Delhi District Court
Hansraj vs State on 30 August, 2012
IN THE COURT OF SH. SUNIL RANA
ADDL. DISTRICT JUDGEII : ROHINI : DELHI
PC NO. 67/10
Unique Code No. 2404C0278532010
1. Hansraj
2. Rajinder
Both S/o Late Sh. Chander.
R/o House no. 210,
Kewal Park, Netaji Marg,
Azadpur, Delhi ... Petitioner
Vs.
State ... Respondent
Date of Institution :08.11.10
Date on which case was reserved for order :18.08.12
Date of pronouncement of order :30.08.12
JUDGMENT
1. Vide this judgment I shall decide the petition filed on behalf of the petitioners for grant of probate/letter of administration under Indian Succession Act.
2. Briefly stated facts are that present petition is for grant of probate/letter of administration in respect of Wills dt. 01.06.2010 executed by Late Chander, father of the petitioners duly PC67/110 1/38 registered in the office of SubRegistrar VIA vide regn. no. 2365 in Addl. Book No. 3 volume No. 127 page 155 to 157, registered on 4.6.2010 and no. 2366 in Addl. Book no. 3 Volume no. 127 pages 158 to 160 registered on 04.06.10 in respect of his immovable properties.
3. It has been stated that Sh. Chander died in Delhi on 03.06.10, leaving behind the following persons/LRs and representatives:
(a) Petitioners as mentioned in the title of the petition.
(b) Sh. Beer Singh (son) R/o 311, Village Azadpur, Delhi33
(c) Smt. Vidyawati (daughter) w/o Sh. Dhanni Ram R/o Village Shahabad, Daulatpur, Near Valmiki Chowpal, Delhi.
(d) Smt. Indrawati (daughter) w/o Sh. Ishwar Singh R/o Village Rozla, Tehsil Safido, District Jind, Haryana.
4. It has been stated that aforesaid Wills were executed during his lifetime and are his last Wills and testaments and the details of the assets & properties are as follows:
(a) Entire builtup property bearing no. 210 admeasuring 223 sq. yards out of Khasra no. 20, situated at Kewal Park, Netaji Marg, Azadpur, Delhi.
(b) Plot no. A11, admeasuring 500 sq. yards out of khasra no. 21, situated at Kewal Park, Netaji Marg, Azadpur, Delhi.
5. It has been further stated that the petitioners came to know PC67/110 2/38 through a suit filed by Sh. Beer Singh that Late Chander had also executed Wills dated 10.05.2010 but by virtue of execution of Wills dated 01.06.2010, the previous Wills/testaments have been cancelled and the entire immovable properties were bequeathed in favour of the petitioners having equal shares as the mother of the petitioner had predeceased late Chander. It is prayed that probate/letter of administration may kindly be granted to the petitioners in respect of the properties of deceased Chander and relied upon the judgments as under:
(i) Savitri & Others Vs. Karthyayani Amma & others, 2007 (4) Civil Court Cases 801 SC;
(ii) Bajrang Factory Ltd. & Anr. University of Calcutta & Ors. 2007 (3) Civil Court Cases 261 SC.
6. Notice of this petition was issued to the State through collector as well as to the legal heirs and citation was affixed at the notice board of court house on 11.01.11 and notice was also published in the Newspaper, The Statesman, dated 26.02.2011, in terms of the order dated 08.12.10 and the office of SDM, Model Town has filed a valuation report dated 04.03.11 whereby the value of the property bearing no. 210, Netaji Marg, Kewal Park, Delhi, was assessed as Rs.92,36,427/ and property bearing PC67/110 3/38 no.A11, Netaji Marg, Kewal Park, Delhi, was assessed as Rs.77,26,712/.
7. Objections has been filed on behalf of Beer Singh one of the LR of deceased Chander. It has been submitted on his behalf that the petitioners have not approached the court with clean hands and suppressed the material facts as testator had executed two separate registered Wills and first Will was executed on 10.05.10, registered at document no. 2461 in Addl. Book No. III, volume No. 818 on page 181182, registered on 12.05.10, regarding his property bearing no. 210, a part of Khasra no. 20, measuring 205 sq. yards, situated at Kewal Park, Azadpur, Delhi, in which only 40 sq. yards of land was given/bequeathed to his elder son Beer Singh and the second Will was executed and registered as document no. 2462, in Addl. Book No. III, volume No. 818 on page 183184, registered on 12.05.10, regarding his property bearing Khasra no. 21, measuring 300 sq. yards, situated at Kewal Park, Azadpur, Delhi which was distributed/bequeathed equally among his three sons, namely, Beer Singh, Hans Raj and Rajinder and the alleged two Wills dated 01.06.10 filed by the petitioner are forged, false and fabricated documents.
