Rajasthan High Court - Jodhpur
Pushpa Devi vs Moti Lal on 4 September, 2008
Author: N.P. Gupta
Bench: Vineet Kothari, N.P. Gupta
SB CIVIL TESTAMANTORY CASE NO.1/99 - SMT. PUSHPA DEVI V/S SH. MOTI LAL AND ORS. :
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR.
(ORIGINAL JURISDICTION)
...
S.B. CIVIL TESTAMENTARY CASE NO.1/1999
Pushpa Devi W/O Jeet Mal Mohnot, resident of Bidasar, Tehsil
Sujangarh, Dist. Churu.
...APPLICANT
Versus
1. Moti Lal s/o late Sh. Mangi Lal, resident of Bidasar, Tehsil
Sujangarh Dist. Chur, presently residing at 174, Arvind Sarani First
Floor, Kolkata.
2. Smt. Kanchan W/O Abhay Singh resident of Churu, presently
residing at C/O Aval Spring Accessories Pvt. Ltd., First Floor
No.7, Swalovlane, Kolkata.
3. Jai Singh S/O late Sh. Jeet Mal, resident of Bidasar, presently
residing at 14/5/1 Meckanji Lane, First Floor, Hawda, Kolkata.
4. Sanjay Kumar alias Sanjay Singh S/O late Sh. Jeet Mal, resident of
Bidasar, presently residing at 14/5/1 Meckanji Lane, First Floor,
Hawda, Kolkata
...NON-APPLICANTS
REPORTABLE
DATE OF JUDGMENT : 4th September, 2008
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PRESENT
HON'BLE DR. JUSTICE VINEET KOTHARI
Mr. L.R. Mehta, assisted by
Mr.Sajjan Singh, for the applicant.
Mr.M.R. Singhvi, for the respondent.
1. The applicant Pushpa Devi W/o Jeet Mal Mohnot, resident of
Bidasar, Tehsil Sujangarh, Dist. Churu (Rajasthan) has filed the
present application under Section 276 of the Indian Succession Act,
1925 seeking probate in respect of a Will executed by her mother-in-
law Smt. Manak devi W/O Sh. Mangi Lal who died on 31.12.1993 at
Bidasar, Tehsil Sujangarh, Dist. Churu and executed a Will in
question on 9.1.1992 bequeathing certain movable and immovable
properties on the propounder of the said Will namely Smt. Pushpa
Devi, now the present applicant.
2. The respondent No.1 Sh. Moti Lal S/O Sh. Mangi Lal is the
younger brother of Sh. Jeet Mal, husband of the present applicant and
the respondent No.2 is Smt. Kanchan Devi w/o Sh. Abhay Singh, a
sister of Jeet Mal and Moti Lal. Respondent No.3 Jai Singh and
respondent No.4 Sanjay Kumar are also sons of Jeet Mal, who has
also expired and predeceased his mother Smt. Manak Devi on
3.11.1991.
3 According to the application under Section 276, the said Smt.
Manak Devi W/O Sh. Mangi Lal executed her last Will on 9.1.1992
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and the said Manak Devi had following movable and immovable
property at the time of her death:
"ए/- ब द सर तहस ल सज नगढ चर म सरक र अस त ल क
स ननमननलख त हदद एव! न 1473.60 वग" म टर म स
आध र भ ग खजसम कआ इ! जन घर व एक आयल घर बन
हआ ह* :
हदद:
उतर म : ब ड म.त ल ल मन.त क आध हहसस
दख0ण म : र सत
व" म : क.ठ3 क आध हहसस म.त ल ल मन.त
ख4म म : ब ड आध हहसस म.त ल ल मन.त
ब /- ब द सर तहस ल सज नगढ खजल सरक र अस त ल क
स 1190.30 वग" म टर म स ननमननलख त हदद क आध
भग :
हदद
उतर म : र सत
दख0ण म : ब ड म नमल ज बग न
व" म : र सत
ख4म म : क नमल म नमल ज क5 भनम
स /- खजल ब क नर म क ई एम र.ड क स अल स गर र.ड
र रतन बबह र ज क क" क स मन नकड र खस9त मक न
खजनक कछ भ ग इख;डयन ब<क श ब क नर क. हकर य र
हदय हआ ह* : खजसक कल हकर य म स आध हकर य प पत
करन क5 सव.म णकदव अनधक र ण 9 हकनत ब<क स कर रत
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बवनधवत सम दन न ह.न न क क रण म णकदव क हहसस
क5 र नश उक ब<क म सस नस एक उनट म जम ह.त ज रह
ह* व भवन क शष भ ग म और भ हकर यद र ह* ज.
म णकदव क हहसस क हकर य म णकदव क ब<क त न!बर
817 इख;डयन ब<क म जम कर त 9।
ड /- ब क नर म इख;डयन ब<क क5 श ज. उ र वखण"त भवन
म ह* म श मत म णकदव क न म क त न!बर 817 म जम
र नश र य 2431.99 *स त9 उक ब<क क. भवन क ज. भ ग
हकर य र हदय हआ ह* क हकर य क5 र नश श मत म णकदव
क हहसस क5 ज. इस ब<क क स!स नस एक उनट म जम ह* ।
ई/- च तर र पनस!ग क.प .नल. न!बर 105 ओलड च यन ब ज र
सH ज कलकत क 1734 इकव ट ओडJनर शयस" खजनक सK5 ट
स!. 11067 स 11100 तक न!. 03201 स 3700 तक, 24301 स
25000 तक त9 18501 स 19000 तक ह* ।
एफ/- मण.त ए;ड क!.प .नल. न!. 105 ओलड च यन ब ज र सH ट
कलकत क 22 ओडJननर शयस" सK5पट न!. 121 - 122 त9 न!.
150 स 169 त9 15 बपफखनसयल खजनक सK5पट स!. 644 स 658
ह* । कलकत म 49/1/1 कNटन सH ट म खस9त क मट ग रमटस
म*नफ<. क!. म म णक दव क न म जम र. 46,200/-
ज /- कलकत म न!. 1 आर एन मकजO र.ड र खस9त !ज ब
नशनल ब<क क5 व ण
" र.ड कलकत ब !च म श मत म णकदव
क बचत त न!बर 10324 म जम र नश र य 11892/- 13 *स
कलकत म 16 ब.न हफलड लन म खस9त फम" म अनशफट
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इनवसटमट सबव"स प . नल. क यह ! म णकदव क न म जम र.
30,000/- "
3A. In her affidavit dated 12.7.1999 along with the application, the
applicant has given details of property bequeathed upon her in para 3
of the affidavit as under:
अनसच '' क''
(1) ब द सर म सरक र अस त ल क स खस9त ननमन !हकत स म ओ!
क भ ;ड त द द 1473.60 वग" म टर म स आध भ ग खजसक इ! जन
घर व एक आयल घर क हआ ह* । क5मत 22104/- र य
उतर दख0ण व" ख4म
ब ड म.त ल ल र सत क.ठ3 आध ब ड आध
मन.त आध हहसस हहसस
हहसस म.त ल ल मन.त म.त ल ल
मन.त
(2) ब द सर म सरक र अस त ल क स खस9त ननमन !हकत स म ओ!
क ब ड त द द 1119. 30 वग"म टर म स आध भ ग 33579/-
उतर दख0ण व" ख4म
र सत ब ड म नमलज र सत क नमल
बन ण म नमल क5
भनम
(3) खजल ब क नर म क.ई.एम. र.ड क स अल स गर र.ड र
रतन बबह र ज क क" क स मन नककड र खस9त मक न (भवन)
खजसक कछ अ!श इ! ख;डयन ब<क श ब क नर क. हकर य र हदय
हआ ह* व खजसक कछ हकर य म स आध हकर य प प त करन क5
म णकदव अनधक ररण 9 हकनत ब<क स एग मट क बवनधवत
सम दन न ह.न क क रण म णकदव क हहसस क5 र नश उक ब<क म
स!स स एक उ;ट म ह.त आ रह ह* । इस भवन क शष भ ग म और
हकर यद र भ ह* ज. म णकदव क हहसस क हकर य म णकदव क
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ब<क त म न!. 817 इख;डयन ब<क म जम कर त 9। आध भ ग क5
क5मत 125000/- र य एक ल चच स हज र र य ह* ।
(4) ब क नर म इख;डयन ब<क क5 श ज. ऊ र वखण"त भवन म ह*
स श मत म णकदव क न म क त स!. 817 म जम र नश 2431 र.
