IN THE COURT OF MS. SAVITRI : ADDL. DISTT. JUDGE-02, WEST DISTRICT : TIS HAZARI COURTS: DELHI. PC-16118/16 Sh. [ENTITY] S/o Late [ENTITY] R/o J-5/4, Rajouri Garden, New Delhi-110027. Petitioner Versus 1. [ENTITY] 2. Sh. [ENTITY], S/o Late [ENTITY] 3. Sh. [ENTITY], S/o Late [ENTITY] Both r/o J-5/163, Rajouri Garden, New Delhi. 4. Smt. [ENTITY], W/o Sh. Yash Pal Singh, D/o Late [ENTITY], R/o RZ-K2/170, Gali No-9, Nehal Vihar, New Delhi-110041. 5. Smt. [ENTITY], W/o Sh. Davinder Chauhan, D/o Late [ENTITY], R/o 610-611, Pocket-1, Paschim Puri, New Delhi-110063. 6. Smt. [ENTITY], W/o S. Bhagat Singh, D/o Late [ENTITY], R/o WZ-248, 3rd Floor, Gali No-5, Virender Nagar, New Delhi-110058. PC No. 16118/16 [ENTITY] Vs. [ENTITY] & Ors. Page 1 of 33 7. Smt. [ENTITY], W/o Sh. Sandeep Talwar, D/o Late [ENTITY], R/o 610-611, Pocket-1, Paschim Puri, New Delhi-110063. 8. Smt. [ENTITY], W/o Sh. Harsh Sardana, D/o Late [ENTITY], R/o 4/21, 3rd Floor, Left Side, Saraswati Marg, Karol Bagh, New Delhi-110005. 9. Smt. [ENTITY], R/o 752, Vishal Enclave, Rajouri Garden, Near Police Station, New Delhi-110027. 10. Smt. [ENTITY], R/o 752, Vishal Enclave, Rajouri Garden, Near Police Station, New Delhi-110027. Respondents PROBATE PETITION U/S 278 OF INDIAN SUCCESSION ACT FOR GRANT OF PROBATE/LETTER OF ADMINISTRATION TO THE WILL DATED 01.03.1993 EXECUTED BY LATE SARDUL SINGH Date of institution of the case : 08.02.2012 Date of reserving the judgment : 27.08.2019 Date of pronouncement of Judgment : 04.09.2019 JUDGMENT
1. The present petition has been filed by petitioner [ENTITY] for grant of probate/letters of administration with respect to suit property bearing No. J-5/4, Rajouri Garden, New Delhi, on the basis of registered will dated 01.03.1993, which as per him was executed in his favour by his late father [ENTITY]. The fact that deceased owned this property is an almost admitted fact.
Otherwise also, the issue of title is not to be adjudicated upon by a probate court. Further, that he died on 12.01.2002 and his wife Smt. [ENTITY] had predeceased him on 10.06.1990, is an admitted position.
2. After the notice of the petition was issued, the private respondents, who are siblings of petitioner, entered appearance. Admittedly, their mother had pre-deceased the deceased. Respondents no. 3, 5 and 7 have contested the present petition. Respondent no-6 Smt. [ENTITY] neither filed any objection nor any NOC in favour of will/petition. Respondents no. 2, 4 and 8 filed their No Objection. Interestingly, respondent no-2 [ENTITY] is an attesting witness to the will in question.
3. It is important to take note that respondents no. 9 and 10 were added later on after they moved an application for impleadment on the ground that they are another wife (Smt. [ENTITY]) and daughter (Ms. [ENTITY]) of the deceased, respectively. Thereafter, both of them also filed their joint objections to the present petition.
4. In the joint objections filed by respondents no. 3, 5 & 7, they have taken a ground that the petitioner was not on cordial terms with the deceased during his entire lifetime and the will in question is false and fabricated. Further, the petitioner had not disclosed about the will to any other person till filing of the present petition. The deceased received a head injury in the month of August 1985 and remained paralytic for rest of his life. He was not in a position even to move freely without help. The deceased resided with respondent no-3 till his last breath, who had taken care of him being a dutiful son. Further, that neither the petitioner nor [ENTITY] - respondent no-2 ever looked after their deceased father. The deceased never executed any will, as alleged. The fact that the will is forged, is apparent from the fact that the signature of testator is not affixed at the proper place in the will. It seems that the signature was taken first on blank paper and thereafter typing was done. Another ground is that while the will is in English language, the deceased could read and write only Urdu language. Had he actually intended to execute a will, he would have hired a professional, who would have mentioned all his assets in one will, which is not the case in the alleged will. Also, the will even does not mention the details of legal heirs/family members of the deceased. Since, the petitioner had an evil eye on the suit property, the forged will was prepared.
