Shri Naginder Singh Sood vs State & Ors.
2011 Latest Caselaw 3027 Del

           THE HIGH COURT OF DELHI AT NEW DELHI

                            TEST CAS. 71/1987

%                                  Judgment delivered on: 03.06.2011

SHRI NAGINDER SINGH SOOD                         ..... Petitioner
                Through : Mr. S.C. Singhal, Adv.
                           versus

STATE & ORS.                                           ..... Respondents
                       Through : None

CORAM:-
HON'BLE MR JUSTICE MANMOHAN SINGH

     1.   Whether Reporters of local papers may be allowed to
          see the judgment ?                                        No

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

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

MANMOHAN SINGH, J.

1. The petitioner Sh. Naginder Singh Sood has filed the present

petition for grant of probate/letters of administration of the Will dated

16.09.1986 executed by late Shri Roshal Lal Sood S/o Sh. Brijlal Sood under

Section 276 of the Indian Succession Act. The case of the petitioner is that

late Sh. Roshal Lall Sood S/o. Sh. Brij Lall Sood, resident of R-580, New

Rajinder Nagar, New Delhi died on 17.11.1986 at Delhi, while he attained

the age of 75 years. He had executed a Will dated 16.09.1986 at New Delhi

as his last Will and Testament. The original Will is annexed in the petition.

The deceased was an ordinary resident of Delhi and he died at Delhi. the

deceased owned ½ share in the immovable property (mutually divided)

bearing No. R-580, New Rajinder Nagar, New Delhi, three fixed deposits

and savings bank accounts and a locker in respect of which the probate/letter

of administration is sought.

2. The deceased Sh. Roshal Lall Sood was issueless and his wife

died in the year 1962, since then the deceased was living in house No. R-

580, New Rajinder Nagar, New Delhi in which ½ share was owned by the

deceased and other half share by his brother-in-law (sala). The deceased

lived all alone after the death of his wife. The deceased bequeathed his entire

assets including movable and immovable property to Master Avneet Sood

S/o. Sh. Naginder Singh Sood, who is grandson of Lt. Sh. Phalwant Singh his

brother-in-law, solely and exclusively.

3. The property/assets in respect of which probate/letter of

administration is being claimed in the present petition is described in more

detail in Annexure - A to this petition. The list of all the legal heirs/near

relatives is also given in Annexure-B to this petition.

4. The petitioner is the named executor of the Will, therefore, he is

competent to apply for the letters of administration/probate in respect of the

Will dated 16.09.1986 executed by the deceased Sh. Roshan Lall Sood.

5. The deceased had fixed place of abode at Delhi. He died at Delhi

and he was having immovable property at Delhi and as such this Court has

territorial jurisdiction to entertain the present petition. It is stated in the

petition that no application has been made to any other court for grant of

probate/letter of administration of the aforesaid Will and the estate of Lt. Sh.

Roshal Lall Sood by the petitioner or anybody else.

6. The detail of the list of properties, movable and immovable, along

with the value thereof left by the deceased reads as under:

MATURITY DATE FDR No. TB 526033 dated 14.01.1990 14.01.1985 for Rs. 46,000/- with State Bank of India (Main Branch (PBD) New Delhi.

         FDR No. U 328804 dated                    02.07.1988
         05.07.1983 for Rs. 30,000/- with
         State Bank of India (PBD Main
         Branch), New Delhi.
         FDR NO. TE 515038 dated                   02.05.1990
         02.05.1985 for Rs. 10,000/- with
         State Bank of India (PBD Main
         Branch) New Delhi.
         Saving Bank A/c No. 12940
         with the State Bank of India
         Main Branch balance as on
         29.11.1986 is Rs. 2771.26/-.
         Share in property No. R-580,
         New Rajinder Nagar, New Delhi
         amounting to Rs. 2,50,000/-.

7. The present petition has been filed against the relations the details

of which are mentioned in annexure B of the petition as well as in the

amended memo of parties. The relation No.7 Sh. Ramesh Chander Sood,

passed away during the pendency of the present petition and his wife Smt.

