Delhi District Court
Sh. Madhu Sudan Dhawan vs The State on 24 May, 2014
IN THE COURT OF SH. SUNIL RANA
ADDL. DISTRICT JUDGEII : ROHINI : DELHI
PC NO. 01/09
Unique Code No. 02404C0022952009
Sh. Madhu Sudan Dhawan
S/o Sh. R.K.Dhawan
R/o B3A/266,
Janak Puri,
New Delhi
... Petitioner
Vs.
1. The State
(Govt of NCT of Delhi)
2. Smt. Promila Arora
W/o Late Sh. Madan Lal Arora
3. Rajiv Kumar
S/o Late Sh. Madan Lal Arora
4. Sanjeev Arora
S/o Late Sh. Madan Lal Arora
5. Atul Arora
S/o Late Sh. Madan Lal Arora
2 to 5 resident of
H.No. 62, Gali Khilonian Wali
Pacca Danga,
J & K (Jammu & Kashmir) ......Respondents
Date of Institution : 02.01.2009
PC01/09 1/31
Date on which case was reserved for order : 26.04.2014
Date of pronouncement of order : 24.05.2014
ORDER
1. Vide this order, I shall decide the petition u/s 276 of Indian Succession Act, 1925 filed by the petitioner for grant of probate in respect of Will dt. 01.10.1992 executed by Late Madan Lal Arora in favour of the petitioner.
2. Brief facts as stated in the petition are that property bearing DDA plot No. 90, measuring 25.9 Sq. Mtrs., Pocket II, Sector3, Rohini Residential Scheme (Rohini Extension) Delhi85 was owned by deceased Madan Lal Arora, who had executed a Will dt. 01.10.1992, registered in the office of Sub Registrar II, vide document No. 45221 in Addl. Book No. 3 Volume No. 1788 on page 54 on 01.10.1992.
3. It has been further stated that as per Will dt.
01.10.1992, petitioner is the sole legatee and beneficiary in respect of above said property of the deceased, however, no person has been named/appointed to be the executor in respect of the Will so as to give effect to the Will as per the last wishes of the testator and there is no other legal heir of the deceased except respondent no. 2 to 5.
PC01/09 2/31
4. It has been further stated that Will dt. 01.10.1992 was the last testamentary document executed by the deceased Madan Lal Arora in the presence of witnesses, who had attested the same in the presence of the testator and the subject matter of the Will is situated at Delhi. It has been prayed that probate be granted in respect of the Will dt. 01.10.1992 executed by deceased Madan Lal Arora in favour of the petitioner.
5. Petitioner has relied upon the following judgments: i. Girdhari Lal Bhat v The State & Ors. 22 (1982) DLT 487. ii. Sudhir Kumar Kohli v The State & Ors. 186 (2012) DLT 683.
6. Notice of this petition was issued to the State through collector as well as to the legal heirs of deceased Madan Lal Arora and notice was also directed to be published in the Newspaper, " Greater Kashmir" which is in wide circulation in Jammu region and in the Newspaper "Dainik Bhaskar" in terms of the order dt. 19.01.2009 passed by the Ld. Predecessor of this court. It is pertinent note here that Ld. Predecessor has observed in the order dt. 15.12.2009 that publication was done in the Dainik Bhasker, published from Jammu on 05.05.09 and in Rashitriya Sahara, published from Delhi on 05.05.09. Office of SDM has filed a valuation report dt. 30.04.2010, whereby the value of PC01/09 3/31 property bearing no. 90, Pkt. II, sector22, Rohini, Delhi measuring 25.9 sq. mts., was assessed as Rs.5,00,000/.
7. On the other hand, objections were filed on behalf of the respondent no. 2 to 5 being the LR's with a submission that deceased Madan Lal Arora was having no visiting terms with the petitioner during his life time and there is no question of executing the alleged Will dt. 01.10.1992 and the said Will is forged & fabricated document manipulated by the petitioner himself.
