Delhi High Court
Gulshan Kumar Anand vs State on 20 May, 2011
Author: V.K. Jain
Bench: V.K. Jain
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on:13.05.2011
Judgment Pronounced on: 20.05.2011
+ TEST. CAS. No. 58/1979
GULSHAN KUMAR ANAND .....Petitioner
- versus -
STATE .....Respondent
Advocates who appeared in this case:
For the Petitioner: Mr. Rohit Kumar, Advocate and
Mrs. Sumit Kaur
For the Objector : Mr.A.P.S.Ahluwalia, Sr. Advocate
with Mr S.S.Ahluwalia, Advocate
CORAM:-
HON'BLE MR JUSTICE V.K. JAIN
1. Whether Reporters of local papers may
be allowed to see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported Yes
in Digest?
V.K. JAIN, J
1. This is a petition for grant of Letter of
Administration with the Will annexed to it, in respect of the
estate of late Shri Boota Mal Anand, father of the petitioner,
who died on 30.5.1979. It is alleged in the petition that late
Shri Boota Mal Anand had executed a Will dated 28.7.1978
Test Cas. No. 58/1979 Page 1 of 41
and the petitioner is the sole beneficiary under the aforesaid
Will. The Testator Shri Boota Mal was survived by 06 legal
heirs including the Objector Shri Pishori Lal. The objections
to the petition have been filed only by Shri Pishori Lal, other
son of the Testator. He has denied the Will set up by the
petitioner and has further stated that the alleged Will must
have been obtained under undue influence and pressure
and it is contrary to the earlier expressed desire of the
Testator. It is also alleged that at the time of alleged Will
late Shri Boota Mal was seriously ill and was not of a sound
disposing mind. It is also claimed that signature does not
appear to be that of Shri Boota Mal.
2. It is also alleged by the Objector that Shri Boota
Mal had no authority under the Will of his wife late Smt.
Lakshmi Devi, who was the owner of the house subject
matter of the Will set up by the petitioner and who had
divided the same in equal shares between the petitioner and
the Objector. It is claimed that Shri Boota Mal had only a
life estate in this property.
3. The following issues were framed on the pleadings
of the parties:
1. Did Boota Mal execute the Will propounded by
Test Cas. No. 58/1979 Page 2 of 41
the petitioner? - OPP
2. In case Issue No.1 is proved, was the Will
obtained under undue influence and pressure? -
OPR
3. If Issues No. 1 & 2 are decided in favour of the
petitioner, is the Will not binding and inoperative
as stated in para 3 of the Written Statement of
respondent? - OPR
4. Relief.
Issue No. 3
4. The Objector Pishori Lal had filed Probate Case No.
33/79 seeking probate of the Will dated 11th December,
1968 alleged to have been executed by his mother late Smt.
Lakshmi Devi who was the owner of the house subject
matter of the Will executed by late Shri Boota Mal. Both the
petitions were decided by this Court vide judgment dated
23.4.1985. The learned Single Judge, who decided the
petitions was of the view that the Will of late Smt. Lakshmi
Devi, created only a life estate in favour Shri Boota Mal and
after his death the house had to go to Gulshan Kumar and
Pishori Lal sons of late Smt. Lakshmi Devi in terms of para
6 of her Will. He was of the view that the Will executed by
Shri Boota Mal on 28.7.1978 which was to take effect after
Test Cas. No. 58/1979 Page 3 of 41
his death has to be ignored since he was not competent to
make a Will with respect to the property left by his wife late
Smt. Lakshmi Devi in his hands. The learned Single Judge
therefore directed grant of probate to Shri Pishori Lal and
dismissed this petition. An appeal was filed by the
petitioner Gulshan Kumar against the aforesaid decision of
the learned Single Judge and a Division Bench of this Court
vide order dated 29.8.2008 allowed the appeal and set aside
the judgment observing that the Probate Court is concerned
only with the decision as to whether the Will is valid. It was
further observed that even if the Will executed by Shri Boota
Mal is proved in trial and a letter of administration is
granted it still remained to be seen whether the person
concerned gets the estate or not, for which the
determination factor would be as to whether Shri Boota Mal
had only a life estate in the property in question. The
Division Bench was of the view that such a question could
be decided only in a regular Civil Suit which was already
pending. The matter was remitted back to the learned
Single Judge with the aforesaid observations.
The learned Single Judge vide judgment dated
5.11.2001 granted probate in respect of the Will of Smt.
Test Cas. No. 58/1979 Page 4 of 41
Lakshmi Devi and dismissed the present petition on the
ground that Shri Boota Mal had neither any authority nor
any locus to bequeath the property in question. The learned
Single Judge also concluded that Shri Boota Mal was given
life interest in the estate left by Smt. Lakshmi Devi which
was to devolve upon two sons after his death, in the manner
mentioned in para 06 of the Will and therefore he could not
have bequeathed properties in question in the manner he
liked. The judgment dated 5.11.2001 was challenged by the
petitioner Gulshan Kumar and the appeal filed by him was
allowed by a Division Bench of this Court vide judgment
dated 29.8.2008. The Division Bench was of the view that
in respect of the Will executed by Shri Boota Mal, only
question to be examined was as to whether he had executed
the Will or not and that probate in respect of both the Wills
i.e. the Will executed by late Smt. Lakshmi Devi as well as
the Will executed by late Shri Boota Mal could also have
been given, if they were proved. The matter was remanded
back to this Court to decide the limited question as to
whether Will dated 28.11.1978 purportedly executed by late
Shri Boota Mal was validly executed. In view of aforesaid
decisions of DB this issue does not survive any more. The
Test Cas. No. 58/1979 Page 5 of 41
issue is therefore struck off.
