Sh. K.C. Bajaj And Ors. vs Smt. Sudershan Kumari And Anr.
2008 Latest Caselaw 680 Del

JUDGMENT

Pradeep Nandrajog, J.

1. The dispute in the above captioned appeal is between the family members/legal heirs of Late Smt. Krishna Devi Ahuja (hereinafter referred to as the testatrix).

2. The genealogy tree of the family of Late Smt.Krishna Devi Ahuja is as under:

Krishna Devi Ahuja (Testatrix) I I

-------------------------------------------------

     I                        I                        I
Krishan Kumar Ahuja     Ashok Kumar Ahuja          Usha Bajaj
(Son, non-objector)      (Son, objector)           (Daughter)
                                                       I
                                             -----------------
                                            I                 I
                                        Anil Bajaj     Ameeta Bajaj
                                          (Son)         (Daughter)
 

3. Testatrix left the world of the living on 22.07.1982. Her husband had pre-deceased her, having died somewhere in the year 1967 or 1968.
 

4. On 21.09.1987, Smt. Usha Bajaj (hereinafter referred to as the propounder) filed a petition under Section 276 of the Indian Succession Act 1925 seeking probate of a will dated 02.11.1977 purportedly executed by the testatrix. Inter alia, to establish that the will was validly executed by the testatrix attention of the court was drawn to the contemporaneous conduct of the testatrix vis-a-vis the contents of the will. It was pleaded that during her lifetime the testatrix had already implemented a substantial part of the bequest by transferring to the named beneficiaries what was intended to be transferred after her death. It was pleaded that the property at Bombay which was bequeathed in favor of the propounder was transferred by the testatrix during her lifetime in name of the propounder. Likewise, in her lifetime the testatrix gifted the gold ornaments which were bequeathed in favor of the daughter of the propounder Ms. Ameeta Bajaj to her.

5. Ashok Kumar Ahuja the son of the testatrix filed objections to the will. The will was challenged on the ground that it was a forged and a fabricated document created by the propounder and her husband Dr. K.C. Bajaj by either one of the following three methods namely, (i) signatures of the testatrix on the will were forged; (ii) signatures of the testatrix were obtained on the will without her knowledge or consent; (iii) signatures of the testatrix on the will were obtained by exercising undue influence upon her.

6. Additionally it was pleaded that a will dated 28.09.1968 was the last legal and valid testament of the testatrix. That between the years 1967 to 1982 (the period between the death of the husband of the testatrix till her death) the testatrix mostly resided with the objector and occasionally used to visit the propounder and that on one such occasional visit the propounder and her husband took advantage of the ill-health of the testatrix and without her knowledge or consent or by exercising undue influence upon her obtained her signatures on the will. It was pleaded that will being a forged and fabricated document is strengthened by the fact that the so-called attesting witnesses to the will were colleagues of the husband of the propounder and were not known to the testatrix. That the testatrix never preferred to stay with the propounder even for a single day for the reason she was suspicious of the husband of the propounder who was a shrewd and money-minded person.

7. Regarding the pleadings of contemporaneous conduct of the testatrix, it was denied that the property in Bombay was transferred by the testatrix in name of the propounder. It was pleaded that the husband of the propounder Dr. K.C. Bajaj who was a government employee was the owner of the property at Bombay. It was pleaded that to avoid vacating the government accommodation Dr. K.C. Bajaj transferred the said property in name of the testatrix without her knowledge or consent. That when the testatrix had no knowledge about the transfer of the property in her name, then how could she transfer the same in name of the propounder. However it was admitted that the testatrix had during her life time gifted her gold ornaments to the daughter of the propounder Ms. Ameeta Bajaj.

8. The will in question, which is penned in English language on 2 sheets of paper, is an unregistered document. The will reads as under:

Will

I, Shrimati Krishna Devi Ahuja, widow of Shri Ganga Ram Ahuja, aged about 70 years, resident of E-D/139/2 Tagore Garden, New Delhi, declare this to be my first Will which I make this the 2nd day of November 1977.

Whereas I am the owner of Flat No. 26 (Twenty six) "Sree Gurukrupa" Building No. 22, Sree Gurunagar Four Bunglow Road, Andheri (West) of Amar Jyoti Co- operative Housing Society Limited, Registered No. 296 of 1963, and by this Will I hereby bequeath and devise my said Flat to my daughter Shrimati Usha Bajaj, wife of Dr. K.C. Bajaj for her benefit absolutely and for subject to the proviso, however, that the income derived by way of rent from the aforesaid property shall for a period of seven years from the date of my death or up to the time of completion of education of my grandson Anil Bajaj 'whichever is earlier' be utilized wholly for the maintenance, education and other incidental expenses of my grandson Anil Bajaj.

Whereas I am also the owner of Flat No. E-D/139/2 Tagore Garden, New Delhi, and by this Will I hereby bequeath and devise my said Flat to my daughter Shrimati Usha Bajaj subject to the condition that she would pay an amount of Rs. 11,000/- (Rupees Eleven Thousand only) each to my two sons Shri Krishan Kumar Ahuja and Ashok Kumar Ahuja.

I further bequeath and devise my gold ornaments in my possession at the time of my death to my grand daughter to Ameeta Bajaj.

I further bequeath and devise all my movable property excluding the gold ornaments referred to above whatever and wherever I possess at the time of my death to my two sons viz. Krishan Kumar Ahuja and Ashok Kumar Ahuja and my daughter Shrimati Usha Bajaj in equal shares. Movable property includes my investment in the Banks in the form of Savings Bank and Fixed Deposit account.

That I am making this Will out of my affection, in full senses and without any coercion or pressure from any side.

In Witness Whereof I have signed this Will hereunder on this day the 2nd Day of November One thousand nine hundred seventy seven first above written.

(Sd/-)(Hindi) (Shrimati Krishna Devi)

Signed by the above named testator with her mark as her first Will after the same had first been read over and explained to her in our presence and has appeared to be perfectly understood and approved by her in our presence at the same time and each of us.

Witness No. 1 (sd/-) Dr. D.K. Wadhwani

Witness No. 2 (sd/-) Rajendra Behari Lal

9. Besides examining herself as PW-1, the propounder examined two other witnesses namely, Mr. Rajendra Behari Lal, PW-2 and one Ms. R.K. Vij, PW-3.

10. In her testimony as PW-1, the propounder deposed that after the death of the testatrix's husband, the testatrix mostly resided with her and intermittently resided with the objector and her other son for a period of 4-6 months and sometimes for a period of 2-3 months. She deposed that her mother used to reside with her sons only when due to some unavoidable problems such as transfer of her husband, she i.e. PW-1 was unable to keep her mother. That the membership of the Gurukrupa Society was initially in the name of her husband. That to avoid shifting from the government accommodation her husband transferred the said membership in the name of the testatrix. That after the retirement of her husband the testatrix transferred the said membership in her name. That the testatrix expired at the residence of the objector. That the will was given to her by the testatrix on 02.11.1977 itself. That she did not know whether the testatrix had executed any will prior to the execution of the will in question. That at the time of the execution of the will the testatrix was able to append her signatures on the documents. That the testatrix was hale and hearty in the year 1977.

