Delhi High Court
Desh Raj Gupta vs State And Others on 14 July, 2010
Author: A.K.Sikri
REPORTABLE
* IN THE HIGH COURT OF DELHI AT NEW DELHI
FAO (OS) No.237 OF 2009 & CM No.8309/2009
Reserved On: 29th April, 2010.
% Date of Decision: 14th July, 2010.
DESH RAJ GUPTA . . . Appellant
through : Mr. Anoop G. Chaudhary, Sr.
Advocate and Mrs. June
Chaudhary, Sr. Advocate with
Mr. Manish Vashisht, Mr.
Sameer Vashisht and Ms.
Aashita Yadav, Advocates.
VERSUS
STATE AND OTHERS . . .Respondents
through: Mr. A.S. Chandhiok, Senior
Advocate with Mr. Vikas
Dhawan, Mr. Abhimanyu and
Ms. Anita Lal, Advocates for
the Respondent No.2.
Mr. Manish Kumar, Advocate
for the respondent Nos. 5 &
6.
CORAM :-
HON'BLE MR. JUSTICE A.K. SIKRI
HON'BLE MR. JUSTICE AJIT BHARIHOKE
1. Whether Reporters of Local newspapers may be allowed
to see the Judgment?
2. To be referred to the Reporter or not?
3. Whether the Judgment should be reported in the Digest?
A.K. SIKRI, J.
1. The genuineness and validity of purported Will dated 28.02.1985
got registered on 29.05.1985 of Lala Hansraj Gupta, Ex. Mayor of
Delhi is the subject matter of the present appeal. After the death
of Lala Hansraj Gupta (hereinafter referred to as „the testator‟)
on 03.07.1985, the appellant (one of his sons) filed the probate
case No.62/1985 in October, 1985, propounding that Will. Some
other legal heirs had challenged the veracity thereof. The
learned Single Judge has returned his findings holding that the
purported Will, in his opinion, is not a genuine Will which has
resulted in the dismissal of the probate petition. Assailing that
judgment, present appeal is preferred by the appellant.
2. The testator had a family consisting of wife, four married sons
and two married daughters. Names of his children and few
grand children are mentioned in the opening part of the Will.
Family chart is as under:
"Family Chart
Lala Hans Raj Gupta (died on 3rd July, 1985)
Des Raj Gupta Shiv Raj Gupta Rajendra Kumar Gupta Mahendra Kr. Gupta Angira Gupta
(Son)S1 (Son)s2 (Son)S3 (Son)S4 (Wife)
Ravi Raj Uday Raj Jayant Sanjay Arti Avanti Geeta Kirti
(Grandson) (Grandson) (Grandson) (Grand-daughters)
Daughters of Lala Hans Raj
Pratibha Shashi
(Gopal, Sarita, Amita, Nalini) (Karuna & Vikram)
Great Granddaughters (Amita, Sarita, Arti)"
3. The testator has given Rs.15,000/- each of his grandsons and
daughters and great grand children (children of his sons) and
Rs.5,000/- each to grand children of his daughters as a token
remembrance. Main bequeath, insofar as interests are concerned,
relates to his interest and share in M/s. H. G. Gupta and Sons as well
as M/s. Mridul Enterprises Partnership, two partnership firms and his
shares and other interest in M/s. Hansraj Gupta and Company Private
Limited. He also had a share in two properties, viz., No.20,
Barakhamba Road, New Delhi and residential property, i.e., 3, Amrita
Shergil Marg, New Delhi. As per this Will, his interest and shares in
these properties devolved are as under:
"4. My interest and share in H.G. Gupta & Sons and M/s
Mridul Enterprises Partnership and their respective
goodwill be transferred to my grandsons Ravi Raj
Gupta and Uday Gupta in the proportion of 3 to 1
and it is my fervent desire that this partnership may
continue as a link between the family far as long as
possible.
8. All my shares and other interests that I have in M/s.
Hans Raj Gupta & Co. Pvt. Ltd. with that after my
death the same may devolve on my son Shri Desh
Raj Gupta and grandson Shri Ravi Raj Gupta
equally. I wish that the said company be managed
and controlled by my son Shri Ravi Raj Gupta as is
being done today and none of my other legal heirs
should raise any objection thereto.
10. That my share in property No.20, Barakhamba
Road, New Delhi and 3, Amrita Shergil Marg, New
Delhi shall after my death devolve upon my 4 sons
in equal shares."
One trust, viz., Hansraj Gupta Charity Trust was also created in
respect of which Will provides as under:
"9. After clearing all the aforesaid liabilities the
executors shall make over all my movable assets or
shares to Hans Raj Gupta Charity Trust of which I
am also a trustee.
11. That the value of my interest in all other immovable
properties shall devolve upon the aforesaid Hans
Raj Gupta Charity Trust.
12. Whatever other immovable property or share of
immovable properties owned by me shall be made
over to Hans Raj Gupta Charity Trust together with
an obligation thereon to use them in pursuance of
objective of that trust."
The testator had some unascertained contingent liabilities in the
form of personal guarantees given by him for some limited
company. He made provision in respect of these liabilities as
well as by declaring as to who would own such liabilities. The
gist of the Will, thus, is as under:
Rs. 15,000 to each grandson, granddaughters, great-
grandson & great granddaughters;
Rs.5,000 to children of daughters;
The firm named H.G. Gupta & M/s. Mridul Enterprises
to Raviraj & Uday (sons of Des Raj Gupta) in
proportion of 3:1;
Central Distillery and Breweries to Shivraj Gupta;
Rampur Engineering Co. Ltd. to Rajendra Gupta;
Property No.20 at Barakhamba Road and 3, Amrita
Shergil Marg, New Delhi respectively to four sons (S1,
S2, S3, S4) equally.
4. The Will is stated to be drafted by one Mr. S.K. Tiwari, Advocate.
There are three witnesses to this Will, viz., Ms. Angira Gupta
(wife of the testator), Mr. M.P. Tiwari and Mr. S.K. Tewari. Mr.
S.K. Tewari signed the Will in dual capacity i.e., both as a witness
and as a drafting counsel. Three sons of the testator, viz., Desraj
Gupta (the appellant), Shiv Raj Gupta and Rajendra Kumar Gupta
(Objectors) were appointed as the executors.
Re: The Petition:
5. In the petition filed by the appellant, it was stated by the
appellant that the Will was executed on or around 28.05.1985
and registered on 29.05.1985. It was described as the last will
and testament of the departed testator. The petitioner also
alleged that since other two executors had renounced their
positions as executors by taking stand in legal proceedings in a
case pending before sub-judge, Delhi, to the effect that the said
Will was not a genuine Will, the petitioner was the only executor
left, who could file the petition. The petition at its bottom bears
endorsements of 3 witnesses namely Smt. Angira Gupta, Sh.
M.P.Tiwari and Sh.S.K.Tiwari, Advocate. Smt. Angira Gupta, wife
of the deceased, appended an endorsement that she was
present at the time of execution of the "Will" dated 28th May,
1985 by late Lala Hansraj Gupta and saw him reading and
affixing signatures to the "Will" and she signed the "Will" as an
attesting witness in presence of the testator and in presence of
other 2 witnesses. The endorsement by other 2 witnesses was
also to the same effect. However, the endorsement is signed by
Smt. Angira Gupta on 8th October, 1985 while by Sh.M.P.Tiwari
and Sh.S.K.Tiwari signed it on 30th September, 1985.
Re: The Objections:
6. After receipt of the notice of the petition, two brothers, viz., Shiv
Raj Gupta and Rajendra Kumar Gupta as well as two sisters, viz.,
Shashi Jai Kishan and Pratibha Khandelwal (all of whom were
arrayed as respondent Nos. 3, 4, 6 and 7 respectively) filed their
objections. The objections were primarily of two types; (i) the
testator was seriously ill on the alleged date of the execution of
the Will and was not in a sound disposing mind and therefore this
Will was invalid and (ii) There was no valid and proper execution
and registration of the Will. In fact, the objectors went to the
extent of denying the execution of the Will as is clear from the
following:
"i) In the reply filed by Mr. Shivraj Gupta, in paragraph 3 of
the Preliminary Objections, it has been stated as under:-
"3. ...In fact the deceased never read, understood or
was told or executed the said Will and the petition
is liable for dismissal.
In para-wise reply, it has been stated as under:-
"2. ...Paragraph 5 of the Petition is substantially
correct. However, it is denied that any Will was
executed and as such the question of answering
respondent having been named as an Executor or
his having renounced his position in the Will does
not arise..."
7. ...Para 7 of the Will is wrong and denied. It is
stated that Lala Hans Raj Gupta never executed
any Will at all..."
7. The widow of the testator, viz., Ms. Angira Gupta was impleaded
as respondent No.1, who had also verified the petition. She filed
her reply supporting the petition by taking the position that it
was a genuine Will. Fourth brother, Mahinder Kumar Gupta, who
was impleaded as the respondent No.5 also went along with the
appellant by supporting the petition.
Re: The Issues:
8. On the basis of pleadings, following three issues were framed:
1) Whether the Will dated 28th May, 1985 was duly
executed and attested and is the last Will and testament of
the deceased? OPP.
2) Whether the two executors of late Shri H.R. Gupta have
renounced their position as such? If so, to what effect?
OPP.
3) Relief.
Re: The Evidence:
9. In order to prove the Will, the appellant examined only three
witnesses. The star witness of the appellant was Mr. S.K. Tiwari,
Advocate (PW-1), who is stated to have drafted the Will. The
second witness was D.N. Gupta, who was Sub-Registrar at the
time when Will was executed. We may point out at this stage
itself that because of illness of the testator, he could not go to
the office of the Sub-Registrar for the registration of the Will.
The case set up by the appellant was that request was made to
the Sub-Registrar for registering the Will by visiting the residence
of the testator. D.N. Gupta, Sub-Registrar had deputed one
Satish Kwatra, reader in his office, for this purpose, who had
allegedly completed the formalities of the registration. Satish
Kwatra was, however, not produced as a witness and instead
D.N. Gupta appeared as PW-2, who stated in his examination-in-
chief, in the form of a sworn affidavit, that his reader was
directed by him to visit testator‟s residence and confirmed that
he had executed the Will. Third witness produced by the
appellant was Dr. S.M. Singh, who had attended the testator
when he was admitted to AIIMS for his treatment. We may also
point out at this stage itself that the testator was admitted to
AIIMS for prostrate operation on 13.04.1985. At this time, he
was 82 years of age and was suffering from various elements
including diabetes. Prostrate operation was conducted on
17.04.1985. The testator was discharged on 24.05.1985 "on his
own request". From 24.05.1985 onwards, he was at home, but
still suffering from certain ailments. He was attended to by one
Dr. Madan Lal at his residence. The Will in question is alleged to
have been executed on 28.05.1985 and registered on
29.05.1985. Dr. Singh (PW-3) has thus deposed about his
condition when he was in AIIMS. Dr. Madan Lal was not produced
as witness by the appellant. On the contrary, Dr. Madan Lal was
cited as a witness by the objector. However, he also did not
produce Dr. Madan Lal as a witness. Much controversy is raised
as to who was supposed to produce this witness and
consequence of non-production, which shall be dealt at a later
stage.
10. We may also point out at this stage itself that Ms. Angira Gupta
though named as witness of the appellant, was/could not be
produced, as she had passed away in the meantime. A
passionate plea was made by the learned counsel for the
appellant that verification of Ms. Angira Gupta on the probate
petition as well as her reply affirming the execution of the Will be
treated as relevant statement under Section 32 of the Indian
Evidence Act.
11. On behalf of the objectors, evidence was led only by Shiv Raj
Gupta. He appeared himself as RW-1. Other witness produced
by him was one Dr. Rakesh Gupta as RW-2. Though Dr. Rakesh
Gupta never examined the testator, his deposition is in the form
of expert opinion on the medical condition of the testator based
on the medical record of the testator produced by the appellant.
Re: Judgment of the Learned Single Judge:
12. The learned Single Judge decided the issue No.1 against the
appellant thereby accepting the objections and holding the that
Will in question was not the genuine Will of the testator. Learned
Single Judge has disbelieved the testimony of PW-1. His finding
in this behalf are summarized as under:
(i) As per PW-1, the testator had called him sometime in
the second week of May 1985 through Mrs. Angira
Gupta (when the testator was in AIIMS), as he wanted
to see him to get his Will drafted. When he visited
AIIMS the next day, he was instructed by the testator
to draft out a Will. Two-three days thereafter, PW-1
took the draft Will to the testator. The testator did not
approve that Will and suggested certain alteration and
modifications. After carrying out those alteration and
modifications, he again took the Will to the testator,
who asked him to leave the same in the custody of his
wife, Angira Devi. He also said him that he would get
in touch with PW-1 when he would be in a position to
get the same registered. After the testator was shifted
from hospital to his residence, PW-1 again received a
call from the wife of testator. The testator told him to
go to adjoining TV Room where the Will was lying in a
drawer. PW-1 went to the TV Room and brought the
Will, which he found to be another Will which was
already drafted by the testator. The same was lying in
the drawer along with a typed copy.
