Delhi High Court
Shyam Mohan Gupta & Ors vs Brij Mohan Gupta Thr Lrs & Ors on 11 February, 2011
Author: Mool Chand Garg
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on : 12.01.2011
Pronounced on: 11.02.2011
+ FAO 439/2008
SHYAM MOHAN GUPTA & ORS. ..... Appellants
Through: Mr.Vinay Kr.Garg and Mr.Fazal
Ahmad, Advocates
VERSUS
BRIJ MOHAN GUPTA THR. LRS & ORS. .... Respondents
Through: None
CORAM:
HON'BLE MR. JUSTICE MOOL CHAND GARG
1. Whether the Reporters of local papers may be allowed Yes
to see the judgment?
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
: MOOL CHAND GARG, J
CM No.17926/2008
Since the LRs of the deceased respondent No.1 were duly served
and the counsel appeared on their behalf, the application stands
disposed of.
It is, however, noted that nobody is appearing on behalf of the
respondents since 22.09.2009. The respondents seem to have lost
interest in the matter.
FAO No.439/2008
1. This appeal has been filed by the propounders of the Will dated
09.12.1994 which was registered before the Sub-Registrar on
13.12.1994 alleged to have been executed by Late Smt. Rukmani Devi,
the testatrix thereby bequeathing her house bearing No.3014, Masjid
Khazoor, Kinari Bazaar, Delhi in favour of the appellants. However, the
learned ADJ vide order dated 01.09.2008 dismissed the probate petition
registered as P.C. No.162/2006.
FAO No.439/2008 Page 1 of 15
2. Briefly stating the facts giving rise to filing of this case are that
the deceased testatrix Smt. Rukmani Devi left behind herself the
appellants as well as the respondents as her legal heirs. While
respondents No.2 to 6 are sons and daughters of the deceased,
appellants No.2 to 4 and respondents No.1(a) to 1(f) are the grand
children of the deceased testatrix. Respondents No.4 to 6 are the
married daughters of the deceased testatrix.
3. Smt. Rukmani Devi was carrying on the business left by her
deceased husband in the name and style of M/s Regal Book Depot.
After the death of her husband on 16.12.1992, Smt. Rukmani Devi
relinquished all her rights in the business of her husband in favour of
her three sons Sh. Brij Mohan Gupta, Sh. Madan Mohan Gupta and Sh.
Vijay Kumar Aggarwal (R-1 to 3.). Nothing was given to other sons,
namely, Sh. Shyam Mohan Gupta and Sh. Kishan Mohan Aggarwal
(Appellants).
4. However, the appellants claim to have succeeded to the house of
Smt. Rukmani Devi by virtue of the Will in question executed by Smt.
Rukmani Devi whereby they have become the beneficiaries of the Will
with respect to house bearing No.3014, Masjid Khazoor, Kinari Bazaar,
Delhi.
5. The appellant filed probate case for seeking letters of
administration with respect to the Will left by the deceased before the
District Judge, Delhi. Respondents filed objections against the grant of
probate. They took following objections:
a) That Smt. Rukmani Devi was not having any independent
source of income. In fact her husband late Ram Chandra
Gupta was the karta of HUF comprising of himself and his
five sons and whatever he inherited from his father was
invested in the business and from the income of the said
business, the property in dispute was purchased. Hence
the property was not the self acquired of Smt. Rukmani
Devi and she was not competent to execute the Will.
b) Smt. Rukmani Devi was not keeping good health, she had
bad eye sight and her mental faculties were also not good
enough to take any decision and thus, the Will has not
been executed with sound disposing mind.
c) The Will alleged to be executed on 09.12.1994 was in fact
executed on 13.12.1994.
FAO No.439/2008 Page 2 of 15
d) Both the attesting witness of the Will were friends and
acquaintances of the beneficiaries of the Will.
e) Smt. Rukmani Devi had cordial relations with all her sons
and there was no reason of her excluding the other sons
from inheriting her property. She herself allowed her three
sons to jointly occupy shop of her husband and the other
sons were left out because they were in service and were
doing business.
