Delhi District Court
Satbir Singh Rana vs State on 31 May, 2013
IN THE COURT OF SH. SUNIL RANA
ADDITIONAL DISTRICT JUDGEII: ROHINI COURTS: DELHI
PC No. 41/09
Unique Code No. 02404C0227622009
1. Satbir Singh Rana
Both sons of Lt. Balbir Singh
2. Jagphool Rana
Both R/o Village & PO
Khera Kalan, Delhi .......Petitioners
Vs.
State .......Respondent
Date of Institution : 22.08.09
Date on which the case was reserved for order : 09.05.13
Date of Decision : 31.05.13
JUDGMENT
1. By this judgment, I shall decide the present petition filed by petitioners u/s 276 of the Indian Succession Act for the grant of probate.
2. Brief facts, as stated in the petition are that petitioners are the sons of Late Balbir Singh s/o Late Ram Chander, r/o Village & Post Office Khera Kalan, Delhi, who had three sons, namely, Satbir PC No.41/09 Page 1 of 32 Singh, Jagphool and Naurang, died on 18.11.91, leaving behind his wife Smt. Premwati and three daughters, namely, Ms. Kavita, Ms.Neelam and Ms. Kiran.
3. It is further stated that Late Balbir Singh was bhumidar/owner of agricultural land bearing khasra Nos. 106/174(1
13), 144(111), 108/1(06), 54/23(010), 24(416), 38/10 min (05), 58/21(416), 70/12 (416), 18(26), total measuring 21 bighas 19 biswa (hereinafter referred to as the property) situated in the revenue estate of Village Khera Kalan, Delhi.
4. It is further stated that Late Balbir Singh, died on 12.12.07 and during his lifetime had executed a Will dt.30.07.93 duly registered before the SubRegistrar on 30.07.93 thereby bequeathing his entire land in favour of petitioners in equal shares and at the time of execution of said Will, testator Balbir Singh was possessing good health & sound disposing mind and the Will dt. 30.07.93 is his last Will. It is further stated that after the death of Balbir Singh, PC No.41/09 Page 2 of 32 petitioners had also moved an application before the revenue authorities for mutating the said land in their names but LRs of their deceased brother Naurang i.e. widow Smt. Premwati & her three daughters had filed objections and the said mutation proceedings was adjourned sine die till the probate is granted by the competent Court of law and hence, the present petition has been filed.
5. Notice of this petition was issued to the State through Collector and to the legal heirs of deceased and a copy was got affixed on the notice board of the Court House on 26.02.10. Citation was also published in the newspaper "Statesman" dated 09.03.10, for information to the general public.
6. Valuation report was filed by the office of SDM concerned, whereby the value of the property bearing khasra no. 54/23, 24, 38/10, 58/21, 70/12, 18 extended Abadi in khasra no. 106/144,174,108/1 having total area of 19 bighas 10 biswas and the value of the agricultural land is assessed as Rs.3,56,67,748/. PC No.41/09 Page 3 of 32
7. Objections were filed on behalf of the objectors that the petition is not maintainable as the petitioners have not come to the Court with clean hands and the alleged Will dated 30.07.1993 is the outcome of malicious thoughts of the petitioners with a purpose to deprive the objectors from their legal right in the land in question.
8. It is further submitted that Late Balbir Singh, father of the petitioners and fatherinlaw of the objector No.1 was illiterate person and therefore, the petitioners have manipulated and procured the said Will by producing fictitious witnesses to it as Late Balbir Singh had never appeared before the SubRegistrar for the execution of Will.
9. It has been submitted that after the death of Late Balbir Singh, petitioners have inherited 1/3rd share each out of the entire land along with the objectors being the LRs of their deceased brother, Naurang died on 18.11.1991 and objectors are in physical cultivatory possession of 1/3 share of the land of Late Balbir Singh PC No.41/09 Page 4 of 32 and are in occupation of built up structure. It has been further submitted that after the death of Balbir Singh his two sons namely Satibir and Jagphool (Petitioners herein) propounded a Will dt. 30.07.1993 allegedly executed by late Balbir Singh bequeathing the entire land in their favour in equal share and subsequently, an application was also filed before the Tehsildar, Narela for mutation on the basis of said Will, wherein the objections were filed by the objectors in the proceeding before the Revenue Authorities that Will is a result of fraud and misrepresentation and was not executed by Late Balbir Singh and has been propounded by the petitioners to deprive the objectors from their legal rights in the land in question.