11. Mr. Rajendra Behari Lal, PW-2, deposed that he was an attesting witness to the will. That he knew the testatrix as she was residing with his neighbour Dr. K.C. Bajaj. That on 02.11.1977 Dr. K.C. Bajaj called him to his residence. That when he reached the residence of Dr. K.C. Bajaj, Dr. K.C. Bajaj, his wife, the testatrix and Dr. Wadhwani were already present. That the testatrix asked Dr. K.C. Bajaj and his wife to go out of the room. That the testatrix was in possession of an envelope. That the testatrix expressed her desire to execute a will and requested him to become an attesting witness to the will. That the testatrix appended her signatures on the will in his presence as also in the presence of Dr.Wadhwani. That thereafter Dr.Wadhwani appended his signatures on the will as an attesting witness in his presence as also in the presence of the testatrix. That he thereafter signed as an attesting witness. That the testatrix also had a copy of the will, which was also signed by them. That the original will and its copy was retained by the testatrix. That the testatrix was physically and mentally sound at the time of the execution of the will. That he, Dr. Wadhwani and Dr. K.C. Bajaj were employed in Railways. In cross examination he admitted that Dr. K.C. Bajaj was senior to him and Dr. Wadhwani. That he and Dr.Wadhwani were having family relations with Dr. K.C. Bajaj. That he has no knowledge about the preparation of the will. That he knew the testatrix only through Dr. K.C. Bajaj.

12. Ms. R.K. Vij, PW-3 who was a handwriting expert deposed that the will bore the genuine signatures of the testatrix.

13. Besides examining himself as RW-3, the objector examined two other witnesses namely Sh. Krishan Kumar Ahuja, RW-1 and Sh. R.P. Singh, RW-2.

14. Mr. Krishan Kumar Ahuja, RW-1 who was the eldest son of the testatrix in his examination-in-chief stated that after the death of the testatrix's husband in the year 1967 the testatrix mostly resided with him and the objector and occasionally used to visit/stay with the propounder. Duration of stay of the testatrix with the parties as stated by the witness may be noted in a tabular form as under:

  S.  Place of Stay of      Person with whom the         Period of Stay
No. the Testatrix         testatrix was residing
1.  Delhi                 Krishan Kumar Ahuja             1960-70
2.  Bombay                Usha Bajaj               2-3 months (starting from
                                                       early January, 70)
3.  Bombay                Krishan Kumar Ahuja            1970-May, 73
4.  Delhi                 Ashok Kumar Ahuja            May, 73 - July, 74
5.  Calcutta              Krishan Kumar Ahuja          July, 74 - End of 74
6.  Bombay                Usha Bajaj                   End of 74 - May, 77
7.  Delhi                 Ashok Kumar Ahuja            May, 77 - Sept/Oct, 77
8.  Bombay                Krishan Kumar Ahuja            Sept/Oct, 77-79
9.  Hyderabad, Delhi      Ashok Kumar Ahuja            1979-82 i.e. till her death
 

15. Mr. Krishan Kumar Ahuja, RW-1 further deposed that the testatrix was almost blind since her eyes were damaged due to black cataract. That because of the blindness the testatrix could neither read nor write. That the testatrix was able to append her signatures on a document only when someone would hold her hand at the point where she was supposed to sign. That the testatrix was physically so weak that she was unable to move without being escorted by someone. That the will Ex.RW-1/1 dated 28.09.1968 was penned by him and bears the signatures of the testatrix at three places. He stated that this will was the last legal and valid testament executed by the testatrix. That the testatrix had studied up to class IV and had no knowledge of English language. That the testatrix always used to ask him to write a document. That the flat situated at Tagore Garden was in possession of a tenant between the years 1971 and 1982. That he became aware about the existence of the will in question only after filing of the present probate petition.

16. During cross-examination Krishan Kumar Ahuja, RW-1 admitted that the testatrix was having a joint bank account with the propounder. Initially he stated that he can neither admit nor deny the suggestion that during the period 1971- 1979 the testatrix used to deposit the rent received by her in respect of the flat situated at Tagore Garden in her bank account at Bombay, but later admitted that during the period 1971- 1979 the testatrix used to deposit the rent received by her in respect of the flat situated at Tagore Garden in the bank account at Bombay which was in the joint name of the testatrix and propounder. He admitted that the amount deposited in the joint bank account of the testatrix at Bombay used to be withdrawn by the propounder but added that the testatrix also used to sign the cheques for withdrawing the amount and that the amount used to be withdrawn under the directions of the testatrix. He admitted that in the year 1980 an eviction petition was filed by the testatrix against the tenant in the flat situated at Tagore Garden on the ground that she bona fide required the premises for herself and the family of the propounder. He admitted that in the said eviction petition the testatrix filed an affidavit wherein she deposed that the she was living with the propounder, but stated that the said affidavit was filed by the testatrix after consulting him. He further stated that in the year 1979 the propounder along with her husband left Bombay and settled in Delhi. That on 25.12.1981 while staying with the objector the testatrix suffered a hip fracture. He admitted that he is employed with M/s Indian Oil Corporation Ltd. Queried on a fixed deposit receipt in the name of the testatrix pertaining to a deposit made by the testatrix with M/s. Indian Oil Corporation he admitted that he had no knowledge of any such deposit till the probate petition was filed. He admitted that the deposit in question was in the joint name of the testatrix and the propounder. He stated that the testatrix used to tell him everything and always used to consult him before taking any major decision. That the testatrix was almost blind at the time of the execution of the will dated 28.09.1968. He admitted that the husband of the propounder made arrangements for the funeral of his mother but justified the same by stating that this was done because the propounder and her husband were at Delhi.

17. Ashok Kumar Ahuja, RW-3 (objector) in his examination-in-chief deposed on the lines of the examination-in-chief of Krishan Kumar Ahuja, RW-1. Additionally he deposed that his wife was having two joint bank accounts with the testatrix.

18. During cross-examination Ashok Kumar Ahuja, RW-3 stated that in the year 1971 the testatrix and the propounder had opened a joint bank account in Bombay. He denied that the testatrix used to deposit the rent received by her in respect of the flat situated in Tagore Garden in her bank account at Bombay. He admitted that the rental income of the testatrix was never less than Rs. 335/- per month. He maintained that since the year 1950 the testatrix was suffering from black cataract of both eyes. He state that in the year 1960-61 the testatrix became almost blind. He admitted that the testatrix had accompanied her husband on a visit to Kashmir in the year 1960. He admitted that during the stay at Kashmir the testatrix used to prepare meals for herself and her husband.

