98. Mr. Ramesh Kumar, learned counsel for the Objector contends that a
bare glimpse of the above said page i.e last page of the Will, would suggest
that the name of Dr. Vinod Rai has been added subsequently to somehow
offer some extra impetus to the case of the petitioner. Surprisingly, Dr.
Vinod Rai, though, records that he had talked to Ms. Karuna Raj Vaderaa
and found her in sound mind and mentally alert, no such endorsement is
there from the other two witnesses viz Mr. Mukul Bhatnagar and Ms. Ritu
Suri. Mr. Kumar, learned counsel also submits that thereafter, there is also
an endorsement of Mr. Jai Narayan, Advocate, to the effect that the Testatrix
had admitted the contents and that she and witnesses had signed in his
presence. Said advocate has also not entered into witness box for the reasons
best known to the petitioner.
99. The endorsement made by Sub-Registrar-III, New Delhi reads as
under:-
"The Testatrix executed and signed the Will on medical ground
under M C issued by Dr. S K Thakur, MD and her signature has
been taken at hospital."
100. Such endorsement does not indicate that the Sub-Registrar had met
Dr. Thakur. It merely mentions about one M.C. (Medical certificate).
101. Interestingly, there is no endorsement by Sub-Registrar-III to the
effect that the Testatrix was in sound disposing mind.
102. Before dealing with the testimony of the two attesting witnesses, let
me straightaway come to the testimony of the Dr. (Col.) S.K. Thakur. It
assumes importance because as per the endorsement of Sub-Registrar, the
medical certificate had been issued by Dr. S.K. Thakur.
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103. As already noticed, Dr. Thakur was examined at the behest of Mrs.
Monica Vaderaa and in his deposition dated 20.03.2017, he stated that he
was working as consultant Gastroenterologist at Mool Chand Hospital. He
deposed that he had seen the discharge summary of Mrs. Karuna Raj
Vaderaa which was EX-OW-1/5.
104. As per further deposition of Dr. Thakur, the Testatrix remained
admitted in Mool Chand Hospital from 31.01.2003 to 07.02.2003. She was
admitted with sub-acute intestinal obstruction and throughout her admission,
under his care during the above said period, apart from abdominal pain and
vomiting, she was conscious, alert and oriented. He deposed that none of the
medicines which she had received during her such hospitalization, had any
effect on her state of consciousness and alertness. He also deposed that at no
point of time, her condition required her to be shifted to Intensive Care Unit
(ICU). He also deposed that he remembered giving a medical fitness
pertaining to her alertness during her period of hospitalization.
105. When Dr. Thakur was tendered for cross examination, a medical
fitness certificate was shown to him by none other than counsel for Mr.
Asheesh Vaderaa and Ms. Monica Vaderaa and in such cross-examination,
he admitted that such certificate was issued by him. Accordingly, such
certificate was exhibited as Ex-CW-1/1.
106. Such certificate is of 03.02.2003 and reads as under:-
"This is to certify that Mrs. Karuna Raj Vaderaa is admitted in
Moolchand Hospital on 31.01.2003 as a case of sub acute Intestinal
Obstruction. However, her mind is in sound and proper condition."
107. There are two aspects with respect to the above said medical
certificate.
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108. Firstly, it is not explained as to why this important medical certificate
was held back for all these years. Ideally, it should have been placed on
record either with the petition or when the written statement was filed by Mr.
Asheesh Vaderaa.
109. Secondly, and most importantly, this medical certificate is of
03.02.2003.
110. Need I remind myself that the date of execution of the Will is
05.02.2003.
111. Medical condition of any person, admitted in hospital, can deteriorate
in no time and here, there is a gap of around 48 hours which is not a small
time-window. It beats my imagination as to how said certificate, even if it is
believed to be a genuine one, is going to serve any real purpose. This
certificate cannot establish that the Testatrix continued to remain in the same
sound disposing condition and was physically and mentally alright on
05.02.2003 as well and, therefore, such medical certificate does not serve the
requisite purpose at all. It is, therefore, not digestible as to how the Sub-
Registrar, if at all he had seen the same, could have relied upon the same. I
may also stress that there is no other certificate, except the above. I have
already extracted above the relevant endorsement made by the Sub-
Registrar. He merely mentions about the medical certificate issued by Dr.
Thakur. He did not even find it prudent to retain any such medical
certificate.
112. That‟s why there was, actually speaking, a dire necessity of having
deposition of Sub-Registrar concerned.
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113. Yes, in normal circumstances, the Court, generally, does not direct for
personal examination of any such Sub-Registrar. The aspect of registration
can be proved through any other official of such office, besides with the help
of testimony of the attesting witnesses.
