Delhi High Court
Parmeshwar Prasad (Since ... vs State & Ors. on 3 July, 2012
Author: V.K.Shali
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Test Cas No.26 of 1987
Decided on : 3rd July, 2012
PARMESHWAR PRASAD (since deceased)
Lord Northbrook & Ors. ...... Petitioners
Through: Dr. A.M. Singhvi & Mr. Rajiv Nayyar,
senior Advocates with Mr. Anish
Dayal, Advocate.
Versus
STATE & ORS. ...... Respondents
Through: Mr. T.K. Ganju, senior Advocate with
Mr. Manish Singhvi, AAG and
Mr. Aditya Ganju, Advocates for
the State of Rajasthan.
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J.
1. This judgment shall dispose of the Probate Petition filed
by the petitioners under Section 276 of the Indian Succession
Act, 1925 for grant of probate on the basis of the Will dated
30.10.1985 read with Codicil dated 7.11.1985. This petition
was initiated almost 25 years back and more than thirty
Judges had an occasion to deal with the matter. Though ideally
the petition ought to have been decided within a period of
three to four years or so but there are various factors which
have caused the delay. Final delay has been on account of the
voluminous record, some of which was in a very bad condition.
2. Any how, briefly stated, the facts of the case are that
Late Raja Bahadur Sardar Singh of Khetri (deceased/testator)
had very high credentials. He was a Bar at law from England,
a member of the Constituent Assembly, a Rajya Sabha
Member and also Ambassador to Laos and thus, a highly
educated person. He died on 28.1.1987 as a childless widower
and at that time, he was a resident of 5, Sardar Patel Marg,
New Delhi. It is alleged that being a childless widower with no
legal heirs and with a high sense of social service, he
bequeathed his property to charity for the benefit of public at
large, by virtue of Will dated 30.10.1985. For this purpose, he
got the Will drafted by his personal friend, Daniel Latifi, Senior
Advocate and got the same attested by two persons, one P.N.
Khanna, his Chartered Accountant and R.K. Singh, junior of
Daniel Latifi. He is further stated to have got it deposited with
the Registrar at Tis Hazari Courts. On 7.11.1985, he allegedly
executed a Codicil. The alleged Will of the deceased/Testator
reads as under:-
"THIS IS THE LAST WILL AND
TESTAMENT OF ME, Raja Bahadur
Sardar Singh of Khetri, aged 65,
residing at No.5 Sardar Patel Road,
New Delhi-110021
AND I HEREBY CANCEL AND REVOKE
all my previous Wills and Codicils.
WHEREAS
A. I am a citizen of India, subject
to the Hindu Law of Succession,
and am, under the appropriate
provisions of the Indian
Succession Act and other laws,
fully competent to make this Will
and to create the Trusts herein.
B. I have no relative of the class
mentioned in Section 118 of the
Indian Succession Act.
Nevertheless, to avoid any false
claims, it is my intention to have
this Will deposited in safe
custody with the appropriate
authority as provided by law.
C. I am possessed of immovable
and movable assets as
appear from my Wealth Tax
Returns.1
No Wealth Tax returns attached.
NOW
1. I hereby appoint the following
persons to be and to act Jointly
as Executors hereof, provided
that they may by unanimity,
appoint from time to time one of
their number as Managing
Executor:
(a) Lady Olga Manning of
Hampton Court palace,
East Molesey, Surrey.
(b) Mr. Daniel Latifi, Senior
Advocate, A-20, Neeti
Bagh, New Delhi-110049
(c) Mr. Romesh Thapar, 19,
Kautilya Marg, New Delhi-
110021
(d) Mr. Parmeshwar Prashad,
Mgr. Khetri Investment
Corporation (P) Ltd., 1/9,
Rani Jhansi Road, New
Delhi-110005.
2. I also appoint the said Executors
to be Trustees of the Trust
hereby created.
3. I hereby bequeath and given
unto and to my said Executors
and Trustees, (save and except
such specific assets on
properties of mine as I may
exclude herefrom by any specific
legacy that I may, hereafter
make in favour of any person, by
this Will or by any Codicil hereto
that I may make). ALL THOSE
my properties, movable or
immovable, anywhere, upon
trust as below appears.2
4. The name of the Trust shall be
the KHETRI TRUST.
5. The Trusts herein are:
The promotion of Education, that
is to say the advancement of the
study of science, literature and
the arts, by the grant of
scholarships to deserving
students for study in India or
abroad, by the establishment of
libraries, reading rooms, schools,
academics, laboratories,
research centres or other
institutions, as funds allow and
as the Trustees think fit.
Provided that the Trustees shall
be competent, with the sanction
of the High Court, to vary,
enlarge or restrict the objects of
this Trust.
6. The Executors and Trustees shall
be entitled to remuneration for
their services to these Trusts at
'as below appears' refers to the details of the properties which are not given.
such amount for their services to
these Trusts at such amount as
they may fix, not exceeding
Rs.3,000/- per month. This
may, in appropriate
circumstances, be increased with
the sanction of the High Court,
upon application made in that
behalf. Whenever she is in
India, Lady Manning shall be
entitled to free residence and
travel at and between Khetri
House New Delhi, Khetri house
Jaipur and Sukh Mahal Khetri,
with arrangements and facilities
as she enjoyed in my lifetime.
7. The number of Trustees shall not
at any time be fewer than three
not more than five. In the event
of the death, resignation or
incapacity of any Trustee, the
surviving or remaining Trustees
shall be empowered to appoint a
trustee or trustees in this behalf.
Provided that on the death,
resignation or incapacity of Lady
Manning, named in paragraph 1
hereinabove, the Hon Francis
Baring, s/o Lord & Lady
Northbrook, East Stratton
House, East Stratton,
Winchester, Hants, residing at
Flat No.26, 333 Kings Rd.,
London SW3 shall replace here
as Executor and Trustee.
IN WITNESS WHEREOF I HAVE
HERETO SET MY HAND THIS
THIRTIETH DAY OF OCTOBER 1985 AT
NEW DELHI, in the present of
witnesses known to me whose names,
addresses and signatures appear
below.
Sd/-
RAJA BAHADUR SARDAR
SINGH OF KHETRI
WITNESSES:
1. sd/-
(P.N. Khanna)
14/15 F, Connaught Place,
New Delhi-1
2. sd/-
(Ravi Karan Singh)
Advocate
C/o 61, Supreme Court
New Delhi-1"
3. According to the Will, Lady Olga Manning of Hampton
Court Palace, East Molesey Surrey, U.K., Daniel Latifi, Senior
Advocate, r/o A-20, Neeti Bagh, New Delhi, and Parmeshwar
Prasad, Manager, Khetri Investment Corporation (P) Ltd., r/o
1/9, Rani Jhansi Road, New Delhi, were named as Executors of
the said Will.
4. Parmeshwar Prasad, petitioner No.1 died on 09.3.2003,
petitioner No.2, Ramesh Thapar died in 1987, petitioner No.3,
Lady Olga Manning died on 17.9.1993 and as per the clause 7
of the Will, the executor and the trustee were replaced by Lord
Northbrook and he was substituted as petitioner vide order
dated 24.2.1995 in I.A. no.1695/95. Lord Northbrook is the
surviving Executor and currently the petitioner before this
Court, though no formal order for change of title of the case
has been passed nor any amended memo of parties has been
filed. But as Parmeshwar Prasad has died, Lord Northbrook‟s
name is substituted in exercise of inherent powers of this
Court to put the record straight. His statement before this
Court was recorded on 25.9.2004, when he was personally
present in Court. He had executed a Power of Attorney in
favour of one Prithvi Raj Singh to represent him in Court as he
was resident of U.K. Daniel Latifi, Senior Advocate also
resigned as Executor on 15.2.1987, before this petition was
filed.
5. According to the Will, as averred by the Executors, the
entire properties, situated anywhere, movable and immovable,
belonging to the Raja Bahadur, were bequeathed in favour of a
Trust by the name of Khetri Trust. The said Trust was created
for the benefit of the public at large and for purpose of
promotion of education, that is to say, advancement of studies
of Science, Literature and Arts, by the grant of scholarships to
deserving students for study in India or abroad, by the
establishment of libraries, reading rooms, schools, academics,
laboratories, research centres or other institutions, as the
funds would allow and the Trustees would think fit. All the
Executors and the Trustees were to be paid remuneration for
their services at a fixed rate, not exceeding Rs.3,000/- per
month.
6. After the death of Raja Bahadur, the three Executors,
namely, Parmeshwar Prasad, Ramesh Thapar and Lady Olga
Manning filed a petition jointly as Executors of the Will. The
deceased/testator died on 28.1.1987 and Daniel Latifi
resigned from the Trust, in February, 1987, and the petition
was filed in March, 1987. No cogent reason for resignation
has been given.
7. So far as the Khetri Trust is concerned, it was created on
31.1.1987. The Trust Deed was executed on 14.4.1987.
Eminent persons like Bhaskar Mitter-Chairman Exide Ltd., Mr.
Narottam Sehgal-ICS Former Home Secretary to Govt. of
India, Dr. Romila Thapar, the Eminent Historian, Vikram Lal-
Chairman Eicher Ltd., have held the post of Trustees of the
Khetri Trust. None of the Trustee was alleged to have been
made as the sole controller. Over a period of time, these
Trustees changed and as on 8.7.2003 Lord Northbrook was
made the Executor Trustee of the Will, being son of Lady Olga
Manning, apart from Maharaj Gaj Singh of Jodhpur, Chairman,
Prithvi Raj Singh, Managing Trustee and Ajit Singh.
8. The Trustees of the Trust may have interest in the grant
of probate, although they are not parties to the petition. There
are three applications bearing I.A. Nos.5737-5739/2009, dated
30.4.2009, which are pending adjudication.
9. So far as I.A. No.5737/2009 is concerned, it is for
impleadment of the Trustees of Khetri Trust as a party. So far
as second application bearing No.5738/2009 is concerned, it is
for substitution of list of properties attached to the probate
petition. This application was filed by the petitioners on the
ground that after filing of the testamentary petition, the
petitioners are purported to have come across number of other
properties which were belonging to the deceased/Testator and,
therefore, wanted to include the same in the list of properties.
The third application bearing I.A. No.5739 of 2009 is for
seeking permission from the court to lease out property at 5,
Sardar Patel Marg, New Delhi, in order to generate income for
the purpose of Trust. All these three applications were
pending from the year 2009 in the vain hope that these will be
taken up at the time of final disposal. But as the matter is
now being disposed of, therefore, these applications will also
be dealt with.
10. So far as I.A. No.5737/2009 for impleading the Trustees
are concerned, I feel that there ought to be no objection to
allow the said application because ultimately, it is the trustees
who have to implement and execute the wishes of the
deceased/testator, if the probate/letter of administration is
granted. Therefore, in my view, this application deserves to be
allowed.
