Padma Bedi vs Joginder Singh & Ors.
1998 Latest Caselaw 394 Del

ORDER

Manmohan Sarin, J.

1. Appellant is aggrieved by the judgement of the learned Additional District Judge, Delhi, dated 13.1.1997, granting probate in respect of the Will dated 15.1.1986 of the deceased Shri Gainda Singh Bedi, with a copy of the Will annexed thereto, which entitled respondent No.1, Shri Joginder Singh Bedi, the executor under the Will, to administer the estate of the deceased.

2. The deceased testator, Shri Gainda Singh Bedi, was a member of the Higher Judicial Service and retired as District & Sessions Judge, Hissar, in the year 1996. Appellant is the semi literate widow of the deceased. Appellant assails the impugned judgement primarily on the ground that the bequest made in the said Will was unnatural, in as much as, it made no provision for the residence of the appellant, who was having no source of income and the deceased bequeathed the only house he possessed to his sons, viz. respondents 1 & 2. Appellant urges that there was no evidence of any strained or embittered relations between the deceased testator and the appellant and there was no conceivable cause for exclusion of the appellant from inheritance of the house, which was the prime asset of the deceased. Learned counsel urges that, in the normal course, wife would be the first beneficiary of the deceased's estate in the absence of strained relations.

3. Learned counsel for the appellant also placed reliance on Kalyan Singh Vs. Chhoti and Ram Pyari Vs. Bhagwant & Others , in support of his contention that exclusion of the wife without disclosure of any reason or circumstance shrouded the bequest with suspicious circumstances and raised doubts on the authenticity of the Will.

4. The submissions made by learned counsel for the petitioner, on the first flush, appear to be attractive. However, upon an analysis of all the facts and circumstances and the conduct of the parties and the course of this litigation, the same is devoid of merit.

5. Let me notice the facts leading to the filing of the present appeal:

     (i)  Deceased  Gainda  Singh Bedi, a former District  &  Sessions      Judge,  passed away on 16.11.1988, leaving behind the  appellant,      one  married daughter Ms. Usha Singh and two sons, viz.  Joginder      Singh Bedi, respondent No.1 and Mr. Jatinder Singh Bedi, respondent No.2.
 

     (ii) Respondent  No.1, Joginder Singh Bedi, had filed a  petition      for  grant of probate, viz. No.76/89 titled J.S. Bedi Vs.  State,      in  respect  of the Will dated 15.1.1986. As per the  said  Will,      house  No.9/11, Kalkaji Extension, New Delhi, was  bequeathed  in      favour  of Joginder Singh Bedi and Jatinder Singh Bedi,  the  two      sons  of the deceased testator. His moveable estate  was  divided      equally amongst his widow, two sons and the daughter and a grandson.
 

     (iii)  Appellant Padma Bedi and respondent No.4, Ms. Usha  Singh,      had filed the written statement in response to the said petition.      The execution of the Will dated 15.1.1986 was not denied.  However,  it  was claimed that the said Will stood  revoked  with  the      execution  of a fresh Will dated 24.1.1987, purported to be  executed by the testator.
 

     (iv) Appellant,  almost four years after the filing of the  petition  No.78/89  (new  number 104/89)  filed  petition  No.268/94,      titled  Padma Bedi Vs. State, seeking probate in respect  of  the      Will dated 24.1.1987. 
 

     (v)  The hearing of the two petitions was consolidated and  after      framing  of issues, evidence was led. Shri Joginder  Singh  Bedi,      respondent No.1 in the present appeal, in support of his petition      for  grant  of probate in respect of the  Will  dated  15.1.1986,      examined four witnesses, two of them being attesting witnesses to      the  Will, viz. Shri Rajesh Mahana, Advocate and Shri  PNS  bedi,      step-brother of the deceased. Petitioner also examined himself as      well as Shri Jatinder Singh Bedi. The execution of the said  Will      was  duly  proved by the attesting witnesses in  accordance  with      law.  In  addition, petitioners had also produced and  proved  on      record  the affidavits and declarations filed by  the  appellant,      Ms. Padma Bedi as well as Ms. Usha Singh, viz. Exhibits RW.3/1 to      RW.3/3,  admitting the Will dated 15.1.1986 as the last  Will  of      the deceased Testator. 
 