99 *स (द. हज र च र सV इकत स र य नननय नव *स) त9 उक
ब<क क. भवन क. ज. भल ग हकर ए र हदय हआ ह* क हकर य क5
र नश श मत म णकदव क हहसस क5 ज. ब<क क स!स स एक उ;ट
त म दज" ह* ।
(5) द च तर र पनस!ग कम न प इवट नलनमटड स!. 105 ओलड च यन
ब ज र सH ट, कलकत , 1734 इकव ट आखXड" नर शयस" खजनक खसKपटस
न!. 11067 स 1100 तक न!. 3201 स 3700 तक, 24301 स 25000 तक,
त9 18501 स 19000 तक ह* क5मत 17340/- र. (सतरह हज र त न
सV च ल स र य) ।
(6) मन.त ए;ड कम न प इवट नलनमटड स!. 105 ओलड च यन ब ज र
सH ट कलकत क 22 आहड" नर शयस" खसK टस न!. 121-122 त9 न!.
150 स 169 खजनम स पतयक क5 क5मत 100/- र य ह* क5मत
2200/- र य त9 15 बपफरस मत शयस" खजनक खसK टस न!. 644 स
658 ह< व क5मत 1000/- र य पनत शयर क5 दर स 15000/- र य
ह* ।
(7) कलकत म न!. 1 आर.एन. मकजO र.ड र खस9त !ज ब नशनल
ब<क क5 बबन र.ड कलकत ब !च म उक श मत म णकदव क एस.ब .
एक उ;ट न!. 10324 म जम र नश 11892 र य 13 *. (गय रह हज र
आठ सV ब नव र य त*रह *स )।
(8) कलकत म 49 (1) 1 क.टन सH ट म खस9त फम" म*सस" क.मट
ग रमनट म*नफ*कचरड कम न क यह ! उक श मत म णकदव क5
जम र नश 46,200/- र य (नछय ल स हज र द. सV र य) ।
(9) कलकत म न!. 16 ब.न फ5लड लन म खस9त फम" म*सस" अररष
इनवसटमट सबव"स प इवट नलनमटड क यह ! श मत म णकदव क5
जम र नश 30000/- र य (त स हज र र य) ।"
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4. The said Will dated 9.1.1992 is said to have been registered by
the Sub-Registrar, Sujangarh at Book no.3, Jild No.10/91 page No.91
at serial No.66, vide para 4 of the said application. The applicant
further states that by the said Will, Smt. Manak Devi who expired on
31.12.1993 at Bidasar did not appoint any Executor of the said Will
and therefore, the applicant had applied for grant of Letter of
Administration to the Additional Dist. Judge, Sujangarh on 3.8.1995
which was registered as Misc. Case No.85/1995 - Smt. Pushpa Devi
V/s Moti Lal and other. However, that application was withdrawn by
another application dated 22.1.1998 which was allowed on 4.7.1998
for filing the present application in the Court of competent
jurisdiction as the properties sought to be bequeathed by the Will was
situated in two different States, namely, Rajasthan and West Bengal.
The said application is supported by the affidavit of the applicant
Smt. Pushpa Devi sworn on 12.7.1999 at Kolkata. The said original
Will dated 9.1.1992 has also been produced before this Court.
5. That in pursuance of the notices issued by this Court to the
arrayed respondents Moti Lal and others, the said Sh. Moti Lal S/O
late Mangi Lal has raised objections against grant of probate in
favour of the applicant and the same would be dealt with hereafter.
6. That in pursuance of the orders made by this Court on
19.10.2005, the evidence of the witnesses was recorded by the Dy.
Registrar (Judicial) and this Court vide order dtd.19.10.1995 framed
following three issues:
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i) Whether the deceased Smt. Manak Devi has executed the
Will dated 9.1.1992 in favour of the applicant in
accordance with law?
ii) Whether the applicant is entitled to obtain probate as per
Will dated 9.1.1992 in her favour, with regards to
properties mentioned in para 3 of the application?
iii) Relief".
7. After taking affidavits by way of examination-in-chief, the
cross-examination was also recorded by the learned Dy. Registrar
(Judicial).
8. That in support of the application, Smt. Pushpa Devi examined
herself as P.W.1. She has filed her affidavit as Examination-in- Chief
dated 5.12.2005 and was cross-examined on 25.2.2006, 22.4.2006
and 29.7.2006 by Sh. M.R. Singhvi, learned counsel appearing for the
respondent No.1 Sh. Moti Lal. Further in support of the application
Sh. Raju Ram Fatehpuri s/o late Sh. Hari Bhagwan was examined as
A.W.2. His examination-in-chief is by way of sworn affidavit dated
11.9.2006 and he was cross-examined on 4.11.2006. He is the
attesting witness of the said Will. A.W.3 Sh. Mohan Lal Sharma S/O
Sh. Dungar Mal Ji Sharma was examined as another attesting
witnesses and his sworn affidavit in examination-in-chief dated
11.9.2006 is on record and he was cross-examined on 6.1.2007. The
scribe of the Will Sh. Dan Mal Sharma S/O Sh. Dungar Mal Ji
Sharma appeared before the Dy. Registrar (Judicial) as A.W.4 and
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besides his sworn affidavit dated 29.1.2007, his cross-examination
was recorded on 3.2.2007.
9. On the other side, the objector, respondent No.1 Sh. Moti Lal
S/O Sh. Mangi Lal has appeared before the learned Dy. Registrar
(Judicial) as N.A.W.1 and his affidavit in examination-in-chief dated
3.3.2007 is on the record and he was cross-examined on 18.8.2007.
N.A.W.2 Sh. Dharam Chand Sethia has given his affidavit dated
12.3.2007 and he was cross-examined on 15.9.2007. One Sh. Poonam
Chand Mohnot has also filed his affidavit dated 24.7.2007, but he
does not appear to have presented himself for cross-examination.
10. That since affidavit of objector Sh. Moti Lal contained certain
averments questioning power of Smt. Manak Devi to make Will in
respect of certain properties which were claimed by him to be that of
Joint Hindu Family, the learned Counsel for the applicant filed an
application objecting to the same because the question of title of the
property was not relevant in the case seeking probate in respect of
Will and while allowing the said application, this Court vide order
dated 10.7.2007 deleted certain parts of the affidavit of the objector
Sh. Moti Lal. It is considered appropriate to reproduce the said order
dated 10.7.2007 hereunder:
"Hon'ble Sh. N.P. Gupta, J.
ORDER
SB CIVIL TESTAMANTORY CASE NO.1/99 - SMT. PUSHPA DEVI V/S SH. MOTI LAL AND ORS. :
JUDGMENT DTD.4.9.2008 10/49 The matter comes on the objection filed on behalf of the petitioner on 26.5.2007 objecting to paras 2 to 7 and 16 of the affidavit of Motilal. Thereupon the Dy. Registrar (Judl.) has directed the case to be put up before the Court.
The objection is raised in the back ground of the earlier order passed by this Court on 22.9.2004, wherein it has been held that since this is a probate proceeding, and the question of title of the property cannot be gone into, therefore, the facts relating to title of the property were found to be irrelevant, and they were found to be not capable of being taken on record.
It is contended that the above paras of the affidavit do contain these very facts, which in view of the order dated 22.92004 cannot be taken on record.
Learned counsel for the respondent, on the other hand, submits that if the property did not belong to the testator and if the probate is granted with respect to the Will, that would affect the title of the property, and therefore, the averments have been made in the affidavit as made. I have considered the submissions.
In my view, on the face of the order of this Court dated 22.9.2004, the facts relating to the title of the property cannot be allowed to be taken on record. Examining the affdavit of Motilal from that standpoint, I find that only para 2 to 6, 16 and 18 of the affidavit are required to be struck off, and are accordingly struck off. Since in para 7 there is an averment about Manak Devi having executed a Will, that para I am not inclined to struck out.
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JUDGMENT DTD.4.9.2008 11/49 Since the matter has come up in the Court, I examined the order two affidavits filed on behalf of the non- petitioner being those of Punamchand and Dharmchand, and therein also, I find that in the affidavit of Punamchand in para 6 and 7, while in the affidavit of Dharmchand in para 2 and 4, averments have been made relating to title of the property, and therefore, in view of the above reasonings, these paragraphs of the affidavit of Punamchand and Dharmchand being para 6 and 7, so also para 2 and 4 respectively are required to be, and are ordered to be struck off. The Dy. Registrar (Judl.) is ordered to proceed with completing the recording of evidence. Put up before Dy. Registrar (Judl.) on 28.7.2007."
