Mahabir Prasad & Another vs State
2010 Latest Caselaw 4525 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                                                   Reserved on: 04.05.2010
                                                                Pronounced on: 27.09.2010


+                             Test Case No. 30/1989 &
                    IA Nos. 6806/2000, 815/2009 and 1618/2010


       MAHABIR PRASAD & ANOTHER                                       .......Petitioners

               Through : Mr. Sidharth Yadav, Advocate

                                        Vs.
       STATE                                                          ....... Respondent

Through : Sh.Amit S.Chadha, Sr. Advocate with Mr. Rajat Navet and Mr. Jitender Ratta, Advocate for Respondents 4 and 5.

Mr. Ritesh Sharma, Advocate for Objector No.6

CORAM:

MR. JUSTICE S. RAVINDRA BHAT
1. Whether the Reporters of local papers
may be allowed to see the judgment?                   YES
2. To be referred to Reporter or not?                 YES
3. Whether the judgment should
be reported in the Digest?                            YES
MR. JUSTICE S.RAVINDRA BHAT
%

1. This proceeding concerns the claim for probate in respect of the Will of late Sh. Krishna Prasad, who died on 13.03.1982. The petitioner (hereafter called "Mahabir Prasad") is concededly the son of the testator; the Will of which Probate is sought is dated 28.01.1982. The testator had three children - Gobind Prasad, Mahabir Prasad and Kanti Prasad. Gobind Prasad had pre-deceased the testator and was survived by his children - i.e. Gopal Prasad, Gita Chatterjee, Jagriti Gaur and Yamini Mishra. Gobind Prasad was survived by his widow, Smt. Satyawati Prasad, who during the pendency of the present case, died on 24.04.2007.

2. It is contended that in terms of the recitals of the Will, the testator bequeathed his

Test Case 30/1989 Page 1 property, i.e. A-16 Maharani Bagh to Sh. Mahabir Prasad entirely, besides all other movables and personal assets. The petitioner seeks probate only in respect of the said immovable property. It is contended that the cause for approaching the Court arose on 13.02.1982 when the testator died.

3. After citation was published and notices were issued to the testator's heirs, Sh. Gopal Prasad, the third objector, filed his reply, submitting that the Will is not genuine. Sh. Gopal Prasad also contends that the plot upon which the subject property was constructed was purchased out of HUF funds and amounts invested by late Sh. Gobind Prasad, the pre-deceased son of the testator. Sh. Gopal Prasad also contends that the Will was forged and is a fabricated document and that the property has to devolve in one-third proportion to each branch of the testator's family. In the additional pleas, Sh. Gopal Prasad argues that the property was purchased in 1965 from the Maharani Bagh Cooperative House Building Society of which the testator became a member in 1959; it is also submitted that the testator was karta of HUF and that he invested ` 21,000/- on 20.04.1959 in the Society - an amount which had accrued on him on sale of Zamindari Abolition Bonds in 1958 and partly from rent and so on. It is also submitted that Gopal's father, i.e. Sh. Gobind Prasad had sent ` 16,000/- in 1961 from Bareilly and was used to acquire the suit property. Sh. Gopal Prasad argues that the late testator was trying hard to raise amounts for constructing upon the suit property for which purpose Sh. Gobind Prasad, his father had given total amount of ` 19,500/- during the period 1966-1968. It is submitted, therefore, that the testator had no bequeathable interest which he could have parted through the Will.

4. Ms. Yamini Mishra filed objections sometimes in 1993, contending that the Will propounded in this case is not genuine or enforceable as it was executed only 14 days before the death of the testator who was allegedly suffering physically for some months before its execution. Ms. Yamini Mishra mentions about a previous registered Will dated 08.10.1969 which was revoked by the Will sought to be propounded in this case. She also alleges that the testator was not permitted to meet his relatives before his death and that he requested her (Yamini) not to meet him by letter dated 28.10.1981. It is alleged that the circumstances under which the Will was executed are shrouded in suspicion. Ms. Yamini Mishra also contends that

Test Case 30/1989 Page 2 there is sufficient evidence suggesting that the property in question was bought and built with the funds of one of the objectors and that the common HUF amounts and even Streedhan and, therefore, he (the testator) was not its absolute owner. The objection refers to a letter dated 03.04.1971 in which the testator mentioned about his having sold her jewelleries and using them for construction of the house on the suit property. It is also contended that the Will was procured by fraud, coercion and undue influence.

5. Ms. Gita Chatterjee and Ms. Jagriti Gaur preferred common objections - in 1995 through an application alleging that the signatures of the testator were obtained under force and coercion and that the Will was not known to any objector. They also submitted that the testator, at the time of his death, was under Mahabir Prasad's control and influence, and was an old, infirm man of about 90 years not possessed of conscious mental faculties and thereby denuded of requisite testamentary capacity. They also submit that the testator had invested HUF funds in the purchase of the property derived of Zamindari Bonds and, therefore, he did not possess testamentary capacity. These objectors, further, argued that no cause of action arose and that the petition seeking probate is not maintainable as it is vitiated by delay.

6. On 28.04.2008, this Court framed the following issues for consideration:

(i) Whether the Will dated 28.01.1982 was executed by late Sh. Krishna Prasad while in sound, disposing mind of his own free. OPP;

(ii) Whether the petitioner is entitled to probate in respect of the Will. OPP;

(iii) Relief.