19. Mr. R.B. Lal, RW-2 who was a handwriting expert deposed that the will did not bore the signatures of the testatrix.

 Documentary Evidence Led By The Parties
S.       Document                    Exhibit No.             Contents in brief
No.
1.  Will dated 02.11.1977              P-1          Will has already been reproduced in
                                                    Para 8 above
2.  Death Certificate of the
    testatrix                          P-2          Records that the  testatrix expired 
                                                    on 22.07.1982
3.  Letter dated 29.07.82 consisting
    of two pages and addressed to
    Krishan Kumar Ahuja.
    Front page of the letter is written
    by the propounder and rear page is
    written by her husband Dr. K.C.
    Bajaj and addressed to Krishan
    Kumar Ahuja.                       PW1/D1        i. In the front page propounder has
                                                        written usual pleasentaries.
                                                    ii. In the rear page Dr. K.C. Bajaj 
                                                        has written that Krishan Kumar
                                                        Ahuja while making proposal to sell
                                                        the house has not considered that
                                                        the house can only be sold by an
                                                        owner and that as of today there
                                                        is no one legally authorized to
                                                        call himself/herself as the owner of
                                                        the property in question.
4.  Letter dated 15.10.1980 written by
    Dr. K.C. Bajaj to Krishan Kumar    RW3/1         i. Records that the tenant in the flat 
    Ahuja                                               situated   at   Tagore   Garden  be 
                                                        intimated that the rent be sent to
                                                        the  testatrix   at  Kidwai   Nagar 
                                                        (residence of the propounder)
                                                    ii. Records that the file regarding
                                                        allotment of flat has been entrusted
                                                        by the testatrix to him.
                                                   iii. Records that certain documents such
                                                        as site plan etc. are required for
                                                        the purposes of filing a suit for
                                                        vacation of the flat.
                                                    iv. Rest of the contents shall be noted
                                                        at the relevant stage.
5.  Prescription dated 01.03.82 
    written by Dr. K.C. Bajaj          RW3/2        Records that the testatrix suffered a
                                                    pelvis fracture on 25.12.81 and the
                                                    medical condition of the testatrix
6.  Letters written by Mr. K.L. Sehgal
    (tenant in the flat at Tagore Garden)
    and addressed to the testatrix     RW3/PX1 to
                                       RW3/PX-5
                                          and
                                       RW3/PX-12
                                       to RW3/PX-14 Records that the rent of the flat has
                                                    been sent to the testatrix at the
                                                    following address:
                                                    Mrs. Krishna Devi, c/o Dr. K.C.
                                                    Bajaj, D-II/38, Kidwai Nagar
                                                    East, New Delhi
7.  Letter dated 29.10.1980 written by
    Krishan Kumar Ahuja and addressed
    to K.L. Sehgal                     RW3/PX6      Records that the testatrix is living
                                                    in Delhi and future correspondence be
                                                    mailed to her at the following address:
                                                    Smt. Krishna Devi, c/o Dr. K.C.
                                                    Bajaj, D-II/38, Kidwai Nagar
                                                    (East), New Delhi-110 025
8.  Letter dated 22.10.1980 written by
    Krishan Kumar Ahuja and addressed
    to Dr. K.C. Bajaj.                 RW3/PX7      Records that he has received the letter
                                                    dated 15.12.80 written by Dr. K.C. Bajaj
                                                    and has informed the tenant that the rent
                                                    be sent to the testatrix at Kidwai Nagar
                                                    (residence of the propounder)
                                                    He has also put following question:
                                                    How is respected Mata Ji
9.  Letter dated 03.09.79 written by
    Krishan Kumar Ahuja and addressed
    to Mr. K.L. Sehgal                 RW3/PX8      Records that Ms. Usha Bajaj is already
                                                    in Delhi and testatrix is to finalize
                                                    her programme for coming to Delhi.
10. Letter dated 10.05.79 written by
    Krishan Kumar Ahuja and addressed
    to Mr. K.L. Sehgal                 RW3/PX9      Records that Dr. K.C. Bajaj has been
                                                    transferred  to  Delhi  and that the
                                                    testatrix is also coming to Delhi.
11. Letter dated 25.12.79 written by
    Krishan Kumar Ahuja and addressed
    to Dr. K.C. Bajaj.                 RW3/PX11     Krishan  Kumar  Ahuja  has  put  the
                                                    following question:
                                                    How   are   respected  Mata  Ji  and
                                                    -----(illegible)
12. Will dated 28.09.1968              RW1/1        Two sons are the major beneficiary 
                                                    under the will
13. Letter dated 22.10.80 written by
    Krishan Kumar Ahuja and addressed
    to Dr. K.C. Bajaj                  RW1/PX       Records that the testatrix is in Delhi
                                                    and residing at the following address:
                                                    Smt. Krishna Devi, c/o Dr. K.C. Bajaj,
                                                    D-II/38,  Kidwai  Nagar  (East),  New
                                                    Delhi-110025
14. Pass book of two joint bank accounts
    of the testatrix with the wife of
    the objector                       RW3/P1 and
                                       RW3/P2
15. Service record of the Objector.    RW3/P3       Testatrix has been shown as a dependent
                                                    of the objector.
 

20. After noting the respective pleadings, the contentions and the evidence led by the parties, vide impugned order dated 27.01.1999 the learned Trial Court has held that the will in question bears the genuine signatures of the testatrix but it is not a result of the free will of the testatrix for the reason execution of the will is surrounded by suspicious circumstances which the propounder has failed to dispel. The probate petition filed by the propounder was thus dismissed.

21. The suspicious circumstances enumerated by the learned trial court are as under:

A. Evidence led by the parties heavily tilts in favor of the case projected by the objector that after the death of the husband of the testatrix, she was mostly staying with her sons and occasionally used to visit/stay with the propounder. Under-noted findings has led the learned trial court to come to the said conclusion:

i. That the testimonies of Krishan Kumar Ahuja, RW-1 and Ashok Kumar Ahuja, RW-3 corroborate the period and place of stay of the testatrix after the death of her husband with them. Learned Judge has noted that there is no effective cross-examination from the side of the propounder on this aspect of the testimonies of said witnesses.

ii. Letter dated 15.02.1980 Ex.RW3/1 shows that at the time of the writing of said letter the testatrix was staying with the objector.

iii. Letter dated 15.02.1980 Ex.RW3/1 brings out the displeasure and resentment of Dr. K.C. Bajaj in keeping the testatrix in his house.

iv. Suggestion given to Krishan Kumar Ahuja, RW-1 in his cross-examination that on 25.12.1981 while staying with the objector, the testatrix suffered a pelvic fracture.

v. Letter dated 01.03.82 Ex.RW3/2 shows that at the time of writing of said letter the testatrix was staying with the objector.

vi. Death of the testatrix had taken place at the residence of the objector.

vii. In her testimony, the propounder stated that the testatrix used to stay with her sons sometimes for a period of 2-3 months and sometimes for a period of 4-6 months.

(Note: The relevance of the place of residence of the testatrix has been discussed by the learned Trial Judge with reference to the conduct of an ordinary person taking major decisions and acting there under at the ordinary place of residence and not on a casual visit to the residence of a near relation.)

B. The will in question makes an inequitable distribution of the assets of the testatrix between her heirs. No reasons for making such an inequitable bequest have been stated in the will. No evidence has been led by the propounder regarding the reasons which prompted the testatrix to make such an inequitable bequest.

C. The will being propounded 5 years after the death of the testatrix.

D. Though there were talks in the family regarding the sale of the property of the testatrix yet the existence of the will was kept secret from the other legal heirs of the testatrix for a period of 5 years after the death of the testatrix.

