* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Test Case No.42/1994
% Date of Decision: 18.05.2009
Shri Harish Chander Kawatra .... Petitioner
Through Mr.Amit Vohra, Advocate along with
petitioner in person.
Versus
State and others .... Respondents
Through Ms.Reema Kawatara, respondent in
person.
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
1. Whether reporters of Local papers may be YES
allowed to see the judgment?
2. To be referred to the reporter or not? YES
3. Whether the judgment should be reported in YES
the Digest?
ANIL KUMAR, J.
*
1. The petitioner, Shri Harish Chander Kawatara, the younger son of the deceased, Shri Sikander Lal Kawatra, has prayed for probate under Sections 278 and 218 of the Indian Succession Act of the Will dated 10th May, 1983 and for letter of administration of his estate as the sole beneficiary under the said Will.
2. The deceased Shri Sikander Lal Kawatra had died at Delhi leaving behind two sons, Shri Harish Chander Kawatra, younger son, petitioner Probate Case 42/1994 Page 1 of 41 and Shri Ghansham Dass Kawatra, elder son, who has filed objections against the grant of probate and letter of administration to Shri Harish Chander Kawatra. The deceased Shri Sikandar Lal Kawatra also left behind three daughters, namely, Smt.Veena Taluja, Smt. Deepa Kalra and Smt.Asha Sehgal, respondents No.3 to 5 respectively who have filed their no objections to the grant of probate and letter of administration.
3. The deceased father of petitioner and respondents No.2 to 5 had purchased a built up property on plot measuring about 200 sq.yards known as 15/22, West Patel Nagar, New Delhi, for a consideration of Rs.37,000/-. The property was purchased by late Shri Sikandar Lal Kawatra from his common earnings.
4. The wife of late Shri Sikander Lal Kawatra, mother of petitioner and respondents No.2 to 5, had also died on 18th February, 1983. According to the petitioner, late Shri Sikander Lal Kawatra had executed the last Will devising all his estate upon the petitioner.
5. According to the petitioner, the deceased was a permanent resident of 15/22, West Patel Nagar, New Delhi. The petition details the movable properties comprising of shares in companies and insurance policy and immovable property bearing No.15/22, West Patel Nagar, New Delhi. According to the petitioner, on the death of the Probate Case 42/1994 Page 2 of 41 deceased, the approximate value of the movable and immovable properties of the deceased was about Rs.32.5 lakh.
6. The alleged Will dated 10th May, 1983 was produced by the petitioner which is stated to be registered with the sub Registrar, Yamuna Nagar, in Book No.13 Volume No.3 from pages 113 to 117 on 11th May, 1983. The original Will produced by the petitioner is typed in Hindi and alleged to be signed by Shri Hari C.Kuckreja, Shri Mahinder Jit Alag and Dr. Vidya Rattan Varma. Before the sub Registrar, the alleged Will is also alleged to have been witnessed by Shri Hari C.Kuckreja and Dr.Vidya Rattan Varma.
7. The petition is not opposed by respondents No.3 to 5 who have filed their reply contending inter alia that they do not oppose the grant of probate/letter of administration to the petitioner.
8. Grant of probate and letter of administration to the petitioner is opposed by respondent No.2, Shri Ghansham Dass Kawatra, elder son of the deceased. The objector, elder son of the deceased contended that the Will is forged and fabricated document as the signatures on the Will are not of deceased Shri Sikander Lal Kawatra. It was contended that there are glaring dissimilarities between the original signatures of the deceased and the alleged signatures of the deceased on the alleged Will. The objector has contended that the deceased was conversant only with Probate Case 42/1994 Page 3 of 41 English and Urdu language and was not at all conversant with Hindi language. The objector/respondent No.2 specifically alleged that the deceased was not at all conversant with Hindi language as he studied English and Hindi only in the school. It has also been pointed out that though signatures of the deceased are in English, however, the Will has been typed in Hindi. It is also alleged that the deceased never executed any document or has written any letter in Hindi. The objector has also alleged suspicious circumstances on the ground that deceased was a resident of Delhi and, therefore, there was no need for him to go to Yamuna Nagar to execute the Will. The attestation of the Will by the witnesses is also challenged on the ground that none of the witnesses have given proper identification or address on the Will. The objector has also contended that the alleged attesting witness, Dr. Vidya Rattan, of Will dated 10th May, 1983 has shown his address of Yamuna Nagar, however, in the affidavit filed along with the petition he has given his address of Delhi as 3-A, East Park Road, New Delhi.
9. Regarding his mother, the objector has contended that Smt. Pushpa Rani Kawatra had died on 18th February, 1983. The objector, however, admitted that the mother of deceased, Smt.Kaushlaya Devi, had predeceased the father Shri Sikander Lal Kawatra. It is not denied by the objector that the deceased expired on 8th January, 1984. It was admitted that the deceased was the resident of 15/22, West Patel Nagar, New Delhi. The valuation of the property as given by the Probate Case 42/1994 Page 4 of 41 petitioner as Rs.32.5 lakh was, however, denied and it was contended that the value of movable and immovable assets of the deceased were about Rs.40.00 lakh. The objector claimed 1/5th share in the movable and immovable assets of the deceased Sikander Lal Kawatra.
10. The pleas and contentions raised in objections/reply of the objector were denied by the petitioner in his rejoinder dated 28th January, 1997. The petitioner contended that the Will, after it was typed was entered in the relevant register of Mr. Hari Chand, who is the approved Deed Writer by Haryana Government having Licence No.107. It was contended that the Will was drafted by the said Deed Writer on the instructions of his father in his capacity as Deed Writer and the Will was read over and explained to Shri Sikander Lal Kawatra. The petitioner also specifically pleaded that the contents of the said Will were read over and explained to the deceased and after completely understanding the contents of the Will, the deceased had signed the same. It was also categorically contended that the Deed Writer had obtained the signatures of the deceased in his register at Entry No.722 and he had charged prescribed fee of Rs.2/-. The petitioner contended in the rejoinder that the deceased during his lifetime had signed in English on documents written in Hindi and one such document relied on by the petitioner was a letter dated 19th June, 1975 addressed to the Assistant Assessor and Collector, Municipal Corporation of Delhi. Regarding the execution of the Will by late Shri Sikander Lal Kawatra, it Probate Case 42/1994 Page 5 of 41 was stated that the deceased‟s daughter was residing at Yamuna Nagar and he had gone there to meet her and there he felt the need of executing a Will and thus the Will was executed at Yamuna Nagar. It was also contended that Dr.Vidya Rattan Varma one of the alleged witnesses of the Will was available at Yamuna Nagar at the time of execution of the Will though he is resident of Delhi.
