/H. He
has further deposed that the will Ex.PW1/H was in the folder which testatrix
had already taken out before he reached her house. The testatrix was also
having a draft out of which she copied something in her own hand writing
on Will Ex.PW1/H. He does not know whether the other attesting witness
i.e. Sh. Urvinder S. Kohli PW2 who was present had read and gone through
the Will Ex.PW1/H.
33. Even from the evidence of attesting witnesses i.e. PW2 and PW3 it
can‟t be said that testatrix had put her signatures on the Will Ex.PW1/H after
understanding its contents or that while signing she was aware of its
contents.
34. It is not the case of the appellant that the testatrix had given
instruction to some advocate or had consulted him and got the Will
Ex.PW1/H prepared from an advocate. The bequest in the Will Ex.PW1/H
is contained in type written portion and language used shows that the same
is drafted by a lawyer. The testatrix was not computer literate and had no
legal knowledge. No evidence is led as to who drafted and typed the Will
Ex.PW1/H. The non-explanation of above amounts to a suspicious
circumstance as has been held by Supreme Court in Smt. Jaswant Kaur vs.
Amrit Kaur & Ors.: 1977 (1) SCC 369.
35. Respondent no.2 is the widow daughter of testatrix. She has stated in
her evidence that her mother was not even 10th pass. The appellant has
stated in evidence that she does not know educational qualification of her
mother but she could read and write English. During arguments, learned
FAO 36/2010 Page 17 of 26
counsel for appellant has submitted that testatrix was matriculation pass.
The Will Ex.PW1/H is partly typed and partly hand written i.e. opening and
closing para of the Will Ex.PW1/H. The evidence shows that the Will
Ex.PW1/H was also not prepared in one sitting. The first and last para of
Will Ex.PW1/H is in the handwriting of testatrix. The rest of the Will
Ex.PW1/H is typed one. No explanation has been given in evidence as to
why the Will is partly handwritten and partly typed. During arguments,
learned counsel for appellant has submitted that first and last para are
handwritten so as to give more weightage to the Will in question. However,
the reasoning given is not understandable. Further, no evidence is led by the
appellant to show from where the Will in question was got typed. The first
para of Will in question gives the name and other details of testatrix and last
para is the closing para of the Will in question. The typed portion gives the
details of alleged bequeath in the Will Ex.PW1/H whereby major portion
has been given to the appellant and one floor as per choice of the appellant is
alleged to have been bequeathed in favour of respondent No.2. Reading the
evidence led by the appellant it can‟t be said that the testatrix had
understood the typed portion or same was read over to her before she had
put her signatures on the Will Ex.PW1/H. The learned ADJ has rightly held
the above as the suspicious circumstance surrounding the execution of Will
Ex.PW1/4.
36. The alleged bequeath of the immovable property in will Ex.PW1/4 is
as under:-
"1. I hereby give, devise and bequeath to my
youngest daughter the said Mrs. Kavita Kanwar
my entire share in the aforementioned immovable
FAO 36/2010 Page 18 of 26
property, namely the first floor and the terrace
including all other portions, save and except the
ground floor with specific directions that my said
daughter Mrs. Kavita Kanwar will carry out either
of the 2 options as deemed proper by her, namely
(a) construct on the terrace of the said
building such residential facility of such
covered area as is permissible under the
Municipal Building Bye-laws at the time of
my demise and hand over possession of the
same construction to my elder daughter,
namely Mrs. Pamela Mehta, who shall
thereafter acquire sole exclusive title to the
said portion with the terrace rights thereon
continuing to vest in favour of the said Mrs.
Kavita Kanwar,
OR
(b) demolish the said building and carry
out such new construction as is permissible
under the Municipal Building Bye-laws and
be the sole exclusive owner of the entire
building thus constructed, save and except
such constructed residential portion on the
highest floor of such building, which portion
shall vest solely and exclusively in favour of
my said elder daughter Mrs. Pamela Mehta,
while the terrace rights thereon shall
continue to vest in favour of my said
daughter Mrs. Kavita Kanwar."
37. Nothing is stated in the petition or in the evidence led by appellant as
to why the major portion of the immovable property is being given to her. It
is not her case that she was looking after her mother. As per her evidence,
appellant is living at Vasant Vihar for the last about 20-22 years whereas
FAO 36/2010 Page 19 of 26
testatrix was living at Defence Colony house on the ground floor. It has also
come in the evidence that respondent no.2, the widow daughter of testatrix
at the relevant time was living on the first floor of the aforesaid house. She
is stated to be still being there. It has also come in the evidence that the
testatrix had suffered cancer and was looked after by respondent no.2.
Respondent no.2 in cross-examination has stated that her mother was
suffering from cancer and she was looking after her mother and she used to
take her to Army Hospital. No suggestion was given to her that she was not
taking care of her mother. It has also come on record that the testatrix died
after two years of detection of cancer and she had undergone all the tests and
was getting treatment for cancer.