11. By an earlier order dated 17.8.2006 also, while dealing with an application filed by the non-petitioner No.1 under Section 45 of the Evidence Act for obtaining Expert's opinion for the Will executed in favour of the non-petitioner No.1 by late Sh. Manak Devi on 9.1.1992, another Co-ordinate Bench of this Court held that signatures on the Will executed on 9.1.1992 or 21.9.1991 cannot be compared with any signatures of the deceased - executant.
Therefore, the application under Section 45 of the Evidence Act will be considered after recording evidence of the parties. The said application is also decided hereunder.
12. On another occasion, while dealing with the application under Order 8 Rule 9 C.P.C. another Co-ordinate Bench of this Court vide order dtd.22.9.2004 had indicated that since it is probate proceedings, and question of title of the properties cannot be gone SB CIVIL TESTAMANTORY CASE NO.1/99 - SMT. PUSHPA DEVI V/S SH. MOTI LAL AND ORS. :
JUDGMENT DTD.4.9.2008 12/49 into, therefore, all the facts relating to the title of the properties are irrelevant and therefore, the facts which are sought to be pleaded by submitting additional pleadings relating to title of the property and how it flowed in favour of the author of the Will cannot be taken on record and accordingly paras No.2 to 6, 16 and 18 of the affidavit of Moti Lal were directed to be struck off, whereas paras No.6 and 7 in the affidavit of Poonam Chand, Paras No.2 and 4 in the affidavit of Dharam Chand relating to the title of the property were directed to be struck off by this Court on 10.7.2007.
13. I have heard the learned counsel Mr. L.R. Mehta appearing for the applicant assisted by Mr. Sajjan Singh, Advocate and Mr. M.R. Singhvi, learned counsel appearing for objector respondent No.1 Sh. Moti Lal at length and perused the record of the case, statements recorded of the various witnesses as well as case laws cited at the Bar.
14. Before coming to the decision of the main application and discussion of evidence in support of the application and objections, it would be appropriate to deal with the applications filed by the respondent No.1 after the arguments of the main case had started and were partly heard by this Court. The said applications being I.A. No.10342/2008 dated 13.8.2008 has been filed under Order 14 Rule 5 read with Section 151 C.P.C. for framing additional issues and for raising of additional pleas on behalf of the respondent No.1 and another application is I.A. No.10343/2008 dated 13.8.2008 under Order 6 Rule 16 read with Section 151 C.P.C. seeking amendment in SB CIVIL TESTAMANTORY CASE NO.1/99 - SMT. PUSHPA DEVI V/S SH. MOTI LAL AND ORS. :
JUDGMENT DTD.4.9.2008 13/49 the reply of the respondent No.1 seeking to add para G to L in the reply.
15. That the applicant Smt. Pushpa Devi has filed reply to these applications contesting these applications and arguments of both the counsels on the said applications were also separately heard, even though during the course of arguments on the main application itself.
16. The application under Order 6 Rule 16 read with Section 151 C.P.C. seeking to add para (G) to (L) in the reply filed on behalf of respondent No.1 again essentially seeks to raise question relating to the title of the properties which are bequeathed in the Will in question and also about form and absence of essential ingredients in the application under Section 276 of the Indian Succession Act, 1925. It also seeks to raise issues relating to non-joinder of necessary parties in the application like daughter of late Sh. Mangi Lal and sister of Jeet Mal and Moti Lal and even sons of Moti Lal. The said application also seeks to raise objections regarding non-compliance as to the payment of court fee along with the said application as per provisions of Section 50 and 51 of the Rajasthan Court Fee and Suit Valuation Act, 1961. The respondent No.1 has also sought to add para (G) and (K) about the properties belonging to Joint Hindu Family which have not been partitioned and the fact that the non-
applicant No.1 has filed regular suit for partition before the competent Civil Court in Kolkata and therefore, till the said suit is decided, the present proceedings for grant of probate may be kept in abeyance or consigned to record and vide para (L) sought to be SB CIVIL TESTAMANTORY CASE NO.1/99 - SMT. PUSHPA DEVI V/S SH. MOTI LAL AND ORS. :
JUDGMENT DTD.4.9.2008 14/49 added, the respondent No.1 has sought to cast doubt on the unsound state of mind of Smt. Manak Devi who was sick and infirm according to him and therefore, the Will in question could not be executed.
17. Suffice it to say that this application not only is belatedly filed at the fag end of the case when the arguments on the main case itself had commenced and were half way through, but the same is also bereft of merit and is an afterthought and the said application has also been filed reiterating and seeking to raise pleas and contentions which have already been negatived by this Court as to the title of the property and also about non-joinder of the parties etc. The application in question seems to be filed just for the sake of it and deserves to be rejected out of hand. As already indicated, this Court by interim order had already negatived the contentions of the respondent - objector that the question relating to the title of the property is not at all relevant fact in probate proceedings and even the averments made in the affidavit filed by the objector Moti Lal were directed to be struck off by this Court on 10.7.2007. As far as non-
joinder of necessary parties is concerned, the application states a wrong fact that the sister of Jeet Mal and Moti Lal and daughter of late Sh. Mangilal was not arrayed as party, whereas respondent No.2 Smt. Kanchan Devi is already arrayed as respondent No.2. As a matter of fact in probate proceedings, none of the respondents already arrayed are also even necessary parties and in such proceedings a general notice is issued to all the concerned and if they want to object to grant of probate, they may do so. In the present case, not only these four persons are arrayed as respondents by the applicant herself, but SB CIVIL TESTAMANTORY CASE NO.1/99 - SMT. PUSHPA DEVI V/S SH. MOTI LAL AND ORS. :
JUDGMENT DTD.4.9.2008 15/49 this Court vide order dtd.14.1.2004 had further directed issuance of notice of these proceedings to the following:
iv) Collector of Stamps and Revenue, 11th Neta Subash Road, Calcuta.
v) The Dist. Collector, Churu
vi) The Dist. Collector, Bikaner.
vii) The Board of Revenue for Rajasthan, Ajmer.
Thus, these notices were sent to the concerned parties at Kolkata as well as in Rajasthan. It may also be stated here that about the service of the non-applicants by substituted service, this Court had directed on 3.12.2002 by making publication in local news-paper having wide circulation in Kolkata in English and proof of service was required to be filed. That was complied with. Thus, sufficient general notice of these proceedings was given to the concerned parties and the public at large through specified authorities above and in Newspaper also and therefore, the application cannot be said to have suffered from the vice of non-joinder of necessary parties. As far as sons of Moti Lal are concerned they are neither considered necessary nor proper party in the matter. Moti Lal himself has raised objection against grant of probate which will be dealt with by this Court hereinafter. Para (L) about the alleged ill health of Smt. Manak Devi and therefore lack off capacity to execute the Will in question, the said objection has already been raised by the respondent No.1, which will be dealt SB CIVIL TESTAMANTORY CASE NO.1/99 - SMT. PUSHPA DEVI V/S SH. MOTI LAL AND ORS. :
JUDGMENT DTD.4.9.2008 16/49 with separately. Thus, above all so called additional pleas through aforesaid applications under Order 6 Rule 16 and by application under Order 14 Rule 5 C.P.C. is considered to be absolutely unnecessary, misconceived and irrelevant and therefore, these applications are liable to be rejected and the same are accordingly hereby rejected.
18. By yet another application dated 29.7.2006 filed by the non-
petitioner No.1 under section 45 of the Evidence Act, the non- petitioner had prayed for getting the signature of late Smt. Manak Devi on the Will dated 9.1.1992 examined by Hand-writing Expert as according to him the said signatures were forged one. The decision of the said application was kept pending by this Court vide earlier order dtd.17.8.2006. The said application was also contested by the learned counsel for the applicant by reply filed in this Court on 14.8.2006.
19. Having heard the learned counsels on this application and in view of the fact that the respondent No.1 Sh. Moti Lal himself has admitted the signature of the executor late Smt. Manak Devi on the Will dated 9.1.1992 in the cross-examination and also the said signatures and execution having been proved by the attesting witnesses in the statements recorded by the Dy. Registrar (Judicial), this Court is of the opinion that there is no need to get the signatures of the Executor late Smt. Manak Devi examined by any Hand-writing Expert. The said application is also thus, found to be devoid of merit and the same is accordingly rejected. Though in view of this, it was SB CIVIL TESTAMANTORY CASE NO.1/99 - SMT. PUSHPA DEVI V/S SH. MOTI LAL AND ORS. :
JUDGMENT DTD.4.9.2008 17/49 not necessary to invoke Section 73 of the Evidence Act and compare the signature of late Smt. Manak Devi, but for prima facie satisfaction, this Court has perused both the original Wills in question, namely, dated 15.10.1991 registered on 21.10.1991 and subsequent Will on which present probate is sought, namely, Will dated 9.1.1992 registered on 9.1.1992 itself. This Court is satisfied that signatures on both the Wills are comparable and appear to have been appended by the same person and the hand-writing on both the Wills matches, therefore, the application under Section 45 of the Act is also rejected.