10. It has been submitted that late Balbir Singh had not appeared before the SubRegistrar for the execution of the Will dt. 30.07.93 as he was very old, sick and was not in a sound disposing state of mind and no such alleged Will dated 30.07.93 was executed by late Balbir Singh and petitioners are not entitled for any grant of PC No.41/09 Page 5 of 32 probate.
11. On the pleadings of the parties, Ld. Predecessor has framed the following issues vide order dt. 30.07.10 :
1. Whether Will dated 30.07.1993 propounded by the petitioners as last Will and testament of deceased Balbir Singh and it was executed by him in sound state of mind? OPP
2. Whether the petition is maintainable in the present form? (OP Objectors)
3. Relief, if any?
12. Vide order dt.05.01.13, issue no.2 was amended and framed as follows: "2. Whether the petition is not maintainable in the present form? (OPO)"
13. In order to prove its case, the petitioners has examined one of the petitioners, Sh.Satbir Singh,as PW1, Sh. H.S. Mehta, one of the attesting witness as PW2 and Sh.Om Prakash from Registrar office as PW3. On the other hand, respondents/objectors had examined, Smt. Premwati as RW1 . The detailed testimonies of the witnesses will be discussed in the later part of the judgment. PC No.41/09 Page 6 of 32
14. I have heard the arguments on behalf of the counsel for the parties and gone through the evidence brought on record and also considered the written submissions filed on behalf of the parties.
15. My issuewise findings are as under: ISSUE NO.1: Whether Will dated 30.07.1993 propounded by the petitioner as last Will and testament of deceased Balbir Singh and it was executed by him in sound state of mind? OPP PW1 is one of the petitioner has tendered his evidence by way of affidavits which are Ex. P1 and P2 respectively as additional affidavit was filed before the Ld. Predecessor and deposed that death certificate of Sh. Balbir Singh is Ex.PW1/1 and Will dated 30.07.93, Ex.PW1/2 is the last Will executed by the testator Balbir Singh and after his death, an application for mutation was filed before the Revenue Assistant and Smt. Premwati and her three daughters had challenged the Will and filed objections in the said mutation proceedings before the Revenue Authorities and an order was passed to adjourn the mutation proceedings sine die till PC No.41/09 Page 7 of 32 the probate is granted and the present petition was filed for the grant of probate.
16. Let us see the crossexamination of PW1 wherein it has been stated in his deposition that his brother Sh. Naurang had died on 18.11.91 leaving behind his widow Smt. Premwati and three daughters, who were brought up by his father and all the daughters were got married by his father and 1/3rd share out of his total agriculture land was given to Smt. Premwati, widow of his deceased brother Naurang.
17. PW1 has further stated in his deposition that Will Ex. PW 1/2 was not executed in his presence and his father could not read or write Hindi or English language and voluntarily stated that his father knew Urdu language but he cannot read and write Urdu language and can only identify the signatures of his father as his father was having bank account and used to put his signature in Urdu but after some time because of his weak eyesight started PC No.41/09 Page 8 of 32 putting thumb impression. PW1 has further stated in his deposition that his father was given an amount of Rs. 50 Lacs in compensation for acquisition of land and out of that an amount of Rs. 12 Lacs was paid to Smt. Premwati by his father and additional sum of Rs. 4 Lacs out of total compensation was paid to Sh. Jagphool Singh (brother) for the marriage of daughter of Naurang Singh as testator was having cordial relation with Smt. Premwati till he died.
