Sham Lal Kapoor (Since Deceased ... vs Tilak Kumar Vadhera & Ors.
2012 Latest Caselaw 99 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Decision : January 05, 2012

+                        FAO(OS) No.253/1998

      SHAM LAL KAPOOR (SINCE DECEASED THRU LRS)...Appellants
          Through: Mr.Atul Shanker Mathur, Advocate and
                   Ms.Shruti Verma, Advocate.


                               versus


      TILAK KUMAR VADHERA & ORS.              ....Respondents
           Through: Mr.Raman Kapur, Senior Advocate with
                    Mr.Dhiraj Sachdeva, Advocate for R-1
                    and R-2.


                         FAO(OS) No.585/2006

      SHAM LAL KAPOOR (SINCE DECEASED THRU LRS)...Appellants
          Through: Mr.Atul Shanker Mathur, Advocate and
                   Ms.Shruti Verma, Advocate.


                               versus


      TILAK KUMAR VADHERA & ANR.              ....Respondents
           Through: Mr.Raman Kapur, Senior Advocate with
                    Mr.Dhiraj Sachdeva, Advocate.


                         RFA (OS) No.4/1999

      SHAM LAL KAPOOR (SINCE DECEASED THRU LRS)...Appellants
          Through: Mr.Atul Shanker Mathur, Advocate and
                   Ms.Shruti Verma, Advocate.

                               versus

      TILAK KUMAR VADHERA & ANR.              ....Respondents
           Through: Mr.Raman Kapur, Senior Advocate with
                    Mr.Dhiraj Sachdeva, Advocate.
FAO(OS) 253/98 & 585/06 & RFA(OS) 04/99                  Page 1 of 20
       CORAM:
      HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
      HON'BLE MS. JUSTICE PRATIBHA RANI


PRADEEP NANDRAJOG, J. (Oral)

1. By the present common decision the above-captioned appeals are being disposed of. Since FAO(OS) No.253/1998 and RFA(OS) No.4/1999 are being allowed, learned counsel for the appellant states that FAO(OS) No.585/2006 may be dismissed as not pressed.

2. Accordingly, we record at the outset that FAO(OS) No.585/2006 is dismissed as not pressed.

3. We now proceed to deal with FAO(OS) No.253/1998 and RFA(OS) No.4/1999.

4. FAO(OS) No.253/1998 and RFA(OS) No.4/1999 have been preferred against a common judgment dated 17 th July, 1998 passed by the learned Single Judge dismissing Probate Petition No.32/1984 filed by the deceased appellant seeking probate of the Will dated February 21, 1983 and the codicil dated November 11, 1983 executed by late Faqir Chand Vadhera and allowing CS(OS) No.1239/1985 filed by the respondents; granting a decree for rendition of accounts as also a decree for permanent injunction prayed for by the respondents against the deceased appellant.

5. Rendition of Accounts was sought for by the respondents pertaining to the business of „Tilak Hosiery‟ conducted from Shop No.2-B Connaught Place, New Delhi on the plea that their late father Faqir Chand Vadhera was the sole proprietor of the business and that the deceased appellant was

an employee and had usurped the business. The decree for permanent injunction pertained to the possession of the shop, which was admittedly under the tenancy of late Sh.Faqir Chand Vadhera. As per the probate petition filed by the deceased appellant, late Sh.Faqir Chand Vadhera and he were the two partners carrying on business under the name and style „Tilak Hosiery‟ and that under the Will and the codicil late Sh.Faqir Chand Vadhera had bequeathed the tenancy rights to him and had also bequeathed the annexe portion of a building popularly known as „Tilak Building‟, Satdhara Road, Dalhousie, Himachal Pradesh. Under the Will, the interest of Faqir Chand Vadhera in the partnership also stands bequeathed to the deceased appellant.

6. Thus, it is apparent that if the probate petition succeeds, the suit filed by the respondents has to be dismissed.

7. The Learned Single Judge has dismissed the Probate Petition on the ground that the two attesting witnesses to the Will who were also the attesting witnesses to the deed of partnership, examined as PW-2 and PW-3, were not trustworthy as their testimony did not inspire confidence on the various counts listed by the learned Single Judge in the impugned decision, which we shall be noting soon hereinafter.