PC67/110 4/38
8. It has been denied that Late Chander, had executed two registered Wills dated 01.06.10 during his lifetime in respect of his immovable properties. It has been submitted that deceased Chander was not in a sound and disposing state of mind and was suffering from various ailments and his physical condition was critical and admitted in Saroj hospital in ICU on 28.05.10 and was got discharged by the petitioners on 01.06.10 not as per the advice of doctors and subsequently died on 03.06.10. It has been denied that Wills dated 01.06.10 were his first and last registered Wills as the testator had executed two registered Wills dated 10.05.2010 in which the property was bequeathed / distributed among his three sons, Beer Singh, Rajinder Singh and Hans Raj. It has been urged that no other Will was executed during his lifetime and as such the Wills dated 01.06.10 are false, forged and fabricated. Objectors have relied upon judgments, titled:
(i) Surender Kumar Grover Vs. State & Ors., 177(2011)DLT 188;
(ii) Pratap Singh & Anr. Vs. State & Anr., 173(2010)DLT 132(DB).
9. On the other hand, one of the LR4/daughter of deceased PC67/110 5/38 Chander namely, Vidyawati has also filed objections that petition is false, frivolous and fabricated as deceased Chander was admitted in ICU at Saroj Hospital and was on a death bed and unable to speak, listen or understand anything and therefore, he was got discharged from hospital on 01.06.10 by the petitioners to achieve their malafide intentions and physical and mental condition of their father Late Chander was not sound and stable as he was on his last breath and was totally collapsed at the time of discharge from the hospital on 01.06.2010 and had died intestate on 03.06.2010 and was unable to execute any document and the alleged two Wills dt. 01.06.2010 registered on 04.06.2010 are false, fabricated and bogus and petition is liable to be dismissed.
10. The petitioners have also filed a rejoinder to the reply/objections filed on behalf of Beer Singh and Vidyawati and the contents and averments of the petition are reiterated.
11. From the pleadings of the parties, vide order dated 30.07.11 Ld. Predecessor has framed the following issues: (1) Whether Will propounded by the deceased/legator is duly attested as per law?(OPP) (2) Whether deceased legator was mentally and physically in a sound state of mind at the time of execution of the abovesaid PC67/110 6/38 Will?(OPP) (3) Whether the present Will is forged and fabricated?(OPR) (4) Relief, if any?
12. In order to prove their case, the petitioners have examined PW1 Sh. Dharmender, PW2 Sh. Jai Bhagwan and one of the petitioner, namely, Hansraj as PW3. On the other hand, respondents/objectors have examined Sh. Madan Lal as RW1, Sh. Beer Singh as RW2 and Vidyawati as RW3.
13. I have heard the arguments on behalf of the parties and their rival contentions and perused the record. My issuewise findings are as under: ISSUE NO.1: Whether Will propounded by the deceased/legator is duly attested as per law?
14. Onus to prove this issue was on the petitioners, who have examined three witnesses, two attesting witnesses as PW1 and PW2 and one of the petitioners, namely, Hansraj as PW3.
15. PW1 has deposed that deceased Chander was discharged from the Saroj Hospital on 01.06.2010 and immediately expressed his desire to execute a Will in respect of his properties and executed two separate Wills Ex.PW1/1 & Ex.PW1/2 on 01.06.10 which were registered on 02.06.2010 and PC67/110 7/38 Wills were witnessed by him and his saandhu bhai Jai Bhagwan and the thumb impression of Chander were affixed and marked in his presence and were also signed by him as witness no. 2 and by Jai Bhagwan as witness no. 1 and the testator has put his thumb impression at points C1 and C2 on all pages in their presence and testator had died on 03.06.10 and his death certificate is Ex.PW1/3.
16. Let us see the relevant part of crossexamination of PW1 wherein it has been stated that deceased Chander was down with aliments atleast 34 months before he died as he was asthma patient and admitted in ICU at Saroj Hospital and was on the wheel chair at the time of his discharge from hospital on 01.06.2010.