5. Another stand has been taken that had there been any will, there was no need for the petitioner to get signed a relinquishment deed of the suit property from other legal heirs, as late as 04.09.2006.
6. In the joint objections of respondent no-9 and 10 also more or less similar grounds of objections have been taken. Additionally, a ground has been taken that the will is suspicious for the very reason of exclusion of legally wedded wife - respondent no-9 and her daughter - respondent no-10, who had taken care of him during his last days. Further, that the deceased had died intestate and petitioner had forged the will in question.
7. Petitioner filed replication to the objections, wherein, he denied the contentions of objectors and reiterated the averments made in the petition.
8. After completion of pleadings, following issues were framed by my Ld. Predecessor Judge vide order dated 25.10.2013 :-
ISSUES
1) Whether the present petition is bad for mis-joinder and non-joinder of necessary parties? OPR-3,5,7,9&10.
2) Whether the present petition has not been verified in accordance with law?
OPR-3,5,7,9&10
3) Whether the will dated 01.03.1993 executed by testator deceased Sh. [ENTITY] is a valid, legal and genuine will?
4) Whether the petitioner is entitled for grant of Probate/Letter of Administration in respect of the aforesaid will dated 01.03.1993, as prayed for? OPP
5) Relief PETITIONER'S EVIDENCE
9. In order to prove its case the petitioner has examined respondent no-2 [ENTITY] as an attesting witness of the will in question. [ENTITY] is PW-1 and has led his evidence by way of affidavit as Ex PW-1/1. He relied upon the will in question as Ex PW-1/C and the registered sale deed of the suit property dated 13.11.1957 in favour of deceased as Ex PW-1/D. It is mentioned in evidence affidavit that deceased had executed the present registered will on 01.03.1993 after he expressed his intention to the witness that he wanted to execute will with respect to suit property in favour of petitioner. Further, that the will was signed firstly by the deceased, in presence of witness; thereafter the witness put his signature on the same as attesting witness; and the second attesting witness was one Sh. [ENTITY], Advocate and all the three had signed the will in presence of each other. It is further mentioned in the affidavit that the deceased used to appear in a civil case, which was filed by him for grant of succession certificate after death of his wife Smt. [ENTITY]. Further, that he was a person of sound mind and healthy body as he appeared several times in the succession certificate case. (In fact the record reveals that it was the petition for grant of probate/letters of administration). He identified his signature as well as that of the deceased testator on the will during his examination in chief.
10. During his cross-examination by Ld. Counsel for objectors no.
3, 5 and 7, the witness deposed about the details of various properties other than the suit property, owned by the deceased. The witness further deposed that deceased used to reside with respondent [ENTITY] at property no. J-5/163, Rajouri Garden, Delhi. Further that the petitioner also used to stay in the same property till the death of deceased and thereafter he shifted to suit property. The witness denied the suggestion regarding re-marriage of deceased with respondent no-9.
11. The witness denied the suggestion that he was not having cordial relations with deceased or that respondent [ENTITY] alone used to take care of the deceased. The witness admitted that the deceased had suffered head injury in the year 1985 and was treated at AIIMS and other hospitals but denied the suggestion that he had remained admitted for about four months at AIIMS. He admitted that after sustaining head injury the deceased did not work and remained at home while denying the suggestion that he was unable to move or walk on his own after paralytic attack, which he suffered consequent to head injury.
12. During the course of further cross-examination, the witness deposed that deceased never executed any other will except the will in question, even with respect to his other properties. On another date of his cross-examination, he deposed that he did not remember as to whether the deceased had executed another will apart from the will in question. The witness denied any knowledge if the deceased was having any intention to distribute his assets and properties amongst his legal heirs during the year 1993 or even till his death.