6. On the pleadings of the parties, following issues were framed by
the Ld. ADJ vide order dated 17.03.1999:-
1. Whether the Will dated 09.12.1994 propounded
by the petitioner is the last Will and testament of
deceased Smt. Rukmani Devi and it has been executed
by her in sound disposing mind and it is a valid Will?
2. Relief?
7. To prove issue No.1, appellants examined PW-1, Sh. Satish
Chand Sharma, who is also the scribe of the Will in question, PW.2. Sh.
A. Rehman, UDC from the office of the Sub-Registrar, Kashmere Gate,
to prove registration of the Will registered on 13.12.1994. The next
witness was PW-3 Sh. Chaman Lal Gupta. The other witnesses
examined are PW-4, Sh. Anokhey Lal Gupta. PW-3 and PW-4 are the
attesting witnesses of the Will. Sh. Shyam Mohan Gupta, appellant,
herein also appeared as PW-5. On the other hand, Sh. Brij Mohan
Gupta, Sh. Madan Mohan Gupta and Sh. Vijay Kumar Aggarwal
appeared to oppose the grant of probate.
8. The learned ADJ decided issue No.1 against the appellants by
holding that the suspicion and dark clouds of doubt were hovering all
around the genuineness of the Will in question. The first and foremost
being the Will was drafted in Hindi in the year 1994 which was strange
on the part of an advocate who exclusively dealt in drafting of the Wills
and having drafted about two hundred Wills to draft the disputed Will
in Hindi and not in English without any specific instructions. In this
regard the learned ADJ observed that :-
Sh. Chaman Lal deposed that he was called by Sh. Anokhe
Lal to witness the will, who played the important role in
getting this will prepared. If five families are residingin a
house in Kinari Bazar there is no way that an advocate
FAO No.439/2008 Page 3 of 15
shall directly enter the room of an old lady without being
noticed by any other inmate of the house whereas Sh.
Satish Chand Sharma, Sh.Chaman Lal and Sh. Anokhe Lal
deposed that nobody came in the house till the execution of
the will. Sh. Anokhe Lal who was known to the entire family
would not go unnoticed by other family members if he visits
the room of the testatrix.
9. The learned ADJ also commented adversely on account of there
being no evidence as to who supplied the name and parentage of the
attesting witnesses to Sh. Satish Chand Sharma so as to enable him to
get it typed in the original Will on 08.12.1994.
10. The learned ADJ also observed that despite the testatrix having
very cordial relations with all her sons, no solid reason has been given
as to why she disinherited other three sons from succeeding to her
property. The ADJ has not accepted the explanation furnished by the
appellants regarding disinheritance of 3 sons on the basis of certain
averments made by the deceased testatrix in the Will on which reliance
was placed by the appellants to support the grant of probate, that is:
"My husband had taken shop number 2607,Nai Sarak,
Delhi on rent in which he was running his business under
the name and style of Regal Book Depot. He died on
14.12.1992. After his death his tenancy rights in shop
number 2607, Nai Sarak, Delhi were disinherited by all his
legal heirs. I had relinquished my tenancy rights and the
rights in the business of said shop in favour of my three
sons Brij Mohan Gupta, Madan Mohan Gupta and Vijay
Kumar Aggarwal. All my three sons are running their
business in that shop. I have not given any tenancy right to
my son Shyam Mohan Gupta and Krishan Mohan
Aggarwal. Both my sons Shyam Mohan Gupta and Krishan
Mohan Aggarwal are serving me in my old age. I am very
happy with them. Hence of my own free will without any
pressure from others I am executing this will in favour of
Shyam Mohan Gupta and Krishan Mohan Aggarwal. After
my death my two sons above named shall be the owners of
the house."
11. In this regard, it has been observed by the lower Court that:
"So the business was taken over by the three sons who
were running the business with their father. The
explanation given in the will for disinheriting them is not
the outcome of the brain of the testatrix. She was an
illiterate lady. She was not aware of these legal provisions
that the tenancy rights were inherited by all the sons as
well as by her and she surrendered her tenancy right in
FAO No.439/2008 Page 4 of 15
favour of three sons that is why she was bequeathing the
entire house in favour of two sons only because at best she
inherited one-ninth share in the tenancy rights of the shop
after the death of her husband. The husband was survived
by five sons, three daughters and his wife and she could
not have transferred her tenancy rights in favour of any
other son. The tenancy rights are not transferable. They
can only be inherited by all the legal heirs simultaneously.
