JUDGMENT [ENTITY], J.
(1) Shri [ENTITY] died on 24/11/1981 at R-569. New Rajinder Nagar, New Delhi. The petitioner is his son who seeks probate of the [ENTITY] purported to have been executed by Sh. [ENTITY] on 23rd November 1961. Under tr the [ENTITY] the petitioner has been appointed as sole executor and all moveable and immoveable properties have been bequeathed in his favor.
(2) Some undisputed facts : Petitioner [ENTITY] is son of Sh.[ENTITY] from his first wife who had died before [ENTITY] had married Dr. [ENTITY]. The marriage between Jee (3) Dr. [ENTITY] and Ms. [ENTITY] have opposed the grant ofprobate. Both mother and daughter in reply to probate petition have denied the factum and validity of the [ENTITY]. The opposition of mother and daughter is contained in Paras 4 and 7 of their reply to the petition which reads asunder:Para 4 "Para No. 4 of the petition is denied. It is incorrect [ENTITY] made the [ENTITY] in question, as alleged. The answering respondents deny the factum and validity of the [ENTITY] in dispute.Para 7 Para No. 7 of the petition is not admitted correct.It is denied that Shri [ENTITY] who purports to have made verification, declaration, has done so or that he purposely and validly attested the [ENTITY] or that the [ENTITY] has beenattested, according to law. The respondents deny that the [ENTITY] was properly executed. It is denied that [ENTITY] signed the Wiil, as alleged, when he was in possession of full senses or that he understood what it was about".
(4) On the pleadings of the parties the following issues were framed :-"(1) Whether the deceased [ENTITY] validly executed the [ENTITY] in question dated 23.11.1961 as his last [ENTITY] and testament ?(2) Whether the deceased was possessed of a sound disposing mind at the time of the execution of this [ENTITY].(3) Relief."
(5) The petitioner has examined three witnesses. PW-1 Dr. [ENTITY] and PW-2 Mr. [ENTITY] are the two attesting witnesses of the [ENTITY] Ex. P-l. PW-3 Sh. [ENTITY] is a Chartered Accountant who is stated to have handed over the [ENTITY] to the petitioner after death of [ENTITY]. The respondents/objectors have themselves entered the witness box,Dr. [ENTITY] RW-1 and Ms. [ENTITY] RW-2. Respondents have also examined one Sh. [ENTITY] (RW-3) and Sh. [ENTITY]). It would be convenient to take up all the issues together.
(6) The evidence led on behalf of the petitioner as to execution and attestation of the [ENTITY] and how the petitioner came in possession of the [ENTITY]is briefly this.
(7) PW-1 Dr. [ENTITY] has deposed that [ENTITY] had signed the [ENTITY]Ex. P-l in his presence and he was in perfect health and sound disposing mind when the [ENTITY] was executed. The [ENTITY] contains a certificate from Dr.[ENTITY] to the effect that "I have examined [ENTITY] today. He is imperfect health and is of sound disposing mind." Dr. [ENTITY] has further deposed that in the year 1961 he was working as Assistant Surgeon Gr. I. [ENTITY]ingdonHospital, New Delhi, and he retired on 30/11/1986 as Medical Officer of Health, N.D.M.C. He claims to have known [ENTITY] sincechildhood. It has also been deposed by Dr. [ENTITY] that the other attesting witness Sh. [ENTITY], PW-2 was present at the time of execution of the [ENTITY] and he had also signed in presence of Dr, [ENTITY] as well as in the presence of[ENTITY].
(8) PW-2 [ENTITY] has deposed that [ENTITY] was known to him for more than 50 years before his death and both belonged to the39same village/town. He has further deposed that [ENTITY] and he had been working as Assessors in the Sessions Courts in Pakistan. Mr. [ENTITY] has also deposed that on request of [ENTITY] he had attested the [ENTITY] Ex. P-l and that [ENTITY] was of sound disposing mind at the time when he executed the [ENTITY], and had signed the [ENTITY] in his presence as also in the presence of Dr. [ENTITY].