11. One of the applications which is pending for adjudication
is regarding permitting the petitioners to amend the schedule
of properties. In this, the learned counsel for the petitioners
has contended that after the filing of the probate petition, the
petitioners learnt about some other properties belonging to the
deceased/testator, details of which are annexed along with the
application which was not given in the schedule attached to
the probate petition. It has been stated that this was on
account of an inadvertent mistake as they were not aware of
these properties belonging to the deceased/testator. The
application was opposed by the objectors. It was averred by
the respondents that the petitioners have not given the correct
account of all the inventories left behind by the
deceased/testator. In this regard, it was contended that no
details of the bank account, fixed deposits and jewellery
articles have been furnished. It has also been stated that
admittedly, the deceased/testator at the time of his death in
Bombay, was living at 5, Sardar Patel Marg, New Delhi.
12. I have carefully considered this submission made by the
respective sides and gone through the judgments in case titled
Basudeo Dalmia & Anr. Vs. The State and Ors.
MANU/DE/1542/2010 and Vinoo Bhagar Vs. Anita Rewal
1980 RLR 245.
13. Both these cases have been relied upon by the learned
counsel for the petitioners for amendment of the schedule of
the properties.
14. I have gone through these judgments. I feel that
because of these judgments, there is absolutely no justification
in denying the prayer sought by the petitioners seeking
amendment of the schedule of the properties as, at the time of
filing of the petition, the petitioners on account of an
inadvertent mistake may not have been aware of the details of
the other movable or immovable properties which are sought
to be included in the schedule to the probate petition. So far
as the stand taken by the respondents that no details of the
bank account, fixed deposits and jewellery articles have been
given, I am of the view that merely because such details have
not been given does not necessarily mean that the petitioners
could not be permitted to give details in case they were aware
of the same. It is well possible that the petitioners themselves
may not be aware of the details of the bank account, fixed
deposits and jewellery articles or it is also possible that the
deceased/testator may have during his life time disposed of or
gifted all these items leaving hardly anything to be bequeathed
by virtue of the Will in question. Therefore, I feel that there is
absolutely no reason to disallow the prayer which has been
made by the petitioners for seeking amendment of the
schedule to the probate petition. Accordingly, the IA
No.5738/2009 is allowed and the petitioners are permitted to
amend the schedule of the properties attached to the probate
petition.
15. This leave us with the third application bearing
No.5739/2009 seeking permission to let out 5, Sardar Patel
Marg, so that income is generated for the benefit of the Trust.
I feel, since this application has remained pending for the last
three years and now that the main petition is being decided,
this can await the outcome of the same.
16. After filing of the probate petition, a number of
objections were filed in response to the citation published in
the „Statesman‟ on 17.4.1987, which had a wide circulation
including in the State of Rajasthan, where most of the
properties were situated. These objections were filed by the
persons, namely, Rajender Singh, who died after filing of the
objection and was represented by his legal heirs, Hemender
Singh, Nagender Singh and Shobha Kanwar. The other
objections were filed by Arjun Singh, Surender Singh,
Narender Singh, Laxman Singh, Dwarka Prasad Parekh and
Raghuvir Singh. Out of these objectors, except Raghuvir
Singh, the rest of the objectors withdrew their objections by
filing applications before the court on 10.2.2009. So far as
Raghuvir Singh is concerned, he was stated to be incarcerated
in connection with some criminal case registered against him
in Jaipur Central Jail, who initially persisted with his objections
and made allegations that the Khetri Trust and other entities
had fraudulently fabricated documents and sold various
properties of Raja‟s Estate, a number of times, however,
before the start of arguments on the merits of the petition,
Raghuvir Singh also withdrew his objections.
17. It was alleged by the learned counsel for the petitioners
that these objections were filed by a consortium in collusion
with land mafia of Delhi, Rajasthan and Haryana who got
involved in illegal sale of several properties while as Mr. Ganju,
the learned senior counsel contended that the very fact that
there were number of objectors to the grant of probate and all
of them withdrew the objections gradually, is indicative of the
fact that there is something more than what meets the eye. It
was contended that these objections could not have been
withdrawn without some consideration having been paid to all
the objectors.
18. The State of Rajasthan had filed an application bearing
I.A. No.867/95 for being impleaded as a party on account of
bona vacantia for want of rightful owner and the fact that it
had taken possession of some of the properties in Jaipur to
preserve them under the Rajasthan Escheat Regulation Act,
1956 and therefore, it was necessary as well as proper party.
The learned Single Judge rejected the application of the State
of Rajasthan for impleadment on the ground that an
application seeking similar relief filed by some third party had
already been rejected by the Court. Feeling aggrieved, the
State of Rajasthan preferred an appeal. The State of Rajasthan
was impleaded as a party to the testamentary petition by
virtue of the order dated 8.11.1996 passed by the Division
Bench in F.A.O. (OS) No.166 of 1996 but it was only permitted
to address arguments on the basis of the existing record and it
did not have the right to lead any evidence. The State of
Rajasthan is alleged to have taken possession of most of the
properties of Raja Bahadur under the Rajasthan Escheat
Regulation Act, 1956. It has also been brought to the notice
of the court that a writ petition against the said proceedings,
initiated by the Khetri Trust is pending in the Rajasthan High
Court, which has been adjourned sine die. As on date, the
State of Rajasthan is the main contesting party to the grant of
probate to the petitioners. Though, no evidence has been
permitted to be produced by it, but has been permitted to
address arguments on the basis of the evidence adduced by
the petitioners and the witnesses produced by the
respondents/objectors who have latter on chosen to withdraw
their objections.
19. The court, after the receipt of the objections from
different persons, had framed the following issues on
21.9.1987 :-
"1. Whether the Will dated 30th October,
1985 and the Codicil dated 7th
November, 1985 propounded by the
petitioners had been validly executed by
Raja Bahadur Singh of Khetri
(deceased) while possessed of sound
disposing mind?
2. Relief."
Evidence of the parties:
20. The petitioners, in order to prove the Will have examined
PW-1, P.N. Khanna, who is purported to be one of the
attesting witness to the Will and Codicil; PW-2, Parmeshwar
Prasad, Manager of the Khetri Trust of Late Raja Bahadur, the
petitioner herein and PW-3, Daniel Latifi, Senior Advocate,
stated to be a personal friend of Late Raja Bahadur and was
Advisor to him on his legal matters. He is also the person who
had scribed the Will. He was examined by the petitioners in
rebuttal after the respondents/objectors had examined the
other attesting witness, RW-8, R.K. Singh.
21. So far as the respondents are concerned, they, in
support of their objections, have examined RW-1, Badri Narain
Nayak, General Secretary of All-India Anti-Corruption Society;
RW-2, Kailash Narain Rawat, Tehsildar, Jaipur, who had
testified confirming that an order under the Rajasthan Escheat
Regulation Act, 1956 was passed in respect of the properties
of Late Raja Bahadur as he had died issueless; RW-3, Dwarka
Prasad, head of the family and in occupation of the portion of
Khetri House. RW-4, Rajender Singh, an Objector and
purported relative of the deceased/Testator; RW-5, Jaswant
Singh, bearer/table boy with Raja Saheb; RW-6, Gopal Singh,
driver of Raja Saheb; RW-7, Kusum Lata, LDC from the Office
of Sub-Registrar, Tis Hazari Courts, who produced the Will of
the deceased/Testator as the same was deposited in the
Officer of Registrar; RW-8, Ravi Karan Singh, an advocate and
junior of Daniel Latifi, who was attesting witness to the Will
and the Codicil, who has not supported the case of the
petitioners and denied having attested the Will in presence of
Late Raja Saheb.
22. The entire thing revolves on the question as to whether
the Will dated 30.10.1985 and Codicil dated 7.11.85,
purported to have been executed by the deceased/Testator,
are duly proved in accordance with law and whether they were
executed by the deceased/Testator by his own independent
will in the presence of two attesting witnesses so as to
bequeath all his movable and immovable properties in favour
of the Khetri Trust. In this regard, the testimony of two
attesting witnesses, PW-1/P.N.Khanna and RW-8/R.K.Singh,
who have been produced by the respective sides, becomes
important. In addition to this, the testimonies which will be
helpful in determination of the issue whether the Will was
genuine or not, would be the testimonies of PW-2,
Parmeshwar Prasad, Manager of Late Raja Bahadur; PW-3,
Daniel Latifi, Senior Advocate and a friend of
deceased/Testator; and RW-7, Kusum Lata, an official witness,
who had produced the original Will from the sub-Registrar‟s
office.
23. Before analyzing the testimonies of these witnesses, it
would be worthwhile to reproduce Section 63 of the Indian
Succession Act, 1925 and Section 68 of the Evidence Act, 1872
which deal with the proof of execution of documents required
by law to be attested.
"Section 63. Execution of unprivileged
Wills.
(c) The Will shall be attested by two or more
witnesses, each of whom has seen the testator
sign, or affix his mark to the Will or has seen
some other person sign the Will, in the presence
by direction of the testator or has received from
the testator a personal acknowledgement of his
signature or mark, or of the signature of the
such other person and each of the witnesses
shall sign the Will in the presence of the testator,
but it shall not be necessary that more than one
witness be present at the same time, and no
particular form of attestation shall be
necessary."
Section 68 Proof of execution of
document required by law to be attested -
If a document is required by law to be attested,
it shall not be used as evidence until one
attesting witness at least has been called for the
purpose of proving its execution, if there by an
attesting witness alive, and subject to the
process of the Court and capable of giving
evidence:
[Provided that it shall not be necessary to call an
attesting witness in proof of the execution of any
document, not being a Will, which has been
registered in accordance with the provision of
the Indian Registration Act, 1908 (16 of 1908),
unless its execution by the person by whom it
purports to have been executed is specifically
denied.]"
Proof of Will dated 30.10.1985
24. The probate petition is supported by an affidavit of one
of the attesting witness, PW-1, P.N. Khanna. It is not in
dispute that there are two attesting witnesses, P.N. Khanna
(PW1) and R.K. Singh (RW-8), to the Will purported to have
been made by the deceased/testator. According to the
aforesaid two Sections, if a document is required to be
attested by law then it shall not be deemed to have been
proved until one of the attesting witness has been called for
the purpose of proving the said document, if the attesting
witnesses are alive.
25. The petitioners in order to prove the Will have to
establish the following facts:-
(i) that the Will dated 30.10.85 is the last Will of the
deceased/testator Raja Bahadur Sardar Singh of Khetri.
(ii) the said Will was signed by him in the presence of two
attesting witnesses namely P.N. Khanna (PW1) and R.K. Singh
(RW-8) or has received from the testator personal
acknowledgement that he has put his signature or mark on the
same.
(iii) That the deceased/testator at the time of making the Will,
was in sound disposing mind.