According to the learned Single Judge, this part of
testimony puts a question mark on his deposition that
the testator had asked him to draft a Will inasmuch as
if the testator had already drafted the Will which was
lying in his room and he wanted to finalize that Will
only, there was no question of requesting PW-1 to
draft another Will.
(ii) According to PW-1, the testator wanted his opinion on
the Will, which the testator had already prepared. At
the request of the testator, PW-1 read out the Will.
The testator suggested certain alterations, which he
carried out and took the Will again to the testator.
PW-1 was, however, asked to draft another Will by
carrying out some alterations as suggested by the
testator. He got another Will retyped after taking care
of those suggestions and went with that draft Will to
the testator. The testator approved it and signed the
same. Mr. M.P. Tiwari, father of PW-1 had also gone
with him at the request of the testator. He also signed
as attesting witness. As per this witness, final draft of
the Will was approved by the testator either on 24th,
25th or 26th May, 1985 and the Will was to be
registered on 29.05.1985. However, when the witness
was asked about the date on which it was actually
signed, his answer was that thought the date
mentioned in the Will of its execution was 28.05.1985,
but the Will was not signed by the testator on that
date. He had kept the Will with himself and signed the
same on 28.05.1985 in the morning whereafter it was
gone for registration. The date on which the testator
or witnesses signed the Will was thus not clear (even
the petition filed by the appellant is not categorical
about it and states that Will was signed on or around
28.05.1985).
(iii) PW-1 was not a reliable witness as he had been
associated with the appellant for long. According to the
learned Single Judge, it has come on record that PW-1
had worked as Junior of L.R. Gupta from 1965 to 1970-
71. He also admitted that he has worked as apprentice
with Rampur Engineering Company Ltd. to which the
testator was the Chairman and the appellant was the
Technical Director/Managing Director. He was an
Advocate/Legal Advisor as well. Even his father was
working with Lala Hansraj Gupta since 1940-42. PW-1
who is the only attesting witness examined to prove the
"Will", in his attestation of the Probate Petition at the foot
had verified that he was present at the time of the
execution of the "Will" dated 28th May, 1985. He was
one of the witnesses of the "Will" dated 28th May,
1985. However, when he appeared in the court he stated
that the „Will‟ was not executed on 28th May, 1985 but
was actually executed on 29th May, 1985. Further, he
put attestation to the Probate Petition even before the
petitioner himself had signed the Petition. The petitioner
signed and verified the Petition on 8th October, 1985,
whereas PW-1 and his father Sh.M.P.Tiwari attested the
Petition on 30th September, 1985. Not much could have
been inferred from this, but the very fact that
Sh.S.K.Tiwari, PW-1 attested the Petition as an attesting
witness of the "Will" even before signatures of the
petitioner on the petition were appended, shows that
Sh.S.K.Tiwari was out to oblige the petitioner and had
signed the petition even before signing of it by the
petitioner, who signed it after 8 days of the signing by
Sh.S.K.Tiwari. This tendency of obliging is reflected in his
evidence when in his examination-in-chief he testified
about physical and mental health of the deceased. His
testimony seems to be of a person who was out to repay
the debts of obligations than the testimony of a truthful
witness.
(iv) The medical record of the testator during the period he
was admitted in AIIMS Hospital as well as thereafter
revealed that the testator was diagnosed as a case of
Benign Hyperplasia Prostate with NIDDM with
Emphysema Chest. He was not even fully recovered
even on 24.05.1985 when he was discharged on his
request and not because of his stability in the condition
or on medical advice. The medical report further shows
that the testator was suffering from uncontrolled
diabetes and recurrent troublesome hyponatremia. His
urinary tract infection was under control and for
hyponatremia, blood plasma and human albumin
transfusion was being done. Even on the date of
discharge, he had been bleeding from the rectum and
two units of blood were transfused into his body. Even
at the time of discharge, it was stated to the hospital
authorities that the appellant was taking the testator
home for three days with doctor‟s permission, i.e., from
24.05.1985 to 27.05.1985 and he would be brought back
to the Hospital on Sunday night, i.e., on 28.05.1985. The
learned Single Judge, thus, concluded that the testator,
health-wise, was in a bad condition. He could not walk
himself; he could not sit of his own and needed help to
make him sit in bed. With such physical condition of the
testator, the learned Single Judge disbelieved the
testimony of PW-1 to the effect that when he went to the
testator in his house on 28.05.1985, the testator was
playing with his grand children. He also disbelieved the
version of PW-1 that the grandchild was in the lap of
testator, which according to the Trial Court, was not
possible keeping in view the serious health condition of
the testator, who was bleeding from piles; whose
hemoglobin was very less; who was having sugar,
urinary tract infection and blood and saline solution were
infused in his body.
(v) The learned Single Judge also commented upon the
testimony of Dr. S.M. Singh (PW-3) by observing that his
statement in the Court is contrary to the hospital record.
In this behalf, the Trial Court has observed that the
hospital record shows that the testator was discharged
from hospital against medical advice. Explanation given
by the PW-3 that it was because of the reason that the
testator was adamant and insisted on being discharged
and he would not eat till discharged was not the reason
mentioned in the discharge slip. On the contrary, it was
the petitioner and his son who got the testator
discharged from the hospital against the medical advice
with an assurance that the testator would be brought
back within three days. It is also commented by the Trial
Court that PW-3 had admitted that the room in which the
testator was admitted was kept reserved for a couple of
days so that when he is brought back, the testator is
admitted in the same room, which shows that when the
testator was discharged from the hospital, there was
every chance that his condition may become precarious
and for this reason room was kept reserved. The view of
the learned Single Judge, therefore, that the testimony of
the PW-3 regarding mental state of the testator that "his
will power was strong and he was mentally alert" was
not acceptable. In this behalf, the learned Single Judge
has also made following remarks:
"Although, this witness remembered about the patient
having stopped taking food 20 years back, when the was
asked whether payment had been made at the time of
discharge, the witness failed to remember this. His
attention was drawn to the medical record where he had
written that the payment would be made by the family on
next date and the responsibility was of his (the witness).
The witness was asked if he had personal relationship with
Lala Hansraj Gupta, the witness denied this and stated that
he knew him only as a patient. He was asked why did he
give this undertaking that he would be responsible for
making payment. The witness stated that a relationship
got created because the patient remained admitted for 41
days in the hospital under his supervision."
(vi) On the basis of medical records, and particularly the fact
that the testator was suffering from hyponatremia, the
learned Single Judge concluded that sodium level of the
testator was less than the normal range. When
confronted with literature contained in Harrison‟s
„Principal of Internal Medicines‟ and Merck‟s „Manual of
Medical‟ describing the consequence of hyponatremia,
PW-3 had concurred with the observations contained in
the aforementioned books. The learned Single Judge
noted that in such cases sodium level goes down. It
results in neurology dysfunction, leading to swelling of
brain cells. The severity of symptoms is related both the
degree of hyponatremia and to the rapidity with which it
develops. As a result, patients may be lethargic,
confused, stuporous, or comatose. If hyponatremia
develops rapidly the signs of hyperexcitability such as
muscular twitches, irritability, and convulsions may
occur. In view of this medical history of the aforesaid
medical literature, the learned Single Judge concluded
that the testator was not in a sound disposing mind to
execute the will. For this purpose, testimony of Dr.
Rakesh Gupta (RW-2) was also relied upon and the
discussion contained in the judgment goes as under:
"Although, this witness remembered about the
patient having stopped taking food 20 years back,
when he was asked whether payment had been
made at the time of discharge, the witness failed to
remember this. His attention was drawn to the
medical record where he had written that the
payment would be made by the family on next date
and the responsibility was of him (the witness). The
witness was asked if he had personal relationship
with Lala Hansraj Gupta, the witness denied this and
stated that he knew him only as a patient. He was
asked why he gave this undertaking that he would be
responsible for making payment. The witness stated
that a relationship got created because the patient
remained admitted for 41 days in the hospital under
his supervision."
(vii) The learned Single Judge also drew adverse inference
against the appellant for not examining Dr. Madan Lal
who according to the learned Single Judge was in a
better position to give general condition of the testator,
as he looked after him from 24.05.1985 onwards and
crucial dates being 28th and 29th May, 1985.
(viii) The learned Single Judge also questioned the
circumstances under which the appellant and his son got
the testator discharged at the crucial juncture in order to
get the said Will prepared. It is also the view of the Trial
Court that the manner in which the entire thing was kept
as guarded secret by the appellant, creates doubt about
the genuineness of the Will. Some of the observations of
the Trial Court in this behalf are as under:
"In the present case, the testator was under
treatment in the hospital. He was a well-known
personality and was being taken care of by the
Doctors in a very well manner in a private room of a
hospital of repute. The Doctor who did not even know
him personally, allowed the discharge of the patient
without payment of the bill merely because he was
sure that the payment from family of such a well-
known personality will not be withheld. There was no
necessity for the patient to move to his home for
executing the „Will‟. The activity of the execution of
the „Will‟ gained momentum soon after discharge of
the patient from the hospital. The evidence of PW-1
shows that the „Will‟ in question was finalized within
3 days of the discharge of the patient. The patient
came home sometime on 24th May and the „Will‟ got
finalized on 28th May."
(ix) The manner in which medical certificate was obtained
from Dr. Madan Lal for bringing the sub-Registrar to
the residence of the testator to get the Will registered
is also treated to be the suspicious circumstance by
the learned Single Judge. It is clear from the following:
"20. PW-1 Mr. S. K. Tiwari, Advocate had prepared
the „Will‟ allegedly at the instance of the deceased.
He was known to entire family. It is not his case that
instructions were given to him not to disclose about
the „Will‟. But when he obtained certificate from Dr.
Madan Lal, who was treating the deceased at homes,
he did not disclose that he was obtaining a certificate
so that the „Will‟ may be registered. Although, he
obtained the certificate from Dr. Madan Lal about
inability of Lala Hansraj Gupta to move out of his
house, but he did not ask the doctor to be a witness
to the „Will‟ and to append there that Lala Hansraj
Gupta was mentally sound. If the services of doctor
had not been readily available, the case would have
been different. When the services of doctor were
readily available and the doctor was all along present
at the home of Lala Hansraj Gupta and doctors were
present at AIIMS hospital, asking a doctor to put it on
record that Lala Hansraj Gupta was in sound mental
health would have been a most appropriate thing
known to an Advocate."
(x) Another doubt nurtured by the learned Single Judge
arose from the circumstance in which second Will was
prepared and registered on 29.05.1985. The learned
Single Judge has commented that the first Will was
finalized in the hospital and it is not known how the
properties were bequeathed. Further, no explanation
came on record as to what prompted the preparing of
second Will when first Will was finalized only a week
ago, which created grave doubt about the mental
soundness of the testator as well as the genuineness
of the Will.
(xi) That the appellant himself took imminent part in the
execution of Will, which confers a substantial benefit
on him, is also taken as a suspicious circumstance
showing doubt on the genuineness of the said Will.
The learned Single Judge noted in the behalf is as
under:
"In the present case, it was the petitioner and his son
who brought Lala Hansraj Gupta to their home. PW-1
was an Advocate working for Lalaji and the petitioner
and had also been looking after some of the legal
work of the petitioner. The petitioner is a major
beneficiary under the „Will‟. The petitioner, who had
assured in the hospital that Lalaji would be re-
admitted in the hospital after 3 days, did not get Lala
Hansraj Gupta re-admitted. The petitioner did not
appear in the witness box. All these factors create
doubts about genuineness of the „Will'."
13. The aforesaid, according to the learned Single Judge, are the
suspicious circumstances, which prove that Will in question
propounded by the appellant is not genuine and valid.
14. The appellants have questioned the approach and wisdom of the
learned Single Judge in dealing with the various aspects of the
case in the impugned judgment in the manner noted above.
There is virtually a challenge to each and every aspect of the
aforesaid findings by the appellant.