Prakash Wati Sood, and son Sh. Manjul Sood were impleaded as respondent

Nos. 7 and 7 A in place of Sh. Ramesh Chander Sood.

8. Objections were filed by the respondents Sh. Naresh Sood, Sh.

M.N. Sood, Sh. S.K. Sood and Sh. J.K. Sood.

9. The main objections were that the Will of Lt. Sh. Roshal Lall

Sood has been forged and he never executed the alleged Will and never

presented himself before the Sub-Registrar, New Delhi for the execution of

the Will. The petitioner has procured the alleged will with fraudulent and

unfair means and the same is liable to be rejected. Para 3 of the alleged Will

reads as under:

"I have one sister who is married and I have absolutely no relation with her. I have not seen her for the last more than 10 years and I am not on visiting terms with her."

10. It is also alleged in the objections that the statement of the

deceased was absolutely false, frivolous and shows beyond reasonable doubts

that the alleged Will has not been executed by Sh. Roshal Lall Sood because

of the reason that Smt. Maya Devi, sister of the deceased expired in 1929 at

Hoshiarpur and the respondent Nos. 7 and 8 are the real sons of Lt. Smt.

Maya Devi. The objection was also taken, that at the time of execution of the

alleged Will the executant Lt. Sh. Roshal Lall Sood did not have a sound and

disposing mind and the petitioner has not disclosed the entire property of the

deceased and on this ground the petition is liable to be dismissed. The alleged

signatures of the Executant as shown on the alleged Will are different on each

page and it shows that some dummy person with some malafide has put the

signatures of Lt. Sh. Roshan Lall Sood, in fact, some other person has signed

as Sh. Roshal Lall Sood and committed a fraud.

11. The annexure B is the list of relations/legal heirs of the deceased.

the detail of the same are mentioned as under:

1. Shri. Naresh Sood, S/o. Late P.L. Sood, R/o. B- 38, Pushpanjali Enclave, Near Saraswati Vihar Bus Stand Terminal, Pitampura, New Delhi.

2. Mr. M.N. Sood, S/o. Late Sh. P.L. Sood, R/o. 242, Desh Bandhu Apartment, Kalkaji, New Delhi.

3. Mr. S.K. Sood, S/o. Late Sh. P.L. Sood, R/o. 229, MIG Flat, Rajouri Garden, New Delhi.

4. Mrs. Saroj alias Sudershna Dosaj, R/o. 51 Ara Goan Avenue, Surrey (UK).

5. Mr. Sanjeev Sood, S/o Late Shri Santosh Sood, R/o. Ashapuri Agar Nagar, Ludhiana (PB).

6. Mr. Ramesh Chander Sood, Kailash R/o. Cottage Bazar, Vakillan, Hoshiarpur (PB).

7. Mr. J.K. Sood, C/o. Delhi Press Jhandewalan Extension, New Delhi.

12. It is also a matter of record that along with the probate petition an

affidavit of Sh. Shiv Raj Singh Tyagi and Sh. Ratan Singh who were the

attesting witnesses of the Will dated 16.09.1986 have been filed. In the

rejoinder/replication, the petitioner has denied all the allegations raised by the

respondents who have filed the reply. It is denied by the petitioner, that the

Will propounded by the petitioner is a forged and fabricated one. It is also

denied that it does not bear the signature of Lt. Sh. Roshal Lall Sood and that

he did not appear himself before the Sub-Registrar at the time of registration

of the Will. The petitioner has no concern about the family relations of the

deceased. The petitioner did not know whether the deceased ever had any

sister or not. The Will propounded by the petitioner is a genuine and

authentic one and it was executed by Lt. Sh. Roshan Lall Sood himself and it

bears the signatures of the deceased. Till the time of death, the deceased

lived with the petitioner and his family and he remained mentally alert. The

petitioner has also filed an affidavit dated 29.12.1993 wherein he produced

the original photographs of Lt. Sh. Roshal Lall Sood and also filed the true

and correct pedigree table of Lt. Sh. Roshal Lall Sood. As per the affidavit,

Sh. Roshal Lall Sood had one brother and one sister and both of them

predeceased Lt. Sh. Roshal Lall Sood, who died issueless and his wife

predeceased him in the year 1962.

