KAVITA KANWAR versus MRS. PAMELA MEHTA & ORS.
[2020] 6 S.C.R. 357, Supreme Court of India, 2020
Outcome: Dismissed (Dismissed)
Segment: Ratio
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KAVITA KANWAR
v.
MRS. PAMELA MEHTA & ORS.
(Civil Appeal No. 3688 of 2017)
MAY 19, 2020
[A. M. KHANWILKAR AND DINESH MAHESHWARI, JJ.]
Will – Probate of – A Will dated 20.05.2003 was executed by
the mother of the contesting parties-testatrix in presence of her
younger daughter-appellant alone – Testatrix expired on
21.05.2006 and left behind two daughters and a son – In the said
Will, the testatrix gave the entire share in her immovable property to
the appellant and made her the major beneficiary under the Will –
Appellant filed the petition seeking probate and that was declined
both by the Trial Court and the High Court – The Trial Court and
the High Court have concurrently found some suspicious
circumstances which are of material bearing and which have
remained unexplained – Some of such suspicious circumstances
founded, inter alia, are: a) non-inclusion of the only son and other
elder widowed daughter of the testatrix in the process of execution
of the Will and their exclusion from the major part of the estate – b)
the manner of writing and execution of Will with technical and legal
words – c) there was no clarity about the construction of the property
to be carried out by the appellant – d) there were contradictions in
the statements of the witnesses and the appellant – On appeal, held:
The unexplained unequal distribution of the property is confounded
by two major factors related with making of the Will in question:
one, the active role played by the
appellant in the process and
second, the virtual exclusion of the other children of testatrix in the
process –The testatrix was living on the ground floor of the estate/
immovable property in question and her elder widowed daughter-
respondent no.1 was living at the first floor – There was no reason
that in normal and ordinary course, the testatrix would not have
included her elder widowed daughter in execution of the Will in
question, particularly when her elder widowed daughter was also
taking care of her – The provision of construction of the property
in the Will is inexecutable and unenforceable and elder widowed
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daughter is not likely to get anything – There is also no evidence of
strained relationship between testatrix and her son – As far as
attesting witnesses are concerned, the appellant asserted in her
testimony that the testatrix discussed the contents of the Will with
the attesting witnesses but both the witnesses consistently maintained
that the contents were not discussed with them – Further, there was
also dispute regarding number of pages of Will and vacillating stand
of the appellant in that regard – As per s.81 of the Succession Act,
if there is an ambiguity or deficiency on the face of a Will, no extrinsic
evidence as to the intentions of the testator shall be admitted – The
appellant failed to clear the suspicious circumstances – Thus, the
cumulative effect of these suspicious circumstances is that it cannot
be said that the testatrix was aware of and understood the meaning,
purport and effect of the contents of the Will in question – The Will
in question cannot be probated – The reasons and material findings
of the Trial Court and the High Court affirmed.
Will – Probate proceedings – Non-filing of written statement
– Held: By the very nature and consequence of probate proceeding,
filing or non-filing of written statement or objections by any party
pales into insignificance and is of no effect – The probate proceeding
is not merely inter-partes proceeding but leads to judgment in rem
and, therefore, even when
no one contests, it does not ipso facto
lead to grant of probate – The probate is granted only on proof of
Will as also on removal of suspicious circumstances, if there be any,
to the final satisfaction of the conscience of the Court.
Dismissing the appeal, the Court
HELD: 1. There has not been any question on the
testamentary capacity and soundness of mind of the testatrix;
and her handwriting as also signatures on the Will in question
are also beyond controversy. However, the Trial Court and the
High Court have concurrently found some such suspicious
circumstances which are of material bearing and which have
remained unexplained. Put in a nutshell, the unexplained
suspicious circumstances so found are: (a) that appellant, the
major beneficiary, played an active role in execution of the Will
in question and attempted to conceal this fact before the Court;
(b) that there had not been any plausible reason for non-inclusion
of the only son and other daughter of the testatrix in the process
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of execution of the Will and for excluding them from the major
part of the estate in question; (c) that there was no clarity about
the construction supposed to be carried out by the appellant; (d)
that the manner of writing and execution of the Will with technical
and legal words was highly doubtful; and (e) that the attesting
witnesses were unreliable and there were contradictions
in the statements of the witnesses. Because of these major
circumstances coupled with various supplemental factors, the
Trial Court and the High Court felt dissatisfied on the root
question as to whether the testatrix duly executed the Will in
question after understanding its contents. [Para 27][422-B-E]
2. There is no doubt that any of the factors taken into
account by the Trial Court and the High Court, by itself and
standing alone, cannot operate against the validity of the
propounded Will. That is to say that, the Will in question cannot
be viewed with suspicion only because the appellant had played
an active role in execution thereof though she is the major
beneficiary; or only because the respondents were not included
in the process of execution of the Will; or only because of unequal
distribution of assets; or only because there is want of clarity
about the construction to be carried out by the appellant; or only
because one of the attesting witnesses being acquaintance of the
appellant; or only because there is no evidence as to who drafted
the printed part of the Will
and the note for writing the opening
and concluding passages by the testatrix in her own hand; or
only because there is some discrepancy in the oral evidence led
by the appellant; or only because of any other factor taken into
account by the Courts or relied upon by the respondents. The
relevant consideration would be about the quality and nature of
each of these factors and then, the cumulative effect and impact
of all of them upon making of the Will with free agency of the
testatrix. In other words, an individual factor may not be decisive
but, if after taking all the factors together, conscience of the Court
is not satisfied that the Will in question truly represents the last
wish and propositions of the testator, the Will cannot get the
approval of the Court; and, other way round, if on a holistic view
of the matter, the Court feels satisfied that the document
propounded as Will indeed signifies the last free wish and desire
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of the testator and is duly executed in accordance with law, the
Will shall not be disapproved merely for one doubtful
circumstance here or another factor there. [Para 28][422-E-H;
423-A-B]
3. The unexplained unequal distribution of the property is
confounded by two major factors related with making of the Will
in question: one, the active role played by the appellant in the
process; and second, the virtual exclusion of the other children
of testatrix in the process. As noticed, an active or leading part
in making of the Will by the beneficiary thereunder has always
been regarded as a circumstance giving rise to suspicion but,
like any other circumstance, it could well be explained by the
propounder and/or beneficiary. In the present case, it is not in
dispute that out of the three children of testatrix, the appellant
alone was present at the time of execution of the Will in question
on 20.05.2003. As noticed, at the relevant point of time, the
appellant was admittedly living away and in a different locality for
about 20-22 years, whereas testatrix was residing at the ground
floor of the building and the respondent No.1 was at the first
floor. Even if this Court leaves aside the case of the respondent
No.2 who was living in Shimla, there was no reason that in the
normal and ordinary course, the testatrix would not have included
the respondent No.1 in execution of the Will in question,
particularly when she was
purportedly making adequate
arrangements towards the welfare of respondent No.1. In other
words, if the Will in question was being made without causing
any prejudice to the respondent No.1, there was no reason to
keep her away from this process. Admittedly, the Will in question
was not divulged for about three years. Therefore, the added
feature surrounding the execution of the Will had been of
unexplained exclusion of the respondent No.1 from the process.
[Para 29.3][424-G-H; 425-A-D]
4. Apart from the above, active participation of the appellant
in making of the Will in question cannot be left aside as one of
the minor factors for the reason that the appellant indeed
attempted to project a face of innocence by suggesting that the
testatrix did not discuss the Will with her; that she was not aware
as to who drafted the Will and where was it typed; and that she
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came to know about the Will only on 20/21.05.2003. The appellant
even stated that she did not call the witnesses and that the
testatrix herself might have called them. The witness PW-2 has
clearly contradicted the appellant by deposing that on 18.05.2003,
it was the appellant who invited him to her mother’s place. Thus,
the appellant, by her conduct of attempting to avoid the fact that
she was aware of making of Will, at least two days before its
execution, has only strengthened the suspicion arising because
of her active participation in execution of the Will while keeping
the other children of the testatrix excluded from the process.
[Para 29.4][425-D-F]
5. Moreover, the handwritten portions carry such formal
and legal expressions like “testament” and “set and subscribed
my hand”, which are the tools of the language employed by a
person who is conversant with legal format and requirements for
execution of such a document; and, ordinarily, a layperson like
the testatrix is not expected to be conversant with them. This
set of suspicious circumstances concerning the process of
execution of the document in question reaches to impenetrable
finale by another major part of contradictions in oral evidence.
The appellant asserted in her testimony that the testatrix
discussed the contents of the Will with the attesting witnesses
but both of them (PW-2 and PW-3) consistently maintained that
the contents were not discussed with them. Thus, the appellant
has failed
to clear the doubts as to whether what is found written
in the document in question (both by hand and in print) carry and
convey the last wish of the testatrix. [Paras 29.5.3 and 29.5.4][426-
F-H; 427-A-B]
6. Going yet further, when the core contents of the
document in question are examined, what this Court finds is
another load of several unclear doubts and variety of uncertainties.
As per Section 81 of the Succession Act, if there is an ambiguity
or deficiency on the face of a Will, no extrinsic evidence as to the
intentions of the testator shall be admitted. Thus, everything
related with the true intention of testatrix in the present case is
to be gathered from the contents of the Will in question itself.
[Para 30][427-C]
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7. In the ultimate analysis, this Court is satisfied that the
Will in question is surrounded by various suspicious
circumstances which are material in nature and which have gone
unexplained. The cumulative effect of these suspicious
circumstances is that it cannot be said that the testatrix was aware
of and understood the meaning, purport and effect of the contents
of the Will in question. The appellant, while seeking probate, has
not only failed to remove and clear the aforesaid suspicious
circumstances but has even contributed her own part in lending
more weight to each and every suspicious circumstance. The Will
in question cannot be probated from any standpoint. [Para
31][429-E-F]
8. There remains yet another, and perhaps the most
confounding part of the matter, which leaves nothing to doubt
that the prayer for probate of the Will in question could only be
declined. It is the curious case of alleged third page of the Will in
question and the vacillating stand of the appellant in that regard.
[Para 33][430-A-B]
9. In the impugned judgment, the High Court noticed such
a stand of the appellant, seeking to rely on the very same disputed
third page of the Will and observed that this third page was never
produced by the appellant; rather when the respondent No. 2
sought its production, the appellant denied the same. The High
Court also observed that the said third page of the Will was never
proved before the Trial
Court; and even if it was assumed to be
existing, the suspicious circumstances were not dispelled.
[Para 34.2][435-D]
10. Hence, to cap all the suspicious circumstances, the
aforesaid equivocal stand of the appellant, as regards the third
page of the Will and her assertion of having acted in accordance
with the “directions” in the said third page of the Will, effectively
knocks the entire case of the appellant down to the bottom. The
suspicions arising because of the facts and factors noticed
hereinbefore, including the unnatural exclusion of the
respondents from estate; uncertain and rather inexecutable
stipulation about construction by the appellant for the purpose of
the respondent No.1; active role played by the appellant in
execution of the Will and yet seeking to avoid the factum of her
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role by incomplete and vague statements; and the witnesses
having contradicted the appellant on material particulars etc., have
not only gone unexplained but are confounded beyond repair with
such vacillating stand of the appellant regarding the said third
page of the Will of the testatrix. [Para 36][437-A-C]
11. There are enough and cogent reasons to affirm the
material findings of the Trial Court and the High Court that it
cannot be said that the testatrix executed and signed the
document in question as her Will after having understood the
meaning, effect and purport of the contents. [Para 37][437-E-F]
H. Venkatachala Iyengar v. B.N. Thimmajamma AIR
1959 SC 443 : [1959] Suppl. SCR 426; Rani Purnima
Debi v. Kumar Khagendra Narayan Deb [1962] 3 SCR
195; Smt. Jaswant Kaur v. Smt. Amrit Kaur and Ors.
(1977) 1 SCC 369 : [1977] 1 SCR 925; Shivakumar &
Ors. v. Sharanabasppa & Ors. C.A.No.6076 of 2009
decided on 24.04.2020 by the Supreme Court of India;
Balraj Taneja and Anr. v. Sunil Madan and Anr. (1999)
8 SCC 396 : [1999] 2 Suppl. SCR 258; Leela Rajagopal
and Ors. v. Kamala Menon Cocharan and Ors. (2014)
15 SCC 570 : [2014] 7 SCR 697 – relied on.
Chiranjilal Shrilal Goanka v. Jasjit Singh (1993) 2 SCC
507 : [1993] 2 SCR 454; Uma Devi Nambiar and Ors.v.
T.C. Sidhan (2004) 2 SCC 321 : [2003] 6 Suppl. SCR
637; Indu Bala Bose v. Manindra Chandra Bose (1982)
1 SCC 20 : [1982] 1 SCR 1188; Surendra Pal v. Dr.
Saraswati Arora (1974) 2 SCC 600 : [1975] 1 SCR
687;
Babu Singh and Ors. v. Ram Sahai @ Ram Singh
: AIR 2008 SC 2485 : [2008] 7 SCR 250; Gurdial Kaur
and Ors. v. Kartar Kaur and Ors.: [1998] 2 SCR 486;
P.P.K. Gopalan Nambiar v. P.P.K. Balakrishnan
Nambiar and Ors.: AIR 1995 SC 1852 : [1995] 2 SCR
585; Benga Behera and Anr. v. Braja Kisore Nanda
and Ors.: (2007) 9 SCC 728 : [2007] 6 SCR 853; B.
Venkatamuni v. C.J. Ayodhya Ram Singh and Ors.
(2006) 13 SCC 449 : [2006] 7 Suppl. SCR 787; J.
Mathew and Ors. v. Leela Joseph (2007) 5 MLJ 740;
Bachhaj Nahar v. Nilima Mandal and Anr. (2008) 17
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SCC 491 : [2008] 14 SCR 621; Madhukar D. Shende
v. Tarabai Aba Shedage (2002) 2 SCC 85 : [2002] 1
SCR 13; Joyce Primrose Prestor v. Vera Marie Vas
(1996) 9 SCC 324 : [1996] 1 Suppl. SCR 268; Ved
Mitra Verma v. Dharam Deo Verma (2014) 15 SCC 578;
Mahesh Kumar v. Vinod Kumar and Ors. (2012) 4 SCC
387; Savithri and Ors. v. Karthyayani Amma and Ors.
(2007) 11 SCC 621 : [2007] 11 SCR 404; Pentakota
Satyanarayana and Ors. v. Pentakota Seetharatnam
and Ors. (2005) 8 SCC 67 : [2005] 3 Suppl. SCR 719;
Padmakar Patil and Ors. v. Rukminibai Vishnu Vekhande
and Ors. (2003) 8 SCC 537 : [2003] 2 Suppl. SCR
583; Rabindra Nath Mukherjee and Anr. v. Panchanan
Banerjee and Ors. (1995) 4 SCC 459; Ramchandra
Rambux v. Champabai and Ors. AIR 1965 SC 354 :
[1964] SCR 814; Ram Piari v. Bhagwant and Ors. AIR
1990 SC 1742 : [1990] 1 SCR 813; Modula India v.
Kamakshya Singh Deo (1988) 4 SCC 619 : [1988] 3
Suppl. SCR 333; B. Venkatamuni v. C.J. Ayodhya Ram
Singh & Ors. (2006) 13 SCC 449 : [2006] 7 Suppl.
SCR 787; Apoline D’Souza v. John D’Souza AIR 2007
SC 2219 : [2007] 6 SCR 1103; Dayananadi v. Rukma
D. Suvarna & Ors. [2012] 1 SCC 510; Shashi Kumar
Banerjee and Ors. v. Subodh Kumar Banerjee and Ors.
AIR 1964 SC 529 – referred to.
Rajesh Chand and Ors. v. Dayawati and Ors. ILR
(1981) 2 Delhi 477; Krishan Dass Gupta v. The State
& Ors 2012 SCC OnLine DEL 977 – referred to.
Case Law Reference
[1993] 2 SCR 454
referred to
Para 15.1
[1959] Suppl.
SCR 426
relied on
Para 15.2
[1982] 1 SCR 1188
referred to
Para 15.2
[1975] 1 SCR 687
referred to
Para 15.2
[1962] 3 SCR 195
relied on
Para 17.1

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[1977] 1 SCR 925
relied on
Para 17.1
[2008] 7 SCR 250
referred to
Para 17.1
[1998] 2 SCR 486
referred to
Para 17.1
[1995] 2 SCR 585
referred to
Para 17.1
[2007] 6 SCR 853
referred to
Para 17.1
[2006] 7 Suppl. SCR 787
referred to
Para 17.1
[2008] 14 SCR 621
referred to
Para 18.2
[2002] 1 SCR 132
referred to
Para 18.4
[1996] 1 Suppl. SCR 268
referred to
Para 18.4
[2014] 7 SCR 697
relied on
Para 18.6.2.
(2014) 15 SCC 578
referred to
Para 18.6.2
(2012) 4 SCC 387
referred to
Para 18.6.2
[2007] 11 SCR 404
referred to
Para 18.6.2
[2005] 3 Suppl. SCR 719
referred to
Para 18.6.2
[2003] 6 Suppl. SCR 637
referred to
Para 18.6.2.
[2003] 2 Suppl. SCR 583
referred to
Para 18.6.2
(1995) 4 SCC 459
referred to
Para 18.6.2
[1964] SCR 814
referred to
Para 19.2
[1990] 1 SCR 813
referred to
Para 19.3.3
[1999] 2 Suppl. SCR 258
relied on
Para 20.1
[1988] 3 Suppl. SCR 333
referred to
Para 20.1
[2006] 7 Suppl. SCR 787
referred to
Para 20.4
[2007] 6 SCR 1103
referred to
Para 20.5
(2012) 1 SCC 510
referred to
Para 20.6
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3688
of 2017.
From the Judgment and Order dated 27.06.2014 of the High Court
of Delhi at New Delhi in FAO No. 36 of 2010.
KAVITA KANWAR v. MRS. PAMELA MEHTA & ORS.
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Kamini Jaiswal, Abhimanue Shrestha, Mrs. Rani Mishra and
Jatinerpal Singh, Advs. for the Appellant.
Arjun Harkauli, Prateek Garg, Ms. Aarzoo Khurana, Prosenjeet
Banerjee, Ms. Nidhi Mohan Parashan, Ms. Shreya Singhal, Mr. Pratyaksh
Sharma, Ms. Prachi Dutta and Sarvesh Singh, Advs. for the Respondents.
The Judgment of the Court was delivered by
DINESH MAHESHWARI, J.
INTRODUCTION WITH BRIEF OUTLINE
1. This appeal by special leave is directed against the judgment
and order dated 27.06.2014 in FAO No. 36 of 2010, whereby the High
Court of Delhi at New Delhi has dismissed the appeal preferred by the
present appellant and has affirmed the judgment and order dated
23.11.2009 as passed by the Additional District Judge, West District, Tis
Hazari Courts, Delhi in Probate Case No. 465 of 2006, resulting in rejection
of the appellant’s prayer for grant of probate in relation to the Will dated
20.05.2003, said to have been executed by the mother of the contesting
parties1.
