Sanjiv Sapra vs State
2009 Latest Caselaw 4098 Del

*                             IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                                      Reserved on: 04.08.2009
                                                                      Pronounced on: 12.10.2009
+                                            TEST CAS. 48/1983

       SANJIV SAPRA                                              ..... Petitioner
                              Through: Mr. Kuljeet Rawal, Advocate.

                                              versus

       STATE                                                        ..... Respondent

Through: Mr. V.P. Makhija, Sr. Advocate with Ms. Manjula Gandhi, Advocate.

CORAM:

       HON'BLE MR. JUSTICE S. RAVINDRA BHAT

1.     Whether the Reporters of local papers
       may be allowed to see the judgment?                  Yes.

2.     To be referred to Reporter or not?                   Yes.

3.     Whether the judgment should be
       reported in the Digest?                              Yes.

HON'BLE MR. JUSTICE S.RAVINDRA BHAT

1. The present petition under Section 217 of the Indian Succession Act (hereafter called "the Act") seeks a probate in respect of the Will dated 29.02.1980 (hereafter called "the Will") of late Sh. O.P. Sapra (hereafter called "the testator"). The testator died on 04.01.1982.

2. The petitioner (hereafter referred to as "Sanjiv") claims probate; the proceedings are mainly contested by his elder brother, Rajiv Sapra (hereafter referred to as "Rajiv"). The other heirs left behind by the testator are his daughters referred to as such by their names Rajni Sapra and Rashmi Sapra, referred to as Respondent Nos. 2 and 3 to the proceedings.

TEST CAS. 48/1983 Page 1

3. Sanjiv, in the petition, states that the testator left behind properties listed in the Schedule to the Will all of which were the deceased's self-acquired assets. It is submitted that a property at Roshnara Road, Sabzi Mandi is mentioned in the Will but is not the subject matter of probate proceedings as it did not belong to the testator.

4. It is stated in the petition that the testator was extremely pleased with Sanjiv because of his obedience and helpfulness in the conduct of the businesses which the testator was carrying on and even otherwise. The testator also relied on Sanjiv for looking after his sisters (testator's daughters) after his death. At the same time, the testator was extremely displeased with Rajiv, the elder brother of Sanjiv. In fact, relations between them were extremely strained. Rajiv, instead of helping the testator, took up employment in a concern at Faridabad where he was doing well and had good prospects.

5. That Shri Raghunath Batra (maternal grandfather of Sanjiv) and Shri Hans Raj Sapra, elder brother of the testator and Dr. S.R. Sethi, brother-in-law of the testator (testator's sister's husband) had been appointed executors under the said Will. Dr. H.R. Sethi expired in May 1981, and, therefore, only two of the executors are surviving.

6. That the salient features of the Will are:-

(a) Property No. XIV, 906, situated at Qutab Road, near Sadar Bazar, Delhi as well as property no. XIV/893, situated in Chowk Qutab Road, near Sadar Bazar are the self- acquired properties of the testator and the same were duly entered in the municipal records in his name. The said properties were given by the testator to Sanjiv.

(b) The eldest son of the testator, Rajiv was disinherited from the said self-acquired property on account of objectionable conduct.

(c) Sanjiv is required to run the house with the help of the income of the shop.

(d) Sanjiv was to incur expenses for the marriage of Respondent No.2.

(e) Sanjiv was to pay back the sum of Rs.5000/- as early as possible, which had been taken as loan (which has since been repaid by Sanjiv).

TEST CAS. 48/1983 Page 2

7. In his reply, Rajiv alleges that the Will is forged and that Sanjiv is not entitled to probate as he has approached the Court with unclean hands. Rajiv states that the forgery is apparent because the document is written in Urdu but signed in English. It is emphasized that the testator was fluent and conversant with Urdu in which he could write and read and even used to publish a paper "Hindustan Beopar Patrika". A discrepancy, i.e. signature of two witnesses in the second page of the will whereas signature of only one witness appears is also highlighted. It is pointed out that signatures of Sh. P.N. Batra are placed in such manner as to cover-up the space of a fabricated document to avoid exposure.

8. Rajiv alleges that the testator suffered from right-side paralysis on the date when the Will is said to have been signed and could not have written and signed it as fluently as it appears on the documents. He states that the testator could not write anything clearly. Rajiv states that the subject-matter of the Will being the immovable property could not have been bequeathed by the testator since it was acquired out of HUF funds; other co-parceners including Rajiv were members of the HUF and could not have been so disinherited.

9. According to Rajiv, a reading of the Will should lead the Court to conclude it to be a forgery as it does not provide any share for the testator's daughters. At the time of execution of the Will, one of the daughters was of a marriageable age and the other (Rashmi), being invalid and unable to look-after herself was admitted to the Delhi Cheshire Home. Rajiv states that it is unbelievable that any reasonable father would ignore the interests of an invalid child and also of a daughter who was of marriageable age without providing or making adequate arrangements for them.

10. Rajiv alleges that the properties bearing XIV 906, 906-A, XIV 814 are self-acquired properties of the testator and states that they were in his name as he was elder male member of HUF, discharging a Karta's role. Rajiv points out that even the names of the testator's children as well as their ages were wrongly mentioned which again cast a cloud on its genuineness.

TEST CAS. 48/1983 Page 3

11. Rajiv disputes the statement in the Will that he was discourteous and not concerned with the family and his mother and states that he alone was looking-after her throughout her sickness and while she was admitted to the hospital.

12. Besides, Rajiv gave his blood four times for his mother and whereas Sanjiv never even cared to visit his mother in the hospital. The fact is that the testator was extremely unhappy towards Sanjiv for his disobedient nature and also since he was involved in bad company. The activities of Sanjiv such as coming home after midnight in a drunken state while he was a student of Dayal Singh College had been a matter of extreme set-back to Smt. Surinder Sapra and such objectionable acts were to great extent responsible for the death of Smt. Surinder Sapra. Sanjiv was not interested in his studies and failed twice in the Higher Secondary Board Examination and also could not clear his B.Com. examination despite three attempts. Rajiv, however, had a good academic record and had completed M.A. and was helping his father even in his paper publication business, popularly known as "Hindustan Beopar Patrika". Even if the testator had made some Will, it must be in the possession of the Respondent Nos. 4 and 5 who have concealed it and have instead helped Sanjiv in forging the said Will dated 29.02.1980.

13. It is submitted that Rajiv had been looking-after the needs of the family of his father and that Sanjiv has never spent even a penny and has never cared about the needs of the family. It is alleged that Sanjiv had wasted Rajiv's hard-earned money, gained from the business which he has been carrying on ever since 1974, when the business of Sapra Hosiery and General Store was started. Rajiv took up the employment with Escorts Limited on 15.11.1978 on the asking and persuasion of his late father, because the business of the firm was getting unstable at that particular point of time and also since the mother of Rajiv had expired in that year. The family was in dire needs of funds, since lot of money had been spent on the treatment of Smt. Sapra and Sanjiv had squandered huge amounts towards his bad habits.

14. Rashmi in her reply to the proceeding, disputes the genuineness of the Will and relies upon averments that are identical to those made by Sanjiv.

15. On 01.06.1984, the following issues were framed:

TEST CAS. 48/1983 Page 4

1. Whether the deceased/testator executed the alleged Will dated 29.02.1980? OPP;

2. Relief.

16. Sanjiv, the petitioner relied upon deposition of PW-1, P.N. Batra, one of the attesting witnesses who was examined on 2nd and 3rd May, 1985. The witness's evidence deposition (i.e. Raghunath Batra) was recorded on 03.05.1985; the case was thereafter adjourned to 13.05.1985. On that day, Sanjiv deposed in the proceedings and his counsel closed the evidence. The same day DW-1, Rajni Sapra deposed in the proceeding. Parduman Kumar Jain deposed as DW-2. The Will had described him as attesting witness; he denied having executed the Will DW P-1. Rajiv, DW-3 thereafter deposed; one Mr. Gurnani deposed as DW-4. DW-2, in his deposition had stated that about 3-4 months after the death of the testator, R.L. Batra, PW- 1 visited him and asked that he (DW-2) should become an attesting witness of the Will. In the light of this statement, the Court permitted limited right to cross-examine PW-2 about whether he had asked DW-2 to attest the Will after the death of the testator. PW-2 was accordingly cross-examined 24.05.1985 and a suggestion was put to him about telephonic conversation with DW-2 which was allegedly tape-recorded. The Court also permitted a cassette recording to be played during the course of the proceeding.