(iv) That all the three persons had put the signatures on the
Will in the presence of each other and simultaneously.
26. The petitioners in order to prove the Will have examined
the witness P.K. Khanna, as PW-1. He has testified that the
deceased/testator Raja Bahadur Sardar Singh of Khetri had
executed a Will Exhibit P-1 at Tis Hazari, Delhi outside the
Registrar‟s office. According to his testimony, he was a
practicing Chartered Accountant since 1947 and was
representing the deceased/testator in his Income Tax and
Wealth Tax matters before the appropriate authority. He had
stated that on 30.10.85, he had reached at Tis Hazari Courts
at 10.00 a.m., where R.K. Singh, the deceased/testator and 4-
5 other staff members, namely, Gokul Anand, Personal
Assistant, driver of Raja Bahadur Sardar Singh of Khetri and
the other two staff members were present. It is stated by him
that the draft of the typed Will Exhibit P-1 was brought by the
deceased/testator himself, who in his presence and the
presence of RW-8 has put his signatures at portion of side line
„C‟. It is further stated by him that simultaneously, PW-1 and
RW-8 also appended their signatures. He has also stated that
he remained present throughout. That means, from the time
when the deceased/testator arrived and till he completed the
formalities.
27. After signing of the Will, the deceased/testator with the
help of a staff member is stated to have deposited the Will in
the Registrar‟s office and the envelope was also signed by him
which is Exhibit P-2. In his cross examination, he has stated
that as far as he recollects, there were two copies of Exhibit P-
1 of the Will, one was deposited in a sealed cover Exhibit P-2
with the Registrar and the other one was retained by the
deceased/testator. He has also admitted that there could be
more copies, which he might have signed. He has also
testified that on 7.11.1985, he visited the house of the
deceased/testator and signed the Codicil Exhibit P-3 when the
deceased/testator was sitting in sitting cum bedroom. He
stated that RW-8, R.K. Singh, also signed the Codicil around
the same time. He expressed his ignorance about the fact as
to whether PW-2, Parmeshwar Prasad, one of the petitioners
was being paid salary of Rs.2000-3000/- on monthly basis or
not. He has also denied the knowledge of the fact as to
whether under the Will, Parmeshwar Prasad was to get a sum
of Rs.3,000/-, though, he has admitted that Parmeshwar
Prasad was known to him.
28. So far as the fitness of the deceased/testator to make
the Will is concerned, he has denied any knowledge about his
ailment. He has not stated anything either in examination-in-
chief or cross examination which will make the Court draw any
inference that the deceased/testator was not of sound
disposition to make the Will.
29. As against this, the objectors have produced R.K.Singh
the other attesting witness in support of their case, who
appeared as RW-8. He has stated that Exhibit P-1 bears his
signatures at portion „B‟. He has also stated that he was
working at the relevant time as the junior to Daniel Latifi,
Senior Advocate and on his instructions on 29.10.85, had gone
to 5, Sardar Patel Marg, New Delhi and introduced himself to
one Mr. Prasad referring to Parmeshwar Prasad and on his
asking, he signed the document at places mentioned above.
He has also admitted his signatures on Exhibits P-2 and P-3.
He has also stated that at the time when he puts his
signatures on Exhibit P-1, there was nobody else present at
the house of deceased testator except PW-2, Parmeshwar
Prasad. He has also admitted that he had gone to Tis Hazari,
on the asking of PW-2 where some papers were kept in the
safe custody on the asking of Parmeshwar Prasad and he had
signed the sealed cover Exhibit P-2 also. If one examines
minutely, it shows that though the Exhibit P-1 is signed in blue
ink, while as Exhibit P-2 is signed with black ink. One of the
explanations for these two different inks could be that Exhibit
P-1 was signed on 29.10.1985 at 5, Sardar Patel Marg, New
Delhi, while as Exhibit P-2 was signed by him on 30.10.1985
at Tis Hazari, Delhi, therefore, unwittingly, two differtent pens
were used. Conversely, it is very unlikely that a person would
use two different pens/inks unless and until something goes
wrong with the pen itself.
30. So far as the Codicil Exhibit P-3 is concerned, it is stated
by him that he had signed the same in the chamber of Daniel
Latifi, PW-3, when it was brought by PW-2, Parmeshwar
Prasad.
31. In his cross examination, he has stated that he had
never seen Raja Bahadur Sardar Singh of Khetri, who is
purported to have signed the document Exhibit P1 to P-3. He
has also identified the signatures of Daniel Latifi as senior
advocate on bill Exhibit RW-8/PA.
32. In his cross examination, he has also denied that he has
received a sum of Rs.1,000/- by way of a cheque for the
purpose of checking the draft of the Will. He has admitted his
signatures on the Codicil also. However, he denied that he
knew P.N. Khanna, CA (PW-1).
33. It is also denied by him in the suggestion that he was
present along with P.N. Khanna (PW-1) on 29.10.85 and
7.11.85 at the residence of Raja Bahadur Sardar Singh of
Khetri, the deceased/testator. He has also denied that he has
testified at the instance of the objector, as he has been won
over.
34. A perusal of these two testimonies shows that either of
them is telling a lie because the testimony of both these
witnesses is dramatically opposite. It is in this background
that the testimony of PW-3, Daniel Latifi, the senior advocate
who is the scribe of the Will and at whose instance PW-8, R.K.
Singh, his junior had become a witness to the Will, becomes
most crucial.
35. If one goes through the testimony of PW-3/Daniel Latifi,
he has stated that he was present physically along with the
deceased/testator at the time of keeping the Will with the
Registrar at Tis Hazari Courts. He has also stated that Raja
Bahadur Sardar Singh of Khetri was his personal friend and,
therefore, he had accompanied him to Tis Hazari on
30.10.1985. He has also stated that probably R.K. Singh (RW-
8) was there but he was not sure. He has also stated that he
had signed the original Will and was very emphatic in giving
answers in affirmative in this regard. But all these facts
clearly show that his testimony is not corroborated either
orally by the other attesting witnesses of the Will or even by
the circumstances.
36. If we examine the testimony of these three witnesses
together then one thing becomes clear that the Will of the
deceased/testator has not been signed by the
deceased/testator along with the attesting witnesses.
37. Secondly, it is doubtful if it has been signed on
30.10.1985 by the deceased/testator and thirdly, that all of
them were not present at the time of signatures at Tis Hazari.
This is evident from the fact that PW-1 is very emphatic and
clear that he had gone to Tis Hazari Court on 30.10.85 at
10.00 am and the deceased/testator along with his staff
members namely Gokul Anand, two attendants, driver were
present. He has also stated that R.K. Singh (RW-8) was also
present. But he does not name Daniel Latifi (PW-3) as the
person who was present, as claimed by him. Daniel Latifi was
a tall person and he being a senior advocate, his presence
would have been conspicuous which could not have gone
unnoticed though he has stated that he was present in his
personal and professional capacity. But if we believe, the
testimony of PW-1 then not only the deceased/testator
appended his signatures in the presence of PW-1 but also in
the presence of R.K. Singh, RW-8, but this is not borne out
from the testimony of the other two witnesses because PW-1
shows that he was present throughout the time so long as the
deceased/testator remained there, but he does not name
Daniel Latifi, senior counsel as a person, who was also present
at Tis Hazari Courts. It may be possible that he was not aware
of the name of Daniel Latifi, PW-3 but at least he would have
certainly said that a friend of the deceased/testator was also
accompanying him.
38. In addition to this, the testimony of PW-1 is to the effect
that R.K. Singh (RW-8) was present, gets belied by the fact
that Daniel Latifi, PW-3, himself has stated that he is not sure
whether R.K. Singh (RW-8) was present on 30.10.85 at Tis
Hazari Court and this gets further fortified by the fact that R.K.
Singh (RW-8) in his examination in chief is very categorical to
say that on the instructions of the learned senior counsel,
namely Daniel Latifi, he had gone on 29.10.85 to 5, Sardar
Patel Marg, New Delhi where he had appended his signatures
on certain documents at the instance of Parmeshwar Prasad;
meaning thereby, that he had put his signatures at the
instance of Parmeshwar Prasad, PW-2 in terms of the
directions given by his senior counsel. Obviously, at that point
of time, neither the deceased/testator nor P.N. Khanna (PW-
1) were present. Further, if we believe PW-3 regarding the
events on 30.10.85 then RW-8 was not present on that day
while as RW-8 say that he went to Tis Hazari on 30.10.85,
though he had signed the Will on the previous day. R.K. Singh,
RW-8 does not talk about the presence of PW-3, Daniel Latifi
on 30.10.85. Therefore, one thing is clear that PW-3 was not
present on 30.10.85 at Tis Hazari; Secondly, RW-8, R.K.
Singh, had signed the Will on 29.10.85 and not on 30.10.85 as
claimed by PW-1 P.N. Khanna and thirdly, at the time when
RW-8 signed the Will, the deceased/testator was not present
nor did the deceased/testator admit his signatures on the Will
to RW-8 because R.K. Singh, RW-8, is categorical that he has
not seen him at all.
39. If that be so, certainly, it is established by the
preponderance of probability that PW-1 is not truthful and he
is lying both with regard to the factum of the presence of all
three persons on 30.10.85 as well as the factum of all three of
them having put their signatures simultaneously and it is not
safe to rely on his testimony.
40. If that be so, certainly, it cannot be said with certainty
that the Will dated 30.10.1985 is genuine and the Will is
proved in accordance with Section 63 of the Indian Succession
Act read with Section 68 of the Evidence Act.
41. Mr. Dayal, the learned counsel for the petitioners, so far
as the law regarding grant of probate is concerned, has
referred to a case titled Daulat Ram & Ors. Vs. Sodha & Ors.
(2005) 2 SCC 40, wherein it has been held by the Apex Court
as under:-
"10. Will being a document has to be proved
by primary evidence except where the court
permits a document to be proved by leading
secondary evidence. Since it is required to be
attested, as provided in Section 68 of the
Indian Evidence Act, 1872, it cannot be used
as evidence until one of the attesting
witnesses at least has been called for the
purpose of proving its execution, if there be
an attesting witness alive, and subject to the
process of the Court and capable of giving
evidence. In addition, it has to satisfy the
requirements of Section 63 of the Indian
Succession Act, 1925. In order to document,
the propounder has to show that the Will was
signed by the testator and that he had put his
signatures to the testament of his own free
will; that he was at the relevant time in a
sound disposing state of mind and understood
the nature and effect of the dispositions and
that the testator had signed it in the presence
of two witnesses who attested it in his
presence and in the presence of each other.
Once these elements are established, the
onus which rests on the propounder is
discharged. But where there are suspicious
circumstances, the onus is on the propounder
to remove the suspicion by leading
appropriate evidence. The burden to prove
that the Will was forged or that it was
obtained under undue influence or coercion or
by playing a fraud is on the person who
alleges it to be so."
