Kulwant Kaur & Anr vs The State & Ors
2013 Latest Caselaw 1545 Del

*                   HIGH COURT OF DELHI AT NEW DELHI

+                           F.A.O. No.53 of 2005

                                       Decided on : 05 April, 2013

KULWANT KAUR & ANR.                               ...... Appellants
           Through:              Mr. Rajinder Dhawan, Advocate.

                        Versus

THE STATE & ORS.                                   ...... Respondents
              Through:           Mr. Shashank K. Lal, Adv. for R-2 to 4.
                                 Mr. Harish Malik & Mr. Rohit Bhardwaj,
                                 Advocates for R-9 & 10.

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J.

1. This is an appeal filed by the appellants under Order 43 Rule 1

CPC read with Section 299 and 384 of the Indian Succession Act against

the judgment dated 27.4.2004 passed in P.C. No.350/2001 titled Kulwant

Kaur vs. The State & Others.

2. Briefly stated the facts of the case leading to the filing of the

present appeal are that one S. Inderjit Singh Loyal (hereinafter referred to

as the testator), son of S. Dalip Singh died as a bachelor on 8.4.1992. He

had 1/6th undivided share in a building, namely, Dalip Singh Building,

Sadar Bazar, Delhi Cantt. According to the appellants, the

deceased/testator had executed a registered Will on 18.2.1987

bequeathing his 1/6th undivided share in the aforesaid property in favour

of Sardar Iqbal Singh, his nephew, who happened to be the son of the

brother of the deceased/testator. The appellant, Kulwant Kaur, mother of

the beneficiary was named as executor of the Will. The Will, which was

allegedly proved as exhibit PW 2/2, was executed in the presence of two

attesting witnesses, namely, S. Ajit Singh Loyal and Dayal Singh. It was

also stated that the deceased/testator was in a sound disposing state of

mind and accordingly, probate was prayed for.

3. The respondent No.5, Joginder Singh, and respondent No.8,

Madhu, who were the other relations of the deceased/testator had filed

objections to the grant of probate. The respondent No.5 took preliminary

objection that the property, which was allegedly bequeathed, was a joint

Hindu family property and could not be the subject-matter of the Will

executed by the deceased/testator. On merits, it was pleaded that the

deceased/testator was having weak mental faculties and was accordingly

not a person of sound mind. It was also stated that the deceased/testator

had executed a subsequent Will on 3.3.1988, which was also registered

with the Sub-Registrar on 27.5.1988 and thereafter, the same was

cancelled on 11.10.1988. On the basis of these averments, it was stated

that this showed feeble mind of the deceased/testator. It was also alleged

that the Will was a product of undue influence as one of the attesting

witnesses to the Will was the younger brother of the beneficiary while as

the other attesting witness, namely, Dayal Singh, was related to the

executor, Kulwant Kaur/ mother of the beneficiary. It was also alleged

that the facts averred in the Will were contrary to the facts which were in

existence at the time of the execution of the Will. It was stated that the

deceased/testator in the Will had stated that the Will was being made by

the deceased/testator in favour of the beneficiary, namely, S. Iqbal Singh,

as he had served him during his life while as the fact of the matter was

that S. Iqbal Singh had gone to France in the year 1983-1984 and

remained there till 1995 and there was hardly any occasion for him to

look after the deceased/testator.

4. It was also alleged in the objections that the deceased/testator had

joined Indian Army on 21.12.1944 and he was discharged within a short

span of nine months on the ground that he was not fit to be retained in the

Army on account of mental deficiency.

5. Similar objections were also taken by other respondents, namely,

respondent Nos.8, 8A and 8B.

6. On the basis of the pleadings of the parties, the following three

issues were framed :-

"(1) Whether the Will dated 18.2.1987 propounded by the petitioner is the last Will & testament of Late S.

Inderjit Singh & if so, is it valid in law? OPP

(2) Whether the testator S. Inderjit Singh was not possessed of sound disposing mind at the time he executed his alleged Will & if so, its effect on his Will? OPR

(3) Relief."

7. The parties adduced their evidence before the court. The learned

probate court, after recording of the evidence, dismissed the probate

petition on the ground that the appellant/petitioner was not able to

dislodge the suspicious circumstances with regard to the execution of the

Will. These suspicious circumstances were the weak mental faculties of

the deceased/testator. For drawing this conclusion, the learned trial court

had observed that the appellant/petitioner, who was the mother of the

beneficiary and the executor of the Will had concealed the factum of the

deceased/testator having been discharged from the Army in the year 1945

on account of mental deficiency as no averments in this regard were made

either in the petition or in her examination-in-chief but the same was

admitted by her in her cross-examination.