17. On 13.08.1985, the Court granted I.A.13751/1985 for the examination of the Will and comparison of testator's signature upon it with his admitted signatures. Accordingly, a government expert of the Forensic Science laboratory attached to the Ministry of Home Affairs was asked to examine and report on the said signatures. In a subsequent application (I.A. No. 3263/1986), Sanjiv sought for direction to examine cheques issued by the deceased in 1980-81, along with a suit filed in a case pending before the Civil Court, being Civil Suit 335/1980 entitled O.P. Sapra vs. Smt. Anguri Devi Jain; the application was allowed and said documents were also required to be considered for the purpose of expert opinion.

18. On 05.08.1986, the Court recorded the comments about the file received from lower Court, observing that the signatures of O.P. Sapra in the Power of Attorney filed along with the suit were torn before it was received by the High Court. That was one of the documents sought TEST CAS. 48/1983 Page 5 to be sent to the handwriting expert. Sanjiv's counsel had alleged that Sh. Sapra's signatures on the suit appeared to have been tampered with - a suggestion not accepted by the Court. The Court also observed that the two affidavits of testator were not tampered with. These documents were sent to the handwriting expert for examination.

19. An application, being I.A. 5382 sought summons to be issued to PW-1 and PW-2; it alleged that PW-1 was still under cross-examination and DW-2 was entitled to be recalled for re-examination. The request for re-examination of PW-2 was declined and the Court felt that the question of re-examination of DW-2 would be considered later. The expert's testimony was recorded thereafter; he was also cross-examined. Some of the witnesses were recalled and examined and subsequently cross-examined - a process which went upto 1999.

20. The Will, exhibited in these proceedings as P-1 reads as follows:

"WILL

Sat-Nam-Sri-Wahiguru Ji.

I, Om Prakash Sapra son of late Shri Harkishan Das Sapra, aged 53 years, resident of Sargodha (Pakistan) - Presently at 31, Ram Sarup Building No.8305, Roshan Ara Road, Delhi, am living there. Because of my ill health I am executing this Will on my own free will, without any Pressure and in full presence of mind and this will have the effect/acted upon after my death.

My wife Smt. Surinder Sapra, died on 16th March, 1978 and her death has aggrieved me very much as I lost my life-companion. Surinder Sapra has left behind 4 children:-

(1) The eldest son Rajiv Sapra, aged 25 years, (2) Sanjiv Sapra, aged 23 years, (3) Elder daughter Kumari Rajni, aged 17 years, (4) Handicapped Kumari Rashmi, aged 15 years. Because poor Rashmi is by nature is unable to move and she is admitted in Cheshire Home, Okhla Road. Since Rashmi is not able to do any work and also not ---(not clear)---for marriage, so long she is alive, her both the brothers will look after her and maintain her.

House No.8305, Roshan Ara Road, Delhi is in the name of my late wife Surinder, which I have inherited after the death of my wife. Hence after my death, Rajiv and Sanjiv both brothers will be the owner of the house. In case, both the brothers agree and want to sell it, they can do it. One of the two brothers, will live at the upper storey and the other at the ground floor.

TEST CAS. 48/1983 Page 6 The shares standing in the name of my wife Surinder (heaven-abode) and the plot will vest in the ownership of Rajiv Sum of fixed deposits in the name of my late wife Surinder or cash, money, jewellery, gold, which are in the Bank- locerks or in house, or with any body as safe-custody (Imanat) or which is in the knowledge of Smt. or Shri Raghunath Batra, the sum of fixed deposits in my name of Insurance Policies money, all these amounts, will be utilized for the marriage of my daughter Rajni. Rajiv, Sanjiv will have no claim out of this. At the time of marriage of Rajni, whatever money she will receive as Shagan or Gift will belong to her only. She can utilize these according to her sweet will on festivals and ceremonies/traditions.

I am the sole proprietor of self acquired property bearing Municipal Nos. 58, 893, 906-A/XIV/906, located at Chowk Qutab Road Corner, Saddar Bazar, Delhi. In this property netiher any body has any share, nor any concern. This property is duly registered in the office of the Registrar, Kashmiri Gate, and house tax has been paid to the Municipal Corporation, Sadar Bazar Zone, Delhi. Therefore, being the sole owner of this property, I give this to my younger son Sanjiv Sapra, aged 23 years, as his share. After my death, the right to receive rent, change of tenancy, suit applications, dispossession application, house tax or selling rights will solely vest with Sanjiv Sapra.

The behaviour and conduct of my elder son Rajiv Sapra has been objectionable towards my wife late Surinder and myself. And he is my disobedient son. Hence, under compulsion/helplessness, I deprive him of the ownership rights of the above-mentioned properties and business in the name and style of Sapra Hosiery, Qutab Road, Delhi. After my death, business conducted under the name and style of Sapra Hosiery, its stock, cash money furniture and fixture and telephone which are in my individual name, will belong solely to the ownership of Sanjiv Sapra. In this shop Rajiv Sapra will have no right what-so-ever of any money, stock and in profit and loss, nor he will have any right to claim through court of law in this regard. After my death Shri Raghunath Batra, Dr. Sadhu Ram Sethi of Moti Nagar, Hans Raj of Hargaon, will get the terms and conditions of this Will acted upon.

Because, the way in which Rajiv behaves with me and the way in which he married and brought disgrace of Sapra family relations are not happy with his such conduct and behaviour. On different occasions he used to talk about disposal of the property. Always he dominates over his younger brother Sanjiv Sapra. Out ----(not clear)----his salary receipt, he has never shown a single penny to me, hence I fear that lest he should cause any harm to the property or may sell the same and may not give any share to his younger brother, I therefore, deprive him off all his rights of ownership of the properties.

TEST CAS. 48/1983 Page 7 Because, Rajiv Sapra is holding a good position in Escorts Ltd. Faridabad and is getting a good/hand-some salary and has bright prospects, therefore, he will not have any claim from the shop for his house-hold expenditure. It will be better if both the brothers will live separately.

Out of the income of shop, Sanjiv will meet the house-hold expenses and being the owner of the property, after the marriage of his sister Rajni, he will be responsible for ceremonial receipts and payments. Besides, this I have taken Rs.5,000/- for Sapra Hosiery from Sarla and this amount should be paid back at an early date.

In shop No.906-A, English Provision Store, Delhi, one Chaudhary Harnam Das, son of (illegible) was my partner. After dissolution of the partnership, in view of the old good relations, half of the shop No.906 - i.e. 906-A was given to him on rent on this condition that so long Harnam Dass will run his business in that shop, he will be my tenant and that he will not invite any one else as a partner in his business therein. This undertaking was given by Chaudhary Harnam Dass in presence of Chander Prakash of Roop Nagar, Dr. Sadhu Ram Sethi of Moti Nagar, Karam Singh Sapra of Basti Harphool Singh and that whenever he would leave the shop, he will return the possession of the shop without any condition or demand. After the demise of Chaudhary Harnam Dass no other occupant will be tr-eated/accepted as a tenant. According to the undertaking and promise made by Chaudhary Harnam Dass, his legal heirs shall give the possession of the shop to my son Sanjiv Sapra.

Shop No.58-XIV, Main Saddar Bazar Road - length 47' and breadth 9-1/2' there is a shop No.57 bearing name and style Shiv Stores on one side and on the other side there is a shop No.59 belongs to M/s. Jagat Singh Kwatra. Sole tenancy right were in the name of deceased Shri Prithvi Singh Jain of my shop No.58, who died on 18-1-1980. Tenancy rights in the name of Shri Prithvi Singh Jain, was terminated. Prior to his death. I had no tenant in the name of Jain Trunk House and nor there is any. On the contrary, the claimant named as Jain Trunk House is in wrongful possession of the said shop and he is a tress-papper and suit for possession is already pending decision in the civil court. After my death, Sanjiv Sapra, will be the owner and will have the right to take possession of the shop and to pursue the proceedings of the suit. On receipt of the possession of shop No.58, Sapra Hosiery business may be shifted there.

The upper Choubara on shop No.XIV-893, Chowk Qutab Road, Delhi, the approach stairs are common and are from the back lane. On one side live Chines in No.892 and on the other side there is an office of Shri I.B. Misra. To go to room No. 893, there is a common passage. In this common passage there is a common shutter for safety. This common passage is for Banarsi Dass, Surjan Dass and Harnam Dass and no body else can close this passage or stop it. The measurement of Chaubara is 24' X 25'. Sheds are already in existence there.

TEST CAS. 48/1983 Page 8 Sanjiv Sapra is the owner of the roof of the common passage. The neighbours have made rooms and so Sanjiv can also make room like that. There is a wooden loft made in the common passage to reach No.893.

Sd/- Om Parkash Sapra,

29-2-80. Witnesses:- (1) Pran Nath Batra - 29-2-80

(2) Parduman Kumar Jain - 29-2-80.

4700, Jain Temple Street, Sabzi Mandi Delhi."