13. Regarding the drafting, execution and registration of will, the witness deposed that he had accompanied the deceased for this purpose to Kashmere Gate. The witness could not tell the name of advocate, whom they met there. He deposed that he was present when deceased was instructing the advocate for drafting the will but could not tell whether the advocate asked the deceased regarding other properties owned by him. The witness did not remember whether the advocate, who was engaged to prepare the will had typed the same in his chamber or got it typed from outside. He also could not tell whether the photographs of himself, deceased and advocate were taken at the registrar office. He also could not tell as to whether the advocate engaged for drafting will had known the deceased. The witness did not remember if his deceased father had carried relevant documents and other things required for registration of will, as advised by the advocate. The witness did not remember whether he appeared before Sub-Registrar and signed some documents/register or not but he denied the suggestion that he never visited the Sub-Registrar office on 01.03.1993, with deceased.
14. The witness did not remember as to how he had got the original registered will. Surprisingly, he deposed that the deceased had filed the will before the court in this case. He denied the suggestion about any meeting held amongst family members on 04.09.2006 regarding distribution of assets of deceased amongst the legal heirs. He also denied that all the legal heirs had signed relinquishment deed of suit property, in favour of petitioner, on that day. He also denied the suggestion that there was no mention of the will in question in the meeting, held on 04.09.2006, thereby impliedly admitting that there was some meeting on this date.
15. The witness could not tell how the petitioner came to know about the execution of will in his favour. The witness denied any knowledge as to where the deceased used to keep property documents etc. An interesting suggestion contrary to the case of respondent was put to the witness to the effect that no meeting ever took place among the legal heirs of deceased regarding distribution of assets left by him. The witness admitted this suggestion. On another date of cross-examination, yet another interesting suggestion was put to the witness that the deceased had called all the legal heirs and explained to them that he was going to execute a will in favour of petitioner regarding suit property, about 15 days prior to the will. The witness admitted this suggestion also.
16. During his cross-examination by Ld. Counsel for respondents no. 9 and 10, the witness deposed that he had never visited Kashmere Gate Registrar Office prior to 01.03.1993 (the day of execution and registration of will in question). He further deposed that he had met the advocate for the first time on 01.03.1993. The witness did not remember whether deceased had asked someone or had directly contacted the advocate. During cross-examination, the witness also made mention of presence of one [ENTITY] (his jijaji) with them on 01.03.1993 but deposed that [ENTITY] did not sign the will. During further questioning, the witness could not tell who signed the will lastly. Interestingly, he did not remember whether the advocate had also guided the other attesting witness for signing at a particular place on the will. At this stage, the witness seems to have forgotten that the second attesting witness was none other than the advocate himself.
17. He further deposed that the advocate did not inquire from the deceased about his legal heirs nor did the deceased tell him about the alleged other wife and children from her. The witness denied the suggestion that respondent no-9 was his step mother and respondent no-10 is his stepsister or that the deceased had solemnized marriage of respondent no-10 out of his own funds and the witness had participated in her marriage alongwith other family members or that his deceased father had performed the Kanyadan ceremony. It is quite interesting to note that he admitted that he was present in the marriage photographs when the same were put to him. This is deemed admission of the photographs and in my view formal proof of the same is not required. He denied the suggestion that during the last days of his life, the deceased used to reside with respondent no-9 or that she used to take care of him.
18. The witness denied the knowledge about filing of the present petition by the petitioner and deposed that he got to know of it only after receiving summons from the court. While admitting that he had cordial relations with the petitioner, he denied the suggestion that petitioner had taken him to his counsel and the witness had deposed as per the instructions of Ld. Counsel for petitioner. He denied having ever visited the chamber of petitioner's counsel or even knowing his name. It is surprising to note that the witness did not know as to who had got typed his evidence affidavit or if the same was prepared on his instructions or not; though, he admitted that it was typed in his presence. He did not even remember the place where he had signed his evidence affidavit nor he could tell as to what had been written/typed in the evidence affidavit.
19. The witness admitted that the deceased did not know English language while the will was typed in English language. He denied the suggestion that due to paralytic attack suffered by deceased because of head injury, he had lost sound disposing mind and memory. He also denied the suggestion that apart from paralysis, the deceased was suffering from various old age ailments.
20. In response to further questioning, the witness deposed that he had told the other legal heirs about execution of will but could not tell the month and year of the same. Though the witness claimed that he accompanied his father at the time of execution of will, he deposed that he did not remember whether the deceased had disclosed about all his properties and all his legal heirs in the will Ex PW-1/C. He denied the suggestion that the will did not bear the signature of the deceased or that the will was a fabricated document. Perusal of evidence of PW-1 makes it amply clear that he is not a reliable witness. He states one thing on one occasion and deposes quite the opposite on another occasion. Also, he forgets too many important details and there are lots of material contradictions in his evidence. Similar is the case with the counsel cross-examining him.