Law Generally: Relating to Wills:
15. Before we analyze the evidence produced by the appellant in
support of the Will and the objectors in support of their
objections in an attempt to create suspicion to the genuineness
of the Will, we deem it proper to state in brief the principles of
law, which are required to be kept in mind. This becomes
essential as these principles would help in analyzing the
evidence in a proper perspective and to decide as to whether the
findings of the learned Single Judge are correct or else, it is case
where the appellant has been able to prove the genuineness of
the Will.
16. In two judgments pronounced by a learned Single Judge of this
Court, the entire gamut of law relating to Wills has been
revisited. The learned Judge summarized the legal position on
this aspect and culled out legal principles from various
pronouncements of the Supreme Court, High Courts and even
Privy Council. With such erudite and laborious assignment
already accomplished in those judgments, our task is made
easier and we would do no better than extracting relevant
portions from those judgments. The first case is entitled K.L.
Malhotra,L.R Vs. Smt. Sudershan Kumari in FAO No.289 of
1998 decided on 01.04.2008. The learned Judge noted the
principles of law in the following manner:
"25. 'Will' as defined under Section 2(h) of the Indian Succession Act
means 'the legal declaration of the testator with respect to his property
which he desires to be carried into effect after his death'. The essential
characteristic of a will, as is well known, is that it is a mere declaration of
an intention so long as the testator is alive, a declaration which may be
revoked or varied by the testator during his lifetime; it is a disposition that
requires the testator's death for its consummation and is but ambulatory
or without fixed effect until the happening of this event. The document is
a will if it contains specific words of bequest to come into effect after the
death of the testator.
26. A will is a solemn document. By it, a dead man entrusts to the living
to carry out his wishes and since it is impossible that he can be called
either to admit or deny his signatures or to explain the circumstances in
which it was executed, duty of care is cast on the shoulders of the court
while considering a probate case.
27. The rules governing the propounding of a will are two. First, the onus
probandi lies in every case upon the party propounding the will and he
must satisfy the conscience of the Court that the instrument so
propounded is the last will of the testator. Second, if a party actively
participates in the execution of a will under which he takes a benefit, it is
a circumstance to excite the suspicion of the Court and calls upon the
court to be vigilant and zealous in examining the evidence on record.
28. The strict meaning of the term 'onus probandi' is this, that if no
evidence is given by the party on whom the burden is cast, the issue
must be found against him. In all cases the onus is imposed on the party
propounding the will. It is in general discharge by proof of capacity and
the fact of execution from which the knowledge of and assent to the
contents of the instrument are assumed.
29. The nature of proof required to prove a will is not different from those
required to prove other documents except the requirement of attestation
prescribed under Section 63 of the Indian Succession Act. The proof is to
be tested on the usual satisfaction of a prudent mind. What distinguishes
a will from other document is that the testator would not be available to
testify the same as his last will. This introduces an element of solemnity
in the decision. Even then the Court has to proceed with the enquiry in
the same manner as is done in respect of any other document. The
propounder is called upon to show by satisfactory evidence that (1) the
will was signed by the testator in the presence of two attesting witnesses;
(2) at the relevant time he was in sound and disposing state of mind; (3)
he understood the nature and effect i.e., the content of the disposition; (4)
he put the signature to the document of his own free will. The onus of the
propounder can be said to be discharged on proof of the above essential
facts.
30. However, in a case surrounded by suspicious circumstances viz.: the
disposition may appear to be unnatural, improbable or unfair in the light
of the relevant circumstances; or there may be indications that the
disposition was not the result of the testator's free will and mind, such
suspicious circumstances make the initial onus very heavy; and unless
satisfactorily discharged, the Court would be reluctant to treat the
document as the last will of the testator. Where the propounder takes a
prominent part in the execution of the will conferring benefit upon him,
that is a suspicious circumstance attending the execution of the will; the
propounder is required to remove the doubt by clear and satisfactory
evidence. In other words the propounder must satisfy the conscience of
the Court that the document is the last will and testament of the testator.
31. Where the caveator alleges undue influence, fraud and coercion, the
onus is on him to prove the same. Even if there is no such plea but the
circumstances give rise to doubts, it is for the propounder to satisfy the
conscience of the Court. If the propounder is able to satisfy the
conscience of the Court, the Court shall grant the probate, even if the will
cuts off, wholly or in part, near relations. It is the will of the testator that is
reflected in the will. Being the testator's own property, he has the liberty
to deal with it absolutely. It is not for the Court to find out justification or
equity or otherwise in the action of the testator. It is not for the Court to
make it fair or to sermonize. It is not for the Court to refuse the grant on
account of the fact that the disposition is not just and fair or is unnatural
or improbable when the conscience of the Court is clear about the proof
of the execution of the will on the face of the evidence, satisfactorily
sufficient, to remove the suspicious circumstances.
32. As the wills are too frequently made by the sick and dying, the degree
of understanding and memory which the law requires is such as may be
reasonably expected from persons in that condition. Therefore, it is
wrong to suppose that those qualities of mind should be possessed by
the testator in the highest degree, position or to the same extent as
before the illness in order to enable him to validly make his will. Section
59 of the Indian Succession Act requires that the testator should have a
sound mind. The sound mind referred to does not mean that the testator
should have his mental faculty in their fullest vigour, but means that he
should have the capacity to understand the nature of his property;
memory to remember the
relations and persons normally having claims on his bounty and has also
a judgment. As observed by their Lordships of Privy Council in the
decision reported as Judah v. Isolyne AIR 1945 PC 174, the fact that the
testator was unwell when he executed the will is a long way from saying
that he had no testamentary capacity. The testator does not have to be
found in perfect state of health to have his will declared valid. It is
sufficient to prove that he was able to outline the manner in which his
estate was to be disposed of.
33. The general principles governing the presumption of due execution
and attestation are, if a will appears on the face of it to have been duly
executed and attested in accordance with the requirements of the Act,
the maxim 'omnia presumuntur rite esse acta' applies, unless it is clearly
proved that the will in fact, was not duly executed. The Court of probate
has long being accustomed to give great weight to the presumption of
due execution arising from the regularity ex facie of the testamentary
paper produced where no suspicion of fraud has occurred.
34. Where once it has been proved that a will has been executed by a
person of competent understanding, the burden of proving that it was
executed under undue influence is on the party who alleges it. The Privy
Council laid it down in the decision reported as Mst. Gomtibai v.
Kanchhedilal AIR 1949 PC 272 that undue influence in order to invalidate
a will must amount to coercion or fraud. Its extents must be established
and it must also appear that it was actually exercised on the testator.
35. The burden of proving undue influence is not discharge by merely
establishing that the person had power unduly to overbear the will of the
testator. It must be shown that in any particular case that power was, in
fact, exercised and that it was by means of exercise of that power that the
will was obtained. This was observed by the Calcutta High Court in the
decision reported as Chandra Majumdar v. Akhil Chandra Majumdar AIR
1960 Cal 551. Relying upon the decision of the Hon'ble Supreme Court in
the decision reported as Naresh Charan Das Gupta v. Paresh Charan
Das Gupta and Anr. AIR 1955 SC 363 it was observed that it is
elementary that law does not regard or charactize every interest which is
brought to bear upon a testator as undue. It is open to a person to plead
his case before the testator and to persuade him to make a disposition in
his favour and if the testator retains his mental capacity and there is no
element of fraud or
coercion, the will cannot be attacked on the ground of undue influence.
Not all importunities are undue influence. While making said observation,
the Hon'ble Supreme Court in Naresh Charan Das Gupta's case (supra)
quoted the observation of Lord Penzance in the decision reported as Hall
v. Hall 1868 (1) P & D 481 "but all influences are not unlawful.
Persuasion, appeals to the affections or ties of kindred, to a sentiment of
gratitude for past services, or pity for future destitution, or the like - these
are all legitimate and may be fairly pressed on a testator. On the other
hand, pressure of whatever character, whether acting on the fears or the
hopes, if so exerted as to overpower the volition without convincing the
judgment, is a species of restraint under which no valid will can be made.
......... In a word, a testator may be led, but not driven; and his will must
be the offspring of his own volition, and not the record of some one
else's".
36. The golden rule in interpreting a will is to give effect to the testator's
intention as ascertained from the language, which he has used. The
overriding duty of a Court is to construe the language which the testator
has in fact employed giving due weight to all the words and rejecting
none to which a meaning can reasonably be assigned. The Court is
entitled to put itself into the testator's arm chair to construe a will and to
form an opinion apart from the decided cases and then, to see whether
those decisions require any modification of that opinion and not to beckon
by considering as to how far the will in question resemble other will upon
which the decisions have been given. The proposition that the will has to
be read as a whole cannot be disputed. Whether there is a will on the
basis of the document, the probate Court certainly will not proceed to
consider as to whether or not the disposition of the property was good or
bad. The primary duty of the probate Court is to see first whether prima
facie, the document constituted a will."
Other judgment is dated 21.11.2007 in FAO No.874 of 2003
entitled Jagdish Lal Bhatia and Others Vs. Madan Lal Bhatia
and Anr. In this judgment, the Court dealt with the legal burden
of proof when a will is propounded and also spelt as to what
would constitute suspicious circumstances and what form of
affirmative proof should be sought by the court to satisfy the
judicial conscience that the document propounded is the last
legal and valid custom of the testator. This reads as under:
"I. The legal burden to prove due execution always lies upon the
person propounding a will. The propounder must satisfy the
judicial conscience of the court that the instrument so
propounded is last will of a free and capable testator.
II. The onus is discharged by the propounder adducing prima
facie evidence proving the competence of the testator and
execution of the will in the manner contemplated by the law.
The contestant opposing the will may bring material on record
meeting such prima facie in which event the onus would shift
back on the propounder to satisfy the Court affirmatively that
the testator did know well the contents of the will and in sound
disposing capacity executed the same. (see the decision of the
Supreme Court in Madhukar D. Shende v Tarabai Aba Shedge
AIR 2002 SC 637).
III. No specific standard of proof can be enunciated which must
be applicable to all the cases. Every case depends upon its
circumstances. Apart from other proof, conduct of parties is very
material and has considerable bearing on evidence as to the
genuineness of will which is propounded. Courts have to be
vigilant and zealous in examining evidence. Rules relating to
proof of wills are not rules of laws but are rules of prudence.
IV. Expanding on the care and caution to be adopted by the
courts, and presumptions to be raised, in the decision reported
as (1864) 3 Sw & Tr. 431 In The Goods of Geale, it was opined
that where a person is illiterate or semi literate or the will is in a
language not spoken or understood by the executor, the court
would require evidence to affirmatively establish that the
testator
understood and approved all the contents of the will.
V. One form of affirmative proof is to establish that the will was
read over by, or to, the testator when he executed it. If a
testator merely casts his eye over the will, this may not be
sufficient.
VI. Courts have to evaluate evidence pertaining to the
circumstances under which the will was prepared. If a will is
prepared and executed under circumstances which raise a well
grounded suspicion that the executor did not express his mind
under the will, probate would not be granted unless that
suspicion is removed.
VII. A word of caution. Circumstances can only raise a suspicion
if they are circumstance attending, or at least relevant to the
preparation and execution of the will itself.
VIII. Another point that has to be considered is about the
improbability in the manner in which the instrument is scripted.
Instance of suspicious circumstances would be alleged
signatures of testator being shaky and doubtful, condition of the
testator's mind being feeble and debilitated, bequest being
unnatural, improbable and unfair.
IX. Suspicious circumstances are a presumption to hold against
the will. Greater is the suspicion more heavy would be the onus
to be discharged by he who propounds the will.
X. A will is normally executed by a person where he intends to
alter the rule of succession or where he desires a particular form
of inheritance and to that extent, nature of bequest is not of
much substance to invalidate a will, but consistent view taken
by the courts is that this could be treated as a suspicious
circumstance. What weightage has to be attached to this
suspicion would depend upon case to case.
XI. Suspicion being a presumptive evidence, is a weak evidence
and can be dispelled."
17. Thus, the first and foremost thing which is to be borne in mind is
that legal burden to prove the due execution always lies upon
the person propounding the Will. The propounder has to lead
evidence proving the competence of testator as well as
execution of the Will in the manner contemplated in law. The
propounder is called upon to show by satisfactory evidence that
the Will was signed by the testator, that the testator at the
relevant time was in sound and disposing state of mind and that
he was acting of his own free will in executing the will.