8. It has been submitted that objectors are the close relatives/family members of the deceased Madan Lal Arora and the relations between them were cordial during his life time as all were residing in the same premises without any tension or differences. It has been further submitted that there is no reason to defeat the legal rights of objectors in the property bearing DDA plot No. 90, measuring 25.9 Sq. Mtrs., Pocket II, Sector3, Rohini Residential Scheme (Rohini Extension) Delhi85 by executing the alleged Will dt. 01.10.1992.
9. It has been further submitted that the deceased had specifically told them that all have equal shares in the property and no document was executed in favour of anyone in respect of property. It has been submitted that the alleged Will dt. PC01/09 4/31 01.10.1992 has no value in the eyes of law as the same is a forged & fabricated document and as such no probate can be granted in favour of the petitioner and petition is liable to be dismissed.
10. From the pleadings of the parties, Ld. Predecessor has framed the following issues vide order dt. 19.11.2010: (1) Whether the Will dated 01.10.1992 executed by the deceased as propounded by the petitioner is the last Will and testament of deceased Sh. Madan Lal Arora and that it has been executed by him in sound disposing mind and that it is a valid Will ? (OPP) (2) Whether the Will dated 01.10.1992 is forged and fabricated document?(OPR) (3) Relief ?
11. In order to prove its case, the petitioner has examined Sh. Subhash Chander Paul as PW1 and himself as PW2 and Sh. Kishan Kumar LDC from the office of Sub RegistrarIII, Janak Puri, New Delhi as PW3 and Sh. Vijender Singh UDC from Lab (Rohini), DDA Vikas Sadan Delhi as PW4. On the other hand, respondents/objectors have examined Smt. Parmila Arora w/o Late Sh. Madan Lal Arora as DW1, Sh. Atul Arora s/o Late Sh. Madan Lal Arora as DW2 and Sh. Vijender Singh UDC from LAB (Rohini), DDA Vikas Sadan, Delhi as DW3. PC01/09 5/31 Detailed testimonies of the witnesses shall be discussed in the later part of the order/judgment.
12. I have heard the arguments on behalf of the parties and perused the evidence brought on record. My issuewise findings are as under: ISSUE NO.1: Whether the Will dated 01.10.1992 executed by the deceased as propounded by the petitioner is the last Will and testament of deceased Sh. Madan Lal Arora and that it has been executed by him in sound disposing mind and that it is a valid Will ? (OPP)
13. Onus to prove this issue is upon the petitioner, who has examined himself as PW2 and one attesting witness, Subash Chander Paul as PW1 and other summoned witnesses from the office of SubRegistrar, Janak Puri, Delhi and DDA.
14. PW1 has deposed that he is the attesting witness of Will dated 1.10.1992 executed by deceased Madan Lal Arora in favour of Sh. Madhu Sudan Dhawan and the Will is Exhibited as PW1/A and testator was in a sound state of mind and health at the time of execution of the Will. PW1 has further deposed that deceased Madan Lal Arora had signed the Will in his presence at point A & B and Will was registered with the office of Sub PC01/09 6/31 Registrar.
15. Let us see the relevant part of crossexamination of PW1 wherein it has been stated that he had signed the Will on 1 st of October, 92, again said that he is not confirmed about the date. PW1 has further stated in his deposition that he is the real brotherinlaw (sadu) of the petitioner and deceased Madan Lal Arora was his brotherinlaw (jija) and had three sons namely Rajesh, Rakesh and Atul.
16. PW1 has further stated in his deposition that he had visited the house of the respondents/objectors on the death of Madan Lal Arora but he does not know what was the age of deceased Madan Lal Arora at the time of execution of Will. PW1 has denied the suggestion that deceased did not sign in English as he did not know English and used to sign in Urdu and further denied the suggestion that he has forged & fabricated the Will along with petitioner.
