Judgment Reserved IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL A.O. No. 214 of 2001 C.K. Khaitan (since deceased) Through Smt. Savita Devi Khaitan and others - Appellants. Versus Priya Prasad and others - Respondents. Mr. P. I. Jose and Mr. Ravi Babulkar, Advocates for appellants. Mr. V.K. Kohli, Senior Advocate, assisted by Ms. Vandana Singh, Advocate for respondents. (Hon’ble B.S. Verma, J.) This appeal has been preferred against the judgment and order dated 11.12.1996, passed by 1st Additional District Judge, Dehradun, in O.S. No. 21 of 1998, Priya Prasad and another Vs. Nawal Kishore Khaitan and another, whereby the petition was allowed and a Probate was ordered to be issued in favour of the respondents 1 and 2 in respect of the Last Will of late Smt. Raja Devi Khaitan dated 29-3- 1983 with regard to her estates/properties mentioned therein. Briefly stated the facts of the case giving rise to this appeal, are that respondents 1 and 2, Priya Prasad and Sri Bonod Kumar filed an application for grant of probate of the Will dated 29-3-1993 of late Smt. Raja Devi Khaitan. The application was registered as O.S. No. 21/1988. The ground taken in the said application is that Smt. Raja Devi Khaitan died at Dehradun on 8th April 1987 at about 10.45 A.M. At the time of her death, Smt. Raja Devi Khaitan had a fixed place of residence at 176-A, Rajpur Road, Dehradun and she left immovable property in Dehradun and movable property in Dehradun and at other places in India. Smt. Raja Devi Khaitan during her life time had executed her last will on 29-3-1983. The respondents 1 and 2 have been named as the Executors of the said Will executed by late Smt. Raja Devi Khaitan. The Will executed by late Smt. Raja Devi Khaitan was duly attested by the witnesses Smt. Asha Jain R/o 34, Anand Lok, New Delhi-49 and Sri Prem Nath Seth R/o 7, Teen Murthi Lane, New Delhi. All the assets and liability which the deceased possessed of or was entitled to at the time of her death and 2 which have come to the respondents 1 and 2, has been set-forth in Annexure-‘B’ to the petition. The value of total assets of late Smt. Raja Devi Khaitan is Rs. 53,99,949/- and the liabilities are of Rs. 7,20,000/-. Thus the value of the assets which will come in the hands of respondents 1 and 2 is Rs. 46,79,949/-. It is alleged by the applicants/respondents 1 and 2 that they are the executors of the Will and they along with Sri Vinay Prasad S/o late Rai Ram Krishna Prasad are the sole beneficiaries under the Will and the applicants/respondents 1 and 2 will administer according to law all the assets which by law will come their hands and will execute a true and perfect inventory of the said estate and render a just and true account thereof whenever required by law so as to do. It is also alleged in the petition that no application has been moved in any other court or to any High Court for probate of any will of the deceased or Letter of Administration with or without the Will relating to the properties of the deceased Smt. Raja Devi Khaitan. It is further prayed in the petition that the petitioners/respondents 1 and 2 be permitted to pay out of the fund of the estate of deceased which will come in to their hands the duty that may be payable with regard to the estate of deceased and all costs, expenses and incidental to the petition. The objectors Sri Nawal Kishroe Khaitan and Sri C.K. Khaitan filed objection and alleged that the Will dated 29-3-1983 is not the last will and testament of late Smt. Raja Devi Khaitan. The said Will was revoked by Smt. Raja Devi and another Will which was executed at Dehradun by Smt. Raja Devi in the 2nd quarter of 1986, which was drafted by Sri V.K. Kohli Advocate, now counsel for the petitioners/respondents 1 and 2. Sri V.K. Kohli vide his bill dated 3.3.1986 submitted to late Smt. Raja Devi Khaitan and charged Rs. 550/- for his fee for the Will and simultaneously he drafted some trust deed for which he charged Rs. 447.50 for stamp papers and Rs. 500/- as his fee and he was paid the entire bill by cheque for which he issued a receipt and all these documents in original are in possession and power of Solicitor of Smt. Raja Devi at Delhi. It is the assertion of objectors/opposite parties that Smt. Raja Devi Khaitan had made another Will in March 1986 for which the counsel for the petitioners/respondents 1 and 2 has full knowledge whereby the Will 3 of 1983 was revoked and now the counsel is hiding the Will of the year 1986. A separate application was