Rajesh Arora vs State And Others
2009 Latest Caselaw 976 Del

                                          REPORTED
*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                   DATE OF DECISION:            March 25, 2009

+                    TEST CAS.15/1997

      RAJESH ARORA                                      ..... Petitioner
                 Through: Mr. Sanjay Gupta, Mr.Ajay Monga, Mr.Ateer Mathur
                          and Mr.Kaushik Ahuja, Advocates.

                     versus

      STATE & ORS.                        FC+          ..... Respondents
                                Through: Mr.V.S.Chauhan, Advocate for R-2 and 3


CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL

1.    Whether reporters of local papers may be allowed
      to see the judgment?
2.    To be referred to the Reporter or not?
3.    Whether judgment should be reported in Digest?


:     REVA KHETRAPAL, J.

1. The genuineness of the will dated 1st June, 1995 of one Shri Tilak Raj

Akalgarhia is in issue in the present case. The petitioner seeks probate of the

said will by virtue of the provisions of Section 278 of the Indian Succession

Act, while the respondents No.1 and 2, who are the real brothers of the

petitioner, maintain that the will under which the petitioner is the sole

beneficiary cannot be probated by this Court as the same is not a genuine

document.

2. The petitioner claims that the testator Shri Tilak Raj Akalgarhia expired

on January 18, 1997 at Delhi after executing during his lifetime a will dated

01.06.1995, which was duly registered with the Sub-Registrar, Kashmere Gate,

as Document No.24927, Additional Book No.III, Volume No.2376 on Page

142. The deceased Shri Tilak Raj Akalgarhia was survived by the following

class I legal heirs:

       (i)     Shri Rajesh Arora (son)           -     Petitioner

       (ii)    Shri Anil Kumar (son)             -     Respondent No.2

       (iii)   Shri Nutan Kumar (son)            -     Respondent No.3

       (iv)    Smt. Anita Nagpal (daughter)      -     Respondent No.4

       (v)     Smt. Neelam Sadana (daughter) -         Respondent No.5

3. The wife of the deceased Shri Tilak Raj Akalgarhia, namely, Smt. Sita

Rani had pre-deceased him. By his alleged last will and testament, the testator

bequeathed his property, i.e., House No.18, State Bank Colony, G.T. Karnal

Road, Delhi, of which he was the absolute owner, to the petitioner - his

youngest son to the exclusion of the respondents No.2 and 3, being his two

other sons. The will, apart from bearing the signature of the testator Shri Tilak

Raj Akalgarhia purports to be signed by two attesting witnesses Shri Yashpal

Singh and Shri R.R. Bhardwaj, Advocate, whose signatures appear on the left

side of the will while on the right side are the signatures of one Dr. Balbir

Singh under the signatures of the testator himself.

4. Notice of the institution of the petition for the grant of the probate was

issued to the respondents. A joint written statement was filed by the

respondents No.2 and 3 disputing the validity of the will on various grounds to

which I shall presently advert. The respondents No.4 and 5, who also filed a

joint written statement, however, did not dispute the validity of the will, and

stated that they had no objection if probate was granted in favour of the

petitioner. Additionally, the statement of Mr. Sumit Bansal, the counsel

appearing for the respondents No.4 and 5 was also recorded by the Court on

October 14, 1998, who stated that the respondents No.4 and 5 had no objection

if a probate was granted in respect of the will in favour of the petitioner. It was

also stated by him that their no objection certificate was on record.

5. The petitioner filed a rejoinder to the written statement of the

respondents No.2 and 3 and on the pleadings of the parties, the following

issues were framed by the Court for adjudication on 04.10.1999:-

"(1) Whether the deceased Tilak Raj Akalgarhia had duly executed will dated 1.6.1995, if so to what effect? (2) Whether the verification on the petition under Section 278 of the Indian Succession Act bears the verification by Shri R.R. Bhardwaj, Advocate, if not to what effect?

(3) If issue No.2 is proved against the plaintiff whether the plaintiff is liable to be proceeded for contempt of court?

(4) Relief."