Issues No.1 & 2
5. The petitioner has examined one witness Shri
Tehal Singh though he himself did not enter in the witness
box. The Objector came in the witness box but did not
produce any other witness.
PW-1 Shri Tehal Singh is the attesting witness of
the Will alleged to have been executed by late Shri Boota
Mal. He has stated that he knew Shri Boota Mal Anand and
that the Will Exh. PW-1/1 was signed by him as an
attesting witness. According to him this Will was executed
by Mr. Boota Mal Anand in his presence and in presence of
other attesting witness Shri Maan Singh who also signed
the Will in his presence. He has identified the signature of
Shri Boota Mal at point „B‟ and that of Mr. Maan Singh at
point „C‟. He has also identified his own signature at point
„A‟ on the Will Exh. PW-1/1. During his cross examination
no suggestion was given to him that the Will Exh. PW-1/1
does not bear signature of Shri Boota Mal Anand or
signature of this witness though it was suggested to him
that he attested the Will at the instance of petitioner Shri
Gulshan Kumar.
Test Cas. No. 58/1979 Page 6 of 41
In his deposition the Objector Shri Pishori Lal has
stated the letter Exh. RW-1/1 - RW-1/9 are signed by his
father Shri Boota Mal Anand. He stated that he had seen
his father writing and signing from whom he had received
such letter. He has further stated that to his knowledge his
father did not execute any Will and no such Will was
mentioned to him by his father when he met him about 7-8
months before his death. He also stated that his father was
not keeping good health right from 1977; his eye-sight had
become very weak and he was confined to bed for about one
year before his death. He however, did not claim that the
Will Exh. PW-1/1 does not bear signature of his father at
point „B‟. He stated that at the time of his death his father
was residing with petitioner Shri Gulshan Kumar and also
admitted that his father was having sound disposing mind
though he was hard of hearing. He also stated that his
father had complained to him a number of times that he
was not getting cordial treatment from the petitioner but he
declined to come and reside with him and informed him that
he would like to remain with the petitioner.
6. The burden of proving that the Will was validly
executed and is a genuine document is no doubt on the
Test Cas. No. 58/1979 Page 7 of 41
propounder of the Will. He is required to prove that the
Testator had signed the Will and had put his signature out
of his own free Will. He is also required to prove that the
Testator, at the time of execution of the Will, had a sound
disposition of mind and was in a position to understand the
nature and effect of what he was doing. If sufficient
evidence in this behalf is produced by the propounder of the
Will, the onus cast on him stands duly discharged.
The execution of an unprivileged Will is
government by Section 63 of Indian Succession Act which,
to the extent it is relevant, provides that 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 of
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.
Test Cas. No. 58/1979 Page 8 of 41
Section 68 of Evidence Act, to the extent, it is relevant,
provides that if a document is required by law to be
attested, it shall not be used as evidence until at least one
attesting witness 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. Since the Will is a document required by law to
be attested by at least two witnesses, the petitioner could
have proved it by producing one of the attesting witnesses
of the Will.
7. Another requirement of law is that if there are
suspicious circumstances surrounding the execution of a
Will, the onus is on the propounder to explain those
circumstances to the satisfaction of the Court, before the
Will is accepted as a genuine document. The suspicious
circumstances may be many such as (i) the signature of the
Testator may be shaky and doubtful or different from his
usual signatures; (ii) the mental condition of the Testator
may be feeble and debilitated at the time of the execution of
the Will; (iii) the disposition may be such as is found to be
unnatural, improbable or unfair in the light of relevant
circumstances, such as exclusion of natural heirs without
Test Cas. No. 58/1979 Page 9 of 41
any reason (iv) the propounder may take a prominent part
in the execution of the Will; (v) the Will may not see the light
of the day for long time; (vi) the Will may contain incorrect
recital of essential facts. Of course, the suspicious
circumstances, alleged by a person who disputes the
genuineness of the Will, ought to be real and germane and
not the imagination of a doubting mind amounting to
conjecture or mistrust.
8. It is also a settled proposition of law, fraud,
coercion or undue influence is alleged in execution of a Will,
the burden of proving the same would be on the person by
whom such a plea is set up. (Madhukar D. Shende v.
Tarabai Aba Shedage (2002) 2 SCC 85, Sridevi and Ors.
v. Jayaraja Shetty and Ors., (2005) 2 SCC 784.)
9. The testimony of PW-1 Tehal Singh has been
assailed by the learned counsel for the Objectors on the
grounds that a) he knew nothing about family of the
Testator or about the contents of the Will; b) he has not
explained at whose instance he signed as an attesting
witness; and c) he did not give correct age of the Testator.
The first question which comes up for
consideration is as to whether the Will Ex.PW-1/1 bears
Test Cas. No. 58/1979 Page 10 of 41
signature of late Shri Boota Mal Anand or not. According to
PW-1 Tehal Singh, this Will was signed by Shri Boota Mal
Anand in his presence and in the presence of other attesting
witnesses Shri Maan Singh. He has identified the signature
of Shri Boota Mal Anand at point „B‟ on the Will. There is no
evidence on record to controvert this part of the deposition
of Shri Tehal Singh. No evidence has been produced by the
Objectors to prove that the Will Ex.PW-1/1 does not bear
signature of Shri Boota Mal Anand. When the Objector
Pishori Lal, who is the only Objector to enter the witness-
box, was examined, he stated that he had seen his father
writing and signing and was in a position to identify his
hand-writing. But, he did not utter a word about the
purported signature of Shri Boota Mal Anand on the Will
Ex.PW-1/1 and did not claim that these signatures are not
of his father. During cross-examination of PW-1 Tehal
Singh, no suggestion was given to him that the Will Ex.PW-
1/1 does not bear signature of Shri Boota Mal Anand.
