Delhi District Court
Sh. Madan Mohan Bajaj vs State on 12 February, 2013
IN THE COURT OF AJAY GOEL, ADDITIONAL DISTRICT JUDGE-II
(NORTH) DELHI.
PC-131/11
In the Matter of:
Sh. Madan Mohan Bajaj,
S/o Late Sh. Chaman Lal Bajaj,
R/o 9/61, Ramesh Nagar,
New Delhi-110015.
......Petitioner
VERSUS
1. State
2. Sh. Harish Chander Bajaj
S/o Late Sh. Chaman Lal Bajaj,
R/o WZ-32-II, Sharda Puri,
New Delhi-110015.
3. Sh. Subhash Chander Bajaj,
S/o Late Sh. Chaman Lal Bajaj,
R/o WZ-98-B, Ravi Nagar,
Tilak Nagar, New Delhi-18.
4. Sh. Prem Pal Bajaj,
S/o Late Sh. Chaman Lal Bajaj,
R/o 9/62, Ramesh Nagar,
New Delhi-110018.
5. Smt. Nirmala Rani Wadhwa,
Wd/ of Late Sh. Ram Saran Das Wadhwa
(D/o Late Sh. Chaman Lal Bajaj,)
R/o New Kanshi Nagar,
Ferozpur City, Punjab.
6. Smt. Shakuntala Rani Narula
W/o Sh. Krishan Lal Narula
D/o Late Sh. Chaman Lal Bajaj,
(Now deceased through LRs)
6 (a) Sh. Krishan Lal Narula (Husband)
PC-131/11 Page No. 1/23
6 (b) Sh. Mahesh Kumar Narula (Son)
6(c) Smt. Mamta, (Daughter)
All R/o 708, Ishwar Colony,
Near Petrol Pump, (Kanjhawla Road)
Village Bawana, Delhi.
6 (d) Sh. Sunil Kumar Narula (son)
Residence above school, Hari Pura,
Gali No. 11, (Khusre Wali Gali)
Dam Ganj, Amirtsar, Punjab.
6(e) Smt. Rajni (Daughter)
O-35, Krishan Vihar,
Near Kali Mata Mandir,
Behind Budh Vihar
Delhi-110086.
7. Smt. Prem Lata Narula
W/o Sh. Pawan Kumar Narula
D/o Late Sh. Chaman Lal Bajaj,
R/o B-197, Indra Park,
Near Sai Baba Mandir,
Najafgarh Road, Delhi.
8. Smt. Naresh Lata
W/o Sh. Sham Lal Arora
D/o Late Sh. Chaman Lal Bajaj
R/o 1506/47, Maqshudabad Colony,
Najagfarh, Delhi.
9. Sh. Surender Kumar Wadhwa
10.Sh. Sanjeev Kumar Wadhwa
11.Sh. Rajeev Kumar Wadhwa,
12.Sh. Rajesh Kumar Wadhwa
R-10 to R-12 are S/o Sh. Surender Kumar Wadhwa &
all R-9 to R-12 are r/o Near Vinay High School,
Guru Ram Dass Nagar,
Ferozpur, Punjab.
......Respondents.
Date of Institution: 10.11.2006
PC-131/11 Page No. 2/23
Date of Assignment to this court: 13.09.2012
Date of Arguments: 04.02.2013
Date of Decision: 12.02.2013
JUDGMENT
1. This is a petition under section 276/278 of the Indian Succession Act, 1925 for grant of probate/ letter of administration in respect of the estate of the late Sh. Chaman Lal Bajaj filed by petitioner against the respondents. The brief facts of the case are that petitioner is seeking the relief of grant of letters of administration/grant of probate in respect of estate of deceased testator including the immovable property bearing No. 9/61, Ramesh Nagar, New Delhi by virtue of a Will dated 17.10.1991 duly executed by the testator named Sh. Chaman Lal Bajaj. As stated the said Will dated 17.10.1991 was duly registered with the Office of the Sub-Registrar, Sub- District-II, Kashmere Gate, Delhi- 6 as per document No. 51805, in Addl. Book No. 3, Volume No. 1204, at pages 129 to 130 dated 17.10.1991. The said Will was executed in the presence of the attesting witness named Sh. Hemant Monga. It is further stated that petitioner had been looking after his father late Sh. Chaman Lal Bajaj during his life time and had been supporting him financially and providing with all the daily needs and testator was desirous of executing a Will in favour of the petitioner in view of the fact that the other sons and daughters of the testator, as details in the array of respondents never looked after the testator and as stated that is why the testator bequeathed the entire property bearing No. 9/61, Ramesh PC-131/11 Page No. 3/23 Nagar, New Delhi in favour of the petitioner as per the registered Will dated 17.10.1991 to the exclusion of all the brothers and sisters of the petitioner. Hence, it was prayed that letters of administration /probate be granted to the petitioner of the Will dated 17.10.1991 in respect of the estate of deceased Sh. Chaman Lal Bajaj, in respect of property as mentioned in Will.