17. PW2 has deposed that property was owned by deceased Madan Lal Arora, died on 27.02.2007 and his death certificate is Ex. PW2/A. PW2 has further deposed that he is the sole legatee and beneficiary in respect of property bearing No. 90, measuring 25.9 Sq. Mtrs., Pocket II, Sector3, (now known as PC01/09 7/31 Sector22) Rohini Residential Scheme(Rohini Extension) Delhi 85, as per Will dt. 01.10.1992 (Ex. PW1/A).
18. During the crossexamination of PW2, it has been stated that deceased Madan Lal Arora has no direct relation with him but he was known to him through his brotherinlaw Sh. Subash Chander Paul. PW2 has further stated in his deposition that he does not know what was the age of the deceased Madan Lal Arora at the time of executing the Will. PW2 has produced the demand letter, which is Ex. PW2/R1(OSR) and denied the suggestion that he took the demand letter from DDA. PW2 has stated in his deposition that death certificate of deceased Madan Lal Arora was handed over to him by Subash Chander Paul but does not remember the date and denied the suggestion that he had gone to Jammu to take the death certificate.
19. PW2 has stated in his cross examination that he got the Will alongwith other papers in the year 2008 while cleaning his house. PW2 has further stated in his deposition that deceased would have liked to bequeath the property in favour of near relative and deceased had never stayed at his house. PW2 has denied the suggestion that property in question was mutated in the name of Smt. Promila wife of Sh. Madan Lal Arora since PC01/09 8/31 deceased and further denied the suggestion that Will in questions was forged by him in connivance with Subash Chander Paul.
20. PW3 is a summoned witness from the office of SubRegistrar, who has brought the summoned record and deposed that Will dt. 0.10.1992 was registered at the office of SubRegistrar, Janak Puri, Delhi.
21. PW3 has stated in his crossexamination that he has no personal knowledge about the registration as he was not working in the said office at the time of registration of Will.
22. PW4 is a summoned witness from the office of DDA, Vikas Sadan Delhi and deposed that as per the record, possession letter no. 20(611)/89/LSB/Rohini/691 dated 30.12.1993 and the sector 3 of Rohini was named as Sector 22, Pocket 11, Rohini and the letter is Ex. PW4/A. PW4 has further deposed that as per record, Sh. Madan Lal Arora was allotted plot no. 90, Pocket 11, Sector3 (New Name Sector 22), measuring 25.90 sq. meter, Rohini.
23. Let us see the crossexamination of PW4, wherein, it has been stated that as per record, Sh. Madan Lal Arora has expired and after his death, plot must be transfered to his legal heirs. PW4 has further stated in his cross examination that plot PC01/09 9/31 cannot be transfered to anyone on the basis of Will. Voluntarily, it has been stated that it should be decided by the probate Court. PW4 has further stated that as per record, an application was made by the LR of the deceased Madan Lal Arora regarding transfer of plot but no document was submitted by them thereafter.
24. On the other hand, objectors have examined Smt. Parmila Arora W/o Late Madan Lal Arora, who deposed that her husband Madan Lal Arora died on 27.02.2007 in Govt. Medical College Hospital Jammu and left the movable & immovable property including the property bearing no. Plot no.90, Pkt4, sector22, and letter dt. 20.11.2009 sent by DDA lease Administrative Branch, Rohini for the purpose of mutation is EX. DW1/1.
25. DW1 has deposed that deceased has not executed any documents in favour of any person in respect of the suit property as all were having cordial relationship and live together till the death of Madan Lal Arora. DW1 has further deposed that the documents produced by the petitioner in respect of the property and Will is a forged & fabricated with a malafide intention to grab the property in question. DW1 has further deposed that PC01/09 10/31 deceased Madan Lal Arora was commission agent of the fruits, vegetables and eggs at New Subzi Mandi, Narwal, Jammu and on 01.10.1992, he had supplied the fruits and vegetable to Bashir Ahmed (Doda City), Mohamed Rose Majra (Karara), Gulam Mohamed Sheikh (Kishtwar), Chain Singh (Pull Doda) all belonged to Jammu and the ledger Book page no. 2, 8, 12 & 15 are exhibited as DW1/2 (colly) and the complaint made to the DDA is Ex. DW1/3.