114. However, the present case is an exception to the general rule.
115. Here, the Sub-Registrar had come to the hospital and such visit is on
the basis of request, made in advance. As per the Section 31 of Registration
Act, a special cause has to be shown as to why such officer should leave his
office and to come to some other place for registration.
116. According to Objector, the pre-requisites in this regard are, though,
not given either in the Registration Act or in Delhi Registration Rules, 1976,
the information in this regard was sought by the Objector by moving
applications under Right to Information Act and such information clearly
indicates that in any such situation, a request is to be made in advance to
concerned Sub-Registrar to visit the hospital for registration of the Will. The
prescribed fee for purposes of such visit and registration of Will on medical
ground is required to be deposited, besides the travelling allowance. Any
such written request has to accompany the document in duplicate to be
executed by any such testator and also with the medical certificate, issued by
the concerned hospital. Reference in this regard be made to information
given by Sub-Registrar III on 02.02.2013 which has been proved as Ex-
R5W1/02.
117. Here there is nothing which may indicate as to whether any advance
information was sent to the Sub-Registrar.
118. Nobody knows as to what intimation was sent and how.
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Ashval Vaderaa vs Amitabh Narayan & Ors.
119. Nobody knows whether along with such intimation in writing, any
copy of the Will and any medical certificate was also sent to the concerned
Sub-Registrar.
120. There is no such record whatsoever.
121. To make things worse, Mr. Asheesh Vaderaa has maintained eerie
silence.
122. Even if he was having no objection to the grant of probate, he should
have graced the witness box to repel all these mysterious circumstances
shrouding the execution of the Will and medical condition of his mother. He,
however, does not bother to enter into witness box and when Dr. Thakur
enters into witness box, he (Mr. Asheesh Vaderaa) shows him one medical
certificate purported to have been issued by Dr. Thakur.
123. Be that as it may, there is nothing to indicate as to how and when
request was sent to Sub-Registrar. This aspect is not mere procedural in
nature and existence of such record cannot be left for imagination.
124. Even if, for a moment, I disregard the non-availability of such written
request, the manner in which such officer has done the registration leaves
much to be desired.
125. Any such Sub-Registrar, while coming to hospital for a specific
purpose of execution of a Will, has to make himself sure and certain that the
maker of the Will is in sound disposing mind. The very fact that Sub-
Registrar has been requested to visit to hospital for special purpose puts him
on guard and before doing anything else, such Sub-Registrar has to first
meet the Medical Superintendent of the hospital or for that matter, the
attending doctor to reassure himself about the physical and mental faculties
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Ashval Vaderaa vs Amitabh Narayan & Ors.
of such maker of the Will. There is nothing which may indicate that the
concerned Sub-Registrar had met any doctor that day or had assured himself
about the medical condition of Testatrix. Without even bothering to verify
the identity of the Testatrix, he simply endorsed that she had executed the
Will on Medical ground on the basis of some medical certificate issued by
Dr. Thakur, which was not even retained by him. He does not even record
anywhere that he had met Dr. Thakur that day or that he had called Dr.
Thakur at the time of registration or execution of Will. Dr. Thakur also
nowhere deposed that he ever met such Sub-Registrar at the hospital that
day.
126. To have complete clarity about the abovesaid aspects, the ideal
scenario was to have examined the above said Sub-Registrar. His
examination was, virtually, sine qua non to clear the air.
127. Only he could have apprised the Court as to under what
circumstances, he had gone to hospital for registration. He could have
apprised as to where is such written request to him. He could have apprised
as to how and when the requisite fee in this regard had been paid or
deposited. He could have been deposed as to whom he contacted in the
hospital to assure himself about the identity and medical condition of
Testatrix before registering document.
128. Unfortunately, such Sub-Registrar has not been examined by the
petitioner which, itself, puts a big question mark with respect to the fact
whether the Testatrix was, actually, in a sound disposing mind or not at the
relevant time on 05.02.2003.
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129. Obviously, her condition did not improve and since there was some
surgical intervention required, she was shifted to Ganga Ram Hospital on
07.02.2003.
130. This Court also cannot be ignorant of the fact that she was 80 years of
age when she had allegedly executed her said Will and, therefore, in such a
peculiar situation, it was expected of petitioner to have discharged his onus
absolutely and completely, leaving no misgiving and apprehensiveness about
the fitness of Testatrix. Instead, the onus has been shifted to Mr. Ashval
Vaderaa to establish the existence of suspicious circumstances, if any.