E. Testimonies of the parties shows that the testatrix was having feeble mind and very weak eyesight at the time of the execution of the will.

F. Dr. Wadhwani who was the second attesting witness to the will was not examined by the propounder.

G. In his testimony, PW-2, an attesting witness to the will deposed that along with the original will its copy was also kept by the testatrix. It has been held that no evidence was led by the propounder as to what happened to the copy of the will.

H. Deposition of the attesting witness that at the time of the execution of the will the testatrix had asked the propounder and her husband to go out of the room is difficult to believe. It has been opined that it is highly improbable that the testatrix who was an old and illiterate lady, having a feeble mind and weak eyesight, would ask her daughter and son-in-law to go out of the house particularly when her daughter was to be made a major beneficiary under the will.

I. That Shri Rajender Bihari Lal, PW-2 is an interested witness evidenced by the following:

i. Admission of Mr. Rajender Bihari Lal that he was having family relations with Dr. K.C. Bajaj.

ii. Propounder making a case in her pleadings that the testatrix was known to the attesting witnesses whereas in his testimony the witness deposed to the contrary.

iii. On the date of the execution of the will Rajender Behari Lal was not called by the testatrix but by Dr. K.C. Bajaj i.e. Dr. K.C. Bajaj taking an active role in the execution of the will.

J. That no evidence was led by the propounder regarding the preparation of the will in question.

K. Testatrix had executed a will dated 28.09.1968 prior to the execution of the will in question, yet it was stated in the will in question that it is the first will of the testatrix.

Law Relating to Wills

22. In my decision dated 21.11.2007, in FAO No. 874/2003, Jagdish Lal Bhatia and Ors. v. Madan Lal Bhatia and Anr., 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 para 15 of the said decision are as under:

I. 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 last will of a free and capable testator.

II. The onus is discharged by the propounder adducing prima facie evidence proving the competence of the testator and execution of the will in the manner contemplated by the law. The contestant opposing the will may bring material on record meeting such prima facie in which event the onus would shift back on the propounder to satisfy the Court affirmatively that the testator did know well the contents of the will and in sound disposing capacity executed the same. (see the decision of the Supreme Court in Madhukar D. Shende v. Tarabai Aba Shedge )

III. No specific standard of proof can be enunciated which must be applicable to all the cases. Every case depends upon its circumstances. Apart from other proof, conduct of parties is very material and has considerable bearing on evidence as to the genuineness of 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.

IV. Expanding on the care and caution to be adopted by the courts, and presumptions to be raised, in the decision reported as (1864) 3 Sw and Tr. 431 In Re: 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.

V. 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 casts his eye over the will, this may not be sufficient.

VI. 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.

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

VIII. Another point that has to be considered is about the improbability in the manner in which the instrument is scripted. Instance of suspicious circumstances would be alleged signatures of testator being shaky and doubtful, condition of the testator's mind being feeble and debilitated, bequest being unnatural, improbable and unfair.

IX. 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.

X. 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 the 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.

XI. Suspicion being a presumptive evidence, is a weak evidence and can be dispelled.

23. Any and every circumstance is not a suspicious circumstance. A circumstance would be suspicious when it is not normal or is not normally expected in a normal situation or is not expected of a normal person.

24. If evidence adduced by the propounder is legal and convincing and satisfies the conscience of the court, mere conjecture or unfounded suspicion should not be permitted to sway the verdict that the will has not been proved. The law of evidence does not permit conjecture or suspicion having the place of legal proof nor permit them to demolish a fact otherwise proved by legal and convincing evidence. Well founded suspicion may be a ground for closer scrutiny of the evidence but suspicion alone cannot form the foundation of a judicial verdict-positive or negative.

25. In another decision dated 1.04.2008, FAO No. 289/1998 K.L. Malhotra (through Lrs) v. Smt. Sudershan Kumari and Anr., further law pertaining to wills was noted as under:

25. 'Will' as defined under Section 2(h) of the Indian Succession Act means 'the legal declaration of the testator with respect to his property which he desires to be carried into effect after his death'. The essential characteristic of a will, as is well known, is that it is a mere declaration of an intention so long as the testator is alive, a declaration which may be revoked or varied by the testator during his lifetime; it is a disposition that requires the testator's death for its consummation and is but ambulatory or without fixed effect until the happening of this event. The document is a will if it contains specific words of bequest to come into effect after the death of the testator.

26. A will is a solemn document. By it, a dead man entrusts to the living to carry out his wishes and since it is impossible that he can be called either to admit or deny his signatures or to explain the circumstances in which it was executed, duty of care is cast on the shoulders of the court while considering a probate case.

27. The rules governing the propounding of a will are two. First, the onus probandi lies in every case upon the party propounding the will and he must satisfy the conscience of the Court that the instrument so propounded is the last will of the testator. Second, if a party actively participates in the execution of a will under which he takes a benefit, it is a circumstance to excite the suspicion of the Court and calls upon the court to be vigilant and zealous in examining the evidence on record.

28. The strict meaning of the term 'onus probandi' is this, that if no evidence is given by the party on whom the burden is cast, the issue must be found against him. In all cases the onus is imposed on the party propounding the will. It is in general discharge by proof of capacity and the fact of execution from which the knowledge of and assent to the contents of the instrument are assumed.

29. The nature of proof required to prove a will is not different from those required to prove other documents except the requirement of attestation prescribed under Section 63 of the Indian Succession Act. The proof is to be tested on the usual satisfaction of a prudent mind. What distinguishes a will from other document is that the testator would not be available to testify the same as his last will. This introduces an element of solemnity in the decision. Even then the Court has to proceed with the enquiry in the same manner as is done in respect of any other document. The propounder is called upon to show by satisfactory evidence that (1) the will was signed by the testator in the presence of two attesting witnesses; (2) at the relevant time he was in sound and disposing state of mind; (3) he understood the nature and effect i.e., the content of the disposition; (4) he put the signature to the document of his own free will. The onus of the propounder can be said to be discharged on proof of the above essential facts.

30. However, in a case surrounded by suspicious circumstances viz.: the disposition may appear to be unnatural, improbable or unfair in the light of the relevant circumstances; or there may be indications that the disposition was not the result of the testator's free will and mind, such suspicious circumstances make the initial onus very heavy; and unless satisfactorily discharged, the Court would be reluctant to treat the document as the last will of the testator. Where the propounder takes a prominent part in the execution of the will conferring benefit upon him, that is a suspicious circumstance attending the execution of the will; the propounder is required to remove the doubt by clear and satisfactory evidence. In other words the propounder must satisfy the conscience of the Court that the document is the last will and testament of the testator.

31. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even if there is no such plea but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court. If the propounder is able to satisfy the conscience of the Court, the Court shall grant the probate, even if the will cuts off, wholly or in part, near relations. It is the will of the testator that is reflected in the will. Being the testator's own property, he has the liberty to deal with it absolutely. It is not for the Court to find out justification or equity or otherwise in the action of the testator. It is not for the Court to make it fair or to sermonize. It is not for the Court to refuse the grant on account of the fact that the disposition is not just and fair or is unnatural or improbable when the conscience of the Court is clear about the proof of the execution of the will on the face of the evidence, satisfactorily sufficient, to remove the suspicious circumstances.

