Delhi High Court
Surender Kumar vs State on 18 January, 2010
Author: Aruna Suresh
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ PROBATE CASE NO. 5/1989
Reserved on: October 03, 2007
Date of Decision: January 18, 2010
SURENDER KUMAR .....Petitioner
Through: Mr. S.K. Sharma, Advocate
with Mr. Anurag Mandla,
Advocate Mr. Vijender Katoch,
Advocate.
VERSUS
STATE .....Respondent
Through: Mr. D.R.Singh, Advocate
AND
(2) PROBATE CASE NO. 44/1990
SMT. SUDESH KUMARI MEHDIRATTA & ORS.
.....Petitioners
Through: Mr. D.R. Singh, Advocate
VERSUS
STATE & ORS. .....Respondents
Through: Mr. S.K. Sharma, Advocate
with Mr. Anurag Mandla,
Advocate Mr. Vijender Katoch,
Advocate.
% CORAM:
HON'BLE MS. JUSTICE ARUNA SURESH
(1) Whether reporters of local paper may be allowed to
see the judgment?
(2) To be referred to the reporter or not? Yes
(3) Whether the judgment should be reported in the
Digest ? Yes
Probate Case Nos. 5/89 & 44/90 Page 1 of 59
JUDGMENT
ARUNA SURESH, J.
1. Probate case No.5/1989 has been instituted by
Surender Kumar son of Shri Tehl Ram Tuteja (since
deceased) seeking probate in respect of Will dated
29.01.1988. Probate Case No.44/1990 has been
filed by Smt. Sudesh Kumari Mehdiratta daughter of
deceased Tehl Ram seeking probate of Will dated
30.5.1985. Both these Wills are purported to have
been executed by Tehl Ram Tuteja during his
lifetime. Both the cases were consolidated vide
order dated 29.01.1991 passed in Probate Case
No.5/1989 with further directions that proceedings
would be recorded in Probate Case No.5/1989.
2. In brief, the facts are that deceased Lala Tehl Ram
Tuteja was the joint owner of house No.A-294,
Derawal Nagar, Azadpur, Delhi with Surender Kumar
(Petitioner) having equal share in the same. He
expired on 8.03.1988 leaving behind three
daughters, namely, Smt. Sita Rani, Smt. Raj Kumari
and Smt. Sudesh Kumari. Sita Rani was married to
one Thakkar Das, Raj Kumari was married to Jaman
Lal Khurana and Smt. Sudesh Kumari was married
to Gobind Lal Mendiratta. Sita Rani was the eldest
daughter. She gave birth to two sons, one of them
being Petitioner Surender Kumar. Since Tehl Ram
had no son, Surender Kumar was adopted by him.
Surender Kumar had been living with Tehl Ram
since his childhood. He served Tehl Ram as his son
and performed last rites of Tehl Ram and his wife as
a son. As per Annexure ‗A' of the petition, Tehl Ram
left behind following moveable and immoveable
properties:-
― 1. Cash in Bank:
(a) Three fixed deposit receipts of
value of Rs.30,000/- (including
interest uptodate) with Punjab
National Bank Vijay Nagar in the
joint name of the deceased and
his daughter Smt. Sudesh
Kumari - Rs.34,500/-
(b) Cash in saving bank account in
the joint name of the deceased
and his daughter Smt. Sudesh
Kumari with Punjab National
Bank Vijay Nagar with estimated
interest. - Rs.1,500/-
(c) Ornaments (with Smt. Sudesh
Kumar) - Rs.1,00,000/-
2. Immoveable property
consisting of one half share in
House No.A-294, Derawal Nagar
inclusion of rent uptodate. -
Rs.2,00,000/-.‖
3. Tehl Ram also left behind debts consisting of house
tax payable to Delhi Municipal Corporation of half
share of the immoveable property, funeral expenses
of Rs.29,000/- incurred by the Petitioner on his
death. In all he left debt of Rs.36,000/- as per
Annexure ‗B' attached to the plaint.
4. Tehl Ram purported to have executed a Will dated
29.1.1988 bequeathing his immoveable property to
Surender Kumar and his moveable assets i.e.
jewellery, cash etc. to his daughters to be shared
equally.
5. Smt. Sudesh Kumari, Petitioner in Probate Case
No.44/1990 and one of the respondent/objector was
the youngest daughter of Tehl Ram. Her husband
was employed in Railways. Tehl Ram was allegedly
taken to various religious places by Sudesh Kumari
because of her husband being a railway employee.
She claimed that Tehl Ram had executed a
registered Will in her favour on 30.05.1985 to the
exclusion of all his other children.
6. Both the parties have refuted the claims of each
other and have filed their respective objections as
well as cross objections. Since their objections are
nothing but narration of their case in their
respective petitions, I need not repeat the same.
7. On 29.01.1991, following issues were framed by this
court for adjudication:-
―1. Whether the deceased Tehl Ram
Tuteja had executed a valid will dated
January 29, 1988?
2. Whether deceased Tehl Ram
Tuteja had executed a valid will dated
May 30, 1985?
3. Relief.‖
8. Surender Kumar (Petitioner) has examined
following witnesses to support his case:-
(i) Surender Kumar (PW-1);
(ii) Phool Chand (PW-2), brother-in-law of Tehl
Ram Tuteja;
(iii) Thakkar Das Thakkar (PW-3), son-in-law of
Tehl Ram Tuteja;
(iv) Smt. Sita Rani (PW-4), sister;
(v) Shri Jaman Lal Khurana (PW-5), son-in-law
of Tehl Ram Tuteja;
(vi) Smt. Raj Kumari (PW-6) sister;
(vii) Dr. V.P. Soota (PW-7);
(viii) Parveen Kumar Jain (PW-8), tenant;
(ix) Shri Jagdish Chander (PW-9), attesting
witness to the Will dated 29.1.1988;
(x) Shri Surinder Kumar Arora (PW-10),
attesting witness to the Will dated
29.1.1988;
(xi) Shri Kamal Kant Khandelwal (PW-11),
handwriting expert. His Affidavit is Ex.PW-
6/A.
9. There is an Affidavit of Vikas, son of the petitioner
Surender Kumar. But this affidavit has not been
tendered in evidence and therefore, is not being
read for any purpose. Smt. Sita Rani, Jaman Lal
Khurana, Smt. Raj Kumari, Parveen Kumar Jain and
Jagdish Chander, though had tendered their
Affidavits in evidence but were not produced by the
Petitioner for their cross examination by the
respondent. Since the abovesaid witnesses have
not faced the cross examination by the respondent,
their affidavit in evidence cannot be read in favour
of the Petitioner.
10. Objector Smt. Sudesh Kumari, petitioner in Probate
Case No.44/1990 has examined following witnesses
to support her case:-
(i) Sh. Shri Nivas (DW-1), attesting witness to
the Will dated 30.5.1985;
(ii) Mr. Deepak Mendiratta (DW-2)
(iii) Shri Gobind Lal (DW-3) her husband;
11. There are Affidavits of Sudesh Kumari, Davinder
Kumar Mendiratta dated 25th June, 1994, Dr.
Rajeshwari Gupta dated 25th June, 1994 and of Dr.
