IN THE COURT OF [ENTITY] ADDL. DISTRICT JUDGE-02 WEST DISTRICT: TIS HAZARI COURTS: DELHI Probate Case No. 66/13 New No. 15965/16 CNR No. DLWT01-000618-2013 1 Shri [ENTITY] Son of late Sh. Ganga Sahai Petitioner No. 1 2 Smt. [ENTITY] Wife of Sh. [ENTITY], Resident of 19/1, U.G.F. (Front Portion), West Patel Nagar, New Delhi-110008. Petitioner No. 2 Versus 1 [ENTITY] Respondent No. 1 2 [ENTITY] Wife of Sh. Rakesh Gupta, Resident of D-31, Naraina Vihar, New Delhi Also at: AB-529, Nirman Nagar, Near Ajmer Road, Jaipur (Rajasthan) Respondent No. 2 3 [ENTITY] Wife of Sh. Rajesh Jain, Resident of G-115, Fourth Floor, Preet Vihar, Delhi-110092 Respondent No. 3 4 Smt. [ENTITY] Wife of late Sh. [ENTITY], Daughter of Sh. R.C. Gupta, Resident of A/3, CEL Apartment, Plot No. B-14, Vasundhara Enclave, New Delhi-110096 Respondent No. 4 Date of Institution : 06.09.2013 Date of reserving order : 27.11.2018 Date of pronouncement : 11.12.2018 CNR No. DLWT01-000618-2013 Page 1 of 21 Appearance: Sh. [ENTITY], learned counsel for petitioners Sh. [ENTITY], learned counsel for respondent no. 4 JUDGMENT
1 Petitioners are seeking grant of Letters of Administration with respect to the [ENTITY] left by their son late Sh. [ENTITY].
2 Let me now narrate the facts in brief.
3 Petitioners i.e. Sh. [ENTITY] and Smt. [ENTITY] had one son i.e. Sh. [ENTITY] and two daughters i.e. respondent no. 2 Ms. [ENTITY] and respondent no. 3 Ms. [ENTITY]. Sh. [ENTITY] got married to [ENTITY] (respondent no. 4 herein). There was matrimonial discord between Sh. [ENTITY] (hereinafter referred to as testator) and his wife [ENTITY]. Unfortunately, testator died on 20.07.2005. However, during his lifetime, testator had executed a [ENTITY] on 07.03.2005 in presence of Sh. [ENTITY] (PW2) and Sh. [ENTITY] (PW6).
4 Testator did not appoint anyone as executor in his such [ENTITY]. Petitioners, claiming themselves to be Class-1 heirs of the testator, are seeking Letters of Administration with respect to his asset. It has also been claimed that respondent no. 4 [ENTITY] had already separated from her husband i.e. testator during his lifetime and moreover, testator had categorically claimed in his [ENTITY] that no share should be given to her with respect to his property and wealth. Thus, she was specifically debarred from the estate of the testator who had died issueless.
5 It is in these circumstances that the present petition under [ACT] has been filed seeking grant of Letters of Administration.
6 Citation for general public was got published in newspaper [ENTITY]sman. No one submitted any objection despite such citation.
7 It will not be out of place of mention here that respondent no. 2 Ms. [ENTITY] and respondent no. 3 Ms. [ENTITY] (real sisters of testator) filed their no objection and thus they are not contesting the present petition.
8 Valuation report of the property in question was also sought from the concerned revenue authority.
9 As per such report, the aforesaid property has been valued as Rs. 81,11,475/-.
10 However, I would like to mention right here that when the petition was filed initially, name of respondent no. 4 Ms. [ENTITY] was not mentioned in the array of parties. It was only at the stage of final arguments of the case that the counsel for petitioner prayed for adjournment claiming that he wanted to move appropriate amendment application seeking to incorporate the name of the wife of the testator in the memo of parties. Amendment application was moved which was allowed on 17.07.2015.
11 Respondent no. 4 Ms. [ENTITY] submitted her reply/objection and she, inter alia, asserted in her written statement as under:
(a) That Petitioners have not come with clean hands and have suppressed and concealed the material facts.
(b) [ENTITY] in question is forged and fabricated and being class-1 heir, respondent no. 4 cannot be deprived of her legitimate rights/share in the asset of her husband.
(c) Petitioners had harassed, humiliated and tortured her for bringing less dowry on account of which she had filed complaint before CAW Cell and that [ENTITY] in question has been created in a preplanned manner.
