Delhi District Court
Dr. Kanwal Jeet Singh vs State on 2 December, 2014
IN THE COURT OF AJAY GOEL, ADDITIONAL DISTRICT JUDGE-12
CENTRAL DISTRICT:DELHI
PC-8/10
In the Matter of:
Dr. Kanwal Jeet Singh
s/o late Dr. Praduman Singh,
r/o 12/17, Ground Floor,
Shakti Nagar, Delhi.
.................. Petitioner
VERSUS
State
................ Respondent
Near relatives/LRs of late Dr. Niranjan Kaur:-
1) Sh. Gurinder Jeet Singh
s/o late Dr. Praduman Singh,
r/o 12/17, 1st Floor,
Shakti Nagar, Delhi-7
2) Sh. Amarjit Singh
s/o late Dr. Praduman Singh,
since deceased through his following LRs:-
(a) Mrs. Pawan Singh
d/o Sh. Amarjit Singh
w/o Sh. Joginder Singh
r/o 35/53, Ramjas Road
WEA, Karol Bagh, New Delhi.
(b) Mrs. Kanwal Nain Singh
d/o Sh. Amarjit Singh
w/o Sh. Jasbir Singh
PC-8/10 Page:-1/40
r/o B-30, Ashok Vihar,
Phase-I, New Delhi.
(c) Mrs. Meenu Singh
d/o Sh. Amarjit Singh
w/o Sh. Surinder Singh
r/o B-30, Ashok Vihar,
Phase-I, New Delhi.
(d) Mrs. Anupreet Singh
d/o Sh. Amarjit Singh
w/o Sh. Amarjit Singh
r/o 501, A Block,
Hamilton Court, Gurgaon, Haryana
............... Relations/Respondents
Date of Institution: 20.7.10
Date of Assignment to this court: 10.9.12
Date of Arguments: 21.11.14
Date of Decision: 2.12.14
JUDGMENT
1. Vide this judgment, I shall conscientiously decide the present petition u/s 276 of Indian Succession Act for grant of probate/letter of administration in respect of the estate of deceased Niranjan Kaur wife of late Dr. Praduman Singh, in view of Will dated 24.3.1985. The facts in brief necessary for the disposal of the present case as disclosed in the present petition are that deceased Niranjan Kaur died at Madras on 20.8.1988 leaving behind her last Will and testament dated 24.3.1985 which was executed by her in Delhi. It was stated that the deceased was permanent resident of Delhi at PC-8/10 Page:-2/40 the time of her death and the property to which the probate/letter of administration is sought is situated at Delhi within the jurisdiction of this court. It was accordingly prayed that probate/letter of administration be granted to the petitioner in respect of last Will of the deceased dated 24.3.1985.
2. After the petition was filed notice of the same was issued to the Collector of State and near relations of the deceased besides citation to the general public was directed to be published in the newspaper "Statesman" and also displayed on court notice board.
3. Valuation report was not filed. The publication of the citation was effected in the newspaper " Statesman" on 17.8.10.
4. Respondent no. 2(d) despite putting appearance in the matter did not file objections to the present petition nor appeared later on and was accordingly proceeded vide order dated 10.1.11.
5. Reply to the petition was filed on behalf of relation no. 1 Sh. Gurinderjeet Singh wherein it was stated that Will dated 24.3.1985 was executed by Dr. Niranjan Kaur but it was stated that certain facts have not been disclosed by the petitioner. It was stated that petitioner was serving in the Army whereas his other brother Amarjit Singh was helping Dr. Praduman Singh in PC-8/10 Page:-3/40 the business and was residing on the partly constructed first floor of the property in question whereas Dr. Praduman Singh and his wife and Sh. Gurinder Jeet Singh who was minor at that time were residing on the ground floor of the property. It was stated that after the death of Dr. Praduman Singh a family settlement/arrangement had been arrived at amongst the aforesaid legal heirs of Dr. Praduman Singh whereby it was agreed that the property bearing no. 12/17, Shakti Nagar, Delhi shall come in the share of Dr. Niranjan Kaur and Sh. Gurinderjeet Singh and accordingly Sh. Amarjit Singh moved out of the portion on the first floor of the said house. It was further stated that pursuant to the aforesaid family settlement the sons Amarjit Singh and Kanwaljit Singh had executed a registered relinquishment deed dated 30.12.1969 whereby they had released/relinquished their rights in favour of Dr. Niranjan Kaur and Gurinderjeet Singh. It was stated that during her lifetime Dr. Niranjan Kaur had executed the Will in question on 24.3.1985 whereby she had bequeathed her estate in the manner provided in the said instrument but unfortunately she expired on 20.8.1988 and upon her death half portion of the property in question devolved upon the petitioner as per the Will in question. It was stated that respondent Gurinderjeet Singh by the dint of PC-8/10 Page:-4/40 his hard work raised construction on the first floor of the property in question and it was orally agreed between the petitioner and the respondent Gurinderjeet Singh that the portion above the ground floor i.e. the first floor and its roof rights etc. would be the sole and exclusive property of respondent Gurinderjeet Singh whereas ground floor alongwith the basement rights would be with the petitioner, however for the best reasons known to the petitioner the said vital fact has not been mentioned by the petitioner in the present petition and only for the said reason respondent Gurinderjeet Singh filed the present reply/objection to the present petition.