V.B. Dudeja, dated 25th June, 1994. However, they
never appeared as witnesses for the respondent to
face the cross examination. Hence, their Affidavits
cannot be read in evidence.
12. I have heard Mr. S.K. Sharma, Advocate for the
petitioner and Mr. D.R. Singh learned counsel for
the respondents/objectors and have carefully
perused the record. Since both the issues are inter
related, they are taken up together.
ISSUE NOs. 1 & 2
13. Tehl Ram had earlier executed a registered Will
dated 30.5.1985 Ex.R-1 whereby he bequeathed his
half share in House No.A-294, admeasuring 268.22
sq. yds. Derawal Nagar, Azadpur, Delhi in favour of
his daughter Smt. Sudesh Kumari and her two sons,
the objectors. Surender Kumar, petitioner as PW-1
has not specifically disputed the signatures of Tehl
Ram on the said Will. However, during the course
of arguments, its genuineness and validity has been
disputed. Respondents Sita Rani and Raj Kumari in
their counter affidavits disclosed that Tehl Ram had
informed them that he had executed a Will on
30.5.1985 in favour of Smt. Sudesh Kumari in a fit
of anger. True, that the said two respondents have
not appeared in the witness box to support their
case. Though they had filed their Affidavits in
evidence but did not step in the witness box to face
cross examination and their testimony cannot be
read in evidence. However, their counter affidavits
supporting the case of the Petitioner can be looked
into and considered for appreciation of the
respective claim of the parties. Even, Sudesh
Kumari, the beneficiary of the Will has not stepped
in the witness box to prove that Will Ex.R-1 was
executed by Tehl Ram during his lifetime
voluntarily, in sound and disposing mind, in good
health and sprit, without any pressure or coercion
and that he also got the Will registered. The only
witnesses examined by Sudesh Kumari are her son
Deepak Mehdiratta and Gobind Lal, her husband.
Both these witnesses during their cross examination
admitted that Tehl Ram did not attend the marriage
of daughter of Sudesh Kumari which took place
before the execution of the Will. Will does not
disclose any valid or genuine reason for ousting
other two daughters from inheritance by Tehl Ram.
Will dated 30.5.1985 Ex.R-1 is signed by only one
witness i.e. Srinivas and other signatory happened
to be an Advocate who probably drafted and typed
the Will.
14. Tehl Ram is purported to have executed another
Will dated 29.01.1988 whereby he bequeathed his
half share of the said property in favour of the
Petitioner Surender Kumar and his moveable assets
in the form of fixed deposits and bank account and
jewellery to this three daughters namely, Raj Rani,
Sita Rani and Sudesh Kumari respectively.
15. Section 59 and 63 of Indian Succession Act
(hereinafter referred to as ‗Act' lay down the
principles which are mandatory to be followed by a
Testator while executing an unprivileged Will.
Whereas Will is defined in Section 2 (h) of the Act,
as the legal declaration or an intention of the
testator in respect of his property which he is
desirous of being carried into effect after his death.
Thus, firstly, the court has to see that the proof of
execution of the Will is directly satisfied in terms of
Section 63 of the Indian Succession Act and Section
65 and 68 of the Indian Evidence Act. Compliance
of statutory requirements though itself may not be
sufficient but they do postulate or propound in
favour of the execution of a Will by the testator.
16. As per Section 59 of the Act, every person of sound
mind not being a minor can dispose of his property
by way of a Will.
17. Section 63 of the Act reads as follows:-
―63. Execution of unprivileged
wills:
Every testator, not being a soldier
employed in an expedition or
engaged in actual warfare, or an
airman so employed or engaged, or a
mariner at sea, shall execute his will
according to the following rules: --
(a) The testator shall sign or shall
affix his mark to the will, or it shall be
signed by some other person in his
presence and by his direction.
(b) The signature or mark of the
testator, or the signature of the
person signing for him, shall be so
placed that it shall appear that it was
intended thereby to give effect to the
writing as a will.
(c) The will shall be attested by two
or more witnesses, each of whom has
seen the testator sign or affix his
mark to the will or has seen some
other person sign the will, in the
presence and by the direction of the
testator, or has received from the
testator a personal acknowledgment
of his signature or mark, or of the
signature of such other person; and
each of the witnesses shall sign the
will in the presence of the testator,
but it shall not be necessary that
more than one witness be present at
the same time, and no particular
form of attestation shall be
necessary.‖
18. The rules which are required to be followed as per
Section 63 of the act have been analysed by me in
Vikram Chopra vs. State & Ors. Test Case
No.13/1996 decided on 11th September, 2009 in the
following manner:-
―36. From bare reading of Section 63
of the Indian Succession Act it is clear
that the testator has to sign or affix
his mark to the Will as it has to be
signed by some other person in his
presence and on his direction and that
the signatures or mark are to be so
made that it appears that it was
intended thereby to give effect to the
writing as a Will. It is further required
that the Will is attested atleast by two
witnesses or may be more. These
attesting witnesses must see that the
testator has signed or affixed his
mark to the Will in their presence and
each of the witnesses have signed the
Will in the presence of the Testator.
However, it is not necessary that
more than one witness is present at
the same time.
37. A Will like any other document
has to be proved in evidence besides
the requirements prescribed under
Section 63 of the Indian Succession
Act. The onus of proving the Will is 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 are
sufficient to discharge the onus.
However, where there are suspicious
circumstances, the onus would be on
the propounder to explain them to the
satisfaction of the court that the
instrument so propounded is the last
Will of a free and capable testator
before the Will could be accepted as
genuine.
38. Will is a solemn document
written by a person who is dead and
who cannot be called in evidence to
deny the execution or to explain the
circumstances in which it was
executed. It is the living who has to
establish the Will. Therefore, it
naturally puts heavy burden on the
court to satisfy its judicial conscious
that the burden of proof of due
execution is fully discharged and
every suspicious circumstance is
explained. It is, therefore, essential
that trustworthy and unimpeachable
evidence should be produced before
the court to establish the genuineness
and authenticity of the Will. True that,
no specific standard of proof can be
enunciated which must be applicable
to all the cases. Every case depends
upon its own circumstances. Besides
other proof, the conduct of the parties
is very material as it has considerable
bearing of evidence as to the
genuineness of the Will which is
propounded. The rules relating to
proof of a Will are not rules of law.
They are rules of prudence and
therefore, the court vigilantly and
jealously examines the evidence for
proof of a Will. What can be
suspicious circumstances to rebut the
proof of the execution of the Will
depends on facts of each case and
they cannot be universally followed in
every case where the Will is under
challenge.‖
19. The party propounding the Will and seeking proof of
the Will is required to keep in mind the abovesaid
statutory provisions which are like a mandate to the
proof of the Will/document.
20. Section 68 of the Indian Evidence Act makes it
mandatory that at least one attesting witness is
called for proving the execution of a document
which is required in law to be attested, provided
such an attesting witness is alive and is capable of
giving evidence. It is noted that documents other
than Will, if registered, are not required to be
proved by calling upon an attesting witness.