Issue No.1 & 2 -

7. The Will is marked as Ex. P-1; the material portions of the same are extracted below:

"XXXXXX XXXXXX XXXXXX I had three sons, namely Govind Prasada, Mahabir Prasada and Kanti Prasada. The eldest Govind Prasada passed away last year.

Govind Prasada incurred considerable losses in his businesses and I met them from my personal income. At the time of the family settlement, he desired to Test Case 30/1989 Page 3 be paid off completely on that occasion as part of family settlement not only his full share of ancestral property but also all the further inheritances that I wished to settle upon him or his family, to enable him to make a fresh start of life at Bareilly. Accordingly, I gave him a much larger slice of land in plot No. 179, Civil Lines, Bareilly, and also a sum of Rs. 20,000/- from my pocket.

Govind Prasada has left his property in disarray, and his wife and children are suffering hardship. It is my duty to help them set on their feet.

My son Mahabir Prasada also incurred losses in his business and I have met a part of them out of my personal income.

I have been staying for more than 25 years with Mahabir Prasada and his wife Girish Kumari Prasada in their house, and they have lavished much hospitality and love and bestowed every care upon me.

My third son Kanti Prasada emigrated to Canada nearly 30 years ago and has settled down there. By grace of God, he is in affluent circumstances.

Govt. of India agreed to allow me to remit Rs. 75,000/- to him, which I have done. His two daughters Usha and Uma also are self-reliant and above want.

Out of my personal earnings, I have acquired on sub-lease from Govt. of India through Maharani Bagh House Building Coop. Society, New Delhi, a plot of land bearing No. A-16 (revised No.2, „A‟ Rd.) and on it have constructed a two-unit bungalow completely detached except for a common drive-way. That bungalow and my savings bank accounts in the State Bank of India, Main Office, Parliament Street, New Delhi, and in the Bank of India, East of Kailash Branch, New Delhi, are all the property I possess.

I am deeply impressed by Sant Kabir Das‟s concept of wealth:

"(in hindi) sai itna dijiye jaa mein kutumb samaye Main bhi bhuka na rahun, sadhu na bhuka jaye"

Of course, one‟s wants and those of one‟s family have prior claim on one‟s wealth. But there is a larger family outside - the family of humanity - which suffers from deep misery on account of poverty and disease. It also deserves consideration. Out of fellow-feeling for them, I have Instituted the Pandit Het Ram, C.I.E., Public Charitable Trust (named after my father). The Secretary-cum- Treasurer of Trust is Shri M.M. Bhagat (address: 3-B „Vandhana‟, 11, Tolstoy Marg, New Delhi-110001). It is my ardent wish that it should be kept alive for at least six years from now, i.e., upto 1981-‟88.

I appoint my son Mahabir Prasada and his wife Girish Kumari Prasada to be the joint executors of this my Will.

Test Case 30/1989 Page 4 I direct them to pay all taxes and the death duty and to discharge all my liabilities form the property I am leaving behind.

I direct them to make the following payments after my death:-

i) Rs. Ten Thousand per year upto 31st March 1988, to Pandit Het Ram, C.I.E., Public Charitable Trust;

ii) Rupees Five thousand per year for five years commencing from within 12 months of my death to Gopal Prasada, S/o Govind Prasada, or, in the event of his prior death, to his mother or sisters;

iii) Rupees five thousand per year to each of Usha and Uma, daughters of Kanti Prasada, within 5 years of payment of estate duty, if it is leviable. If not leviable, within 5 years of my death;

iv) Rupees One hundred per month to my servant Dal Chand during his life- time. The payment to start immediately on his attaining the age of 65 - his age on 1-1-1982 may be assumed to be 58 - or when he ceases to earn his livelihood owing to old age or ill health, whichever contingency occurs earlier. Subject to the charges created above, I give, devise and bequeath all my personal estate and all the property to which I am entitled at the time of my death to my son Mahabir Prasada and his wife Girish Kumari Prasada, Joint Executors of this my Will, in equal shares absolutely and foreover.

XXXXXX XXXXXX XXXXXX"

8. To prove the Will, the petitioner relied upon the statement of Lt. General Jasbir Singh Bawa (PW-1), who deposed by affidavit dated 10.05.1994. PW-1 claimed acquaintanship with the testator in connection with the DPS Society of which he (the witness) became a member in 1980. The testator was a senior and respected member of the society, previously for many years and had held the office of Chairman. PW-1 deposed that he and the testator were members of the Working Committee of the Society to which he (PW-1) had been elected after joining the Society. The Committee used to meet frequently at least once every three months; the deponent talked about creation of a Working Group for suggesting the financial systems of the Society, to which the testator was nominated as a Convenor and PW-1 was a member. PW-1 mentions about several meetings of the two in January and February 1982 and about the report having been submitted in the beginning of March 1982. The deponent, PW-1 mentioned about the testator visiting his office (PW-1's) office at East of Kailash and expressing his desire to make a Will. The testator requested him to attest the Will; he also requested Smt. Sheela Markan, working as

Test Case 30/1989 Page 5 his Secretary (i.e. that of PW-1) also to attest the Will. He further deposed that on 28.01.1982 at approximately 11.00 am, the testator visited his office and placed a typed Will upon which he signed on each page in his (PW-1's) presence and in the presence of Smt. Sheela Markan. PW-1 also further deposed about having signed on the Will in front of the testator and in front of Smt. Sheela Markan. He also said that at the time of execution of the Will, the testator was of sound mind and health; he further deposed that at the time of execution and even thereafter the testator attended the meeting of the Working Group of the DPS Society and was Convenor of the Working Group as well as an active participant. He deposed that the testator was an active golfer and played at the Delhi Golf Club 3-4 times a week.

