Smt. Veena Chawla vs Mr. Mahendra Singh And Others
2019 Latest Caselaw 4686 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on 02.01.2019
 
Delivered on 17.05.2019
 

 
Case :- FIRST APPEAL FROM ORDER No. - 1742 of 2011
 

 
Appellant :- Smt. Veena Chawla
 
Respondent :- Mr. Mahendra Singh And Others
 
Counsel for Appellant :- D.C. Mathur,Devansh Rathore,Kalpana Sinha,M.H. Qadeer
 
Counsel for Respondent :- Anil Kumar Rai,Devendra Singh,Hans Pratap Singh,Rakesh Kumar Pandey,Vishnu Singh
 

 
Hon'ble Saral Srivastava,J.

1. Heard Sri Navin Sinha, learned senior counsel assisted by Ms. Kalpana Sinha, learned counsel for the appellant and Sri Surendra Singh, learned counsel for the respondents.

2. The present appeal is directed against the judgment and award dated 23.2.2011 passed by 3rd Additional District & Sessions Judge, Gautam Budh Nagar, in Probate Case No. 10 of 2002, whereby the court below has rejected the Probate Petition instituted by Veena Chawla (hereinafter referred as "appellant") in respect of Will dated 12.01.2000 executed by Kacheru Singh.

3. The brief facts giving rise to the present appeal are that one Khacheru Singh executed a Will dated 12.01.2000 in favour of appellant in respect of residential plot no. A-266, Sector 47 NOIDA having an area of 112.00 square meter allotted to him by NOIDA Authority, vide letter no. 1065/Noida/GM(R) SCH. 98(I), dated 1.1.1999, vide registration No. 2509.

4. Khacheru Singh died on 13.7.2001. After the death of Khacheru Singh, the appellant preferred a Probate Petition No. 10 of 2002 under Section 276 of the Indian Succession Act, 1925 (hereinafter referred as "Act, 1925") before the 3rd Additional District & Sessions Judge, Gautam Budh Nagar, praying for grant of probate in respect of the aforesaid property on the basis of Will dated 12.01.2000.

5. In the probate petition, all the respondents except Smt. Rajendri Devi (Respondent no.3 herein), admitted the Will. Respondent no. 3 filed written statement on 25.2.2003 denying the execution of Will by Late Khacheru Singh. She further stated that the will is forged document and in fact a void testament, therefore, the probate in respect of the said will cannot be granted.

6. It was further pleaded that the deceased Khacheru Singh was seriously ill and was not able to move from the bed without the assistance of any attendant in last phase of his life. The appellant and her family was residing near shop of Khacheru Singh, and the appellant, her husband and a clerk of an advocate colluded and influenced Kacheru Singh to procure a Will in favour of the appellant.

7. The appellant in order to prove the will produced herself as PW-1, Kailash as PW-2 and Jagmohan Chawla as PW-3, besides the other documents which shall be referred, if required, at the appropriate place. The respondent no. 3 filed a photocopy of will and produced herself as DW-1.

8. The trial court relying upon the testimony of PW-2 and PW-3, who were the attesting witnesses of the will, held that the will has been proved.

9. However, the trial court on the basis of evidence on record found that in respect of the same property, late Khacheru Singh had also executed an agreement to sell in favour of the appellant and as per the terms and conditions of the agreement, the sale deed was to be executed within a period of six months from the date of necessary permission obtained from concerned authority to sell the plot. The trial court also noticed the statement of PW-3 Jagmohan Chawla who had stated that the appellant has purchased the plot from Late Khacheru Singh and paid Rs.1,55,000/- through draft and also paid installment due to the NOIDA Authority in respect of the aforesaid plot. The trial court after noticing in detail the testimony of PW-2 Kailash and PW-3 Jagmohan Chawla recorded a finding that as per the statement of the appellant, she has paid Rs.1,55,000/- for the purchase of the plot and further a power of attorney and an agreement to sell was also executed by late Khacheru and thus, it is explicit from the aforesaid fact that the plot has been purchased by the appellant, and the alleged Will has not been executed out of natural love and affection and without consideration. Accordingly, the trial court held that the document does not fulfill the requirement of a valid Will and cannot be termed as a Will, therefore, the probate cannot be granted.

10. Challenging the aforesaid finding learned senior counsel has contended that the trial court has misdirected itself in recording a finding that since there was no love and affection which resulted in execution of Will in favour of appellant, therefore, the document does not partake the character of a will , hence, probate in respect of the said will cannot be granted.

11. He submits that if document of Will satisfies two conditions namely; the property in respect of which the will is executed shall settle in favour of the beneficiary after the death of testator; secondly it can be revoked at any time by the testator during his lifetime, it is a valid Will. Thus, he submits that once the trial court has recorded a specific finding that the will has been proved, the trial court has committed manifest error of law in refusing to grant probate in respect of the aforesaid property.