21. In ‗H. Venkatachalah Iyengar v. Chimmajamma
& Ors.' AIR 1959 SC 443', the Supreme Court has
laid down the necessary ingredients required to
prove a Will where onus of proof is on the
propounder, especially when propounder
himself/herself takes a prominent part in execution
of the Will which confer on them substantial
benefits. Taking into consideration Section 59 and
63 of the Indian Succession Act as well as Sections
67 and 68 of the Indian Evidence Act, the Supreme
Court observed:-
―(20). 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.‖
22. In ‗Ramabai Padmakar Patil vs. Rukminibai
Vishnu Venkhande', AIR 2003 SC 3109, the
Apex Court considered as to what can be suspicious
circumstance under the given set of facts in a case
in para 8 of the judgment. It reads:-
―8. A Will is executed to alter the
mode of succession and by the very
nature of things it is bound to result in
either reducing or depriving the share
of a natural heir. If a person intends
his property to pass to his natural
heirs, there is no necessity at all of
executing a Will. It is true that a
propounder of the Will has to remove
all suspicious circumstances.
Suspicion means doubt conjecture or
mistrust. But the fact that natural
heirs have either been excluded or a
lesser share has been given to them,
by itself without anything more,
cannot be held to be a suspicious
circumstance especially in a case
where the bequest has been made in
favour of an offspring. In PPK Gopalan
Nambiar v. PPK Balakrishnan Nambiar
and Ors. AIR 1995 SC 1852 it has
been held that it is the duty of the
propounder of the Will to remove all
the suspected features, but there
must be real, germane and valid
suspicious features and not fantasy of
the doubting mind. In this case, the
fact that the whole estate was given
to the son under the Will depriving
two daughters was held to be not a
suspicious circumstances and the
finding to the contrary recorded by
the District Court and the High Court
was reversed. In Pushpavati and Ors.
v. Chandraja Kadamba and Ors. AIR
1972 SC 2492, it has been held that if
the propounder succeeds in removing
the suspicious circumstance, the
Court would have to give effect to the
Will, even if the Will might be
unnatural in the sense that it has cut
off wholly or in part near relations. In
Rabindra Nath Mukherjee and Anr.
Panchanan Banerjee (dead) by LRs.
and Ors. (1995) 4 SCC 459 , it was
observed that the circumstance of
deprivation of natural heirs should not
raise any suspicion because the whole
idea behind execution of the Will is to
interfere with the normal line of
succession and so, natural heirs would
be debarred in every case of Will. Of
course, it may be that in some cases
they are fully debarred and in some
cases partly. The concurrent finding
recorded by the District Court and the
High Court for doubting the
genuineness of the Will on the
aforesaid ground was reversed.‖
23. Reference is also made to ‗Madhukar D. Shende
vs. Tarabai Aba Shedage', AIR 2002 SC 637;
'Gorantla Thataiah vs. Thotakura Venkata
Subbaiah & Ors'., AIR 1968 SC 1332; and
'Rangaswami Naicker vs. Rangammal (D) by
Proposed LR K.R. Venkataswami Naidu', AIR
1969 Madras 271.
24. Where propounder of a Will takes active
participation in the execution of the Will, it is the
duty of the Court to scrutinize the documents
carefully to know if it was a genuine document and
validly executed by the executants because
participation of a propounder in the execution of
the Will in itself is a suspicious circumstance
attending the execution of the Will.
25. In ‗H. Venkatachalah Iyengar v. Chimmajamma
& Ors., AIR 1959 SC 443', It has been observed
in para 21:-
(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 which 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 question and it must be fully
satisfied that it had been validly
executed by the testator who is no
longer alive.‖
26. In 'Raja Ram Singh vs. Arjun Singh & Anr.,
2002 IV AD (Delhi) 558', it was held:-
―13..............If, however, the
propounder has taken a prominent
part in the execution of the Will which
confers substantial benefits on him
that itself is a suspicious circumstance
attending the execution of the Will
and in appreciating the evidence the
Court should proceed in a vigilant and
cautious manner. Moreover, if the
circumstance raises a suspicion of the
Court that the Will does not express
the mind of the testator then the
Court would be right in rejecting the
evidence of the attesting witnesses
and scribe as well as of the
propounder of the Will with regard to
the execution of the Will by the
testator. In order to appreciate the
credibility of the witnesses, the Court
can look into the surrounding
circumstances. The mere fact that
the Will was registered by itself is not
a circumstance to show that the Will is
genuine. Nor this circumstance in
itself is sufficient to dispel the
suspicion regarding the validity of the
Will where suspicion exists............‖
27. Keeping in mind the law as discussed above, it is to
be seen if in the instant case requirement of
Section 63 of the Act read with Section 68 of the
Indian Evidence Act have been fully satisfied by the
petitioner and the objector and the Will dated
31.05.1985 or the Will dated 29.01.1988 are
shrouded by suspicious features. For that purpose,
the first rule to appreciate the evidence is to peruse
the Will. If the Will is rational, a presumption arises
that it has been executed in a legal manner.
However, this presumption is rebuttable. Will dated
03.05.1985 Ex.R-1 and Will dated 29.1.1988
Ex.PW1/1 read as follows:-
― WILL
This first and the last deed of
Will is made at Delhi on 30th May 1985
by Shri Tehl Ram Tuteja son of Shri
Chothu Ram Tuteja resident of House
No.A-294, Derawala Nagar, Azadpur
Delhi.
I am 83 years old. Life is but
short and uncertain and God knows
when it may come to an end. I with
my free will, consent without
cohersion, or influence and making
this Will, while keeping good health,
sound mind in full conscious and in
disposing mind, to avoid any litigation
after my death. I am the absolute
owner of House No.A-294, Derawal
Nagar, P.O. Azadpur, Delhi,
constructed on half portion on Eastern
side i.e. touching Housing No.A-295,
consisting of Ground floor, (G.C.
consisting of one big room, one
kitchen, two rooms, one latrine, bath
room, boundary walls), (First floor
consisting of one big room, one
kitchen, two rooms, one latrine, one
bath room), (second floor consisting
of one small room, one verandah, one
bath room and one room of latrine),
and a common staircase, which
serves all the three floors mentioned
above, abounded as under:-
North : Service Lane.
South : Road 15' wide.
East : House No.A-295. (Owners S/Shri
Amar Singh narang, and Jagdish
Chand Narang).
West : Plot No.A-293 - Lying vacant
till dated (30-5-1985).
by virtue of Sale Deed dated 11-
7-1978, registered in the office of the
Sub-Registrar, Delhi, Sub. Distt. No.I,
Delhi.
I hereby bequeath that so long
as I am alive, I will remain absolute
owner and in possession of aforesaid
property and after my death, it shall
go and devolve on Smt. Sudesh
Kumari D/o Shri Tehl Ram Tuteja, w/o
Shri Gobind Lal Mendiratta, and her
two sons in equal shares. The Western
portion of the said house is belonging
to Shri Surender Kumar S/o Shri
Thakur Dass, by virtue of the said
Sale Deed and after the death of the
Testator, the said Executors shall be
the owners.
I have rented T-hree rooms, one
kitchen, one Bath Room and one
Latrine on the 1st floor to Shri Sarwan
Kumar Jain s/o Shri Babul Lal Jain,
from 16-7-1984 for a period of 3 years
at a monthly rent of Rs.1000/- (Rs.