38. As per evidence on record, the testatrix was financially well off. She
had sufficient bank balance in her account. She was also getting family
pension and had employed her own servants. In these circumstances, it
can‟t be said that the testatrix was financially dependent upon the appellant
and due to that reason major portion is bequeathed in her favour. Even that
is not the stand of appellant also.
39. As per the Will Ex.PW1/H, respondent no.2 has been left at the mercy
of the appellant and there is no time limit in the Will in question as to when
the appellant would construct the floors and the nature and quality of
construction for giving her alleged share, the respondent no.2 would be first
dispossessed in order to enable the appellant to reconstruct the building.
40. Reading the Will in question, it is the appellant who is the major
beneficiary of the Will. The evidence on record shows that she has also
played an active role in the preparation of the alleged Will. She was present
when the Will in question was allegedly executed. The attesting witness
FAO 36/2010 Page 20 of 26
Urvinder S Kohli, PW-2 is very well known to the appellant being her friend
for the past 30 years. He has deposed that he had known deceased through
appellant and later the appellant‟s cousin‟s son got married to his daughter
in the year 1994 and since 1994 he had visited testatrix only twice or thrice
on social occasions. Reading his evidence it can‟t be said that he was close
to the testatrix. In these circumstances, testatrix could not have called him
of her own for attesting the Will Ex.PW1/H. Though in the evidence,
appellant has deposed that her mother i.e., testatrix had called the said
witness whereas the witness PW2 has deposed that on 18.5.2003, he was
called by the appellant who told him to come to her mother‟s house on
20.5.2003 as her mother wanted to execute the Will.
41. The evidence on record shows that appellant has taken a prominent
part in execution of Will Ex.PW1/H which confers on her a substantial
benefit worth crores of rupees. This itself is a big suspicious circumstance
as has been held by Supreme Court in Niranjan Umesh Chandra Joshi vs.
Mridula Jyoti Rao: 2007 (1) AD SC 477. It has also been held by Supreme
Court in Surinder Pal vs. Saraswati Arora: (1974) 2 SCC 600 that where
propounder takes prominent part in the execution of Will which confers on
him a substantial benefit that is itself one of the suspicious circumstance
which he must remove by clear evidence. In the present case no evidence is
led by appellant to satisfy the conscience of the court to clear the aforesaid
suspicious circumstance existing at the time of making of Will Ex.PW1/H.
The propounder was required to remove the doubts by clear and satisfactory
evidence.
42. As per the Will Ex.PW1/H, no immovable property has been
bequeathed in favour of respondent no.3. He is only given balance in the
FAO 36/2010 Page 21 of 26
saving bank account of testatrix maintained with Central Bank of India. It is
also not mentioned in the Will as to why respondent no.3 who was the only
son of testatrix would not get share in her immovable property. The
appellant in her cross-examination has deposed that respondent no.3 was
having strained relations with her mother i.e. testatrix whereas Major
General Manjit Ahluwalia, PW-3 who was close relative of the parties i.e.
son of sister of testatrix has deposed that that relations between testatrix and
respondent no.3 were satisfactory.
43. The appellant in her evidence has further deposed that respondent
no.3 had not looked after the testatrix. On the other hand, respondent no.2
who is the sister of appellant and respondent no.3 has stated in her evidence
that respondent no.3 was having good relations with his mother i.e.,
testatrix. As respondent no.3 who was serving in Indian Army was posted at
Simla, the testatrix used to speak to him over phone and used to call him by
his nick name „Pom Pom‟. His mother had sent a birthday card on his
birthday and also wished him all the happiness by writing the same inside
the card. There is no reason as to why testatrix would not bequeath part of
immovable property in favour of his only son i.e., respondent no.3.
44. Respondent no.3 has also deposed that he had joined Indian Army
following the foot steps of his father who was also in Indian Army. There
are also letters of appellant and respondent no.2 to their brother i.e.
respondent no.3. There are also family photographs showing family
members together including respondent no.3. The photograph on record
showing deceased celebrated the second marriage anniversary of respondent
no.3. It has also come in the evidence that deceased had given a sum of Rs.5
lakh lying in her account to respondent no.3 vide Will Ex.PW1/H. Had
FAO 36/2010 Page 22 of 26
there been any strained relations, the testatrix would not have bequeathed
any amount to respondent no.3 as is mentioned in alleged Will Ex.PW1/H.
45. The stand of appellant is that the respondent no.3 had not looked after
the deceased in the hospital when the testatrix was ill. Her further stand is
that last rites of deceased were already performed before he could reach
Delhi. The reasoning given by appellant is not convincing. Reading the
overall evidence on record there is no sufficient evidence of strained
relations between deceased and respondent No.3 to such an extent that
deceased could have excluded him from the bequeath of immovable
property of deceased in Will Ex.PW1/H.