11. On the pleadings of the parties, this Court framed the following issues on 16th February, 1999.
i. a). Whether the deceased, Shri Sikander Lal Kawatra, executed a Will dated 10th May, 1983?
b) If so, whether the same is legally and validly executed? ii. Whether the impugned Will dated 10th May, 1983 is a forged and fictitious one as alleged in paras 1 to 4 of the reply filed by respondent No.2?
iii. To what relief, if any, the petitioner are entitled to?
12. The objector/respondent no.2 has also filed a civil suit for partition which is pending adjudication in the District Courts. The objector sought amendments to the objections which were allowed by order dated 30th October, 2000. On the basis of amended pleadings, another issue was framed oh 22nd March, 2002. The additional issue framed by the court is as under:
iv Whether the property bearing number 15/22, of West Patel Nagar, New Delhi was the property of partnership firm M/s Sikander Lal Ghyanshyam Dass and was purchased Probate Case 42/1994 Page 6 of 41 on behalf of the firm and if so whether deceased Sikander Lal Kwatra could have executed a Will. ( Onus on respondent no.2)
13. The petitioner has examined himself as PW2 beside the alleged attesting witness, Dr.Vidya Rattan Varma, as PW1. No other witness was examined by the petitioner.
14. Respondent No.2 filed his deposition on affidavit, however, the same did not reflect the correct exhibit numbers and therefore he was directed to file a corrected deposition by order dated 5th July, 2006. Additional affidavit dated 18th July, 2006 was therefore, filed by the respondent no.2 which was exhibited as Ex Rw 1/A. The objector/respondent no.2 only examined himself in support of his objection.
15. Learned counsel for the petitioner has relied on JT 1995 (5) SC 163, PPK Gopalan Nambiar v. PPK Balakrishnan Nambiar & Others; AIR 1962 Andhra Pradesh 178, Ryali Kameswara Rao v. Bendapudi Suryaprakasarao and others; AIR 1959 SC 443, H. Venkatachala Iyengar v. B.N. Thimmajamma and others ; AIR 1977 Punjab & Haryana 123, Smt. Rajeshwari Rani Pathark v. Smt.Nirja Guleri and others; 151 (2008) DLT 469, Ashok Kumar Dua v. Ranbir Kumar Dua & Another and MANU/DE/8602/2007, Surinder Pal Singh and another v. Shri Daljit Singh and others to buttress the contention on behalf of Probate Case 42/1994 Page 7 of 41 petitioner that the Will is duly executed and on the basis of alleged suspicious circumstances, the grant of probate and letter of administration cannot be denied to the petitioner.
16. Learned counsel for the petitioner also relied on 1971 (3) SCC 146, Smt.Sushila Devi v. Pandir Krishna Kumar Missir and others; (2002) 1 SCC 630, S. Sundaresa Pai & Others v. Sumangala T. Pai (Mrs.) and another; (2003) 8 SCC 537, Ramabai Padmakar Patil (Dead) through LRs. And others v. Rukminibai Vishnu Vekhande and others; (2005) 1 SCC 280, Meenakshiammal (dead) through LRs. and others v. Chandrasekaran and another; (2005) 2 SCC 784, Sridevi & Others v. Jayaraja Shetty & Others and (2005) 1 SCC 40, Daulat Ram & Others v. Sodha and others.
17. The respondent No.2/objector relied on 2008 (6) Scale 597, Anil Kak v. Kumari Sharda Rajes & Others; AIR 2007 SC 311, B. Venkatamuni v. C.J. Ayodhaya Ram Singh & others; AIR 2007 SC 2219, Apoline D‟Souza v. John D‟Souza; AIR 2007 SC 2005, Addivekka & others v. Hanamavva Kom Venkatesh (deceased) by LRs and Another; AIR 2007 SC 614 Niranjan Umesh Chandra Joshi v. Mrudula Jyoti Rao & Others; AIR 2007 SC 1975, Benga Behera & Another v. Braja Kishore Nanda & Others; (1995) 6 SCC 213, Kashbai and another v. Parwati Bai and another; 70 (1997) DLT 688, Raj Rani Sehgal v. State and others; AIR 2005 Delhi 379, Surender Patrick Lall and another v. State and Probate Case 42/1994 Page 8 of 41 others; 1962 (3) SCR 195, Rani Purnima Devi and another v. Kumar Khagendera Narayan Dev & another; AIR 1959 SC 443, H. Venkatachala v. B.N. Thimmajamma & Others; AIR 1978 Orissa 145, T. Venkat Sitaram Rao & another v. T. Kamakshiamma and others; AIR 1984 Punjab & Haryana 270, Labh Singh v. Piara Singh and JT 1998 SC 37, Gurdial Kaur and others v. Kartar Kaur & others to contend that there are suspicious circumstances and the will has not been proved to be executed by the deceased testator. The counsel for the respondent relied on these precedents to contend that the onus to prove a Will is always on the propounder and only in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and signatures of the testator and due attestation as required by law, the Will can be proved. It was contended that where there are suspicious circumstances, the initial onus become heavier and the propounder must remove all legitimate suspicion before the documents can be accepted as the last Will of testator.
18. The learned counsel for the parties were heard in detail and the pleading and the evidence has been perused. Learned counsel have relied on substantial number of precedents and have referred to various observations made in the precedents. However it must be remembered that a decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every Probate Case 42/1994 Page 9 of 41 observation found therein nor what logically follows from the various observations made in it. The ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it. It is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision. Considering the present facts and circumstances, it may not be necessary to deal with precedents relied on by the parties in detail as the present case is apparently distinguishable from the fact situation of the most of the precedents relied on by the parties. In Ambica Quarry Works v. State of Gujarat and Ors., AIR 1986 SC 1620 the Supreme Court observed:-
"The ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it."