32. As the wills are too frequently made by the sick and dying, the degree of understanding and memory which the law requires is such as may be reasonably expected from persons in that condition. Therefore, it is wrong to suppose that those qualities of mind should be possessed by the testator in the highest degree, position or to the same extent as before the illness in order to enable him to validly make his will. Section 59 of the Indian Succession Act requires that the testator should have a sound mind. The sound mind referred to does not mean that the testator should have his mental faculty in their fullest vigour, but means that he should have the capacity to understand the nature of his property; memory to remember the relations and persons normally having claims on his bounty and has also a judgment. As observed by their Lordships of Privy Council in the decision reported as Judah v. Isolyne , the fact that the testator was unwell when he executed the will is a long way from saying that he had no testamentary capacity. The testator does not have to be found in perfect state of health to have his will declared valid. It is sufficient to prove that he was able to outline the manner in which his estate was to be disposed of.

33. The general principles governing the presumption of due execution and attestation are, if a will appears on the face of it to have been duly executed and attested in accordance with the requirements of the Act, the maxim 'omnia presumuntur rite esse acta' applies, unless it is clearly proved that the will in fact, was not duly executed. The Court of probate has long being accustomed to give great weight to the presumption of due execution arising from the regularity ex facie of the testamentary paper produced where no suspicion of fraud has occurred.

34. Where once it has been proved that a will has been executed by a person of competent understanding, the burden of proving that it was executed under undue influence is on the party who alleges it. The Privy Council laid it down in the decision reported as Mst. Gomtibai v. Kanchhedilal that undue influence in order to invalidate a will must amount to coercion or fraud. Its extents must be established and it must also appear that it was actually exercised on the testator.

35. The burden of proving undue influence is not discharge by merely establishing that the person had power unduly to overbear the will of the testator. It must be shown that in any particular case that power was, in fact, exercised and that it was by means of exercise of that power that the will was obtained. This was observed by the Calcutta High Court in the decision reported as Chandra Majumdar v. Akhil Chandra Majumdar . Relying upon the decision of the Hon'ble Supreme Court in the decision reported as Naresh Charan Das Gupta v. Paresh Charan Das Gupta and Anr. it was observed that it is elementary that law does not regard or charactize every interest which is brought to bear upon a testator as undue. It is open to a person to plead his case before the testator and to persuade him to make a disposition in his favor and if the testator retains his mental capacity and there is no element of fraud or coercion, the will cannot be attacked on the ground of undue influence. Not all importunities are undue influence. While making said observation, the Hon'ble Supreme Court in Naresh Charan Das Gupta's case (supra) quoted the observation of Lord Penzance in the decision reported as Hall v. Hall 1868 (1) P and D 481 "but all influences are not unlawful. Persuasion, appeals to the affections or ties of kindred, to a sentiment of gratitude for past services, or pity for future destitution, or the like - these are all legitimate and may be fairly pressed on a testator. On the other hand, pressure of whatever character, whether acting on the fears or the hopes, if so exerted as to overpower the volition without convincing the judgment, is a species of restraint under which no valid will can be made.... In a word, a testator may be led, but not driven; and his will must be the offspring of his own volition, and not the record of some one else's".

36. The golden rule in interpreting a will is to give effect to the testator's intention as ascertained from the language, which he has used. The overriding duty of a Court is to construe the language which the testator has in fact employed giving due weight to all the words and rejecting none to which a meaning can reasonably be assigned. The Court is entitled to put itself into the testator's arm chair to construe a will and to form an opinion apart from the decided cases and then, to see whether those decisions require any modification of that opinion and not to beckon by considering as to how far the will in question resemble other will upon which the decisions have been given. The proposition that the will has to be read as a whole cannot be disputed. Whether there is a will on the basis of the document, the probate Court certainly will not proceed to consider as to whether or not the disposition of the property was good or bad. The primary duty of the probate Court is to see first whether prima facie, the document constituted a will.

Appeal

26. Appellants challenge the impugned order on two broad counts; namely, (i) that the learned trial court ought to have appreciated the evidence keeping in mind the principle that a will is generally made by the testator to alter the natural line of succession; and (ii) material circumstances/evidence which had a bearing on the case of the propounder have been ignored by the learned trial court.

27. Per contra, respondents support the findings arrived at by the learned trial court. Emphasis was placed upon the suspicious circumstances enumerated by the trial court. Additionally, counsel for the respondent urged (i) that the finding of the learned trial court that the will contains the genuine signatures of the testatrix is incorrect; and (ii) that the learned trial court failed to note a letter written by the testatrix to one of her sons asking the son to vet a contract drafted by the husband of the propounder and that the said letter established that the testatrix used to consult her sons before taking any major decision.

28. Pertaining to the documentary evidence listed in tabular form in para 19 above, at the very outset, I may note that the documents at serial nos. 4 to 13 in the table have been cursorily looked into by the learned trial court. Believing the word of the objector that the said documents do not present a true picture, the learned trial court has not attached much importance to them. The learned trial court has been swayed by the explanation furnished by the objector that the tenant was told to tender the rent at the residence of the propounder.

29. The documents at serial nos. 4 to 13 in the table in para 19 above were filed by the parties to establish their respective versions pertaining to the stay of the testatrix with them.

30. From a cumulative consideration of the pleadings and evidence of the parties it is evident that the case projected by the propounder was that between the years 1971-1979 the testatrix was living with her at Bombay and that in the year 1979 the husband of the propounder got transferred to Delhi and thereafter between the years 1979-1982 the testatrix was living with her at Delhi and that in between she occasionally used to stay with her sons. Whereas case projected by the objector was that between the years 1971-79 the testatrix was staying with her two sons at various places and that between the years 1979- 82 the testatrix was staying with the objector in Delhi and that in between she occasionally used to stay with the propounder.

