Smt. Reeta Ramesh @ Reeta Sawhney vs State
2006 Latest Caselaw 1436 Del

JUDGMENT

Pradeep Nandrajog, J.

1. Whether Late Sarukkai Srinivasa Gopalachari Raghavachari S/o Late Rao Bahadaur S.T. Srinivasa Gopalachari died intestate or is the testament dated 27.5.1974 his last legal and valid testament? The propounder of the will is Ms. Rita Sawhney. She was married to Flight Lieutenant R. Ramesh, a son born to the deceased from his second wife. She is the principal beneficiary under the will.

2. Before adverting to the evidence on record a few important dates may be noted. The alleged will is stated to have been executed on 27.5.1974. The deceased died on 25.8.1976. Petition seeking probate of the will has been filed on 3.2.1978.

3. One things stands out. The will has been propounded a year and five months after the death of the deceased.

4. The deceased had two wives, namely, Ms. R. Jayalakshmi (first wife) and Ms. Hilda @ Mira Raghavachari (second wife). Nalini, Radha and Nandini were the three daughters born to him. S.R. Narayan, Sqdn. Ldr. R. Ramesh and S.R. Niranjan were the three sons born to him.

5. Under the will, amount lying in credit in the PPF account in the State Bank of India, Lajpat Nagar in name of the deceased has been bequeathed to one Mr. B.R. Dolia, a friend of the deceased. Stating that the deceased was to receive a pension of Rs. 2500/- per month for a period of 10 years with effect from 1.7.1970, and recording that if he died before completion of the said 10 years' period, the document mandates that the pension would be distributed amongst 5 beneficiaries. 4 beneficiaries would get Rs. 350/- per month and the petitioner would get Rs. 1,100/- per month. 2 out of 4 beneficiaries are charities. 1 beneficiary is S.R. Niranjan, son of the deceased and the other is Ms. Mira Raghavachari, the second wife of the deceased. Amounts payable to the deceased under annuity deposit certificates issued by Reserve Bank of India have been bequeathed to the petitioner. All movable assets in the residence of the deceased have been bequeathed to the petitioner. Deceased's 1/6th share in 34 acres of land in the State of Tamil Nadu near Mahabalipuram has also been bequeathed to the petitioner. An executor, namely, Ambrish Kumar, Adv. stands named to execute the will.

6. Except for a son and the second wife who have been bequeathed Rs. 350/- per month and that too till 30th June 1980, nothing has been bequeathed to any other family member. The entire bequest is in favor of the daughter in law.

7. It would also be relevant to note that as of the year 1974, Radha, Nandini and S.R. Niranjan, the two daughters and the son of the deceased were aged 29, 24 and 14 years respectively. The said daughters and son were unmarried.

8. The will is typed with a manual typewriter and consists of 8 sheets. It bears the signatures of the deceased on the last page just below where the will concludes. No other page bears any signatures or even initials. On the first page there are two corrections in hand. At both places, after carrying out the corrections by hand, signatures of the deceased have been appended.

9. However, the corrections with signatures, on the first page are in a different ink and with a different pen vis-a-vis the signatures on the last page. The corrections and signatures on the first page are with a ball pen and signatures on the last page are with an ink pen.

10. The endorsement on the last page of the will recording due execution reads as under:

I, the above mentioned Sarukkai Srinivasa Gopalachari Raghavachari have signed every page of this will which is in 8 sheets and I have also also signed this will on the TWENTY SEVENTH May, 1974 in the presence of the following two witnesses who have also signed in front of me as witnesses.

11. Thus, apart from the feature appearing on the will noted above i.e. different pen used while signing on the last page of the will and corrections with signatures on the first page, second thing which emerges is a hiatus between what is recorded in the will that each page has been signed but no signatures existing on pages 2 to 7.

12. A will is normally executed by a person where he intends to alter the rule of succession or where he desires a particular form of inheritance and to that extent, nature of bequest is not of much substance to invalidate a will, but consistent view taken by courts is that this could be treated as a suspicious circumstance. What weightage has to be attached to this suspicion would depend upon case to case. Of course, suspicion being a presumptive evidence, is a weak evidence and can be dispelled.

