IN THE HIGH COURT OF DELHI FAO No. 82/2007 # Mr. Suraj Bhan ........ Appellant ! through: Mr. Harish K. Mehra, Advocate VERSUS $ State & Ors. ........ Respondents ^ through: Mr. S.M.Chopra, Advocate for respondents 2 to 4. RESERVED ON: 7.01.2008 % DATE OF DECISION: 10.01.2008 CORAM: * Hon'ble Mr.Justice Pradeep Nandrajog 1. Whether reporters of local papers may be allowed to see the judgment? Y 2. To be referred to the Reporter or not? Y 3. Whether judgment should be reported in Digest? Y : PRADEEP NANDRAJOG, J. 1. This appeal is directed against the order dated 30.11.2006 passed by the learned Additional District Judge, Delhi whereby petition filed by the appellant under Section 276 of the Indian Succession Act 1925 seeking probate of the will dated 10.12.1992 purported to have been executed by Late Sh. Prabhu Singh in favour of the appellant was dismissed. 2. Late Sh. Prabhu Singh (hereinafter referred to as the deceased) who died on 28.12.1992 was survived by his wife Smt. FAO No.82/2007 page 1 of 26 Asarfi (respondent No.2), two sons namely Suraj Bhan (appellant), Jai Bhagwan (respondent No.3) and a married daughter Smt. Patasso (respondent No.4). 3. Suraj Bhan i.e. appellant herein filed a petition under Section 276 of the Indian Succession Act 1925 seeking probate of the will purported to have been executed by the deceased on 10th December 1992. 4. As per the said will the deceased has bequeathed following movable and immovable properties in favour of Suraj Bhan to the exclusion of his other legal heirs:- A Plot ad measuring 120 square yards and bearing Municipal No.60, Khasra No.32/6 and 32/7, Village Matiala, New Delhi. B Compensation of one killa which shall be granted in respect of agricultural land ad measuring 4 bighas and 8 biswas and situated in Khasra No.57/7, Revenue Estate, Village Matiala, New Delhi. (It has been mentioned in the will that compensation of one killa in respect of same agricultural land has already been received by younger son of the deceased i.e. Jai Bhagwan). C Amount lying deposited in the saving account of the deceased with the Oriental Bank, Naraina. 5. The will in question Ex. PW-1/1 is a computer typed document and consists of a single sheet of paper. It has been FAO No.82/2007 page 2 of 26 typed in the English language. Towards the bottom of the sheet at the right corner a thumb impression purported to have been affixed by the deceased is affixed. 6. The will Ex. PW-1/1 is a notarized and unregistered document. 7. The will in question has been witnessed by one Sh. Man Singh and one Sh. Syed Ahmed. 8. The other legal heirs of the deceased i.e. his widow Asarfi, son Jai Bhagwan and daughter Patasso has opposed the petition for grant of probate. 9. In the objections to the petition filed by the appellant respondents has pleaded that the will Ex. PW-1/1 is a forged and fabricated document. That the deceased never executed a will in favour of the appellant. That the deceased during his life time was living under the care and guidance of respondents No. 2 and 3. That the relations between the deceased and appellant were strained evidenced by the fact that the appellant did not participate in the last rites of the deceased. 10. In the reply to the objections filed by the respondents, appellant denied that during his life time the deceased was living under the care and guidance of respondents No.2 and 3 or that the relations between him and deceased was strained. It is necessary to note following portion of the reply filed by the FAO No.82/2007 page 3 of 26 appellant:- “4. .......It is pertinent to mention here that the deceased before his death used to live separately at his own house and the petitioner took best possible care and provided all the necessary treatment to his deceased father. It is reiterated that the deceased Sh. Prabhu Singh, before his death, executed a will in favour of the petitioner. 7. That para 7 of the objections is wrong false and denied except to the extent that the petitioner could not be present at the time of cremation of the deceased Sh. Prabhu Singh as he was on duty but the other family members of the petitioner were present at the time of cremation and the petitioner participated in the other last rites of the deceased Sh. Prabhu Singh. It is vehemently denied that the petitioner refused to take care of his father or that he refused to see him after his death.” 11. It is relevant to note that it was only pleaded by the appellant that he used to look after the deceased but it has nowhere been pleaded that the deceased used to live with the appellant. 