17. PW2 has also deposed on the similar lines that deceased was discharged from the Saroj Hospital on 01.06.2010 and had executed two Wills on 01.06.2010 which were registered on 02.06.2010 and those Wills were witnessed by him and his saandhu bhai Sh.Dharmender and the thumb impression of Chander were affixed and marked in their presence on 02.06.2010.
18. During his crossexamination, PW2 has stated that he was PC67/110 8/38 aware about the dispute between the petitioners and Beer Singh but he is not aware of any Wills dt. 12.05.2010 where deceased Chander had distributed his property equally among his sons. PW2 has denied the suggestion that the advocate has not read out and explained the contents and said Wills are forged and fabricated. PW2 has further stated in his crossexamination that deceased Chander was about 90 years old at the time of executing those Wills Ex.PW1 & Ex.PW1/2.
19. PW3, Hansraj is one of the petitioner has deposed that Beer Singh (objector) had been living separately from their father and has taken his due share and deceased Chander has executed two registered Wills Ex. PW1/1 & Ex. PW1/2 and both the petitioners are entitled for their share as mentioned in the Wills dated 01.06.10.
20. PW3 has stated in his crossexamination that his father was illiterate and do not know the reason why he got the wills prepared in English. Witness has further stated in his cross examination that at the time of read over of the Wills, only his father and advocate were present there and further tried to improve and again said that two attesting witnesses (Damad of Beer Singh) were also present.
PC67/110 9/38
21. On the other hand, objectors have examined Madan Lal as RW1, who has deposed that deceased Chander had executed two Wills dt. 10.05.2010 in his presence and were registered in the office of SubRegistrar, Pitampura, Delhi on 12.05.2010 and the said Wills Ex.RW1/1 & Ex.RW1/2 were witnessed by him as witness no. 1 and by another witness Manoj Kumar as witness no. 2 and thumb impression of Late Chander on the said Wills are at point A and his signature at point B and signature of Manoj at point C and properties were equally distributed in favour of his three sons. RW1 has denied the suggestion in his cross examination that deceased Chander was in sound disposing state of mind till his death.
22. RW2 has deposed that he is the elder son of Late Chander who had executed two Wills dt. 10.05.2010 which were registered in the office of SubRegistrar, Pitampura, Delhi on 12.05.10 Ex. RW1/1 & Ex. RW1/2 and the said Wills were witnessed by Sh. Madan Lal and Sh.Manoj Kumar and the property bearing no. 210, part of Khasra no. 20, situated at Kewal Park Azadpur Delhi measuring 205 sq. Yds. out of which 40sq. Yds. were given to him as mentioned in the Wills and the property regarding Khasra no. 21 measuring 300 sq. yds. Situated at PC67/110 10/38 Kewal Park was equally distributed in his favour alongwith two brothers/petitioners.
23. RW2 has further deposed that his father was got discharged by the petitioners not as per the advice of the doctors on 01.06.10 and subsequently died on 03.06.10 at the age of 90 years and both the Wills dt. 01.06.10 are false and fabricated as his father during his last days was not in a sound disposing state of mind and wast not having good health.
24. RW3/Vidyawati has deposed that she is daughter of Late Chander and the present petition is based on false, fabricated and frivolous Wills dated 01.06.10 as during the last days of his life, her father was admitted in ICU at Saroj Hospital and was on death bed and his entire physical condition was collapsed as he was unable to speak, listen or understand anything and therefore, he was got discharged by the petitioners to gain their malafide intention on 01.06.10. RW3 has further deposed that her father was 90 years of age and was unable to execute any document and died intestate and the alleged two Wills dated 01.06.10 registered on 04.06.10 are false, forged and fabricated.
25. Before deciding this issue, I have gone through the relevant provisions of Indian Succession Act. PC67/110 11/38
26. It is a well settled principle of law that Will has to be proved by 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".
27. It is also a well settled principle of law that a person who propounds the Will or produces the Will before the court and wants the court to rely upon the same 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 when he executed the Will.
28. 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 PC67/110 12/38 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.
29. 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 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 and circumstances of each PC67/110 13/38 case and the nature and quality of the evidence adduced by the parties.
30. 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 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.
31. 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 PC67/110 14/38 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.
32. 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 precised and certained and so the test should be one of satisfaction of a prudent mind in such matter and onus must be on the 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.
33. It is elementary to observe that onus to prove the Will is on PC67/110 15/38 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: 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. PC67/110 16/38 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 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.