8. A brief resume of the relevant facts at the outset would help a reader of this decision to understand the controversy and the relevant facts to be identified to settle the same.

9. The undisputed fact is that late Faqir Chand Vadhera was blessed with three sons who had migrated to the United States of America in the 1960s and the youngest son died a bachelor. Late Sh.Faqir Chand Vadhera‟s wife predeceased him and thus he was living alone in Delhi carrying on business as the

sole proprietor of „Tilak Hosiery‟. The deceased appellant had his roots in the same village as that of Faqir Chand Vadhera, and in India one would say that the deceased appellant is the brother of Faqir Chand Vadhera because it is common practice to treat boys of one‟s age in a village as brothers. Due to old age and failing health, Faqir Chand Vadhera requested the deceased appellant to shift to Delhi and reside with him in the same house and help him in carrying on the business of „Tilak Hosiery‟.

10. The disputed facts are that as per the deceased appellant, after a while, Faqir Chand Vadhera converted the business into a partnership and made the deceased appellant a partner. Faqir Chand Vadhera owned properties in Dalhousie Himachal Pradesh. As per the deceased appellant, since he had served Faqir Chand Vadhera in his old age, out of love and affection, while executing the Will and the codicil in question, the business and the tenancy rights from the place where business was being conducted being useless for the respondents, (due to they being permanent residents of the United States of America), he bequeathed his share in the business to the deceased appellant as also the tenancy rights of the shop from where the business was conducted. Only the annexe portion of a building popularly known as „Tilak Building‟ at Dalhousie, Himachal Pradesh was bequeathed to him. All other immovable properties were bequeathed to the two sons.

11. At the outset we may note that while dismissing the probate petition filed by the deceased appellant the learned Single Judge has not dealt with the aforesaid facts stating the same to be vicissitude of life which cannot be predicted, a reasoning which we find completely faulty inasmuch as the surrounding circumstances enwombing the life of an executor of

a Will are relevant circumstances to consider the natural setting of the time when the will was given birth to.

12. A bare perusal of the Will Ex.PW-2/A would evidence that what has been bequeathed in favour of the deceased appellant is only the share of capital, goods, accounts and other rights in the business firm under the name and style „Tilak Hosiery‟, as well as the annexe portion of the building known as „Tilak Building‟ situate at Satdhara Road, Dalhousie, Himachal Pradesh. The other two properties owned by the testator have been bequeathed to the respondents. As far as the codicil Ex.PW- 2/B is concerned, the same bequeaths various rights in certain litigations as well as the tenancy rights in the shop bearing No. 2- B, Connaught Place, New Delhi in which the business in the name and style of Tilak Hosiery was being run.

13. The learned Single Judge has discounted the creditworthiness of PW-2 and PW-3, the attesting witnesses to the Will and the codicil on account of the two being unable to give information regarding the personal affairs of the deceased and wherefrom the learned Single Judge has opined that the two could not be the friends of the deceased, a fact claimed by them.

14. The learned Single Judge has completely lost sight of the fact that no family member of the deceased was available at Delhi and thus the deceased had to rely upon his friends to witness solemn document executed by him. Now, friends can be broadly categorized under three heads: (i) people in the neighbourhood with whom one becomes friendly; (ii) people with whom one interacts socially; and (iii) persons who come into contact in course of one‟s avocation. The personal knowledge about the personal affairs of the person concerned is reflected in different degrees of depth by one‟s friends, depending upon under which broad category the friend comes from. For example,

a friend who lives in the neighbourhood would know more about the personal details and the family members. A social acquaintance who becomes a friend would have lesser knowledge on said subject matter and the least knowledge would be a friend in the category of persons who come into contact in course of one‟s avocation.

15. Deceased appellant appeared as PW-1 in the probate petition and deposed that the Will and the codicil were witnessed by Dr.D.N.Sharma and Sh.N.C.Sharma who signed as attesting witnesses.