26. Let us see the crossexamination of DW1, wherein it has been stated that her husband used to sign in Urdu language as he knew only Urdu language. DW1 has denied the suggestion that her husband deceased Madan Lal Arora was in Delhi on 01.10.1992. DW1 has further stated in her deposition that in October/November 2008, her brother Sh. S.C. Paul came to obtain death certificate of her husband and she had not given the same but subsequently, he obtained the death certificate of her husband from the concerned authority.
27. DW2 has deposed that the petitioner has hatched up the conspiracy with Subash Chander Paul to grab the property as he is the maternal uncle and knew that property was allotted by DDA to Madan Lal Arora. DW2 has deposed that his PC01/09 11/31 deceased father was in J&K on 01.10.1992 and did not execute any Will as he had supplied goods to his client on that day.
28. DW2 has further deposed that wife of the petitioner had come to J&K for taking the death certificate of his father before filing the probate petition and his mother refused to give and the same was obtained from Jammu Municipal Corporation.
29. DW3 is a summoned witness and deposed that he has brought the record pertaining to the plot applied by Madan Lal Arora and copy of Application Form is Ex.DW3/1, copy of affidavit is Ex. DW3/2 and the allotment letter dt. 09.02.1990 issued by DDA to Madan Lal is Ex.DW3/3 and receipt no. 29980 of Rs. 750/ dated 29.03.1981 issued by DDA is Ex.DW3/4 and the payment of Rs. 5651/ made by Bank Challan no. 16631 dt. 03.08.1990 is Ex.DW3/5 and the letter of possession no. F 20 (611) 89/ LSB (Rohini)/691 dated 30.12.1993 is Ex.DW3/6. DW3 has further deposed that DDA has received a letter from the widow of Madan Lal Arora alongwith indemnity Bond, relinquishment and undertaking, which are Ex. DW3/7.
30. Let us see the cross examination of DW3, wherein it has been stated that documents pertaining to the mutation filed by the wife of the deceased was received by the DDA on PC01/09 12/31 07.07.2011 and the mutation can be done on the basis of the documents filed by the widow of the deceased but the same has not been done as the matter is pending before the court. DW3 has further stated in his deposition that mutation can be done if the applicant is the legal heir of the allottee and since the matter is pending before the court, no step has been taken by the department in this regard.
31. Before deciding this issue, I have gone through the relevant provisions of Indian Succession Act.
32. It is a well settled principle of law that Will has to be proved by the propounder. Section 2(h) of Indian Succession Act, 1925 defines Will as meaning "the legal declaration of the intention of the testator with respect to his property, which he desires to be carried into effect after his death".
33. It is also a well settled principle of law that a person who propounds or produces the Will before the court has to prove that:
(i) the Will in question is the legal declaration of the intention of the deceased;
(ii) the testator when executed the Will was in sound and disposing state of mind, and
(iii) the testator had executed the Will of his own free Will, meaning thereby, he was a free agent PC01/09 13/31 when he executed the Will.
34. The onus of proof rests squarely on the person propounding a Will and in the absence of any suspicious circumstances surrounding its execution, the proof of testamentary capacity and testator's signatures and attestation as required by law would normally suffice in discharging the onus. However, where suspicious circumstances are found to exist, the propounder of the Will must explain them and dispel all the suspicion to the satisfaction of the court before it is accepted as genuine. It is for the propounder to satisfy the conscience of the court and explain the circumstances which raised the suspicion to the satisfaction of the court. What are suspicious circumstances, must invariably be judged in the facts and circumstances of each particular case and the court should take vigilant and cautious view after appreciating the evidence led on behalf of the parties.
35. The position of law relating to Wills is settled by plethora of decisions. The following points are required to be borne in mind: (1) The burden is on the propounder to prove due and valid execution of the Will.