Rather it was suggested to him that he attested the Will at
the instance of the petitioner Gulshan Kumar. Giving this
suggestion implies that the Objectors admit attestation of
the Will by Shri Tehal Singh though according to them, he
Test Cas. No. 58/1979 Page 11 of 41
did it at the instance of the petitioner. A perusal of the
decision of this Court dated August 29, 2008 in FAO(OS)
3/2002 and FAO(OS) 4/2002 would show that there was no
serious dispute about the factum of the Will dated 28th
November, 1978 executed by Shri Boota Mal Anand, father
of the parties and the entire dispute was as to whether he
had right to execute the said Will. Shri A.P.S. Ahluwalia,
Senior Advocate, who is representing the Objector before
this Court, had also represented them in the aforesaid
appeals. In these circumstances, I see no reason to
disbelieve the disposition of Shri Tehal Singh PW-1/1 as
regards signature of Shri Boota Mal Anand on the Will Exh.
PW-1/1.
As regards the discrepancies pointed out in the
deposition of Tehal Singh, the only material discrepancy I
find is that he had stated the age of the Testator to be about
70 years though he was aged about 88 years at the time of
execution of the Will. It has come in the deposition of Tehal
Singh that he could not tell the exact age of the Testator but
he „might be‟ about 70 years of age at the time of making
the Will. This witness was examined in the Court on 06 th
December, 1990 and at that time his age was 79 years,
Test Cas. No. 58/1979 Page 12 of 41
which would mean that he would be aged about 67 years at
the time the Will Ex.PW-1/1 purports to have been
executed. Though the witness claimed that he knew Shri
Boota Mal Anand, no question was put to him in his cross-
examination to elicit as to how he know the deceased
Testator and what was the nature of relationship between
him and the Testator. The use of the expression "might be
about 70 years of age", by Shri Tehal Singh indicates that
he was not aware of the age of the Testator at the time Will
Ex.PW-1/1 purports to have been executed. The expression
used by the witness clearly indicates that he was giving the
age of the Testator only by proximation. It is quite possible
that from his appearance Shri Boota Mal Anand could be
mistaken to be aged about 70 years if his correct age was
not known to the witness. There is no evidence on record to
indicate that at the time the Will Ex.PW-1/1 purports to
have been executed, Shri Boota Mal Anand appeared to be
much more than 70 years old. Therefore, failure of the
witness to give correct age of the Testator, by itself, is not
sufficient to reject his testimony when scrutinized in the
light of other facts and circumstances of the case. Ignorance
of this witness about the family of late Shri Boota Mal
Test Cas. No. 58/1979 Page 13 of 41
Anand does not necessarily mean that the Will Ex.PW-1/1
is not executed in his presence. As noted earlier, no
question was put to the witness to elicit information about
extent of his closeness to the Testator or the nature of
relationship between them. He was not asked as to how he
knew late Shri Boota Mal Anand and who had called him to
the place where the Will was executed. Therefore, it is quite
possible that though the Will was executed in his presence,
he did not know much about the family of late Shri Boota
Mal Anand. A person can be known to another person, but,
may still not be knowing much about his family. In fact, he
was not even asked to where the Will Ex.PW-1/1 was
executed. I also notice that this witness could not tell with
whom late Shri Boota Mal Anand was living. But again,
unless the relationship of the witness with late Shri Boota
Mal Anand was quite close, he is not expected to know with
whom the Testator was living at the time of execution of the
Will. The address of Shri Tehal Singh recorded on the Will
Exh. PW-1/1 is house No. 36/90 East Patel Nagar whereas
the Testator admittedly was residing in house No. 34/3
East Patel Nagar therefore it is quite possible that being a
resident of the same locality he was well known to the
Test Cas. No. 58/1979 Page 14 of 41
Testator and therefore was requested by him to attest his
Will. As regards omission of witness to tell as to whose
instance he signed as an attesting witness, I find that no
question was put to him in this regard despite his affirming
that he had signed as an attesting witness and the Will was
executed in his presence and his denying the suggestion
that he had attested the Will at the instance of the
petitioner and claiming that the petitioner Gulshan Kumar
was not present at the spot when the Will was executed.
The Objector has not attributed any motive to this witness
to depose against him or to depose in favour of the
petitioner. No connection between him and the petitioner
Gulshan Kumar has been established.
10. The following circumstances were pointed out by
the learned counsel for the Objectors in support of his
contention that the Will Ex.PW-1/1 was not executed by
late Shri Boota Mal Anand: a) As per the Will Ex.PW-1/1,
he had four sons, whereas as per the Will which his wife
had executed earlier, they had five sons; b) the wife of Shri
Boota Mal Anand had earlier demised this house to both
Objector Pishori Lal and the petitioner Gulshan Kumar and
there could be no reason for the father to exclude Pishori
Test Cas. No. 58/1979 Page 15 of 41
Lal, particularly when the house subject matter of the Will
Ex.PW-1/1 was initially allotted to Shri Pishori Lal, who had
transferred it to his mother; c) the mother wanted to divide
her property in favour of both her sons and there was no
reason for the father to go against the wish of his wife and
bequeath the house solely to the petitioner; d) the Will does
not indicate any reason for the Testator to deviate from the
wish of his wife and disinherit the Objector Pishori Lal.
