Delhi District Court
Smt. Savitri Devi vs The State on 21 May, 2014
IN THE COURT OF SH. SUNIL RANA
ADDITIONAL DISTRICT JUDGEII: ROHINI COURTS: DELHI
PC66/2012.
Unique Code No. 02404C0211262012
1. Smt. Savitri Devi
W/o Sh. Rajender Prakash
2. Sh. Yogender
S/o Sh. Rajender Prakash
Both R/o 79A, Vijay Nagar,
Bawana, Delhi ......Petitioner
Vs.
1. The State
2. Sh. Mahabir
S/o Late Sh. Tara Chand,
R/o. 85A, Vijay Nagar, Delhi.
3. Sh. Dharambir Singh
S/o Late Sh. Tara Chand,
R/o. 85A, Vijay Nagar, Delhi. ...... Respondents
Date of Institution : 16.08.12.
Date on which the case was reserved for order : 21.05.14
Date of Decision : 21.05.14
ORDER
1. By this order, I shall decide the petition u/s 276 of India Succession Act filed by the petitioner for the grant of probate in PC No.66/2012 1/19 respect of the Will dt. 15.10.2001 executed by Smt. Ram Pyari (hereinafter referred to as "testatrix"). It has been stated that petitioner no.1 is the daughter & petitioner no.2 is the maternal grandson of the deceased Ram Payari Devi, who died on 07.11.2010 at Kharkhauda, Haryana, was having a shop no.35, measuring 143.37 sq. ft., ground floor, Balaji Plaza, Local Shopping Complex no.3, Sector8, Rohini, Delhi85 and left behind three LRs i.e petitioner no.1 & two son namely Sh. Mahabir & Dharambir Singh. Hence, the present petition has been filed.
2. Notice of this petition was issued to the State through Collector and to the legal heirs of deceased and citation was also published in the newspaper "Virat Vaibhav" dt. 12.09.2012 and copy of citation was got affixed on the notice board of the Court House for information to the general public, but none had come forward to file any objection in this regard.
PC No.66/2012 2/19
3. Respondent no.1/State was represented through SDM Saraswati Vihar and filed the valuation report dt. 21.05.2013, whereby value of the property i.e shop bearing no. 35, GF, Balaji Plaza, L. S. C 3, Sec8, Rohini, Delhi85 was assessed to Rs.24,41,556/.
4. It is worthwhile to mention here that vide order dt. 05.09.2012 an application U/o 6 rule 17 CPC moved on behalf of the petitioner was allowed and amended petition was taken on record.
5. On 26.09.2013 respondents no. 2, & 3 namely Sh. Mahavir S/o Late Sh. Tara Chand & Sh. Dharambir Singh S/o Late Sh. Tara Chand had given statement and filed their no objection through affidavits Ex. R2/1 and Ex.R3/1 alongwith their identities, which are exhibited as Ex. R2/X & Ex.R3/2 respectively.
6. In order to prove their case, petitioner no.1 has examined herself as PW1 and proved her identity/voter Icard, which is Ex.PW 1/1, death certificate of deceased Ram Pyari is Ex.PW1/2 and Will PC No.66/2012 3/19 dt.15.10.2001 is Ex.PW1/3.
7. PW2, Sh. Yogender Kumar has tendered his evidence by way of affidavit and proved his identity/voter I card, which is Ex.PW 2/1 and testified that he is one of the beneficiary of Will and thereafter, petitioner evidence was closed.
8. I have heard the arguments advanced on behalf of the petitioners and perused the record carefully.
9. It is a well settled principle of law that Will has to be proved by propounder. Section 2(h) of Indian Succession Act, 1925 defines Will as meaning "the legal declaration of the intention of the testator with respect to his property, which he desires to be carried into effect after his death". 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;PC No.66/2012 4/19
(iii) The documents should express a desire that his intention must be carried into effect after his death.
10. It is also well settled principle of law that a person who propounds the Will or produces the Will 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.
11. 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 circumstances has given rise to doubt. In such cases also, it is for the propounder to PC No.66/2012 5/19 satisfy the conscience of the court and explain the circumstances which raised the suspicion of the court 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.
12. 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 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.
PC No.66/2012 6/19
13. 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.