8. The second reason for arriving at this conclusion by the trial court

was that it was admitted by the witness, namely, Kulwant Kaur, PW-2

that the deceased/testator was in the habit of drinking heavily and has

called him as drunkard and because of this, the court was of the view that

the Will in question purported to have been executed in the year 1987

could not be treated to be free from suspicion as signatures might have

been obtained under the influence of liquor. This fact was further

corroborated by the fact that after the execution of the Will in question,

the deceased/testator is purported to have executed another Will on

3.3.1988, which was also registered on 27.5.1988 but cancelled on

11.10.1988. The document of cancellation was duly registered with the

Sub-Registrar in which Dayal Singh, who happened to be one of the

attesting witness, was also a witness and in this cancellation document, it

has been specifically mentioned that the Will dated 3.3.1988 was made to

be signed by the testator under the influence of liquor. On the basis of

this analysis of evidence, the probate petition was dismissed.

9. Feeling aggrieved by the said judgment of dismissal of the probate

petition, the appellants have preferred the present appeal. I have heard

the learned counsel for the appellants. The contention of the learned

counsel for the appellants is that the learned trial court did not disbelieve

the due execution of the Will exhibit PW 2/2 but still dismissed the

probate petition only on the ground that suspicious circumstances were in

existence. It was submitted that the probate Court has erroneously relied

on the cancellation document dated 11.10.1988 to draw an inference that

the deceased testator was of weak mental faculties. It was stated that

such an inference could not have been drawn by the trial court. It was

contended that merely because the subsequent Will dated 3.3.1988 was

cancelled by the deceased/testator on the ground that his signatures were

obtained under the influence of liquor/alcohol, would not make any

person to draw an inference that the earlier Will was also signed by him

under undue influence nor could an inference be drawn that the

deceased/testator was suffering from any mental deficiency. The learned

counsel for the appellants has also contended that merely because the

witnesses had admitted in their cross-examination that the

deceased/testator was a drunkard, would not make the Will inadmissible

or lead to an inference that the Will has not been proved because the

mental deficiency must be proved by adducing the testimony of a doctor

or by adducing medical evidence which burden was essentially on the

respondents, and they have failed to discharge this burden. On the

contrary, it was stated that PW-3, Ajit Singh Loyal and PW-4, Dayal

Singh both, who were the attesting witnesses, have clearly made a

statement that the deceased/testator had signed the Will in their presence

and they had also put their signatures on the Will in the presence of the

deceased/testator and the Will was read over and explained by one Mr.

M.S. Butalia, Advocate, who had got the Will drafted.

10. It has also been submitted by the learned counsel that there is no

evidence on record except the bare statement of the witnesses either in

examination-in-chief or in cross-examination to show that the

deceased/testator was discharged from the Army way back in the year

1945. It was also submitted that this was not in the objections that the

deceased/testator was discharged from the Army because of mental

deficiency. As a matter of fact, it has been contended that after the

discharge of the deceased/testator from the Army, he had worked in

CPWD and obviously, if he was working in CPWD, it would go to show

that the deceased/testator was of a sound mind. It was also contended by

the learned counsel that the court has laid down in number of cases that

inequitable distribution by the deceased/testator cannot be treated as a

ground for setting aside the Will of the deceased/testator if it has been

duly proved by the appellants that the Will was made voluntarily and the

requirement of law as envisaged under Section 63 of the Indian

Succession Act and Section 68 of the Evidence Act is established.

Accordingly, it is submitted that the learned trial court has fallen into

error by dismissing the probate petition. In this regard, the learned

counsel for the appellants has relied upon the following judgments :-

Pentakota Satanarayana & Ors. vs. Pentakota Seetharatnam & Ors.; (2005) 8 SCC 67;

Ramesh Kumar vs. Kaushalya Devi & Ors.; 94 (2001) DLT 925 (DB);

Rajlakshmi Dassi Bechulal Das vs. Krishna Chaitanya Das Mohanta; AIR 1972 Calcutta 210 (V 59 C 37);

Uma Devi Nambiar & Ors. vs. T.C. Sidhan; (2004) 2 SCC 321.