11. A perusal of the Will executed by late Smt.
Lakshmi Devi, wife of late Shri Boota Mal Anand, shows
that they had five sons, namely, Jagdish Lal, Pishori Lal,
Gulshan Kumar, Ashok Kumar and Hari Krishan Lal, out of
whom Hari Krishan Lal had pre-deceased them and was
survived by three sons, namely, Darshan Kumar, Harish
Chander and Abnash and, whereas Ashok Kumar was
missing. Assuming that late Shri Boota Mal Anand had five
sons, as mentioned in the Will of his wife, the omission to
mention Ashok Kumar would be immaterial since he was
missing even at the time of execution of the Will by Smt.
Lakshmi on 11th December, 1968 and he being unmarried
and having not been heard of for more than seven years,
was presumed to be dead. There was reason to mention the
Test Cas. No. 58/1979 Page 16 of 41
name of Shri Harikishan, pre-deceased son of the Testator,
because he was survived by three sons at the time Smt.
Lakshmi Devi executed her Will and, therefore, they would
be the legal heirs of both Lakshmi Devi as well as Shri
Boota Mal Anand under the law of succession applicable to
them, whereas Ashok Kumar had not left any Class-I legal
heirs, except his mother who had already died by the time
Will was executed by late Shri Boota Mal Anand.
In the case before this Court, I find that there were
good reasons for the Testator to exclude him from his
estate. Admittedly, the petitioner was living with late Shri
Boota Mal Anand whereas Pishori Lal was residing as well
as doing business of jewellery in Indore for many many
years before he executed the Will Ex.PW-1/1. The letter
(Ex.P-1/A) dated 02nd May, 1962 written by late Shri Boota
Mal Anand to the Objector Pishori Lal at Indore, where the
Objector was residing and doing business, does indicate
that at that time late Shri Boota Mal Anand wanted to give
the house subject matter of the Will Ex.PW-1/1 to the
Objector Pishori Lal, petitioner Gulshan Kumar and their
third brother, if he was alive. But, another letter filed by the
Objectors clearly shows that the Objector used to pester his
Test Cas. No. 58/1979 Page 17 of 41
father for money and later on, the relationship between the
Objector and the Testator had become strained and
unpleasant. In the letter (Ex.P-7/A), the Testator stated as
under:
"My dear when you will to Delhi, you
will be shown the Khata. Now there
is no exchange between us. Under
compulsion, the relationship of a
father and a son has been severed
from my side. In the present life, this
cannot be rectified. Hereafter you
should not write me anything about
Gulshan."
It appears from this letter that the Objector Pishori
Lal had been asking for money from his father and the
Testator was totally unhappy with him. He went to the
extent of saying that he had severed the relationship of
father and son from his side and same could not be rectified
in his lifetime. It also indicates that the Objector Pishori Lal
had been writing to the Testator against the petitioner
Gulshan Kumar and the Testator had desired that he (the
Objector) should not write anything against Gulshan Kumar
to him. Had the relationship between the Objector Pishori
Lal and the Testator been cordial, the Testator would not
have gone to the extent of using such harsh words in his
Test Cas. No. 58/1979 Page 18 of 41
letter to the Objector Pishori Lal. Letter Ex.P-6/A written by
the Testator to the Objector Pishori Lal on 28.2.1966 does
contain come criticism of the petitioner Gulshan Kumar. It
was stated in this letter that Gulshan Kumar had left for
Mussourie with his children and the Testator and his wife
were alone in the house. He did not find either any comfort
or any discomfort in their absence and a grievance was
expressed that the Testator wanted to go to Bombay, but
were not able to do so since Gulshan Kumar was going to
Haridwar. However, he also wrote that neither he nor his
wife had any trouble in respect of food and whenever
Gulshan Kumar came back from Haridwar, the Testator
would go to Bombay for a week. It was also stated in this
letter that Gulshan would realize after their death as to in
which direction he was drifting and a wax had been painted
on his eyes. No doubt, this letter is somewhat critical of
Gulshan Kumar, but it does not indicate any serious
dispute between the father and the son. In any case, the
letter Ex.P-7/A clearly indicates that the annoyance of the
Testator with Gulshan Kumar had come to an end by the
time that letter was written and that is why the Testator did
Test Cas. No. 58/1979 Page 19 of 41
not want the Objector to write anything to him against
Gulshan Kumar.
12. It can hardly be disputed that the mother of the
parties, wanted this house to go to the petitioner and the
Objector in equal shares. It also cannot be denied that
exclusion of a son would in the absence of facts and
circumstances which could persuade the Testator to take
such a step, would be a suspicious circumstance, which
needs to be dispelled by the propounder of the Will, but,
this alone without anything more may not justify outright
rejection of the Will. It was observed by Supreme Court in
Bharpur Singh and Ors. v. Shamsher Singh, (2009) 3
SCC 687, that though deprivation of due share to the
natural heirs by itself may not be a suspicious
circumstance, it is one of the factors which is taken into
consideration by the Courts before granting probate of a
Will.
It was observed by Supreme Court in Rabindra
Nath Mukherjee & Anr v. Panchanan Banerjee (dead) by
L.Rs. & others, (1995) 4 SCC 459, that circumstances of
deprivation of natural heirs should not raise any suspicion
because the whole idea behind execution of the Will is to
Test Cas. No. 58/1979 Page 20 of 41
interfere with the normal line of succession and, therefore,
the natural heirs would be debarred in every case of Will.
