Delhi District Court
Paul Singh vs The State Of Nct Of Delhi on 10 November, 2014
IN THE COURT OF AJAY GOEL, ADDITIONAL DISTRICT JUDGE-12
CENTRAL DISTRICT:DELHI
PC-121/11/07
In the Matter of:
Paul Singh
s/o Late Sh. Joginder Singh
r/o Garage no. 33, Gulabi Bagh,
Delhi-110007
(Now know as KT-32, Pratap Nagar)
.................. Petitioner
VERSUS
1. The State of NCT of Delhi
Through Secretary
New Secretariat
IP Estate, New Delhi.
2. Balbeer Singh
s/o Late Sh. Joginder Singh
r/o Gerage No. 33, Gulabi Bagh,
Truck Market, Delhi.
3. Ranbir Singh
s/o Late Sh. Joginder Singh
r/o Gerage NO. 33, Gulabi Bagh,
Truck Market, Delhi.
4. Kulbeer Singh
s/o late Sh. Joginder Singh
r/o Gerage No. 32, Gulabi Bagh,
Truck Market, Delhi.
5. Shukantala
w/o Sh. Charan Singh
r/o 3226/235, Tri Nagar,
Delhi-110035
PC-42/07 Page:-1/39
6. Ranjit Kaur
w/o Sh. Amar Singh Lohar
r/o near Kaliwari Mandir
Ambala Cantt. Haryana
7. Balbeer Kaur
w/o late Sh. Didar Singh
H.No. 3842, Ward no. 12
Hamayu Pura,
Shirhand, Punjab
8. Smt. Jaspal Kaur
w/o late S. Jagjeet Singh
9. Yaadvender Singh
s/o late S. Jagjeet Singh
10. Rajinder Singh
s/o late S. Jagjeet Singh
11.Malkeet Singh
s/o late S. Jagjeet Singh
All resident of E-47-48, Vishnu Garden
Khyala Road, New Delhi-18.
12. Smt. Parvinder Kaur
w/o Amrik Singh d/o Jagjeet Singh
r/o 109 LIG Flats, near G.T. Karnal Depot,
G.T. Karnal Road, By-pass, Delhi.
13. Smt. Jatinder Kaur w/o Inder Singh
d/o Jagjeet Singh r/o 2508/190
near Community Hall, Tri Nagar,
Delhi.
................ Respondents
Date of Institution: 12.4.07
Date of Assignment to this court: 18.2.13
Date of Arguments: 3.11.14
Date of Decision: 10.11.14
JUDGMENT
1. Vide this judgment, I shall conscientiously decide the present petition u/s PC-42/07 Page:-2/39 276 of Indian Succession Act for grant of probate in respect of the estate of deceased Balwant Kaur w/o late Joginder Singh in view of Will dated 18.5.1989. The brief facts of the case as narrated in the petition are that deceased Balwant Kaur died on 13.2.00 leaving behind four sons namely Balbir Singh, Ranvir Singh, Kulbeer Singh and Paul Singh besides LRs of predeceased son Jagjit Singh and three married daughters namely Harjit Kaur @ Shukantala, Ranjit Kaur and Balbir Kaur. It was stated that at the time of her death Smt. Balwant Kaur left behind a registered Will dated 18.5.89 in which she declared that after her death her property bearing no. E-47/48, Vishnu Garden, New Delhi shall devolve to the youngest son Sh. Paul Singh. It was stated that the said Will was got prepared by late Balwant Kaur on 18.5.1989 in her sound senses and health and without any force, fraud, compulsion, coercion and undue influence from others. As stated the Will was executed before the attesting witnesses Sh. Baljit Singh s/o Sh. Raghbir Singh r/o N-22, Andha Mughal, Subzi Mandi, Delhi and Sh. Amar Bahadur Singh s/o Sh. Atibal Singh r/o E-2/95, Shastri Nagar, Delhi and was signed by them in the presence of the executant. It was further stated that the Will was duly registered with the registrar vide registration no. 16179, book no. 937, Vol. no. 3, in page no. 72-73 dated 18.5.1989. It PC-42/07 Page:-3/39 was stated that petitioner is the sole beneficiary of the Will in question and there is no impediment for the grant of probate in respect of the said Will. It was accordingly prayed that probate be granted to the petitioner in respect of last Will of the deceased dated 18.5.1989.
