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3 Similar to FN 2 ibid., the respondent No. 2 of the present appeal was on record as respondent No. 3 in the Trial Court and High Court. Therefore, in the impugned judgments and other proceedings he is described as ‘respondent No. 3’. However, for continuity of expressions in this judgment, he is referred to as ‘the respondent No. 2’ with contextual clarification wherever required.
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5.1. The property in question is identified as bearing number D-179, Defence Colony, New Delhi admeasuring 325 square yards and comprising of a building having ground floor, first floor, terrace and annexe block of garage and servant quarter. The whole property originally belonged to Lt. Col. (Rtd.) D. S. Mamik, father of the contesting parties who, in his lifetime, gifted the ground floor of this property to the appellant by way of a registered Gift Deed dated 25.01.2001; and thereafter, he bequeathed the remaining portion/s, that is, the first floor, terrace and the annexe block of garage and servant quarter in favour of his wife Smt. Amarjeet Mamik through a registered Will dated 14.02.2001. Lt. Col. (Rtd.) D. S. Mamik expired on 20.10.2002. Hence, after his demise, Smt. Amarjeet Mamik, mother of the contesting parties, became owner of the first floor and other portions of the said property except the ground floor. 5.2. It is also noteworthy that at the time of execution of the contested Will dated 20.05.2003, the testatrix Smt. Amarjeet Mamik was residing at the ground floor of this property (which had otherwise been gifted to the appellant by her father). The first floor of this property (which had otherwise been bequeathed to the testatrix by her husband) has remained in occupation of respondent No. 1, the widowed daughter of the testatrix. THE WILL IN QUESTION

8.1. Briefly put, the petition leading to this appeal was filed by the appellant on 06.11.2006 in the Court of District Judge at Delhi under Section 276 of the Indian Succession Act, 1925 4 for grant of probate of the Will in question, said to have been executed by her mother Smt. Amarjeet Mamik while arraying the State (N.C.T., Delhi) as the party respondent. Thereafter, by filing amended memo of parties, the present respondent Nos. 1 and 2 were arrayed as respondent Nos. 2 and 3 respectively. The appellant stated the facts relating to the children of the testatrix as also the said gift of the ground floor made by the father in her favour and then, asserted in the petition that by the Will in question, the testatrix had bequeathed the first floor and other portions except the ground floor of the 4 Hereinafter also referred to as ‘the Succession Act’. said property at No. D-179, Defence Colony, New Delhi in her favour with directions to carry out one of the two options, i.e., either to construct on the terrace of the first floor of the said property or to demolish the said building and to re-construct and give the highest floor of the said building to Mrs. Pamela Mehta (other daughter of testatrix) while retaining the terrace rights thereon; and had bequeathed the balance in her savings bank account maintained with Central Bank of India in favour of her son Col. (Rtd.) Prithivijit Mamik. While stating that the Will in question was duly executed in the presence of the aforesaid two witnesses and that the testatrix expired on 21.05.2006, the appellant asserted that she was the executor and beneficiary of the Will in question and was entitled to seek its probate. 8.2. For their relevance, we may usefully take note of the material contents of the said petition as also those of Schedule A and Schedule B attached to the petition, giving out respectively the particulars of the natural heirs of the deceased Smt. Amarjeet Mamik and a list of assets of the deceased as under:-