2. After the petition was filed notice of the same was issued to the Collector of State to file valuation report, however valuation report was not filed despite service. Notice was also issued to respondents/near relatives of the deceased and besides that citation to the general public was issued by way of publication in the daily newspaper " Punjab Kesari" as well as by affixation in the court notice board.
3. The publication of the citation was effected in the newspaper " Punjab Kesari" on 17.11.06.
4. During proceedings, none appeared on behalf of respondents No. 6 and 7 despite service. Accordingly, respondents No. 6 and 7 were proceeded ex- parte vide order dated 08.12.2006.
5. In reply to petition, written statement was filed by respondents No. 1, 2, 4, 5, 8, 9 and 10 wherein preliminary objections were raised stating that probate petition is not maintainable and Sh. Chaman Lal Bajaj expired on 13.06.95 and this probate petition was not filed for a long period of 12 years. It was also stated that as per averments in the petition, petition is not maintainable as said Will does not fulfil the criteria mandated in section 63 Sub-clause ( c) of the Indian Succession Act. On merits, it was stated that PC-131/11 Page No. 4/23 Sh. Chaman Lal Bajaj and his father Sh. Jagan Nath Bajaj came from Pakistan in the year 1947 after leaving behind all their properties in Pakistan and property No. 9/61 and 9/62 were allotted to the families of Jagan Nath Bajaj and Sh. Chaman Lal Bajaj. It was also stated that though name of the head of the family was mentioned as allottee but it was for the benefit of entire family including the answering respondents. It was also stated in written statement that said Will is forged, fabricated and is not the true outcome of the mind of deceased. It was also stated that respondent Sh. Harish and Sh. Subhash spent their hard earn income on the marriages of their sisters. Other contents of petition were denied and it was prayed that petition be dismissed with special costs.
6. Thereafter, respondent No. 3 appeared in the matter gave his no objection to the grant of probate/letter of administration in favour of petitioner and his statement was also recorded in the court on 05.2.2007.
7. Thereafter, respondent No. 11 Rajesh Kumar Wadwa was also served and appeared in the matter and adopted the written statement filed by respondents No. 1, 2, 4, 5, 8, 9 and 10 vide order dated 18.10.07 and matter was fixed for framing of issues.
8. From the pleadings of parties, the following issues were framed vide order dated 01.11.2007:-
1) Whether the Will dated 17.10.1991 propounded by the petitioners is the duly executed last and final Will of late Sh. Chaman Lal Bajaj in good health and sound disposing mind?OPP
2) Relief.PC-131/11 Page No. 5/23
9. During pendency of present proceedings, objector No. 5 Smt. Shakuntala Rani Narula expired on 10.03.2009 and application U/o 22 Rule 3 CPC was filed and after hearing the arguments of both the parties, the said application was allowed and legal heirs of deceased Smt. Shakuntala Raniu Narula were brought on record. Thereafter, notice was issued to all the legal heirs of Smt. Shakuntala Rani Narula. However, all the legal heirs of Smt. Shakuntala Rani Narula were served except Sh. Sunil Kumar Narula who was later on served by way of publication and even despite service by way of publication Sh. Sunil Kumar Narula did not appear in the matter. Accordingly, Sh. Sunil Kumar Narula was proceeded ex-parte vide order dated 04.10.2010.