12. To prove the genuineness of the will Ex. PW-1/1 appellant examined himself as PW-1 and the two attesting witnesses to the will i.e. Syed Ahmad and Man Singh as PW-2 and PW-3 respectively. 13. Appellant in his testimony as PW-1 deposed that:- A Will Ex. PW-1/1 was executed by the deceased at the house where deceased was residing. B Man Singh and Syed Ahmad has witnessed the due execution of the will Ex. PW-1/1. FAO No.82/2007 page 4 of 26 C He was present when the will Ex. PW-1/1 was executed by the deceased. D Before his death deceased used to live with him. E During his life time deceased never lived with respondent No. 2 and 3. F He, the deceased and the two attesting witnesses to the will Ex. PW-1/1 had no knowledge of English language. 14. As regards preparation and notarization of the will Ex. PW-1/1 appellant deposed as under:- “The will was prepared on 10.12.92. I and Sayed Ahemd went to get the will prepared. We got prepared the will from the court. We came to court by bus. Will was prepared at home on a plain paper and the same was typed in court.......... The stamps on the will of Notary Public were put in my presence after putting of thumb impression at home. Man Singh signed on the will at home. One typist typed the will.” 15. When questioned in cross examination as to why he did not attend the cremation of the deceased appellant deposed as under:- “I was in Delhi when my father expired. I am the elder son of my father. It is correct that I have not given light as per rituals to the dead body of my father as I was not there.” 16. It is relevant to note that the appellant has nowhere deposed as to in what circumstances the will Ex. PW-1/1 came into his possession. Did the deceased ask the appellant to keep the will Ex. PW-1/1 in his possession? FAO No.82/2007 page 5 of 26 17. Syed Ahmed in his testimony as PW-2 deposed that the deceased was his friend. 18. As regards the preparation and notarization of the will Ex.PW-1/1 Syed Ahmed deposed that a draft of the will was first prepared in Hindi as per the instructions of the at the residence of the deceased. (Who prepared the draft in Hindi is not forthcoming from the testimony of PW-2). That thereafter he and appellant went to the court where the draft scribed in Hindi was got typed by a typist in English language. Thereafter they returned to the residence of the deceased with the typed will. That he and appellant explained contents of the typed will to the deceased. Thereafter deceased affixed his thumb impression on the typed will. Thereafter he and Man Singh signed on the will as an attesting witness. That after execution and attestation of the will Ex. PW-1/1 he and appellant again went to the court where the will was got notarized from a Notary Public. 19. It is necessary to note following portion of the testimony of PW-2:- “I have no knowledge of English language....... The contents of the will also gives half share of the old properties which also includes a vehicle........ I and Suraj Bhan explained Prabhu Singh regarding the contents of the will.” 20. Man Singh in his testimony as PW-3 deposed that the deceased was his elder brother. That the deceased affixed his FAO No.82/2007 page 6 of 26 thumb impression on the will Ex. PW-1/1 in his presence. That he signed the will Ex. PW-1/1 in the presence of the deceased as also in the presence of the other attesting witness Syed Ahmed. That before the deceased signed the will contents of the will were explained to the deceased in Hindi. That the deceased was ill for a period prior to 2-3 years before his death. That the deceased used to stay for 10 days with his elder son Suraj Bhan and for the next 10 days with his other son Jai Bhagwan. 21. It is relevant to note that it is not forthcoming from the testimonies of both the attesting witnesses as to in what circumstances they happened to become the attesting witnesses to the will. Who ask them to attest the will? When were they asked to attest the will? 22. On behalf of the respondents Jai Bhagwan respondent No.4, one Sh. Jile Singh (an acquaintance of the family of the deceased) and Smt. Asarfi respondent No.2 were examined as RW-1, RW-2 and RW-3 respectively. 23. Jai Bhagwan and Asarfi in their testimony as RW-1 and RW-3 respectively deposed on the lines of the objections filed by them. Jai Bhagwan also deposed that the will Ex. PW-1/1 is a forged and fabricated document inasmuch as because of the ill health it was not possible for the deceased to have executed the will Ex. PW-1/1. That the deceased died in a hospital. That FAO No.82/2007 page 7 of 26 before being hospitalized deceased was residing with him. 24. Jile Singh in his testimony as RW-2 deposed that he had known family of the deceased since a long time as he was residing in the same village as that of the family of the deceased. He deposed that the relations between the deceased and appellant were strained. 