14. 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 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. PC No.66/2012 7/19
15. It is a well settled principle of law that attesting witness has to speak not only about the signature of the testator in his presence but he has also to speak that each of the attesting witness who have signed the Will in presence of the testator. The requirement of law in this respect, as is apparent that two attesting witnesses have to sign the Will in presence of the testator and testator has to either sign the Will in their presence or has to acknowledge to each of them that the Will was signed by him. 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.
16. As per the provision of Section 63 of Indian Succession Act, it has to be proved that the Will has been executed in the presence of two witnesses who in turn, attested the same.
17. Apex Court in H. Venkatchala Iyengar Vs. B.N.Thimmajamma & others, AIR 1959 SC 443, has observed that the mode of proving the PC No.66/2012 8/19 Will ordinarily does not differ from that of proving any other document except as to the special requirement of attestation prescribed by Section 63 of Indian Succession Act. Proof in either case cannot be mathematically precised and certained and so the test should be one of satisfaction of a prudent mind in such matter and onus must be on the propounder and in absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and signature of the testator as required by law may be sufficient to discharge the onus, where, however, there are suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the court before the Will can be accepted as genuine.
18. The Hon'ble Supreme Court in H. Venkatchala Iyengar (supra) has held that the propounder must show by satisfactory evidence that the Will was signed by the testator and he was at the relevant time in a sound disposing state of mind; that he understood the nature and effect of disposition and then put the signature on the document of his own free will. PC No.66/2012 9/19 A constitution bench has reiterated the aforementioned view in the case of Shashi Kumar Banerjee & Others Vs. Subodh Kumar Banerjee AIR 1964 SC 529.
19. 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.
20. In the present matter, the propounder/petitioners are relying on Will dated 15.10.2001 executed by Late Smt. Ram Pyari. Petitioners have not examined any attesting witness of the Will and no evidence has been brought on record to prove the Will in accordance with law.
21. The abovesaid suspicious circumstances raise doubts and PC No.66/2012 10/19 required cogent and satisfactory evidence to explain them to the satisfaction in order to remove the suspicion from the mind of the court before granting the probate to the petitioner.
Section 63 of the Indian Succession Act reads as under: "Every testator, not being a soldier employed in an expedition or engaged in actual warfare, [or an airman so employed] or engaged or a mariner at sea, shall execute his will according to the following rules:
a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
b) The signature or mark of the testator or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.
c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has been some other person sign the will, in the presence and by the direction of the testator, or has received form the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."
22. Therefore, reading Section 68 of the Evidence Act with Section PC No.66/2012 11/19 63(c) of the Indian Succession Act, it is seen that it would be sufficient even if one attestor is examined. But, that attestor should speak to nil the elements of clause (c) of Section 63 of the Succession Act. The attestor witness should also speak not only about the testator's signature or affixing his mark to the Will in his presence and had attested the Will after taking acknowledgment from the testator of the signature or mark, but should also speak that each of the witnesses had signed the Will in the presence of the testator. But unfortunately for the petitioner, this is very much lacking from the evidence of PWs.
23. In the case titled, Gopalakrishnan Pillai Vs. Meenakshi AIR 1967 SC 155, it has been held that Will was attested by two persons but the propounder relied only on the testimony of one of them for proof of the execution and attestation of the Will. On the basis of evidence, hon'ble Supreme Court came to the conclusion that the attestor, who was the witness, did not see the other attestor putting his signature on the Will and thus upheld the High Court view that the propounder failed to prove the PC No.66/2012 12/19 signature of the other attestor of the attestation of the Will by him and on this ground alone it was held that the Will was not proved.
24. 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. If two attesting witnesses have signed in each other's presence, it is not necessary to examine both of them to prove that they had received acknowledgment from the testator. But, if that attestation to the signatures were not made at the same time, it is necessary to prove that both the persons, who put down the attesting signatures on different occasions, had done so on the acknowledgment of the testator. Accordingly, where a Will duly signed by the testator was attested by two witnesses, not in presence of each other but in different times, on the acknowledgment by the testator PC No.66/2012 13/19 of his own signatures, the evidence of one of the attesting witness is not sufficient to prove execution of the Will.
