Delhi District Court
Tiarth Prakash vs The State Ors on 21 December, 2024
THE COURT OF DISTRICT JUDGE-05, CENTRAL DISTRICT,
TIS HAZARI COURTS, DELHI
Presided by:-
Sh. Abhishek Srivastava, DHJS
PC No. 42239/2016
CNR No. DLCT01-000504-2012
1. Sh. Tirath Prakash
S/o Late Sh. Sohan Lal
R/o H.No. 11896/12,
Second Floor, Sat Nagar,
Karol Bagh, New Delhi.
2. Sh. Jitender Kumar
S/o Late Sh. Sohan Lal
R/o H.No. 11896/12,
First Floor, Sat Nagar,
Karol Bagh, New Delhi. ........ Petitioners
Vs.
1. The State
Govt. of NCT of Delhi, Delhi.
2. Smt. Radha Devi
W/o Late Sh. Sohan Lal
R/o H.No. 11896/12, Ground Floor,
Sat Nagar, Karol Bagh,
New Delhi- 110005.
3. Smt. Bimla
W/o Sh. Ganpat
R/o H.No. 13-A, LIG Flats,
Rohtak Road, Madipur,
PC 42239/2016
Tirath Prakash & Anr. Vs. The State & Ors.
Judgment dated 21.12.2024 1 of 48
New Delhi- 110063.
4. Sh. Mahesh
S/o Late Sh. Sohan Lal
R/o H.No. 771-A, Pocekt-2,
Paschim Puri, New Delhi- 110063.
Also at: "Sohan Sons" Shop No. 11901/12,
Sat Nagar, Karol Bagh,
New Delhi- 110005.
5. Sh. Mahender Kumar
S/o Late Sh. Sohan Lal
R/o H.No. 11896, Third Floor,
Sat Nagar, Karol Bagh,
New Delhi- 110005.
6. Smt. Chander Kanta
W/o Sh Narain Dass
R/o 11/7, Amrit Kaur Puri,
Double Storey Quarters,
Tank Road, Karol Bagh,
New Delhi- 110005.
7. Smt. Pushpa
W/o Sh. Satish Kumar
R/o 7065/7, Second Floor,
Mata Rameshwari Nehru Nagar,
Tank Road, Karol Bagh,
New Delhi- 110005. ........ Respondents
Date of Institution: 06.03.2012
Date of conclusion of final arguments: 26.11.2024
Date of Judgment: 21.12.2024
PC 42239/2016
Tirath Prakash & Anr. Vs. The State & Ors.
Judgment dated 21.12.2024 2 of 48
PETITION UNDER THE SECTIONS OF 276/278 OF THE INDIAN
SUCCESSION ACT, 1925 FOR GRANT OF PROBATE/LETTERS OF
ADMINISTRATION
JUDGMENT
1. By this judgment, this court shall dispose of the present petition under Section 276/ 278 of the Indian Succession Act, 1925 (hereinafter referred to as Act) filed by the petitioners, seeking grant of probate/ letters of administration in respect of Will dated 15.09.1997, duly registered on the same day i.e. 15.09.1997 with the Sub-Registrar-III, New Delhi vide registration No. 3491 in Book No. III, Volume No. 1001 on pages 95 to 98, executed by Late Sh. Sohan Lal S/o Late Sh. Kala Chand (hereinafter referred to as the deceased testator) in their favour.
2. The present petition has been filed by the petitioners on 05.03.2012 which is not only duly verified by the petitioners in terms of provision of Section 280 of the Act, but also has been verified by one of attesting witnesses to the aforesaid Will viz. Sh. Kamal Soni as per provisions of Section 281 of Act. All the requisite averments in terms of Sections 276 and 279 have been made in the petition.
PLEADINGS OF THE PARTIES
3. Brief facts as stated in the petition are:-
(a) That the deceased testator expired on 14.07.2003 leaving behind the petitioner Nos. 1 & 2 and the respondent Nos. 2 to 7 as his only legal heirs. That the parents of the deceased testator predeceased him.
Respondent No. 2 is wife, petitioner Nos. 1 & 2 and respondent Nos. 4 PC 42239/2016 Tirath Prakash & Anr. Vs. The State & Ors.
Judgment dated 21.12.2024 3 of 48 & 5 are sons, and respondent Nos. 3, 6 & 7 are daughters of the deceased testator.
(b) That the deceased testator was the owner/ lessee of the immovable property i.e. property bearing No. 11896/12, Rameshwari Nehru Nagar, Sat Nagar, Karol Bagh, New Delhi (hereinafter referred to as subject property).
(c) That the deceased testator during his lifetime had executed a registered Will dated 15.09.1997 duly registered with the Office of Sub-Registrar- III, New Delhi vide registration No. 3491 in Book No. III, Volume No. 1001 on pages 95 to 98. It is stated that the Will was executed by the deceased testator during his lifetime while having a sound state of mind without any force or pressure in the presence of attesting witnesses Sh. Kamal Soni and Sh. Rohtash Kumar.
(d) That by way of the aforesaid Will, the deceased, while excluding all the respondents, bequeathed the subject property in favour of the petitioners in equal shares. The petitioners, as such, after the death of the deceased testator, by virtue of the aforesaid Will, have now become the absolute owners of the subject property.
(e) That the deceased at the time of his death had a fixed place of abode (i.e. at property bearing No. 11896/12, Rameshwari Nehru Nagar, Sat Nagar, Karol Bagh, New Delhi) within the jurisdiction of this Court, as such, this Court has territorial jurisdiction to entertain the present petition.
PC 42239/2016Tirath Prakash & Anr. Vs. The State & Ors.
Judgment dated 21.12.2024 4 of 48
(f) That to the best of their knowledge, the petitioners have not filed any
other petition for grant of probate/ letters of administration of Will dated 15.09.1997 of the deceased testator. There is as such no legal impediment to grant the prayer sought in the petition.
4. The record of the Court file shows that upon filing of this petition, notice of the petition was directed to be issued to the respondents including the respondent/ State through concerned District Collector/SDM. Further, citation in terms of Section 283 of the Act was directed to be published in Hindi newspapers "Hindustan" calling upon all the persons claiming interest in the estate of the deceased testator to come and see proceedings and file objections before grant of probate/ letters of administration vide Order dated 06.03.2012. Citation was also directed to be displayed on the notice board of the Court.
5. As per material on record, citation was duly published in the newspaper "Hindustan" dated 20.07.2012. The citation has also been published on the notice board of this court on 21.07.2012. As per report, notice of this petition was served upon the respondent State through SDM office, Karol Bagh on 19.07.2012. Respondent Nos. 2 to 7 have also been served with the notice of the petition.
6. Objections to the present petition were filed by respondent Nos. 4 and respondent No. 5. Respondent Nos. 3, 6 and 7 filed their respective 'no objections'.
7. Before coming to specific objections of the respondent No. 4 and the respondent No. 5, it may be observed that both the respondent No. 4 and the respondent No. 5 in their respective objections have also talked about one PC 42239/2016 Tirath Prakash & Anr. Vs. The State & Ors.
Judgment dated 21.12.2024 5 of 48 another Will of deceased testator dated 19.04.2003 in favour of the petitioners regarding some other properties, however, since the said Will dated 19.04.2003 has not been brought on record (either marked or exhibited) and since the present petition is regarding the Will dated 15.09.1997 (having no reference to Will dated 19.04.2003), there (respondent Nos. 4 & 5) averments qua Will dated 19,04.2003 have not been recorded while setting down their objections in paras herein below.