6. It would be pertinent to note at this juncture that prior to the framing of

issues, an application, being IA No.8766/1998 under Order I Rule 10 of the

Code of Civil Procedure was filed by Shri R.R. Bhardwaj, Advocate, alleged to

be an attesting witness of the will, seeking impleadment of his name as one of

the respondents in the petition, to which a detailed reply was filed by the

petitioner. This application, as it appears from the record, was never disposed

of, possibly in view of the fact that Shri R.R. Bhardwaj, Advocate

subsequently died. Specific reference is being made to the application for the

reason that while the respondents 2 and 3 place implicit reliance upon the

application to buttress their contention that the will is not a genuine document,

it is the contention of the petitioner that the application was filed by the said

Shri R.R. Bhardwaj at the behest of the respondents No.2 and 3 and in

collusion with the aforesaid respondents. I do not propose to dwell any further

on this aspect at this juncture as this aspect will be more elaborately dealt with

by me at the appropriate time.

7. With regard to the issues framed on 4th October, 1999, the parties

adduced their respective evidence. The petitioner in order to prove his

entitlement to the grant of probate examined himself as PW1 and categorically

testified that House No.18, State Bank Colony, New Delhi was the self-

acquired property of his father, who had executed a will dated 1 st June, 1995 in

respect thereof. Originally, he stated, this will was lying in the locker, which

was held jointly by his father and him. He had never operated the locker after

the death of his father. During his lifetime, his father was residing with him in

House No.18, State Bank Colony. He had seen his father writing and signing

and was well-acquainted with his signatures. He could identify the signatures

and writing of his father. He had seen photocopy of the will, which was

marked as 'B', which bears the signatures of his father at the place marked as

'C'. He further stated that his father was not having cordial relations with his

two brothers, namely, Anil Kumar and Nutan Kumar (the respondents No.2

and 3), who were not giving due respect to him. His lawyer Mr. Sanjay Gupta

had told him that the petition was required to be verified and signed by the

attesting witness of the will and so he had contacted Mr. R.R. Bhardwaj,

Advocate, as he was an attesting witness of the will. He signed the verification

clause of the petition in his presence with his left hand. He had seen the

petition signed by Mr. R.R. Bhardwaj, Advocate, which was marked as 'D'.

According to the will, the property bearing House No.18, State Bank Colony

was bequeathed in his favour, so now he was the owner thereof after the death

of his father.

8. Having gone through the evidence adduced by the parties and heard Mr.

Sanjay Gupta, the learned counsel for the petitioner and Mr. V.S. Chauhan, the

learned counsel for the respondents No.2 and 3, it is proposed, in the first

instance, to deal with issue Nos.1 and 2, which pertain to the validity of the

will executed by the deceased Shri Tilak Raj Akalgarhia and as to whether the

petitioner is entitled to the grant of probate in respect of the said will. For the

aforesaid purpose, it is deemed expedient to dwell on the contentions raised at

the Bar in respect of the will in question. But first a glance at the evidence on

record.

9. PW1 Mr. Rajesh Arora was cross-examined at length in the course of

which he stated that it was correct that for the purpose of getting the signatures

of Mr. R.R. Bhardwaj on the verification clause of the petition, he was given

only one page of the petition which contained the verification clause. He also

stated that he did not know if the date 28th April, 1997 was written by his

counsel on the said verification clause. He, however, denied the suggestion

that the verification clause was not signed by Mr. R.R. Bhardwaj, though he

admitted that he did not know Mr. R.R. Bhardwaj before the death of his father

and that the address of Mr. R.R. Bhardwaj was not given on the will. He

further volunteered to state that his father had told him that he had got the will

attested by Mr. R.R. Bhardwaj, who works in the Kashmere Gate area. With

regard to the other attesting witness, namely, Yashpal, he stated in the cross-

examination that he did not know Yashpal, that the will contained the address

of Yashpal as WZ-6, Palam Colony, but he did not know whether Yashpal was

residing at the said address as he had never tried to contact him. He

categorically denied the suggestions put to him that the alleged will was not

signed by his father or by Yashpal or by R.R. Bhardwaj or by Dr. Balbir Singh

and the further suggestion that the signatures on the verification clause were

not those of R.R. Bhardwaj by his left hand. No other worthwhile cross-

examination of this witness was conducted.

