Mathew Jacob vs Ms.Salestine Jacob & Another
1998 Latest Caselaw 138 Del

ORDER

Usha Mehra, J.

1 . Appellants are the sons of late J.Massey. They have felt aggrieved for the grant of letter of administration in favour of respondent No.1 by the Additional District Judge vide order dated 1st August,1996. The main cause of appellants' grievance is that the deceased J.Massey never executed the alleged Will. The purported signatures of J.Massey on the alleged 'Will' had been forged, even otherwise the alleged 'Will' create suspicion. It is not a genuine 'Will' because in no circumstances the testator could have deprived his natural legal heirs from inheritance in preference to respond- ent No.1. Moreover, the 'Will' had not been proved properly. Only one attesting witness Shri Dev Raj was adduced, whose statement could not be relied upon. No explanation has been rendered by the respondent for non- production of the second witness.

2. In order to appreciate the challenge, let us have quick glance to the facts of this Case. Smt.Selestine Jacob respondent No.1 herein was the second wife of deceased J.Massey. She married the deceased in the year 1949, from this wedlock they had been blessed with three children i.e. two sons and one daughter. Deceased J.Massey had five children from his first wife. Similarly, present respondent No.1 has one son from her first husband. J.Massey died at Delhi on 27th December,1990. After his death, respondent No.1 claimed right, title and interest in the immoveable property in question on the basis of this 'Will'. To prove her right she set up this unregistered 'Will' dated 6th September,1977 in her petition under Section 278 of the Indian Succession Act alleging therein that deceased left the immovable property in her favour in exclusion to her other legal heirs.

3. Objections were filed by the present appellants on the grounds enumerated above. They denied the signature of J.Massey on the 'Will'. Moreover, according to them the deceased was not the exclusive owner of the property in question. He never used to write his name as J.Massey. He had good relations with his sons rather was not happy with the respondent No.1. Attesting witness was a procured witness. According to them the 'Will' being a nullity no letter of administration could have been issued on that basis. By the impugned order all objections raised by these appellants were rejected.

4. Mr.M.L.Mehra appearing for the appellants urged that disinheritance of appellants 3, 4 and 5 sons of the deceased from his first wife and appellants No.1 and 2, sons of the deceased from the present respondent No.1 create suspicion. Their exclusion from inheritance could not have been without reason. But no reason has been assigned in the 'Will' particularly when the fact is that deceased was not happy with respondent No.1. Deceased preferred to live with appellants 1 and 2 rather than with respondent No.1. Ousting natural heirs from inheritance shows that the 'Will' is forged. Its genuineness is doubtful. In the similar circumstances this Court in the case of Dinesh Kumar Vs.Khazan Singh,. 1988 Delhi page 273 held that a 'Will' which disinherit the children in preference to a spouse such a 'Will' has to be looked upon in suspicion. In that case, wife died bequeathing all her properties to her husband in exclusion to her children. This Court held such a 'Will' to be not genuine. In the present case also the deceased not only disinherited his children from his first wife but also his children born from respondent No.1. Such a 'Will' creates doubt about its genuineness. Beside this property was purchased in 1974 and the 'Will' was executed in the year 1977. He died in December,1990. Whereas the 'Will' saw the light of the day in 1992 almost after two years. For this delay there is no explanation. Hence the 'Will' in question cannot be but a nullity. To prove that the 'Will' was not genuine Mr.Mehra Placed heavy reliance on the fact that the deceased had not been writing his name as J.Massey. He used to write his name as Jacob. Whereas the 'Will' depicts his name as J.Massey. This shows the 'Will' was fabricated. Even otherwise signature on the 'Will' of J.Massey do not tally with the admitted signature on record. Even the date on the 'Will' was filled up in hand as '6' subsequently. The hand written date '6' has not been initialled by the testator. There being alterations in the 'Will' made after the execution of the same, it required initials of the testator. In the absence of which the 'Will' becomes invalid. The attesting witness adduced by respondent No.1 had to admit that he did not know the full name of the deceased testator. He was only a typist and not a Deed Writer. Therefore, no reliance should have been placed on his testimony. The second witness though available in Delhi was not examined.

5. On the other hand Mr.Sanjeev Sindhwani appearing for the respondent while refuting these objections contended that the deceased had only one house i.e. the house bequeathed to respondent No.1 his wife. Before his death the testator with his wife respondent No.1 were living in this house. All these appellants after their marriage left the parents i.e. the deceased testator and the respondent No.1 to fend for themselves. If in these circumstances the deceased testator bequeathed the house to his wife there was nothing unnatural about it nor it can create any suspicious circumstance nor create doubt about its genuineness. If the testator was to 'Will' the property in terms of the Succession Act then there would never arise any question of executing a 'Will'. The very idea of bequeathing the property by way of a 'Will' is to deprive the other natural heirs and this is permissible under law. Moreover, the signatures on the 'Will' were compared by the Trial Court with the admitted signatures of deceased testator on documents available on record. It was only after comparison the Court observed that signatures of J.Massey on the 'Will' were similar to the admitted signatures. The impression formed by the Trial Court was a reasonable impression. It is ultimately the Court which has to be satisfied as to whether the signatures are genuine or not. The impugned order on this ground cannot be interfered. As regards production of only one attesting witness it cannot be said that the impugned order is bad. The Apex Court in umpteen number of cases held that one attesting witness alone if can prove the 'Will' is sufficient. In the case in hand Shri Dev Raj proved the 'Will'. It is he who drafted it. For writing or drafting a 'Will' no expertise is required. Shri Dev Raj being a Stenotypist knew how to draft a 'Will'.