12. He further submits that merely because the beneficiary is from the outside the of family of the testator, it will not render the execution of the Will in suspicion circumstances. He submits that the Will has been proved as per Section 68 of The Indian Evidence Act, 1872 [hereinafter referred as Act,1972], therefore, the appellant is entitled to the grant of probate in respect of Will dated 12.01.2000. Learned counsel for the appellant has relied upon the judgment of the Apex Court in the case of Usha Devi Nambiar and others Vs. T C Sidhan (Dead) 2004(2) SCC 321.

13. Per contra, learned counsel for the respondent contends that the alleged will does not partake the character of a valid Will inasmuch it does not fulfill the requirement of a valid Will.

14. He further contends that it is evident from the testimony of PW-1 and PW-3 that transaction of sale had taken place in respect of the same property, therefore, circumstances leading to execution of Will are suspicious and the court below has rightly refused to grant probate in respect of the aforesaid Will. The counsel for the respondent no.3 in support of his submission has relied upon judgment of Patna High Court in the case of Rajeshwar Misser and Ors Vs. Sukhdeo Missir AIR 1947Pat449 .

15. I have considered the rival submissions of the parties and perused the record.

16. The questions which emerges in the present appeal for consideration is as to whether the Will dated 12.1.2000 can be said to have been executed under suspicious circumstances, in view of the fact that the legal heirs of late Khacheru Singh had been excluded in the Will and whether it satisfies the requirement of a Valid Will.

17. Will is defined in Section 2(h) of the Indian Succession Act, 1925 (hereinafter referred as Act,1925), which is extracted herein below:

"2. Definitions.- In this Act, unless there is anything repugnant in the subject or context,-

(h) "Will" means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death."

18. Thus, the Will is a document showing the intention of the testator as to how disposition of his property shall take effect after his death and it is revocable during life time of the testator. Reference may be had to the judgment of the Apex Court in the case of Mathai Samuel Vs. Eapen Eapen (Dead) by LRs, AIR 2013 SC 532.

19. According to Section 63(c) of Act,1925, a Will is mandatorily required to be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will. Section 68 of the Act,1872 speaks as to how a document required by law to be attested can be proved. According to the said Section, if a document is required by law to be attested, it shall not be used as evidence until one of the attesting witness has been called for the purpose of proving it, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence. The Apex Court in the Case of Uma Devi Nambiar (supra) has laid down the principles when a Will is said to have been executed under suspicious circumstance. Para 15 and 16 of the said judgment are extracted herein below:

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 [See H. Venkatachala Iyengar v. B.N. Thimmajamma and Ors. (AIR 1959 SC 443), Rani Purnima Debi and Anr. v. Kumar Khagendra Narayan Deb and Anr. (AIR 1962 SC 567) and Shashi Kumar Banerjee and Ors. v. Subodh Kumar Banerjee and Ors. (AIR 1964 SC 529)]. A Constitution Bench of this Court in Shashi Kumar Banerjee's case (supra) succinctly indicated the focal position in law as follows:

"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, 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."

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 either reducing or depriving the share of 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 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 especially in a case where the bequest has been made in favour of an offspring. As held in PPK Gopalan Nambiar v. PPK Balakrishnan Nambiar and Ors. (AIR 1995 SC 1852) it is the duty of the propounder 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 circumstance, 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 (See Puspavati and Ors. v. Chandraja Kadamba and Ors. (AIR 1972 SC 2492). In Rabindra Nath Mukherjee and Anr. v. Panchanan Banerjee (dead) by LRs. and Ors. (1995 (4) SCC 459), it was observed that the circumstance of deprivation of natural heirs should not raise any suspicion because the whole idea behind execution of the Will is to interfere with the normal line of succession and so, natural heirs would be debarred in every case of Will. Of course, it may be that in some cases they are fully debarred and in some cases partly."

20. It is clearly discernible from the reading of the judgment of the Apex Court in the case of Uma Devi Nambiar (Supra) that merely because the legal heirs have been excluded by the testator in preference to a outsider does not render a Will invalid or to have been executed under suspicious circumstance to make it invalid.

21. Now, coming to the facts of the present case, the deceased testator in the Will unambiguously stated that after his death, the second party namely the appellant Smt. Veena Chawla, shall be the sole and absolute owner of the property mentioned in the Will, the description of the property has been detailed in the earlier part of the judgment.

22. The Will also unequivocally states that the testator appoints the second party, i.e., appellant as administrator, executor for getting probate of the Will. It is also evident from the reading of the Will that the testator could revoke the Will at any time during his life time. The Will has been attested by the two witnesses namely Jagmohan Chawla and Kailash.

23. In the case in hand, Jagmohan Chawla, who is the attesting witness of the Will, has clearly stated that late Khacheru Singh out of his own free will and with sound mind without under any influence executed the Will and had affixed his signature on the Will before him and another attesting witness namely Kailash.