6. Objections to the present petition were filed on behalf of respondents/LRs of Amarjeet Singh no. 2(a)(b) and (c) wherein it was stated that petitioner has concealed the material facts from th court and has committed an offence of forgery by forging and fabricating the Will dated 24.3.1985. It was stated that no Will was every executed by the grandmother of the objectors and all the legal heirs of deceased Niranjan Kaur are entitled for 1/3rd share in the property in question. It was stated that there is no occasion for Smt. Niranjan Kaur to execute any Will at the relevant time as she was seriously ill at that point of time and was not in sound disposing PC-8/10 Page:-5/40 mind on account of her illness. It was stated that Will in question is full of suspicions circumstances as the same has seen the light of the day only in the present proceedings which were filed after a gap of 26 years whereas the deceased expired way back in 1988. It was also stated that Smt. Niranjan Kaur had no right or title in the suit property to execute the alleged Will with respect to the suit property in question as she had just inherited the same with other legal heirs and the property was self acquired property of her husband. It was stated that even no relinquishment deed was ever signed or was done by late Sh. Amarjit Singh father of respondents in favour of his mother as stated in the contents of the alleged Will in question. It was also stated that false witnesses have been procured by the petitioner in conspiracy to grab the property in question and plaint reading of the Will shows that the full particulars of the attesting witnesses have not been mentioned and it is incomplete. The witnesses as stated have never seen signing or met late Smt. Niranjan Kaur.
7. Reply/rejoinder to objections of objectors no. 2(a)(b) and ( c) was filed on behalf of the petitioner in which contents of the petition were reiterated and those of the objections were denied.
8. Separate reply/rejoinder to reply of Gurinderjeet Singh was filed in which PC-8/10 Page:-6/40 contents of the petition were reiterated and it was stated that petitioner has not concealed any fact from the court. It was stated that Sh. Gurinderjeet Singh has not raised any objection against the Will and accordingly it was prayed that the present petition be allowed.
9. Vide order dated 3.10.11 from the pleadings of parties, the following issues were framed:-
1) Whether the petition filed on behalf of the petitioner is barred by limitation ?Onus on parties
2) Whether the Will dated 24.3.1985 by Smt. Niranjan Kaur is forged and fabricated?OPD
3) Whether the petitioner have not come to the court with clean hands and has suppressed material facts?OPD
4) Whether the Will dated 24.3.1985 is duly executed Will of Smt. Niranjan Kaur with sound state of mind and health?OPP
5) Relief.
10.In evidence in support of his case, petitioner produced himself as PW-1 , Sh. S.N. Verma as PW-2, Sh. Subhash Chander Lamba as PW-3, PW-4 Dr. Rajesh Gupta. PW-1 petitioner reiterated his case as set out in the petition and relied upon death certificate of Niranjan Kaur Ex. PW-1/1, Will dated 24.3.1985 Ex. PW-1/2, one letter addressed to testator dated 6.12.1985 Ex. PW-1/3, receipt dated 10.2.1985 Ex. PW-1/4, passport of deceased Ex. PW-1/5, subscription voucher of gas connection was Ex.
PC-8/10 Page:-7/40 PW-1/6, registration certificate dated 2.5.1988 Ex. PW-1/7.
11.In defence objectors examined Smt. Meenu Singh @ Merlin Kaur as DW-1 and Sh. Syeed Faisal Huda, Handwriting Expert as DW-2. DW-1 reiterated her case as set out in the objections. DW-2 placed reliance upon his report Ex. DW-2/1.
12.I have heard Ld. Counsel for the parties who have vehemently argued the matter for quite sometime and perused the entire record including the pleadings and documents as also oral testimony of the witnesses adduced during trial.