Similarly in In Bhavnagar University v. Palitana Sugar Mills Pvt Ltd (2003) 2 SC 111 (vide para 59), the Supreme had observed:-
" It is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision."
The Supreme Court in Bharat Petroleum Corporation Ltd and Anr. v. N.R.Vairamani and Anr. (AIR 2004 SC 778) had also held that a Probate Case 42/1994 Page 10 of 41 decision cannot be relied on without considering the factual situation. In the same judgment the Supreme Court also observed:-
" Court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes.
In P.S.Rao v. State, JT 2002 (3) SC 1, the Supreme Court had held as under:
". There is always a peril in treating the words of judgment as though they are words in a legislative enactment and it is to be remembered that judicial utterances are made in setting of the facts of a particular case. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusion in two cases.
In Rafiq v. State, 1980 SCC (Crl) 946 it was observed as under:
"The ratio of one case cannot be mechanically applied to another case without having regard to the fact situation and circumstances obtaining in two cases."
19. Issue no.4 is whether the property devised by the deceased by the testament dated 10th May, 1983 was a property of partnership firm M/s.Sikander Lal Ghanshyam Dass and not of the deceased and it was Probate Case 42/1994 Page 11 of 41 framed on 22nd March, 2002 after the amendments to the objections sought by respondent No.2 were allowed. The learned counsel for the petitioner has contended that the question of title cannot be decided in the probate proceedings regarding the will of the deceased Sh.Sikander Lal Kwatra. The learned counsel for the petitioner has relied on AIR 1954 SC 280, Iswardeo Narain Singh v. Smt.Kamta Devi and Ors;
(1993) 2 SCC 507, Chiranjilal Shrilal Goenka v. Jasjit Singh & Ors; (2002) 1 SCC 33, Ghulam Qadir v. Special Tribunal & Ors; (2007) 1 SCC 546, Gurdev Kaur and Ors v. Kaki and Ors and 2007 (12) Scale, Kanwarjit Singh Dhillon v. Hardyal Singh Dhillon and Ors. in support of his plea.
20. It is no more res integra that the Court of probate is only concerned with the question as to whether the document put forward as the last Will and testament of the deceased was duly executed and attested in accordance with law. The probate Court also has to determine whether at the time of execution, the testator had sound disposing mind. However, the question whether a particular bequest is good or bad is not within the purview of the probate Court. A probate Court in the proceedings before it, therefore, only has to determine the genuineness and due execution of the Will and to preserve the original Will in its custody. This also cannot be disputed that the Succession Act is a self contained Code in so far as the question of making an Probate Case 42/1994 Page 12 of 41 application for probate, grant or refusal of probate or an appeal carried against the decision of the probate Court is concerned. The probate proceeding has to be conducted in the manner prescribed under the Succession Act and in no other ways. The grant of probate with a copy of the Will establishes conclusively the appointment of the executor and the valid execution of the Will and it does no more than establish the factum of the Will and the legal character of the executor. Thus it is apparent that a probate Court will not decide any question of title.
21. The power of the probate Court to decide the factum of the Will and the legal character of executor cannot be enlarged even by the parties by consent, as the power to create or enlarge jurisdiction is legislative in character and cannot be enlarged in any other manner. In Ishwardeo Narain Singh (Supra) the Supreme Court had held that the question whether a particular bequest is good or bad is not within the purview of the Court. In Chiranjilal Shrilal Goenka (Supra) it was held that the probate does not establish more than the valid execution of the Will and the appointment of the executor. The probate Court‟s role is limited to examine whether the Will was or was not executed by the testator and whether it was the product of free and sound disposing mind of the testator and the Court does not sit in appeal over the wrong or right decision of the testator as was held by the Supreme Court in Gurdev Kaur & Ors (Supra). In Kanwarjit Singh Dhillon (Supra) the Probate Case 42/1994 Page 13 of 41 probate of the Will was granted by the competent probate Court relating to the suit properties and on the basis of that Civil Court had dismissed the suit for partition and declaration. The Supreme Court had held that the jurisdiction of the civil suit was for declaration to the effect that the suit properties were joint Hindu family properties of the HUF and consequently merely on the grant of probate in respect of the Will of the deceased testator, the suit could not be dismissed as it was not for the probate Court to decide the nature of the property whether it was the self acquired property of the testator or a joint Hindu family property.
22. In view of this and for the aforesaid reasons in the probate proceedings in respect of the Will of the deceased dated 10th May, 1983, this Court will not be competent to decide that the property No.15/22, West Patel Nagar, New Delhi was not the property of the deceased but was the property of the partnership firm M/s.Sikander Lal Ghanshyam Dass and the deceased could not have executed a Will in respect of the said property. The issue is, therefore, left open to be decided by a competent Court in the competent proceedings. This has not been disputed that a suit for partition has been filed by the respondent No.2/objector which is pending adjudication. It will be for the civil Court to decide whether the said property which has been devised by the deceased to the petitioner was not a self acquired property of the Probate Case 42/1994 Page 14 of 41 deceased but was a partnership property of M/s.Sikander Lal Ghanshyam Dass. The issue is disposed off accordingly.
23. The issues No.1 & 2 to the effect whether Sh.Sikanderlal Kwatra, deceased executed a legal and valid Will dated 10th May, 1983 and it is not a forged and fictitious Will as has been alleged by respondent No.2 are considered and decided together.
24. The Will dated 10th May, 1983 has been propounded by the petitioner. This cannot be disputed on the basis of various precedents of Supreme Court and High Court that it is for the propounder to show that the Will was signed by the testator; that the testator was at the relevant time in sound disposing state of mind; that he understood the nature and effect of the deposition; that he put his signatures to the testament on his own free will and he had signed the testament in presence of two attesting witnesses who attested the Will in presence of the testator and in presence of other attesting witnesses. The onus of the propounder is discharged, once these elements are established.