(2) The propounder is required to prove by cogent and satisfactory evidence that the testator PC01/09 14/31 was in a sound and disposing state of mind at the time of execution of Will and he understood the nature and effect of the disposition when he put his signature out of his own free will.
(3) However, if there are any suspicious circumstances surrounding the Will, initial onus becomes heavier on the part of the propounder. (4) The propounder of the Will is required to remove all the suspicions from the mind of the Court by cogent and satisfactory evidence.
The result of the application of above mentioned general and broad principles always depends upon the facts & circumstances of each case and the evidence adduced by the parties.
36. In the proof of a Will, the court must take the cumulative effect of the suspicious circumstances surrounding the execution of the Will and then apply the test whether in the circumstances of the case, the judicial conscience of the court is satisfied to the extent that the propounder has dispelled all clouds of suspicion with which the execution of the Will is shrouded. Suspicious circumstances surrounding the Will when not explained will entail refusal of grant of probate and it is the paramount duty of the propounder to explain away the suspicious circumstances attending the execution of the Will. There is no presumption that the Will in question is a legal and valid Will and PC01/09 15/31 its execution is to be proved in accordance with law, i.e., as per the provision of Section 63 of the Indian Succession Act that it is the last and genuine testament explaining all such suspicious circumstances alleged to be shrouding it.
37. It is a well settled principle of law that attesting witness has to speak not only about the signature of the testator in his presence but he has also to speak that each of the attesting witness who have signed the Will in presence of the testator. In terms of Section 68 of Indian Evidence Act, while making attestation, there must be an animus attestandi, on the part of the attesting witness. Thus, it is evident that to constitute a valid Will, the testator or testatrix had to sign the Will and it has to be attested by two witnesses.
38. Apex Court in H.Venkatchala Iyengar Vs. B.N.Thimmajamma & others, AIR 1959 SC 443, has observed that the mode of proving the Will ordinarily does not differ from that of proving any other document except as to the special requirement of attestation prescribed by Section 63 of Indian Succession Act. Proof in either case cannot be mathematically precise and certain and so the test should be one of satisfaction of a prudent mind in such matter and onus must be on the PC01/09 16/31 propounder and in absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and signature of the testator as required by law may be sufficient to discharge the onus, where, however, there are suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the court before the Will can be accepted as genuine.
39. It is elementary to observe that onus to prove the Will is on the propounder and the onus becomes heavier if there are suspicious circumstances. The propounder is under the legal obligation to dispel all the suspicious circumstances by adducing, convincing and cogent evidence. The Hon'ble Supreme Court in H. Venkatchala Iyengar (supra) has held that the propounder must show by satisfactory evidence that the Will was signed by the testator and he was at the relevant time in a sound disposing state of mind; that he understood the nature and effect of disposition and then put the signature on the document of his own free will. A constitution bench has reiterated the aforementioned view in the case of Shashi Kumar Banerjee & Others Vs. Subodh Kumar Banerjee AIR 1964 SC 529. The observation of their lordship in this regard read as under: PC01/09 17/31 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 accept Will as a genuine. Where the caviator 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 gives rise to doubts, it is for the propounder to satisfy the conscience of the court. The suspicious circumstances may be as to the genuineness of the signature of the testator, the condition of the testator's mind, the disposition 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 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 succeeds in removing the suspicious circumstances, then and only then court would grant probate.
There are other judgments on the issues that all the doubts are required to be removed by propounder and he has to explain the suspicious circumstances to the complete satisfaction of the court. Reference in this regard may be made in the PC01/09 18/31 case of Indu Bala Bose & others Vs. Manindra Chandra Bose & another, 1982 (1) SCC 20;
Gurdian Kaur & Others Vs. Kartar Kaur & Others 1998 (4) SCC 384 and Vrindavanibai Sambhaji Mane Vs. Ramchandra Vithal Ganeshkar, 1995 (5) SCC 215.