13. In my decision dated 28.8.2006 in Probate Case No. 39/1985, Vidya Sagar Soni v. State and Ors., I had extensively dealt with the legal burden of proof when a will is propounded. What would constitute suspicious circumstances and what form of affirmative proof should be sought by the court to satisfy the judicial conscience that the document propounded is the last legal and valid testament. I need not repeat. Principles culled out in paras 5 to 21 of the said decision are as under:

5. Section 2(h) of the Indian Succession Act, 1925 defines a will to mean 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.

6. The legal burden to prove due execution always lies upon the person propounding a will. The propounder must satisfy the judicial conscience of the court that the instrument so propounded is the last will of a free and capable testator.

7. A will is a solemn document, being written by a person who is dead and who cannot be called in evidence to testify about the due execution of the will. It is the living who have to establish the will. It naturally throws a heavy burden on the court to satisfy its judicial conscience that the burden of proof of due execution is fully discharged and every suspicious circumstance explained.

8. No specific standard of proof can be enunciated which must be applicable to all the cases. Every case depends upon its own circumstances. Apart from other proof, conduct of parties is very material and has considerable bearing on evidence as to the genuineness of the will which is propounded. Courts have to be vigilant and zealous in examining evidence. Rules relating to proof of wills are not rules of Laws but are rules of prudence. Normally, a will is executed by a person where he desirous, to either alter the normal rule of succession, or where he desirous to settle his estate in a particular manner amongst the legal heirs. Therefore, though to be kept in mind, as to what is the nature of bequest too much importance cannot be attached to the disproportionate nature of a bequest. However, as observed in , Rabindra Nath Mukherjee and Anr. v. Panchanan Banerjee (dead) by LRs, disproportionate nature of a bequest is no doubt a suspicious circumstance to be kept in mind, but, being a mere suspicion, it is capable of being dispelled by other evidence to show voluntary character of the document.

9. Therefore, the first rule to appreciate evidence is to peruse the will. Normally, if there is rationality in a will, a presumption arises about due execution. Of course, being a presumption, it is rebuttable.

10. As observed in Smt. Kamla Devi v. Kishori Lal Labhu Ram and Ors., the omission of a close relation from the bounty of a testator raises a presumption in favor of some undue influence. The probative force of such a testament rises and falls in inverse ratio to its unreasonableness.

11. The more unreasonable an instrument is, the less probative value it carries. Where the terms of a will are unusual and the evidence of testamentary capacity doubtful, or due execution doubtful, the vigilance of the Court will be roused and before pronouncing in favor of the will, the court would microscopically examine the evidence to be satisfied beyond all reasonable doubt that the testator was fully conversant of the contents and executed the will fully aware of what he was doing.

12. Expanding on the care and caution to be adopted by courts, and presumptions to be raised, in the decision reported as (1864) 3 Sw & Tr. 431 In The Goods of Geale, it was opined that where a person is illiterate or semi literate or the will is in a language not spoken or understood by the executor, the court would require evidence to affirmatively establish that the testator understood and approved all the contents of the will.

13. This affirmative proof of the testator's knowledge and approval must be strong enough to satisfy the court, in the particular circumstances, that the will was duly executed.

14. One form of affirmative proof is to establish that the will was read over by, or to, the testator when he executed it. If a testator merely cats his eye over the will, this may not be sufficient. [see 1971 P.62 Re Moris). In the report published as (1867) 1 P.D.359 Goodacr v. Smith, it was held that another form of affirmative proof is to establish that the testator gave instructions for his will and that the will was drafted in accordance with those instructions.

15. Courts have to evaluate evidence pertaining to the circumstances under which the will was prepared. If a will is prepared and executed under circumstances which raise a well grounded suspicion that the executor did not express his mind under the will, probate would not be granted unless that suspicion is removed.

