Delhi District Court
Mohd. Yamin Khan vs . State & Anr. on 3 April, 2023
Mohd. Yamin Khan Vs. State & Anr.
IN THE COURT OF ADDITIONAL DISTRICT JUDGE-02,
SOUTH DISTRICT, SAKET COURTS, NEW DELHI
Presiding Judge: Sh. Dinesh Kumar
PC No. 5843/2016
Filing No. 21983/2013
CNR No. DLST01-000123-2016
In the matter of
Mohd. Yamin Khan
S/o Mohd. Ismail
R/o J-3/36, Sangam Vihar,
New Delhi
...............Petitioner
Versus
1. State
2. Sh. Mukesh Sharma
S/o Sh. Om Prakash
R/o C 84, Gali No. 4,
Sangam Vihar, Sewa Sadan,
New Delhi
.............Respondents
Date of Institution : 22.08.2013
Date of reserving the judgment : 04.03.2023
Date of pronouncement : 03.04.2023
Decision : Petition Dismissed.
PETITION UNDER SECTION 276 OF THE INDIAN
SUCCESSION ACT FOR GRANT OF PROBATE OR IN
ALTERNATIVE LETTER OF ADMINISTRATION IN
RESPECT OF THE WILL 21.11.2007
PC No. 5843/2016
CNR No. DLST01-000123-2016
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Mohd. Yamin Khan Vs. State & Anr.
JUDGMENT
1. The present petition has been filed by the petitioner under Section 276 of the Indian Succession Act to obtain probate / letters of administration in respect of the Will left behind by Smt. Santosh Sharma. The case of the petitioner, as per the petition, is as under:
1.1. Smt. Santosh Sharma (hereinafter referred to as testatrix) died on 18.01.2013 at Ajmer, Rajasthan. The Will dated 21.11.2007 is the last Will of deceased Smt. Santosh Sharma. The testatrix has one child i.e. Mr. Mukesh Sharma.
1.2. The petitioner is the beneficiary of the Will to the exclusion of other LRs. As per the Will dated 21.11.2017, the testatrix has bequeathed the property bearing no. C-
84/4 (Old No. C-1360) consisting of two rooms, one kitchen and one latrine, land measuring 50 sq. yds., Khasra No. 23/18/21, situated at C-Block, Gali No. 4, Sangam Vihar, Village Devli, Tehsil Hauz Khas, New Delhi in favour of the petitioner. The testatrix died at Ajmer and was permanent resident of Delhi at time of her death. The property is situated within the jurisdiction of this Court. Hence, the present petition has been filed with the prayer PC No. 5843/2016 CNR No. DLST01-000123-2016 Page 2 of 35 Dinesh Kumar/ADJ-02/South/Saket/ND/03.04.2023 Mohd. Yamin Khan Vs. State & Anr.
that the probate of Will dated 21.11.2007 may kindly be granted in favour of the petitioner with respect to the properties described in the Schedule.
2. Vide order dated 22.01.2014, the citation was directed to be issued as per law. Notice of the petition was directed to be issued to respondent Mukesh Sharma i.e. the son of the testatrix. The citation was published in the newspaper "The Statesman" dated 05.04.2014. Respondent Mukesh Sharma, Son of the deceased, has also appeared after notice. Respondent Mukesh Sharma has filed WS / objections to the present petition. He has opposed the present petition on the following grounds:-
2.1. The present petition of the petitioner is not maintainable and the same is liable to be dismissed. The purported Will of Smt. Santosh Sharma (since deceased) is not a legal, valid and genuine Will of the deceased. Smt. Santosh Sharma died intestate leaving behind the objector, her son, and children of her pre-deceased married daughter namely Smt. Sunita Sharma to inherit her estate as per Hindu Succession Act. The petitioner has not disclosed this fact in the petition.
2.2. The Will dated 21.11.2007 is surrounded with PC No. 5843/2016 CNR No. DLST01-000123-2016 Page 3 of 35 Dinesh Kumar/ADJ-02/South/Saket/ND/03.04.2023 Mohd. Yamin Khan Vs. State & Anr.
highly suspicious circumstances. The petitioner is not entitled for probate or letter of administration in respect of the properties mentioned in the petition. The Will dated 21.11.2007 is false, forged and fabricated document set up by the petitioner in collusion with Praveen Gupta, the attesting witness and with others to usurp the right, title and interest of the objector fraudulently on the basis of the alleged Will. Santosh Sharma (since deceased) neither executed nor signed and put her thumb impression on the alleged Will dated 21.11.2007. Smt. Santosh Sharma did not read or write in English. The signature and thumb impression are also forged, fabricated and not of Smt. Santosh Sharma. Smt. Santosh Sharma had not executed the Will in her own sound state of mind and health, senses, free consent or without any force, pressure and coercion. There exist no legal valid reason for execution of the Will in question by the deceased in respect of the properties mentioned in the Will and that too in favour of the petitioner who is not a legal heir of the deceased. Rather, he is a stranger of different religion and the attesting witnesses were unknown even to deceased Santosh Sharma.