10. Next, PW2 Shri Devender Kumar, working as a clerk in the Punjab

National Bank, was summoned with the record pertaining to the locker of the

deceased from where the will of the deceased was recovered by the Local

Commissioner appointed by the Court, but was subsequently given up as he

produced some other records instead.

11. PW3 is Mr. A. Rehman, UDC from the office of the Sub-Registrar-I,

Kashmere Gate, New Delhi, who brought the summoned record relating to the

will, which was registered in the office of the Sub-Registrar (I) vide Document

No.24927, Additional book No.3, Volume No.2376 at Page No.142 on

01.06.1995. In the course of his testimony, the certified copy of the will was

marked as Exhibit 'X-I', which was stated to be produced from the record of

the Sub-Registrar by the witness.

12. The testimony of PW4 Shri Yashpal is significant. Though this witness

was declared hostile, he testified that he was working as a clerk with a

document writer named Shri Vinod Kumar, at Kashmere Gate, since 1995. His

work related to rendering help for registration of the documents in the office of

the Sub-Registrar, Kashmere Gate. He was doing the job of completing the

documents for the purpose of registration and many times he signed such

documents in the capacity of witness. He identified his signatures on the

personal bond dated 16.02.2004 at Point 'X' exhibited as Exhibit PW4/1 and on

the personal bond dated 17.10.2003 at Point 'Y' exhibited as Exhibit PW4/2, he

having appeared in response to bailable warrants issued to him by the Court.

He stated that he had seen the will dated 01.06.1995 in original. The

signatures on the said will at Point 'Z' were his signatures. The will was

exhibited as Exhibit PW4/3. He denied that the testator of the will, the other

witness and he had signed the will dated 01.06.1995 in the presence of each

other, and went on to volunteer that will Exhibit PW4/3 already bore the

signatures of the testator and the second witness when he signed it.

13. At this stage, the counsel for the plaintiff moved an application, being

IA No.1803/2004 for permission to declare PW4 Shri Yashpal a hostile

witness and to cross-examine him. Accordingly, on 16 th September, 2005,

PW4 Yashpal was declared hostile and was cross-examined by the counsel for

the plaintiff. In the course of his cross-examination, PW4 Yash Pal, inter-alia

stated that he was working with one Mr.Narender Kumar Mehra, Advocate,

who was having seat at Kashmere Gate, Delhi. In the context of the will in the

instant case, he stated that the second witness had already signed the will

(Exhibit PW4/3) before he signed the same at Point 'Z' and further volunteered

to state that he had signed on the will in the evening on that day to complete

the said document. He further stated that some one had asked him that his

name had been written as a witness on the document, so he should sign the

same. On a specific querry put to him as to whether he could point out the

place where the second witness had signed the document, he answered that the

second witness had signed the document, Exhibit PW4/3 at the point which

had been stamped as R.Bhardwaj. On being cross-examined by the learned

counsel for the respondent Nos.2 and 3, he however, categorically denied that

the will (Exhibit PW4/3) did not bear his signatures.

14. No other witness was examined by the petitioner. An affidavit by way

of evidence of the respondent No.2, Anil Kumar was submitted on behalf of

the respondent Nos.2 and 3 and the respondent No.1 was subjected to cross-

examination on behalf of the petitioner.

15. I have heard the learned counsel for the petitioner, Mr.Sanjay Gupta and

the learned counsel for the respondent Nos.2 and 3, Mr.V.S.Chauhan and gone

through the contents of the original registered will of the testator, duly stamped

by the Office of the Sub-Registrar. The said document is a one page document

bearing the signatures of the testator on the foot of the document on the right

hand side and one Dr.Balbir Singh's signatures appear beneath the signatures

of the testator. On the left hand side, under the caption 'Witnesses', two

witnesses purport to have signed the will, namely Yashpal and R.Bhardwaj.