24. It is further stated by Jagmohan Chawla that he and Kailash had signed the Will as attesting witness before late Khacheru Singh and also in the Office of Registrar. Jagmohan Chawla has also stated that in respect to the same property, an agreement to sell was executed in favour of Smt. Veena Chawla and late Khacheru Singh executed power of attorney in his favour. He has denied the suggestion in cross-objection that the Will is forged.

25. Likewise the other attesting witness Kailash also appeared as a witness and has unequivocally stated that late Khacheru Singh signed the Will before him out of his free will and with sound mind and without being influenced by anybody.

26. He further stated that Jagmohan Chawla one of the attesting witness signed the Will before him. He further denied the fact that no Will has been executed by late Khacheru Singh in favour of the appellant. He has also stated that he had signed the Will before late Khacheru Singh and had also signed in the record of the Registrar Office.

27. From the testimony of the aforesaid two attesting witness, it is apparent that both the attesting witness have made categorical statement that the Will has been signed before them by late Khacheru Singh and they put their signatures in front of late Khacheru Singh, and, thereafter, late Khacheru Singh and both of them had signed in the records of the Registrar Office.

28. The most relevant fact which is noticeable from the statement of these two witnesses is that late Khacheru Singh was in sound state of mind and after understanding everything, out of his free will executed the Will.

29. Though, the respondent no.3 also appeared in witness box and stated that late Khacheru Singh was not well during the last phase of his life and was not in sound state of mind, but she did not produce any document in respect of treatment of late Khacheru Singh to establish that late Khacheru Singh was suffering from number of ailments and was not in sound state of mind during his last phase of life.

30. Further, she has not give any explanation as to why the other sons and daughters of late Khacheru Singh has admitted the execution of Will by late Kacheru Singh in favour of appellant and have not supported the case of respondent no. 3.

31. In the present case, it is established that the Will fulfills the two essential conditions of a valid Will. Now, the question as to whether the said Will has been executed in suspicious circumstance can be tested in the light of the judgment of the Apex Court in the case of Uma Devi Nambiar (supra).

32. From the reading of the Will and further from the evidence on record, it is evident that in respect of aforesaid property, late Khacheru Singh had executed an agreement to sell in favour of appellant. It has also come on record that after execution of agreement to sell, the installments which were to be paid to the NOIDA Authorities by the late Khacheru Singh was paid by the appellant.

33. It is also evident from the statement of the appellant that the sale deed could be executed only after certain conditions in the agreement to sell are fulfilled and, therefore, in order to avoid any litigation by the heirs of late Khacheru Singh, he executed a Registered Will dated 12.1.2000 in favour of appellant.

34. It is also explicit from the contents of the Will that there is clear intendment on the part of the testator late Khacheru Singh to bequeath the property to the appellant.

35. The submissions of the learned counsel for the respondent that because the legal heirs of the late Khacheru Singh had been excluded from the Will itself leads to inference that the Will has been executed in suspicious circumstance is not sustainable, particularly, in view of the fact that the sons and other daughters of the late Khacheru Singh admitted the factum of the Will by filing written statement and the correctness and genuineness of the written statement filed by the sons and other daughters of late Khacheru Singh has not been disputed by the respondent no. 3. The Apex Court also in the case of Uma Devi Nambiar (supra) has held that merely because the legal heirs has been excluded would not render a Will to have been executed in suspicious circumstance

36. The judgment of the Patna High Court relied upon by the counsel for the respondent in the case of Rajeshwar Misser and Ors Vs. Sukhdeo Missir AIR 1947Pat449 does not come in aid to the respondent as it was rendered in a fact situation where a suit for partition was instituted and the appellant Rajeshwar Misser was prevented to use the Will as the piece of evidence on the ground that the Will without probate cannot be admitted in evidence. In such a fact situation, the appellant Rajeshwar Misser and other applied for grant of probate of the Will which was rejected by the court below, and the Patna High Court reversed the judgment of the court below by holding that the Will meets all requirements of a valid Will, but as no person was named as executor in the Will, therefore, it did not grant the probate. However, considering the facts and circumstances of the case, it proceeded to grant the appellant letter of administrator.

37. In the instant case, as the Will dt. 12.01.200 fulfills all the requirements of a valid Will, and further reasonable and plausible explanation which appeals to the conscious of a prudent man has been given by the appellant for execution of the Will in her favour to the exclusion of natural heirs of the testator, therefore, this Court finds that the Court below has committed manifest illegality in refusing to grant probate on the ground that the Will has not been executed out of love and affection.

38. Thus, for the reasons given above, the order of the court below cannot be sustained and is accordingly set-aside, and the Probate in respect of Will dated 12.01.2000 is granted in favour of appellant Smt. Veena Chawla.

39. Consequently, the appeal is allowed. There is no order as to cost.

Order Date :- 17.5.2019

Ishan