10.In evidence, petitioner has produced three witnesses including himself i.e. PW-1 Sh. Madan Mohan Bajaj, PW-2 Sh. Hemant Monga who is attesting witness to Will dated 17.10.1991, PW-3 Sh. Rakesh Ranjan, LDC, from Office of Sub-Registrar-I, Kashmere Gate, Delhi. All petitioner's witnesses were cross-examined by counsel for objectors/respondents. PW-1 who is petitioner has reiterated the contents of petition and has stated that he became the owner of the property which is the subject matter of the Will Ex- PW-1/1, during the life time of his father. He also stated that as per the family settlement Ex. PW-1/7, property No. 9/61, Ramesh Nagar, Delhi fell into his share and he has become owner by virtue of family settlement. It was also stated that his father brought the family settlement at home which was signed by all the family members at the home on the same day. It was also stated that property No. 9/62 was given to Prem Pal Bajaj in the family PC-131/11 Page No. 6/23 settlement. PW-2 who is attesting witness of Will has stated that he identified the signatures of the testator at point A to D on the Will which were put by the testator in his presence. He also stated that testator was having sound mind and good physical health at the time of execution of the Will. He also identified his signatures at point E and F on the Will. During his cross-examination, he has stated that he know petitioner for the last about 20 years and that he has friendly relations with petitioner and not with his brothers. He has also stated that he is not aware as to whether any family dispute was there and also that any family dispute was settled before execution of the Will. It was also stated that at the time of execution of the Will, Sh. Chaman Lal Bajaj was not walking with the help of any stick. He also stated that Sh. Chaman Lal had told on that day that he had no good relations with his other sons namely Sh. Subhash Bajaj and Sh. Harish Bajaj. PW-3 who is LDC in the office of Sub- Registrar had also appeared in the witness box and stated that he has no personal knowledge of the execution of the Will and he cannot recognize the signature of any person on the Will. Thereafter, P.E. was closed by petitioner.
11.In defence, respondent produced two witnesses i.e. RW-1 Sh. Harish Chander Bajaj and RW-2 Sh. R.P. Singh, Record Keeper, Sales Tax Department. RW-1 in his examination has stated that he identified his signatures at point A on Family Settlement Deed Ex. PW-1/7, but the signatures at points B and C are not his signatures. He stated that signatures at points D and E on Ex. PW-1/7 are not of his father late Sh. Chaman Lal. He further stated that he cannot identify the signatures of his PC-131/11 Page No. 7/23 brother and sisters and that of petitioner also. He further stated that he identify the signatures of his father at points A and B on Ex. PW-2/1 but the signatures at point C and D are different and are not of his father. RW-2 who is Record Keeper from Sales Tax Department was also examined and cross-examined and thereafter, R.E. was closed.
12. I have gone through the entire records including the pleadings, documents and the testimony of witnesses examined on record and have heard the arguments addressed by counsel.
13. Issue no. 1 :- Whether the Will dated 17.10.1991 propounded by the petitioners is the duly executed last and final Will of late Sh. Chaman Lal Bajaj in good health and sound disposing mind?OPP:- Before proceeding to decide this issue I would like to discuss the relevant law and judgments on this point. Section 278 of Indian Evidence Act deals with petition for grant of letter of administration while the effect of letter of administration has been given in Section 220 of the Act which lays down that the grant of letter of administration entitles the administrator to all the rights belonging to intestate as effectual if the administrator had been granted at the moment after death. It is further settled preposition of law that grant of letter of administration does not create any title but is only declaratory existing in the LRs of the deceased.
14. Section 2(h) of the Indian Succession Act describes the Will to be a legal declaration of the intention of the testator with respect to his property, which he desires to be carried into effect after his death and as such Will is the only document, which becomes executable after the death of its PC-131/11 Page No. 8/23 executor. The person, who produces the Will before the Court or propounds the same and wants the court to rely thereupon, has to prove that:-
1) Will in question is a legal declaration of the intention of the deceased.
2) The testator, while executing the will, was in a sound and disposing state of mind.
3) The testator has executed the Will of his own free; meaning thereby that he was free from all sorts of influence coercion, fear or force when it was executed.