The stamp "Drafted by : R.Bhardwaj" is affixed at the place where his

signatures appear. The back page of this document, Exhibit PW4/3 bears the

stamps of the Office of the Sub-Registrar with the date 1.6.1995 and is signed

by the Sub-Registrar at three places. It is also signed by the testator at two

places and bears the thumb impression of the testator at two places. The

document (Exhibit PW4/3) on its front side also contains a photograph of the

testator.

16. Apart from the original will, Exhibit PW4/3, there are on record two

other copies of the will. One is the certified copy of the will tendered in

evidence by PW2, Mr.A.Rehman from the Office of the Sub-Registrar-I(I),

Kashmere Gatge, who testified that he had brought the summoned record

relating to the will, which was registered in the Office of the Sub-Registrar-I

vide Document No.24927, Additional Book No.3, Volume No.2376 at page-

142, registered on 1.6.1995. He further testified that certified copy of the said

will was 'X-1'. This will on a comparison of the front page and the back page

is identical with the original will, Exhibit PW4/3.

17. The learned counsel for the respondent Nos.2 and 3 has assailed the will

principally on the following grounds:-

(i) Tilak Raj Akalgarhia during his life time had not executed any will

dated 01.06.1995 in favour of the petitioner and no such will was

registered with the Sub-Registrar, Kashmere Gate, as alleged.

(ii) The verification of the plaint purportedly signed by Shri R.R.Bhardwaj

is false and fabricated as also the signatures of the said witness on the

will.

(iii) In any case attestation of the will must be proved in accordance with

Section 63(c) of the Indian Succession Act and the petitioner has failed

to prove the same. Shri R.R.Bhardwaj was the scribe and the scribe

cannot be an attesting witness to the will which he scribes.

(iv) The other attesting witness, PW4 Yashpal had failed to prove the

attestation of the will and was declared a hostile witness. In any case,

PW4 Yshpal was a fictitious person as the address of PW4 Yashpal as

given in the will was WZ-6,, Palam Colony, while he was summoned in

the Court at the address of the Registrar of Assurances, Kashmere Gate.

The address given by him in Court at the time of recording of his

testimony is Azad Nagar, Barod, U.P.

(v) The petitioner had failed to produce Dr.Balbir Singh, who was also an

attesting witness to the will.

18. Per contra, the learned counsel for the petitioner contended that so far as

the first contention of the learned counsel for the respondent Nos.2 and 3 is

concerned, the following four facts are significant. Firstly, the signatures of

the testator of the will had not been disputed by the respondent Nos.2 and 3,

who have nowhere stated that the will is not signed by their father. Secondly,

it is not in dispute that the will bears the photograph of the testator Tilak Raj

Akalgarhia. Thirdly, the registration of the will has been duly proved by PW2

Mr.A.Rehman, who had produced the original records before the Court. Not

even a suggestion was put to this witness that the will was not registered with

the Office of the Sub-Registrar and the records had been tampered with.

Fourthly, it is not in dispute that the locker standing in the joint name of the

testator Tilak Raj Akalgarhia and the petitioner was not operated upon after

the death of the deceased and it is from this locker that the will was retrieved

and produced by the local commissioner appointed by this Court to operate the

locker and to place on record the will of the testator. Fifthly, the daughters of

the testator (respondent Nos.4 and 5) have raised no objection to the will and

have not disputed the signatures of their father on the said will. It is not even

the case of the respondent Nos.2 and 3 that the daughters of the testator are

colluding with the petitioner. A written statement has been filed by the

respondent Nos.4 and 5 to state that they have no objection to the will being

probated.