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 "National Herald" and also displayed on court notice board.
3. Valuation report dated 19.5.07 was filed and the publication of the citation was effected in the newspaper " National Herald" on 24.4.07.
4. Relation no. 5,6 and 8 did not appear in the matter despite service and were accordingly proceeded ex-parte vide order dated 9.8.07. Respondent no. 7/objector no. 7 also did not appear despite service and was proceeded ex-parte vide order dated 24.1.08.
5. Objections to the present petition were filed on behalf of objectors/respondents no. 3,4,9 and 11 wherein it was stated that Smt. Balwant Kaur never executed any Will in respect of any property nor she inherited any property as alleged. It was stated that Smt. Balwant Kaur was neither owner nor in possession in respect of the property in question PC-42/07 Page:-4/39 bearing khara no. 30/11 & 30/12 measuring 400 sq. yds out of total 4 bighas 16 biswas each situated in village Khayala, Delhi. It was sated that property bearing no. E-47-48 is falling in the land bearing khara no. 30/11 & 30/12 and the same is in continuous and uninterrupted possession of the objectors/respondents for the last more than 35 years. It was stated that objectors/respondents and their predecessor in interest have been in use and occupation of the 150 sq. yards out of the said property and they have been using the said property for their residential purpose as well as for workshop. As stated said property has been partitioned amongst the objectors by meats and bounds and they have acquired the ownership rights in the said property as per law. It was stated the petitioner has no legal right, title or interest in the property in question nor Smt. Balwant Kaur had any right or authority to execute the alleged Will dated 18.5.1989. It was stated that property bearing no. E-47 and 48, Vishnu Garden, Village Khayala i.e. the property in question was owned by one Sh. Ram Mehar s/o Singh Ram but thereafter the said khasra numbers have been vested into Government i.e. Gaon Sabha vide order of SDM dated 30.7.1980 and as such Smt. Balwant Kaur had no authority or right to execute the present Will in respect of Government property. It was further submitted that the PC-42/07 Page:-5/39 garage bearing no. 32 and 33 were allotted to Sh. Joginder Singh, father of the objectors and petitioner and said property is the joint family property of the petitioner and objectors. It was stated that garage no. 32 is in possession of the petitioner and Kulbir Singh whereas garage no. 33 is in use and occupation of one Balbir Singh and Sh. Ranvir Singh, son of the deceased. It was stated that said garages have not been legally partitioned between the parties but the parties have been using their respective portions as per the family settlement entered into between them in the year 1992. It was stated that all the legal heirs of late Sh. Joginder Singh are also having their share in the said garages as per their shares. It was further stated that Smt. Balwant Kaur was an illiterate and sick lady and since before the year 1989 she had been suffering from illness and she was not possessing good health and sound mind. As stated she was unable to understand anything because of her serious mental disease. It was stated that the alleged Will dated 18.5.1989 was never executed by deceased Smt. Balwant Kaur and is a forged and fabricated document. Rest of the contents of the petition were denied and it was prayed that the present petition be dismissed.
6. Objector/respondent no. 2 did not file separate reply and adopted the PC-42/07 Page:-6/39 objections filed on behalf respondents no. 3,4,9 and 11 as recorded vide order dated 18.9.07.
7. Separate objections were filed on behalf of objectors/respondents no. 10,12 and 13 wherein it was stated that during the life time of Smt. Balwant Kaur she had partitioned the property in question which was owned by Smt. Balwant Kaur and her husband Sh. Joginder Singh by way of written family statement dated 27.7.92 to which Smt. Balwant Kaur is one of the witness. It was stated that parties are in possession of the respective property as assigned in the statement and since enjoying their respective shares of specific properties as on date and there was no disclosure by Smt. Balwant Kaur or any of the parties to the settlement that there exist any alleged Will dated 18.5.89. It was stated that the property in question was not self acquired property of Smt. Balwant Kaur and Mr. Jagjeet Singh being eldest son contributed in payment of sale consideration and construction of property and therefore in partition / settlement LRs of late Jagjeet Singh were given 70 sq. yards out of total area of 400 sq. yards in the property in question and as on date they are enjoying and are in occupation of the same as rightful owner. It was stated that during settlement and even after settlement Smt. Balwant Kaur was residing with Paul Singh and it is PC-42/07 Page:-7/39 specifically mentioned in the settlement that original of settlement is with Smt. Balwant Singh and the copies are given to the other parties. As stated original of family settlement has been concealed by the petitioner and not filed by him. It was stated that alleged Will dated 18.5.89 is forged and fabricated and has been created under threat, pressure, coercion exercised by the petitioner since at the relevant time she was in care and custody of the petitioner. It was stated that alleged Will is dated 18.5.89 and Smt. Balwant Kaur died on 13.2.00 and till 2000 there is no objection of existence of the alleged Will which prima facie cast shadow on the genuineness of Will. Rest of the contents of the petition were denied and it was prayed that the present petition be dismissed.