18. PW1 has further stated in his deposition that he has no personal knowledge of witnesses to the Will in question and Sh. H.S Mehta, the attesting witness had also appeared before the Tehsildar in the mutation proceedings and denied the suggestion that H.S. Mehta never appeared before Tehsildar as a witness.
19. PW2 has deposed that Will dated 30.07.93 was executed, signed and registered in his presence before SubRegistrar and Balbir Singh had signed the Will in his presence at point A on the first page and at point B on the second page and witness Rattan Lal PC No.41/09 Page 9 of 32 had signed the Will in his presence at point C and put his thumb impression at point D and thereafter he signed the Will as witness at point E.
20. PW2 has stated in his crossexamination, that Balbir was not known to him prior to 30.07.93 and had come to his office alongwith Sh. Rattan Lal and he was not knowing even Rattan Lal the another attesting witness prior to 30.07.93 and they had stayed for about 3 to 4 hours and the Will was written and got registered by him.
21. PW2 was asked specific questions with regard to thumb impression and signatures of testator and witnesses on the first page and back of first page and the relevant portion of cross examination is reproduced herein for the reference:
"Q1. You have identified the thumb impression of Ratan Lal at point H on the basis of signature appearing at point I and point "C and D". What do you say?
Ans. I have identified the thumb impression and PC No.41/09 Page 10 of 32 signature of Sh. Ratan Lal as thumb impression and signature was appended in my presence at the Will. Q2. Can you identify the thumb impression of Ratan Lal from amongst 45 thumb impressions of other including that of Ratan Lal? What do you say?
Ans. No. Q3. Whether you have identified the signatures of Sh. Balbir on account of signature in Urdu appended adjacent to thumb impression?
Ans. No. Q4. Can you identify the thumb impression of Balbir from amongst 45 thumb impression of other including that of Balbir?
Ans. No."
22. PW2 has further stated in his crossexamination that after 30.07.1993 he was never contacted by any person regarding the Will of Late Balbir till November 2010, when the copy of Will was shown to him by Sh.Pradeep, counsel for the petitioners. PW2 has denied the suggestion that he is not an attesting witness to the Will and no such person namely Rattan Lal had signed in his presence as a witness on the Will and further denied the suggestion that Will was not presented in his presence before the SubRegistrar and was fabricated by producing some other person. PC No.41/09 Page 11 of 32
23. PW3, Om Prakash UDC from SubRegistrarII, Janak Puri, Delhi has brought the summoned record pertaining to the Will dt. 30.07.93 registered with SubRegistrar vide registration no. 32995, in book no.3, Volume No. 2014 at page no. 155156 on 30.07.93 and has produced the certified copy of Will which is MarkX. Let us see the crossexamination of PW3, wherein it has been stated that as per record brought by him, there is no identity proof of Balbir Singh S/o. Sh. Ram Chander on record and further stated that as per record no identity proof of Balbir Singh has been mentioned in the record brought by him and the same is the answer with regard to the identity of witnesses on the Will as per the office record brought by him.
24. On the other hand the objector, Premwati has examined herself as RW1 and deposed that her fatherinlaw late Balbir Singh had three sons namely Jagphool Singh and Sh. Satbir Singh Rana and Naurang (her husband died on 18.11.91) leaving behind PC No.41/09 Page 12 of 32 three daughters namely Neelam, Kavita and Kiran and they were brought up by her fatherinlaw and later on marriage of daughters were also solemnized by her fatherinlaw Balbir Singh during his lifetime. RW1 further deposed that Balbir Singh had divided his agriculture and residential property and she was given 1/3rd share and was having cordial relationship with her fatherinlaw (Late Balbir Singh) who had never intended to deprive them from their right in the property and the Will dated 30.07.93 was manufactured and manipulated to grab their share. RW1 has further deposed that Will in question was produced first time after the death of late Balbir Singh before SDM Alipur and is a forged document and was not executed by late Sh. Balbir Singh.