131. Let me now see testimony of the attesting witnesses.
132. If the case of the petitioner is to be believed then there are three
attesting witnesses viz. Mr. Mukul Bhatnagar, Ms. Ritu Suri and Dr. Vinod
Rai. Though Objector would contend that the attesting witnesses, at best,
could be Mr. Mukul Bhatnagar and Ms. Ritu Suri only and not Dr. Vinod
Rai, leaving aside such contention for a moment, let me see the testimony of
two attesting witnesses who have graced the witness box.
133. PW1 Dr. Vinod Rai, in his affidavit of examination-in-chief (Ex. P-1),
stated that he was medical practitioner for last twenty-years and had gone to
Mool Chand Khairati Lal Hospital to sign as an attesting witness. He
deposed that Smt. Karuna Raj Vaderaa read the Will in his presence and
stated that it was in accordance with her wishes. He also deposed that she
was mentally alert and in a sound disposing mind, which he could discern
after talking to her. He deposed that thereafter, she signed on each page of
the Will and put her thumb impression on each page and in his presence as
well as in the presence of Mr. Mukul Bhatnagar and Sub-Registrar. He
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Ashval Vaderaa vs Amitabh Narayan & Ors.
deposed that immediately thereafter, Mr. Mukul Bhatnagar and he himself
also signed the Will as attesting witnesses.
134. Before touching his cross-examination, I need to highlight one
material aspect.
135. In his entire affidavit of examination-in-chief (Ex. P-1), he did not
even whisper about the other attesting witness Ms. Ritu Suri. His such
affidavit is conspicuously silent even with respect to mere presence of Ms.
Ritu Suri at the time of execution of such Will.
136. Though Dr. Vinod Rai claims that he was practicing since 1989 but
when certain questions were put to him to assess his knowledge about the
medical terms, he failed to provide satisfactory answers as he was unable to
explain about the full form of several such terms viz. ANTG, SAIO &
PSVT. He failed to apprise as to why injection NTG is administered to
anyone. Though it may not be of great relevance in any other situation but
keeping in mind the fact that Testatrix was admitted in hospital, this Court
expected that being doctor, he would be aware about these medical terms,
more so when he also endorses in writing about her sound condition. As
noticed, the other two witnesses, while appending their signatures, did not
mention anything about the sound mind and mental alertness of the Testatrix
whereas Dr. Rai has mentioned so while putting his signatures.
137. He admitted in his further deposition that he knew that Testatrix had
cardio-respiratory and intestinal problem since 2000. He claimed that he was
called by the Testatrix in the hospital on 05.02.2003. She had called him up
on telephone and told him that she was going to execute a Will and,
therefore, requested him to attest the same. He reached hospital at about
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Ashval Vaderaa vs Amitabh Narayan & Ors.
3.00 to 3.30 PM and stayed there for about 30 to 45 minutes. He also
deposed that he had learnt about her hospitalization in advance from Ms.
Asheesh Vaderaa. He deposed that Testatrix took about 15-20 minutes in
reading out the Will. He also deposed that he was not carrying any
identification card with him to show that he was a doctor. He also deposed
that he had not seen history-sheet of Testatrix though she had intestine
obstruction problem at the relevant time. He claimed that he was told in this
regard by the Testatrix as well as Mr. Asheesh Vaderaa that she was
suffering from intestine obstruction problem. He, however, deposed that he
did not know as to who got her admitted in the hospital and what medicines
had been prescribed to her. He also deposed that none of the doctor of the
aforesaid hospital had written anything on the Will in his presence. He also
deposed that he did not know whether any officer from the office of Sub-
Registrar was present in the room at that time or not. He also claimed that
he had met one lady Ms. Suri or Ms. Puri, once prior to 05.02.2003 and he
met her perhaps on a dinner in the house of Testatrix.
138. In cross-examination, he also claimed that there was no formal
introduction with that lady on 05.02.2003. He claimed that he did not make
any enquiries from Testatrix as to from where she had got the Will prepared
and to whom she had given her property. Surprisingly, he also claimed that
he did not know as to who prepared his affidavit Ex. P-1. In his further
cross-examination, he also claimed that no certificate was given by any
doctor at the hospital at the time of execution of such Will.
139. As regards Sub Registrar, he deposed that he did not know whether
Sub Registrar had written or made any endorsement on the Will. He claimed
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Ashval Vaderaa vs Amitabh Narayan & Ors.
that such Sub Registrar did not read over the Will to the Testatrix. He also
does not know whether the Sub Registrar had done anything after the
execution of the Will. He denied that the Will was a fabricated one which
was prepared in connivance with Mr. Asheesh Vaderaa and other witnesses.