16. Dr.D.N.Sharma PW-2 clearly stated that he knew the testator; being a customer of the deceased. The relevant part of the examination-in-chief of PW-2 Dr.D.N.Sharma reads as under:-

"The deceased Shri Faqir Chand Vadhera called me to his shop after my clinic timings and I accordingly went his shop. He asked me to sign the will. The deceased signed the will in my presence and thereafter I signed the same. He was mentally and physically fit at that time. I signed in the presence of Shri Faqir Chand Vadhera and he signed the same in my presence. Shri N.C. Sharma was also present there. He also signed the will in my presence and in the presence of Shri Faqir Chand Vadhera. Shri Sham Lal, PW-1 was also present there. The will is Ex. PW-2/A.

I also signed on Codicil. I was contacted by the deceased Shri Faqir Chand Vadhera on telephone. He wanted my presence as he wanted to make certain amendment in his Will. I reached there. He was in a fit condition, physically and mentally. I signed the Codicil first and then Shri N.C.Sharma signed it in my presence. Shri Faqir Chand Vadhera signed the Codicil in my presence and in the presence of Shri N.C.Sharma. Then I signed it in the presence of Shri Faqir Chand Vadhera and Shri N.C. Sharma. The Codicil is Ex. PW2/B.

The partnership deed dated August 1, 1978 bears my signatures as witness. It also bears the signatures of Shri

N.C.Sharma and Shri Faqir Chand Vadhera. I identify their handwriting. It also bears the signatures of Shri Sham Lal, PW1. He signed it in my presence. I identify his signatures. It is Ex. PW-2/C. (To continue tomorrow.)"

17. In the cross-examination PW-2 stated as under:-

"I know Lala Faqir Chand, deceased personally I was on visiting terms in as much as I used to go to his shop for the purposes of purchasing."

18. Shri N.C.Sharma PW-3 in the Probate Petition has stated as under in his examination-in-chief:-

"I have been working in New Delhi Municipal Committee since the year 1960. I knew Lala Faqir Chand Vadhera as his customer. His shop was on my way to my residence. As such, I used to make purchase from his shop.

Ex. PW2/C bears my signatures. I signed the same at the instance of Lala Faqir Chand Vadhera. It was also signed by Dr. D. N. Sharma and Lala Faqir Chand Vadhera.

Lala Faqir Chand Vadhera was in a sound - disposing mind at the time of the execution of the partnership deed. Shri Sham Lal signed the partnership deed after it was signed by Lala Faqir Chand Vadhera.

I was asked through Dr. D. N. Sharma. I was required by Lala Faqir Chand Vadhera i.e. the deceased to sign a will. I was asked to come after lunch interval. I was asked to come after lunch interval. I was asked to come after lunch interval. I accordingly reached there. Lala Faqir Chand Vadhera and Dr. D.N. Sharma and Shri Sham Lal were present at that time. Lala Faqir Chand Vadhera was having a typed will with him when I reached there. He told that he had written a Will. Lala Faqir Chand Vadhera signed the Will first of all and thereafter it was signed by Dr. D.N. Sharma and then it was signed by me. Lala Faqir Chand Vadhera was a sound disposing mind and in his full senses at the time he signed the Will. The Will is Ex. PW2/A.

On a subsequent date I was given a message by Dr. D.N. Sharma that I was required to be present at the shop of Lala

Faqir Chand Vadhera deceased to sign a Codicil. I accordingly reached there. I found Lala Faqir Chand Vadhera present there and Shri Sham Lal and Dr. D.N. Sharma. Lala Faqir Chand Vadhera signed the Codicil and thereafter Dr. D.N. Sharma and then I signed the Codicil. The Codicil is Ex.PW2/B. We also signed the Will and the Codicil in the presence of one another Lala Faqir Chand Vadhera deceased was in a sound disposing mind and in his full senses at the time of the execution of the Codicil."

19. Thus, merely because the two witnesses failed to give information about the personal affairs of the deceased, would not make them discredited persons. They never claimed to be the friends of the deceased as his social friends or friends residing in the neighbourhood. They stated that they knew the deceased, being his customers for the last many years. Thus, it stands to logic and reason that these two worthy gentlemen truthfully stated not knowing the personal details of the deceased.