(9) PW-3 Sh. [ENTITY] has deposed that he had been practicing as a Chartered Accountant in Delhi since 1948 ai.d was advisor to [ENTITY] in regard to income-tax matters. Mr. [ENTITY] has further deposed that [ENTITY] was a director of M/s. Jubliee Highway Transport Co. Ltd. at Pathankot and be was the auditor of the said company, since its inception.It has also come in the statement of Mr. [ENTITY] that [ENTITY] used to visit his office and residence quite often. Mr. [ENTITY] has further deposed that [ENTITY] had told him during one of his visits that he wanted to execute [ENTITY] and had given Mr. [ENTITY] instructions to prepare a draft. Mr. [ENTITY] says that he had given a rough draft to Mr. [ENTITY] and thereafter he brought [ENTITY] Ex. P-l duly executed and deposited it with Mr. [ENTITY]. The witness claims that [ENTITY] had instructed him to hand over the [ENTITY] to his son [ENTITY] after his ([ENTITY]'s) death and that as per [ENTITY]'s desire the [ENTITY] was handed over to the petitioner after Kirya ceremony of [ENTITY]. The witness further says that [ENTITY] Ex. P-l remained with him in the same condition in which it was deposited with him by [ENTITY]. it is common case of the parties that Mr. [ENTITY] had been the income-tax advisor of [ENTITY] as also of Dr. [ENTITY]. Dr. [ENTITY] has deposed that she started paying income-tax in the year 1964 or 1965 andMr. [ENTITY] was her income-tax advisor.
(10) Mr. [ENTITY], learned counsel for the petitioner, contends that due execution and attestation of [ENTITY] Ex. P-l stood proved by the statement of two attesting witnesses and the petitioner is entitled to grant of probate of the [ENTITY] in question.
(11) Before considering the suspicious circumstances on which reliance has been placed by Mr. [ENTITY], learned counsel for the objectors, well settled principles bearing on the nature and standard of evidence required to prove a [ENTITY], may be stated. The Supreme Court in an elaborate judgment [PRECEDENT], , speaking through [ENTITY] J. laid down the following propositions :"(1) Stated generally, a [ENTITY] 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 [ENTITY]s, one cannot insist on proof with mathematical certainty.(2) Since [SECTION] of the [ACT] requires a [ENTITY] to beattested, 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 bean attesting witness alive, and subject to the process of the court and capable of giving evidence.(3) Unlike other documents, the [ENTITY] speaks from the death of the testator and therefore the maker of the [ENTITY] is never available for deposing as to the circumstances in which the [ENTITY] came to be40 executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded to be the last [ENTITY] and testament of the testator. Normally, the on us which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the [ENTITY].(4) Cases in which the execution of the [ENTITY] is surrounded by suspicious circumstances stand on a different footing. A shakysignature, a feeble mind, an unfair and unjust disposition ofproperty, the propounder himself taking a leading part in the making of the [ENTITY] under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the [ENTITY]. That suspicion cannot be removed by the mere assertion of the propounder that the [ENTITY] 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 [ENTITY] 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 bad 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 [ENTITY] excite the suspicion of the court, the propounder must remove all legitimate suspicion before the document can be accepted as the last [ENTITY] of the testator.(5) It is in connection with [ENTITY], 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 [ENTITY] 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 [ENTITY] has been validly executed by the testator.(6) If a caveator alleges fraud, undue influence, coercion etc in regard to the execution of the [ENTITY], such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the [ENTITY] may raise a doubt asto whether the testator was acting of his own free [ENTITY]. And the nit is a past of the initial onus of the propounder to remove all reasonable doubts in the matter.(See Jaswant [ENTITY] v. Amrit [ENTITY] and others, .
(12) It is not necessary to refer other judgments relied upon by learned counsel for the parties as most of the said judgments either follow or reiterate the aforesaid propositions of law.
(13) When the [ENTITY] Ex, P-l was executed [ENTITY] was about 48years old. Ex. P-l is a one page hand written document. It has only one paragraph which reads as under :"I, [ENTITY] S/o [ENTITY] resident of House No. P-569New Rajinder Nagar, New Delhi-5 with sound and disposing mind by41this my last [ENTITY] (WILL) bequeath and devise all my moveable and immoveable property, whatsoever and wheresoever, to my only son [ENTITY] absolutely and appoint him sole executor of this my[ENTITY].In witness whereof I have signed this hereunderontbe23rddayofNovember 1961.sd/-[ENTITY] Baweja23.11.61 (14) After the above passage there is an endorsement about the testator and attesting witnesses having signed it in presence of each other. Thereafter there is a note said to have been made by PW-1 Dr. [ENTITY] that "I have examined [ENTITY] today. He is in perfect health and is of sound disposing mind." Then it contains signatures purporting to be of the attesting witnesses.