He never visited Testatrix at Ganga Ram Hospital. So much so, he claimed
that he was not aware about her admission in Ganga Ram Hospital. Most
surprisingly, he also claimed that he did not meet any family member of
Testatrix in the hospital at the time of execution of Will.
140. Though, initially, he feigned ignorance about certain medical terms &
conditions, when further question was put to him in this regard on
07.03.2012 in cross-examination, he came up with an evasive answer by
deposing that a patient, who was suffering from high blood pressure and was
not passing stool for two-three days and was suffering from SAIO and to
whom injection Nitroglycerin had been administered, may or may not be in a
serious condition. Such deposition rather raises eyebrows regarding
Testatrix, being in sound condition.
141. Be that as it may, even if, for a moment, it is assumed that Dr. Rai was
also one of the attesting witnesses, his testimony does not inspire much
confidence as regards physical and mental condition of Testatrix. His
endorsement on the Will, therefore, also does not have much reliability.
142. PW2 Mr. Mukul Bhatnagar is the other attesting witness and his
examination-in-chief is also virtually on the same lines.
143. In his such affidavit (Ex. PW2/A), he also claimed that Testatrix had
signed the Will in his presence and in the presence of Dr. Vinod Rai and Sub
Registrar. His examination-in-chief also does not contain even a whisper
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Ashval Vaderaa vs Amitabh Narayan & Ors.
about the presence of Ms. Ritu Suri. He knew Testatrix as he was her
Chartered Accountant. He also deposed that he was called by the Testatrix
herself for the execution of said Will. He reached her room in the hospital at
about 2.00 PM. He deposed that he did not get the pass prepared for such
visitation. In his cross-examination through he claimed that there was one
more lady Ms. Ritu Suri present in the room of the hospital but also claimed
that he did not know her. He does not recall whether during his stay in the
aforesaid room, any nurse or any other staff of the hospital visited there but
as far as visit of any doctor is concerned, he was very specific and deposed
that during his stay in the room, no doctor from the hospital visited that
room. He also does not recollect whether official from the Sub Registrar
office had consulted any doctor from the hospital. He knew Mr. Amitabh
Narayan who was the lawyer of Mr. Asheesh Vaderaa, Mr. Ashval Vaderaa
and Testatrix. His deposition is in synchronization with the testimony of
other attesting witnesses as he also deposed that Will was read by Testatrix
and she took around 20-35 minutes to read it out and after reading out the
Will, she signed the Will. However, as regards any endorsement made by
the Sub Registrar, he was blissfully ignorant as he deposed that he could not
recollect whether such official had written anything on the Will or not. He
also could not throw any light with respect to the overwriting appearing in
the dates by contending that he did not recollect whether these were made in
his presence or not.
144. When the Will was shown to him, he admitted that such official from
the office of Sub Registrar had not written the name of Dr. Vinod Rai. He
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Ashval Vaderaa vs Amitabh Narayan & Ors.
supplemented that Sub Registrar had only written his name as well as the
name of Mrs. Suri.
145. PW2 Mukul Bhatnagar also does not recall whether any medical
certificate of Testatrix was handed over to the Sub Registrar at the time of
registration of the Will in the hospital to show her medical condition. He
does admit that Testatrix was undergoing certain medical problems but
supplemented that he was not aware whether she had undergone any
operation or not. in his cross-examination too, he claimed that he did not
know Mrs. Ritu Suri. It was suggested to him that he had forged the Will in
connivance with Mr. Asheesh Vaderaa to which he answered in negative.
He denied that no Sub Registrar had come to the room of Testatrix on the
day of execution and registration, and also denied that her aforesaid Will was
forged and fabricated and that no such Will was executed by her at the
hospital or anywhere.
146. I may also highlight two important aspects related to testimony of said
two attesting witnesses.
147. I have already extracted the relevant portion where there is also
endorsement of Sub-Registrar. There is reference of names of attesting
witnesses near such endorsement and if the same is to be believed, the
attesting witnesses were Mr. Mukul Bhatnagar and Ms. Ritu Suri and no one
else.
148. There is no whisper about the name of Dr. Vinod Rai.
149. Had he been also an attesting witness and was also present when the
concerned Sub-Registrar had come for Registration of Will, his name would
have certainly been mentioned there. The omission in this regard, coupled
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Ashval Vaderaa vs Amitabh Narayan & Ors.
with the manner in which his name is reflected in the last cannot be
overlooked and such facts, virtually, invalidate his presence even at the time
of execution and registration of the Will. Importantly, the Sub-Registrar does
not sign on the last page where only such endorsement and signatures of Dr.