filed that at the time of framing of issues, Sri V.K. Kohli Advocate, be examined as a witness, as per law the court can call a witness or call any document which will help in framing the issues, and after the evidence of Sri V.K. Kohli Advocate in Court, further steps would be taken to ascertain where the will of 1986 is lying. It was, therefore, alleged in the objection that since the Will of 1983 stood amended and revoked in 2nd quarter of 1986, no probate can be granted of the said Will. It is further case of the objectors that Smt. Raja Devi Khaitan died on 8.4.1987 and at that time applicant No.2, Binod Kumar broke open the lock of Almirah and removed all the papers and jewellery for which he submitted an application to Superintendent of Police, Dehradun and undertook to handover the jewellery to the heirs of Smt. Raja Devi Khaitan. He also prepared a list of jewellery which were took out from the Almirah of late Smt. Raja Devi Khaitan. The above contention in writing of the propounders of the Will clearly go to prove that there was no Will in their favour in 1983 and the opposite parties are informed that Smt. Raja Devi Khaitan torn that Will and now the Will propounded is a fabricated Will and which has been revoked in 1986. Further contention of objectors/ appellants is that they are real sons of late Sri Moti Lal Khaitan and Smt. Raja Devi Khaitan was their step mother and all the property which she inherited under the Will or otherwise was given by her husband, the father of objectors. It was further alleged that the applicants have committed a criminal offence for breaking open the locks without permission of appellants and they have not set forth the entire estate and the details of the jewellery to the Superintendent of Police, Dehradun. According to the estimate of objectors the value of property which the applicants have taken by pilferage is at Rs. 90 lacs. Under the Succession Act the appellants are the lawful heirs of Smt. Raja Devi, being their step mother and the other heirs of Sri Moti Lal Khaitan, as under law the property of the deceased will pass to the heirs of husband of Smt. Raja Devi Khaintan and none else. The Will of 1986 which is in original lying with Smt. Raja Devi Khaintan had been stolen from her Almirah 4 and torn or destroyed or otherwise hidden by the applicants. Smt. Raja Devi Khaitan has not disclosed the property which she inherited from her husband and items of jewellery of precious stones and diamonds of the value of Rs. 90 lacks also pass to the objectors under law besides other property which have been declared in probate petition. The objectors also alleged that the matter of title is not within the jurisdiction of Probate Court so a separate suit is being filed for declaration as the Will is invalid and quo rights of opposite parties and movable property pilfered by the applicants along with the value of moveable property when it is known, for which interrogatories were filed by the appellants to the petitioners to give the value and list of the assets illegally received by them of which no reference has been made in the petition. These proceedings are directly concerned with the probate of will of Sri M.L. Khaitan which Smt. Raja Devi wrongly obtained, the probate and for which proceedings for revocation are pending being case no. 9 of 1986 C.K. Khaitan vs. Smt. Raja Devi and large amount of property in both the cases are common and till the decision of suit No. 9 of 1986, the present proceedings are liable to be stayed. It is further alleged that the present market value of property No. 176-A Rajpur Road, Dehradun is Rs. 50 lacs and Smt. Raja Devi Khaintan got it insured from New India Assurance Company at Rs. 40 lacs. As the property is under valued, the will dated 29-3-83 is nullity. The will dated 29-3-1983 is forged for the reasons that application for Probate was moved without the original will although the counsel of the applicants very well knew that no Probate can be granted on a photo copy of the original will which the original will is in existence. The photo copy of will is inadmissible in evidence. It is further alleged by the respondents/applicants that they are searching the copy of the Will of 1986 and the trust deed and after it became available further proceedings will be taken if and when required. It was also objected that the petition for Probate is grossly undervalued. The applicants are under obligation to pay court fee for which Probate is sought. On the pleadings of parties, the following issues were framed by the petition:- 5 1. Whether Smt. Raja Devi Khaitan executed her last will on 29th March, 1983 in favour of the petitioner and Sri Vinay Prasad? If so its effect?. 