20. It is unfortunate that the learned Single Judge has merely indexed the various exhibits proved in the probate petition and the suit, without adverting to the same. We do so. But before that we may note that the suit and the probate petition were consolidated with a clear direction that evidence in one would be treated as evidence in the other.

21. At the forefront of the relevant exhibits is the letter Ex.PW-5/D-1 (in Suit No.1239/1985). The same is written by respondent No.2 to the son of the deceased appellant. It reads as under:-

"Dear Kuku:

Thank you for all the information and papers about father. I am really sorry that he is not feeling well and I am very grateful that you and uncle are doing the very best.

I showed his reports to a urologist here in New York. He said the following:

1. The medicine you‟ve asked for Estra Cyt is not available in the United States.

2. Your urologist should consider reaving out the prostrate to relieve pressure on the bladder. This operation is done through the penis.

3. Consider inserting a plastic tube between the right kidney and bladder to prevent complete blockage of the kidney as has occurred in the left kidney.

4. Consider removal of testicles.

I don‟t know any of these but if you show this letter to an expert he will probably be able to give you better advice.

I hope all of you are well and that father will be well soon too. Please let me know immediately after you have discussed this with a specialist.

Also please send me your phone number where I can call in emergency.

Your brother Baldev"

22. The next in line is the letter Ex.PW-5/D-2 (in Suit No. 1239/1985). It reads as under:-

"February 28, 1984 Dear Nane,

I trust this finds you and the family in best of health and sprits. I received your letter some time ago, but could not answer it immediately.

I learnt about father, from Baldev and would like to thank you and your family for taking good care of him during his last day and providing him the company that he needed may his soul rest in peace.

I hope you are happy in your new home. With best wishes.

Sd/- V.K. Tilak

Mrs. Nane Taneja, Taneja Niwas, House No. A-3323, Nai Abadi, Water Tank Hashiarpur Punjab INDIA-146001."

23. The third is the letter Ex.PW-5/D-3 (in Suit No.1239/1985). It reads as under:-

"July 31, 1984

Dear Uncle:

I hope that everything is fine with the family.

Thank you very much for sending me the certificates of deposit. I have opened an account with an Indian bank in New York and have deposited them in that account. So could you please also send me the national savings certificates that are in my name and I will deposit them too.

I had a long discussion with Tilak regarding the shop situation. When Tilak was in India he consulted with the lawyers. They advised him that the tenancy rights to the shop can only be inherited by the legal heirs that is me and Tilak. It is, however, our intention that you should continue to enjoy the same benefits that you had while our father was alive. So if you agree, please let your attorneys draw up a tentative agreement for our discussion.

Best wishes for everything.

BALDEV"

24. The fourth is the letter Ex.PW-5/D-4 (in Suit No.1239/1985). It reads as under:-

"New York, December 24, 1976 Dear Madhu,

hope you and the family are in good health. I received your letter and noted the contents. I am extremely sorry to hear about father‟s prostate trouble and the pain it is causing him. If the pain still persists, it appears to me that he may have no choice except to go for an operation. As the Doctor‟s advise is for an operation, it is advisable for father to undergo operation. I am sure that he is quite capable of making the decision and I hope that he is made the right decision.

You have mentioned about somebody taking responsibility. I am not quite sure what you mean by that. I guess, somebody will have to sign the papers for the operation. I am sure that father is capable of signing those papers and somebody else could sign those papers including your father or somebody from Mr. Radha Kishan Kapoor‟s family. In case they have got to be signed by me, I will appreciate that you will send them to me and I will sign and return the papers. In case of an emergency I could even give approval over a telephone. My number is 212-989-4987.

As regards my trip to India, I am afraid it is not possible for me to visit India at that time. You must understand that I do not live in Bombay or Calcutta where I will some rushing in every time something happens in Delhi. I live, 10,000 miles away and cannot arrange to make those trips at such a short notice without jeopardizing my job and my future. Those ailments and health conditions do occur when people advance in years and the resistance of the body deceases. People do care for them and expect them when they decide to lead their lives by themselves. I am sure father would have thought about the possibility too. Then nothing to worry about and I am sure everything will be alright. Perhaps, you could write to Baldev if he could make the trip at this time.