25. Let us see the crossexamination of RW1 wherein it has been stated that Balbir Singh died at her house and was residing with her since 1993 and in the year 199697, a quarrel took place between her, Jagphool and Satbir Rana and a complaint was lodged PC No.41/09 Page 13 of 32 in Police Station and does not have visiting terms with them. RW1 further stated in her deposition that it is correct that in the year 1993, hip joint of late Balbir Singh was broken and her fatherinlaw used to put thumb impression and denied that he used to sign.
26. Before deciding this issue, I have gone through the provision of law pertaining to the Wills.
27. It is a well settled principle of law that Will has to be proved by the propounder. Section 2(h) of Indian Succession Act, 1925 defines Will as meaning "the legal declaration of the intention of the testator with respect to his property, which he desires to be carried into effect after his death". There are three essential factors to a Will:
(i) It must be a legal declaration of the intention of the testator, i.e., the person who makes the Will;
(ii) The declaration of intention must be with respect to the testator's property;
(iii) The documents should express a desire that his intention must be carried into effect after his death.
PC No.41/09 Page 14 of 32
28. 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.
29. 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. This would be so even in those cases where such a plea has not been raised and on proved PC No.41/09 Page 15 of 32 circumstances has given rise to doubt. In such cases also, it is for the propounder to satisfy the conscience of the court and explain the circumstances, which raised the suspicion and it is for those who propound the Will to remove that suspicion. What are suspicious circumstances must invariably be judged in the facts and circumstances of each particular case.
30. The position of law relating to Wills is settled by plethora of decisions. The following points are thus, 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 show by satisfactory evidence that the Will was signed by the testator, that at the relevant point of time the testator was in a sound and disposing state of mind, and that he understood the nature and effect of the disposition when he put his signature to the document out of own free Will.
(3) Generally speaking when the evidence adduced in support of the Will is uninterested and satisfactory Courts would be justified in making the finding in favour of the propounder. The onus upon PC No.41/09 Page 16 of 32 him can be said to have been discharged on proof of these essential facts.
(4) If, however, there are any suspicious circumstances, surrounding the Will, initial onus becomes very heavy.
(5) The propounder of the Will is required to remove the suspicions from the mind of the Court by cogent and satisfactory evidence.
31. The result of the application of above mentioned general and broad principles always depends upon the facts and circumstances of each case and the nature and quality of the evidence adduced by the parties.
32. 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 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 PC No.41/09 Page 17 of 32 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 and also prove that it is the last and genuine testament explaining all such suspicious circumstances alleged to be shrouding it.
33. In terms of Section 68 of Indian Evidence Act, while making attestation, there must be an animus attestandi, on the part of the attesting witness. Thus, it is evident that to constitute a valid Will, the testator or testatrix had to sign the Will and it has to be attested by two witness.
34. 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 PC No.41/09 Page 18 of 32 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.
35. It is elementary to observe that onus to prove the Will is on the propounder and the onus becomes heavier if there are suspicious circumstances. The propounder is under the legal obligation to dispel all the suspicious circumstances by adducing, convincing and cogent evidence. The Hon'ble Supreme Court in H. Venkatchala Iyengar (supra) has held that the propounder must show by satisfactory evidence that the Will was signed by the PC No.41/09 Page 19 of 32 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. 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 PC No.41/09 Page 20 of 32 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. "
36. In the present case, the propounder/petitioners are relying on Will dt. 30.07.93 executed by deceased Balbir Singh. Petitioners have examined only one attesting witness of the Will and nothing has been stated or brought on record to explain away why the other witness have not been examined.
PC No.41/09 Page 21 of 32
37. 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 and that must be done by not only proving that the signature on the Will was that of the testator but that the attestation was also properly made as required by Section 63 (c) of Indian Succession Act.
38. In Madhukar D. Shende Vs. Tarabai Aba Shedag, AIR 2002 SC 637, it has been held that the conscience of the court has to be satisfied by the propounder of the Will adducing evidence so as to dispel any suspicious or unnatural circumstances attaching to a Will and the law of evidence does not permit conjecture of suspicion having the place of legal proof not permit them to demolish a fact otherwise prove by legal and convincing evidence.