21. PW-2 is Sh. [ENTITY], advocate, the second attesting witness, who has examined himself vide affidavit Ex PW-2/1. It is mentioned in his evidence affidavit that the will in question was drafted by him on instructions of deceased. The deceased had signed the same in his presence as also the first attesting witness [ENTITY] (PW-1). PW-2 signed the will in the last, in the presence of deceased and the other attesting witness. He identified the signatures of deceased on the will as well as his own signature, during his examination in chief.
22. When he was cross-examined by Ld. Counsel for respondents, no-3, 5 and 7, he deposed that he knew deceased even prior to execution of will as the deceased had visited him twice before execution of will regarding some information and documentation. But, he could not tell as to about which property the deceased had inquired from him. The witness further deposed that the deceased had met him for the first time, about 1- months before execution of will in question and was accompanied by his son [ENTITY] (PW-1). The witness further deposed that he had known [ENTITY] also since then. Further, on first two meetings the deceased had not consulted the witness regarding execution of will.
23. Regarding the drafting, execution and registration of will, the witness deposed that he did not take details of family members or other properties from deceased nor made any rough draft for preparation of will and directly dictated the contents of the will to the typist. The witness deposed that deceased was accompanied by two people when he visited him for the purpose of will but denied the suggestion that the second person was petitioner [ENTITY], who was present at the time of preparation of will and deposed that he did not know the second person. He denied the suggestion that the deceased was not in a position to speak properly or to understand the contents of the will due to paralytic attack. He volunteered to say that deceased used to walk with the help of a stick. He denied the suggestion that he was not able to sign as his hands were shaking. The witness admitted that at that time there was no provision at the registrar office for taking photographs of witnesses and testator, at the time of registration of will. (Thus, living room for manipulation). He denied the suggestion that deceased never visited him for preparation and execution of will in question.
24. During his cross-examination by Ld. Counsel for respondents no. 9 and 10, the witness deposed that he does not become an attesting witness in every will that is drafted by him. When questioned about his signatures appearing on the will, he deposed that these were his complete signatures. The witness admitted that his signature on the will were different from his signature on affidavit and volunteered to say that the signatures were taken in two widely different years (1993 and 2014). He denied the suggestion that deceased was not in sound disposing mind at the time of registration of will but deposed that he did not ask about any medical certificate, showing the mental condition of deceased. The witness could not tell the exact date and month of two visits of deceased to him prior to the execution of will.
25. On further questioning, the witness deposed that his evidence affidavit was prepared in the chamber of counsel for petitioner where he also signed the same. He denied the suggestion that he had fabricated and manufactured the will in question in connivance with [ENTITY] (PW-1) and [ENTITY] (petitioner). He also denied the suggestion that he had deposed in more than 100 probate cases as attesting witness, though admitted that he deposed as such in some 2-4 matters. Admittedly, the witness had appeared in the court without having received any summons from the court. Though, it was not mentioned in the evidence affidavit of witness that he had read over the contents of will to the deceased, in response to question put by counsel for respondents no-9 and 10, he has deposed so while mentioning that the Sub-Registrar had not done so. In this way, the lacunae left in the evidence affidavit has been filled up due to unnecessary cross-examination.
26. PW-3 is the official witness, who produced the record regarding registration of will in question from the office of Sub-Registrar-I, Kasmere Gate, Delhi. Nothing material was asked during his cross-examination.
27. PW-4 is another official witness, who produced the record Ex PW-4/A to H (Colly) of probate case bearing no. 98/98, titled "[ENTITY] & Ors. Vs. [ENTITY] & Anr." filed by the deceased, after the death of his wife [ENTITY] (mother of petitioner). Perusal of the same reflects that deceased had in fact appeared in person in that matter on some occasions.
28. PW-5 is the petitioner himself, who has been examined vide affidavit Ex PW-5/1, which is on the lines of his petition. Apart from relying upon the documents placed on record by PW-1 and PW-4, he relied upon some photocopies of envelops regarding litigation between the deceased and respondents no- 9 and 10. These photocopies were marked as Mark-A1 to A3 and not exhibited.