(d) Testator was hale and healthy and it is not expected that at young age of 33 years, he would execute any [ENTITY] particularly when he was not suffering from any chronic disease.
(e) [ENTITY] on the part of the petitioners is clear from the fact that they did not implead her as a necessary party at the initial stage.
12 All such facts have been controverted by petitioners in their replication.
13 Vide order dated 07.12.2015, the following issues were framed:-
(i) Whether the deceased Sh. [ENTITY] executed a valid and enforceable [ENTITY] dated 07.03;2005 as claimed by the petitioner? OPP
(ii) Whether the petitioner is entitled for Probate/Letter of Administration on the basis of the aforesaid [ENTITY], as claimed? OPP
(iii) Whether the petition is liable to be dismissed for the objections raised by the respondent/objector no.
4 in the written statement/ objectors.
(iv) Relief.
14 Parties were directed to adduce evidence. Petitioners have examined six witnesses in their support viz PW1 Sh. [ENTITY] (for proving sale deed of the property in question), PW2 Sh. [ENTITY] (attesting witness to the [ENTITY]), PW3 Sh. [ENTITY] (petitioner no. 1), PW4 Smt. [ENTITY] (petitioner no. 2), PW5 Sh. [ENTITY] (official from PNB to prove the loan and mortgage) and PW6 Sh. [ENTITY] (attesting witness to the [ENTITY]).
15 Respondent no. 4 [ENTITY] entered into witness box and got herself examined as RW4. No other witness has entered into witness box from her side and her evidence was directed to be closed vide order dated 27.01.2017.
16 Petitioners are seeking Letters of Administration with respect to immovable property bearing no. 19/1, Upper Ground Floor (Front Portion) West Patel Nagar, New Delhi- 110008 which was purchased by testator for Rs. 4,90,000/- vide sale deed dated 17.11.2000.
17 I have heard learned counsels for the parties and carefully perused the entire material available on record.
18 Learned counsel for petitioners has contended that petitioners have been able to prove the [ENTITY] in question. It has been contended that both the attesting witnesses have graced the witness box and thus execution of the [ENTITY] stands proved. According to him, immovable property in question is a self-acquired property of son of petitioners who, in terms of his last [ENTITY], wanted that his entire such property should go to his parents i.e. petitioners and he specifically claimed that his wife, who had already separated from him, should not be given any share in his property and wealth. He has argued that there is no suspicion circumstance of any kind which may persuade this Court to deny Letters of Administration to the parents of testator and, therefore, it has been prayed that petition may be allowed.
19 All such contentions have been refuted. According to learned counsel for respondent no. 4, [ENTITY] in question is forged and fabricated. According to him, it is intriguing as to why attesting witnesses did not reveal about the [ENTITY] immediately after the death of the testator. It has been claimed that it has not been made clear as to why petitioners slept over the matter and did not file the petition immediately. It has been admitted that there was matrimonial discord between the testator and his wife but prime issue of respondent no. 4 is to the effect that [ENTITY] in question is forged and fabricated and there are material contradictions in deposition of attesting witnesses which create suspicion regarding the genuineness of the [ENTITY].
20 I have gone through the pleadings and evidence adduced by the parties. My issue-wise findings are as under:
21 Since all these three issues are inter-connected and interdependent, these are being taken up together.
22 The expression "[ENTITY]" is defined under [SECTION] of [ACT] to mean the legal declaration of "the intention" of testator with respect to his property "which he desires to be carried into effect after his death". [SECTION] of [ACT] governs the capability of a person to make a [ENTITY]. It reads thus: -
"59. Person capable of making [ENTITY]s Every person of sound mind not being a minor may dispose of his property by [ENTITY].
Explanation1. A married woman may dispose by [ENTITY] 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 [ENTITY] if they are able to know what they do by it. Explanation 3. A person who is ordinarily insane may make a [ENTITY] during interval in which he is of sound mind.
Explanation 4. No person can make a [ENTITY] 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 is doing.
23 [SECTION] thus declares that every person (not being a minor) "of sound mind" may dispose of his property by [ENTITY]. 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 [ENTITY] "if they are able to know what they do by it". The third explanation makes the basic principle pellucid by adding that even a person who is "ordinarily insane" may make a [ENTITY] 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 [ENTITY]. 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 clearly know and understand its purport or import.
24 The execution of an unprivileged [ENTITY], as the case at hand relates to, is governed by [SECTION] of the [ACT], which reads thus:-
"63 Execution of unprivileged [ENTITY]s 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 [ENTITY] according to the following rules:-
(a) The testator shall sign or shall affix his mark to the [ENTITY], or it shall be signed by some other person in his presence and by his directions.