It appears to me that you have been emotionally carried away by the ailment. Some of the things that you have written do not make any sense. I do not hold fathers life in my hands. His life is in god‟s hands. He is the one who gives life and he is the one who takes it, when he decides for it. My presence or absence in

Delhi is not going to make any difference. I hope and pray that everything will work out fine.

Tilak."

25. The fifth is the letter Ex.PW-5/D-5 (in Suit No. 1239/1985). It reads as under:-

"May 21, 1984 Dear Uncle:

I hope this letter finds you and the family in the best of health and spirits.

I talked to Tilak and he feels that everything is going fine. I understand that he took his FIXED DEPOSITS from you. I also understand that I have some fixed deposits and some are maturing soon. So please send me my fixed deposits and also please send me the National Savings Certificate from the Post Office in Dalhousie that is in the joint name of me and Tilak.

Best wishes and love to all the children.

Yours Baldev"

26. The letters addressed by respondent No.2 and his son clearly bring out that the deceased appellant was looking after late Faqir Chand Vadhera who was terminally ill due to prostrate and it was the deceased appellant and his family who were caring for Faqir Chand Vadhera and the respondents were appreciated of the personal services rendered by the deceased appellant. The letter Ex.PW-5/D-3 is dated July 31, 1984 and is a very relevant document, relevance whereof we would be discussing in the next paragraph.

27. All the above-mentioned letters were confronted to the respondent No.1 during his cross-examination in Suit No.1239/1985 when he appeared as PW-5. It is important to note

that the said letters are both, pre and post the death of the deceased. In all the letters, the respondents have shown their gratitude towards the deceased appellant and his family for taking due care of their father. It is important to note that even as late as 31st July, 1984 i.e. after filing of the Probate Petition No.32/1984, which was filed in March, 1984, and the respondents were served somewhere in May 1984, they continued to be on cordial relations with the deceased appellant and his family and never disputed the Will and the codicil. The relevance of the said fact has to be read particularly in the light of the cross- examination of respondent No.1 appearing as DW-7 in the Probate Petition, which reads as under:-

"My brother got a copy of the impugned Will from Shri Sham Lal in the year 1984 and I came to know with regard to the Will through my brother. The Will was not sent to me. As such I did not write any letter to Shri Sham Lal with regard to the genuineness of the Will."

28. The letter Ex.PW-5/D-3 written on July 31, 1984 has traces of the fact that the respondents knew about the Will and the codicil and the tenancy rights being bequeathed to the deceased appellant evidenced by the concern expressed by respondent No.2 in the said letter qua the tenancy rights, which as per law are incapable of being bequeathed, (unless made assignable under the lease) inasmuch as he writes therein that consultation with lawyers has revealed knowledge to him that tenancy rights can be inherited only by the legal heirs. Where was the need to write so, if the Will and the codicil was not in the knowledge of the respondents. The further sentence in the letter that it is the intention of the respondents that the deceased appellant should continue to enjoy the same benefits that he had when their father was alive, is proof of the fact that the

respondents had accepted the status created by their father. We would simply highlight that at the first opportune moment, the respondents never questioned the execution of the Will or the codicil.

29. The learned Single Judge has totally ignored the contemporaneous exchange of written words through the medium of the letters aforesaid which clearly brings out the admissions of the respondents that their father was terminally sick and was nursed by the deceased appellant. The respondents were concerned with the hiatus created by law of tenancy rights being inheritable by the natural legal heirs and their father bequeathing the same to the deceased appellant. The letters bring out the first reaction of the respondents not to alter the status quo i.e. not to throw out the deceased appellant from the business or the premises i.e. to honour the wishes of their father.

30. As regards the deceased appellant being a partner with late Sh.Faqir Chand Vadhera, the discussion by the learned Single Judge discredits the partnership deed Ex.PW-2/C since the witnesses to the same are D.N.Sharma and N.C.Sharma. The learned Single Judge has ignored Ex.DW-4/1, the statement made by the deceased as a witness in the Eviction Suit filed by the landlord. It reads as under:-

"My brother Shri Sham Lal Kapur is residing with me. He is taking cars of my residential house and works in the shop. He is managing the Shop affairs.

