Delhi High Court
Raj Rani Sehgal vs State on 24 May, 1996
Equivalent citations: 70(1997)DLT688, 1996(38)DRJ122
JUDGMENT Devinder Gupta, J.
(1) The sole question for consideration in this appeal, which has arisen against an order passed on 5th April, 1995 by Shri S.M.Aggarwal, Additional District Judge, Delhi in Probate Case No.245/91, Raj Rani v. State is that whether the appellant has been able to rule out the suspicious circumstances pertaining to the due execution of will Ex.P.2 and for that the impugned order is vitiated holding that the will Ex.P.2 is surrounded with innumerable suspicious circumstances, none of which have legitimately been explained by the appellant.
(2) It is now well settled that mere proof of execution of will by producing scribe or attesting witnesses or proving genuinely of testator's signature itself is not sufficient to establish the validity of a will, unless suspicious circumstances are ruled out by the propounder and Court's conscious is satisfied, not only on due execution but about the authenticity. In H.Venkatachala Iyengar v. B.N.Thimmajammaand others, , it was held that a will has to be proved like any other document except as to the special requirements of attestation, prescribed by Section 63 of the Indian Succession Act. The important distinguishing feature, which distinguishes a will from other documents is that unlike other documents, Will speaks from the death of the testator, and so, when it is propounded or produced before a Court, the testator, who has already departed the world, cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. In dealing with the proof of will the Court will start on the same enquiry as in the case of the proof of documents and the propounder would be called upon to show, by satisfactory evidence that the will was signed by the testator; the testator at the relevant time was in a sound and disposing state of mind; he understood the nature and effect of the dispositions and put his signature to the document on his free will. 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, the Court would be justified in making a finding in favour of the propounder. Thus the onus on the propounder can be taken to be discharged on the proof of the essential facts. Further, there may be cases in which the execution of the will may be surrounded by suspicious circumstances and in such like cases the Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy and unless it is satisfactorily discharged, Courts would be reluctant to treat the document as the last will of the testator. Apart from the suspicious circumstances, in some cases the wills propounded might disclose some other infirmity. In those cases, it will be necessary that propounder is required to remove the said suspicions by clear and satisfactory evidence. It is in the light of this proposition of law that the appeal has to be decided by answering the question posed.
(3) On 8th October, 1991, the petition for grant of probate under Section 276 of the Indian Succession Act (hereinafter referred to as "the Act") was preferred by the appellant, who is the daughter of late Shri Godarmal, who died on 14th February, 1980. It is alleged that deceased Godarmal at the time of death was residing at T- 23, Old Moti Nagar (now Gowshala Marg), New Rohtak Road, Karol Bagh, New Delhi. He executed a will dated 18th March, 1975 bequeathing immovable properly No.T-23, Old Moti Nagar, New Rohtak Road, Gowshala Marg, New Delhi and the shops No-5571- 5569 situated at Nai Sarak, Delhi in her favour. Godarmal left behind a son and five daughters. One daughter Bimla Rani had expired. The son and the other three daughters are respondents in this appeal) had been excluded from inheritance. The reason for disinheritance, as stated in the petition was being that Godarmal was ill-treated and misbehaved in all manner by his son, respondent No.2, who was having bad habits of drinking, gambling etc. and did not care to look after the deceased. The deceased was residing and was being looked after by the appellant and her husband and was being provided with food, clothes, medicines and other necessities of life. The deceased was in sound disposing state of mind at the time of the execution of the will, which was duty attested by two witnesses. It was alleged that the she came across the will only a few days, when she wanted to dispose of old articles of the deceased for which the lock of the old trunk was broken wherein she found the will amongst other papers.