25. The Supreme Court in the matter of Anil Kak v. Kumari Sharda Raje and Ors, 2008 (6) Scale 597 in para 39 had held that execution of the Will does not only mean proving of the signatures of the executor Probate Case 42/1994 Page 15 of 41 and attesting witnesses. The Supreme Court had observed in para 39 and para 40 as under:-
"Para 39:- The execution of the will does not only mean proving of the signature of the executor and the attesting witness. It means something more. A Will is not an ordinary document. It although requires to be proved like any other documents but the statutory conditions imposed by the Section 63(C) of the Act and section 68 of the Indian Evidence Act cannot be ignored.
Para 40:- whereas the execution of any other document can be proved by proving the writings of the document or the contents of it as also the execution, in the event there exists suspicious circumstances party seeking to obtain probate and or letter of administration with a copy of the will annexed must also adduce evidence to the satisfaction of the court before it can be accepted as genuine."
26. The objector has contended that the due execution of the will has not been proved. It is asserted that there is no evidence that Will was read over and explained to the testator. It has also been emphasized that the testator knew only English and Urdu language. According to objector there is no evidence that the testator put his signatures on the testament on his own free will. It has also been contended that evidence is lacking to show that the will was signed by the testator in presence of two witnesses. It is also contended by the objector that no attempt has been made to dispel the suspicious circumstances surrounding the execution of the Will. The suspicious circumstances propounded by the objector are that the deceased could not read or write Hindi; testator was resident of Delhi and there was no need for him to go to Yamuna Probate Case 42/1994 Page 16 of 41 Nagar; the deceased was the partner of the objector in the business till the time of his demise and their relationship was very good and therefore, there was no reason to exclude the objector from the bequest; it has not been proved that the married daughter of the deceased was residing at Yamuna Nagar.
27. Before considering and analyzing the testimonies of the parties, it will be appropriate to consider some of the precedents relied on by the parties. In 1973 (3) SCC 146, Smt. Sushila Devi v. Pandir Krishna Kumar Missir and others, the Supreme Court had held that the fact that the testator had not bequeathed any property to one of his children cannot make the will invalid. However, if the bequest made in a will appears to be unnatural then the court has to scrutinize the evidence in support of the execution of the will with a greater degree of care than usual because every person must be presumed to act in accordance with normal human behaviour. In this case, the trial court had dismissed the objection for grant of probate, however, the High Court had reversed the order dismissing the probate. The appeal filed before the Supreme Court was, however, allowed. In Sushila Devi (supra) it was not denied that the signatures found on the said will was that of the testator. The will was attested by as many as six persons. Out of them four had been examined in the court. The objection on behalf of the objector was that one of the beneficiary under the will was living Probate Case 42/1994 Page 17 of 41 with the testator and she used to take signatures of the deceased on blank papers for the purpose of certain litigation purposes and the will must have been written up in one of those papers. The Supreme Court had held that prima facie, the circumstances, that no bequest was made to one of the legal heirs by the testator would not make the will appear to be unnatural provided execution of the will is satisfactorily proved. It was also held that if the bequest made in a will appears unnatural then the court has to scrutinize the evidence in support of the execution of will with a greater degree of care than usual. It was observed that some individuals do behave in an abnormal manner. It was also held that the onus of proving the will is on the propounder and in absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and signatures of the testator as required by law may be sufficient to discharge the onus. Where, however there are suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the court before the will can be accepted as genuine.
28. In (2002) 1 SCC 630, S. Sundaresa Pai & Others v. Sumangala T. Pai (Mrs.) and another, the Court had held that uneven distribution of assets by itself cannot be taken as a circumstance causing suspicion surrounding the execution of the will. It was also held that giving bulk of immovable properties to one son and another none and another one half share will not create any suspicious circumstance. In this case, in Probate Case 42/1994 Page 18 of 41 a suit filed by one of the legal heirs the will had been propounded and it was held by the trial court that the will had been proved and the suit was dismissed. In the first appeal, the judgment of the trial court was reversed by the High Court and the finding of the trial court upholding the will dated 26th August, 1981 was reversed. The Apex Court had set aside the judgment of the High Court and had restored the judgment of the trial court holding that the will had been duly proved. The Supreme Court had also held that the execution of the will having been proved by the attesting witnesses, no presumption could be drawn against the defendants for not having filed other admitted documents by the deceased Indira Bai for purpose of comparing her signatures on the will.
29. Similarly, in (2003) 8 SCC 537, Ramabai Padmakar Patil (Dead) through LRs. and others v. Rukminibai Vishnu Vekhande and others, the Supreme Court had held that the mere fact that entire property was given to only one of the natural heirs, widowed daughter, to the exclusion of others, is not a suspicious circumstances when it was done with a view to make provision for the widow who had been left destitute at an early age. It was also held that if one of the attesting witnesses is examined and no infirmity found in his testimony, non examination of the persons who had typed the will or the advocate who was present at the time of preparation or registration of will cannot be a ground to discard the will. A will is executed to alter the mode of succession and by the very nature of things it is bound to result in either reducing or Probate Case 42/1994 Page 19 of 41 depriving the share of a natural heir. If a person intends his property to pass to his natural heirs, there is no necessity at all of executing a will. It is, however, true that a propounder of the will has to remove all the suspicious circumstances. It was held that the suspicion means doubt, conjecture or mistrust. But the fact that natural heirs have either been excluded or a lesser share had been given to them, by itself without anything more, cannot be held to be a suspicious circumstance, especially in a case where the bequest has been made in favor of an offspring.
30. The Supreme Court had also held that in view of the section 63 of the Indian Succession Act and proviso to Section 68 of the Evidence Act, the requirement of law would be fully satisfied if only one of the attesting witness is examined to prove the will. The person who types the will is not an attesting witness, therefore examination of a witness who is not an attesting witness is wholly redundant. In the circumstances, it was held that mere non examination of the advocate who was present at the time of preparation or registration of the will cannot, by itself, be a ground to discard the same.
31. Relying on the Constitution Bench decision in Shashi Kumar Banerjee v. Subodh Kumar Banerjee, AIR 1964 SC 529, in para 4 it was held:-
Probate Case 42/1994 Page 20 of 41
"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 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."