6. After hearing counsel for the parties and perusing the record, it can safely be concluded that to prove the 'Will' it would be sufficient if only one attesting witness is examined. Section 68 of the Evidence Act stipulates that to prove a 'Will' at least one attesting witness be examined. By adducing Shri Dev Raj the attesting witness who proved the execution of the 'Will'. The respondent No.1 herein fully complied the provision of Section 68 of the Evidence Act. Respondent No.1 (petitioner before the Trial Court) was not under obligation to produce both the attesting witnesses as it was not the requirement of law nor respondent No.1 herein was under statutory obligation to give reasons for the non-production of second witness.

7. Now turning to the objection of the appellant of comparing the signature of the deceased by the Trial Court himself, to my mind, this objection is without substance. Section 73 of the Evidence Act gives power to the Court to compare the signatures with the other admitted signatures. The signatures on the 'Will' of the testator were compared by the Trial Court with that of Exhibit RW-1/P-1 and marks X-1 to X-5. The letter Exhibit RW- 1/P-1 was written by the deceased to the Assistant Settlement Commissioner way back on 27th March,1976. Perusal of the signature of J.Massey on Exhibit RW-1/P-1 with that on the 'Will' prima facie show these are similar. Lot of similarities are there. Mr.Sunny Jacob, appellant No.2 herein appearing as RW-1 in no uncertain words admitted that signatures on Mark X-1 to X-5 were that of his father Mr.J.Massey. RW-1 also admitted that the letters marks X-1 to X-5 bear the signature of his father written as J.Massey. On the basis of this correspondence property in question was mutated in the name of his father. Appellant No.2 herein appearing as RW-1 further admitted that they never challenged the execution of these letters written by his father to the L. & D.O. In view of the admitted signature of J.Massey on the Exhibit RW-1/P-1 and marks X-1 to X-5, the Trial Court was justified to draw comparison and come to the conclusion that the signatures of J.Massey on the 'Will' were that of the deceased testator. As already pointed out above, the Court was competent to draw this comparison on the basis of admitted signatures per the power vested in him under Section 73 of the Evidence Act. This power Trial Court exercised in order to ascertain whether the signatures on the 'Will' were that of the testator J.Massey and genuine. For these reasons, I do not want to interfere with the finding of the Trial Court on this count.

8. As regards the objection of Mr.M.L.Mehra that 'Will' create suspicion because it excluded the natural heirs from inheritance, I find no force in this submission. The decision of this Court of Dinesh Kumar. (supra) relied by the appellant is distinguishable. The learned Trial Court has drawn the distinction very aptly and competently. On the basis of the facts of this case ratio of the decision in Dinesh Kumar (supra) will not. apply. In Dinesh Kumar's case (supra) the husband. beneficiary of the 'Will' was actively involved in the execution of the 'Will'. The attesting witness who was adduced was his friend. These and other factors casted a shadow of doubt about the genuineness of the 'Will' coupled with the fact that he filed the application for grant of probate after a considerable long time. It was in this backdrop this Court arrived at the conclusion that the 'Will' was not genuine. But that is not the case in hand. Moreover, the ratio of Supreme Court decision in the case of Rabindra Nath Mukherjee Vs. Panchanan Banerjee by LRs. & ors., in. all respect apply to the facts of this case. The learned Trial Court relying on the Apex Court judgment in the case of Rabindra Nath Mukherjee (supra) rightly concluded. that such a 'Will' does not create any suspicion. It is well settled proposition of law that by the execution of a 'Will' the natural heirs can be deprived of inheritance and it will not cast any suspicion because the whole idea behind the execution of the 'Will' is to interfere with the normal line of succession. So the natural heirs would be debarred whenever the testator wants to do so. It will not in each and every case give any cause of suspicion. In fact in order to protect the right of his wife the deceased J.Massey bequeathed his property in her favour to the exclusion of his other legal heirs. The testator and respondent No.1 were living together in this house. All these appellants had left them after their marriage. So naturally the husband had a mind to protect his wife economically hence must have executed this 'Will'. It was but natural for a husband to secure his wife economically particularly when the children after marriage had left them. No suspicious circumstance exist in such a case. Mere deprivation of certain Class-I heirs is no ground to doubt the 'Will'. Circumstances of each case has to be looked in arriving at the conclusion about the genuineness of the 'Will'. I, therefore, find no merits in the appeal nor any reason to interfere with the conclusion arrived at by the Trial Court. Contention of the appellants that the testator never used to write his name as J.Massey is bellied from the admission made by RW-1 his son i.e. appellant No.2 herein when he stated that the signatures on marks X-1 to X-5 as well as on Exhibit RW-1/P-1 were that of his father. Deceased wrote his name as J.Massey on these documents. This correspondence was addressed to a Government Department and the deceased testator signed his name as J.Massey and not as Jacob. If in the Embassy he wrote his name as Jacob that is neither here nor there because on all official correspondence he wrote his name as J.Massey and even on the sale deed of this house his name was shown as J.Massey. This fact comes to light from the correspondence addressed to L. & D.O. Therefore, it would not be correct on the part of the appellants now to contend that deceased never used to sign as J.Massey or that the 'Will' should be doubted because deceased wrote his name as J.Massey. As regards filling up the date in hand at the time of execution of 'Will' that would not make the 'Will' invalid even if not initialled by the testator.

9. For the reasons stated above, I find no infirmity in the order of the Trial Court. The appeal is accordingly dismissed but with no order as to cost.