Reliance placed on AIR 1989 Gujarat 75(DB) titled as Vijaya Ben Vs. State. It is further a settled proposition of the law that no specific format of the Will or specific form of attestation is required. Reliance placed on AIR 1998 Madhya Pradesh 1 titled as Chandan Vs. Longa Bai."
In nutshell, the propounder of the Will is required to prove not only the ingredients discussed about but also to take away suspicious circumstances if any, surrounding the Will, to the satisfaction of the conscience of the Court. Further it is pertinent to mention that probate of a Will can be granted only where the testator appoints an executor of the Will and in terms of the Section 222, 234 & 276(e) in other cases only letters of administration with Will annexed can be given.
15. Section 68 of Indian Evidence Act, 1872 lays down that if a document is required by law to be attested and the attesting witness is alive and subject PC-131/11 Page No. 9/23 to the process of the court capable of giving evidence, must be called to prove its execution. Execution consists of signing a document read out, read over and understood and to go through the formalities necessary for validity for a legal act.
16. Section 63 of the Act of 1925 has three several requirements as regards the execution of Will viz.
"(a) the testator shall sign affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.
(c ) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signatures of such other person; and each of the witnesses shall sign the Will in the presence of the testator but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."
So, a document has to be proved as per the Evidence Act, particularly in terms of Chapter-V starting with Section 61 and Section 68 of Indian Evidence Act being relevant. However, in this context Section 63 of Indian Succession Act gives an exception which requires as to how a Will is to be executed and proved. Section 63 (c) of the Indian Succession PC-131/11 Page No. 10/23 Act requires atleast two attesting witnesses as a mandatory condition, the witness may be more than two but not less than two. The non-compliance with the requirement of the attestation in respect of the Will, which is otherwise valid and is perfectly enforceable document, under the provision of Section 63 Sub-Section (c) of the Indian Succession Act, 1925, renders the testamentary document, of no effect. Will is a document required by law to be attested, and if the standard of proof as envisaged by Section 68 of the Evidence Act, 1872 and Section 63(3) of the Act falls short of legal requirement, a will which is neither registered, nor proved to be attested and executed in accordance with law, cannot be taken into consideration for purpose of establishing claim of the legatee, reference can be made to Gullan Devi Vs. Mst. Punu @ Puran Devi AIR 1989 J&K 51.
17. In the case of H. Venkatachala Iyengar Vs. B.N. Thimmajamma & others AIR 1959 SC 443, it has been observed as follows:
"It is well known that the proof of Wills presents a recurring topic for decision in Courts and there are a large number of judicial pronouncements on the subject. The party propounding a Will or otherwise making a claim under a Will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern of documents. Section 67 and 68 of the Evidence Act are relevant for the purpose. Under S. 67, if a document is alleged to be signed by any person, the signatures of the said person must be proved to be in his handwriting, and for proving such a handwriting under SS. 45 and 47 of the Act the opinions of experts and of persons acquainted with PC-131/11 Page No. 11/23 the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, SS 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this Section indicate what is meant by the expression 'a person of sound mind' in the context. Section 63 requires that the testator shall sign or affix his mark to the ill or it shall be signed by some other person in his presence and by his direction and that the signatures or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a Will. This Section also requires that the will shall be attested by two or more witnesses as prescribed. Thus, the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the Will? Did he understand the nature and effect of the deposition in the Will? Did he put his signatures to the Will knowing what is contained? State broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the Will has to be proved like any other document except as to the special requirements of attestation PC-131/11 Page No. 12/23 prescribed by S. 63 of the India Succession Act. As in the case of proof of other document so in the case of proof of Wills it would be idle to except proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind of such matters." In this context, reference may also be made to a decision in Seth Beni Chand Vs. Smt. Kamla Kunwar and others, (1977)1 SCR 578.
18. The decisive aspect is to ascertain as to whether the Will is genuine and duly executed Will of late Mr. Chaman Lal Bajaj so as to say that it was executed by him in disposing mind out of his own free will and without any force, coercion or fraud and the petitioner was required to dispel all circumstances which are casting doubt on the execution of Will without any force, coercion or fraud.