42. Another judgment cited by Mr.Dayal, the learned counsel
was Gurdev Kaur & Ors. Vs. Kaki & Ors. (2007) 1 SCC 546,
wherein it was held that if a Will appears on the face of it, to
have been duly executed and attested in accordance with the
requirement of the statute, a presumption of due execution
and attestation applies.
43. There is no dispute with this preposition, if it appears
from the face of the Will that it has been duly executed and
attested in accordance with the requirement of the statute, a
presumption of due execution and attestation may be drawn
but this presumption will have to be drawn in the light of the
facts and circumstances of the case as it emerges from the
testimony of the attesting witness(s) who are produced.
44. In this context, another judgment have been relied upon
by the learned counsel for the petitioners, which is Mathew Vs.
Devassykutty & Ors. AIR 1988 Kerala 315, wherein it was
held that if one of the attesting witnesses is denying the
attestation of the Will in testator‟s presence and otherwise, the
Will is rational and executed in sound mental state and the
Legatees be granted letters of administration then the Will, will
be deemed to have been proved.
45. In the facts of the said case, the elder son was totally
disinherited as he had already been amply provided by the
testator and it was observed that his disinheritance would not
affect the validity of the Will when one of the attesting
witnesses has categorically stated that he and the other
attesting witnesses attested the Will in the presence of the
testator and saw the signing of the Will but one of the
attesting witness has stated that the Will was not attested by
him in the presence of the testator.
46. Similarly, Mr. Dayal, had also referred to a judgment of
Andhra Pradesh High Court in case titled Bandaru Veeramma &
Ors Vs. Chirravuri Ramakrishna Sarma & Ors. AIR 1976
Andhra Pradesh 370, wherein it was held that in the event
of a attesting witness being declared hostile, it is presumable
for the propounder of the Will to cross examine such an
attesting witness and it will also be legitimate for such a
propounder to rely upon the evidence to show that the Will has
been properly executed.
47. These judgments have been relied upon by the learned
counsel for the petitioners to contend that as in the instant
case, RW-8/R.K. Singh, the second attesting witness has
sought to testify in a manner which will demolish the
testimony of PW-1/P.N. Khanna with regard to the attestation
and signature on the Will, by saying that he had signed the
Will at the residence of the deceased/testator i.e. 5 Sardar
Patel Marg, New Delhi-110021 and that too on 29.10.1985
while as, the case of the petitioners is that the
deceased/testator had made a Will on 30.10.85 at Tis Hazari,
where he had put his signatures in the presence of both the
attesting witnesses and therefore, his testimony deserves to
be excluded. It was urged that the testimony of this witness
was actuated by mala fides. He wanted to testify in favour of
the objectors because they have influenced him. It was urged
that the testimony of RW-8 is unreliable, be discarded
completely in the light of the testimony of PW-3, Daniel Latifi/
the scribe of the Will who happened to be the senior counsel
coupled with the testimony of PW-1 who has fully proved the
Will and therefore, a presumption with regard to the proof of
the Will under these circumstances can be drawn.
48. I am not impressed by this submission made by
Mr.Dayal, the learned counsel, that merely because RW-8 has
not supported the testimony of the other attesting witness
PW1, with regard to the place of signing and the date of
signing, therefore, his testimony deserves to be discarded.
RW-8, R.K. Singh, cannot also be said to be a hostile witness
merely because he has not deposed the way the petitioners
would have liked him to depose. Secondly, a witness could be
declared as hostile only by the party who has produced him as
it gives such a party the right to cross-examine the witness.
In the instant case, RW-8, R.K. Singh, has not been produced
by the petitioners, therefore, he cannot be said to be hostile
so far as the petitioners are concerned as per the Evidence
Act.
49. On the contrary, it is established by preponderance of
probability that not only the date of signing the Will, the place
of signing the Will is also doubtful as well as the signing of the
Will by all three of them, simultaneously, itself is under doubt.
This is so, if we were to analyze the testimony of PW-1 and
PW-3, the scribe of the Will and RW-8, R.K. Singh.
50. I have hereinabove referred in detail that PW-1/P.N.
Khanna is admittedly, the CA of the deceased/testator who
was attending to his financial matters. He is very emphatic
and clear that he had put the signatures on the Will in
duplicate on 30.10.85 at Tis Hazari in the presence of the
deceased/testator. He is also very clear that the
deceased/testator was accompanied by 4-5 persons, one of
whom was a driver and the other attendant, namely, Mr.Gokul
Anand and Parmeshwar Prasad and he remained present
throughout; that means, from the time of signing of the Will
till the time the deceased/testator might have left. He does
not name PW-3, Daniel Latifi, as the person who was present
at the time of signing at Tis Hazari while as Daniel Latifi says
that he had accompanied the deceased/testator to Tis Hazari.
PW-1 also in his cross examination is doubtful as to whether
he signed only two copies of the Will or more and said that it
could be more. As against this, he was also very emphatic
that RW-8 also puts his signatures at Tis Hazari while as, RW-
8/R.K. Singh in his examination-in-chief and cross examination
has stood his ground firmly by stating that he had signed the
Will on 29.10.85 at 5, Sardar Patel Marg, New Delhi. He was
also given suggestions by the petitioners to the effect that he
signed the Will at 5, Sardar Patel Marg, New Delhi on
29.10.85; that means, the petitioners themselves are
admitting at least one fact that RW-8 had signed the Will at 5,
Sardar Patel Marg, New Delhi. Further RW-8 states that he
had not seen the deceased/testator at the time of signing of
the Will and he simply puts signatures on some documents at
the instance of one „Prasad‟, obviously referring to Parmeshwar
Prasad. He has also stated that the Codicil Exhibit P-3 is
signed by him on 07.11.85 at the Chamber of PW-3, Daniel
Latifi and not in the presence of PW-1, P.N. Khanna or the
deceased/testator. Therefore, in the light of this scenario, one
thing is clear that the Will and the codicil are not signed by all
the persons simultaneously, either at Tis Hazari or at 5, Sardar
Patel Marg, New Delhi, and secondly, if one assumes that the
Will was signed at Tis Hazari then obviously, it becomes
doubtful that all three of them have put signatures
simultaneously because of the testimony of RW-8, R.K. Singh,
for which, in my view, there is no reason to discard his
testimony as he has nothing to gain personally.
51. So far as the signing of the Will on 30.10.85 at Tis Hazari
is concerned, it further becomes doubtful because both PW-1
and PW-3 are claiming to be present on the said date at Tis
Hazari, yet each one of them did not see each other or give
the names of each other. Therefore, both of them could not
have been present and one of them is at least not giving the
correct picture. PW-3, Daniel Latifi also said that he has put
his signatures on the Will on 30.10.85 at Tis Hazari while as
the signatures are not appearing on any of the pages of the
Will. Therefore, the very signing of the Will at Tis Hazari in the
presence of these persons becomes doubtful. If one assumes
that the Will was signed on 29.10.85 at 5, Sardar Patel Marg,
New Delhi, this is contrary to the very basis of the
case of the petitioners who have set up the Will with the
affirmation that it was signed on 30.10.85 at Tis Hazari.
52. In addition to this, even if the petitioners are given the
benefit of doubt of some mistake with regard to the date and
even if it is on 29.10.85, PW-1 was not present at 5, Sardar
Patel Marg, New Delhi, therefore, this becomes a matter which
is highly doubtful and the Will cannot be deemed to have been
proved, notwithstanding the fact that both the attesting
witnesses are testifying contrary to each other.
53. Mr. Dayal, the learned counsel has also placed reliance
on case titled Krishna Kumar Birla Vs. Rajendra Singh Lodha &
Ors. 2008 (4) SCC 300 and case titled Damodar Bordoloi Vs.
Mrinalini Devi Trust Board & Ors. AIR 1999 Guwahati 53
with regard to the principles regarding proof of the execution
of the Will to contend that in the said case the attesting
witnesses did not state that they have signed the Will in the
presence of a testator then a presumption in such a case of
the absence of due attestation was not warranted. It was also
observed that the proof of the testamentary capacity of the
deceased/testator is to be established from the evidence of a
competent and disinterested witness while as, RW-8 was
stated to be an interested witness. It is stated that he has
denied even the receipt of his fee of Rs.1000/- which has been
proved by PW-3 with the help of a bill.
54. I do not think that denial of receipt of fee of Rs.1000/- by
RW-8 in any way dents his testimony. Apart from this, even if
Ex.RW-8/PA, the bill is stated to have been proved, it is at
best a bill which is floated by him for the purpose of raising the
bill and is not a document showing the payment to the RW-8,
R.K. Singh.
55. I have gone through the aforesaid judgments. In
Damodar Bordoloi‟s case (supra), relied upon by the learned
counsel, it was held as under:-
"it cannot be laid down as a matter of law
that because the witness did not state in
Court that they signed the Will in the
presence of the testator, it could not be
assumed that there was no due
attestation. It was further held that if a
witness owing to inadvertence fails to say
that he had attested the document in the
presence of the testator and narrates the
consequence which leads to no other
inference but one that he had put his
signature in the presence of the testator,
then this omission on the part of the
witness would not invalidate the Will and it
shall not preclude the Court to infer this
fact from other evidence on record that
the witnesses had signed the document in
the presence of the testator."
56. It was further observed as under:-
"the law does not emphasis that the
witness must use the language of Section
63 to prove the requisite matters thereof.
In a case where attesting witnesses are
produced and they have given clear and
cogent testimony regarding execution, one
should require very the strong ground to
repel the effect of such testimony."
57. I do not think that there could be any disagreement with
the judgment which has been cited by the learned counsel.
The only dispute is as to whether the observations made by
the learned Single Judge of Guwahati High Court would be
applicable to the facts of the present case.
58. To my mind, the facts of the present case as it emerges
from the testimony of the attesting witnesses does not show
that it is a case where on account of inadvertence, the
attesting witnesses does testify that they have seen the Will
being signed in the presence of the deceased/testator. On the
contrary, RW-8 has categorically stated in his examination-in-
chief and cross examination that he signed the Will on
29.10.85 at 5, Sardar Patel Marg, New Delhi at the instance of
his senior counsel PW-3, Daniel Latifi in the presence of one
Prasad only, namely, Parmeshar Prasad, PW-2. He has also
stated categorically that while signing the Will, he had not
seen the deceased/testator. Obviously, in such contingency,
it cannot be said that the principles which have been evolved
by the High Court of Guwahati in the facts of the said case can
be made applicable to the fact of the present case, where
there is a categorical evidence to the contrary. This is further
fortified by the fact that PW-1 gives altogether a different
picture with regard to the date, time and the place of signing.
Therefore, this judgment is distinguishable from the facts of
the case and its ratio is not applicable.
