Rohtas Singh vs State And Ors.
2014 Latest Caselaw 1262 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  FAO No.577/2002

%                                                   10th March, 2014

ROHTAS SINGH                                        ..... Appellant
                          Through:       Mr. Ravinder Mohan Aggarwal,
                                         Advocate.

                          Versus
STATE AND ORS.                                       ..... Respondents

                          Through:       Mr. Deepak Sabharwal, Advocate
                                         with Ms. Puja Sabharwal, Advocate
                                         for respondent Nos.2 and 4.
                                         Mr. Y.D. Nagar, Advocate for
                                         respondent No.3.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. This first appeal is filed impugning the judgment of the probate

court dated 24.8.2002 by which the probate petition filed by the petitioner

has been dismissed. Petitioner/appellant/Sh. Rohtas Singh is one of the sons

of the deceased testator Sh. Than Singh, and he seeks probate of the Will

dated 6.10.1989 of his father who died at Delhi on 15.1.1991.

2. Before the probate court, the appellant/petitioner proved the

Will dated 6.10.1989 of late Sh. Than Singh testator as Ex.P1 as per the

testimonies of both the attesting witnesses. Both these attesting witnesses

deposed to the due execution and attestation of the Will. Both the attesting

witnesses to the Will namely Sh. Devender Kumar Sharma, Advocate (PW-

1) and Sh. Naresh Kumar Verma (PW-2) were cross-examined. Nothing

material was elicited in the cross-examination as regards the execution and

attesting of the Will as also the mental soundness of the deceased testator to

execute the Will. Witness from the office of the sub Registrar also appeared

as PW-3, and he proved the registration of the Will as document no.3408 in

Book no.3, Volume 1017 at pages 128 to 133 on 6.10.1989. PW-5 Ravi

Kumar Aggarwal, was the Advocate who had defended the deceased Sh.

Than Singh in the suit no.166/1998 filed by Sh. Baljeet Singh- the brother of

the wife of one objector Sri Bhagwan/one son of deceased Sh. Than Singh.

3. In spite of the fact that the Will as required in law stood duly

proved as stated above, and the same was also proved to be duly registered,

the court below has disbelieved the Will holding that there existed

suspicious circumstances and hence the Will cannot be probated. It be noted

that the reasons given by the trial court do not very much touch upon the

actual execution, attestation and registration of the Will. The reasons given

by the trial court are as under:-

"(a) The testator had three sons. By virtue of Will Ex.OW-4/1, dated 21.8.1986, (which has not been disputed by the petitioner himself, as it also finds mention in the subsequent Will Ex.p1 dated 6.10.1989); the testator had bequeathed his properties almost equally in favour of the three sons. Generally speaking, objector of making a Will is to deprive of heir wholly or partly. If the testator prefers a particular heir, the other cannot have any grievance provided it is on account of free volition of the testator. In this particular case, in the Will/codicil Ex.P1 dated 6.10.1989, by virtue of which the earlier Will OW4/1 dated 21.8.1996 was revoked, gives a reason for revocation of the earlier Will. The reason is that the behavior of other two sons i.e. Sri Bhagwan and Jaswant Singh is cruel towards the testator, his wife, his eldest son Rohtash, as also good behavior of Rohtash towards the testator and his wife. In the Will Ex.P1, the testator has also mentioned that in the month of September, 1989, his sons Sri Bhagwan and Jaswant Singh had threatened him to handover the properties alongwith residential flat bearing No.28, Block-FD, Pitampura Residential Scheme and had also forged some documents in order to grab the property during his life time in order to exclude his eldest son Rohtash Singh. It is further mentioned that the two sons Sri Bhagwan and Jaswant Singh alongwith their wives had also given beatings to him. A perusal of DD entry No.39-B, dated 13.9.1987, Ex.R1, purported to be lodged by testator Than Singh at police station Saraswati Vihar, is to the effect that at about 1:45 PM, six persons had come to his house. Two persons caught hold of his arms whereas one person obtained his thumb impression on one paper. It is further mentioned in the DD entry that one of persons was Ramphal, who was the brother of the wife of his son Sri Bhagwan. In fact, a suit for mandatory injunction was also filed by Baljeet Singh against testator Than Singh wherein a defence was taken kin the written-statement that certain persons, as mentioned in the police report, had obtained his thumb impression on some blank papers. There is no mention about Jaswant Singh or his role in the said incident by the testator either in the DD entry or in the written statement, filed in the civil suit preferred by Baljeet Singh against the testator. Grounds for exclusion of Jaswant are nor borne out from the documents.