11. As against this, the learned counsel for respondent Nos.9 and

10/the objectors, have contested the claim of the appellants on the

ground that the Will in respect of which the probate is sought to be

obtained, was forged and fabricated Will. It was contended that the

learned trial court has rightly held that the deceased/testator was of

unstable mind and, therefore, was not competent to execute the Will

purported to have been made by him in favour of the son of the appellant/

Kulwlant Kaur. It is also stated that the attesting witnesses to the Will are

the close relations of the beneficiary as well as that of the

appellant/Kulwant Kaur. It was also contended that the facts averred in

the Will are totally contrary to the facts available on the ground inasmuch

as the deceased/testator has alleged in the Will that he has been served

well by the beneficiary, namely, S. Iqbal Singh, while as the fact of the

matter is that the beneficiary of the Will was nowhere in India at the time

when the Will was purported to have been made nor did he ever serve the

deceased/testator. It was also stated that the deceased/testator was

admittedly a drunkard, who used to drink heavily and, therefore, anybody

could maneuver the signatures of the deceased/testator on any document.

12. I have considered the submissions and gone through the record.

13. I have also gone through the judgments cited by the learned

counsel for the appellants.

14. Before dealing with the facts of the case, it would be pertinent here

to refer to the judgments relied upon by the learned counsel for the

appellants.

15. In Pentakota Satyanarayana & Ors. Vs. Pentakota Seetharatnam

& Ors.(2005) 8 SCC 67, the Supreme Court has held that the onus of

proof of the Will is initially on the propounder of the Will and it is only

when this onus is discharged that the same shifts to the party alleging

undue influence or coercion in execution of the Will. It has also been

held that the onus on the propounder can be discharged by adducing

'satisfactory evidence' (emphasis added) that the Will was signed by the

testator who was at that time in a sound and disposing state of mind, that

he understood the nature and effect of disposition signed the Will of his

own free will. It has also been held that in case the executor of the Will in

this regard testifies and the Will is registered then merely because the

beneficiaries have actively participated in the execution of the Will,

would not make the Will suspicious.

16. There is no dispute about the correctness of the aforesaid

proposition of law. The only question which would arise for

consideration is 'whether in the instant case, the appellants have been

able to prove by 'satisfactory evidence' the execution of the Will?' and

'whether the deceased testator was of sound disposing state of mind?'

17. In case titled Ramesh Kumar Vs. Kaushalya Devi & Ors. 94 (2001)

DLT 925 (DB), the Division Bench of this Court has observed that the

authenticity of Will cannot be doubted merely because it bequeaths Estate

contrary to normal line of succession or inheritance and the Will has to be

read as a whole and once the burden in this regard is discharged by

propounder of the Will regarding the proper execution of the Will and the

attesting witnesses testifies in this regard, the onus shifts to the person

challenging the Will.

17. In case titled Rajlakshmi Dassi Bechulal Das Vs. Krishna

Chaitanya Das Mohanta AIR 1972 CALCUTTA 210 (V 59 C 37), it has

been held in context of Section 63 of the Succession Act, 1925 that the

evidence should be examined collectively and in doing so, oral

documentary and surrounding circumstances should be taken into

consideration. It has been observed that before an evidence is rejected on

the ground of discrepancies, the Court must satisfy itself that those

discrepancies cannot be explained on account of defective memory,

failing power of observation.

18. Another case which has been relied upon by the learned counsel for

the appellants is Uma Devi Nambiar & Anr. Vs. T.C. Sidhan (dead)

(2004) 2 SCC 321 to contend that although it is the responsibility of the

propounder of the Will to remove all suspicious circumstances but mere

exclusion of the natural heirs or reduction of their share would not

tantamount to suspicious circumstances.

19. So far as Uma Devi and Ramesh Kumar's case (supra) are

concerned, they are of no help to the appellants for the simple reason that

one of the important points which have been laid down in both these

judgments is that changing the normal course of devolution of property

by a Will does not by itself constitutes a suspicious circumstance

provided the execution of the Will and the capacity of the testator is duly

proved.

20. In the instant case, there is no change of normal devolution in the

sense admittedly, the deceased testator was a bachelor and no immediate

legal heir in his own line of succession was left behind. The property had

to be inherited by his brothers, sisters and/or by their children. To that

extent, there is no suspicious circumstance arising from the execution of

the Will but the other factors which the Supreme Court has laid down

before the authenticity of the Will is declared by the Court have

necessarily to be established by the propounder of the Will. It is in this

regard that the trial court has found flaws in the case of the appellants.