8. Separate Replies to objections of objector was filed on behalf of the petitioner in which contents of the petition were reiterated and those of the objections were denied.
9. Vide order dated 13.3.08 from the pleadings of parties, the following issues were framed:-
1) Whether the Will dated 18.5.99, propounded is the duly executed last and final Will of late Smt. Balwant Kaur in sound and disposing mind?OPP
2) Relief.
10.In evidence in support of her case, petitioner produced himself as PC-42/07 Page:-8/39 PW-1 , Sh. Baljit Singh as PW-2, Sh. Chittaranjan as PW-3. PW-1 petitioner reiterated his case as set out in the petition and relied upon ration card Ex. PW-1/1 and election I card Ex. PW-1/2, death certificate of deceased Balwant Kaur Ex. PW-1/4, copy of election I card of deceased Smt. Balwant Kaur Ex. PW-1/5, death certificate of deceased father of petitioner was Ex. PW-1/6, certified copy of sale deed of deceased Balwant Kaur Ex. PW-1/7. PW-2 Baljeet Singh stated himself to be the attesting witness of the Will Ex-PW-2/1. He stated that the Will in question was executed in his presence and in presence of Sh. Amar Bahadur Singh and he stated that he had signed the same as attesting witness in the presence of the executant. He also stated that the testator got the Will in question prepared in her sound senses and health without any force, fraud and compulsion. He identified the signatures of testator, his own signatures and signatures of other attesting witness on the Will in question. PW-3 Sh. Chittaranjan, official from the office of Sub Registrar tallied the Will in question with his records and stated that the same tallies with the copy of the Will brought by him and the copy of the registered Will was Ex. PW-3/1.
11.In defence, objectors examined respondent no. 3 Ranbir Singh as RW-1, respondent no. 9 Sh. Yaadvender Singh, respondent no. 11 Malkeet Singh PC-42/07 Page:-9/39 as RW-3, RW-4 Sh. Rajinder Singh( he was read as RW10W4 as requested by Cl. for both parties recorded vide order dated 19.3.09), respondent no. 10, RW-5 Smt. Jitender Kaur( she was read as R13W5 as requested by Cl. for both parties and recorded in her statement recorded on 19.3.09), respondent no. 13, RW-6 Parwender Kaur, respondent no. 12, RW-7 Sh. Kulbir Singh, respondent no. 4, RW-8 Bhagwant Singh son of Sardar Surjit Singh. RW-1 to RW-3 have reiterated their case as set out in their objections. RW-4 stated that there was dispute in respect of property in question and vide arbitration agreement/salasnama dated 27.7.92 passed arbitration award and relied upon his election I card Ex. RW-4/1 and ration card Ex. RW-4/2. RW-5/R13W-5 Jitender Kaur and RW-6 Prawender Kaur deposed on the similar lines as that of RW-4 and copy of award was Ex. RW-6/P-1. RW-7 Kulbeer Singh deposed on similar lines as deposed by RW-1,2 and 3. RW-8 Sh. Bhagwant Singh stated that he knew Paul Singh and his brother since long as mother and father of Paul Singh are from same village. He stated that the dispute regarding the property was referred to association of Gulabi Bagh and their decision was not agreed by Paul Singh, Jagjit Singh and their brothers. It was stated that he, Ajit Singh, Choor Singh and Mahinder Singh intervened and all the five PC-42/07 Page:-10/39 were present in the meeting. He stated at the time of meeting and decision Ex. RW-6/P-1 the petitioner or her mother hand not disclosed about any Will. He stated that no Will was disclosed by any son or daughter at the time of death ceremony of Balwant Kaur.