Similarly if her husband died intestate as claimed by her,
one-nineth share in his share in the business was inherited
by her. As other sons were the partners in the business and
that was the only source of their livelihood they continued
running business whereas both other sons, the petitioners
herein, being in government service were having their
independent source of income and continued in their
service. The house was owned by the mother. All the sons
were living with their families in the same house. So the
explanation given by her in the will is not sound to be
accepted that because she surrendered her share in the
tenancy rights of the shop in favour of three other sons that
is why she excluded them from inheriting her house. This
calculative reason given in the will is either the brain child
of Sh. Shyam Mohan Gupta and Sh. Krishan Mohan
Aggarwal or of Sh. Anokhe Lal and not of old illiterate lady."
12. According to the appellants, this suo moto explanation given by
the learned ADJ ignored the factum of love and affection of the deceased
testatrix qua the appellants inasmuch as she had taken note of not only
the requirements of the appellants who are in Government service but
also has taken note of the inheritance of the business by the three sons
who on account of surrender of tenancy rights by the deceased
respondents would naturally be in a position to continue with the
business in the Shop in question uninterruptedly.
13. The learned ADJ further accepted the case of the respondents by
expressing doubt regarding drafting of the Will by Sh. Satish Chand
Sharma, Advocate by observing that he was not present at the time of
registration of the Will. In fact, he further observed that on the Will:
"A stamp was already put by Sh. D.P. Singh,advocate on
the will and the will was not drafted by him. So to meet out
this contingency that who drafted the will Sh. Satish Chand
Sharma, advocate signed on this will after its execution as
well as registration because an advocate having twenty-five
years of practice and having drafted more than two
hundred wills knows where to sign and put his stamp in
token of having drafted the will. A perusal of the original
will shows that finding no space at any other place on page
FAO No.439/2008 Page 5 of 15
number 3 of the will to write 'Drafted by Satish Chand
Sharma, advocate' he signed at this place where his
signature appear. An advocate having genuinely drafted the
will shall put his rubber stamp and signature immediately
below the signatures of the attesting witnesses in token of
having drafted the will and even otherwise if the advocate
who drafted the will was regularly engaged in drafting the
wills, there was no necessity of approaching Sh. D.P. Singh,
advocate for the purpose of getting the will registered. What
was the need of getting the will registered through Sh. D.P.
Singh, advocate when Sh. Satish Chand Sharma, advocate
who drafted the will was available in the vicinity. Sh.
Krishan Mohan Aggarwal was a post graduate teacher in
Hindi and this will appears to have been drafted by him
and not by Sh. Satish Chand Sharma, advocate as written
on the document."
14. As stated above, Sh. Satish Chand Sharma, Advocate has
appeared in the witness box. It would be appropriate to take note of his
testimony. He has deposed as under:
"I am practicing as an advocate for the last 24 years. I know
Smt. Rukmani Devi. I had drafted the Will and the original
Will is signed by me at point „A‟ and writing is also written by
me which is in the circle. The said Will was drafted by me
under the instructions of Smt. Rukmani Devi. After the Will
was drafted by me, I went to the house of Smt. Rukmani
Devi at about 5 p.m. on 9.12.94. I had read the contents of
the said Will to Smt. Rukmani Devi who admitted the
contents of the said Will as correct. Smt. Rukmani Devi
thumb marked the said Will in my presence on every page.
The witnesses were also present at that time. The witnesses
are Anokhe Lal and Chaman Lal. They had signed in my
presence as also in the presence of Smt. Rukmani Devi. The
said Will is mark „X‟. Thumb impression of Rukmani Devi
are at point „B‟ on each page. Signatures of Anokhe Lal are
at point „C‟ and that of Chaman Lal are at point „D‟, on the
said Will mark „X‟. Smt. Rukmani Devi was of sound
disposing mind at the time of execution of the said Will. She
was in a position to see everything."
15. This deposition shows that he not only deposed about the Will
having been prepared at the asking of the deceased testatrix, he also
identified her thumb impression on the Will. He also proved the
signatures of the attesting witnesses Anokhe Lal and Chaman Lal and
also deposed that the witnesses have signed in presence of each other
and in presence of the deceased testatrix.