13. The petitioner Sh. Naginder Singh Sood, who was the executor in

respect of the Will dated 16.03.1986 died on 18.03.2003 at Delhi. His death

certificate is placed on record as exhibit P-1 and he left behind the Avneet

Sood, the present petitioner and respondent No.1 Sh. Amit Sood, his two

sons as his legal heirs. Sh. Amit Sood is the brother of the present petitioner.

As per petitioner, Amit Sood is living abroad and has no objection on grant of

letter of Administration in favour of the petitioner. The amended memo of

parties dated 29.04.2003 is also placed on record. As already mentioned, the

two witnesses namely the new petitioner Avneet Sood S/o. Lt. Sh. Naginder

Singh Sood, the original petitioner, and Sh. Ratan Singh adduced the evidence

as PW-1 and PW-2 in support of the case of the petitioner conforming the

statement made in the probate petition. As far as one of the witnesses Ratan

Singh is concerned, the affidavit dated 19.02.2009 has been filed wherein he

has stated as under:

"I was working with M/s. H.S. Ahuja & Co.

Chartered Accountant Connaught Place from where he has retired in the year 1985. That I had been

looking the private work on various income tax asseesees. Sh. Naginder Singh Sood was known to me as he was getting his accounts work and other income tax work done through M/s. H.S. Ahuja & Co. and in these circumstances I had been dealing with him being an employee of M/s. H.S. Ahuja & Co. I had been visiting the house of Sh. Naginder Singh Sood at R-580, New Rajinder Nagar, New Delhi where he was residing as many a times I required to get certain signatures from him and sometime to collect documents or sometime to deliver the documents. His house was on the way to my house. He had been seeking my advice for investment purposes and similarly I had been meeting Shri Roshan Lall Sood his Phoofard (husband of his father‟s sister) who was also living in the same property on the ground floor. Shri Roshan Lall Sood was also developed intimacy with me during my visits. During one of my visits in the first week of the month of September, 1986 Shri Roshan Lall Sood told me that he has prepared his Will which is required to be signed by two attesting witnesses and as such requested me to sign the same as an attesting witness. On the said date my other friend Shri Shiv Raj Tyagi was also with me and as such both of us signed the same as an attesting witness. Shri Roshan Lall Sood firstly signed the Will on each page in my presence and in the presence of Shri Shiv Raj Singh Tyagi. I can identify his signatures as he signed in my presence and his signatures are at Point A on each page and also at the back of the first page at two places.

Thereafter on his request I signed as an attesting witness and my signatures are at Point B and entire address is in my handwriting. Signature at Col. 2 were kept blank at that time as Shri Roshan Lall Sood that those are required to be signed by an Advocate who will get the Will registered on some later date, however, Shri Shiv Raj Singh Tyagi signed the same in his presence and my presence as one of the attesting witness who was with me. I can identify his signature as he was friendly to me and his signature are at Point C on last page and also at back of the first page. My signatures are also appearing on the back of the first page at Point B.

Thereafter on 10.10.1986 I was to go in respect of determining the valuation of some property at Asaf Ali Road and as such I told Shri Roshal Lall Sood that the Will cane be get registered on the said date. Therefore, I reached at Asaf Ali Road on 10.10.1986 where Shri Roshan Lall Sood was already present and I summoned Shri Shiv Raj Singh Tyagi who was working at Delhi Stock Exchange at that time. Shri Roshan Lall Sood also requested one Advocate present there to sign the said Will who also signed the said Will at Col. 2 at the end but he demanded Rs. 2,000/- for his signature. Shri Roshan Lall Sood refused to pay him hence he scored off his signature and refused to present the Will. Thereafter Shri Roshan Lall Sood requested other lawyers but they refused to sign as an attesting witness and help him to present in presentation of the Will. In these circumstances me, Shri Shiv Raj Singh Tyagi and Shri Roshan Lall Sood together went to the Sub- Registrar and told him none of the lawyer was ready to sign and as such Sub-Registrar entertained us and directed registration of the Will. Thereafter the said Will was registered.