Of course, in some cases, they may be fully debarred,
whereas in some cases, debarring may be partial.
In Uma Devi Nambiar and Ors. v. T.C. Sidhan (Dead)
(2004) 2 SCC 321, Supreme Court was of the view that
mere depriving the natural heirs should not raise any
suspicion because the whole idea behind execution of the
Will is to interfere with the normal line of succession.
The reasons which could persuade the Testator to
exclude a natural heir, need not necessary be disclosed in
the Will, and it is very much open to the propounder of the
Will to establish such circumstances during probate
proceedings.
13. If the Testator was annoyed with Gulshan
Kumar/or was favourably inclined towards the Objector,
nothing prevented him from bequeathing the whole of the
house to the Objector Pishori Lal, but no such course of
action was adopted by him. If the Objector was unhappy
with Gulshan Kumar, he would have either disposed of the
Patel Nagar house and shifted to Indore to live with the
Objector or would have asked Gulshan Kumar to leave his
Test Cas. No. 58/1979 Page 21 of 41
house. The Testator however, continued to live with
Gulshan Kumar and there is no credible evidence of the
relationship between the petitioner Gulshan Kumar and
Testator Shri Boota Mal Anand being strained at the time
the Will Exh. PW-1/1 purported to have been executed. In
his cross examination the Objector Pishori Lal has stated
that when his father complained to him against Gulshan
Kumar he had written to him to come to him but, the
Testator informed that he would like to remain with
Gulshan Kumar. Had the relations between the Testator
and the petitioner been unpleasant, there could be no
reason for him to turn down the offer made by the Objector.
14. In my view it is rather natural for a father to
bequeath his house to the son who has been living with him
and who has served him in his advanced age for many
years. The wife of the Testator expired on 1.2.1970 as is
noted in the Will Exh. PW-1/1. The Testator executed the
Will on 28.7.1978. It is thus obvious that for more than 8
years before his death the Testator was being served by the
petitioner Gulshan Kumar. The Objector, who was settled
in Indore, was engaged in his business of jewellery there,
was not looking after the Testator during that period and
Test Cas. No. 58/1979 Page 22 of 41
was not providing any emotional, physical or financial
support to him. The desire of a father to reward the son
who is living with him and providing him the support he
needs at such an advanced stage of his life needs to be
recognized and appreciated from the point of view of the
father, who has already lost his life partner and who
naturally looks towards the son living with him for his care
and comfort. These circumstances coupled with the
annoyance of the Testator with the Objector Pishori Lal as
recorded in the letter Exh. P-1/7/A, appear to be the reason
why he chose to bequeath this sole house to the petitioner
Gulshan Kumar to the exclusion of his other legal heirs.
The Objector Pishori Lal has not filed any letter
written to him by his father after 1967. The letter Exh. PW-
1/7 which appears to have been delivered by hand does not
bear any date. If the relations between the Objector and his
father remained cordial till the death of the Testator, he
must have written letters to him between 1967 and 1978.
No letter written during this period has however been filed
by the Objector, which indicates that either the Testator did
not write to the Objector Pishori Lal for more than 10 years
prior to his executing the Will Exh. PW-1/1, or the letters
Test Cas. No. 58/1979 Page 23 of 41
written by him were not palatable to the Objector. The
letters Exh. P-1/A to P-8/A filed by none other than the
Objector Pishori Lal himself indicate that the Testator was
in the habit of writing letters to Pishori Lal. Therefore, the
failure of the Objector to file any letters written to him
between 1968 and 1978 give rise to an inference that their
relations were not cordial and that is why father of Testator
did not write to him or the letters written by him were not
charitable to the Objector.
15. It was also contended by the learned Counsel for
the Objectors that late Shri Boota Mal Anand was not in a
sound state of mind and the letters written by him to the
Objector would show that he had almost lost his eyesight.
The very fact that the Testator wrote the letters Exh. P-1/A
to P-8/A despite having lost some vision by that time shows
that not only he was in a sound state of mind but he was
also in a position to read and write, at the time he wrote
these letters to the Objector. The expressions used in the
letters Exh. P-1/A to P-8/A do not indicate even a feeble
state of mind, not to talk of an unsound state of mind.
More importantly, in his cross examination, the Objector
himself stated that his father was having sound disposing
Test Cas. No. 58/1979 Page 24 of 41
mind though he was hard of hearing. There is no
independent evidence of late Shri Boota Mal Anand being
hard of hearing and no such disability is indicated in the
letters written by him to the Objector. In any case, if he
was in a sound state of mind, at the time he executed the
Will Exh. PW-1/1, his being a little bit of hard hearing
would be immaterial.
16. It was contended by the learned Counsel for the
Objectors that the other attesting witnesses of the Will have
not been examined. As noted earlier Section 68 of the
Evidence Act requires one of the attesting witnesses to be
examined to prove the execution of a Will. It was therefore
not obligatory for the petitioner to examine the other
attesting witnesses and no adverse inference against him
can be drawn on account of his not producing this in the
witness box. The failure of the petitioner to examine the
other attesting witnesses could have been material had the
testimony of PW-1 Shri Tehal Singh been found tainted,
shaky or unreliable. But, if the testimony of the sole
attesting witness examined by the propounder of the Will is
found to be creditworthy and reliable and is not impeached
Test Cas. No. 58/1979 Page 25 of 41
during cross examination, failure to examine the other
attesting witnesses would not be taken adversely to him.