Point No.1

21. This issue goes to the heart of the controversy as it concerns the genuineness of Will, P- 1, and whether the testator executed it. PW-1, P.N. Batra deposed about the circumstances of the Will on 02.05.1985. He stated that the testator could read and write Urdu and English and that he executed the Will in his presence and in presence of DW-2 in his house at 31, Ram Sarup Building and that both attested it in the presence of the testator and each other. According to him, the testator was about 52 years when he made the Will; he stated that he had a hosiery shop. PW-1 deposed that the testator was of sound and disposing mind when the Will was executed and that he died on 04.01.1982. He also identified the testators' signatures, his signatures and those of DW-2; he stated that another copy of the Will had been prepared and that the testator prepared that copy with his hand in the presence of PW-1 and DW-2. In cross-examination, he stated that Will was executed around about 10 a.m. and that the testator took about 2 hours in writing it as well as the copy. PW-1 stated that he did not know about the contents of the Will as the testator did not discuss it with him. He further stated that DW-2 was present when he went to the house of testator; he deposed being a frequent visitor to testator's house. He described the testator's family and stated that the marriage of Rajiv was against wishes of the testator and further that he did not see Rajiv's wife living in the testator's house. He deposed that the parents of Rajiv's wife also live in the same building, i.e. Ram Sarup Building and that he did not know where the wedding was actually celebrated. He stated that according to his information, the testator had attended the wedding. He refused the suggestion that the wedding was with the consent of the testator and deposed that he was a helpless party and also denied a suggestion that he had sought the hand of Rajiv in marriage for his grand- daughter, Neeru. He admitted about a Reception given by the testator after Rajiv's wedding TEST CAS. 48/1983 Page 9 which was attended by him. He stated that he did not talk about the Will with anyone and that after case was filed in the Court, Sanjiv and Raghunath Batra talked to him about it. He also refuted the suggestion that Rajiv declined an offer for marriage of his younger sister Rajni with another relative (of PW-1). According to PW-1, the testator was completely well on the date of execution of the Will but conceded that he might have been unwell in January and February 1980; he denied that the testator had paralysis on the right side of his body. He stated he did not remember if the testator was ever admitted in hospital. PW-1's deposition also disclosed that he lived 500 yards from the testator and that Sanjiv worked with him (the testator) in the shop which he had visited a number of times. He mentioned about the testator's business in "the English Provision Store" which he was involved with since 1947. PW-1 denied having met DW-2 between 29.02.1980, till the date of deposition and also denied knowledge of his residential address, stating that he was not his friend.

22. PW-2, Raghunath Batra was the father-in-law of the testator (and brother of PW-1); he had retired as Sr. Accts. Officer in the Northern Railway. He deposed having come across the Will, Ex. P-1 after the death of his wife in May 1983 when he opened her almirah. He claimed to be acquainted with the testator's handwriting and stated that the Will was written by him and that he disclosed about it to Rajiv and Sanjiv and further that he handed over the document to Sanjiv. He stated that the testator was in good health and that he did not suffer any paralytic attack in February 1980. In the Will, he is named as an Executor along with Hans Raj Sapra, testator's elder-brother and S.R. Sethi, his (the testator's brother-in-law). In cross-examination, he stated that the testator never mentioned about the Will during his lifetime or even talked to him about his business. According to him, the testator separated from his partners in "the English Provision Store" in 1971 when PW-2 gave him financial help after which the testator used to sell lottery tickets. He denied the suggestion that Rajiv helped his father in business; he stated that the testator started hosiery business after finishing his lottery business under the style "Sapra Hosiery". He denied the suggestion that hosiery business was started by Rajiv and disclaimed knowledge that Rajiv used to maintain Account books. PW-2 deposed having the marriage of Sanjiv with the niece of his colleague solemnized in November 1983 (after the testator's death). PW-1 and PW-2 lived in adjoining houses and had a cordial relationship; he

TEST CAS. 48/1983 Page 10 deposed that Rajiv was not on talking terms with him after the death of the testator and attributed it to his habit. PW-2 denied the suggestion that Rajiv was annoyed with him as he wanted to run the business and oust Rajiv from it and put Sanjiv in charge. The testator, according to PW-2, used to receive financial help from him; consequently, he did not have much cash. However, he did not know whether the testator had any fixed-deposits. He claimed knowledge of DW-2 and stated that he met him in the house of the testator and also having seen him six months previously in 1985. PW-2 deposed having joined Rajiv's wedding and stated that he was the most prominent person in the marriage.

23. Sanjiv deposed as PW-3, stating that PW-2 gave him the Will on 18.05.1983 prior to which he had no knowledge of it. He deposed having known DW-2 who used to frequently visit the testator. He also states having met DW-2 and shown him the Will, Ex. D-1. According to him, the testator was in good health in January-February 1980 and that he never had paralysis.

24. PW-3 stated that his maternal-grandmother died in 1983 and was ill for sometime before that. It was stated that his grand-mother never mentioned about the Will, Ex. P-1. Sanjiv also deposed that Rajiv and Rajni used to visit his grand-mother. According to him, the testator had good relations with grand-mother. Sanjiv stated that his father had some asthma problem and did not have any heart problem; he died in hospital. He mentioned that the testator consulted Dr. Sethi, a close relative and that the said Dr. Sethi died in May 1981 after which he used to consult his son, Dr. Pawan Sethi. He denied the suggestion that the testator consulted a doctor called Dr. Gurnani. Sanjiv deposed about sitting in the shop since he was a student in class-VIII and that Rajiv seldom visited it and that he (Rajiv) joined Escorts in 1978. He admitted that Rajiv operated the accounts of M/s. Sapra Hosiery. He also denied the suggestion that his father was angry with him and stated that he devoted his entire attention to that shop and that being the reason why he did not fare well in the examination. He deposed that testator published "Hindustan Byopar Patrika" from 37, Khursid Market, Delhi. According to him, the testator did not engage in any other business except publishing the newspaper. He stated that the newspaper had been sold to one Vinod Kapoor during the testator's lifetime.

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25. DW-1, Rajni Sapra deposed that her grandmother was ill for about 6-7 months before her death. She stated that the grandmother never mentioned to her about any Will by the testator and also that all his four children would get the property in equal share. DW-1 deposed that the testator had some trouble in the right eye, and right hand and that his right hand used to shake. She deposed that the testator developed this disease after her mother's death which he continued to suffer till his death. Her mother died in 1978 and Rajiv married in 1979. She deposed that Rajiv's marriage was celebrated with the consent of the testator who enjoyed good relations with him (Rajiv). Rajiv stated that the testator could write but that after writing for sometime, he would pause. The testator, according to Rajni, used to write in Urdu and English. She also deposed about the circumstances which led to the death of her mother and further that her younger sister, Rashmi was physically disabled and, therefore, admitted to the Cheshire Home though she was mentally sound. She deposed that before her death, her mother was hospitalized in St. Stephen's Hospital and that Rajiv donated blood for her. According to her, Rajiv's relationship with his mother was good. Rajni mentioned that knowledge about the Will from her maternal grandfather after the death of the testator's mother. She also agreed with the suggestion that her maternal grandfather, PW-2, had given a proposal for her marriage with his relation living in Daurala, which was turned-down by her. In cross-examination, she admitted to attending the Court at Rajiv's behest. She deposed that her sister-in-law's (Rajiv's wife's) parents lived in the same building where she lived. She clarified that her father could write at a stretch for about 15 minutes after which he had to rest before assuming to write and that he could sign both in Urdu and English. She deposed that her father's publication was a monthly paper consisting of four pages.

26. Mr. P.K. Jain, DW-2 was examined on 13.05.1985. He claimed acquaintanceship with the testator because he had successfully obtained an order evicting a tenant from some commercial premises and that the testator had a similar problem which he wanted advice on. He denied having seen the testator writing or making any Will in his presence. He also denied knowing Mr. P.N. Batra, PW-1. He denied the suggestion of having every sat in the testator's house for 2-3 days and clarified that there was no occasion when he met the testator with PW-

1. He conceded that the signatures at point 'C', in Ex. P-1 were his. On being asked to clarify, he

TEST CAS. 48/1983 Page 12 stated that after 3-4 months of the testator's death, Sh. R.N. Batra, PW-2 visited his house and told him that the testator had left an unattested Will, and requested that he (DW-2), to attest it as the property could be divided according to the wishes of the said late testator. DW-2 deposed having requested that he should not be made to act in such manner but since Sh. R.N. Batra repeatedly requested, he agreed to become witness to the Will provided another witness signed. DW-2 states that Sh. R.N. Batra visited him later with the Will bearing signatures of Sh. P.N. Batra, whom he did not know. DW-2 states that Sh. R.N. Batra did not talk to him about the case but he became aware of a dispute between the two brothers; he also states having appeared before the Court in response to summons. He deposed having told Sh. R.N. Batra that he could not be dragged into the Court.