25. After considering the case in its entirety vide order dated 30.11.2006 learned Additional District Judge has held that the appellant failed to prove that the will Ex. PW-1/1 is a genuine document and that it was last legal and valid testament of the deceased and thus dismissed the petition filed by the appellant under Section 276 of the Indian Succession Act 1925. Relevant portion of the decision of the learned Trial Court reads as under:- “Section 68 of the Indian Evidence Act, 1872 deals with proof of execution of document required by law to be attested. This section lays down that if the deed sought to be proved is a document required by law to be attested and if there by an attesting witness alive and subject to process of the Court and capable of giving evidence, he must be called to prove execution. Execution consists in signing a document written out, read over and understood and to go through the formalities necessary for the validity of legal act. Section 63 of the Indian Succession Act gives meaning of attestation as under: Section 63- Execution of unprivileged wills - Every testator, not being a soldier employed in an expedition or engaged in actual warfare, (or an airman so FAO No.82/2007 page 8 of 26 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 direction. (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 acknowledgement of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary. It is clear from the definition that the attesting witness must state that each of the two witnesses had seen the executor sign or affix his mark to the instrument or has seen some other persons sign the instrument in the presence and by the direction of the executant. The witness should further state that each of the attesting witnesses signed the instrument in the presence and by the direction of the executant. The witness should further stated that each of the attesting witnesses signed the instrument in the presence of the executant. These are the ingredients of the FAO No.82/2007 page 9 of 26 attestation and they have to be proved by the witnesses. The word 'execution' in Section 63 includes attestation as required by law. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts indicated above. Registration of the will does not dispense with the need of proving, execution and attestation of a document which is required by law to be proved in the manner as provided in Section 68 of the Evidence Act. The onus is discharged by the propounder adducing prima facie evidence providing the competence of the testator and execution of the will in the manner contemplated by law. In such circumstances, the onus shift to the contestant opposing the will to bring material on record meeting such prima facie cases in which event the onus 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. In this case, prima facie both the attesting witnesses deposed that the will was thumb marked by the testator in their presence and they both signed in the presence of each other. But there are certain suspicious circumstances in which this will was executed. PW-3 deposed that testator was sick for about 2-3 years prior to the execution of this will. He died in a hospital after fifteen days of the execution of the will. There is no documentary proof on record that for how many days deceased remained admitted in the hospital. He was an old man. This is the case in which all the three witnesses examined on behalf of the petitioner deposed that the will was prepared at home. Then it was taken to the court by the petitioner and Sayed Ahmed where it was got typed in English. They came back with the will. It was executed in the house of the petitioner. Again petitioner and Sayed Ahmed went back to the court and got is notarized. Draft FAO No.82/2007 page 10 of 26 will is not on file. There is no evidence that who scribed the will at home. PW-3 has deposed that the original will was prepared in Hindi. It was got typed in English from a typist by the petitioner himself. Neither the petitioner nor the testator could read and write English. Both the attesting witnesses also do not understand English language. PW-3 deposed that the will was explained to the testator in Hindi by the petitioner himself. The petitioner himself does not understand English. There is no evidence that who explained the contents of the will to the testator in Hindi before obtaining his thumb mark and if a document was thumb marked by the testator at the instance of the petitioner who himself is the sole beneficiary