40. In the present matter, the propounder/petitioner is relying upon Will dated 01.10.1992 executed by deceased Madan Lal Arora and has examined one of the attesting witness Sh. Subhash Chandar Paul as PW1 and himself as PW2 and Sh. Kishan Kumar LDC from the office of Sub RegistrarIII, Janak Puri, New Delhi as PW3 and Sh. Vijender Singh UDC from Lab (Rohini), DDA Vikas Sadan Delhi.
41. On the other hand, objections raised on behalf of respondents/objectors are that Will dt. 01.10.1992 was not executed by the deceased Madan Lal Arora as they were having cordial relationship with each other and live together till the date of his death. It has been objected on behalf of the objectors that deceased Madan Lal Arora was in Jammu on 01.10.1992 on the day of execution of the alleged Will dt. 01.10.1992 and has been forged & fabricated by the petitioner in connivance with Sh. Subash Chander Paul.
PC01/09 19/31
42. Genuineness of the Will is a question of fact depending on appreciation of evidence. When the objector raises plea of suspicion circumstances, the propounder will have to offer cogent and convincing explanation as held in S. Amarjeet Singh Vs. State, AIR 1999 Delhi, 33.
43. In the present matter, the testator was a permanent resident of J&K and stated to be not in Delhi at the time of execution of alleged Will dt. 01.10.1992 as he was in J&K on that particular day. Objectors have also raised another objections that the Will has not been executed by the deceased Madan Lal Arora as he used to sign in Urdu and there is a overwriting in the date of the Will and the same has been forged and fabricated by the petitioner in order to grab the property in question.
44. In the present case, there are certain suspicious circumstances concerning the execution of the Will which are as follows:
(i) The alleged Will dated 01.10.1992 was executed on the day, when the testator was stated to be in J&K .
(ii) PW1 Sh. Subash Chander Paul one of the attesting witness has not mentioned in his deposition anything about the second attesting witness to the Will.
PC01/09 20/31
(iii) No justified reason has been given for executing the Will dated 01.10.1992 in favour of the petitioner who is a distant relative and by which there is a total disinheritance of the respondents/LRs of the deceased Madan Lal Arora with whom deceased had stayed in Jammu till his death.
(iv) Will dt. 01.10.1992 has been signed by the testator in English and it has been objected that the testator was having no knowledge of English and used to sign only in Urdu.
45. The abovesaid suspicious circumstances raised doubts and required cogent and satisfactory evidence to explain them to the satisfaction in order to remove the suspicion from the mind of the court before granting the probate to the petitioner.
46. It is worthwhile to mention herein that in the facts and circumstances of the case and on appreciation of evidence led on behalf of the parties, it appears that the testator was having cordial relationship with his family members as he had stayed with them in Jammu till his death. It is also worthwhile to mention that no justified reasons or evidence has been brought on record to show why there was a complete disinheritance of the Lr's by the deceased Madan Lal Arora at the time of execution of the alleged Will dt. 01.10.1992. It is worthwhile to note here that PC01/09 21/31 petitioner has stated in his deposition that he got the Will in the year 2008, while cleaning his house and remained silent about the knowledge of the execution of the Will for the last 16 years as the Will was executed on 01.10.1992.
47. Suspicious circumstances may be as to the voluntariness in execution of the Will of the testator, lack of genuineness in the disposition in the Will being unnatural, improbable or unfair in the light of relevant circumstances. If the propounder succeeds in removing the suspicious circumstances from the mind of the court, definitely the court would grant probate. In the instant case, though burden was on the propounder to remove such suspicious circumstances, which he has failed to do so. It is a case where an attempt has been made to debar the respondents/LRs on the basis of the Will dated 01.10.1992 Ex. PW1/A alleged to be executed by the testator Madan Lal Arora.
48. Courts have to evaluate evidence pertaining to the circumstances under which the Will was executed. If a Will is prepared and executed under circumstances which raise a well grounded suspicion then the probate would not be granted unless that suspicion is removed.