2.3. Smt. Santosh Sharma was not the owner of the PC No. 5843/2016 CNR No. DLST01-000123-2016 Page 4 of 35 Dinesh Kumar/ADJ-02/South/Saket/ND/03.04.2023 Mohd. Yamin Khan Vs. State & Anr.
property bearing no. C-84/4 (old no. C-1360), consisting of two rooms, one kitchen and one latrine, land measuring 50 sq. mtr. Khasra No. 23/18/21 which is subject matter of the alleged Will. Hence, the deceased was not entitled to execute any Will or bequeath the said property in favour of the petitioner. There is no Khasra No. 23/18/21 as mentioned in the Schedule 'A'. Hence, it is prayed that the present petition may be dismissed.
3. The petitioner filed rejoinder to the objections of the objector / respondent no. 2. In the rejoinder the petitioner denied the contentions raised by respondent no. 2 and reiterated the averments made in the petition.
4. On the basis of the pleadings, following issues were framed vide order dated 27.08.2015 :
"1. Whether Smt. Santosh Sharma had executed a valid Will dated 21.11.2017 in her sound health and disposing state of mind? Burden to proof on petitioner (BPP) "2. Whether Smt. Santosh Sharma had expired in intestate? BPP "3. Whether Smt. Santosh Sharma was not knowing to read or write English language, her signature and thumb impression on the said Will written in English is forged and fabricated, the Will cannot be acted upon? OPO (Onus to proof on Objector) "4. Whether the Will dated 21.11.2007 is forged, PC No. 5843/2016 CNR No. DLST01-000123-2016 Page 5 of 35 Dinesh Kumar/ADJ-02/South/Saket/ND/03.04.2023 Mohd. Yamin Khan Vs. State & Anr.
false, fabricated document with the collusion of Shri Praveen Gupta and Shri Raj Narayan Mishra (who has been narrated to be attesting witnesses)? BPP "5. Whether the said Will cannot be acted upon, since the petitioner is Muslim and Smt. Santosh Sharma was Hindu and there was no occasion for her to write the Will in his favour? OPO "6. Whether the said Smt. Santosh Sharma had no authority to write the Will in respect of land measuring 50 sq. meter, Khasra No. 23/18/21, situated in C-Block, Gali No. 4, Sangam Vihar, Village Devli, Delhi? OPO "7. Whether the petitioner is entitled for Letters of Administration on the basis of Will dated 21.11.2007 in his favour? OPP "8. Relief."
5. The petitioner was asked to lead evidence. The petitioner examined himself as PW1. He tendered in evidence by way of affidavit Ex. A-1. He has reiterated the facts stated in his petition. He has relied upon the following documents :
a) Photocopies of civil suit filed by Mukesh Sharma against Smt. Santosh Sharma and other documents : Mark-A/PW-1.
b) Photocopies of civil suit filed by Smt. Santosh Sharma against Mukesh Sharma and other documents : Mark-B/PW-1.
c) Original Will dated 21.11.2007 of Late Santosh Sharma : Mark-C/PW-1.PC No. 5843/2016
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d) Original death certificate of Late Santosh Sharma :
Ex. PW-1/2.
e) Photocopy of voter identity card of the petitioner :
Ex. PW1/4.
f) Photocopies of agreement to sell dated 10.11.1984, affidavit of Ramu, general power of attorney dated 10.11.1984, receipt dated 10.11.1984 and photocopies of agreement to sell dated 03.07.1991, general power of attorney, affidavit of Pushpal Singh, receipt dated 03.07.1991 : Ex. PW-1/4 (Colly)(OSR).
6. The petitioner also examined PW2 Sh. Raj Narain Mishra. He has tendered his evidence by way of affidavit Ex. A-
2. He would also state that Smt. Santosh Sharma had sold his property of 50 sq.yards to Sh. Yamin and documents like attorney and Will were prepared at Mehrauli. He had witnessed many documents in respect of sale of the said property by Smt. Santosh Sharma to Yamin and that he could identify his signatures on those documents. He has identified his signatures and the signatures of the testatrix on the Will. The will was thereafter exhibited as Ex. PW2/A.
7. The petitioner also examined one summoned witness i.e. PC No. 5843/2016 CNR No. DLST01-000123-2016 Page 7 of 35 Dinesh Kumar/ADJ-02/South/Saket/ND/03.04.2023 Mohd. Yamin Khan Vs. State & Anr.
PW3 Sh. Irfanul Haque, Judicial Assistant, Record Room Civil (South), Saket Courts, New Delhi. The witness had brought the summoned record i.e. Civil Suit No. 256/2012 titled Santosh Sharma Vs. Mukesh Sharma decided on 06.05.2013, Goshwara No. 204/2013. The photocopy of the statement dated 11.02.2011 of Smt. Santosh Sharma W/o Late Mr. Om Prakash Sharma was tendered in evidence and the same is Ex. PW3/A.
8. All the witnesses were cross examined by Ld. Counsel for the objector. Vide separate statement of the plaintiff, PE was closed vide order dated 15.11.2018 and the matter was fixed for respondent evidence.
9. The respondent no. 2 / objector, Mr. Mukesh Sharma examined himself as RW1. He has tendered his evidence by way of affidavit Ex.RW1/A. He has deposed similar to the facts mentioned in his written statement / objections.
10. The witness was cross examined by Ld. Counsel for the petitioner. The respondent no. 2 did not examine any other witness. Therefore, RE was closed and the matter was fixed for final arguments.