(b) In the Will Ex.OW4/1, plot No.WZ-60 is shown to be in possession of Rohtash and Sri Bhagwan and was bequeathed to both

of them in equal shares; whereas in the Will Ex.P1, the possession in respect of this plot is shown to be of Rohtash and some other tenants. Of course, the testator could have changed his Will, but the mentioning of the facts against the record, goes against the free volition or at least to show that the testator was not aware of the contents.

(c). I the will Ex.OW4/1, plot No.6 is given to all the three sons. It is mentioned that the portions, marked as A, B and C, are in possession of Sri Bhagwan, Rohtash and Jaswant Singh and the said portions were bequeathes to them. However, by virtue of the will Ex. P1, the entire plot was bequeathed to Rohtash and his wife.

(d). In the will Ex. OW4/1, it is mentioned that the properties were inherited in succession from the ancestors which in fact, is admitted by the petitioner in his cross-examination. This is the plea of the testator in the written statement PW5/RX-2 in suit No. 166/88. However, in the will Ex. P1, the testator claims himself to be the absolute owner of the property, sought to be bequeathed which would again show that the testator was not aware of the contents of the will.

(e). PW1 Shri D.K. Sharma Advocate, who is the author of the will Ex.P1, had stated in his examination in-chief as well as in his cross-examination that there were 2 or 3 sittings with the testator before drafting of the will. He stated that he did not remember as to when the first, second or the third sitting was held. PW1 had further stated in his cross-examination that he might have prepared one or two drafts of the will before giving a final shape to the will. This also creates some doubt as to whether the testator was really aware of the contents of the final draft which was accepted by him, particularly, when in the civil suit, instituted by Baljeet singh, brother-in-law or Sri Bhagwan, against the testator and which was being defended by petitioner Rohtash Singh on behalf of the testator, an application under Order 32 CPC had been moved by the petitioner Rohtash singh for his appointment as a guardian of the testator. Though the said application is not on record, but its reply, given by Baljeet singh, was placed on record by the petitioner in order to support his plea that testator was of sound mind. In fact in the application, moved by Rohtash Singh and testator, it had been

pleaded that the defendant was suffering from paralysis and was mental very weak.

(f) PW2 Shri Naresh Kumar Verma Advocate stated during his cross-examination that he did know that Than singh had given a copy of the earlier will to his Senior, Shri Gehlot Advocate. This means that Shri Gehlot was also associated in the preparation of the will, but it is no where the case of the petitioner.

(g) It was stated by OW-2 Jaswant Singh in his examination-in- chief that certain court cases were pending by and against Than Singh in the year 1998-89 and the same were being looked after by his elder brother Shri Rohtash. No suggestion was given to OW-2 Jaswant Singh that Rohtash was not attending to the cases; rather moving of the application Under Order 32 of the CPC for appointment as guardian/attorney of testator Than Singh, by petitioner Rohtash, would strengthened the plea of the objector that the testator was not in such a mental state as to form free will for disposition of the properties. Then there is a contradiction regarding presence of the persons at the time of drafting of the will Ex.P1. it was stated by PW1 Shri D.K. Sharma Advocate that it was only Than Singh - testator, Sri Naresh Kumar Advocate and he - himself, who were present; whereas it was stated by PW2 Shri Naresh Kumar Advocate that wife or Than Singh was also present. Than Singh was aged about 80 years (his age is mentioned as 82 years on 15.1.1991, i.e at the time of death in the death certificate Ex. PW1/4) on the date of making the will Ex.P1. He had already suffered two paralytic strokes and it is quite doubtful that he would be going of his own to Advocate Shri D.K. Sharma alongwith his aged wife.

