Ashok Baury vs State
2021 Latest Caselaw 852 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                 Date of decision: 15th January, 2021.
                                                    13th March, 2021.
+                               TEST.CAS. 11/2018
        ASHOK BAURY                                          ...Petitioner
                                Through: Mr. Prosenjeet Banerjee and
                                            Ms. Shreya Singhal, Advs.
                                  versus
        STATE                                            .....Respondent

Through : Mr. Atul Gupta and Mr. Jayant Mehta, Advs.

CORAM:

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW [VIA VIDEO CONFERENCING]

IA No.3621/2020 (under Order XIV Rule 5 of the CPC).

1. Finding this application, though titled as under Order XIV Rule 5 of the Code of Civil Procedure, 1908 (CPC), to in effect seeking review of my order dated 25th November, 2019, the Roster Bench has directed this application to be placed before me.

2. Vide order dated 25th November, 2019, inter alia issues were framed in the Test. Cas.11/2018, with issue no.(ii) being "Whether the deceased Bhagwanti Devi, on 5th May, 1983, was not of sound disposing state of mind and thus the document even if executed by her, is not her Will? OP (Relatives 10,11&12)" and the contention of the senior counsel for the Relation no.10 Arun Sood that the onus of the said issue should be on the petitioner, was rejected reasoning that it is for the person disputing the soundness of mind to establish the same, with the petitioner having a right

of rebuttal; else, the presumption is, of soundness of mind of a living person.

3. The Relation no.10 Arun Sood has filed this application pleading that

(a) he had preferred a SLP(C) No.5603-04/2020 challenging the order dated 25th November, 2019, to the extent placing the onus of issue no.(ii) on him and which SLP was disposed of with liberty to him to make a formal application and request this Court to reformulate the issue no.(ii); (b) this application is being filed in pursuance thereto; (c) the onus to, in the first instance show that the testatrix was of a sound disposing mind i.e. had the testamentary capacity to execute the Will, is on the propounder of the document claimed to be the Will; (d) only if the propounder of the document, claimed to be the Will, establishes the testamentary capacity of the testator/testatrix, does the document stand proved as the Will; (e) the petitioner also in the issues proposed by him had placed onus of the said issue on himself; and, (f) one who asserts, has to prove and the other cannot be called upon to prove the negative.

4. The counsel for the applicant/ Relation no.10 Arun Sood has referred to Niranjan Umeshchandra Joshi Vs. Mrudula Jyoti Rao (2006) 13 SCC 433 (Paras 32 and 33), Savithri Vs. Karthyayani Amma (2007) 11 SCC 621, Sridevi Vs. Jayaraja Shetty (2005) 2 SCC 784 and Budh Singh Vs. Raghubir Singh 2015 SCC OnLine Del 14528 (Paras 20 to 23) in support of his contention. On the contrary the counsel for the petitioner/non- applicant has referred to Naveen Bhatia (Since Deceased) through his Lrs. Vs. Raj Kumari Bhatia 2017 SCC OnLine Del 9724.

5. I have considered the controversy.

6. Section 59 under Chapter II titled "Of Wills and Codicils", of Part VI titled "Testamentary Succession", of the Indian Succession Act, 1925, provides that every person of sound mind not being a minor may dispose of his property by Will. Explanation 1 thereto provides that a married woman may dispose by Will any property which she could alienate by her own act during her life. Explanation 2 thereto provides that persons who are deaf or dumb or blind are not thereby incapacitated from making a Will if they are able to know what they do by it. Explanation 3 thereto provides that a person who is ordinarily insane may make a Will during an interval in which he is of sound mind. Explanation 4 thereto provides that no person can make a Will while he is in such a state of mind, whether arising from intoxication or from illness or from any other cause, that he does not know what he is doing.