29. During his cross-examination by Ld. Counsel for respondents no-3, 5 and 7, he deposed that after the deceased expired, PW-1 [ENTITY] handed over to him the property documents of suit property as well as the original will, which always remained with the deceased during his lifetime. While the witness admitted the head injury received by deceased and his consequent hospitalization for 4-5 months and paralytic attack, he denied the suggestion that the deceased was bedridden post paralysis. He denied the suggestion that he and his elder brother were not having cordial relations with the deceased or that respondent [ENTITY] alone used to take care of the deceased. Though, he admitted that [ENTITY] was residing in the same property where the deceased breathed his last.
30. The witness denied any knowledge about the execution and registration of will at the point of time when it was so executed and registered and deposed that [ENTITY] had not told him about the same. He deposed that after receiving the original will he got the suit property mutated in MCD records and also got water and electricity connections transferred in his name. He also denied the suggestion that the deceased neither executed nor got registered the will in question.
31. He deposed that no family meeting took place amongst the parties for distribution of properties of deceased after his death. He also denied execution of any relinquishment deed of suit property by all the other LRs of deceased in his favour. He deposed that he was not aware of any such relinquishment deed. He denied the suggestion that the deceased was not in a position to execute the will voluntarily and was not having good physical and mental condition.
32. During his cross-examination by Ld. Counsel for respondents no-9 and 10, the witness deposed that the deceased never told him since 1993 till his death that he would bequeath the suit property to him. He further deposed that his brother [ENTITY] has disclosed to him about the will in question after about 2-3 months from the death of deceased in presence of all the brothers and sisters and nobody raised any objection about genuineness of the same. He denied the suggestion to the contrary. He denied the suggestion that he got manufactured the will in question in connivance with [ENTITY] with the object to deprive the other legal heirs of deceased of their legitimate share in suit property. He denied the suggestion that the will did not bear signature of deceased or that he never executed the same. He also denied that in the year 1993 the deceased was not in a position to put his signature as his hands were shaking or that he used to put thumb impression only. He further denied that the deceased was having love and affection for respondents no. 9 and 10 and wanted to give them their due share in all his properties. When the photographs of wedding of respondent no-10, but the witness identified his father with respondent no-10 sitting behind him (deceased). He also identified his brothers [ENTITY] and [ENTITY] and his paternal uncle ([ENTITY]) in these photographs and did not dispute the genuineness of these photographs. Therefore, this is implied admission about the photographs.
RESPONDENT'S EVIDENCE
33. Objector [ENTITY], sister of petitioner, has examined herself as RW-1 vide evidence affidavit Ex RW-1/A, which is on the lines of her objections. During her cross-examination by Ld. Counsel for petitioner, she denied the suggestion that her deceased father was not having cordial relations with her brother [ENTITY] - respondent no.3 as there were some criminal cases pending against him. She admitted that though her father remained paralytic after 1985 head injury but he used to walk with stick. She also admitted that after the injury, the deceased continued to operate bank accounts. She further admitted that deceased used to sign in Urdu language. She denied the suggestion that her deceased father had disclosed to all family members about the will in question. She also denied the suggestion that since all except [ENTITY], [ENTITY] and herself knew about the will in question, therefore, they had filed their No Objection to the will. She admitted the suggestion that the will in question bore the signature of her father in Urdu language. The witness denied the suggestion that her deceased father had filed a succession petition regarding locker of her mother, wherein she was party and had signed the same. She denied her signature even when shown certified copy of succession petition, thus, adversely affecting her credibility as a witness.
34. Respondent no-3 [ENTITY] has examined himself as R3W1 vide affidavit Ex R3W1/A, which is on the same lines as joint objections of respondents no. 3, 5 and 7.
35. During his cross-examination by Ld. Counsel for petitioner, he denied the suggestion that his brother [ENTITY], who is attesting witness to the will had disclosed about the will to him after about two months of its registration. This witness admitted that deceased used to read Urdu newspaper and also sign in Urdu on bank documents and shares. He denied the suggestion that no relinquishment deed was ever executed as is the case of respondents. He also denied the suggestion that the will in question was legal, genuine and last will of his deceased father. When questioned with regard to documents about the fact that deceased was bedridden till his death after he sustained head injury in the year 1985, the witness could not produce any document and volunteered to say that the documents were destroyed during whitewash around the year 1996-98.