12.I have heard Ld. Consel 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. It is argued on behalf of the petitioner 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 Baljit Singh who has categorically stated that deceased Balwant Kaur left behind a registered Will in which she declared that after her death her property E-47/48, Vishnu Garden, New Delhi shall devolve to her youngest son Sh. Paul Singh. It was argued that PW-2 has stated that the Will dated 18.5.1989 was prepared by late Balwant Kaur in her sound senses and health without any force, fraud, compulsion, coercion and undue influence from others as well as the said Will Ex. PW-2/1 was executed in his presence. On the other hand Cl. for objector no. 10,12 and 13 argued PC-42/07 Page:-11/39 that the property in question was partitioned by Smt. Balwant Kaur and her husband Sh. Joginder Singh during their life time on 27.7.92 by written family settlement which is duly signed by Balwant Kaur. It was also argued that admittedly at the time of partition and thereafter Smt. Balwant Kaur was in care and custody of the petitioner and all the original documents were held by petitioner who did not disclose about the factum of partition in the probate petition. It was also argued that PW-2 attesting witness stated that Paul Singh was present at the time of execution of the Will and hence influence of petitioner over the testator cannot be ruled out. It was also pointed out that PW-2 even admitted that he did not see Amar Bahadur Singh signing the Will. In addition to aforesaid, it has been vehemently sought to be argued that though the Will was a registered Will, however the same does not obviate the need of prove as required under Section 68 of Indian Evidence Act. Further Cl. for objectors no. 2,3,4,9 and 11 argued that at the relevant time of execution of Will in question the testator was not in sound state of mind and was suffering from serious mental disease. It was also argued that Smt. Balwant Kuar had no right or authority to execute the alleged Will dated 18.5.1989 since the property in question has already been partitioned amongst the objectors by metes and PC-42/07 Page:-12/39 bounds. 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.
14.I have given a thoughtful consideration to the same. My issuewise determination is as under:-
15. Issue no. 1 :- Whether the Will dated 18.5.99, propounded is the duly executed last and final Will of late Smt. Balwant Kaur in sound and disposing mind?OPP Before proceeding to decide these issue, I would like to discuss the relevant law and judgments on this point. Issue no. 1 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 property after his death and as such the same carry the last intentions of the testator to be carried out after his death.
PC-42/07 Page:-13/39 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.
16.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.
17.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 PC-42/07 Page:-14/39 deceased.
2) The testator, while executing the will, was in a sound and disposing state of mind.
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."
18.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 PC-42/07 Page:-15/39 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 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."
19.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.
20. 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 PC-42/07 Page:-16/39 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 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.
21. 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.
22. The decisive aspect is to ascertain as to whether the Will is genuine and PC-42/07 Page:-17/39 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 casting doubt on the execution of Will without any force, coercion or fraud.
23. 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..
24. 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 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.
PC-42/07 Page:-18/39
25.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 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."
PC-42/07 Page:-19/39 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 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 PC-42/07 Page:-20/39 declaration and the surroundings circumstances i.e. evidence of collateral circumstances."
26.In a full bench judgment of the Hon'ble Apex Court reported in (1959)Supp. 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 PC-42/07 Page:-21/39 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 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 PC-42/07 Page:-22/39 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 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.
27. 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 PC-42/07 Page:-23/39 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."
28. The Hon'ble Apex Court has further discussed the circumstances, which 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 PC-42/07 Page:-24/39 be a part of the initial onus to remove any such legitimate doubts in the matter."
29. It has been further held that an active participation of the propounder or 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.
30.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 PC-42/07 Page:-25/39 certainty.
2) Since Section 63 of the Succession Act requires a Will to be attested, it cannot be used as 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 PC-42/07 Page:-26/39 propounder can be taken to be discharged on proof of the essential facts which go into the making of the Will.
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 PC-42/07 Page:-27/39 children of the testator who would normally receive their due share in his estate were disinherited because the testaor might have 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 PC-42/07 Page:-28/39 last Will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the 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.........."
31. 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 PC-42/07 Page:-29/39 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 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.