(h) Petitioner Rohtash Singh, when entered the witness box as PW4, was questioned about the earlier will He showed his ignorance if his father had executed any earlier will dated 21.8.1986. The conduct of the petitioner Rohtash singh is un-natural because earlier will dated 21.8.1986, finds mention in the will Ex.P1, propounded by the petitioner. Showing ignorance about the earlier will by the petitioner would mean that he is trying to hide something.

(i)Testator had given certain reasons for execution of the will Ex.P1 in the said document itself. The same were the bad behavior of his two sons Sri Bhagwan and Jaswant Singh and good behavior of third son i.e Petitioner Rohtash. When petitioner Rahtosh Singh was questioned about. The same, he denied that his father had executed the will in his favour because he and his wife served his father well similarly, petitioner Rohtash Singh was also telling a lie when he denied the suggestion during his cross-examination by saying that his father was not living with him in the year, 1989 when the present will (Ex.P1) was executed by him. He added, at time his father used to reside with him and at times with his other sons. This is against the contents of the will Ex.P1, which raises doubt regarding genuineness of the will. PW5 Shri Ravi Kumar Agarwal Advocate was produced in the court to prove sound-state of mind of testator Than Singh. PW5 Shri Ravi Kumar Aggarwal Advocate stated during cross-examination that testator used to come to him of his own to give instructions in the case. Admittedly, Than Singh was aged about 80 years in the year 1988-89 and as stated by me, he had already suffered two paralytic stokes. It is not believable that petitioner Rohtash Singh would allow his aged father to move of his own, particularly in view of DD No.39-B dated 13.9.87 recorded in police station Saraswati Vihar (Ex.R1) when the testator could be over-powered in his house itself by certain persons. This shows that the anxiety of PW5 Shri Ravi Kumar Aggarwal to support the petitioner that the testator was having a free volition. A person, aged about 80 years, having already suffered two paralytic strokes, may be having a fragile mind as the case being set- up by the petitioner himself, by moving and application under Section 32 of the code of Civil Procedure. As held Abhoy Charan Nath Mazumdar vs Smt. Raimya Devi and others, (supra) that imbecility arising from the advance age or caused by illness, may destroy testamentary capacity."

4. In my opinion, the trial court has fallen into a clear error in

dismissing the probate petition. Before I turn to the reasons given by the

probate court for holding that allegedly there are suspicious circumstances

for discarding the subject Will, an extremely important aspect needs to be

noted is that the mother of the petitioner and the wife of the deceased Sh.

Than Singh testator was alive when the probate petition was filed. She was

indubitably living with the petitioner not only during the lifetime of her

husband Than Singh, but even thereafter when the probate petition was filed.

The mother (widow of the testator) thus would be the best person to object if

at all there existed suspicious circumstances surrounding the Will. The fact

of the matter however is that she did not file any objections to the probate

petition. Therefore, the very fact that the widow of the deceased Sh. Than

Singh, and the mother of the petitioner as also the respondents/objectors/two

sons namely Sri Bhagwan and Sh. Jaswant Singh, did not object to the Will,

this aspect is indeed a very strong factor to hold that really there are no

suspicious circumstances with respect to the Will Ex.P1 dated 6.10.1989.

This most important aspect, the court below has failed to consider.

5. Let me now turn to the each ground given by the court below

for holding that the probate petition be dismissed. Before going to the

grounds, it is also necessary to state that the courts do not sit in the armchair

of the testator to decide whether what he actually bequeathed by the Will

ought to have been or ought not to have been done i.e whether certain heirs

should not be wholly or partially disinherited. Courts do not go into the

moral aspects of the matter as to whether the deceased testator was or was

not justified for his reasons in favouring one or more legal heirs as compared

to other legal heirs. If the court is otherwise satisfied that there is due

execution and attestation of the Will by a person of sound disposing mind

and there are found no suspicious/unnatural circumstances, probate of the

Will is to be granted, inasmuch as, a Will is proved like any other document.