31. It is trite that parties would depose in harmony with the case pleaded by them and occasionally would even over state their case. Contemporaneous documents and letters throw best light on the current existing affairs when the documents or letters were exchanged. The first document i.e. the letter dated 03.09.1979 Ex. RW3/PX7 is admittedly written by Mr. Krishan Kumar Ahuja informing Mr. K.L. Sehgal who was the tenant in the flat at Tagore Garden that the propounder is in Delhi and that the testatrix is finalizing her programme for coming to Delhi. The letter dated 10.05.70 Ex. RW3/PX9 admittedly written by Mr. Krishan Kumar Ahuja informs Mr. K.L. Sehgal that Dr. K.C. Bajaj has been transferred to Delhi and that the testatrix is also coming to Delhi. It establishes that the testatrix was residing with the propounder at Mumbai. The letter dated 25.12.79 Ex.RW3/PX11 admittedly written by Mr. Krishan Kumar Ahuja inquires from the husband of the propounder about the well-being of the testatrix. The afore-noted letter establishes that the testatrix indeed came to Delhi in December, 1979 and was residing with the propounder. The letter dated 15.10.80 Ex. RW3/1 admittedly written by Dr. K.C. Bajaj makes a request to Mr. Krishan Kumar Ahuja to inform the tenant that the rent of the flat at Tagore Garden be sent to the testatrix at Kidwai Nagar address (residence of the propounder in Delhi). It establishes that when the propounder and her husband shifted to Delhi, the testatrix was residing with them. The letter dated 22.10.1980 Ex. RW3/PX7 admittedly written by Mr. Krishan Kumar Ahuja informs Dr. K.C. Bajaj that he has received the letter dated 15.10.80 and that he has informed the tenant that rent be sent to the testatrix at Kidwai Nagar address and has also inquired about the well-being of the testatrix further establishes that the testatrix was residing with the propounder and her son-in-law. The letter dated 22.10.80 Ex.RW1/PX admittedly written by Mr. Krishan Kumar Ahuja informs the tenant Mr. K.L. Sehgal that the testatrix is residing in Delhi at the following address 'Smt. Krishna Devi, c/o Dr. K.C. Bajaj, D-II/38, Kidwai Nagar (east), New Delhi-110 025' (residence of the propounder in Delhi). The letter dated 29.10.80 Ex.RW3/PX6 admittedly written by Mr. Krishan Kumar Ahuja again informs the tenant that the testatrix is residing at Delhi at the following address 'Smt. Krishna Devi, c/o Dr. K.C. Bajaj, D-II/38, Kidwai Nagar (east), New Delhi-110 025' (residence of the propounder in Delhi) The last 7 documents are the letters Ex.RW3/PX1 to RW3/PX5 and RW3/PX12 to RW3/PX14 written by the tenant Mr. K.L. Sehgal and posted at the Kidwai Nagar address under which he tendered rent to the testatrix for the months of February 81, March, 81 and June-October 81 by means of cheque.

32. The learned Trial Judge has trivialized the aforesaid letters by believing the explanation of learned counsel for the objector that the tenant was requested to tender rent to the testatrix at the residence of the propounder because a ground of eviction was intended to be created to evict the tenant i.e. the bona fide requirement of the testatrix and her daughter. The learned Trial Judge failed to note a material circumstance. The same being letters addressed to Dr. K.C. Bajaj at Kidwai Nagar residence inquiring about the health of the testatrix. The natural flavour of the letters has been ignored by the learned Trial Judge. Cumulatively read the letters show that the testatrix was residing with the propounder. The version of the propounder that the testatrix would occasionally visit her sons is thus established from the evidence on record.

33. It is most important to note that in the year 1980 the testatrix filed an eviction petition against the tenant on the ground that she requires the premises for bona fide requirement of herself and family of the propounder. In said eviction petition she filed an affidavit deposing that she has been living with the propounder and her husband i.e. husband of the propounder.

34. This stand of the testatrix during her life time is a material circumstance ignored by the learned Trial Judge.

35. As already noted above, the case of the propounder was that between the years 1971-79 the testatrix was staying with her at Bombay and occasionally used to stay with her sons, whereas case of the objector was that the testatrix used to stay with him and his brother Mr. Krishan Kumar Ahuja and occasionally used to stay with the propounder.

36. The propounder has sought to establish that the testatrix was staying with her between the years 1971-1979 by attempting to prove that the testatrix had opened a joint bank account with her in UCO Bank at Bombay in the year 1971 and that the rent received by the testatrix was deposited by her in the said bank account between the years 1971-1979.

37. As noted above while briefly noting the testimony of Krishan Kumar Ahuja, RW-1 he admitted that the testatrix had a joint account with the propounder. However, he pleaded ignorance of the date when the account was opened. But Ashok Kumar Ahuja, RW-3 admitted that the testatrix had a joint bank account with the propounder with UCO Bank, Bombay which was opened in the year 1971.

38. It would be relevant to note that Krishan Kumar Ahuja, RW-1 firstly stated that he can neither admit nor deny the suggestion that the rent received by the testatrix was always deposited by her in her joint account in UCO Bank, Bombay between the years 1971-1979. However, he later admitted that the rent received by the testatrix was always deposited by her in her joint account in UCO Bank, Bombay between the years 1971-1979.

39. It is apparent that the testatrix was residing with the propounder at Mumbai between the years 1971-1979 and that the tenant was tendering rent to the testatrix at Mumbai which rent was being deposited in a joint account maintained by the testatrix jointly with the propounder. This fact additionally explodes the theory that the tenant was asked to tender rent to the testatrix at the residence of the propounder to create evidence regarding the bona fide requirement of the testatrix.

40. As noted hereinabove the first and foremost suspicious circumstance noted by the learned Trial Judge is that the testatrix was residing with her sons and it would be un-natural for her to take major decisions and execute the same when on a casual visit to meet her daughter. The evidence on record completely belies the said fact. The testatrix had continuously resided with her daughter and her son-in-law firstly at Bombay and thereafter at Delhi. Not only was she residing with her daughter but was even maintaining a joint account with her. Thus, it is natural for the testatrix to have carried out her affairs while residing with her daughter.

41. Evidence on record shows cordial relationship of the testatrix with her daughter. Her trust and confidence in the propounder and her husband has come on record. As noted above, the testatrix was maintaining a joint account in a bank with the propounder in which the rental income was being credited. She had deposited money with Indian Oil Corporation and her son Krishan Kumar Ahuja, RW-1 was not even aware of the said deposit. It assumes significance that Krishan Kumar Ahuja was an employee of the Indian Oil Corporation. That his mother made a deposit with his employer and did not inform her son shows lack of trust of the mother vis-a-vis her son.

42. I do not understand as to wherefrom the learned Trial Judge has concluded that neither RW-1 nor RW-3, the two sons of the testatrix were cross- examined on the issue of residence of their mother. Cross-examination of Krishan Kumar Ahuja, RW-1 on the issue is as under:

It is wrong to suggest that my mother stayed at Bombay all along the period from 71 to 79 with the petitioner. It is further wrong to suggest that my mother used to visit me only occasionally during the period from 71 to 82.... It is wrong to suggest that my mother had stayed with the petitioner from 79 till April, 82.

43. Cross-examination of Ashok Kumar Ahuja, RW-3 is as under:

It is incorrect to suggest that my mother stayed primarily with her daughter Usha Bajaj during the period 1970-78 and from 1979 to till April, 1982.

44. Both sons have been cross-examined on the issue and clear suggestions have been given to them that they had deposed falsely.

45. Learned Trial Judge has found that the letter dated 15.02.1980 Ex.RW3/1 brings out the displeasure and resentment of Dr. K.C. Bajaj in keeping the testatrix in his house wherefrom it has been opined that the relationship between the testatrix and the propounder were not cordial. Relevant portion of the letter dated 15.02.1980 Ex.RW3/1 written by Dr. K.C. Bajaj and addressed to Krishan Kumar Ahuja reads as under:

Your mother is supposed to come to stay with us today since Shri Bangia was to return to Delhi on 12th night and Ashok is planning to stay on with them until December. We do not know of Shri Bangia has returned. Usha has gone to Rajouri Garden to see her mother and to bring her to Kidwai Nagar if Shri Bangia has returned. It will naturally impede our movements within Delhi and outside of Delhi. Unfortunately these movements are unavoidable because of number of my ailing relatives in different parts of Delhi. The necessity of my off and on staying with my father who is convulsing from operation and the nature of my official duties. There does not appear to be any satisfactory solution to it at the moment....