Rai appears. Moreover, if at all, Dr. Rai was there in the hospital, there was
no one to have prevented the Sub Registrar in not mentioning his name on
the Will on the page where Sub-Registrar had given his endorsement.
Moreover, being a doctor, Sub Registrar would have been, naturally,
tempted to enquire from him directly about the health of Testatrix, instead of
merely making reference to some medical certificate.
150. Secondly, both the attesting witnesses i.e. Mukul Bhatnagar and Dr.
Vinod Rai, in their examination-in-chief have not even whispered about the
presence of Ms. Ritu Suri and their cross examination would indicate, as if
they never knew such Ms. Ritu Suri beforehand. Fact remains that prior to
the Will in question, the Testatrix had also executed another Will on
07.10.2002. Such Will is also a registered one. It is though on record, but not
proved by the petitioner. However, if such Will is to be believed then there
were three attesting witnesses even at that time i.e. Dr. Vinod Rai, Mr.
Mukul Bhatnagar and Ms. Ritu Suri. In such a situation, it cannot be
believed that they were not knowing her already.
151. It is also perplexing that none of the attesting witnesses met any of the
family members of the Testatrix at Mool Chand Hospital.
152. The medical record has been placed by Objector only and in his
examination-in-chief, he rather claimed that since intestines of her mother
were blocked and since she had not passed stool for nine days, she was in
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Ashval Vaderaa vs Amitabh Narayan & Ors.
very uncomfortable condition and was hypertense. He also deposed that
because of drugs, his mother was not physically and mentally fit. Thus, the
Objector seems to be in thick of things. He deposed about her medical
condition and he also produced the medical record. There is no challenge to
such testimony in the sense that no other family member has entered into
witness box to rebut the same or to prove the same in discharge of primary
onus.
153. Since, Testatrix was hospitalised and was in a serious condition, her
family members would have been around. However, testimony of attesting
witnesses is conspicuously silent about presence of any such family member
including Mr. Asheesh Vaderaa. They do not see or meet any family
member, at all. This does not look plausible. Assuming that the Testatrix had
sent request directly to them, it does not look believable that these witnesses
would not have even seen any family member at the hospital. At least, one
such other family member should have entered into witness box and should
have assured the Court about the sound disposing condition of the Testatrix.
Mr. Jai Narayan, advocate was also present at the time of alleged execution
and he also did not enter into witness box.
154. I have already referred to the testimony of both the attesting witnesses
and they both deposed that the Testatrix had read out the Will for thirty
minutes. It also seems puzzling and surprising as the Will is not a small one.
It is running into twelve pages and it has not been explained as to why the
Testatrix, while admitted in a hospital and while undergoing treatment,
would have to, herself, read out the entire Will. Such version does not
convince the Court.
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Ashval Vaderaa vs Amitabh Narayan & Ors.
155. As already noticed, the medical record was never produced by the
petitioner or for that matter by Mr. Asheesh Vaderaa. Surprisingly, when Dr.
Thakur entered into witness box, Mr. Asheesh Vaderaa confronted him with
a medical certificate. If he was, at all, having medical record with him, he
should have rather produced the entire record. His selective approach in this
regard conveys something else and who knows even this medical certificate
might have been procured or got prepared, later on.
156. It also needs to be stressed that despite the fact that the medical record
was, rather, produced by the Objector, when the Objector was cross-
examined, certain unexpected questions were put to him. Besides checking
his medical knowledge, which was least warranted, he was asked whether he
was in a position to produce any certificate or prescription or any other
medical record of any doctor of Mool Chand Hospital. Some such questions
and corresponding answers are extracted here:-
"Q Are you in a position to produce any certificate or
prescription or any other medical record of any doctor of
Moolchand Hospital, who treated your mother during her
stay during the period 31.01.2003 to 07.02.2003 wherein it
is mentioned that "your mother was not in sound mind" and
that "her condition was unstable"?
Ans. I have already filed on record all medical documents
with regard to state of mind of deceased and soundness of
medical health. I have no other document to show her other
medical condition.
Q. Are you in a position to produce any certificate of any
treating doctor of your mother wherein it is specifically
mentioned that "your mother was not in sound mind" and
that "her condition was unstable"?
Ans. My answer to this question is as stated above.
It is wrong to suggest that I am avoiding answers to the
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Ashval Vaderaa vs Amitabh Narayan & Ors.
above questions as the same are unfavorable and
inconvenient to me.