8. In the the objections of the respondent No. 4 it is inter alia pleaded that the present petition is not maintainable as being barred by limitation (petition being filed after 8 years of death of the deceased testator); that the deceased testator was not in a position to execute the said Will as the testator was suffering from various old age ailments including from cataracts and was completely blind; that the deceased testator treated all his children equally and as such there is no question of excluding anyone in the Will; that the Will dated 15.09.1997 is a doubtful document as the deceased testator during his lifetime (he died on 14.07.2003) never disclosed this Will to anyone, not even to his wife; that the attesting witnesses to the Will are fast friends of the petitioners; that the subject property was reconstructed by the respondent No. 4 and had incurred cost in that; and as such the Will dated 15.09.1997 is forged and fabricated document and the present petition is liable to be dismissed.
9. In the the objections of the respondent No. 5 it is inter alia pleaded that the present petition is not maintainable as being barred by limitation (petition being filed after 8 years of death of the deceased testator); that the deceased testator was not in a fit state of mind and was blind (kala motia) at the time of PC 42239/2016 Tirath Prakash & Anr. Vs. The State & Ors.
Judgment dated 21.12.2024 6 of 48 execution of the Will; that the deceased testator did not know/ understand the English language and could only sign in English; that the petitioner No. 1 was/ is residing on 2nd and 4th floor, the petitioner No. 2 was/is residing on ground and 1st floor and the respondent No. 5 was/ is residing on the 3rd floor of the subject property and the deceased wanted to give the petitioners and the respondent No. 5 an equal share in the subject property; that the petitioners as well as respondent No. 5 have been residing in their respective shares in the subject property since during lifetime of their father without any interruption; that the respondent No. 5 spent money in construction of the subject property and he was residing on the third floor as an owner and not as a licensee; that the deceased testator had the same love and affection for the respondent No. 5 and there was no question of him excluding the respondent No. 5; that the attesting witnesses to the Will are the friends/ relatives of the petitioners; and that the Will dated 15.09.1997 is forged and fabricated document and the present petition as such is liable to be dismissed.
10. Petitioners filed separate replies to the objections of respondent No. 4 and the respondent No. 5, however, the common theme remains the same in both the replies. The petitioners while reaffirming the contents of the petition stated that the deceased testator was not suffering from any neuro problems; it is wrong that the deceased testator was completely blind (deceased testator was a kala motia which was successfully treated at AIIMS, Delhi and thereafter he could see and read properly); that the deceased testator knew the English language and could read, write and understand English language (deceased testator was painter by occupation and he used to make banners in English PC 42239/2016 Tirath Prakash & Anr. Vs. The State & Ors.
Judgment dated 21.12.2024 7 of 48 language); that the petitioners told many times to the respondent Nos. 4 and 5, in terms of Will dated 15.09.1997, to vacate the subject property, however, since they did not vacate, the petitioners filed the present petition; that the respondent Nos. 4 and 5 have been in the habit of frequent quarrels with the petitioners and raising illegal demands in the subject property which forced the petitioners to file the present petition; that the petitioners took no legal action against respondent Nos. 4 and 5 for more than 8 years in the hope that better sense prevail over them; it is wrong that the respondent Nos. 4 and 5 incurred any cost towards construction/ reconstruction of the subject property (that the subject property was constructed by deceased testator of his own funds); that the present petition is not related to Will dated 19.04.2003 and that the Will dated 15.09.1997 is duly executed and a valid Will. ISSUES
11. On the basis of pleadings of the parties, following issues were framed vide Order dated 02.12.2013:-
(1) Whether the propounded Will dated 15.09.1997 allegedly executed by Sh. Sohan Lal is the last Will and testament of the testator validly executed by him in a sound disposing mind ? OPP.
(2) Whether the petitioners are entitled to grant of letters of administration with Will annexed in respect of the propounded Will ? OPP.
(3) Relief.
EVIDENCES LED BY PARTIES
12. During the trial of this petition, three witnesses viz; PW1 Sh. Tirath Prakash (petitioner No. 1), PW2 Sh. S. K. Sharma (LDC, Office of Sub-Registrar-III, PC 42239/2016 Tirath Prakash & Anr. Vs. The State & Ors.
Judgment dated 21.12.2024 8 of 48 Asaf Ali Road, New Delhi), and PW3 Sh. Kamal Soni (one of the attesting witnesses to the Will dated 15.09.1997) were examined in support of the case of the petitioners.
13. Sh. Tirath Prakash (petitioner No. 1) has been examined by the petitioners as PW1, who has tendered his evidence by way of affidavit Ex.PW1/A alongwith following documents:-
Ex.PW1/1: Original Death Certificate of deceased testator. Ex.PW1/2 (OSR): Copy of Voter I Card of the deponent. Ex.PW1/3: Original Will dated 15.09.1997.
14. Sh. S. K. Sharma, LDC, Office of Sub-Registrar-III, Asaf Ali Road, New Delhi has been examined as PW2. He has brought the record pertaining to the document (Will dated 15.09.1997) having registration No. 3491 in Book No. III, Volume No. 1001 on pages 95 to 98 dated 15.09.1997.
15. Sh. Kamal Soni, one of the attesting witnesses to the Will dated 15.09.1997, has been examined by the petitioners as PW3, who has tendered his evidence by way of affidavit as Ex.PW3/1 and has sought to prove the Will dated 15.09.1997 which was already exhibited as Ex.PW1/3.
16. All the witnesses PW1 to PW3 were cross-examined by the respective Ld. counsels for the respondent Nos. 4 & 5. PE was thereafter closed vide order dated 15.03.2017 and the petition was posted for RE.
17. Sh. Mahender Kumar (respondent No. 5) has been examined on behalf of the respondents as R5W1, who has tendered his evidence by way of affidavit Ex.R5W1/A. He was cross-examined by the Ld. Counsel for the petitioners.PC 42239/2016
Tirath Prakash & Anr. Vs. The State & Ors.
Judgment dated 21.12.2024 9 of 48 No other witness was examined on behalf of the respondents. RE was accordingly closed vide order dated 17.04.2023.
18. Final arguments were thereafter heard on behalf of petitioners and respondent Nos. 4 and 5 which were concluded on 26.11.2024. Besides, written submissions were also filed on behalf of respondent No. 4. SUBMISSIONS ON BEHALF OF THE PARTIES
19. It was submitted by the Ld. Counsel for the petitioners that that the petitioners have been able to prove the Will dated 15.09.1997; Ex.PW1/3 as per the provisions of Section 63 of the Indian Succession Act, 1925 read with Section 67 of The Bharatiya Sakshya Adhiniyam, 2023 (Section 68 of the Indian Evidence Act, 1872) by examining one of the attesting witnesses namely Sh. Kamal Soni as PW3. He had further submitted that the petitioners have been to prove the Will dated 15.09.1997; Ex.PW1/3 to be the last and genuine Will of the deceased testator and that the same was executed by him in a sound and disposing state of mind, through the testimonies of PW1 to PW3. It was further submitted by the Ld. Counsel for the petitioners that nothing incriminating has come on record during their cross-examination which would render their testimonies unreliable. It was as such submitted on behalf of the petitioners that since the petitioners have been able to prove that the Will dated 15.09.1997 was duly executed by Late Sh. Sohan Lal in the presence of two attesting witnesses in his sound disposing state of mind and the respondents have failed to point out any suspicious circumstances surrounding the execution of the aforesaid Will, the petitioners are entitled to grant of letters of administration (with Will annexed) in their favour.
PC 42239/2016Tirath Prakash & Anr. Vs. The State & Ors.
Judgment dated 21.12.2024 10 of 48
20. On the other hand, it was submitted by the Ld. Counsel for the respondent No. 4 that the Will dated 15.09.1997; Ex.PW1/3 is a forged and fabricated document. It was submitted on behalf of the respondent No. 4 that the deceased Sohan Lal/ the deceased testator was not in a fit state of mind and was blind (kala motia) at the time of execution of the Will.
21. Ld. Counsel for the respondent No. 4 while contending that the Wills which were surrounded by suspicious circumstances have been consistently held to be invalid by the Hon'ble High Courts and Hon'ble Supreme Court, highlighted the following circumstances as suspicious;
(i) The Will is dated 15.09.1997 and the testator expired on 14.07.2003. During all these periods, the testator did not disclose about execution of this Will to anyone in the family.