One thousand only). Smt. Sudesh
Kumari W/o Shri Gobind lal Mendiratta
will have the right to take the rent
from Shri Sarwan Kumar Jain, in the
event of my death. Complete portion
on the Second floor is lying vacant as
one date (12-4-1985).
The following daughters of the
Testator shall have no right to
interfere in this Will:
(1) Smt. Sita Rani W/o Shri Thakur
Dass Thakkar, Resident of K-
206, Model T-own, Delhi.
(2) Smt. Raj Kuamri W/o Shri jaman
Lal Khurana, Resident of 108-A.
Kalal Khanna, Sadar Chowk,
Meerut Cantt.
I am not giving any share to my
daughters at (1) and (2) above,
because they are well settled.
Neither Smt.Sita Rani nor Raj Kumari
and even their legal heirs shall have
right or claim to my above said
property. I hereby bequeath this in
favour of my youngest daughter
Smt.Sudesh Kumari W/o Shri Gobind
lal Mendiratta, due to love and
affection and as she and her family
Members are looking after me during
my old age. None of my other legal
heirs will have any right or title or
claim in the aforesaid property and if
anybody raises any objections, they
will be considered as NULL AND VOID
in the court of Law. I have
understood the contents of the will
and I admit this to be correct. This is
my FINAL WILL and I hereby revoke all
my previous Wills and Testaments.
IN WITNESS WHEREOF, the
Testator has signed this Will on
the day, month and year first
written above.
TESTATOR.‖
―WILL
I, Tehl Ram Tuteja son of Shri Chotu
Ram Tuteja resident of House No.A-
294 Derawal Nagar, Delhi declare this
to be my list Will which I make this
29th day of January, 1988 cancelling
and revoking my previous will made
in favour of my daughter Smt Sudesh
Kumari wife of Shri Gobind Lal
Mendiratta and her sons and all other
previous Wills, if any, made
heretofore.
2. Now I am about 85 years old but I am
in a sound disposing state of mind.
3. It is well known to everybody that Shri
Surender Kumar son of my daughter
Smt Sita Rani wife of Shri Thakar Dass
lived with me since his childhood and
I brought him up as my son. He
served me with devotion and looked
after me well in my old age as a son.
4. Plot No.A-294 in Derawal Nagar, Delhi
measuring 268.22 sq yds was
conveyed to me and said Shri
Surender Kumar jointly each having
one half undefined share therein by
the Dera Ismail Khan Co-operative
House Building Society Limited by
conveyance deed registered as Sl.
No.2520 in Addl Book No.1, Volume
No. 3607 pages 108-110 on 11.7.1978
with S.R. Distt. I and on this plot we
jointly constructed the building each
contributing equally towards the cost
of its construction, House at Plot No.A-
294, Derawal Nagar is jointly owned
by me and said Shri Surender Kumar
each having one half undefined share
therein. I hereby bequeath all my one
half undefined share in the said plot
No.A-294 Derawal Nagar and building
constructed thereat to said Shri
Surender Kumar absolutely. After my
death my one half share in the said
plot and the house constructed
thereat shall go and devolve upon
said Shri Surender Kumar absolutely
to the exclusion of all my heirs.
5. I have kept my cash in three fixed
deposit accounts of total value of
Rs.30,000/- and in saving bank
account with Punjab National Bank,
Vijay Nagar, in m y name jointly with
my daughter Smt. Sudesh Kumari wife
of Shri Gobind Lal Mendiratta and
kept with her some gold ornaments. I
bequeath that after my death this
cash and ornaments shall be
distributed amongst my three
daughters and said Shri Surender
Kumar equally after meeting my
funeral expenses. For this purpose I
appoint said Shri Surender Kumar as
the executor who shall collect the
cash and ornaments and administer
the same for the benefit of my
aforesaid legatees after defraying
funeral expenses.
IN WITNESSES WHEREOF I have
signed this Will in the presence of the
attesting witnesses and each of them
signed in my presence and in the
presence of each other on the date,
month and year first above written.
Sd/-
(Tehl Ram in Engligh & in Urdu)
TESTATOR‖
28. It is a common case of the parties that Tehl Ram
had half share in House No.A-294, Derawal Nagar,
Azadpur, Delhi and other half share was owned by
Surender Kumar petitioner. Tehl Ram and Surender
Kumar were members of ‗The Dera Ismail Khan Co-
operative House Building Society Ltd.', Azadpur. The
said society allotted Plot No.A-294, admeasuring
268.22 sq. yds. to Tehl Ram Tuteja and Surender
Kumar jointly. Both the joint owners had paid for
their respective share in the said land to the
society. The Transfer Deed of the land was made in
the joint name of Tehl Ram and Surender Kumar in
respect of the said plot. Undisputedly, one site plan
for the entire plot was got sanctioned and the house
was build up as a single unit on the said plot. The
entire plot was assessed to house tax as a single
unit.
29. Gobind Lal (PW-3) husband of Sudesh Kumari in his
cross examination admitted that there is only one
entrance to the entire property and there is only
one staircase in the property. It has come in the
statement of Surender Kumar (PW-1) that though he
is the son of Sita Rani and Thakkar Das Thakkar, but
he was adopted by Tehl Ram and since his
childhood he was brought up and educated by Tehl
Ram as his adopted son. He was married by Tehl
Ram as his own son and he continued to serve Tehl
Ram till his death. He and Tehl Ram lived in the
same house throughout. His statement finds
corroboration from the testimony of Phool Chand
(PW-2), who happen to be brother-in-law (sala) of
deceased Tehl Ram and Thakar Dass Thakkar (PW-
3), the natural father of Surender Kumar. From the
examination and cross examination of the witnesses
for the parties, it is clear that Tehl Ram Tuteja had
no son and after the birth of Surender Kumar born
to his eldest daughter Sita Rani, he adopted him as
his son.
30. True, that there is no Adoption Deed and there is no
evidence to indicate that any Adoption Ceremony
was performed, the fact remains, Surender Kumar
lived with Tehl Ram since his childhood and was
looked after by Tehl Ram as a son. None of the
daughters of Tehl Ram including Sudesh Kumari
have stepped in the witness box to refute the claim
of the petitioner that he was adopted by Tehl Ram
and was brought up and educated by him as his
son.
31. Petitioner has placed on record a photocopy of his
school certificate Ex.PW1/2, issued by the Central
Board of Secondary Education, photocopy of B.A.
Degree, University of Delhi Ex.PW1/3, letter issued
by Punjab National Bank dated 19.2.1970 informing
him of his selection in service of the Bank as a
Clerk/Cashier, to support that he was adopted by
Tehl Ram in his childhood. In all these three
documents, the name of the petitioner has come as
―Surender Kumar Tuteja‖. Thus, it is clear that
petitioner was looked after by Tehl Ram Tuteja as
his son.
32. The other admitted document is 'Sehra' Ex.PW-6/1
which was read and presented by Gobind Lal,
husband of Sudesh Kumari and Jaman Lal Khurana
on the occasion of marriage of the petitioner, which
was solemnized on 28th September, 1968, as per
the customs prevailing in the society of the parties.