27. During cross-examination, DW-2 deposed having asked Rajiv why he had summoned him to Court, to which he (Rajiv) told him that he had not been summoned at his behest but that the Court had summoned him. He also stated having met Rajiv 15-20 times or may be more, after signing Ex.P-1. DW-2 stated that Sanjiv never met him regarding the Will. The witness agreed that the testator knew Urdu and English and further that he signed in English in his presence on the Power of Attorney (PoA) given to a lawyer. He could not remember when he had signed on Ex. P-1 but stated that it was 3-4 months after testator's death. He denied the suggestion that he attested Ex.P-1 on 29.02.1980 with Sh. P.N. Batra in the presence of the testator and mentioned that he had no connection with Sh. R.N. Batra except that he used to meet him in the testator's house. He refused the suggestion of having given Ex.P-3, list of his tenants to obtain certificate of posting on an earlier date. He stated that the testator used to move about in 1979-80 but was not in completely good health and that he never met him during morning walk. He also reiterated never having met Mr. P.N. Batra. He admitted that Rajiv had helped him in procuring cement, which had to be used for changing the roofing of his (DW-2's) house. About 10-20 or 25 bags were obtained in that manner. He denied the suggestion of being involved in any criminal case and clarified that he and his sons were cheated of Rs.65,000/- for which he had filed a complaint.

TEST CAS. 48/1983 Page 13

28. The next witness to depose in the proceeding was Rajiv, DW-3. He stated that the testator was not well in February 1980 as he had heart problem and had also suffered some paralytic attack of the right side of the body. The testator, according to him, could not write properly and his arm used to shake. The testator was also suffering from a congested heart and his feet were swollen due to that. He deposed that the testator was admitted in a hospital in 1977-78 and also that he died in the G.B. Pant Hospital in January 1982 when he suddenly collapsed. He stated that the medical record was in Sanjiv's possession and that Dr. Manohar Gurnani, who had a clinic in the Indira Market, Sabzi Mandi, used to attend to his father. Dr. Gurnani used to sit in Dr. Sethi's Clinic when he visited America. DW-3 described four medicines that were regularly given to his father and stated that the testator suffered a paralytic attack two months after death of his mother of which he was not fully cured till his death. He denied that Ex.P-1 was written by his father and stated that he was publishing "Hindustan Byopar Patrika" and was also General Secretary of the Sadar Bazar Federation. He claimed that the shop was started by him in which Sanjiv was made a partner after he became a major. He denied that his father was annoyed due to his marriage and stated that he (the testator) forced him to marry. DW-3 deposed that his father and grandfather (PW-2) had arranged his marriage and that his maternal grandfather had brought the proposal. He also stated that though physically disabled, Rashmi was mentally alert and capable of looking-after herself. Rajiv stated that his maternal grandfather wanted to control the business to which he objected and that he (PW-2) also objected to his wife going to the shop. According to him, PW-2 had given a proposal for Rajni's marriage, who had refused it, which resulted in his annoyance. DW-3 stated that PW- 1, Sh. P.N. Batra did not have intimate relations with the testator. He admitted knowing DW-2 since the time his father filed the case against the tenant and that he used to visit the Advocate. He also stated that PW-2 had talked to him about the Will 6-7 months after the testator's death and that he did not show the Will to him. DW-3 alleged that his grandfather threatened to destroy him unless he (DW-3) obeyed him. He deposed that his maternal grandfather, PW-2 wanted him (Rajiv) to give-up the business because of a promise given to Sanjiv's in-laws, who were his (PW-2's) friends. He deposed not being invited to attend Sanjiv's marriage which was arranged by Sh. R.N. Batra. He also deposed that Sh. R.N. Batra got his signatures and those of

TEST CAS. 48/1983 Page 14 Rajni and thereafter got the locker transferred in the name of Sh. Bipin Khera, Ms. Mohini Khera and himself. He also stated that his maternal grandmother used to talk about his father's property before her death and stating that all the testator's children would have equal shares.

29. Rajiv admitted that the handwritings in Ex.P-4 and the signatures on Ex.P-5 and P-6 were of his father. He denied the suggestion that the proposal contained that Ex.D-3 to settle the disputes between him and Sanjiv was due to Rajiv's desire to give-up service and engage in business. He stated that his maternal grandfather, Sh. R.N. Batra had started sitting in the shop after testator's death. According to him, Sh. R.N. Batra had no son and had two daughters, one of whom was his mother and the other daughter was Ms. Mohini Khera. Her husband was an Income-Tax Officer. He deposed that Ms. Khera had two sons - one of whom was Sh. Bipin, who was in service as an Engineer and the second son was in a bank. In the cross-examination, he admitted that he could identify his father's signature and he had seen him signing the Power of Attorney given to Sh. P.C. Mittal, Advocate. On a query - put to him in the cross- examination, he stated that he was present in the house on 29.02.1980 till 11.50 since his wife was unwell and that he knew such precise information because he maintained a diary. He deposed not having seen Sh. P.N. Batra (PW-1) in the house on 29.02.1980. He also stated that the testator did not have cordial relationship with his maternal grandfather, PW-2, Sh. R.N. Batra. He admitted that the testator borrowed about Rs.5,000/- from Sh. Sethi, which was returned in two installments. It is also admitted that his father was publishing "Hindustan Byopar Patrika" but denied that its manuscripts were prepared by him. The manuscripts, according to him, were prepared by a Sikh, who lived in Khyber Pass. He deposed having compared Ex.P-1 with other writings of testator which were lying at home. He admitted not consulting any handwriting expert. He admitted possession of some such documents which were written by the testator. Later, he produced Ex. B-1 to B-8, which, according to him, were prepared in Urdu by his father.

30. DW-4, Dr. Manohar Gurnani was examined on 17.05.1985; he deposed having worked with Dr. S.K. Seth and also that he knew testator whom he used to treat in Sh. Seth's office. The testator was a heart-patient with hypertension and suffered from Coronary Artery Mitreal

TEST CAS. 48/1983 Page 15 Stenosis. He deposed that the testator used to visit him for routine check-up and that he had weakness in right arm and right leg and also that his right eye used to blink. Dr. Gurnani states that the testator could not write properly since his hand used to shake. He, DW-4, however, did not prescribe any medicines but did prescribe Vitamin B-1, B-6 and B-12 injections. He stated that the testator could not sign fluently even though he had once seen him signing the documents. In his opinion, the testator could not have written a lengthy document like Ex.P-1. In cross-examination, he mentioned that he did not maintain register of patients and not being an IT assessee nor having ever visited the testator's house. He also admitted that the patient's slips used to be maintained only for one year after which he used to destroy them. He stated having visited the testator's house on 03.01.1982 when he found his condition to be bad and advised that he should be removed to hospital. He lived 1 k.m. away from the testator's house. He had also medically treated Rajiv, his wife and their child. He also conceded having suffered from mental illness which was treated, which again recurred in 1983. He admitted to having friendly relationship with Rajiv.

31. After conclusion of DW-4's deposition, the Court permitted limited cross-examination of PW-2, Mr. R.N. Batra. He denied ever having shown the Will Ex.P-1 to DW-2 after the testator's death. He refuted all suggestions of having asked, or repeatedly requested Sh. P.K. Jain (DW-2) to attest the Will after the testator's death, or that he (DW-2) agreed to do so due to PW-2's insistence. He denied the suggestion that DW-2 had not attested the Will in 1980, and a suggestion of meeting him (DW-2) on 11.05.1985 and discussion about the Will. He deposed that Jain met him after deposing at the instance of Rajiv, in his case. He denied suggestion of meeting Jain before 13.05.1985, and about assuring him that he would not be called to Court. He denied having telephoned Jain, and that the latter had called him after receiving summons, or that Jain was intimate with him. The Court permitted a tape recording - of some conversation allegedly between Jain and Sh. R.N. Batra - to be played which was denied by PW-

2. He (R.N. Batra - PW-2) denied that, and also having so conversed with Jain. The matter was left at that stage, and the Court recorded - on 24.03.1985 - that Sh. R.N. Batra's re-examination was to continue.

TEST CAS. 48/1983 Page 16

32. Mr. P.K. Jain, DW-2 was recalled for limited examination on 19.02.1990; he stated having conversed with Sh. R.N. Batra on 11.05.1985 and having recorded it. The audio cassettes were played again, and he stated that besides his voice, Sh. R.N. Batra's voice was recorded.