13.I have given a thoughtful consideration to the same. My issuewise determination is as under:-
14.It is argued on behalf of the petitioner that petitioner has been able to prove on record the genuineness and validity of said Will and has been able to dispel all the suspicions circumstances shrouding the said Will. It was submitted that objectors have not been able to prove anything on record so as to dislodge the Will in question. It was argued that the Will in question is valid and last testamentary document of the testator made in sound disposing mind which has been duly proved by the attesting witness PW-2 Sh. S.N. Verma who has categorically stated that deceased Niranjan PC-8/10 Page:-8/40 Kaur had signed the present Will in his presence and he was the attesting witness to the same. He also categorically stated that Smt. Niranjan Kuar was not suffering from any ailment at the time of execution of the Will in question and by virtue of said Will late Smt. Niranjan Kaur with her own wish and free will bequeathed her share in property 12/17, Shakti Nagar, Delhi in the name of her son Sh. Kanwaljeet Singh. It was stated that PW-4 Dr. Rajesh Gupta has categorically deposed before the court that Dr. Niranjan Kaur remained in good mental and physical health during the entire period she remained under his treatment from the period 1984 till 1988. On the other hand Cl. for objector argued that the the Will dated 24.3.1985 is a forged and fabricated document which has been proved by the evidence of handwriting expert DW-2 Sh. Faisal Huda. It has been further argued that the Will in question is shrouded with heavy suspicion since the probate petition for the same has been filed after a gap of 26 years after the death of the testator. It was also argued that there are inconsistency in deposition of the witnesses and even the attesting witness Sh. S.N. Verma was known to the petitioner who is beneficiary of the Will in question and hence the said points raise heavy doubt on the execution of the Will in question. It was also stated that since the petition has not been PC-8/10 Page:-9/40 verified by one of the attesting witnesses to the Will hence the petition is not maintainable. Ld. Cl. for the respondent/objectors has virtually taken a tour of all statutory provisions of the Indian Succession Act, including section 2(h), section 63, section 276, 280 and 281. In addition to the aforesaid, reliance has been placed on various judgments of the Hon'ble Apex Court which shall also be discussed in the forthcoming paragraphs while discussing the aforesaid aspects.
15. Issue no. 1:- Whether the petition filed on behalf of the petitioner is barred by limitation ?Onus on parties It is argued on behalf of the objectors that the Will in question has seen the light of the day only when the present petition was filed which was after 26 years of death of the testator and hence the present petition is barred by limitation. On the other hand it was submitted on behalf of the petitioner that during cross examination petitioner clearly stated that on 1.7.10 the Will in question was discovered by him and since the present petition was filed in July,2010, hence there was no inordinate delay in filing the petition from the date of knowledge of the petitioner. It is also submitted on behalf of petitioner that there is no limitation prescribed for filing of probate petition. Nothing has been produced by the objectors to PC-8/10 Page:-10/40 show that the Will in question was in knowledge of the petitioner prior to 1.7.10 and even otherwise there is no limitation prescribed for filing a probate petition and reliance is placed further upon AIR 2008 SC 2058(1) Kunvarjeet Singh Khandpur Vs. Kirandeep Kaur and Ors. wherein it was held by Hon'ble Supreme Court that " In an application for grant of probate applicant merely seeks recognition from the court to perform a duty and because of the nature of the proceedings it is a continuing right which can be exercised any time after the death of the deceased as long as the right to do so survives and the object of the trust exists or any part of the trust, if created, remains to be executed." Accordingly, in view of the above, since in the present case probate has been sought by the petitioner and when there was no previous disputes between the parties and the Will in question came into the knowledge of the petitioner only on 1.7.10, it was the prerogative of the petitioner to decide when to exercise his right which is continuing in nature and can be exercised anytime after the death of the testator and can be exercised as long as it survives. There is no limitation prescribed for filing the probate petition. Hence, present petition is held to be within limitation and this issue is decided against the objectors and in favour of the petitioner.
PC-8/10 Page:-11/40
16. Issue no. 2,3 &4 :- Whether the Will dated 24.3.1985 by Smt.
Niranjan Kaur is forged and fabricated?OPD &
Whether the petitioner have not come to the court with clean hands and has suppressed material facts?OPD & Whether the Will dated 24.3.1985 is duly executed Will of Smt. Niranjan Kaur with sound state of mind and health?OPP :-
All these issues are taken up together being interconnected. Before proceeding to decide these issue, I would like to discuss the relevant law and judgments on this point. Issue no. 3 being pertinent to all the probate cases in which a Will is set up either for grant of probate or for grant of letters of administration with Will annexed, is pivotal to the entire controversy. It may be seen that, first and foremost a Will is a legal declaration of the intention of the testator whereby which the testator desires to bequest his/her property after his/her death and as such the same carry the last intentions of the testator to be carried out after his/her death. Further more, it is pertinent to mention that Will is the only document in law which is required to be proved after the death of its author and the law provides a specific procedure for the same.
PC-8/10 Page:-12/40
17.Section 278 of Succession Act 1925 deals with petition for grant of letter of administration while the effect of letter of administration has been given in Section 220 of the Act which lays down that the grant of letter of administration entitles the administrator to all the rights belonging to intestate as effectual if the administrator had been granted at the moment after death. It is further settled preposition of law that grant of letter of administration does not create any title but is only declaratory existing in the LRs of the deceased.