Names of Jaman lal and Gobind Lal find placed as
Peshkarta on the left side of the Sehra. This fact is
not disputed by Gobind Lal in his Affidavit or during
his cross examination. The conduct of the parties,
therefore, also indicate that petitioner Surender
Kumar was accepted and treated as brother by
Sudesh Kumari and Raj Rani. It has come in
evidence that Sehra is presented by the sisters in
honour of their brother at the time of his marriage.
33. Last rites of Tehl Ram were performed by Surender
Kumar which fact is admitted by Gobind Lal DW-3
also. Though Gobind Lal testified that he and his
wife Sudesh Kumari were not present at the time
when the last rites of Tehl Ram were performed but,
he admitted that he and Sudesh Kumari were
present at the time of Uthala Ceremony of Tehl Ram
as well as of his wife. He avoided a question when
asked, as to who had asked Surender Kumar to
wear the customary Pagri at the time of Uthawani of
Tehl Ram and his wife. Sita Rani and Raj Kumari,
the other daughters of Tehl Ram have not disputed
the claim of Surender Kumar. Rather, in their
counter affidavits to the petition, they have fully
supported his claim. Though, they have not
specifically disputed the execution of Will dated
30.5.1985 by Tehl Ram because both the daughters
Sita Rani and Raj Kumari have stated in the counter
affidavit that they were told by Tehl Ram that in a
fit of anger, he had executed a Will in 1985 at the
instance of Sudesh Kumari, who had taken him to
Sub-Registrar officer at Kashmiri Gate, Delhi, where
the Will was got registered and that the said Will
was in favour of Sudesh Kumari and her two sons.
They were also told that later on when he realized
that he had executed a Will in a fit of anger, he
repented and cancelled the Will executed in favour
of Sudesh Kumari and he also executed a second
Will on 29.1.1988. Both the sisters also testified
that the said Will was the last Will executed by Tehl
Ram during his lifetime voluntarily, in good health,
spirit and in sound disposing mind.
34. From the entire evidence as discussed above, It is
proved on record that Tehl Ram had love and
affection for the petitioner to whom was a son and
petitioner also rendered help and served and looked
after Tehl Ram with full care during his lifetime as a
son and performed all the duties of a son. In this
background of the fact, now it is to be seen if Will
dated 29.1.1988 is a valid Will executed by Tehl
Ram Tuteja during his lifetime.
35. Mr. S.K. Sharma, learned counsel for the petitioner
has submitted that objector Smt. Sudesh Kumari
has filed two sets of objections to the petition of
Surender Kumar. Both the objection petitions are
identical. The first objection petition is dated
6.6.1989. Though it is signed by the objector but,
does not bear the signature of the other two
objectors, namely, Deepak Kumar and Devender
Kumar. However, the verification of objection
petition is signed by all the three objectors. This
objection petition was got drafted, prepared and
was signed by Smt. Sudesh Kumari and verification
signed by all the objectors on 6.6.1989 at Lucknow.
Similar is the position of second objection, petition
which was signed and verified by all the objectors at
Lucknow on 26.7.1989, though it is signed only by
Smt. Sudesh Kumari. Therefore, according to him,
there is no objection petition filed by Devender
Kumar and Deepak Kumar and, the objection
petitions placed on record can be considered as an
objection petition filed by Smt. Sudesh Kumari only.
He has further emphasized that Smt. Sudesh
Kumari though filed her Affidavit, did not step in the
witness box to face the cross examination, nor she
tendered her Affidavit in evidence. Therefore,
according to him, she has not substantiated and
proved her objections by way of her oral testimony
in evidence. Objector Devender Kumar though filed
his Affidavit, did not appear for his cross
examination. Only Deepak Kumar appeared as DW-
2 and tendered his Affidavit in evidence and faced
the cross examination. He has argued that
since objectors have not been able to prove their
objections to the petition, the objections are liable
to be dismissed for want of evidence.
36. It is highlighted by the counsel for the petitioner
that petitioner does not dispute the registered Will
dated 30.5.1985 but the said Will was superseded
by the last Will dated 29.1.1988 executed by Tehl
Ram. Therefore, Will dated 30.5.1985 having been
superseded by the second Will; it is the Will dated
29.1.1988 which is the last valid Will of Tehl Ram
and therefore, petitioner is entitled to obtain
probate for the same.
37. He has argued that signature of Tehl Ram Tuteja on
the Will dated 29.1.1988 are not specifically
disputed by the objectors and also stand proved
from the testimony of Kamal Kant Khandelwal PW-6,
the handwriting expert.
38. Mr. D.R. Singh, learned counsel for the
objectors/respondents has refuted the submissions
of the learned counsel for the petitioner while
referring to various depositions made by the
witnesses for the respondent at different places he
has emphasize that evidence adduced on record by
the petitioner is unworthy of reliance being full of
contradictions and therefore, the petitioner who
required to prove his own case that Will dated
29.1.1988 is a valid Will, has failed in his endeavor
and the Will according to him, under the
circumstances, cannot be considered as a valid and
legal Will.
39. It is also argued by the counsel for the respondents
that Will dated 29.1.1988 is forged Will and does
not bear the signatures of Tehl Ram Tuteja, it is not
a registered Will and was prepared by the petitioner
after the death of Tehl Ram and forged his
signatures on the same. It is emphasized that the
statement and report of Shri Kamal Kant
Khandelwal PW-6A is not worthy of reliance as he
has given his opinion based on the photocopies
without seeing the original documents.
40. True, that there are two objections filed by the
objectors within a short span, refuting the legality
and validity of the Will dated 29.1.1988, which are
not signed by objectors Devender Kumar and
Deepak Kumar. However, objectors have also filed
a probate case claiming themselves to be legatees
of Tehl Ram Tuteja by virtue of Will dated
30.5.1985. The said petition is signed by all the
three objectors and duly verified by them. This
petition was filed on 29.3.1989 i.e. before the
objection petitions were filed. Therefore, under the
circumstances, when both the probate petitions
have been consolidated and are being decided by
this common judgment, it would not be appropriate
to say that there are no proper objections before
this court for consideration. In any case, I need not
go into technicalities to deciding if the objection
petitions are sustainable in view of the fact that
probate petition filed by the objectors is also under
consideration along with the probate petition of the
petitioner.
41. Respondents/objectors have disputed the
signatures of Tehl Ram on the impugned Will dated
29.1.1988. Surender Kumar PW-1, the petitioner
has identified signature of Tehl Ram at Point A on
the Will Ex.PW-1/1 and testified that the said Will
was signed by Tehl Ram.