2. Whether the will of 29th March, 1983 stands revoked for reasons given in para 3 to 7of the written statement?. If so, its effect?. 3. Whether the petitioners have not disclosed the details of the entire estate?. If so, its effect?. 4. Whether the present suit is liable to be stayed in view of Misc. Case No. 9 of 1986 C.K. Khaitan vs. Raja Devi as alleged in para 22 of the written statement?. 5. Whether the properties for which the probate is sought, have been grossly undervalued?. If so, its effect?. 6. Whether the petitioners are not required to pay the court fee before the grant of Probate?. 7. To what relief, if any, are the petitioners entitled?. Thereafter the parties filed affidavits as well as documentary evidence in support of their respective contentions. After hearing counsel for parties and considering the entire material available on record, the learned Additional District Judge, vide impugned judgment and order allowed the petition and issued a Probate in favour of applicants in respect of Last Will of late Smt. Raja Devi Khaitan dated 29-3-1983 with regard to her estates/properties mentioned therein and directed to pay requisite court fee, if any under the law. Feeling aggrieved by the aforesaid judgment, the objectors/opposite party C.K. Khaitan filed this appeal before Allahabad High Court, which has been transferred to this court after creation of new State of Uttarakhand. During the pendency of this appeal, appellant C.K. Khaitan has died and vide order dated 20-5-2008, his legal heirs have been substituted in this appeal. I have heard learned counsel for parties and perused the record. Before I proceed to discuss the submissions advanced by learned counsel for parties, it is pertinent to mention here the relation chart amongst the litigant parties, which is noted hereunder:- 6 Sri M.L. Khaitan ------------------------------------------------------------- Mani Devi Khaitan Raja Devi Khaitan (1st wife) [2nd wife (testator) ] Nawal Kishore Khaitan Priya Prasad C.K. Khaitan Binod Kumar (objectors-sons of Vinay Prasad M.L. Khaitan through (beneficiaries/applicants- Mani Devi 1st wife) sons of cousin sister of mother of Smt. Raja Devi Khaitan) From perusal of above relation chart it is quite clear that Sri M.L. Khaitan had two wives, Mani Devi Khaitan and Raja Devi Khaitan. Nawal Kishore Khaitan and C.K. Khaitan, objectors were the sons of Smt. Mani Devi, whereas the applicants Priya Prasad and Binod Kumar and one Vinay Prasad in whose favour the Will dated 29-3-1983 is said to have been executed by Smt. Raja Devi Khaitan, are the sons of cousin sister of mother of Smt. Raja Devi Khaitan. Learned counsel for the appellants has submitted that the learned trial Court has not dealt with the issue relating to forgery, fabrication and suspicious circumstances raised by the appellants in their objections, whereas in a probate case the trial court is duty bound to satisfy himself about the genuineness of the Will produced by the applicant. In support of his submission learned counsel has cited before me the case of Jaswant Kaur vs. Amrit Kaur reported in (1977) 1 SCC 369. In para-9 of the above cited case it has been held by Hon’ble Apex Court quoted below:- “In cases where the execution of a will is shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant. What, generally, is an adversary proceeding becomes in such cases a matter of court’s conscience and then the true question which arises for consideration is whether the evidence led by the propounder of the Will is such as to satisfy the conscience of the court that the will was duly executed by the testator. It is impossible to reach such satisfaction unless the party which sets up the will 7 offers a cogent and convincing explanation of the suspicious circumstances surrounding the making of the will”. Learned counsel for the appellants also cited before me the case of Gorantla Thataiah vs.Thotakura Venkata Subbaiah & Ors, reported in (1968) 3 S.C.R. 473. In the above cited case the Hon’ble Apex Court has held that the will was not executed in a sound disposing state of mind and was therefore not legally valid. Learned counsel appearing on behalf of the respondents has refuted the above submission and argued that the Will dated 29th March 1983 executed by late Smt. Raja