FAO No.439/2008 Page 6 of 15
16. It may be observed here that despite the deposition made by Sh.
Satish Chand Sharma and the other witnesses learned ADJ accepted
the case of the respondents that the deceased testatrix was not of
sound and disposing mind and was incapable of executing the Will in
question. Even though there was evidence available on record as led by
the appellants that the testatrix used to go to the temple every morning
and had gone to the temple even on that day, came back, took tea and
thereafter died of heart attack. Even though, the ADJ held that while it
was true that the deceased testatrix had not lost her mental balance or
that the Will was not got thumb marked from her when she was on
death bed yet presumed that the circumstances surrounding the case
are such that she would not have thumb marked this Will. It has been
presumed by the learned ADJ without there being any evidence on
record that the testatrix had not understood the contents of the Will.
The order passed by the ADJ is based upon surmises and conjectures
in having stated that being a homely uneducated lady she could not
approach the advocate on her own with Sh. Anokhe Lal without
disclosing her intention to any of her sons when she was having very
cordial relations with all her sons and used to have her food with her
youngest son Sh. Vijay Kumar as admitted by all the legal heirs then
there was no reason to disinherit him from this property. It may be
observed here that merely because the deceased testatrix was taking
food with his son Vijay Kumar Aggarwal, it cannot be presumed that the
Will in question has been executed by the deceased testatrix contrary to
the interest of Sh. Vijay Kumar Aggarwal inasmuch as, admittedly, Sh.
Vijay Kumar Aggarwal has already inherited the business of the
husband of the deceased testatrix.
17. By the impugned order, the learned ADJ has dismissed the
probate petition which order has been assailed before this Court. The
appellants have submitted that statements made by Sh. Chaman Lal
Gupta and Sh. Anokhey Lal prove the execution of the Will and its
registration by the deceased testatrix while being in sound and
disposing mind. The execution of the Will has not been challenged by
anyone. It has also been proved that the Will bears the thumb
impression of the testatrix which was affixed by her out of her own free
FAO No.439/2008 Page 7 of 15
will. The thumb impression was affixed by her in presence of the two
witnesses who also attested the execution of the Will in presence of the
testatrix and in presence of each other. It is submitted that thereafter,
the Will was even registered on 13.12.1994. As such, it is submitted
that the appellants proved all the essential requirements of Section
63(c) of the Indian Succession Act and thus, proved the execution of the
Will in accordance with law.
18. In this regard, reference has been made to the statement of Sh.
Chaman Lal Gupta and Sh. Anokhe Lal. Their statement to the extent
that they attested the affixation of thumb impression by the deceased
testatrix in their presence on the Will dated 09.12.1994 which was
produced for registration before the Sub-Registrar on 13.12.1994 on
which date the Will was also registered has not been questioned by the
objectors. It is nobody‟s case that the death of the deceased testatrix on
14.12.1994 i.e. on the next date of the registration of the Will took place
in any suspicious circumstances or that her death is not a natural
death or it is the handy work of anyone, much less, that of the
appellants. The admission of the respondents regarding the visit of
temple by the deceased testatrix everyday including the day when the
Will was executed strengthens the arguments of the appellant that the
testatrix being capable of going to the temple everyday was in a position
to decide about her wellbeing and, thus, to execute the Will voluntarily
and out of her own free will.
19. According to the appellants, execution of the Will in Hindi could
not have been considered suspicious circumstance, more so, when it
has come in the evidence that the testatrix was a literate woman and
she could read Hindi. PW-1 Shri Satish Chand Sharma has clearly
stated that Late Rukmani Devi could read Hindi and that the contents
of the Will were drafted on her instructions and the same were read over
and understood by her in his presence. PW-4 Shri Anokhey Lal has also
stated that Late Rukmani Devi could read Hindi. PW-3 Shri Chaman Lal
and PW-5 Shri Shyam Mohan Gupta have also stated that Late
Rukmani Devi could read Hindi. Since the appellants proved that
Rukmani devi could read Hindi and the same was drafted on her
FAO No.439/2008 Page 8 of 15
instructions, the Will being in Hindi could not be a suspicious
circumstance.