18.Section 2(h) of the Indian Succession Act 1925 describes the Will to be a legal declaration of the intention of the testator with respect to his property, which he desires to be carried into effect after his death and as such Will is the only document, which becomes executable after the death of its executor. The person, who produces the Will before the Court or propounds the same and wants the court to rely thereupon, has to prove that:-
1) Will in question is a legal declaration of the intention of the deceased.
2) The testator, while executing the will, was in a sound and disposing state of mind.
PC-8/10 Page:-13/40
3) The testator has executed the Will of his own free; meaning thereby that he was free from all sorts of influence coercion, fear or force when it was executed.
Reliance placed on AIR 1989 Gujarat 75(DB) titled as Vijaya Ben Vashram Vs. State of Gujrat. It is further a settled proposition of the law that no specific format of the Will or specific form of attestation is required. Reliance placed on AIR 1998 Madhya Pradesh 1 titled as Ku. Chandan & Anr. Vs. Longa Bai& Anr."
19.Section 63 of the Act of 1925 has three several requirements as regards the execution of Will viz.
"(a) the testator shall sign affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.
(c ) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of PC-8/10 Page:-14/40 his signatures of such other person; and each of the witnesses shall sign the Will in the presence of the testator but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."
20.Section 68 of Indian Evidence Act, 1872 lays down that if a document is required by law to be attested and the attesting witness is alive and subject to the process of the court capable of giving evidence, must be called to prove its execution. Execution consists of signing a document read out, read over and understood and to go through the formalities necessary for validity for a legal act.
21. So, a document has to be proved as per the Evidence Act, particularly in terms of Chapter-V starting with Section 61 and Section 68 of Indian Evidence Act being relevant. However, in this context Section 63 of Indian Succession Act gives an exception which requires as to how a Will is to be executed and proved. Section 63 (c) of the Indian Succession Act requires atleast two attesting witnesses as a mandatory condition, the witness may be more than two but not less than two. The non-compliance with the requirement of the attestation in respect of the Will, which is otherwise valid and is perfectly enforceable document, under the provision of Section 63 PC-8/10 Page:-15/40 Sub-Section (c) of the Indian Succession Act, 1925, renders the testamentary document, of no effect. Will is a document required by law to be attested, and if the standard of proof as envisaged by Section 68 of the Evidence Act, 1872 and Section 63(3) of the Act falls short of legal requirement, a will which is neither registered, nor proved to be attested and executed in accordance with law, cannot be taken into consideration for purpose of establishing claim of the legatee, reference can be made to Mst. Gullan Devi Vs. Mst. Punu @ Puran Devi & Ors. AIR 1989 J&K 51.
22. In nutshell, the propounder of the Will is required to prove not only the ingredients discussed about but also to take away suspicious circumstances if any, surrounding the Will, to the satisfaction of the conscience of the Court. Further it is pertinent to mention that probate of a Will can be granted only where the testator appoints an executor of the Will and in terms of the Section 222, 234 & 276(e) in other cases only letters of administration with Will annexed can be given.
23. The decisive aspect is to ascertain as to whether the Will is genuine and duly executed Will of testator so as to say that it was executed by him in disposing mind out of his own free will and without any force, coercion or fraud and the petitioner was required to dispel all circumstances which are PC-8/10 Page:-16/40 casting doubt on the execution of Will without any force, coercion or fraud.
24. It is further a settled provision of law that a court acting under the Indian Succession Act for grant of probate, acts as a court of conscience and the jurisdiction of such court is limited only to consider the genuineness of the Will and the question of title or share in the property cannot be gone into by the probate court. The probate court does not decide the question of title or of existence of property itself and any construction relating to right, title and interest to any other person is beyond the domain of the probate court. Reliance is placed on 2008(4)SCC 300 Kirshan Kumar Vs. Rajinder Singh Lohra & Ors..
25. It is further pertinent to point out that for obtaining the probate the petitioner is not only required to prove the execution of the subject Will but is also required to weed out any circumstances surrounding the subject Will which may be lead to a possible suspicion challenging the valid execution of the Will. Reliance placed on AIR 1930 PC 24 title Vella Swamy Servai Vs L. Shivaraman Servai.
26.The intention in the Will are to be ascertained by all possible and available circumstances. In this context reference can be made to the judgment in Anil Kak Vs. Kumari Sharada Raje and others (2008) 7 Supreme Court PC-8/10 Page:-17/40 Cases 695, wherein it has been observed as under:
"37.-The testator's intention is collected from a consideration of the whole will and not from a part of it. If two parts of the same will are wholly irreconcilable, the court of law would not be in a position to come to a finding that the Will dated 4.11.1992 could be given effect to irrespective of the appendices. In construing a Will, no doubt all possible contingencies are required to be taken into consideration. Even if a part is invalid, the entire document need not be invalidated, only if it forms a severable part.