2. The prayer of the appellant for grant of probate in relation to
the Will in question has been declined concurrently by the Trial Court
and by the High Court essentially after finding several unexplained
suspicious circumstances surrounding the Will in question. Being
aggrieved, the petitioner-appellant, who was appointed as the executor
of the Will in question and who was, admittedly, the major beneficiary
thereunder, has preferred this appeal while
maintaining that execution of
Will by the testatrix with due compliance of all the requirements of law
has been clearly established on record and there has not been any such
suspicious circumstance which might operate against the genuineness
of the Will in question.
3. Therefore, essentially the point for determination in this appeal
is as to whether the Trial Court and the High Court were justified in
declining to grant probate in relation to the Will dated 20.05.2003 as
prayed for.
1 Hereinafter also referred to as ‘the contested Will’ or ‘the Will in question’ or the
‘document in question’.
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THE PARTIES AND THE WITNESSES
4. For comprehension of the subject-matter and for effective
determination of the questions raised in this appeal, we may take note of
the principal parties and the witnesses involved in the matter with their
respective roles as infra:
4.1.
The testatrix:
Smt. Amarjeet Mamik wife of Lt. Col. (Rtd.) D. S. Mamik.
Her husband Lt. Col. (Rtd.) D. S. Mamik had expired on
20.10.2002. The testatrix herself expired on 21.05.2006,
leaving behind two daughters and one son, who are the
contesting parties herein.
4.2.
The appellant: Smt. Kavita Kanwar
She is the younger daughter of the testatrix. She is shown
as the executor of the Will in question and she is the major
beneficiary thereunder, though with certain conditions. She
had filed the petition seeking probate that has been declined
by the Trial Court and the High Court.
4.3.
Respondent No. 1: Smt. Pamela Mehta2
She is the elder and widowed daughter of the testatrix. The
conditions stated in the contested Will are purportedly aimed
at making a provision for her residence. Initially, she did not
file the written statement of contest but at the later stage of
proceedings and during the evidence of the appellant, she
attempted to file her written statement. However, the prayer
so made by her was declined by the Trial Court.
Nevertheless, she has continuously contested the matter,
as shall be noticed hereafter.
4.4.
Respondent No. 2: Col. (Rtd.) Prithiviraj Mamik3
2 The respondent No. 1
of the present appeal was on record as respondent No. 2 in the
Trial Court and High Court. Therefore, reference to her in the impugned judgments and
other proceedings shall appear with description as ‘respondent No. 2’. However, for
continuity of expressions in this judgment, she is referred to as ‘the respondent No. 1’
with contextual clarification wherever required.
3 Similar to FN 2 ibid., the respondent No. 2 of the present appeal was on record as
respondent No. 3 in the Trial Court and High Court. Therefore, in the impugned
judgments and other proceedings he is described as ‘respondent No. 3’. However, for
continuity of expressions in this judgment, he is referred to as ‘the respondent No. 2’
with contextual clarification wherever required.
KAVITA KANWAR v. MRS. PAMELA MEHTA & ORS.
[DINESH MAHESHWARI, J.]
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He is the son of the testatrix. By way of bequeath in the
Will in question, he has been given ‘credit balance’ lying in
the bank accounts of the testatrix but with clarification that
he shall not inherit any portion of the immovable assets of
testatrix. He had filed the written statement and has
consistently contested the claim for probate of the Will in
question.
4.5.
The attesting witnesses:
PW-2: Shri. Urvinder Singh Kohli, who is said to be a friend
of the appellant and his daughter got married to the son of
a cousin of the appellant; and PW-3: Major General Manjit
Ahluwalia, who is son of the sister of testatrix.
THE IMMOVABLE PROPERTY INVOLVED: ANNALS
AND DESCRIPTION
5. We may also notice at the outset that the immovable property,
a part whereof forms the subject of bequeath and which is the major
bone of contention in this case, has its own chronicle of different transfers
as per the desire of its original owner, father of the contesting parties.
For comprehension of the relevant factual aspects as also salient features
of this case, it is equally necessary to take note of the description of
immovable property in question as also the past dealings in relation thereto.
5.1. The property in question is identified as bearing number
D-179, Defence Colony, New Delhi admeasuring 325 square yards and
comprising of a building having ground floor, first floor, terrace and annexe
block of garage and servant quarter. The
whole property originally
belonged to Lt. Col. (Rtd.) D. S. Mamik, father of the contesting parties
who, in his lifetime, gifted the ground floor of this property to the appellant
by way of a registered Gift Deed dated 25.01.2001; and thereafter, he
bequeathed the remaining portion/s, that is, the first floor, terrace and
the annexe block of garage and servant quarter in favour of his wife
Smt. Amarjeet Mamik through a registered Will dated 14.02.2001. Lt.
Col. (Rtd.) D. S. Mamik expired on 20.10.2002. Hence, after his demise,
Smt. Amarjeet Mamik, mother of the contesting parties, became owner
of the first floor and other portions of the said property except the ground
floor.
5.2. It is also noteworthy that at the time of execution of the
contested Will dated 20.05.2003, the testatrix Smt. Amarjeet Mamik was
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residing at the ground floor of this property (which had otherwise been
gifted to the appellant by her father). The first floor of this property
(which had otherwise been bequeathed to the testatrix by her husband)
has remained in occupation of respondent No. 1, the widowed daughter
of the testatrix.
THE WILL IN QUESTION
6. The contested Will dated 20.05.2003 has been placed on record
as Ex. PW1/H. A vast variety of features related with this Will form the
subject of dispute in this case. The Trial Court and the High Court have
also analysed and taken into account several of the suspicious
circumstances surrounding this Will and the long length of arguments of
the learned counsel for the contesting parties in this appeal have also
revolved around this Will. Having regard to the questions involved, it
would be apposite to take note of the features and attributes of the
contested Will to appreciate the stand of the contesting parties as also
the findings in the impugned judgments.
6.1. The contested Will is drawn up in two pages. It is a partly
holograph document in the manner that its opening and concluding
passages/clauses are handwritten whereas the other paragraphs/clauses
are of electronic print. This Will is said to have been executed on
20.05.2003 by Smt. Amarjeet Mamik while residing on the ground floor
of the property in question at D-179, Defence Colony, New Delhi in the
presence of the attesting witnesses and the appellant.
7. The Will in
question reads as under: -
“WILL
I Amarjit Mamik aged 77 years w/o Lt. Col. (Retd) D.S.
MAMIK r/o Ground floor D. 179, Defence Colony New Dlhi
– 110024 c/o hereby make This my will and testament on
This 20 day of May 2003 at New Delhi.
1. WHEREAS I was married to Lt. Col. (Rtd.) D.S. Mamik from
which union the following children were born:
1. Mrs. Pamela Mehta
-  Daughter, aged 60 years
2. Col. (Rtd.) Prithivijit Mamik -  Son, aged 57 years
3. Mrs. Kavita Kanwar
-  Daughter, aged 50 years
KAVITA KANWAR v. MRS. PAMELA MEHTA & ORS.
[DINESH MAHESHWARI, J.]
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2. AND WHEREAS my said husband was the owner of the said
building bearing No. D-179, Defence Colony, New Delhi –
110024, constructed on a plot of land admeasuring 325 sq. yds.
and comprising of a ground floor, first floor, terrace thereon
and the annexe block of garage and servant quarters thereon.
3. AND WHEREAS during his life time my said husband had
executed a duly registered Gift Deed dated 25.1.2001 in respect
of the ground floor of the said building in favour of my
aforementioned youngest daughter Mrs. Kavita Kanwar who
has after the execution of the said Gift Deed granted a licence
to use the same floor for my residential purposes out of natural
love and affection.
4. AND WHEREAS my said husband has vide Will dated
14.2.2001, validly executed and duly registered, bequeathed to
me the first floor, the terrace thereon and all other portions of
the said building, hereinafter referred to as the property, save
and except the said ground floor of the same building.
I am in my full senses and disposing mind and I fully understand
what is right and wrong. I am on my own accord voluntary, without
any force, pressure, coercion or influence of any kind am making
this Will in order to direct as to the manner of the inheritance of
my aforementioned assets upon my demise. I hereby and
hereunder revoke any wills or codicils that I may have made in
the past.
1.
I hereby give, devise and bequeath to my youngest daughter
the
said Mrs. Kavita Kanwar my entire share in the
aforementioned immovable property, namely the first floor
and the terrace including all other portions, save and except
the ground floor with specific directions that my said daughter
Mrs. Kavita Kanwar will carry out either of the 2 options as
deemed proper by her, namely
(a) construct on the terrace of the said building such residential
facility of such covered area as is permissible under the
Municipal Building Bye-laws at the time of my demise and
hand over possession of the same construction to my elder
daughter, namely Mrs. Pamela Mehta, who shall thereafter
acquire sole exclusive title to the said portion with the terrace
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rights thereon continuing to vest in favour of the said Mrs.
Kavita Kanwar,
OR
(b) demolish the said building and carry out such new
construction as is permissible under the Municipal Building
Bye-laws and be the sole exclusive owner of the entire building
thus constructed, save and except such constructed residential
portion on the highest floor of such building, which portion
shall vest solely and exclusively in favour of my said elder
daughter Mrs. Pamela Mehta, while the terrace rights thereon
shall continue to vest in favour of my said daughter Mrs.
Kavita Kanwar.
2. I also direct that in the event of my acquiring any further movable
or immovable assets hereinafter or any other assets that I may
have forgotten to mention in the present Will the same shall devolve
upon my daughter Mrs. Kavita Kanwar.
3. I hereby give, devise and bequeath to my son, Col. Prithivijit
Mamik, the credit balance lying in my Bank Accounts. I however,
clarify that my said son shall not inherit any portion of my
aforementioned immovable assets.
4. I hereby appoint my said daughter Mrs. Kavita Kanwar as the
Executor of my Will.
In witness whereof, I Amarjit Mamik have set and subscribed
my hand to this my last will as also to each of the 2 pages that
comprise it having understood the contents thereof and
endorsing thereby and giving my approval to the bequest made
therein.
I fully endorse the manner in which my assets shall devolve
as stated hereinabove in my will made out in
2 pages. Each
of which page has been signed by me.
Amarjeet Mamik
Testator
Signed by the Testator in the presence of
the witnesses and the witnesses have
     (Sd/-)
signed in the presence of the Testator
KAVITA KANWAR v. MRS. PAMELA MEHTA & ORS.
[DINESH MAHESHWARI, J.]
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Witness No. 1:
(Sd/-)
Maj Gen Manjit Ahluwalia
D-34 Defence Colony
20 May 2003
Witness No. 2:
(Sd/-)
(Sd/-) 20/5/03 Urvinder S. Kohli
   S/o S. Navinder S. Kohli
   227 Jor Bagh N. Delhi”
(Note: The bold italicised portions are in the handwriting of the
testatrix whereas unbold italicised portions are in the handwriting
of the respective witnesses. All other contents are of electronic
print)
SUMMARY OF PLEADINGS, ISSUES AND EVIDENCE
AS ALSO THE RELEVANT PART OF PROCEEDINGS IN THE
TRIAL COURT
8. Having taken note of the particulars of the parties and the
property involved as also the contents of the Will in question, we may
now summarise the pleadings of the parties, the issues framed by the
Trial Court, the material aspects of evidence led by the parties and the
relevant part of the proceedings in the Trial Court, which have bearing
on the questions involved herein.
8.1. Briefly put, the petition leading to this appeal was filed by the
appellant on 06.11.2006 in the Court of District Judge at Delhi under
Section 276 of the Indian Succession Act, 19254 for grant of probate of
the Will in question, said to have been executed by her mother Smt.
Amarjeet Mamik while arraying the State (N.C.T., Delhi) as the party
respondent. Thereafter, by filing amended memo of parties, the present
respondent Nos. 1 and 2 were arrayed as respondent Nos. 2 and 3
respectively. The appellant stated the facts relating to the children of the
testatrix as also the said gift of the ground floor made by the father in
her favour and then, asserted in the petition that by the Will in question,
the testatrix had bequeathed the first floor and other portions except the
ground floor of the said property at No. D-179, Defence Colony, New
Delhi in her favour with directions to carry out one of the two options,
i.e., either to construct on the terrace of the first floor of the said property
4 Hereinafter also referred to as ‘the Succession Act’.
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or to demolish the said building and to re-construct and give the highest
floor of the said building to Mrs. Pamela Mehta (other daughter of
testatrix) while retaining the terrace rights thereon; and had bequeathed
the balance in her savings bank account maintained with Central Bank
of India in favour of her son Col. (Rtd.) Prithivijit Mamik. While stating
that the Will in question was duly executed in the presence of the aforesaid
two witnesses and that the testatrix expired on 21.05.2006, the appellant
asserted that she was the executor and beneficiary of the Will in question
and was entitled to seek its probate.
8.2. For their relevance, we may usefully take note of the material
contents of the said petition as also those of Schedule A and Schedule B
attached to the petition, giving out respectively the particulars of the
natural heirs of the deceased Smt. Amarjeet Mamik and a list of assets
of the deceased as under:-
“ ***
***
***
4.
That the “WILL” dated 20.05.2003 was duly executed by
Smt. Amarjeet Mamik in the presence of two witnesses
namely Major Gen. Manjit Ahluwalia r/o D-34, Defence
Colony, New Delhi and Sh. Urvinder S.Kohli s/o S.Narinder
S.Kohli r/o 227 Jor Bagh, New Delhi-110003.
5.
That the deceased was the owner of first floor, the terrace
thereon and all other portions of premises no. D-179, Defence
Colony, New Delhi-110024, save and except the ground floor
of the said building, as mentioned in the will and the said
property, is likely
to come to the hands of the petitioner and
her sister namely Mrs. Pamela Mehta as per the “WILL”.
6.
That the husband of the deceased was the owner of property
bearing no. D-179, Defence Colony, New Delhi-110024
constructed on a plot of land measuring 325 square yards
and comprising of a ground floor, first floor, terrace thereon
and an annexe block of garage and servant quarters thereon.
7.
That during his lifetime the husband of the deceased had
executed a duly registered gift deed dated 25.01.2001 in
respect of the ground floor of the said building in favour of
his youngest daughter i.e. Smt. Kavita Kanwar.
KAVITA KANWAR v. MRS. PAMELA MEHTA & ORS.
[DINESH MAHESHWARI, J.]
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8.
That the husband of the deceased vide ‘Registered Will’ dated
14.02.2001 bequeathed to the deceased the first floor, the
terrace thereon and all other portions of the said building to
the deceased, save and except the ground floor.
9.
That Smt. Amarjeet Mamik died on 21.05.2006 at Delhi within
the jurisdiction of this Court.
10. That the deceased Smt. Amarjeet Mamik was a Hindu by
religion and she left behind, besides the petitioner the following
relatives/legal heirs :
(i) Mrs. Pamela Mehta
Daughter
(ii) Col. (Rtd.) Prithvijit Mamik
Son
The complete addresses of the above heirs are given in the
annexures marked as schedule ‘A’ attached with this petition.
Except the above legal representatives there is no legal heir
of the first class as mentioned in the Hindu Succession Act.
11. That the petitioner is one of the beneficiaries of the “WILL”
dated 20.05.2003 and the petitioner is also the executor of
the said “WILL”. The immoveable property which is likely
to come to the hands of the petitioner is having the worth of
about Rs. 18 Lakhs.
12. That the assets which are likely to come in the hands of the
petitioner are the first floor and other portions of the property
no. D-179, Defence Colony, New Delhi-110024 save and
except the ground floor of the building and to carry out the
two options of constructing either on the terrace of the first
floor of the said building or to demolish the said building and
to
re-construct and give highest floor of the said building to
Mrs. Pamela Mehta and retaining the terrace rights there on.
13. That the balance in the Savings Bank account No. 1001020597
maintained with the Central Bank of India, Defence Colony,
New Delhi as mentioned in the Schedule-B attached to the
petition will go to Col. (Rtd.) Prithivijit Mamik and the petitioner
does not claim the same.
***
***
***
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SCHEDULE A
Name and Addresses of the L.Rs of the deceased Smt.
Amarjeet Mamik
S. No.
          Name
Relationship
Address
1.    Mrs. Pamela Mehta
Daughter
D-179,Defence
Colony, New
Delhi-110024.
2.        Co. (Rtd.) Prithvijit
Son
Madhuban Gian
        Mamik
Vatika, Khalini,
Shimla(H.P.)
3.      Mrs. Kavita Kanwar
Daughter
S-45, Panchshila
Park, New
Delhi-3
***
***
***
SCHEDULE B
IMMOVEABLE PROPERTY:
First floor, the terrace thereon and all other portions of premises
no. D-179, Defence Colony, New Delhi-110024, save and except
the ground floor of the said building.
MOVEABLE ASSETS:
1.
Balance in Savings Account No. 1001020597
maintained with Central Bank of India,
Defence Colony, New Delhi.
    Rs. 577389.00"
***
***
***”
9. The said petition seeking probate was eventually transferred to
the Court of Additional District Judge, Delhi for consideration. After
requisite publication and due notice, the respondents put in appearance
but, on 18.04.2007, it was given out on behalf of the present respondent
No. 1 that she did not wish to file objections to the petition. However, the
objections with documents were indeed filed on behalf of the present
respondent No. 2, who refuted the claim of the appellant and contended,
inter alia, that the Will in question was forged and fabricated, where the
KAVITA KANWAR v. MRS. PAMELA MEHTA & ORS.
[DINESH MAHESHWARI, J.]
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appellant was the major beneficiary as also the executor; that there was
no reason for exclusion of the respondents and grandchildren from the
legacy; and that the property in question being an ancestral property,
belongs to all the legal heirs of late Shri D.S. Mamik. The replying
respondent maintained that there existed no dispute between testatrix
and himself and there was no reason for the mother to have excluded
him from the Will. He also contended that the property bequeathed in
favour of the appellant was worth crores of rupees and hence, it was
impossible to comprehend that his mother had left him merely a sum of
Rs. 5,77,389/- when the relations between him and his mother were
cordial.
10. The Trial Court framed the following issues for determination
of the questions involved in the matter: -
“1. Whether the Will dated 20-5-2003 of Smt. Amarjeet Mamik is
proper and valid? OPP
2. Whether the Will dated 20-5-2003 of Smt. Amarjeet Mamik is
forged and fabricated? OPR-3
3. Whether the petitioner is entitled to the grant of Probate/Letter
of Administration in respect of Will dated 20-5-2003 of Smt.
Amarjeet Mamik? OPP
4. Relief”
11. In evidence, the appellant examined herself as PW-1; and the
two attesting witnesses of the contested Will, Shri Urvinder Singh Kohli
and Major General Manjit Ahluwalia as PW-2 and PW-3 respectively.
Shri Nikhil Kanwar, son of the appellant, was also examined as PW-4.
In documentary
evidence, the Will in question was marked as Ex.
PW1/H.
11.1. It had been the consistent case of the appellant that she
had no prior knowledge that the Will was being executed on the given
day and that it was the testatrix who invited the appellant to her residence.