20. Another application filed by the respondent on 22.10.2007 for staying these proceedings till the civil suit for partition filed by the respondent No.1 at Kolkata is decided is also pending. For the aforesaid reasons that since the question of title of properties is not relevant to the probate proceedings and this contention has already been rejected by this Court, the said application is also liable to be rejected and is accordingly hereby rejected.
21. Thus, all the interim applications filed by the respondent No.1 having been rejected this Court now proceeds to deal with the main application under Section 276 of the Act and objections of the respondent No.1.
22. The objections of the respondent No.1 Moti Lal as elaborated by Sh. M.R. Singhvi, learned counsel for the respondent No.1 can be summarized as below:
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i) The Will in question dated 9.1.1992 does not meet the requirement of Will as defined in Section 2(h) of the Indian Succession Act and therefore, no probate can be granted.
ii) The person making the said Will Smt. Manak Devi being not of sound health and having been kept in confinement by the present applicant, the said Will is executed under the suspicious circumstances and therefore, no probate can be granted.
iii) As per Section 59 of the Act, since every person of sound mind not being a minor may dispose of his property by a Will, the word "his" can only include the property owned by the Executor of the Will and specially in view of Explanation 1 to Section 59(1), the married woman may dispose of the Will of any property which she could alienate by her own act during her life time.
iv) Ingredients of Section 276 of the Act have not been fulfilled in the present application filed by the applicant inasmuch as, the time of the testator's death is not mentioned in the application nor there is any averment that it was duly executed and thirdly that it does not give schedule of the assets with valuation and therefore, the present application under Section 276 of the Act deserves to be rejected.
v) Since the applicant has not paid the Court fee at the rate of 3% on the valuation of the assets, which are sought to have been bequeathed upon her in accordance with Sections 50 and 51 of the Rajasthan Court Fees and Suit Valuation Act, 1961 SB CIVIL TESTAMANTORY CASE NO.1/99 - SMT. PUSHPA DEVI V/S SH. MOTI LAL AND ORS. :
JUDGMENT DTD.4.9.2008 19/49 read with Article 6 of Schedule I to the said Act, therefore, the application deserves to be rejected.
23. These objections have been replied and countered by Sh. L.R. Mehta, learned counsel appearing for the applicant in the following manner:
i) The Will in question dated 9.1.1992 is not only duly registered with the Sub-Registrar, Sujangarh on 9.1.1992 raising a presumption of its due execution, but the execution is also duly proved by the scribe as well as attesting witnesses before this Court and therefore, the probate can be and deserves to be granted in favour of the applicant.
ii) Since the question of title of the property of the Executant Smt. Manak Devi is not relevant for the present probate proceedings, therefore, the objections of the respondent No.1 in this regard are wholly misconceived and therefore neither these proceedings are required to be stayed awaiting decision of the partition suit filed by the respondent No.1 in Kolkata nor the said question is required to be decided by this Court and therefore, the said objection is wholly unsustainable, having already been turned down by this Court on 10.7.2007.
iii) As far as list of assets is concerned, the learned counsel pointed out that the same has been given in the application under Section 276 of the Act itself as also the list along with its valuation has been given in the affidavit filed by the applicant in support of the application under Section 276 of the Act.
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(iv) On the question of payment of Court fee, the learned counsel for the applicant pointed out that the fee payable on the application for probate or letters of administration is only Rs.25/- as per Clause 11(j)(i) of Schedule (II) of Rajasthan Court Fees and Suit Valuation Act, 1961 and the fee of 3% on the valuation of the assets bequeathed on the propounder of the Will, the present applicant, would be payable only upon the said probate certificate being granted by this Court by allowing the present application and at the time of issuing of probate certificate as per Article 6 of Schedule (i) of the said Act of 1961.
24. This Court is of the clear opinion that since the question relating to title of the property cannot be raised by the respondent No.1 in the present probate proceedings and these objections have already been over-ruled and there is no need or requirement to go into question of title of the property of late Sm. Manak Devi which she has bequeathed in favour of the present applicant by the Will dated 9.1.1992.
25. The objection regarding Will having been executed in suspicious circumstances and in the state of health alleged by the respondent No.1 of late Sh. Manak Devi that she was weak and she suffered from paralysis on the left hand, is also not sustainable. All the witnesses appearing in support of the application as AWs have not only proved execution of Will in their presence but have also stated about proper health of executant Manak Devi at the time of SB CIVIL TESTAMANTORY CASE NO.1/99 - SMT. PUSHPA DEVI V/S SH. MOTI LAL AND ORS. :
JUDGMENT DTD.4.9.2008 21/49 signing of the Will on 9.1.1992. The learned counsel Mr. M.R. Singhvi for the respondent No.1 also tried to cast doubt on the genuineness of the said Will because the same was executed at Bidasar in the residential house of the parents of the present applicant Smt. Pushpa Devi and not in the house of late Smt. Manak Devi herself which was situated at Suratgarh. He urged that the executor of the Will Smt. Manak Devi was deliberately kept in solitary confinement at the residential house of parents of Smt. Pushpa Devi at Bidarsar, when she was in the evening of her life and the respondent No.1 was not allowed to meet her and thus, it should be inferred that the Will in question was not genuine and got forged by the beneficiary Smt. Pushpa Devi. He also submitted that when by the earlier Will dated 15.10.1991, which is also said to have been registered and in which the present respondent No.1 was given almost ½ of the share in the property of late Smt. Manak Devi, whereas in the present Will dated 9.1.1992, his share in the property has been reduced to absolutely minimum and major portion of the assets is bequeathed in favour of the applicant Smt. Pushpa Devi and such Will having been executed at the parental house of Smt. Pushpa Devi, it is a matter of serious doubt and said Will dated 9.1.1992 cannot be said to be genuine.
26. This Court is of the opinion that the said objections of the respondent No.1 are also misplaced and misconceived. It is true as it has come in objector's statement, that the executor of the Will, Smt. Manak Devi lived with the respondent No.1 Moti Lal right from the year 1980 to the year 1991, but it appears that after the death of her SB CIVIL TESTAMANTORY CASE NO.1/99 - SMT. PUSHPA DEVI V/S SH. MOTI LAL AND ORS. :
JUDGMENT DTD.4.9.2008 22/49 elder son Jeet Mal and elder brother of respondent No.1 Moti Lal, the said Executor Smt. Manak Devi shifted from Kolkata to her husband's house at Sujangarh. The widow of her pre-deceased son Jeet Mal, the present applicant Smt. Pushpa devi also shifted from Kolkata to Sujangarh with her and took care of Smt. Manak Devi in last leg of her life. The place Bidasar being nearby to Sujangarh about 15-20 kms. only, during particular period around 9.1.1992, the said applicant Pushpa Devi appears to have taken her mother-in-law Smt. Manak Devi also with her to her parents' house at Bidasar where the said Executant Smt. Manak Devi thought of cancelling her earlier Will dated 15.10.1991 and executed a fresh Will on 9.1.1992. Since in law, a person is entitled to cancel his or her earlier Will and it is the last Will executed by him or her before death, which is important and which has to be given effect to as per Section 2(h) of the Act, therefore, no valid exception to the Will dated 9.1.1992 can be taken merely on the ground that by it the earlier Will dated 15.10.1991 was cancelled by the executant Smt. Manak Devi. So long as the execution of the Will is proved before the Court for grant of probate, the execution of the said Will cannot be disputed. In the present case, scribe Dan Mal Sharma and both the attesting witnesses, namely, Raja Ram Fatehpuria and Mohan Lal Sharma have proved execution of the said Will dated 9.1.1992 in no uncertain terms. There is nothing in the cross-examination of these witnesses which could demolish their stand in the Examination-in-Chief. Mere statement in Cross- Examination that name of the Oath Commissioner was not known to the deponent is of no consequence. One can hardly remember the name of the Oath Commissioner after a couple of SB CIVIL TESTAMANTORY CASE NO.1/99 - SMT. PUSHPA DEVI V/S SH. MOTI LAL AND ORS. :
JUDGMENT DTD.4.9.2008 23/49 months and it is not even necessary that the deponent should ask for the name of the Oath Commissioner who is administering Oath and attesting the affidavit in question. Therefore, such a weakness even if it can be called one in the cross-examination of these deponents is of no consequence where they have stated in more than categoric terms about the execution of the Will on 9.1.1992 by Smt. Manak Devi in their presence and who was found by them to be in absolutely good health, mental and physical, at the time of execution of the said Will. The said Smt. Manak Devi expired after almost two years of execution of the Will in question on 31.12.1993. Mere fact that she had some paralytic effect in her left hand of her body with nobody's case that she was a left hander and she suffered some general weakness is not sufficient to hold that the Will in question dated 9.1.1992 was not genuine and could not be executed. The fact that the said Will was executed at Bidasar in residential house of parents of the applicant Smt. Pushpa Devi is also of no consequence.