(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 [ENTITY].
(c) The [ENTITY] shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the [ENTITY] or has seen some other person sign the [ENTITY], 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 [ENTITY] 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".
25 The plain words used in above quoted clause make it abundantly clear that the executant of a [ENTITY] need not put his signatures and that affixing his mark is sufficient mode of authentication. While the law does require attestation by minimum two witnesses, it is not obligatory that both must have been present at the time when the testator executed the document, the presence of the testator being more important when the witnesses attest and further that, for proof of such execution and attestation, the testimony of only one of such witnesses is enough, that also only if such witness is alive and available.
26 The provisions contained in [SECTION] and [SECTION] of the [ACT], also being germane to the discussion here, may be usefully quoted: -
"67. Proof of signature and handwriting of person alleged to have signed or written document produced. If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting.
[SECTION]. 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 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 [ENTITY], which has been registered in accordance with the provision of the [ACT], unless its execution by the person by whom it purports to have been executed is specifically denied."
27 There is no dispute about the death of Sh. [ENTITY]. His parents have entered into witness box. PW3 Sh. [ENTITY] (petitioner no. 1) has deposed that he is the father of Sh. [ENTITY] who died on 20.07.2005. He died in Kalra Hospital, Delhi and his original death certificate has been proved as Ex. PW3/1. Such fact is not in dispute even from the side of respondent no. 4. According to respondent No. 4 Ms. [ENTITY], who happens to be his estranged wife, [ENTITY] in question is forged and fabricated. She has also asserted that there was no reason for her husband to have excluded her and executed any [ENTITY] at such young age.
28 I have already noticed above that there was matrimonial discord between the testator and his wife Ms. [ENTITY]. Petitioner no. 1 Sh. [ENTITY] has not mentioned anything in this regard in his examination-in-chief but in his cross-examination, he claimed that respondent no. 4 had left matrimonial home on 01.02.2005. Respondent no. 4 Ms. [ENTITY] has claimed in her affidavit Ex. RW4/A that she was harassed, humiliated and tortured for bringing deficient dowry and the petitioners had inflicted lot of mental and physical cruelty upon her from time to time and, therefore, she was forced to lodge complaint before CAW Cell. She claimed that there was no separation between her and her husband and she continued to be his legally wedded wife. In her cross-
examination, however, she admitted that she was living separately from her husband since February 2005. She also admitted that she never visited her matrimonial home after the death of her husband. She also claimed that she did not know as to what happened to the business of her husband and about his health after she left the matrimonial home on 02.02.2005.
29 Be that as it may, even during the course of arguments, it was not denied from the side of respondent no. 4 that there was matrimonial discord and that respondent no. 4 was living separately, albeit it was not, strictly speaking, a judicial separation.
30 PW3 Sh. [ENTITY] has further deposed that his son Sh. [ENTITY] had executed last [ENTITY] whereby he had bequeathed his property bearing no. 19/1, Upper Ground Floor (Front Portion) West Patel Nagar, New Delhi- 110008 in favour of his parents i.e. petitioner no. 1 and petitioner no. 2. He deposed that such [ENTITY] dated 07.03.2005 was executed in the presence of Sh. [ENTITY] and Sh. [ENTITY] whose names were appearing at the foot of the [ENTITY]. He also deposed that testator had not appointed any executor in his [ENTITY] and as per the [ENTITY], petitioners are entitled to the estate of the testator and, therefore, they have filed the present petition seeking Letters of Administration. It has been deposed by him that there is no impediment in grant of such Letters of Administration. It has also been claimed that the property in question is under mortgage with the bank i.e. PNB, Rajouri Garden, Delhi and even after the death of Sh. [ENTITY], monthly installments are being paid by the petitioners regularly to the bank with respect to said loan/mortgaged amount. Such fact is totally unrebutted and uncontroverted as no question has been put to him by respondent no. 4.
31 Petitioners have also examined the concerned official from PNB for the purposes of proving such loan. Reference be made to the testimony of PW5 Sh. [ENTITY], Scale-I Officer, PNB Rajouri Garden Branch who has proved the relevant documents in this regard. His deposition also indicates that said property is lying mortgaged with PNB Rajouri Garden Branch and even after the death of Sh. [ENTITY], his parents are depositing loan installments with interest.
