NO PROBATE WILL BE ISSUED WHEN it cannot be said that the testatrix executed and signed the document inquestion as her Will after having understood the meaning, effect and purport of the contents.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3688 OF 2017
KAVITA KANWAR. ……Appellant(s)
Vs.
MRS. PAMELA MEHTA & ORS. ….…Respondent(s)
JUDGMENT
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
.
1 Hereinafter also referred to as ‘the contested Will’ or ‘the Will in question’ or the ‘document in
question’.
1
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.
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.
2
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.
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
4.4. Respondent No. 2: Col. (Rtd.) Prithiviraj Mamik3
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.
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.
4
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 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
5
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
2. AND WHEREAS my said husband was the owner of the
said building bearing No. D-179, Defence Colony, New
6
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 rights thereon continuing to
vest in favour of the said Mrs. Kavita Kanwar,
OR
7
(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
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
8
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
4 Hereinafter also referred to as ‘the Succession Act’.
9
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 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 D34, 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”.
10
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.
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 Delhi110024 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.
11
(Rtd.) Prithivijit Mamik and the petitioner does not claim
the same.
*** *** ***
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 Delhi110024.
2. Co. (Rtd.) Prithvijit Mamik Son Madhuban Gian
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.
12
2, who refuted the claim of the appellant and contended, inter alia, that the
Will in question was forged and fabricated, where the 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.
13
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 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
14
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 No. 2 etc. shall
also be referred to at the appropriate juncture, to the extent of relevancy.
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.
15
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,
16
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 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
17
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 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
18
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 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.
19
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 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
20
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
21
Bose: (1982) 1 SCC 20 and Surendra Pal v. Dr. Saraswati Arora: (1974)
2 SCC 600 and observed that if 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 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.
22
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.
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
23
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
6 Hereinafter also referred to as ‘the Evidence Act’.
24
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. 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 that
as 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.
25
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 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
26
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
27
educational qualification of her mother but her mother 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
28
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…..”
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
29
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 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.”
30
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,-
“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
31
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
32
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 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 crossexamination 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
33
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 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
34
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 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.”
35
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 of Section 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
36
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. 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
37
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 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
38
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.
39
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 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.
40
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 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
41
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
42
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. 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 in H.
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 in
43
Ramchandra 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 person; that a property constructed using one’s own money will be
44
the exclusive property of that person and 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.
45
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 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
46
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
47
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 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,
48
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 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
49
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
the decision 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 is strange
50
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 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.
51
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 fraud or coercion, or by such importunity as takes
away the free agency of the testator, is void.
*** *** ***
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.
52
(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.
*** *** ***
89. Will or bequest void for uncertainty.- A Will or bequest
not expressive of any definite intention is void for uncertainty.”
53
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
54
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 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?
55
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 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,
56
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 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 fast or inflexible rules can be laid down for the
57
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 Court
before the will could be accepted as genuine. If the caveator
58
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 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
59
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 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)
60
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 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
61
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 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
62
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 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
63
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 traversing through the relevant decisions, has
64
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.
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.’
65
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 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
66
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
67
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.
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.
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
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.-
*** *** ***
(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.
*** *** ***”
68
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….”
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
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.
*** *** ***”
69
probate, which leads to judgment in rem, it is beyond the cavil that mere
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.
SUSPICIOUS CIRCUMSTANCES CONCERNING THE WILL IN QUESTION
70
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
71
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 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.
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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, 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
73
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
74
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
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
75
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 could well be explained by the
propounder and/or beneficiary. In the present case, it is not in dispute that
76
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
77
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 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
78
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.
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29.5.4. 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.
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
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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?
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?
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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
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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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
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 of
such 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
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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.
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.
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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 crossexamine 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,
inter alia, 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:
85
“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 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.
86
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. 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.
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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
88
said “3
rd 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 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
89
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 “ 3
rd
page” is Annexure A-8 on page 97, which
does not form part of the Will but was signed separately by
the 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 “ 3
rd
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 A8, page 97) and paid
90
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:
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 & R3 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.
91
*** *** ***”
(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
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also as regards the other assets of testatrix in the residuary clause, which
reads as under: –
“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
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.
93
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.
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
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.
94
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
95
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.
………………..………….J.
(A.M.KHANWILKAR)
…………..………….…….J.
(DINESH MAHESHWARI)
New Delhi,
Dated: 19th May, 2020.
96
