Dinesh Kumar vs Khazan Singh And Ors.
1987 Latest Caselaw 118 Del

JUDGMENT

S.B. Wad, J.

(1) This is an appeal filed by Dinesh Kumar. one of the sons of Smt. Kunti Devi the testatrix, challenging the letters of administration granted in favor of Khazan Singh by the District and Sessions Judge, Delhi, on 22.8.1975. Khazan Singh claiming to be the executor of the Will had applied for the probate. The learned District and Sessions Judge, however, found that the Will does not mention the name of Khazan Singh as the executor. The learned District and Sessions Judge, therefore, did not grant the probate to him but since he was an universal legatee, issued letters of administration with the Will attached in favor of Khazan Singh. It may be noted that besides the appellant there are three other sons and two daughters born of testatrix Kunti Devi and Khazan Singh. Three children were minor at the time of the filing of the petition.The Will was made on 26.8.1965. Kunti Devi died on 7.5.1969 and the probate petition was moved by Khazan Singh on 19.2.1972.

(2) The counsel for the appellant has challenged the genuineness of the Will both in terms of its execution and attestation and has pointed out several circumstances which create suspicion about the genuineness of the Will. The submission is that the learned District and Sessions Judge had not addressed himself to the requirements of law in regard to the proof of the genuineness of the Will and had ignored the decisions of the Supreme Court reported in Rani Purnima Debi and another v. Kumar Khagendra Narayana Deb and Am., , Beni Chand (Since Dead) now by L.Rs. v. Smt. Kamla Kunwar and others. and H. Venkatachala lyengar v. B.N. Thimmajamma and others. . I will examine the circumstances which according to the appellant raises suspicion regarding the genuineness of the Will. I would also consider at the same time the explanation of Khazan Singh in the regard. However, before doing so it must be noted that according to the law laid down by the Supreme Court the burden to prove the genuineness of that Will is heavily cast on the propounder of the Will. It has another aspect also. He must satisfy the conscience of the court that there is no unconscious ability about his acts or the circumstances in which the Will was created or attested.

(3) The first suspicious circumstance, according to the counsel for the appellant, is that except Khazan Singh, who is the husband of the testatrix all other close relations and class I heirs such as sons and daughters are completely excluded, in the Will. It is true that usually this unnatural circumstance raises doubt regarding genuineness of a Will. But this aspect of the matter assumes significance where a person altogether stranger to the family is preferred to the close relations. Counsel for the respondent Khazan Singh submits that in point of relations husband is a man of confidence to the wife. Since he is also expected to look after the welfare of the children there was nothing unnatural or suspicious in mentioning Khazan Singh the sole legatee of the Will. The counsel further submits that when the citation was issued by the District Court no other children except the appellant raised any objection to the Will. He also refers to the averment of the appellant himself in his written statement that his relations with his mother were strained. Considering the special facts of this case, exclusion of the children from the Will does not by itself create an impression of the Will being forged or deliberately got executed by Khazan Singh in his favor. However, this circumstance will have to be considered Along with other circumstance because the total effect of all the circumstances has to be examined before it is decided whether the Will is genuine or not.

(4) Khazan Singh admittedly has played a very active and conscious role in both the execution and attestation of the Will. It is in evidence that Mr. Khazan Singh got the draft of the Will prepared, arranged for the scribe as well as the witnesses. Jagdish Chandra witness is admittedly a close friend for number of years of Mr. Khazan Singh. His playing such a crucial role would have been otherwise innocuous but for the fact that he is sole legatee of the property under the Will. This circumstance certainly is against Khazan Singh.

(5) The Will was made in 1965. The testatrix died in 1969. The Will saw the face of the light for the first time in 1972. The delay of three years from the death of the testatrix is not explained by Khazan Singh at all. Even when the Will was made in 1965 and it was stated that the testatrix was not keeping well, it was more natural that their close relations and friends would be visiting her. The fact of making the Will, therefore, could not have been such a closely guarded secret from the friends, relations and at least from some of the children who were sufficiently grown up. This circumstance also creates a doubt regarding the genuineness of the Will.

(6) There were two attesting witnesses, Jagdish Chandra and Kulwant Rai. Only Jagdish Chandra has been examined. It is true that under Sections 67 and 68 of the Evidence Act the probate proceedings would not be vitiated only because one witness is examined. But when it is admitted that the second witness is alive and is available in the town, some further explanation is required from the propounder as to why the witness, although being available was not produced. It is one thing to say that the proceedings would not be vitiated with the presence only of one witness. It is another, as to what is impact of the absence of second witness on the question of genuineness of the witness.

(7) The next submission of the counsel for the appellant is that the draft of the Will, which admittedly was in existence before the will was signed, was not produced. As I read the Will it is clear that it is drafted by some Advocate. The language is trite legal language and in the legal form. It is clear from the preamble starting with the words "Whereas" and then coming to the text of the Will with the words "Now, therefore". If the draft was prepared by the Advocate, the Advocate should have been examined. It was also necessary to prove that the contents of the draft were dictated or approved by the testatrix at the stage of the draft. In other words, the substance of the disposition should have been voluntarily decided by the testatrix. There is clear lacuna in the evidence in regard to this aspect of the draft.

(8) There are some other aspects of the matter which are pointed out by the counsel for the appellant. One of them is the averment in the Will that the testatrix had already given all the gold ornaments at the time of his marriage to elder son but the other sons had also right to use the same at the time of their marriage, and the appellant should not object such use of gold ornaments. The counsel submit that the story regarding the gold ornaments given by the appellant has not been proved by any evidence on record brought in by Khazan Singh. It may not be unlikely that being the eldest son, the mother would put all her ornaments on the first daughter-in-law, but they are to be used in the subsequent marriages of other sons also. But instead of leaving it to speculation, some positive evidence should have been brought on record by Khazan Singh.

(9) As regards the genuineness of the Will, counsel for Khazan Singh has referred to Beni Chand (Since Dead) now by L.Rs. v. Smt. Kamla Kunwar and others, where the question of exclusion of some relations and the evidence of an advocate are commented upon by the Supreme Court. The facts of the said decision of the Supreme Court and the present case are quite different and I do not think that the said decision of the Supreme Court is of any avail to Khazan Singh. As a matter of fact, in all the case of this nature the facts arc so complex and so personal that it will be very difficult to find two cases alike.

(10) Considering all the facts on record I am constrained to hold that Khazan Singh has failed to prove that the Will is a genuine Will. I, therefore, have no other alternative but to set side the impugned order.

(11) Since the Supreme Court has emphasised the aspect of satisfaction of the conscience of the court I must add few words here. I cannot ignore the fact that except appellant, who is the eldest son, the father and five members of the family are together and on one side while judging the impact of any decision on the family. The appellant although the eldest son has very strained relations with the father his brothers and sisters. There are complaints of assaults and also of criminal cases. There is a suit filed by Khazan Singh against him for possession and the appellant has filed the suit against Khazan Singh for permanent injunction and both the suits are pending since 1973. Considering these facts I tried to persuade both the parties for an amicable settlement whereby some cash payment can be made to the appellant for the consideration of his leaving the portion of the premises under his occupation. This appears to be the only solution for the peace in the family. However, I must note that the appellant insisted on his one-seventh share on the basis of the market value of the property while the old father was unable to offer more than Rs. 10,000.00 for buying peace. Normally, in a case of probate where the questions of title are not decided the court would not go into such matters but the human side of the dispute cannot be ignored in conscience.

(12) For the reasons stated above, the appeal is allowed, but in the circumstances of the case there will be no orders as to costs.