16. As held in the report published as (1838) 2 Moo P.C. 480 Barry v. Butlin, a classic instance of suspicious circumstances is where the will was prepared by a person who took a substantial benefit under it. Another instance is as opined in the report published as (1890) 63 LT 465 Brown v. Fisher where a person taking benefit under the will has an active role to play in the execution of the will.

17. A word of caution. Circumstances can only raise a suspicion if they are circumstances attending, or at least relevant to the preparation and execution of the will itself.

18. How the legal heirs acted and how and when a will was propounded after the death of the executor are also relevant to decide upon, where the will is genuine or a created or a procured document.

19. Another point that has to be considered is about the improbability in the manner in which the instrument is scripted. As observed in the report published as H.Venkatachala Iyengar V. B.N. Thimmajamma and Ors., instance of suspicious circumstances would be alleged signatures of the testator being shaky and doubtful, condition of the testator's mind being feeble and debilitated, bequest being unnatural, improbable or unfair. Apart from these infirmities, propounder taking a prominent part in the execution of the will, more so when substantial benefits flow to them are all presumptive of the will not being duly executed and or of suspicious circumstances.

20. Suspicious circumstances are a presumption to hold against the will. Greater is the suspicion more heavy would be the onus to be discharged by he who propounds the will.

21. Reference to satisfaction of judicial conscience is a heritage inherited by court's since time immemorial for the reason, as noted above, a will is a solemn declaration as per which the living have to carry out the wishes of a dead person.

14. The instant will has been witnessed by one Gajender Singh and one C. Devarajan.

15. C. Devarajan has been examined by the petitioner to prove the will. In his examination-in-chief he deposed that he knew the deceased for the last 22 years and that he and the other attesting witness had attested the due execution of the will by the deceased. Regarding preparation of the will he stated that the deceased was a liasion officer with Amalgamations Pvt. Ltd. and was residing at I-28 Jangpura Extension, New Delhi. That he i.e. the witness was working under the deceased as an assistant. That office of Amalgamations Pvt. Ltd. was also at I-28, Jangpura Extension. He stated that the will Ex.PW-1/1 was typed by him under instructions from the deceased. After he typed the will, some corrections were made by the deceased in his own handwriting. Thereafter he read out the will. It was then executed and attested. He further stated that while typing the will a carbon copy was made. He further stated that he typed the will from a manuscript supplied to him by the deceased. He stated that he had been working under the deceased since 1960.

16. In his cross examination, the witness admitted that the will in question is not signed by the deceased on each page. He categorically admitted, to quote in his words:

I cannot say that the will presented was the document executed by the deceased. Again said, that the will in question has been executed by the deceased and as stated by me it has been signed by him.

17. Origin of the will is stated to be its recovery from an almirah or probably a table drawer opened after a few days of the death of the deceased. To prove said facts, Vijay Karan, a retired police officer of the rank of Inspector General of Police was examined by the petitioner. He deposed that after a few days of the death of the deceased he received a message from the petitioner who wanted him to be a witness at the time of the opening of an almirah or table drawer of the deceased. That in response to the said request he reached the house. Almirah and table drawer were opened. Lot of documents were recovered which included a will. An inventory was prepared and all articles were handed over to the petitioner. In cross examination he admitted that the petitioner was divorced from the son of the deceased but stated that he handed over the documents to her as she was residing with the deceased.

18. In her deposition, the petitioner stated that the deceased was her father-in-law and before his death he handed over keys of the drawer of his desk to Mr.C. Vardarajan. After his death, in the presence of Mr. C.Vardarajan and Mr.Vijay Karan the table drawer was opened. Contents were taken out. A will was recovered. Everything was handed over to her under a receipt. She stated in her examination-in-chief that the relations between the deceased and his wives were cordial.

19. The witness was extensively cross examined on her status as a divorcee, in that, when she was divorced. She admitted that she was divorced prior to the date of institution of the present petition but when called upon to give a specific reply as to the date on which the divorce took place, she replied that it was perhaps in 1973.