(15) I may also notice few material facts which have come mostly in the statement of Dr. [ENTITY]. After marriage of [ENTITY] and Dr.[ENTITY] in the year 1954 at Pathankot, she stayed with him at his house at Pathankot, up to 1956. Petitioner was away to Tehran before their marriage and was expected to come to India in February 1957. From the end of 1956 Dr. [ENTITY], on being asked by her husband started living at his Rajinder Nagar House. Petitioner came to India in early 1957 and.went back to Tehran after his engagement. Petitioner came back to India in the year 1958 and after his marriage he again went back to Tehran with hiswife. Dr. [ENTITY], during this period, continued staying along in houseNo. R-569, New Rajinder Nagar, New Delhi. Petitioner finally returned to India in the year 1960 and started living in the same house. Dr [ENTITY] says that she stayed in that house till early part of 1963 when she along with her daughter shifted to another house No. H-479, New Rajinder Nagar which she claims that her husband got her on rent, though according to PW-3,mother and daughter were living separately at the time when [ENTITY] had executed the [ENTITY] Dr. [ENTITY] admits that even when she had gone away and started living separately, [ENTITY] continued living with his son [ENTITY], the petitioner. It also stands established and rather admitted that further and son were jointly doing business which was of finance, transport and batteries etc. Dr. [ENTITY] and her daughter did not make any positive statement about the educational qualifications of [ENTITY] though it was vaguely stated by Dr. [ENTITY] that 1 do not think [ENTITY] was even matriculate.' She, however, admitted that he used to write English also though she stated that he used to correspond in Urdu and used to write to her in Gurmuki only. Four recurring accounts in the bank had been opened during the lifetime of [ENTITY] so that deposits there from could be utilised for marriage of daughter [ENTITY] and two deposits had matured during the lifetime from which he had started buying articles for marriage. The total amount received from the said accounts was about Rs. 80.000.00. The husband and wife had never any joint account in any bank. [ENTITY] used to sign in English and his signatures were obtained by counsel of Dr. [ENTITY] from the bank. None have, however,been filed on record. She also admits that she had some correspondence exchanged between her and the Bank about the locker which she said [ENTITY] had in Punjab & Sind Bank, but no such correspondence was filed onrecord The case of petitioner appears to be that [ENTITY] had no such42 bank locker. Dr. [ENTITY] admitted that in 1982 petitioner showed her the [ENTITY] and thereafter she never visited his house. PW-3 Mr. [ENTITY], one of the witnesses examined by the objectois, states that Dr. [ENTITY] told him after I or 10 months of death of [ENTITY] that one [ENTITY] executed by [ENTITY] bad been found and in bat [ENTITY] nothing had been left to them. Dr. [ENTITY] did not state that the [ENTITY] Ex. P-l was not in the handwriting of [ENTITY] or that it was not signed by him though her daughter did make such a statement. The daughter said that her father know English but not correct English. She, however, admitted that if some draft written in English was given to him, he could copy it out.