32. The Supreme Court had held that the suspicion must be such as is inherent in transaction itself and not the doubt that may arise from conflict of testimony which becomes apparent on investigation of transaction. It was held in (2005) 1 SCC 280, Meenakshiammal (dead) through LRs. and others v. Chandrasekaran and another, that suspicious circumstance cannot be defined precisely, nor enumerated Probate Case 42/1994 Page 21 of 41 exhaustively and must depend on the facts of each case. Regarding the allegations of undue influence, fraud, collusion, it was held that the onus is upon person who makes such allegation and mere presence of motive and opportunity for the same are not enough. The Supreme Court had further held that conscience of the court has to be satisfied by the propounder of a will by adducing evidence so as to dispel any suspicion or unnatural circumstances attaching to a will provided that there is something unnatural or suspicious about the will. The law of evidence does not permit conjecture or suspicion having the place of legal proof nor permit them to demolish a fact otherwise proved by legal and convincing evidence. It was held that well founded suspicion may be a ground for closer scrutiny of evidence but suspicion alone cannot form the foundation of a judicial verdict, positive or negative.
33. In (2005) 2 SCC 784, Sridevi & Others v. Jayaraja Shetty & Others, the scribe of a will in his testimony had categorically stated that the will was scribed by him at the dictation of the testator. Attesting witnesses also deposed that the testator had signed the will in their presence while in sound disposing mind after understanding the nature and effect of dispositions made by him. The two witnesses and the scribe had also deposed that the testator was in sound state of health and possessed his full physical and mental faculties. In these circumstances it was held that proof of testamentary capacity and Probate Case 42/1994 Page 22 of 41 signature of testator was sufficient to discharge the onus of absence of any suspicious circumstances. It was further held that onus to explain suspicious circumstances, if any, is also on the propounder of the Will. In Daulat Ram & Ors v. Sodha & Ors, (2005) 1 SCC 40 testator had executed a registered Will in favor of his nephews and thereafter another unregistered Will was executed in favor of his daughter. After the demise of the testator, his daughter filed a suit for injunction and propounded the Will which was not believed and the suit was dismissed. However, in the first appeal the judgment of the trial Court disbelieving the Will was set aside and judgment and decree were passed in favor of the daughter of the testator. The High Court in the second appeal also confirmed the judgment and decree passed by the first Appellate Court. While dismissing the appeal, the Supreme Court held that Will being a document has to be proved by primary evidence except where a Court permits a document to be proved by leading secondary evidence. Relying on Section 68 of the Indian Evidence Act, 1872 it was held that Will cannot be proved in evidence until at least one of the attesting witness has been called for the purpose of proving its execution, if there be an attesting witness alive. It was held that in order to show that the Will has been validly executed and is a genuine document, the propounder has to show that the Will was signed by the testator and that he had put his signature to the testament of his own free will; and that the testator had signed it in the presence of two witnesses who attested it in his presence and in the presence of each Probate Case 42/1994 Page 23 of 41 other. It was further held that where there are suspicious circumstances, the onus is on the propounder to remove the suspicion by leading appropriate evidence.
34. This cannot be disputed that under law it is the duty of the propounder of the Will to prove the Will and to remove the suspicious circumstances. Regarding suspicious circumstances it was held in PPK Gopalan Nambiar v. PPK Balakrishnan Nambiar & Ors, JT 1995 (5) SC 163 that the suspicious features must be germane and valid and should not be the fantasies of a doubting mind. The Supreme Court in this case had held that since the testator was endorsed to be in sound disposing state of mind, discrepancy in evidence of attestator does not vitiate the validity of the Will. In this case the first suspicious circumstance propounded was that in normal circumstances a mother would not deprive the daughter on her demise to inherit her estate. On the basis of the evidence there was no proof of the signature nor proper proof of thumb impression of attesting witness. In this case the Will was executed and registered on 1st November, 1955 and the testator died 8 years thereafter in the year 1963. The Supreme Court had held that when the beneficiary propounded the Will, the attesting witness ought to have filed the rejoinder or an additional written statement with leave of the Court under Order VIII Rule 9 of the Code of Civil Procedure pleading the invalidity of the Will which was not done and in the Probate Case 42/1994 Page 24 of 41 circumstances it could not be held that any pressure was put on the testator who executed the Will.
35. The Supreme Court had also held that the suspicion must be one inherent in the transaction itself and not the doubt that may arise from conflict of testimony which becomes apparent on an investigation of the transaction. In AIR 1962 Andhra Pradesh 178, Ryali Kameswara Rao v. Bendapudi Suryaprakasarao & Ors it was held by the Division Bench of the A.P High Court that the suspicious circumstances cannot be defined precisely or enumerated exhaustively and they must depend necessarily upon the facts of each case.
36. Though the Will is a document like any other and has to be treated in accordance with the provisions of Indian Evidence Act, however, there is one important feature which distinguishes Will from other documents, as unlike other documents the Will speaks after the death of the testator and so when it is propounded or produced before the 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 as was held by the Supreme Court in AIR 1959 SC Probate Case 42/1994 Page 25 of 41 443, H.Venkatachala Iyengar v. B.N.Thimmajamma & Ors. It was held that the propounder has to show by satisfactory evidence that the Will was signed by testator, that the testator at the relevant time was in a sound disposing state of mind, that he understood the nature and effect of the disposition and put his signature to the document of his own free will. It was further held that in a case in which the execution of the Will is surrounded by suspicious circumstances and the signatures of the testator being shaky and doubtful, more evidence in support of 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 and the condition of testator‟s mind. The Supreme Court had observed that generally 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 suspicion from the mind of the Court by cogent and satisfactory evidence.
37. A Single Judge of Punjab & Haryana High Court in AIR 1977 Punjab& Haryana 123, Smt.Rajeshwari Rani Pathak v. Smt.Nirja Guleri & Ors had held that the attesting witnesses are not expected to be very meticulous in the minute details of the Will. The only requirement of law is that the attesting witness and the testator should affix their signatures and attest the document in presence of each other and the Probate Case 42/1994 Page 26 of 41 witnesses should be sure that the Will had been executed by the testator voluntarily and with a free disposing mind.