(ii) The testator expired on 14.07.2003 and the present petition was filed after more than eight years of his death, on 06.03.2012.
(iii) The deceased testator bequeathed the property bearing No. 11896/12, Rameshwari Nehru Nagar, Sat Nagar, Karol Bagh, New Delhi solely in favour of petitioners (two sons of deceased testator) while excluding the other children.
(iv) The attesting witnesses to the Will were the friends of the petitioners.
22. Ld. Counsel for the respondent No. 5 supported the case of the respondent No. 4 in sum and substance and made a few more submissions to attack the genuineness of the Will. It was submitted on behalf of respondent No. 5 that the petitioners who are the beneficiaries under the Will actively participated in the execution and registration of the Will. It was further submitted that the PC 42239/2016 Tirath Prakash & Anr. Vs. The State & Ors.
Judgment dated 21.12.2024 11 of 48 deceased testator did not know/ understand the English language and could only sign in English. It was further submitted on behalf of the respondent No. 5 that the deceased testator was not the owner of the subject property as such he was not capable of making the Will qua the property in question.
23. With these submissions, it was argued on behalf of the respondent Nos. 4 and 5 that since the petitioners have failed to prove the due execution of the Will dated 15.09.1997, and have been unable to dispel the suspicious circumstances shrouding the Will dated 15.09.1997; Ex.PW1/3, the petition of the petitioners is liable to be dismissed.
DISCUSSION
24. I have heard the submissions made on behalf of the parties and have also carefully perused the material available on record. My issue wise findings on the issues settled by Ld. predecessor of this Court vide Order dated 02.12.2013 are as under:-
ISSUE No. 1(1) Whether the propounded Will dated 15.09.1997 allegedly executed by Sh. Sohan Lal is the last Will and testament of the testator validly executed by him in a sound disposing mind ? OPP.
25. Onus to prove issue No. 1 was on the petitioners. As has already been observed hereinabove, the petitioners, in the present petition, have prayed for grant of letters of administration (with Will annexed) in respect of the estate of deceased testator Sh. Sohan Lal on the basis of Will dated 15.09.1997 purportedly executed by Late Sh. Sohan Lal in favour of petitioners in respect PC 42239/2016 Tirath Prakash & Anr. Vs. The State & Ors.
Judgment dated 21.12.2024 12 of 48 of his immovable property i.e. property bearing No. 11896/12, Rameshwari Nehru Nagar, Sat Nagar, Karol Bagh, New Delhi.
Relevant Provisions Relating To Execution And Proof Of Will And Relevant Principles Relating To Examination Of Wills As Settled By Judicial Decisions
26. Before coming to facts of the Case, it would be appropriate to undertake a survey of the legal provisions and principles relating to the execution and proof of Wills. The relevant provisions in the Bharatiya Sakshya Adhiniyam, 2023 (Indian Evidence Act, 1872) and the Indian Succession Act, 1925 are being usefully extracted hereunder:
i. Section 59 of the Indian Succession Act "59. Person capable of making Wills.--Every person of sound mind not being a minor may dispose of his property by Will.
Explanation 1.--A married woman may dispose by Will of any property which she could alienate by her own act during her life. Explanation 2.--Persons who are deaf or dumb or blind are not thereby incapacitated for making a Will if they are able to know what they do by it.
Explanation 3.--A person who is ordinarily insane may make a Will during interval in which he is of sound mind.
Explanation 4.--No person can make a Will while he, is in such a state of mind, whether arising from intoxication or from illness or from any other cause, that he does not know what he is doing.
ii. Section 61 of the Indian Succession Act PC 42239/2016 Tirath Prakash & Anr. Vs. The State & Ors.
Judgment dated 21.12.2024 13 of 48 "61. Will obtained by fraud, coercion or importunity. − A will or any part of a will, the making of which has been caused by fraud or coercion, or by such importunity as takes away the free agency of the testator, is void.
iii. Section 63 of the Indian Succession Act "63. Execution of unprivileged wills. −Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the following rules--
(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his 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 signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, 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.
27. At this juncture, it will also be pertinent to refer to the succinct summarization of the provisions in Chapter VI of the Indian Succession Act, 1925 relating to PC 42239/2016 Tirath Prakash & Anr. Vs. The State & Ors.
Judgment dated 21.12.2024 14 of 48 construction of Wills as offered by the Hon'ble Supreme Court of India in a recent judgment in Kavita Kanwar V/s Pamela Mehta; (2021) 11 SCC 209. The relevant portion is being reproduced below:
"23.2 Elaborate provisions have been made in Chapter VI of the Succession Act (Sections 74 to 111), for construction of Wills which, in their sum and substance, make the intention of legislature clear that any irrelevant misdescription or error is not to operate against the Will; and approach has to be to give effect to a Will once it is found to have been executed in the sound state of mind by the testator while exercising his own free will. However, as per Section 81 of the Succession Act, extrinsic evidence is inadmissible in case of patent ambiguity or deficiency in the Will; and as per Section 89 thereof, a Will or bequest not expressive of any definite intention is declared void for uncertainty. Sections 81 and 89 read as under:-
81. Extrinsic evidence inadmissible in case of patent ambiguity or deficiency.- Where there is an ambiguity or deficiency on the face of a Will, no extrinsic evidence as to the intentions of the testator shall be admitted.
*** *** ***
89. Will or bequest void for uncertainty.- A Will or bequest not expressive of any definite intention is void for uncertainty.
Moreover, it is now well settled that when the Will is surrounded by suspicious circumstances, the Court would expect that the legitimate PC 42239/2016 Tirath Prakash & Anr. Vs. The State & Ors.
Judgment dated 21.12.2024 15 of 48 suspicion should be removed before the document in question is accepted as the last Will of the testator.
23.3. As noticed, as per Section 63 of the Succession Act, the Will ought to be attested by two or more witnesses. Hence, any document propounded as a Will cannot be used as evidence unless at least one attesting witness has been examined for the purpose of proving its execution, if such witness is available and is capable of giving evidence as per the requirements of Section 68 of the Evidence Act."
28. Section 68 of the Indian Evidence Act, 1872 (Section 67 of the Bharatiya Sakshya Adhiniyam, 2023) relates to proof of documents required by law to be attested and reads as under:
"68. Proof of execution of document required by law to be attested.--If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied."
29. Therefore, as per Section 68 of the Indian Evidence Act, 1872, the examination of even one of the attesting witnesses is sufficient to prove the execution of a Will.
PC 42239/2016Tirath Prakash & Anr. Vs. The State & Ors.
Judgment dated 21.12.2024 16 of 48
30. It will now be pertinent to refer to the relevant principles relating to examination of Wills as settled by judicial decisions. Law relating to proof of Wills is no longer res-integra, in view of the authoritative pronouncements of Hon'ble Supreme Court in H. Venkatachala Iyengar v. B.N. Thimmajamma, 1959 Supp (1) SCR 426: AIR 1959 SC 443; Uma Devi Nambiar v. T.C. Sidhan, (2004) 2 SCC 321; Kavita Kanwar v. Pamela Mehta, (2021) 11 SCC 209 : 2020 SCC OnLine SC 464 and various other judgments. It is a well settled legal position that the onus to prove the due execution of the Will by the testator in a sound and disposing state of mind is upon the propounder of the Will. Moreover, as per the provisions of Section 68 of the Indian Evidence Act, 1872 even a registered Will is required to be proved by examining at least one of the attesting witnesses to the Will, who shall prove the execution thereof by the testator in terms of Section 63 of the Indian Succession Act, 1925.