32. 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.
33.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 PC-42/07 Page:-30/39 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 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.
34. 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 PC-42/07 Page:-31/39 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 contribute and indicates towards the particular inference cumulatively and collectively.
35.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 no. 2,3,4,9 and 11 have taken the objection that the deceased was not in sound state of mind at the time of execution of the Will in question and was suffering from serious mental disease since before the year 1989. However, no documentary evidence is produced on record by the objectors to show the medical condition of the deceased and rather RW-7 during cross examination admitted that his mother was having sound disposing state of mind. It is also pertinent to mention here that only one set of objectors i.e. objectors no. 2,3,4,9,11 have raised the objection that testator was not in sound state of mind and was suffering from serious mental disease but the said point has not been raised by another set of objectors i.e. objector no.
PC-42/07 Page:-32/39 10,12 and 13. Further it is also not explained as to what was the serious mental disease from which testator was suffering and only simplicitor the said objection has been raised by the objectors no. 2,33,4,9, 11. Except for the bald assertion of objectors no. 2,3,4,9,11, there is nothing on record to show that testator was not in good mental state at the relevant time. Hence objection of the objectors 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.
36. The main objection raised by the objectors no. 2,3,4,9,11 is that the testator was not competent to execute the Will in question since she was not the owner of the same. On the other hand objectors no. 10,12 and 13 stated that deceased during her lifetime partitioned the properties owned by Smt. Balwant Kaur and her husband Joginder Singh by way of written family settlement dated 27.7.92. Though both sets of objectors have taken different stands as abovesaid but during cross examination RW-3 Malkiat Singh/respondent no. 11, RW-4 Rajinder Singh/respondent no.10 and RW-7 Kulbir Singh/respondent no. 4 admitted that deceased Balwant Kaur was owner of the property in question and even otherwise petitioner had PC-42/07 Page:-33/39 produced sale deed Ex. PW-1/7 on record in regard to purchase of the property in question by the deceased Balwant Kaur. Hence, in view of the sale deed Ex. PW-1/7 as well as admission of objectors it is duly proved on record that the deceased Balwant Kaur was the owner of the property in question and objection raised by the objectors in that respect is hereby rejected.
37.Now I will deal with the question of valid execution of the Will. There are two attesting witnesses to the Will i.e. Baljeet Singh and Amar Bahadur out of which Sh. Baljeet Singh had appeared in the witness box. Though in chief examination he identified the signatures of testator, his own signatures and signatures of other attesting witness on the Will Ex. PW-2/1 as well as deposed that they all had put their signatures/thumb mark in the presence of each other but but during cross examination he stated that he did not know Amar Singh and did not know in which language Amar Bahadur Singh used to sign as well as that he did not see Amar Bahadur Singh signing the Will. From the abovesaid it is clear that PW-2 has contradicted his stand that they all signed in presence of each other. When he did not know in which language Amar Bahadur Singh used to sign as well as did not see him signing the Will in question then it means that Amar PC-42/07 Page:-34/39 Bahadur Singh did not sign in his presence. Even PW-2 stated that he did not go through the Will. PW-2 also during cross examination had stated that Will was got typed from typist at the instructions of Smt. Balwant Kaur and the Will was also signed by the typist but when he was shown the Will ex. PW-2/1 he admitted that the same does not bear the signatures of the typist. Other attesting witness Sh. Amar Bahadur Singh has not been produced in the witness and no explanation or reason is on record for his non production and the abovesaid contradictory stands given by the attesting witness clearly casts shadow of doubt on the valid execution of the Will.
38.Averting to another objection taken by the objector to create suspicious circumstances surrounding the Will which was that the beneficiary to a Will has taken a prominent part in execution of the Will and reliance has been placed upon AIR 2007 SC 614 titled Niranjan Umesh Chand Joshi Vs Mridula Jyoti Rao. Additionally, it has been sought to be argued that the fragile and feeble mind of the testator was overawed and overpowered by the powerful mind of the beneficary Paul Singh who was interested in getting the property bequeathed in his name and reliance has been placed upon AIR 2007 SC 311 titled B. Venkatamuni Vs C.J. Ayodhya Ram PC-42/07 Page:-35/39 Singh & Ors.. It was stated by the objectors that during cross examination PW-2 had stated that Sh. Paul Singh was also present at the time of execution of Will which fact was also admitted by the petitioner himself which create suspicious circumstance. It is also admitted case of both the parties that till her death the testator was living with the petitioner. Though in the present case it is not proved that testator had feeble or unsound mind at the time of execution of Will in question as observed above but the suspicion on execution of the Will certainly arise once it has come on record that beneficiary under the Will has taken active part in execution of the Will. Hence influence of petitioner over the testator cannot be ruled out and the said objection of the objectors is held to be sustainable.