“ 33. Even from the evidence of attesting witnesses i.e. PW2 and PW3 it can’t be said that testatrix had put her signatures on the Will Ex. PW1/H after understanding its contents or that while signing she was aware of its contents.” 17.2.3. Proceeding further, the High Court also took note of the statement of the respondent No. 1 that the testatrix was not even 10th pass; and also referred to the statement of the appellant that she was not aware of the educational qualification of her mother but her mother could read and write in the English language. The High Court referred to the fact that the testatrix was not computer literate and had no legal knowledge; and the language used in the Will showed that the same was drafted by a lawyer. The High Court observed that no evidence was led in as to who drafted and typed the Will Ex. PW1/H and considered the same to be a suspicious circumstance with reference to the decision of this Court in Smt. Jaswant Kaur (supra). The High Court also took into account the feature that the document in question was partly typed and partly handwritten with no plausible explanation for the same and found that the document was not prepared in one sitting. Thus, after thorough analysis, the High Court concluded that from the evidence led in by the appellant, it cannot be said that the testatrix had understood the typed portion or that the same was read over to her before she put her signatures on the Will. Accordingly, the High Court affirmed the findings of the Trial Court in regard to such a suspicious circumstance while observing and finding as under: – “35. …The Will Ex. PW1/H is partly typed and partly hand written i.e. opening and closing para of the Will Ex. PW1/H. The evidence shows that the Will Ex. PW1/H was also not prepared in one sitting. The first and last para of Will Ex. PW1/H is in the handwriting of testatrix. The rest of the Will Ex. PW1/H is typed one. No explanation has been given in evidence as to why the Will is partly handwritten and partly typed. During arguments, learned counsel for appellant has submitted that first and last para are handwritten so as to give more weightage to the Will in question. However, the reasoning given is not understandable. Further, no evidence is led by the appellant to show from where the Will in question was got typed. The first para of Will in question gives the name and other details of testatrix and last para is the closing para of the Will in question. The typed portion gives the details of alleged bequeath in the Will Ex. PW1/H whereby major portion has been given to the appellant and one floor as per choice of the appellant is alleged to have been bequeathed in favour of respondent No. 2. Reading the evidence led by the appellant it can’t be said that the testatrix had understood the typed portion or same was read over to her before she had put her signatures on the Will Ex. PW1/H. The learned ADJ has rightly held the above as the suspicious circumstance…..” 17.3. The High Court thereafter examined the bequeathing contents of the Will in question and observed that nothing was available in the petition or evidence of the appellant as to why the major portion of immovable property was given to her though she was not staying with the testatrix for about 20- 22 years and it was not her case that she was looking after the testatrix who was a cancer patient. On the other side of the picture, the High Court noticed that the widowed daughter of the testatrix (respondent No. 1 herein) was, at the relevant time, living on the first floor of the house where testatrix was residing; and, as per the evidence on record, respondent No. 1 was looking after her mother and was taking her to Army Hospital. Having thus taken note of the overall scenario and setup, the High Court found it rather inexplicable that the respondent No. 1 was left at the mercy of the appellant; that in the Will in question, no time limit was provided as to when the appellant would construct the floors and about the nature and quality of the construction; and that respondent No. 1 shall have to be dispossessed for the purpose of the expected construction.

(2013) 9 SCC 425, where the testatrix had bequeathed property in excess to her share and this Court held that the bequest has to be treated only to the extent of the share held by the testatrix.
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Succession Act, when the principal bequeathing stipulation in the Will suffers from uncertainty to the hilt.

30.7. A close look at the Will in question brings forth yet another interesting, nay disturbing, feature of its contents. Whilst in the first alternative in sub-clause (a) of Clause 1 of the bequeathing part of the Will, the testatrix expected that the appellant shall construct “residential facility of such covered area as is permissible under the Municipal Building Bye-laws at the time of my demise”, whereas, in sub-clause (b) thereof, the testatrix provided the alternative that the appellant shall carry out new construction “as is permissible under the Municipal Building Bye-laws”. The expression “at the time of my demise”, as occurring in sub-clause (a) does not occur in sub-clause (b). Now, it remains elementary that if a construction is to be raised, it has to conform to the Building Bye-laws or Regulations as in force and as applicable at the relevant time of construction. The testatrix could not have overridden the operation of law by providing that the construction could be raised as permissible under the Bye-laws at the time of her demise. If that was not the meaning of sub-clause (a), then it remains questionable as to why the expression “at the time of my demise” at all occurred there and the question further remains as to why the same was omitted in sub-clause (b)?