17. It was also contended by the learned Counsel for
the Objectors that the Sub-Registrar was not examined to
prove that the Testator was in a sound state of mind when
he executed the Will. Section 114(e) of the Evidence Act
provides that the Court may presume that the judicial and
financial acts have been regularly performed. Though the
above referred statutory presumption is rebuttable, no
evidence has been led by the Objector to rebut this
presumption of law. As a part of his official duty, the Sub-
Registrar is required not only to satisfy himself about the
identity of the executants of the document but also about
the document having actually been executed by the
executant. Therefore, the presumption is that before
registering the Will the Sub-Registrar had duly satisfied him
in this regard. It was held by Supreme Court in Rani
Purnima Debi vs. Khagendra Narayan Deb & Anr. AIR
1962 SC 567, Gurdial Kaur & Ors. vs. Kartar Kaur & Ors.
119 PLR 524 (SC) and Gopalan Nambiar vs.
P.P.K.Balakrishnan Nambiar & Ors. AIR 1995 SC 1852
registration of a Will would be prima facie evidence of its
Test Cas. No. 58/1979 Page 26 of 41
genuineness though that by itself is not sufficient to dispel
all suspicious circumstances surrendering the Will without
submitting the evidence or registration to a cross
examination. In the case before this Court there is no
evidence of registration having been done in an irregular,
perfunctory or casual manner and there is nothing to
indicate that Sub-Registrar, before registering the Will did
not satisfy himself about identify of the Testator or due
execution of the Will by him. No doubt there may be cases
where registration may take place without the executants
really knowing the nature of the act being done by him but,
in the case before this Court there is no circumstance from
which such an inference can possibly be drawn.
18. It was also contended by the learned Counsel for
the Objectors that the petitioner himself took an active part
in execution of the Will and this by itself is suspicious
circumstance, which the petitioner did not bother to dispel
in this regard. It was pointed out that the petitioner chose
not to enter the witness box and therefore did not subject
himself to the test of cross examination. It was observed
by Supreme Court in Pentakota Satyanarayana and Ors.
vs. Pentakota Seetharatnam and Ors. (2005) 8 SCC 67
Test Cas. No. 58/1979 Page 27 of 41
that even active participation by the propounder/beneficiary
in the execution of the Will by itself is not sufficient to
create doubt either about the testamentary capacity or the
genuineness of the Will. However, in the present case there
is absolutely no evidence of the petitioner having actively
participating in execution of the Will Exh. PW-1/1 as noted
earlier the attesting witness has denied having attested the
Will at the instance of the petitioner and there is no
evidence of the witness being in any manner linked to or
being close to the petitioner.
19. The learned Counsel for the Objector, during the
course of his arguments, relied upon Rani Purnima Debi &
Anr. vs. Kumar Khagendra Narayan Deb & Anr. (supra),
Ramchandra Rambux vs. Champabai & Ors. AIR 1965
SC 354, Smt. Jaswant Kaur vs. Smt. Amrit Kaur & Ors.
AIR 1977 SC 74, Ramesh Dutt Salwan vs. State 1988
RLR 387 and Babu Singh & Ors. v. Ram Sahai @ Ram
Singh 2008AIR(SC) 2485.
20. In the case of Rani Purnima Debi (supra), the
Testator had bequeathed his entire property to his nephew
subject to his maintaining the widow and sister of the
Testator. The Will was challenged on a number of grounds
Test Cas. No. 58/1979 Page 28 of 41
including that it was not duly and validly executed and
attested, the Testator had no sound disposing mind at the
time of execution of the Will and the Will was outcome of
undue influence and coercion exercised by the legatee. The
High Court accepted genuineness of the Will executed in
favour of the respondent. It was noticed by the Supreme
Court in the appeal filed by the widow of the Testator, that
relations between the Testator and his wife and sister were
good. The Court therefore, expected something better than
what was provided in the Will for those two ladies. It was
noticed that no amount was specified to be paid to the
ladies as maintenance and no charge had been created on
the properties left by the Testator. It was also noticed that
the propounder had taken part in the execution of the Will
and the signature of the Testator did not appear to be his
usual signature. It was also proved in the evidence that the
Testator used to sign blank papers for use in his court
cases and such papers could be in possession of the lawyer,
who had appeared as a witness to prove the Will and
therefore, it was possible to manufacture Will on the papers
already signed by the Testator. It was also noticed that the
signature of the Testator was not in the same ink and might
Test Cas. No. 58/1979 Page 29 of 41
not be with the same pen with which the body of the Will
was written. There were as many as 16 attesting witnesses
of the Will out of whom 03 were examined by the
respondent. None of those witnesses was found to be
independent and none of them belonged to the place where
the Will was executed. It was in these circumstances that
the Court held that the respondent had failed to dispel the
suspicious circumstances which were present in the case.
As regards registration of the Will, the Supreme Court was
of the view that if the evidence as to registration shows that
it had been done in a perfunctory manner, the Officer who
had registered the Will did not read it over to the Testator or
did not bring home to him that he was admitting the
execution of the Will or did not satisfy himself in some other
way that the Testator knew that it was a Will, execution of
which he was admitting, the registration by itself would not
be of much value. In the case before the Supreme Court, an
application as made by a representative of the Testator and
not by the Testator himself, before the Sub-Registrar for
registration of the Will on commission. The Sub-Registrar
sent a clerk to the place of the Testator for this purpose.
The Supreme Court felt that justification given for issue of
Test Cas. No. 58/1979 Page 30 of 41
commission was not justified in law and also found that the
Testator was quite hale and hearty. The clerk deputed by
the Sub-Registrar to visit the place of the Testator was
examined during trial. He simply stated that he had
examined the Testator who had admitted execution of the
Will. His evidence did not indicate that the Will was read
over to the Testator before he admitted his execution.