42. Ex. P-1 is an account opening form dated 1.7.1987
which was signed by Smt. Sudesh Kumari as well as
deceased Tehl Ram, when a joint account was
opened by them in Punjab National Bank after the
execution of the Will dated 30.5.1985. PW-6/A
Kamal Kant Khandelwal examined the disputed
signature of Tehl Ram on the Will dated 29.1.1988
and also examined whether the Testator Tehl Ram
had put his signatures on the Will after or before
the typed matter. He took photographs Ex.PW-6/1
and PW-6/2 for examination and the relevant part of
the Will dated 29.1.1988 Ex./PW-6/1-A and
submitted his report Ex.PW-6/5. After comparison
of the disputed signatures with the admitted
signatures appearing at Ex.P-1, he concluded:-
―In this case I examined the
above mentioned Will with the
help of magnifying lenses and
with the help of other measuring
devices. After careful and
minute examination of the
above mentioned Will, my
opinion is that the Will is typed
at first and the Testator Tehl
Ram signed after typed matter
and after examination I found
that the curve of ―R‖ is written
after on the typed matter.‖
43. The only cross examination of Kamal Kant
Khandelwal is to the fact that he had taken the
photographs from the photocopy of the Will and not
from the original Will, which he admitted. He was
categorical when he said that the material was
typed first and thereafter the Testator has put his
signatures. There is no cross examination of the
witness that the document was not signed by Tehl
Ram Tuteja or that his signatures are forged on
Ex.PW-1/1. Objectors have not examined any other
handwriting expert to controvert the statement of
Mr. Kamal Kant Khandelwal.
44. Signatures of Tehl Ram Tuteja appearing on the Will
dated 30.5.1985 are stated to have been appended
by him in the presence of witnesses. Respondents
have claimed this Will to be the last and genuine
Will executed by Tehl Ram during his lifetime. This
court in exercise of its power under Section 73 of
the Evidence Act has every right to compare the
admitted signatures of Tehl Ram appearing on the
Will dated 30.5.1985 appended at different places
on each page of the Will Ex.R-1 and also signatures
appearing on the back of first page before the
Registrar with the Will dated 29.01.1988. On
comparison, it is obvious that both the documents
are signed by Tehl Ram Tuteja. It is also clear that
Will dated 29.1.1988 Ex.PW-1/1 was first typed and
thereafter Tehl Ram appended his signatures on the
same. It is noted here that even in the will dated
30.5.85 Tehl Ram appended his signatures in such
a manner that signature in Urdu are above word
―Testator‖.
45. Tehl Ram opened a bank account in July, 1987 in
the joint name of Sudesh Kumari and himself. This
indicates that Tehl Ram was under the influence of
Sudesh Kumari at the time when Will dated
30.5.1985 was executed.
46. Account opening form Ex.P-1 dated 1.7.1987 was
summoned in evidence and the same was produced
and filed on record by Mr. Nem Narain, Attorney of
the Bank on 20.3.1997. Since on that day Smt.
Sudesh Kumari was present, her statement was
recorded by the Court for admission/denial of the
said form. Smt. Sudesh Kumari identified her
signatures at Point X-1 to X-5 on the form, whereas
she identified the signatures of Tehl Ram at Point Y-
1 to Y-4. On perusal of the signatures of Tehl Ram
appearing at four places in the form are all in
variation to each other. None of these signatures
can be said to have common features of writing.
These signatures differ from the signatures of Tehl
Ram appearing on the Will Ex.PW-1/1 and Ex.R-1.
Whereas signatures appearing on both the Wills
have similarities of writing and flow, which indicate
that the signatory of both the documents was the
same person. Be that as it may, it is not disputed
that an account was opened in the joint name of
Tehl Ram Tuteja and Smt. Sudesh Kumari on
1.7.1987.
47. As pointed out above, since Tehl Ram had improved
in his health, he was physically fit and mentally
alert on 13.7.1987 to go to the bank with his
daughter and opened joint account in his name and
in the name of Sudesh Kumari. Learned counsel for
the respondents has submitted that if Will dated
30.5.1985 was not executed by Tehl Ram in favour
of Sudesh Kumari and Suredner Kumar was brought
up and looked after by Tehl Ram as his son, then
Tehl Ram had no reason to open an account in the
joint name of himself and Smt. Sudesh Kumari.
48. An account opened after two years of the execution
of the first Will Ex.R-1 in the joint name of Tehl Ram
Tuteja and Sudesh Kumari in no manner can be
considered as a suspicion of the execution of the
Will dated 29.1.1988. It is relevant to state that in
the will Ex.PW-1/1 Tehl Ram has narrated that he
had kept his cash in three fixed deposits accounts
and also that he had a single bank account with
Punjab National Bank, Vijay Nagar in his name
jointly with his daughter Sudesh Kumari. It is of
significance that Tehl Ram did not give any share in
his moveable assets to Surender Kumar. His
moveable assets have been bequeathed by him in
equal share to his three daughters. This Will also
indicates that the gold ornaments and bank
documents were in the custody of Sudesh Kumari.
49. In the Will dated 29.1.1988 Tehl Ram has referred
to his previous Will executed by him in favour of his
daughter Sudesh Kumari, which he cancelled and
revoked by way of this impugned dated 29.1.1988.
As discussed above, petitioner has not disputed the
execution of Will of 1985 by Tehl Ram in favour of
Smt. Sudesh Kumari. Tehl Ram had every right to
revoke and cancel his previous Will executed in
favour of his daughter in 1985.
50. Surender Kumar Arora (PW-10) attesting witness to
the Will has testified in his Affidavit that Will dated
29.1.1988 is attested by him which is the last Will of
the deceased. On 29.1.1988 he had gone to see
Tehl Ram who was sitting alone at that time he took
out a typed sheet of paper and explained to him
(the witness) that it was his last Will and testament
and he acknowledged that it was drafted by his
counsel on his instructions. In the meantime, PW-9
arrived who was also known to him. He has further
testified that Tehl Ram Tuteja had explained the
contents of the Will and acknowledged the same as
his last Will and testament and also told him that
by this Will he had bequeathed one half of house
No.A-294, Derawal Nagar to his son Surender
Kumar. Tehl Ram signed the Will in his presence
and in the presence of Jagdish Chander and
thereafter Jagdish Chander and he signed the Will
at the same time in the presence of Executor. He
identified his signatures as an attesting witness and
also that of Jagdish Chander, another attesting
witness and of Tehl Ram, the Executor on the Will
Ex.PW-1/1.
51. In his cross examination, he has denied the
suggestion that the paper was folded when it was
taken out by Lalaji and Lalaji had already signed the
same before he signed it. He also denied the
suggestion that Lalaji had signed blank paper and
the contents of the Will were typed later. He also
denied the suggestion that Will was signed after the
death of Shri Tehl Ram Tuteja.
52. As regards the signatures appearing on Ex.PW-1/1
of Tehl Ram Tuteja and of the attesting witnesses in
different pen and ink, to a question put to him,
Surender Kumar Arora has replied that Lalaji had
signed with one pen and he had signed with his
own pen, which he was carrying with him. He had
signed the Will after reading it. This witness stood
the test of cross examination and his testimony
could not be demolished by the objectors in his
cross examination. Hence, I find no reason to
disbelieve him.
53. Affidavit of Jagdish Chander was filed in evidence
but, he could not be produced by the petitioner for
his cross examination. It was not necessary for the
petitioner to also examine Jagdish Chander to
prove the execution of the Will Ex.PW-1/1. One
attesting witness for the purposes of Section 68 of
the Evidence Act is required to be examined and
not both the attesting witnesses.
54. Petitioner therefore has proved in evidence that
both the attesting witnesses and the executor of
the Will had signed the Will in the presence of each
other after the witnesses were explained the
contents of the Will and the acknowledgment made
by the executor that he had bequeathed his share
in the No.A-294 in favour of Surender Kumar whom
he brought up as his son.