20. Objectors examined two witnesses, Dalip Kumar Sharma as DW-1 and Ambrish Kumar as DW-2. DW-1 proved certain documents being certain letters exchanged. However, I note that there is an objection taken that these documents were not filed earlier.

21. Having perused the documents, they are of no concern and thereafter I need not decide on their admissibility as I intend to ignore them on grounds of irrelevancy. Even during arguments, learned Counsel for the objectors made no submissions pertaining to the said documents.

22. Ambrish Kumar stated that he was in legal profession since 1965. That he had no knowledge about the will and that he was not aware that he had been appointed as an executor of the will. He denied having withdrawn any amount from the public provident fund account of the deceased with the State Bank of India.

23. The will appoints Ambrish Kumar as its executor. However, Ambrish Kumar has made a disclaimer knowing anything about the will. It is relevant to note that in Annexure-B to the petition, being schedule of assets of the deceased, it has been categorically stated that the amount lying in credit in the name of the deceased in the public provident fund account has been withdrawn by Ambrish Kumar. This has been categorically denied by Ambrish Kumar.

24. I find it a little strange that the deceased having appointed a lawyer and his friend as an executor has not handed over a copy of the will to him for the will to be executed.

25. A person may not like his relatives to know about his bequest and therefore non-availability of copy of the will with the beneficiaries or other family members may be an irrelevant consideration, but where an outsider is appointed as an executor, surely it is a relevant circumstance to be taken into account while evaluating evidence as to what would be the effect of such executor having neither knowledge nor possession of even a copy of the will.

26. Vijay Karan has deposed that when the table drawer and almirah of the deceased were opened, a few days after his death, an inventory was prepared. Petitioner has stated in her evidence that she received the articles recovered under receipt from those who had witnessed the recovery. Neither the inventory nor the receipt has surfaced.

27. If petitioner intended to maintain the purity of the recovery, I would have expected that the children and wives of the deceased were notified that in the presence of independent witnesses the almirah and the table drawer of the deceased would be opened. Their presence would have led assurance to the purity of the recovery.

28. I see no reason why petitioner did not even issue notice to the children and wives of the deceased to be present in the house when the almirah and the table drawer were opened.

29. C. Devarajan is a little shaky in his cross-examination when he first stated that he could not say with certainty that the will presented was the document executed by the deceased, but later one went to affirm that it was the document.

30. The will, as noted above is executed on 27.5.1974. Petitioner is referred to as the daughter-in-law of the deceased. However, as noted above, petitioner was subjected to a sustained cross-examination regarding her divorce from Flight Lieutenant R.Ramesh, son of the deceased to whom she was married.

31. Marriage and divorce are events which take place probably once or twice in the life time of a person. They are momentous events. The evasive answers of the petitioner and her statement that probably she was divorced in the year 1973 are clear indications that the petitioner, being conscious that it would be argued against her that if on the date of execution of the will, divorce had come through, she would not be referred to as the daughter-in-law of the deceased, a fact so recorded in the will, remained evasive.

32. For record, I may note that after arguments were concluded and matter was reserved for judgment on 8.8.2006, an application was filed by the petitioner being IA No. 9054/2006 stating that divorce was granted on 13.3.1975. It was stated that time be granted to place on record the decree of divorce.

33. It was stated in the application that the photocopy of the decree is annexed with the application. Nothing was annexed with the application. In any case, holding that it was too late to file any document at such a late state, application was dismissed.

34. Is there a probability of the deceased having executed a will, but not the one in question? Is there a probability that having retained the first and the last page, pages 2 to 7 of the will were replaced? If yes, who probably did so? The 3 questions become important in the peculiar facts and circumstances of the present case.

35. On the execution of the will by the deceased, testimony of C.Devarajan that the deceased executed a will in the year 1974 and that he had typed out the will appears not to have been shaken as a result of his cross examination. But, statement of this witness in cross-examination that he was not sure whether this was the will, of course immediately retracted thereafter, has to be viewed in light of the contradiction in the will itself where just before execution it has been written that the executor has signed every page of the will but no signatures exist on pages 2 to 7. There is every possibility that 6 pages were changed.