18. Wherever the Will is surrounded by suspicious circumstances, it
also becomes the burden of the propounder to adduce
satisfactory evidence to completely remove all legitimate
suspicions before the document is accepted as the last Will of
the testator. This was so held by the Apex Court, half a century
ago, in the case of H. Venkatachala Iyengar Vs. B.N. Thimma
Juumma [AIR 1959 SC 443]. Relevant portion of this judgment
reads as under:
"18. What is the true legal position in the matter of proof of wills
? It is well-known that the proof of wills presents a recurring
topic for decision in courts and there are a large number of
judicial pronouncements on the subject. The party propounding
a will or otherwise making a claim under a will is no doubt
seeking to prove a document and, in deciding how it is to be
proved, we must inevitably refer to the statutory provisions
which govern the proof of documents. Sections 67 and 68 of the
Evidence Act are relevant for this purpose. Under section 67, if a
document is alleged to be signed by any person, the signature
of the said person must be proved to be in his handwriting, and
for proving such a handwriting under sections 45 and 47 of the
Act the opinions of experts and of persons acquainted with the
handwriting of the person concerned are made relevant. Section
68 deals with the proof of the execution of the document
required by law to be attested; and it provides that such a
document shall not be used as evidence until one attesting
witness at least has been called for the purpose of proving its
execution. These provisions prescribe the requirements and the
nature of proof which must be satisfied by the party who relies
on a document in a court of law. Similarly, sections 59 and 63 of
the Indian Succession Act are also relevant. Section 59 provides
that every person of sound mind, not being a minor, may
dispose of his property by will and the three illustrations to this
section indicate what is meant by the expression "a person of
sound mind" in the context. Section 63 requires that the testator
shall sign or affix his mark to the will or it shall be signed by
some other person in his presence and by his direction and that
the signature or mark shall be so made that it shall appear that
it was intended thereby to give effect to the writing as a will.
This section also requires that the will shall be attested by two
or more witnesses as prescribed. Thus the question as to
whether the will set up by the propounder is proved to be the
last will of the testator has to be decided in the light of these
provisions. Has the testator signed the will ? Did he understand
the nature and effect of the dispositions in the will ? Did he put
his signature to the will knowing what it contained ? Stated
broadly it is the decision of these questions which determines
the nature of the finding on the question of the proof of wills. It
would prima facie be true to say that the will has to be proved
like any other document except as to the special requirements
of attestation prescribed by section 63 of the Indian Succession
Act. As in the case of proof of other documents so in the case of
proof of wills it would be idle to expect proof with mathematical
certainty. The test to be applied would be the usual test of the
satisfaction of the prudent mind in such matters.
19. However, there is one important feature which distinguishes
wills from other documents. Unlike other documents the will
speaks from the death of the testator, and so, when it is
propounded or produced before a court, the testator who has
already departed the world cannot say whether it is his will or
not; and this aspect naturally introduces an element of
solemnity in the decision of the question as to whether the
document propounded is proved to be the last will and
testament of the departed testator. Even so, in dealing with the
proof of wills the court will start on the same enquiry as in the
case of the proof of documents. The propounder would be called
upon to show by satisfactory evidence that the will was signed
by the testator, that the testator at the relevant time was in a
sound and disposing state of mind, that he understood the
nature and effect of the dispositions and put his signature to the
document of his own free will. Ordinarily when the evidence
adduced in support of the will is disinterested, satisfactory and
sufficient to prove the sound and disposing state of the
testator's mind and his signature as required by law, courts
would be justified in making a finding in favour of the
propounder. In other words, the onus on the propounder can be
taken to be discharged on proof of the essential facts just
indicated.
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.
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."
Re: The Arguments:
19. Keeping in view the aforesaid parameters, which are relevant for
proving the execution, attestation and genuineness of the Will,
we proceed to note and discuss the arguments on various
aspects, which fall for considerations. Mr. Chaudhary made his
submission under different heads, as under:
Re: Valid Execution:
20. We may state at this stage that though Mr. Anoop Chaudhary,
learned Senior Counsel, appearing for the appellant argued that
there was no challenge by the objector in his written statement
either to the execution of the Will or the signature of the
diseased testator, this submission is not borne from the record.
On the contrary, as already pointed out above, the objector has
specifically denied the execution of the Will by the testator. In
fact, issue No. 1 framed by the Court encompasses this aspect
specifically. Moreover, the law to this effect, as noted above, is
clear, viz., it is obligatory on the part of the propounder of the
Will to prove due attestation and execution of the will. This is so
even when the case is ex parte or all other
respondents/interested persons have given no objection and
supported the Will. It is because of the reason that these
proceedings are in rem. Therefore, it has to be examined as to
whether there was proper execution of the Will or not.
21. On merits, the learned Senior counsel had contended that in any
case from the evidence of PW-1, execution was amply proved.
He argued that PW-1 had given the graphic description leading to
the preparation and execution of the Will, inter alia, deposing to
the following effect in this regard, which had not been rebutted
by the objector and there was no challenge in the cross-
examination of PW-1 either:
(i) Alteration about the deletion of the name of Shri
Mahender Kumar Gupta with direction to get the Will
retyped........ and signed the same by the testator.
(ii) Certificate by Dr. Madan Lal on directions of Lalaji.
(iii) Once in the morning when he executed the Will and
again in the afternoon and when he signed on the
back side of the Will.
(iv) The Will was signed first and thereafter the Original
of PW1/D-1. These were signed with the same pen
by Lala Hansraj Gupta.
(v) Reason for appointing Mr. Tewari for drafting of Will.
(vi) The signatures which were appended by Lala Hansraj
Gupta on the Will were his normal signatures and
were appended in the presence of PW-1.
(vii) Discussion of preparation of Will started in 1982 and
continued in 1983, 1984 and were finalized in 1985.
Specifically, there was no suggestion to the following testimony:
"(i) That Lalaji after reading the Will himself approved of it
and signed the same.
(ii) Lalaji, my father Shri M.P. Tewari, Smt. Angira Gupta and
myself, we all signed the Will at one and the same time in
the presence of each other."
(iii) Lalaji signed the Will, as I have stated above, in the
presence of Smt. Angira Gupta, my father Shri M.P. Tewari
and myself and all the three of us signed the same as
attesting witnesses at the request of Lalaji."
21. On the contrary, submitted the learned counsel, there was
admission of RW-1/Shivraj Gupta in his statement inasmuch as
he categorically gave the following answers:
"Yes, it is correct that I have not taken the plea that the Will is
forged. Yes, the Will of Lala Hansraj Gupta has been signed by
Shri M.P. Tewari as an attesting witness."
22. He, thus, argued that due execution of the registered Will dated
28.05.1985 was duly proved as per the provisions of Section
63(c) of the Indian Succession Act, read with Section 68 of the
Indian Evidence Act, but no finding in this regard was given by
the learned Single Judge in spite of specific issue being framed in
this regard.
23. Additionally, it was also submitted that Mrs. Angira Gupta in the
Probate Petition had verified the probate petition and in that
verification, she had clearly mentioned that she was the
attesting witness of the Will. According to the learned counsel,
this was also a piece of evidence under Sections 281 and 282 of
the Indian Succession Act read with Section 193 IPC. It was also
submitted that there was no specific denial in the written
statement of the objectors of this fact and, therefore, it should be
treated as admitted on the application of the provisions of Order
VIII, Rule 5 Code of Civil Procedure. He also pointed out that
Smt. Angira Gupta in her written statement as well, had
specifically stated that the testator had executed the Will in
sound disposing mind and of his own free will and desire and this
is also a relevant fact under Section 32(3) of the Indian Evidence
Act, since Smt. Angira Gupta was excluded from being a
beneficiary under the said Will.
24. Mr. Chaudhary also endeavored to draw support from the written
statement filed by the respondent No.6, wherein he has
supported the case of the petitioner and accepted the execution
of the Will. His submission was that as he was one of the
respondents, the aforesaid statement in the written statement
should be treated as admission under Section 17 and 18 of the
Indian Evidence Act, which would make it a substantive evidence
even if the party is not confronted with the statement, in view of
the law laid down by the Apex Court in the case of Bharat Singh
and Anr. Vs. Bhagirathi [AIR 1966 SC 405].
25. The aforesaid arguments would demonstrate that main thrust is
on the testimony of PW-1 to prove the execution of the Will, the
only witness which is examined is Mr. S.K. Tewari (PW-1).
However, the learned Single Judge has held that this witness is
unreliable for various reasons stated in the impugned judgment.
The central issue, therefore, would be as to whether PW-1 is
trustworthy or not. Before we proceed to discuss that aspect, we
want to make certain comments on the arguments of the learned
Senior Counsel for the appellant predicated on so-called graphic
description relating to preparation and execution of the Will as
well as arguments relating to the unchallenged and unrebutted
testimony of PW-1 in cross-examination.
26. No doubt, PW-1 has stated in detail as to how the Will was
drafted pursuant to purported instructions of the testator and
has also narrated the circumstances in which the Will was
signed. Giving such an account by itself would not lead to the
conclusion that the Will was prepared and drafted at the instance
of the testator. Ultimately, the litmus test is in finding out the
credit worthiness of such a narration of so-called events given by
the PW-1, which again brings us back to the question as to
whether PW-1 is giving the account of events truthfully or not.
27. The Learned Single Judge has doubted the veracity of the
statement of PW-1 to the effect that he was instructed by the
testator to draft the Will and draft Will was prepared and shown
to the testator at the instance of the testator. In this behalf,
learned Single Judge took note of the fact that when PW-1 had
gone with the draft Will, which was prepared at the direction of
the testator, the testator instead of looking into the same, asked
PW-1 to take out the Will which was lying in the drawer in the
adjacent TV room. Remark of the learned Single Judge is that
when the testator had already prepared a draft Will, there was
no question of giving instructions to PW-1 to prepare the Will.
This is a very material circumstance pointed out by the learned
Single Judge, which puts question mark on the truthfulness of the
statement of PW-1 that he was asked to prepare the draft Will. If
the testator had already prepared the Will, he could have shown
the same to PW-1 at the outset with instruction to make the
necessary changes which he wanted rather than asking him to
prepare a draft Will and then not even looking at the said Will
prepared by PW-1. No satisfactory answer was given to this
aspect commented upon by the learned Single Judge.
28. Similarly, we do not find much substance in the arguments of the
learned Senior Counsel for the appellant that on certain material
aspects, the testimony of PW-1 remained unchallenged and
unrebutted. The examination-in-chief of PW-1 runs into seven
pages. Thereafter, he was cross-examined at length on various
dates, which is spread over 43 pages. When we see the tenor
and the depth of this cross-examination, it becomes clear that
from almost every relevant aspect the PW-1 was cross-examined.
Attempt of the counsel for the respondent, while cross-examining
the PW-1 was to shake his credibility by questioning him on all
possible aspects including execution, registration as well as
medical condition - physical as well as mental - of the testator.
The statement of PW-1 as well as his cross-examination is to be
read as a whole. When we read the evidence of PW-1, we find
that there was through cross-examination by the objectors in an
attempt to prove the following:
(a) Intimate connection of PW-1 with the appellant.
(b) PW-1 was associated even in drafting and filing the
probate proceedings, which he did at the instance of
the appellant so much so he signed the declaration
without going into the petition.
(c) It was not certain as to whether the Will was
executed and signed on 28.05.1985 or 29.05.1985
and there was some contradiction in this behalf.
(d) The version of PW-1 that on 29.05.1985, he took
medical certificate from Dr. Madan Lal on the request
of the testator, was not correct.
(e) The sound and disposing mind of the testator.
29. Thus, the length and breadth of the cross-examination clearly
suggests that on all relevant aspects, the witness was questioned
and cross-examined. The clear intention was to question the
execution of the Will also not only on the ground that the testator
was not in a sound disposing mind, who could make a Will, but
endeavour was also to project that the testator was totally under
the control of the appellant. The Will even if signed by the
testator, was not drafted under his instruction or understood by
him. Whether the objectors have succeeded in their attempt or
not is a different question, which will be addressed at a later
stage. What is pointed out at this juncture is that the plea of the
appellant that there is no cross-examination concerning the
execution of the Will, is not correct.
30. We also do not agree with the submission of the learned counsel
for the appellant that as there is no specific denial of attestation
by Smt. Angira Gupta and S.K. Tewari, it should be treated as
admission under Order VIII, Rule 5 Code of Civil Procedure. The
written statements/objections are read in their entirety. It is
already pointed out above that in the objections, specific plea
was taken that the testator never executed any Will at all and
veracity of the Will was also challenged on various other grounds.
31. Likewise, written statement of respondent No.6 cannot come to
the aid of the appellant, the propounder of the Will. The
respondent No.6 has supported the case of the appellant. Merely
because he is arrayed as a respondent, would not mean that he
is a contesting party. If he sides with the appellant by accepting
the execution of the Will by the testator, such an admission
would be binding qua respondent No.6 only and not qua other
respondents, who had specifically questioned the execution and
opposed the probate petition.