36. Respondent no-10 [ENTITY] has also examined herself as R10W1 on affidavit Ex R10W1/A, which is on the lines of her objections taking a ground that deceased was illiterate and had very weak eyesight and hearing power and unable to understand what other person spoke and was also unable to identify objects. These averments regarding eyesight and hearing power are beyond her pleadings.
37. During her cross-examination by Ld. Counsel for petitioner, she deposed that deceased was suffering from hypertension, breathing problems and paralysis but could not produce any document in this regard. Interestingly, during her cross- examination she deposed that deceased knew Urdu language and used to sign in Urdu, which show contradictions in her evidence and reflects adversely on her reliability.
38. She denied the suggestion that deceased used to appear physically in court in succession case. (Though the order sheets of that case clearly mention this). She denied the suggestion that deceased never resided with her or that she never took care of him or that since he never lived with her, she was not aware of the will in question. She denied the suggestion that will in question was bearing genuine signature of deceased or that it was registered by deceased after appearing personally before the Sub-Registrar in sound disposing mind.
39. Before proceeding to decide the present probate petition let me discuss in nutshell, the relevant legal provisions and judicial pronouncements.
40. The expression "Will" is defined by [SECTION] of [ACT] to mean the legal declaration of "the intention" of a testator with respect to his property "which he desires to be carried into effect after his death". [SECTION] of [ACT] governs the capability of a person to make a Will. It reads thus:-
"59. Person capable of making Wills Every person of sound mind not being a minor may dispose of his property by Will.
Explanation1. A married woman may dispose by Will of any property which she could alienate by her own act during her life.
Explanation 2. Persons who are deaf or dumb or blind are not thereby incapacitated for making a Will if they are able to know what they do by it.
Explanation 3. A person who is ordinarily insane may make a Will during interval in which he is of sound mind.
Explanation 4. No person can make a Will while he, is in such a state of mind, whether arising from intoxication or from illness or from any other cause, that he does not know what he is doing.
41. [SECTION] thus declares that every person (not being a minor) "of sound mind" may dispose of his property by Will. The second explanation appended to the said provision clarifies that persons who are "deaf or dumb or blind" are not incapacitated by such condition for making a Will "if they are able to know what they do by it". The third explanation makes the basic principle pellucid by adding that even a person who is "ordinarily insane" may make a Will during the interval in which "he is of sound mind". The fourth explanation renders it even more lucent by putting it negatively in words to the effect that it the person "does not know what he is doing" for any reason ( such an intoxiation, illness or any other such cause) he is incompetent to make a Will. The focal pre-requisite, thus, is that at the time of expressing his desire vis-a-vis the disposition of the estate after his demise he must know and understand its purport or import.
42. The execution of an unprivileged Will, as the case at hand relates to, is governed by [SECTION] of the [ACT], which reads thus:-
"63 Execution of unprivileged Wills Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules:-
(a)The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his 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 Will.
(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary".
43. The plain words used in above quoted clause make it abundantly clear that the executant of a Will need not put his signatures and that affixing his mark is sufficient mode of authentication. As shall also be noted with reference to rule of evidence that while the law requires attestation by minimum two witnesses, it is not mandatory 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.
44. The provisions contained in [SECTION] and [SECTION] of the [ACT], also being germane to the discussion here, may be 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 Will, 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."
45. Apex court in [ENTITY] Vs B.N. Thimmajamma & Others, 1959 AIR 443 decided on 13th November 1958 in which the Apex court laid down the following prepositions on the nature and standard of evidence required to prove a Will:-
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 surrounded 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. "
46. In [PRECEDENT], a Constitution Bench of the Supreme Court had the occasion to rule on the principles governing mode of proof of a Will before a probate court. Referring, inter alia, to the earlier decision of [ENTITY] ( supra), the court held:-
"4 The mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by [SECTION] of the [ACT]. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signatures of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before the Court accepts the will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court. The suspicious circumstances may be as to genuineness of the signature of the testator, the condition of the testator's mind, the dispositions made in the will being unnatural improbable or unfair in the light of relevant circumstances or there might be other indications in the will to show that the testator's mind was not free. In such a case the Court would naturally expect that all legitimate suspicious should be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes part in the execution of the will which confers a susbtantial benefit on him, that is also a circumstance to be taken into account and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the Court would grant probate, even if the will might be unnatural and might cut off wholly or in part near relations "
( emphasis supplied)
47. The decisions of the Supreme Court in [PRECEDENT], and [PRECEDENT] are authorities on the principle that active participation of the propounder or beneficiary in the execution of the Will or exclusion of the natural heirs need not or necessarily lead to an inference that the Will was not genuine. One may quote, with advantage, the following observations in [PRECEDENT] (supra):-
"16. 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 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 circumstances especially in a case where the bequest has been made in favour of an offspring. As held in [PRECEDENT] it is the duty of the propounder of the will to remove all the suspected features, but there must be real, germane and valid suspicious features and not fantasy of the doubting mind. It has been held that if the propounder succeeds in removing the suspicious circumstances, the court has to give effect to the will, even if the will might be unnatural in the sense that it has cut off wholly or in part near relations. ( See [PRECEDENT]]. In [PRECEDENT] it was 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."