Q. Are you in a position to produce any document or show
in any of the documents already produced by you that the
treating doctors of Moolchand Hospital ever advised you
that she should be shifted or admitted to Intensive Care Unit
because of her serious health condition?
Ans. I have already filed all the original medical documents
on record apart from them I have no other medical
document.
It is wrong to suggest that I am avoiding answer to the
above question as the same is unfavorable and inconvenient
to me.
Q Are you in a position to produce any document in support
of your aforesaid statement i.e. to show that on 4th
February, 2003 her pulse rate had gone upto 250 per
minute?
Ans. I did not state that her pulse rate had gone upto 250
per minute However, as per my earlier statement dated
07.12.2015, 1 had mentioned that the pulse rate may have
gone upto 250 per minute because on 04.02.2003 she had
PSVT wherein as per medical knowledge, the pulse rate
goes up till 250 per minute in such conditions.
Q. On 07.12.2015 you stated in answer to my question that
"I can make efforts to produce above said reports" meaning
thereby day to day reports of your mother's health during
the period 31.01.2003 to 07.02.2003 when she was admitted
to Moolchand Hospital.
Did you make any effort to collect those reports for their
production in the court or you did not make any effort?
Ans. I have not brought the above said documents because I
did not make any efforts.
Q I put it to you that while you have produced only the
discharge summary and investigation results of Mrs. Karuna
Raj Vaderaa of Mool Chand Hospital for the period
31.01.2003 to 07.02.2003, you are 'intentionally withholding
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Ashval Vaderaa vs Amitabh Narayan & Ors.
the daily recordings and notes of nurses and treating doctor
with relevant treatment sheets.
Ans. It is wrong."
157. Thus, though the initial onus is on propounder to show that there is no
suspicious circumstance surrounding the execution of Will and he also has to
demonstrate by convincing and definite evidence that the Testatrix was in
sound disposing condition of, instead of discharging such burden, the above
said questions were put to the Objector, thereby shifting the onus, which is
neither justifiable nor permissible.
158. Moreover, in view of the revelations made by Mr. Amitabh Narayan,
it is not at all clear to the Court, as to which was that Will which the
Testatrix wanted to execute. Moreover, there is some interpolation with
respect to the date appearing on the Will and it not clear whether the Will
was executed on 05.02.2003 or 06.02.2003. In the above said factual matrix,
it was imperative for the petitioner to have rather examined the concerned
Sub-registrar. Interestingly, none of the witness while signing as attesting
witness dared to put date under their respective signatures which also
becomes somewhat unusual in the context of the present case. Is it a sheer
coincidence or a deliberate ploy, remains a puzzle.
159. Undoubtedly, it is entirely the discretion of such maker of the Will to
bequeath the property in the manner it so desires. From such prospective,
this Court would not be tempted to compare the manner in which property
was distributed at the time of earlier registered Will dated 07.10.2002 and in
the Will in question i.e. Will dated 05.02.2003. However, with respect to Will
dated 05.02.2003, there are several concerns which are left unanswered.
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Ashval Vaderaa vs Amitabh Narayan & Ors.
Thus, her testamentary capacity should have been corroborated in much
more effective manner, instead of leaving doubts and dodges.
160. A caveat, right here.
161. Merely because maker of Will is admitted in a hospital would not, ipso
facto, mean that he is not in sound disposing mind. This court does not say
so, at all. Capacity of any such maker to understand the testament cannot be
undermined and understood as impaired, merely on account of old age and
hospitalization. The suspicion arises because of holding back best evidence
and other attendant circumstances. Testatrix had already executed a
registered Will in 2002 and if her condition was not serious, as claimed by
the petitioner, where was the „tearing hurry‟ to get another Will executed in
hospital, more so when she, rather, required surgical intervention.
162. The hush and hurry is the main worry.
163. The discharge summery (Ex. OW1/5) indicates that her condition
became little concerning on 04.02.2003 and she was discharged on
07.02.2003 as she required surgical intervention. She was shifted to another
hospital for better management. In between, the Will has been executed and,
therefore, the court must be provided extra guarantee about her sound
disposing mind on 05.02.2003. It cannot be presumed so, merely because
Will is attested.
164. In Niranjan Umeshchandra Joshi (supra), it has been observed by
Hon‟ble Supreme Court that only the concerned attending doctor can state
about the frame of mind of such maker. Though, Dr. Thakur is stated to be
such doctor, he never certified about medical condition of Testatrix on
05.02.2003 and also never met Sub-Registrar.
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165. The conclusion is, thus, irresistible.