34. In the present case, the propounder/petitioners are relying on Wills dated 01.06.10 executed by Late Chander and have PC67/110 17/38 examined Hansraj, one of the petitioner as PW3 and both attesting witnesses to the Wills Ex.PW1/1 and Ex.PW1/2, namely, Dharmender (PW1) and Jai Bhagwan (PW2). The case of the petitioners are that their father deceased Chander was discharged from Saroj hospital on 01.06.10 and immediately thereafter, he had expressed his desire to execute a Will in respect of his both properties and two Wills dated 01.06.10 Ex.PW1/1 & Ex.PW1/2 were executed and registered in the office of SubRegistrar.
35. On the other hand, objections as raised on behalf of respondent/objector, namely, Beer Singh is that his father Chander had executed two Wills dated 10.05.10 Ex RW1/1 & RW1/2 which were registered in the office of SubRegistrar, Pitam Pura on 12.05.10 and by virtue of those Wills, deceased Chander had distributed his property bearing no. 210, part of Khasra no. 20, situated at Kewal Park, Azad Pur, Delhi, measuring 205 sq. yards and another property bearing khasra no. 21, measuring 300 sq. yards, equally among his three sons.
36. 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 PC67/110 18/38 and convincing explanation as held in S. Amarjeet Singh Vs. State, AIR 1999 Delhi, 33.
37. In the present matter, the testator was 90 years of age at the time of execution of Wills dt. 01.06.10. It is a matter of record that testator was seriously ill and was admitted in ICU at Saroj Hospital on 28.05.10 and was discharged on 01.06.10 when the Wills dt. 01.06.10 Ex.PW1/1 & Ex.PW1/2 were executed but there is no evidence whatsoever as regard to the physical and mental condition of the testator at the time of execution of the abovesaid Wills. Neither the petitioners nor the attesting witnesses have deposed that the testator was in sound and disposing state of mind and was free agent at the time of execution of the Wills dt. 01.06.10 and he was able to understand the real nature of the document which he was executing. The evidence led on behalf of the petitioners falls short and the suspicion has not been removed by the proper and cogent evidence as no evidence whatsoever has been brought on record to explain this suspicious circumstance.
38. In the present case, there are certain suspicious circumstances concerning the execution of the Will which are as follows: PC67/110 19/38
(i) The alleged Wills dated 01.06.10 were executed on the very same day of discharge of testator from the hospital when the condition of the testator was stated to be very critical.
(ii) There are two other Wills dated 10.05.10 executed by testator and registered on 12.05.10 twenty days before the execution of alleged Wills dated 01.06.10 whereby properties were bequeathed in favour of all the three sons.
(iii) No reason has been explained for executing the Wills dated 01.06.10 by which total disinheritance of the respondent no.1 has taken place when already two registered Wills were duly executed by the testator on 10.05.10.
(iv) Both the Wills are in English and admittedly testator was an illiterate person.
39. The abovesaid suspicious circumstances raise 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 petitioners.
40. It is a settled preposition of law that onus lies on the propounder to prove that the testator had executed the Will when he was in good health and proper mental and physical condition and stable state of mind. In the instant case, there is no such evidence on record to reinforce that the testator was in such a PC67/110 20/38 good physical & mental condition and stable state of mind at the time of execution of Wills dated 01.06.10.
41. 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 not in a sound and stable state of mind as he was 90 years of age, and was seriously ill and got discharged from ICU at Saroj hospital by the petitioners on 01.06.10, when he was in critical condition and the said Wills dated 01.06.10 were executed on the very same day. It is pertinent to mention herein that the health condition of the testator was also corroborated in the deposition of RW3 that the testator was seriously ill and had collapsed on the day of discharge from the hospital and testator was on his last breath and was not in a position to speak, listen or understand anything and the same has also been corroborated in the deposition of other RWs.
42. 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 and / or their might be other relevant materials to show that testator's mind was not in PC67/110 21/38 disposing state of mind. If the propounder succeeds in removing any 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 they have failed to do so. It is a case where an attempt has been made to debar the respondent no.2 being, the son and the brother of both the petitioners from getting his due share of the properties on the basis of registered Wills dated 10.05.10 Ex.RW1/1 and Ex.RW1/2 alleged to be executed by the deceased testator.
43. Courts have to evaluate evidence pertaining to the circumstances under which the Wills are prepared. 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.