9. In cross-examination, PW-1 denied having disclosed about what to depose in Court with Ms. Sheela Markan. He mentioned about not attending any family function of the testator or of his relatives; he deposed that the testator had not discussed his family matters or even revealed with whom he had good relations or otherwise. PW-1 said that he did not read the Will before attesting it and that he did not consider it necessary to do so; likewise, he also stated that Ms. Sheela Markan had not read the Will in his presence when it was attested in presence of both of them. He also clarified that the testator did not read the Will over to him. In cross-examination, he reiterates that he used to meet the testator once or twice a month and had no social relationship with him nor did he speak to him about registration of the Will. He also denied knowledge of any other Will executed by the testator or that he had consulted any Advocate before preparing the Will. He mentioned about the testator having visited him on 23.01.1982, asking him to attest the Will and also requesting if Ms. Sheela Markan, his Secretary, could attest the same and that Ms. Sheela Markan agreed to do so in his presence. PW-1 denied the suggestion that the testator was not maintaining good health and clarified that he was a fit man. He mentioned about there being no occasion to tell anyone that he had attested the Will of the testator and mentioned that about two years after his (the testator's) death, the petitioner had visited him requesting him to depose in the case. In further cross-examination, he clarified that there were about 20 members in the DPS Society and that meetings used to take place approximately once in three months. He agreed to a suggestion that the Will was typed by Ms. Sheela Markan since she had informed him about it. In his statement he volunteered about being

Test Case 30/1989 Page 6 Secretary of the DPS Society due to which he had frequent communication with the testator and that the Will was first signed by him (the testator) after which he signed it in the presence of Ms. Sheela Markan who then signed the same. He again denied any knowledge of what was in the Will and any awareness as to whether it was the same Will typed by Ms. Sheela Markan.

10. PW-2, Smt. Sheela Markan, in her affidavit, mentioned about having worked with the DPS Society since 1979 and that the testator was its member at the time of her joining and continued to be so thereafter and that her knowledge and acquaintanship with the testator was because of that working relationship. She deposed that on 23.01.1982, the testator went to the office of the DPS Society at about 11.00 AM when she was working with PW-1 and requested her to attest his Will. She agreed to the request and stated that in her presence he had requested PW-1 also to attest the Will which he agreed. She too mentioned about the testator asking for attestation of the Will signed by him on 28.01.1982 and her having attested it in the presence of the testator and PW-1. She also identified the places where she, PW-1 and the testator had signed on the Will. She deposed that the testator was of sound mind and health at that time and was talking and behaving in sensible and rational manner. She also stated that the testator was an active member of the DPS Society and a Working Committee thereof and had been elected Convenor of a Committee in January 1982.

11. In cross-examination, PW-2 submitted that the Will (Ex. PW-1) was typed by her at the DPS Society office; she did not remember if the Will was shown to her by the petitioner but volunteered that she had seen the Will. She could not remember whether the meetings of the school's Working Group took place in 1981 or 1982; she had no idea how many children did the testator have or about his family particulars since they did not interest her. She had not visited his house nor was aware of his wife's name. She knew the testator only in her official capacity. The witness of her own accord stated that after she had typed the Will, she gave it to the testator who took it away and brought it after a few days and signed it in the presence of both the attesting witnesses on 28.01.1982. She denied the suggestion that when the Will was brought, the testator had already signed the other pages except the last one and denied the suggestion that the Will was brought to her by the petitioner; she denied acquaintanship with the petitioner and reiterated that the testator used to attend the meeting regularly. She deposed about not being aware of the

Test Case 30/1989 Page 7 testator having any failing health and further stated that he had attended the meeting of the Working Group in January, February and early March 1982. PW-2 stated that he gave the report of the Working Group in 1982 after which he passed away at the end of March 1982. She did not produce any copy of the minutes of meeting of the DPS Society.

12. Gita Chaterjee, who deposed as DW-1, mentioned that the testator became member of Maharani Co-operative Society by investing ` 10,000/- funds of his HUF Kalawati Kanweri, mother of Satyawati, maternal grandmother of DW-1 died in 1958-59, leaving behind ` 5,00,000/-. Testator helped DW-1's mother to secure letters of Administration, under which he got total property of mother and jewellery. She relies on a letter dated 03.12.1961 whereby he told her mother (Satyawati) that her jewellery worth ` 2,00,000/- had been sold, and used for construction. Letters dated 03.04.1971 (DW-1/2) confirms that. Letters dated 22.06.1979 (DW- 1/3), 27.01.1981 (DW-1/4) and 25.02.1981 (DW-1/5) were exhibited, to show the testator's fondness for Geeta's mother and children. In the summer of 1981, a family settlement was reached whereby 1/4th share went to deponent and sister, 1/4th to Satyawati; 1/4th to Gopal Prasad and 1/4th to Mahabir Prasad. The Will was not executed in exercise of free volition, but due to influence of Mahabir Prasad; the testator's health was failing in 1981. The testator did not mention anything to DW-1 (when she visited him in February 1982 before his death), about the Will. Even otherwise, he could not bequeath the property as it was HUF property.