The appellant asserted in her evidence that only after reaching her
mother’s house on the given day, it came to her knowledge that her
mother was executing a Will. She further stated that she was not aware
of the contents of the Will. It had also been the assertion of the appellant
that her parents had special love and affection for her and that had been
the reason for them having gifted and bequeathed the said property to
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her only. The appellant also stated in the cross-examination: (i) that she
did not know the educational qualification of the testatrix but she (testatrix)
knew how to read and write in English; (ii) that she and the testatrix
were not residing together for the last 20-22 years; (iii) that the testatrix
neither discussed the contents of the Will with her nor mentioned as to
who had drawn and typed the Will in question; (iv) that she came to
know about the existence of the Will on 20-21 May, 2003; (v) that her
mother had not called respondent Nos. 1 and 2 on the day of execution
of the Will; (vi) that respondent No. 1 was living on the floor above the
testatrix and was looking after the testatrix, who was suffering from
cancer; (vii) that the testatrix had called the attesting witnesses; (viii)
that she did not know when the testatrix discussed the Will with the
respondents; (ix) that the testatrix had discussed the contents of the Will
with the attesting witnesses (x) that she remembered the testatrix writing
something but was not sure whether it was on the Will or something
else5; and (xi) that the relations of the testatrix and the respondent No. 2
were strained.
11.2. PW-2 and PW-3, the attesting witnesses, both specifically
deposed that on their arrival at the house of Smt. Amarjeet Mamik, they
found that the appellant was already present there; that the testatrix
wrote something on the Will in their presence before signing it; and that
they were
unaware of the contents of the Will as the same was not
discussed with them. PW-2 also maintained that on 18.05.2003, the
appellant had called him to the house of her mother on 20.05.2003. On
the other hand, PW-3 deposed that it was the testatrix who invited him
to her house that day; that he was having good relations with the appellant
and the respondents; that the testatrix was having good relations with
respondent No. 2 and also that when Smt. Amarjeet Mamik wrote
something on the Will, she copied it from a draft which she had with her.
12. In opposition, the contesting respondents deposed as R2W-1
and R3W-1 respectively.Shri Ram Gopal Meena from the Post Office,
Defence Colony was examined as R3W-2; Shri S.P. Sharma from State
Bank of India as R3W-3; Shri R.S. Negi from Defence Colony Association
Club as R3W-4; and Shri S.P. Khamra from Central Bank of India was
examined as R3W-5. Several documents produced by the respondents
like family photographs, birthday card sent by testatrix to respondent
5 Though in the affidavit-in-evidence, the appellant had mentioned that her mother had
written the introduction portion as also the concluding portion on the Will.
KAVITA KANWAR v. MRS. PAMELA MEHTA & ORS.
[DINESH MAHESHWARI, J.]
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No. 2 etc. shall also be referred to at the appropriate juncture, to the
extent of relevancy.
12.1. The respondent No. 1 in her evidence, inter alia, deposed
that their mother was not even 10th standard pass and that she was
having cordial relations with herself as also with the respondent No. 2.
12.2. The respondent No. 2 in his evidence, inter alia, deposed
that he was having good relations with his mother; and, as he was serving
in Indian Army, the mother would talk to him over the phone and would
even send letters and birthday card wishing him all the happiness.
13. Before proceeding further, one of the peculiar aspects of the
matter, which carry its own bearing on the relevant questions and
emanates from the record of proceedings of the Trial Court, may be
noticed as infra.
13.1. It appears that at the initial stage of proceedings in the Trial
Court, the relations of the appellant and the respondent No. 1 (who was
respondent No. 2 in the Trial Court) had not gone into any discord. As
noticed, the present respondent No. 1 stated before the Trial Court on
18.04.2007 that she did not wish to file any objections to the petition.
However, it appears that during the course of evidence of the appellant,
differences and disputes spurted between the appellant and the
respondent No. 1 and the appellant filed a separate civil suit for injunction
against the respondent No. 1. In sequel to this new position of conflict of
interests, the respondent No. 1 attempted to put forward direct contest
of the petition seeking probate and, on 24.03.2008, moved an application
under Section 151 of the Code of Civil Procedure (‘CPC’) before the
Trial Court, seeking opportunity of further cross-examination of the
appellant. In this application, the respondent No. 1, inter alia, raised a
plea about the alleged third page of the Will in question. The application
so moved was rejected by the Trial Court on 25.03.2008 and, as regards
the point concerning the alleged third page of the Will, the Court observed
as under:
“25.03.2008
***
***
***
Point No. 2: From the point No. 2, it appears that respondent No.
2 now is raising a totally different and new stand regarding the 3rd
page of the Will. She has not produced the original or copy of the
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alleged 3rd page along with this application. The story of this 3rd
page has come on record first time through this application which
cannot be believed when nothing in this regard was asked in the
cross examination of PW-1. Non filing of any objections against
this Will despite taking opportunities prima facie leads to the
inference that respondent No. 2 accepted the Will as correct. She
was also given some portion in the property under the Will and
thus kept quite without disputing Will and now is challenging the
genuineness of the Will all of a sudden simply on the ground that
petitioner has filed a civil suit for injunction claiming exclusive
ownership of the property.
In the probate proceedings, the question of the ownership
or title is not decided and court is only concerned with the fact
whether the Will is genuine or not. Counsel for the petitioner during
arguments stated that the rights given to the respondent No. 2
under the Will shall be protected. Keeping in view these above
circumstances, I am of the view that no permission can be granted
to the respondent No. 2 to cross examine further at point No. 2
mentioned in para No. 4 of the application.”
13.2. On 24.03.2008, another part of the proceedings had been
that the Court closed the opportunity for cross-examination of some of
the witnesses of the appellant by the respondent No. 2. After the aforesaid
proceedings, an application under Order IX Rule 7 CPC was filed on
behalf of the respondent
No. 2. On the other hand, an application seeking
permission to file written statement and for condonation of delay was
filed on behalf of the respondent No. 1. In that application, the present
respondent No. 1 again referred to the alleged third page of the Will; and
such an assertion was again emphatically denied by the appellant while
maintaining that the Will in question was only in two pages and there
was no third page of the Will as alleged.
13.2.1. The aforesaid two applications were dealt with by the
Trial Court in its order dated 03.07.2008. While the application filed by
the respondent No. 2 was granted on costs but the application moved by
the respondent No. 1 was rejected with costs. In regard to the aspects
concerning the alleged third page of the Will, the Trial Court, observed
as under:
“In this application u/s 5 of Limitation Act, respondent no. 2 has
relied upon alleged 3rd page of the Will whereas petitioner stated
KAVITA KANWAR v. MRS. PAMELA MEHTA & ORS.
[DINESH MAHESHWARI, J.]
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that the Will consisted of only 2 pages and it has no 3rd page.
Respondent No. 2 has placed on record photocopy of that alleged
3rd page but even if this photocopy is seen and compared with
original Will, then prima facie it can be said that it was not a part
of the original Will the alleged 3rd page appears to be some another
document and prima facia it is not certainly 3rd page of the Will.
Otherwise alleged 3rd page of the Will can not be relied upon
because in the cross examination of PW-1 respondent no. 2 has
not referred about it any where or confronted her with it though
admittedly it was in her possession since beginning.”
13.3. The respondents yet persisted with their assertion about
existence of the third page of Will in question and now, the respondent
No. 2 moved an application under Order XI Rule 12 and 14 CPC seeking
production of the same. This application was also resisted by the appellant
while denying existence of any such third page and even with the allegation
that this third page had been fabricated by the respondents in connivance
with each other. The Trial Court dealt with and rejected the application
so moved by the respondent No. 2 (who was respondent No. 3 in the
Trial Court) by way of its order dated 23.08.2008, inter alia, with the
following observations:-
“Counsel for Respondent no. 3 during arguments read the
cross examination of the petitioner as well as the contents of the
alleged third
page of the Will to show that, that the movable
properties was distributed by the deceased during her life time in
accordance with the contents of the third page of the Will so it
can be said that the Will in fact consisted of three pages and not
two pages as alleged by the petitioner, however, I am not convinced
with this submission.
In the cross examination of the petitioner the alleged third
page of the Will was never put to confront her in order to
substantiate the plea that the Will consists of three pages. Even in
the cross examination of PW-2 attesting witness of the Will no
suggestion was given that the Will was of three pages and not of
two pages. The Will Ex. PW-1/H is of two pages and even the
handwritten endorsement at the end of it point out that it consisted
of only two pages. The alleged third page of the Will, photocopy
of which was placed on record by the respondent no. 2 does not
bear any date or signatures of any attesting witnesses. The alleged
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third page has already been found not a part of the Will as per
order dated 3-7-2008. The respondent no. 3 in his objection has
described the entire Will as forged and fabricated but now cannot
be allowed to take a contradictory stand that the third page is
genuine and other two pages are forged on the ground that
admittedly the movable property was distributed in accordance
with the alleged third page among the legal heirs.
In this case, the claim is made by the petitioner in respect
of one immovable property and one bank account and no claim is
made in respect of any movable property. Even if it is presumed
that deceased during her life time distributed her personal
belongings, cash and jewellery in accordance with the third page
then also that third page has now become useless because the
distribution of the movable assets took place during life time of
the deceased whereas the Will has to take effect after the death
of the testatrix. Accordingly, in this case only subject matter remains
is immovable property and the bank account.
Petitioner has denied the existence of this alleged third page
and also denied having possession of the same. She has also denied
supplying of the copies of this alleged third page to the respondents
at the time of service of the petition. The reply is supported by an
affidavit of the petitioner, so in such situation also no direction can
be given to the petitioner to produce the original of alleged third
page of the Will
which is being relied upon by the respondent no.
3 now. Petitioner infact is saying that this third page has been
fabricated by the respondents in connivance with each other.
Accordingly, I find no merits in the application of respondent
no. 3 especially when in the cross examination of PW-1 and PW-
2 no such third page was put for confrontation and relying upon
this alleged third page now is contradictory from the contents of
the objections filed to the petition. Application is thus, dismissed
with cost of Rs. 1000/- to be paid to the petitioner.”
14. Hereinabove, we have expansively recounted the part of the
proceedings in the Trial Court concerning the alleged third page of the
Will. As could be readily noticed, while the contesting respondents, one
way or the other, kept on insisting that there had been a third page of the
Will but, per contra, existence of any such third page of the Will in
KAVITA KANWAR v. MRS. PAMELA MEHTA & ORS.
[DINESH MAHESHWARI, J.]
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question was categorically denied by the appellant; rather the appellant
alleged that the said third page had been fabricated by the respondents
in connivance with each other. The Trial Court also accepted the
submission of the appellant that no such third page existed, particularly
after noticing that the appellant was never confronted with any such
third page of the Will. The Trial Court even observed that distribution of
movable assets of testatrix was complete during her lifetime and the
only subject-matter remaining was the immovable property and the bank
account. The relevance of these aspects shall appear in the later part of
this judgment, when we shall be dealing with the effect of a different
stand taken by appellant in the High Court.
FINDINGS OF THE TRIAL COURT
15. Having glanced through the pleadings and evidence of the
parties, having taken note of the contents and frame of the Will in question,
and having also taken note of the relevant parts of proceedings before
the Trial Court, we may look at the findings of the Trial Court in its
judgment dated 23.11.2009, particularly the reasons that weighed with it
while declining the prayer for probate of the Will in question.
15.1. As regards the objection of respondent No. 2 that the property
in question was an ancestral property, the Trial Court referred to the
decision of this Court in Chiranjilal Shrilal Goanka v. Jasjit Singh:
(1993) 2 SCC 507 and held
that the said objection would not be
entertained because the ‘question of right, title, share and ownership
is not to be decided in the probate proceedings’. The Trial Court also
found that the testatrix was of sound mind at the time of execution of the
Will, particularly when she was handling her own affairs including bank
account and property; was leading a very active life till her death; and
was also attending club and driving her own car.
15.2. However, thereafter, the Trial Court took into account
various circumstances which appeared to be suspicious. In the first place,
the Trial Court referred to the decisions in H. Venkatachala Iyengar v.
B.N. Thimmajamma: AIR 1959 SC 443, Indu Bala Bose v.
Manindra Chandra Bose: (1982) 1 SCC 20 and Surendra Pal v.
Dr. Saraswati Arora: (1974) 2 SCC 600 and observed thatif propounder
of the Will takes an active part in the execution of the Will and receives
substantial benefit under it, then such a circumstance is generally treated
as suspicious one. As regards the facts of the case at hand, the Trial
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Court found that the appellant played an active role in execution of the
Will in question and at the same time, she was the major beneficiary
thereunder where she was not only given the first floor but also the
terrace rights and all other portions of the property in question.
15.3. Secondly, the Trial Court was of the view that the exclusion
of the only son from the immovable property was also a suspicious
circumstance. The Court took into consideration the birthday card Ex.
RW3/1 sent by the testatrix to respondent No. 2 and was of the view
that the words of praise in the said card belied the suggestion that the
relationship between them was strained. The Trial Court also took into
consideration the family photographs making out that the testatrix was
present at the second marriage of respondent No. 2 and observed that
the said photographs were not challenged or questioned by the appellant.
The Trial Court also observed that the testatrix would not have given
him the amount in the bank account if their relations were strained.
15.4. Thirdly, the Trial Court also found that the other daughter
of the testatrix (the respondent No. 1 herein) virtually did not get any
substantial share. The Trial Court was of the view that the exclusion of
respondent No. 1 from the Will, when there was no proof of strained
relationship of testatrix with her, made the Will unnatural and unfair; and
this was another strong suspicious circumstance to reject the Will.
15.5.
Fourthly, the Trial Court did not feel satisfied about the manner
of writing and execution of the Will and observed that the testatrix had
not completed her education and was not a computer literate; that a few
portions of the Will were handwritten and there were traces of pencil
lines beneath the handwritten portions, making out that the testatrix was
asked to write as per dictation on the particular portion; and that certain
portions of the Will contained technical and legal words not known to a
layperson. The Trial Court observed that the relevant facts as to how
the Will was typed and how the testatrix was made to write the particular
clause in the Will in her own handwriting were not clarified and the
manner of execution of Will was another suspicious circumstance.
15.6. Fifthly, the Trial Court was of the view that the attesting
witnesses were unreliable and the possibility of PW-3 being bribed was
not ruled out as the appellant had given an amount of Rs. 25,000/- to his
daughter. On the other hand, PW-2 admitted in his cross-examination
that he hardly knew the testatrix.
KAVITA KANWAR v. MRS. PAMELA MEHTA & ORS.
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15.7. Sixthly, the Trial Court also took into consideration the
contradictions in the statements of the witnesses, which raised doubts
as to the genuineness to the story of the appellant. The Trial Court pointed
out that as per the appellant, she had no knowledge of the execution of
the Will prior to 20.05.2003 but as per the testimony of PW-2, it was the
appellant who called him on 18.05.2003 for the purpose of attestation of
the Will.
15.8. Seventhly, the Trial Court also observed that there were
vague recitals in the Will such as, ‘other portions of the building’,
when the said property consisted only of the ground floor and first floor.
16. While elaborately dealing with all the suspicious circumstances
concerning the Will and unreliability of the evidence led by the appellant,
the Trial Court found that the appellant had not been able to remove the
suspicions and hence, dismissed the petition.
CONCURRENCE OF THE HIGH COURT
17. Being aggrieved by the said judgment of the Trial Court, the
appellant approached the High Court in FAO No. 36 of 2010 that has
been considered and dismissed by the impugned judgment dated
27.06.2014. Having regard to the questions involved, we may notice the
reasons that prevailed with the High Court in upholding the decision of
the Trial Court in requisite details.
17.1. In the impugned judgment dated 27.06.2014, the High Court
in the first place took note of the relevant material on
record; the suspicious
circumstances surrounding the Will in question as indicated by the Trial
Court; and the contentions of respective parties. Thereafter, the High
Court referred to the basic ingredients for due execution of a Will as per
Section 63 of the Succession Act and Section 68 of the Indian Evidence
Act, 18726 and the principles exposited by this Court in the cases of
H. Venkatachala Iyengar v. B.N. Thimmajamma (supra); Rani
Purnima Debi v. Kumar Khagendra Narayan Deb: (1962) 3 SCR
195, Smt. Jaswant Kaur v. Smt. Amrit Kaur and Ors.: (1977) 1
SCC 369; Babu Singh and Ors. v. Ram Sahai @ Ram Singh: AIR
2008 SC 2485; Gurdial Kaur and Ors. v. Kartar Kaur and Ors.:
1998 SCR (2) 486; P.P.K. Gopalan Nambiar v. P.P.K. Balakrishnan
Nambiar and Ors.: AIR 1995 SC 1852, Benga Behera and Anr. v.
Braja Kisore Nanda and Ors.: (2007) 9 SCC 728 and B.
6 Hereinafter also referred to as ‘the Evidence Act’.
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Venkatamuni v. C.J. Ayodhya Ram Singh and Ors.: (2006) 13 SCC
449 as also in a Division Bench decision of Madras High Court in
J. Mathew and Ors. v. Leela Joseph : (2007) 5 MLJ 740 and
observed thatas per settled law, mere proof of signatures on the Will
was not sufficient to prove its due execution; and it was the duty of the
party seeking probate to satisfy the conscience of the Court as regards
due execution of the Will by the testator and for that matter, the Court
can probe deeper into the matter to satisfy its conscience that the testator/
testatrix had duly executed the Will after understanding its contents.
The High Court, thus formulated the point for consideration as under:-
“28. The question for consideration is whether the evidence led
by the appellant i.e., propounder satisfies the conscience of the
court that the Will in question was duly executed.”
17.2. Thereafter, the High Court took up the crucial finding of
the Trial Court that the evidence on record did not establish that while
signing the Will Ex. PW1/H, the testatrix understood the contents thereof.
17.2.1. In regard to this fundamental aspect as to whether the
testatrix understood the contents of the document Ex. PW1/H, the High
Court meticulously examined the material on record and observed that
the appellant, in her evidence, did not mention that the testatrix was
aware of the contents of the Will. The High Court further referred to the
testimony of the appellant to the effect
that she was not made aware by
the testatrix as to who had drawn and typed the Will in question; that she
was made aware about the Will only on the day of its execution; that she
was not aware if testatrix had discussed the Will with respondent Nos. 1
and 2; that she was not directed by the testatrix to call respondent Nos.
1 and 2 on the day of execution of the Will; and that though she
remembered the testatrix writing something, but she was unsure whether
it was on the document of Will. A major discrepancy was observed by
the High Court in her deposition with regard to the attesting witnesses
where the appellant stated that the testatrix had discussed the contents
of the Will with PW-2 and PW-3 while those witnesses denied the same
in their evidence. Thus, after having thoroughly examined the testimony
of the appellant, the High Court concluded that nothing was brought on
record to show that the testatrix was aware of the contents of the Will.
The High Court said,-
“30. The evidence on record in this regard is examined. The
appellant has nowhere stated in her evidence by way of affidavit
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Ex.P1 that testatrix was aware of the contents of the Will Ex.
PW1/H. In her cross-examination, she has stated that her mother
i.e. testatrix did not discuss the contents of the Will Ex.PW1/H
with her before drawing it nor her mother told her as to who had
drawn and typed the said Will. The appellant has further stated in
cross-examination that she does not know when Will Ex.PW1/H
was got typed. She has further stated that she had come to know
about the said Will Ex.PW1/H only on 20-21 May, 2003. The
appellant has also deposed that she does not know whether her
mother i.e., testatrix had discussed the Will Ex.PW 1/H with
respondent no.2 or respondent no.3. Her mother did not ask her
to call respondent nos.2 and 3 on that day. In cross-examination,
she has further stated that her mother had discussed the contents
of the Will with the witnesses i.e. PW2 and PW3 whereas PW2
and PW3 in their evidence have denied the same. The appellant
has further deposed that she does not know if any professional or
any deed writer was engaged for drafting/typing of the Will Ex.PW
1/H. The appellant has also deposed that on that day her mother
had written something but she does not know whether it was on
the Will or something else. From her evidence, it cannot be said
that testatrix was aware about the contents of the Will Ex.PW1/
H.”