(4) The petition was vehemently opposed by respondent No.2, who took up a plea that the will was a forged document. It had never been executed by late Godarmal. It was pleaded that the endorsement of the stamp vendor, on the back of stamp paper, used for typing out the will is not in the hand of the stamp vendor Shri Bobal. Suspicious circumstances, amongst others as highlighted by respondent No.2 in reply being that there is a large oil spot on the judicial paper, whereas similar oil spot is not to be found on the second page of the will. Had the will been executed in 1975, as alleged by the appellant, there would have been similar oil spot on both the pages. It was alleged that Godarmal has executed a will dated 9th September, 1974, which was also got registered by him and on the death of Shri Godarmal an application for grant of probate was moved by him, which was holly contested by the appellant. It Was on 12th June, 1986 that an order granting probate of the will dated 9th September, 1974 was passed by Shri N.C.Kochhar, Additional District Judge, Delhi against which the appellant had preferred an appeal (FAO.No.l07/86) in this Court. It was only after the arguments were heard and the judgment was reserved in the appeal that the appellant came forward with an application that she had come across another will of Godarmal dated 18th March, 1975. Respondent No.2 in his reply on merits disputed the correctness of the recitals made in the will propounded by the appellant and alleged that her allegation that she came across the will only when orders were reserved in F.A.0.107/86 was false to her knowledge. He specifically denied the allegations that he had bad habits of drinking and gambling or that he did not take care of his father late Godarmal. It was alleged by him that he was in service and used to come every month to see his father, who was a jeweller and was running a shop of jewellery at Hardhian Singh Road, Karol Bagh, New Delhi and was maintaining good health and sound disposing mind. He used to go for a walk in the morning. Respondent No.2 had got him operated for enlarged prostrate at Lucknow and got him medically treated for decalcification of spine at Fatehpur in 1976, where respondent No.2 was working as Chief Medical Officer. He was cured and doing all works of life and was provided with best medical treatment. Godarmal was resided with respondent No.2 from 1976 till February, 1990. In 1976 when he came to Fatehpur for his treatment, he had brought a box with clothes and had kept all the original documents in the safe. He used to visit Delhi periodically from Fatehpur. He visited Delhi in 1978 and again for two months prior to his death. He had handed over will dated 9th September, 1974 to Shri S.L.Chowdhry, husband of respondent No.4 for keeping in safe custody. It was denied that deceased was living with the appellant till his death. Respondent No.2 also pleaded that the appellant was living at Regharpura, after her marriage. In January, 1966, she shifted to her in-laws house at Sant Nagar, Delhi. She remained there till 1969. In 1969-70, she requested Godarmal, deceased to keep her in his house till the decision of criminal cases, which had been filed by her mother-in-law against her hus band, which were pending since 1966. The appellant was allowed to reside with Godarmal as a licensee. Godarmal remained with respondent No.2 at Fatehpur, U.P. with effect from 1976 till retirement of respondent No.2 and then at Ghaziabad till February, 1980.
(5) The trial judge in his order held that the appellant had miserably failed to prove the due execution much less a valid execution of will Ex.P.2. It was held that execution of the will is surrounded with innumerable suspicious circumstances, none of which have legitimately been explained by her. The trial judge has also gone to the extent of holding that it is a forged and fictitious document, for which the appellant needs to be prosecuted for purgery. The circumstances as tabulated by the trial judge, being the suspicious circumstances, are: (A)period of discovery of the will; (b) discovery of the will from the old trunk of the testator; (c) the factum of living of appellant with deceased Godarmal; (d) untrustworthy deposition of the appellant; (e) stamp papers; (f) smudging of the first page of the will with oil; (g) recital of tenancy; (h) ownership of shop; (i) scoring out/cuttings in the will; (j) unfair disposition; (k) ambiguity regarding disposition of properties; and (1) recital regarding cancellation of previous will."
(6) The appellant, in the petition, instituted on 8th October, 1991, alleged that she came across the will only a few days ago, when she wanted to dispose of old articles of the deceased. She broke open the lock of an old trunk and found the will amongst other papers. She did not explain in the petition as to what she meant by "few days". During the trial of the petition, respondent No.2 proved material from the record of F.A.0.107/86. the appeal, which the appellant had filed against an order dated 3rd March, 1986 passed on a petition preferred by respondent No.2 for grant of probate of will dated 9th September, 1974 and also the circumstances, as explained by the appellant in her Letters Patent Appeal No.31 of 1992, preferred by her against the decision of the Learned Single Judge dated 18th December, 1991 dismissing F.A.O.No.l07/86.