20. It was further submitted by the appellants that the objection
raised regarding the fact that PW-1 Satish Chand Sharma prepared the
Will and went to the residence of the testatrix on 9.12.1984 for getting
the same signed is not a suspicious circumstance as once the execution
of the Will stands proved these facts cannot be taken to be a suspicious
circumstance. The appellants also contended that the question as to
who gave the names of the attesting witnesses to the Advocate is
irrelevant since the evidence on record proves the execution of will by
the testatrix who took the assistance of an old employee of her husband
and there was nothing unnatural about the same.
21. The appellants have relied upon the following judgments dealing
with suspicious circumstances:-
(1) DAULAT RAM AND OTHERS Vs SODHA AND OTHERS,
2005(1) SCC 40
(2) SRIDEVI AND OTHERS Vs JAYARAJA SHETTY AND
OTHERS, 2005 (2) SCC 784
(3) NIRANJAN UMESHCHANDRA JOSHI Vs MRUDULA JYOTI
RAO AND OTHERS, 2006 (13) SCC 433
(4) ANIL KAK Vs SHARDA RAJE, 2008 (7) SCC695
(5) RAJESH ARORA Vs STATE AND OTHERS, AIR 2009 DELHI
111
22. The respondents have justified the order refusing probate by the
learned ADJ due to suspicious circumstance referred to by the learned
ADJ in the impugned judgment as discussed above.
23. I have given my thoughtful consideration to the submissions
made on behalf of the appellant and have also gone through the record,
the impugned order passed by the learned ADJ as well as the
judgments cited by the appellants. In this regard, I may observe that in
the case of Sridevi and Others Vs Jayaraja Shetty and Others, (2005) 2
SCC 784 the Apex Court has held that:-
It is well settled proposition of law that mode of proving the
Will does not differ from that of proving any other document
except as to the special requirement of attestation
FAO No.439/2008 Page 9 of 15
prescribed in the case of a Will by Section 63 of the Indian
Succession Act, 1925. The onus to prove the Will is on the
propounder and in the absence of suspicious
circumstances surrounding the execution of the Will, proof
of testamentary capacity and proof of the signature of the
testator, as required by law, need be sufficient to discharge
the onus. Where there are suspicious circumstances, the
onus would again be on the propounder to explain them to
the satisfaction of the court before the Will can be accepted
as genuine. Proof in either case cannot be mathematically
precise and certain and should be one of satisfaction of a
prudent mind in such matters. In case the person
contesting the Will alleges undue influence, fraud or
coercion, the onus will be on him to prove the same. As to
what are suspicious circumstances has to be judged in the
facts and circumstances of each particular case.
.....
14. The propounder of the Will has to show that the Will
was signed by the testator; that he was at the relevant time
in sound disposing state of mind; that he understood the
nature and effect of dispositions and had put his signatures
to the testament of his own free will and that he had signed
it in the presence of the two witnesses who attested in his
presence and in the presence of each other. Once these
elements are established, the onus which rests on the
propounder is discharged. DW 2, the scribe, in his
testimony has categorically stated that the Will was scribed
by him at the dictation of the testator. The two attesting
witnesses have deposed that the testator had signed the
Will in their presence while in sound disposing state of
mind after understanding the nature and effect of
dispositions made by him. That he signed the Will in their
presence and they had signed the Will in his presence and
in the presence of each other. In cross-examination, the
appellants failed to elicit anything which could persuade us
to disbelieve their testimony. It has not been shown that
they were in any way interested in the propounders of the
Will or that on their asking they could have deposed falsely
in court. Their testimony inspires confidence. The
testimony of the scribe (DW 2) and the two attesting
witnesses (DWs 3 and 4) is fully corroborated by the
statement of the handwriting expert (DW 5). The Will runs
into 6 pages. The testator had signed each of the 6 pages.
The handwriting expert compared the signatures of the
testator with his admitted signatures. He has opined that
the signatures on the Will are that of the testator. In our
view, the Will had been duly executed.