33. In cross-examination, he stated that the tape-recorded conversation was not mentioned by him on 13.05.1985 as he did not want to spoil relations between the two parties as he hoped that they would settle their disputes. He alleged about compulsion to disclose it due to threatened perjury action by Sh. Marwaha, Sanjiv's counsel. DW-2 stated that one Ms. Veena Anand, an Advocate of Tis Hazari had brought the tape recorder and cassette to help him record the conversation with Sh. R.N. Batra. She was his neighbor, who saw him the day he was served with summons to depose in Court. He stated having told about the matter to Ms. Anand who brought the tape recorded in the afternoon, along with electronic gadgets. He mentioned that the tape recorder was taken away by Ms. Anand, leaving the cassette with him. He admitted that there was no document to show that the conversation was recorded on 11.05.1985. He denied having created false evidence. He could mention Sh. R.N. Batra's telephone number, in Court. He deposed having known Sh. R.N. Batra about two-and-half years before the suit. He conceded not having put any identification mark on the cassette; he stated having transcribed the taped conversation. He did not give the transcription to Rajiv on 14.05.1985. He stated that Sh. Anand used an electronic gadget to record the telephonic conversation.

34. In cross-examination, he also stated that Ms. Anand went to take out her car, which was parked in front of his (DW-2's) house, on 11.05.1985 and about her talking to him, since he was perturbed about the summons received by him to depose in the case. He stated having met Rajiv on 14.05.1985, and admitted that the statement in the tape-recording about the burning of his electricity meter being false. He stated having handed over the tape-recording (marked as Ex.DW-2/C) to Rajiv, since he was disgusted on being "let down".

35. DW-3, Rajiv was again cross-examined on 30.11.1993 and 01.12.1993 when he admitted not having consulted any handwriting expert in relation to his father's writings and signatures. He conceded to filing a partition suit, claiming one-third share in the properties; he denied the

TEST CAS. 48/1983 Page 17 suggestion that any amount was spent by Sanjiv for Rajni's marriage. He admitted to opening of a locker, from which ornaments were removed to be given to Rajni, pursuant to Court orders.

36. PW-1, Sh. P.N. Batra again deposed on 27.11.1997. He mentioned becoming a witness to attestation of the Will on reaching the testator's house, without previous notice. He did not know whether Rajiv and his family lived with the testator, but stated that he (Rajiv) was not in good terms with the testator. He deposed that the testator was writing the Will when he went there. He mentioned that Jain attested the Will, but was not aware whether it was before or after his signature. He stated that the testator had already signed the Will. Now, he mentioned that the Will was executed in a leap year and that the testator had asked him not to disclose about it to anyone. He admitted that the testator was worried about his daughter, Rashmi's handicap. He did not know if the Will was recovered from the effects of PW-2's wife, after her death.

37. Sanjiv Sapra was allowed to be cross-examined on 07.12.1999; by Rajiv. He was cross- examined on Rashmi's behalf, on 24.09.2003, when he claimed to have spent money for Rajni's marriage, and that he was taking care of Rashmi's needs.

Sanjiv's Contentions

38. Sanjiv argues that Ex.P-1 is holograph Will in Urdu (written by deceased himself) and duly executed as per law duly attested by witnesses, namely Shri P.N. Batra and Sh. P.K. Jain. Sh. P.N. Batra is younger brother of father-in-law of deceased Sh. Om Prakash while Sh. P.K. Jain was a friend and neighbor of deceased Shri Om Prakash. The petition was contested substantially on the premise that the Will was forged, which was in turn refuted by filing a replication.

39. Sanjiv argues that his evidence, through Sh. P.N. Batra, attesting witness as PW-1 is important. Sh. Batra proved the Will (Ex. P-1) as per requirement of law while confirming not only that Will was duly executed and signed by Sh. Sapra, who not only wrote the Will in his own hand in Urdu but also prepared another copy. Likewise and after preparation of the same, both PW-1 and Sh. Jain, DW-2, the other witness attested the Will as per requirement thereof.

TEST CAS. 48/1983 Page 18 It is stated that the deceased was well-conversant with Urdu and English language as he used to prepare manuscript and publish an Urdu newspaper, "Hindustan Byopar Patrika". PW-1 was cross-examined; during the cross-examination, he confirmed that the Will was written in the hand of deceased in the presence of both attesting witnesses and he took about two hours in writing the same. He also confirmed that the Will was read over by deceased to them and after reading and comparing the same, the Will was executed. It is argued that neither the witness PW-1 was confronted with the Will nor any suggestion was put to him during the course of cross-examination (a) that Will was not in the handwriting of deceased Sh. Om Prakash; (b) that the other attesting witness, Sh. P.K. Jain was not present at the time of signing and executing the Will; (c) about signature of deceased or witness being Sh. Jain being forged or of his health. The statement was recorded on 03.05.1985. It is stated the said date assumes importance.

40. It is urged that parties' maternal grandfather, deposed as PW-2. His statement was also recorded on 03.05.1985; he confirmed the Will to be in handwriting of the testator. He also confirmed that the testator maintained normal health. Nothing came out of his cross- examination; instead in the course of cross-examination, he confirmed that he had same love and affection for both sons of the testator, being their grandfather. Likewise this witness was neither confronted with the Will nor was any suggestion put to him that the Will was not duly executed. No suggestion was put in respect of either of signature of the testator or of witnesses or of his alleged non-presence or in respect of handwriting being not of deceased in the Will or of his health.

41. Sanjiv argues that he deposed as PW-3 on 13.05.1985, when he confirmed about genuineness of the Will and that his father maintained good health. He was subjected to cross- examination; nothing came out in the cross-examination. Likewise no suggestion was put to him either regarding forgery of the signatures of the testator, or regarding handwriting in the Will or regarding attestation of the Will by DW-2, Sh. Jain etc. In these circumstances, submits Sanjiv, that as he proved genuineness and validity of the Will, he closed his evidence after leading evidence. That respondent's evidence started on 13.05.1985 with DW-1, Smt. Rajni Sapra, daughter of deceased. She (DW-1), in fact, set-up a story in examination in chief of so

TEST CAS. 48/1983 Page 19 called heart problem and some problem in right eye and right hand of deceased. However, she confirmed during the course of her examination in chief that the deceased could write fluently and he used to write in Urdu and English. She confirmed that deceased could write at a stretch for about 15 minutes, which is quite normal as one gets stiff after writing at a stretch. She also confirmed during the course of cross-examination that the deceased used to write manuscripts for his paper which was published by him, in Urdu.

42. It is urged that on 13.05.1985, Sh. P.K. Jain (DW-2), the other attesting witness of the said Will appeared as witness of respondent. He confirmed that the said Will bore his signature but he set-up a false and "afterthought" story that he had signed the Will subsequent to death of the deceased on the request of Sh. R.N. Batra (PW-2), though, during the course of examination, he admitted that he knew deceased well and that he used to visit the deceased in routine as a neighbour. He also confirmed he has been taking Rajiv's help, for obtaining cement and even taking help of Rajiv in filing FIR, litigation etc. Rajiv, the other son of the deceased, deposed as DW-3. He set up a story of the suit premises being ancestral property and not property of the testator. He also set-up a new and after-thought story of alleged threat by the maternal grandfather, Sh. R.N. Batra. He confirmed during the course of evidence that he filed a suit for partition. Nothing came out from the statement of DW-3 to shake the validity and genuineness of the Will. On 17.05.1985, statement of Dr. Gurnani as DW-4 was recorded. Nothing came out from the statement of DW-4, instead, DW-4, during the course of examination admitted that he merely worked for Dr. S.R. Sethi for three months when the latter (Dr. S.R. Sethi) went to America, as temporary alternate arrangement. Hence, no importance can be attached to the statement, which has no relevance. Besides this DW-4 vaguely stated that the testator suffered from some weakness in his right arm and right leg. He also stated that he was not suffering from anything except routine heart ailments and weakness and that he prescribed medicines like B-Complex etc. He, however, later contradicted his statement that he used to maintain a record of patients. He also confirmed that he never visited deceased or any of his family members at his house and later contradicted his statement by saying that he was friendly with Rajiv. He admitted that he had no arrangement for basic requirements like ECG etc, and that deceased used to come for checking blood pressure, pulse,

TEST CAS. 48/1983 Page 20 etc. He also confirmed that he (DW-4) was suffering from mental illness. It is urged that all these showed DW-4 as an interested witness. He is not even income-tax assessee. On 24.05.1985, in view of statement of DW-2, Sh. P.K. Jain dated 13.05.1985, the Court permitted the respondent to cross-examine PW-2, Sh. R.N. Batra for a limited point whether Sh. R.N. Batra had taken the Will to Sh. P.K. Jain to sign as attesting witness after death of Sh. Om Prakash.