(16) Bearing in mind the aforesaid facts and proposition of law. I will now consider the various circumstances which, according to Mr. [ENTITY],learned counsel for the objectors, are suspicious and remain unexplained disentitling the petitioner to grant of probate. Learned counsel submits that it is the duty of the propounder of the [ENTITY] to dispel all doubts and explain all suspicious circumstances. There is no doubt about this generalproposition. It is also well settled that even if there is no plea of suspicious circumstances raised by the objector still the propounder of the [ENTITY] has to completely dispel all doubt and explain all suspicious circumstances and satisfy the conscious of the court. There is also no doubt about the well settled principle of law that the initial onus of proving the [ENTITY] is very heavy on the propounder of the [ENTITY]. I may, however, add that evidence in the petition was recorded more than 25 years after the execution of the [ENTITY]Ex.P-l and this fact cannot be ignored while considering the objections to the grant of probate and considering the circumstances said to be suspicious.As held by the Supreme Court no hard and fast or inflexible rules can be laid down for the appreciation of the evidence and which of the circumstances would be regarded as suspicious cannot be precisely said or exhaustively enumerated. It is no doubt true as contended by the objectors that they were totally disinherited and petitioner is the sole beneficiary under the [ENTITY] but this fact by itself cannot be treated as suspicious circumstance as there is nothing on the record to establish that petitioner had taken any part in the execution of the [ENTITY] let alone prominent part. The disinheritance by itself cannot be treated as a suspicious circumstance. The two currents of natural affection and settlement of properties can flow indistinct channels, and that the change in the course of the one need not necessarily have any effect on the direction of the other (See : [PRECEDENT], ).Assuming that disinheritance of mother and daughter is a suspiciouscircumstance the disinheritance stands completely explained in the facts and circumstances of the case. Admittedly, the petitioner was the only son of the testator. Admittedly, the objectors were shifted to another house, may be,at a short distance of a mile or so and testator continued to live with his son till his death in the year 1981. Ordinarily, if a person finds that his wife and children are not pulling on well he would ask the children and their family members to shift to some other house and himself would continue to stay in the same house with his wife. In the present case, however, that did nothappen. According to Dr. [ENTITY], she with her daughter shifted to another house in early part of 1963. According to [ENTITY] they were living separately when the [ENTITY] was executed. Dr. [ENTITY] has also stated that since end of 1956 she is living at Delhi whereas [ENTITY] was living atPathankot. This explains the state of mind of [ENTITY] even if it be assumed that she started living separately from early 1963 and was not43living separately when [ENTITY] was executed. I also cannot shut my eyes to the fact that when [ENTITY] was executed [ENTITY] was about 48 years old,He knew that his wife was well off. She was a practicing doctor. He could have well thought that he will solemnise the marriage of his daughter himself during his lifetime and that may have led him to disinherit her. It is not unknown of Indian parents to deprive daughters of any share in theirestate. It has also come .on record in the statement of Dr. [ENTITY] that the petitioner finally returned to India in January 1960 and was looking after the business jointly with his father. It also stands proved that four recurring deposits in the banks bad been opened so that amounts of the said deposits could be utilised on the marriage of Ms. [ENTITY]. The amount received on maturity of those account was about Rs. 8U.OOO/. Two of the deposits had matured during lifetime of [ENTITY] and the amount so received had been used by him for purchase of articles for marriage of the daughter. In view of the aforesaid facts and circumstances, the argument that [ENTITY] loved her daughter and would not have disinherited her or atleast would have made some provision for her marriage is of noconsequence. The facts taken as a whole show that disinheritance of wife and daughter is not a suspicious circumstance and in any case it has been duly explained.
(17) Learned counsel for the objectors then contended that the effect of keeping the [ENTITY] with Mr [ENTITY] raises serious doubts about the authenticity of the [ENTITY]. The best person with whom the [ENTITY] should have been kept, according to the counsel, was the petitioner himself, being the sole beneficiary and executor of the [ENTITY]. It is well known that the [ENTITY]s are generally kept with persons of trust. It is also well known that [ENTITY]s are generally not kept with the beneficiaries. It has been proved that Mr.[ENTITY] was the Chartered Accountant of [ENTITY] and he used to meet him quite often. It is not unknown to keep the [ENTITY]s with the professions like Chartered Accountants. It also stands proved that Mr.[ENTITY] was also handling the income-tax matters of Dr. [ENTITY] as well. The objectors have not been able to shake the testimony of Mr, [ENTITY] in any manner.
(18) The petitioner had produced in evidence both the attesting witnesses besides Mr. [ENTITY]. It is not necessary that in every case a handwriting expert should be produced. There is nothing suspicious particularly when the objection on this score is vague. It may also be noticed that even Dr.[ENTITY] did not depose that the writing and signatures on the [ENTITY] were not of her late husband though her daughter did make such a statement.Under the facts and circumstances of the case there was nothing unnatural in not examining the handwriting expert. Even the objectors did not care to produce a handwriting expert though Dr. [ENTITY] admitted that she bad taken the specimen signatures in English of [ENTITY] from the bank.