31. Moreover, in case, the execution of the Will is surrounded by suspicious circumstances, onus to remove all the legitimate suspicions, before the document is accepted by the Court as the last and genuine Will of the testator, shall also be upon the propounder of the Will. No doubt, if a Caveat is filed alleging exercise of undue influence, fraud or coercion in respect of execution of the Will, the same is required to be proved by the Caveator, however, even without any such plea, the circumstances, may give rise to doubts as to whether the testator was acting of his own free will in execution of the Will and onus to remove such legitimate doubts shall also be the part of initial onus of the propounder. The issue as to what circumstances can be considered to be PC 42239/2016 Tirath Prakash & Anr. Vs. The State & Ors.
Judgment dated 21.12.2024 17 of 48 suspicious circumstances surrounding the execution of the Will, shall depend upon the peculiar facts and circumstances of each case and no straight jacket formula can be laid down in this regard.
32. Relevant observations of Hon'ble Supreme Court of India as to the legal position in the matter of proof of Wills in H. Venkatachala Iyengar v. B.N. Thimmajamma, 1959 Supp (1) SCR 426: AIR 1959 SC 443 are being reproduced herein below for ready reference:
"18. ..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 the proof of documents. Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under s. 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Sections. 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, Sections.59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not PC 42239/2016 Tirath Prakash & Anr. Vs. The State & Ors.
Judgment dated 21.12.2024 18 of 48 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 will or it shall be signed by some other person in his presence and by his direction and that the signature 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 the light of these provisions. Has the testator signed the will? Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained? Stated broadly it is the decision of these questions which determines the 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 Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills, it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters.
19. 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 PC 42239/2016 Tirath Prakash & Anr. Vs. The State & Ors.
Judgment dated 21.12.2024 19 of 48 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 propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.
20. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in PC 42239/2016 Tirath Prakash & Anr. Vs. The State & Ors.
Judgment dated 21.12.2024 20 of 48 removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt 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.
21. ...It is in connection with wills that present such suspicious circumstances that decisions of English courts often mention the test of the satisfaction of judicial conscience. It may be that the reference to judicial conscience in this connection is a heritage from similar observations made by ecclesiastical courts in England when they exercised jurisdiction with reference to wills; but any objection to the use of the word 'conscience' in this context would, in our opinion, be PC 42239/2016 Tirath Prakash & Anr. Vs. The State & Ors.
Judgment dated 21.12.2024 21 of 48 purely technical and academic, if not pedantic. The test merely emphasizes that, in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive.
22. It is obvious that for deciding material questions of fact which arise in applications for probate or inactions on wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. It may, however, be stated generally that a propounder of the will has to prove the due and valid execution of the will and that if there are any suspicious circumstances surrounding the execution of the will the propounder must remove the said suspicions from the mind of the court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties. It is quite true that, as observed by Lord Du Parcq in Harmes v. Hinkson [(1946) 50 CWN 895] "where a will is charged with suspicion, the rules enjoin a reasonable scepticism, not an obdurate persistence in disbelief. They do not demand from the Judge, even in circumstances of grave suspicion, a resolute and impenetrable incredulity. He is never required to close his mind to the truth". It would sound platitudinous to say so, but it is nevertheless true that in discovering truth even in such cases the PC 42239/2016 Tirath Prakash & Anr. Vs. The State & Ors.
Judgment dated 21.12.2024 22 of 48 judicial mind must always be open though vigilant, cautious and circumspect."
(Underlined by me)
33. The position of law on this point has further been explained by a Constitution Bench of the Hon‟ble Supreme Court in Shashi Kumar Banerjee v. Subodh Kumar Banerjee reported as AIR 1964 SC 529 in the following words:
"4. The mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by S. 63 of the Indian Succession Act. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before the Court accepts the will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court. The suspicious circumstances may be as to genuineness of the signature of the testator, the condition of the testator's mind, the dispositions made in the will being unnatural improbable or unfair in the light of relevant circumstances or there might be other indication in the will to show that the testator's mind was not free. In such a case the Court PC 42239/2016 Tirath Prakash & Anr. Vs. The State & Ors.
Judgment dated 21.12.2024 23 of 48 would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes part in the execution of the will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the Court would grant probate, even if the will might be unnatural and might cut off wholly or in part near relations."
(Underlined by me)
34. In yet another case reported as Uma Devi Nambiar v. T.C. Sidhan, (2004) 2 SCC 321, the legal principles for interpretations of Wills and the requirements of a valid Will have been summed up by Hon'ble Supreme Court in the following words:-
"10. ..........From various decisions of this Court e.g. Ram Gopal v. Nand Lal [1950 SCC 702 : AIR 1951 SC 139] , Gnambal Ammal v. T. Raju Ayyar [1950 SCC 978 : AIR 1951 SC 103] , Raj Bajrang Bahadur Singh v. Thakurain Bakhtraj Kuer [AIR 1953 SC 7] , Pearey Lal v. Rameshwar Das [AIR 1963 SC 1703], Ramachandra Shenoy v. Hilda Brite [AIR 1964 SC 1323] and Navneet Lal v. Gokul [(1976) 1 SCC 630 : AIR 1976 SC 794] the following principles are well established:
(1) In construing a document whether in English or in vernacular the fundamental rule is to ascertain the intention from the words used;
the surrounding circumstances are to be considered; but that is only PC 42239/2016 Tirath Prakash & Anr. Vs. The State & Ors.
Judgment dated 21.12.2024 24 of 48 for the purpose of finding out the intended meaning of the words which have actually been employed.
(2) In construing the language of the Will the court is entitled to put itself into the testator's armchair and is bound to bear in mind also other matters than merely the words used. It must consider the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense. But all this is solely as an aid to arriving at a right construction of the Will and to ascertain the meaning of its language when used by that particular testator in that document. (3) The true intention of the testator has to be gathered not by attaching importance to isolated expressions but by reading the Will as a whole with all its provisions and ignoring none of them as redundant or contradictory.
(4) The court must accept, if possible, such construction as would give to every expression some effect rather than that which would render any of the expressions inoperative. The court will look at the circumstances under which the testator makes his Will, such as the state of his property, of his family and the like. Where apparently conflicting dispositions can be reconciled by giving full effect to every word used in a document, such a construction should be accepted instead of a construction which would have the effect of cutting down the clear meaning of the words used by the testator. Further, where one of the two reasonable constructions would lead PC 42239/2016 Tirath Prakash & Anr. Vs. The State & Ors.
Judgment dated 21.12.2024 25 of 48 to intestacy, that should be discarded in favour of a construction which does not create any such hiatus.
(5) To the extent that it is legally possible, effect should be given to every disposition contained in the Will unless the law prevents effect being given to it. Of course, if there are two repugnant provisions conferring successive interests, if the first interest created is valid the subsequent interest cannot take effect but a court of construction will proceed to the farthest extent to avoid repugnancy so that effect could be given as far as possible to every testamentary intention contained in the Will.
11. XXXXX
12. XXXXX.
13. What is the intention of the testator has to be found out on a reading of the Will and there cannot be any hard-and-fast rule of uniform application to find out as to whether the grant was absolute or it was subject to any condition or stipulation. The true intention of the testator has to be gathered not only by attaching importance to isolated expressions but by reading the Will as a whole with all the provisions and ignoring none of them as redundant or contradictory. As observed in Navneet Lal case [(1976) 1 SCC 630 : AIR 1976 SC 794] although there is no binding rule that the court should avoid intestacy at any cost, yet the court would be justified in preferring that construction of the Will which avoids intestacy. Where the words are ambiguous, attempt should be made to avoid that construction which leads to intestacy.
PC 42239/2016Tirath Prakash & Anr. Vs. The State & Ors.