7. Section 63 under Chapter III titled "Of the Execution of Unprivileged Wills" in Part VI supra of the Indian Succession Act provides that every testator shall execute his Will according to the Rules provided therein. The said Rules provide that (a) the testator shall sign or affix his mark to the Will; (b) the signature or mark of the testator shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will; and, (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 received from the testator a personal acknowledgment of his signature or mark and each of the witnesses shall sign the Will in the presence of the testator. Even if a document propounded as a Will, on the face of it is compliant with the Rules aforesaid qua making and execution of the Will, the same, when presented in the Court, is required to be proved and which proof is

governed by the provisions of the Indian Evidence Act, 1872. Section 5 of the said Act requires evidence to be given of the existence or non-existence of every fact in issue and of such other facts as are declared to be relevant. A fact in issue in a legal proceeding is a fact pleaded by one party and disputed by the other. When a propounder of a Will claims a document to be the validly executed Will of a deceased, if the opposite party disputes the same, the propounder would be required to prove the same. Such proof, in view of the provisions of the Indian Succession Act, would require the propounder to prove the essentials/requisites of a valid Will i.e. of the testator, at the time of execution thereof being of sound mind within the meaning of Section 59 of the Act and the Will having been executed in the manner provided in Section 63 thereof. However the Rules applicable to pleadings require pleadings to be specific and not general and require the party filing a reply/written statement to deal specifically with each allegation of fact of which he does not admit the truth and further provide the denial to be not evasive but specific and substantive; in absence thereof such party shall be taken to have admitted the facts not denied specifically. Thus a party disputing a document claimed to be the Will, is required to deny/dispute specifically, which of the essential requirements/conditions of making of the Will i.e. whether the testator at the time of making of the Will was of sound mind or not and whether the document was executed as per the Rules prescribed in Section 63 or not and if not, which of the said Rules was not complied with.

8. Soundness of mind, for the purposes of contracting, is defined in Section 12 of the Indian Contract Act, 1872 and which in my view would have application in the matter of soundness of mind requisite for making of

a Will as well. As per the said provision, (i) a person is said to be of sound mind, if, at the time of making of the contract, he is capable of understanding it and of forming a rational judgment as to its effect upon his interests; (ii) a person who is usually of unsound mind, but occasionally of sound mind, may make a contract when he is of sound mind; and, (iii) a person who is usually of sound mind, but occasionally of unsound mind, may not make a contract when he is of unsound mind.

9. As would be obvious from the above, a common thread is found to run between Section 12 of the Contract Act and Section 59 of the Indian Succession Act.

10. Chapter VII titled "Of the Burden of Proof", of Part III titled "Production and Effect of Evidence", of the Evidence Act deals with the issue with which this Court is concerned herewith. Per Section 101 thereunder, whosoever desires any Court to give judgment as to any legal right or liability dependant on the existence of facts, which he asserts, must prove that those facts exist. Since the propounder of a Will as per Section 59 of the Indian Succession Act is required to prove that the testator at the time of making of the Will was of sound mind, the burden of proof would be on the propounder. However that would be so where none is opposing the Will propounded and the Will has to be proved for the satisfaction of the Court. However when a document propounded as Will is contested, what would be required to be proved is only that what is in issue and only if the party disputing the document propounded as a Will disputes/controverts that the testator/testatrix, at the time of making the Will was of sound mind, would soundness of mind be in issue and required to be proved. However if

soundness of mind is not specifically denied then as per the Rules aforesaid contained in Order VIII Rule 5 of the CPC, soundness of mind shall be deemed to have been admitted. In the event of denial of the soundness of mind, the question as herein arises, on whom should the onus be, whether on the propounder or on the opposite party, arises.

11. Section 114 under the aforesaid Chapter VII of Part III of the Evidence Act enables the Court to presume existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the case.

12. The common course of natural events and human conduct is of soundness of mind and unsoundness of mind an aberration. If a testator/testatrix has led a normal life, performed day to day functions in the normal course of human conduct, the presumption under Section 114 would be of soundness rather than unsoundness of mind.

13. The document on the basis of which letters of administration with respect to the estate of the deceased testatrix are sought in the present case, is registered under the Registration Act, 1908 and has been propounded as Will of the deceased by the son of the deceased. The applicant/Relation No.10 Arun Sood is the son of the daughter of the deceased and has filed reply-cum-objections, inter alia pleading that (i) the application/petition for probate/letters of administration is barred by time; (ii) the document propounded as a Will is a forged and fabricated document; (iii) no such document was ever executed by the deceased; (iv) the deceased was not the owner of the immovable property, with respect whereto the document

propounded as a Will is executed and thus the occasion for her to have executed any Will with respect to the said property did not arise; (v) a partition suit with respect to the said immovable property was already pending consideration; (vi) the petitioner had got relinquishment deeds executed in his favour from his sisters and which also falsifies the existence of any Will; if there was any Will, there was no need for relinquishment deeds; (vii) the deceased was not of sound mind to have executed any Will;

(viii) the deceased i.e. Bhagwanti Devi "throughout her life had been signing the documents, and there has never been any occasion, reasons and or circumstances of her choosing the thumb impression any document"; and, (ix) "further, without prejudice to the other pleas, it is submitted that late Smt. Bhagwanti Devi has always remained under the influence and pressure of the alleged beneficiaries of the forged and fabricated Will and as such any Will much less the Will propounded by the petitioner cannot be said to be a Will executed by her voluntary and out of her own free will without any coercion".