(7) The trial judge in the impugned order on discussion of the entire material concluded that there are material discrepencies in the explanation as rendered by the appellant about the time, when the will is alleged to have come to her possession. She rendered three different versions, which alone gave rise to a great suspicion in the mind of the Court about the exact period when will Ex.P.2 is alleged to have been discovered. Her version that the will was discovered from the old trunk of the testator was held false, in the light of the report of the local commissioner appointed during pendency of probate proceedings and FAO. 107/86 and in view of other attending circumstances about the non existence of the iron box of deceased Godarmal in the house in question. The Court observed that it is a foregone conclusion that the appellant falsely concocted the story of having come across the will by breaking open the iron box of deceased Godarmal. It was also held that there was no iron box in the house. Had there been any iron box, belonging to Godarmal, it would have been brought to the notice of the local commissioner, who visited her house on 20th December, 1980 or on any other date, during which the probate proceedings remained pending upto 3rd March,1986 or during the pendency of the FAO.107/86, which was finally decided on 18th December, 1991.
(8) The appellant's version as regards the factum of living with deceased Godarmal, at the relevant lime, was also held to be not correct. It was held that there was unimpeachable evidence on record to falsify the stand taken by the appellant that the deceased resided with her from 1975 till the date of his death.
(9) As regards non-judicial stamp paper, used for scribing will Ex.P.2, it was held that the stamp paper is having Sr.No-16311 dated 18th March, 1975, and is alleged to have been sold to Shri Godarmal for executing will in favour of Raj Rani. The documentary evidence adduced on record, namely, the register maintained by Shri Inder Sain Bobal, Stamp Vendor does not support the appellant's case. There is no such entry of any stamp paper having been sold by the stamp vendor on 18th March, 1975. The register is for the period from 14th March, 1975 to 31st March, 1975 with entries bearing serial No. 28260 to 29890.
(10) The trial judge held the entire case, regarding the alleged execution of the will to have been knocked out from the solitary suspicious and most damaging circumstances that the stamp paper was neither purchased by the deceased, nor sold on the alleged date. The genuineness of the will has also been seriously doubted due to smudging of the 1st page of the will Ex.P.2 with some oily substance. Will Ex.P.2 is on two sheets. First being a non-judicial stamp paper of Rs.2.00 and the second being a plain paper. It was noticed that substantial portion of the upper right middle part of the first page of Ex.P.2 is smudged with some oily substance on the front and its rear side. But strangely there is a trace of such oily substance on the 2nd page of the will. Court held this fact to be casting a serious doubt on the due execution of the will on 18th March, 1975, in as much as, that had the will been executed on 18th March, 1975 and kept by Godarmal in his box, where it remained for 16 years, in that case some trace of oily substance must have come at least on its second page. The Court on merits held the recital of tenancy regarding shops No-5571-5569, Nai Sarak, Delhi and ownership of the shop made in the will to be wrong and the unauthentic scoring of and cuttings in a part of the recital in the will and about unfair deposition as other circumstances for discarding the will. On the basis of these circumstances, a finding is recorded against the appellant.
(11) Learned counsel for the appellant was heard at length, who took me through the entire record. Having considered the submissions made at the bar and on applying the principles of law laid down in the decision of the Supreme Court in H.Venkatachala's case (Supra), I do not find any substance in the appeal or any ground to interfere with the well reasoned findings of facts recorded by the trial Judge.
