Delhi High Court
Ashok Baury vs State on 13 March, 2021
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 15th January, 2021.
13th March, 2021.
+ TEST.CAS. 11/2018
ASHOK BAURY ...Petitioner
Through: Mr. Prosenjeet Banerjee and
Ms. Shreya Singhal, Advs.
versus
STATE .....Respondent
Through : Mr. Atul Gupta and Mr. Jayant
Mehta, Advs.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
[VIA VIDEO CONFERENCING]
IA No.3621/2020 (under Order XIV Rule 5 of the CPC).
1. Finding this application, though titled as under Order XIV Rule 5 of
the Code of Civil Procedure, 1908 (CPC), to in effect seeking review of my
order dated 25th November, 2019, the Roster Bench has directed this
application to be placed before me.
2. Vide order dated 25th November, 2019, inter alia issues were framed
in the Test. Cas.11/2018, with issue no.(ii) being "Whether the deceased
Bhagwanti Devi, on 5th May, 1983, was not of sound disposing state of
mind and thus the document even if executed by her, is not her Will? OP
(Relatives 10,11&12)" and the contention of the senior counsel for the
Relation no.10 Arun Sood that the onus of the said issue should be on the
petitioner, was rejected reasoning that it is for the person disputing the
soundness of mind to establish the same, with the petitioner having a right
TEST.CAS. 11/2018 Page 1 of 12
of rebuttal; else, the presumption is, of soundness of mind of a living
person.
3. The Relation no.10 Arun Sood has filed this application pleading that
(a) he had preferred a SLP(C) No.5603-04/2020 challenging the order dated
25th November, 2019, to the extent placing the onus of issue no.(ii) on him
and which SLP was disposed of with liberty to him to make a formal
application and request this Court to reformulate the issue no.(ii); (b) this
application is being filed in pursuance thereto; (c) the onus to, in the first
instance show that the testatrix was of a sound disposing mind i.e. had the
testamentary capacity to execute the Will, is on the propounder of the
document claimed to be the Will; (d) only if the propounder of the
document, claimed to be the Will, establishes the testamentary capacity of
the testator/testatrix, does the document stand proved as the Will; (e) the
petitioner also in the issues proposed by him had placed onus of the said
issue on himself; and, (f) one who asserts, has to prove and the other
cannot be called upon to prove the negative.
4. The counsel for the applicant/ Relation no.10 Arun Sood has referred
to Niranjan Umeshchandra Joshi Vs. Mrudula Jyoti Rao (2006) 13 SCC
433 (Paras 32 and 33), Savithri Vs. Karthyayani Amma (2007) 11 SCC
621, Sridevi Vs. Jayaraja Shetty (2005) 2 SCC 784 and Budh Singh Vs.
Raghubir Singh 2015 SCC OnLine Del 14528 (Paras 20 to 23) in support
of his contention. On the contrary the counsel for the petitioner/non-
applicant has referred to Naveen Bhatia (Since Deceased) through his Lrs.
Vs. Raj Kumari Bhatia 2017 SCC OnLine Del 9724.
5. I have considered the controversy.
TEST.CAS. 11/2018 Page 2 of 12
6. Section 59 under Chapter II titled "Of Wills and Codicils", of Part VI
titled "Testamentary Succession", of the Indian Succession Act, 1925,
provides that every person of sound mind not being a minor may dispose of
his property by Will. Explanation 1 thereto provides that a married woman
may dispose by Will any property which she could alienate by her own act
during her life. Explanation 2 thereto provides that persons who are deaf or
dumb or blind are not thereby incapacitated from making a Will if they are
able to know what they do by it. Explanation 3 thereto provides that a
person who is ordinarily insane may make a Will during an interval in
which he is of sound mind. Explanation 4 thereto provides that no person
can make a Will while he is in such a state of mind, whether arising from
intoxication or from illness or from any other cause, that he does not know
what he is doing.
7. Section 63 under Chapter III titled "Of the Execution of Unprivileged
Wills" in Part VI supra of the Indian Succession Act provides that every
testator shall execute his Will according to the Rules provided therein. The
said Rules provide that (a) the testator shall sign or affix his mark to the
Will; (b) the signature or mark of the testator shall be so placed that it shall
appear that it was intended thereby to give effect to the writing as a Will;
and, (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 received from
the testator a personal acknowledgment of his signature or mark and each of
the witnesses shall sign the Will in the presence of the testator. Even if a
document propounded as a Will, on the face of it is compliant with the
Rules aforesaid qua making and execution of the Will, the same, when
presented in the Court, is required to be proved and which proof is
TEST.CAS. 11/2018 Page 3 of 12
governed by the provisions of the Indian Evidence Act, 1872. Section 5 of
the said Act requires evidence to be given of the existence or non-existence
of every fact in issue and of such other facts as are declared to be relevant.