46. Learned Trial Court has opined that the words "It will naturally impede our movements within Delhi and outside of Delhi" written in the letter suggest that Dr. K.C. Bajaj was not happy in keeping the testatrix in his house.

47. Learned Trial Court has read too much into the letter. Dr. K.C. Bajaj is merely stating a fact that stay of the testatrix in his residence would restrict their movements as the testatrix was not in best of the health. The relevant portion of the letter quoted hereinabove only shows that the testatrix was to reside with the propounder and that Dr. K.C. Bajaj was worried about the well-being of his other ailing relatives.

48. In deciding whether there is a will on the basis of the document, the probate Court certainly will not proceed to consider as to whether or not the disposition of the property was good or bad. The primary duty of the probate Court is to see firstly whether prima facie, the document constituted a will. If the propounder is able to satisfy the conscience of the Court, the Court shall grant the probate, even if the will cuts off, wholly or in part, near relations. It is the will of the testator that is reflected in the will. Being the testator's own property, he has the liberty to deal with it absolutely. It is not for the Court to find out justification or equity or otherwise in the action of the testator. It is not for the Court to make it fair or to sermonize. It is not for the Court to refuse the grant on account of the fact that the disposition is not just and fair or is unnatural or improbable when the conscience of the Court is clear about the proof of the execution of the will on the face of the evidence, satisfactorily sufficient, to remove the suspicious circumstances. As observed by Privy Council in the decision reported as Motibai Hormusjee Kanga v. Jamsetjee Hormusjee Kanga AIR 1924 PC 28 that A man may act foolishly and even heartlessly; if he acts with full comprehension of what he is doing the court will not interfere with the exercise of his volition.

49. In a recent decision in Civil Appeal No. 2277/2008 Krishan Kumar Birla v. Rajendra Singh Lodha and Ors. decided on 31.03.2008 the Hon'ble Supreme Court observed as under:

...Why an owner of the property executes a Will in favor of another is a matter of his/her choice. One may by a Will deprive his close family members including his sons and daughters. She had a right to do so. The court is concerned with the genuineness of the Will. If it is found to be valid, no further question as to why did she do so would be completely out of its domain. A Will may be executed even for the benefit of others including animals....

50. Thus the fact that the testatrix made an inequitable bequest is not a 'suspicious circumstance' particularly when the evidence on record shows that the testatrix had special love and affection towards her daughter i.e. the propounder. The evidence also establishes that during her old age it was the propounder and her husband who had looked after and cared for the testatrix.

51. It is no doubt true that the will in question was propounded 5 years after the death of the testatrix. But, this would be a circumstance only to raise the eye brows and if otherwise evidence on record establishes due execution of a will, the raised eye-brows should fall. Further, it is relevant to note that all other assets bequeathed in the will reached the hands of the beneficiaries during the life time of the testatrix. Even the flat at Tagore Garden came to be beneficially enjoyed by the beneficiary under the will during the life time of the testatrix, for the reason rent accruing there from was reaching a joint account and money being withdrawn by the propounder. As noted above, the sons of the testatrix admitted that the physical operations at the bank were done by the propounder. No doubt the brothers sought to introduce an element of subjectivity by stating that their mother used to sign the cheques and money was withdrawn under instructions of their mother.

52. It has come on evidence that during her life time the testatrix lent her name for eviction of the tenant by pleading bona fide requirement for herself, her daughter i.e. the propounder and her son-in-law. She handed over charge of prosecuting the litigation to her son-in-law and excluded her sons. It would also be not out of place to note that after the tenant was evicted possession of the flat was taken over and retained by the propounder and her husband.

53. The learned Trial Court has noted a letter dated 29.07.1982 Ex.PW1/D1 admittedly written by Dr. K.C. Bajaj and addressed to Mr. Krishan Kumar Ahuja wherein he has stated that 'As of today there is no one legally authorized to call himself/herself as the owner of the property of the will in question.' According to the learned Trial Court the fact that Dr. K.C. Bajaj did not disclose the existence of the will in question in the said letter strongly suggests that no such will was in existence at the time of the writing of the letter and the will in question was subsequently fabricated by him.

54. The afore-noted letter was written within just 7 days of the death of the testatrix. The testatrix died on 22.7.1982. I find it strange that within less than a week of her death her sons started demanding partition of the property.

55. Shri Prashant Bhushan, learned counsel for the appellants explained that the propounder and her husband with whom the testatrix was residing after her husband died were extremely depressed and did not want to discuss the issue of inheritance during the 13 day mourning period. The letter in question has 2 parts. Part one consists of the writing of the propounder. Part two is the writing of her husband Dr. K.C. Bajaj. The propounder has informed her brother that she and her husband were proceeding to Haridwar by the evening train. Being Hindus, the daughter and her husband were visiting Haridwar to pray for the peace of the soul of the testatrix. It not only brings out the extreme emotional and sentimental bond between the mother and the daughter, it additionally affords a justification for the propounder and her husband not precipitating an issue of succession. Nothing much therefore turns on the letter Ex. PW-1/D1.

56. The next suspicious circumstance namely the feeble mind, frail health and weak eye sight of the testatrix, to my mind needs to be considered with reference to the law relating to a will. As noted in para 25 above, (refer para 32 quoted therein from the decision dated 1.04.2008 in FAO No. 289/1998 Shri K.L. Malhotra v. Sudershan Kumari). As the wills are too frequently made by the sick and dying, the degree of understanding and memory which the law requires is such as may be reasonably expected from persons in that condition. Therefore, it is wrong to suppose that those qualities of mind should be possessed by the testator in the highest degree, position or to the same extent as before the illness in order to enable him to validly make his will. Section 59 of the Indian Succession Act requires that the testator should have a sound mind. The sound mind referred to does not mean that the testator should have his mental faculty in their fullest vigour, but means that he should have the capacity to understand the nature of his property; memory to remember the relations and persons normally having claims on his bounty and has also a judgment. As observed by their Lordships of Privy Council in the decision reported as Judah v. Isolyne , the fact that the testator was unwell when he executed the will is a long way from saying that he had no testamentary capacity. The testator does not have to be found in perfect state of health to have his will declared valid. It is sufficient to prove that he was able to outline the manner in which his estate was to be disposed of.