(emphasis supplied)
48. Following the above rulings, the Supreme Court in [PRECEDENT], held, in the facts and circumstances of the said case that the evidence unmistakably showing that the objectors had separated from the family, taking their respective shares, not bothering to look after the parents in their old age, there was "nothing unatural or unusual" in the decision of the testator ( the father) to give his share in the joint family property to the son who, along with his wife and children, had taken care of the parents, adding that :-
"Any person of ordinary prudence would have adopted the same course and would not have given anything to the ungrateful children from his/her share in the property."
49. In Hari Singh & Anr Vs. The [ENTITY] & Anr. 2010 ( 120) DRJ 716, a division bench of this Court, after noting the law declared, inter alia, in [PRECEDENT] (supra), observed thus:-
"31 Courts are not expected to be satisfied that a bequenathal is rational or not; what has to be considered is whether the bequest was so unnatural that the testator could not have mae it. There is nothing in law that prescribes that the testatmentary document has to be made and executed on the same day. Law does not mandate that each of the witnesses must be aware of the contents of the Will and the nature of the bequests. The rigours of attestation endeavour to eradicate manipulation and fabrication of such a testament by mandating that the testator as well as the witnesses should be simultaneously present at the time of its execution; nothing more and nothing less. Though there is no categorical evidence coming forth on the record, we do not find this fact to be legally anomalous or suspicious as to impeach the entire case of the appellant/petitioner."
(emphasis supplied)
50. [ENTITY] through [PRECEDENT].
decided by late Hon'ble Justice [ENTITY] of our own High Court and reported as [CASE NUMBER], holding as follows :-
"A trial court commits legal error by going into issues of title of the properties because a Probate Court only decides the validity or invalidity of execution of the will. Whether or not the testator did or did not have title to the properties which were subject of bequests under the will or that actually someone else had title or that the testator had title only of some of the properties and not all of the properties or that testator had only part interest and not full interest in the bequeathed properties etc. etc. are all issues which have to be decided by a civil court in a civil suit between the parties whenever and where ever disputes will arise with respect to title of a particular property."
ISSUEWISE FINDINGS
51. I have gone through the record of case file and have heard the arguments advanced by Ld. Counsel for parties and considered the case laws cited above and my issuewise findings are as follows :-
ISSUE NO-1
1) Whether the present petition is bad for mis-joinder and non-joinder of necessary parties? OPR-3,5,7,9&10.
52. This issue was not pressed by the respondent side during arguments. Otherwise also, after impleadment of respondents no. 9 and 10, the defect, if any, stands cured. Therefore, this issue is decided in favour of the petitioner and against the respondents/objectors.
ISSUE NO-2
2) Whether the present petition has not been verified in accordance with law?
OPR-3,5,7,9&10
53. This issue was also not pressed by the counsel for parties nor any arguments were advanced on this issue. They had abandoned the same. Accordingly, this issue is not required to be decided.