A fact in issue in a legal proceeding is a fact pleaded by one party and
disputed by the other. When a propounder of a Will claims a document to
be the validly executed Will of a deceased, if the opposite party disputes the
same, the propounder would be required to prove the same. Such proof, in
view of the provisions of the Indian Succession Act, would require the
propounder to prove the essentials/requisites of a valid Will i.e. of the
testator, at the time of execution thereof being of sound mind within the
meaning of Section 59 of the Act and the Will having been executed in the
manner provided in Section 63 thereof. However the Rules applicable to
pleadings require pleadings to be specific and not general and require the
party filing a reply/written statement to deal specifically with each
allegation of fact of which he does not admit the truth and further provide
the denial to be not evasive but specific and substantive; in absence thereof
such party shall be taken to have admitted the facts not denied specifically.
Thus a party disputing a document claimed to be the Will, is required to
deny/dispute specifically, which of the essential requirements/conditions of
making of the Will i.e. whether the testator at the time of making of the
Will was of sound mind or not and whether the document was executed as
per the Rules prescribed in Section 63 or not and if not, which of the said
Rules was not complied with.
8. Soundness of mind, for the purposes of contracting, is defined in
Section 12 of the Indian Contract Act, 1872 and which in my view would
have application in the matter of soundness of mind requisite for making of
TEST.CAS. 11/2018 Page 4 of 12
a Will as well. As per the said provision, (i) a person is said to be of sound
mind, if, at the time of making of the contract, he is capable of
understanding it and of forming a rational judgment as to its effect upon his
interests; (ii) a person who is usually of unsound mind, but occasionally of
sound mind, may make a contract when he is of sound mind; and, (iii) a
person who is usually of sound mind, but occasionally of unsound mind,
may not make a contract when he is of unsound mind.
9. As would be obvious from the above, a common thread is found to
run between Section 12 of the Contract Act and Section 59 of the Indian
Succession Act.
10. Chapter VII titled "Of the Burden of Proof", of Part III titled
"Production and Effect of Evidence", of the Evidence Act deals with the
issue with which this Court is concerned herewith. Per Section 101
thereunder, whosoever desires any Court to give judgment as to any legal
right or liability dependant on the existence of facts, which he asserts, must
prove that those facts exist. Since the propounder of a Will as per Section
59 of the Indian Succession Act is required to prove that the testator at the
time of making of the Will was of sound mind, the burden of proof would
be on the propounder. However that would be so where none is opposing
the Will propounded and the Will has to be proved for the satisfaction of
the Court. However when a document propounded as Will is contested,
what would be required to be proved is only that what is in issue and only if
the party disputing the document propounded as a Will disputes/controverts
that the testator/testatrix, at the time of making the Will was of sound mind,
would soundness of mind be in issue and required to be proved. However if
TEST.CAS. 11/2018 Page 5 of 12
soundness of mind is not specifically denied then as per the Rules aforesaid
contained in Order VIII Rule 5 of the CPC, soundness of mind shall be
deemed to have been admitted. In the event of denial of the soundness of
mind, the question as herein arises, on whom should the onus be, whether
on the propounder or on the opposite party, arises.
11. Section 114 under the aforesaid Chapter VII of Part III of the
Evidence Act enables the Court to presume existence of any fact which it
thinks likely to have happened, regard being had to the common course of
natural events, human conduct and public and private business, in their
relation to the facts of the case.
12. The common course of natural events and human conduct is of
soundness of mind and unsoundness of mind an aberration. If a
testator/testatrix has led a normal life, performed day to day functions in the
normal course of human conduct, the presumption under Section 114 would
be of soundness rather than unsoundness of mind.
13. The document on the basis of which letters of administration with
respect to the estate of the deceased testatrix are sought in the present case,
is registered under the Registration Act, 1908 and has been propounded as
Will of the deceased by the son of the deceased. The applicant/Relation
No.10 Arun Sood is the son of the daughter of the deceased and has filed
reply-cum-objections, inter alia pleading that (i) the application/petition for
probate/letters of administration is barred by time; (ii) the document
propounded as a Will is a forged and fabricated document; (iii) no such
document was ever executed by the deceased; (iv) the deceased was not the
owner of the immovable property, with respect whereto the document
TEST.CAS. 11/2018 Page 6 of 12
propounded as a Will is executed and thus the occasion for her to have
executed any Will with respect to the said property did not arise; (v) a
partition suit with respect to the said immovable property was already
pending consideration; (vi) the petitioner had got relinquishment deeds
executed in his favour from his sisters and which also falsifies the existence
of any Will; if there was any Will, there was no need for relinquishment
deeds; (vii) the deceased was not of sound mind to have executed any Will;
(viii) the deceased i.e. Bhagwanti Devi "throughout her life had been
signing the documents, and there has never been any occasion, reasons and
or circumstances of her choosing the thumb impression any document";
and, (ix) "further, without prejudice to the other pleas, it is submitted that
late Smt. Bhagwanti Devi has always remained under the influence and
pressure of the alleged beneficiaries of the forged and fabricated Will and
as such any Will much less the Will propounded by the petitioner cannot be
said to be a Will executed by her voluntary and out of her own free will
without any coercion".