39. Another circumstances argued by the objectors is that the Will in question dated 18.5.1989 is forged and fabricated since if any Will existed or executed by the testator then the same could have been disclosed by the testator on 27.7.92 when a family settlement took place regarding the property in question. In the present matter Will is dated 18.5.89 and family settlement regarding the property in question is dated 27.7.92 Ex- RW-6/P-1. Petitioner/PW-1 in his cross examination had admitted that a PC-42/07 Page:-36/39 family settlement took place in the year 1992 as well as that he was the signatory to the family settlement dated 27.7.92 though voluntarily stated that no one accepted or acted upon that family settlement. PW-1 also stated that two persons were appointed as arbitrators for the settlement and the settlement was arrived with the intervention of the arbitrators. It is also stated by PW-1 that settlement deed was in custody of his mother. From the abovesaid admissions of petitioner the factum of settlement deed dated 27.7.92 is proved on record and if the alleged Will in question was in existence then why there is no mention of the same in the settlement deed dated 27.7.92. Though petitioner stated that the said settlement was not acted upon whereas as per the objectors they have been residing in the portions as partitioned as per the said settlement, however it is immaterial whether it was acted upon or not and what is relevant is that the said settlement deed was executed on 27.7.92 in presence of the testator and if the Will in question was in existence then why there is no mention of the same and why it was not disclosed. The presence of deceased Balwant Kaur during said settlement dated 27.7.92 is not disputed and when the deceased was present for the said family settlement then it shows her willingness to distribute her properties among her all legal heirs and if she PC-42/07 Page:-37/39 wanted to act upon the alleged Will then she should not have consented for the family settlement. Even for the sake of arguments if it is presumed that alleged Will dated 18.5.1989 was in existence but after the execution of admitted family settlement dated 27.7.92, the Will in question has become null and void and ineffective because Will was to take effect only after the death of testator and she could do anything with the property till the time she was alive. As she has already executed family settlement the Will automatically becomes redundant. The abovesaid surely give birth to suspicious circumstance and raise question on the genuineness of the Will. Hence again the said objection of the objector is held sustainable. It is also pertinent to mention here that father of the parties was alive at the time of execution of the Will in question and why he was debarred in the Will in question is not explained. It is very unlikely for a woman to debar her husband from her estate while making the Will. Hence, the execution of the Will in question is surrounded with heavy suspicion and the Will in question cannot be given a clean chit. Accordingly in view of the above said Will dated 18.5.1989 Ex. PW-2/1 cannot be stated to be the last testamentary disposition of the testator out of free will and without coercion and is accordingly rejected. Issue no. 1 is decided in favour of PC-42/07 Page:-38/39 the objectors and against the petitioner.
40. Further it is also argued that petition has not been verified by one of the attesting witnessses of the Will and therefore liable to be dismissed. Petitioner has argued that if one the attesting witness comes and depose before the court that he has seen testator executing the Will in question then reqrement of Section 281 stands satisfied. Though the Will in question has already been rejected due to reasons mentioned above but even otherwise in a case where executor is appointed by the testator in the Will then Section 281 of Indian Succession Act applies and if no executor is appointed then Section 278 applies for grant of letter of administration wherein there is no mandatory requirement of one attesting witness to sign the petition. In the present case no executor has been appointed in the Will in question, so there is no requirement of attestation of petition by one of the witness. So, this objection of the objectors is not tenable. Even otherwise this question has become irrelevant since the Will in question has already been discarded.
41. Relief:- In view of the above finding, the petition is dismissed. This file be consigned to record room.
Announced in open court (Ajay Goel) on 10.11.14 ADJ-12(Central)/Delhi PC-42/07 Page:-39/39