Coming to the suspicious circumstances surrounding the
Will, it may be stated that although the testator was 80
years of age at the time of the execution of the Will and he
died after 15 days of the execution of the Will, the two
attesting witnesses and the scribe have categorically stated
that the testator was in sound state of health and
possessed his full physical and mental faculties. Except
that the deceased was 80 years of age and that he died
within 15 days of the execution of the Will, nothing has
been brought on record to show that the testator was not in
good health or not possessed of his physical or mental
faculties. From the cross-examination of the scribe and the
two attesting witnesses, the appellants have failed to bring
out anything which could have put a doubt regarding the
physical or mental incapacity of the testator to execute the
Will. Submission of the learned counsel for the appellants
that the testator had deprived the other heirs of his
property is not true. The family properties had been
partitioned in the year 1961. The shares which were given
to Dharmaraja Kadamba and Raviraja Kadamba were in
possession of the tenants and vested in the State
Government after coming into force of the Karnataka Land
Reforms (Amendment) Act, 1973 whereas the
properties which had been given to the daughters were in
the personal cultivation of the family. The testator while
executing the Will bequeathed the properties which had
fallen to his share in the partition and which he had
inherited from his brother which were in his personal
cultivation in favour of his two sons Dharmaraja Kadamba
and Raviraja Kadamba and gave the right to receive
compensation to other heirs of the properties which were
under the tenants and had vested in the State Government.
It is not a case where the father had deprived his other
children totally from inheritance. Reasons for unequal
distribution have been given in the Will itself. This had
been done by him to balance the equitable distribution of
the properties in favour of all his children.
24. In the instant case, the witnesses produced by the appellant,
namely, PW1, PW-3, PW-4 and PW5 have proved the execution of the
Will. Their testimony that the Will has been signed by Late Smt.
Rukmani Devi in their presence has not been denied by anyone. The
state of mind of the deceased testator being that of sound and disposing
stands proved by the statement of PW1, the advocate who drafted the
Will and also by PW-4 and PW-5, the attesting witnesses. Even the
Learned ADJ in the impugned order has observed that there was no
doubt that the testatrix had not lost her mental balance or that the Will
was not got thumb marked from her when she was on death bed ,
hence once these facts stood proved, the appellants had discharged
their burden and the onus resting on the propounder of the Will stood
discharge
25. Further the objections raised regarding the Will being drafted in
Hindi and the contents of the Will being the brainchild of the
appellants. I would like to observe that the appellants have proved
through their evidence that the tetatrix was a literate woman and could
read in Hindi. PW-1 Shri Satish Chand Sharma has clearly stated that
Late Rukmani Devi could read Hindi and that the contents of the Will
were drafted on her instructions and the same were read over and
understood by her in his presence. PW-4 Shri Anokhey Lal has also
stated that Late Rukmani Devi could read Hindi. PW-3 Shri Chaman Lal
and PW-5 Shri Shyam Mohan Gupta have also stated that Late
Rukmani Devi could read Hindi. Since the appellants proved that
Rukmani devi could read Hindi and the same was drafted on her
instructions, the Will being in Hindi could not be a suspicious
circumstance. As regarding the objection that since appellants were
teachers by profession and it was for this reason they were not inducted
in the family business has not been proved by any evidence. Hence in
such circumstances it could not be concluded that the explanation was
the brainchild of the appellants.
26. I would also like to observe that the objection raised regarding the
other legal heirs being deprived of the share irrespective of fact that
they shared a cordial relation with each other as well as the testatrix
leads to a suspicious circumstance cannot be said to be correct in the
light of the observation made by the Apex Court in the case of Savithri
Vs Karthyayani Amma, 2007 (11) SCC 621 wherein it has been held that
deprivation of a due share to the natural heirs itself is not a factor
which would lead to the conclusion that there exists suspicious
circumstances. The relevant extract is produced here under:-
Therein, this Court also took into consideration the
decision of this Court in H. Venkatachala Iyengar, wherein
the following circumstances were held to be relevant for
determination of the existence of the suspicious
circumstances:
"34. ... (i) when a doubt is created in regard to the condition
of mind of the testator despite his signature on the will;
(ii) when the disposition appears to be unnatural or wholly
unfair in the light of the relevant circumstances;
(iii) where propounder himself takes prominent part in the
execution of will which confers on him substantial benefit."