In Halsbury's Laws of England, 4th Edn. Vol. 50p. 239, it has been observed as under:
"Leading principle of construction- The only principle of construction which is applicable without qualification to all wills and overrides every other rule of construction, is that the Testator's intention is collected from a consideration of the whole will taken in connection with any evidence properly admissible, and the meaning of the will and of every part of it is determined according to that intention."
Similarly, in (1971) 1 MLJ 127 P. Manavala Chetty V. P. Ramanujan Chetty, it has been further held as under:
"9..... It is the obvious duty of the Court to ascertain and given effect to PC-8/10 Page:-18/40 the true intention of the Testator and also avoid any construction of the Will which will defeat or frustrate or bring about a situation which is directly contrary to the intentions of the Testator. At the same time, it must be borne in mind that there are obvious limits to this doctrine that the court should try to ascertain and give effect to the intentions of the testator. The law requires a will to be in writing and it cannot, consistently with this doctrine, permit parol evidence or evidence of collateral circumstances to be adduced to contradict or add to or vary the contents of such a will. No evidence, however, powerful it may be, can be given in a court of construction in order to complete an incomplete Will, or project back a valid will, if the terms and conditions of the written will are useless and ineffective to amount to a valid bequest, or to prove any intention or wish of the testator not found in the Will. The testator's declaration or evidence of collateral circumstances cannot control the operation of the clear provisions of the Will. The provisions of the Succession Act referred to earlier indicate the limits of the court's power to take note of the testator's declaration and the surroundings circumstances i.e. evidence of collateral circumstances."
27.In a full bench judgment of the Hon'ble Apex Court reported in (1959)Supp.
PC-8/10 Page:-19/40 1 SCR 426 titled as H. Venkatachala Iyengar Vs. B.N. Thimmajamma & others AIR 1959 SC 443, the Hon'ble Apex Court has discussed the entire gamut of law relating to the discharge of the onus of proving the Will while dwelling into Sections 45,47,67 & 68 of Indian Evidence Act,1872 and sections 59 & 63 of the 1925 Act and observed as follows:
"It is well known that the proof of Wills presents a recurring topic for decision in Courts and there are a large number of judicial pronouncements on the subject. The party propounding a Will or otherwise making a claim under a Will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern of documents. Section 67 and 68 of the Evidence Act are relevant for the purpose. Under S. 67, if a document is alleged to be signed by any person, the signatures of the said person must be proved to be in his handwriting, and for proving such a handwriting under SS. 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the PC-8/10 Page:-20/40 purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, SS 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this Section indicate what is meant by the expression 'a person of sound mind' in the context. Section 63 requires that the testator shall sign or affix his mark to the ill or it shall be signed by some other person in his presence and by his direction and that the signatures or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a Will. This Section also requires that the will shall be attested by two or more witnesses as prescribed. Thus, the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the Will? Did he understand the nature and effect of the deposition in the Will? Did he put his signatures to the Will knowing what is contained? State broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the PC-8/10 Page:-21/40 Will has to be proved like any other document except as to the special requirements of attestation prescribed by S. 63 of the India Succession Act. As in the case of proof of other document so in the case of proof of Wills it would be idle to except proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind of such matters." In this context, reference may also be made to a decision in Seth Beni Chand Vs. Smt. Kamla Kunwar and others, (1977)1 SCR
578.
28. The Hon'ble Court has thus held that propounder of the Will is required to be called upon by the court to show satisfactory evidence that the propounded Will was signed by the testator and that the testator at the relevant time was in a sound and disposing state of mind and that he has understood the nature and effect of the dispositions and has then put his signatures to the document of his own freewill. It has been further held that:
"Ordinarily when the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated."
29. The Hon'ble Apex Court has further discussed the circumstances, which PC-8/10 Page:-22/40 may be termed as suspicious circumstances surrounding the Will and held that there may be circumstances where the signatures of the testator may be shaky, doubtful or the condition of testator's mind may appear to be feeble and debilitated so as to raise a legitimate doubt as to mental capacity of the testator to the extent that the dispositions made in the Will may appear to be unnatural, improbable or unfair or the Will may indicate that the same may not be result of testator's free mind or will and in as such circumstances, the onus upon the propounder is held to be comparatively heavy. The Hon'ble Court has succinctly held that:
" It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the Will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the Will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter."
30. It has been further held that an active participation of the propounder or PC-8/10 Page:-23/40 the fact that the propounder has taken a prominent part in the execution of the Will and that he has also received substantial benefit under it, itself is generally treated as a suspicious circumstance which is required to be eliminated by the propounder by way of a clear and satisfactory evidence.
31.The ratio of H. Venkatachala Iyengar's case(supra) was later relied upon by the Hon'ble Apex Court in Shashi Kumar Banerjee Vs Subodh Kumar Banerjee, AIR 1964 SC 529 and other similar cases and was finally analysed by the Hon'ble Apex Court in Jaswant Kaur Vs. Amrit Kaur (1977) 1 SCC 369 wherein, the Hon'ble Court has called out various prepositions as:-
".....1) Stated generally, a Will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty.