13. In the cross-examination, DW-1 stated that she used to visit the testator several times before her marriage when he was living in Lodhi Estate. She admitted to not visiting the testator after her marriage and further deposed that her father was a doctor practicing at Lucknow. During cross-examination, she submitted that her husband became a Sadhu in 1970 and that she shifted to her mother. To a suggestion that after 1958, her father never lived with her mother, DW-1 deposed that her father used to live with them at Lucknow. Her father's source of livelihood, according to DW-2, was the rent received from shops at Bareilly; she was not aware when those shops were constructed. She expressed her ignorance of the Will in question and claimed that she became aware of it in 1994. DW-2 stated that a case had been filed by her brother Gopal Prasada against her father at Bareilly and that the testator had advised him to do so. She admitted awareness about a Vakalatnama signed by her in CS (OS) 1608/1991. She also

Test Case 30/1989 Page 8 admitted knowledge about a lengthy litigation in respect of the suit property with Sh. Sanjeevan Sawhney and Ms. Kusum Sawhney and claimed that the source of knowledge was through her brother, who used to visit them. DW-1 mentioned that her father's address at Bareilly was 179, Civil Lines, and that he passed away in January 1981. She admitted that her father had shifted from Lucknow to Bareilly where he died though she was not aware of the exact year when he did so. He owned eight shops but was not aware of his yearly income. She stated that her family did not shift with her father to Bareilly and that a partition had taken place of the open land at Bareilly which was adjacent to her uncle Kanti Prasada's bungalow which was rented.

14. The witness, DW-1 was unable to state whether the shops were constructed with the money given by the testator but denied that he and his children were not having good relations. DW-1 identified two letters written by her mother which were exhibited as DW-1/PX-2 and DW- 1/PX-3. She also mentioned that the estate left by her maternal grandmother, Smt. Kalawati Kanwari consisted of jewelleries and Zamindari Bonds which were valued at Rs. 5,00,000/- out of the jewellery was worth Rs. 2,00,000/-.

15. The defendants rely upon certain documents; the letter dated 30.12.1961 Ex. DW-1/1 is a letter written by the testator to his daughter-in-law, Smt. Satyawati. The letter contains a reference to investment of her amount in the purchase of the suit property and an assurance that the money was absolutely safe. Ex. DW-1/2 is a letter written by the testator to Smt. Satyawati, his daughter-in-law, on 03.04.1971, acknowledging his awareness about the compromise in her family. The letter states that her jewelleries as per her request, were sold and invested in construction of the bungalow. The letter also states that the bungalow is for the benefit of her family also, i.e. for Shri Govind Prasad, the testator's son. The third document, Ex. DW-1/3 is another letter - written by the testator to his son, Sh. Govind Prasad, referring to his dispute with Gopal (his grandson), and advising him to have the same referred to arbitration.

16. The fourth document, Ex. DW-1/4 is a letter written to Gopal Prasad, the testator's grandson, alluding to his father (Govind's) lack of balance in his life. This letter is concededly written after Govind's death and enquires about application for Succession Certificate; issues with regard to tenancy; sorting-out legal and tax terms and so on. The letter states that the testator wanted to visit Bareilly to help Gopal and his mother but was not physically fit and not Test Case 30/1989 Page 9 allowed to move freely. DW-1/5 is a letter written to Govind's wife, Satyawati, on 25.08.1981, expressing the testator's happiness at the birth of a daughter to his grandson, Gopal. The testator cautions that Gopal should stand on his feet and not expect money from him (the testator). The letter states that the testator was improving slowly and was not able to do anything with is left hand and further that he did not go for a walk or to the club. The last two documents relied upon by the parties were letters put to DW-1 in cross-examination, i.e. DW-1/PX-2 and DW-1/PX-3. DW-1/PX-2 is written by Satyawati to the petitioner, which states that her son, Gopal had met the testator, who had submitted about execution of two Wills and requested that they should be deposited in the Court to avoid injustice to anyone. Similarly, Ex. DW-1/P-63 is a letter to the petitioner written by Satyawati on 12.10.1982. In the letter, family compromise are mentioned and Satyawati requests the petitioner to give ` 5,000/- in order to tide-over financial difficulties and also refers to some other amounts previously given to them.

17. The respondents argued that there is no explanation why the Will was propounded seven years after its alleged execution. In this respect, it is contended that the testator died on 13.03.1982 but this Court was approached in 1989. Reliance is placed upon para 7 of the probate petition which states that cause of action for approaching the Court arose on the date of the testator's death. It is submitted that there is no much less any valid or cogent explanation in this regard. Reliance was placed upon the judgment reported as Kunvarjeet Singh Khandpur v. Kirandeep Kaur & Ors. 2008 (8) SCC 463, to say that such Will is sought to be propounded within time. In the absence of any explanation, the delay is itself an important suspicious circumstance which the Court should consider and desist from granting probate.

18. It was next argued that there are several circumstances and inferences deducible from the depositions of the attesting witnesses, PW-1 and PW-2, which the Court should not ignore. It is submitted that there is a material discrepancy between the two depositions so far as concerns execution of the Will. The objectors point to the fact that to a specific query, the witnesses mentioned that the Will was typed on plain paper whereas it is actually on a letterhead. It is further argued that the Will was prepared by PW-2, a fact which she did not depose nor that the same was even spoken by PW-1. Learned counsel also pointed-out that PW-2 never mentioned that the testator had instructed her to type the contents. These material discrepancies and

Test Case 30/1989 Page 10 omissions are also suspicious circumstances, according to the Objector/respondents which should persuade the Court to deny probate.

