Vidya Rani & Anr. vs Surinder Kaur & Anr.
1998 Latest Caselaw 802 Del

JUDGMENT

Usha Mehra, J.

1. The appellants have felt aggrieved by the impugned order passed by the Additional District Judge, Delhi whereby he dismissed their petition seeking probate of the 'Will' of their deceased mother Smt. Iqbal Kaur. BY the impugned order the Trial Court has held that these appellants had failed to prove the said `Will' to be genuine or the last testament of their mother Smt. Iqbal Kaur. The impugned order has been assailed, inter alia, on the grounds that the Court below relied upon the statement purported to have been made by the appellant which statement was neither produced by the respondent nor proved on record. Moreover, the probate petition could not have been dismissed on the ground that there was delay in producing the 'Will' nor the testimony of the husband of appellant No.1 could be rejected on the ground that he was an interested witness. The `Will' could not have been doubted on the ground that it did not disclose the purpose for which the property was being used nor a shadow could be casted on the 'Will' on the ground that the testatrix was relevantly young in age when the alleged will purported to have been executed by her. Once the attesting witness was adduced who proved the execution of the `Will', the appellants discharged their onus. The `Will' thus stood proved to be genuine. Its execution by their mother stood proved by the testimony of the appellants and other witnesses. Genuineness of the `Will' ought to have been inferred rather than casting doubt on the same.

2. In order to appreciate the challenge raised, lets have glance at the brief facts of the case. These are that Smt. Iqbal Kaur, W/o late Shri Balwant Singh left behind three daughters i.e. these two appellants and present respondent. Iqbal Kaur died on 2nd January,1982. She left behind moveable and immoveable properties, namely, house No.WZ-2K (New No. K-19), Shyam Nagar, New Delhi, measuring about 234 sq.yards. beside the household goods. An ancestral property situated at Tehsil Asandh, District Karnal (Haryana) and a sum of Rs.41,374/- in her saving bank account in the State Bank of India, Tilak Nagar, New Delhi. These appellants found this 'Will' upon the death of their mother Smt.Iqbal Kaur dated 1st May,1972 written in Urdu and signed by the deceased. The 'Will' specifically dealt with the immoveable property i.e. of house at Shyam Nagar and the household goods lying therein. Appellants filed petition seeking probate to which respondent herein filed objections on the ground that the 'Will' was forged. Their mother being illiterate did not know how to put her signatures in Gurmukhi. She never ever signed any document. Moreover, the 'Will' was not set up by the appellants at the first available opportunity i.e. when the appellants sought succession of 2/3rd share of the amount lying in the bank account of their mother or while claiming 2/3rd right in the ancestral land at Karnal. It was as a counter blast to her suit that this probate petition had been filed. That appellants in their suit for injunction based their right on this property at Shyam Nagar on the basis of some declaration made by their mother in 1977 before the Sangat (gathering). Even in their suit claiming right over this property appellants did not rely on the 'Will'. The 'Will' had been fabricated in order to deprive the respondent who happens to be eldest sister of the appellants of her 1/3rd share in this property. As already pointed out above, the Court below found substance in these objections and dismissed the petition of the appellants.

3. I have heard Mrs. Savita Malhotra, counsel for the appellants and Mr. C.S. Duggal for the respondent. After perusing the record at least one thing gets clear that parties have been litigating for a long period. And that the appellants for the first time after almost nine years of the death of their mother set up this 'Will' to claim their right over the immoveable property at Shyam Nagar. There is no explanation forthcoming for this delay. Since according to these appellants their mother after executing the 'Will' had informed about the same to the appellants then what prevented them to set up this Will at the first available opportunity. Why the 'Will' dated 1st May,1972 saw the light of the day only in July,1991? This is the key to the answer of this appeal.