Judgment dated 21.12.2024 26 of 48
14. It is seldom profitable to compare the words of one Will with those of another or to attempt to find out to which of the Wills, upon which decisions have been given in reported cases, the Will before the court approximates closely. Cases are helpful only insofar as the purport to lay down certain general principles of construction and at present these principles seem to be fairly well settled. The cardinal maxim to be observed by courts in construing a Will is to endeavour to ascertain the intention of the testator. This intention has to be gathered primarily from the language of the document which is to be read as a whole without indulging in any conjecture or speculation as to what the testator would have done if he had been better informed or better advised. (See Gnambal case [1950 SCC 978 : AIR 1951 SC 103] .) In construing the Will the court must consider the surrounding circumstances -- the testator's position, his family relationship, the probability that he would use his words in a particular sense and many other things summed up in the picturesque phrase. The court should put itself in the testator's armchair. (See Veerattalingam v. Rameth [(1991) 1 SCC 489 : AIR 1990 SC 2201] .)
15. XXXXX
16. A Will is executed to alter the ordinary mode of succession and by the very nature of things, it is bound to result in either reducing or depriving the share of natural heirs. If a person intends his property to pass to his natural heirs, there is no necessity at all of executing a Will. It is true that a propounder of the Will has to remove all suspicious PC 42239/2016 Tirath Prakash & Anr. Vs. The State & Ors.
Judgment dated 21.12.2024 27 of 48 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. As held in P.P.K. Gopalan Nambiar v. P.P.K. Balakrishnan Nambiar [1995 Supp (2) SCC 664 :
AIR 1995 SC 1852] it is the duty of the propounder of the Will to remove all the suspected features, but there must be real, germane and valid suspicious features and not fantasy of the doubting mind. It has been held that if the propounder succeeds in removing the suspicious circumstance, the court has to give effect to the Will, even if the Will might be unnatural in the sense that it has cut off wholly or in part near relations. (See Pushpavathi v. Chandraraja Kadamba [(1973) 3 SCC 291 : AIR 1972 SC 2492] .) In Rabindra Nath Mukherjee v. Panchanan Banerjee [(1995) 4 SCC 459] it was observed that the circumstance of deprivation of natural heirs should not raise any suspicion because the whole idea behind execution of the Will is to interfere with the normal line of succession and so, natural heirs would be debarred in every case of Will. Of course, it may be that in some cases they are fully debarred and in some cases partly."
(Underlined by me)
35. Very recently, the aforesaid observations of Hon'ble Supreme Court in H. Venkatachala Iyengar v. B.N. Thimmajamma, 1959 Supp (1) SCR 426: AIR 1959 SC 443 and Uma Devi Nambiar v. T.C. Sidhan, (2004) 2 SCC 321 were PC 42239/2016 Tirath Prakash & Anr. Vs. The State & Ors.
Judgment dated 21.12.2024 28 of 48 quoted with approval by another Bench of Hon'ble Supreme Court of India in care reported as Kavita Kanwar v. Pamela Mehta, (2021) 11 SCC 209: 2020 SCC OnLine SC 464. Besides, following observations of Hon'ble Supreme Court in Kavita Kanwar v. Pamela Mehta, (2021) 11 SCC 209: 2020 SCC OnLine SC 464 are worth quoting:
"24.8. We need not multiply the references to all and other decisions cited at the Bar, which essentially proceed on the aforesaid principles while applying the same in the given set of facts and circumstances. Suffice would be to point out that in a recent decision in Shivakumar v. Sharanabasappa [Shivakumar v. Sharanabasappa, (2021) 11 SCC 277] , this Court, after traversing through the relevant decisions, has summarised the principles governing the adjudicatory process concerning proof of a will as follows : (SCC pp. 309-10, para 12) "12. ... 12.1. Ordinarily, 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. Alike the principles governing the proof of other documents, in the case of will too, the proof with mathematical accuracy is not to be insisted upon. 12.2. Since as per Section 63 of the Succession Act, a will is required to be attested, it cannot be used as evidence until at least one attesting witness has been called for the purpose of proving its execution, if there be an attesting witness alive and capable of giving evidence.PC 42239/2016
Tirath Prakash & Anr. Vs. The State & Ors.
Judgment dated 21.12.2024 29 of 48 12.3. The unique feature of a will is that it speaks from the death of the testator and, therefore, the maker thereof is not available for deposing about the circumstances in which the same was executed. This introduces an element of solemnity in the decision of the question as to whether the document propounded is the last will of the testator. The initial onus, naturally, lies on the propounder but the same can be taken to have been primarily discharged on proof of the essential facts which go into the making of a will. 12.4. The case in which the execution of the will is surrounded by suspicious circumstances stands on a different footing. The presence of suspicious circumstances makes the onus heavier on the propounder and, therefore, in cases where the circumstances attendant upon the execution of the document give rise to suspicion, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator. 12.5. If a person challenging the will alleges fabrication or alleges fraud, undue influence, coercion etcetera 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 give rise to the doubt or as to whether the will had indeed been executed by the testator and/or as to whether the testator was acting of his own free will. In such eventuality, it is again a part of the initial onus of the propounder to remove all reasonable doubts in the matter.PC 42239/2016
Tirath Prakash & Anr. Vs. The State & Ors.
Judgment dated 21.12.2024 30 of 48 12.6. A circumstance is "suspicious" when it is not normal or is 'not normally expected in a normal situation or is not expected of a normal person'. As put by this Court, the suspicious features must be "real, germane and valid" and not merely the "fantasy of the doubting mind".
12.7. As to whether any particular feature or a set of features qualify as "suspicious" would depend on the facts and circumstances of each case. A shaky or doubtful signature; a feeble or uncertain mind of the testator; an unfair disposition of property; an unjust exclusion of the legal heirs and particularly the dependants; an active or leading part in making of the will by the beneficiary thereunder et cetera are some of the circumstances which may give rise to suspicion. The circumstances above noted are only illustrative and by no means exhaustive because there could be any circumstance or set of circumstances which may give rise to legitimate suspicion about the execution of the will. On the other hand, any of the circumstances qualifying as being suspicious could be legitimately explained by the propounder. However, such suspicion or suspicions cannot be removed by mere proof of sound and disposing state of mind of the testator and his signature coupled with the proof of attestation.
12.8. The test of satisfaction of the judicial conscience comes into operation when a document propounded as the will of the testator is surrounded by suspicious circumstance(s). While applying such PC 42239/2016 Tirath Prakash & Anr. Vs. The State & Ors.
Judgment dated 21.12.2024 31 of 48 test, the court would address itself to the solemn questions as to whether the testator had signed the will while being aware of its contents and after understanding the nature and effect of the dispositions in the will?
12.9. In the ultimate analysis, where the execution of a will is shrouded in suspicion, it is a matter essentially of the judicial conscience of the court and the party which sets up the will has to offer cogent and convincing explanation of the suspicious circumstances surrounding the will."
Examination of Facts of The Case & Appreciation of The Evidence
36. The Court shall now proceed to examine whether, in the peculiar facts and circumstances of the case and in the light of aforesaid legal principles, petitioners, being the propounder of the Will dated 15.09.1997; Ex.PW1/3, have been able to discharge their onus to prove the due execution of the said Will by the deceased testator in a sound disposing state of mind.
37. The Will in question (Ex.PW1/3) is a four pager typed document. It is in English. It is a registered document in the Office of Sub-registrar. The signature of the deceased testator is appearing on each page. The signature of both the attesting witnesses is appearing on the last page of the Will.
38. As per the Will, petitioners (two sons of deceased testator) are the beneficiaries of property bearing No. 11896/12, Rameshwari Nehru Nagar, Sat Nagar, Karol Bagh, New Delhi. Respondent Nos. 2 to 7 are other legal heirs of the deceased testator. Respondent No. 2 is wife, respondent Nos. 4 & 5 are sons, and respondent Nos. 3, 6 & 7 are daughters of the deceased testator.
PC 42239/2016Tirath Prakash & Anr. Vs. The State & Ors.