19. The Objectors argue that inexplicably, despite materials on record showing that the testator's son, Govind was financially weak and unsound, and despite his fondness for Govind's family, that branch has been completely cut-out from the estate. On the other hand, submit the respondents, only the petitioner who lived in Delhi and had access to the testator, was given the entirety of the most valuable property. This, coupled with the old age and infirmity of the testator

- apparent from two letters written by him to his daughter-in-law, are strong circumstances pointing to undue influence being brought to bear upon him. The Objector's learned senior counsel emphasized that these circumstances, i.e. the unnatural bequest in favor of the single branch of the testator's family to the exclusion of all others and his advanced age, coupled with his illness and the important fact that the Will was executed a few days before his death, are crucial circumstances which the petitioner has been unable to explain.

20. It is argued that though PW-1 mentions about his being acquainted with the testator for two years before his death, there is no material or documentary evidence in support of the statement. Learned senior counsel argued that if indeed the testator and PW-1 had attended meetings or had participated in Committee deliberations, the least that was expected was production of some minutes of meeting or copies of the Committee reports, as the case may be. Though the petition was pending for a long time, no effort to produce such documents was made. In these circumstances, the Court should not accept the version of PW-1 at its face-value. The respondents also highlight that PW-1 did not know the testator's relatives or family members and was a stranger to them. In the facts and circumstances, since the testator was well-known and had been living in Delhi for a long time, there was apparently no reason to place faith in an utter stranger in regard to execution of the Will.

21. Learned senior counsel lastly argued that the documents, particularly the letter written by the testator's daughter-in-law and by the testator himself vividly point to the fondness for that branch of the family and also that his daughter-in-law's jewellery had been sold to construct on the plot which formed part of the testator's estate. These letters also held-out clear assurances that the suit property was meant for all and further that the testator was in touch with Govind's Test Case 30/1989 Page 11 branch of the family right till the end. The testator's letters also establish that he was unwell and barely able to move around or use his left hand. Under these circumstances, having regard to the old age, the delay in propounding the Will, reliance placed on utter strangers and the execution of the Will just before the testator's death were all suspicious circumstances for not granting the probate claimed.

22. The Objectors, in support of their submissions, placed reliance on the judgments of the Supreme Court reported as H. Venkatachala Iyengar v. B.N. Thimmajamma & Ors. AIR 1959 SC 443; Jaswant Kaur v. Amrit Kaur & Ors. 1977 (1) SCR 925; Jaswant Kaur v. Amrit Kaur 1977 (1) SCC 369 and Bharpur Singh & Ors. v. Shamsher Singh AIR 2009 SC 1766. It was emphasized that wherever the execution of the Will is shrouded in suspicion, the mere proof of due execution is insufficient, and the propounder must dispel from the Court's mind that such suspicious circumstances existed at the time of execution. In this respect, the decision in Jaswant Singh Kaur (supra) that delay in propounding the Will has to be cogently explained as also the fact that the attesting witnesses were strangers and most importantly that the dispositions in the Will were unfair and unnatural.

23. The petitioner argues that the evidence of the attesting witnesses are worthy of acceptance and that the so-called discrepancies pointed out by the respondents are minor omissions which cannot be blown out of proportion. It is submitted that PW-1 was a high ranking retired military officer with no motive to perjure himself. His deposition and voluntary statements clearly establish acquaintanship though not friendship, with the testator, based on both being members of the Delhi Public School Society and their involvement in its affairs. Being acquainted with each other for about two years was deemed appropriate by the testator, who, having regard to what he wished to bequeath, apparently wanted to be discreet about execution of the Will. Similarly, says the petitioner, PW-2 was working with the DPS Society as a Secretary and the testator had occasion to see her work. It was but natural, under the circumstances, that he reposed confidence in these two individuals who had no connection with his family. Aside from alleging that PW-2 had been contacted by the petitioner, no other motive was and could be ascribed to the attesting witnesses, who testified as to the genuineness of the circumstances under which the Will had been propounded.

Test Case 30/1989 Page 12

24. The petitioner argues that the omission to mention the letterhead and the mention of stamp paper or other paper, the omission to mention that PW-2 had typed the Will or the precise date when it was typed, and whether PW-1 was aware of it can hardly be called as important discrepancies that can affect the genuineness of an otherwise validly signed Will. Both attesting witnesses clearly proved that the Will (Ex. P-1) was signed by the testator in their presence and that they had signed in his presence, which is what Section 63 of the Indian Succession Act requires. So far as the question of their being strangers are concerned, learned counsel argued that there is no law which prescribes that only family members or friends of an individual can act as attesting witnesses. So long as the plea who can testify and are aware of the character of the documents, act as attesting witnesses, there is no bar in anybody performing that task.

25. It is next argued that the letters relied upon by the respondents/Objectors, even though written by the testator, do not establish anything more than that Govind, his son, had done badly. At the same time, the evidence on the record in the form of DW-1's deposition show that Govind himself possessed properties, some of which came down from the family at Bareilly. He had started living away from his own family, i.e. wife and children - the latter lived in Lucknow The letters, particularly of 1961 and 1972 assuring that some amounts belonging to Govind's wife or her jewellery had been used in the construction of the suit property cannot be construed as conferring or creating any interest in it. The title and ownership of the suit property vested exclusively in the testator who could deal with it in any manner he liked. Learned counsel further pointed-out that besides saying that mere amounts which belonged to his daughter-in-law had been spent in the construction put-up on the suit property, there was no other material on the record which could suggest or establish or compel the Court to draw an inference one way or the other that the Will was executed under suspicious circumstances. These two letters were written in a span of 20 years before the testator's death. On the other hand, there are letters written by the testator which clearly demonstrate that the petitioner used to assist his brother, Govind's family even after the testator's death and that the testator was aware of Govind's propensity to spend money. Learned counsel submitted that the testator bequeathed the suit property to the petitioner since he was looked after by him all the time and specially during his old and infirm age. On the other hand, it could be safely inferred that Govind's branch had been taken care of by the testator during his lifetime. As a result, there was neither anything unfair nor unnatural in Test Case 30/1989 Page 13 the manner as regards the depositions made in the Will.