14. It would immediately be seen that the denial by the
applicant/Relation No.10 Arun Sood of the soundness of mind of the
deceased is contradictory. If the deceased, throughout her lifetime had been
appending her signatures and not putting her thumb impression, as pleaded
by the applicant/Relation No.10 Arun Sood, the presumption is of her being
of sound mind. Similarly, the question of the deceased testatrix being under
influence of the petitioner would arise only if she was in a position to be
influenced i.e. of sound mind; if she was of unsound mind, the question of
her being influenced would not arise. I have in Budh Singh Vs. Raghubir
Singh 2015 SCC OnLine Del 14528 held that though the onus to prove the
TEST.CAS. 11/2018 Page 7 of 12
Will may be on the propounder thereof but a challenger to the Will is
required to, in the pleadings, specifically plead the grounds on which a
challenge is sought to be made to the Will so as to let the propounder of the
Will know the grounds on which the Will is contested and that a challenger
to the Will cannot be allowed to, without taking any pleading or any
specific grounds of challenge spring surprises and at the stage of arguments
contend that this has not been proved or that has not been proved.
Reference in this regard may also be made to Pulak Mukherjee Vs.
Santosh Mukherjee AIR 2015 Cal 1345 (DB).
15. A litigation in a Court cannot be permitted to be played like a game
of one-upmanship or by springing surprises or of ambush. Once litigation in
the Court is governed by the Rules/laws of pleadings and evidence, such
Rules/laws have to be applied at each and every stage of proceedings,
particularly at the stage of framing of the issues, importance of which stage
the Courts have emphasized in several judgments. Reference if any required
may be made to Kawal Sachdeva Vs. Madhu Bala Rana 2013 SCC
OnLine Del 1479. Framing of appropriate issues curtails litigation,
unnecessary evidence and the time spent in the litigation. Today, when the
Courts are inundated with briefs and the cases pending in the Courts are
surmounting and steps are being explored for expeditious disposal, it is the
call of the hour that issues be not framed and/or onus thereof be not placed
in a manner so as to enable a litigant to prolong trial, taking advantage of
framing of unnecessary and uncalled for issues and of wrong placement of
onus/burden thereof. As aforesaid, the applicant/Relation No.10 Arun Sood
in his pleadings, has pleaded facts which give rise to a presumption in law
of the deceased testatrix being of sound mind and it is for this reason that
TEST.CAS. 11/2018 Page 8 of 12
the onus of issue no. (ii) has been placed on him. The applicant/Relation
No.10 Arun Sood cannot be permitted to, taking advantage of having the
onus of the issue as to the soundness of mind placed on the petitioner, steal
a walkover by ultimately arguing that the petitioner has failed to prove
soundness of mind. As observed in the order dated 25th November, 2019
also, proof of soundness of mind requires a bare statement to be made. On
the contrary to prove unsoundness of mind, one would be required to prove
consistent conduct to prove unsoundness of mind, even if medical records
of unsoundness of mind are not available.
16. I have perused the judgments cited by the counsel for the
applicant/Relation No.10 Arun Sood and do not find anything therein to
persuade me to take a different view in the facts of the present case. The
observations therein, of the onus of proof of soundness of mind being on
the propounder, are general in nature and in the facts of the concerned case.
The question of onus of proof as to facts in issue depends upon the facts,
pleadings and documents in each case and for the reasons given above, in
the present case, has been placed on the applicant/Relation No.10 Arun
Sood.