Shri Roshan Lall Sood was having sound disposing mind at the time of execution and registration of the Will rather till his death."

14. The affidavit of Mr Avneet Sood is marked as exhibit PW1/A and

three documents have been proved namely the death certificate of Sh.

Naginder Singh Sood as exhibit P-1, the death certificate of Sh. Roshan Lall

Sood as exhibit P-2 and the original Will of Lt. Sh. Roshan Lall Sood as

exhibit P-3.

15. PW-1 was cross examined by the counsel for the respondent No.

7(a) & (b). In the cross examination, PW-1 deposed that the original petition

does not bear his signature. His date of birth is 23.02.1972. He did not

produce the birth certificate. At the time of execution of the will he was in 7th

or 8th standard. He does not know when Sh. Roshan Lall Sood retired from

the service. However, he was aware that he was working in the government

department but he did not know the name of that department. He also did not

know the name of relatives of Lt. Sh. Roshan Lall Sood. He did not know

whether Roshan Lall had a sister who predeceased him. He deposed that the

Will dated 16.09.1986 was executed in his presence. His father, Rattan Singh,

his brother Amit Sood and Mr Tyagi were also present at the time of

execution of the said Will. He was not aware as to who wrote the said Will.

He deposed that the signatures of witness on the Will were almost similar,

however, the signatures on the marginal of the Will were not similar as there

is some variation from page to page. He denied that Sh. Roshan Lall Sood

had expired at the age of 90 years. He voluntarily deposed that Sh. Roshan

Lall Sood expired at the age of 65 to 75 years as he was too young to know

the exact age of the deceased. He denied that Sh. Roshan Lall was very old,

feeble and sick and unable even to walk just before his death. He confirmed

that he accompanied the testator at the time of registration of the Will and

went to the office of Sub-Registrar on 10.10.1986 between 12 to 12:30 pm.

His father, brother, Mr. Tyagi and Mr Rattan Singh also accompanied him.

He denied the suggestion that his father has forged the Will with the help of

other witnesses. He also denied that they had not impleaded the other

relatives of Mr Roshan Lall Sood intentionally, despite knowing that they

were visiting Mr. Roshan Lall Sood on regular basis. He also denied that the

Will was forged in order to grab the property of the testator as he was old,

sick and unable to walk properly. He further denied that the testator was 90

years old at the time of death and was not of sound mind. He also denied that

the brother in law of Sh. Roshan Lall Sood pressurized him for a loan of Rs.

5 lakhs and that Mr Roshan Lall Sood died in mysterious circumstances.

16. The other witness PW-2, Mr Ratan Singh was cross examined by

the relation of respondent No.7 (a) and (b). He deposed in his cross

examination that prior to the execution of the Will he met Roshan Lall several

times. He stated that he do not know the names of the relatives of Mr.