32. We would now like to deal with the verification at the foot of the
petition by Smt. Angira Gupta/respondent No.2 as well as her
written statement. It was argued that if the verification is proved
to be wrong, it entails penal consequences under Section 193 IPC
and thus, it should be treated as evidence moreso when
verification is statutorily required under Sections 281 and 282 of
the Indian Succession Act. Section 280 of the Indian Succession
Act requires that the petition for probate is to be signed and
verified by the petitioner (propounder of the Will). Section 281
mandates verification of the petition for probate to be signed by
at least once of the witnesses to the Will. As per the Will
projected, Smt. Angira Gupta, Mr. S.K. Tewari and Mr. M.P. Tewari
were the attesting witnesses. Therefore, it was legal requirement
that one of them or all of them sign the verification in that
capacity. To attach such attestation, penal consequences for
false declaration are provided under Section 282 of the Indian
Succession Act, which treats wrong declaration as offence under
Section 193 of the IPC. That, however, would not mean that such
a declaration would partake the character of „evidence‟ for the
purpose of proving the Will. Requirement of law to prove the
execution of the Will is crystal clear. Section 63 of the
Succession Act specifies the requirements of valid execution,
which include that such a Will has to be attested by two or more
witnesses. The manner in which these witnesses as well as
testator have to sign is also mentioned in Section 63 (c) of the
Act. Thus, before a Will is treated as proved in a Court of law, it
is incumbent that one of the attesting witnesses comes in the
witness box and testify to that effect. Such witness would be
subject to cross-examination as well. In case, there are
objections to the valid execution, it is only on the basis of the
statement of attesting witness on oath in the Court of law, who
has undergone the cross-examination as well, that the Court
would return the finding as to whether the Will is proved or not.
If verification by the attesting witness is treated as requisite
evidence fulfilling the requirement of proving, then there would
not be any need to produce attesting witness to the Will as
witness in the Court in cases where there is no objection to Will.
Thus, we reject the argument that the verification by Smt. Angira
Gupta and Mr. M.K. Tewari at the foot of the petition be treated
as „evidence‟ and on that basis, it should be held that execution
of the Will as required under Section 63(c) of the Indian
Succession Act stands proved.
33. Next aspect to be dealt with is as to whether written statement of
Smt. Angira Gupta can be treated as relevant fact under Section
32 (3) of the Indian Evidence Act. To appreciate this arguments,
let us first go through the said provision of Section 32(3), which is
as under:
32. Case in which statement of relevant fact by person
who is dead or cannot be found, etc. is relevant -
Statements, written or verbal, of relevant facts made by a
person who is dead, or who cannot be found, or who has
become incapable of giving evidence, or whose attendance
cannot be procured without an amount of delay or expense
which, under the circumstances of the case, appears to the
Court unreasonable, are themselves relevant facts in the
following cases -
(1) ..................
(2) .................
(3) Or against interest of maker - When the statement is against
the pecuniary or proprietary interest of the person making it, or
when, if true it would expose him or would have exposed him to
criminal prosecution or to a suit for damages."
First requirement is that such a statement has to be proved.
That could be done, in the instant case, by the propounder by
appearing as a witness and proving the written statement as a
document. This is clear from reading of Section 158 of Indian
Evidence Act, which is to the following effect:
"158. What matters may be proved in connection with
proved statement relevant under Section 32 or 33 -
Whenever any statement relevant under Section 32 or 33 is
proved, all matters may be proved either in order to contradict
or to corroborate, or in order to impeach or confirm the credit of
the person by whom it was made, which might have been
proved if that person had been called as a witness and had
denied upon cross-examination the truth of the matter
suggested."
The least that was required was to confront the respondent (PW-
1) with the said written statement of Smt. Angira Gupta. That
has not been done. No doubt, the written statement is a part of
Court record. However the aforesaid exercise was still necessary
as only then the objector/respondent could have stated his
version/explanation with opportunity to explain as to why such a
written statement be not treated as relevant fact. This becomes
important because of the following circumstances:
(1) Though the written statement was filed by Smt.
Angira Gupta in February 1986, she died nine years
thereafter, i.e., in March, 1995. The appellant had
shown her as a witness in the list of witnesses.
During the pendency of the probate proceedings in
I.A. No.534/1989 filed by the appellant seeking
permission to examine Smt. Angira Gupta by
appointing a Commissioner. This application was
allowed on 07.08.1989. Despite this, she could not
be examined for which the respondent/objector
blames the appellant and goes to the extent of
arguing that the appellant intentionally sought it that
Smt. Angira Gupta was not examined. Reliance is
placed on the following portion of cross-examination
of RW-1:
"...Question: Whether any of the members of the
family tell you that the Will was executed by Lalaji
under coercion and pressure brought upon him by
Deshraj Gupta and Family members?
Ans: AS mentioned earlier, I was not present at the
time when the Will was supposedly executed. The
only person who could have reflected on this
situation was Bibiji and she was not brought before
the Commission as a witness by Shri Deshraj Gupta in
spite of 2/3 times fixed by the Commissioner. A
Commissioner was appointed by the High Court to go
to 3, Amrita Shergill Marg for her evidence. You (Shri
L.R. Gupta) were also present. But she was not
brought out, therefore her evidence could not be
recorded..."
(2) Admittedly, Smt. Angira Gupta did not know or
understand English language. Verification is in
English. It is only in cross-examination, it could be
elicited as to whether she understood what she was
signing. Since she passed away and therefore, could
not be examined as a witness, the respondent was
also denied chance to give his version qua the said
written statement, as nobody appeared and deposed
about the said written statement in his testimony.
This denied objectors even an opportunity to cross-
examine the propounder and/or any other witnesses
who could have brought on record, the said written
statement as a piece of evidence.
(3) Most glaring aspect pointed out by the learned
counsel for the respondent was that the petition as
well as written statement of Smt. Angira Gupta
(respondent No.2) and respondent No.6 had been
drafted by the same lawyer engaged by the
appellant/propounder. On this premise, arguments of
the respondent was that no independent advice was
given to Smt. Angira Gupta, clarity could have come
on this aspect also.
(4) We, therefore, are not inclined to accept the
submission of the appellant that written statement of
Smt. Angira Gupta be looked into as relevant fact
under Section 32(3) of the Evidence Act.
34. With this discussion, we are left with the testimony of PW-1
regarding the execution. The learned Single Judge has not
believed the version of the PW-1. For this purpose in the
impugned judgment, comments are made not only on the
deposition of PW-1 qua execution, but in respect of registration of
the Will and sound disposing mind of the testator. As cumulative
effect of this will have to be seen in appreciating the arguments
of the contesting parties on this aspect, we defer discussion of
this aspect at this stage and shall take up the same at a later
stage.
Re: Sound Disposing Mind:
35. Mr. Chaudhary, learned Senior Counsel for the appellant
submitted that the appellant had produced sufficient and
satisfactory evidence to conclusively prove that the testator was
in sound disposing mind at the time when he executed the Will in
question. His submission was that that the learned Single Judge
has confused the matter by mixing up the physical condition of
the testator with the mental condition. He argued that even if
the testator was suffering from certain diseases and physically
frail because of his old age, at the same time he was in sound
disposing mind with agile brain at the time when he gave
instructions to PW-1 to prepare the Will; when he discussed the
draft prepared by the counsel and suggested that modifications;
and when he signed the said Will. The learned counsel took lot of
efforts in referring to various pieces of evidence and also the
circumstances which according to the appellant were sufficient to
show the sound mental disposition of the testator. This may be
noted below in capsulated form:
(a) General: (i) Earlier in the holograph Will, the
testator had bequeathed his share in business and
immovable property to Hansraj Gupta Charity Trust.
In the present Will his share in Hansraj Gupta
Company Pvt. Ltd. was bequeathed to the appellant
and Mr. Ravi Raj Gupta equally.
(ii) Similarly, his share in Mridul Enterprises was
bequeathed to Ravi Raj and Uday Raj in the ratio of
3:1 respectively. This also shows the consciousness
application of mind by the testator because Mridul
Enterprise was a partnership firm consisting of the
appellant, his son Uday Raj and the testator.
(iii) That departure from the holograph and the
present Will wherein the testator showed the
categorical awareness of the fact that claims in
regard to the Indo Swedish firm was time barred and
which fact was specifically incorporated in the
present Will.
(iv) The departure from the contents of the
holograph concerning Estate Duty about which S.K.
Tewari has clearly stated that on his suggestion only
the point regarding the abolition of Estate Duty was
excluded from the present Will.
(v) The specific concern of the testator, "I wish that
the company M/s. Hansraj Gupta & Co. Pvt. Ltd. be
managed and controlled by my grandson Ravi Raj
Gupta as is being done today and none other legal
heirs should raise any objection thereto."
(b) Medical Records: (i) The normal level of sodium
level is 130 upwards, any fall from 130 is called
Hyponatremia (low sodium content in the blood).
(ii) After prostate operation on 17.04.1985 for
enlarged prostate, the sodium level of the testator
had fallen down to 116 on 24.05.1985 and because of
that he became drowsy.
(iii) Sodium level on 03rd May, 1985 was 128 meq
and on 20th May, 1985 129 meq. Above. 125 meq/q
there are rarely clinical symptoms in the patient and
because of that only the doctors did not consider it
necessary to test the sodium level of the testator
after 20th May, 1985 till 17th June, 1985. According to
the Merck Manual, "Hyponatremia itself is often of a
little significance and requires no specific treatment
and it rarely causes clinical symptoms when plasma
sodium is above 125 meq per liter."
(iv) Testator was admitted in the AIIMS for the
treatment of prostate on 17.04.1985 and he was not
suffering from any mental disorder.
(v) Testator got himself discharged at his request
from the hospital on 24.05.1985 as per the discharge
summary (Ex. P-2).
(vi) Dr. S.M. Singh appeared as PW-3 to prove
sound state of mind of the testator till the day of
discharge from the hospital. His clear deposition was
that the testator was healthy and with full mental
faculties when he was brought to the hospital and at
the time of the discharge his will power was strong
and he was mentally alert.
(c) Challenge to Findings of the learned Single Judge: Mr.
Chaudhary submitted that the learned Single Judge
had arrived at erroneous conclusion on sound
disposition mind of the testator by drawing certain
inferences contrary to the record or which could not
be valid ground. In this behalf, his submission was:
(i) The learned Single Judge ignored the fact that
the instruction to prepare the Will was initially given
by the testator either on 13th or 14th May, 1985 when
there was no problem of hyponatremia.
(ii) There was no evidence to show that he was
discharged from the hospital against the medical
advice; only the discharge sheet shows that the
testator was suffering from uncontrolled diabetes &
recurrent troublesome hyponatremia.
(iii) In any case, hyponatremia can be controlled by
the medicines. Also on the last date, i.e., the date of
discharge he was bleeding from rectum and two units
of blood were transferred to hi.
(iv) Ex.-95 dated 24.05.985 signed by Dr. N.P.
Singh records that the "3.00 PM patient permitted to
go home at his request."
(v) Nurse reports on 25.05.1985 that the patient
looks comfortable, sleeping fairly well. On
29.05.1985 records that the testator was seen by Dr.
Madan Lal.
(vi) Patient was in hospital for last 41 days and he
desperately wanted to go to his home and as a
protest, he had even reason he had refused to take
any diet and medicine.
(vii) The petitioner was staying with the testator. It
was very natural for him to take his father back to
the residence.
(viii) Ex.P-2, the discharge summary of 24.05.1985
which records diabetes and hyponatremia were
correctly managed.
(ix) Ex.P-40 which is a medical record of
25.04.1985, i.e., a week after the operation indicates
that Sr. Neurology is called when the patient showed
the clinical symptoms namely "Pt. drowsy, responds
to painful stimuli by avoidance, responds to
commands on coaxing". The Neurologist after
investigation opined that there was no focal
neurological deficit.
(x) He also submitted that it was improper on the
part of the learned Single Judge to rely upon the
testimony of Rekesh Gupta (RW-2) who never
examined the testator, but gave his opinion as an
expert on the basis of medical records ignoring the
testimony of Dr. S.M. Singh, who had examined the
testator. Such an approach, according to him, was
clearly erroneous.