59. In the light of the aforesaid analysis of the evidence, I
feel that the judgments of Mathew‟s, Bandaru„s cases (supra)
and Sridevi Vs. Jayaraja Shetty & Ors. 2005 (2) SCC 784 are
distinguishable from the facts of the present case.
60. In K.K. Birla‟s case (supra), the Supreme Court has
observed that the probate Court would not decide any dispute
with regard to the title and therefore, a separate suit would lie.
I do not think there can be any issue on that score nor is such
a preposition of law involved in the instant case. Similarly, in
Sridevi‟s case (supra), it has been held that the onus of proof
to begin with, is on the propounder regarding the
testamentary capacity and signatures of the testator. In
addition to this, the onus with regard to the absence of any
suspicious circumstances is also on the petitioners. Once this
onus is discharged, the burden of proof shifts to the
respondents and onus to establish the allegations of undue
influence, fraud and coercion is on the person making such
allegations. It has also been observed that proof in either case
should be one of the satisfaction of a prudent man.
61. Regarding this proposition of law also, there could be no
quarrel. The onus is on the petitioners in the instant case to
establish the proof of execution of the Will of the
deceased/testator when he was in a sound state of mind. The
petitioners also have the onus to show that there was no
suspicious circumstance and it is only when this onus is
discharged, that the onus to prove, the existence of suspicious
circumstance regarding Will, will shift on to the respondents.
62. In the instant case, I have already examined the
question of proof of execution of the Will which I feel that the
petitioners have failed miserably to establish by any cogent,
reliable, credible evidence to the satisfaction of a prudent man
or the Court that the Will dated 30.10.85 was made by the
deceased/testator bequeathing his movable or immovable
properties to a Trust and that the Will was signed on 30.10.85
by him simultaneously in the presence of two attesting
witnesses and thereafter, got registered.
Non-compliance of Section 276(3) with Section 283 (3)
of the Indian Succession Act, 1925
63. Mr. Ganju, the learned senior counsel appearing for the
State of Rajasthan has contended that no probate can be
granted to the petitioners inasmuch as the mandatory
requirement of Section 276 (3) and Section 283 sub-Section
(3) of the Indian Succession Act, 1925 regarding publication of
the citation in a District in which a part of the property is
situated, has not been mandatorily complied with. It was
contended that the petitioners have also not made list of
assets in each District as contemplated in Section 276 (3) of
the Indian Succession Act. It will be worthwhile to reproduce
the language of the aforesaid sections, which reads as under :-
"276 Petition for probate. -
...........
(3) Where the application is to the District
Judge and any portion of the assets likely
to come to the petitioner‟s hands is situate
in another State, the petition shall further
state the amount of such assets in each
State and the District Judges within whose
jurisdiction such assets are situate."
"283 Powers of District Judge. -
.......
(3) Where any portion of the assets has
been stated by the petitioner to be situate
within the jurisdiction of a District Judge in
another State, the District Judge issuing the
same shall cause a copy of the citation to
be sent to such other District Judge, who
shall publish the same in the same manner
as if it were a citation issued by himself,
and shall certify such publication to the
District Judge who issued the citation."
64. Mr. Ganju, the learned senior counsel, on the strength of
the aforesaid statutory provisions has placed reliance on case
titled Basanti Devi vs. Ravi Prakash Ram Prasad Jaiswal;
(2008) 1 SCC 267 to contend that since the Apex Court in
the said judgment has held the requirements of Section 283
sub-Section (3) to be mandatory in nature, and as the said
requirement has not been complied with in the instant case,
therefore, no probate can be granted.
65. It was contended by Mr. Dayal, the learned counsel for
the petitioners that citation was published in National Edition
of „Statesman‟ which has a wide circulation in Rajasthan.
Notices were issued to the District Judge, Jaipur on 2.11.87
and 7.11.87. The State of Rajasthan filed an application being
I.A. No.915/2010 for citation to be published in „Statesman‟
after a lapse of 23 years. Further, the facts of the Basanti
Devi‟s case (supra) were different. In the said case, the
respondent, in the first instance, did not disclose that the
deceased/testator had property at a place other than the State
of Maharastra. Even when the application for amendment was
filed, it was not disclosed that there is another property
situated in District Pratapgarh, State of UP. It was in this
background that the Apex Court observed that a person having
no knowledge about the proceedings in the absence of a
proper citation was entitled to get the probate revoked.
66. As against this, in the present case, the details of the
properties as available in different District was given. The
news relating to probate application was very well covered by
the local dailies of Rajasthan. Objections were filed by number
of persons, some of whom were from Jhunjhunu District.
Therefore, it could not be said that conditions of Section
283(3) were not complied with. It was further urged that the
State of Rajasthan having invoked the provisions of the
Rajasthan Escheat Regulation Act, 1956, themselves had
issued notification under Section 6 (i) (b) of the said Act.
Therefore, this was sufficient compliance.
67. I have carefully considered the submissions made by the
respective sides. I have also gone through the judgment cited
by the learned senior counsel for the State of Rajasthan. I
agree with the contention of the learned counsel for the
petitioners that merely because there is alleged non-
compliance of Section 283 (3) of the Indian Succession Act,
1925 on account of non-publication of the citation in the
District of Jhunjhunu through the District Judge, that will not
be a ground for denial of grant of probate to the petitioners,
provided the Will is otherwise proved. This is on account of
the fact that the very purpose of compliance of this mandatory
requirement is to make the party know about the pendency of
the probate petition. In the instant case, the State of
Rajasthan is vehemently contesting the probate petition before
this court as well as also contesting the writ petition filed by
the petitioners before the Rajasthan High Court. Therefore, it
was within the knowledge of the State of Rajasthan that the
probate petition is pending before the appropriate judicial
forum for adjudication. It does not lie in the mouth of the
State of Rajasthan to contend that though they are aware of
the pendency of the probate petition and are contesting the
same yet, the petitioners should be denied the grant of
probate on account of the non-compliance of the mandatory
provisions under Section 283 (3) of the Indian Succession Act,
1925. It is not a case where an objector to the grant of
probate petition has come to the court saying that he was not
aware of the proceedings pending before the Court. On the
contrary, despite the non publication of the citation by the
District Judge, Jhunjhunu, the objectors did file number of
objections. Therefore, in my view, this was sufficient
compliance of Section 283 (3) of the Act. It is also not a case
where the grant of probate is sought to be revoked on account
of non-compliance of this mandatory requirement in Basanti
Devi‟s case (supra), therefore, I hold that this contention of
the State of Rajasthan is without any substance and is
accordingly, rejected as a ground for non-grant of probate.
Duplicate Will and Will void on account of uncertainty
68. Mr. Ganju, the learned senior counsel had next
contended that merely because Will Exhibit P-1 has been
registered by the deceased/testator with the Registrar‟s office,
that does not dispense with the requirement of proof of the
due execution and attestation of the Will for grant of letter of
administration or probate. It was contended that the Will
which has been exhibited as Exhibit P-1, bears the duplicate
stamp. It was contended that if it was duplicate, then before
taking this as a secondary evidence, the petitioners had to
establish that the original Will was not available or the
conditions which would have made the secondary evidence
admissible in terms of Section 66 of the Evidence Act, 1872
were existing.
69. Further, the learned senior counsel has referred to
paragraphs 12 and 13 of the judgment of the Apex Court in
Apoline D‟Souza vs. John D‟Souza; (2007) 7 SCC 225 as to
how the Will is to be proved. Relevant paragraph Nos.12 and
13 of the said judgment are reproduced as under:-
"12. What should be the mode of execution
of a will has been laid down in Section 63 of
the Succession Act in the following terms :
"63. Execution of unprivileged wills. -
Every testator, not being a soldier
employed in an expedition or engaged in
actual warfare, or an airman so
employed or engaged, or a mariner at
sea, shall execute his will according to
the following rules:
(a) The testator shall sign or shall
affix his marks to the will, or it shall be
signed by some other person in his
presence and by his direction.
(b) The signature or mark of the
testator, or the signature of the person
signing for him, shall be so placed that it
shall appear that it was intended thereby
to give effect to the writing to a Will.
(c) The Will shall be attested by two or
more witnesses, each of whom has seen
the testator sign or affix his mark to the
Will or has seen some other person sign
the Will, in the presence by the direction
of the testator, or has received from the
testator a personal acknowledgement of
his signature or mark, or of the
signature of such other person; and each
of the witnesses shall sign the Will in the
presence of the testator, but it shall not
be necessary that more than one witness
be present at the same time, and no
particular form of attestation shall be
necessary
13. Section 68 of the Evidence Act, 1872
provides for the mode and manner in which
execution of the Will is to be proved. Proof
of attestation of the Will is a mandatory
requirement. Attestation is sought to be
proved by PW-2 only. Both the daughters
of the testatrix were nuns. No property,
therefore, could be bequeathed in their
favour. In fact one of them had expired
long back. Relation of the testatrix with the
respondent admittedly was very cordial.
The appellant before us has not been able
to prove that she had been staying with the
testatrix since 1986 and only on that
account she was made a beneficiary
thereof. The Will was full of suspicious
circumstances. PW-2 categorically stated
that the Will was drafted before her coming
to the residence of the testratrix and she
had only proved her signature as a witness
to the execution of the Will but the
document was a handwritten one. The
original Will is typed in Kannada, although
the blanks were filled up with English
letters. There is no evidence to show that
the contents of the Will were read over and
explained to the testatrix. PW-2 was not
known to her. Why was she called and who
called her to attest the Will is shrouded in
mystery. Her evidence is not at all
satisfactory in regard to the proper frame
of mind of the testatrix. There were
several cuttings and over writings also in
the Will."
70. It was also contended that the initial onus with regard to
the proof of the Will has to be discharged by the petitioners
and in the instant case, the petitioners have failed to discharge
the said onus. Reliance in this regard was drawn to the
testimony of RW-8, R.K. Singh, to contend that he has not
proved the signatures of the deceased/testator.
71. It was contended that the Will which has been sought to
be proved by the petitioners lacks in description of extent
properties alleged to be bequeathed by the defendants. It is
contended that Section 89 of the Act makes such Will void for
uncertainty. It is also contended that strangers have been
included as attesting witnesses, which is quite intriguing. It is
contended that there is utter improbability of the testator
being highly educated would get his Will attested by the two
persons who were not closely associated with him. In this
regard, the learned counsel has put reliance on the
observations passed by the Apex Court in Smt. Jaswant Kaur
vs. Smt. Amrit Kaur & Ors; (1977) 1 SCC 369 which reads as
under :-
"..................Neither is the place of execution
mentioned. The Will also lacks in
description of the extensive properties
allegedly bequeathed to the defendant.