21. We do not find in the fact situation obtaining herein
that any such suspicious circumstance was existing. We
are not unmindful of the fact that the court must satisfy its
conscience before its genuineness is accepted. But what is
necessary therefor, is a rational approach.
22. Deprivation of a due share by the natural heirs itself is
not a factor which would lead to the conclusion that there
exist suspicious circumstances. For the said purpose, as
noticed hereinbefore, the background facts should also be
taken into consideration. The son was not meeting his
father. He had not been attending to him. He was not even
meeting the expenses for his treatment from 1959, when he
lost his job till his death in 1978. The testator was living
with his sister and her children. If in that situation, if he
executed a will in their favour, no exception thereto can be
taken. Even then, something was left for the appellant.
23. In Ramabai Padmakar Patil v. Rukminibai Vishnu
Vekhande this Court held:
"8. A will is executed to alter the mode of succession and by
the very nature of things it is bound to result in either
reducing or depriving the share of a natural heir. If a
person intends his property to pass to his natural heirs,
there is no necessity at all of executing a will. It is true that
a propounder of the will has to remove all suspicious
circumstances. Suspicion means doubt, conjecture or
mistrust. But the fact that natural heirs have either been
excluded or a lesser share has been given to them, by itself
without anything more, cannot be held to be a suspicious
circumstance, especially in a case where the bequest has
been made in favour of an offspring."
24. Strong reliance has been placed by the learned counsel
on Gurdial Kaur v. Kartar Kaur wherein it was held:-
"4. The law is well settled that the conscience of the court
must be satisfied that the will in question was not only
executed and attested in the manner required under the
Succession Act, 1925 but it should also be found that the
said will was the product of the free volition of the
executant who had voluntarily executed the same after
knowing and understanding the contents of the will.
Therefore, whenever there is any suspicious circumstance,
the obligation is cast on the propounder of the will to dispel
the suspicious circumstance. As in the facts and
circumstances of the case, the court of appeal below did not
accept the valid execution of the will by indicating reasons
and coming to a specific finding that suspicion had not
been dispelled to the satisfaction of the Court and such
finding of the court of appeal below has also been upheld
by the High Court by the impugned judgment, we do not
find any reason to interfere with such decision. This appeal,
therefore, fails and is dismissed without any order as to
costs."
25. There is no dispute in regard to the proposition that the
conscience of the court must be satisfied. In the instant
case, the High Court has considered the relevant factors. It
has been found that the will was the product of the free
will. He had executed the will after knowing and
understanding the contents thereof.
26. Joseph Antony Lazarus v. A.J. Francis10 whereupon
again reliance was placed, one of the circumstances was
that the names of the two sons of the testator had not been
mentioned therein. The said decision cannot be said to have
any application to the instant case.
27. For the reasons aforementioned, we do not find any
legal infirmity in the judgment of the High Court. The
appeal is dismissed.
27. The learned ADJ has thus ignored the explanation furnished by
the testatrix for bequeathing the residential house in favour of the
appellants inasmuch as the testatrix has given the residential house to
the appellants while she has given the business left by her husband to
the other two sons. As far as the capacity of the deceased testatrix in
having executed the Will in question, the very fact that the property
stands in the name of the deceased testatrix itself proves capacity of the
testatrix to execute the Will. No evidence has been led that she was not
the owner of the property or was not competent to dispose of the
property by way of Will. In any event, while deciding a probate petition
these issues are not to be gone into when, admittedly, the deceased
testatrix is the registered owner of the property in question. The
question of inheritance of the shop which admittedly was inherited by
the deceased testatrix as a sole tenant after the death of her husband
also cannot be considered as a suspicious circumstance for having
deprived those sons who are now carrying out the business in the shop
of her husband to the exclusion of the other sons to whom the house
has been bequeathed.
28. In view of the aforesaid, the findings returned by the ADJ on both
the issues framed in this case cannot be sustained. The same is hereby
reversed and the appeal is allowed. It is held that the appellants are
entitled to grant of letters of administration of the Will after complying
with other nodal formalities to the satisfaction of the learned ADJ. TCR
be sent back forthwith along with a copy of this order.
CM 17924/2008
Interim order stands vacated.
Application stands disposed of.
MOOL CHAND GARG, J
FEBRUARY 11, 2010
'sg/anb'