(12) It is not in dispute that respondent No.2, the only son of the deceased had in the year 1980 Filed an application for grant of probate of will executed by late Godarmal on 9th September, 1974, which was contested by the appellant and ultimately the said petition was allowed on 3rd March, 1986 by the District Judge, Delhi. This order was challenged by the appellant in appeal (FAO.107/86). During the pendency of the appeal, it was brought to the notice of the court that as per Schedule-A of the details of the properties, annexed with the petition for probate, there was a safe lying at premises No.T-23, Old Moti Nagar, near Tibbia College, Rohtak Road, New Delhi, where allegedly some gold and silver, both in solid shape as well as in the form of utencils were kepi by the deceased Godarmal and it was suggested by the counsel for respondent No.2 herein, that under orders of the Court the safe and locker may be got opened and contents examined and inventories prepared. This request was not opposed by learned counsel for the appellant. Accordingly, a local commissioner was appointed to have an inventory prepared of the contents, both of the safe lying at premises No.T-23, Old Moti Nagar, near Tibbia College, Rohtak Road, New Delhi as well as of the locker in Punjab National Bank. It was noticed at that stage that the safe was lying sealed under the orders of the District Judge, Delhi, passed during probate proceedings. It was directed to be opened in co-ordination with an official of the Court of the District Judge, Delhi. Local Commissioner was permitted to open the iron safe with the help of keys to be provided by the official of the District Judge. After opening the seal it was ordered to be rescaled after making an inventory. This order was passed on 24th April, 1991. The local commissioner in his report pointed out that the box could not be opened since one of the locks put on the box had jammed, as such, the other locks which were opened were re-sealed. An order thereafter was passed for breaking open of the locks and the doors of the safe and to make an inventory. The case was directed to be posted for further directions on 15th May,1991.
(13) At this stage it may be mentioned that by an order passed, during probate proceedings, a local commissioner was appointed to prepare an inventory of the moveable property and other articles belonging to Godal Mal lying at T-23, Old Moti Nagar, Delhi. The Local Commissioner in his report Ex.P.W.I/R.3 slated that Smt.Raj Rani, appellant denied of being possesse of any other any article belonging to late Godarmal at T-23, Old Moli Nagar, near Tibbia College, Rohtak Road, New Delhi except an iron safe, which the local commissioner asked her to open but she declined to do so and also refused to hand over the keys of the safe. The local commissioner reported that she had been apprised of the Court's order and of the fact that she had to comply with the same but she declined to do so. Thus according to the local commissioner, he could not prepare an inventory of the articles belonging to Godarmal, as Raj Rani, appellant refused to produce any such articles before the local commissioner excepting an iron box, which according to the report was sealed by him. On the basis of this report of the local commissioner and by virtue the orders of District Judge the iron safe remained locked and sealed, which as ordered to be opened only by virtue of the orders passed by the High Court, in F.A.A. 107/86.
(14) When the iron safe was desealed an inventory was prepared, which finds mention in the order Ex.P.w.l/R.2 dated 16.5.1991. There is no mention of any will ih the inventory. In the light of this material, it is to be examined whether version of the appellant/ appellant is or is not correct.
(15) It is her version as rendered, while appearing as Public Witness .I the will was recovered by her from a trunk belonging to the deceased about 2/3 months prior to filing of the petition for probate. Trunk according to her was opened as she wanted to dispose of old goods, which were not required by her. In the memorandum of appeal (L.P.A. against judgment in F.A.0.107/86) she stated that the will came to her knowledge during the pendency of F.A.O.No.107/86, after arguments were concluded and the judgment was reserved.
(16) In the proceedings for grant of probate of the will propounded by respondent No.2 and during the proceedings in appeal preferred against the order of grant of probate of the will in favour of respondent No.2, the version of the appellant had been that there was no other trunk of the deceased in her possession other than the on which had been sealed by virtue of an order passed by the District Judge, which was opened during the pendency of the appeal. In the earlier proceedings she did not dispute or challenge her version, as noticed in the report of the local commissioner Ex.P.W.1/R-3 dated 20th December, 1980 submitted before the District Judge that there was no other box of the deceased lying with her or that there was no other article of the deceased lying with her. On conclusion of arguments in FAO.107/86, judgment was reserved on 11th May, 1991, which was announced on 18th December, 1991. L.P.A. against the same was preferred on 25th January, 1992. The appellant instituted probate petition on 8th October, 1991. No reference at all was made by her in her petition about respondent No.2 having obtained probate of will executed by Godarmal on 9th September, 1974. She even did not disclose the fact of her having contested those proceedings or the fact that against the order of grant of probate she preferred an appeal in which arguments had been heard and judgment was kept reserved. In view of the cumulative effect of the circumstances, there is no scope of interference in the finding on that aspect recorded by the trial Judge that it was a false version of the appellant that the will had been found by her from the trunk.