39. The propounder has to prove by satisfactory evidence that the Wills was signed by the testator, that the testator at the relevant PC No.41/09 Page 22 of 32 time 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 of his own free Will.
40. It is the case of the petitioners that testator was having normal relation with all his three sons including the widow and daughters of their deceased brother Naurang and the testator had given 1/3rd share in the agriculture land and had also given a sum of Rs. 12 Lacs to the objector Premwati being the widow of his deceased son Naurang out of compensation received from land acquisition and has also spent another sum of Rs. 4 Lacs on the marriage of daughter of objector which clearly shows the relation of the testator was cordial with the objectors which creates shadows of doubt why the testator had chosen to exclude the widow and her daughters at the time of executing the Will with whom he had cordial relationship and had taken all the necessary steps for bringing them up during his life time.
PC No.41/09 Page 23 of 32
41. In the instant matter, it is apparent from the record that PW3, witness from registrar office has brought the certified copy of Will in question which was marked as MarkA and the signature on the Will produced by the petitioners are quite different from the certified copy brought on record by witness from Registrar office. It is pertinent to mention here that on comparing the certified copy of the will dt 30.07.93 brought by witness from Registrar office with the original Will placed on record by the petitioners, there is a lot of differences and deviations in the signature of testator and attesting witnesses on the first front page and second back page of Will, which also creates great suspicion in the mind of the Court. It is well settled that at the time of granting probate the initial onus lies upon the propounder to prove the Will and in case of suspicious circumstances, the onus becomes heavier on the propounder to dispel the said suspicious circumstances.
42. In the present case, there are certain suspicious PC No.41/09 Page 24 of 32 circumstances concerning the execution of the Will which are as follows:
(i) There is a lot of deviation and difference in the signatures and the thumb impressions of the testator as well as attesting witnesses on the original Will Ex.PW1/2 and certified copy of Will Mark 'A" brought by the witness PW3 from the Registrar office.
(ii) Sh. H.S.Mehta, Advocate, one of the attesting witness was neither known to the testator or another attesting witness Rattan Lal prior to the execution of the Will on 30.07.1993.
(iii) It is an admitted fact that the testator was having cordial relations with the objectors and had taken all the necessary steps for taking care of the objectors during his lifetime but no reason has been mentioned in the Will why they were debarred at the time of executing the Will in question.
(iv) Nothing has been stated in this regard why the another attesting witnesses Rattan Lal who had accompanied the testator and known to the testator, was not examined.
43. 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 PC No.41/09 Page 25 of 32 court before granting the probate to the petitioners.
44. The Will in question is surrounded by suspicious circumstances and petitioners/propounder of the Will has miserably failed to explain the same. In a case where the circumstances attendant upon the execution of the Will excite the suspicion of the court, the propounder must remove all legitimate suspicion before the document can be accepted as a genuine and last Will of the testator. The propounder of the Will must remove all suspicious circumstances by cogent evidence which is reliable. The initial burden is on the propounder only and 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.
The presence of suspicious circumstances makes the initial onus heavier and the duty of the propounder of the Will to dispel and explain the suspicious circumstances. In the instant case, when the evidence of witness is scrutinized, it does not prove the genuineness PC No.41/09 Page 26 of 32 of the Will as the Will is shrouded by the suspicious circumstances and such suspicious circumstances have not been dispelled by the propounder of the Will by leading evidence to establish that the Will was a genuine document. Evidence of witnesses are not reliable as the same are shrouded by suspicious circumstances which have not been removed by the propounder.
45. It is well settled that even when it is proved that Will bears the signature of testator as well as of the attesting witness yet the court expects the person propounding the Will to remove all suspicious circumstances which is around the Will and if any genuine, reasonable or bonafide doubt is created regarding the execution of the will or the mental factuality of the testator, a duty is cast upon the propounder to remove the circumstances by placing satisfactory evidence on record and the probate court would require to examine the evidence in support of the Will with great vigilance and scrutiny and the propounder is not entitled to probate unless the PC No.41/09 Page 27 of 32 evidence remove such suspicion.