     By the affidavit, Exhibit RW.3/3, Ms.Padma Bedi, appellant, swore       that  the deceased had left the Will dated 15.1.1986,  appointing       Joginder Singh as the Sole Executor and that she had no objection       if the assets and estate of deceased Testator are divided as  per       the Will dated 15.1.1986. Another affidavit was filed giving  no-objection to the disbursement of the amount lying in the  Savings       Bank Account, i.e. Exhibit RW.3/2. A declaration, Exhibit RW.3/1,       was  also  filed giving no-objection to the  Executor  proceeding       with the disposition of the assets as per the Will. The attesting       witnesses  to Will dated 15.1.1986 and the Executor  were  cross-examined at length by the counsel for the appellant, who  deposed       with regard to their relationship with the deceased. The Executor       deposed  about  the factum of deceased being attended to  by  him       when sick and payment of hospital and medical bills.  Respondents       1 & 2 also claimed that the appellant, apart from the  moveables,       which  she  got under the Will, already had with her  the  entire       jewellery  and  Istridhan and other articles and  had  ample  resources to maintain herself. She was running and keeping a car. 
 

     (vi) Appellant,  in support of her petition and for  proving  the       Will  dated 24.1.1987, had examined one Shri M.K.  Sharma,  Advocate,  and Shri R.K. Babbar. Shri M.K. Sharma admitted  that  the       other  attesting  witness  to the Will dated  24.1.1987  had  not       signed  in his presence. The second witness Shri R.K. Babbar  was       an employee of the son-in-law of the appellant, i.e. the  husband       of Ms.Usha Singh and appears to be an interested witness.  Appellant  herself  had appeared and deposed that she  does  not  know       anything  about the Will and as to how the case had  been  filed.       She  also did not remember whether the Will dated  24.1.1987  was       given  to her by her lawyer or not. Appellant also  admitted  her       signatures  on the affidavits Exhibits RW.3/1 to  Exhibit  RW.3/3       accepting and giving "No Objection" to the Will dated 15.1.1986.
 

     (vii)     It  was  in these circumstances that  counsel  for  the       appellant made the statement on 13.1.1987 to the effect that,  "I       have  instructions  from the petitioner to withdraw  the  present       petition unconditionally. I may be allowed to withdraw the same."       Accordingly,  on 13.1.1987 petition No.268/94, titled Padma  Bedi       Vs. State, seeking probate of Will dated 24.1.1987, was dismissed       as withdrawn, with no order as to costs.
 

6.   Learned  counsel for the appellant relied on Kalyan Singh  Vs.  Chhoti  (Supra) in support of his submission that in the absence of strained  relations or embittered feelings, wife is normally the first beneficiary of the  husband's bounty. The exclusion of the wife would run counter to the social  values. The Apex Court in para 20 of the said judgement observed as under:
      "It  has  been said almost too frequently to  require  repetition       that a Will is one of the most solemn documents known to law. The       executant  of the Will cannot be called to deny the execution  or       to  explain  the circumstances in which it was executed.  It  is,       therefore, essential that trustworthy and unimpeachable  evidence       should be produced before the Court to establish genuineness  and       authenticity  of the Will. It must be stated that the  factum  of       execution and validity of the Will cannot be determined merely by       considering the evidence produced by the propounder. In order  to       judge  the credibility of witnesses and disengage the truth  from       falsehood  the court is not confined only to their testimony  and       demeanour.  It  would be open to the Court  to  consider  circumstances  brought  out in the evidence or which  appear  from  the       nature  and  contents of the documents itself. It would  be  also       open to the Court to look into surrounding circumstances as  well       as inherent improbabilities of the case to reach a proper conclusion on the nature of the evidence adduced by the party."
 