166. The primary onus is always on the propounder to dispel any
suspicious circumstance surrounding the execution of the Will. In Raja Ram
Singh (supra), this Court has, in no uncertain words, observed that it is
settled principle of law that if there is a suspicious circumstance about the
execution of a Will, it is the duty of the person, seeking relief, to dispel any
suspicious circumstance. In Deshraj Gupta (supra), Division Bench of this
Court has observed that the onus probandi lies upon the party propounding
the Will and such party must satisfy the conscience of the Court that the
instrument so propounded is the last Will of the Testatrix. It also observes
that if there are suspicious circumstances, such onus becomes heavy and has
to be satisfactorily discharged. The following observations made in Vijay
Kumar Tiwari (supra) are germane in the present context: -
"21. The law relating to the Wills is clear that the proof
of due execution of Will always lies upon its propounder
who must satisfy the judicial conscience that the
instrument is the last Will of a free and capable testator.
Though no specific standard of proof can be enunciated
which must be applicable to all the cases as every case
depends on its circumstances, courts must be vigilant and
zealous in examining evidence for the reason a Will is a
solemn document and speaks for the dead. Suspicious
circumstances are the presumptions which hold against a
Will. Greater is the suspicion more heavy would be the
onus to be discharged by he who propounds the Will.
Unless suspicious circumstances are satisfactorily
explained by removing the cloud of suspicion, a court
would not readily accept the document propounded as the
last legal and valid testament of the deceased. It may be
true that nature of proof required to prove a Will is not
different from that required to prove other documents
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Ashval Vaderaa vs Amitabh Narayan & Ors.
except the requirement of attestation prescribed under
Section 63 of the Indian Succession Act but it cannot be
lost sight of that what distinguishes a Will from other
documents is that the testator is not available to testify the
same as his last Will. Thus, an element of solemnity is
introduced in the decision. The proof of a Will is to be
tested on the satisfaction of a prudent mind. Unnatural
disposition, improbable or unfair in the light of relevant
circumstances or other indications that the disposition
was not the result of the testator's free Will and mind cast
a very heavy initial onus on the propounder and unless
satisfactorily discharged the court would not be justified
in treating the document as the last Will of the testator. A
sound mind required under Section 59 of the Indian
Succession Act may not mean that the testator should
have his mental faculty in their fullest vigour, but it
means that at least the testator should have the capacity
to understand the nature of his property; memory to
remember the relations and persons normally having
claim on his bounty and also a judgment."
167. In Benga Behera and Another (supra), the Hon‟ble supreme Court
observed that the existence of suspicious circumstance, itself, may be held to
be sufficient to arrive at a conclusion that the execution of the Will has not
been duly proved. The principles propounded in Meena Pradhan and Others
(supra) have already been extracted in the earlier part of the judgment and
even as per the above said principles and the settled position of law,
wherever there is any suspicion as to the execution of the Will, it is the
responsibility of the propounder to remove those before such Will is
accepted as last Will of the testator. It is also supplemented therein that in
such cases, where there existed any suspicion, the initial onus of the
propounder becomes heavier. In H Venkatachala Iyengar (supra), it is
observed that the test of conscience merely emphasizes that, in determining
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the question as to whether an instrument produced before the court is the last
Will of the testator, the court decides a solemn question and it must be fully
satisfied that it had been validly executed by the testator who is no longer
alive.
168. In the present case, my foregoing discussion would indicate that there
are several suspicious circumstances which have not been explained and
elucidated by the propounder in any manner whatsoever. Though the
propounder is not expected to prove the Will by mathematical precision and
is required to demonstrate execution in terms of the essential statutory
requirements under the Act, where there are specific averments of existence
of suspicious circumstances, Court would expect elimination of such
suspicion by the propounder itself. Only, thereafter, such Will can be taken
as a „validly executed last Will‟. There cannot be any confusion with respect
to discharge of onus. The initial onus is always on propounder which
becomes heavier when the opposite side raises suspicion. The onus on to
adversary would shift only where such adversary pleads forgery, fabrication,
coercion, undue influence etc. Here, the primary and basic onus has not been
discharged to the satisfaction of the court. Various suspicious circumstances
and glaring infirmities in the instant case can be summed up as under: -
a) The Testatrix was admitted in the hospital and such fact is neither
stated in the Will nor in the petition.
b) The petitioner had drafted the Will and such fact was never divulged
during the trial.
c) The Testatrix was earlier admitted in Mool Chand Hospital but since
her condition deteriorated and there was urgent need of surgical
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Ashval Vaderaa vs Amitabh Narayan & Ors.
intervention, she was shifted to Ganga Ram Hospital. In such a
situation, extra assurance was required from petitioner and propounder
about the sound disposing mind of the Testatrix, which is lacking.
d) No family member, except the Objector himself, has entered into
witness box. All others are mute spectators in the trial. Mr. Asheesh
Vaderaa, presumably the one taking care of his ailing mother when
she was in the hospital, also does not bother to enter into witness box.