44. In the present case, the creation of Wills dated 01.06.10 itself is highly doubtful as on the same day, the testator was got discharged from the hospital from the ICU and Wills in question were stated to be registered on 02.06.10 and subsequently, the testator died on 03.06.10. Moreso, from the peculiar nature of the document as noted above, the alleged Wills dated 01.06.10 have PC67/110 22/38 been executed by the testator when the property was already distributed by the testator among three sons by virtue of registered Wills dated 10.05.10 Ex.RW1/1 & Ex.RW1/2 just 20 days before the execution of the Wills in question.
45. In the instant case, the circumstances brought on record create great suspicions which has not been removed by the petitioners/propounders to establish that the Wills dated 01.06.10 are genuine and were duly executed by the testator when he was in sound and stable state of mind.
46. 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 Wills.
47. 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.
48. 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 PC67/110 23/38 not permit conjecture of suspicion having the place of legal proof.
49. The Will in question are surrounded by suspicious circumstances and petitioners/propounders of the Wills have miserably failed to explain the same.
50. It is worthwhile to mention here that RW2 and RW3 were subjected to extensive crossexamination and number of suggestions were put to the witnesses 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 Wills dated 01.06.10 are the genuine documents. It is worthwhile to be noted at this juncture that an objections as raised by the objector that deceased was not in the sound and stable state of mind at the time of execution of the Wills dated 01.06.10 and no such suspicion has been removed and the propounders have not been able to give any sufficient reason why testator had executed another two subsequent Wills dated 01.06.10 within a gap of just 20 days when the two registered Wills dated 10.05.10 were duly executed by the testators, bequeathing/distributing the equal shares among his three sons. It is also pertinent to mention herein that at the time of crossexamination of RWs by the Ld. Counsel for the petitioners, nothing could be elicited from them to PC67/110 24/38 cast any doubt on the veracity of their deposition made on oath in their examinationinchief.
51. In the instant case, I am of the view that the petitioners have 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 petitioners have 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 petitioners and the onus have not been discharged to prove that the Wills dated 01.06.10 are 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 .
52. 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. PC67/110 25/38
53. 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 Wills dated 01.06.10 which are stated to have been executed by the testator were not duly proved as per the provisions of Sections 63, 67 and 68 of Indian Evidence Act.
54. Accordingly, this issue is decided against the petitioners and in favour of the objectors.
55. ISSUE NO. 2: Whether deceased legator was mentally and physically in a sound state of mind at the time of execution of the abovesaid Will?(OPP) Onus to prove this issue was on the petitioners.
56. PW1 has deposed that deceased Chander had executed two registered Wills Ex.PW1/1 & Ex.PW1/2 on 01.06.10, on the day he was discharged from the hospital and he is one of the attesting witness alongwith Sh. Jai Bhagwan and subsequently, the testator had died on 03.06.10.
57. PW2 has also deposed on similar lines that the Wills were executed on 01.06.10, on the day of discharge of testator and he is one of the attesting witness to the Wills Ex.PW1 and Ex.PW 1/2 and the testator had put his thumb marks on the said Wills in PC67/110 26/38 their presence on 02.06.10.
58. PW3 is one of the petitioner and also deposed on the line of pleadings that objector Beer Singh had been living separately from their father and had taken his due share and the two Wills were executed on 01.06.10 on the day the testator was discharged from the hospital and both the petitioners are entitled for their share as mentioned in the Wills dated 01.06.10.
59. On the other hand, objectors have examined Madan Lal as RW1 and deposed that deceased Chander had executed two wills dated 10.05.10 in his presence and both the Wills Ex.RW1/1 & Ex.RW1/2 were registered in the office of subRegistrar on 12.05.10 and he was one of the attesting witness in the said Wills alongwith Manoj Kumar as witness no.2 and deceased by virtue of those Wills has distributed his property in favour of his three sons. RW2 Beer Singh son of Late Chander and brother of petitioners had entered into witness box and deposed that Late Chander had executed two Wills dated 10.05.10 which were registered on 12.05.10 before SubRegistrar and distributed his property in his favour alongwith two brothers/petitioners and further deposed that the Wills dated 01.06.10 are false and fabricated as his father during his last stage was not in sound PC67/110 27/38 disposing state of mind and was not having good health. RW3 Vidyawati, daughter of Deceased Chander has also filed objections and deposed that the present petition is based on forged and fabricated Wills as during last days of his life, her father (deceased Chander) was admitted in ICU at Saroj hospital and was unable to speak, listen or understand anything or to execute any document as he was mentally and physically collapsed and was on death bed.