Devi Khaitan, has been amply proved by the witnesses before the trial court and the objections raised by the opposite parties questioning the genuineness of the Will have not been proved by a cogent and reliable evidence, hence, and the evidence led by the propounder of the Will has satisfied the conscience of the court that the will was duly executed by the testator. The objectors/appellants in their objection before the trial court have questioned the genuineness of the Will dated 29th March 1983, on the following grounds- (a) The will dated 29th March 1983 is not the last will and testament of Smt. Raja Devi Khaitan. (b) The said will was revoked by another will which was executed at Dehradun and the said documents are under the possession of the Solicitor of Smt. Raja Devi Khatain at Delhi. (c) The Will of 1983 stood revoked in the second quarter of 1986 and hence no probate can be granted of a revoked Will. (d) On the death of Smt. Raja Devi Khaitan, the applicant No.2 Binod Kumar broke open the lock of the Almirah and surreptitiously removed all the papers and jewellery for which he submitted an application to Superintendent of Police. (e) The opposite parties are informed that Smt. Raja Devi Khaitan had torn the Will and the Will propounded is a fabricated Will which was revoked in 1986. (f) The proceedings in question are directly connected with the probate of the Will of Sri M.L. Khaitan which Smt. Raja Devi 8 Khaitan wrongly obtained and for which proceedings for revocation are pending in case No. 9 of 1986 C.K. Khaitan Vs. Smt. Raja Devi Khaitan. (g) The Will of 1983 is a document which has been interpolated because the date is written in manuscript i.e. in ink writing and other part of the Will is typed. (h) The relationship between the applicants and the testatrix Smt. Raja Devi Khaitan were very strained. Now it is to be seen whether the opposite parties/appellants have been successful in establishing the objections raised by them?. In support of Will dated 29th March 1983, executed by Smt. Raja Devi Khaitan, the applicants examined the attesting witness of the Will Sri Prem Nath Seth as P.W.1. He has proved his signatures and has further stated that the Will was executed in his presence. He has also identified the signatures of Smt. Raja Devi Khaitan as well as the other attesting witness Smt. Asha Jain. This witness further stated that the date 29th March, 1983, as written in the Will was written by Smt. Raja Devi Khaitan in her own handwriting . He has further stated that at the time of execution of the Will Smt. Raja Devi Khaitan was in a sound and disposing mind. He also deposed that he and other attesting witness Smt. Asha Jain had signed the Will at the request of Smt. Raja Devi Khaitan. He also deposed that Smt. Raja Devi Khaitan had signed the Will in their presence. In his cross-examination this witness has stated that he was present at the time of cremation of Smt. Raja Devi Khaitan at Haridwar along with Sri Binod Kumar who is executor of the Will and beneficiary. Sri Shanti Jain husband of Smt. Asha Jain (attesting witness) also attended the cremation. This witness has denied the suggestion given to him in the cross-examination that there were any strained relations between Smt. Raja Devi Khaitan and the beneficiaries of the Will. He also deposed that to the best of his knowledge no other Will was executed by late Smt. Raja Devi Khaitan. I do not find any reason to disbelieve the testimony of this witness. Binod Kumar, who is one the beneficiaries of the Will, has been examined as P.W.2. He has deposed that Smt. Raja Devi Khaitan was cousin sister of his mother and he has performed the last rites of Smt. 9 Raja Devi Khaitan. He also deposed that the Will dated 29th March 1983, is the last will of Smt. Raja Devi Khaitan. This witness also stated that the relations between Sri Naval Kishore and Sri C.K. Khaitan, the present appellants were not good with Smt. Raja Devi Khaitan and during her life time they had filed a number of cases against her and had used insulting language against her. This witness also deposed that Smt. Raja Devi Khaitan, during her life time had nominated either himself or his brothers as nominee in Unit Trust, Capital Investment Bonds, National Rural Investment Bonds, Post Office National Saving Certificates etc. On 11th March 1987 she had purchased NSCs for Rs. 24,000/- in which his brother Sri Priya Prasad was appointed nominee by her. This witness also deposed that the said nominations