His shying away from deposing cannot be taken casually. He also
does not feel it sensible to place on record medical documents to
firmly demonstrate that the Testatrix was in a sound disposing mind at
the relevant time. No doctor is called from the said hospital with
relevant record. One official was summoned from the above said
hospital, that too by the Objector, who rather claimed that the record
was no longer available with them.
e) After the first draft of the Will was prepared, the Testatrix, allegedly,
directed to incorporate certain changes and accordingly, another draft
was prepared but as per the propounder himself, the Testatrix had
signed the „first draft‟ as well as the „second draft‟ before the Sub-
Registrar and, therefore, it is not clear as to what was the exact desire
and last testament of the maker of the Will -one mentioned in the first
draft or one in the second draft. Though certain changes may be mere
clerical, there are differences qua bequeath as well, albeit, not very
substantial. The petitioner, who had drafted these Wills, does not grace
the witness box. Thus, the best evidence has been held back and
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primary and initial onus does not stand discharged, merely by
examining the two attesting witnesses.
f) The testimony of two attesting witnesses does not inspire enough of
confidence. There is strong doubt whether Dr. Vinod Rai was,
actually, present when the Will was being registered in the hospital.
g) The deposition of CW1 Dr. Thakur also does not inspire much
confidence as his evidence does not depict his presence at the crucial
juncture i.e. at the time of the execution of the Will in the hospital.
The medical certificate purportedly issued by him has been produced
belatedly and moreover, it, being prior in time, is of not much
consequence.
h) There is nothing to show that the Sub-Registrar had ever contacted
any doctor or had made any inquiry himself from the Testatrix about
her sound disposing mind and health condition. Normally, the Court
does not insist for examination of Sub-Registrar, who discharges his
official duties while registering any such document but in an
exceptional situation like the one here, when a Sub-Registrar was
rather requested to register the Will at hospital, he is under
„indispensable obligation‟ to make himself „sure and certain‟ about the
sound disposing mind of such maker of the Will who is an
octogenarian and admitted in hospital. It is imperative for him not
only to make specific inquiry in this regard from the attending doctor
but also to „personally enquire‟ from such maker about its sound
disposing state. The evidence on record does not suggest so. Mere
reference of one medical certificate, which is not even contemporary,
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Ashval Vaderaa vs Amitabh Narayan & Ors.
is of no avail and cannot be sufficient to hold that Testatrix was
perfectly alright even at execution of Will. The fitting response, if at
all, could have come from such Sub-Registrar but he was not even
called for deposition. To dispel the dark clouds hovering over such
execution, the propounder should have, himself, made a request to call
such Sub-Registrar in Witness Box. Again, the best evidence has been
held back for the reasons, best known to propounder and Mr. Asheesh
Vaderaa. In H Venkatachala Iyengar (supra), a celebrated case which
is frequently cited in probate matters, the Sub-Registrar had gone to
the residence of the maker of the Will who was ill and bed-ridden. The
Hon‟ble Supreme Court observed that non-examination of the
concerned Sub-Registrar, in whose presence the documents was
registered, was to be taken as a circumstance.
i) There is also nothing on record which may indicate as to in what
manner the request, if any, was sent to Sub-Registrar to come at the
Hospital and to register the Will. There is no record to the above said
request. Generally, intimation is sent in advance along with medical
certificate and a copy of the document to be registered but in the
present case, nothing was produced before the Trial Court to show
compliance thereof.
j) Though, this Court may assume that the Sub-Registrar had come at
the hospital, the crucial aspects - whether Testatrix was, actually, in a
sound disposing mind or not and whether such vital fact was duly
inquired into by Sub-Registrar, do not stand duly proved.
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169. Thus, the propounder has miserably failed to discharge its primary
onus and there is mystery surrounding the execution of the Will and
complete lack of assurance about maker, being in sound disposing state.
170. As an upshot of my foregoing discussion, the issue No. 1 is decided
against the petitioner, the onus of which was, even otherwise, on the
petitioner. Since the issue No. 1 is decided against the petitioner, as a
necessary corollary, issue No. 2 is also decided against the petitioner.
171. Resultantly, the present appeal is allowed and judgment dated
08.03.2018 is set aside.
172. All pending applications stand disposed of in aforesaid terms.
MANOJ JAIN, J
March 18, 2025/sw
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