19. The independence and exercise of the free Will is one of the attributes of the human being and existence, subject to of-course the reasonable restrictions imposed by the civilized society in various form i.e. statutory, customary, moral, social etc. The exercise of right by an individual in the property owned by him or her is one such characteristic of the property given to its owner having considerable freedom to the extent of absolute to do whatever one wants to do with the property in question. This freedom is one of the very vital attributes of ownership of the property rather the sole most important one. In this context, the property, being subject matter of one's discretion to use, subject to the reasonable restriction has been brought into the domain of testamentary document. Thus, the Will is nothing but manifestation of the concept of ownership of property and its PC-131/11 Page No. 13/23 attributes wherein the owner of the property expresses his/ her wish to dispose off or transfer the property in favour of the entity chosen by him and that seems to be reason why no specific proforma or format of the Will is prescribed anywhere. The requirement of valid Will is that it should be the last testamentary document of the testator, made in sound disposing mind in presence of two attesting witnesses and free from any kind of force, theft or coercion etc.
20. The intention in the Will are to be ascertained by all possible and available circumstances. In this context reference can be made to the judgment in Anil Kak Vs. Kumari Sharada Raje and others (2008) 7 Supreme Court Cases 695, wherein it has been observed as under:
"37.-The testator's intention is collected from a consideration of the whole will and not from a part of it. If two parts of the same will are wholly irreconcilable, the court of law would not be in a position to come to a finding that the Will dated 4.11.1992 could be given effect to irrespective of the appendices. In construing a Will, no doubt all possible contingencies are required to be taken into consideration. Even if a part is invalid, the entire document need not be invalidated, only if it forms a severable part.
In Halsbury's Laws of England, 4th Edn. Vol. 50p. 239, it has been observed as under:
"Leading principle of construction- The only principle of construction which is applicable without qualification to all wills and overrides every other rule of construction, is that the Testator's intention is collected from a consideration of the whole PC-131/11 Page No. 14/23 will taken in connection with any evidence properly admissible, and the meaning of the will and of every part of it is determined according to that intention."
Similarly, in P. Manavala Chetty V. P. Ramanujan Chetty, it has been further held as under:
"9..... It is the obvious duty of the Court to ascertain and given effect to the true intention of the Testator and also avoid any construction of the Will which will defeat or frustrate or bring about a situation which is directly contrary to the intentions of the Testator. At the same time, it must be borne in mind that there are obvious limits to this doctrine that the court should try to ascertain and give effect to the intentions of the testator. The law requires a will to be in writing and it cannot, consistently with this doctrine, permit parol evidence or evidence of collateral circumstances to be adduced to contradict or add to or vary the contents of such a will. No evidence, however, powerful it may be, can be given in a court of construction in order to complete an incomplete Will, or project back a valid will, if the terms and conditions of the written will are useless and ineffective to amount to a valid bequest, or to prove any intention or wish of the testator not found in the Will. The testator's declaration or evidence of collateral circumstances cannot control the operation of the clear provisions of the Will. The provisions of the Succession Act referred to earlier indicate the limits of the court's power to take note of the testator's declaration and the surroundings circumstances i.e. evidence of collateral circumstances."
In case of any confusion or mix up and even otherwise, at times, the documents have to be read thread bare in between the lines so as to ascertain as to what exactly is being conveyed based upon the intentions of PC-131/11 Page No. 15/23 the writer of the document subject to the condition that sufficient indications are there in the document itself and the attending circumstances also contribute and indicates towards the particular inference cumulatively and collectively.