60. It is a well settled principle of law that a person who propounds the Will or produces the Will before the court and wants the court to rely upon the same has to prove that the testator when executed the Will was in sound and disposing state of mind, and had executed the Will of his own free Will, meaning thereby, he was a free agent when he executed the Will.
61. The question of sound and disposing state of mind is a dominant question in a court of probate. Numerous decision of various courts have laid down from time to time test by which to judge a sound disposing mind. Indeed most of the Wills are not made by persons young and vigorous and glowing health. The test of a sound disposing mind is in law a workable test and is not a hypothetical nor an impracticable test. All that can be said is PC67/110 28/38 that the conscience of the court must be satisfied on the evidence that the testator had sufficient mental capacity and sound disposing state of mind and intelligence to be able to understand the nature of the act in disposing of the property at the time of making the Will. Testator's capacity has to be judged to some extent on the nature of the Will and his physical and mental condition at the time of executing the Will.
62. 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. It is for the propounder to satisfy the conscience of the court and what are suspicious circumstances must invariably be judged in the facts and circumstances of each particular case.
63. The propounders of the Will must remove all suspicious circumstances by cogent and satisfactory evidence which is reliable. The initial burden is always on the propounder only and PC67/110 29/38 it is the propounder's duty to prove the Will, its execution and attestation and also remove doubt as to the suspicious circumstances attendant of the Will's execution.
64. In Pratap Singh & Anr. Vs. State & Anr., 173(2010)DLT 132(DB), relevant para10 of judgment is reproduced as under:
"Yet another circumstance castigates the genuineness of the Will, the medical condition of the testator. None of the witnesses stated that the Will was prepared on the dictation of the testator. The evidence is with regard to the registration of the Will and not the preparation thereof. It is an admitted position that the testator was suffering from mouth cancer and was under treatment. He died on 26.03.93, that is 15 days after the execution of the Will. Once this is the admitted fact situation a a suspicion is caused on the soundness of disposition of mind of the testator and the onus was on the appellants to prove that he was in a sound disposing mind and the Will was prepared on his directions/dictation. No cogent evidence of the doctor who treated the testator or the lawyer who prepared the Will is brought on record. The appellants are not even aware of the lawyer who prepared the Will. The onus to prove that the Will was validly propounded was on the appellants which had to be discharged by leading cogent and convincing evidence, in view of the medical condition of the testator to remove all suspicions PC67/110 30/38 from the alleged Will."
65. The propounder has to prove by satisfactory evidence that the Wills were signed by the testator and at the relevant time testator was in sound and disposing state of mind that he or she understood the nature and effect of disposition and put his signatures on the document out of his own free Will.
66. In the instant case, the depositions of the petitioner's witness appears not to be satisfactory as there are certain suspicious circumstances shrouded the Wills dated 01.06.10 and it is noticeable that in the deposition of PW1 and PW2 , there is no whisper in their evidence to prove that the testator was in sound and disposing state of mind & health at the time of execution of Wills dated 01.06.10.
67. In the instant case, the attesting witnesses have stated that they are one of the attesting witnesses and beyond this did not utter a single word about the mental and physical condition and state of mind of the testator.
68. Considering the facts and circumstances of the case and the evidence placed on record, it can be said that the Wills in question are surrounded by suspicious circumstances to the PC67/110 31/38 extent that the testator was not in a sound and disposing state of mind at the time of execution of the Wills dated 01.06.10 as petitioners/propounders of the Wills have miserably failed to remove the suspicion by any cogent and satisfactory evidence.
69. In view of the discussions made above and the evidence placed on record and relying upon the judgment Pratap Singh & Anr. Vs. State & Anr., 173(2010)DLT 132(DB)(supra), I am of the view that the petitioners have not examined any independent witness, either the doctor who treated the testator or the lawyer who prepared the Wills to establish or to prove the medical condition or the state of mind of the testator at the time of executing the Wills dated 01.06.10 and has not been been able to prove that the testator was in sound and disposing state of` mind at the time of execution of Wills dated 01.06.10.
70. On the other hand, the respondents/objectors are able to show that the deceased/testator was of 90 years of age and was admitted in the Saroj hospital in ICU and was discharged on the very same day when the Wills dated 01.06.10 in question were alleged to be executed by the testator when his mental and physical condition was not stable.