25. 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.
26. In the present case no attesting witness has entered into the witness box to prove the execution of Will dt.15.10.2001. The initial burden is on the propounder only and it is the propounder's duty to prove the Will, its due execution, 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 PC No.66/2012 14/19 circumstances. In the instant case, when the evidence of witness is scrutinized, it does not prove the due execution and Will has not been proved in accordance with law.
27. 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 evidence remove such suspicion.
28. On a combined reading of sec. 63 of the Succession Act with sec. 68 of the Evidence Act, it appears that a person propounding the Will has got to prove that the Will was duly and validly executed. This cannot be PC No.66/2012 15/19 done by simply proving that the signature on the Will was that of teh tastator but it must also be proved that attestations were also made properly as required under section 63 of Indian Succession Act 1925.
It is true that section 68 of the Evidence Act provides a concession and permits examination of one of the attesting witnesses in order to prove the Will, the said witness must be in a position to prove attestation by at least two witnesses in the manner contemplated in clause (c) of sec.63. In other words, the said witness in his evidence has to satisfy the attestation by him and another attesting witness, who also figures as an attesting witness in the Will. Otherwise it would fall short of proof of a Will for the simple reason that the execution of the Will does not merely mean the signing of it by the testator but it means fulfilling and proof of all the formalities required under sec.63 of the Succession Act.
When the execution of the document is so proved, something more is necessary to accept the said document as the last will of the testator, Will is that type of document for the validity of which 'attestation' by PC No.66/2012 16/19 at least two witnesses is necessary. In the matter of attestation and proof an unpriviledged will, sec. 63 of Indian Succession Act sould be read along with sec. 68 of Indian Evidence Act. Section 63 of Indian Succession Act lays down the formalities required by law to be observed in the matter of execution and attestation of a will; whereas sec.68 of Indian Evidence Act deals with the proof of observance of those formalities in accordance with law.
Section 68 of the Evidence Act shows that 'attestation' and 'execution' are two different acts, one following the other. There can be no valid execution of a document which under the law is required to be attested without the proof of its due attestation and if due attestation is also not proved, the fact of execution is of no avail as held in case titled as Kashibai v Parwativai (1995) 6 SCC 213.
29. Hon'ble Supreme Court in the case titled Janki Narayan Bhoir V. Narayan Nanideo Kadam, AIR 2003 SC 761, has held that the Will cannot be proved by simply proving the signature on the Will to be that of the PC No.66/2012 17/19 testator and it must also be proved that the attestations were also made properly as required by Section 63(c) of the Indian Succession Act. Considering the testimonies of PW1 and PW2 who are the petitioners and no attesting witnesses to the Will have testified to prove the Will in accordance with law. Petitioners have failed to prove the proper attestation of the Will as required u/s 63 (c) of the Indian Succession Act.
30. In the instant case, I am of the view that the petitioner has not been able to lead evidence regarding the execution of Will in question in accordance with Section 63(c) of Indian Succession Act nor the petitioner has been able to lead enough evidence to prove the execution and attestation of the Will in accordance with the provision of Section 68 of the Indian Evidence Act. There is no explanation as to why the petitioners have not taken any steps to examine the attesting witness to prove the Will dt.15.10.2001 in accordance with law. Hence, it can be concluded that petitioners have not discharged the onus to prove the Will in accordance with law.
PC No.66/2012 18/19
31. Considering the facts and circumstances of the present matter, evidence placed on record, the settled principle of law, the discussion made above and the precedents on this point, it is clear that so called Will dt.15.10.2001 has not been duly proved by the propounder as is required by law as per the provision of Section 63, 67 and 68 of Indian Evidence Act and in view of the ratio laid down by the hon'ble Supreme Court in the case of H. Venkatchala Iyengar Vs. B.N.Thimmajamma (Supra). Therefore, it can be easily concluded that the Will dt.15.10.2001 has not been proved in accordance with law and probate cannot be granted to the petitioners. Present petition is hereby dismissed and stands disposed of accordingly.
File be consigned to record room.
Announced in the Open Court (SUNIL RANA)
On this 21.05.14 ADJII(N/W) : ROHINI : DELHI
PC No.66/2012 19/19