19. As regards the second contention of the learned counsel for the

respondent Nos.2 and 3 that the signatures of R.R.Bhardwaj on the will are

forged and fabricated, the learned counsel for the petitioner has drawn my

attention to the fact that there are no pleadings in the written statement to state

that the signatures on the verification signed by R.R.Bhardwaj are forged and

fabricated. Then again, it is contended that R.R.Bhardwaj, though he has

stated that the will was not executed by Tilak Raj Akalgarhia in his presence,

that he is not an attesting witness to the said will, that the said will is not

drafted by him and does not bear a stamp and that the plaint in the probate

case is not verified and signed by him, nowhere disputes his signatures on the

will. The learned counsel contends that the application filed by R.R.Bhardwaj

at the behest of the respondent Nos.2 and 3 to state the aforesaid facts

conclusively showed that he had been won over by the respondent Nos.2 and

3. When he could file an application at the instance of the respondent Nos.2

and 3, he could have said that the will was not signed by him, but he nowhere

denies his signatures on the will for reasons which are not far to seek. In the

aforesaid circumstances, there can be no manner of doubt that R.R.Bhardwaj

was won over by the respondent Nos.2 and 3. The fact that he could not be

subjected to cross-examination, also weighs heavily against the petitioner and

in such circumstances, implicit reliance cannot be placed upon his affidavit

filed prior to his death.

20. As regards the third contention of the learned counsel for the respondent

Nos.2 and 3, it is urged by the learned counsel for the petitioner that

R.R.Bhardwaj was not the scribe of the will in question. No doubt, he had

drafted the will, but he had not scribed the same. Even otherwise, it is

nowhere held that a scribe cannot be an attesting witness to the will.

21. As regards the fourth contention of the learned counsel for the

respondent Nos.2 and 3 that PW4 Yashpal was a fictitious person on account

of the fact that his address as mentioned in the will was WZ-6, Palam Colony

and his address as recorded by the Court is Azad Nagar, Barod, U.P., the

learned counsel for the petitioner has pointed out that the address mentioned in

the will was the residential address of the witness, while the address given by

the witness in U.P., in his testimony, was his permanent address. He also

pointed out that his address was also mentioned by him when he appeared in

the witness box as Old Court, Kashmere Gate where the Office of the

Registrar, Assurances is located. In any case, no suggestion was given to the

witness by the learned counsel for the respondent Nos.2 and 3 to suggest that

he was a fictitious person and not the same Yashpal who had signed the will

nor the witness was confronted in his cross-examination about the address

mentioned by him in the will. Apart from giving a suggestion to the witness

that the signatures on the will were not his, no other question or suggestion

was posed to the witness in any manner to challenge his testimony.

22. As regards the fifth contention of the learned counsel for the respondent

Nos.2 and 3, it is contended by the learned counsel for the petitioner that the

name of Dr.Balbir Singh is not mentioned in the column of attesting witnesses

either on the front page of the will (Exhibit PW4/3) or on the back page of the

will. On the back page where the names of the attesting witnsses are

mentioned, the names of only R.R.Bhardwaj and Yashpal find mention as

attesting witnesses. In the list of witnesses filed by the petitioner also

Dr.Balbir Singh was cited as witness No.5, but not described as an attesting

witness. Dr.Balbir Singh's signatures appear just below the signatures of the

testator and he had possibly signed as a doctor. There was no occasion to

summon him as no challenge was raised by the respondent Nos.2 and 3 that the

testator was not of sound disposing mind. If the respondents wanted, they

could have summoned Dr.Balbir Singh to prove that he had not signed the will,

but they did not choose to do so.

23. In view of the aforesaid, the learned counsel for the petitioner submitted

that he had discharged the onus of proving issue No.1 that the deceased Tilak

Raj Akalgarhia had duly executed the will in question. The mere fact that the

attesting witnesses to the will had been won over by the respondent Nos.2 and

3 was not enough to non-suit the petitioner. The learned counsel for the

petitioner also heavily relied upon the diary of the testator to contend that the

relations of the testator with his other two sons viz., the respondent Nos.2 and

3 were strained and uncomfortable and it was the intention of the testator to

make the petitioner the sole beneficiary of his estate. Significantly, RW1 Shri

Anil Kumar (respondent No.2) when he appeared in the witness box, admitted

the handwriting of his father in the aforesaid diary, which was marked as

Exhibit RW1/1. The relevant notings in the said diary, which go to show the

nature of the testator's relationship with his son Anil Kumar and Nutan Kumar,

respondent Nos.2 and 3 read as follows :-

"Take it guaranteed that Smt.Neelam D/o Shri Roshan Lal must not be allowed to remain in our residence. She thinks that Shri Nutan is in her pocket. This is the fact I believe also that her parents education to her daughter to separate Nutan from his parents.