2) Since Section 63 of the Succession Act requires a Will to be attested, it cannot be used as PC-8/10 Page:-24/40 evidence until, it cannot be used as evidence until, as required by section 68 of the Evidence Act, one attesting witness at least has been called for the purpose of proving its execution, if there by an attesting witness alive, and subject to the process of the court and capable of giving evidence.
3) Unlike other documents, the Will speaks from the death of the testator and therefore the maker of the Will is never available for deposing as to the circumstances in which the Will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last Will and testament of the testator.
Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the Will.
PC-8/10 Page:-25/40
4) Cases in which the execution of the Will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, and unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the Will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the Will. That suspicion cannot be removed by the mere assertion of the propounder that the Will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the Will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testaor might have PC-8/10 Page:-26/40 had his own reason, for excluding them.
The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the Will excite the suspicion of the Court, the propounder must remove all legitimate suspicions before the document can be accepted as the last Will of the testator.
5) It is in connection with Wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the Court is the last Will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the PC-8/10 Page:-27/40 court has to be satisfied fully that the Will has been validly executed by the testator.
6) If a caveator alleges fraud, undue influence, coercion, etc. in regard to the execution of the Will, such pleas have to be proved by him but even in the absence of such pleas, the very circumstance surrounding the execution of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter.........."
32. In Uma Devi Nambiar Vs. T.C. Sidhan, III(2004) SLT 754, the division bench of the Hon'ble Supreme Court has further held that a Will is generally executed to alter the ordinary mode of succession and by the very nature of things, it is bound to result in either reducing or depriving the share of natural heirs. If a person intends his property to pass to his natural heirs, there isno necessity at all of executing a Will. It is true that a PC-8/10 Page:-28/40 propounder of the Will has to remove all suspicious circumstances. Suspicion means doubt, conjecture or mistrust. But the fact that natural heirs have either been excluded or a lesser share has been given to them, (by itself without anything more), cannot be held to be a suspicious circumstance especially in a case where the bequest has been made in favour of an offspring only and the suspicious circumstance must not be illusory or mere fantasy of the doubting mind but has to be real, germane and valid.
33. It has been further a settled preposition of law that mere circumstances of the deprivation of natural heirs should not raise any suspicion because the whole idea behind execution of Will is to interfere with the normal line of succession and so, natural heirs would be debarred in every case of the Will. Reliance placed on Pentakota Satyanarayana Vs. Pentakota Seetharatnam VII (2005) SLT 423.
34.The independence and exercise of the free Will is one of the attributes of the human being and existence, subject to of-course the reasonable restrictions imposed by the civilized society in various form i.e. statutory, customary, moral, social etc. The exercise of right by an individual in the property owned by him or her is one such characteristic of the property PC-8/10 Page:-29/40 given to its owner having considerable freedom to the extent of absolute to do whatever one wants to do with the property in question. This freedom is one of the very vital attributes of ownership of the property rather the sole most important one. In this context, the property, being subject matter of one's discretion to use, subject to the reasonable restriction has been brought into the domain of testamentary document. Thus, the Will is nothing but manifestation of the concept of ownership of property and its attributes wherein the owner of the property expresses his/ her wish to dispose off or transfer the property in favour of the entity chosen by him and that seems to be reason why no specific proforma or format of the Will is prescribed anywhere. The requirement of valid Will is that it should be the last testamentary document of the testator, made in sound disposing mind in presence of two attesting witnesses and free from any kind of force, theft or coercion etc.
35. In case of any confusion or mix up and even otherwise, at times, the documents have to be read thread bare in between the lines so as to ascertain as to what exactly is being conveyed based upon the intentions of the writer of the document subject to the condition that sufficient indications are there in the document itself and the attending circumstances also PC-8/10 Page:-30/40 contribute and indicates towards the particular inference cumulatively and collectively.