55. Learned counsel for the respondents has argued
that Tehl Ram was suffering from bleeding piles and
paralysis and therefore, he was not mentally and
physically fit to execute the Will dated 29.1.1988.
These submissions are devoid of any merits.
Petitioner has examined Dr. V.P. Soota to prove that
Tehl Ram was of sound and disposing mind at the
time of execution of the impugned Will. Dr. V.P.
Soota (PW-7) in his Affidavit disclosed that Tehl
Ram Tuteja was well known to his family as he lived
near his clinic in Katra Nanak Chand, Subzi Mandi
for a very long time, and was their family doctor.
He also testified that to his knowledge Tehl Ram
never went to any other doctor for treatment. He
admitted that deceased was suffering from
bleeding piles but, has stated that he was
physically fit and normal till his death and had been
reading and writing till his death. He was mobile
and used to attend social functions and was never
bed-ridden.
56. In his cross examination, he deposed that except
bleeding piles, Tehl Ram was not suffering from any
other kind of chronic disease and he used to come
to him accompanied by his son Surender Kumar for
treatment of his bleeding piles. He never saw him
taking help of stick for walking. Deceased had
visited his clinic about 1/1½ months before his
death. He denied the suggestion that Tehl Ram had
stopped visiting his clinic as he had suffered
paralytic attack and was unable to walk and was
under the treatment of Dr. S.K.Gupta and Dr.
Rajeshwari Gupta.
57. Respondent Sudesh Kumari has not been able to
demolish the case of the petitioner that Tehl Ram
was physically fit and mentally alert when he
executed the Will dated 29.1.1988. There is no
evidence on record to indicate that Tehl Ram was
suffering from paralysis at the time of execution of
the impugned Will and could not have signed the
same. In the absence of any evidence to the
contrary, it can be safely concluded that Tehl Ram
Tuteja was of sound and disposing mind, mentally
alert and physically fit at the time of execution of
the Will Ex.PW-1/1.
58. Petitioner has placed on record two photographs
Ex.PW-5/1 and PW-5/2 to emphasize that Tehl Ram
was physically fit in the year 1986 when he
attended the engagement ceremony of Raju son of
his daughter Raj Kumari at Jwala Nagar. Gobind Lal
(PW-3) did admit in his cross examination that Lala
Tehl Ram had attended the function (engagement
ceremony) of Raju at Jawala Nagar, Meerut.
59. A person suffering from bleeding piles is not
mentally impaired to lose his senses of discretion.
This type of disease in no manner affects the
mental capabilities of any person. As regards
paralysis, I have already stated above the
respondents have failed to prove that Tehl Ram
Tuteja was paralytic at the time of execution of the
Will on 29.1.1988.
60. According to his own statement Tehl Ram had
suffered a paralytic attack on his right side of body,
face, arm and leg in June, 1985 i.e. soon after the
execution of the Will dated 30.5.1985 in favour of
his wife. He did admit that Tehl Ram had improved
in his health and had started moving with the help
of a stick. Though, he tried to state that in the year
1986 Lala Tehl Ram was not in a position to sit
crossed legs on the floor, but the photographs
depict otherwise.
61. Learned counsel for the respondents has submitted
that mannerism in which the signatures were
appended by Tehl Ram Tuteja on Ex.P-1 on
1.7.1987 indicate that he had suffered a paralytic
attack.
62. Even if, the submission of the learned counsel for
the respondents for the sake of argument is
accepted that Tehl Ram had suffered paralytic
attack, as is evident to from Ex.P-1 as admitted by
Gobind Lal he had improved in his health over the
period. The impugned Will was executed after
about 1½ years of Tehl Ram signing the account
opening form Ex.P-1. As already discussed above,
his signatures appearing on the Will Ex.R-1 and the
impugned Will dated 29.1.1988 Ex.PW-1/1 have
strong similarities which demolishes the case of the
respondents that Ex.PW-1/1 is a forged document.
63. There is no other evidence on record to indicate
that because of paralysis Tehl Ram had lost his
mental balance, sense of discretion and
comprehension and was not mentally fit to
understand as to what was being signed by him.
64. If the submissions of learned counsel for the
respondents is accepted that Tehl Ram had
suffered paralytic attach on his right side in June,
1985, that explains dissimilarities appearing on the
account opening form Ex.P-1 of the Punjab National
Bank at different places. As discussed above,
Surender Kumar Arora, attesting witness of the Will
has categorically stated that Tehl Ram Tuteja was
in full senses, with normal physical condition and he
had executed a Will voluntarily without any
pressure or coercion or influence of any kind.
65. It is pertinent that objectors in the objection petition
did not raise any objection to the validity of the Will
on the ground that Tehl Ram Tuteja was not in
sound and disposing mind at the time of execution
of the Will dated 29.1.1988. This objection has
been raised in the cross probate case filed by Smt.
Sudesh Kumari.
66. Another submission of the leaned counsel for the
respondents is that Tehl Ram did not open account
in the joint name with Surender Kumar and himself
is a factor which explains that he had no faith in the
petitioner. It is proved on record that when the
account was opened in July, 1987, Tehl Ram was
under the influence of Smt. Sudesh Kumari
because, he had been travelling with her to
different religious places, her husband being in the
railways. There is no evidence on record to indicate
that Tehl Ram ever disclosed or conveyed
displeasure or lack of faith in Surender kumar.
67. Smt. Sudesh Kumari, beneficiary of the Will dated
30.5.1985 has not stepped in the witness box to
explain the circumstances in which the said Will
was executed and why Tehl Ram ousted all his legal
heirs i.e. Sita Rani and Raj Kumari and bequeathed
the house in question in her and her sons favour,
even Devender Kumar son of Sudesh Kumari has
not stepped in the witness box to support the case
of his mother. It was Sudesh Kumari who had gone
to the Sub Registrar Office with Tehl Ram Tuteja for
execution and registration of the Will dated
30.5.1985. This Will was alleged to have been
handed over to Gobind Lal, husband of Sudesh
Kumari when he visited Delhi, but the date of
handing over the Will has not been disclosed by
Gobind Lal in his testimony.
68. It is highlighted by the learned counsel for the
respondents that Will dated 29.1.1988 is an
unregistered will. This fact also clearly indicate that
the said will is a forged document. However, I find
no force in the submission of the learned counsel
for the respondents for the simple reason that a Will
is not required to be registered. Though,
registration of a Will may be a strong factor for
proving its genuineness, then a registered Will can
also be shrouded with suspicion if it fails the test
laid down in Sections 59 and 63 of the Act.
69. In 'Smt. Indu Bala Bose & Ors. Vs. Manindra
Chandra Bose & Ors., AIR 1982 SC 133, what
can be suspicious circumstances surrounding the
Will have been laid down for consideration which
are as follows:-
―7. This Court has held that the mode
of proving a will does not ordinarily
differ from that of proving any other
document except to the special
requirement of attestation prescribed
in the case of a will by Section 63 of
the Succession Act. The onus of
proving the will is on the propounder
and in the absence of suspicious
circumstances surrounding the
execution of the will, proof of
testamentary capacity and the
signature of the testator as required
by law is sufficient to discharge the
onus. Where however there are
suspicious circumstances, the onus is
on the propounder to explain them to
the satisfaction of the court before the
court accepts the will as genuine.