17.2.2. The High Court also examined the evidence of attesting
witnesses PW-2 Shri Urvinder S. Kohli and
PW-3 Major General Manjit
Ahluwalia, who deposed that the testatrix did not discuss the contents of
the Will with them nor did they question her about the same; and that
after they had arrived at the residence of testatrix, she went ahead to
write something more on the Will before signing it. The High Court
observed that from their testimonies too, nothing was proved if the testatrix
understood the contents of the document in question and said,-
“ 33. Even from the evidence of attesting witnesses i.e. PW2 and
PW3 it can’t be said that testatrix had put her signatures on the
Will Ex. PW1/H after understanding its contents or that while
signing she was aware of its contents.”
17.2.3. Proceeding further, the High Court also took note of the
statement of the respondent No. 1 that the testatrix was not even 10th
pass; and also referred to the statement of the appellant that she was
not aware of the educational qualification of her mother but her mother
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could read and write in the English language. The High Court referred
to the fact that the testatrix was not computer literate and had no legal
knowledge; and the language used in the Will showed that the same was
drafted by a lawyer. The High Court observed that no evidence was led
in as to who drafted and typed the Will Ex. PW1/H and considered the
same to be a suspicious circumstance with reference to the decision of
this Court in Smt. Jaswant Kaur (supra). The High Court also took into
account the feature that the document in question was partly typed and
partly handwritten with no plausible explanation for the same and found
that the document was not prepared in one sitting. Thus, after thorough
analysis, the High Court concluded that from the evidence led in by the
appellant, it cannot be said that the testatrix had understood the typed
portion or that the same was read over to her before she put her signatures
on the Will. Accordingly, the High Court affirmed the findings of the
Trial Court in regard to such a suspicious circumstance while observing
and finding as under: –
“35. …The Will Ex. PW1/H is partly typed and partly hand written
i.e. opening and closing para of the Will Ex. PW1/H. The evidence
shows that the Will Ex. PW1/H was also not prepared in one
sitting. The first and last para of Will Ex. PW1/H is in the
handwriting of testatrix. The rest of the Will Ex. PW1/H is typed
one. No explanation has been given in evidence as to why the
Will
is partly handwritten and partly typed. During arguments,
learned counsel for appellant has submitted that first and last para
are handwritten so as to give more weightage to the Will in question.
However, the reasoning given is not understandable. Further, no
evidence is led by the appellant to show from where the Will in
question was got typed. The first para of Will in question gives the
name and other details of testatrix and last para is the closing
para of the Will in question. The typed portion gives the details of
alleged bequeath in the Will Ex. PW1/H whereby major portion
has been given to the appellant and one floor as per choice of the
appellant is alleged to have been bequeathed in favour of
respondent No. 2. Reading the evidence led by the appellant it
can’t be said that the testatrix had understood the typed portion or
same was read over to her before she had put her signatures on
the Will Ex. PW1/H. The learned ADJ has rightly held the above
as the suspicious circumstance…..”
KAVITA KANWAR v. MRS. PAMELA MEHTA & ORS.
[DINESH MAHESHWARI, J.]
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17.3. The High Court thereafter examined the bequeathing
contents of the Will in question and observed that nothing was available
in the petition or evidence of the appellant as to why the major portion of
immovable property was given to her though she was not staying with
the testatrix for about 20-22 years and it was not her case that she was
looking after the testatrix who was a cancer patient. On the other side
of the picture, the High Court noticed that the widowed daughter of the
testatrix (respondent No. 1 herein) was, at the relevant time, living on
the first floor of the house where testatrix was residing; and, as per the
evidence on record, respondent No. 1 was looking after her mother and
was taking her to Army Hospital. Having thus taken note of the overall
scenario and setup, the High Court found it rather inexplicable that the
respondent No. 1 was left at the mercy of the appellant; that in the Will
in question, no time limit was provided as to when the appellant would
construct the floors and about the nature and quality of the construction;
and that respondent No. 1 shall have to be dispossessed for the purpose
of the expected construction.
17.4. The High Court also dealt with another major factor
pertaining to this case that the appellant, the major beneficiary, indeed
played an active role in execution of the Will in question; and noticed
material contradictions in the testimonies of appellant and
her witness
PW-2. The High Court found that the appellant was unable to satisfy the
conscience of the Court in regard to such suspicious circumstance in the
following passages:-
 “40. Reading the Will in question, it is the appellant who is the
major beneficiary of the Will. The evidence on record shows that
she has also played an active role in the preparation of the alleged
Will. She was present when the Will in question was allegedly
executed. The attesting witness Urvinder S Kohli, PW-2 is very
well known to the appellant being her friend for the past 30 years.
He has deposed that he had known deceased through appellant
and later the appellant’s cousin’s son got married to his daughter
in the year 1994 and since 1994 he had visited testatrix only twice
or thrice on social occasions. Reading his evidence it can’t be
said that he was close to the testatrix. In these circumstances,
testatrix could not have called him of her own for attesting the
Will Ex.PW1/H. Though in the evidence, appellant has deposed
that her mother i.e., testatrix had called the said witnesses whereas
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the witness PW2 has deposed that on 18.5.2003, he was called
by the appellant who told him to come to her mother’s house on
20.5.2003 as her mother wanted to executed the Will.
41. The evidence on record shows that appellant has taken a
prominent part in execution of Will Ex.PW1/H which confers on
her a substantial benefit worth crores of rupees. This itself is a
big suspicious circumstance as has been held by Supreme Court
in Niranjan Umesh Chandra Joshi vs. Mridula Jyoti Rao: 2007 (1)
AD SC 477. It has also been held by Supreme Court in Surinder
Pal vs. Saraswati Arora: (1974) 2 SCC 600 that where propounder
takes prominent part in the execution of Will which confers on
him a substantial benefit that is itself one of the suspicious
circumstance which he must remove by clear evidence. In the
present case no evidence is led by appellant to satisfy the
conscience of the court to clear the aforesaid suspicious
circumstance existing at the time of making of Will Ex.PW1/H.
The propounder was required to remove the doubts by clear and
satisfactory evidence.”
17.5. Turning on to the respondent No. 2 (son of the testatrix), the
High Court found that absolutely no reason was provided in the Will for
excluding him from the said immovable property and for limiting his benefit
under the Will to the balance amount in the savings bank account of the
testatrix. The High Court observed that though the appellant had deposed
that there were strained relations between the
testatrix and respondent
No. 2 but, on the contrary, the witness PW-3 Major General Manjit
Ahluwalia, son of sister of the testatrix, as also respondent No. 1 had
deposed that their relations, in fact, were satisfactory. The High Court
again referred to the documentary evidence as regards regular maintaining
of good relations between the testatrix and her son, like those of birthday
card and the family photographs, and observed that if at all there were
strained relations, the testatrix would not have even bequeathed any
amount to her son. Again, after a thorough analysis of the evidence on
record, the High Court found that there was no sufficient evidence of
strained relations between the testatrix and her son to such an extent
that she would have excluded him from her immovable property. Hence,
the exclusion of respondent No. 2 from bequeath was also taken to be
that of a grave suspicious circumstance casting doubt on the genuineness
of the Will in question. The High Court, inter alia, observed,-
KAVITA KANWAR v. MRS. PAMELA MEHTA & ORS.
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“46. There is no evidence coming forth to explain the suspicious
circumstance of excluding respondent no.3 from bequeath of the
immovable property. As noted above, there is no evidence that
deceased had understood the contents of the Will Ex.PW1/H
before signing it. In this background, exclusion of respondent no.3
is also a grave suspicious circumstance which has also remained
unexplained. The same cast doubt as to the genuineness of Will
Ex.PW1/H.”
17.6. Yet further, the High Court also noticed that though
respondent No. 1 resided only one floor above the testatrix and was also
maintaining good relations with her, but only the appellant was called at
the time of execution of the Will and no reason was provided for not
calling the respondent No. 1. That apart, the High Court also took note
of the fact that respondent No. 1 was made aware of the execution of
the Will only after three years from the date of its execution. The execution
of the Will in secrecy, without informing the other legal heirs, and without
affording explanation for such an act, was also considered as another
unexplained suspicious circumstance.
17.7. The High Court also referred to various contradictions in
the testimonies of the appellant and the said two attesting witnesses on
the material aspects concerning the execution of Will by testatrix,
particularly as to how the handwritten portion was scribed on the
document and as regards discussion
concerning the contents of the
document; and found such contradictions to be serious in nature, creating
doubt about the execution of Will Ex. PW1/H in accordance with law.
After examining the relevant parts of evidence, the High Court observed
and found as under:-
“48. Further, there are serious contradictions in the testimony of
attesting witnesses i.e. PW2 and PW3 and that of appellant on
material aspects pertaining to the execution of the Will. In affidavit
Ex. P1 the appellant has stated that the testatrix had brought out
a partly typed Will and further wrote in her own hand the opening
and closing paragraphs of the Will Ex. PW1/H. In cross-
examination, she has stated that she does not know whether she
had written on the Will or something else. Sh. Urvinder S. Kohli
PW2 has stated that the handwritten portion on the Will Ex. PW1/
H was written by the testatrix of her own. Sh. Manjit Ahluwalia
PW3 has stated in cross-examination that the testatrix was having
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one draft out of which she copied something in her own handwriting
on Will Ex. PW1/H. All the three witnesses have deposed
differently as to how handwritten portion was written on Will Ex.
PW1/H. There is also contradiction as regards discussion about
the contents of Will Ex. PW1/H by testatrix with the attesting
witnesses. The appellant has stated in her cross-examination that
her mother had discussed the contents of Will with the witnesses
whereas both the attesting witnesses have denied that the contents
of Will were discussed by the testatrix. PW2 has also stated in
the cross-examination that he even did not question the testatrix
on the same. There is also contradiction about the manner of
taking out of Will at the time the witnesses had reached the house
of testatrix. The attesting witness PW2 has deposed that the Will
was not produced before him when he was present with the
testatrix and appellant. According to him, when PW3 had come,
only then the Will was produced. On the other hand, Sh. Manjit
Ahluwalia PW3 has deposed that when he had reached the house
of testatrix Will Ex. PW1/H had already been taken out by the
testatrix before he reached her house. The above contradictions
are serious in nature and create a doubt about the execution of
Will Ex. PW1/H in accordance with law.”
17.8. Taking into comprehension the aforesaid observations and
findings, it is apparent that the High Court, after an independent analysis
of the evidence on record,
concurred with the major findings of the Trial
Court as regards various suspicious circumstances which remained
unexplained and which operated against genuineness of the document
propounded as Will of the mother of the parties. However, that was not
the end of the matter because another doubtful factor was also analysed
by the High Court as regards payment of a sum of Rs. 25,000/- by the
appellant to the daughter of the attesting witness PW-3 Major General
Manjit Ahluwalia, through cheque from an account jointly maintained in
the name of testatrix and the appellant but, after the death of the testatrix.
The contesting respondents claimed that the aforesaid payment was
made in order to garner favour from the attesting witness PW-3. In this
regard, the stand of the appellant had been that such an amount was
paid not only to the daughter of PW-3 but also to the daughter of
respondent No. 1 and to the sons of appellant as the testatrix wanted to
gift the said amount to them. Interestingly, in order to buttress this stand
of the appellant that the amount was paid to the daughter of PW-3 as
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per the wishes of testatrix, the learned counsel for the appellant before
the High Court referred to the alleged third page of the Will. After noticing
such a submission made on behalf of the appellant with reliance on the
alleged third page of the Will, the High Court referred to the very same
proceedings of the Trial Court which we have referred in detail
hereinbefore, where the respondents wanted to produce the alleged third
page of the Will but the appellant denied the very existence of any such
third page of the Will in question. The High Court found that the said
third page of the Will was never produced before the Trial Court; and
observed that even if existing, the alleged third page of the Will does not
dispel the suspicious circumstances. This part of the discussion and
observations of the High Court, in paragraph 49 of the impugned judgment,
could be usefully extracted as under: –
“49. It has also come in the evidence that Rs. 25000/- was paid
by the appellant to the daughter of the attesting witness Major
General Manjit Ahluwalia PW3 through cheque Ex. R3W1-C from
account jointly in the name of testatrix and the appellant after the
death of testatrix. The stand of respondent No. 2 and 3 is that the
aforesaid payment was made in order to get favour from the
attesting witness PW3 as such his evidence is not reliable. On the
other hand, the stand of the appellant is that the said amount was
not only paid to
the daughter of PW3 but was also paid to the
daughter of respondent No. 2 and to the son of appellant as the
deceased/testatrix wanted to gift the said amount to them. In
support of the stand, learned counsel for appellant has referred to
the alleged third stage of Will in question. It may be mentioned
that the alleged third page of the Will Ex.PW1/H is never produced
by the appellant. Rather, when the respondent No. 3 had moved
an application for production of the alleged third page of the Will,
appellant had denied the existence of said page. The third page of
the Will is never proved before the learned ADJ. Even assuming
the alleged third page exists, the same does not dispel the suspicious
circumstances as have been noted above. In these circumstances,
the contention of the appellant that the alleged third page of Will
Ex. PW1/H proves its validity has no force.”
17.9. After taking note of the aforesaid inexplicable features,
unusual circumstances and unreliability of the witnesses, and finding no
fault or malafide in the respondent No. 1 contesting the matter at the
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later stage, the High Court in its impugned judgment dated 27.06.2014,
while concurring with the findings of the Trial Court, dismissed the appeal
and held that mere signature on the Will by the testatrix was not sufficient
to prove that the said Will was duly executed after understanding the
contents thereof. The High Court concluded on the matter as follows:-
“51. In view of above discussion, the findings of learned ADJ that
Will Ex.PW1/H is surrounded by various suspicious circumstances
which has remained unexplained and the possibility of aforesaid
Will not duly executed by the deceased after understanding its
contents are confirmed. No illegality or perversity is seen in the
findings given by the learned ADJ. No case is made out for
interference with the impugned judgment.”
RIVAL CONTENTIONS
The Appellant
18. Being aggrieved by the judgment so passed by the High Court
dismissing her appeal and maintaining rejection of her prayer for grant
of probate, the petitioner-appellant has preferred this appeal by special
leave. Assailing the impugned judgments, learned counsel for the appellant
has strenuously contended that due execution of the Will as per the
requirements of the Succession Act having been proved in accordance
with procedure prescribed by the Evidence Act; and no cogent reason
or circumstance having been established on record against the
genuineness of the contested Will, a clear case for grant of probate is
made out but the Trial Court as
also the High Court have proceeded to
reject the prayer of the appellant on entirely baseless considerations
while doubting the Will on the so-called suspicious circumstances, though
there is none.
18.1. Elaborating on her submissions, the learned counsel for the
appellant has submitted that a Will has to be proved like any other
document but, it has to satisfy the requirements ofSection 63 of the
Succession Act in the manner that for due execution, the testator has to
sign or affix his mark on the Will or it has to be signed by some other
person in the presence of testator and under his direction; and the Will
has to be attested by two or more witnesses, each of whom has seen
such signing or affixation by testator or by other person acting as per the
directions of the testator. Further to that, as per Section 68 of the Evidence
Act, at least one attesting witness has to be examined in proof of a Will.
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The learned counsel would submit that in the present case, all the
requirements of Section 63 of the Succession Act are duly satisfied in
the execution of the Will in question; and the same has been duly proved
with examination of both the attesting witnesses before the Court as
PW-2 and PW-3. The learned counsel has contended that the appellant
having duly discharged her burden and nothing concrete having been
brought on record so as to create any legitimate suspicion, there is no
reason to deny probate as prayed for.
18.2. While asserting the case of the appellant for grant of probate
in relation to the Will in question, the learned counsel has, in the first
place, questioned the standing and stance of the respondents in attempting
to raise certain issues about the Will in question.
18.2.1. As regards respondent No. 1, learned counsel for the
appellant has contended that she has no locus either to lead evidence or
to doubt the validity and genuineness of the Will for the reason that she
did not file any objections before the Trial Court and as such, inevitably,
had accepted the execution of the Will in question as being the last
testament of her mother. The learned counsel would submit that the
applications filed by respondent No. 1, for recall of the appellant for the
purpose of further cross-examination and for permission to file written
statement were rejected by the Trial Court and she did not challenge the
orders so passed against her and thereby, such orders have attained
finality. The learned counsel has submitted, with reference to Section
268 of Succession Act with Order VIII Rule 10 of CPC as also Order
XIV Rule 1 (6) read with Order XV Rule 2 CPC, that the status of
respondent No. 1 remains to be that of a defendant who is not at issue
with the plaintiff; and in the given circumstances, all the suggestions
sought to be made on her behalf deserve no consideration. With
reference to the decision in Bachhaj Nahar v. Nilima Mandal and
Anr.: (2008) 17 SCC 491, the learned counsel has submitted that
evidence led in without pleadings by the respondent No. 1 remains
inadmissible. The learned counsel has also submitted that it is for the
first time before this Court that a new plea of fact was introduced by the
respondent No. 1 in the written submissions as regards the status of
relationship between the respondent No. 1 and her mother; and that the
provisions under Order VI Rule 7 of CPC prevent introduction of new
grounds of claim except by way of amendment. The learned counsel
has emphatically argued that from the very beginning, the premise of
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respondent No. 1 had been that she admitted the genuineness of the Will
and therefore, a stand contrary to the same cannot now be raised by her
before this Court.
18.2.2. As regards respondent No. 2, learned counsel for the
appellant has referred to the objections filed by him and has submitted
that most of the objections being totally baseless and untenable, were
clearly rejected by the Trial Court like those suggested as if the Will in
question was forged and fabricated or those seeking to question the
disposing state of mind of the testatrix. The learned counsel has also
submitted that the respondent No. 2 went on to suggest ancestral character
of the property in question and the Trial Court has rightly rejected such
objections too with reference to the decision in Chiranjilal (supra)
because title of the property is not to be decided in probate proceeding.
The learned counsel has further submitted that the suggestions by this
respondent about his cordial relations with the testatrix have not been
established on record and a few photographs and letters produced by
him do not establish that he was in thick of relations with the testatrix;
rather, as per the evidence on record, he remained away and detached
from the family and he was not even aware about the ailment of the
testatrix. Thus, according to the learned counsel, even the objections of
respondent do not make out a case of any such suspicious circumstance
for which the genuineness of the Will in
question may be doubted.
18.3. As regards the testimonies of the two attesting witnesses,
the learned counsel would submit that they have clearly proved the
material facts relating to due execution of Will and attestation by them;
and the doubts sought to be thrown upon them with reference to some
minor and natural discrepancies, or their acquaintance with the appellant
are of no consequence. The learned counsel has contended that the Will
was executed in the year 2003 while the testimonies of the witnesses
were recorded only in the year 2008 and therefore, minor variations on
details as to who arrived first or what portion was written on the Will
etc., do not affect the substance of their evidence.
18.4. The learned counsel has referred to various decisions like
those in H. Venkatachala Iyengar (supra), Madhukar D. Shende v.