However, in the case before this Court, the beneficiary of
the Will is none other than the son of the Testator, who
admittedly was the sole family member of the Testator
residing with him for many years before the Will was
executed. As noted earlier there is no evidence of the Will
having been registered in a perfunctory manner or the
attesting witness to the Will being an interested person.
The endorsement made on the Will clearly shows that the
Will was read over and explained to the Testator in Hindi
before it was signed by him. Considering the facts and
circumstances of the case as discussed in the preceding
paragraphs, this judgment can be of no help to the
Objector.
In the case of Ramchandra Rambux (supra), it
was found that though the Testator used to reside at
Test Cas. No. 58/1979 Page 31 of 41
Peepalgaon, the Will was executed at Hyderabad, where the
beneficiary of the Will used to reside and carry on his
profession. It was also found that one day prior to the date
of the Will, the Testator was at a place 8 miles away from
Peepalgaon, and the nearest railway station is 20 miles
away from Peepalgaon. The Will was said to have been
executed at about noon, and it was highly improbable that
the Testator could have been present at the time the Will
was stated to have been executed. There were some other
suspicious circumstances surrounding the Will. Despite the
property being considerable, the services of a layman were
engaged instead of engaging the lawyer to draft the Will, the
attesting witnesses appeared to be either friends or
neighbours of the legatee, the document was inscribed on
flimsy paper in Urdu alleged to have been dictated by the
Testator in that very language. It was noted during the
evidence that the Testator could not have read or write
Urdu and his signature was in Modi script, which could not
have been the case, had he been well-versed in Urdu. It was
also noticed that the words seemed to be crammed in each
line on the Will and the spacing between two lines tended to
decrease, even though there was plenty of room for the
Test Cas. No. 58/1979 Page 32 of 41
signature of the Testator to be scribed lower down on the
paper. It was also found that the Will was unnatural in the
sense that the Testator had made no provision for a
residence of his wife and made paltry bequests to his
daughter and had given almost entire property to a distant
relative who had neither been brought up by the Testator,
nor had he looked after the Testator during his declining
years. It was also found that the propounder of the Will
had taken an active part in execution of the Will. It was in
these circumstances that the Court referred to its
observations in an earlier decision H.Venkatachala Iyengar
vs. B.N.Thimmajamma AIR 1959 SC 443 to the effect that
the propounder in dealing with proofs of Will would be
called upon to show by satisfactory evidence that the Will
was signed by the Testator, who at the relevant time was in
a sound disposing state of mind and he understood the
nature and effect of the dispositions and had put signature
to the documents of his own free will. It was further
observed that if there are suspicious circumstances,
surrounding the execution of the Will, the Court would
except legitimate suspicions to be completely removed
before the document is accepted as the last Will of the
Test Cas. No. 58/1979 Page 33 of 41
Testator. It was also observed that where it appears that
the propounder has taken a prominent part in execution of
the Will, which confers substantial benefit on him that by
itself is generally treated as a suspicious circumstance
attending the execution of the Will and the propounder is
required to remove the suspicion by clear and satisfactory
evidence.
In the case of Jaswant Kaur (supra), the Will did
not see the light of the day for about 12 years after it was
executed. The Will was alleged to have been discovered after
the plaintiff‟s evidence was over on August, 17 and the
defendant‟s evidence was scheduled to be recorded on
August, 24. The Will was alleged to have been discovered in
the papers of the grandfather, without any explanation as to
why the defendant had suddenly thought of examining the
papers of his grandfather during that particular period.
Both the attesting witnesses were strangers and the
attesting witness had to eventually admit that he knew
nothing about Testator‟s family or family affairs. There was
contradiction in the testimony of the attesting witnesses as
to whether the Will was executed in the business premises
or in the residential premises of the Testator. Neither of the
Test Cas. No. 58/1979 Page 34 of 41
executors of the Will had been examined and the Will did
not contain even a fleeting reference either to the Testator's
daughter or the widowed daughter-in-law or to the grand-
daughter. It was in these circumstances that the Will was
rejected by the Court.
In the case of Ramesh Dutt Salwan (supra), it was
found that the witnesses were related to the beneficiary of
the Will, different versions were given as to how the Will was
in possession of respondent No. 2 Shiv Dutt, the
preparation and execution of the Will was shrouded in
mystery, the attesting witness was not a resident of Delhi,
the Will was purported to have been executed on 08th May,
1974 and presented for registration on 28 th May, 1974,
whereas according to the sole attesting witness, it was
prepared, executed and registered on the same date, the
passages from an earlier Will had been copied verbatim in
the Will in question, in the earlier Will, the Testator had
bequeathed one flat to the trust in her name, whereas the
trust was deprived of that flat in the Will in question, the
names of attesting witnesses were withheld for a long period
and the propounder of the Will was unable to identify the
signature of his mother on the previous Will. It was in these
Test Cas. No. 58/1979 Page 35 of 41
circumstances that the Court observed that the registration
should be valid and proper registration and for registering
office to become an attesting witness, he must have signed
the document for the purpose of authenticating the
signature of the executant and should have put his
signature as an attesting witness with such an animus and
that too in the presence of the executant.
In the case of Babu Singh (supra), Supreme Court,
referring to its earlier decision in Savithri & Ors. vs.