21. Now I have to see whether in the present case the above principles have been duly made out or not. The age factor and suspicious circumstances are to be dispelled by the petitioner. In the death certificate the age of the deceased testator is shown to be 70 years and in the Will also it is mentioned as 70 years though it is made out on record that testator Sh. Chaman Lal has died after near about 4 years of execution of the Will. Be it may be but atleast the petitioner was required to prove that at the time of execution at the age of 70 years the testator was of sound mind. It has come in the evidence of the petitioner that he was taking care of deceased and if it was so then certainly he might be having certain documents regarding the treatment of the deceased testator because it cannot be accepted by any prudence that at the age of 70 the deceased was not having any medical requirement. None of such documents of treatment of testator have been brought on the record by the petitioner. Simple self serving version of the petitioner is of no help to him unless the same is proved on the record by cogent and reliable evidence. Even the witness has nowhere deposed regarding the health of the testator. The Cl. for the petitioner has submitted that defendant has nowhere cross examined the witness regarding the sound disposing mind of the deceased, hence the plea should be deemed to be waived off. I am not in agreement of the arguments of the petitioner PC-131/11 Page No. 16/23 because the onus is upon him and it is pre-requisite condition for him to prove that the deceased testator was not incapacitated anyway. When no positive evidence was led the Cl. for the respondent was justified in not asking anything qua the same. Moreover, the same arguments also applies to the petitioner also because he has also not asked any question from the objector regarding the health of the testator. Further in the Will it is mentioned that all other LRs have been left out in the Will because good amount had been spent upon them. The same applies to petitioner also. The main unexplained circumstances casting doubt on the Will is as to why the wife of testator was not given any share in the Will who was also of 70 years of age. Even no provision of whatsoever has been made in her favour and it is not made out as to how she would have survived after his death. The petitioner himself has participated actively in the execution of the Will and it has not come on the record that wife of the testator was not having good relation with him. Why she was left out? No husband would like to leave his wife at the mercy of his son by bequeathing the property to one son and this should have been sufficiently explained. Moreover if the Will was already in existence in favour of the petitioner then there was no need for arriving at the family settlement and rather the family settlement arrived by the testator itself shows that he has given a go bye to the Will. Testator could have mentioned the execution of the Will in this document which was later in time but to the best reasons known to the petitioner same was not incorporated. Moreover if in the Will it was mentioned that the testator did not want to give anything to other LRs then where was the need for PC-131/11 Page No. 17/23 giving the amount to other legal heirs in this settlement. Rather in this settlement petitioner as well as Prempal both have been given the right to all the immovable and movable properties and so it cannot be stated that the intention of testator was reflected through the Will regarding the succession of his property to the petitioner only and it also cannot be stated that Will reflected the last intention. I am not going into the question whether the family settlement has been duly proved or was executed or not as I am taking this document proved against the interest of the petitioner. I am also not going into the question as to whether the allotment of the property in question was for the welfare of whole of the family. It is also not explained as to why witness Hemant Monga was chosen as a witness. It has come on the file that he was known to Madan Mohan Bajaj, petitioner, so question of reposing faith in this witness by testator does not arise. PW-2 only has stated that he identifies the signatures of the testator at points A to D which were put in his presence and have not stated the presence of other witness at the time of execution of the Will. He has not stated even a single word regarding the presence of other witness Sh. M.N. Sharma. PW-1 petitioner has also stated that Will was executed in the presence of the attesting witness Sh. Hemant Monga so the question of presence of other witness is totally ruled out. The petitioner has also stated that Hemant Monga took his father and petitioner to Kashmere Gate and there Will was drafted by M.N. Sharma who made an entry of the Will in his register meaning thereby Sh. M.N. Sharma is not a witness to the Will and is only the person who has drafted the Will and cannot be termed as a PC-131/11 Page No. 18/23 witness. In this context, the Hon'ble Superior courts have emphasised that the person put his signatures on the document for some other purpose i.e. to certify that he is scriber or a registered officer, he is not the attesting witness, Reference can be made to Rupa Chand Mannulal Vs. Gangubai 1978 UCR 710 (Bom) (DB). The Latin expressions 'onus probandi' and 'animo attestandi' are the two basic features in the matter of civil court's exercise of testamentary jurisdiction: Whereas 'onus probandi' lies in every case upon the party propounding a Will - the expression 'animo attestandi' means