Tarabai Aba Shedage: (2002) 2 SCC 85; and Joyce Primrose Prestor
v. Vera Marie Vas: (1996) 9 SCC 324 to submit that though the initial
onus to prove the Will is on the propounder but once that burden is
discharged, any suspicion alone cannot form the foundation of judicial
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verdict; and any suggestion about suspicion ought to be examined by the
Court while guarding against conjectures and mere fantasy of a doubting
mind. The learned counsel has iterated the principles in the decisions
aforesaid that there ought to be real, germane and valid suspicious
features for which the propounded Will may be called in question, but
there had been no such feature or circumstance in the present case.
18.5. As regards the manner of execution of the Will in question,
the learned counsel has submitted that the ratio of Joyce Primrose Prestor
(supra), that greater degree of presumption arises in the case of a
“holograph” Will, is applicable to the present case too, where the
significant contents relating to the particulars of the testatrix and her
unequivocal bequeath, in the opening and concluding passages, were
duly written in her own hand by the testatrix.
18.6. While dealing with the suspicious circumstances taken into
consideration by the Trial Court and the High Court, the learned counsel
has submitted that the alleged circumstances were either non-existent,
or were not pleaded, or were not of any suspicion at all.
18.6.1. The learned counsel would submit that the circumstances
like the appellant being the major beneficiary; she playing an active role
in execution of the Will; exclusion of son from the benefit of estate; the
other daughter virtually not getting any share; and the manner of writing
of the Will were neither specifically pleaded nor they operate against the
genuineness of the Will in question. Further, according to the learned
counsel, the circumstances like non-information of execution of Will to
the legal heirs; vague contents of Will; and contradictions in the statements
of witnesses are, on the face of it, imaginary and conjectural and could
only be ignored.
18.6.2. The learned counsel has contended, with reference to the
decisions in Leela Rajagopal and Ors. v. Kamala Menon Cocharan
and Ors.: (2014) 15 SCC 570, Ved Mitra Verma v. Dharam Deo
Verma: (2014) 15 SCC 578; Mahesh Kumar v. Vinod Kumar and
Ors.: (2012) 4 SCC 387; Savithri and Ors. v. Karthyayani Amma
and Ors.: (2007) 11 SCC 621; Pentakota Satyanarayana and Ors.
v. Pentakota Seetharatnam and Ors.: (2005) 8 SCC 67; Uma Devi
Nambiar and Ors.v. T.C. Sidhan: (2004) 2 SCC 321; Ramabai
Padmakar Patil and Ors. v. Rukminibai Vishnu Vekhande and Ors.:
(2003) 8 SCC 537 and Rabindra Nath Mukherjee and Anr. v.
Panchanan Banerjee and Ors.: (1995) 4 SCC 459, that mere
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presence of the propounder/beneficiary of a Will at the time of its
execution; or exclusion of the natural heirs from any benefit; or
acquaintance of the propounder with any witness are not of such
suspicious circumstances as to create legitimate doubts on the
genuineness of the Will.
18.6.3. As regards the question of monetary benefits to the attesting
witnesses, it is maintained on behalf of the appellant that there had not
been any monetary benefit to PW-2; and monetary benefit to the daughter
of PW-3 has to be seen in the background that the said witness is a
Major General and was closely related to the testatrix; there is no
allegation as to the credibility of the said witness; and the frivolous doubt
is being raised on his credibility only where an amount of Rs. 25,000/-
‘out of love and affection’ has been given in the year 2006.
18.7. Thus, it is submitted that the Will in question is the genuine
last Will of the mother of parties; and the appellant being the executor,
may be granted probate as prayed for.
The respondent No. 2
19. While countering the submissions made on behalf of the
appellant, learned counsel for the respondent No. 2, son of testatrix who
had filed the objections and has consistently contested the matter, has
recounted the suspicious circumstances taken into account by the Trial
Court and the High Court and has contended that the appellant has utterly
failed to explain any of them and hence, the Will in question cannot be
said
to have been made by the testatrix after understanding the meaning
and purport of its contents.
19.1. In the forefront of arguments, learned counsel for the
respondent No. 2 has submitted that the appellant, who is admittedly the
major beneficiary of the disputed bequest, indeed played a prominent
role in execution of the Will in question and then, tried to deliberately
conceal this fact of her active role in making of the document. The
learned counsel has elaborated on these submissions with reference to
the pleadings and averments of the appellant at various stages of
proceedings where she consistently maintained that she ‘had role in
the making and execution’ of the Will in question. The learned counsel
has also referred to the statement of the appellant in the cross-examination
to the effect that the testatrix did not ask her to find witnesses to the Will
and that she might have called the witnesses to the Will on her own.
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These assertions of the appellant, according to the learned counsel, are
effectively contradicted by PW-2 Urvinder S Kohli, who maintained that
it was the appellant who, on 18.05.2003, asked him to come to the
testatrix’s house and thereupon he agreed to come on 20.05.2003. With
reference to the decision inH. Ventakachala Iyengar (supra),the learned
counsel has argued that when the propounder plays an active role in
execution of Will and gets major benefit thereunder, that itself is a
suspicious circumstance and the propounder must remove the suspicion
by clear and satisfactory evidence, which the appellant has failed to
adduce.
19.2. Further, the learned counsel for the respondent No. 2 has
referred to the other parts of the testimony of PW-2 Urvinder S Kohli to
submit that this witness was barely known to the testatrix whereas he
was close to the appellant for about 30 years. With reference to the
decision of this Court inRamchandra Rambux v. Champabai and Ors.:
AIR 1965 SC 354 and that of Delhi High Court in Rajesh Chand and
Ors. v. Dayawati and Ors.: ILR (1981) 2 Delhi 477, the learned
counsel has contended that closeness of attesting witness of the Will
with the propounder is itself a suspicious circumstance; and the appellant
has failed to explain this circumstance either.
19.3. The learned counsel for the respondent has further made
scathing remarks in relation to the bequest as proposed in the Will in
question
and has submitted that without any rhyme or reason, such unjust
and unreasonable distribution of the assets of the testatrix has been
proposed which was not likely to be made by the mother of parties,
particularly when she had nothing against her son and against the other
daughter.
19.3.1. The learned counsel would submit that in fact, the other
daughter (respondent No. 1) of the testatrix was a widow with an
unmarried daughter; and she had been given the first floor of the house
(which was the property of testatrix) for residence; and she was taking
care of testatrix, who was suffering from cancer. In the given
circumstances, there was no reason that testatrix would have left her
widowed and needy daughter at the mercy of the appellant with vague
and uncertain conditions of raising upper story construction by the
appellant, as found in the Will in question. The learned counsel would
also submit that the bequeath made by the testatrix could be limited to
her property alone and cannot include a property constructed by another
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person; that a property constructed using one’s own money will be the
exclusive property of that personand as such, the conditional bequest
made in the present case, to appear as if the respondent No. 1 was likely
to get some property, had, in fact, been sham and illusory. According to
the learned counsel, such wordings in the Will as also the payments and
handing over car to the daughter of respondent No. 1 seems to have
precluded her from contesting the matter in the first place but that does
not give any weight or support to the Will in question.
19.3.2. While relying on the same decisions and with reference to
the material on record, the learned counsel has submitted that respondent
No. 2, though having remained away because of his enlistment in the
Army, had always been in good terms with his parents; and there was
no reason that his mother, the testatrix, would have given him only a
pittance of amount in the bank while disinheriting him from the immovable
property.
19.3.3. The learned counsel has relied on the decision in Rani
Purnima Debi (supra)and has also referred to the decision in Ram
Piari v. Bhagwant and Ors.: AIR 1990 SC 1742 to submit that
disinheritance among heirs of equal degrees without providing any reason
for exclusion of daughter also amounts to a suspicious circumstance.
19.4. The learned counsel has also questioned the manner of
writing and executing the document in question. The learned counsel
has referred to the inconsistencies
in the depositions of the witnesses in
regard to the questions as whether the contents of the Will in question
were made known to the testatrix and whether the same were discussed
with the witnesses. The learned counsel would submit that the testatrix
was barely 10th standard pass and was, obviously not conversant with
such legal jargon as would appear in the body of the Will in question.The
appellant has attempted to say that she had no role in typing/scribing of
the document and as per the witnesses, the contents were not discussed
with them. In such a scenario, there remains another unexplained
suspicious circumstance, as to who had drafted the Will in question and
who prepared the alleged note for the testatrix wherefrom, she was to
write at the opening and closing parts of the Will. The learned counsel
has submitted that when the main part of the Will was typed, it is
questionable why the inconsequential portion was handwritten; and these
lacunas in the evidence of the appellant raises a possibility that the Will
was neither prepared nor understood by the testatrix. The learned counsel
KAVITA KANWAR v. MRS. PAMELA MEHTA & ORS.
[DINESH MAHESHWARI, J.]
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has referred to the decision in Krishan Dass Gupta v. The State &
Ors: 2012 SCC OnLine DEL 977
19.5. Another long deal of arguments by the learned counsel for
the respondent No. 2 has been with reference to the alleged third page
of the Will. The learned counsel has referred to the very same
proceedings in the Trial Court which we have recounted hereinbefore;
and has submitted that in the Trial Court, appellant consistently maintained
that there was no third page of the Will but when the issue of payment of
a sum of Rs. 25,000/- to the daughter of the attesting witness PW-3
cropped up before the High Court, such a payment was sought to be
justified with reference to the very same third page of the Will in question.
Such shifting stand of the appellant, according to the learned counsel,
gives rise to more suspicions; and it appears seriously questionable if the
Will in question was indeed the last Will of the testatrix and was executed
with the contents as desired by her.
The respondent No. 1
20. On the other flank of opposition, learned counsel for respondent
No. 1 has maintained that this respondent has all through disputed the
very execution of the Will by her mother; and the suspicious circumstances
having not been removed, the prayer for grant of probate has rightly
been rejected.
20.1. In the first place, learned counsel for respondent No. 1 has
vehemently countered the submissions that this respondent had
accepted
the claim of the appellant for probate of the Will in question and she is
not entitled to make the submissions in contest. The learned counsel has
referred to the facts that even if this respondent did not file her written
statement, she indeed led evidence rebutting the case of the appellant
and the Courts have returned concurrent findings that her contest was
neither an afterthought nor malafide. The learned counsel has referred
to the aforementioned decisions in H. Venkatachala Iyengar, Rani
Purnima Debi and Smt. Jaswant Kaur to submit that Probate Court is
a Court of conscience; and where the propounder is to satisfy the
conscience of the Court with removal of suspicious circumstances, the
respondent No 1, elder and widowed daughter of the testatrix, has every
right to make submissions to assist the Court in such an enquiry. Without
prejudice, the learned counsel has further submitted that even in a civil
case where right of filing written statement is closed, the defendant is
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not precluded from demonstrating that the evidence led by the plaintiff is
not sufficient to make out a case for grant of relief as prayed for. The
learned counsel has, inter alia, referred to Section 58 of the Evidence
Act; Order VIII Rule 5(2) and Order VIII Rule 10 CPC and has relied
on the decision in Balraj Taneja and Anr. v. Sunil Madan and Anr.:
(1999) 8 SCC 396. The learned counsel has also pointed out that
appellant never objected to the evidence of the respondent No. 1 and
while relying on the decision in Modula India v. Kamakshya Singh
Deo: (1988) 4 SCC 619, has contended that the submissions of
respondent No. 1 cannot be discarded.
20.2. The learned counsel has referred to the position of
respondent No. 1 and her relationship with the testatrix with the
submissions that respondent No. 1 is the eldest daughter of the testatrix,
being 10 years older to the appellant and three years older to the
respondent No. 2; that the testatrix being aware of her adverse
circumstances, had given her the first floor of the property (which is the
subject-matter of the present proceeding); that the relationship between
the testatrix and the respondent No. 1 had always been very good; that
testatrix being a cancer patient, the respondent No. 1 was taking her for
treatment to Army Hospital; that due to the physical proximity while
residing in the same building, the testatrix and the respondent No. 1 had
special bonds between them. In the given setup, according to
the learned
counsel, it seems quite unnatural that the testatrix would leave the
respondent No. 1 at the mercy of appellant with such uncertain
stipulations as contained in the contested Will.
20.3. Arguing further, the learned counsel has contended that
though the appellant has attempted to suggest that the respondent No. 1
was excluded from the first floor of the property in question but, there
had not been any reason for such exclusion. The learned counsel has
contended what has been created by the Will in question is only an illusory
and vague bequest in relation to the respondent No. 1 for: a) the bequest
to respondent No.1 is of a floor above the first floor, which is not in
existence; b) no time frame is provided within which the appellant may
choose to execute either of the two options and no corresponding option
is provided to respondent No.1 meaning thereby, that the bequest made
by virtue of the Will in favour of respondent No.1 has been indefinitely
postponed; c) the entire property is vested in the appellant immediately
upon the demise of the testatrix including the bequest made to respondent
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No. 1; and d) the nature and quality of the expected construction has not
been specified. According to the learned counsel, practically there is no
effective bequest in relation to the respondent No. 1 and there is no
reason for the testatrix adopting the course as suggested.
20.4. The learned counsel has relied on the decisions of this Court
in B. Venkatamuni v. C.J. Ayodhya Ram Singh & Ors. : (2006) 13
SCC 449; H. Ventakachala Iyengar; and Rani Purnima Debi (supra)
amongst others, to submit that the Probate Court can investigate into the
matter of a Will despite the fact that the signature found thereon has
been proved or ingredients of Section 68 of the Evidence Act has been
complied with. The learned counsel has referred to the definition of the
expression “suspicion” in P. Ramanatha Aiyar’s Advanced Law
Lexicon and has also relied upon thedecision in Indu Bala (supra) to
submit that suspicion permits the Court to realistically imagine any doubtful
or distrustful facet of a case; and in testamentary jurisdiction, the Courts
are permitted to ferret out doubtful circumstances, which cannot be
described as conjecture or surmise.
20.5. The learned counsel has again recounted various
circumstances, including manner of making of the Will and contradictions/
inconsistencies in the statements of the witnesses examined by the
appellant, which have been taken into account in the impugned judgments
and have also been
referred by the learned counsel for the respondent
No. 2; which need not be repeated. The learned counsel has also placed
before us a flow chart reflecting thirteen aspects of findings, including
those of suspicious circumstances, which have been returned concurrently
against the appellant and has contended that no case for interference
with such concurrent findings is made out. The counsel has additionally
relied on the decision in Apoline D’Souza v. John D’Souza: AIR 2007
SC 2219.
20.6. In another line of arguments, learned counsel for the
respondent No. 1 has contended that the Will in question cannot have
greater sanctity only because the opening and closing parts are
handwritten; rather it isstrange that the testatrix chose not to write the
main bequest by hand and then, the handwritten portion of the Will in
question is placed in a squeezed manner and is not attested by any witness.
The learned counsel would submit that such interlineations only go to
show that additions have been made in the Will subsequent to its execution
and failure to assign the reason behind such a course is fatal to the case
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put up by the propounder. The learned counsel has relied on the decision
in Dayananadi v. Rukma D. Suvarna & Ors.: (2012) 1 SCC 510 in
support of these contentions.
21. We have bestowed anxious consideration to the rival
submissions with reference to the law applicable and have also scanned
through all the records pertaining to this case, including the records of
the Trial Court and the High Court.
WILL – PROOF AND SATISFACTION OF THE COURT
22. As noticed, the basic point for determination in this appeal is
as to whether the Trial Court and the High Court were justified in declining
to grant probate in relation to the Will dated 20.05.2003 as prayed for.
Obviously, a just and proper determination of this point would revolve
around the legal principles applicable as also the relevant factual aspects
of the case. Before entering into the factual aspects and the questions in
controversy, appropriate it would be to take note of the applicable legal
provisions and principles concerning execution of a Will, its proof, and its
acceptance by the Court.
23. It remains trite that a Will is the testamentary document that
comes into operation after the death of the testator. The peculiar nature
of such a document has led to solemn provisions in the statutes for making
of a Will and for its proof in a Court of law. Section 59 of the Succession
Act provides that every person of sound mind, not being a minor, may
dispose of his property by Will. A Will or any portion
thereof, the making
of which has been caused by fraud or coercion or by any such importunity
that has taken away the free agency of the testator, is declared to be
void under Section 61 of the Succession Act; and further, Section 62 of
the Succession Act enables the maker of a Will to make or alter the
same at any time when he is competent to dispose of his property by
Will. Chapter III of Part IV of the Succession Act makes the provision
for execution of unprivileged Wills (as distinguished from privileged Wills
provided for in Chapter IV) with which we are not concerned in this
case.
23.1. Sections 61 and 63 of the Succession Act, relevant for the
present purpose, could be usefully extracted as under: –
“61. Will obtained by fraud, coercion or importunity.- A Will
or any part of a Will, the making of which has been caused by
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fraud or coercion, or by such importunity as takes away the free
agency of the testator, is void.
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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
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 witness, 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.”
23.2. Elaborate provisions have been made in Chapter VI of the
Succession Act (Sections 74 to 111), for construction of Wills which, in
their sum and substance, make
the intention of legislature clear that any
irrelevant misdescription or error is not to operate against the Will; and
approach has to be to give effect to a Will once it is found to have been
executed in the sound state of mind by the testator while exercising his
own free will. However, as per Section 81 of the Succession Act, extrinsic
evidence is inadmissible in case of patent ambiguity or deficiency in the
Will; and as per Section 89 thereof, a Will or bequest not expressive of
any definite intention is declared void for uncertainty. Sections 81 and 89
read as under:-
“81. Extrinsic evidence inadmissible in case of patent
ambiguity or deficiency.- Where there is an ambiguity or
deficiency on the face of a Will, no extrinsic evidence as to the
intentions of the testator shall be admitted.
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89. Will or bequest void for uncertainty.- A Will or bequest
not expressive of any definite intention is void for uncertainty.”
Moreover, it is now well settled that when the Will is surrounded
by suspicious circumstances, the Court would expect that the legitimate
suspicion should be removed before the document in question is accepted
as the last Will of the testator.
23.3. As noticed, as per Section 63 of the Succession Act, the Will
ought to be attested by two or more witnesses. Hence, any document
propounded as a Will cannot be used as evidence unless at least one
attesting witness has been examined for the purpose of proving its
execution, if such witness is available and is capable of giving evidence
as per the requirements of Section 68 of the Evidence Act, that reads as
under: –
“68. 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 provisions
of the Indian Registration Act, 1908 (16 of 1908), unless its
execution by the person by whom it purports to have been executed
is
specifically denied.”
24. We may now take note of the relevant principles settled by
the consistent decisions in regard to the process of examination of a Will
when propounded before a Court of law.
24.1. In the case of H. Venkatachala Iyengar (supra), a 3-Judge
Bench of this Court traversed through the vistas of the issues related
with execution and proof of Will and enunciated a few fundamental
guiding principles that have consistently been followed and applied in
almost all the cases involving such issues. The synthesis and exposition
by this Court in paragraphs 18 to 22 of the said decision could be usefully
reproduced as under:-
“18. What is the true legal position in the matter of proof of wills?