71. In view of the discussion made above and the evidence PC67/110 32/38 placed on record, it can be easily concluded that the deceased was not in a sound and disposing state of mind at the time of execution of Wills dated 01.06.10 to such an extent that he was able to understand the real nature of the document which he was executing. Accordingly, this issue is decided against the petitioners and in favour of the objectors.
72. ISSUE NO. 3: Whether the present Will is forged and fabricated?(OPR)
73. The case of the petitioners are that deceased Chander was discharged from the Saroj Hospital on 01.06.2010 and immediately expressed his desire to execute Wills in respect of his properties and executed two separate registered Wills Ex.PW 1/1 & Ex.PW1/2 on 01.06.10 and two attesting witnesses as PW 1 and PW2 were examined to prove the Will alongwith one of the petitioner. PW1 and PW2 have deposed on the similar lines that deceased Chander affixed and marked his thumb impressions in their presence and the Wills were also signed by them as witness no. 1 and 2.
74. PW3, Hansraj is one of the petitioner has deposed that two registered Wills Ex. PW1/1 & Ex. PW1/2 were executed on 01.06.10, on the day testator was discharged from the hospital PC67/110 33/38 and subsequently died on 03.06.10 and both the petitioners are entitled for their share as mentioned in the Wills dated 01.06.10.
75. Let us see the crossexamination of PW3 wherein it has come that the testator was illiterate and admittedly the Wills were executed in English in respect of different properties but the language is same. Witness has further stated in his cross examination that at the time of read over of the Wills, only his father and advocate were present there and further tried to improve and again said that two attesting witnesses (Damad of Beer Singh) were also present.
76. On the other hand, objectors has examined Madan Lal as RW1, who has deposed that deceased Chander had executed two registered Wills dt. 10.05.2010, Ex RW1/1 & RW1/2 and he is one of the attesting witnesses and the testator /deceased had distributed his property in favour of his three sons.
77. RW2 has also deposed that two registered Wills dt.
10.05.2010 which were executed and by virtue of said Wills Ex.RW1/1 and Ex.RW1/2, the property bearing no. 210, part of Khasra no. 20, situated at Kewal Park Azadpur Delhi measuring 205 sq. Yds. out of which 40sq. Yds. were given to him as mentioned in the Wills and the property regarding Khasra no. 21 PC67/110 34/38 measuring 300 sq. yds. Situated at Kewal Park was distributed by testator in favour of his three sons and both the Wills dt. 01.06.10 are forged and fabricated.
78. RW3/Vidyawati has deposed that the present petition is based on false, fabricated and frivolous Wills as during the last days of his life, her father was admitted in ICU in Saroj Hospital and was on death bed and his entire physical condition was collapsed and therefore, he was got discharged by the petitioners to gain their malafide intention on 01.06.10 and died intestate at the age of 90 years and was unable to execute any document and the alleged Wills dt. 01.06.10 are false, forged and fabricated.
79. In the present issue the only thing to be decided is whether the Wills are genuine and are not forged and fabricated. 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.
PC67/110 35/38
80. 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.
81. 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.
82. The depositions of the petitioners witness appears not to be satisfactory as there are certain suspicious circumstances shrouded the Wills in question and it is noticeable that in the deposition of PW1 and PW2 , there is no whisper in their evidence to prove that the Wills dated 01.06.10 were written at the behest of the testator and are last and genuine testaments of the testator. It is also pertinent to mention herein that in the alleged Wills dated 01.06.10, there is no mention about the PC67/110 36/38 previous registered Wills dated 10.05.10, executed by the testator just 20 days before.
83. In view of the discussion made above and evidence placed on record, it can be easily concluded that the petitioners have failed to prove that Wills Ex.PW1/1 and Ex.PW1/2 were the last, valid and legal testament of the deceased Chander. Accordingly, this issue is decided in favour of the objectors and against the petitioners.
RELIEF
84. 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 Wills have not been proved in accordance with law as the petitioners have failed to prove that Ex.PW1/1 & Ex.PW 1/2 were the last valid and legal testaments of the deceased and hence, probate cannot be granted to the petitioners. Accordingly, present petition is hereby dismissed. However in the peculiar facts and circumstances of the case, no order as to cost. Petition stands disposed of accordingly.
85. File be consigned to record room.
PC67/110 37/38
Announced in the Open Court (SUNIL RANA)
On this 30.08.12 Addl. District JudgeII: Rohini
PC67/110 38/38