38. The petitioner has examined one attesting witness. In his short deposition he stated that he signed the will as a witness in presence of Shri H.C.Kuckreja and Shri Mahinder Jeet Alag. He also stated that the deceased had signed the will in his presence. In his cross-examination recorded on 4th August 2005 he stated that 12 years before, that is in or about 1993 he was the resident of Yamuna Nagar. He stated that son-in-law of the deceased had given him message to reach the court on behalf of the deceased and he reached there on his own at about 9 AM. He deposed that another witness Shri Alag and son-in-law of the deceased were present. In the cross-examination he categorically deposed that the will was first signed by Shri H.C Kukraja and thereafter by the deceased. He deposed that after the testator had signed the will he signed it as an attesting witness and no one signed after him. Perusal of alleged will Ex Pw 1/1, however, reveals that it was not signed by Shri H.C.Kukreja the alleged attesting witness. Though he deposed that after Kukreja, testator signed and then he signed the Will and after him no one signed the will but the alleged will also has the signature of Shri Mahinder Jit Alag. The alleged will is also signed by Shri Harikrishan Numberdar and not by Shri Kukreja. No explanation has been given by the witness about it. The order in which the deceased Probate Case 42/1994 Page 27 of 41 and the attesting witnesses signed the Will may not create an infirmity in the testimony, however, if the attesting witness deposes that the will was first signed by Kukreja, another alleged attesting witness and thereafter by the deceased and then by him and in fact the will was not signed by Kukreja and the will was also signed by another witness Mahinder Jit Alag, then this definitely creates an infirmity in the testimony and execution of the will becomes suspicious. The will was also attested by Hari Krishan Numberdar. This fact was also not deposed by the attesting witness in his testimony before the court, which does create suspicion about the trustworthiness of his depositions. In AIR 2007 SC 1975, Benga Behera and ors. Vs Braja Kishore Nanda & ors, the testatrix had put her thumb impression after the attesting witness had signed the will and it was held to be a suspicious circumstance.
39. Relevant cross examination of the attesting witness, Shri Vidya Rattan recorded on 4th August, 2005 is as under:
"........ As far as I remember, his son in law had given me a message. The message was given to me one day before execution of the will. I reached the court block at my own at about 9 AM. I had met him at the place of the Ariji Navis. It was handwritten. At that time when the will was executed, one Mr. Mahender Jeet Alag was present and son-in-law of the deceased was present. The will was first signed by one Mr.H.K.Kukreja then it was signed by Mr. Sikander Lal thereafter by me. Thereafter, nobody signed it. I had left after signing the will.Probate Case 42/1994 Page 28 of 41
40. The said witness did not depose in his affidavit that the will was read over and explained to the deceased. In his cross-examination also he did not depose that the will was read over and explained to the testator. The alleged will is not a handwritten will of the testator and so it cannot be inferred that he must have had the knowledge of the contents of the will. The witness rather deposed that that the contents of the will were dictated in his presence and were written by the deed writer. The witness did not explain as to who dictated the will. The witness also categorically deposed that it was handwritten by the deed writer. The document Ex Pw 1/1 however, is a typed document in Hindi. These are major infirmities in the deposition of the witness.
41. From the deposition of this witness it has not been established that the will was signed by two attesting witnesses in the presence of testator. He has stated that the will was signed first by Kukreja, who it appears has not signed the will at all. Thereafter will was allegedly signed by the testator and then by him. He categorically deposed that no one signed the will after him. However, the original will allegedly bear the signatures of Hari Krishan Numberdar and Mahinder Jit Alag which have not been proved. Therefore, it is inevitable to infer that it has not been proved that the will was attested by two attesting witnesses in the presence of testator as is contemplated under law. The Supreme Court in B.Vankatamuni Vs J.Ayodha Ram Singh & ors AIR 2007 SC 311 had held that the propounder has to prove that the Probate Case 42/1994 Page 29 of 41 testator had signed the testament in the presence of two witnesses who attested it in his presence and in the presence of each other. In Labh Singh and ors. Vs Piyara Singh, AIR 1984 P & H 247 referring to section 63 of the Indian Succession Act it was held as under:
".... The execution of the will is to be proved within the four corners of the aforesaid clause and the law requires strict compliance of this provision of law. Thus before execution of a will is considered to be proved the Court has to satisfy itself that the „Will‟ was attested by two or more witnesses each of whom has either seen the testator sign of affix his mark to the `Will‟ or had received from the testator a personal acknowledgment of his signature or mark. Each of the witnesses must also sign or affix his mark to the `Will‟ in the presence of the testator. As to what are essential conditions of a valid attestation on a document was considered by the Supreme Court in M.L.Abhul Jabbar Sahib Vs H.Venkata Sastri and sons, AIR 1969 SC 1147, it was held that to attest is to bear a witness to the fact. Briefly put, the attestation are:-
1. Two or more witnesses have seen the executants sign the instrument or have received from him a personal acknowledgment of his signature;
2. With a view to attest or to bear witness to this fact each of them has signed the instrument in the presence of the executants.
Therefore, in the present facts and circumstances, the petitioner has not been able to prove that the will was attested by two or more witnesses each of whom had seen the testator sign or affix his signatures on the will.
42. For proving a will, its due execution also has to be proved. The will in dispute is typed in Hindi and it has not been established that the Probate Case 42/1994 Page 30 of 41 testator could read Hindi. The witness, Shri Vidya Ratan, rather stated that the will was hand-written. The will dated 10th May, 1983, however, is not hand-written but it is typed in Hindi. The petitioner as PW2 in his affidavit dated 1st July, 2004 did not depose that the deceased testator could read Hindi whereas the respondent in his deposition on affidavit dated 18th July, 2006 has categorically deposed that the testator was conversant only with Urdu and English language and he could not read or write Hindi though he could understand Hindi. The petitioner in his cross-examination, though asserted that he had seen his father writing in Hindi as well as English and Urdu. However, he has not produced any document in Hindi written by his father. The respondent No.2 in his deposition on affidavit dated 18th July, 2006 had rather deposed that late Shri Sikandar Lal Kwatra could neither read nor write Hindi. In his cross-examination, he stated that though he could speak in three languages that is English, Hindi and Urdu, however, it was not put to him in the cross examination that late Shri Sikandar Lal Kwatra could read or write Hindi. In the circumstances, it has not been established that the testator could read Hindi language.