It is well known that the proof of wills presents a recurring topic
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for decision in courts and there are a large number of judicial
pronouncements on the subject. The party propounding a will or
otherwise making a claim under a will is no doubt seeking to prove
a document and, in deciding how it is to be proved, we must
inevitably refer to the statutory provisions which govern the proof
of documents. S. 67 and 68, Evidence Act are relevant for this
purpose. Under S. 67, if a document is alleged to be signed by any
person, the signature of the said person must be proved to be in
his handwriting, and for proving such a handwriting under Ss. 45
and 47 of the Act the opinions of experts and of persons acquainted
with the handwriting of the person concerned are made relevant.
Section 68 deals with the proof of the execution of the document
required by law to be attested; and it provides that such a document
shall not be used as evidence until one attesting witness at least
has been called for the purpose of proving its execution. These
provisions prescribe the requirements and the nature of proof
which must be satisfied by the party who relies on a document in
a Court of law. Similarly, Ss. 59 and 63 of the Indian Succession
Act are also relevant. Section 59 provides that every person of
sound mind, not being a minor, may dispose of his property by will
and the three illustrations to this section indicate what is meant by
the expression “a person of sound mind” in the context. Section
63
requires that the testator shall sign or affix his mark to the will
or it shall be signed by some other person in his presence and by
his direction and that the signature or mark shall be so made that
it shall appear that it was intended thereby to give effect to the
writing as a will. This section also requires that the will shall be
attested by two or more witnesses as prescribed. Thus the
question as to whether the will set up by the propounder is
proved to be the last will of the testator has to be decided
in the light of these provisions. Has the testator signed the
will? Did he understand the nature and effect of the
dispositions in the will? Did he put his signature to the will
knowing what it contained? Stated broadly it is the decision
of these questions which determines the nature of the
finding on the question of the proof of wills. It would prima
facie be true to say that the will has to be proved like any other
document except as to the special requirements of attestation
prescribed by S. 63 of the Indian Succession Act. As in the case
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of proof of other documents so in the case of proof of wills it
would be idle to expect proof with mathematical certainty. The
test to be applied would be the usual test of the satisfaction of the
prudent mind in such matters.
19. However, there is one important feature which distinguishes
wills from other documents. Unlike other documents the will
speaks from the death of the testator, and so, when it is propounded
or produced before a Court, the testator who has already departed
the world cannot say whether it is his will or not; and this aspect
naturally introduces an element of solemnity in the decision of the
question as to whether the document propounded is proved to be
the last will and testament of the departed testator. Even so, in
dealing with the proof of wills the Court will start on the same
enquiry as in the case of the proof of documents. The propounder
would be called upon to show by satisfactory evidence that the
will was signed by the testator, that the testator at the relevant
time was in a sound and disposing state of mind, that he understood
the nature and effect of the dispositions and put his signature to
the document of his own free will. Ordinarily when the evidence
adduced in support of the will is disinterested, satisfactory and
sufficient to prove the sound and disposing state of the testator’s
mind and his signature as required by law, Courts would be justified
in making a finding in favour of the propounder. In other words,
the onus on the propounder can be taken to be discharged
on proof of the essential facts just indicated.
20. There may, however, be cases in which the execution of
the will may be surrounded by suspicious circumstances.
The alleged signature of the testator may be very shaky and
doubtful and evidence in support of the propounder’s case that
the signature in question is the signature of the testator may not
remove the doubt created by the appearance of the signature; the
condition of the testator’s mind may appear to be very feeble and
debilitated; and evidence adduced may not succeed in removing
the legitimate doubt as to the mental capacity of the testator; the
dispositions made in the will may appear to be unnatural, improbable
or unfair in the light of relevant circumstances; or, the will may
otherwise indicate that the said dispositions may not be the result
of the testator’s free will and mind. In such cases the Court
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would naturally expect that all legitimate suspicions should
be completely removed before the document is accepted
as the last will of the testator. The presence of such
suspicious circumstances naturally tends to make the initial
onus very heavy; and, unless it is satisfactorily discharged,
Courts would be reluctant to treat the document as the last
will of the testator. It is true that, if a caveat is filed alleging the
exercise of undue influence, fraud or coercion in respect of the
execution of the will propounded, such pleas may have to be proved
by the caveators; but, even without such pleas circumstances may
raise a doubt as to whether the testator was acting of his own
free will in executing the will, and in such circumstances, it would
be a part of the initial onus to remove any such legitimate doubts
in the matter.
21. Apart from the suspicious circumstances to which we have
just referred in some cases the wills propounded disclose another
infirmity. Propounders themselves take a prominent part in
the execution of the wills which confer on them substantial
benefits. If it is shown that the propounder has taken a
prominent part in the execution of the will and has received
substantial benefit under it, that itself is generally treated
as a suspicious circumstance attending the execution of the
will and the propounder is required to remove the said
suspicion by clear and satisfactory evidence. It is in
connection
with wills that present such suspicious circumstances that decisions
of English Courts often mention the test of the satisfaction of
judicial conscience. It may be that the reference to judicial
conscience in this connection is a heritage from similar observations
made by ecclesiastical Courts in England when they exercised
jurisdiction with reference to wills; but any objection to the use of
the word ‘conscience’ in this context would, in our opinion, be
purely technical and academic, if not pedantic. The test merely
emphasizes that, in determining the question as to whether an
instrument produced before the Court is the last will of the testator,
the Court is deciding a solemn question and it must be fully satisfied
that it had been validly executed by the testator who is no longer
alive.
22. It is obvious that for deciding material questions of fact which
arise in applications for probate or in actions on wills, no hard and
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fast or inflexible rules can be laid down for the appreciation of the
evidence. It may, however, be stated generally that a
propounder of the will has to prove the due and valid
execution of the will and that if there are any suspicious
circumstances surrounding the execution of the will the
propounder must remove the said suspicions from the mind
of the Court by cogent and satisfactory evidence. It is hardly
necessary to add that the result of the application of these two
general and broad principles would always depend upon the facts
and circumstances of each case and on the nature and quality of
the evidence adduced by the parties. It is quite true that, as
observed by Lord Du Parcq in Harmes v. Hinkson, 50 Cal W N
895 : (AIR 1946 PC 156), “where a will is charged with suspicion,
the rules enjoin a reasonable scepticism, not an obdurate persistence
in disbelief. They do not demand from the Judge, even in
circumstances of grave suspicion, a resolute and impenetrable
incredulity. He is never required to close his mind to the truth”. It
would sound platitudinous to say so, but it is nevertheless true that
in discovering truth even in such cases the judicial mind must
always be open though vigilant, cautious and circumspect.”
(emphasis supplied)
24.2. In Rani Purnima Debi (supra), this Court referred to the
aforementioned decision in H. Venkatachala Iyengar and further
explained the principles which govern the proving of a Will as follows:-
“5. Before we
consider the facts of this case it is well to set out
the principles which govern the proving of a will. This was
considered by this Court in H. Venkatachala Iyengar v. B. N.
Thimmajamma, (1959) Supp (1) SCR 426: AIR 1959 SC 443. It
was observed in that case that the mode of proving a will did 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 S. 63 of the Indian Succession Act. The onus of
proving the will was on the propounder and in the absence of
suspicious circumstances surrounding the execution of the will
proof of testamentary capacity and signature of the testator as
required by law was sufficient to discharge the onus. Where,
however, there were suspicious circumstances, the onus would
be on the propounder to explain them to the satisfaction of the
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Court before the will could be accepted as genuine. If the caveator
alleged undue influence, fraud or coercion, the onus would be on
him to prove the same. Even where there were no such pleas
but the circumstances gave rise to doubts, it was for the
propounder to satisfy the conscience of the Court. Further,
what are suspicious circumstances was also considered in this
case. The alleged signature of the testator might be very shaky
and doubtful and evidence in support of the propounder’s case
that the signature in question was the signature of the testator
might not remove the doubt created by the appearance of the
signature. The condition of the testator’s mind might appear to be
very feeble and debilitated and evidence adduced might not
succeed in removing the legitimate doubt as to the mental capacity
of the testator; the dispositions made in the will might appear
to be unnatural, improbable or unfair in the light of relevant
circumstances; or the will might otherwise indicate that the
said dispositions might not be the result of the testator’s
free will and mind. In such cases, the Court would naturally
expect that all legitimate suspicions should be completely removed
before the document was accepted as the last will of the testator.
Further, a propounder himself might take a prominent part
in the execution of the will which conferred on him
substantial benefits. If this was so it was generally treated
as a
suspicious circumstance attending the execution of the
will and the propounder was required to remove the doubts by
clear and satisfactory evidence. But even when where there
suspicious circumstances and the propounder succeeded in
removing them, the Court would grant probate, though the will
might be unnatural and might cut off wholly or in part near
relations.”
(emphasis supplied)
24.3. In the case of Indu Bala Bose (supra), this Court again
said,-
“7. This Court has held that the mode of proving a Will does not
ordinarily differ from that of proving any other document except
to the special requirement of attestation prescribed in the case of
a Will by Section 63 of the Succession Act. The onus of proving
the Will is on the propounder and in the absence of suspicious
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circumstances surrounding the execution of the Will, proof of
testamentary capacity and the signature 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. Even where circumstances
give rise to doubts, it is for the propounder to satisfy the conscience
of the court. The suspicious circumstances may be as to the
genuineness of the signatures 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 suspicions should
be completely removed before the document is accepted as the
last Will of the testator. If the propounder himself takes a prominent
part in the execution of the Will which confers a substantial 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.
8 . Needless to say that any and every circumstance is
not a
“suspicious” circumstance. A circumstance would be
“suspicious” when it is not normal or is not normally
expected in a normal situation or is not expected of a normal
person.”
(emphasis supplied)
24.4. We may also usefully refer to the principles enunciated in
the case of Jaswant Kaur (supra) for dealing with a Will shrouded in
suspicion, as follows: –
“9. 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 the court’s
conscience and then the true question which arises for
consideration is whether the evidence led by the propounder
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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
offers a cogent and convincing explanation of the suspicious
circumstances surrounding the making of the will.”
(emphasis supplied)
24.5. In the case of Uma Devi Nambiar (supra), this Court
extensively reviewed the case law dealing with a Will, including the
Constitution Bench decision of this Court in the case of Shashi Kumar
Banerjee and Ors. v. Subodh Kumar Banerjee and Ors.: AIR 1964
SC 529, and observed that mere exclusion of the natural heirs or giving
of lesser share to them, by itself, will not be considered to be a suspicious
circumstance. This Court observed, inter alia, as under:-
“15. Section 63 of the Act deals with execution of unprivileged
Wills. It lays down that 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. It further lays down that the Will
shall be attested by two or more witnesses, each of whom has
seen the testator signing or affixing his mark to the Will or has
seen some other person sign the Will, in the presence and by the
direction of the testator and each of the witnesses shall sign the
Will in the presence of the testator. Section 68 of the Indian
Evidence Act, 1872 (in short the “Evidence Act”) mandates
examination of one attesting witness in proof of a Will, whether
registered or not. The law relating to the manner and onus of
proof and also the duty cast upon the court while dealing with a
case based upon a Will has been examined in considerable detail
in several decisions of this Court ……. A Constitution Bench of
this Court in Shashi Kumar Banerjee’s case succinctly indicated
the focal position in law as follows: (AIR p. 531, para 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 63 of the Indian Succession 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 signature of the testator as
required by law is sufficient to discharge the onus. Where
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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 the 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 suspicion 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 substantial 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.”
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 earlier
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
circumstance specially in a case where the bequest has been made
in favour of an offspring. As held in P.P.K. Gopalan Nambiar v.
P.P.K. Balakrishnan Nambiar and Ors.: [1995] 2 SCR 585, it is
the duty of the propunder 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
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Will might be unnatural in the sense that it has cut off wholly or in
part near relations. ….. In Rabindra Nath Mukherjee and Anr. v
. Panchanan Banerjee (dead) by LRs. and Ors.: AIR 1995 SC
1684, 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.”
24.6. In the case of Mahesh Kumar (supra), this Court indicated
the error of approach on the part of the High Court while appreciating
the evidence relating to the Will as follows:-
“44. The issue which remains to be examined is whether the High
Court was justified in coming to the conclusion that the execution
of the will dated 10-2-1992 was shrouded with suspicion and the
appellant failed to dispel the suspicion? At the outset, we deem it
necessary to observe that the learned Single Judge misread the
statement of Sobhag Chand (DW3) and recorded something which
does not appear in his statement. While Sobhag Chand categorically
stated that he had signed as the witness after Shri Harishankar
had signed the will, the portion of his statement extracted in the
impugned judgment gives an impression that the witnesses had
signed even before the executant had signed the will.
45.
Another patent error committed by the learned Single Judge is
that he decided the issue relating to validity of the will by assuming
that both the attesting witnesses were required to append their
signatures simultaneously. Section 63(c) of the 1925 Act does not
contain any such requirement and it is settled law that examination
of one of the attesting witnesses is sufficient. Not only this, while
recording an adverse finding on this issue, the learned Single Judge
omitted to consider the categorical statements made by DW 3
and DW 4 that the testator had read out and signed the will in
their presence and thereafter they had appended their signatures.
46. The other reasons enumerated by the learned Single Judge
for holding that the execution of will was highly suspicious are
based on mere surmises/conjectures. The observation of the
learned Single Judge that the possibility of obtaining signatures of
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Shri Harishankar and attesting witnesses on blank paper and
preparation of the draft by Shri S.K. Agarwal, Advocate on pre-
signed papers does not find even a semblance of support from the
pleadings and evidence of the parties. If Respondent 1 wanted to
show that the will was drafted by the advocate after Shri
Harishankar and attesting witnesses had signed blank papers, he
could have examined or at least summoned Shri S.K. Agarwal,
Advocate, who had represented him before the Board of Revenue.
…..”
24.7. Another decision cited on behalf of the appellant in the case
of Leela Rajagopal may also be referred where this Court summarised
the principles that ultimately, the judicial verdict in relation to a Will and
suspicious circumstances shall be on the basis of holistic view of the
matter with consideration of all the unusual features and suspicious
circumstances put together and not on the impact of any single feature.
This Court said,-
“13. A will may have certain features and may have been executed
in certain circumstances which may appear to be somewhat
unnatural. Such unusual features appearing in a will or the
unnatural circumstances surrounding its execution will definitely
justify a close scrutiny before the same can be accepted. It is the
overall assessment of the court on the basis of such scrutiny; the
cumulative effect of the unusual features and circumstances which
would weigh with the court in the determination required to be
made by it. The
judicial verdict, in the last resort, will be on the
basis of a consideration of all the unusual features and suspicious
circumstances put together and not on the impact of any single
feature that may be found in a will or a singular circumstance that
may appear from the process leading to its execution or
registration. This, is the essence of the repeated pronouncements
made by this Court on the subject including the decisions referred
to and relied upon before us.”
24.8. We need not multiply the references to all and other
decisions cited at the Bar, which essentially proceed on the aforesaid
principles while applying the same in the given set of facts and
circumstances. Suffice would be to point out that in a recent decision in
Civil Appeal No. 6076 of 2009: Shivakumar & Ors. v.
Sharanabasppa & Ors., decided on 24.04.2020, this Court, after
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traversing through the relevant decisions, has summarised the principles
governing the adjudicatory process concerning proof of a Will as follows:–
“1. Ordinarily, 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. Alike the principles governing the proof of other
documents, in the case of Will too, the proof with mathematical
accuracy is not to be insisted upon.
2. Since as per Section 63 of the Succession Act, a Will is required
to be attested, it cannot be used as evidence until at least one
attesting witness has been called for the purpose of proving its
execution, if there be an attesting witness alive and capable of
giving evidence.
3. The unique feature of a Will is that it speaks from the death of
the testator and, therefore, the maker thereof is not available for
deposing about the circumstances in which the same was executed.
This introduces an element of solemnity in the decision of the
question as to whether the document propounded is the last Will
of the testator. The initial onus, naturally, lies on the propounder
but the same can be taken to have been primarily discharged on
proof of the essential facts which go into the making of a Will.
4. The case in which the execution of the Will is surrounded by
suspicious circumstances stands on a different footing. The
presence of suspicious circumstances makes the onus heavier on
the propounder and, therefore, in cases where the circumstances
attendant upon the execution of the document give rise to suspicion,
the propounder must remove all legitimate suspicions before the
document can be accepted as the last Will of the testator.
5. If a person challenging the Will alleges fabrication or alleges
fraud, undue influence, coercion et cetera 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 give rise to the doubt or
as to whether the Will had indeed been executed by the testator
and/or as to whether the testator was acting of his own free will.
In such eventuality, it is again a part of the initial onus of the
propounder to remove all reasonable doubts in the matter.
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6. A circumstance is “suspicious” when it is not normal or is ‘not
normally expected in a normal situation or is not expected of a
normal person’. As put by this Court, the suspicious features must
be ‘real, germane and valid’ and not merely the ‘fantasy of the
doubting mind.’
7. As to whether any particular feature or a set of features qualify
as “suspicious” would depend on the facts and circumstances of
each case. A shaky or doubtful signature; a feeble or uncertain
mind of the testator; an unfair disposition of property; an unjust
exclusion of the legal heirs and particularly the dependants; an
active or leading part in making of the Will by the beneficiary
thereunder et cetera are some of the circumstances which may
give rise to suspicion. The circumstances above-noted are only
illustrative and by no means exhaustive because there could be
any circumstance or set of circumstances which may give rise to
legitimate suspicion about the execution of the Will. On the other
hand, any of the circumstance qualifying as being suspicious could
be legitimately explained by the propounder. However, such
suspicion or suspicions cannot be removed by mere proof of sound
and disposing state of mind of the testator and his signature coupled
with the proof of attestation.
8. The test of satisfaction of the judicial conscience comes into
operation when a document propounded as the Will of the testator
is surrounded by suspicious circumstance/s. While applying such
test, the Court would address itself to the solemn questions as to
whether the testator had signed the Will while being aware of its
contents and after understanding the nature and effect of the
dispositions in the Will?
9. In the ultimate analysis, where the execution of a Will is shrouded
in suspicion, it is a matter essentially of the judicial conscience of
the Court and the party which sets up the Will has to offer cogent
and convincing explanation of the suspicious circumstances
surrounding the Will.”
CONTEST OF THE MATTER BY RESPONDENT NO.1
25. Having taken note of the principles which shall be the guiding
factor in dealing with the main questions posed in this matter, we may
examine the rival contentions. Before entering into the contentions
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relating to the suspicious circumstances concerning the Will in question,
it would be appropriate to deal with and dispose of a preliminary objection
of the learned counsel for the appellant as regards contest of the matter
by respondent No.1. As noticed, it has been submitted with reference to
Section 268 of the Succession Act, Order VIII Rule 10, Order XIV Rule
1(6) and Order XV Rule 2 CPC and the case of Bachhaj Nahar (supra)
that the status of respondent No.1 remains that of a defendant who has
not filed the written statement and who is not at issue; and hence, the
contentions urged on her behalf need no consideration and the evidence
led by her remains inadmissible. The submissions have been countered
with reference to the principles in H. Venkatachala Iyengar and Rani
Purnima Debi (supra) as also with reference to Order VIII Rule 5(2),
Order VIII Rule 10 CPC and the decision in Balraj Taneja (supra). It
is submitted that ultimately, the Probate Court is a Court of conscience
and the respondent No.1, being the elder daughter of the testatrix, has
every right to make submissions concerning the Will in question. In our
view, the submission made on behalf of the appellant seeking exclusion
of respondent No.1 remains totally baseless and could only be rejected.