As already stated above, in the present case the Will is duly proved, both by

the attesting witnesses and with a notable point that the Will is a registered

Will.

6(i) The first ground given by the trial court for holding that there

are suspicious circumstances for the probate petition to be dismissed is that

the facts with respect to criminal action of assaulting the deceased testator

proved by virtue of the DD entry Ex.R1 dated 13.9.1987 is attributed only to

Sh. Baljeet Singh who is relative of Sri Bhagwan (one objector) and nothing

has been asserted against Jaswant Singh (the other objector) and therefore,

there was no reason to disinherit the son Sh. Jaswant Singh by the subject

Will.

(ii) In my opinion, no doubt as per Ex.R1 the troubled relations are

only shown as between the deceased and Sri Bhagwan (who has worked

through his brother in law Sh. Baljeet Singh), however, this circumstance

will at least establish the bad relationship of the deceased testator with Sri

Bhagwan. With respect to disinheriting of this son, there is thus sufficient

evidence to hold that he did not have good relations with the deceased

testator and his wife. To disinherit both the objectors, there have been

proved to exist good/better relations of the deceased testator and his wife

with the petitioner/appellant, and with whom both had lived till both of them

passed away. Once both the parents are found to have been living with the

petitioner till the time of their deaths, and that the mother of the petitioner i.e

widow of the deceased testator had not objected to the Will which was

propounded, in my opinion, there exists good enough reason for giving most

benefit under the Will only to the petitioner and his family, because, having

better relations is one good reason to legally give less to other sons who are

the objectors to the Will. It demands reiteration, and as held by the Supreme

Court in various judgments, that the object of making of a Will in many

cases is to alter the normal line of succession and the mere fact that normal

line of succession is altered by giving less to one or more of the legal heirs

itself cannot be a ground to hold that there are suspicious circumstances. It

also bears note that the Will shows that testator stated therein of the bad

behaviour of both the objectors Sh. Jaswant Singh and Sri Bhagwan, and

thus there is hence no reason to disbelieve this reason of not goods relations

with the objectors for giving major part of the estate to the

petitioner/appellant and his family. Unless there exists strong evidence to

hold that there existed excellent relations between Sh. Jaswant Singh and the

deceased testator for Jaswant Singh/son/objector, as also Sri Bhagwan, not

to be partially disinherited by the subject Will it cannot be held that Will is

shrouded in suspicion simply because the natural line of succession is altered

to an extent. And, it is not that objectors have been completely disinherited

because as per the Will they are bequeathed those residential portions in one

residential property where they are living.

(iii) At this stage, I would also like to note that though a controversy

was raised by the objectors that the DD entry dated 13.9.1987 Ex.R1 was not

at the instance of the deceased testator, I however find that there is no reason

to hold that the DD entry was not at the instance of the deceased testator

inasmuch as incident of 13.9.1987 is mentioned by the deceased testator in

his written statement filed to the suit plaint in suit No.166/1998 by Sh.

Baljeet Singh.

(iv) Hence I hold that the first ground relied upon by the trial court

is an inadequate reason for holding existence of suspicious circumstances.

7(i) The second reason which is given by the court below is that in

the earlier Will dated 21.8.1986, Ex.OW4/1, the plot bearing No.WZ-6

owned by the testator is shown to be in possession of Sh. Rohtash Singh and

Sri Bhagwan and which was bequeathed to them in equal shares, but that in

the subject Will Ex.P1 of the year 1989 possession of the plot is shown to be

of Sh. Rohtash Singh not with Sri Bhagwan but of Rohtash Singh/petitioner

with some other tenants.

(ii) In my opinion, this conclusion drawn by the trial court to hold

that there are suspicious circumstances is without any basis because surely

between the year 1986 to 1989 circumstances with respect to plot no.WZ-60

could have changed and instead of Sri Bhagwan, tenants could have been in

possession. The objector Sri Bhagwan has not led any evidence to show that

he was in physical possession of the plot in June, 1989 when the subject Will

was executed, and therefore, it cannot be held by relying upon the different

contents of the two Wills, that this aspect amounts to a suspicious

circumstance for disbelieving the Will Ex.P1.