11. Ld. Counsel for the petitioner would argue that the petitioner has proved the Will and its execution as per law. The respondent no. 2 has taken a false plea in his objections. He has PC No. 5843/2016 CNR No. DLST01-000123-2016 Page 8 of 35 Dinesh Kumar/ADJ-02/South/Saket/ND/03.04.2023 Mohd. Yamin Khan Vs. State & Anr.
not brought any material on record to show that the Will in question is a forged and fabricated document and that it does not bear the signatures or thumb impression of the testatrix. He has also failed to prove any of the grounds mentioned in the objections. Thus, the petitioner has proved his case as per law. Hence, it is prayed that the petition may be allowed and the letters of administration may be granted in favour of the petitioner.
12. Ld. Counsel for the respondent no.2 / objector, on the other hand, would argue that the Will in question is a forged and fabricated document. The present petition is not maintainable. There was no reason for the testatrix to execute the Will in favour of the petitioner who is of different religion while excluding her legal heirs. The Will is in English while the testatrix did not understand English. There is nothing on record to show that the Will was explained to the witness. Further, the petitioner did not make all the legal heirs of the testatrix party in the present suit. There is one married daughter of the testatrix. However, her children have not been made a party in the present petition. Therefore, the petition is not maintainable. Further, during his cross examination, PW1 has stated that no sale document has been executed in his favour and that he had not paid any consideration. However, PW2 has stated that various PC No. 5843/2016 CNR No. DLST01-000123-2016 Page 9 of 35 Dinesh Kumar/ADJ-02/South/Saket/ND/03.04.2023 Mohd. Yamin Khan Vs. State & Anr.
sale documents were executed along with the Will. Thus, reasonable doubts have been created on the case presented by the petitioner. The Will is not genuine. It is a forged and fabricated document. Hence, it is prayed that the petition may be dismissed.
13. I have heard the rival submissions and perused the record. My issue-wise findings are as under.
14. Issue No. 6 : This issue reads as under :
"6. Whether the said Smt. Santosh Sharma had no authority to write the Will in respect of land measuring 50 sq. meter, Khasra No. 23/18/21, situated in C-Block, Gali No. 4, Sangam Vihar, Village Devli, Delhi? OPO"
15. The onus to prove this issue was on the objector. However, the objector has not led any evidence to prove that Smt. Santosh Sharma had no authority to write the Will in respect of the land mentioned in the Will.
16. Be that as it may, a Probate Court is not required to decide whether the property mentioned in a Will belongs to the testator or not. The said issue is to be decided by a Civil Court whenever an issue in a suit in this regard is raised. Hon'ble Supreme Court of India in Kanwarjit Singh Dhillon vs Hardyal Singh Dhillon And Ors Appeal (civil) 4890 of 2007, PC No. 5843/2016 CNR No. DLST01-000123-2016 Page 10 of 35 Dinesh Kumar/ADJ-02/South/Saket/ND/03.04.2023 Mohd. Yamin Khan Vs. State & Anr.
decided on 12 October, 2007, has discussed the power of a Probate Court vis-a-vis, the title / ownership of a property. It has held as under :
"10.... It is well settled law that the functions of a probate court are to see that the Will executed by the testator was actually executed by him in a sound disposing state of mind without coercion or undue influence and the same was duly attested. It was, therefore, not competent for the probate court to determine whether late S.Kirpal Singh had or had not the authority to dispose of the suit properties which he purported to have bequeathed by his Will. The probate court is also not competent to determine the question of title to the suit properties nor will it go into the question whether the suit properties bequeathed by the Will were joint ancestral properties or acquired properties of the testator. "11. In Chiranjilal Shrilal Goenka v. Jasjit Singh and Ors., [1993] 2 SCC 507, this Court while upholding the above views and following the earlier decisions of this Court as well as of other High Courts in India observed in paragraph 15 at page 515 which runs as under :-
"In Ishwardeo Narain Singh v. Smt. Kamta Devi this Court held that the court of probate is only concerned with the question as to whether the document put forward as the last will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution the testator had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the probate court. Therefore, the only issue in a probate proceeding relates to the genuineness and due execution of the will and the court itself is under duty to determine it and perverse the original will in its custody. The Succession Act is a self-contained code insofar as the question of making an application for probate, grant or refusal of probate or an appeal carried against the decision of the probate court. This is clearly manifested in the fascicule of the provisions of the Act. The probate proceedings shall be conducted by the probate court in the PC No. 5843/2016 CNR No. DLST01-000123-2016 Page 11 of 35 Dinesh Kumar/ADJ-02/South/Saket/ND/03.04.2023 Mohd. Yamin Khan Vs. State & Anr.
manner prescribed in the Act and in no other ways. The grant of probate with a copy of the will annexed establishes conclusively as to the appointment of the executor and the valid execution of the will. Thus, it does no more than establish the factum of the will and the legal character of the executor. Probate court does not decide any question of title or of the existence of the property itself." (Emphasis supplied).
17. In the present case also, this Court is not required to decide whether the testatrix was the owner of the property mentioned in the Will or not. The Court has to decide whether the Will executed by the testatrix was actually executed by her in a sound disposing state of mind without coercion or undue influence and the same was duly attested as per law. The issue is accordingly decided against the respondent no. 2 / objector.