43. In his testimony on affidavit, the said witness did not depose that the will was read over and explained to testator. This has not been deposed by him that the testator had dictated the will to the typist. If the will was got typed by the scribe, then the will should have been read Probate Case 42/1994 Page 31 of 41 over and explained to the testator or it should have been read by the testator. There is no evidence to this effect that the will was read over and explained to the testator or the testator had read the will. The deposition of the alleged attesting witness that the will is handwritten whereas the will is typed in Hindi is a major infirmity in his deposition. In his affidavit dated 29th June, 2004, the witness rather deposed that he signed the will as a witness in the presence of Shri H.C. Kukreja. If the will was not read over and explained to the testator and it was also not read by him, then it cannot be held that the will was properly executed by the testator. From the testimony of this alleged attesting witness it has not been established in the facts and circumstances that the will was duly executed by the testator.
44. The respondent No.2 has also proved documents which are exhibited as Exhibit R2/1, Exhibit D1, Exhibit R2/2, Exhibit RW1/6, Exhibit RW1/22, RW1/27, Exhibit RW1/28 and Exhibit RW1/31. According to respondent No.2, these documents bear the signatures of late Shri Sikandar Lal Kwatra in English. Exhibit R2/1 is the partnership deed dated 1st April, 1969 between late Shri Sikandar Lal Kwatra and respondent No.1; Exhibit D1 is the partnership deed dated 2nd April, 1975 between testator, respondent No.2 and the petitioner; Exhibit R2/2 is the partnership deed dated 7th April, 1983 between the testator and the respondent No.2, RW1/6 is the bill of purchase of Probate Case 42/1994 Page 32 of 41 foreign exchange by the deceased which bears his signatures, RW1/22, RW1/27 and RW1/28 are the income tax receipts dated 6th October, 1986; 21st July, 1988 and 21st July, 1988 respectively signed by the testator. RW1/31 is the deposit receipt dated 1st August, 1989 also signed by the testator. The respondent No.2 has produced another document bearing the signatures of late Shri Sikandar Lal Kwatra which has been exhibited as RW1/32. RW1/35 is another letter dated 14th June, 1988 giving the specimen signatures of deceased and Ghanshyam Das; RW1/36 is letter dated 16th July, 1986. Respondent No.2 has also produced two cheques signed by deceased as a partner of M/s. Sikandar Lal Ghanshyam Das, partnership firm. The respondent No.2 has also produced the writings of the testator in Urdu which are Exhibit R2/4 to R-2/23. The respondent No.2 deposed about the documents Exhibit RW2/4 to RW2/23 which are in the handwriting of the deceased. The writings are about purchase of goods from Ahmedabad and other details of the goods such as purchase price, amount paid and quantity thereof. The objector/respondent No.2 denied the suggestion of the counsel for the petitioner that these documents were not written by the deceased testator. The respondent No.2 after seeing the signatures on the will and comparing the signatures with various documents categorically deposed that the will, Exhibit PW1/1, does not bear the signature of his father. Probate Case 42/1994 Page 33 of 41
45. The onus of proving the will was on the petitioner who has propounded it. It was for the petitioner to establish that the will was signed by late Shri Sikandar Lal Kwatra with a sound disposing mind. The burden to prove certain facts are on a party which will fail in case no evidence is led by either of the parties. Therefore it was for the petitioner to prove that the signature on the will was of his father/testator. The respondent No.2 has produced various documents allegedly bearing the signatures of late Shri Sikandar Lal Kwatra. The petitioner cannot deny the partnership deed dated 2nd April, 1975 which is Exhibit D1 which was executed between the petitioner‟s father, petitioner and respondent No.2. The respondent no.2 has denied that the will was signed by the testator. The naked-eye comparison of the signatures of the deceased on the will with other admitted signatures of the deceased show various dissimilarities. In order to prove that the will was signed by late Shri Sikandar Lal Kwatra, in the facts and circumstances, the petitioner should have obtained an expert‟s opinion comparing the admitted signature of the deceased on the partnership deed dated 2nd April, 1975 which was also signed by the petitioner and the alleged will. In the circumstances, it has not been established by the petitioner that the will, Exhibit PW1/1 is signed by the testator as the petitioner has failed to discharge his burden.
Probate Case 42/1994 Page 34 of 41
46. Though even the testimony of one of the attesting witness can be sufficient to establish a will, however, in the present case the testimony of Shri Vidya Ratan, alleged attesting witness of the will does not establish the due execution of the will and in the circumstances the petitioner should have examined the other alleged attesting witness of the will or the scribe, Shri Hari Chand. On the basis of sole testimony of one attesting witness whose testimony does not inspire confidence, due execution of the will cannot be held to have been established.
47. Shri Vidya Rattan, PW1, in his cross-examination though stated that it was signed by the deceased in his presence in English and even in his deposition on affidavit he stated that the deceased signed the will in his presence, however, he has not deposed that first the deceased signed the will and thereafter the attesting witnesses signed the will. Rather his deposition is that the will was first signed by Mr.H.K. Kukreja and thereafter it was signed by the testator and thereafter by the said witness. The alleged Shri H.K. Kukrjea has not signed the will, this will be a suspicious circumstances and will militate against the genuineness of the will. In AIR 2007 Supreme Court 311, B. Venkatamuni v. C.J. Ayodhya Ram Singh, it was held that it is the propounder who has to prove that the testator had signed the testament in the presence of the two witnesses who had attested the will in the presence of each other.
Probate Case 42/1994 Page 35 of 41
48. Another suspicious circumstances in the present fact and circumstances is that the testator was the resident of Delhi and in these circumstances why he had gone to Yamuna Nagar to execute the will has not been explained satisfactorily. The petitioner has tried to explain this circumstance by contending that the married daughter of the deceased was residing at Yamuna Nagar and since the deceased had allegedly gone to Yamuna Nagar to meet her and there for some reason he felt the need to execute the will and therefore the will was allegedly executed there. In order to dispel the suspicion regarding the execution of the will at Yamuna Nagar, the petitioner ought to have examined either his married sister or his brother-in-law that the deceased had come to Yamuna Nagar and the will was executed there. The petitioner in his testimony rather confirmed that the deceased was the permanent resident of Delhi. The petitioner during the cross-examination disclosed the name of his sister Asha Sehgal who was living in Yamuna Nagar. The defendant no.2 has categorically deposed in his cross examination recorded on 6th February,2007 that none of his sister was married at Yamuna Nagar. He stated that his elder sister Smt. Veena Talulja is married in Karnal; second one named Smt. Deepa is married in Ludhiana and the third one is married in Patel Nager. The deposition of Mrs. Asha Sehgal was necessary in the facts and circumstances because in the cross-examination, it was categorically put to the Probate Case 42/1994 Page 36 of 41 petitioner that Mrs. Asha Sehgal was neither married nor living at Yamuna Nagar.