The premises let to me compromised of two rooms. One store, one kitchen, one latrine bath and one verandah. Shri Sham Lal started living in the premises in 1970-71 when I called him Ext. A.7 is correct. A.D. receipt Ex. A.4 was not received by me but it could have been received by Shri Sham Lal. Whatever amount comes to the share of Sham Lal he draws from Tilak Hosiery business.

I have my property in Dalhousie while I have my business in Delhi and I live in both the places.

Whenever I come to Delhi I live with Sham Lal in the same house. Again said I live in the same house. I had written to my partner Sham Lal that he could obtain a ration card from the rationing deptt and then the said Sham Lal got issued the ration card from the authority. Sham Lal draws ration on the said card and my name is also there. Sham Lal has got 5/7 children but at the present 2 children live with Sham Lal in the premises.

In my absence my partner Shri Sham Lal has been prosecuting the case. Sham Lal is the son of sister of my father."

31. It is important to note that the landlord sought eviction on the ground of subletting the premises to the deceased appellant and the defence of Faqir Chand Vadhera was that the deceased appellant was his partner.

32. Importantly, the income tax assessment order for the year ending March 1981, duly exhibited as Ex.PW-4/D1 in the suit clearly shows that the income of the deceased i.e. Faqir Chand Vadhera was shown from amongst others, as „share from M/s.Tilak Hosiery‟. Even the sales tax assessment orders Ex.D-1, Ex.D-2 and Ex.D-3 clearly record that the deceased appellant was a partner of Tilak Hosiery. The income tax return would not have listed the income from Tilak Hosiery as the share if Tilak Hosiery was the sole proprietary firm of Faqir Chand Vadhera.

33. The Learned Single Judge has eschewed total reference to the aforesaid documents on the subject of partnership and thus we hold that the deceased appellant has duly proved being a partner with Faqir Chand Vadhera, both carrying on business under the name and style „M/s.Tilak Hosiery‟ i.e. Ex.PW-2/C stands proved.

34. The natural setting of a Will is a relevant circumstance and cannot be ignored. In the decision reported as AIR 1995 SC 1684 Rabindra Nath Mukherjee & Anr. vs. Panchanan Banerjee (dead) by L.Rs. & Ors., the Supreme Court observed as under:-

"3. A perusal of the two impugned judgments shows that the following were regarded as suspicious circumstances:

(1) Deprivation of the natural heirs by the testatrix.

(2) Identification of the testatrix before the Sub- Registrar by an Advocate of Calcutta who had acted as a lawyer of one of the executors in some cases.

(3) The witnesses to the documents were interested in the appellants.

(4) Active part played by one Subodh, a close relation of Rabindra, one of the executors, in getting execution of the will. He has been described as ubiquitous.

4. As to the first circumstance, we would observe that this should not raise any suspicion, because the whole idea behind execution of will is to interfere with the normal line of succession. So natural heirs would be debarred in every case of will; of course, it may be that in some cases they are fully debarred and in others only partially. As in the present case, the two executors are sons of a half-blood brother of Saroj Bala, whereas the objectors descendants of a full blood sister, the disinheritance of latter could not have been taken as a suspicious circumstance, when some of her descendants are even beneficiaries under the will............

7. Even so, if there be other circumstances on record to show the voluntary character of the document, the eyebrows should get dropped down. And such circumstances were present in the case, which somehow missed the two courts below. These are:

(1) Making of two codicils by Saroj Bala, last of which was about three years after the execution of will. The need for these arose because the testatrix had made use of some of the properties listed in the will. So, the

testatrix knew what was the will for and why it needed change..........

8. If a total view is taken of the aforesaid circumstances, which has to be the approach, we are of the opinion that the courts below overplayed some circumstances which they regarded as suspicious and somehow missed some circumstances which bolstered the case of the propounders."