46. In the present matter there are suspicious circumstances which have also not been cleared by the petitioners. Petitioners have not discharged the onus to prove that the Will is free from suspicion. Reliance has been placed upon the judgment passed by Hon'ble High court of Delhi in case titled Surender Kumar Grover Vs. State & others, 177 (2011) DLT 188.
47. The law is well settled that the conscience of the court must be satisfied that the Will in question was not only executed and attested in the manner required under the Indian Succession Act'1925 but it should also be found that the said Will was the product of the free volition of the executant who had voluntarily executed the same after knowing and understanding the contents of the Will. Therefore, 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 & PC No.41/09 Page 28 of 32 Others Vs. Kartar Kaur & Others, 1998(4) SCC 384.
48. Onus of proving the Will is on the propounder; in the absence of suspicious circumstances surrounding, execution of the Will, proof of testamentary capacity and signature of testator may be sufficient to discharge onus, but in the present case, on perusal of the certified copy of will in question Mark 'A" brought by the witness PW3 from the Registrar office and comparing the same with the original Will dt.30.07.93 placed on recored by the petitioners which is EX PW1/2. It is apparent on the face of it that there is a lot of deviation and difference in the signatures and the thumb impressions of the testator as well as attesting witnesses on the original Will. It is worthwhile to note here that in the certified copy, the signature of the testator are below the thumb impressions on the back of the first page and in the original Will the signatures of the testator are appearing above the thumb impression which raises suspicious circumstances and onus is on the propounder to dispel PC No.41/09 Page 29 of 32 those suspicious circumstances which petitioners have failed to remove from the mind of the court.
49. Thus all these cumulative circumstances taken together sufficiently establish that Will is being shrouded with suspicious circumstances and the onus has not been discharged by the petitioners by leading cogent and reliable evidence. Petitioners have failed to remove those suspicious circumstances and are not entitled for a grant of probate. Accordingly, this issue is decided against the petitioners.
50. ISSUE NO.2: Whether the petition is not maintainable in the present form? (OPO) The onus to prove this issue was on the objectors. The case of the petitioners is that Balbir Singh died on 12.12.07 and his death certificate is Ex.PW1/1 and had executed a Will dated 30.07.93, Ex.PW1/2 during his lifetime in favor of the petitioners and after his death, an application for mutation was filed before the Revenue Assistant, however, Smt. Premwati (Widow of their brother PC No.41/09 Page 30 of 32 Naurang) and her three daughters had challenged the Will and filed objections in the said mutation proceedings before the SDM/Revenue Assistant. It is the case of the petitioners that subsequently, an order was passed by the Revenue authority to adjourn the mutation sine die till the probate is granted and hence, the present petition was filed for the grant of probate and is maintainable in the present form.
51. On the other hand, the objectors / respondents have challenged the Will and raised their objections that Will has been forged and manufactured and not genuine and the present petition is not maintainable in the present form. However, objectors have not led any evidence in this regard to establish that how the present petition is not maintainable in the present form . It is worthwhile to note that no such argument has been even advanced at the time of final arguments in this regard. Pleading is no evidence far less proof.
52. Considering the facts and circumstances of the present PC No.41/09 Page 31 of 32 case, evidence placed on record, it cannot be said that present petition is not maintainable in the present form. Hence, the issue is decided against the objectors and in favour of the petitioners.
53. Relief Considering the facts and circumstances of the present case and the findings given on the abovesaid issues, especially on issue no.1, Will dt. 30.07.93 which is alleged to have been executed by testator Balbir Singh was not duly proved in accordance with law, petitioners have not been able to prove the Will, hence, probate cannot be granted to the petitioners. Accordingly, present petition is hereby dismissed. However, no order as to cost.
54. File be consigned to record room.
Announced in the Open Court (SUNIL RANA)
On this 31.05.13 Addl. District JudgeII(N/W): Rohini
PC No.41/09 Page 32 of 32