26. The petitioner also argues that the Will itself takes care of and provides for Govind's branch of the family and other members of the testator's family by providing for allowances in favor of Gopal, of ` 5,000/- per year for five years, and ` 5,000/- per year to each daughter of the third son, Kanta Prasad and a bequest of ` 100/- per month to the testator's servant, Bhola Chand, during his lifetime, after his attaining the age of 65. The petitioner submits that the concern for Govind Prasad, who had pre-deceased the testator during his lifetime is borne from the Will and the statement made in it about a settlement which granted him full share of ancestral property and all further inheritances, to enable him to start a fresh life at Bareilly. The petitioner submits that as a result of this settlement during the testator's lifetime, Govind had been given a soil of land in Plot No. 179, Civil Lines, Bareilly as well as ` 20,000/-.

27. The petitioner's counsel relied upon the judgment reported as Hazara Bradri & Ors. v. Lokesh Datta Multani 2005 (13) SCC 278, to say that the Court should not lightly disturb the wishes of the testator, once it is proved that the Will was duly executed in front of the attesting witnesses. The petitioner also relies on Shyamal Kanti Guha (Dead) Through L.R.s & Ors. v. Meena Bose 2008 (8) SCC 115, to say that the Court should always lean in favor of giving effect to the wishes of a testator once it is duly proved rather than otherwise. Reliance is also placed upon a judgment reported as Ramachandra Shenoy v. Hilda Brite AIR 1964 SC 1323.

28. Before analyzing the evidence, and the respective positions of the parties, it would be necessary to briefly discuss the law relating to testate succession. Section 63 of the Succession Act and Section 68 of the Evidence Act spell out the essential requirements of wills, and their proof, in a court of law. Section 63 (of the Succession Act) states that:

"63. Execution of unprivileged wills.--Every testator, not being a soldier employed in an expedition nor engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the following rules--

(a) - (b) * * *

(c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a

Test Case 30/1989 Page 14 personal acknowledgement of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."

Section 68 of the Evidence Act enacts that:

"68. Proof of execution of document required by law to be attested.--If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence:..."

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

Test Case 30/1989 Page 15

30. Apart from the legal requirements spelt out by Section 63 (of the Succession Act) and Section 68 (of the Evidence Act) discussed previously, the court which considers a plea about validity (or otherwise) of a will has to see other significant facets. The court has to be satisfied generally that the tesatator (or testatrix) was of a sound and disposing mind, in possession of his or her senses, with the ability to perceive that the document executed was indeed a will which she or he desired, and was also aware of its contents, which accorded with her (or his) wishes. These essentials were clarified by the Supreme Court, in H. Venkatachala Iyengar v. B.N. Thimmajamma (supra), in the following terms:

"There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature, in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such 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

Test Case 30/1989 Page 16 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."

31. The reasoning in this decision has been applied subsequently in several judgments: Rani Purnima Debi v. Khagendra Narayan Deb : AIR 1962 SC 567; Surendra Pal v. Dr. Saraswati Arora 1974 (2) SCC 600; Gurdial Kaur v. Kartar Kaur 1998 (4) SCC 384, etc. Courts have emphasized that usually it is the cumulative effect, rather than a stray circumstance, which would weigh in concluding that a will is shrouded in suspicion. Ultimately, it is the conscience of the court, which should be satisfied that the will is a genuine document, and expresses what is intended by the testatrix or testator, apart from being satisfied that the technical legal requirements mandated by the joint operation of Section 63 of the Succession Act, and Section 68 of the Evidence Act, are fulfilled.

32. It is well established that the intention of a testator, in executing a will, is to disturb or interfere with the normal line of succession. Therefore, unless something unusual and grossly unfair is shown in the disposition, the mere fact that some heirs are excluded is not a ground to conclude that it was executed under suspicious circumstances. (See Rabindra Nath Mukherjee v. Panchanan Banerjee 1995 (4) SCC 459; Sadasivam v. K. Doraiswamy 1996 (8) SCC 624; P.P.K. Gopalan Nambiar v. P.P.K. Balakrishnan Nambiar 1995 Supp (2) SCC 664). In Vrindavanibai Sambhaji Mane v. Ramchandra Vithal Ganeshkar (1995) 5 SCC 215 the Supreme Court listed out what are the unnatural circumstances which would make courts pause, and consider whether such features are "suspicious circumstances ": (1) The propounder taking a prominent part in the execution of a Will which confers substantial benefits on him; (2) Shaky signature; (3) A feeble mind which is likely to be influenced; (4) Unfair and unjust disposal of property.