Karthyayani Amma & Ors. JT (2007) 12 SC 248 observed
that the Court, while granting probate of the Will, must take
into consideration all relevant factors and it must be found
that the Will was product of a free Will and the Testator
must have full knowledge and understanding as regards its
contents. It was further observed that whenever a plea of
undue influence is taken, onus would be on the Objector
and not on the offender.
21. The facts of the case before this Court are
altogether different. It cannot be said that there are
suspicious circumstances surrounding execution of the Will
Ex.PW-1/1 which do not stand explained. The exclusion of
the Objector Pishori Lal and/or other legal heirs, in the
Test Cas. No. 58/1979 Page 36 of 41
facts and circumstances of this case, cannot be said
unnatural, there is no evidence of the petitioner having
played an active role in execution of the Will, there is no
evidence of any connection between the petitioner and the
attesting witness Shri Tehal Singh, the registration of the
Will is not shown to be irregular or tainted in any manner
and, therefore, none of the above-referred judgments apply
to the facts and circumstances of the case before this Court.
As noted earlier, there is a statutory presumption under
Section 114 (e) of Evidence Act that the official acts were
regularly performed. Therefore, in the absence of any
material to the contrary, it must necessarily be presumed
that all the rules relating to registration of documents were
followed by Sub-Registrar before the Will Ex.PW-1/1 was
registered by him. I, therefore, see no reason to reject the
Will Ex.PW-1/1 and hold that the same stands duly proved.
Though it has been alleged in the Objections that
the Will was obtained under undue influence and pressure,
no particulars of the alleged undue influence and/or
pressure have been given in the Objections. Order 6 Rule 4
of CPC provides that that in all cases in which the party
pleading relies on any misrepresentation, fraud, breach of
Test Cas. No. 58/1979 Page 37 of 41
trust, wilful default or undue influence and any of other
cases in which particulars may be necessary beyond such
as are exemplified in the aforesaid forms, particulars shall
be stated in the pleadings.
In Ranganayakamma and another Vs. K.S.
Prakash (dead) by LRs. and others; (2008) 15 Supreme
Court Cases 673, the Supreme Court referring to the
provisions contained in Order VI Rule 4 of the CPC held that
when a fraud is alleged, the particulars thereof are required
to be pleaded. It was observed that when a contract is said
to be voidable by reason of any coercion, misrepresentation
or fraud, the particulars thereof are required to be pleaded.
In Ramesh B. Desai Vs. Bipin Vadilal Mehta;
(2006) 5 SCC 638, Supreme Court observed that Order VI
Rule 4 of CPC requires that complete particulars of fraud
shall be stated in the pleadings. A similar view was taken in
Sangramsinh P. Gaekwad Vs. Shantadevi P. Gaekwad;
(2005) 11 SCC 314.
22. Section 16 of Contract Act, 1872 defines „undue
influence‟ as under:-
"1) A contract is said to be induced by
„undue influence‟ where the relations
subsisting between the parties are such
Test Cas. No. 58/1979 Page 38 of 41
that one of the parties is in a position to
dominate the will of the other and uses
that position to obtain an unfair
advantage over the other.
(2) In particular and without prejudice to
the generally of the foregoing principle, a
person is deemed to be in a position to
dominate the will of another -
(a) where he holds a real or apparent
authority over the other, or where he
stands in a fiduciary relation to the other;
or
(b) where he makes a contract with a
person whose mental capacity is
temporarily or permanently affected by
reason of age, illness, or mental or bodily
distress.
(3) Where a person who is in a position to
dominate the will of another, enters into a
contract with him, and the transaction
appears, on the face of it or on the
evidence adduced, to be unconscionable,
the burden of proving that such contract
was not induced by undue influence shall
be upon the person in a position to
dominate the will of the other.
Nothing in the sub-section shall affect the
provisions of section 111 of the Indian
Evidence Act, 1872 (1 of 1872).
The onus is on the person pleading fraud, coercion
or undue influence to prove facts which would constitute
such an averment. In the case before this Court, no
evidence has been produced by the Objector to prove that
Test Cas. No. 58/1979 Page 39 of 41
the petitioner Gulshan Kumar was in a position to dominate
the Will of his father and using that dominance, he was able
to pressurize or persuade him to bequeath this house to
him to the exclusion of his other legal heirs. As noted
earlier, there is no evidence of the Testator suffering from
mental incapacity. The Objector Pishori Lal himself has
admitted that his father was in a sound state of mind. There
is no evidence of the petitioner Gulshan Kumar being in a
position to exercise an undue authority over his father nor
does the Will, in the facts and circumstances of this case,
appear to be unconscionable. The exclusion of the Objector
Pishori Lal, to my mind, was for the reasons that a) he was
living separately from the Testator for many years and was
doing his own business of jewellery in Indore; b) the
relations between the Testator and the Objector Pishori Lal
had become quite strained as is evident from the letter Ex.P-
7/A and the petitioner Gulshan Kumar was the only person
who was living with the Testator and serving him for many
years before his death, the wife of the Testator having died
about 10 years before he executed the Will. The issues are,
therefore, decided against the Objectors and in favour of the
petitioner.
Test Cas. No. 58/1979 Page 40 of 41
Issue No. 4
23. In view of my findings on the issue No. 1 and 2, the
petitioner is entitled to grant of probate in respect of the Will
dated 28th July, 1978, with copy of the Will annexed to it.
ORDER
The petition is allowed. Probate of the Will dated 28th July, 1978 executed by late Shri Boota Mal Anand, with copy of the Will annexed to it, be issued to the petitioner as per rules.
(V.K. JAIN) JUDGE MAY 20, 2011 bg/vn Test Cas. No. 58/1979 Page 41 of 41