7. In Ram Pyari Vs. Bhagwant (Supra) the Apex Court reiterated its observations in H. Venkatachala Vs. B.N. Thimmajamma . It was held that proving mere execution of the Will by producing the scribe or the attesting witness or proving genuineness of testator's thumb impression, by themselves, were not sufficient to establish the validity of the Will unless suspicious circumstances, usual or special, are ruled out and the Court's conscience is satisfied not only on execution but about its authenticity also.

8. In the light of the foregoing judicial pronouncements, let us consider whether there can be said to be any suspicious circumstances surrounding the Will or circumstances, which raise doubts on the authenticity and genuineness of the Will. While it is true that the appellant widow has been excluded from the bequest in respect of the immoveable property, viz. the house, there are several factors which reinforce the authenticity and genuineness of the Will. The entire Will is hand-written by the deceased testator. Its execution has been duly proved. One attesting witness was an advocate and the other was the step-brother of the deceased, who have been cross-examined at length. Significantly, in the written statement filed, the appellant did not question or doubt the execution of the Will dated 15.1.1986. However, it was her case that due to the changed behavior of the sons of the deceased, viz. respondents 1 & 2, the deceased had revoked the said Will dated 15.1.1986 and had executed another Will dated 24.1.1987, in respect of which the probate was sought. No plea of suspicious circumstances surrounding execution of the Will dated 15.1.1986 was ever taken. On the other hand, as noticed above, appellant and her daughter had filed affidavits and declarations, admitting the execution of the Will dated 15.1.1986 and giving their no-objection to the executor disposing of the assets in terms of the Will. The executor, on the basis of the said no-objections, had even obtained mutation of the house in his favour as well as of Shri Jatinder Singh Bedi, the other son. Appellant has belatedly, after of period of nearly four years, filed the petition seeking probate of the Will dated 24.1.1987. The execution of the said Will could not be proved in accordance with law. In fact, one of the attesting witness, Shri M.K. Sharma, Advocate, deposed that the second witness had not signed the Will in his presence. Appellant herself stated that she does not remember about the Will and could not recall how the probate petition came to be filed and whether the lawyer had given any paper to her or she had given any Will to the lawyer. She said that she never took interest in such matters and did not know how many Wills were written or revoked by her late husband.

9. Another aspect which may be noticed here is that the deceased is stated to have suffered a heart-attack and was hospitalised. He is stated to have been discharged on 23.1.1987. Learned counsel for the respondent had, therefore, submitted that it was highly improbable that after being discharged from the hospital the deceased would drive down to the District Courts at Tis Hazari, get the Will typed and execute the same on 24.1.1987. Learned counsel for the respondents 1 & 2 submitted that it was a fabricated Will. It was this second Will dated 24.1.1987, which was shrouded with suspicion inasmuch as it purported to bequeath all the assets to the Appellant to the exclusion of all the other heirs. However, in my view, it is not necessary to go into this aspect since appellant through her counsel had withdrawn the petition seeking probate of the Will dated 24.1.1987. This leaves only the Will dated 15.1.1986. It would appear that after the recording of the statement of the appellant and the other witnesses in support of the Will dated 24.1.1987, the appellant perforce, realising the weaknesses in her case, had withdrawn the probate petition initiated by her. In any case, admittedly, the appellant has not sought to take any action against the counsel who is alleged to have acted without her consent in withdrawing the probate petition. Not only this, the same counsel continues to represent the appellant in other matters and the present appeal is also being argued by his son. Appellant's contention, therefore, that the said probate petition was withdrawn without her consent and the same is not binding on her is without merit.

10. Learned counsel for respondents 1 & 2 also submitted that the relations of the deceased with his sons, viz. respondents 1 & 2, were excellent and there was nothing amiss in the deceased bequeathing the house to both of them as he had the confidence that his wife would be looked after well by the sons and that there were no strained relations between the appellant and her sons. The submission of the learned counsel is that it is the greed of their sister and her husband and the appellant's inclination towards their sister that had prevailed upon the appellant to set up the second Will dated 24.1.1987 after a period of nearly four years and after admitting the Will dated 15.1.1986 and giving no-objections for mutation and disposition of the property in accordance with it.

11. In view of the foregoing discussion, I do not find any merit in the appeal. The appeal is, accordingly, dismissed, with no order as to costs.