The inclusion of strangers as attesting
witnesses is intriguing. The utter
improbability of the testator accosting two
strangers for getting his Will attested and
the fundamental contradictions in their
evidence render it impossible to hold that
they attested the Will at the instance of the
testator as alleged. A man of importance
that the testator was, he could not ever
have left the validity of his Will to depend
on the unpredictable attitude of unknown
elements..................."
72. It has been contended by the learned counsel that since
the deceased/testator was a law knowing person, well-placed
in life, being a Member of Constituent Assembly, Member of
Rajya Sabha and even an Ambassador to Laos on behalf of
Government of India, it is very unlikely that he would have
placed reliance on two unknown persons like PW-1, P.N.
Khanna, and RW-8, R.K. Singh, junior to his friend PW-3
Daniel Latifi, as the persons who would be attesting witnesses
to his Will. It is further contended that he would have made
persons, who were intimately associated with him like
Mr.Parmeshwar Prasad and Gokul Anand or other known
person as attesting witness rather than selecting two unknown
strangers.
73. Further, it has also been contended by him that if one
reads the Will, it refers to bequeathing of his all movable and
immovable properties, as detailed in income-tax and wealth-
tax returns to the Khetri Trust, which was likely to be created.
It has also been stated in the Will that these detailed
properties are mentioned „herein below‟ but neither the details
of the properties are given in the Will itself nor the copies of
the wealth-tax return or income-tax return, indicating the
number of properties owned by him which are purported to
have been bequeathed, have been attached, therefore, it has
been contended in terms of Jaswant Kaur‟s case (supra), that
the Will is fraught with high improbabilities and it will not be
safe to rely upon.
74. This plea has been contested by the learned counsel for
the petitioners. It has been contended by him that there was
no doubt in the mind of the deceased/testator as to the
witnesses or the nature of properties owned by him. There
was no confusion about the intent of the deceased/testator as
he wanted to bequeath all his movable and immovable
properties to a Trust for the benefit of the public at large for
the purpose of education, welfare, medicines, etc., therefore,
he was very clear while bequeathing the property that all
movable and immovable properties have to go to the said
Trust for the benefit of the public at large. It is contended that
the objection or the contention of the learned counsel for the
State of Rajasthan is without any merit.
75. I have considered the rival contentions. I find substance
in the submission made by Mr. Ganju, the learned senior
counsel for the State of Rajasthan that the Will lacks
particulars and is fraught with improbabilities. In this regard,
it would be pertinent here to refer to Section 89 of the Indian
Succession Act, along with illustration which reads as under:-
"89. Will or bequest void for
uncertainty.--A will or bequest not
expressive of any definite intention is void
for uncertainty."
Illustration
If a testator says "I bequeath goods
to A", or "I bequeath to A", or "I leave to A
all the goods mentioned in the Schedule"
and no Schedule is found, or "I bequeath
„money‟, „wheat‟, „oil‟" or the like, without
saying how much, this is void".
76. A perusal of the contents of the Will, which have been
reproduced herein at paragraph 2, clearly shows that it makes
a reference to bequeathing of the movable and immovable
properties by the deceased/testator and as reflected in the
wealth-tax and income-tax return to the Trust but neither
these details have been furnished by way of attaching the
wealth-tax or income-tax return nor are the details of the
properties mentioned in the Will itself. The words used in the
Will are „all those my properties, moveable or immovable,
anywhere, upon trust as below appears‟, meaning thereby that
the deceased/testator wanted to give the details of the
property mentioned there under. Separately also, the
petitioners could have proved the income-tax and the wealth-
tax return of the deceased/testator so as to give certainty to
the list of moveable and immoveable properties owned by the
deceased/testator, which were sought to be bequeathed. This
has not been done.
77. Therefore, the Will, in my view, becomes void in terms of
Section 89 for want of particulars of the movable and
immovable properties. This becomes a suspicious
circumstance in the Will, which the petitioners‟, in my view,
have failed to discharge to the satisfaction of the court.
Merely because the Will has been registered with the sub-
Registrar or merely because the properties have been
bequeathed for the benefit of the public at large for the
purpose of running a Trust, which will spend this amount for
the benefit of the public for the purpose of education, health
care, etc., does not mean that the Will notwithstanding its
defect, can be said to be a Will which is duly proved. I,
therefore, agree with the State of Rajasthan that even if the
Will is taken on the face value, it is inchoate and does not
satisfy the requirement of the law as being complete document
itself evincing the intention of the deceased/testator.
Similarly, the Will which is exhibited as Exhibit P-1 bears the
words „Duplicate duly stamped‟. There is one original typed
copy also which Mr. Dayal says is the actual Will which bears a
mark in red pencil which is stated to be exhibit mark P-1. But
this is not fully legible. It also does not bear the signature of
the Judge. Normally, when the document is exhibited by the
Court, apart from exhibit number, the Judge puts his
signature.
78. The deceased/testator was a highly educated person and
was also a bar at law. He must have understood the
implications of signing a document bearing the word
„Duplicate‟ meaning thereby, there is a principal or main
document of which the Exhibit P-1 is duplicate. The original
Will is not only supposed to be filed with the probate petition
but it is only the original Will which is to be proved because
that is the primary evidence which has to be produced before
the court. Secondary evidence can, of course, be produced
but then those conditions in which secondary evidence is
admissible in terms of Section 66 of the Evidence Act have first
to be proved by a party and then secondary evidence made
admissible.
79. In this regard, the argument of Mr. Ganju, the learned
senior counsel seems to have considerable force that
document Ex.P-1 being the duplicate, cannot be taken to be as
the original Will and that too proved in accordance with law. I
do not consider it necessary to refer to the judgments cited by
the learned senior counsel in this regard, as it is squarely
dependent on the facts of the case and Sections 65 and 66 of
the Evidence Act which has been dealt with hereinabove.
Non-production of Gokul Anand as witness.
80. Will is a personal document which is made by the
deceased/testator visualizing as to how the property must
devolve after he disappears from the scene. Therefore,
normally a person keeps such a devolution secret and
associates only from his closest person, in whom he has
implicit faith about their integrity that they would give effect to
his wishes after his disappearance. As has emerged from the
testimony of PW-1, P.N. Khanna, RW-5, Jaswant Singh, RW-6,
Gopal Singh, RW-8, R.K. Singh and from the testimony of PW-
2, Parmeshwar Prasad that Parmeshwar Prasad was very close
to the deceased/testator. Similarly, it has also come in the
testimony of PW-1, P.N. Khanna, that Gokul Anand was the
Personal Assistant or the Secretary, if one may say so, who
was the other fellow close to the deceased/testator. He was
also present with the deceased/testator at Tis Hazari Courts on
30.10.1985. Normally, in terms of Jaswant Kaur‟s case
(supra), the deceased/testator would, in ordinary course, have
associated persons with signing of the Will who are closest to
him. Moreover, since the Will was being devised for the
benefit of the general public, there was no reason to keep it a
secret from these two persons. Their not being aware seems
to be something curious bordering a suspicious circumstance.
81. In any case, I was considering the fact that in the light of
contradicting versions being given by PW-1, P.N. Khanna, and
RW-8, R.K. Singh. Gokul Anand, who was stated to be present
on 30.10.1985 on Tis Hazari Courts, would have been helpful
to solve the mystery of two separate versions. He could have
thrown some light on the matter. There is no dispute that
Gokul Anand was the Personal Assistant of the
deceased/testator and in normal circumstances, the
deceased/testator would have associated the person who is
closest to him. Even if the benefit of doubt is given to the
deceased/testator that it was his own wisdom to associate A or
B, still Gokul Anand could have cleared some doubts had he
appeared as a witness. Gokul Anand was sought to be
summoned by the objectors as a witness, which was allowed
by the learned trial court. Normally, the petitioners ought not
to have objected to his production as a witness, however, the
record shows, the petitioners had preferred an appeal against
the order of the learned Single Judge permitting the
production of Gokul Anand as a witness which appeal was
allowed by the Division Bench of this court. Therefore, though
the petitioners are protected by the judicial order passed by
the Division Bench regarding the non-production of the one of
the closest persons and a Personal Assistant to the
deceased/testator, yet, the fact remains that the said judicial
order was invited by the petitioners themselves. It was on
their appeal that the court had passed such an order only on
account of the fact that his production would have caused
further delay. I feel that this conduct on the part of the
petitioners of preferring an appeal against the production of
Gokul Anand also makes me draw an inference against them
that they never wanted the doubts which may linger in the
mind of the Court from the contradictory testimonies of the
witnesses, to be got cleared. This is an important
circumstance which makes me draw an inference that this is a
very vital suspicious circumstance which does not get removed
on account of the non-discharge of burden by the petitioners.
Other evidence produced by the respondents
82. RW-1, Badri Narain Nayak, states that he had formed a
Society by the name and style of All India Anti-Corruption and
Crime Preventive Council and was its General Secretary. He
states that he hails from Jaipur, State of Rajasthan and he had
met Raja Sahib Sardar Singh of Khetri in the year 1982-1983.
He further states that in connection of a complaint lodged by
one K.C. Sharma of Jaipur, who was a member of their
Parishad, he had gone and met the deceased/testator at his
house at Sardar Patel Road, New Delhi. Their he met one
Parmeshwar Prasad/PW-2. He identified Parmeshwar Prasad.
In his cross-examination, he stated that the complaint was
received by him in writing but he had not brought the same.
He also stated that no action was taken on the basis of the
complaint.
83. RW-2, Kailash Narain Rawat, is a Tehsildar from Jaipur,
who stated that certain properties belonging to the
deceased/testator were attached in pursuance to invocation of
provisions of Rajasthan Escheat Regulation Act, 1956. RW-3,
Dwarka Prasad, is a person who testified that he is living in
Bazar Sita Ram for the last two decades and they have been in
occupation of a portion of Khetri House in Jaipur, which is
given as a permanent address. He has also stated that
Parmeshwar Prashad used to be the General Attorney of the
deceased/testator and he used to look after the affairs of the
deceased/testator. He has stated that the deceased/testator
died on 30.10.1985 and he remained sick for 3-4 years. In his
cross-examination, he has admitted that he has never met the
deceased/testator nor he has ever visited his house.
84. RW-4, Rajinder Singh, is one of the objectors, who
denied the signatures of the deceased/testator on Exhibit P-1,
that is, the Will and Exhibit P-3, the Codicil. He has claimed
himself to be related to the deceased/testator as his
grandfather, Shiv Singh Ji, was the real brother of the
deceased/testator‟s grandfather, Jaswant Singh. In his cross-
examination, he has stated that he used to receive the letters
written by the deceased/testator but he had not brought the
same. At the time of his deposition, he has given his age as
33 years and that of the deceased/testator as 70 years at the
time of death. He also stated that he had seen the
deceased/testator writing and signing on 2-3 occasions and on
that occasions, he had seen Manager bringing papers to the
deceased/testator and he had put his signatures. He also
denied the suggestion that the Will Exhibit P-1 and the Codicil
Exhibit P-3 bears the signatures of the deceased/testator.