35. In the decision reported as (2007) 11 SCC 621 Savithri & Ors. vs. Karthyayani Amma & Ors., the Supreme Court observed as under:

"That fact that the testator was totally dependent on his nephew and nieces was beyond any dispute. He lost his employment in the year 1959. Apart from the properties which were subject-matter of the will, he had no other independent source of income. Being totally dependent on the respondents having been suffering from cancer, he was bound to place implicit faith and confidence only upon those who had been looking after him. 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 circumstances.

A will like any other document is to be proved in terms of the provisions of the Succession Act and the Evidence Act. The onus of proving the will is on the propounder. The testamentary capacity of the propounder must also be established. Execution of the will by the testator has to be proved. At least one attesting witness is required to be examined for the purpose of proving the execution of the will. It is required to be shown that the will has been signed by the testator with his free will and that at the relevant time he was in sound disposing state of mind and understood the nature and effect of the disposition. It is also required to be established that he has signed the will in the presence of two witnesses who attested his signature in his presence or in the presence of each other. Only when there exist suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the court before it can be accepted as genuine. However, if a defence

of fraud, coercion or undue influence is raised, the burden would be on the caveator. According to the appellants themselves, the signature of the testator on the will was obtained under undue influence or coercion. The onus to prove the same was on them. They have failed to do so. If the propounder proves that the will was signed by the testator and he at the relevant time was in sound disposing state of mind and understood the nature and effect of disposition, the onus stands discharged."

36. The exclusion of natural heirs, in the present case, has only been limited to the business and tenancy rights of the shop, which in our opinion is natural keeping in mind the fact that the sons of the testator had been residing in the United States of America for the last 30 years before the death of the testator. They would obviously not be returning to India. In his old age and while he was dying, the deceased was looked after by the deceased appellant. To bequeath the business and the tenancy rights to the respondents would be useless as they would not return to India and the business has to be closed down. The tenancy rights would have to be surrendered. Thus, it is natural for the deceased to have bequeathed the same to the deceased appellant.

37. The testimony of the witnesses of the deceased appellant to prove the Probate Petition, who were the attesting witnesses to the Will and the Codicil, could not be rejected merely on the ground that they have been unable to tell the distance between two places or as regards the medical degrees. Both the witnesses have categorically stated that they had seen the testator sign in their presence and they had signed in the presence of the testator and each other. Even in the cross- examination of the two witnesses they have answered every question relating to the execution of the Will and the Codicil on similar lines. The same is sufficient to fulfill the requirements laid

down by Section 63 of the Indian Succession Act, 1925. In our view, merely because the witnesses are unable to answer the questions as regards the personal life of the deceased is not sufficient to disbelieve the witnesses as regards the execution of the Will and the codicil. The learned Single Judge has clearly erred.

38. Before concluding we may note that before commencing arguments, statement of learned counsel for the legal heirs of the deceased appellant and legal heir No.1(x) was recorded as per which they elected not to enforce their right to receive the bequest under the Will and the codicil pertaining to the annexe of the building popularly called Tilak Building, Satdhara Road, Dalhousie, Himachal Pradesh.

39. We accordingly hold that the partnership deed dated August 01, 1978 Ex.PW-2/C is a valid and an authentic document and is supported by the statement of the deceased before the Rent Controller as also the income tax return of the deceased and the sale tax assessments of the partnership firm to establish that the business of „Tilak Hosiery‟ was a partnership business and that the deceased appellant and Faqir Chand Vadhera were the partners thereof. We hold that the Will Ex.PW-2/A and the Codicil Ex.PW-2/B dated February 21, 1983 and November 11, 1983 respectively are the last legal and valid testaments executed by the deceased.

40. Recording the disclaimer made by the legal heirs of the deceased appellant to the property at Dalhousie, we allow FAO(OS) No.253/1998 and set aside the impugned judgment dated July 17, 1998 and allow Probate Petition No.32/1984. We dismiss CS(OS) No.1239/1985 and set aside the impugned judgment dated July 17, 1998 decreeing the suit.

41. To summarize, FAO(OS) No.253/1998 and RFA(OS) No.4/1999 are allowed. FAO(OS) No.585/2006 is dismissed as not pressed.

42. There shall be no order as to costs.

(PRADEEP NANDRAJOG) JUDGE

(PRATIBHA RANI) JUDGE JANUARY 05, 2012 dk