36. Having discussed above, now I have to see whether in the present case the above principles have been duly made out or not. As far as the ingredient whether the testator was in sound disposing mind at the relevant time of execution of the Will is concerned, objectors have taken the objection that the deceased was not in sound state of mind at the time of execution of the Will in question. No documentary evidence is produced on record by the objectors to show the medical condition of the deceased. Rather during cross examination DW-1 Meenu Kaur though stated that she could not tell from which year her grand mother was suffering from heart ailment and volunteered that she died due to heart disease but she admitted that her grand mother was attending her clinic during the subsistence of heart problem and she was general physician. The abovesaid admission on the part of objector/DW-1 herself shows that the testator was suffering only from heart problem and despite suffering with heart problem testator was doing her practice as Doctor. Even if the testator was suffering from heat problem then again no documentary evidence is on record to show that the heart problem was of such intensity PC-8/10 Page:-31/40 which could have affected the cognitive faculties of the testator rather the above admission on the part of DW-1 shows that the cognitive faculties of the testator were intact during the relevant time of execution of Will since she was practicing as Doctor. Besides that, petitioner has produced PW-4 Dr. Rajesh Gupta who categorically deposed that he knew Smt. Niranjan Kaur since 1984 being from same profession and she used to visit his clinic for minor ailment but when she suffered heart problem in 1986 thereafter he was treating her and even advised and accompanied her to Apollo Hospital, Madras where she underwent by pass surgery and thereafter expired. PW-4 has categorically stated that it is well within his knowledge that Dr. Niranjan Kaur remained in good mental and physical health during the entire period she remained under his treatment from period 1984 till 1988 and she possessed sound state of mind and active in her day to day activities. No dent could be created in the testimony of PW-4. Even PW-1 in his examination exhibited certain documents Ex. PW-1/3, Ex. PW-1/4, Ex. PW-1/5, Ex. PW-1/6, Ex. PW-1/7 to show that the said transactions were carried out by the testator during the relevant period of execution of Will. Except for the bald assertion of objector, there is nothing on record to show that testator was not in good mental state at PC-8/10 Page:-32/40 the relevant time. Even otherwise, Will in question is dated 24.3.85 whereas the testator died on 20.8.88 i.e. after 3 ½ years and hence it can easily be presumed that testator was in good health since it has come on record that she was even practicing as Doctor and running her clinic. Hence objection of the objector does not hold any ground either in law or facts and is rejected and it is held that testator was not suffering from any disease at the relevant time of execution of the Will which would have effected her cognitive faculties.
37. Now I will deal with the question of valid execution of the Will. There are two attesting witnesses in the Will in question i.e. Sh. S.N. Verma and Sh. Subhash Lamba who have been examined as PW-2 and PW-3. It is argued by Cl. for objector vide written synopsis filed on their behalf that one witness says that no one was present in room when the Will was signed by the testator whereas second witness deposed that he does not remember if any other witness was present nor he recognised the witness who came to the court at the same time in the court. I have perused the statements of both the witnesses. PW-2 S.N. Verma during cross examination though stated that Smt. Niranjan Kaur called him at her clinic and he reached alone and was alone with the testator in her clinic but PC-8/10 Page:-33/40 during later part of the cross examination the said witness very well clarified that Mr. Subhash Lamba also came in his presence and signed the Will in his presence. Even PW-3 during cross examination categorically stated that they were three persons on 24.3.85 on the date of execution of Will i.e. he, executant and one Mr. Verma. Both the witnesses have given corroborated statement to the effect that the they both and the testator was present at her clinic where the Will in question was executed and I do not find any contradiction in the same. Even otherwise if there are no vital or major contradictions in the statements of attesting witnesses and only minor contradictions exist then the same are to be ignored if statements of the attesting witnesses satisfy the major ingredients of proving valid execution of the Will i.e. signing the Will in question in each other's presence. Accordingly the objection raised by the objectors is unfounded and is held not tenable.
38. Another suspicious circumstances argued by the objectors is that the petitioner has moved to the Court after 26 years of death of testator, hence there is doubt on the veracity of the Will. It is already observed while deciding the issue no. 1 that there is nothing on record to show that there was any previous disputes between the parties and when the Will in PC-8/10 Page:-34/40 question came into the knowledge of the petitioner only on 1.7.10 then it was the prerogative of the petitioner to decide when to exercise his right which is continuing in nature. Moreover, there is no need of any probate in Delhi and usually, the party may not approach the Court unless there is threat to their right and possibly the petitioner might not have approached the Court earlier for this reason and thus the Will cannot be discarded only on this ground. The said objection of objector is accordingly discarded and no suspicious circumstance can be attributed to it.
39. The objectors have objected to the signatures of testator on the Will in question and it is argued that Will in question does not bear the signatures of the testator which fact has been duly proved by the examination of DW-2 handwriting expert. Vide report Ex. DW-2/1 handwriting expert had opined that the disputed signatures and comparative signatures differ. On the other hand it is argued by Cl. for petitioner that the photographs of comparative signatures were taken from the photocopies of the said documents whereas originals of the same were available with the petitioner and the photographs could have been taken from them. DW-2 during cross examination admitted that the photographs of comparative signatures were taken from the photocopies of the documents and it was stated that is not PC-8/10 Page:-35/40 necessary to take original specimen for comparing with questioned handwriting. However it is definitely a point of consideration that when originals of the documents were available then why the handwriting expert preferred to take specimen from the photocopies and why the same were not taken from the original documents. Hence, the said questions remained unanswered on record and hence the opinion of the expert cannot be relied upon. Even otherwise, when once the Will has already been well proved to be validly executed not only by the propounder but by the attesting witnesses then the said objection of the objectors is rejected being unsustainable.