25.1. The objection on behalf of the appellant does not stand in
conformity with the law declared in H. Venkatachala Iyengar and
Rani Purnima Debi (supra) and
scores of other decisions where this
Court has consistently held that the probate proceeding is ultimately a
matter of conscience of the Court; and irrespective of whether any plea
in opposition is taken or not, a propounder of Will is required to satisfy
the conscience of the Court with removal of all the suspicious
circumstances. By the very nature and consequence of this proceeding,
filing or non-filing of written statement or objections by any party pales
into insignificance and is of no effect. The probate proceeding is not
merely inter-partes proceeding but leads to judgment in rem and,
therefore, even when no one contests, it does not ipso facto lead to
grant of probate. The probate is granted only on proof of Will as also on
removal of suspicious circumstances, if there be any, to the final
satisfaction of the conscience of the Court.
7 The referred provisions of CPC read as under:-
Order VIII Rule 10:
“10.Procedure when party fails to present written statement called for by Court.-
Where any party from whom a written statement is required under rule 1 or rule 9 fails
to present the same within the time permitted or fixed by the Court, as the case may be,
the Court shall pronounce judgment against him, or make such order in relation to the
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25.2. In view of the above, reference to the provisions of Order
VIII Rule 10, Order XIV Rule 1(6) and Order XV Rule 27 remains
inapposite in relation to the proceeding before a Probate Court. We may
hasten to observe that even in a regular civil suit, merely for want of
written statement by a defendant, it is not necessary that a judgment
would always follow in favour of the plaintiff without proof of the basic
facts and without making out a clear case of right to relief. Similarly, the
decision in the case of Bachhaj Nahar (supra) that relief cannot be
granted in any Court without requisite pleadings has hardly any application
to the question at hand.
25.3. In the case of Balraj Taneja (supra), this Court examined
the provisions contained in sub-rule (2) of Rule 5 of Order XVIII of
CPC8 and said that,-
“11. Sub-rule (2) provides that if the defendant has not filed his
written statement, it would be lawful for the court to pronounce
judgment on the basis of the facts contained in the plaint. The rule
further proceeds to say that notwithstanding that the facts stated
in the plaint are treated as admitted, the court, though it can lawfully
pass the judgment, may before passing the judgment require such
fact to be proved….”
suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn
up.”
Order XIV Rule 1(6):
“1. Framing of issues.-
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(6) Nothing in this rule requires the Court to frame and record issues where the
defendant
at the first hearing of the suit makes no defence.”
Order XV Rule 2(1):
“2. One of several defendants not at issue.- (1) Where there are more defendants
than one, and any one of the defendants is not at issue with the plaintiff on any
question of law or of fact, the Court may at once pronounce judgment for or against
such defendants and the suit shall proceed only against the other defendants.
***
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***”
8 The referred provisions of CPC read as under:
Order VIII Rule 5(2)
“5. Specific denial.-
***
***
***
(2) Where the defendant has not filed a pleading, it shall be lawful for the Court to
pronounce judgment on the basis of the facts contained in the plaint, except as against
a person under a disability, but the Court may, in its discretion, require any such fact to
be proved.
***
***
***”
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Apart from the above, even as regards Rule 10 of Order XVIII,
this Court said,-
“27. In view of the above, it is clear that the court, at no stage,
can act blindly or mechanically. While enabling the court to
pronounce judgment in a situation where no written statement is
filed by the defendant, the court has also been given the discretion
to pass such order as it may think fit as an alternative. This is also
the position under Order 8 Rule 10 CPC where the court can
either pronounce judgment against the defendant or pass such
order as it may think fit.”
25.4. We need not multiply the authorities and discussion in this
regard. Suffice it to say that even in a regular civil suit, mere non-filing
of written statement by the defendant does not always lead to a judgment
in favour of the plaintiff. Noteworthy it is that regular civil suit usually
leads to a judgment inter-partes and not in rem. Even then, the
requirement of proof is not obviated. When the proceeding is solemn in
nature like that for probate, which leads to judgment in rem, it is beyond
the cavil thatmere non-filing of caveat or opposition is not decisive of the
matter. The propounder, in every matter for grant of probate, irrespective
of opposition or even admission by any party, is required to satisfy the
conscience of the Court, with removal of suspicious circumstances, if
any.
25.5. Apart from the aforementioned general principles, it is also
significant to notice in the present case that the respondent No.1 is none
other but the elder widowed daughter of testatrix regarding whom, some
semblance of right, via the construction to be carried out by the appellant,
is proposed in the Will in question. Looking to her status as elder widowed
daughter of the testatrix and looking to the stipulation in the Will in question,
it is evident that even without filing any written statement, the respondent
No.1 is entitled to show that the purported grant of some right to her is
illusory or is, in fact, no grant at all; and that her mother would not have
put her in such an insecure position as would be the result of the Will. As
a necessary corollary, her right to demonstrate the suspicious
circumstances is inherent in the very process envisaged for the Probate
Court. This is apart from the fact that the respondent No.1 has indeed
examined herself as a witness without objection by the appellant.
25.6. Thus, the objection against contest by the respondent No.1,
as raised on behalf of the appellant, deserves to be, and is hereby
rejected.
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SUSPICIOUS CIRCUMSTANCES CONCERNING THE
WILL IN QUESTION
26. While examining the relevant factual aspects and
circumstances of this case on the anvil of the principles aforesaid, we
may usefully observe that in the case of Leela Rajagopal (supra), this
Court found justified the concurrent findings on due execution of Will
and, in the context of facts, participation of the beneficiary in execution
of the Will and his acquaintance with one of the attesting witness were
found to be reasonably explained. However, significantly, in the said
case, this Court also cautioned against repeated reappreciation of
evidence, particularly in the appeal lodged only by way of special leave,
in the following words:-
“17. Before parting we would like to observe that the very fact
that an appeal to this Court can be lodged only upon grant of
special leave to appeal would indicate the highly circumscribed
nature of the jurisdiction of this Court. In contrast to a statutory
appeal, an appeal lodged upon grant of special leave pursuant to a
provision of the Constitution would call for highly economic
exercise of the power which though wide to strike at injustice
wherever it occurs must display highly judicious application thereof.
Determination of facts made by the High Court sitting as a
first appellate court or even while concurring as a second
appellate court would not be reopened unless the same
gives rise to questions of law that require a serious debate
or discloses
wholly unacceptable conclusions of fact which
plainly demonstrate a travesty of justice. Appreciation or
reappreciation of evidence must come to a halt at some stage of
the judicial proceedings and cannot percolate to the constitutional
court exercising jurisdiction under Article 136.”
(emphasis supplied)
26.1. In the present case too, the Trial Court has returned the
findings against the appellant after due appreciation of evidence and the
High Court has affirmed such findings after independent and thorough
examination of evidence. There appears hardly any scope for disturbing
such concurrent findings by entering into the process of reappreciation
of entire evidence yet, in view of the submissions made and in the interest
of justice, we have gone through the material on record to find if there
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be any such perversity which might result in serious miscarriage of justice.
We find none.
27. As noticed, there has not been any question on the testamentary
capacity and soundness of mind of the testatrix; and her handwriting as
also signatures on the Will in question are also beyond controversy.
However, the Trial Court and the High Court have concurrently found
some such suspicious circumstances which are of material bearing and
which have remained unexplained. Put in a nutshell, the unexplained
suspicious circumstances so found are: (a) that appellant, the major
beneficiary, played an active role in execution of the Will in question and
attempted to conceal this fact before the Court; (b) that there had not
been any plausible reason for non-inclusion of the only son and other
daughter of the testatrix in the process of execution of the Will and for
excluding them from the major part of the estate in question; (c) that
there was no clarity about the construction supposed to be carried out
by the appellant; (d) that the manner of writing and execution of the Will
with technical and legal words was highly doubtful; and (e) that the
attesting witnesses were unreliable and there were contradictions in the
statements of the witnesses. Because of these major circumstances
coupled with various supplemental factors, the Trial Court and the High
Court felt dissatisfied on the root question as to whether the testatrix
duly
executed the Will in question after understanding its contents.
28. There is no doubt that any of the factors taken into account by
the Trial Court and the High Court, by itself and standing alone, cannot
operate against the validity of the propounded Will. That is to say that,
the Will in question cannot be viewed with suspicion only because the
appellant had played an active role in execution thereof though she is the
major beneficiary; or only because the respondents were not included in
the process of execution of the Will; or only because of unequal distribution
of assets; or only because there is want of clarity about the construction
to be carried out by the appellant; or only because one of the attesting
witnesses being acquaintance of the appellant; or only because there is
no evidence as to who drafted the printed part of the Will and the note
for writing the opening and concluding passages by the testatrix in her
own hand; or only because there is some discrepancy in the oral evidence
led by the appellant; or only because of any other factor taken into account
by the Courts or relied upon by the respondents. The relevant consideration
would be about the quality and nature of each of these factors and then,
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the cumulative effect and impact of all of them upon making of the Will
with free agency of the testatrix. In other words, an individual factor
may not be decisive but, if after taking all the factors together, conscience
of the Court is not satisfied that the Will in question truly represents the
last wish and propositions of the testator, the Will cannot get the approval
of the Court; and, other way round, if on a holistic view of the matter, the
Court feels satisfied that the document propounded as Will indeed signifies
the last free wish and desire of the testator and is duly executed in
accordance with law, the Will shall not be disapproved merely for one
doubtful circumstance here or another factor there.
29. Keeping the applicable principles in view, we may examine
the factors and circumstances which are suspicious in character and
their overall impact on the document in question.
29.1. While entering into the facts and circumstances related with
the Will, profitable it would be to recapitulate the background and the set
up in which the contested Will is said to have been executed. The
immovable property in question at No. D-179, Defence Colony, New
Delhi was originally of the ownership of father of the contesting parties,
husband of testatrix. The ground floor of this property was given in gift
to the appellant on 25.01.2001, whereas the first floor and the other
portion/s came to the testatrix by way of the Will of her husband dated
14.02.2001.
The husband of testatrix expired on 20.10.2002. The appellant,
married daughter of the testatrix, was admittedly living in a different
locality, that is, at Panchshila Park for 20-22 years, whereas son of the
testatrix, who was serving in Army, remained posted outside and was
lastly residing in Shimla. The testatrix was a cancer patient and was
under regular treatment in an Army Hospital at Delhi. Significantly, the
testatrix was residing at the said ground floor portion of the building in
question (which had already become property of the appellant by virtue
of the gift by her father). The respondent No.1, the widowed daughter
of the testatrix, was residing at the first floor of the same building with
her own daughter. Admittedly, the said first floor of the house was the
property of testatrix by virtue of the Will of her husband. It is not a
matter of much dispute that respondent No.1, while living in the same
building, was taking care of the testatrix and was even taking her to
Army Hospital for treatment.
29.2. In the given set-up, a basic question immediately crops up
as to what could be the reason for the testatrix being desirous of providing
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unequal distribution of her assets by giving major share to the appellant
in preference to her other two children. The appellant has suggested
that the parents had special affection towards her. Even if this suggestion
is taken on its face value, it is difficult to assume that the alleged special
affection towards one child should necessarily correspond to repugnance
towards the other children by the same mother. Even if the parents had
special liking and affection towards the appellant, as could be argued
with reference to the gift made by the father in her favour of the ground
floor of the property in question, it would be too far stretched and unnatural
to assume that by the reason of such special affection towards appellant,
the mother drifted far away from the other children, including the
widowed daughter who was residing on the upper floor of the same
house and who was taking her care. In the ordinary and natural course,
a person could be expected to be more inclined towards the child taking
his/her care; and it would be too unrealistic to assume that special love
and affection towards one, maybe blue-eyed, child would also result in a
person leaving the serving and needy child in lurch. As noticed, an unfair
disposition of property or an unjust exclusion of the legal heirs, particularly
the dependants, is regarded as a suspicious circumstance. The appellant
has failed to assign even a wee bit reason for which
the testatrix would
have thought it proper to leave her widowed daughter in the heap of
uncertainty as emanating from the Will in question.Equally, the suggestion
about want of thickness of relations between the testatrix and her son
(respondent No.2) is not supported by the evidence on record. The facts
about the testatrix sending good wishes on birthday to her son and joining
family functions with him, even if not establishing a very great bond
between the mother and her son, they at least belie the suggestion about
any strain in their relations. Be that as it may, even if the matter relating
to the son of testatrix is not expanded further, it remains inexplicable as
to why the testatrix would not have been interested in making adequate
and concrete provision for the purpose of her widowed daughter
(respondent No.1).
29.3. The aforesaid factor of unexplained unequal distribution of
the property is confounded by two major factors related with making of
the Will in question: one, the active role played by the appellant in the
process; and second, the virtual exclusion of the other children of testatrix
in the process. As noticed, an active or leading part in making of the Will
by the beneficiary thereunder has always been regarded as a
circumstance giving rise to suspicion but, like any other circumstance, it
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could well be explained by the propounder and/or beneficiary. In the
present case, it is not in dispute that out of the three children of testatrix,
the appellant alone was present at the time of execution of the Will in
question on 20.05.2003. As noticed, at the relevant point of time, the
appellant was admittedly living away and in a different locality for about
20-22 years, whereas testatrix was residing at the ground floor of the
building and the respondent No.1 was at the first floor. Even if we leave
aside the case of the respondent No.2 who was living in Shimla, there
was no reason that in the normal and ordinary course, the testatrix would
not have included the respondent No.1 in execution of the Will in question,
particularly when she was purportedly making adequate arrangements
towards the welfare of respondent No.1. In other words, if the Will in
question was being made without causing any prejudice to the respondent
No.1, there was no reason to keep her away from this process.
Admittedly, the Will in question was not divulged for about three years.
Therefore, the added feature surrounding the execution of the Will had
been of unexplained exclusion of the respondent No.1 from the process.
29.4. Apart from the above, active participation of the appellant
in making of the Will in question cannot be left aside as one of the minor
factors for the reason that the appellant indeed attempted to project a
face of innocence by suggesting that the
testatrix did not discuss the Will
with her; that she was not aware as to who drafted the Will and where
was it typed; and that she came to know about the Will only on
20/21.05.2003. The appellant even stated that she did not call the witnesses
and that the testatrix herself might have called them. The witness PW-
2 has clearly contradicted the appellant by deposing that on 18.05.2003,
it was the appellant who invited him to her mother’s place. Thus, the
appellant, by her conduct of attempting to avoid the fact that she was
aware of making of Will, at least two days before its execution, has only
strengthened the suspicion arising because of her active participation in
execution of the Will while keeping the other children of the testatrix
excluded from the process.
29.5. Yet further, when we look at the Will in question itself and
examine the evidence adduced in regard to its execution, a few more
factors of suspicion emerge on the face of the record.
29.5.1. In regard to the contents and frame of the document in
question, learned counsel for the appellant has submitted that greater
degree of presumption that arises in the case of a “holograph” Will, as
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enunciated in the case of Joyce Primrose Prestor (supra), is applicable
to the present case too, where the significant contents relating to the
particulars of the person and bequeath, in the opening and concluding
passages, are duly written in her own hand by the testatrix. The
submissions so made on behalf of the appellant carry their own
shortcomings and demerits for the reason that the Will in question does
not directly answer to the description of a “holograph” Will because,
except for the opening and concluding passages, the entire Will is in
electronic print. The core of bequeathing part is also in print and not in
handwriting. In the case of Joyce Primrose Prestor, the entire Will was
handwritten, which is not the case here. Coupled with this remains the
admitted fact that even the handwritten portions are not of the diction of
the testatrix herself. She had only copied them from a note available
with her; and it is apparent from the document that such handwritten
portions are jotted down on the base lines drawn on the paper.
29.5.2. Thus, practically, it was a case of the testatrix merely
copying, on the dotted lines, the text already given to her. The sanctity
attached to a bequeath in the handwriting of the testator presupposes a
co-ordinated work of a free hand and a free mind, that is, the hand
writes what comes out of and given by the mind. In the present case, it
is difficult to be satisfied that what is
found written in hand by the testatrix
had been dictated by her own mind so as to make it an expression of her
own free will.
29.5.3. Moreover, the handwritten portions carry such formal and
legal expressions like “testament” and “set and subscribed my hand”,
which are the tools of the language employed by a person who is
conversant with legal format and requirements for execution of such a
document; and, ordinarily, a layperson like the testatrix is not expected
to be conversant with them. The printed portion also carries the
expressions like “codicil”, “give, devise and bequeath”, which are not
the expressions of a layperson. In the given circumstances, the want of
evidence as to who drafted the printed portion and the said note (for
copying on the dotted lines) becomes an added factor towards suspicion
as to whether the contents of the document in question are, in fact,
expressive of the actual desire of the testatrix towards succession of
her property.
29.5.4. This set of suspicious circumstances concerning the
process of execution of the document in question reaches to impenetrable
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finale by another major part of contradictions in oral evidence. The
appellant asserted in her testimony that the testatrix discussed the contents
of the Will with the attesting witnesses but both of them (PW-2 and PW-
3) consistently maintained that the contents were not discussed with
them. Thus, the appellant has failed to clear the doubts as to whether
what is found written in the document in question (both by hand and in
print) carry and convey the last wish of the testatrix.
30. Going yet further, when the core contents of the document in
question are examined, what we find is another load of several unclear
doubts and variety of uncertainties. We would hasten to observe that as
per Section 81 of the Succession Act, if there is an ambiguity or deficiency
on the face of a Will, no extrinsic evidence as to the intentions of the
testator shall be admitted. Thus, everything related with the true intention
of testatrix in the present case is to be gathered from the contents of the
Will in question itself.
30.1. As per the stipulation in Clause 1 of the bequeathing contents,
the first floor, terrace and all other properties except the ground floor
are given to the appellant with directions that she would carry out either
of the two options as deemed proper, namely, either to construct on the
terrace of the building such residential facility as may be permissible
under the Municipal Building Bye-laws at the time of demise of the
testatrix and to hand over
possession of the construction to respondent
No.1 while retaining terrace rights thereon; or in the alternative, to
demolish the entire building and carry out such construction as may be
permissible under the Municipal Building Bye-laws and become exclusive
owner thereof, save and except that the highest floor of such building
shall go to the respondent No.1, while again, the terrace rights shall
remain with the appellant. At the first blush, it may appear as if by these
stipulations, the testatrix was duly taking care of the interests of respondent
No.1. However, a closer look gives rise to manifold questions which
carry no plausible answer.
30.2. In the said stipulations, neither any time frame is provided
for the appellant to carry out the expected construction nor the nature,
quality and extent of such construction has been spelt out. It is also not
clear as to what would happen in the event of the appellant not carrying
out such construction, that is, as to whether she would stand divested of
the property already bequeathed?
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30.3. Apart from all the aforesaid aspects, the fundamental fact
remains that none of the stipulations could have been legally made by
the testatrix, nor they could be enforced in any proceedings. This is for
the reason that nowhere in the document any provision has been made
for carrying out such construction out of the estate of the testatrix. It
remains questionable if the testatrix was entitled to issue such directions
in the testament, which could have been executed only through the
property of the legatee and not from her own estate?
30.4. Yet further, the stipulation in the alternative in sub-clause
(b) of Clause 1 of the Will remains non-est on the face of the record.