Judgment dated 21.12.2024 32 of 48 Respondent Nos. 3 to 7 have been disinherited. Respondent No. 2, wife of deceased, has neither filed her objections nor given a no-objection in favour of the petitioners. Respondent Nos. 3, 6 and 7, daughters, have given their respective no-objections. Respondent Nos. 4 and 5 (two other sons of the deceased testor) have filed their objections.
39. Respondent Nos. 4 and 5 stand completely disinherited. An apparent reason is found that both respondent Nos. 4 and 5 misused the trust of their father (deceased testator) and misappropriated his funds and they remained disobedient and disrespectful to their father.
40. Disproportionate nature of bequeath has been recognised as a suspicious circumstance. Has this suspicion been dispelled?
41. The Will is dated 15.09.1997 (registered on the same day i.e. 15.09.1997). The deceased died on 14.07.2003.
42. The Will is a fairly long document. As already noted, respondent Nos. 4 and 5 have been excluded under the Will. I am reproducing the relevant recitals of the Will containing reasons for exclusion of the respondent Nos. 4 and 5;
"...I established a signboard painting business in the said shop in the name of "Sohan Sons". It is solely my proprietary concern. My elder son, Mahesh Kumar is looking after the said business. Unfortunately, my said son Mahesh Kumar, who is solely looking after the said signboard painting business, seems to have turned hostile towards me and my wife and it appears that he has an eye on it. Of late, my son Mahesh Kumar has started appropriating the entire sale proceeds of the said firm "Sohan Sons" to his own use and refused to give me accounts PC 42239/2016 Tirath Prakash & Anr. Vs. The State & Ors.
Judgment dated 21.12.2024 33 of 48 of the business. On a few occasions, when I asked for accounts he even misbehaved with me...
My said son Mahesh Kumar is living in a flat in Paschimpuri which is owned by my wife. My second son, Mahender Kumar, who is living on the third floor of my house bearing No. 1896/12, Rameshwari Nehru Nagar, Sat Nagar, Karolbagh, New Delhi as a licencee, was a partner with me in my business venture known as "Sohan Art Studio", 5434/71, Rehgarpura, Karolbagh, New Delhi. My said son Mahender Kumar misused my trust and siphoned out considerable money from business firm "Sohan Art Studio" with the result that I separated him from my business and he is now carrying on his own independent business. My said son Mahender Kumar owns a factory premises of 200 sq. yds. In Budh Vihar and also a shop at plot No. 26, Pandav Nagar, DDA Shopping Centre, New Delhi and a flat No. 547, R.G.B., DDA Flats, Raghubir Nagar, New Delhi. My said son Mahender Kumar is disobedient and disrespectful to me. He will not get anything from any of properties after my death."
43. So, the deceased testator excluded the respondent No. 4 and 5 from inheriting all his properties. The present petition is regarding only one property i.e. property bearing No. 11896/12, Rameshwari Nehru Nagar, Sat Nagar, Karol Bagh, New Delhi (subject property). Reasons for exclusion as detailed in Will are that the respondent Nos. 4 and 5 misappropriated the funds, committed breach of trust, misbehaved with the deceased testator and remained disobedient and disrespectful to him.
PC 42239/2016Tirath Prakash & Anr. Vs. The State & Ors.
Judgment dated 21.12.2024 34 of 48
44. The petitioner No. 1 has been examined as PW1. The relevant portions of his cross-examination in this regard has been reproduced herein below;
"...It is correct that my brother Mahender Kumar was also working with my father along with other brothers Mahesh Kumar, myself and Jitender. I and my brothers were not getting any remuneration from my father for doing the job of Painter/Artist...It is correct that at the time of death of my father, we all brothers were occupying the properties as orally directed by my father. My father had died in the year 2003...It is correct that Objector Mahender Kumar has been residing in the third floor of the property in question and also lived there for 11 years after death of my father...it is correct that during my father's lifetime all of us brothers who were settled in their respective portions of property were sustaining on their own earnings. It is correct that such division was as per the wish of my father and in equal proportion."
45. The testimony of PW1 shows that during the lifetime of the father (the deceased testator) (father expired on 14.07.2003 whereas the Will is of 15.09.1997), all the brothers were residing in the subject property (in their respective shares) as per the wish of the father. It clearly shows that the deceased testator had no intentions of evicting the respondent Nos. 4 and 5 from the subject property. Rather, his intention was to treat all sons equally. The deceased testator neither issued any notice nor filed any Case/ Suit against the respondent No. 4 and 5 asking them to vacate the Subject property.
46. Testimony of PW3 can also be referred to in this regard. One of the attesting witnesses to the Will namely Sh. Kamal Soni has been examined as PW3.
PC 42239/2016Tirath Prakash & Anr. Vs. The State & Ors.
Judgment dated 21.12.2024 35 of 48 PW3 in his cross examination (at the behest of respondent No. 5) has deposed to the effect that Sohan Lal was running a shop in front of my shop and this is the reason why I knew him...It is correct that the respondent No. 5 used to work at the shop of deceased Sohan Lal...It is correct that deceased Sohan Lal was having good relations with respondent No. 5. PW3 while being cross examined on behalf of respondent No. 4 had further deposed that Sohan Lal used to tell me about his family affairs. No discussion was taken place as to why the respondent No. 4 & 5 have been excluded in the Will.
47. Testimony of PW3 confirms the fact that the relation of the deceased father with his sons respondent Nos. 4 and 5 was cordial.
48. Further, there is no evidence on record showing that the respondent Nos. 4 and 5 misappropriated any funds of their father.
49. The circumstances proved on record belie the recital in the Will that the respondent Nos. 4 and 5 misappropriated the funds, committed breach of trust, misbehaved with the deceased testator and remained disobedient and disrespectful to him. Totality of evidence establishes that the recital in the Will is incorrect. In this connection, two things can also be noticed. Firstly, it is highly improbable that the deceased testator during his lifetime had not disclosed about the Will to anybody, not even to his wife (had there been a Will executed by him). Secondly, after giving all the reasons in the Will for excluding the respondent Nos. 4 & 5, it is lastly written in the Will (concluded) that My other sons, namely, Mhesh Kumar and Mahender Kumar will not get any share in any of my properties, movable or immovable, also because I have PC 42239/2016 Tirath Prakash & Anr. Vs. The State & Ors.
Judgment dated 21.12.2024 36 of 48 already done a lot for them. Meaning thereby, contradicting the reasons otherwise assigned for exclusion of the respondent Nos. 4 and 5.
50. Now, coming to the execution of the Will dated 15.09.1997 (Ex.PW1/3).
51. From a bare perusal of the Will dated 15.09.1997 Ex.PW1/3 and from the reading of cross-examination of PW1, few elementary points, at the outset, may be noted down:-
(i) The Will is a four pager typed document.
(ii) The Will was drafted by one Advocate known to the deceased.
(iii) Signature of the Advocate who drafted the Will is not there on the Will in question.
(iv) Name of the Advocate is not known to the PW1.
(v) Office of the Advocate is not known to the PW1.
(vi) The Will was not typed in the presence of PW1.
(vii) It was typed beforehand prior to the date of its registration.
(viii) The Will is in English.
(ix) It is a registered document.
(x) The Will was presented to the Sub Registrar by the deceased's Advocate.
52. As per the Will, it is executed on 15.09.1997. The same is registered as well on 15.09.1997. However, it was typed prior to 15.09.1997. Meaning thereby, the Will was already typed on 15.09.1997. The same was not typed in the presence of PW1. PW3 in his cross-examination on behalf of respondent N. 5 had deposed that I am not aware as to who has written the Will Ex.PW1/3. I do not know as to where the Will Ex.PW1/3 was written . PW3 in his cross- examination on behalf of the respondent No. 4 had deposed that It is correct PC 42239/2016 Tirath Prakash & Anr. Vs. The State & Ors.
Judgment dated 21.12.2024 37 of 48 that Will Ex.PW1/3 was not prepared in my presence . The Advocate who drafted the Will is not examined. So, it is not proved on record that the Will dated 15.09.1997; Ex.PW1/3 was drafted and typed at the instruction of the deceased testator.