85. RW-5, Jaswant Singh and RW-6, Gopal Singh,
respectively are the former employees of the
deceased/testator. RW-5 worked with the deceased/testator
for 10-12 years and was living in the servant quarter at Khetri
House, Sardar Patel Road. He is claiming that he retired in
1978 and in his place, his brother Radhey Shyam was
employed by the deceased/testator. He has also testified that
PW-2, Parmeshwar Prasad, was all in all so far as the
deceased/testator is concerned and it was he, who used to
take the signatures of the deceased/testator on various
documents. He has also stated that the deceased/testator was
not having good health since 1980 and he was not mentally
sound. In his cross-examination, he stated that as the wife of
the deceased/testator had left him in the year 1962, he
suffered mental shock. He also admitted that his services
have been terminated in the year 1978. RW-6 has also
testified to the effect that PW-2, Parmeshwar Prasad, used to
look after the affairs of the deceased/testator and it was he
who used to get his signatures on documents on which he
wanted. The deceased/testator also used to consult PW-2,
Parmeshwar Prasad, only with regard to every work. He also
stated that he used to live in the Khetri House, Sardar Patel
Road. He also stated that the deceased/testator was not
enjoying good health after his wife had left him.
86. RW-7, Kusum Lata, LDC in the office of the Registrar, has
produced the record from the Registrar‟s office where entries
are made with regard to the deposit of the Will of the
deceased/testator. The entry in this regard was made at serial
No.335 of the register and the names of the witnesses to the
Will have been mentioned as P.N. Khanna and R.K. Singh.
87. An analysis of these witnesses which have been produced
on behalf of the respondents barring RW-2, Kailash Narain
Rawat, Tehsildar, who proved the attachment of properties of
the deceased/testator and RW-7, Kusum Lata, who proved the
entry of the Will of the deceased/testator in the record of the
Registrar, the remaining witnesses are propped up witnesses
by the objectors. As a matter of fact, one of the witness is the
objector himself. He has withdrawn his objection, therefore,
his testimony is of no consequence. This leaves us with the
testimony of RW-1, Badri Narain Nayak, who seems to be a
propped up witness because he had absolutely no business to
meet the deceased/testator and he seems to be running some
fake or name sake organization of anti-corruption and has
created a situation so that he could only testify with regard to
meeting the PW-2, Parmeshwar Prasad. The testimony of RW-
5, Jaswant Singh and RW-6, Gopal Singh, the two of the
disgruntled employees, as alleged by the petitioners, are also
not of much relevance except that one thing is clear that they
say that Parmeshwar Prasad/PW-2 was very close to the
deceased/testator. So far as their testimony with regard to
the mental state of the deceased/testator is concerned, that is
totally unbelievable. As a matter of fact, one of the witnesses
have said that the deceased died on 30.10.1985 while as that
is the date on which the Will is purported to have been made.
The death of the deceased/testator has been proved by a
certificate Exhibit P-4 in 1987 which is not disputed by the
State of Rajasthan. Therefore, the entire analysis of this
evidence is only relevant for the purpose of drawing only one
inference that Parmeshwar Prasad/PW-2 was a close person to
the deceased/testator and he has also not denied this fact.
This will be further fortified by the fact that Parmeshwar
Prasad was one of the executors of the Will.
88. The relevance of the testimony of these witnesses and
the factum of Parmeshwar Prashad, PW-2, being very close to
the deceased/testator acquire significance from the point of
view of the submissions made by Mr. Ganju, the learned senior
counsel, that it was Parmeshwar Prasad, who was the moving
force for the purpose of setting up this Will as it benefitted
him.
Allegation of PW-2, Parmeshwar Prasad, moving force
for the Will
89. According to the learned counsel Mr. Dayal, the Will
bequeathed the entire Estate to charity and the State of
Rajasthan is only trying to fish a motive of suspicious
circumstance in its execution and has heavily banked upon
PW-2, Parmeshwar Prasad for the purpose of fabricating the
Will on the basis of so-called improbable circumstance. The
State of Rajasthan has suggested that PW-2 may have got
blank sheets signed to make a Will and then have them
attested by PW-1, RW-8 and thereafter deposited with Tis
Hazari Court in the presence of the Registrar after getting their
signatures.
90. It has been stated by the learned senior counsel
Mr.Ganju that PW-2, Parmeshwar Prasad, was to be paid a
sum of Rs.3,000/-, according to the Will, which amount could
be increased with a further permission of the High Court while
as his services were being utilized by the deceased/testator by
paying him a salary of around Rs.2,700/- or so. It was sought
to be urged that it was essentially the PW-2, Parmeshwar
Prasad, who was the moving force to set up a Will in such a
manner so that he continue to get a substantial amount of
Rs.3,000/- on perennial basis.
91. The amount of Rs.3,000/- may seem to be very meagre
as on date but certainly keeping in view the time when this
amount was fixed and especially the fact that the incumbent
had a salary of Rs.2,700/-, which was admittedly less than
Rs.3,000/-, this could be said to be certainly a substantial
amount for the executor, Parmeshwar Prasad, PW-2.
92. This argument of the motive or the personal gain of
PW-2, Parmeshwar Prasad, was sought to be refuted by Mr.
Dayal, the learned counsel on behalf of the petitioners by
urging that no amount whatsoever was drawn by Parmeshwar
Prasad till 29.1.2003. For this purpose, the learned counsel
submitted that it is clear from the minutes of the Trust meeting
dated 29.1.2003 that PW-2, Parmeshwar Prasad, was not paid
even a single penny of Rs.3,000//- till just before the date of
death in the year 2003. This was contested by the learned
counsel for the State of Rajasthan.
93. I have considered this submission of the learned counsel
for the parties. Although, there is an accusation qua PW-2,
Parmeshwar Prasad, so far as fabrication or forging the Will of
the deceased/testator is concerned but I do not feel that there
is any credible evidence which can make the court to draw
such an inference that the Will has been fabricated or forged
on blank papers. Admittedly, PW-2, Parmeshwar Prasad, was
a close person to the deceased/testator as has been brought in
the testimony of RW-5, RW-6, RW-8 as well as PW-2 himself
but the fact of the matter remains that the deceased/testator
was an educated even the vigilant person, who would not, in
my opinion, have signed blank papers. It is well possible that
PW-2, Parmeshwar Prasad, may had some influence in getting
the Will made in such a manner he too was benefitted but to
say that it was forged and fabricated falls short of any credible
evidence. Further, so many people like PW-1, PW-3, RW-8
would not have associated themselves with the Will when they
had apparently nothing to gain. It is well possible that he may
have been induced by PW-2, Parmeshwar Prasad, to create
a Trust for the benefit of the public and under the garb of the
Trust, he got an amount of Rs.3,000/- fixed for his
own benefit for discharging the duties of executor
which benefit was given to other person also. To that extent,
he may have been instrumental in getting the Will made but it
can‟t be said that it is a case where the Will has been forged by
him and then he could manipulate all these persons, namely,
PW-1, P.N. Khanna, RW-8, R.K. Singh and for that matter, PW-
3, Daniel Latifi, a reputed senior advocate. Therefore, I feel it
is too farfetched to allege that the Will was fabricated or forged
by PW-2, Parmeshwar Prasad, but certainly the fact of the
matter remains that PW-2, Parmeshwar Prasad, must have
manipulated things in such a manner so that the formalities of
the Will are sought to be completed at different times without
actually making all the three persons, namely, the
deceased/testator and the two attesting witnesses to sign
simultaneously because RW-8, R.K. Singh, has specifically
stated that when he went to Sardar Patel Road, he did not see
the deceased/testator and it was PW-2, Parmeshwar Prasad,
who made him sign the document in question. To that extent,
one can certainly say that this is a suspicious circumstance
which goes against the petitioners
94. One of the submissions which was made by Mr. Dayal,
the learned counsel for the petitioners was that testimony of
PW-3 has been incorrectly recorded wherein he has stated that
he has also signed the Will. It was the contention of Mr. Dayal
that while referring to the Will, what learned senior counsel
wanted to say was that he had signed the „bill‟ and
inadvertently, it has got recorded the Will. It has also been
contended by him the fact that cross-examination did not
pursue this even a single subsequent question has not been
put to the witness, it cannot be read in evidence to mean that
the Will of the deceased/testator Exhibit P-1 was signed by
PW-3, Daniel Latifi.
95. I do not agree with this contention of Mr. Dayal that the
word "Will" has been recorded in the testimony of the learned
senior advocate inadvertently in place of the word "Bill". First
of all, if the testimony of PW-3, Daniel Latifi, is read in its
entirety then the word "Bill" in the light of cross-examination,
would make no sense. It has to be read as "Will".
Subsequently, PW-3, Daniel Latifi, being a senior advocate has
put his signatures on his statement after reading and the
statement is not very exhaustive that it would have skipped his
notice as he was an enlightened advocate, therefore, he would
have corrected the same on the first sight itself. This non-
correction of his statement by him clearly shows that the word
used in his statement is "Will" and it is very surprising to say
that he too had put his signatures on the Will while the Will
Exhibit P-1 does not bear his signatures. This is also a
circumstance which goes against the petitioners.
Sound disposing of mind of the deceased/testator
96. So far as the capacity of the deceased/testator to make
the Will is concerned, no doubt, one of the requirements of law
is that the deceased/testator must be proved to be of a sound
disposition. There is no dispute about the fact that the
deceased/testator was of sound mind although, the objectors
had produced the witnesses, namely, RW-5 and RW-6, the ex-
employees of the deceased/testator to contend that the
deceased/testator was not of a sound mind, however, I feel
that both these witnesses, being disgruntled ex-employees of
the deceased/testator, were not truthful and their testimony
has to be discarded. It has also not been the submission of the
learned senior counsel for the State of Rajasthan that the
deceased/testator was not of sound mind. I feel that there is
absolutely no reason to doubt that the deceased/testator being
highly qualified, having hold such high positions as Member of
Rajya Sabha, Member of Constituent Assembly and the
Ambassador of Laos and nothing having brought on record to
show or draw an inference that he was not of sound mind,
makes the court believe that he was perfectly in a sound state
of mind.
Suspicious circumstance of death of testator
97. One of the arguments which was put by Mr. Ganju, the
learned senior counsel was that his death had occurred in
Bombay under suspicious circumstances and, therefore, it was
sought to be urged that the Will may not be relied upon. I do
not attach any importance to this submission made by the
learned senior counsel. The deceased/testator may have died
under suspicious circumstances but the fact of the matter
remains that no FIR was registered and certificate of death has
been issued by a competent authority, it has been proved by
the petitioners that the deceased/testator had died in normal
course after almost two years from the date of having made
the Will, therefore, there is nothing on record or no reason for
this court to suspect that the death of the deceased/testator
was suspicious.