Admittedly, the ground floor of the building in question is the property of
the appellant for having been gifted by her father. The direction for
demolition of the entire building as contained in the said sub-clause (b)
includes in it the direction to demolish the ground floor too. The testatrix
could not have given any such direction because that amounts to intrusion
into the property rights of the appellant in such a manner so as to direct
her to pull down her own property and lose value thereof and then, to
invest further by raising a new construction.
30.5. Moreover, whether as per sub-clause (a) or as per sub-
clause (b), if at all the appellant were to make any such construction as
expected, it would become her own property; and the
question would
yet remain as to how the respondent No. 1 shall enforce conveyance of
the appellant’s title to herself?
30.6. It remains trite that no one can convey a better title than
what he had; as expressed in the maxim: ‘Nemo dat quod non habet’9.
The testatrix never had any right over the property belonging to the
appellant and could not have conveyed to the respondent No.1 any
property which was of the ownership of the appellant or which might be
acquired or raised by the appellant in future by her own funds. On this
ground alone, the Will in question is required to be considered void as per
Section 89 of the Succession Act, when the principal bequeathing
stipulation in the Will suffers from uncertainty to the hilt.
30.7. A close look at the Will in question brings forth yet another
interesting, nay disturbing, feature of its contents. Whilst in the first
9 See, for example, Narinder Singh Rao v. Air Vice-Marshal Mahinder Singh Rao &
Ors.: (2013) 9 SCC 425, where the testatrix had bequeathed property in excess to her
share and this Court held that the bequest has to be treated only to the extent of the
share held by the testatrix.
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alternative in sub-clause (a) of Clause 1 of the bequeathing part of the
Will, the testatrix expected that the appellant shall construct “residential
facility ofsuch covered area as is permissible under the Municipal
Building Bye-laws at the time of my demise”, whereas, in sub-clause
(b) thereof, the testatrix provided the alternative that the appellant shall
carry out new construction “as is permissible under the Municipal
Building Bye-laws”. The expression “at the time of my demise”, as
occurring in sub-clause (a) does not occur in sub-clause (b). Now, it
remains elementary that if a construction is to be raised, it has to conform
to the Building Bye-laws or Regulations as in force and as applicable at
the relevant time of construction. The testatrix could not have overridden
the operation of law by providing that the construction could be raised as
permissible under the Bye-laws at the time of her demise. If that was
not the meaning of sub-clause (a), then it remains questionable as to
why the expression “at the time of my demise” at all occurred there
and the question further remains as to why the same was omitted in sub-
clause (b)?
30.8. Therefore, literal reading of the Will in question makes it
clear that the purported provision for the respondent No.1 is illusory and
an eye wash because on the practical side, the provision is inexecutable
and unenforceable; and the respondent No.1 is not likely to get anything
thereunder.
31. In the ultimate
analysis, we are satisfied that the Will in question
is surrounded by various suspicious circumstances which are material in
nature and which have gone unexplained. The cumulative effect of these
suspicious circumstances is that it cannot be said that the testatrix was
aware of and understood the meaning, purport and effect of the contents
of the Will in question. The appellant, while seeking probate, has not only
failed to remove and clear the aforesaid suspicious circumstances but
has even contributed her own part in lending more weight to each and
every suspicious circumstance. The Will in question cannot be probated
from any standpoint.
The curious case of alleged third page of the Will
32. For what has been discussed hereinabove, it is but evident
that the Will in question is besieged by multiple suspicious circumstances,
which have not been cleared; rather every suspicious circumstance is
more baffling than the other. Even this is not the end of the matter.
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33. There remains yet another, and perhaps the most confounding
part of the matter, which leaves nothing to doubt that the prayer for
probate of the Will in question could only be declined. It is the curious
case of alleged third page of the Will in question and the vacillating stand
of the appellant in that regard. This aspect, perforce, needs a little
elaboration as infra.
33.1. As noticed in the preceding paragraph 13 and its sub-
paragraphs, during the course of trial, on 24.03.2008, the respondent
No. 1 moved an application under Section 151 CPC seeking opportunity
to further cross-examine the appellant. In this application, the respondent
No. 1, inter alia, attempted to raise a plea relating to the alleged third
page of the Will in question. This application was rejected by the Trial
Court on 25.03.2008, interalia, with the observations that the story of
this third page, as coming on record for the first time cannot be believed,
particularly when nothing in that regard was asked in the cross-
examination of PW-1.
33.1.1. Thereafter, the respondent No. 1 filed another application
seeking permission to file her written statement and seeking condonation
of delay. Again, the respondent No. 1 attempted to refer to the said third
page of the Will, inter alia, with the following submissions:-
“4. The Respondent No. 2 submits that due to her lack of
knowledge about the existence of the third-page of the purported
Will
and being all through assured by the Petitioner that the
Respondent No. 2 would get her share as per Will, the Respondent
No. 2 did not file objections at the initial stage.
5. The Respondent No. 2 submits that the purported Will in question
was lying in the custody of the Petitioner and she can only give
proper clarification and explanation about the handwritten portion
thereon and with regard to the third-page of the said Will, which
the Petitioner did not produce before this Learned Court with
some ill-motive.”
In reply to the aforesaid part of the application, the present
appellant stoutly denied the existence of any third page of the Will and,
inter alia, submitted as under:
“4. That para No. 4 of the application is wrong and hence denied.
It is denied that there is any third page of the Will, as alleged or otherwise.
This Hon’ble Court has already dealt with this false contention of the
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Respondent No. 2 vide its order dated 11.04.2008. Even the perusal of
the Will clearly reveals that the Will is in two pages. The averments to
the contrary are absurd, frivolous and devoid of any merits. It may be
appreciated that the Respondent No. 2 admits that the Will, that is, the
subject matter of the present petition, but owing to her malafide intentions
is now seeking to take self contradictory stand, which is not permissible
under law. It may be appreciated that the Respondent No. 2 is an
educated lady and the averments with regard to lack of any knowledge
etc., is wrong and hence denied. It is denied that the Petitioner has given
any such assurances, as alleged or otherwise.”
The application so filed on behalf of respondent No. 1 and another
application filed on behalf of respondent No. 2 under Order IX Rule 7
CPC were decided together by the Trial Court in its order dated
03.07.2008, inter alia, with the observations that, ‘the alleged 3rd page
appears to be some another document and prima facie it is not
certainly 3rd page of the Will’.
33.1.2. Yet again, an application filed on behalf of respondent No.
2 under Order XI Rule 12 and 14 CPC seeking production of the same
alleged third page of the Will was rejected by the Trial Court by its order
dated 23.08.2008, inter alia, with the observations that the respondent
No. 2 had described the entire Will as forged and fabricated so he ‘cannot
be allowed to take a contradictory stand that the third
page is
genuine and other two pages are forged’. The Trial Court also
observed that the claim of the appellant was only in respect of one
immovable property and one bank account and no claim had been made
in respect of any movable property. The Trial Court further went on to
observe that ‘even if it is presumed that deceased during her life
time distributed her personal belongings, cash and jewellery in
accordance with the third page then also that third page has now
become useless because the distribution of the movable assets took
place during life time of the deceased whereas the Will has to take
effect after the death of the testatrix.’
33.2. Thus, in the Trial Court, at a late stage, the respondents
attempted to suggest, rather persist, with the submission that there had
been a third page of the Will but this suggestion was specifically denied
by the appellant even with the allegation that the said third page had
been fabricated by the respondents. The Trial Court accepted the
submission of the appellant to the extent that no such third page existed.
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[DINESH MAHESHWARI, J.]
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The Trial Court even observed that distribution of movable assets of
testatrix was complete during her lifetime and the only subject-matter
remaining was the immovable property and the bank account.
33.3. In continuity with what has been observed hereinabove, we
may also add that prima facie, the suggestion about any such third page
of the Will made by the testatrix appears doubtful because the Will is
question is drawn up in two pages; the testatrix has specifically written
in her own hand that the Will is so made in two pages; and the document
effectively ends at the bottom of the second page with signatures of
testatrix and two attesting witnesses.
33.3.1. However, all the observations and findings of Trial Court
(as regards the alleged third page of the Will in question) and even the
prima facie impression given by the document Ex.PW1/H against
existence of any such third page of Will are shaken to the core when we
take into account the strange turnabout and volte-face of the appellant
in the High Court, where it was asserted on her behalf that she had
indeed acted as per the “directions” of the testatrix in the said third
page!
34. The above-noted strange shift in stand of the appellant, where
she asserted having acted as per the said third page had its own
background. As noticed, during the course of trial, a fact surfaced that
before filing the petition for probate, the appellant had made payment of
a sum of
Rs. 25,000/- to the daughter of the attesting witness PW-3; and
the Trial Court even observed that the possibility of this witness being
bribed was not ruled out. This very aspect was seemingly pressed again
before the High Court by the respondents. While countering such
contentions made on behalf of the respondents as also while asserting
that the respondent No. 1 was not fair in her conduct, the appellant
asserted before the High Court that though this third page was a creation
of the respondents but, she (the appellant) had acted according to the
desire of the testatrix as stated in the said third page. It was specifically
stated on behalf of the appellant that payments were made by way of
four cheques, in the sum of Rs. 25,000/- apiece, in favour of the daughter
of PW-3, the daughter of the respondent No. 1 and two sons of her own
(the appellant) ‘in compliance with the directions in the said “3rd
page”, which is a separate directive of the deceased de hors the
Will’. It was further asserted on behalf of the appellant that she had
‘faithfully acted upon the directions’ set out in the said third page and
handed over the car to the daughter of respondent No. 1 and even gave
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the jewelleries to the respondent No. 1 herself! It was sought to be
argued on behalf of the appellant that the said third page rather proves
the validity of the Will in question.
34.1. What has been noted hereinabove, being the entirely
different stand of the appellant regarding the said third page, is specifically
found in the written arguments filed on her behalf in the High Court. The
relevant part of such written arguments may be usefully extracted as
under:-
“1. That in the first place there is no challenge from either of the
2 Respondents to the signatures and the hand writing of the
Testatirix on the Will; indeed there is sufficient admission of the
validity of the Will in the following manner:
ADMISSIONS
(a) Respondent No. 2 files no objections to the Probate Petition.
(b) Respondent No.2, who had been granted the license to reside
in the suit property, clandestinely attempts its alienation, constraining
the Petitioner to file a suit for injunction (Annexure A-14 on
page 176 — please see page 181 for the prayer), as per legal
advice received as against an Application for restraint in the
Probate Petition itself.
Respondent No.2 retaliates by committing a volte face and filing
an Application for permission to further cross examine the
Petitioner with regard to (i) the holograph portion of the Will, (ii)
the existence of a third page to the Will, (iii) doubting the fatherhood
of the Petitioner and (iv) establishing the extent of her rights in
the
suit property under the Will.
The Application is dismissed vide Order dated 25.03.2008
(Annexure A-7 on page 93) but the flip-flop stands of the
Respondent No.2 may be noted to deny any credence to her
contradictory submissions in the instant Appeal and the contention
of the existence of a 3rd page to the Will tantamounting to the
admission of the validity of the 2 paged Will propounded by the
Petitioner.
The so called “3rd page” is Annexure A-8on page 97, which
does not form part of the Will but was signed separately by the
KAVITA KANWAR v. MRS. PAMELA MEHTA & ORS.
[DINESH MAHESHWARI, J.]
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Testatrix and has indeed been acted upon to the benefit of, amongst
others, Respondent No.2 herself and her daughter.
It is not comprehensible as to how then the Respondent’s challenge
the Petitioner’s issuance of the 4 Nos. cheques, all in the sums of
Rs.25,000/- apiece favouring Gen. Ahluwalia’s daughter,
Respondent No.2’s daughter and the Petitioner’s 2 sons in
compliance with the directions in the said “3rd page”, which is a
separate directive of the deceased de hors the Will.
Also in compliance with the said directives the Respondent No.2’s
daughter has been given the car belonging to the deceased by the
Petitioner after the demise of the deceased.
****
****
****
12. That at the hearing R-3 relies upon a litany of FALSEHOODS
in order to advance her case against the Will, as set out hereunder:
Sr.No.
Submissions at the Bar
Manifest Falsehood
****
(ii) 
The Petitioner has given 
Rs.25,000/- to the daughter of 
one of the witnesses to the 
Will in order to influence 
him. 
The averment is once again false to 
the knowledge of R-3 in as much as 
it is he and R-2 who have 
propounded a paper described as 
“the 3rd page” of the Will in 
question wherein the Testatrix has 
directed 
the 
manner 
of 
the 
distribution of her movable assets, 
though not in the form of a Will, 
but the Petitioner has faithfully 
acted upon the directions set out 
therein (Annexure A-8, page 97) 
and paid Rs.25,000/- not only to the
daughter of the witness Mandira 
Ahluwalia but has also paid a sum 
of Rs.25,000/- besides various 
jewelries and a car to R-2’s 
daughter Nomita Mehta as also 
various jewelries to R-2 herself as 
per the directions contained in the 
said “3rd page” 
***
***
***
13. That at the hearing, R-2, taking a leaf out of R-3’s book, relies
upon a further litany of FALSEHOODS in order to advance her
case against the Will, as set out hereunder:
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Sr.No.
Submissions at the Bar
Manifest Falsehood
***
(iv) 
The Petitioner’s distribution 
of moneys and other movable 
assets left behind by the 
Testatrix arouses suspicion 
that she was either “buying 
out” Respondent No.2 and 
one of the attesting witnesses 
or misappropriating the joint 
bank account held by the 
Testatrix with the Petitioner. 
The false allegation is bellied by the 
so-called “3rd page” of the Will 
propounded by R-2 & R-3 and the 
Petitioner has made the various 
payments and disbursed various 
movables after the demise of the 
Testatrix faithfully in terms of the 
said page which was duly signed by 
the Testatrix but did not form part 
of the “2 paged Will” or can be 
deemed to be a codicil but the 
Petitioner honoured the dictate of 
the Testatrix as set out on a piece of 
paper signed by her.
***
***
***”
(underlining supplied for emphasis)
34.2. In paragraph 49 of the impugned judgment, the High Court
noticed such a stand of the appellant, seeking to rely on the very same
disputed third page of the Will and observed that this third page was
never produced by the appellant; rather when the respondent No. 2
sought its production, the appellant denied the same. The High Court
also observed that the said third page of the Will was never proved
before the Trial Court; and even if it was assumed to be existing, the
suspicious circumstances were not dispelled.
35. In our view, though the High Court has rightly observed that
even if
this third page is assumed to be existing, it does not remove the
suspicious circumstances but the High Court has stopped short of going
a little further and has not noticed that volte-face of the appellant regarding
this third page tilts the preponderance of probabilities heavily, rather
conclusively, against her. Noteworthy it is that the said third page has
not been exhibited in evidence. The flip-flops of the appellant regarding
this third page compels us to examine several of the possibilities
concerning other assets of the testatrix.
35.1.  As noticed, the Will in question (Ex.PW1/H) is drawn on
two pages and is complete in itself and does not leave any scope for any
other codicil concerning the estate of the deceased, particularly when
bequeath has been made not only of the immovable property and the
bank account but also as regards the other assets of testatrix in the
residuary clause, which reads as under: –
KAVITA KANWAR v. MRS. PAMELA MEHTA & ORS.
[DINESH MAHESHWARI, J.]
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“2. I also direct that in the event of my acquiring any further
movable or immovable assets hereinafter or any other assets that
I may have forgotten to mention in the present Will the same shall
devolve upon my daughter Mrs. Kavita Kanwar.”
35.1.1. Now, from the evidence on record and from the stand of
the appellant, there is little to doubt that there had been several other
assets of the testatrix apart from the said immovable property and the
bank account. By virtue of the aforesaid residuary clause, all such other
assets are bequeathed to the appellant. In the given scenario, two serious
questions perforce acquire immediate attention. One that while making
the application seeking probate, the appellant did not divulge all other
assets which were to come in her hands by virtue of the said residuary
clause of the Will in question10. Secondly, when there had not been any
direction in the two page Will in question for making payment to anyone
or parting with any movable to anyone, what had been the reason for the
appellant making payment to different persons, including her own sons,
the daughter of the attesting witness and the daughter of the respondent
No. 1 apart from giving car to the daughter of the respondent No. 1 and
jewelleries to the respondent No. 1 (as alleged in the written submissions
before the High Court). Both these questions on the conduct of the
appellant only thicken the suspicious circumstances
surrounding the Will
in question.
35.2. On the other hand, as soon as the possibility of existence of
such third page carrying the desire and directions of the testatrix about
distribution of her other movable property is taken into account11, the
document Ex.PW1/H loses all its worth because it cannot be said the
testatrix executed the same after understanding the meaning and purport
of its contents. If she had the desire of distribution of movable property
in a different manner and to different persons (as alleged by the appellant
before the High Court), the aforesaid residuary clause would not have
occurred in the Will in question at all. Secondly, if it is assumed that the
testatrix issued separate directions about distribution of her assets de
hors the Will then, the Will in question ceases to be her last Will.
10 In paragraph 8.2 hereinbefore, we have reproduced the major contents of the
application seeking probate with its Annexure-B wherein, only the said immovable
property and the amount lying in the bank account were stated; and in paragraph 12 of
the application, the appellant mentioned the immovable property as the only asset
likely to come in her hands with the referred stipulations.
11 As per the submissions made before the High Court, the appellant indeed carried out
the directions contained in such third page of the Will.
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36. Hence, to cap all the suspicious circumstances, the aforesaid
equivocal stand of the appellant, as regards the third page of the Will and
her assertion of having acted in accordance with the “directions” in the
said third page of the Will, effectively knocks the entire case of the
appellant down to the bottom. The suspicions arising because of the
facts and factors noticed hereinbefore, including the unnatural exclusion
of the respondents from estate; uncertain and rather inexecutable
stipulation about construction by the appellant for the purpose of the
respondent No.1; active role played by the appellant in execution of the
Will and yet seeking to avoid the factum of her role by incomplete and
vague statements; and the witnesses having contradicted the appellant
on material particulars etc., have not only gone unexplained but are
confounded beyond repair with such vacillating stand of the appellant
regarding the said third page of the Will of the testatrix.
Summation
37. The discussion foregoing is sufficient to find that thick clouds
of suspicious circumstances are hovering over the Will in question which
have not been cleared; rather every suspicious circumstance is
confounded by another and the curious case of the alleged third page of
the Will effectively and completely demolishes the case of the appellant.
Put differently, it is difficult to be satisfied that what is literally coming
out of the document in question had been the last wish and
desire of the
testatrix as regards succession of her estate. On the contrary, we find
enough and cogent reasons to affirm the material findings of the Trial
Court and the High Court that it cannot be said that the testatrix executed
and signed the document in question as her Will after having understood
the meaning, effect and purport of the contents.
38. The result, inevitable, is that this appeal deserves to be
dismissed. With the concurrent findings having been affirmed and when
the appellant is found wanting in forthrightness at various stages of
proceedings, costs ought to follow the result of dismissal of this appeal.
Conclusion
39. Accordingly, and in view of the above, this appeal fails and is,
therefore, dismissed with costs quantified at Rs. 50,000/- (rupees fifty
thousand), payable by the appellant equally to the respondent No. 1 and
respondent No. 2.
Ankit Gyan
Appeal dismissed.
KAVITA KANWAR v. MRS. PAMELA MEHTA & ORS.
[DINESH MAHESHWARI, J.]