57. There is no evidence which suggests that the testatrix was a lady of feeble mind. On the contrary, there is evidence to show that the testatrix had her mental faculties intact. There is deposition of the son of the testatrix Krishan Kumar Ahuja, RW-1 that the testatrix herself used to decide as to how much amount she wanted to withdraw from her bank account, whom she wanted to give the amount withdrawn by her and for what purpose. It would not be out of place to mention that the sons of the testatrix tried to project a case that their mother had turned nearly blind in the year 1960, evidenced by the deposition of Ashok Kumar Ahuja, RW-3 that when his mother went to Srinagar with her husband she was nearly blind. But under sustained cross-examination he admitted that his mother used to cook the food for his father. Obviously, the mother was not blind. Further, the alleged will propounded by the objector being Ex. RW-1/1 though not proved as duly executed in as much as the same has not been witnessed by a witness, as per the claim of the objector was signed by his mother in the year 1968. The objector has himself brought on record evidence that his mother was absolutely fit if not later at least in the year 1968. I am conscious of the fact that the instant will has been executed in the year 1977 but the fact remains that the objector did not take a stand that his mother's eye sight started deteriorating after 1968. His case was that his mother had turned nearly blind in the year 1960, a fact belied by the admissions and evidence led by the objector. In the absence of any evidence that the mother became nearly blind after 1968, the whole version of the objector has to be put in the dustbin.

58. In the decision reported as Ramabai Padmakar Patil v. Rukminibai Vishnu Vekhande the testatrix was hard of hearing and could not walk properly. Objectors to the will sought to contend that the testatrix was not in a state of sound disposing mind at the time of the execution of the will. Negating the contention of the objectors the Hon'ble Supreme Court observed that the fact the testatrix was hard of hearing or that she was unable to walk does not lead to an inference that her mental faculties had been impaired or that she did not understand the contents of the document she was executing. The Hon'ble Supreme Court further held that evidence should have been adduced by the objectors to show that at the time of the execution of the will she had been suffering from any such ailment which had impaired her mental faculties to such an extent that she was unable to understand the real nature of the document which was executing.

59. Learned Trial Judge has found it a circumstance to hold against the propounder that she did not examine the second attesting witness. Section 68 of the Indian Evidence Act, 1872 provides that a document required by law to be attested can be proved by the evidence of one attesting witness to the document. Therefore non-examination of the second attesting witness is of no relevance.

60. The fact that no evidence was led by the propounder regarding the copy of the will is of no relevance. In taking this view, I am supported by the decision of the Hon'ble Supreme Court reported as Indu Bala Bose v. Manindra Chandra Bose and Ors. . In said decision, the objector to a will had contended that the fact that the draft of the will was not produced and no explanation had come forth as to what happened to the draft is a 'suspicious' circumstance. The Court after noting that it is not necessary that the draft of will is to be preserved held that the circumstance pointed out by the objector is not a suspicious circumstance.

61. Learned Trial Judge has laid too much emphasis by treating it to be unnatural conduct when the attesting witness to the will Rajender Behari Lal deposed that when the testatrix executed the will, the propounder and her husband were made to go out of the house. Witnesses exaggerating or incorrectly deposing on minor facts is documented in various decisions. The will in question has been executed on 2.11.1977. The witness deposed on 20.3.1995. Memory could have faded with the passage of time.

62. It is no doubt true that both the attesting witnesses were friends/colleagues of the husband of the propounder. But, this does not mean that the testimony of these witnesses has to be disbelieved on said count. The close relationship of the attesting witnesses with a beneficiary under a will only requires the Court to be more careful and cautious while dealing with the evidenciary value of such witnesses. The reason is obvious, especially in India, it is not uncommon for a beneficiary to arrange for attesting witnesses to be present when a will is executed.

63. Indeed, in the decision reported as Rabindra Nath Mukherjee v. Panchanan Banerjee the Hon'ble Supreme Court has held that if a will is validly proved the fact that the attesting witnesses to the will are interested lose significance.

64. Same ethos was reiterated by the Hon'ble Supreme Court in the decision reported as Madhukar D. Shende v. Tarabai Aba Shedage . In the said decision, the two witnesses were classmates of the beneficiary's son. The Court observed that the two attesting witnesses on account of being known to beneficiary's son, being his classmates, were known to the family, and therefore, were natural witness to be called to attest the execution of will. On account of their acquaintance with the family, they could have naturally known and identified the executant. Merely because of being classmates they would be interested in obliging their classmates mother so as to benefits her and go to the extent of falsely deposing is too far fetched an inference to draw.

65. The learned Trial Judge has held that by not adducing evidence on the preparation of the will a doubt was cast on the genuineness of the will. In this regards, suffice would it be to note that no evidence regarding the preparation of the will is not fatal to the genuineness of the will. Said view was taken by the Hon'ble Supreme Court in its decision in Ramabai's case (supra).

66. The learned Trial Judge has found it to be a suspicious circumstance that the instant will records that this is the first will executed by the testatrix but evidence on record establishes that on 28.9.1968 the testatrix had executed the will Ex. RW-1/1. The learned Trial Judge forgot that Ex.RW-1/1 was not a will at all for the reason there were no attesting witnesses thereto. Ex.RW-1/1 is an incohate document not achieving the status of a will and thus the recital in the will Ex.P-2 that it was the first will executed by the testatrix was a correct recital. What is fatal to the impugned order is non-consideration of 2 very material circumstances which have not even been noted by the learned Trial Judge.

67. A perusal of the will Ex.P-2 shows that the testatrix had bequeathed her jewellery to her grand daughter Amita Bajaj. Admittedly, in her life time itself the testatrix gifted her gold ornaments to Amita Bajaj. Secondly, she bequeathed the flat at Mumbai to her daughter Usha Bajaj and in her life time conveyed title thereto in favor of her daughter. If the propounder had to fabricate the will in question or had to use pre-signed pages to create a will what was the need of making a bequest of what had already been implemented by the testatrix during her life time?

68. The question answers itself by responding that the will was indeed the last valid and legal testament of the testatrix. Since the testatrix lived a couple of years after executing the document, part bequest was implemented during her life time. The conduct of the testatrix lends credence and assurance to the execution of the will.

69. It would not be out of place to record that the submission made by learned counsel for the respondents that a letter was written by the testatrix to one of her son asking him to vet a contract drafted by the husband of the propounder appears to be a figment of the imagination of the learned counsel inasmuch as no such letter exists in the record of the learned Trial Judge. Indeed, none was filed or proved. The theory sought to be projected on this plea was that the testatrix did not have confidence in her son in law and had confidence in her sons. In the absence of any such letter, the theory propounded on the letter gets exploded.

70. To conclude, it appears to be a case where the learned Trial Judge has been swayed by the fact that in India people generally do not make a bequest in favor of the daughters and that the bequest was disproportionate. The learned Trial Judge forgot that the flat at Mumbai was conveyed to the testatrix by the husband of the propounder to get over a government rule then in force requiring government servants owning residential properties to vacate government accommodation and thus the testatrix re-conveyed to her daughter what she had got from her son-in-law. The flat at Tagore Garden would not be valued more than Rs. 2 lacs in the year 1977. The daughter who had served the mother faithfully in the old age of mother, if gets a flat worth Rs. 2 lacs to the exclusion of her brothers would not render the bequest disproportionate or unnatural. It is not out of place to record that the daughter was charged with the duty of paying Rs. 11,000/- to each of her 2 brothers.

71. The appeal is allowed. Impugned order dated 27.1.1999 is set aside. Letters of administration with will dated 2.11.1977 are granted in favor of the legal heirs of late Smt. Usha Bajaj. Needful would be done by the learned Trial Judge as required by law to issue the necessary certificate.

72. Trial Court Record may be returned forthwith.

73. No costs.