PC01/09 22/31
49. In the present case, the creation of Will dated 01.10.1992 itself is highly doubtful as the testator was a permanent resident of House no. 1118, Pucca Dunga, Gali Khilonian Opp. S.P.I. Novel Store J&K as mentioned in the Will PW1/A and was stated to be in J&K on that particular day i.e. on 01.10.1992 when the said alleged Will was executed. It is worthwhile to note here that there is an overwriting in the date of the execution of Will i.e 01.10.1992 and same has not been explained by the petitioner/propounder.
50. In the instant case, the circumstances brought on record create great suspicions which has not been removed by the petitioner/propounder to establish that the Will dated 01.10.1992 is a genuine one and was duly executed by the testator.
51. The suspicious circumstances are a presumptions to hold against the Will. Greater is the suspicion more heavy would be the onus to be discharged by the propounder of the Will.
52. It is also well settled that the combined effect of the two provisions of Section 68 of Indian Evidence Act and Section 63(c) of Indian Succession Act, the propounder has got to prove that the Will was duly and validly executed.
PC01/09 23/31
53. In Madhukar D. Shende Vs. Tarabai Aba Shedag, AIR 2002 SC 637, it has been held that the conscience of the court has to be satisfied by the propounder of the Will adducing evidence so as to dispel any suspicious or unnatural circumstances attaching to a Will and the law of evidence does not permit conjecture of suspicion having the place of legal proof.
54. The Will in question is surrounded by suspicious circumstances and petitioner/propounder of the Will has miserably failed to explain the same.
55. It is worthwhile to mention here that RWs were subjected to extensive crossexamination but nothing worthwhile could be elicited from the said witnesses so as to detract in any manner from their defence/objections to prove that the alleged Will dated 01.10.1992 is a genuine document. It is worthwhile to be noted at this juncture that objections as raised by the objector that the Will has been forged and fabricated and such suspicion has not been removed by the propounder and he has not been able to give any sufficient reason why testator had debarred the LRs/respondents at the time of execution of the Will in favour of the petitioner who is a distant relative.
56. In the instant case, I am of the view that the PC01/09 24/31 petitioner has not led cogent and satisfactory evidence to remove the suspicious circumstances which shrouded the Wills in question in accordance with Section 63(c) of Indian Succession Act nor the petitioner has been able to lead enough evidence to prove the execution and attestation of the Wills in accordance with the provision of Section 68 of the Indian Evidence Act. In the present matter there are grave suspicious circumstances which have also not been cleared by the petitioner and the onus have not been discharged to prove that the Will dated 01.10.1992 is free from suspicion. Reliance has been placed upon the judgment passed by Hon'ble High court of Delhi in case titled Surender Kumar Grover Vs. State & others, 177 (2011) DLT .
57. The law is well settled that the conscience of the court must be satisfied whenever there is any suspicious circumstances, the obligation is cast on the propounder of the Will to dispel suspicious circumstances as held in case titled, Gurdial Kaur & Others Vs. Kartar Kaur & Others, 1998(4) SCC 384.
58. Counsel for the petitioner has relied upon certain judgments and the ratio of those cases do not support the plea of the petitioner as the case of petitioner is PC01/09 25/31 distinguishable. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. The ratio of the decision must be understood in the background of the facts of that case. It is a well settled that a case is only an authority for what it actually decides and not what logically follows from it. It is also well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision. In P.S. Rao Vs. State J.T. 2002 (3) Supreme Court 1 has held as under:
"There is always a peril in treating the words of judgment as though they are words in a legislative enactment and it is to be remembered that judicial utterance are made in setting of the facts of a particular case. In circumstantial flexibility and additional or different facts make a world of difference between conclusion in two cases."
In another case Rafiq Vs. State 1990 SCC 946, it was observed as under:
PC01/09 26/31
" The ratio of one case can not be mechanically apply to another case without having regard to the facts, situation and circumstances in two cases."
The judgment relied upon by the petitioner is not applicable in the facts and circumstances of the present matter.