21. The appellant no.1 in support of her case has examined herself as

PW2 and the two attesting witnesses namely Ajit Singh Loyal and Dayal

Singh as PW-3 and PW-4. The first thing is regarding the capacity and

the mental soundness of the deceased testator. The appellant no.1 in her

examination in chief filed an affidavit, which does not disclose that the

deceased testator was a heavy drinker. It is only during the cross

examination that this fact is brought about by the objectors that the

deceased was fond of drinking and would indulge in the same to the

heaviest binge, so much so, that he would lose all his senses. Therefore,

the case which had been set up by the objectors was that at the time when

the Will was executed, he might have been under the influence of liquor.

22. The very fact that this fact was not truthfully disclosed by the

appellant no.1 in her examination in chief and the fact that the beneficiary

of the Will happens to be the son of the executor and further the fact that

two witnesses who were made as the attesting witnesses are also related

to the beneficiary and to the Executor clearly creates some kind of

suspicion in the due execution of the Will by the deceased testator or his

being in a proper frame of mind. Ajit Singh Loyal, PW-3 is the brother

of the beneficiary and the second son of the Executor. Dayal Singh, PW-

4 is the brother of the appellant/executor. The attesting witnesses in their

cross examination have also admitted the fact that the deceased testator

was a heavy drunkard. This fact was tried to be concealed from the Court

and it has been only brought about in cross examination which clearly

makes the Will suspicious.

23. Further the deceased testator after having executed the Will on

18.2.1987, had executed another Will on 3.3.1988 which also got

registered on 27.5.1988 but on 11.10.1988, the same was got cancelled

which cancellation deed was also got registered with the Sub-registrar

and in this cancelation deed, again Dayal Singh/PW-4 is the attesting

witness and the contents of this cancellation deed becomes important

because what is stated therein is that the Will purported to have been

executed by the deceased testator on 3.3.1988 was signed by him under

the influence of liquor at the instance of one Joginder Singh, parental

Uncle of the beneficiary. This clearly shows that anybody could have

maneuvered the deceased testator by making him drunk. This fact also

creates a doubt and it is well possible that the Will in question in respect

of which probate was sought to be obtained by the appellant could have

been executed under similar circumstances. Obviously, such things can

only be proved by drawing inference or by preponderance of probabilities

and not with certainty. Therefore, it was incumbent on the appellant to

have not only come to the Court truthfully disclosing all these facts about

the deceased testator but also explained the circumstances in which the

Will was executed.

24. There is another aspect which lends credence to this suspicion

entertained by the Court and this is that in cross examination, PW-3 had

admitted that the deceased testator had joined Army in the year 1944 but

he was discharged on account of certain medical reasons pertaining to his

mental faculties. This is also not denied by the other attesting witness or

the executor.

25. If that be so, then it lends credence to the suspicious circumstance

of the Will that the deceased testator was not in proper frame of mind at

the time of execution of the Will. The discharge of the deceased testator

from the Army was sought to be explained by the witnesses Ajit Singh

Loyal and Dayal Singh by stating in their cross examination that though

he was discharged from Army but he was later on employed in CPWD

and obviously he could not have been employed in CPWD without being

medically fit.

26. The question whether he was medically hundred percent fit or not

is not necessary but the question is that it is showing a circumstance that

the deceased testator might have suffered from some mental deficiency

which was further compounded by heavy drinking and therefore, he could

have been manipulated to sign the Will. Moreover, the persons who have

been associated with the Will belong to the same family and it seems that

without associating an independent witness from outside, they planned to

get the entire property in the name of one of them. Further the recital of

the Will is also not factually correct because the beneficiary was settled

outside India since 1983-84 however, in the Will, it has been stated by the

deceased testator that the beneficiary has served him.

27. For the reasons mentioned above, I feel that the appellants have not

been able to show any illegality or infirmity in the appreciation of

evidence arrived at by the probate Court in returning a finding that the

appellants have not been able to prove that the Will of the deceased

testator is free from suspicious circumstance and is in accordance with

law and therefore, the appeal deserves to be dismissed.

V.K. SHALI, J.

APRIL 05, 2013 'AA'/RN