53. Respondent Nos. 4 and 5 tried to contend that the Will dated 15.09.1997 was not duly executed, alleging that the deceased Sohan Lal/ the deceased testator was not in a fit state of mind and was blind ( kala motia) at the time of execution of the Will. They have failed to produce any evidence in this regard. PW1, on the other hand, deposed in his examination in chief that the cataract was treated successfully and the deceased testator was able to see and read properly and correctly. Further, the cataract, in the considered opinion of this Court, is not such a disease which creates any kind of incapacity in executing the Will in question.
54. However, once it is not proved on record that the Will dated 15.09.1997 Ex.PW1/3 was drafted and typed at the instruction of the deceased testator, it is naturally of very great importance in this case to produce satisfactory evidence that the testator had put his signature on the Will after understanding the nature and effect of its contents.
55. PW1 in his evidence affidavit Ex.PW1/A has deposed that the deceased was a painter by occupation and he could read and write English and used to make banners in English language himself. It is further deposed that the contents of the Will dated 15.09.1997 were read over to Sohan Lal in his vernacular language Hindi and same were properly understood by him and thereafter PC 42239/2016 Tirath Prakash & Anr. Vs. The State & Ors.
Judgment dated 21.12.2024 38 of 48 upon satisfying himself regarding the contents of the above mentioned Will he signed and executed the Will dated 15.09.1997.
56. So, it is first contended that the deceased testator knew the English language and he must have read the Will before signing the same. In alternative, it is stated by the PW1 that the contents of the Will were read over to him in Hindi and thereafter he put his signatures over the Will. Clearly, both the stands are contradictory. Be that as it may. PW1 was specifically cross-examined on the aspect of qualification of deceased testator. PW1 deposed to the effect that my father was an educated person and knew English language but I do not know his educational qualification. I have not got any proof with me regard to his educational qualification. Further, as already noted and is apparent from reading of Will in question that the same was drafted by an Advocate and it is not easy for a layman to understand its import. PW1 in his cross-examination has further deposed to the effect that it is correct that when my father signed, I was not present at that time but I was standing on the backside at Sub Registrar office. When the PW1 was admittedly not present at the time of signing of the Will in question by the testator, his testimony in his evidence affidavit that the contents of the Will were read over to his father in Hindi before he signed, can not be relied upon/ believed.
57. That leaves the evidence of attesting witness PW3. Petitioners have sought to prove the Will dated 15.09.1997 by examining one of the attesting witnesses to the Will namely Sh. Kamal Soni as PW3, who has deposed that the Will dated 15.09.1997 was signed by the deceased testator in his presence as well as in the presence of the other attesting witness namely Sh. Rohtash Kumar PC 42239/2016 Tirath Prakash & Anr. Vs. The State & Ors.
Judgment dated 21.12.2024 39 of 48 and thereafter by the attesting witnesses in the presence of testator. PW3 further deposed that he and the other witness Rohtash Kumar had explained the contents of the Will to the deceased Sh. Sohan Lal in vernacular.
58. The relevant portion of cross-examination of PW3 (at behest of respondent No. 5) has been reproduced herein below;
"I am 12th class pass. I can not tell the educational qualification of Sohan Lal. I can not admit or deny whether deceased Sohan Lal was literate or not. (Vol. As deceased Sohal Lal used to sign in English as per my knowledge he was literate). I am not aware as to who has written the Will Ex.PW1/3. I do not know as to where the Will Ex.PW1/3 was written. It is correct that I am friend of Tirath Prakash, Petitioner. Deceased Sohan Lal asked me to go to Sub-registrar Office for execution/ registration of the Will about 7/10 days prior to its registration...Deceased Sohan Lal had signed on each paper of the Will. The Will was running into 15/20 pages. Again said the deceased has signed only on ⅘ pages of the Will. Photograph of Sohan Lal was also affixed on the Will. I had signed on each page of the Will. I reached at Sub-Registrar Office Asaf Ali Road at about 10.15/10.30 AM. When I reached Sub-Registrar Office, petitioner, deceased Sohan Lal, one Jitender and one another person who had prepared the Will was also present...Deceased Sohan Lal, myself and another witness had signed the Will Ex.PW1/3...I was aware about the contents of Will and deceased Sohan Lal had conveyed me about the Will. Deceased Sohan Lal had conveyed me about 7-10 days prior to the execution of Will PC 42239/2016 Tirath Prakash & Anr. Vs. The State & Ors.
Judgment dated 21.12.2024 40 of 48 about the contents of Will. Deceased Sohan Lal had orally told me that he is willing to execute Will in favour of his both sons and I have to visit Sub Registrar Office, Asaf Ali Road."
The relevant portion of cross-examination of PW3 (at behest of respondent No. 4) is;
"I was called at Sub Registrar office on 15.09.1997. It is correct that Will Ex.PW1/3 was not prepared in my presence. I reached at Sub Registrar Office at 10:30 AM. Deceased, myself and another witness had signed the Will and we all appeared before Sub-Registrar and then I returned to my home. The person who had prepared the Will got the signatures of myself on the Will."
59. So, PW3 in his examination in chief has deposed that he and another witness Sh. Rohtash Kumar had explained the contents of the Will to the deceased Sh. Sohan Lal in vernacular. Whereas, in his cross-examination PW3 deposed that it was the deceased who had told him about the contents of Will. So, there is a contradiction. Even otherwise it appears highly improbable for PW3 to explain the contents of the Will in Hindi to the deceased as stated in his evidence affidavit Ex.PW3/1. Firstly, because as already noted that the Will in question was not prepared in the presence of PW3, the fact which is admitted by PW3 in his cross-examination. Secondly, as already noted, the contents of the Will are not easily comprehensible by a layman. So far as qualification of other attesting witness Sh. Rohtash Kumar is concerned, there is nothing on record. Sh. Rohtash Kumar has not been examined by the petitioners.
60. Few more things can also be observed in regard to this witness i.e. PW3:-
PC 42239/2016Tirath Prakash & Anr. Vs. The State & Ors.
Judgment dated 21.12.2024 41 of 48
(i) The attesting witness PW3 is a friend of the petitioner No. 1 Sh. Tirath Prakash.
(ii) There is a contradiction in his deposition about reaching the Registrar office. As per PW3, when he reached Sub-Registrar Office, Petitioner No. 1 Tirath Prakash, deceased Late Sh. Sohan Lal, Petitioner No. 2 Sh. Jitender and one other person who had prepared the Will were present. Whereas, as per PW1, on receiving a call from Advocate, PW1 along with his father, brother Jitender and two attesting witnesses had gone to the Sub Registrar Office.
(iii) Though PW3 has stated that on the asking of the deceased testator, he had gone to the office of Sub registrar whereas as per the PW1, PW3 went along with PW1 with other persons.
(iv) As per PW3, he had signed on each page of the Will . Whereas, his signature appears on the last page (4th page) only.
(v) Original Will dated 15.09.1997; Ex.PW1/3 was not shown from the judicial record to this witness for identifying his signature and the signature of another attesting witness.
61. The relevant evidence of this witness is clearly inconsistent and is inconclusive and so it would be difficult to treat the evidence of this witness as sufficient to prove that the testator fully understood the nature of recitals in the Will in question i.e. Will dated 15.09.1997 Ex.PW1/3 and the effect of dispositions before he put his signatures to the Will.
62. Suspicion gets graver when one looks further at the evidence of PW1. The relevant portion of cross-examination of PW1 in this regard has been reproduced herein below;
PC 42239/2016Tirath Prakash & Anr. Vs. The State & Ors.