17. Before parting with this order I may add a caveat. The
order/judgment of a court exercising testamentary jurisdiction, as this Court
is exercising in the subject case, as distinct from a judgment/order inter
parties i.e. binding the parties to the lis alone and not others, is a
judgment/order in rem, which establishes a document propounded as a Will
as the Will from the death of the testator and renders valid all intermediate
acts of the executor as such. A Testamentary Court is thus a Court of
TEST.CAS. 11/2018 Page 9 of 12
conscience. Since the said judgment/order binds not only the parties to the
proceeding but also others, the Court, in exercise of such jurisdiction,
requires proof in accordance with law of the document propounded as a
Will, even if not opposed by the near relatives of the deceased. However
when the near relatives have contested the document propounded as a Will
and which contest is not a sham or make belief, the Court can mould the
trial by placing the onus appropriately in terms of the pleadings and the
documents in a case. In the facts of the present case the applicant/Relation
No.10 Arun Sood in his pleadings has not pleaded any fact to dislodge the
presumption in law of soundness of mind and has rather, by pleading that
the testatrix used to sign and was under influence of the petitioner affirmed
the said presumption and to in such state of pleadings still place the onus on
the petitioner, rather than benefitting the applicant/Relation No.10 Arun
Sood will lull him into complacency and not enable him to take advantage
of the issue struck qua soundness of mind, by at least now bring evidence if
any in his possession of unsoundness of mind of testatrix, even though his
denial in the pleadings to the said effect, is evasive and dilatory. Reference
may be made to my judgment in Anil Kumar Vs. Devender Kumar 2019
SCC OnLine Del 8782. It is not the case of the applicant/Relation No.10
Arun Sood that he was not in a position to know about the soundness of
mind of the testatrix or was far removed from the testatrix; on such
pleading it can perhaps be said that the petitioner should discharge the onus.
When a near relation inspite of contact with the testatrix fails to plead acts
to show unsoundness of mind of the testatrix, the High Court of Bombay in
Jitendra Singh Rajendra Singh Kushwaha Vs. Suresh Rajendra Singh
Kushwaha MANU/MH/0405/2016, notwithstanding the absence in
TEST.CAS. 11/2018 Page 10 of 12
petitioner's evidence of the testator being of sound mind and the onus of
proof being on the propounder, granted probate.
18. Privy Council, in Munnalal Vs. Kashi Bai AIR 1947 PC 15 held that
it is likely that a man who performs a solemn and rational act in the
presence of witnesses is sane and understands what he is about and in the
absence of any evidence that he was not in a perfectly normal state,
presume the Will to have been duly executed. To the same effect is
Rameshwar Prashad Vs. Krishna Mohannath Raina AIR 1969 MP 4
(DB) and Labanya Prova Guha Vs. Balai Chandra Mukerjee
MANU/WB/0355/1969 (DB). Supreme Court in Surendra Pal Vs.
Saraswati Arora (1974) 2 SCC 600 held (i) apart from general
considerations emerging from the nature of a Will and the circumstances
which not in frequently surround the execution of it, there are other matters
which are peculiar to the times and the society and perhaps even to the
person making the Will and his or her family; (ii) inferences arising from
relationship between the testator and a legatee are certainly so dependent
upon the peculiarities of the society or community to which the testator and
the legatee belong and their habits and custom, their values, their mores,
their ways of making and feeling, that it seems very difficult to reduce them
to a general Rule applicable at all times and everywhere so as to raise a
presumption of undue influence from a particular type of relationship; (iii)
besides Section 111 of the Evidence Act, any other presumption from a
relationship must, to be acceptable, be capable of being raised only under
Section 114 of the Evidence Act; (iv) such presumption of facts are really
optional inferences from proof of a frequently recurring set of facts which
make particular inference from such facts reasonable and natural. In the
TEST.CAS. 11/2018 Page 11 of 12
facts of that case, in the absence of a suggestion that the testator was feeble
minded or so completely deprived of his power of independent thought and
judgment, presumption was drawn and the Will held to be genuine. In Prem
Singh Vs. Birbal (2006) 5 SCC 353 presumption that a registered
document is validly executed was drawn and it was held that onus to prove
would be on the person who rebuts the presumption. In H. Venkatachala
Iyanger Vs. B.N. Thimmajamma AIR 1959 SC 443, it was held that when
a caveat is filed alleging the exercise of undue influence, fraud or coercion
in the respect of the Will propounded, such pleas have to be proved by the
caveator and Jarman on 'Wills' opining that 'generally speaking, where
there is proof of signature, everything else is implied till the contrary is
proved' and that 'if a Will is rational on the face of it and appears to be duly
executed, it is presumed, in the absence of the evidence to the contrary, to
be valid' was cited with approval.
19. No ground for review of the order dated 25th November, 2019, to the
extent placing the onus of issue no.(ii) on the petitioner, is made out.
20. The application is dismissed.
Test Cas. No.11/2018.
21. List before the Roster Bench on 26th April, 2021, as already
scheduled.
RAJIV SAHAI ENDLAW, J.
JANUARY 15, 2021 MARCH 13, 2021 'pp' TEST.CAS. 11/2018 Page 12 of 12