32 Coming to the will in question, let me see the testimony of both the attesting witnesses.
33 PW2 Sh. [ENTITY] has deposed that [ENTITY] Ex. PW2/A was executed by the testator Sh. [ENTITY]. He has identified signatures of Sh. [ENTITY] at point Y and his own signatures at point X. He deposed that testator as well as he himself and the second witness had signed the [ENTITY] in the presence of one another.
34 To the similar effect is the testimony of another attesting witness i.e. PW6 Sh. [ENTITY]. He identified his own signatures on the [ENTITY] and deposed that he had signed the [ENTITY] on 07.03.2005 at the house of deceased Sh. [ENTITY]. He claimed that [ENTITY] was first signed by Sh. [ENTITY] and thereafter Sh. [ENTITY] signed the same and lastly, he himself (PW6) signed the [ENTITY]. He also deposed that they had signed in the presence of one another.
35 I have seen the cross-examination of both the aforesaid attesting witnesses and I have not been able to find out any anomaly or material contradiction which may create any sort of suspicion with respect to the execution of the [ENTITY] or about its authenticity. Respondent no. 4 has not been able to elicit any fact from them which may create any kind of distrust over the execution of the [ENTITY]. PW2 Sh. [ENTITY] has also claimed in his cross-examination that deceased was in prefect health and mental condition on the day of the execution of the [ENTITY]. No material has been placed on record by respondent no. 4 to contradict the same.
36 Sh. [ENTITY], learned counsel for respondent no. 4 has contended that [ENTITY] is fabricated but he has not been able to buttress his such contention in the desired manner. Mere verbal assertion would not take his case anywhere.
37 Right here, I would like to make reference to order dated 05.12.2016 passed by my learned Predecessor. Respondent no. 4 had moved an application under [SECTION] [ACT] for comparing the signatures of the deceased by handwriting expert in order to ascertain the genuineness of the signatures. It was observed by the court, while disposing of such application, that no preliminary objection had been taken by respondent no. 4 challenging the signatures being forged or regarding the age of the paper used and the handwriting appearing on such [ENTITY]. By that time, PW2 Sh. [ENTITY] had already entered into witness box and it was also observed by the then learned Presiding Officer that in the entire cross-examination, not even a single question or suggestion was put to him with respect to the alleged forgery of the signatures of the testator. No such question was put to petitioner/PW3 Sh. [ENTITY] either. It was also observed in such order that respondent no. 4 i.e. RW4 had categorically admitted in her own cross-examination that she had no document containing admitted signatures of the deceased. So much so, she claimed that since separation between them, she had not seen him writing and signing and in the aforesaid peculiar backdrop, application moved by respondent no. 4 was dismissed. Thus, it becomes very much evident and manifest that respondent no. 4 has made wild and unsubstantiated assertion regarding the [ENTITY] being forged and fabricated. Onus was on her to substantiate the same which she has failed to discharge miserably.
38 Both the attesting witnesses to the [ENTITY] have withstood the test of the cross-examination and there is nothing in their cross- examination which may create any uncertainty in the mind of the Court regarding the execution of the will or about its authenticity.
39 No fault can be found on the part of the testator if he had executed the will at a young age. Evidently, because of the matrimonial discord between him and his wife, he felt persuaded to execute the [ENTITY]. Moreover, in his [ENTITY], he categorically specified that his wife [ENTITY] had separated from him and that she should not be given any share in his property and wealth. Precisely because of such matrimonial disharmony, the testator seems to have gone for execution of [ENTITY] at relatively a young age.
40 Undoubtedly, it would have been better if respondent no. 4 had been made party at the time of initial filing of the case but the omission on this aspect would not be sufficient, in itself, to throw away the entire case of petitioners. [ENTITY] in question is a handwritten, which fact automatically lends extra credibility to the [ENTITY]. Both the attesting witnesses have also graced the witness box and deposed about the execution of the [ENTITY] and about their own signatures and the signatures of the testator. Respondent no. 4 has not been able to impeach the creditworthiness of these two witnesses. Undoubtedly, [ENTITY] was executed on 07.03.2005 and the present petition has been filed in the year 20013. However, that by itself would not create any suspicion of any kind whatsoever. In a proceeding seeking grant of probate or letters of administration, no right is asserted or claimed by the applicant. The author of the testament bestows duty with regard to the administration of his estate and the applicant for probate or letters of administration seeks mere permission of the Court to perform that duty. There is only a seeking of recognition from the Court to perform the duty. Such right is virtually a continuous right which can be exercised any time after the death of the deceased as long as the right to do so survives. By the very nature of the proceedings it is a continuing right. Reference in this regard be also made to [PRECEDENT]. (2008 (8) SCC 463).