If Nutan desires to live with her separately we should not mind but not in this house.......................

I could not forgive Anil as he made allegation against my character on 12.12.89. I should not mind if Anil want to live outside the house. I should not give full independence, they should be limited to one room if they desire to remain in this house. Sd/- (12.12.89)

a chance again given to Shri Anil during the period 15.12.89

to 24.1.90 that he should have mend his way but he could not set himself right. I cannot explain the so abuses that Anil has given to Anita & Neelam (Sisters) on 23.1.90.

Considering all his + & - Points I am being compelled myself that I should be silent if he leaves the house & I should not go after him to come back."

24. After carefully considering the respective submissions of the parties and

the evidence relied upon by them in juxtaposition with the law laid down by

the Hon'ble Supreme Court with regard to the manner of proving an

unprivileged will, I have no hesitation in concluding that the will in the instant

case stands duly proved by its propounder. It is trite that a will is a document

which speaks from the death of the testator. After the testator has departed

from this world, if he leaves behind a bequest, his wishes with regard to his

earthly possession and the manner in which he wants the same to be exploited

must be honoured. It goes without saying that when a testator executes a will,

he does so for the reason that he wants to interfere with the line of succession

of his estate, which ordinarily would be apportioned in equal portions between

his legal representatives. Thus the whole idea behind execution of the will is

to interfere with the normal course of succession so that some or all of natural

heirs would be debarred from inheriting the whole or part of the property of the

testator. [See Rabindra Nath Mukherjee & Others Vs. Panchanan Banerjee

(Dead) by LRs and Others, AIR 1995 SC 1684]

25. One other aspect of the matter upon which I wish to dwell is with regard

to the legal position of a registered will. I am conscious of the fact that the

mere fact that a will is registered, will not by itself be sufficient to dispel all

suspicion regarding it where suspicion exists. I am also conscious of the fact

that registration may take place without the executant really knowing what he

was executing and having registered (Rani Purnima Debi Vs. Kumar

Khagendra Narayan Deb, AIR 1962 SC 567), but that is not the case here.

Here, there are no suspicious circumstances shrouding the execution of the

will. Suspicious circumstances have neither been pleaded nor proved in the

instant case, nor is it the case of the respondents that the testator was an

unlettered man who did not know what he was bequeathing. It is also not the

case of the respondents that the testator was not of a sound disposing state of

mind at the time of bequeathing his estate to the petitioner as sole beneficiary

thereof. Certainly, in my view, in such circumstances, the fact that the will is

a registered one, must weigh heavily in favour of the propounder. That the

will was duly registered has been proved by the Office of the Sub-Registrar

and that it bears the photograph of the testator. The signatures on the will have

also not been seriously disputed by the respondents and, as a matter of fact, the

respondent Nos.4 to 6 have admitted the same. PW4 Yashpal has also not

denied his signatures on the will and, as a matter of fact, has stated that the

will had been signed by the testator and by R.R.Bhardwaj when he affixed his

signatures on the same. That he did so to complete the execution of the will,

will make no difference. Not an iota of evidence has been adduced by the

respondent Nos.2 and 3 to dispute their father's signatures on the will nor the

opinion of handwriting expert has been sought by them to disprove the same.

The fact that the witnesses to the document, being strangers have been won

over by the respondent Nos.2 and 3 and may be termed as "interested", is of no

significance and cannot be considered as a suspicious circumstance by itself.

The controversy whether both the attesting witnesses were present at the same

time or not, is also wholly irrelevant as Section 63(c) of the Indian Succession

Act, 1995 does not require the presence of the attesting witnesses at the same

time. The evidence, therefore, in my view probablises the execution of the will

by the testator and I am satisfied that the will (Exhibit PW4/3) has been

established as the last legal and valid testament of the deceased. The onus of

proving the will was on the petitioner and he has satisfactorily discharged the

same.