Khetri Trust and its credentials
98. Mr. Ganju, the learned senior counsel for the petitioners
and learned counsel for the State of Rajasthan has also raised
the questions with regard to the credentials and credibility of
the Khetri Trust. He has contended that the Trust is a sham
and further contended that the formation of the Trust and the
appointment of its executors is only a ploy to usurp the
properties of the deceased/testator. In this regard, the
learned counsel has made following points :-
(i) No activity carried out by the Trust for the objectives laid
down in the Will.
(ii) Meeting held on 29.01.2003 in which Dr. Romila Thapar,
Tejbir Singh and Parmeshwar Prasad receive a sum of Rs.5.46
lacs, Rs.3.27 lacs and Rs.5.7 lacs as stipend. The petitioners in
this regard have proved various minutes of the meeting of the
Khetri Trust which are exhibit PW-2/DC to PW-2/DH.
(iii) The Trust is just a sham which was created by late
Parmeshwar Prasad to take undue benefits from estate of late
Raja of Khetri and he benefited immensely even by selling
certain rare movable properties at Sardar Patel Marg.
(iv) The Khetri Trust has not been registered under the
Rajasthan Trust Act, 1959 and case is pending before
Additional Commissioner, Devasthan and numbered as 123/94
and 14/2008.
(v) The present constitution of the Khetri Trust is not in
accordance with the manner laid down in the Will. The chain of
trustees to be appointed in the form of the incumbent trustees
inducting new trustees in the event of death/resignation has
not been shown. It is unclear as to how the present persons
claim to be trustees of Khetri Trust.
(vi) That Lord Northbrook is a foreigner and claims to be an
executor of the Will. However, he is not in position to
administer the estate as an executor. In fact, he has
constituted various attorneys at various points of time.
Initially, Mr. Tejbir Singh was constituted attorney, who is also
alleged to be Trustee of the Trust. Later on, Mr. Tejbir Singh,
even though earlier trustee of the Khetri Trust has been
removed and Mr. Sajjan Narain has been appointed as
attorney. However, the applications have been filed on behalf
of one Prithvi Raj Singh and Lt. Col. Rajesh Sinha on behalf of
Lord Northbrook. Thus, the Lord Northbrook is not having any
interest in administration of the estate of the Testator as
executor and has been operating at the behest of certain
persons. It appears that Tejbir Singh is no longer the trustee
of the Khetri Trust. Thus, the trustees are changeable and
variable.
99. This contention of Mr. Ganju, the learned senior counsel
has been refuted by Mr. Dayal, the learned counsel for the
petitioners. It has been contended on behalf of the petitioners
that the Khetri Trust, which has been formed by the
deceased/testator was on account of the fact that he was a
childless widower and to ensure that the properties which are
left behind by him are not pilfered but are used for the benefit
of the public at large. It was because of this reason that the
petitioners have devised a Trust and made PW-2, Parmeshwar
Prasad, a confident of the deceased/testator and persons of
high repute like Daniel Latifi, senior advocate, Mr. Bhaskar
Mitter - Chairman, Exide Ltd., Mr. Narottam Sehgal - ICS
Former Home Secretary to Government of India, Dr. Romila
Thapar, the Eminent Historian, Mr. Vikram Lal - Chairman,
Eicher Ltd., as the Trustees initially. It has been contended by
him that with the presence of these persons of high
credentials, one could hardly doubt the question of formation
of the Trust and its objectives.
100. Although, this is a point which is debatable that the Trust
which was formed by the deceased/testator for the benefit of
the public where certain doubts have been expressed by the
State of Rajasthan on account of various submissions and the
points given hereinabove but I feel that it may not be
necessary to advert to the said points on account of the fact
that the petitioners have, in my opinion, not been able to
establish the Will and the Codicil itself by preponderance of
probabilities and in accordance with law. Therefore, I do not
consider it necessary to deal with this submission of Mr. Ganju.
Conclusion
101. For the reasons mentioned above, I am of the considered
opinion that following broad factors emerge from the analysis
of the evidence:-
1) That the petitioners have not been able to prove the Will
Exhibit P-1 and the Codicil Exhibit P-3. The Will is not proved
on account of the fact that the testimony of PW-1, P.N. Khanna
and RW-8 is dramatically opposite. RW-8 has no reason to
speak untruth, which will benefit him personally in any manner
whatsoever.
2) The testimony of PW-3, Daniel Latifi, the senior advocate
and PW-2, Parmeshwar Prasad, also does not corroborate the
testimony of PW-1, P.N. Khanna, on material particulars with
regard to the date and the place of signing the Will, as required
by law, that is, the deceased/testator and two attesting
witnesses signed simultaneously.
3) Non-production of Gokul Anand as a witness, though, the
petitioners are under the protection of the orders of the
Division Bench is curious and suspicious. No doubt, the order
of the learned Single Judge was set aside but the fact of the
matter remains that the appeal was filed by the petitioners
against his production. He was one of the most important
witnesses, who could have cleared the doubts about the place
of signing the Will. The reason that his production would have
caused delay is not convincing.
4) That the Will which is executed by the deceased/testator
is incomplete and lacks material particulars. It talks about
bequeathing immovable and movable properties to the Trust
mentioned „herein below‟ and no details of the properties are
mentioned in the Will itself nor are the copies of the income-
tax return or the wealth-tax return attached as the Will says
that details of the properties are given therein. The petitioners
have independently failed to prove the said documents.
5) PW-3, Daniel Latifi, was produced in rebuttal, has very
categorically stated that he had put his signatures on the Will
while as the Will Exhibit P-1 does not bear his signatures. PW-3
being a senior advocate would not make an irresponsible
statement. Where is this Will which bears the signatures of
PW-3? He further states that he is not sure whether RW-8,
R.K. Singh, was present on 30.10.1985 when the Will is
purported to have been signed by the deceased/testator and
deposited with the Registrar. This makes highly probable that
RW-8, R.K. Singh, signed the Will on 29.10.1985 at 5, Sardar
Patel Marg, New Delhi, and not on 30.10.1985. Further, his
testimony that he signed in the presence of PW-2, Parmeshwar
Prashad, and not in the presence of deceased/testator, gets
proved by the preponderance of probability. This means that
even if PW-1, P.N. Khanna‟s testimony is accepted as true,
excluding what has been proved by RW-8 and corroborated by
PW-3, Daniel Latifi, it does not prove the Will according to
Section 63 of the Indian Succession Act read with Section 68 of
the Evidence Act.
6) PW-1, P.N. Khanna, does not talk about the presence of
PW-3, Daniel Latifi. The presence of Daniel Latifi, who had
stated that he was present not in the capacity of his
professional duties but only as a personal friend to the
deceased/testator would not have gone unnoticed by the
PW-1. Therefore, PW-1 is not telling the truth. I would prefer
to rely on the testimony of PW-3, Daniel Latifi, being a senior
advocate because he would not have made irresponsible and
incorrect statement in this regard. RW-8, R.K. Singh,
categorically stated that he signed the Will on 29.10.1985 and
not on 30.10.1985 at Tis Hazari. Similarly, he says that the
Codicil Exhibit P-3 was signed by him in the chamber of PW-3,
Daniel Latifi while as PW-1 states that he signed the Codicil
Exhibit P-3 at the residence of deceased/testator at 5, Sardar
Patel Road, in the presence of RW-8. Further RW-8 states that
he did not ever see or met the deceased/testator, therefore,
the deceased/testator having put signatures in the presence of
RW-8, R.K. Singh is completely ruled out. Because of these
reasons, neither the Will Exhibit P-1 nor the Codicil Exhibit P-3
have been signed by the deceased/testator in the presence of
both attesting witnesses or at least, RW-8. The attesting
witnesses, RW-8 had not seen the deceased signing the Will or
the Codicil nor got any acknowledgement personally from him
about his signatures. If that be so, the requirement of law is
not met.
7) There were many objectors who had raised objection to
the grant of probate/the letter of administration but actually
each one of them withdrew. The reasons for withdrawal by
them are inexplicable. No credible reason for the same has
been given. This makes the Court to draw the inference that
some forces were behind the scene which made them withdraw
their objections leaving the field open for the petitioners but for
the opposition of State of Rajasthan.
8) The Will Exhibit P-1 is the duplicate photocopy of the
document, the original is not exhibited as it does not bear the
mark of exhibit nor the signature of the Judge. The exhibit P-1
and exhibit P-2 bear signature of RW-8 in different inks which
shows they were not signed at the same time. PW-1, P.N.
Khanna, has admitted that there were duplicate Wills signed by
him. In cross-examination, he admits that there may be more
than two Wills which he may have signed. If that be so, it is
not safe to rely on the testimony of these witnesses and hold
that the petitioners have been able to prove the Will Exhibit P-
1 or the Codicil Exhibit P-3 in accordance with law by
preponderance of probabilities.
102. Thus, the petitioners have failed to not only prove the
Will but also dislodge the suspicious circumstances, some of
which are mentioned in conclusion, which makes the court to
believe that it is highly unsafe to assume that the Will has
been purported to have been executed by the
deceased/testator or it is proved in accordance with law.
Accordingly, issue no.1 is decided against the petitioners. The
petition is dismissed.
103. Since the petition has been dismissed, the question of
devolution of the properties would not arise. Section 29 of the
Hindu Succession Act, 1956 lays down as under:
"29. Failure of heirs. If an intestate has
left no heir qualified to succeed to his or
her property in accordance with the
provisions of this Act, such property shall
devolve on the Government; and the
Government shall take the property
subject to all the obligations and liabilities
to which an heir would have been
subject."
104. It has been stated by the deceased/testator in operative
portion of his Will that he is a Hindu, even otherwise, there is
no dispute about the fact that the deceased/testator was a
Hindu. Therefore, the devolution has to be in accordance with
law and there cannot be a vacuum. During the course of these
proceedings, the Court was informed that in pursuance to
Article 296 of the Constitution of India, the State of Rajasthan
has passed the Rajasthan Escheats Regulation Act, 1956 and
the provisions of Section 6 of the said Act have already been
invoked by them and they have taken possession of some of
the properties. It is for the State of Rajasthan to decide in
accordance with law as to what is to be done with the
properties of the deceased/testator.
105. Before closing, I must say a word of appreciation for the
counsel for the parties. Since the case was old, it took
considerable time to hear the submissions as well as to dictate
the judgment. In this regard, the assistance rendered by
Mr. Anish Dayal, Advocate for the petitioners as well as efforts
of Mr. T.K. Ganju, the learned senior counsel for the State of
Rajasthan are highly appreciated.
V.K. SHALI, J.
JULY 03, 2012
'AA'/RN