41 In [PRECEDENT], Apex Court has laid down the following propositions:
(1) [ENTITY]d generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty.
(2) Since [SECTION] of the [ACT] requires a will to be attested, it cannot be used as evidence until, as required by [SECTION] of the [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 surrounded 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 circumstances that the test of satisfaction of the judicial conscience has been evolved.
That test emphasises that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator.
(6) If a caveator alleges fraud, undue influence, coercion, etc. in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very 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."
42 Hon'ble Apex Court in [PRECEDENT] has held that when a Court before whom a [ENTITY] is sought to be proved comes up for decision, then Courts are entitled to take a holistic view of the situation and that Courts can hold due execution and attestation of the [ENTITY] by implied statements and other facts which come out during deposition of witnesses.
43 A will is executed to alter the ordinary mode of succession and by the very nature of things, it is bound to result in either reducing or depriving the share of all or some of the natural heirs. If a person intends his property to pass to his natural heirs, there is no necessity at all of executing a will. It is true that a propounder of the will has to remove all suspicious circumstances. Suspicion means doubt, conjecture or mistrust. But the fact that natural heirs have either been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be a suspicious circumstance especially in a case where the bequest has been made in favour of an offspring. Reference in this regard be made to [PRECEDENT]. In [PRECEDENT] it has been observed that the circumstance of deprivation of 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 and so, natural heirs would be debarred in every case of will. Of course, it may be that in some cases they are fully debarred and in some cases partly.
44 It is settled by a catena of decisions that any and every circumstance is not a suspicious circumstance. Even in a case where active participation and execution of the [ENTITY] by the propounders/beneficiaries was there, it has been held that that by itself is not sufficient to create any doubt either about the testamentary capacity or the genuineness of the [ENTITY]. It has been held that the mere presence of the beneficiary at the time of execution would not prove that the beneficiary had taken prominent part in the execution of the [ENTITY]. Reference in this regard be made to [PRECEDENT]. In the case in hand, the parents were not even aware about the [ENTITY], much less that they took prominent part in the execution thereof.
45 In [ENTITY] & Anr Vs. The [ENTITY] & Anr. 2010 (120) DRJ 716, our own High Court observed that law does not prescribe or expect that only very close family friends or associates should witness [ENTITY]s. It also observed that courts are not expected to be satisfied that a bequeathal is rational or not; what has to be considered is whether the bequest was so unnatural that the Testator could not have made it. It also went on to add as under: -
" However, we have to be mindful of the fact that the Courts have to uphold the wishes expressed and not the wisdom behind the same. The Court cannot infuse its own value system on the testator. The Privy Council in [PRECEDENT] observed that "a man may act foolishly and even heartlessly; if he acts with full comprehension of what he is doing, the Court will not interfere with the exercise of his volition". For these reasons, we do not find the disinheritance of the Daughter/Objector as a suspicious circumstance."
46 In [ENTITY] (supra), the Hon'ble High Court made reference to [CASE NUMBER] dated 21.11.2007 titled [PRECEDENT] which dealt with the legal burden of proof when a [ENTITY] is propounded and also spelt as to what would constitute suspicious circumstances and what form of affirmative proof should be sought by the court to satisfy the judicial conscience that the document propounded is the last legal and valid custom of the testator. These are as under:
I. The legal burden to prove due execution always lies upon the person propounding a will. The propounder must satisfy the judicial conscience of the court that the instrument so propounded is last will of a free and capable testator.
II. The onus is discharged by the propounder adducing prima facie evidence proving the competence of the testator and execution of the will in the manner contemplated by the law. The contestant opposing the will may bring material on record meeting such prima facie in which event the onus would shift back on the propounder to satisfy the Court affirmatively that the testator did know well the contents of the will and in sound disposing capacity executed the same. (see the decision of the Supreme Court in [PRECEDENT]).
III. No specific standard of proof can be enunciated which must be applicable to all the cases. Every case depends upon its circumstances. Apart from other proof, conduct of parties is very material and has considerable bearing on evidence as to the genuineness of will which is propounded. Courts have to be vigilant and zealous in examining evidence. Rules relating to proof of wills are not rules of laws but are rules of prudence.
IV. Expanding on the care and caution to be adopted by the courts, and presumptions to be raised, in the decision reported as [PRECEDENT] In The Goods of Geale, it was opined that where a person is illiterate or semi literate or the will is in a language not spoken or understood by the executor, the court would require evidence to affirmatively establish that the testator understood and approved all the contents of the will.