14. It would immediately be seen that the denial by the applicant/Relation No.10 Arun Sood of the soundness of mind of the deceased is contradictory. If the deceased, throughout her lifetime had been appending her signatures and not putting her thumb impression, as pleaded by the applicant/Relation No.10 Arun Sood, the presumption is of her being of sound mind. Similarly, the question of the deceased testatrix being under influence of the petitioner would arise only if she was in a position to be influenced i.e. of sound mind; if she was of unsound mind, the question of her being influenced would not arise. I have in Budh Singh Vs. Raghubir Singh 2015 SCC OnLine Del 14528 held that though the onus to prove the

Will may be on the propounder thereof but a challenger to the Will is required to, in the pleadings, specifically plead the grounds on which a challenge is sought to be made to the Will so as to let the propounder of the Will know the grounds on which the Will is contested and that a challenger to the Will cannot be allowed to, without taking any pleading or any specific grounds of challenge spring surprises and at the stage of arguments contend that this has not been proved or that has not been proved. Reference in this regard may also be made to Pulak Mukherjee Vs. Santosh Mukherjee AIR 2015 Cal 1345 (DB).

15. A litigation in a Court cannot be permitted to be played like a game of one-upmanship or by springing surprises or of ambush. Once litigation in the Court is governed by the Rules/laws of pleadings and evidence, such Rules/laws have to be applied at each and every stage of proceedings, particularly at the stage of framing of the issues, importance of which stage the Courts have emphasized in several judgments. Reference if any required may be made to Kawal Sachdeva Vs. Madhu Bala Rana 2013 SCC OnLine Del 1479. Framing of appropriate issues curtails litigation, unnecessary evidence and the time spent in the litigation. Today, when the Courts are inundated with briefs and the cases pending in the Courts are surmounting and steps are being explored for expeditious disposal, it is the call of the hour that issues be not framed and/or onus thereof be not placed in a manner so as to enable a litigant to prolong trial, taking advantage of framing of unnecessary and uncalled for issues and of wrong placement of onus/burden thereof. As aforesaid, the applicant/Relation No.10 Arun Sood in his pleadings, has pleaded facts which give rise to a presumption in law of the deceased testatrix being of sound mind and it is for this reason that

the onus of issue no. (ii) has been placed on him. The applicant/Relation No.10 Arun Sood cannot be permitted to, taking advantage of having the onus of the issue as to the soundness of mind placed on the petitioner, steal a walkover by ultimately arguing that the petitioner has failed to prove soundness of mind. As observed in the order dated 25th November, 2019 also, proof of soundness of mind requires a bare statement to be made. On the contrary to prove unsoundness of mind, one would be required to prove consistent conduct to prove unsoundness of mind, even if medical records of unsoundness of mind are not available.

16. I have perused the judgments cited by the counsel for the applicant/Relation No.10 Arun Sood and do not find anything therein to persuade me to take a different view in the facts of the present case. The observations therein, of the onus of proof of soundness of mind being on the propounder, are general in nature and in the facts of the concerned case. The question of onus of proof as to facts in issue depends upon the facts, pleadings and documents in each case and for the reasons given above, in the present case, has been placed on the applicant/Relation No.10 Arun Sood.