4. The principal of law as to how genuineness and authenticity of a 'Will' has to be established came up before the Apex Court in the case of Kalyan Singh Vs. Smt. Chhoti and Ors. . In that case the plaintiff as per the Will wanted to be declared as the sole legatee with no right whatsoever to the testator's wife. The Apex Court observed that this casts a serious doubt on genuineness of the Will. Moreover the Will had not been produced for very many years before the Court or before authorities even though there were occasions to produce it for asserting plaintiff's title to the property. This was considered to be a suspicious circumstance. The plaintiff in that case had not taken any step to remove the same by placing satisfactory material on record. It was, therefore, held that the Will was not genuine. The ratio of Kalyan Singh's case (supra) on all force apply to the facts of this case. As already observed above the Will was purported to have been executed on 1st May,1972. The appellants as well as respondent applied for succession certificate with regard to the amount of the deceased lying in her bank account. The respondent in her petition seeking succession clearly mentioned that the mother died intestate, therefore, she was entitled to 1/3rd share in the money. Her statement was recorded on 19th August,1985 pursuance to which succession certificate was granted to her. Court held that since her mother died intestate hence being the legal heir she had 1/3rd share in the amount. The present appellants also applied for succession certificate claiming 2/3rd share in the amount left by their mother. Statement of Smt.Vidya Rani appellant was recorded. In their petition as well as in the statement of Vidya Rani reliance was placed on the succession certificate issued in favour of the respondent. These appellants did not rely on the 'Will'. Perusal of the order passed by Shri J.P.Sharma, Sub-Judge on the petition filed by present respondent Surinder Kaur bearing No.278/84 the Court specifically observed that the deceased died intestate. The present appellants claimed 2/3rd share in the securities on the strength of the order passed in respondent's petition No.278/84. They at no stage protested that their mother did not die intestate or that she left a 'Will' in their favour. Non raising of any protest against the observation in order in petition No.278/84 by the appellants casts a suspicious circumstance. The appellants have failed to give any satisfactory explanation as to why they relied on the order passed in favour of respondent and not the 'Will'. Why the 'Will' was not set up at that time. The matter does not end here. Parties applied for division of ancestral land at Karnal. They appeared before the Patwari and Girdwar in 1983. They wanted the said agricultural land to be divided in three equal shares i.e. 1/3rd share each of appellants and the respondent. Accordingly mutation of the said land was done in the name of the appellants and the respondent. The mutation was carried out vide order of the Patwari and Girdwar on 17th June,1983. Even at that time the appellants herein did not set up the 'Will'. If the 'Will' was in existence nothing prevented the appellants to set up the same. The fact that 'Will' existed was not disclosed to any one. This is what has been confirmed by the testimony of their real matrimonial uncle Shri Avtar Singh who appearing as RW-2 in no uncertain words stated that the appellants and respondent came to him at Karnal as he reside at Karnal in order to get mutation of their ancestral land in their favour after the death of their mother Iqbal Kaur. He accompanied them and appeared before the Tehsildar. The present appellants did not disclose existence of any Will executed by their late mother. The fact that these people went to Avtar Singh at Karnal seeking his help to get mutation of the agricultural land has not been denied nor Avtar Singh was subjected to any cross examination on this aspect of his testimony. Not even a suggestion was given to him that the existence of the Will was disclosed at the time of mutation or disclosed to him at that time. This also raises suspicion about the genuineness of the 'Will'. The Trial Court took this as a suspicious circumstance but appellants did not take any step to remove the same.

5. The position with regard to proving of the Will is no longer in doubt. It is for the propounder of the Will to prove it. Propounder has to give proof of the testamentary capacity and signature of the testatrix. Propounder has also to explain the condition of testatrix's mind, the deposition made in the Will being not unnatural, improbable or unfair and that the testatrix's mind was free from pressure. It is only when propounder succeeds in removing the suspicious circumstance the Court would give effect to the Will even if the Will might have been unnatural in the sense it has cut off wholly or in part any legal heir of the testatrix. Where the signature of the testatrix are challenged on the ground of forgery or fabrication as in the present case, and the propounder failed to establish through authentic evidence that the 'Will' bore the signatures of the testatrix coupled with the fact that the 'Will' had neither been produced through a public authority or from a Court but produced by the appellants who are major beneficiaries under the 'Will' and the 'Will' being an unregistered document, to my mind, this will caste suspicion about the genuineness of the 'Will'. More so when the 'Will' saw the light of the day in July,1991 i.e. after about nine years of its execution. Since the signature on the 'Will' alleged to be that of the testatrix were denied by the respondent and her witnesses who happened to be real brother and nephew of the testatrix burden shifted on the appellants to prove that the signature on the 'Will' were of Iqbal Kaur and that she knew how to sign in Gurmukhi. When the signature on the 'Will' were denied then the burden shifted on the appellants to prove the same by proving from Government record or from any authentic document that the signature on the 'Will' were that of deceased Iqbal Kaur and that the testatrix knew how to sign in Gurmukhi and that she had been putting her signatures on the documents. But the appellants failed to discharge this burden. This by itself may not cast suspicion but this circumstance coupled with other circumstances discussed above compel this Court to draw inference that the execution of the 'Will' is not free from doubt.

6. In the case of Pushpawati & Ors. Vs. Chandraja Kadamba and Ors. the Apex Court gave the illustration of suspicious circumstances with regard to genuineness of the 'Will' and one of the suspicious circumstance was considered to be when the signature of the testator were denied on the Will. The Apex Court observed that if the propounder succeeds in removing the suspicious circumstance the Court would give effect to the Will. In the present case as already observed above the propounders have failed to remove the suspicion about genuineness of the 'Will' by not proving by any authentic document the signature on the 'Will' coupled with the fact that 'Will' was set up for the first time after the respondent claimed her share in this property raising suspicion surrounding the 'Will'. The present appellants not only failed to remove the suspicious circumstances, they even did not make any effort to give even an explanation for the delay. Therefore, the Trial Court, to my mind, rightly came to the conclusion that the execution of the 'Will' is not free from doubts. The Trial Court looked into all aspects of the case and came to the conclusion that there are suspicious circumstances which cast doubt on the genuineness of the 'Will' in question and which the appellants failed to remove. The Trial Court came to this conclusion after analysing the facts placed on record and after considering the oral and documentary evidence produced. He appreciated the evidence justifying the conclusion, this Court while sitting in appeal, to my mind, should not lightly interfere. To support this conclusion reference can be made to the decision of Federal Court in the case Madholal Sindhu of Bombay Vs. Official Assignee of Bombay & Ors. AIR (37) 1950 Federal Court 21.

For the reasons stated above I find no merit in the appeal. Dismissed.