and implies animus to attest: to put it differently and in common practice it means intent to attest. As regards the latter maxim, the attesting witness must subscribe with the intend that the subscription of the signature made stands by way of a complete attestation of the will and the evidence is admissible to show whether such was the intention or not." In Abinash Chandra Bidyanidhi Bhattacharya Vs. Dasarath Malo ILR 56 Cal. 598, it was held that a person who had put his name under the word 'scribe' was not an attesting witness as he had put his signatures only for the purpose of authenticating that he was a scribe. In the similar vein, the Privy Council in Shiam Sunder Singh Vs. Jagannath Singh 54 M.L.J. 43 held that the legatees who had put their signatures on the will in token of their consent to its execution were not attesting witnesses and were not disqualified from taking as legatees. In this context, reference may be made to the decision in M.L. Abdul Jabbar Sahib Vs. H.v. Venkata Sastri & Sons & others (1969) 3SCR 513 wherein in reference to Section 3 of the Transfer of Property Act, it was observed as follows:
PC-131/11 Page No. 19/23"It is to be noticed that the word 'attested', the thing to be defined, occurs as part of the definition itself. To attest is to bear witness to a fact. Briefly put, the essential conditions of a valid attestation under S. 3 are : (1) two or more witnesses have seen the executant sign the instrument or have received from him a personal acknowledgment of his signatures; (2) with a view to attest or to bear witness to this fact each of them hassigned the instrument to the presence of the executant. It is essential that the witnesses should have put his signatures animo attestandi, that is, for the purpose for attesting that he has seen the executant sign or has received from him a personal acknowledgment of his signature. If a person puts his signatures on the document for some other purpose, e.g. to certify that he is a scribe or an identifier or a registering officeer, he is not an attesting witness.
It has been further observed in the above referred case, Section 3 of the Transfer of Property Act, in particular, the meaning attributed to the word 'attested' ought to be noticed and the same reads as below:
"attested", in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executed, or has received from the executant a personal acknowledgment of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary".PC-131/11 Page No. 20/23
As regards, the former expression 'onus probandi', it is now a fairly well-settled principle that the same lies invariably in every case upon the party who propounding the will and expected to satisfy the court's conscious that the instrument as propounded is the last will of a free and capable testator, meaning thereby obviously, that the testator at the time when he subscribed his signatures on to the will was in sound and disposing state of mind and memory and generally 'in good' physical shape as well. Ordinarily, the onus stands discharged as regards the due execution of the will if the propounder leads evidence to show that the will bears the signatures and mark of the testator and that the will is duly attested by to attesting witnesses. This attestation, however shall have to be in accordance with Section 68 of the Evidence Act, which requires that if a document is reuired by law to be attested, it shall not be used as evidence until at least one attesting witness has been called for the purpose of proving its execution and the same is so however, in the event of there being an attesting witness alive and capable of giving the evidence. The law is also equally well-settled that in the event of there being circumstances surrounding the execution of the Will, shrouded in doubt, mystry and suspicion, it is the paramount duty on the part of the PC-131/11 Page No. 21/23 propounder to remove these suspicious mysteries and doubtful circumstances by leading satisfactory evidence. It is, in the instant case, thus apparent that the Will was not executed as per the provisions of Indian Succession Act, 1925 as it was not attested by two witnesses, and therefore, cannot fall into the scope and ambit of legally executed Will. Furthermore the witness PW-2 has stated that he does not know the name of deed writer. Though the Will is typed but the name of the witness is mentioned in handwriting which is another suspicious circumstances regarding the availability of the witness.
There is no evidence that Will was read over and explained and after that it was signed by the testator. Another important factor which cannot be overlooked is that though the Will is dated 17.10.91 and the testator had died on 13.6.95 still the petitioner took the steps to get it probated after more than 11 years and the law as mentioned in AIR 2009 SC 3247 titled as Krishan Kumar Sharma Vs. Rajesh Kumar Sharma is fully applicable to the facts of the case because delay beyond three years has also been considered as arousing suspicion. Thus, in all these circumstances the suspicious circumstances made out as above have not been sufficiently explained and it cannot be stated that the Will in question was last testimonery disposition of PC-131/11 Page No. 22/23 the testator out of free will and without coercion. Thus issue no 1 is decided in favour of the respondents and against the petitioner.
22. Relief :- In view of the findings recorded qua the issue hereinabove, the petition filed on behalf of the plaintiff is dismissed. File be consigned to record room.
Announced in the open court on (AJAY GOEL)
12.02.2013 ADJ-II(North)Delhi.
PC-131/11 Page No. 23/23