27. The respondent No.1 has failed to prove that said Smt. Manak Devi was kept in solitary confinement by the applicant Smt. Pushpa Devi against her wishes. If mother-in-law spends a few days in her advance age at the residential house of parents of her daughter-in-law, there is nothing unusual about it especially when P.W.1 Smt. Pushpa Devi has stated in her affidavit that around that time on 9.1.1992, both these ladies used to live in Sujangarh and Bidasar around that time and the applicant had also taken Smt. Manak Devi to Jaipur to attend the marriage of her younger sister Deepika and on some occasions both of them lived in Sujangarh and on some occasions at SB CIVIL TESTAMANTORY CASE NO.1/99 - SMT. PUSHPA DEVI V/S SH. MOTI LAL AND ORS. :
JUDGMENT DTD.4.9.2008 24/49 Bidasar. Therefore, there was nothing unusual that the said Will was executed on 9.1.1992 at Bidasar in the residential house of the parents of Smt. Pushpa Devi, the present applicant. She has also stated that she used to live after the death of her husband Jeet Mal on 3.11.1991 at Sujangarh and Bidasar with her mother-in-law Smt. Manak Devi and served her well and she was happy with her service and on the question about her minor sickness on account of old age that she was physically and mentally absolutely fit, she has stated in her statement that scribe Dan Mal Sharma, petition writer was known in the family of the applicant and therefore, both the Wills in question were written by him and the Will dated 9.1.1992 was written by him at the residential house of Shri Chand Ji Begani, her parents' place. She has also proved signatures of Smt. Manak Devi in her statement as well as her thumb impression at Ex. 2 Will at the place marked A to B.
28. That another objection raised by the learned counsel for the respondent No.1 that the application does not mention the "time" of death of the executor Smt. Manak Devi which the learned counsel emphasized meant time expressed in hours and minutes is also unsustainable. The expression time in Section 276(1)(a) of the Act does not and cannot mean that the same should be expressed in hours and minutes. In the opinion of this Court, it would be sufficient compliance with said provision if the date of death of executant is stated in the application. The fraction of day has to be ignored. It would be beneficial to refer to Section 5(3) of the General Clauses Act, 1897, in this regard, which stipulates that unless the contrary is expressed, a Central Act or Regulation shall be construed as coming SB CIVIL TESTAMANTORY CASE NO.1/99 - SMT. PUSHPA DEVI V/S SH. MOTI LAL AND ORS. :
JUDGMENT DTD.4.9.2008 25/49 into operation immediately on the expiration of the day preceding its commencement. Thus, at any point of time during which or the date if an event happens, reference to that day and date will be sufficient compliance with the provisions requiring time of testator's death to be mentioned in the application under Section 276 of the Act seeking probate. Thus, this objection of the learned counsel for the respondent No.1 is devoid of merit.
29. Another objection with regard to Section 59 of the Act that a person may dispose of only his property by Will and therefore, in the present case, the executant Smt. Manak Devi could not dispose of the property by way of present will, which according to the respondent No.1 belonged to Joint Hindu Family. This objection has also no force. As already stated, the question relating to title is not relevant in the proceedings of probate and this Court while deciding probate proceedings cannot pronounce upon veracity of the title of the person making Will in question. Such rights are required to be determined in other kind of proceedings, may be civil suit for partition or suit for declaration etc. As already noted above, the respondent No.1 has filed a suit for partition in respect of property claimed by him to be that of Joint Hindu Family and therefore, on the own showing of the respondent No.1, such rights are to be determined in those proceedings. Therefore, the objections raised before the Court that it was not the property of late Smt. Manak Devi which she could dispose of by way of Will is not an objection, which is sustainable in the eye of law and the same is also rejected.
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30. The question of valuation and payment of Court fee at the rate of 3% of such valuation is also not justified inasmuch as separate fee has been prescribed for application under section 276 of the Act as per clause 11 (j)(i) of the Schedule (II) of the Act of 1961 which is only Rs.25/- which has been duly paid in the present case. It is only when the probate certificate is issued, the said ad volerum fee of 3% as per Article 6 of the Schedule (I) will be payable, which is the stage which is yet to come. Consequently, this objection of the respondent No.1 is also devoid of merit and the same is rejected.
31. A brief reference to some of the case laws here may be opportune. In the case of C.K. Prahlada and ors. V/s State of Karnataka and ors. reported in 2008 AIR SCW 4161, the Hon'ble Supreme Court in para 10 of the said judgment held that since succession certificate is granted for limited purpose, the Court granting Succession Certificate does not decide the question of title. Nominee or holder of Succession Certificate has duty to hand over property to person who has legal title thereto. By obtaining a succession certificate alone, a person does not become the owner of the property.
32. The Division Bench of this Court in the case of Smt. Suraj Devi V/s Smt. Sita Bai reported in 1995 DNJ (Raj.) 275 this Court held in para 8 and 14 of the said judgment that the proceedings are by nature of proceedings restricted to proof of legal and valid execution of the Will, of which probate is demanded. A perusal of Section 276 of the Indian Succession Act, under which probate was claimed will SB CIVIL TESTAMANTORY CASE NO.1/99 - SMT. PUSHPA DEVI V/S SH. MOTI LAL AND ORS. :
JUDGMENT DTD.4.9.2008 27/49 show that all that is to be ascertained by the Court in proceedings under that Section is, whether the Will has been executed as required by law and is proved as required by Section 63 of the Indian Succession Act. Therefore, in the facts of that case, the Court held that question of marriage and alleged divorce of the appellant Smt. Suraj Devi was irrelevant to the probate proceeding. The Division Bench further held that Section 63 prescribes the manner in which an unprivileged Will is to be executed. The Dist. Judge as well as the learned Single Judge rightly found that the Will had been properly executed and signature of the executant was so placed that it appeared that it was intended thereby to give effect to the writing as a Will. The Will was duly attested by two witnesses and one of them had deposed that the Will was signed by Sohan Lal and he has put his signatures in presence of Sohan Lal and thus, all the requirements of Section 63 of the Indian Succession Act were fulfilled.
33. In the case of Mrs. Joyce Primrose Prestor (Nee Vas) V/s Miss Vera Marie Vas and ors reported in 1996 DNJ (SC) 418, the Hon'ble Supreme Court held that since writing and signature of testator was admitted and proper attestation was also proved and there was no suspicious circumstances, the High Court was not justified in reversing the finding of the trial Court regarding validity of the Will.
34. In the case of Brij Mohan Lal Arora and ors. V/s Girdhari Lal Manocha reported in (1978) 3 SCC 135, the Hon'ble Supreme Court in para 10 observed that the witnesses do not speak about the precise "time" of the execution of the Will, because no pointed SB CIVIL TESTAMANTORY CASE NO.1/99 - SMT. PUSHPA DEVI V/S SH. MOTI LAL AND ORS. :
JUDGMENT DTD.4.9.2008 28/49 question in regard there to was put to them, even in cross- examiantion. Since attesting witnesses, D.W.1 states that when he went to her in the morning, she told the witness that she was all right and wanted to execute a Will in favour of Girdhari Lal and D.W.1 further testified that Chandi Rani affixed her thumb impression, but did not put her signatures because her hand was shaking and she could not sign. It was held that thus, it was very clearly established that at the time of executing the Will, Ex.1, in the morning of September 18, 1960, the testatrix was of sound disposing mind, but was physically incapable of signing her name. These twin facts which stood firmly established had completely dispelled circumstances of any suspicion about the execution of the said will due to her ill health and such suspicious circumstances stood obliterated by the evidence of attesting witness who in general way put the time of the execution of the Will in the morning and therefore, the probate was rightly given in favour of the applicant.