40. Further, it was also argued by Cl. for objectors that PW-1 petitioner in his cross examination had admitted that SN Verma is his Chartered Accountant and known to him and hence it give rise to suspicious circumstance since the attesting witness to the Will was known to the beneficiary. Though it is correct that petitioner admitted that Sh. S.N. Verma was his CA but PW-2 during his cross examination had categorically stated that he was filing the income tax returns of Dr. Niranjan Kuar and her sons namely Major Kawaljeet Singh, Gurinder Jeet Singh and late Sh. Amarjeet Singh meaning thereby it is not the case here that PW-2 S.N. Verma was only PC-8/10 Page:-36/40 known to the petitioner and not to the testator or he was known to the testator only through petitioner. In the present case Sh. S.N. Verma was common Chartered Accountant to the testator Niranjan Kaur and her sons Major Kawaljeet Singh, Gurinder Jeet Singh and Amarjeet Singh and when he was known to entire family and was working for all three sons of the testator then there exist nothing suspicious and unnatural if the testator wished him to be one of the attesting witness to the Will in question. Rather if Sh. S.N. Verma has been made a attesting witness to the Will in question where beneficiaries were two sons of the testator and one son was excluded who was also known to him then it gives more credibility to the Will in question. Further, it was argued by Cl. for objectors that there are no reasons given in the Will in question for debarment of Sh. Amarjeet Singh and that creates a suspicious circumstance. However during cross examination of PW-2 Sh. S.N. Verma suggestion was given to him by the Cl. for objector himself that Sh. Amarjeet Singh was step son of testator Niranjan Kaur. When admittedly Sh. Amarjeet Singh was step son of the testator then it is obvious for any woman to distribute her estate among her children only and it is very unlikely that she would choose her step son over her real children. Hence debarment of late Sh. Amarjeet Singh from PC-8/10 Page:-37/40 the estate of testator is rather natural than being called unnatural and accordingly said objection of the objector is hereby rejected.
41.It is also argued that the instant petition has not been signed by any of the attesting witnesses to the Will and hence the petition is liable to be rejected on this ground. Petitioner has argued that if one the attesting witness comes and deposes before the court that he has seen testator executing the Will in question then reqrement of Section 281 stands satisfied. Though it is correct that the petition has not been verified by one of the attesting witnessses of the Will but in the present case both the attesting witnesses in their affidavits of evidence have verified the contents of the petition. Even otherwise, reliance is placed upon Nand Kishore Rai and Another Vs. Mst. Bhagi Kuer and others and 2013 Legal Eagle(DHC) 3 Associated Traders & Engineers Pvt. Ltd. Vs. Life Insurance Corportion wherein interalia it was held that "provision about verification is directory and not mandatory and denial of probate on that ground is bad." Hence, in view the above, present petition is held maintainable and the said objection of the objector is hereby rejected. The Will in question even otherwise is a detailed Will wherein complete elaboration of the facts, immovable properties and movable properties like PC-8/10 Page:-38/40 FDRs finds mention which rather shows the conscious state of mind of testator and give force to its genuiness. Further the execution of the subject Will has been duly proved in terms of the provisions of Section 63(C ) of Indian Succession Act and Section 68 of Indian Evidence Act and it is settled preposition of law that once these formalities are completed, a probate court is required to accept the will. Reliance is placed on 2009(11) SCC 1 titled Rup Singh Vs Bachan Kaur. Accordingly, the Will dated 24.3.1985 has been proved to be executed by deceased in sound disposing mind of his own free will and in view of testimony of PWs the same is held to be the last testamentary disposition of deceased Niranjan Kaur. In view of the aforesaid discussion and findings as also determination of the court as issue no. 2, 3 and 4, the court holds that the subject Will has been proved in accordance with law and the same is not forged and fabricated. Nothing has come on record which shows that there is any concealment facts by the petitioner. There is no legal impediment for allowing the petition of the petitioner. Perusal of Will in question shows that executor had been appointed in the Will in question, hence case in favour of petitioner is made out for grant of probate. Accordingly these issues are decided in favour of the petitioner and against the respondents/objectors.
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42. Relief:- In view of the above finding, the petition is allowed. Letter of administration be issued in favour of petitioner in respect of estate of deceased Niranjan Kaur i.e. half share in immovable property bearing no. 12/17, Shakti Nagar, Delhi and movable properties as detailed in Will dated 24.3.1985 Ex. PW-1/2. It be accordingly granted after completion of required formalities in this context i.e. filing of requisite court fee, administration bond alongwith one surety bond of the amount of valuation in accordance with law. This file be consigned to record room.
Announced in open court (Ajay Goel) on 2.12.14 ADJ-12(Central)/Delhi PC-8/10 Page:-40/40