ISSUE NO-3
3) Whether the will dated 01.03.1993 executed by testator deceased Sh. [ENTITY] is a valid, legal and genuine will? OPP
54. The burden to explain the above mentioned circumstances rested upon the shoulders of petitioner, which he has failed to discharge. I hold so for the following reasons :-
i. The attesting witness [ENTITY] is not a reliable witness as has been observed by me earlier also. His evidence does not inspire any confidence. He is seen blowing hot and cold at the same time. At one point he claims to have accompanied his father to Kashmere Gate for the purpose of will but he fails to remember any important details about its execution. He does not remember as to whether the advocate had got the will typed in his chamber or somewhere outside. He does not remember as to whether the advocate inquired the deceased about his family details and the other properties owned by him. He does not know whether his father contacted the advocate through some reference or directly. He deposes that he had never met the advocate earlier but the advocate deposed that he had met him twice on earlier occasions. Regarding signing the will, [ENTITY] never mentioned during his evidence about the advocate being a witness to the will. Rather, he deposed that the second attesting witness also must have signed the will on instructions of advocate, meaning thereby that it was some third person. In fact, he has made mention of [ENTITY] (his jijaji) as the second attesting witness on one occasion, whereas on another occasion he deposes that [ENTITY] did not sign the will. The witness seems to be totally oblivious of the fact as to who, if at all, is the second attesting witness of the will in question. ii. Regarding his evidence affidavit, he does not know as to where he signed the same. He does not remember as to on whose instructions the evidence affidavit was prepared. He does not remember as to who got his evidence affidavit typed. Though he denied the suggestion that he was deposing on instructions of counsel for petitioner.
iii. Petitioner deposes that [ENTITY] told him about execution of will in his favour but [ENTITY] could not tell how petitioner came to know about execution of will of suit property in his favour. The petitioner deposed that [ENTITY] handed over him the will executed by his late father but [ENTITY] did not know as to how the petitioner came in possession of the original will. He did not even know where his deceased father used to keep property documents etc. iv. The will is in English language and it is admitted position that deceased did not know English. The advocate never stated of his own during his evidence affidavit that the will was read over to the deceased by him. Interestingly, the advocate neither inquired about the details of family members nor other properties, from the deceased. In these circumstances, even the advocate is not a very reliable witness. It appears that the sole purpose of the exercise of drafting this will was to hand over the suit property to the petitioner. Only God knows whether the deceased actually had any such intentions or not because so far as petitioner is concerned, no such thing is proved from the evidence of witnesses, examined by him.
v. [ENTITY] admitted at one point during his evidence that his brother [ENTITY], respondent no-3 used to look after the deceased. At another point, he denied it. It is not understood as to why the deceased would like to disinherit [ENTITY], if he used to look after him as a dutiful son or if there was any special reason to bequeath the suit property to the petitioner. vi. Though, the respondent side has failed to prove to the satisfaction of court that the deceased was incapable of physical movement due to paralysis or had suffered any serious impairment of cognitive faculties so as to be unable to think rationally about disposition of assets owned by him. The petitioner has been able to prove that though the deceased had suffered the paralytic attack, he was able to walk with the help of stick and had even attended court hearings. But, this fact by itself is not sufficient to prove that the deceased had actually executed the will in question, which is valid and genuine; although, I am conscious of the fact that registration of the will affords prima facie ground to believe its due execution.
vii. The deceased had filed in the year 2002 while the petition was filed in the year 2012 i.e. a long gap of 10 years. The case of the petitioner is that he had informed the respondents about the will and none of them raised any objection to the same. But, this assertion had remained only a bald assertion, which had been emphatically denied by the contesting respondents. Under these circumstances, I am of the view that the petitioner had failed to lead positive evidence to prove this fact and I hold that he has been unable to show that he had informed the other legal heirs of deceased about execution of will of suit property in his favour, by deceased. Therefore, the silence of the petitioner about 10 years is by itself a very grave suspicious circumstance, which he failed to explain.
55. In view of above discussion, I hold that when dealt in details, the case of petitioner falls short of proving the issue no-1. Therefore, this issue is decided against the petitioner and in favour of objectors.
4) Whether the petitioner is entitled for grant of Probate/Letter of Administration in respect of the aforesaid will dated 01.03.1993, as prayed for? OPP AND
4) Relief
56. In these circumstances, it is not proved that the deceased had executed a valid and enforceable Will dated 01.03.1993, as claimed by the petitioner. In the light of the law, discussed in preceding paras, mere registration of the will does not entitle the petitioner to grant of letters of administration/ probate in his favour. Accordingly, both these issues are decided in favour of objectors and against the petitioner. The petition fails and is dismissed.
57. File be consigned to record room. Digitally signed by [ENTITY] Announced in the open court Date: 2019.09.05 15:02:57 +0530 on 4th day of September 2019 (SAVITRI) Addl. District Judge-02 (West) Tis Hazari Courts: Delhi Note :- The above judgment has been dictated directly on computer and shorthand dictation was not given to the stenographer.