18. Issues No. 1, 2, 3, 4 and 5: All these issues are taken jointly as they are interconnected and require common discussion. The issues read as under:-
"1. Whether Smt. Santosh Sharma had executed a valid Will dated 21.11.2017 in her sound health and disposing state of mind? Burden to proof on petitioner (BPP) "2. Whether Smt. Santosh Sharma had expired in intestate? (BPP) "3. Whether Smt. Santosh Sharma was not knowing to read or write English language, her signature and thumb impression on the said Will written in English is forged and fabricated, the Will cannot be acted upon? OPO (Onus to proof on Objector) PC No. 5843/2016 CNR No. DLST01-000123-2016 Page 12 of 35 Dinesh Kumar/ADJ-02/South/Saket/ND/03.04.2023 Mohd. Yamin Khan Vs. State & Anr.
"4. Whether the Will dated 21.11.2007 is forged, false, fabricated document with the collusion of Shri Praveen Gupta and Shri Raj Narayan Mishra (who has been narrated to be attesting witnesses)? (BPP) "5. Whether the said Will cannot be acted upon, since the petitioner is Muslim and Smt. Santosh Sharma was Hindu and there was no occasion for her to write the Will in his favour? (OPO)
19. Before discussing the issues on merits, it would be relevant to discuss the law relating to the execution and proof of Wills under the Indian Succession Act and the Indian Evidence Act. The expression "Will" is defined by Section 2(h) of Indian Succession Act, 1925 to mean the legal declaration of "the intention" of a testator with respect to his property "which he desires to be carried into effect after his death". Section 59 of Indian Succession Act, 1925 governs the capability of a person to make a Will. It reads as under:
"59. Person capable of making Wills --- Every person of sound mind not being a minor may dispose of his property by Will. "Explanation1.-A married woman may dispose by Will of any property which she could alienate by her own act during her life.
"Explanation 2.--- Persons who are deaf or dumb or blind are not thereby incapacitated for making a Will if they are able to know what they do by it.
"Explanation 3.--- A person who is ordinarily insane may make a Will during interval in which he is of sound mind. "Explanation 4.--- 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 PC No. 5843/2016 CNR No. DLST01-000123-2016 Page 13 of 35 Dinesh Kumar/ADJ-02/South/Saket/ND/03.04.2023 Mohd. Yamin Khan Vs. State & Anr.
is doing."
20. Section 59 thus declares that every person (not being a minor) "of sound mind" may dispose of his property by Will. The second explanation appended to the said provision clarifies that persons who are "deaf or dumb or blind" are not incapacitated by such condition for making a Will "if they are able to know what they do by it". The third explanation makes the basic principle clear by adding that even a person who is "ordinarily insane" may make a Will during the interval in which "he is of sound mind". The fourth explanation renders it even more lucent by putting it negatively in words to the effect that it the person "does not know what he is doing" for any reason (such as intoxication, illness or any other such cause) he is incompetent to make a Will. The focal pre-requisite, thus, is that at the time of expressing his desire vis-a-vis the disposition of the estate after his demise he must know and understand its purport or import. Section 276 of the Indian Succession Act deals with the petition for probate or for letters of administration, with the Will annexed. Section 278 of the Indian Succession Act deals with petition for grant of letter of administration. It is settled preposition of law that probate can be granted only to a person mentioned as executor in Will.
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Grant of letters of administration does not create any title but is only declaratory existing in the LRs of the deceased. A 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:-
a) Will in question is a legal declaration of the intention of the deceased.
b) The testator, while executing the will, was in a sound and disposing state of mind.
c) The testator 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.
21. It is further a settled proposition of the law that no specific format of the Will or specific form of attestation is required. It is also well settled that the propounder of the Will is required to prove not only the ingredients discussed herein- above but also to take away suspicious circumstances if any, surrounding the Will, to the satisfaction of the conscience of the Court. It is the duty of the Court to ascertain as to whether the Will is genuine and duly executed Will of testator so as to say that it was executed by him in disposing mind out of his own PC No. 5843/2016 CNR No. DLST01-000123-2016 Page 15 of 35 Dinesh Kumar/ADJ-02/South/Saket/ND/03.04.2023 Mohd. Yamin Khan Vs. State & Anr.
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. 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, fraud, undue influence or coercion etc.
22. The execution of an unprivileged Will, as the case at hand relates to, is governed by Section 63 of the Indian Succession Act, 1925, which reads as under:
"63 Execution of unprivileged Wills. --Every testator, not being a soldier employed in an expedition or engaged in actual warfare or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules:
"(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
"(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.
"(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has 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 signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."
23. As per the mandate of clause (c), a Will is required to be PC No. 5843/2016 CNR No. DLST01-000123-2016 Page 16 of 35 Dinesh Kumar/ADJ-02/South/Saket/ND/03.04.2023 Mohd. Yamin Khan Vs. State & Anr.
attested by two or more witnesses each of whom should have seen the testator sign or put his mark on the Will or should have seen some other person sign the Will in his presence and by the direction of the testator or should have received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person. The Will must be signed by the witness in the presence of the testator, but it is not necessary that more than one witness should be present at the same time. No particular form of attestation is necessary. Thus, there is no prescription in the statute that the testator must necessarily sign the Will in the presence of the attesting witnesses only or that the attesting witnesses must put their signatures on the Will simultaneously, that is, at the same time, in the presence of each other and the testator. In H. Venkatachala Iyengar v. B.N. Thimmajamma and Others:AIR 1959 SC 443 Hon'ble Supreme Court of India has held that a Will is produced before the court after the testator who has departed from the world, cannot say that the Will is his own or it is not the same. This factum introduces an element of solemnity to the decision on the question where the Will propounded is proved as the last Will or testament of the departed testator. Therefore, the propounder to succeed and prove the Will is required to prove by satisfactory evidence that PC No. 5843/2016 CNR No. DLST01-000123-2016 Page 17 of 35 Dinesh Kumar/ADJ-02/South/Saket/ND/03.04.2023 Mohd. Yamin Khan Vs. State & Anr.