43. Sanjiv says that on 24.05.1985, PW-2 was further cross-examined by the respondent when for the first time the further alleged false new version of the alleged tape-recorded conversation by DW-2, Sh. P.K. Jain and Sh. R.N. Batra, PW-2 was put forward. The alleged cassette recording was played in the Court which alleged conversation was denied by Sh. R.N. Batra during his deposition. By an order dated 22.07.1985 (in view of the cross-examination of Sh. Batra dated 24.05.1985), about the tape-recorded conversation, DW-2 was also recalled on 18.02.1990. During course of examination, Sh. P.K. Jain claimed to have recorded the alleged conversation on 11.05.1985. Interestingly, he was in witness box on 13.05.1985. There was no whisper of the alleged conversation or recording on 13.05.1985. On the contrary, during the course of cross-examination, he set-up a story that he did not disclose about alleged conversation/recording of 11.05.1985 on 13.05.1985 as he did not want to spoil the relations between the two brothers. It is strange, relations stood spoilt when Sh. Jain deposed on 13 th May itself while siding with respondent and appearing at their behest. He further set-up a story that he was disclosing about the alleged conversation as he was allegedly threatened by Sh. S.N. Marwah, Advocate of prosecution of perjury and that is why compelled to do so. It is pointed that his deposition is on 13.05.1985, whereas the alleged recording is of 11.05.1985. If it was so witness would not have sat over the alleged recorded conversation on 13.05.1985 while he was deposing in Court, instead he would have disclosed about the alleged threat when he was in witness box, i.e. 2 days after the alleged recording. More so alleged conversation has got nothing to do as far as ld. Advocate Sh. Marwah was concerned. It is also argued further that DW-2 was cross-examined on the first occasion itself on 13.05.1985. The alleged version of threat, therefore, was an afterthought. The witness could not, in anticipation of a later threat, recorded a conversation in advance on 11.05.1985. Besides this, during further cross- examination, DW-2 stated that the alleged tape-recorded conversation in the cassette was

TEST CAS. 48/1983 Page 21 handed over to Rajiv. Hence, the alleged original recording has also not come from DW-2. Besides, which alleged cassette has been produced before Court is under doubt as some cassette is claimed to have been filed by Rajiv. Admittedly, the witness did not produce any cassette containing the alleged conversation. Besides this, no whisper came from DW-2 of alleged recording during his cross-examination on 13.05.1985. Even the alleged recording has not been authenticated by any scientific means and authenticated by any expert process.

44. It is argued that the version set-up of the alleged recording is false. During the course of cross-examination, Sh. Jain confirmed that he was served with summons on 11.05.1985 at 10/10.15 A.M. Sanjeev also argues that the entire version about sudden and convenient appearance of an Advocate when DW-2 was summoned to be a witness, his discomfiture, confiding in her (Ms. Anand), her being able to secure a gadget and its use, are far-fetched and suspect. Such a story raises more questions - such as why an Advocate would leave all work, to help a vague acquaintance, and more incredulously, be able to access another rare gadget, and help DW-2 to record a "rigged" conversation are tales too fantastic to be believed.

45. The petitioner relies on Mathew v. Devassykutty AIR 1988 Ker 315, where the Court was faced with conflicting testimonies of the attesting witness. In that case, one of the attesting witnesses categorically asserted that he and the other witness attested the will in the presence of the testator and saw the signing of the will. On the other hand, the other attesting witness testified that the will was not signed in the presence of the testator, but in the office of the scribe. Dismissing the appeal against the propounders, the Court held, relying on earlier precedents in this regard that in cases where the evidence of the attesting is vague, doubtful or even conflicting, that reliance may be placed on circumstantial evidence pointing to the execution of the will. Referring to the decisions in Brahmdat Tewari v. Chaudan Bibi, AIR 1916 Cal 374 and Manindra Nath Ganguli v. Durga Chtan Ganguli, ILR (1949) 1 Cal 471 the court held that probate courts are not powerless in circumstances of conflicting testimonies of attesting witness, so long other circumstances are in favour of the validity of the will. A similar view, referring to an identical set of precedents was also taken in Ittoop Varghese v. Poulose, AIR 1975 Ker 141. The petitioner therefore urged that the probate in this case should be granted,

TEST CAS. 48/1983 Page 22 since the evidence of DW-2 is untrustworthy, whereas that of PW-1, is consistent about due execution of the will, by the testator.

46. Sanjiv argues that the mere displacement of some or all legal heirs, in the will by itself is not a suspicious circumstance which ought to impel the court to decline probate. In this connection, Pentakota Satyanarayana v. Pentakota Seetharatnam, (2005) 8 SCC 67, is relied on; the Court, allowing the appeal of the propounder, held that circumstance of the Will depriving natural heirs should not raise any suspicion since the idea behind the execution of a Will is to interfere with the natural line of succession. The Court referred to an earlier decision of the Supreme Court in Uma Devi Nambiar v. TC Sidhan, (2004) 2 SCC 321, in this regard. This principle has been applied in Mathew Jacob v. Salestine Jacob, AIR 1998 Del 390, and Khusbir Singh v. The State, AIR 1990 Del 59, again relied on by the petitioner.

47. Sanjiv next relied on Ajit Chandra v. Akhil Chandra, AIR 1960 Cal 551, to say that since in this case, the will was a holographic one, there is a presumption in favour of its genuineness and for a very good reason, ie. that the mind of the testators in physically writing out his own will is more apparent in a holograph will than where his signature alone appears to either a typed script or to a script written by somebody else. The Court had also held, that the fact that the propounder gets the largest benefit or lion's share under the will, by itself does not invalidate it. Such circumstance is one which should impel the Court to be vigilant in examining the evidence with suspicion, but no more. The strong presumption of validity in favour of holograph wills has also been noted by the courts in Joyce Primrose Prestor v. Vera Marie Vas, (1996) 9 SCC 324, Shashi Kumar Banerjee v. Subodh Kumar Banerjee, AIR 1964 SC 529 and Ramakant Chaturvedi v. MC Chatruvedi, 94 (2001) DLT 511.

48. It was argued that the version of DW-2 about conversing with R.N. Batra, DW-2, on 11th May, 1985 was a clear after thought; counsel highlighted the improbability of the version, contending that it was never brought to the notice of the court, till 24 th May, 1985. It was submitted that the alleged tape-recording cannot be admitted in evidence, as it was not proved; nor did the respondent ever seek leave to produce it as a document. It was submitted that giving credence to it would taint the whole proceeding, as it was produced in court not by

TEST CAS. 48/1983 Page 23 DW-2, but by Rajiv, who had been allegedly handed over the said tape, on 14 th May, 1985. It was argued that if DW-2's version is not capable of belief, the court is left only with the evidence of PW-1, which is sufficient to establish the genuineness of the will, to entitle grant of probate. It was emphasized that Rajiv, as objector to the grant of probate, did not substantiate the allegations made, about the testator's illness or paralysis, or that he was unable to write. He conceded that the testator knew Urdu, and was publishing a newspaper; Rajiv's attempt to support his averments regarding mental incapacity or sickness of the testator were unworthy of credence, since the testimony of DW-4 could not be accepted; he never treated the testator regularly. The doctor concededly did not maintain any records, and himself underwent psychiatric treatment. It is also argued that even though Rajiv disputes the will, he made no attempt to lead expert evidence to compare the conceded writings of the testator in Urdu, or even lead any expert evidence to prove the allegation that the will had not been written by the testator.

Rajiv's submissions

49. Rajiv argues that the court should not grant probate since the propounder has been unable to establish that what is produced is indeed a will and that it was executed by the testator with the knowledge that it was a will; the testator was not of a sound and disposing mind and lastly the will itself was not genuine as it was shrouded in suspicious circumstances. Detailing the submissions, it was argued that the alleged attesting witnesses DW-2 did not support the version that the document produced was a will; he flatly denied the circumstances mentioned by PW-1 under which it was executed.

50. It is argued that what was stated in the will regarding Rajiv's wedding causing unhappiness in the family and to the testator, was completely contradicted in the evidence of led on behalf of the propounder. The deposition of PW-2 was highlighted to say that Rajiv's wedding was accepted by all, particularly his father. It was also emphasised that Rajiv was devoted to his mother and had donated blood during her prolonged illness. It is further argued that PW-2 admitted that he was one of the main participants in Rajiv's wedding. DW-1, the

TEST CAS. 48/1983 Page 24 sister of Rajiv and Sanjiv deposed that Rajiv's marriage was celebrated with the consent of the testator who enjoyed good relations with him (Rajiv).

51. It is submitted that the court cannot ignore the evidence of DW-2, who clearly and categorically deposed that the testator did not make a Will as was alleged by the propounder; he flatly denied having executed or attested the will. The court ought to take due notice of his deposition, which says that PW-2 had approached him to sign the Will after death of the testator which he did after a great deal of initial hesitation and reluctance. It is argued that DW- 2 had no intention of producing the tape-recording but felt constrained to do so on account of his being threatened prosecution for perjury and his resultant disgust. It was argued that the tape-recording is valid piece of evidence which the court should not ignore, in probate proceedings where the standard of proof required of a propounder is higher than the mere preponderance of probability which applies in all other civil cases. Learned counsel submitted that even if the signature upon a document styled as a will is proved, yet, if there are discrepancies and contradictions which confront a court of law, the propounder has to satisfy the court's conscience that no suspicious circumstances existed at the time of execution of the will.