17. Before parting with this order I may add a caveat. The order/judgment of a court exercising testamentary jurisdiction, as this Court is exercising in the subject case, as distinct from a judgment/order inter parties i.e. binding the parties to the lis alone and not others, is a judgment/order in rem, which establishes a document propounded as a Will as the Will from the death of the testator and renders valid all intermediate acts of the executor as such. A Testamentary Court is thus a Court of

conscience. Since the said judgment/order binds not only the parties to the proceeding but also others, the Court, in exercise of such jurisdiction, requires proof in accordance with law of the document propounded as a Will, even if not opposed by the near relatives of the deceased. However when the near relatives have contested the document propounded as a Will and which contest is not a sham or make belief, the Court can mould the trial by placing the onus appropriately in terms of the pleadings and the documents in a case. In the facts of the present case the applicant/Relation No.10 Arun Sood in his pleadings has not pleaded any fact to dislodge the presumption in law of soundness of mind and has rather, by pleading that the testatrix used to sign and was under influence of the petitioner affirmed the said presumption and to in such state of pleadings still place the onus on the petitioner, rather than benefitting the applicant/Relation No.10 Arun Sood will lull him into complacency and not enable him to take advantage of the issue struck qua soundness of mind, by at least now bring evidence if any in his possession of unsoundness of mind of testatrix, even though his denial in the pleadings to the said effect, is evasive and dilatory. Reference may be made to my judgment in Anil Kumar Vs. Devender Kumar 2019 SCC OnLine Del 8782. It is not the case of the applicant/Relation No.10 Arun Sood that he was not in a position to know about the soundness of mind of the testatrix or was far removed from the testatrix; on such pleading it can perhaps be said that the petitioner should discharge the onus. When a near relation inspite of contact with the testatrix fails to plead acts to show unsoundness of mind of the testatrix, the High Court of Bombay in Jitendra Singh Rajendra Singh Kushwaha Vs. Suresh Rajendra Singh Kushwaha MANU/MH/0405/2016, notwithstanding the absence in

petitioner's evidence of the testator being of sound mind and the onus of proof being on the propounder, granted probate.

18. Privy Council, in Munnalal Vs. Kashi Bai AIR 1947 PC 15 held that it is likely that a man who performs a solemn and rational act in the presence of witnesses is sane and understands what he is about and in the absence of any evidence that he was not in a perfectly normal state, presume the Will to have been duly executed. To the same effect is Rameshwar Prashad Vs. Krishna Mohannath Raina AIR 1969 MP 4 (DB) and Labanya Prova Guha Vs. Balai Chandra Mukerjee MANU/WB/0355/1969 (DB). Supreme Court in Surendra Pal Vs. Saraswati Arora (1974) 2 SCC 600 held (i) apart from general considerations emerging from the nature of a Will and the circumstances which not in frequently surround the execution of it, there are other matters which are peculiar to the times and the society and perhaps even to the person making the Will and his or her family; (ii) inferences arising from relationship between the testator and a legatee are certainly so dependent upon the peculiarities of the society or community to which the testator and the legatee belong and their habits and custom, their values, their mores, their ways of making and feeling, that it seems very difficult to reduce them to a general Rule applicable at all times and everywhere so as to raise a presumption of undue influence from a particular type of relationship; (iii) besides Section 111 of the Evidence Act, any other presumption from a relationship must, to be acceptable, be capable of being raised only under Section 114 of the Evidence Act; (iv) such presumption of facts are really optional inferences from proof of a frequently recurring set of facts which make particular inference from such facts reasonable and natural. In the

facts of that case, in the absence of a suggestion that the testator was feeble minded or so completely deprived of his power of independent thought and judgment, presumption was drawn and the Will held to be genuine. In Prem Singh Vs. Birbal (2006) 5 SCC 353 presumption that a registered document is validly executed was drawn and it was held that onus to prove would be on the person who rebuts the presumption. In H. Venkatachala Iyanger Vs. B.N. Thimmajamma AIR 1959 SC 443, it was held that when a caveat is filed alleging the exercise of undue influence, fraud or coercion in the respect of the Will propounded, such pleas have to be proved by the caveator and Jarman on 'Wills' opining that 'generally speaking, where there is proof of signature, everything else is implied till the contrary is proved' and that 'if a Will is rational on the face of it and appears to be duly executed, it is presumed, in the absence of the evidence to the contrary, to be valid' was cited with approval.

19. No ground for review of the order dated 25th November, 2019, to the extent placing the onus of issue no.(ii) on the petitioner, is made out.

20. The application is dismissed.

Test Cas. No.11/2018.

21. List before the Roster Bench on 26th April, 2021, as already scheduled.

RAJIV SAHAI ENDLAW, J.

JANUARY 15, 2021 MARCH 13, 2021 'pp'