Roshan Lall. He deposed that he had never met with any relative of Mr

Roshan Lall. He do not know what was the age of Mr Roshan Lal in 1986

but by that time he had already retired from the service. In 1986, probably he

was between 70 to 72 years. He deposed that he do not know from which

department Mr Roshan Lall retired. The Will was executed in 1986 but he did

not know the exact date. He confirmed that the Will was not written in his

presence and he was not aware as to who wrote the same. He admitted that

the signature on column 2 was kept blank at that time as the testator told that

those are required to be signed by an advocate. He was also not aware

whether the Will was got prepared from an advocate or any other person. He

admitted that the name of the scribe is not mentioned on the Will. He denied

the suggestion that Sh. Roshan Lall was not keeping good health in

September 1986 and was sick, feeble and unable to walk. He also denied that

there was any squint in one eye of Mr Roshan Lall. According to him he

visited the house of Nagender Singh Sood, the petitioner on that day to take

his signature on some papers, where Roshan Lall met him and requested him

to witness the Will. The second witness Sh. Shiv Raj Singh Tyagi was

known to him as he was working with him as a part time accountant, and on

that day he accompanied him. He admitted that Lt. Sh. Roshan Lall Sood

called him to witness the said Will. He further stated that Mr. Tyagi had

already expired and he did not mention about the death in his affidavit. He

denied the suggestion that he had prepared a false Will with the connivance of

Mr Nagender Singh Sood and due to that reason Mr. Tyagi refused to appear

as a witness in the matter. He stated that the Will was not registered on the

same day but was got registered in October 1986 probably between 9 th to 11th

October, 1986. He confirmed that at the time of execution of the Will Mr.

Nagender Singh, Mr Tyagi, mother of Nagender Singh, wife of Nagender

Singh, both sons of Nagender Singh were also present at the time of signing

of the Will. He stated that nobody called him for the registration of the Will.

He admitted that there is a cutting at portion „A‟ marked now in the original

Will and the name of the person is not legible. He stated that he cannot say

as to whether Sh. Roshan Lall knew him or not. He deposed that Sh. Roshan

Lall contacted a person, who was an advocate to present the Will for

registration. He voluntarily stated that the said advocate demanded more

money but testator was willing to give only Rs. 1000/- while his demand was

Rs. 2,000/- therefore, his name was struck off at portion „A‟. He stated that it

is correct that the factum of Rs. 1000/- is not mentioned in his affidavit of

evidence. He stated that he called Mr. Shiv Raj Tyagi to sign the Will. He

agreed that Shiv Raj Tyagi had not signed in the column of witnesses

mentioned in the Will. On the question as to whether Shiv Raj Tyagi had

signed the Will at place marked B, now in September 1986 or in October

1986 he answered that Shiv Raj Tyagi had signed at place B in October 1986

when he was called by him at Sub-Registrar‟s office, Asaf Ali Road. He

denied the suggestion that Lt. Sh. Roshan Lall Sood was bed ridden and old

and feeble and unable to walk at the time of execution of the Will. He also

denied the suggestion that Lt. Sh. Roshan Lall Sood died in mysterious

circumstances.

17. The evidence by way of affidavit dated 18.08.2010 of one of the

objectors namely Mr. Manjul Sood, S/o Lt. Sh. Ramesh Chander Sood

(original respondent No.7) has also been adduced. No other

relative/respondent adduced the evidence. In the evidence, similar statement

has been made as stated in the objection filed by the original respondent

No.7. In the affidavit he deposed that the affidavit bears his signatures at

Point A and B and the affidavit is marked as exhibit DW-1/A and also refers

exhibit D-1 and D-2 as documents filed along with the affidavit. Objection

was raised by the learned counsel for the petitioner that the said documents

D-1 and D-2 could not be taken on record as these two documents were not

filed on record earlier . Neither any leave was sought by the respondent to

bring these documents on record. The learned counsel for the respondent

sought an adjournment to take appropriate steps to bring these documents on

record therefore, the examination-in-chief was deferred to 25.11.2010.

Thereafter, the application being I.A. No. 15304/2010 under Order 8 Rule 1-

A CPC was filed by the respondent and the notice was issued in this regard

and the said application was dismissed on merit.

18. In probate cases, the Courts have to first determine whether the

propounder of the Will has discharged the burden placed on him by law under

Section 68 of Indian Evidence Act and Section 63 of Indian Succession Act.

This burden placed on the propounder would be discharged by proof of

testamentary capacity and proof of the signatures of the testator. The burden

then shifts on the contesting party to disclose prima facie existence of

suspicious circumstances, after which the burden shifts back to the

propounder to dispel the suspicion by leading appropriate evidence.