under this will, it cannot be taken as proved to have been executed with the free consent of the testator without any pressure from any third party. It is the admitted fact that PW-3 Man Singh is having strained relations with the respondents and he appeared as a witness in another civil suit also which was pending between the petitioner and the respondents. There is no evidence that the will which is placed on record was prepared at the instructions of the testator either by any typist or by an advocate. It is an admitted case that the testator did not go to the court to get the will notarized. Notary public has not been examined in this case. No particulars of the notary public including his name is given on the will. Notarial stamp of rupees three is affixed and the stamp reads: “attested Notary Public, Delhi 10.12.1992.” At one place it has the stamps of Chaudhary D.S.Dalal, Notary Public, Delhi. It is the admitted case of the petitioner that testator did not go to the court. The will was got typed from the court. It was brought to the house of the testator where it was executed and then petitioner along with Sayed Ahmed went to the court and got it notarized. I do not know what was attested by FAO No.82/2007 page 11 of 26 the notary public because none of the signatory of this document signed in his presence. Even the testator did not sign in his presence. Without seeing the testator the notary even affixed his rubber stamp on the photograph. Considering the fact that testator died after fifteen days of the execution of the will in hospital and he was sick for 2-3 years prior to his death and considering the fact that neither the executor nor any of the witness to the will understood English language and it was got prepared by the petitioner who is the sole beneficiary under this will, I hold that petitioner has failed to prove it beyond suspicion that the will Ex. PW1/A was executed by the testator in his sound disposing mind without any coercion or pressure from the petitioner.” 26. Aggrieved by the impugned order dated 30.11.2006 passed by the learned Additional District Judge appellant has filed the present appeal. 27. In support of the appeal following two grounds have been urged by the appellant:- A That by leading the evidence of two attesting witnesses to the will Ex. PW-1/1 the appellant discharged the onus of proving the will and that the onus shifted upon the objectors/respondents to disprove the will which they failed to discharge. That the learned Trial Court ignored that objectors/respondents failed to establish that the will Ex. PW-1/1 is a forged and fabricated document. B That Smt. Asarfi in her testimony as RW-3 turned hostile as she did not depose on the lines of the case projected by the objectors in the objections filed by them. That the learned FAO No.82/2007 page 12 of 26 trial court failed to appreciate this aspect of the case. 28. In the decision reported as Smt Jaswant Kaur v Smt Amrit Kaur AIR 1977 SC 74 the Supreme Court has described the nature and standard of evidence required to prove a Will. In para 10 of the decision, the Supreme Court has observed as under:- “10. There is a long line of decisions bearing on the nature and standard of evidence required to prove a will. Those decisions have been reviewed in an elaborate judgment of this Court in R. Venkatachala Iyengar v. B.N. Thimmajamma and Ors. [1959] Supp. 1 S.C.R. 426. The Court, speaking through Gajendragadkar J., laid down in that case the following propositions:- 1. Stated 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 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by Section 63 of the Evidence 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 FAO No.82/2007 page 13 of 26 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 pro- pounder 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 pro-pounder 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 circumstance that the test of satisfaction of the judicial conscience has been evolved. That test emphasies 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 FAO No.82/2007 page 14 of 26 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.”(underlining emphasised) 29. Judgment of this court in the decision reported as Vidya Sagar Soni Vs. State & Ors. AIR 2006 Delhi 354 extensively dealt with the legal burden of proof when a will is propounded. 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 testament. I need not repeat. Principles culled out in paras 5 to 21 of the said decision are as under:- “5. Section 2(h) of the Indian Succession Act, 1925 defines a will to mean the legal declaration of the intention of a testator with respect