8(i) The third ground which is relied upon by the court below to

hold existence of suspicious circumstance is that the natural line of

succession is altered by the subject will by disinheriting all the sons except

petitioner/appellant/Rohtas Singh and his wife.

(ii) Though this aspect has been dealt with while dealing with the

first ground given by the trial court, it is reiterated that one object of a Will

is to alter the natural line of succession. A probate Court cannot sit and

decide for the testator as to what according to him he thought was right or

wrong/fair or unfair. If according to the testator, he felt more comfortable

by giving a lion's share of his properties to only one son and his family with

whom the testator as also his wife was found to be living, then in my

opinion, such factor cannot be taken as amounting to existence of suspicious

circumstances. At this stage, I note that counsel for the respondent had very

vehemently argued that the appellant/petitioner in his cross-examination

admitted that the deceased testator used to live not only with the

appellant/petitioner but also with his other sons and therefore besides this

contradiction showing the lack of credibility of the petitioner/propounder

who had pleaded that the deceased testator only lived with him, this also is a

circumstance to hold that there was no reason to substantially disinherit Sri

Bhagwan and more particularly Sh. Jaswant Singh with whom bad relations

are not proved. In this regard, I have already dilated upon the fact that even

if the relations with a particular son i.e objector/Jaswant Singh may not be

bad relations, however, the relations of the deceased can be far far better

with the prime beneficiary, and which existed in the facts of the present case

as both the deceased testator and his widow lived with the

petitioner/appellant, and hence there is sufficient reason for giving the

benefit of most of the estate only to the petitioner/appellant and his family

by the deceased testator. Therefore, even taking the fact that there is

contradiction in the deposition of the petitioner/appellant, however, since the

deceased Sh. Than Singh as well as his widow have been found to have been

residing most of the time with the petitioner/appellant, the same gives

adequate reason to give the prime estate to the petitioner/appellant Sh.

Rohtash Singh and his wife.

(iii) The third ground therefore relied upon by the trial court is also

incorrect/illegal and is accordingly set aside.

9(i) The fourth ground which is relied upon by the trial court for

holding that the subject Will is a suspicious document is because in the

earlier Will of the year 1986 (Ex.OW4/1), the testator wrote that the

properties were inherited by succession from his ancestors whereas in the

subsequent/subject Will of the year 1989, Ex.P1 it is mentioned that the

testator is the absolute owner of the properties. Trial court concluded

therefore that such contradiction leads to invalidity of the Will.

(ii) In my opinion, even this contradiction is of no substance

because inherited properties are in fact owned properties after passing of the

Hindu Succession Act, 1956 and so held in the judgments of the Supreme

Court in the cases of Commissioner of Wealth Tax, Kanpur etc. & Ors. Vs.

Chander Sen & Ors. AIR 1986 SC 1753 and Yudhishter Vs. Ashok Kumar

AIR 1987 SC 558. There is therefore nothing inconsistent in an ancestral

property being taken as a self-owned property and this the testator could

have done unless the case of the objectors/respondents was that the

properties were inherited by the testator before 1956 or that there had existed

a hindu undivided family and whose existence was proved by the objectors,

but that is not so. In my opinion, therefore there is really no inconsistency in

the earlier Will Ex.OW4/1 and the subject/later Will Ex.P1 with respect to

which probate has been prayed.

(iii) It is also relevant to note that Wills are drafted by the

Advocates. The language of the Wills are thus necessarily as per the

knowledge of the Advocates drafting the same. When the earlier Will

Ex.OW4/1 was drafted the deceased may have been informed that the

inherited properties were ancestral properties and it accordingly would have

been stated in the earlier 1986 Will, however, it cannot be ruled out that the

Advocate when drafting the later/subject Will Ex.P1 could have explained

the legal position that the ancestral properties in fact become self-owned

properties in view of the law as laid down by the Supreme Court in the

aforesaid judgments, and therefore, in the subsequent subject Will Ex.P1 the

deceased testator would have mentioned that he was the absolute owner of

the properties. Also this aspect has to be taken with the fact that in the Will

the deceased testator talks of rebuilding and renovating the properties from

his own funds and therefore his reasoning for calling them self-

acquired/owned. I therefore set aside the fourth reason given by the court

below to hold that there exist suspicious circumstances.