(i) the Will was signed by the testator; (ii) the testator at the time was in a sound and disposing state of mind; (iii) the testator understood the nature and effect of the dispositions; and
(iv) that the testator had put his signature on the document of his own free will. It 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 mind of the testator and his signature as required by law, courts would be justified in making a finding in favour of the propounder. Such evidence would discharge the onus on the propounder to prove the essential facts. The Hon'ble Supreme Court further held that it is necessary to remove suspicious circumstances surrounding the execution of the Will.
24. Hon'ble Supreme Court of India in Jaswant Kaur vs Amrit Kaur & Ors : AIR 1977 SC 74 has discussed the law related to proving a will. It has held as under:
"There is a long line of decisions bearing on the nature and standard of evidence required to prove a will. Those decisions have been reviewed in an elaborate judgment of this Court in R. Venkatachala Iyengar v.B.N. Thirnmajamma & Others. (1) The Court, speaking through Gajendragadkar J., laid down in that case the following positions :--
"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 ease of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty.PC No. 5843/2016
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"2. Since section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by section 63 of the Evidence Act, one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive and subject to the process of the court and capable of giving evidence.
"3. Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed.
"This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will. "4. Cases in which the execution of the will is surround- ed by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons 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 circumstance that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question PC No. 5843/2016 CNR No. DLST01-000123-2016 Page 19 of 35 Dinesh Kumar/ADJ-02/South/Saket/ND/03.04.2023 Mohd. Yamin Khan Vs. State & Anr.
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 circumstances 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."
25. In Shashi Kumar Banerjee & Ors vs Subodh Kumar Banerjee Since deceased through LRs.:AIR 1964 SC 529, Hon'ble Supreme Court has discussed the law relating to the Will to be proved. Hon'ble Supreme Court has held as under:-
"5. The principles which govern the proving of a will are well settled; (see H. Venkatachala Iyengar v. B. N. Thimmajamma, 1959 (S1) SCR 426 : 1959 AIR(SC) 443) and Rani Purniama Devi v. Khagendra Narayan Dev, 1962 (3) SCR 195 : 1962 AIR(SC) 567). The mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by S. 63 of the Indian Succession Act. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before the Court accepts the will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no. such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court. The suspicious circumstances may be as to genuineness of the signature of the testator, the condition of the testator's mind, the PC No. 5843/2016 CNR No. DLST01-000123-2016 Page 20 of 35 Dinesh Kumar/ADJ-02/South/Saket/ND/03.04.2023 Mohd. Yamin Khan Vs. State & Anr.
dispositions made in the will being unnatural improbable or unfair in the light of relevant circumstances or there might be other indication in the will to show that the testator's mind was not free. In such a case the Court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes part in the execution of the will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the Court would grant probate, even if the will might be unnatural and might cut off wholly or in part near relations. It is in the light of these settled principles that we have to consider whether the appellants have succeeded in establishing that the will was duly executed and attested."
26. Similarly in Navneet Lal Alias Rangi vs Gokul and Others : AIR 1976 SC 794, Hon'ble Supreme Court of India has laid down the following Principles/Guidelines:-
"From the earlier decisions of this Court the following principles, inter alia, are well established:-
"(1) In construing a document whether in English or in vernacular the fundamental rule is to ascertain the intention from the words used; the surrounding circumstances are to be considered; but that is only for the purpose of finding out the intended meaning of the words which have actually been employed. [Ram Gopal v. Nand Lal and others(1)]. "(2) In construing the language of the will the court is entitled to put itself into the testator's armchair [Venkata Narasimha v.
Parthasarathy(2)] and is bound to bear in mind also other matters than merely the words used. It must consider the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense....but all this is solely as an aid to arriving at a right construction of the will, and to ascertain the meaning of its language when used by that particular testator in that PC No. 5843/2016 CNR No. DLST01-000123-2016 Page 21 of 35 Dinesh Kumar/ADJ-02/South/Saket/ND/03.04.2023 Mohd. Yamin Khan Vs. State & Anr.
document. [Venkata Narasimha's case supra and Gnanambal Ammal v. T. Raju Ayyar and Others(1)].
"(3) The true intention of the testator has to be gathered not by attaching importance to isolated expressions but by reading the will as a whole with all its provisions and ignoring none of them as redundant or contradictory [Raj Bajrang Bahadur Singh v. Thakurain Bakhtraj Kuer(2)].