49. What could be the necessity of going to Yamuna Nagar and getting it allegedly registered there has also not been established as in the alleged will Exhibit PW1/1, it is stipulated that the testator had executed another will which was executed and notarized on 7th November, 1982. From the alleged will, it is not apparent as to whom the properties were devised by the testator during the lifetime of his wife, Smt.Pushpa Rani Kwatra. The alleged will does not stipulate that the earlier will dated 7th November, 1982 was also got executed at Yamuna Nagar. If an earlier will was not executed at Yamuna Nagar then in the present facts and circumstances execution of the alleged will, Exhibit PW1/1 allegedly at Yamuna Nagar is fraught with suspicious circumstance as the testimony of attesting witness cannot be relied on. Suspicion which has arisen in the facts and circumstances has not been dispelled by the petitioner. In AIR 2007 Supreme Court 311, B. Venkatamuni v. C.J. Ayodhya Ram Singh, the testator who was resident of Erkonam in Tamil Nadu and who had gone all the way to Chittoor in Andhra Pradesh to execute the will, was held to be suspicious circumstance and the will was rejected. Probate Case 42/1994 Page 37 of 41
50. The Will, exhibit PW.1/1, is alleged to have been scribed by a scribe. It is also alleged that the Will was signed in the office of the scribe in his presence and yet the alleged attesting witnesses have not given their addresses. The first alleged witness is Sh.Hari Kishan, Numberdar allegedly resident of Aurangabad. His parentage and address is not given. The other alleged witness is Sh.Mahinderjit Alag whose parentage is given, however, his address is not given. What is stated is that he is resident of Yamuna Nagar. PW.1 the alleged witness of the Will who has been examined by the petitioner, has also disclosed himself to be the resident of Yamuna Nagar. A scribe of the Will would know that the Will has to be established after the demise of the testator of the Will by the attesting witnesses and without giving their addresses it will not be possible to contact them and call or summon them. The alleged attesting witness Sh.Hari Kishan, Numberdar is alleged to be resident of Aurangabad. How come he was in Yamuna Nagar and why he was made as an attesting witness creates suspicion about the execution of the Will in the present facts and circumstances. Similarly the address of Sh.Mahinderjit Alag is not given. If the Will was scribed by a deed writer and was also allegedly signed in his presence, normally he would have got the addresses of the attesting witnesses recorded somewhere. The deed writer/scribe is also alleged to have recorded in his record about the will. Neither his record has been summoned nor he has been examined. PW.1 the alleged attesting witness has also not given his house number or the locality of his residence in Yamuna Probate Case 42/1994 Page 38 of 41 Nagar. All these facts create grave suspicion about the execution of the Will by the deceased testator which the petitioner has not been able to dispel and discharge his burden.
51. Another circumstance which also creates doubt, is that the alleged Will, exhibit PW.1/1, stipulates that the objector was living separately with his family for considerable time and he was not looking after the testator. The objector has filed and proved documents to show that the deceased was carrying on business in partnership with the objector/respondent No.2 till his demise. Even in his deposition on affidavit the petitioner has not alleged that the objector/respondent No.2 was not looking after the deceased properly or the relations between the deceased and the respondent No.2 were not cordial. Rather a categorical suggestion was given to the respondent No.2 in his cross examination recorded on 3rd August, 2007 that he actively participated in performing the marriage of the sister being the eldest son reflecting that the relations between the respondent no.2 and his father were normal and the testator had no grievance against him. From the entire cross examination of the respondent No.2 it is apparent that this is not the case of the petitioner that the respondent No.2 had not looked after the father of the petitioner and respondent No.2 because of which he could be divested of the bequest by the deceased testator. Divesting the respondent no.2 of the bequest by the testator in itself may not be a Probate Case 42/1994 Page 39 of 41 suspicious circumstance about the execution of the Will. However, in the present facts and circumstances nothing has been alleged against the respondent No.2 regarding the plea taken in the Will for divesting the respondent no.2 of any assets of the deceased testator. In these circumstances the scrutiny of the evidence led by the parties required a greater degree of care than usual. On scrutiny of the evidence of the parties it is inevitable to infer that there are suspicious circumstances regarding the execution of the Will which have not been dispelled by the petitioner who has failed to discharge his burden to prove the will of the deceased testator.
52. Another unusual circumstance is that the deceased testator continued to be the business partner with the respondent no.2 from 1969 till his death in 1994. Whereas the petitioner was included as a partner for the period 1995 to 1983 and one month before the alleged execution of the Will, the partnership was reconstituted and the petitioner was removed from the partnership. The respondent no.2 has categorically deposed that the deceased and respondent No.2 used to go together on foreign business tours and just two weeks before the death of the testator he was with the objector/respondent No.2 on a foreign tour. These facts have not been denied by the petitioner and in the circumstances this has not been established that the relations between Probate Case 42/1994 Page 40 of 41 the testator and respondent No.2 were such which led to testator divesting him of any properties as has been mentioned in the will.
53. In the circumstances, the petitioner has failed to establish that Late Shri Sikander Lal Kwatra executed the alleged will dated 10th May, 1983. The issue no.1 is therefore, decided against the petitioner and it is held that the said will is not a legally and validly executed will and it is a forged document and issue no.2 is decided in favor of respondent no.2.
54. Therefore, the petitioner is not entitled for any relief and issue no. 3 is decided holding that the petitioner is not entitled for grant of probate of will dated 10th May, 1983 allegedly executed by Late Shri Sikander Lal Kawatra. The petition is therefore, dismissed. Parties are however, left to bear their own costs.
May 18, 2009 ANIL KUMAR, J.
„Dev‟
Probate Case 42/1994 Page 41 of 41