10(i) The fifth reason which is given by the trial court for holding

that there are suspicious circumstances is that Sh. D.K. Sharma who drafted

the Will, and who appeared as PW-1, since he made different drafts of the

Will and in different sittings, that by itself creates a suspicious circumstance

because as per the trial court creating of different drafts creates doubt as to

whether testator was really aware of the contents of the final draft. Trial

court has buttressed this reasoning with the aspect of unsoundness of mind

of the testator by referring to the application under Order 32 CPC moved by

the petitioner for his appointment as a guardian of the deceased testator in

the suit filed by Sh. Baljit Singh.

(ii) The reasoning of the trial court in this regard is clearly

fallacious. The reasoning of the trial court that preparing of different drafts

shows that the testator would not know which was the final draft that

amounts to turning logic on its head. The fact that various drafts are created,

on the contrary, will show the application of mind of the testator for

deciding a final draft being prepared and therefore to say that the deceased

testator would not know which was the final draft is a finding/conclusion

which is based not on facts but merely on unacceptable/illegal presumption

of the trial court. Presumptions cannot substitute actual facts, more so when

the subject Will is in fact a registered Will. One really fails to understand

that how a conclusion can be drawn of the last draft not being read by the

testator merely because various earlier drafts of the Will were prepared.

Such a conclusion as arrived at by the trial court cannot be drawn either in

the facts of the case or in law.

(iii) So far as the argument that an application under Order 32 CPC

was filed by the petitioner himself for appointment as a guardian of the

testator, it bears note that the Will in question was executed in the year 1989

and this application under Order 32 CPC was moved at a subsequent point of

time on 9.10.1990. Therefore, a subsequent position of October, 1990

cannot be taken as a circumstance existing in October, 1989 when the Will

was executed. Therefore, even this reasoning of the trial court is not correct.

In my opinion, if a period other than the period of making of the Will is to

be considered for deciding the soundness of the mind then the period prior to

making of the Will is relevant and in such a case the conclusion of the trial

court that the deceased was not of a sound mind in October, 1989 when the

Will was executed is negated from the earlier record of judicial proceedings

being the land acquisition proceedings and where the appearances of the

deceased testator is noted in the order sheets of different dates. The relevant

record in this regard has been filed and proved by the petitioner as Ex.P4 to

Ex.P6 and which are court orders dated 18.4.1990, 4.5.1990 and 3.1.1991.

Other documents in this regard are Ex.P1 to Ex.P3 and which are also the

record of the proceedings in the land acquisition case bearing No.49/1993,

which documents are the orders passed by the court and the statement made

by the testator himself on 5.12.1988. In a case of Will, one is really

concerned with the soundness of mind in and around the time of the

execution of the Will and not much earlier or later because it is perfectly

possible that after the execution of the Will, and at a subsequent point of

time, the petitioner may be taken not to be of sound mind, however, later

facts would not be a reflection of the soundness of mind for execution of the

Will around at least 12 months prior to the document showing unsoundness

of mind.

11. So far as the next circumstance of Sh. Gahlot Advocate, the

senior of Sh. Naresh Kumar Verma, Advocate being involved in the

preparation of the Will, but the same not being the case of the petitioner, all

that needs to be stated is that this Court fails to understand that how that can

be a suspicious circumstance with respect to execution of the Will because it

is not as if a petitioner to a probate petition has to prove each and every fact

with respect to all earlier acts of the drafting of the Will.

12(i) The next ground which has been found in favour of the

objectors by the trial court is that there is lack of soundness of mind of the

deceased testator on account of the fact that the petitioner/appellant Sh.