52. The respondents rely on the decision reported as H. Venkatachala Iyengar v. B.N. Thimmajamma 1959 Supp (1) SCR 426, Rani Purnima Debi v. Khagendra Narayan Deb AIR 1962 SC 567 and Seth Beni Chand v. Kamla Kanwar AIR 1977 SC 63. It is argued that the mere disinhereitance of Rajiv may not be sufficient to qualify as a suspicious circumstance. Yet, that, coupled with the circumstance that the two daughters were not provided for in the will, one of whom (Rashmi) was disabled, and admitted to the Cheshire home, and the other of young and of marriageable age, drew a question mark on the genuineness of the will, since the evidence had disclosed that the testator cared for and was worried for his daughter. The mention that he hoped that the two sons, including Rajiv would care for their sisters, was unnatural, since Rajiv had been denied any meaningful inheritance in the will.

53. It was argued that the will contained irrefutable internal evidence of having been prepared after the date of its alleged execution. It was submitted that the said will (Ex. P-1)

TEST CAS. 48/1983 Page 25 mentioned about a property, 58 Saddar Bazar Road, which was a shop. It mentioned that Prithvi Chand Jain was a tenant of that property and that the tenancy was terminated before his death. Crucially, the will - dated 29-2-1980 mentioned about a suit seeking decree for possession. Rajiv's counsel emphasized that the suit, OS No. 335/80 was in fact filed on 15.07.1980. The suit records were requisitioned for these proceedings, and were part of the records of this case. The signatures of the testator, marked at A-7 to A-12 on the said suit, were also sent for examination by the handwriting expert, who, in his report Ex. PW-4/3 stated them to be the same as on the will, on their comparison. It was argued that if the will were genuine, it could not have mentioned a suit, filed after its execution.

54. It was argued on behalf of Rajiv that there is no question of the will being holographic; besides Sanjiv's assertion, there is no evidence to say that the Urdu handwriting was that of the testator. It was argued that Sanjiv, in his evidence deposed that the testator used to publish a Urdu newspaper; he could have produced the Sikh gentleman who was associated with the newspaper, but chose not to do so. Significantly, the handwriting expert was not asked to testify that the body of the will contained the handwriting of the testator.

55. It was contended therefore, that all the facts, singly as well as cumulatively, amounted to " suspicious circumstances" sufficient to enable the court to refuse the probate sought for by Sanjiv.

Analysis

56. A combined reading of Section 63 of the Succession Act and Section 68 of the Evidence Act, shows that the propounder of a will should prove that the will was duly and validly executed. That can be done by not merely by proving the testator's signature on the will, but also establishing that attestations were made properly - as required by Clause (c) of Section 63 of the Succession Act. Section 68 of the Evidence Act does not require the examination of both or all the attesting witnesses. Yet, at least one attesting witness should be examined to prove the due execution of a will as mandated by Section 63. Although Section 63 of the Succession Act requires that a will has to be attested at least by two witnesses, Section 68 of the Evidence Act provides that a document, which is required by law to be attested, shall not be used as TEST CAS. 48/1983 Page 26 evidence until one attesting witness at least has been examined for the purpose of proving its due execution if such witness is alive and capable of giving evidence and subject to the process of the court. Therefore, it is imperative that one attesting witness has to be examined and he (or she) should be in a position to prove the execution of a will. The sole attesting witness so examined, should be able to establish the attestation of a will by him and the other attesting witness for proving there was due execution of the will. (See Janki Narayan Bhoir v. Narayan Namdeo Kadam (2003) 2 SCC 91; Seth Beni Chand v. Kamla Kanwar AIR 1977 SC 63; H. Venkatachala Iyengar (supra)). The first task of the court is to, therefore, see whether the plaintiff proves that the will was not executed in accordance with law.

57. On the face of it, the deposition of PW-1 seems credible and worthy. He was the brother of PW-2 (the testator's father in law); he deposed being present during the signing of the will, and also about the presence of DW-2. He lived about 500 metres away from the testator. He also stated about lack of knowledge of contents of the will, and that the testator prepared it and signed it in his presence and in the presence of DW-2. This evidence was recorded on 2-5- 1985. PW-1 also stated that the testator was annoyed with Rajiv as he had married against his wishes. PW-2 also supported PW-1's version. However, interestingly, he did not mention about any disagreement of the testator with Rajiv, and testified having attended his wedding, stating that he was a prominent person, in it. The version of PW-1 was completely denied by DW-2, who could identify his signature on the will Ex. P-1, but denied that it was a will; according to him, the document was signed after the testator's death, at the insistence of PW-2, who was known to him. These depositions are crucial to considering whether the testator had signed the will. After examination of the petitioner's witnesses, the respondents' witnesses started to depose. After the examination of Rajiv, since DW-2 had denied having attested the will Ex. P-1, the court permitted PW-2's limited cross examination. The Court permitted a tape recording - of some conversation allegedly between Jain and Sh. R.N. Batra - to be played which was denied by PW-2. He (R.N. Batra - PW-2) denied that, and also having so conversed with Jain (DW-2).

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58. Before proceeding further, it would be essential to rule on the admissibility and credibility of the taperecording produced by Rajiv. DW-2 deposes having recorded the conversation with PW-2, on 11-5-1985. Yet he did not mention it when he deposed in court. He also admits keeping the taperecording, till later, when it was handed over to Rajiv. The cross examination and examination of witnesses continued. No attempt was however, made by anyone - even Rajiv, to produce the taperecording or even make submissions, till DW-2 stepped into the witness box on 24th May, 1985, when it was sought to be used, without permission of the court. The tape was played in court, and exhibited much later.

59. In RM Malkani v. State of Maharashtra, (1973) 1 SCC 471, the Supreme Court held that tape recorded conversation is admissible provided, first, the conversation, is relevant to the matters in issue; second, there is identification of the voice; and thirdly, the accuracy of recording is proved by eliminating the possibility of any tampering. The Supreme Court, in Ram Singh v. Col. Ram Singh, (1985) Supp SCC 611, prescribed the parameters for the admissibility of tape recorded statements. It held that the voice of the speaker must be identified by the maker of the record or other persons recognizing his voice. Where the maker is unable to identify the voice, strict proof will be required to determine whether or not it was the voice of the alleged speaker. The accuracy of the tape recorded statement must be proved by the maker of the record by satisfactory evidence: direct or circumstantial. The possibility of tampering with, or erasure of any part of the tape recorded statement must be totally excluded. Moreover, the tape recorded statement must be relevant under the provisions of the Evidence Act and the voice of the particular speaker must be clearly audible and must not be lost or distorted by other sounds or disturbances.

60. On a proper application of the above parameters, the court concludes that the tape- recording alleged to be of the conversation dated 11-5-1985 cannot be admitted in evidence for several reasons. DW-2, for one, did not produce it during his deposition dated 13-5-1985; his explanation that he did not want the relationship between the two brothers - disputants in these proceedings, to be spoiled, wears thin, because they were already fighting in court. Secondly, the tape-recording was handed over to Rajiv, who did not mention about it, during

TEST CAS. 48/1983 Page 28 his deposition. Thirdly, there was no voice identification of the kind required of by the Supreme Court; last and most importantly, the handing over of the tape by PW-1 to DW-3, Rajiv, who was interested in the outcome of the proceeding, being a party, underlined the strong possibility of its being tampered; at any rate, there was no evidence of the custodian of the tapes eliminating the possibility of its tampering. For these reasons, the court is of opinion that the tape-recordings cannot be relied on.

61. The above findings on the tape's admissibility, however are not dispositive of the case. Every propounder should satisfy the court's conscience that the will was indeed signed by the testator, with full knowledge that it was a will, and with the intention of making the dispositions contained in it. Even if the testimony of DW -2 cannot be accepted, in view of his later statements regarding the circumstances under which the tape-recording was done as the facts narrated are highly improbable, the court has nevertheless satisfied is conscience that the will was duly executed, and free from suspicious circumstances. DW-2's version that one Mrs. Anand, his neighbour, happen to pass by on the date he received the summons, which had disturbed him, and that she offered to help him to record a telephone conversation with PW-2, seem to be a series of improbable coincidences. That a lawyer, otherwise not known to be particularly close to the witness, volunteered on the precise day of his receiving summons to appear in court and depose in the proceeding, and that she was in possession of a gadget that would exactly record the voice of PW-2, in a telephone conversation is too farfetched to be true. For these reasons, the deposition of DW-2 cannot be accepted.