(17) First page of Will Ex.P.2 on its reverse bears an endorsement regarding sale of the stamp paper worth Rs.2.00, It is purported to have been sold under Sr.No.16311 on 18th March, 1975 to one Godarmal and the purpose is also recorded that it was required for will in favour of Raj Rani. Respondent No.2 examined R.W.5 Shri Bal Krishan Bhardwaj, L.D.C. from the Office of Collector of Stamps, Deputy Commissioner's Office, Delhi , who brought register pertaining to sale of stamps by Shri Inder Sain Bobal, the authorised stamp vendor and stated that on 18th March, 1975, the entries for sale of stamps are from Sr.No.28260 to 29890. There is no entry bearing Sr.No-16311 on 18th March, 1975 in respect of sale of non-judicial stamp paper worth Rs.2.00 to Godarmal son of late Shri Des Raj. There is also no other entry for sale of stamps on 18th March, 1975 to Godarmal. There is virtually no cross examination on behalf of the appellant of this witness except putting one question that any person can purchase stamps from any stamp vendor, licenced by the office. The unchallenged version of the witness goes to establish that the endorsement on the reverse of the first page of the Will Ex.P.2 is not the correct endorsement or in other words, Godarmal did not purchase this stamp paper on 18th March, 1975 from the stamp vendor. The appellant did make no effort to examine any other witness, which was incumbent for her to do so, in view of the specific stand taken by respondent No.2 in the objection petition, filed in answer to the probate petition that the endorsement on the non-judicial stamp paper is forged one and is in the hand of the appellant's husband. In case non-judicial stamp paper used for will Ex.P.2 is proved to have been not sold on 18th March, 1975 to Godarmal, the trial Judge was perfectly justified in observing that this suspicious circumstance alone is sufficient to discard the will Ex.P.2, since no satisfactory answer or explanation has been given by the appellant in this regard.
(18) The sole witness examined by the appellant, in order to prove the execution of will is Shri Jang Bahadur Singh, Public Witness .2. According to him, he along with Vijay Kumar and Godarmal came to the Court premises at Tis Hazari. Godarmal asked him and Vijay Kumar to wait saying that he will be coming after bringing some papers. After some time Godarmal came back with a typed paper and told him and Vijay Kumar that his daughter had been looking after and caring him well and that he has executed a will in her favour. Godarmal then signed the typed paper in his presence as well as in the presence of Vijay Kumar. He and Vijay Kumar thereafter signed those papers in the presence of Godarmal. The witness when corss examined said that he was not in a position to recall that if Godarmal had also at point A on the will at that time. As rightly pointed out, by the trial judge, the statement of this witness does not inspire any confidence and moreover there is no evidence adduced that who had typed out the will; who had given instructions to the typist for typing out the will; who had read over and explained the contents of the will when it had been typed out; whether the deceased understood the contents thereof before he allegedly put his signatures. It is not stated by the witness that the deceased knew English. The recitals have also not been proved. The will is typed out in English. The trial judge rightly pointed out that this witness was known to the husband of the appellant Raj Rani, since according to this witness, husband of Raj Rani was known to him since prior to partition of the country. Both of them belong to Gujranwalan in Pakistan. According to him, Godarmal had never expressed his desire before that date that he wanted to execute any will.
(19) Without going into the other aspects, I find that the circumstances discussed above alone are sufficient to discard the will. On the basis of evidence no other inference is possible than the one that the appellant as rightly held by the trial judge, miserable failed to discharge the onus by rendering sufficient explanation for the suspicious circumstances attending the due execution fo the will. Appellant's version in the light of her statement, made during these proceedings about deceased residing with her is also self contradictory and the trial court rightly concluded that she had incorrectly stated that deceased was residing with her.
(20) Irrespective of the failure of the appellant to dispel the suspicious circumstances, it is a case in which the appellant, even failed to prove due execution of the will, as per the requirement of law and in the light of the ratio in H. Venkatachala's case (supra). There is no force in this appeal, which is hereby dismissed with costs.