46. There is no evidence coming forth to explain the suspicious
circumstance of excluding respondent no.3 from bequeath of the immovable
property. As noted above, there is no evidence that deceased had
understood the contents of the Will Ex.PW1/H before signing it. In this
background, exclusion of respondent no.3 is also a grave suspicious
circumstance which has also remained unexplained. The same cast doubt as
to the genuineness of Will Ex.PW1/H.
47. Further the respondent no.2 is the widow daughter of the testatrix who
was residing on the first floor of the property and the testatrix was residing
on the ground floor of same building when the Will in question was
executed. She was also having good relations with the testatrix. There is no
reason as to why the testatrix would not have called respondent no.2 and
only called the appellant at the time of execution of the Will. The execution
of the Will in secrecy surrounds the same by suspicious circumstance which
is unexplained. Further the execution of Will in question is also not
disclosed to respondent No.2 for 3 years when as per Will Ex.PW1/H,
FAO 36/2010 Page 23 of 26
respondent No.2 is also given one floor which itself is a suspicious
circumstance. No explanation is given by the appellant for the same.
48. Further, there are serious contradictions in the testimony of attesting
witnesses i.e. PW2 and PW3 and that of appellant on material aspects
pertaining to the execution of the Will. In affidavit Ex.P1 the appellant has
stated that the testatrix had brought out a partly typed Will and further wrote
in her own hand the opening and closing paragraphs of the Will Ex.PW1/H.
In cross-examination, she has stated that she does not know whether she had
written on the Will or something else. Sh. Urvinder S. Kohli PW2 has stated
that the handwritten portion on the Will Ex.PW1/H was written by the
testatrix of her own. Sh. Manjit Ahluwalia PW3 has stated in cross-
examination that the testatrix was having one draft out of which she copied
something in her own handwriting on Will Ex.PW1/H. All the three
witnesses have deposed differently as to how handwritten portion was
written on Will Ex.PW1/H. There is also contradiction as regards discussion
about the contents of Will Ex.PW1/H by testatrix with the attesting
witnesses. The appellant has stated in her cross-examination that her mother
had discussed the contents of Will with the witnesses whereas both the
attesting witnesses have denied that the contents of Will were discussed by
the testatrix. PW2 has also stated in the cross-examination that he even did
not question the testatrix on the same. There is also contradiction about the
manner of taking out of Will at the time the witnesses had reached the house
of testatrix. The attesting witness PW2 has deposed that the Will was not
produced before him when he was present with the testatrix and appellant.
According to him, when PW3 had come, only then the Will was produced.
On the other hand, Sh. Manjit Ahluwalia PW3 has deposed that when he had
FAO 36/2010 Page 24 of 26
reached the house of testatrix Will Ex.PW1/H had already been taken out by
the testatrix before he reached her house. The above contradictions are
serious in nature and create a doubt about the execution of Will Ex.PW1/H
in accordance with law.
49. It has also come in the evidence that Rs.25000/- was paid by the
appellant to the daughter of the attesting witness Major General Manjit
Ahluwalia PW3 through cheque Ex.R3W1-C from account jointly in the
name of testatrix and the appellant after the death of testatrix. The stand of
respondent No.2 and 3 is that the aforesaid payment was made in order to
get favour from the attesting witness PW3 as such his evidence is not
reliable. On the other hand, the stand of the appellant is that the said amount
was not only paid to the daughter of PW3 but was also paid to the daughter
of respondent No.2 and to the son of appellant as the deceased/testatrix
wanted to gift the said amount to them. In support of the stand, learned
counsel for appellant has referred to the alleged third page of Will in
question. It may be mentioned that the alleged third page of the Will
Ex.PW1/H is never produced by the appellant. Rather, when the respondent
No.3 had moved an application for production of the alleged third page of
the Will, appellant had denied the existence of said page. The third page of
the Will is never proved before the learned ADJ. Even assuming the alleged
third page exists, the same does not dispel the suspicious circumstances as
have been noted above. In these circumstances, the contention of the
appellant that the alleged third page of Will Ex.PW1/H proves its validity
has no force.
50. No fault is also seen in accepting the reasoning by the learned ADJ
given by the respondent No.2 in not contesting the probate petition earlier.
FAO 36/2010 Page 25 of 26
Reading the evidence on record, it cannot be said that the contest to the
probate by respondent No.2 at subsequent stage was afterthought and mala
fide as is alleged by learned counsel for appellant.
51. In view of above discussion, the findings of learned ADJ that Will
Ex.PW1/H is surrounded by various suspicious circumstances which has
remained unexplained and the possibility of aforesaid Will not duly
executed by the deceased after understanding its contents are confirmed. No
illegality or perversity is seen in the findings given by the learned ADJ. No
case is made out for interference with the impugned judgment.
Accordingly, the appeal is dismissed. There is no order as to costs.
VEENA BIRBAL, J.
June 27th, 2014 ssb/kks FAO 36/2010 Page 26 of 26