35. In the case of Smt. Indu Bala Bose and ors. V/s Mahindra Chandra Bose and ors. reported in (1982) 1 SCC 20, the Hon'ble Supreme Court held as under:
"The mode of proving a Will does not ordinarily differ from that of proving any other document except to the special requirement of attestation prescribed in the case of a Will by Section 63 of the Succession Act. The onus of proving the Will is on the propounder and in the absence of suspicious circumstances surrounding the SB CIVIL TESTAMANTORY CASE NO.1/99 - SMT. PUSHPA DEVI V/S SH. MOTI LAL AND ORS. :
JUDGMENT DTD.4.9.2008 29/49 execution of the Will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however, there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before the court accepts the Will as a genuine. Even where circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court by completely removing all legitimate suspicions. The suspicious circumstances may be as to the genuineness of the signatures of the testator, the condition of the testator's mind, the dispositions made in the Will being unnatural, improbable or unfair in the light of relevant circumstances, or there might be other indications in the Will to show that the testator's mind was not free. If the propounder himself takes a prominent part in the execution of the Will which confers a substantial benefit on him, that is also a circumstance to be taken into account.
If the propounder succeeds in removing the suspicious circumstances the court would grant probate, even if the Will might be unnatural and might cut off wholly or in part near relations.
Any and every circumstance is not a "suspicious"
circumstance. A circumstance would be "suspicious" SB CIVIL TESTAMANTORY CASE NO.1/99 - SMT. PUSHPA DEVI V/S SH. MOTI LAL AND ORS. :
JUDGMENT DTD.4.9.2008 30/49 when it is not normal and is not normally expected in a normal situation or is not expected of a normal person. In the present case there were litigations between two groups of brothers and the Will by one of the brothers was the natural outcome to avoid further future litigation. The disposition under the Will has been found to be quite fair and one of the brothers of the testator, who had not been given anything under the Will had filed a written statement stating that he had no objection to the grant of probate inasmuch as the Will was executed and attested according to law. The circumstances pointed out in this case were not only not suspicious but normal. Therefore, the High Court was justified in giving probate to the respondents."
36. In the case of E. Madhavi Pallikkaramma and another V/s K.V. Prabhakaran Nair and ors. reported in AIR 2001 SC 435, the Hon'ble Apex Court held that so far as grievance regarding disinheritance of the husband of another co-testator Ummamma Amma was concerned, it has to be noted that even though she was suffering from cancer it could not be said that she was not in a sound disposing state of mind at the time of the Will. Even the husband had made no grievance at any stage nor was he staying with the wife who was living with her brother, the other co-testator. Secondly even though in probate proceedings, public notice would have been issued the husband never had made such a grievance regarding this alleged disinheritance by his wife. The caveator wife of the other co-testator SB CIVIL TESTAMANTORY CASE NO.1/99 - SMT. PUSHPA DEVI V/S SH. MOTI LAL AND ORS. :
JUDGMENT DTD.4.9.2008 31/49 could not make a grievance on his behalf. For all these reasons, therefore, it could not be said that the Will was of unnatural or was executed under any suspicious circumstances.
37. In the case of Praveen Kumar V/s Shyam Dass reported in AIR 2006 Rajasthan 27, the Division Bench of this Court at Jaipur Bench held in para 5 that no doubt the attesting witnesses to the Will are relatives of the appellant No.1 and are of young age, but that by itself would not become a suspicious circumstance. Why should old people be made attesting witnesses to a Will and who knows they will not be available for giving evidence when the question of proving that Will arises. In para 6, the Division Bench observed that the executant had bequeathed her properties to a religious institution "Geeta Press" which we all know is engaged in publishing religious books only. If the executors however be of the view that the properties are not to be given to Geeta Press, the same would in any case go to some other religious or social institution. Bequeathing property to a religious or social institution, considering the religious bent of mind of the testator, speaks volumes of the authenticity of the Will, thus providing a sound and plausible reason dispelling natural succession. This Court further held that non-production of draft of the Will is wholly inconsequential and does not depict the same to be a suspicious circumstance.
38. In the case of Meenakshammal V/s Chandrasekaran and another reported in (2005) 1 SCC 280, the Hon'ble Supreme Court observed as under:
SB CIVIL TESTAMANTORY CASE NO.1/99 - SMT. PUSHPA DEVI V/S SH. MOTI LAL AND ORS. :
JUDGMENT DTD.4.9.2008 32/49 "When a question arises as to whether a Will is genuine or forged, normally the fact that nothing can be said against the reasonable nature of its provisions will be a strong and material element in favour of the probabilities of the Will.
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 proof of 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 all legitimate suspicions to the satisfaction of the court before it accepts the will as genuine. If the propounder takes a prominent part in the execution of the Will, which confers a substantial benefit on him, the propounder is required to remove the doubts by clear and satisfactory evidence. Once the propounder proves that the Will was (i) signed by the testator, and
(ii) that he was at the relevant time in a sound disposing state of mind, and (iii) that he understood the nature and effect of the disposition and put his signature out of his own free will, and (iv) that he signed it in presence of the witnesses who attested it in his presence, the onus, which rests on the propounder, is discharged. The suspicion alleged must be one inherent in the transaction itself and not the doubt that may arise from conflict of testimony SB CIVIL TESTAMANTORY CASE NO.1/99 - SMT. PUSHPA DEVI V/S SH. MOTI LAL AND ORS. :
JUDGMENT DTD.4.9.2008 33/49 which becomes apparent on an investigation of the transaction. Suspicious circumstances cannot be defined precisely. They cannot be enumerated exhaustively. They must depend upon the facts of each case. The suspicious circumstances may be regarding 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 indications in the Will to show that the testator's mind was not free. Whether a Will has been executed by the testator in a sound and disposing state of mind is purely a question of fact, which will have to be decided in each case on the circumstances disclosed and the nature and quality of the evidence adduced.
When the Will is alleged to have been executed under undue influence, the onus of proving undue influence is upon the person making such allegation and mere presence of motive and opportunity are not enough."
39. In one of the leading judgment about execution of the Will and requirement of Section 63 of the Succession Act, 1925 and the effect of registration of the Will on its genuineness, the Hon'ble Supreme Court in the case of Rani Purnima Debi and another V/s Kumar Khagendra Narayan Deb and another reported in AIR 1962 SC 567, the Hon'ble Supreme Court held in para 5 about the requirement of valid Will as under:
SB CIVIL TESTAMANTORY CASE NO.1/99 - SMT. PUSHPA DEVI V/S SH. MOTI LAL AND ORS. :
JUDGMENT DTD.4.9.2008 34/49 "This was considered by this Court in H. Venkatachala Iyengar v. B.N. Thimmajamma, (1959) Supp (1) SCR 426; (AIR 1959 SC 443). It was observed in that case that the mode of proving a Will did not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a Will by S.63 of the Indian Succession Act. The onus of proving the Will was on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will proof, testamentary capacity and signature of the testator as required by law was sufficient to discharge the onus. Where, however, there were suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the Court before the Will could be accepted as genuine. If the caveator alleged undue influence, fraud or coercion, thus onus would be on him to prove the same. Even where there were no such pleas but the circumstances gave rise to doubts, it was for the propounder to satisfy the conscience of the Court. Further what are suspicious circumstances was also considered in this case. The alleged signature of the testator might be very shaky and doubtful and evidence in support of the propounder's case that the signature in question was the signature of the testator might not remove the doubt created by the appearance of the signature. The condition of the SB CIVIL TESTAMANTORY CASE NO.1/99 - SMT. PUSHPA DEVI V/S SH. MOTI LAL AND ORS. :
JUDGMENT DTD.4.9.2008 35/49 testators' mind might appear to be very feeble and debilitated and evidence adduced might not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will might appear to be unnatural, improbable or unfair in the light of relevant circumstances; or the will might otherwise indicate that the said dispositions might not be the result of the testator's free will and mind. In such cases, the Court would naturally expect that all legitimate suspicions should be completely removed before the document was accepted as the last will of the testator. Further a propounder himself might take a prominent part in the execution of the will, which conferred on him substantial benefits. If this was so it was generally treated as a suspicious circumstance attending the execution of the will and the propounder was required to remove the doubts by clear and satisfactory evidence. But even where there were suspicious circumstances and the propounder succeeded in removing them, the Court would grant probate, though the will might be unnatural and might cut off wholly or in part near relations.