36. Mr. Chandhiok, learned Senior Counsel appeared for the
respondent No.2/objector, Shiv Raj Gupta, countered the
aforesaid submission. He was joined by Mr. Vikas Dhawan,
advocate and also Mr. Manish Kumar, Advocate who appeared for
the respondent Nos. 5 and 6. The main thrust of the submission
of the objectors was on the general sickness of the testator apart
from hyponatremia, on the basis of which it was argued that this
sickness had affected his mental dispositions and the testator did
not understand or fully comprehend the nature and effect of the
Will. It was also argued that these facts were to be considered
along with other suspicious circumstances highlighted by the
respondents, which would clearly show that the Will in question
could not be the one depicting his desire and intention. The
entire medical history of the testator right from the date of
admission in AIIMS, i.e., 13.04.1985 and thereafter at the
residence was referred to in support. The hyponatremia level of
the testator on all these dates was highlighted drawing the
attention of the court to the fact that clinical manifestation of
hyponatremia as well as the ailment was no longer in dispute.
He referred to the following statements of Dr. S.M. Singh (PW-3)
in cross examination in his support:
"A. I agree with the commentary given at Page 829 Column
II i.e.
..."Hyponatremia in hyponatremia, the level of sodium in
the blood is too low. Hyponatremia occurs when sodium
has been overdiluted in the body. Sodium can be
overdiluted when people drink enormous amounts of
water - as people with certain psychiatric disorders
occasionally do - or when people who are hospitalized
receive large amounts of water intravenously. In either
case, the amount of fluid taken in exceeds the kidney‟s
capacity to eliminate the excess intake of smaller
amounts of water-sometimes as little as I quart a day
can lead to hyponatremia in people whose kidneys are
not functioning normally, such as people with kidney
failure, Hyponatremia also occurs in people with heart
failure or cirrhosis. Excessive chronic loss of fluids, as
occurs with chronic diarrhea, can also result in
hyponatremia."
Q. Do you also agree with the commentary given in another
book "Harrison‟s Principle of International Medicines" at
pages 203-204 column 1?
A. "Clinical manifestations Neurologic dysfunction is the
principal clinical manifestation of hyponatremia. It is due
to intracellular movement of water, leading to swelling of
brain cells. The severity of symptoms is related both the
degree of hyponatremia and to the rapidity with which it
develops. In chronic hyponatremia, the degree of brain
swelling caused by any given reduction in body fluid
osmolality is reduced because solute, largely potassium
chloride, is lost from the cells. Patients may be lethargic,
confused, stuporous, or comatose. If hyponatremia
develops rapidly, signs of hyperexcitability such as
muscular twitches, irritability and convulsions may occur.
Hyponatremia rarely causes clinical symptoms when
plasma sodium is above 125 meq per liter, although
symptoms may occur at higher levels if the decrease in
concentration has been rapid..."
The normal range of sodium level for a normal person ranges
from 136-1520 meq/l. Even as per the testimony of Dr. S.M.
Singh, the normal range of sodium is 130-149. The relevant
extract of Dr. S.M. Singh‟s cross-examination is at p.70, Volume
II, which reads as under:
"...Q. What is the normal range of sodium level for a
normal man?
Ans. Normal range of sodium level has been
mentioned 130 to 149 meq/l.
Vol. In the discharge sheet it is mentioned that the
patient had hyponatremia.
Q. What is hyponatremia?
Ans. It means the quantity of sodium level is less than
the normal range.
Q. What are the consequences of the lower sodium
lever?
Ans. I am not able to answer this question as this case
is 22 years old..."
37. He pointed out that while Lala Hansraj Gupta was admitted in
AIIMS, his sodium level was last checked on 20.05.1985 and was
129 meq/l which was again less than the normal range. After
20.05.1985 and till Lalaji was discharged, his sodium level as per
the records as not checked. This fact itself discredits the
statement made in the discharge summary that "hyponatremia
was corrected". If the sodium level had not been checked at the
time of discharge and the latest report on sodium level recorded
below normal, there was no justification to record in the
Discharge Summary that "Hyponatremia was corrected"."
38. Mr. Chandhiok also submitted that even otherwise, condition of
the testator was very serious on the date of discharge. The
testator was discharged on 24.05.1985. On the night of
23.05.1985, the testator had started bleeding. Two units of
bloods had to be transfused on the last day in the Hospital and
this fact was recorded in the Discharge Summary. Mr. Shivraj
Gupta was cross examined regarding his stay in the hospital on
the night of 23rd - 24th May, 1985. The relevant extract reads as
under:
"...Q. You have stated in you deposition that you stayed on the
night of 23rd and 24th May, 1985 and knew the condition of Lalaji
on those days. In what condition you found Lalaji on that night.
Ans. Lalaji was bleeding profusely through the rectum. Three
times his sheets had to be changed. On my approaching Dr.
S.M. Singh, two units of blood were administered to Lalaji. Most
of the night, he did not know whether I was there or not. He
was in a comatose condition. I even went to the extent to
remove part of his beard because I felt it was creating
discomfort to hi. He did not even notice, which made me feel
totally bad about his physical and mental condition..."
39. In this backdrop submitted the learned Senior counsel, the onus
to prove that the testator was in sound disposing mind, was upon
the appellant, viz., the propounder of the Will. It was for him to
satisfy the conscience of the Court that the instrument so
propounded is the last Will of a free and capable testator.
Reference was made under Section 59 of the Indian Succession
Act and particularly Explanation 4 thereof, as per which no
person can make a Will while he is in such state of mind, whether
arising from intoxication or from illness or from any other cause
that he does not know what he is doing. His submission was that
illustrations to Section 59 make it clear that a mere perception of
what is going on in the immediate neighborhood and an ability to
answer familiar questions but without competent understanding
as to the nature of his property or persons who are kindred to
him or in whose favour it would be proper that he should make
his Will, will not be the enough proof of a sound mind within the
meaning of Section 59 of the Indian Succession Act. The
statutory explanations are not intended to be exhaustive to give
practical illustrations to explain a sound disposing mind.
40. It was finally argued that the appellant failed to lead any
evidence on physical as well as mental health of the testator
after his discharge on 24.05.1985. It was submitted that Dr.
Singh was concerned with the testator only upto 24.05.1985.
Will in question was purportedly executed and registered on
28.05.1985 and/or 29.05.1985. It was, therefore, incumbent
upon the testator to show the sound mental condition of the
testator as on these dates. The propounder, however, failed to
do so.
41. We have considered the aforesaid rival submissions. Medical
condition of the testator, at the time when the Will is purportedly
executed, is not in dispute. What required to be considered is
the effect of this medical condition on the mental faculties of
testator to find out as to whether he could be in sound disposing
mind at the relevant time. In order to have full canvass and
complete picture thereupon to enable us to glance all the
nuances, following aspects need a brush of paint:
(1) Medical condition of the testator while in the hospital.
(2) Hyponatremia specifically effect, if any, of the
medical condition on the mental faculties of the
testator.
(3) Circumstances of discharge from the hospital on
24.05.1985.
(4) Medical condition on 28th /29th May, 1985 and
thereafter.
(5) Suspicious circumstances.
(6) Re: Discharge of onus by the propounder.
42. We shall begin with tracing the medical history of the testator
during that period and then link it to the mental condition in
which he could be on 28.05.1985.
Re: Medical condition of the Testator while in AIIMS:
43. Complete medical record of the testator was filed by the
appellant in the Trial Court. The said record was filed before us
also in Volume- IV which runs into 432 pages. This record reveals
that on 13.04.1985, the testator was admitted to AIIMS. He was
82 years of age at that time. On 17.04.1985, the testator was
operated for prostrate. However, during post operative period,
certain complications developed like (i) urinal tract infection, (ii)
failure of control of diabetes and (iii) bleeding piles. Perhaps
these were the reasons that the testator was not discharged from
the hospital within few days after surgery for enlarge prostrate
on 17.04.1985. Instead, he continued to remain in hospital for
more than one month for treatment of these complications. This
would clearly signify that even if the testator was initially
admitted in the hospital because of his enlarge prostate, the
ailment was not confined to that alone. He was treated for other
ailments including ones mentioned above for which he remained
in the hospital.
44. In the hospital, there was a regular blood transfusion of the
testator, i.e., on 09th, 13th, 15th and 23rd May, 1985. In fact on
23.05.1985, that is one day before he was discharged from
hospital, he was administered two units of blood. As we shall
notice later, this continued even after his discharge, when he was
at his residence. This would show that the patient was suffering
from anemia as well.
Re: Hyponatremia specifically effect, if any, of the
medical condition on the mental faculties of the testator.
45. Coming to the disease hyponatremia specifically, again it is not in
dispute that the testator was suffering from this disease as well.
The appellant has argued that his hyponatremia was controlled
and there was no problem as such on 24.05.1985 (when he was
discharged) or thereafter. The respondents have joined the issue
on this aspect. What the medical record reveals? On 17.04.1985
when the testator was admitted to hospital, his sodium level was
118 meq/l. As per the statement of the appellant‟s own witness
Mr. B.N. Gupta (PW-2), normal range of sodium level for a normal
man is 130-149 meq/l. When sodium level is below the normal
range, patient would be suffering from illness called
hyponatremia. Thus indubitably on 17.04.1985, the testator was
hyponatremic. Medical record further reveals that sodium level
has been swinging up and down during the period he remained in
the hospital and thereafter. However, sodium level was not
checked after 20.05.1985. The appellant pleads that it is
because of the reason sodium level was controlled and there was
no reason to record/check it thereafter. According to the learned
counsel, even the discharge summary on 24.05.1985 records
that diabetes and hyponatremia were correctly managed. It is
difficult to accept this submission. First of all, sodium level was
lastly checked on 20.05.1985 and from that date to 24.05.1985
(when the testator was discharged) it was not checked. Even on
20.05.1985, sodium level was below (though marginally) the
desired level, i.e., 129 meq/l as against normal range which is
130 to 149 meq/l. What needs to be emphasized is that in such a
situation it was not proper not to measure sodium level on
21.05.1985 and thereafter and then record that it was managed.
46. Even subsequent history of this ailment belies that claim. Though
it is not known as to what was the sodium level on 24.05.1985,
as it is not recorded, medical record reveals that the sodium level
of the testator from 25.05.1985 was as under:
Sodium Level
Date
25.05.1985 130 meq/l
29.05.1985 122.1 meq/l
01.06.1985 118.9 meq/l
05.06.1985 122.5 meq/l
10.06.1985 120.6 meq/l
14.06.1985 128 meq/l
17.06.1985 121.9 meq/l
18.06.1985 127 meq/l
20.06.1985 124 meq/l
47. This would demonstrate that hyponatremia was not corrected,
though it is so stated in the Discharge Summary on 24.05.1985.
Further, such a statement has appeared without even measuring
sodium level of the patient on that day or even immediately
preceding date.
48. Be as it may, the most relevant dates are 28th and 29th May,
1985. The sodium level on these dates is much below the
normal level. This condition continues even after 29.05.1985 till
the demise of the testator. When we take the overall condition
of the testator from 17.04.1985, it is difficult to accept that
hyponatremia was corrected. May be on few days, it went above
125 meq per liter. However, the swings in the sodium level
before 24.05.1985 rapidly and frequently going down below
normal and after 24.05.1985 would indicate that the testator had
not recovered from this illness.
Re: Circumstances of discharge from the hospital on
24.05.1985.
49. The medical record, thus, proves that though the testator was
initially admitted in the hospital in AIIMS for enlarged prostate
operation, diagnosis in the hospital revealed him as suffering
from acute diabetic as well as hyponatremic. Accepting his old
age and frailed health, he was a case of acute anemic as well
who needed regular blood transfusion.
50. In this backdrop, we proceed to examine as to whether his
discharge from hospital on 24.05.1985 was proper? The
Discharge Summary on 24.05.1985 clearly records that the
patient wanted to go home "at his request, calculated risk
explained". It is clear that the doctors attending him had not
certified that that patient had recovered and was fit to be
discharged. The authorities at AIIMS were cautious enough to
put the remarks that the testator was going home not only at
this request, but there was calculated risk on such a move. We,
therefore, do not find any infirmities in the finding of the learned
Single Judge that the discharge of the testator was against the
medical advice. Maybe, the patient had become irritated who
was in the hospital for more than one month by that time and
wanted to go home. However, that would not mean that even
the doctors at AIIMS found that it was risky to discharge him, still
the appellant would take such a risk in making the patient leave
the hospital. The appellant was in a better position to clear the
mist. He, however, chose not to appear in the witness box. He
chose to take risk insofar as life of his father was concerned, but
could not afford to take the risk of facing onslaught of cross-
examination at the hands of the objectors.
51. Even if we presume that he was temporarily taken home so that
there is a change in atmosphere, he was never brought back to
the hospital. It is in spite of the fact that while at residence, the
medical condition of the patient, as demonstrated from the
records, did not show any sign of improvement.