Even where circumstances give rise to
doubts, it is for the propounder to
satisfy the conscience of the court.
The suspicious circumstances may be
as to the genuineness of the
signatures of the testator, the
condition of the testator's mind, the
disposition made in the will being
unnatural, improbable or unfair in the
light of relevant circumstances, or
there might be other indications in the
will to show that the testator's mind
was not free. In such a case 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. If the propounder
himself takes a prominent part in the
execution of the will which confers a
substantial benefit on him, that is also
a circumstance to be taken into
account, and the propounder is
required to remove the doubts by
clear and satisfactory evidence. If the
propounder succeeds in removing the
suspicious circumstances the court
would grant probate, even if the will
might be unnatural and might cut off
wholly or in part near relations.‖
70. In 'Niranjan Umeshchandra Joshi vs. Mridula
Jyoti Rao & Ors., I (2007) CLT 159 (SC) what
can be the suspicious circumstances for
consideration of a Will in question have been dealt
with. Para 33 of this judgment reads as follows:-
―33. There are several circumstances
which would have been held to be
described by this Court as suspicious
circumstances:
(i) When a doubt is created in regard
to the condition of mind of the
testator despite his signature on the
Will;
(ii) When the disposition appears to
be unnatural or wholly unfair in the
light of the relevant circumstances;
(iii) The propounder himself takes
prominent part in the execution of
Will which confers on him substantial
benefit.‖
71. Suspicious circumstances, which can refute the
execution of a Will depends on the facts of each
case and they cannot be universally followed in
every case where the Will is under challenge.
72. In my view, no suspicious circumstances shrouding
the Will have been proved on record. Therefore,
genuineness of the Will, under the circumstances,
becomes undoubtful.
73. To sum up, the facts and circumstances which
prove the genuineness of the Will dated 29.1.1988
Ex.PW-1/1 are:-
(i) The Will was executed by Lala Tehl Ram
Tuteja in his sound disposing mind, voluntarily in
the presence of two attesting witnesses Jagdish
Chander and Surender Kumar Arora. Surender
Kumar Arora has identified his signatures as well of
Jagdish Chander and of the Testator on the Will
Ex.PW-1/1.
(2) The Will was got drafted by Lala Tehl Ram
Tuteja from an Advocate and at the time when he
executed this Will, besides him and the attesting
witnesses, no other person was present.
(3) The Will was read over and explained to the
witnesses and the Testator as well as attesting
witnesses signed the Will in the presence of each
other.
(4) The testator vide impugned Will Ex.PW-1/1
cancelled and revoked his previous Will made in
favour of his daughter Sudesh Kumari in the
following manner:-
―I, Tehl Ram Tuteja son of Shri
Chotu Ram Tuteja resident of
House No.A-294 Derawal Nagar,
Delhi declare this to be my last
Will which I make this 29th day of
January, 1988 cancelling and
revoking my previous will made
in favour of my daughter Smt
Sudesh Kumari wife of Shri
Gobind Lal Mendiratta and her
sons and all other previous Wills,
if any, made heretofore‖.
The Will was cancelled and revoked by Tehl
Ram Tuteja by his second and last Will dated
29.1.1988. Therefore, Will dated 30.05.1985 Ex.R-1
lost its existence after the execution of the Will
dated 29.1.1988.
(5) Surender Kumar since his childhood was
brought up, educated and married by Tehl Ram
Tuteja as his son and he was living with the
deceased till his death, looked after him, served
him and also performed his and his wife's last rites
as a son.
(6) Will Ex.PW-1/1 is a balanced Will in which
Testator has bequeathed his half share in Plot No.A-
294, Derawal Nagar, Azadpur, Delhi, admeasuring
268.22 sq. yds. in favour of Suredner Kumar which
he owned jointly with him and he bequeathed three
fixed deposits, amounting to Rs.30,000/- and in
saving bank account in his name jointly with Sudesh
Kumari and gold ornaments which were in the
custody of Sudesh Kumari to all his three daughters
in equal share. The moveable assets were to be
distributed after meeting his funeral expenses.
74. Whereas, Will dated 30.5.1985 is shrouded by
following suspicious circumstances:-
(i) The propounder of the Will Smt. Sudesh
Kumari actively participated in the
execution of the Will, which is not signed by
two independent witnesses. Srinivas was
known to Gobind Lal, husband of Smt.
Sudesh Kumari as they were working in the
same department and Srinivas had met
Tehl Ram only 4/5 times before execution
of the Will, but did not meet him thereafter.
(ii) Ouster of Sita Rani and Raj Kumari from
inheritance of the property of the deceased
goes unexplained in the Will or even in
evidence. Ouster of natural legal heirs i.e.
his two other daughters completely from
inheritance besides the Petitioner, who was
looking after the deceased and served him
as his son.
(iii) In the Will Tehl Ram is silent about his
moveable assets, bank account, etc.
(iv) The Will is silent as to why entire
immoveable property was bequeathed by
Tehl Ram in favour of his one daughter and
her two sons only.
(v) Neither Sudesh Kumari nor Gobind Lal or
her other family members attended the
funeral ceremony and other customary rites
on the death of Tehl Ram.
75. Respondent Sudesh Kumari has made every
endeavour to prove that her son Devender Kumar
used to live with Tehl Ram in his house. However,
neither Sudesh Kumari nor Devender Kumar have
stepped in the witness box to prove that Devender
Kumar had been living with Tehl Ram in his house.
Even if, it is assumed that Devender Kumar was
residing with Tehl Ram as it has come in evidence
that he was residing with Tehl Ram Tuteja for quite
some time before his death, there is no evidence to
indicate that he was looking after and serving him
during his lifetime.
76. Under the proven circumstances, it can be safely
concluded that Tehl Ram had revoked his earlier
Will dated 30.05.1985 and had executed a legal and
valid Will dated 29.1.1988 Ex.PW-1/1. Therefore,
claim of Surender Kumar in respect of House No.A-
294, admeasuring 268.22 sq. yds. Derawal Nagar,
Azadpur, Delhi by virtue of this Will is proved. Thus,
it is concluded that the Will dated 30.05.1985 Ex.R-
1 though bears the signatures of Tehl Ram, is
shrouded by strong suspicious circumstances which
invalidate the Will Ex.R-1. These issues have been
proved in favour of the Petitioner and against the
respondent.
Issue No. 3 : (Relief)
77. In view of my discussion on the issues as above, it
is concluded that Tehl Ram Tuteja executed a valid
and legally enforceable Will dated 29.1.1988 Ex.PW-
1/1. Hence, Probate Petition No.5/1989 filed by
petitioner Surender Kumar is allowed and the
probate as prayed for in respect of Will dated
29.01.1988 Ex.PW-1/1 is granted. Probate petition
filed by Smt. Sudesh Kumari being Probate Petition
No.44/1990 is hereby dismissed.
78. Under the circumstances, parties are left to bear
their own costs.
ARUNA SURESH
(JUDGE)
JANUARY 18, 2010
vk