About effect of registration on the genuineness of the will, the Apex Court in para 23 laid down as under:
SB CIVIL TESTAMANTORY CASE NO.1/99 - SMT. PUSHPA DEVI V/S SH. MOTI LAL AND ORS. :
JUDGMENT DTD.4.9.2008 36/49 "23. There is no doubt that if a will has been registered, that is a circumstances, which may, having regard to the circumstances, prove its genuineness. But the mere fact that a will is registered will not by itself be sufficient to dispel all suspicion regarding it where suspicion exists, without submitting the evidence of registration to a close examination. If the evidence as to registration on a close examination reveals that the registration was made in such a manner that it was brought home to the testator that the document of which he was admitting execution was a will disposing of his property and thereafter he admitted its execution and signed it in token thereof, the registration will dispel the doubt as to the genuineness of the will. But if the evidence as to registration shows that it was done in a perfunctory manner, that the officer registering the will did not read it over to the testator or did not bring home to him that he was admitting the execution of a will or did not satisfy himself in some other way (as, for example, by seeing the testator reading the will) that the testator knew that it was a will for execution of which he was admitted, the fact that the will was registered would not be of much value."
40. As recently as in the year 2005, the Apex Court in the case of Pentakota Satyanarayana and ors. V/s Pentakota Seetharatnam and ors. reported in AIR 2005 SC 4362 held that signature of Registering Officer and of identifying witnesses affixed to SB CIVIL TESTAMANTORY CASE NO.1/99 - SMT. PUSHPA DEVI V/S SH. MOTI LAL AND ORS. :
JUDGMENT DTD.4.9.2008 37/49 registration endorsement amounts to attestation of a will and where signature and thumb impression of identifying witnesses were also taken in the document and all witnesses deposed that they had signed as identifying witnesses and that testator was in sound disposition of mind, the burden of proof to prove that Will had been duly executed stood discahrged and mere active participation in execution of the Will by the propounders/beneficiaries was not sufficient to create any doubt either about the testamentary capacity or genuineness of Will. While negativing the notion that mere presence of beneficiaries at the time of execution of will may cause any suspicious about the execution of the Will itself, the Apex Court also held that it was not sufficient to infer any suspicious circumstances if the natural heirs were excluded and legally wedded wife was given lesser share. Relevant para 26 and 27 of the said judgment are reproduced hereunder:
"26. It is settled by a catena of decision that any and every circumstance is not a suspicious circumstance. Even in a case where active participation in execution of the Will by the propounders/ beneficiaries was there, it has been held that that by itself is not sufficient to create any doubt either about the testamentary capacity or the genuineness of the Will. It has been held that the mere presence of the beneficiary at the time of execution would not prove that the beneficiary had taken prominent part in the execution of the Will. This is the view taken by this Court in Sri Devi and ors. V/s SB CIVIL TESTAMANTORY CASE NO.1/99 - SMT. PUSHPA DEVI V/S SH. MOTI LAL AND ORS. :
JUDGMENT DTD.4.9.2008 38/49 Jayaraja Shetty and ors, (2005 ) 2 SCC 784. In the said case, it has been held that onus to prove 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 proof of signature of the testator as required by law not be sufficient to discharge the onus. In case, the person attesting the Will alleges undue influence, fraud or coercion, the onus wil be on him to prove the same and that as to what suspicious circumstances which have to be judged in the facts and circumstances of each particular case.
27. Mr. Narsimha, learned counsel for the respondents, submitted that the natural heirs were excluded and legally wedded wife was given a lesser share and, therefore, it has to be held to be a suspicious circumstances. We are unable to contenance the said submission. The circumstances of depriving the natural heirs should not raise any suspicion because the whole idea behind the execution of the Will is to be interfered in the normal line of succession and so natural heirs would be debarred in every case of the Will. It may be that inn some cases, they are fully debarred and some cases partly. This is the view taken by this Court in Uma Devi Manbiar and ors. V/s T.C. Sidhan (dead) (2004) 2 SCC 321."
SB CIVIL TESTAMANTORY CASE NO.1/99 - SMT. PUSHPA DEVI V/S SH. MOTI LAL AND ORS. :
JUDGMENT DTD.4.9.2008 39/49
41. The contention of the learned counsel for the respondent No.1 - Objector that the executor of the Will had no right to transfer certain properties and he had also filed a suit for partition of such joint Hindu familyi properties was in similar circumstances negatived by the Division Bench of the Karnataka High Court in the case reported of N. Ramaiah V/s Nagaraj S. reported in in AIR 2001 Karnataka 395 holding that bequest under the Will does not amount to transfer of property and that no Court by order or an interim order could restrain any individual from exercising his right to execute a Will and thereby regulating the succession on his death. Relevant part of the said judgment is reproduced hereunder:
"Transfer of Property Act, 1882 deals with transfers intervivos, that is, the act of a living person, conveying a property in present or in future, to one or more living persons. The provisions of TP Act are inapplicable to testamentary successions which are governed by Indian Succession Act, 1925. The differences between a transfer and a Will are well recognized. A transfer is a conveyance of an existing property by one living person to another (that is transfer intervivos). On the other hand a Will does not involve any transfer, nor effect any transfer intervivos, but is a legal expression of the wishes and intention of a person in regard to his properties which he desires to be carried into SB CIVIL TESTAMANTORY CASE NO.1/99 - SMT. PUSHPA DEVI V/S SH. MOTI LAL AND ORS. :
JUDGMENT DTD.4.9.2008 40/49 effect after his death. In other words, a Will regulates succession and provides for succession as declared by it (testamentary succession) instead of succession as per personal law (non-
testamentary succession). The concept of transfer by a living person is wholly alien to will. When a person makes a Will, he provides for testamentary succession and does not transfer any property. While a transfer is irrevocable and comes into effect either immediately or on the happening of a specified contingency,a Will is revocable and comes into operation only after the death of the testator. Thus, to treat a demise under a Will, as a transfer of an existing property in future, is contrary to all known principles relating to transfer of property and testamentary succession. No court has the power to make an order, that too an interim order restraining an individual from exercising his right to execute a Will and thereby regulate succession on his death. A direction to a party to maintain status quo in regard to a property does not therefore, bar him from making a testamentary disposition in regard to a property nor alters the nature or situation of the property nor removes or adds anything to the property. In short the testator, by making a Will does not alter the existing state of things in regard to the SB CIVIL TESTAMANTORY CASE NO.1/99 - SMT. PUSHPA DEVI V/S SH. MOTI LAL AND ORS. :
JUDGMENT DTD.4.9.2008 41/49 property. It follows therefore that making of a Will in regard to a property does not violate an order of status quo in regard to such property and consequently the testamentary disposition is neither void nor voidable."
42. Dealing with the case of revocation of earlier Will and execution of fresh Will and discharge of burden of proof as per Section 68 of the Evidence Act, 1872, the Hon'ble Supreme Court in the case of Daulat Ram and ors. V/s Sodha and ors. reported in 2005 DNJ (SC) 73 held in para 10, 12 and 14 as under:
"10. Will being a document has to be proved by primary evidence expcet where the Court permits a document to be proved by leading secondary evidence. Since it is required to be attested , as provided in Sec.68 of the Indian Evidence Act, 1872, it cannot be used as evidence until one of the attesting witnesses at least has been called for the purpose of providing its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence. In addition, it has to satisfy the requirements of Sec. 63 of the Indian Succession Act, 1925. In order to assess as to whether the Will has been validly executed and is a genuine document, the propounder has to show that the SB CIVIL TESTAMANTORY CASE NO.1/99 - SMT. PUSHPA DEVI V/S SH. MOTI LAL AND ORS. :
JUDGMENT DTD.4.9.2008 42/49 Will was signed by the testator and that he had put his signatures to the testament of his own free will; that he was at the relevant time in a sound disposing state of mind and understood the nature and effect of the dispositions and that the testator had signed it in the presence of two witnesses who attested it in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged. But where there are suspicious circumstances, the onus is on the propounder to remove the suspicion by leading appropriate evidence. The burden to prove that the Will was forged or that it was obtained under undue influence or coercion or by playing a fraud is on the person who alleges it to be so.