52. In this scenario, three important aspects need to be noted at this
juncture, viz.:
(i) The testator was got discharged by the appellant and
his son who even signed consent form and gave the
undertaking.
(ii) Will in question crops up within four days of the
discharge when the testator was still sick (by no
means, it is suggested that a person who is suffering
from illness cannot execute the Will). This could be
happen even in the hospital if the testator so desired.
This, however, creates a suspicious circumstance,
viz., getting the patient discharged on a date when
he is not fully recovered and Doctors have not
advised so, that too by the propounder of the Will
and the Will purportedly getting executed within four
days thereafter. Had the Will been executed while
he was in the hospital, Doctors attending him would
have been in a position to certify whether the
testator was in a sound disposing mind or not. Not
only that is not done, as is clear, even when the
testator was attended by Doctor Madan Lal at his
residence, no certification from him is obtained to
the effect that he was in sound disposing mind.
(iii) It has come on record that the patient was got
discharged and taken home for a period of three
days with an intention to bring him back. This would
mean that he was to be brought back on 27.05.1985.
Even the room was kept locked for him. However,
this was never done even when the patient had not
recovered from the ailments which he was suffering.
However, he was never readmitted to the hospital.
We shall discuss these aspects in detail at a later stage while
dealing with the issues as to whether the appellant has been
able to give satisfactory explanation to the suspicious
circumstances or not. At this juncture, these aspects are
highlighted to demonstrate that the circumstances in which the
testator was discharged, do not augur well with the appellant.
Re: Medical Condition on 28th /29th May, 1985 and
thereafter:
53. As pointed out above, the most relevant dates are 28.05.1985
and 29.05.1985 when the Will in question is purportedly
executed and registered. Medical records for these dates have
also been discussed above. It shows that even after the
discharge of the testator and while he was at his residence, he
was given blood transfusion. Further, he continued to suffer
from hyponatremia as well. ON 29.05.1985, it was 120.1 meq/l.
Re: Effect of the medical condition on the mental
condition of the testator, if any:
54. Having regard to the medical condition of the testator viz. the
ailments with which he was suffering, as described above, can it
be said that the testator was having sound and disposing mind
on 28th or 29th May, 1985? Here is a person who is 82 years of
age. He remained in the hospital from 17.04.1985 till
24.05.1985. During this period, he got operated for enlarge
prostate. He was suffering from diabetes. He was a case of
acute anemesia, who needed blood transfusion at regular
intervals. Above all, he was a case of hyponatremia as well.
55. What would be the mental condition of a frail person at this ripe
and advanced age suffering from so many ailments? More
particularly, when some of these ailments had direct bearing on
his mental state including acute anemesia warranting blood
transfusion at regular intervals and hyponatremia. The
consequences of hyponatremia are accepted by the appellant‟s
own witness Dr. S.M. Singh (PW-3). It is an accepted case that
hyponatremia occurs when sodium level has been overdiluted in
the body. It could be the result of drinking enormous amount of
water, as people with certain psychiatric disorders occasionally
do. In Harrison‟s Principle of International Medicines, the
adverse effects of hyponatremia are as under:
"Clinical manifestations & Neurologic dysfunction is the
principal clinical manifestation of hyponatremia. It is due
to intracellular movement of water, leading to swelling of
brain cells. The severity of symptoms is related both the
degree of hyponatremia and to the rapidity with which it
develops. In chronic hyponatremia, the degree of brain
swelling caused by any given reduction in body fluid
osmolality is reduced because solute, largely potassium
chloride, is lost from the cells. Patients may be lethargic,
confused, stuporous, or comatose. If hyponatremia
develops rapidly, signs of hyperexcitability such as
muscular twitches, irritability and convulsions may occur.
Hyponatremia rarely causes clinical symptoms when
plasma sodium is above 125 meq per liter, although
symptoms may occur at higher levels if the decrease in
concentration has been rapid..."
56. It is clear that severe hyponatremia has causal connection with
brains and it causes brain swelling. Patient becomes lethargic,
confused, stuporous, or comatose. Thus, the physical condition
and the ailments from which the testator was suffering would
normally have bearing on his mental state of affairs.
57. It is not at all suggested that it had definitely led to the condition
where the testator was not in a fit mental condition to
understand or fully comprehend the nature and effect of the Will.
What is highlighted is that in this scenario, onus is on the
propounder of the Will, i.e., the appellant becomes very onerous
to prove that the testator was mentally competent to execute
the Will. To executing the Will is not merely a physical act, but a
mental act on the part of the testator. Thus, the duty was cast
upon the appellant to demonstrate on record that the testator
fully understood and comprehended the nature and disposition
of the Will. Whether the propounder of the Will has satisfactorily
discharged his burned, is the question? If not, the effects of the
ailments which normally occur. On the mental capacity, as per
medical science, shall have to be presumed.
58. According to the appellant, PW-1, Mr. S.K. Tewari and PW-3, Dr.
S.M. Singh have deposed on the soundness of the mental
condition of the testator. Insofar as Dr. S.M. Singh is concerned,
he has accepted the clinical manifestation of hyponatremia as
well as the ailments itself. The relevant portion of his cross-
examination on this aspect had already been reproduced above.
As per his own testimony, patient becomes lethargic, confused,
stuporous, or comatose. If hyponatremia develops rapidly the
signs of hyperexcitability such as muscular twitches, irritability,
and convulsions may occur. Admittedly, Dr. S.M. Singh had
attended the patient only till 24.05.1985 when he was
discharged from AIIMS. We have already observed that it is
difficult to believe, on the basis of medical history, that
hyponatremia was corrected by that date. We have also pointed
out glaring suspicious circumstances in which the testator was
discharged from the hospital on 24.05.1985.
59. More emphatically, no evidence of post discharge on the mental
health of the testator has been led, apart from PW-1. The Doctor
who treated the testator after his discharge at his residence was
Dr. Madan Lal. He has not been produced. Though there was
much debate as to whether it was for the appellant or the
respondents/objectors to produce Dr. Madan Lal, in view of the
fact that initially onus is upon the propounder of the Will, we are
of the opinion that it was for the appellant to examine Dr. Madan
Lal, as per the appellant had examined the testator even few
minutes before the execution of the alleged Will.
60. This leads us only with the evidence of PW-1, who has made
some statements about the mental condition of the testator. We
are, however, of the opinion that his testimony is not worthy of
reliance at least for two reasons:
(1) He appeared to be interested witness as rightly
concluded by the learned Single Judge.
(2) When so many suspicious circumstances exist, which
create doubt on the genuineness of the Will, mere
statement of PW-1, who is not a medical person or
expert in the field, is not sufficient to dislodge those
suspicious circumstances.
Re: Unreliability of PW-1
61. Some of the glaring circumstances, which is creeping in the
testimony of PW-1, as brought out during his cross-examination,
discredit his testimony making him unreliable and difficult to
accept. We reproduce below few of them:
(a) He has stated that sometime in the second week of
May 1985, probably on 13th /14th May, 1985, he was
summoned by the testator and was asked to draft
the Will for him. However, when he went with his
draft to the testator, he did not approve that draft
and suggested certain alteration and modifications.
When PW-1 again went back to the testator with his
draft, the testator did not even look into the Will
prepared by PW-1 and instead asked him to go to the
adjoining TV room where the Will was lying in a
drawer. This testimony puts a question mark on his
deposition that the testator had called him and asked
him to draft a Will inasmuch as if the testator already
had a draft lying at home, he would have told his
son/ wife to get the Will from home and given it to
witness for getting it fairly typed and registered.
This aspect has already been discussed above and
highlighted by the learned Single Judge.
(b) PW-1 further testified that the testator wanted his
opinion on that Will with some changes pointed out
by him. At request of the testator, he read out the
Will after incorporating the alterations which the
testator wanted and some he also suggested
regarding estate duty. He was asked to draft
another Will. So the PW-1 drafted another Will and
took that draft to the testator. Some more
alterations were suggested by the testator and the
Will was got retyped and again the witness went
there on the next day in the morning with the draft of
the Will and the testator after reading it approved it
and signed the same. The testator was at that time
82 years of age. He was got discharged from the
hospital only for three days before, at the instance of
the petitioner himself and within these three days,
the second Will was prepared and it was registered
on 29.05.1985. The first Will was finalized in the
hospital. It is not known that how properties were
bequeathed in the first Will. It is also not known
what prompted the preparing of a second Will, when
first Will was finalized only a week back. This creates
grave doubt about the mental soundness of the
testator and about genuineness of the Will.
(c) There are some doubts about the execution of the
Will, viz., whether it was on 28.05.1985 or
29.05.1985. PW-1 in his attestation to the probate
petition at the foot had verified that he was present
at the time of the execution of the Will dated
28.05.1985. In his testimony, however, he has
stated that Will was not executed on 28.05.1985, but
was actually executed on 29.05.1985 and registered
on the same day.
(d) PW-1 made an attestation to probate petition even
before the petitioner himself had signed the petition.
He has accepted that he had attested the petition on
30.09.1985 whereas the propounder/appellant had
signed and verified on 08.10.1985. It is not a
comment on the irregularity in signing the
attestation before the petitioner signs the petition. It
is a reflection on the conduct of PW-1, as brought out
by the learned Single Judge. The account given by
PW-1 about the registration of Will also does not
inspire the consequences. It is understandable that
because of sickness of the testator, intention could
be to get the Will registered by calling the Sub-
Registrar at the residence. However, the narration of
circumstances in which this was given castes
suspicion. Dr. Madan Lal, who was attending the
testator at the residence from whom PW-1, as per his
version obtained a certificate about the illness of the
testator. Strangely, he did not disclose the purpose
for which he was seeking the certificate. Although he
had obtained the certificate from him about inability
of the testator to move out of his house, he did not
ask Dr. Madan Lal to be a witness to the Will and
opined that the testator was mentally sound. This,
notwithstanding, the fact that Dr. Madan Lal was
very much available and was present.
(e) PW-1 has stated that he did not disclose to anyone
including wife of the testator, sons and their wives
about the purpose of visit when he was purportedly
asked by the testator to come to the hospital
allegedly for preparation of the Will. When the
testimony of PW-1 along with cross-examination is
ready in its entirety, it gives an impression that on
vital aspect the witness either falters or did not give
satisfactory reply or evaded the answers. Some of
these pointed out by the learned counsel for the
objectors are as under:
"Signing, Attestation and Registration of the Will: I
do not recollect having told anybody that the will was
signed and attested on 29.05.1985.
It is correct that the last paragraph of the Will indicates
that it was signed and executed on 28.05.1985.
I had noticed that the date i.e. 28.05.1985 had been
typed in the draft. (Question: According to you this Will
was signed and executed on 29.05.1985. Why did you
not show this date at least under you own signatures?).
I did not have any authority from L. Hans Raj to present
this Will before the Sub-Registrar, but I was authorized by
Lalaji orally to do it.
Both versions, i.e., one contained in the declaration (of
the Probate Petition) and the other in Examination-in-
Chief that the Will was executed on 29.05.1985 is correct.
I did accompany the representative of the Sub-Registrar
to the Sub-Registrar office on 29.05.1985.
I do not remember the date on which I took back the will.
The suggestion that I represented to the Sub-Registrar
that the testator was seriously ill and was likely to die any
moment and therefore his Will should be registered on
that very day is not correct.
It is not correct that because of my representation the
officers said that he had no time to go and he will send
one of his subordinates.
After the formalities were complete at the residence of
Lalaji, Shri Kwatra had given me the receipt which was
duly signed by him in presence of Lalaji to collect the
document on the date written on the receipt under his
signature and therefore I had no occasion to see as to
who signed the documents and at what time. Whether he
had any authority or not that I do not know.
I had not read over the Will in the presence of the witness
but they might have read it themselves before they put
their signatures (on 29th May).
My father had gone through the Will curiously before
signing it. I cannot say about Bibiji. She knew only a bit
of English. The original of Ex.P.W. 1/D1 was also signed in
the presence of the attesting witnesses. The Will was
signed first and thereafter the original of PW1/D1. These
were signed with the pen by Lala Hans Raj Gupta. I do
not remember whether the witness also signed with the
same pen. (Question: I put it to you that the subject
matter of the Will was not known to any of the attesting
witness).
Background of Shri S.K. Tewari and his father Mr.
M.P. Tewari: M/s. H.G. Gupta and Sons, M/s. Madho Ram
Budh Singh and I think I have represented in a case of
M/s. Mridula Enterprises (Q. Which firm).
Except for Rampur Engineering Company Ltd., I have not
worked anywhere any capacity at any time (Q: Have you
worked as an employee in anyone of the other companies
or the firms with which Shri Desh Raj Gupta has
connections?