V. One form of affirmative proof is to establish that the will was read over by, or to, the testator when he executed it. If a testator merely casts his eye over the will, this may not be sufficient.
VI. Courts have to evaluate evidence pertaining to the circumstances under which the will was prepared. If a will is prepared and executed under circumstances which raise a well grounded suspicion that the executor did not express his mind under the will, probate would not be granted unless that suspicion is removed.
VII. A word of caution. Circumstances can only raise a suspicion if they are circumstance attending, or at least relevant to the preparation and execution of the will itself.
VIII. Another point that has to be considered is about the improbability in the manner in which the instrument is scripted. Instance of suspicious circumstances would be alleged signatures of testator being shaky and doubtful, condition of the testator's mind being feeble and debilitated, bequest being unnatural, improbable and unfair.
IX. Suspicious circumstances are a presumption to hold against the will. Greater is the suspicion more heavy would be the onus to be discharged by he who propounds the will.
X. A will is normally executed by a person where he intends to alter the rule of succession or where he desires a particular form of inheritance and to that extent, nature of bequest is not of much substance to invalidate a will, but consistent view taken by the courts is that this could be treated as a suspicious circumstance. What weightage has to be attached to this suspicion would depend upon case to case. XI. Suspicion being a presumptive evidence, is a weak evidence and can be dispelled.
47 Here no suspicion circumstance seems to exist. I do not come across any fact which may indicate that the [ENTITY] was not executed in the manner as claimed by the attesting witnesses. In view of the cogent and trustworthy testimony of both the attesting witnesses, it becomes very much clear that the [ENTITY] in question was executed by the testator at his residence on 07.03.2005. It also does not really matter as to why attesting witnesses did not immediately confide in the petitioners about the execution of the [ENTITY] as PW3 Sh. [ENTITY] has admitted in cross-examination that he learnt about the [ENTITY] on 02.10.2005. There is nothing on record which may indicate that the testator was coerced to execute the [ENTITY] or that he did not know the contents of the [ENTITY]. No material has been placed on record from the side of respondent no. 4 suggesting mental incapacity or physical incapacity of the testator at the time of execution of the [ENTITY]. Reason of exclusion of her name is writ large and is evidently on account of sour relationship between the two which manifestly prompted and persuaded the testator to execute the [ENTITY]. Thus, there is no reason to entertain any suspicion with respect to the execution and authenticity of the [ENTITY].
48 Petitioners are already in possession of the property in question and are rather clearing the installments to the concerned bank with respect to loan taken against the mortgage of said property and, therefore, they might not have thought any necessity of coming to the Court immediately. Viewed thus, no suspicion arises merely on account of their coming to the Court after eight years of the execution of the [ENTITY]. Delay in such type of matters cannot be equated with the absolute bar of limitation and once the execution and attestation are proved, suspicion of delay no longer operates. Reference in this regard be made to [PRECEDENT]. (200 (8) SCC 49 As an upshot of my foregoing discussion, it is held that respondent no. 4 has not been able to disclose any reason or ground to dismiss the petition in question. It also stands proved that Sh. [ENTITY] executed a valid and enforceable [ENTITY] dated 07.03.2005 and thus issue no. 1 is decided in favour of the petitioners. Issue no. 2 & 3 are also decided in favour of the petitioner and against respondent no. 4.
Relief 50 Thus, as per such last will and desire of the deceased Sh. [ENTITY], petitioner no. 1 Sh. [ENTITY] and petitioner no. 2 Smt. [ENTITY] become entitled for grant of Letters of Administration in respect of property bearing no. 19/1, Upper Ground Floor (Front Portion) West Patel Nagar, New Delhi- 110008 after obtaining requisite Court fee and administration bond to the tune of Rs. Rs. 81,11,475/-. (Rupees eighty one lacs, eleven thousand, four hundred and seventy five only).
51 Further, petitioners are directed to file the inventory of above said immovable property within six months and final statement of account within one year from the date of receipt of formal Letters of Administration in terms of [SECTION] of [ACT].
52 Petition stands disposed of accordingly.
53 It is further clarified that question of title, share and ownership of the property mentioned above is not decided by this court.
54 File be consigned to record room.
Announced in the open Court On this 11th day of December, 2018 ([ENTITY]) Addl. District Judge-02 MANOJ by [ENTITY] West Distt: Tis Hazari Courts: Delhi Date: JAIN 2018.12.12 12:43:14 +0530