12. The only suspicious circumstances surrounding the Will pointed out is that Prati had thumb-marked the second Will, whereas the earlier Will had been signed by him. According to the appellants this shows that Prati was physically incapable of executing the Will. According to them, Prati was unconscious for 2-3 days prior to this death which took place a day next to the execution of the Will. Counsel for the appellants referred to the statement of D.W.6, Devi Ram - a purohit, who has stated that he had gone to the SB CIVIL TESTAMANTORY CASE NO.1/99 - SMT. PUSHPA DEVI V/S SH. MOTI LAL AND ORS. :
JUDGMENT DTD.4.9.2008 43/49 house of Prati a day or two earlier for pundhan which was done by one of the appellants as Prati was not in a position to do so being unconscious. We do not find much substance in this submission as it has come on record that though Prati was illiterate he had learnt to put his signatures, but most of the time he used to put his thumb impression. He was 84-85 years of age. In the face of unequivocal and trustworthy statements of scribe PW-2 and the attesting witnesses PW-3 and PW5, much reliance cannot be placed on the testimony of DW-6. Not other witness has been examined to show that Prati was unconscious at the time of the execution of the Will.
14.Be that as ti may, the second Will executed by Prati has been proved to be genuine and validly executed by him wherein he has bequeathed his entire property to his daughter, respondent No.1. The earlier Will executed in favour of the appellants has been specially revoked. Since the earlier Will stands revoked, it cannot be given effect to."
43. Relying on the observations of their Lordships of the Judicial Committee in (1872) 18 Suth WR 359 - Jotendro Mohun Tagore V/s Ganendra Mohun Tagore to the effect that "Will" means a continuous act of gift upto moment of the donor's death and, though SB CIVIL TESTAMANTORY CASE NO.1/99 - SMT. PUSHPA DEVI V/S SH. MOTI LAL AND ORS. :
JUDGMENT DTD.4.9.2008 44/49 revocable in the life time,is, until revocation a continuous act of gift up to the moment of death and does then operate to give the property disposed of to the persons designated as beneficiaries, the learned Single Judge of this Court way back in the year 1968 in the case of Smt. Ladhi Bai V/s Thakur Shriji and ors. reported in AIR 1968 (Raj.) 41 held that this is purely a question of fact whether the attesting witnesses had signed the Will in the presence of the testator. Section 63 of the Indian Succession Act simply lays down that the testator shall sign the Will in the presence of the attestor and vice versa but it does not say how the compliance of the requirements of the provisions of Section 63 shall be established. Where the witnesses come before the Court and narrate the sequence of events showing that after the testator had put her thumb impression on the document, they attested the document, the Court can easily draw an inference that the witnesses had appended their signatures to the document in the presence of the testator. The Court further held that if a witness owing to inadvertence omits to say that he had attested the document in the presence of the testator and narrates the sequence which lead to no other inference but the one that he had put his signatures in the presence of the testator then this omission on the part of the witness would not invalidate the will and it shall not preclude this Court to infer this fact from other evidence on the record that the attestor had signed the document in the presence of the testator. The law does not emphasis that the witness must use the language of the Section to prove the requisite merits thereof. If it is clear from the sequence of events described by a witness, that the witness had attested the document in the presence of testator, then SB CIVIL TESTAMANTORY CASE NO.1/99 - SMT. PUSHPA DEVI V/S SH. MOTI LAL AND ORS. :
JUDGMENT DTD.4.9.2008 45/49 this technicality that he did not say so in the language used in Section 63 would not be of any avail to the opposite party.
44. Dealing with the expression "his property" in section 2(h) and Section 59 of the Indian Succession Act, the learned Single Judge of Gauhati High Court in the case of Guneshwar Chutia V/s Haren Chutia reported in AIR 1974 Gauhati 73 held that the expression "his property" in Section 2(h) and 59 means not only the properties owned by the testator on the date of the Will but also those which he may acquire after that date and before his death. Thus, a Will can be made in respect of the properties which the testator may own on the date of his death and not necessarily only of the properties of which he happens to be the owner on the date he makes the will. Though this judgment had been referred and relied upon by the learned counsel for the respondent No.1, - objector Moti Lal, but the aforesaid ratio does not help the respondent No.1 in any manner.
45. In a solitary case of revocation of probate under Section 263 of the Succession act, 1925, the Hon'ble Supreme Court in the case of Mahibhai Amaidas Patel and anotehr V/s Dayabhai Amaidas reported in (2005) 12 SCC 154, held that it was necessary to cite parties who would otherwise have an interest in the succession to the estate of the deceased. In para 9, 10 and 11 of the said judgment are reproduced hereunder:
"9. This would clearly show that it is necessary to cite parties who would otherwise have an SB CIVIL TESTAMANTORY CASE NO.1/99 - SMT. PUSHPA DEVI V/S SH. MOTI LAL AND ORS. :
JUDGMENT DTD.4.9.2008 46/49 interest in the succession to the estate of the deceased. That would naturally include all the heirs of the deceased. Besides, Section 283 gives power to the District Judge as regards the issue of citations calling upon all persons claiming to have any interest in the estate of the deceased to come and see the proceedings before the grant of probate. Necessarily therefore, the facts on the basis of which the District Judge is required to exercise his discretion must be fairly placed before him. In this case the respondent had done nothing of the sort as we have already noticed.
10. The Courts below also overlooked the fact that in their application for revocation the appellants had clearly stated that in other proceedings between the members of the family of Amaidas and the respondent the Will had been successfully disputed. In the circumstances, for the respondent to say that the grant was being opposed by "nobody" was misleading. The grant ws obtained by concealing from the court something which was very material to the case. The appellants were entitled to be heard and doubtless the District Judge would have directed to issue of citations of each of Amaidas's heirs on intestacy under Section 283(1)(c) of the Act had the true facts been revealed by the respondent in his SB CIVIL TESTAMANTORY CASE NO.1/99 - SMT. PUSHPA DEVI V/S SH. MOTI LAL AND ORS. :
JUDGMENT DTD.4.9.2008 47/49 application for grant of probate. The advertisement in this case was wholly insufficient to patch up the gross lacuna.
11. In the circumstances we allow the appeal and revoke the probate granted to the respondent on 4.5.2002. The matter is now to be heard as a contentious cause. The appropriate District Judge will make all the heirs of the deceased Amaidas Party - respondents before further proceeding in the matter and will dispose of the matter after allowing the parties to file their written statements as if the probate proceedings were a full-fledged unit."
Nothing of the aforesaid nature has obtained in the present case as the applicant in the present case has not only arrayed the necessary and proper parties in the application filed under Section 276 of the Act, but a general notice through specified authorities was issued and published in the news-paper for service on the unserved respondent and it is not a case of grant of probate without giving an opportunity to the parties to raise objections in the present case. In fact such objections have been raised by the respondent No.1 and have been dealt with in detail.
46. Thus, from the aforesaid legal position, it clearly emerges that unless the lack of capacity of executant and suspicious circumstances are established by the objectors, the grant of probate to the SB CIVIL TESTAMANTORY CASE NO.1/99 - SMT. PUSHPA DEVI V/S SH. MOTI LAL AND ORS. :
JUDGMENT DTD.4.9.2008 48/49 propounder of the Will on the basis of Will which is duly executed and proved by the attesting witnesses is as a matter of course. In the facts and circumstances of the present case, this Court is satisfied that execution of the Will is duly proved by the propounder of the Will as well as scribe and attesting witnesses and the objector respondent No.1 has completely failed to make out any suspicious circumstances or lack of capacity on the part of Smt. Manak Devi to have executed the will dated 9.1.1992 Ex.2. The ring of suspicion cast by objector, has been successfully removed by the applicant, propounder of the Will.
47. In view of the aforesaid, the findings of this Court on issues No.1 to 3 are as under:
ISSUE NO.1 This Court finds that the deceased Smt. Manak Devi has executed the Will dated 9.1.1992 in favour of the applicant in accordance with law. Thus, this issue is answered in favour of the applicant Smt. Pushpa Devi.
ISSUE NO.2 It is held that the applicant is entitled to get Probate as per Will dated 9.1.1992 in her favour with regard to the properties mentioned in para 3 of the application. The said issue is also accordingly answered in favour of the applicant. SB CIVIL TESTAMANTORY CASE NO.1/99 - SMT. PUSHPA DEVI V/S SH. MOTI LAL AND ORS. :
JUDGMENT DTD.4.9.2008 49/49 ISSUE NO.3 The applicant Smt. Pushpa Devi is accordingly entitled to the relief of grant of probate certificate subject to payment of Court fee as aforesaid.
48. In the facts and circumstances of the case, the application under Section 276 of the Indian Succession Act, 1925 filed by the applicant Smt. Pushpa Devi is allowed. Requisite Probate Certificate in prescribed form may be issued to her upon deposit of Court fee in accordance with the provisions of Rajasthan Court fee and Suit Valuation Act, 1961. No order as to costs.
(Dr. VINEET KOTHARI )J. SS/-