are still intact and were never cancelled. This witness also deposed that on the death of Smt. Raja Devi Khaitan, in respect of the jewellery which was lying in the house at Dehradun, an inventory was prepared and letters were also issued to the District Magistrate and the Superintendent of Police along with list, as he was an IAS Officer. He has further stated that Sri C.K. Khaitan and his brother have not joined the cremation. He further stated that the Will was kept in the locker of Smt. Raja Devi Khaitan and the same has been filed in the Court in the condition in which it was obtained from the locker. This witness has further stated that Smt. Raja Devi Khaitan had not revoked the Will in 1986. This witness also stated that Smt. Asha Jain left for England in 1993 and has not returned back. Sri Priya Prasad, who is also one of the beneficiaries was also examined as P.W.3. This witness also placed on record the carbon copy of the Will dated 29th March 1983, which was given to him by late Smt. Raja Devi Khaitan. This witness also deposed that the Will in question was the last Will and the same was never revoked. On the other hand, on behalf of the objectors/appellants Sri O.P. Khaitan, the Solicitor of Delhi was examined as D.W.1. He has stated that he has a Solicitor Firm under the name and style of O.P. Khaitan & Company and late Sri M.L. Khaitan, husband of Smt. Raja Devi Khaitan was his uncle. He has also stated that Smt. Raja Devi Khaitan was the second wife of Sri M.L. Khaitan and his first wife expired and Sri M.L. Khaitan was not having any child from second wife. This 10 witness has stated that he has handed over the goods lying at Delhi on the basis of the Will executed in favour of Sri Binod Kumar and his brother after looking into the said Will. This witness has also deposed that when Smt. Raja Devi Khaitan was married with Sri M.L. Khaitan, at that time he was of tender age. He further deposed that 5-6 years earlier to the death of Smt. Raja Devi Khaitan, she had told him that she was not satisfied with the behaviour of Binod Kumar and his brothers and it was indicated that either she had changed her will or wanted to change the Will. During this period she had handed over him an envelope and told that there are some important papers which would be taken from him later on. After opening the envelope, there were some letters written to Binod Kumar and his brothers. The envelope was containing a bill of Sri V.K. Kohli, Advocate which was having description of writing a draft Will and on the basis of this bill he had written letter to Sri V.K. Kohli Advocate asking him whether he was possessing any Will or not. This witness has proved the Bill and the letter written by him to Mr. V.K. Kohli, Advocate. This witness further deposed that in December 1986 Smt. Raja Devi Khaitan had met him when she had come to his house. She was very nervous and she had told him that she had no faith on Binod Kumar and Priya Prasad and she had changed her Will. Thereafter he could not met her. From the statement of this witness it is quite clear that this witness tried to establish this fact that Smt. Raja Devi Khaitan had no faith upon Binod Kumar and his brothers and after her death the goods lying at Delhi were handed over to Binod Kumar and his brother. From the testimony of this witness this fact is not established that Smt. Raja Devi Khaitan had changed her will and executed fresh will in 1986, as is the case of the objectors. The another witness examined by the objectors is Sri S.K. Goel, as D.W.2. This witness has deposed that in the second quarter of 1986 Smt. Raja Devi Khaitan had called him for signing as a witness. He has stated that he has neither read the Will nor any such Will was read over to him. This witness also does not know whether the alleged Will was typed or not. He also could not give any details of properties stated therein. He has also stated that he does not know where the 11 properties of Smt. Raja Devi Khaitan are lying. He has also deposed that he has no knowledge as to who are the beneficiaries of the said Will. In his cross-examination this witness also stated that before his leaving the place Raja Devi had not signed the Will. Therefore, the statement of this witness is not convincing and cannot be relied upon. None of the objectors has come in witness box to prove their contentions. The opposite parties/objectors have not been able to brought on record the so called Will executed by Smt. Raja Devi Khaitan in the