33. The court, at the same time, is also bound by another principle, which is that while construing a will, every attempt must be made to give effect to the testator's intention (if it is proved that the will is a genuine and validly executed one). Navneet Lal v. Gokul (1976) 1 SCC 630 is a decision, where the court summarized the principles applicable in such circumstances, as

Test Case 30/1989 Page 17 follows:

"8. From the earlier decisions of this Court the following principles, inter alia, are well established:

(1) In construing a document whether in English or in vernacular the fundamental rule is to ascertain the intention from the words used; the surrounding circumstances are to be considered; but that is only for the purpose of finding out the intended meaning of the words which have actually been employed. (Ram Gopal v. Nand Lal) (2) In construing the language of the will the court is entitled to put itself into the testator's armchair (Venkata Narasimha v. Parthasarathy) and is bound to bear in mind also other matters than merely the words used. It must consider the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense.... But all this is solely as an aid to arriving at a right construction of the will, and to ascertain the meaning of its language when used by that particular testator in that document. (Venkata Narasimha case and Gnanambal Ammal v. T. Raju Ayyar) (3) The true intention of the testator has to be gathered not by attaching importance to isolated expressions but by reading the will as a whole with all its provisions and ignoring none of them as redundant or contradictory. (Raj Bajrang Bahadur Singh v. Thakurain Bakhtraj Kuer) (4) The court must accept, if possible, such construction as would give to every expression some effect rather than that which would render any of the expressions inoperative. The court will look at the circumstances under which the testator makes his will, such as the state of his property, of his family and the like. Where apparently conflicting dispositions can be reconciled by giving full effect to every word used in a document, such a construction should be accepted instead of a construction which would have the effect of cutting down the clear meaning of the words used by the testator. Further, where one of the two reasonable constructions would lead to intestacy, that should be discarded in favour of a construction which does not create any such hiatus. (Pearey Lal v. Rameshwar Das) (5) It is one of the cardinal principles of construction of wills that to the extent that it is legally possible effect should be given to every disposition contained in the will unless the law prevents effect being given to it. Of course, if there are two repugnant provisions conferring successive interests, if the first interest created is valid the subsequent interest cannot take effect but a Court of construction will proceed to the farthest extent to avoid repugnancy, so that effect could be given as far as possible to every testamentary intention contained in the will. (Ramachandra Shenoy v. Hilda Brite Mrs.)...."

34. The evidence here is in the form of deposition of the two attesting witness, i.e. of Lt. General Bawa PW-1, and Mrs. Markan, PW-2. They deposed that the will was executed by the testatator Test Case 30/1989 Page 18 on 28th January 1982 and attested by each other. In cross examination, both stated having met the testator on two occasions; they could recollect that the will was executed by him. PW-1 mentioned about his previous association with the testator as member of the DPS governing Council, and that they had participated in committee deliberations. He volunteered about his acquaintanceship with the testator, on that basis, and denied the suggestion that he was unwell on date of the execution of the will. He also said that the testator used to play golf regularly. He was aware that the testator had visited him previously, and that PW-2 had been requested to attest the will as a witness. PW-2 corroborated this version; she was a personal secretary in the DPS society. In cross examination, she conceded having typed the will according to the testator's directions, given previously. The respondents could not elicit anything to say that the testator was unwell or infirm.

35. The respondents object to the witnesses' depositions, arguing that there are grave discrepancies, in as much as PW-1 did not mention about the other witness typing the will, both of them, omitting to say that the will contained something in Hindi, and that there was omission to say when the testator visited the office to give a draft to PW-2 for typing the final will. It was also argued that both versions did not say that the will was typed on a letterhead. These are trivial inconsistencies or discrepancies, in the opinion of the court. The standard of proving a will in this context is the same as in other case, i.e. the propounder should establish through preponderance of probabilities that the will was validly executed. The respondents have not led any evidence to show infirmity, illness or mental incapacity of the kind that would have deprived the testator of his capacity to make a valid testamentary disposition. The discrepancies pointed by them pertain to a period of over 25 years before the two attesting witnesses were examined. Human memory cannot have the same vividity and constancy to retain every little detail, and describe it as if the act were performed the day before the deposition. Predictably, witnesses' faded recollections inevitably tend to throw up some inconsistencies, which are natural. What would however be worrisome, is if the tale is picture perfect in all detail. That would be a circumstance impelling the court to scrutinize the testimonies and the materials, rather closely, as human fallibility, rather than perfection, is the norm. On an overall consideration of the materials, the court is of the opinion that there is sufficient proof, contemplated by Section 63 of the Succession Act and Section 68 of the Evidence Act about due execution of the will by the

Test Case 30/1989 Page 19 late testator.

36. The next question is whether the will was executed under suspicious circumstances. The objectors argue that the testator was ill; that he confided in total strangers, that he was of advanced age, and that the will made unnatural dispositions, for no reason - as grounds to establish suspicious circumstances which should dissuade the court from granting probate. Now, in this regard, the court has to take into consideration the evidence presented before it. The testimonies of PW-1 and PW-2 are credible. Nothing has been shown disclosing that they had any ill-motive against the objector, or were interested. Indeed, PW-1 is a retired Lt. General. He cannot possibly have any motive other than to depose to what was witnessed by him. He - as well as PW-2 consistently deposed that the testator was in his senses when he signed the will, in their presence. The objectors have not led any positive evidence of chronic ailment or disease that would have rendered the testator mentally incapacitated, or incapable of understanding his actions. Indeed, by all accounts, he was alert, when he signed the will; he was actively involved in the affairs of the DPS society and convenor of a reforms committee. PW-1 even said that he used to play golf. The testator concededly was a retired high ranking bureaucrat of the ICS cadre. The petitioner's evidence is sufficient to rule out any serious mental incapacity or ailment which rendered the testators judgment or understanding suspect, when the will was made and signed by him. No doubt, he was aged; but there is nothing to show that such advanced age alone was enough to incapacitate him, or more importantly, impair his judgment. In one of his letters, he did mention about inability to use one hand. Yet, the objectors did not deem that circumstance serious enough to visit him, or inquire or gather any evidence to establish their case that he was incapacitated by any such condition, from exercising sound judgment, while signing the will.