26. The principles, which govern proving of a will are well settled. (See

H.Venkatachala Iyengar Vs. B.N.Thimmajamma, AIR 1959 SC 443; Rani

Purnima Debi Vs. Kumar Khagendra Narayan Deb, AIR 1962 SC 567 and

Shashi Kumar Banerjee Vs. Subodh Kumar Banerjee, AIR 1964 SC 529).

Undoubtedly, the burden is heavier where the propounder is also the

beneficiary of the bequest and he must discharge the onus of proof of capacity

of the testator as well as the factum of execution, from which the knowledge

and the assent to its content by the testator will be assumed. There is,

however, no unyielding rule of law that merely because the bequest is in

favour of the propounder, the will is not to be adjudged as a genuine one.

27. To quote the well known observations of Baron Parke in the case of

Barry Vs. Butlin, (2) Moo Privy Council 480 :-

"First, that the onus probandi lies in every case upon the party propounding a will; and he must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator";

"The second is, that, if a party writes or prepares a will under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the court and calls upon it to be vigilant and zealous in examining the evidence in support of the instrument in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased".

28. A word of caution, however, has been sounded by Lord Du Parcq in

Harmes Vs. Hinkson as follows:-

"Where a will is charged with suspicion, the rules enjoin a reasonable scepticism, not an obdurate persistence in disbelief. They do not demand from the Judge, even in circumstances of grave suspicion, a resolute and impenetrable incredulity. He is never required to close his mind to the truth. It would sound platitudinous to say so, but it is nevertheless true that in discovering truth even in such cases the judicial mind must

always be open though vigilant, cautious and circumspect."

29. Another facet, which cannot be lost sight of apart from the registration

of the will in the instant case and which has bolstered its authenticity, is that

the respondents have neither pleaded nor proved any suspicious circumstance

to excite the scepticism of this Court in accepting the will as a genuine

document nor, as a matter of fact, is there any aspersion cast upon the

propounder of having exerted under influence on the testator. It need not also

be stated that the undue influence required to be pleaded in the case of an

unprivileged will must be of the nature of fraud or duress (See Gomati Bai Vs.

Kanchhedilal & Others, AIR 1949 P.C.272). In the instant case, neither

fraud nor undue influence have been pleaded and the question of fraud or

duress is, therefore, rendered academic and need not detain us any further.

30. It is also not denied that the propounder was all along residing with

the testator whereas evidence on record shows that the respondent No.2, Anil

Kumar is residing at Bangalore with his family, while the respondent No.3 is

also residing separately at Pitampura since the year 1986 (though in cross-

examination RW1 has stated that the respondent No.3 was residing separately

only for the last seven years). It is nobody's case that the petitioner was not a

dutiful son who all along aboded with his father and bowed to his every wish.

This, in my view, apart from the factum of registration of the will, probablises

the testator leaving his residential house to the son who was residing with him,

the others having chosen to part ways and to lead their own independent lives.

31. In the final analysis, suffice it to say that the will in the instant case,

which has been half heartedly assailed by the respondent Nos.2 and 3, must be

held to be duly executed and attested, as required under Sections 68 of the

Evidence Act and Section 63 of the Indian Succession Act. The law is well

settled that the conscience of the Court must be satisfied that the will in

question was not only executed and attested in the manner required by the

Indian Succession Act, 1925, but it should also be found that the will was the

product of the free volition of the executant after knowing and understanding

the contents thereof. Tested on the anvil of judicial conscience too, the will

passes muster and cannot be said to be an unfair or unjust disposal of the

property of the testator or against the normal course of human conduct or to

defy logic and reasoning. Indubitably, it interferes with the normal line of

succession, but a bequest is not a bequest which toes the line of succession, for,

the whole purpose of a testament is to cloth the beneficiary with assets, which

he would not have otherwise been inherited by him.

In view of the above discussion and having regard to the facts and

circumstances of the case, it is ordered that probate of the Will be granted in

favour of the petitioner on his depositing the requisite court fee and on his

furnishing the administration bond for due administration of the estate of the

deceased in accordance with law. The original Will shall be kept in safe

custody. The petition stands disposed of along with pending applications.

REVA KHETRAPAL, J March 25, 2009 km