59. Considering the facts and circumstances of the present case, emerging from the evidence placed on record on behalf of both the parties, the settled principle of law and the precedents on this point, it can be easily concluded that alleged Will dated 01.10.1992 which is stated to have been executed by the deceased Madan Lal Arora has not been duly proved as per the provisions of Sections 63, 67 and 68 of Indian Evidence Act.
60. Accordingly, this issue is decided against the petitioner and in favour of the objectors.
61. ISSUE NO. 2: Whether the Will dated 01.10.1992 is forged and fabricated document?(OPR) Onus to prove this issue was on the respondents/objectors. In the instant case, the attesting witness Sh. Subash Chander Paul has stated that he is one of the PC01/09 27/31 attesting witnesses and beyond this did not utter a single word about the second attesting witness to the Will.
62. It is worthwhile to note here that attesting witness has stated in his cross examination that he does not know about the age of the deceased Madan Lal Arora at the time of executing the Will dated 01.10.1992. It is being objected that deceased was not in Delhi on the date of execution of the alleged Will as he was in the J&K with his family and doing his business. It is also worthwhile to note here that there is an overwriting in the date of the Will i.e 01.10.1992 and the objections have been raised by the respondents/LR's of deceased Madan Lal Arora that the Will dt. 01.10.1992 was forged and fabricated by the petitioner.
63. It is pertinent to note here that the PW1 has not even made any whisper in his deposition about the second witness to the Will and said Advocate A. K. Sharma has not even entered into a witness Box. PW2 has stated in his deposition that he has found the Will in the year 2008 at the time of cleaning his house and has not explained about the gap of 16 years as the Will was executed on 01.10.1992.
64. In the present issue, the only thing is to be decided whether the Will is genuine one or forged and fabricated. PC01/09 28/31 Suspicion may be inherent in a transaction or may arise from a conflict of testimonies of witnesses. It is true that mere suspicion cannot destroy a Will, but where a Will is prepared and executed under circumstances which create a suspicion in the mind of the court, it lies on the propounder to not merely prove the execution of the Will, in the sense, that it was signed by the testator but also to adduce evidence which would remove suspicion and satisfy the court about due execution of the Will.
65. The onus of proof rests squarely on the person propounding a Will and in the absence of any suspicious circumstances surrounding its execution, the proof of testamentary capacity and testator's signatures as required by law would normally suffice in discharging the onus. Where, however, suspicious circumstances are found to exist, the propounder of the Will must explain them and dispel all the suspicion to the satisfaction of the court before it is accepted as genuine.
66. There is no presumption that the Will in question is a legal and valid Will and its execution is to be proved in accordance with law, i.e., as per the provision of Section 63 of the Indian Succession Act and also prove that it is the last and genuine testament.
PC01/09 29/31
67. The depositions of the petitioner's witness appears not to be satisfactory as there are certain suspicious circumstances shrouded the Will in question and it is noticeable that in the deposition of PWs.
68. In view of the discussion made above and evidence placed on record, it can be said that the petitioner has failed to prove the Will Ex. PW1/A was the valid and legal testament of the deceased Madan Lal Arora. Hence, it can be concluded that Will dt. 01.10.1992 does not appear to be a genuine document duly executed by the deceased in accordance with law. Accordingly, this issue is decided in favour of the objectors and against the petitioner.
RELIEF
69. In view of the findings given on the abovesaid issues and the ratio laid down by the Hon'ble Supreme Court in the case of H. Venkatchala Iyengar Vs. B.N.Thimmajamma (Supra), it is held that the Will dt. 1.10.1992 has not been proved in accordance with law as the petitioner has failed to prove that Ex.PW1/A was the genuine, valid and legal testament executed by the deceased Madan Lal Arora. Hence the probate in favour of the petitioner cannot be granted. Accordingly, present petition fails PC01/09 30/31 and is hereby dismissed and stands disposed of.
File be consigned to record room.
Announced in the Open Court (SUNIL RANA) On this 24.05.2014. Addl. District JudgeII: Rohini PC01/09 31/31