37. As far as confiding in total strangers, for executing the will is concerned, the court is of the opinion that the previous judgments are to be viewed as broad guidelines, and not rigid formulae to be applied in every fact situation. They are broad markers, to be kept in the mind of the court, whose conscience is to be ultimately satisfied that the will was indeed signed by the testator, while in a sound and disposing mind. The mere fact, in the circumstances of this case, that the testator confided in relative strangers, and not in close friends or family members, should not cloud the court's vision in examining whether those "strangers" established due execution of

Test Case 30/1989 Page 20 the will. There is no law or rule which obliges individuals - even of advanced age, to seek the aid of friends or family members while executing a will. Indeed, it could arguably be said that testators, having regard to the nature of bequests, may sometimes wish to keep "under wraps" the execution of the will, away from prying eyes of relatives, and friends, who may be seen as threats, wanting to seek their share in the inheritance. Therefore, it is natural, under circumstances, to involve third parties or slight acquaintances to act as attesting witnesses. As stated earlier, the objectors were unable to point out to any possible motive or ill will on the part of the attesting witnesses, in perjuring themselves. Therefore, that they were strangers, is insufficient to say that there were suspicious circumstances vitiating the will in question.

38. The next question is whether the objectors show that the disposition or bequest made was unnatural. The testator was survived by two sons, and the family of another predeceased son. The objectors have relied on certain letters to say that the daughter in law, Satyavati, used to correspond with the testator, who was fond of her, and his grandchildren, i.e. son and daughter of Govind. These letters also indicate that her money was used for constructing upon the suit plot, and that the testator appears to have assured that the house could be used by all, including Govind's branch of the family. The question is whether this can persuade the court into concluding that the will made an unnatural disposition, by excluding the heirs of a predeceased son altogether.

39. The fact that Satyawati's jewellery was used to construct the property, acknowledged in a letter written by the testator in 1971, only establishes that aspect, as also another previous letter of 1965. However, there is a long gap between these two periods, and a decade after 1971. The will itself mentions that the testator and Govind had arrived at a settlement, whereby the latter had been paid Rs. 20,000/- and a large part of a Civil Lines plot in Barielly. The evidence also suggests that Govind had some shops, and lived from the rental income derived. The testator, in one of his letters, suggests that Gopal, i.e Govind's son, should start working and take charge of his responsibilities. Yet, these facts or taken with the others do not mean that the testator wished to bequeath any share in the property to the objectors. It would be worth noticing at this stage that the third son of the testator did not object to the will and has apparently accepted the bequests. As regards the letter written to the petioner by Satyawati is concerned, it cannot establish the existence of any other will. In any case, no evidence has been placed, on the record

Test Case 30/1989 Page 21 to dispel the inference that the will propounded in this case was the last will and testament of the petitioner. The court is mindful of the fact that more often than not, testators wish to make dispositions or bequests which disturb the natural line of succession. Having regard to all these aspects, the fact that the will does not provision for Govind's heirs, is not sufficient to set the will aside, or hold that its execution was clouded by suspicious circumstances.

40. The last aspect to be considered is whether the delay in approaching the court, and seeking probate is fatal to the petition. Kunvarjeet Singh Khandpur is an authority for the proposition that the court can reject a claim or relief, primarily based on a will, if the petitioner does not approach it in time. It is to be noticed at this stage that the said decision was rendered a good 73 years after enactment of the Succession Act. The nature of proceedings, and the procedure to be adopted under the Act, was well known to Parliament, which made no mention of any period of limitation. The Limitation Act, significantly mentions about its applicability to applications, suits, and appeals; it does not mention Petitions, in the form of probate claims, or any proceedings under the Succession Act. Therefore, the observations in Khandpur have to be read in the context of the statute, when the Parliament was aware of existing law, which had provided a special procedure for grant of probate. In the present case, when all other facts point to a valid and genuine will, with no foul play, or the testator having suffered from any incapacity or disability impairing his fair judgment, that the petitioner has approached the court after some delay in the overall circumstances cannot be fatal to the claim.

41. In view of the above findings, it is held that the testator was of sound and disposing mind, while signing the will in question in this case. The petitioner has proved its due execution; the court is satisfied that there were no surrounding suspicious circumstances, which disentitle the petitioner's claim. Therefore, he is entitled to probate in respect of the will dated 28th January, 1982.

42. For the reasons mentioned and findings rendered in respect of the first two issues, the petition is allowed. The petitioner shall be granted probate of his father's will, and shall act as executor in respect thereof. The same shall be granted subject to the petitioner furnishing

Test Case 30/1989 Page 22 Administration and Surety Bonds, within eight weeks, and also ensuring that the valuation of the suit property is placed on the record. The petition is therefore, allowed in the above terms, without any order as to costs.

27th September, 2010                                       (S. RAVINDRA BHAT)
                                                                 JUDGE




Test Case 30/1989                                                                       Page 23