(19) It was next contended that testator did not know English language and the [ENTITY] was in English. However, it stands proved even from the evidence of the objectors that [ENTITY] sometimes used to write English though objectors claim that it was grammatically wrong and spellings would also be wrong. Ms. [ENTITY] admitted that her father knew English but added the rider that he did not know much correct English. She admitted that if some draft written in English was given to her father he was in a position to copy it out. Both mother and daughter did not make any positive statement on educational qualification of [ENTITY] but made only44 & vague statement. The objectors had not even pleaded in their reply that [ENTITY] did know English and were satisfied with the vague plea of denial of proper execution of the [ENTITY]. In their reply the objectors said that'it is denied that [ENTITY] signed the [ENTITY] as alleged when he was in possession of full sense or that he understood all it was about. Admittedly testator used to sign in English. As observed above, the objectors had obtained English signature of testator from Bank but did not file it on record of the case. The evidence is also to be appreciated in the context of the fact that a rough draft of the [ENTITY] had been prepared by Mr. [ENTITY] and handed over to [ENTITY] Another discrepancy pointed out by the objectors that Dr. [ENTITY] in his evidence had stated that the subject matter of the [ENTITY] was not copied by [ENTITY] from any other paper but he had scribed this [ENTITY] in his own handwriting is of not much relevance considering that the evidence was being recorded more than 25 years after the execution of the [ENTITY]. Further more considering that it is short [ENTITY] of few linesonly, the testator could have remembered that contents of the draft.
(20) It was nobody's case that when the [ENTITY] Ex. P-l was executed testator was not in possession of full senses. No argument was put forth on behalf of respondents that [ENTITY] was not of sound disposing mind atthe time of execution of [ENTITY] or any time even thereafter. It stands proved that [ENTITY] was of sound disposing mind when he executed the [ENTITY]Ex. P-l. He lived for about 20 years after executing the [ENTITY].
(21) With regard to the circumstance that legal terminology has been used in the [ENTITY], in my opinion, there is no such particular legal terminology used in the [ENTITY]. Further, from the evidence of PW-2, it appears that testator must had some knowledge of this terminology as it was stated that he had been working as Assessor in Sessions Court in Pakistan. I do not find any merit in this circumstances.
(22) PW-1 Dr.[ENTITY] in his evidence stated that he had performed the clinical examination of [ENTITY] before giving a certificate on the [ENTITY] about his being of perfect health and sound disposing mind. The argument of Mr. [ENTITY] was that the witness was going too much out of way to help the propounder of the [ENTITY] and there was no question of clinical examination of [ENTITY] as such examination was unnecessary before giving certificate of perfect health and sound disposing mind. The note of the doctor on the [ENTITY] does not show the clinical examination but only says that the doctor had examined [ENTITY] and after 25 years doctor states that he had performed clinical examination. The argument in my view is not of much consequence while determining the due execution and attestation of the [ENTITY].
(23) Both the attesting witnesses have deposed that they knew [ENTITY] since long and their statement that they did not know the relations of [ENTITY] with his family members is not of any relevance. Such facts can co-exist. The witnesses examined on behalf of the petitioner are trustworthy and their testimony has not been shaken in any manner. The aforesaid circumstances, on which giant reliance has been placed by the objectors are not suspicious circumstances and, in any case, these circumstances stand duly explained. I may also notice that the objectors have not pleaded exercise of any undue influence, fraud or coercion in respect of45execution of the [ENTITY]. The petitioner has been successful in discharging the onus placed on him. The fact that [ENTITY] during his life-time was looking after his wife and daughter and had taken for them the house on rent or that he was prosecuting the eviction petition in respect of the said rented house do not in any manner affect the due execution and attestation of the [ENTITY] particularly keeping in view the factum of mother and daughter having been provided separate accommodation since 1963. It has also come in evidence that the objectors had cordial relations with the petitioner even after death of [ENTITY] and relations of petitioner with Dr. [ENTITY] became sore only after about 8 or 10 months of death of [ENTITY] when petitioner showed the [ENTITY] executed by [ENTITY] and in that [ENTITY] nothing had been left for the objectors. Inspite of the said knowledge the objectors did not think it necessary to either take positive pleas in their reply/objections or to produce any other evidence to cause any doubt much less serious doubt about the validity of the [ENTITY].
(24) For the reasons stated above, I am of the opinion that the petitioner has successfully proved the valid execution and attestation of the [ENTITY] Ex. P-l. Thus, both the issues are answered in favor of the petitioner.I accordingly, direct that probate be granted to the petitioner with a copy of[ENTITY] dated 23/11/1961 (Ex P-l) attached subject to the petitioner complying with all legal requirements including filing of the administrationbond. Parties are left to bear their own costs.Probate granted.