19. The law in this regard has been elaborated in H. Venkatachala

Iyenger -vs- B.N. Thimmajamma, AIR 1959 SC 443, as follows:

18. What is the true legal position in the matter of proof of wills? It is well-known that the proof of wills presents a recurring topic for decision in courts and there are a large number of judicial pronouncements on the subject. The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under Section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Sections 45and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, Sections 59 and 63 of the Indian Succession Act are also relevant. Section 59provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression "a person of sound mind" in the context. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his

direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the will? Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters.

19. However, there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.

20. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder'Monday, December 27, 2010s case that the signature, in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter.

21. Apart from the suspicious circumstances to which we have just referred, in some cases the wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. It is in connection with wills that present such suspicious circumstances that decisions of English courts often mention the test of the satisfaction of judicial conscience. It may be that the reference to judicial conscience in this connection is a heritage from similar observations made

by ecclesiastical courts in England when they exercised jurisdiction with reference to wills; but any objection to the use of the word "conscience" in this context would, in our opinion, be purely technical and academic, if not pedantic. The test merely emphasizes that, in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive.

22. It is obvious that for deciding material questions of fact which arise in applications for probate or in actions on wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. It may, however, be stated generally that a propounder of the will has to prove the due and valid execution of the will and that if there are any suspicious circumstances surrounding the execution of the will the propounder must remove the said suspicions from the mind of the court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties. It is quite true that, as observed by Lord Du Parcq in Harmes v. Hinkson 50 CWN 895, "where a will is charged with suspicion, the rules enjoin a reasonable scepticism, not an obdurate persistence in disbelief. They do not demand from the Judge, even in circumstances of grave suspicion, a resolute and impenetrable incredulity. He is never required to close his mind to the truth". It would sound platitudinous to say so, but it is nevertheless true that in discovering truth even in such cases the judicial mind must always be open though vigilant, cautious and circumspect."

20. In the present case, it was disputed by the objectors that the Will

dated 16.9.1986, was registered and last Will of the deceased. The petitioner

was executor of the Will. The petitioner had also adduced the evidence of

the witnesses. After this, the burden is shifted to the contesting party to

prove the existence of suspicion. In the present case, the objections were filed

by the respondents Sh. Naresh Sood, Sh. M.N. Sood, Sh. S.K. Sood and Sh.

J.K. Sood and the matter was also contested by the legal representatives of

the deceased, Sh. Ramesh Chander Sood who was impleaded as respondent

No. 7, and after his death by his wife Smt. Prakash Wati Sood and

respondent No. 7A Sh. Manjul Sood.

21. The affidavit of Manjul Sood S/o Sh. Ramesh Chander Sood was

also filed. No other relatives adduced any evidence. It appears from the

record that despite opportunity given to the deponent to appear for cross-

examination, the witnesses were not present. Therefore, the Joint Registrar

vide order dated 15.02.2011 could not find any reasonable explanation from

the respondent side for non appearance of the witness and concluded the

evidence. On the face of it, the contesting parties failed to discharge their

burden of existence of suspicious circumstances averred by them in their

objection. On the other hand, it was a registered Will. The original Will has

been proved by the petitioner. Both the witnesses have filed their affidavits

alongwith the petition and one of the witnesses who filed his affidavit as

evidence was also cross examined by the contesting respondents, despite that

the respondents were not able to disapprove the Will produced by the

petitioner. The objections raised by the objector were not proved in

evidence, rather, the deponent/objector did not appear for cross examination

despite of various opportunities granted to him. Thus, the respondents have

totally failed to prove objections set up by them by adducing even iota of

evidence. Therefore, the objections are rejected.

22. Accordingly, the present petition is allowed. The petitioner is

granted probate of the Will dated 16.09.1986 subject to the petitioner filing

necessary court fee on the value of the immovable property as stated in the

Will. The letter of probate therefore, be issued to the petitioner on filing a

surety bond and necessary court fee. The petition stands disposed of.

MANMOHAN SINGH, J JUNE 03, 2011 dp