Judgment dated 21.12.2024 42 of 48 "...My father had died in the year 2003. It is correct that I did not approach any court of law between 2003 and 2012 with respect to my father's Will. No talks took place between our brothers and elders with respect to the Will during this period...I never gave any notice to Mahender Kumar that his possession on the third floor is unauthorised or illegal. I never gave any notice to Mahender Kumar regarding the Will executed by my father in my favour. The Will was lying at the residence but I do not recollect with whom. I never disclosed Mahender Kumar/ Objector No. 4 about my father's Will either during lifetime of my father or even thereafter until one month prior to filing of this petition. I never demanded any occupation charges from objector No. 4, Sh. Mahender Kumar...
My younger brother, Jitender Kumar/ petitioner No. 2 had handed over the Will for being filed in this case...Name of the beneficiary was not told to me by my father. I was not told that the Will was in my favour. I only got to know this after death of my father. My father never told this to me in his lifetime. I was aware that we were going for execution and registration of my father's Will. I also never asked my father about the contents of Will or the beneficiary. I never spoke to my brother jitender about the Will..."
63. From reading of above portion of testimony of PW1, following things emerge;
(i) It is absolutely not clear from where the Will in question surfaced for the first time. PW1 said that it was petitioner No. 2 who had handed over the Will PC 42239/2016 Tirath Prakash & Anr. Vs. The State & Ors.
Judgment dated 21.12.2024 43 of 48 in question to the petitioner No. 1 for filing in this Case. PW2 did not enter into the witness box.
(ii) It is not on record whether the Will in question was ever in possession of the deceased testator. It seems that the same was in the possession of the petitioners from the very beginning.
(iii) PW1 can not be believed that the name of the beneficiary was not told to him by his father or that he was not told that the Will was in his favour or that he only got to know this after death of his father as his father never told this to him in his lifetime. After all, he accompanied his father to the Registrar's office for registration. One of the attesting witnesses to the Will is his friend who deposed that the deceased testator had conveyed the contents of the Will to him.
(iv) Conduct of the petitioners is highly questionable. Petitioners never disclosed about the Will to the respondents. Petitioners gave no notice to the respondents that their possession in the subject property is unauthorised or illegal. Further, the petitioners filed the present petition after more than 8 years of the death of their father. Delay beyond 3 years after the deceased's death would arouse suspicion and greater the delay, greater would be the suspicion.
(v) Petitioners/ propounders themselves take a prominent part in the execution of the will in question which confer on them substantial benefits. This itself is a suspicious circumstance attending the execution of the will and the propounders failed to remove the said suspicion by clear and satisfactory evidence.
PC 42239/2016Tirath Prakash & Anr. Vs. The State & Ors.
Judgment dated 21.12.2024 44 of 48
64. The rule is that presumption of due execution of a pious and solemn document like Will stood rebutted due to existence of suspicious circumstances which the propounder could not rule out specially when he had taken active part in its execution. Seeing cumulatively, the circumstances brought on record create grave suspicion, a suspicion so grave that it can hardly be removed, that the Will is a created document. Following dubious and suspicious circumstances emerge:-
(i) It is not on record whether the Will in question was ever in possession of the deceased testator. It seems that the same was in the possession of the petitioners from the very beginning.
(ii) It is absolutely not clear from where the Will in question surfaced for the first time.
(iii) it is not proved on record that the Will dated 15.09.1997; Ex.PW1/3 was drafted and typed at the instruction of the deceased testator.
(iv) Petitioners failed to produce satisfactory evidence that the testator had put his signature on the Will after understanding the nature and effect of its contents.
(v) There is no evidence that the deceased testator was well versed in English.
(vi) The circumstances proved on record belie the recital in the Will that the respondent Nos. 4 and 5 misappropriated the funds, committed breach of trust, misbehaved with the deceased testator and remained disobedient and disrespectful to him. Totality of evidence establishes that the recital in the Will is incorrect. The recital justifying disinheritance is obviously false.PC 42239/2016
Tirath Prakash & Anr. Vs. The State & Ors.
Judgment dated 21.12.2024 45 of 48
(vii) The deceased testator during his lifetime had not disclosed about the Will to anybody, not even to his wife (had there been a Will executed by him, he must have disclosed it to someone).
(viii) Petitioners never disclosed about the Will to the respondents. Petitioners gave no notice to the respondents that their possession in the subject property is unauthorised or illegal.
(ix) Petitioners filed the present petition after more than 8 years of the death of their father. Delay beyond 3 years after the deceased's death would arouse suspicion and greater the delay, greater would be the suspicion.
(x) Petitioners/ propounders themselves take a prominent part in the execution of the will in question which confer on them substantial benefits.
(xi) One of the attesting witnesses examined as PW3 is friend of petitioner No. 1 examined as PW1.
65. The suspicion establishes a high degree of probability justifying a reasonable conclusion that the Will dated 15.09.1997 Ex.PW1/3 has not been duly executed by the testator and is a fabricated document.
66. Registration of the Will is not compulsory. Law is well settled that registration of the Will alone does not prove that it was also duly executed. The Sub- Registrar signs the Will for the purpose of its registration and not for the purpose of its attestation as held by the Hon'ble Supreme Court of India in case Bhagat Ram V/s Suresh; AIR 2004 Supreme Court 436. In this case, the Hon'ble Supreme Court held that on account of registration of a document including of Will or codicil, a presumption as to the correctness or regularity of attestation cannot be drawn. Registration of the Will is no guarantee that it PC 42239/2016 Tirath Prakash & Anr. Vs. The State & Ors.
Judgment dated 21.12.2024 46 of 48 was executed duly and validly as per the provisions of section 63 of Indian Succession Act. Registration of a document does not dispense with the need of proving the execution and attestation of a document which is required by law to be proved. Presumption attached to the registered documents is only in respect of matters of the registration as per requirement of provisions of Indian Registration Act and not in respect of factum of attestation within the meaning of section 63 (c) of Indian Succession Act and section 68 of Indian Evidence Act. Accordingly, the petitioners are not entitled to any special benefit simply on the account that Will was registered one. No presumption of due execution of the Will can be raised in his favour due to its registration which fact petitioners are under obligation to prove as per law.
67. In this regard, it will also be apt to quote the following observation of the Hon'ble Supreme Court in the case of Rani Purnima Debi And Another v. Kumar Khagendra Narayan Dev reported as AIR 1962 SC 567:-
"23. There is no doubt that if a will has been registered, that is a circumstance which may, having regard to the circumstances, prove its genuineness. But the mere fact that a will is registered will not by itself be sufficient to dispel all suspicion regarding it where suspicion exists, without submitting the evidence of registration to a close examination."
68. This Court accordingly holds that the deceased Sh. Sohan Lal did not execute any Will on 15.09.1997. This Court further holds that Ex.PW1/3 is not proved to be the last legal and valid testament of the deceased Sh. Sohan Lal.
69. Hence, issue No. 1 is decided against the petitioners.
PC 42239/2016Tirath Prakash & Anr. Vs. The State & Ors.
Judgment dated 21.12.2024 47 of 48 ISSUE NO. 2 (2) Whether the petitioners are entitled to grant of letters of administration with Will annexed in respect of the propounded Will ? OPP.
70. Answer to this issue is dependent on issue No. 1 and since issue No. 1 is decided against the petitioners, as such, this issue too is decided against the petitioners.
RELIEF
71. In view of the aforesaid findings given qua the issues framed in this petition, on, 02.12.2013, this petition is dismissed. There shall be no order as to costs.
72. File shall be consigned to the record room after due compliance. Announced in the open court on this 21st day of December, 2024.
This judgment consists of 48 number of signed pages. Digitally signed
by ABHISHEK
ABHISHEK SRIVASTAVA
SRIVASTAVA Date:
2024.12.21
15:25:40 +0530
(Abhishek Srivastava)
District Judge-05,
Central, THC, Delhi
PC 42239/2016
Tirath Prakash & Anr. Vs. The State & Ors.
Judgment dated 21.12.2024 48 of 48