Rohtash Singh was looking after court cases and which conclusion is

buttressed by referring to moving of an application under Order 32 CPC by

Sh. Rohtash Singh/petitioner for representing the testator. Trial court also

concludes that there is inconsistency with respect to age of the deceased

testator and the fact that deceased testator had suffered two paralytic strokes,

hence showing that it would be doubtful that he would be going on his own

to the Advocate Sh. D.K.Sharma alongwith his aged wife.

(ii) In this regard, in the present case, when the issue is of

soundness of mind, it was necessary that there must be proved such medical

record by the objectors with respect to alleged lack of mental capacity for

making of the Will at the time when the Will Ex.P-1 was made. After all, it

is the common case that the deceased testator was of an advanced age of

around 80 years when he made the Will, (77 years when the earlier 1986

Will relied by objectors was executed), and therefore, illness or lack of good

health is natural at that age, however, unless the physical health is proved to

cause such deterioration in mental health so as to become lack of soundness

of mind, it cannot be held that the deceased testator was lacking mental

capacity especially more so in the facts of the present case where the Will is

a registered Will and the sub-Registrar acting under the provisions of the

Registration Act, 1908(read with Section 114 of the Evidence Act, 1872)

would have put appropriate questions to the deceased testator at the time of

registration of the Will i.e questions pertaining to due execution and

attestation of the Will. Also, in the facts of the present case pertaining to the

documentary evidence discussed earlier, there is a passage of time after

making of the Will Ex.P1 and when bad health is shown of the testator at the

later point of time. Thus merely because the deceased testator suffered from

bad health later than execution of the Will, the same is not enough to hold

that when Will Ex.P-1 was executed, deceased testator suffered from

unsoundness of mind. At the cost of repetition, unsoundness of mind has to

be proved and buttressed by some medical evidence as to lack of mental

capacity, and in my opinion self serving oral testimonies of the objectors

cannot be believed in the facts of the present case to hold lack of mental

capacity of the deceased testator while making the Will Ex.P-1.

13. So far as the next ground of the petitioner-Sh. Rohtash Singh

showing ignorance with respect to the Will dated 21.8.1986, although, the

earlier Will finds mention in the subject Will Ex.P-1, all that I can say is that

on minor contradictions, issues with respect to execution and attestation of a

Will, much less existence of suspicious circumstances can be decided.

Therefore, in my opinion, this ground taken by the trial court is a very slim

ground to arrive at a conclusion of existence of suspicious circumstances for

holding lack of validity of the Will Ex.P-1.

14. A reading of the impugned judgment has left this Court with an

impression that the court below has taken small small aspects, and small

small contradictions, to create an illusory larger picture for holding existence

of suspicious circumstances. Also the reasoning of the trial court, and which

has been reproduced extensively above, one is left with the feeling that the

trial court has placed unnecessary importance on the conclusions drawn by it

and has totally ignored important facts of both the attesting witnesses

appearing and proving the execution and attestation of the Will, mother of

the parties not objecting to the Will and the fact that the Will was registered.

These aspects taken with the fact that no medical record was produced by

the objectors to show lack of mental capacity, in my opinion, is sufficient in

the facts of the present case to hold that Will Ex.P-1 has been duly proved to

have been executed by the testator, duly attested by the attesting witnesses

and having been executed when the testator had mental capacity to execute

the Will Ex.P-1 and that there are no suspicious circumstances to discard the

Will. It also bears repetition that the objectors have not been totally

disinherited by the subject Will Ex.P-1 inasmuch as, in the house where they

are staying i.e WZ-49, Shakurpur, Delhi, and of which they are already in

possession and residing, the ownership rights of those portions have been

given to the objectors.

15. In view of the above, the appeal is allowed. The impugned

judgment of the trial court dated 24.8.2002 is set aside. Petitioner, now

represented by his legal heirs, will be entitled to probate of the Will Ex.P-1

dated 6.10.1989 executed by the deceased testator Sh. Than Singh, subject to

completion of requisite formalities before the trial court.

MARCH 10, 2014                                 VALMIKI J. MEHTA, J.
Ne/ib