62. PW-1's evidence about the circumstances in which the will was executed, seem credible. However, his deposition about Rajiv's marriage annoying or upsetting the testator, is not corroborated by PW-2, who categorically states being a prominent person. He also mentioned that the testator had signed the will after he (PW-1) went to his house. PW-1 did not go with the knowledge that he had to be an attesting witness. His version is also contradicted by DW-3, who mentions being present at home on 29th February, 1980, since he maintained a diary.

63. The legal requirements spelt out by Section 63 (of the Succession Act) and Section 68 (of the Evidence Act), oblige the court which considers a plea about validity (or otherwise) of a will

TEST CAS. 48/1983 Page 29 has to see other significant facets. The court has to be satisfied generally that the tesatator (or testatrix) was of a sound and disposing mind, in possession of his or her senses, with the ability to perceive that the document executed was indeed a will which she or he desired, and was also aware of its contents, which accorded with her (or his) wishes. These essentials were clarified by the Supreme Court, in H. Venkatachala Iyengar (supra) in the following terms:

"There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature, in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter.

21. Apart from the suspicious circumstances to which we have just referred, in some cases the wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the wills w did hich confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. It is in connection with wills that present such suspicious circumstances that decisions of English courts often mention the test of the satisfaction of judicial conscience. It may be that the reference to judicial conscience in this connection is a heritage from similar observations made by ecclesiastical courts in England when they exercised jurisdiction with reference to wills; but any objection to the use of the word "conscience" in this context would, in our opinion, be purely technical and academic, if not pedantic. The test merely emphasizes that, in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is deciding a solemn

TEST CAS. 48/1983 Page 30 question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive..."

The reasoning in this decision was applied subsequently in several judgments: Rani Purnima Debi (supra), where it was held that:

"5. Before we consider the facts of this case it is well to set out the principles which govern the proving of a will. This was considered by this Court in H. Venkatachala Iyengar v. B. N. Thimmajamma ([1959] 1 S. C. R. 426). It was observed in that case that the mode of proving a will did not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by section 63 of the Indian Succession Act. The onus of proving the will was on the propounder and in the absence of suspicious circumstances surrounding the execution of the will proof of testamentary capacity and signature of the testator as required by law was sufficient to discharge the onus. Where, however, there were suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the Court before the will could be accepted as genuine. If the caveator alleged undue influence, fraud or coercion, the onus would be on him to prove the same. Even where there were no such pleas but the circumstances gave rise to doubts, it was for the propounder to satisfy the conscience of the Court. Further, what are suspicious circumstances was also considered in this case. The alleged signature of the testator might be very shaky and doubtful and evidence in support of the propounder's case that the signature in question was the signature of the testator might not remove the doubt created by the appearance of the signature. The condition of the testator's mind might appear to be very feeble and debilitated and evidence adduced might not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will might appear to be unnatural, improbable or unfair in the light of relevant circumstances; or the will might otherwise indicate that the said dispositions might not be the result of the testator's free will and mind. In such cases, the Court would naturally expect that all legitimate suspicions should be completely removed before the document was accepted as the last will of the testator, Further, a propounder himself might take a prominent part in the execution of the will which conferred on him substantial benefits. If this was so it was generally treated as a suspicious circumstances attending the execution of the will and the propounder was required to remove the doubts by clear and satisfactory evidence. But even where there suspicious circumstances and the propounder succeeded in removing them, the Court would grant probate, though the will might be unnatural and might cut off wholly or in part near relations..."

64. In Surendra Pal v. Dr. Saraswati Arora 1974 (2) SCC 600; Gurdial Kaur v. Kartar Kaur 1998 (4) SCC 384, etc. Court emphasized that usually it is the cumulative effect, rather than a

TEST CAS. 48/1983 Page 31 stray circumstance, which would weigh in concluding that a will is shrouded in suspicion. Ultimately, it is the conscience of the court, which should be satisfied that the will is a genuine document, and expresses what is intended by the testatrix or testator, apart from being satisfied that the technical legal requirements mandated by the joint operation of Section 63 of the Succession Act, and Section 68 of the Evidence Act, are fulfilled.

65. In this case, there are certain circumstances which would have to be considered. It is an undeniable fact that Rashmi was not provided for in the will; it states that both her brothers were to care for her. It has also come on the record - in oral evidence of the witnesses for the petitioner (i.e., PW-1) that the testator cared for his daughters, and was worried for Rashmi. Yet, inexplicably, he did not make any specific provision for Rajni's marriage, although apparently she was nearly of marriageable age, at the time of his death; she was even younger, when the will was made. Rajiv is no doubt denied benefit of the testator's estate; yet, inexplicably, the testator made no provision for his daughters; in the case of Rashmi the omission is inexplicable, as it left her completely vulnerable, and at the mercy of Sanjiv as well as Rajiv. The latter's attitude could only have been speculated upon, since he was kept out of the succession altogether. Even so far as Rajni is concerned, the lack of any provision shows an unnatural disposition, as it is again a matter of record, that she was very young when the will was prepared.

66. Apart from the above, one of the most important circumstances which this court has to consider is a suit filed by the testator. The relevant part of the will states:

"Shop No.58-XIV, Main Saddar Bazar Road - length 47' and breadth 9- 1/2' there is a shop No.57 bearing name and style Shiv Stores on one side and on the other side there is a shop No.59 belongs to M/s. Jagat Singh Kwatra. Sole tenancy right were in the name of deceased Shri Prithvi Singh Jain of my shop No.58, who died on 18-1-1980. Tenancy rights in the name of Shri Prithvi Singh Jain, was terminated. Prior to his death. I had no tenant in the name of Jain Trunk House and nor there is any. On the contrary, the claimant named as Jain Trunk House is in wrongful possession of the said shop and he is a tress-papper and suit for possession is already pending decision in the civil court. After my death, Sanjiv Sapra, will be the owner and will have the right to take possession of the shop and to pursue the proceedings of the suit. On receipt of the possession of shop No.58, Sapra Hosiery business may be shifted there."

TEST CAS. 48/1983 Page 32 This court had summoned the record of the case, OS No. 335/80, pending on the file of the civil court. It was filed on 15th July, 1980. In order to ascertain the correctness and genuineness of the signatures on this suit and other pleadings, the court sought opinion of an expert, who also deposed about the signatures on the will.

67. The handwriting expert, PW 4 who was working as the Senior Scientific Officer, CFSL, New Delhi had examined various documents pertaining to the present case upon directions from the Court. He submitted an interim and final report, and the final report dated 27.10.1986 was marked Ex PW 4/3. In his report and later in his deposition dated 6.10.1987, he stated that the signatures allegedly belonging to the testator at mark A, F, G and B on Ex. P1, Ex. P5, Ex. P6 and Ex. P6/1 is of the same writer of the standard signature mark A, A-4, A-6, A-7 to A-13. In other words, the signatures of the at four different points on the will dated 29.02.1980, matched with the signatures at points A-7 to A-13, on the plaint and accompanying affidavits in OS No. 335/80 dated 15.07.1980. The submissions of Rajiv, are, in this context, substantial. If indeed, the will were genuine, and had been signed by the testator on 29 th February, 1980, the mention of an eviction suit, which was filed later, (on 15-7-1985) in it, is not merely inexplicable; it raises strong suspicion about its genuineness.

68. Mathew no doubt, held, that in cases where the evidence of the attesting witness is vague, doubtful or even conflicting, reliance may be placed on circumstantial evidence pointing to due execution of the will. The court had relied on the previous decisions in Brahmdat Tewari (supra) and Manindra Nath Ganguli where it was held that the probate courts are not powerless in circumstances of conflicting testimonies of attesting witness, so long other circumstances are in favour of the validity of the will. A similar view, referring to an identical set of precedents was also taken in Ittoop (supra). Similarly, there cannot be two opinions that mere denial of any share or property to a natural heir by itself does not amount to a suspicious circumstance. However, in this case, unlike other cases, there are some features highlighted by Rajiv - about the non-provision of any means of support for one daughter, who clearly needed support, being admitted in a Cheshire Home, due to her physical condition, and another daughter, who was extremely young and of marriageable age. In the Indian context, a father's

TEST CAS. 48/1983 Page 33 concern to provide for daughters, especially in such circumstances, since the mother had predeceased him, is natural. Yet, here the testator's omission is inexplicable. More importantly, the mention of a civil suit for decree of possession, filed after execution of the will and no attempt by the propounder to explain it convincingly, virtually seals the fate of the document, and the probate proceeding.

69. In view of the above findings, the court is of opinion that the petitioner Sanjiv has been unable to discharge the burden cast on him, of proving a valid and binding will, executed by the late O.P. Sapra. The petitioner is, therefore, not entitled to probate. The probate petition must therefore, fail; it is accordingly dismissed with no order as to costs.

                                                                             S. RAVINDRA BHAT
                                                                                  (JUDGE)
        OCTOBER 12, 2009




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