"(4) The court must accept, if possible, such construction as would give to every expression some effect rather than that which would render any of the expression inoperative. The court will look at the circumstances under which the testator makes his will, such as the state of his property, of his family and the like. Where apparently conflicting dispositions can be reconciled by giving full effect to every word used in a document, such a construction should be accepted instead of a construction which would have the effect of cutting down the clear meaning of the words used by the testator. Further, where one of the two reasonable constructions would lead to intestacy, that should be discarded in favour of a construction which does not create any such hiatus. [Paerey Lal v. Rameshwar Das(3)]. "(5) It is one of the cardinal principles of construction of wills that to the extent that it is legally possible effect should be given to every disposition contained in the will unless the law prevents effect being given to it, Of course, if there are two repugnant provisions conferring successive interests, if the first interest created is valid the subsequent interest cannot take effect but a Court of construction will proceed to the farthest extent to avoid repugnancy, so that effect could be given as far as possible to every testamentary intention contained in the will. [Ramachandra Shenoy and Another v. Mrs. Hilda Brite and Other(4)]..."
27. Sections 68 of the Evidence Act, which relates to proof of documents required by law to be attested, reads as under:
"68. Proof of execution of document required by law to be attested.--If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there PC No. 5843/2016 CNR No. DLST01-000123-2016 Page 22 of 35 Dinesh Kumar/ADJ-02/South/Saket/ND/03.04.2023 Mohd. Yamin Khan Vs. State & Anr.
be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.
28. In the present case, one of the objection of the respondent is that the Will can not be acted upon as the petitioner is Muslim while testatrix was Hindu. However, no provision of the law has been brought in the knowledge of the Court which creates any such bar.
29. The petitioner in the present case has claimed that the testatrix had executed the Will in question bequeathing her property in his favour. Admittedly, there is no blood relationship between the testatrix and the petitioner. He is not related to the testatrix even remotely. The testatrix, by executing the Will in question, excluded her legal heirs from inheriting her property. I am conscious of the legal position that exclusion of legal heirs need not be a ground in all the cases to hold that the Will in question is not genuine. The decisions of the Hon'ble Supreme Court in Uma Devi Nambiar Vs. T.C. Sidhan, (2004) 2 SCC 321, and Pentakota Satyanarayana Vs. Pentakota Seetharatnam, (2005) 8 SCC 67 are authorities on the principle that exclusion of the natural heirs need not or PC No. 5843/2016 CNR No. DLST01-000123-2016 Page 23 of 35 Dinesh Kumar/ADJ-02/South/Saket/ND/03.04.2023 Mohd. Yamin Khan Vs. State & Anr.
necessarily lead to an inference that the Will was not genuine. However, that can be a factor to be considered along with various other factors when the doubt has been created on the creation of the Will voluntarily by the testatrix.
30. In the present case, the petitioner in his affidavit of evidence has stated that the testatrix by executing the Will in question had bequeathed her property in his favour. However, neither in the petition nor during his evidence, the petitioner explained as to why the testatrix had bequeathed her property in his favour only while excluding the natural legal heirs. Even in the Will no reason has been mentioned for such exclusion.
31. During his cross examination as PW1, the petitioner would state that he used to know Smt. Santosh Sharma as she was his neighbour in Sangam Vihar. He has admitted the suggestion that Smt. Santosh Sharma used to remain sick since the time he was known to her. He has also admitted the suggestion that Smt. Santosh Sharma was physically feeling harassed and disturbed because of her physical health. However, he denied the suggestion that she was mentally disturbed due to her physical health. He would also state that the Will was got prepared from a typist sitting outside the Court in Mehrauli. He was also present when the Will was prepared along with the PC No. 5843/2016 CNR No. DLST01-000123-2016 Page 24 of 35 Dinesh Kumar/ADJ-02/South/Saket/ND/03.04.2023 Mohd. Yamin Khan Vs. State & Anr.
witnesses Mr. Raj Narain Mishra and Mr. Praveen Gupta. He would also state that there were other documents prepared other than the Will in question and that one of such document was attorney document. He would also state that he had also signed those documents. During his cross examination on 05.07.2018, he would state that his signatures were obtained on a number of documents including the Will. However, apart from informing him that one of the document was a Will, he did not know as to on what other documents, his signatures were obtained. He voluntarily stated that Santosh Sharma was not in good health. While answering to a specific question, he would state that he had not paid even a single penny to Smt. Santosh Sharma towards consideration of the property bearing Municipal No. C- 84, Gali No. 4, Sangam Vihar, New Delhi.
32. The testimony of PW1 would show that he was present when the Will in question was prepared and signed by the testatrix. It also shows that there were various other documents got signed from the testatrix on that day along with the Will in question. His testimony also shows that on the day when the Will and other documents were executed, Smt. Santosh Sharma was not in good health. The PW1 has stated that he had not paid any consideration amount for the properties mentioned in the Will. Thus, the petitioner has claimed that he had not purchased PC No. 5843/2016 CNR No. DLST01-000123-2016 Page 25 of 35 Dinesh Kumar/ADJ-02/South/Saket/ND/03.04.2023 Mohd. Yamin Khan Vs. State & Anr.
the suit property from the testatrix and no consideration in this regard was paid.
33. However, PW2 Raj Narain Mishra, who is one of the attesting witness of the Will, has deposed that Smt. Santosh Sharma had sold her property to Yamin Khan and he had witnessed execution of documents in that respect including the Will in question. Thus, the testimony of PW2 contradicts the testimony of PW1. The PW1 has stated that he had not purchased the property in question from the testatrix and that he had not paid any consideration. The PW2, on the other hand, has stated that the petitioner had purchased the property in question from Smt. Santosh Sharma and the documents including the Will in question were executed in this regard. This is a material contradiction which has remained unexplained.