I am retained by Rampur Engineering Company Ltd. and
Hans Raj Gupta and Company P. Ltd. but I do not know
whether Shri Desh Raj Gupta has any connection with any
of these two concerns except as shareholder.
My father has not resigned from all the companies. It is
however, correct that from some of the companies he has
resigned and in his place Shri Shiv Dutt has been
appointed as a Secretary. He has been appointed as
Secretary by Shri Shiv Raj Gupta.
I might have drafted the partnership deed of M/s. H.G.
Gupta and Sons after the retirement of Shri Desh Raj
Gupta.
The reason on account of which Lala Hans Raj Gupta
selected me for appointing me as a retainer in two of his
companies Rampur Engineering Ltd. and Hans Raj Gupta
P. Ltd. The same reason must have prevailed on that
account. (Q. What was the special reason of selecting you
for drafting the Will when he himself according to your
own statement was MA, LLB and other eminent lawyers as
his friends and advisors more senior than yourself)."
62. Keeping in view the aforesaid interest of PW-1, learned Single
Judge has made following observations in the impugned
judgment:
"Counsel for the petitioner in this case was Mr. L.R. Gupta and the
witness S.K. Tewari admitted during cross-examination that he at
one point of time had worked as junior of L.R. Gupta from 1965 to
1970-71. He also admitted that he worked as an apprentice with
Rampur Engineering Company Ltd. of which Lala Hansraj Gupta
was the Chairman and Sh. Des Raj Gupta was the Technical
Director/Managing Director. The cross-examination of witness
showed that he had been associated with Des Raj Gupta for a
long. The petitioner in the capacity of an Advocate/Legal Advisor
had been on good terms with Lala Hansraj Gupta also. Not only
he, but his father was working with Lala Hansraj Tupta since 1940
or 1942 and the witness knew almost all the family members of
Lala Hansraj Gupta and also knew that Sh. Rajender Kumar Gupta
and Sh. Ravi Gupta were not on talking terms.
Apart from above circumstances, another circumstances which
throws doubt on the genuineness of the Will is that the petitioner
himself took eminent part in the execution of the "Will" which
conferred a substantial benefit on him. In the present case, it was
the petitioner and his son who brought Lala Hansraj Gupta to their
home. PW-1 was an Advocate working for Lalaji and the petitioner
and had also been looking after some of the legal work of the
petitioner. The petitioner is a major beneficiary under the Will.
The petitioner, who had assured in the hospital that Lalaji would
be re-admitted in the hospital after three days, did not get Lala
Hansraj Gupta re-admitted. The petitioner did not appear in the
witness box. All these factors create doubts about genuineness of
the Will. I therefore, come to the conclusion that the "Will" dated
28.05.1985 allegedly executed on 29th May, 1985 was not a
genuine and valid "Will" of Late Lala Hansraj Gupta. The issue is
decided accordingly."
63. Further, the propounder has not been able to lead any
satisfactory evidence to remove the suspicious circumstances.
That apart, the suspicious circumstances, which are projected by
the objectors are the following:
(a) Signature on the Will: The alleged signatures of the
testator on 29.05.1985 at the time of registration of the
alleged Will is very shaky and, in fact, unrecognizable. At
two places on the back of the first page of the Will, Lalaji is
alleged to have signed when the representative of the Sub-
Registrar had visited his residence for registration. Both
these signatures alleged to be that of Lalaji, are, on the
fact of it, very shaky and doubtful.
(b) Manner of discharge from AIIMS: The procedure and
manner in which Lalaji was discharged from the hospital on
24.05.1985 with Deshraj Gupta, the propounder of the Will
signing a hand-written note with the endorsement "I am
taking the patient home for 3 days by docto‟s permission
from 4.00 pm on 24.05.1985 to 27.05.1985 10.00 am."
Consent Form signed by Ravi Raj Gupta (son of the
propounder) with the endorsement "we will bring the
patient on Sunday". On this Consent Form, Dr. S.M. Singh
(WP-3) endorses, "payment will be paid by them tomorrow.
Responsibility is mine". No explanation has been put
forward by the propounder as to why Lalaji did not himself
sign any document of discharge, when it is alleged that the
discharge was sought by Lalaji on his own. It is pertinent to
note that Lalaji signed on the consent form for being
operated on 17.04.1985 and is also claimed to have signed
at 8-9 places on the alleged Will on 29.05.1985.
(c) Room was kept reserved in AIIIMS for three days as a
special circumstance due to Lalaji being a borderline case.
(d) Serious doubt with regard to the condition of mind of the
testator: Discussed under "sound and disposing mind".
(e) Disposition being unnatural and unfair: The wife of the
testator as well as the daughters of the testator have been
totally excluded from the disposition and the propounder
and his sons getting substantial benefit under the Will.
The Supreme Court in a catena of cases has held that the
Court must satisfy its conscience as regards the execution
of the Will by the testator and the Court would not refuse
to probe deeper into the matter only because the
signatures of the testator of the Will is otherwise proved.
(See Niranjan Umedchandra Joshi Vs. Mrudula Jyoti
Rao and Ors., (2006) 13 SCC 433; B. Venkatamuni Vs.
C.J. Ayodhya Ram Singh & Ors., (2006) 13 SCC 449 and
Apoline D'Souza Vs. John D'Souza, (2007) 7 SCC 225).
(f) The propounder, Deshraj Gupta having retired from family
business:
"...It is correct that during the life time of Lala Hansraj
his sons, daughters and grand children constituted a
happy family, excepting Shri Desh Raj Gupta, the
petitioner herein, who had retired from all the business
of the family..."
"...He was discussing business mattes with Rajendra
Gupta as well. While I way this because in 1971, Deshraj
Gupta asked for a partition from the family business. He
opted out of the partnership of H.G. Gupta & Sons and
resigned from the Board of Directors of Rampur
Engineering Company Ltd. and Hansraj Gupta & Co. Pvt.
Ltd. A situation came in the joint meeting of the family
with Lalaji and all the four sons. It was decided that I be
given the charge to head and manage the business when
he became the Mayor of Delhi, as he would not have the
time to be able to manage the family business. Deshraj
Gupta the elder son was upset and he opted to get out of
the business. He was not reconciled to the fact a
younger brother appointed to head the family business.
He sent his resignation from the Board of Directors of the
Companies. He even opted out of the partnership firm -
HG Gupta & Sons. He resigned from the partnership and
asked from money to be paid to him from the share of
the firm in 1971. An auditor, G.S. Mathur (Lalaji‟s
auditor) was appointed and all the firms audited to work
out to see what would be his share, which was
subsequently aid to Desh Raj Gupta. Thereafter, he was
not concerned with any business of the family. The
payment has been confirmed by Deshraj Gupta in Suit
No.1794 of 1986..."
Once Deshraj Gupta, propounder of the Will, had retired,
taken a share and started his own business, the disposition
in his favour and in favour of his children coupled with the
fact that neither Smt. Angira Gupta nor his daughters have
received any benefit clearly shows that the disposition is
unnatural and unfair. Also the contention of the appellant
is that the main objector, viz., Shivraj Gupta has "neither
given details not explained in his evidence as to how and in
what manner the petitioner has been a major beneficiary,
especially in view of the fact that the petitioner was
recipient of only 50% of the share of 20% of the testator in
Hansraj Gupta & Co. Pvt. Ltd. The rest of the benefits
received by the petitioner/appellant are the same as the
objector and other sons namely 1/4th of the testator‟s share
in the 2 immovable properties i.e. 3, Amrita Shergil Marg
and 20, Barakhamba Road. It may be noted that it is
settled law that the onus is on the propounder to prove the
execution and the sound mental capacity of the testator.
At the same time the suspicious circumstances which
surrounds the Will have to be removed by the propounder
of the Will. Thus the question of the Objector lending any
evidence is wholly misplaced and ill conceived. Even
otherwise, from the mere reading of the Will it transpires
that the major share in the properties of the testator has
either been given to Mr. Deshraj himself or to his sons.
Para 3 of the alleged Will reads as follows:-
" My interest and share in H.G. Gupta & sons and M/s
Mridul Enterprises partnership and their respective
goodwill be transferred to my grandsons, Raviraj Gupta
and Uday Gupta in the proportion of 3 to 1 and it is my
fervent desire that this partnership may continue as a link
between the family far as long as possible"
Para 8 of the alleged Will reads as follows:-
"8. All my shares and other interests that I have in M/s
Hansraj Gupta and Co. Pvt. Ltd. I wish that after my death
the same may devolve upon my son Shri Desh Raj Gupta
and grandson Shri Ravi Raj Gupta equally. I wish that the
said company be managed and controlled by my grandson
Shri Ravi Raj Gupta as is being done today and none of my
other legal heirs should raise any objection thereto".
It becomes quiet evident from the bare reading of the
above paras of the alleged Will that the major share in the
estate of the testator has either been given to Mr. Deshraj
himself or to his sons in particular his entie share and
interest in i) H.G. Gupta & Sons; ii) Mridul Enterprises; and
iii) M/s Hansraj Gupta & Co. Pvt. Ltd.
(g) Will kept secret from all except the Propounder
The Will is alleged to have been executed on 28 th May,
1985/29th May, 1985. Lalaji died on 3rd of July, 1985. On
29th July, 1985, the Propounder circulates the Will to the
brothers of the family. The Will is further alleged to be in
the custody of Angira Gupta, however, in her reply, no such
statement is made. S.K. Tewari, had kept a copy of the
Will before allegedly handing it over to Angira Gupta.
However, the propounder acted upon the Will on 12 of July,
1985. In the cross examination of Shri Shiv Raj Gupta this
fact has emerged on the record of the probate
proceedings, which are extracted below:-
"Ques: On what basis you say that no member of the
family other than Petitioner and his family were aware of
the existence of the Will?
Ans: Lalaji expired on 3rd July, 1985 and on 12th July, 1985
the Partnership of Mridul Enterprise was altered to suit to
Shri Deshraj Gupta and his family. It was only on 29th
July, 1985 that Shri Deshraj Gupta circulated the Will to
all brothers of the family. Therefore, this proves the fact
that only he was aware of the alleged Will much before
others."
The onus was on Deshraj Gupta i.e. the Propounder to lead
satisfactory evidence and discharge the burden placed on
him to dispel all suspicious circumstances. This Will was
kept a secret.
(h) Medical Condition (pre and post discharge) - Both Physical
and Mental: Though we may not agree with all the
aforesaid submission, we find that circumstances relating
to discharge of the patient from AIIMS, keeping of Will as
secret and physical and mental condition of the testator
are very serious objections, which create doubt about the
genuineness of the Will. In this hue, when we find that
disposition in the Will to the benefit of the propounder who
along with his sons is main beneficiary that too when he
had retired from the family business long ago, casts further
doubt. In such scenario, it was for the appellant to adduce
satisfactory by examining evidence to dispel these
suspicions. Instead, the appellant was satisfied by
examining PW-1 on the aspects of execution and mental
health. He examined PW-3 who attended to the testator
only while testator was in the hospital till 24.05.1985. Dr.
Madan Lal who was very material witness was not
examined. The Supreme Court has in Niranjan
Umedchandra Joshi (supra) has held that what was the
frame of mind of the deceased could have been best
stated by the Doctor who was attending on him. So much
so certificate issued by Dr. Madan Lal on the basis of which
Sub-Registrar was requested to visit the residence of the
testator for registration of the Will has also been withheld.
The propounder also did not examine Satish Kwatra,
instead examined D.N. Gupta, who had only deputed Satish
Kwatra and had no occasion to see the testator. Above all,
neither the appellant as propounder of the Will, nor his son
dared to enter the witness box who was in a better position
to dispel, if at all, the aforesaid suspicious circumstances.
If this is the quality of evidence examined by the appellant
by not caring to examine the relevant and most material
witnesses on these aspects, we have no hesitation to come
to the findings that the appellant has failed to discharge
his burden and erasing the suspicious circumstances.
64. Much case law was cited on either side in support of respective
contentions. Legal position contained in these judgments cannot be
disputed. In fact, we have already given proper narration on this.
Applying principles to the facts of this case, it is, therefore, not
necessary to deal with each and every judgment cited by the
counsel for the parties to avoid unnecessary burning of this
judgment.
65. The upshot of the aforesaid discussion would be to agree with the
findings of the learned Single Judge. Finding no merit in this appeal,
we accordingly dismiss the same with costs.
(A.K. SIKRI)
JUDGE
(AJIT BHARIHOKE)
JUDGE
JULY 14, 2010.
pmc