36. The deceased died on 25.8.1976. Probate petition was filed on 3.2.1978. The will, if any executed, was available with the petitioner as per the testimony of the petitioner and her witnesses when the drawer of the deceased as also almirah was opened 10 days after the death of the deceased. Anything could have been done to change the pages. Petitioner has given no explanation as to why she sought probate of the will after an inordinate delay, more so, when there was no consensus in the family that the deceased executed the will.

37. In this context, the factum of Shri Ambrish Kumar, executor named in the will, an advocate and close friend of the deceased having no knowledge of the will assumes significance.

38. As per the testimony of C. Devarajan, a carbon copy of the will was prepared. I would not be wrong in presuming that a person prepares a document in duplicate to keep one with himself and the other with a trusted known person. To my mind executor having no knowledge of the will, much less its copy is another suspicious circumstance. Further, attempt of the petitioner to show that the executor appointed under the will took steps to partly execute the will, evidence by the assertion in the petition that the executor withdrew the amounts lying in credit in public provident fund account of the deceased, being falsified, is another suspicious circumstance.

39. In the report published as Mt. Biro v. Atmaram a somewhat analogous case where the wife was practically disinherited and there was a unexplained delay in producing the will in public was held to be suspicious enough to throw out the will which was propounded.

40. He who propounds a will has to bring on record affirmative evidence to establish due execution which would include evidence to explain the suspicious circumstances.

41. At best, evidence brought on record by the petitioner is that the deceased executed a will, but whether Ex.PW-1/1 is the will in question is highly in doubt for the reason except for the first and the last page, other pages do not contain signatures of the deceased. The concluding part of the will records positively that the deceased has signed on every page of the will. Secondly, even the corrections and signatures on the first page vis-a-vis the last page show an apparent disharmony for the reason the corrections and signatures on the first page are with a different pen than the signatures on the last page. The other suspicious circumstance is the public declaration of the will after a year and five months of the date of the death of the deceased. This period could safely be consumed to change, if not 7, 6 pages of the will. The next suspicious circumstance is the disproportionate nature of the bequest and its peculiar nature where a divorced daughter-in-law gets the entire estate save and except meager crumps to two family members. To my mind, a very material and relevant suspicious circumstance is that at the time of execution of the will, a minor son and two major daughters of the deceased were unmarried. The deceased is a Tamil brahmin and I see no reason why he would not make at least some provision in the will for the marriage of his two unmarried daughters and something for his minor son other than Rs. 350/- per month which would have been received by the minor son only till 30th June 1980 i.e. for a period of about 6 years from the date of execution of the will.

42. Since cumulatively, the circumstances brought on record create suspicion that the will relied upon is not the last testament of the deceased. The suspicious circumstances have neither been explained nor dispelled by the petitioner. The suspicion establishes a high degree of probability justifying a reasonable conclusion that the will in question, Ex.PW-1/1, is not the last legal and valid testament of the deceased.

43. Before concluding, I may note that submissions were made by the learned Counsel for the objectors that during the period present probate petition was dismissed in default and restored subsequently, a succession certificate was obtained in respect of certain movable properties of the deceased and said succession certificate is conclusive evidence to establish that the deceased did not execute a will. I have ignored the submission for the reason, as explained by the petitioner's counsel, petitioner was not served when succession certificate was sought for and her application for cancellation of the succession certificate is pending.

44. Since the probate petition is being dismissed, certain consequential directions are required inasmuch as certain amounts constituting the estate of the deceased are lying in deposit in this Court under orders passed in the probate petition.

45. I direct that these amounts would be invested in a fixed deposit by the Registrar General of this Court and would be retained till parties obtain appropriate order from a Civil Court or obtain a succession certificate pertaining to the amount or obtain letters of administration pertaining to the estate of the deceased.

46. The probate petition is dismissed.

47. However, I refrain from imposing any costs.