34. Both the PW1 and PW2 have stated that the testatrix used to remain sick. PW1 has also stated that on the day of execution of the document, testatrix was not in good health. As per the testimonies of PW1 and PW2, various other documents were also executed along with the Will in question. However, those documents have not been brought on record. The Will in question is written in Roman Script in English Language while the signatures of the testatrix are in Devnagri Script in Hindi PC No. 5843/2016 CNR No. DLST01-000123-2016 Page 26 of 35 Dinesh Kumar/ADJ-02/South/Saket/ND/03.04.2023 Mohd. Yamin Khan Vs. State & Anr.
Language. There is nothing on record to show that the testatrix could read English Language and that she had understood the contents of the Will before putting her signatures thereon. The fact that various other documents were also executed on that day and signatures of the testatrix were taken on various documents also becomes important. It is not the case of the petitioner that the testatrix had executed a Will in his favour along with other documents after he had purchased the property of the testatrix. There is also a possibility that along with the other documents, the Will in question was also got signed from the testatrix without explaining the contents of the Will to her. Admittedly, the testatrix was not in good health on the day of execution of the Will in question. Therefore, the possibility of not knowing the contents of the Will cannot be ruled out.
35. The petitioner and the attesting witness have stated in their testimonies that the petitioner was also present when the Will in question was executed. It is settled position of law that presence of the beneficiary of a Will at the time of execution of the Will creates suspicion on the genuineness of the Will. I get strength from the judgment titled H. Venkatachala Iyengar v. B.N. Thimmajamma and Others:AIR 1959 SC 443 wherein Hon'ble Supreme Court has held as under:
PC No. 5843/2016CNR No. DLST01-000123-2016 Page 27 of 35 Dinesh Kumar/ADJ-02/South/Saket/ND/03.04.2023 Mohd. Yamin Khan Vs. State & Anr.
"Apart from the suspicious circumstances to which we have just referred, in some cases the wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. It is in connection with wills that present such suspicious circumstances that decisions of English courts often mention the test of the satisfaction of judicial conscience."
36. In the present case also, the petitioner was required to explain as to why he was present with the testatrix at the time of execution of the Will in question. Perusal of the record would show that the petitioner has brought on record the copy of a plaint of a suit filed by the testatrix against the respondent no.2. The copy of the same is Mark-B/PW1. The said suit is shown to be filed by the testatrix through her attorney Mr. Yameen Khan who is the petitioner herein. The copy of the power of attorney executed by the testatrix in favour of Yameen Khan is also on record. Perusal of the said document would show that there was a fiduciary relationship between the petitioner and the testatrix. Therefore, it becomes necessary for the petitioner to explain the reason for his presence with the testatrix at the time of the PC No. 5843/2016 CNR No. DLST01-000123-2016 Page 28 of 35 Dinesh Kumar/ADJ-02/South/Saket/ND/03.04.2023 Mohd. Yamin Khan Vs. State & Anr.
execution of the alleged Will. However, no explanation has been provided by the petitioner in this regard.
37. The petitioner has examined the PW3 who has brought on record copy of a statement stated to be made by the testatrix in the Court of Ld. Civil Judge - 01, South District, Saket on 11.02.2011 wherein she would state that she had sold the entire property 3 - 4 years back to Mr. Yamin. However, the petitioner has nowhere in the petition or in evidence has averred that he had purchased the property from the testatrix. During his cross examination, he even stated that he had not paid any consideration in relation to the property mentioned in the Will. It is settled position of law that without consideration, there can be no sale of any immovable property. In such circumstances possibility of misuse of position of fiduciary relationship can not be ruled out. It was for the petitioner to dispel such suspicion circumstances. However, he has failed to do so.
38. There is one more aspect. Both the witnesses i.e. PW1 and PW2 have stated that the Will was typed by typist in their presence and thereafter, it was signed by the testatrix and the witnesses. Thus, the Will was typed and signed on the same day in the presence of an advocate as deposed by both the witnesses. However, the typed portion of the Will does not bear any date of PC No. 5843/2016 CNR No. DLST01-000123-2016 Page 29 of 35 Dinesh Kumar/ADJ-02/South/Saket/ND/03.04.2023 Mohd. Yamin Khan Vs. State & Anr.
its execution. There is one date i.e. 11.11.2007 mentioned by hand with a pen on the top of the document which appears to be mentioned later on. That addition of the date does not bear any initials of the testatrix or any of the witness. It is written in a different ink with a different pen than the pen used by the witnesses and the testatrix. Further, the names of the witnesses and their addresses are also not typed on the Will even though both the witnesses have deposed that the witnesses were also present when the Will was typed by the typist and an advocate was also present. If the Will was typed by a typist in the presence of an advocate, the date of the execution of the Will and the names of the witnesses must have been typed on the said Will. However, this is not so in the present case. Therefore, there is a possibility that the Will was not prepared in the manner and on the date as narrated by the petitioner and the PW2.
39. All these circumstances creates suspicion on the execution of the Will by the testatrix voluntarily and in sound disposing state of mind without any influence. The petitioner has failed to explain the suspicious circumstances arising on execution of the Will in question. The conscience of the Court is not satisfied by the petitioner. Reasonable doubts have been created on the execution of the Will in question. Hence, I hold PC No. 5843/2016 CNR No. DLST01-000123-2016 Page 30 of 35 Dinesh Kumar/ADJ-02/South/Saket/ND/03.04.2023 Mohd. Yamin Khan Vs. State & Anr.
that the petitioner has failed to prove that Smt. Santosh Sharma had executed the Will Ex. PW2/A in her sound health and disposing state of mind.
40. The objector / respondent no. 2 in his evidence has deposed that the testatrix was illiterate and could only sign. He has also stated that the petitioner never helped the testatrix and that there was no family relationship between the petitioner and the testatrix. No cross examination of the witness has been done on the said aspects. The PW1 and PW2, on the other hand, have stated in their cross examination that they were not aware of the education qualification of the testatrix. Perusal of the Will Ex. PW2/A would show that the signatures of the testatrix are in Devnagri Script and not in English (Roman Script). Even though there is nothing on record to show that the Will does not bear signature and thumb impression of the testatrix, it becomes doubtful whether she had signed the Will with sound disposing mind after knowing the contents of the document. The Will does not contain any recital to the effect that the Will was read over to the testatrix before her signatures were taken thereon. When it is shown that the beneficiary of the Will was present at the time of execution of the Will in question and that the testatrix was sick at the time of execution of the Will, it becomes important to prove that the contents of the Will were explained PC No. 5843/2016 CNR No. DLST01-000123-2016 Page 31 of 35 Dinesh Kumar/ADJ-02/South/Saket/ND/03.04.2023 Mohd. Yamin Khan Vs. State & Anr.
to the testatrix before she put her signature and thumb impression on the document. However, the material on record does not prove that the contents of the Will were explained to her. Hence, I hold that the petitioner has failed to prove, on the preponderance of probabilities that the testatrix had executed the Will Ex.PW2/A in her sound health and disposing state of mind. No doubt, the relationship between the testatrix and the respondent no. 2 are shown to be not cordial, as is reflected from the cross examination of the respondent witness, this fact does not absolve the petitioner from proving the execution of the Will as per law. He was still required to dispel all the above- mentioned suspicous circumstances surrounding the execution of the Will in question. As held by the Hon'ble Supreme Court of India in Jaswant Kaur vs Amrit Kumar AIR 1977 SC 74, a feeble mind, an 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 who would normally receive their due share in her estate PC No. 5843/2016 CNR No. DLST01-000123-2016 Page 32 of 35 Dinesh Kumar/ADJ-02/South/Saket/ND/03.04.2023 Mohd. Yamin Khan Vs. State & Anr.
were disinherited because the testator might have had her own reasons 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 testatorix. In cases where the execution of Will is surrounded by suspicious circumstance, the test of satisfaction of the judicial conscience has to be applied. The test emphasizes that in determining the question as to whether an instrument produced before the court is the last Will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the Will has been validly executed by the testator. No doubt, 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. However, even in the absence of such pleas, the very circumstances surrounding the execution' of the Will may raise a doubt as to whether the testator was acting of her own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter. In the present case, the petitioner has failed to remove all the reasonable doubts discussed herein-above. He PC No. 5843/2016 CNR No. DLST01-000123-2016 Page 33 of 35 Dinesh Kumar/ADJ-02/South/Saket/ND/03.04.2023 Mohd. Yamin Khan Vs. State & Anr.
has failed to prove that the testatrix was in a sound and disposing state of mind at the time of execution of the Will; that she understood the nature and effect of the dispositions; and that she had put her signature on the document of her own free will. Issue no. 1 is therefore decided against the petitioner. Issue no. 5 is decided against the objector.
41. To decide the issue no. 2, I am of the considered opinion that the material on record in the present case does not show that the testatrix had executed any other Will and therefore it is shown that she had died intestate. To decide issue no. 3, I hold that even though there is nothing on record to show that the signature and thumb impression on the Will are forged, the Will can not be acted upon for the aforementioned reasons. So far as issue no. 4 is concerned, I hold that the material on record does not prove any collusion between the testatrix and the witnesses. The issues are accordingly decided.
42. Issue No. 7: This issue reads as under :
"7. Whether the petitioner is entitled for Letters of Administration on the basis of Will dated 21.11.2007 in his favour? OPP"
43. In the light of the decision on issue no. 1 to 5 as discussed herein-above, I hold that the petitioner is not entitled for letter PC No. 5843/2016 CNR No. DLST01-000123-2016 Page 34 of 35 Dinesh Kumar/ADJ-02/South/Saket/ND/03.04.2023 Mohd. Yamin Khan Vs. State & Anr.
of administration on the basis of Will dated 21.11.2007 in his favour. The issue is therefore, decided against the petitioner.
44. Issue No. 8: Relief - In view of the discussion herein- above, the petition of the petitioner is dismissed. The petitioner is not entitled to any relief. Parties shall bear their own cost.
45. The Original Will shall remain part of the judicial records as provided under Section 294 of the Indian Succession Act.
Pronounced in the open Court on this 03rd day of April 2023.
(DINESH KUMAR) ADDL. DISTRICT JUDGE-02 SOUTH, SAKET COURTS, NEW DELHI.
DINESH Digitally signed by
DINESH KUMAR
KUMAR Date: 2023.04.04
10:54:38 +05'30'
PC No. 5843/2016
CNR No. DLST01-000123-2016
Page 35 of 35 Dinesh Kumar/ADJ-02/South/Saket/ND/03.04.2023